RE: Lease Agreement by and between Commerce Park Realty LLC and Power Designs, Inc., as assigned to Technipower LLC
Exhibit
10.44
February
15, 2005
▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Commerce
Park Realty LLC
Commerce
Park
▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
RE:
|
Lease
Agreement by and between Commerce Park Realty LLC and Power Designs,
Inc.,
as assigned to Technipower LLC
|
Dear
▇▇.
▇▇▇▇▇▇:
Pursuant
to section 3.2 of the above-captioned document, notice is hereby given that
Tenant is exercising its option to renew its Lease on the premises located
at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ for an additional 5 year term, commencing
on July 15, 2007 and terminating on July 14, 2012. Section 1.6 of the
above-captioned document is hereby amended to read as follows:
Renewal
Rate. Base Rent during the Renewal Term shall be as
follows:
7/15/2007
- 7/14/2012; Annual Rent $97,500.00; Monthly Rent
$8,125.00
As
inducement for the Tenant to exercise its option fourteen months prior to the
exercise date specified in Section 3.2 of the above-captioned document, Landlord
shall at its own cost and expense, perform the following improvements to the
demised premises by the completion dates noted below:
| 1. |
Refurbish
restrooms (new tile, paint, partitions, cabinets, mirrors and
fixtures)
|
| 2. |
Refurbish
kitchen (new flooring, sink, pump and
cabinet)
|
| 3. |
Add
suspended ceiling in manufacturing area inclusive of ventilation
and
lighting per exhibit A and additional lighting for top floor of mezzanine
due to addition of suspended
ceiling.
|
| 4. |
Replace
and or seal windows
|
| 5. |
Paint
manufacturing area
|
| 6. |
Add
front and side door awning
|
| 7. |
Replace
front door
|
| 8. |
Trim
and add additional shrubbery to front of
building
|
| 9. |
Remove
large pine tree at left corner of
building
|
Items
1
through 8 are to be completed no later than March 31, 2005 and item 9 is to
be
completed no later than August 31, 2005.
Please
acknowledge your agreement and acceptance of the terms of this letter by signing
where indicated below and returning an original for my files.
Very
Truly Yours,
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇
President
Technipower
LLC
Acknowledged
and Agreed
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Commerce
Park Realty LLC
Date:
AMENDMENT
TO AGREEMENT OF LEASE
AGREEMENT
made as
of the 23rd day of February, 2005, by and between COMMERCE
PARK REALTY, LLC,
a
Connecticut limited liability company having an address at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Lessor”)
and
POWER
DESIGNS, INC.,
a
Delaware corporation, having an address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Lessee”).
RECITALS
A. Lessee
has leased certain premises located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(the “Leased
Premises”),
pursuant to a lease dated February 26, 2002 between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇
▇.
▇▇▇▇▇▇, as original lessor, and Lessee, as lessee (the “Lease”).
B. Lessee
has requested that Lessor agree to extend the Initial Term of the Lease to
July
14, 2012, and extend the Renewal Term to July 14, 2017.
C. To
memorialize said extensions, Lessor requires that the Lessee enter into this
Agreement.
D. In
consideration of the foregoing, and for One Dollar ($1.00) and other valuable
consideration received by each to their satisfaction, Lessor and Lessee hereby
agree as follows:
AGREEMENT
1. Lessor
and Lessee hereby agree that the Initial Term of the Lease shall end on July
14,
2012. All references in the Lease and herein to the “Initial Term” shall be
deemed to mean the period ending on July 14, 2012.
2. Lessee
agrees that the current annual rent of Ninety-Seven Thousand Five Hundred and
00/100 Dollars ($97,500.00), which is payable in advance in equal monthly
installments of Eight Thousand One Hundred Twenty-Five and 00/100 Dollars
($8,125.00), shall continue to be payable on the first day of each calendar
month for the remainder of the Initial Term, as the Initial Term has been
extended hereby.
3. Notwithstanding
anything contained in the Lease to the contrary, the Renewal Term shall commence
on July 15, 2012 and terminate on July 14, 2017. The Base Rent payable during
the Renewal Term shall be as follows:
|
From/To
|
Annual
|
Monthly
|
|||||
|
7/15/2012
- 7/14/2013
|
$
|
117,000.00
|
$
|
9,750.00
|
|||
|
7/15/2013
- 7/14/2014
|
$
|
118,500.00
|
$
|
9,875.00
|
|||
|
7/15/2014
- 7/14/2015
|
$
|
120,000.00
|
$
|
10,000.00
|
|||
|
7/15/2015
- 7/14/2016
|
$
|
120,744.00
|
$
|
10,062.00
|
|||
|
7/15/2016
- 7/14/2017
|
$
|
120,744.00
|
$
|
10,062.00
|
|||
4. Except
as
specifically modified hereby, all of the terms and conditions of the Lease
remain in full force and effect.
5. This
Agreement shall be binding upon, and inure to the benefit of, Lessor and Lessee
and their respective heirs, successors and assigns.
6. This
Agreement shall be construed in accordance with the laws of the State of
Connecticut.
7. This
Agreement may not be changed or modified, in whole or in part, except by written
instrument executed by the party against whom enforcement of such change or
modification is sought.
8. All
capitalized terms used, but not defined herein, shall have the definitions
attributed thereto in the Lease.
[The
Remainder of this Page Intentionally Left Blank]
2
IN
WITNESS WHEREOF,
Lessor
and Lessee have executed this Agreement as of the day and date first above
written.
|
LESSOR:
COMMERCE
PARK REALTY, LLC
By:
Commerce
Park Management Company
Its
Manager
Title
:
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Its
President
|
|
|
LESSEE:
POWER
DESIGNS, INC.
By
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇
Its:
President
|
3
THIS
LEASE AGREEMENT
(the
“Lease”)
is
made and entered into as of the ___ day of February, 2002 by and between
COMMERCE
PARK REALTY, LLC,
a
Connecticut limited liability company (“Landlord”)
and
POWER
DESIGNS, INC.,
a
Delaware corporation (“Tenant”);
|
1.
|
LEASE
SUMMARY
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1.1 Premises.
As
further described in Exhibit
A,
the
premises leased by Tenant (the “Premises”)
consist of approximately 15,000 square feet in a building (hereinafter referred
to as the “Building”)
on a
parcel of land (the “Land”)
known
as ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.2 Initial
Term.
a. Commencement
Date: July
15,
2002
b. Termination
Date: July
14,
2007
1.3 Renewal
Term.
a. Commencement
Date: July
15,
2007
b. Termination
Date: July
14,
2012
1.4 Base
Rent.
$97,500.00 per year from the Commencement Date through July 14,
2007.
1.5 Monthly
Payments.
$8,125.00 from the Commencement Date through July 14, 2007.
1.6 Renewal
Rate.
Base
Rent during the Renewal Term shall be as follows:
|
From/To
|
Annual
|
Monthly
|
|||||
|
7/15/2007
- 7/14/2008
|
$
|
105,000.00
|
$
|
8,750.00
|
|||
|
7/15/2008
- 7/14/2009
|
$
|
106,500.00
|
$
|
8,875.00
|
|||
|
7/15/2009
- 7/14/2010
|
$
|
108,000.00
|
$
|
9,000.00
|
|||
|
7/15/2010
- 7/14/2011
|
$
|
108,750.00
|
$
|
9,062.00
|
|||
|
7/15/2011
- 7/14/2012
|
$
|
108,750.00
|
$
|
9,062.00
|
|||
1.7 Security
Deposit.
Tenant’s security deposit is $24,375.00.
1.8 Tenant’s
Pro Rata Share.
Tenant’s Pro-Rata Share is 50%.
|
2.
|
PREMISES
|
In
consideration of the rents and covenants hereof, Landlord hereby leases to
Tenant upon and subject to the terms and conditions of this Lease, and Tenant
hereby takes from Landlord, the Premises as set forth in Exhibit
A
attached
hereto in accordance with and during the term of this Lease, said Premises
to be
in their current “AS IS”, “WHERE IS” condition. Landlord makes no
representations or warranties of any kind or nature with respect to the
Premises, its condition, its compliance with applicable law or its suitability
for Tenant’s proposed use. Tenant represents and warrants that it has examined
and familiarized itself with the Premises and its condition and Tenant has
found
same satisfactory. Notwithstanding the foregoing, Landlord agrees that it will
complete the work described on the Work Letter attached hereto as Exhibit
B
at its
own cost and expense prior to the Commencement Date (defined
below).
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3.
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TERM
|
3.1 Initial
Term.
The
initial term (the “Initial
Term”)
of
this Lease commences on July 15, 2002 (the “Commencement
Date”)
and
will end on July 14, 2007 (unless extended in accordance with Section
3.2)
or such
earlier date pursuant to any of the provisions of this Lease or pursuant to
law
(the “Termination
Date”).
3.2 Renewals.
Provided that Tenant is not in default of any of the terms of this Lease,
Landlord covenants and agrees with Tenant that Landlord shall, at Tenant’s
option, lease the Premises to Tenant at the expiration of the Initial Term
for
one (1) additional term of five (5) years (the “Renewal
Term”),
under
the same terms and provisions, except the Base Rent shall be increased pursuant
to the provisions of Section
1.6
of this
Lease. Tenant shall exercise its renewal option by giving notice in writing
to
Landlord at least nine (9) months prior to the end of the Initial Term, time
being of the essence. If Tenant fails to give such notice, then this Lease
shall
automatically terminate at the end of the Initial Term.
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4.
|
RENT
|
4.1 Base
Rent.
During
the Initial Term, Tenant agrees to pay Landlord at the address provided in
Section
29
or at
such other place or to such other person as Landlord may designate, as annual
base rent for the Premises the sums specified in Section
1.4
above
(the “Base
Rent”)
payable in advance on the first day of each month in equal installments as
specified in Section
1.5
above.
Upon early possession by Tenant or at the commencement, termination or
expiration of the Initial and/or the Renewal Term, the rental payment for any
fractional month will be prorated. During the Renewal Term, Base Rent in the
amount specified in Section
1.6
above
shall be payable in advance on the first day of each month in equal installments
as specified in Section
1.6
above.
Upon execution of this Lease, Tenant shall pay Landlord one-half of the Security
Deposit. The first month’s rent and the remainder of the Security Deposit shall
be paid to Landlord on or before July 15, 2002.
4.2 Additional
Rent.
All
amounts other than Base Rent which Tenant is required to pay pursuant to this
Lease, including any payments to third parties, together with interest, costs,
fines and penalties which may be added for nonpayment or late payment by Tenant,
shall constitute additional rent (“Additional
Rent”).
Base
Rent and Additional Rent shall sometimes be collectively referred to as
“Rent”.
2
4.3 Net
Lease.
This
Lease is a “net lease”, it being understood that Landlord shall receive Rent and
all other sums payable under this Lease to or on behalf of Landlord free and
clear of any and all impositions, taxes, real estate taxes, charges or expenses
of any nature whatsoever in connection with the ownership and operation of
the
Premises. Rent shall be paid without notice or demand, and without set-off,
counterclaims, abatement, suspension, deduction or defense, except as
specifically provided otherwise in this Lease.
|
5.
|
OPERATING
EXPENSES
|
5.1 Operating
Expenses.
Tenant
shall reimburse Landlord, as Additional Rent, in the manner and at the times
provided below, Tenant’s Pro-Rata Share of all Operating Expenses. “Operating
Expenses”
shall
mean the sum of: (i) all expenses actually incurred or charged by Landlord
in
connection with the cost of snow removal and lawn maintenance and (ii) insurance
maintained by Landlord pursuant to Section
16.2
below.
5.2 Payment.
A. Tenant
shall pay to Landlord, as Additional Rent, Tenant’s Pro-Rata Share of Operating
Expenses within fifteen (15) days after receipt of a written statement
(“Landlord’s
Operating Statement”),
setting forth the amount due to Landlord under the provisions of Section
5.
B. Landlord’s
Operating Statement shall be conclusive and binding upon Tenant unless within
thirty (30) days after receipt of Landlord’s Operating Statement, Tenant shall
notify Landlord that it disputes the correctness of the statement, specifying
the respect in which the statement is claimed to be incorrect. If the dispute
shall be determined in Tenant’s favor, the amount of Tenant’s overpayment of
Additional Rent resulting from compliance with Landlord’s Operating Statement
shall be credited by Landlord against the next succeeding payment of Additional
Rent payable by Tenant pursuant to Section
5.
Landlord and Tenant shall each be responsible for their own costs and expenses
incurred in such dispute.
C. Landlord
agrees to maintain books and records reflecting Operating Expenses, which books
and records may be examined by Tenant, its authorized agents or accountants,
after notice and during regular business hours, for the purpose of verifying
the
information contained in Landlord’s Operating Statement.
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6.
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TAXES
|
6.1 Payment
of Taxes.
Upon
presentation of appropriate invoices therefor by Landlord, Tenant shall pay
directly to the taxing authority, not later than ten (10) business days after
receipt of such invoices, Tenant’s Pro-Rata Share of any and all taxes or
assessments of any kind (other than income taxes upon the Landlord’s general
revenues) now or hereafter imposed with respect to the Premises by any
governmental authority, or any other charges for which Landlord is responsible
by reason of the possession, operation, or use of the Premises by Tenant
(hereinafter collectively referred to as “Taxes”).
3
6.2 Deposits.
If
Tenant defaults in the payment of any such Taxes, Tenant, at the request of
Landlord, shall deposit with Landlord, on the first day of each and every month
of the Initial or any Renewal Term, a sum equal to one-twelfth (1/12th) of
Landlord’s estimate of the amount of Taxes payable hereunder based upon the
previous calendar year’s actual Taxes, which monthly deposit shall be held as a
fund, without interest to Tenant, to be applied to the payment of Taxes as
they
become due and payable. Tenant shall pay to Landlord within five days of demand
by Landlord any amounts necessary to increase said fund to assure that the
balance is sufficient to fully pay the Taxes when due.
6.3 Personal
Property Taxes.
If any
of Tenant’s personal property shall be assessed with Landlord’s real property,
Tenant shall pay Landlord the taxes attributable to Tenant’s property within ten
(10) business days after receipt of a written statement setting forth the Taxes
applicable thereto. Landlord will furnish Tenant upon request a copy of a
receipted tax ▇▇▇▇ for any such taxes paid by Tenant.
6.4 Tax
Proration.
Upon
the expiration or earlier termination of this Lease (except for the termination
hereof pursuant to the provisions of Section
24.1),
any
Taxes levied, assessed or becoming due upon the Premises shall be prorated
to
the Termination Date.
6.5 Tax
Appeal.
If the
Tenant shall desire to contest, in good faith, by legal proceedings formally
conducted at its own expense, any such Taxes, assessments, or other charges,
it
may do so, either in its own name or in the name of the Landlord, upon notice
to
the Landlord, in writing, before the due date thereof, of its intention to
do
so, provided that such proceeding has the effect of staying any action to impose
or foreclose a lien for same. Landlord agrees to give Tenant prompt notice
of
all such charges, taxes, assessments, or other charges to enable Tenant to
take
a timely appeal or to contest the same in a timely fashion.
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7.
|
SECURITY
DEPOSIT
|
7.1 Deposit.
Tenant
agrees to deposit with Landlord the sum of $24,375.00 to be retained as a
security deposit (the “Security
Deposit”).
One-half of the Security Deposit ($12,187.50) shall be paid upon the execution
of this Lease, with the remainder to be paid to Landlord on or before July
15,
2002. If Tenant fails to pay Rent or other charges due hereunder within any
applicable grace or cure period, or is otherwise in default hereunder, Landlord
may use, apply or retain all or any portion of the Security Deposit for the
payment of any Rent or other charge in default or for the payment of any sum
to
which Landlord may become obligated by reason of Tenant’s default, or to
compensate Landlord for any loss or damage Landlord may suffer thereby. Tenant
shall be required to replenish the Security Deposit to its original amount
within five (5) business days after any drawdown by Landlord.
4
7.2 Transfer
of Landlord’s Interest.
In the
event of a sale of the Premises, Landlord shall have the right to transfer
the
balance of the Security Deposit to the purchaser of the Premises, provided
Landlord delivers to Tenant a written acknowledgment of receipt of such funds
(or a credit therefor) and an assumption of Landlord’s rights, duties and
responsibilities under this Lease from such purchaser, including, but not
limited to, the obligation to apply, retain and return the Security Deposit
in
accordance with the terms of this Section, and Landlord shall thereupon be
released by Tenant from all liability for the return of the Security Deposit;
and Tenant agrees to look solely to the new landlord for the return of said
Security Deposit.
7.3 Custody
and Return of Deposit.
If
Tenant performs all of Tenant’s obligations hereunder, the Security Deposit, or
so much as has not been applied by Landlord, will be returned to Tenant within
thirty (30) days of the date Tenant vacates the Premises. Landlord will not
be
required to retain the Security Deposit in a separate escrow account and shall
pay Tenant no interest thereon.
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8.
|
ESTOPPEL
STATEMENTS
|
Landlord
and Tenant shall, at any time upon not less than ten (10) business days prior
written notice from the other, execute, acknowledge and deliver to the
requesting party an estoppel statement in form and substance reasonably
satisfactory to the requesting party. Any such statement may be conclusively
relied upon by any third party purchaser, mortgagee or assignee, or any other
party, and their respective successors and assigns.
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9.
|
UTILITIES
|
Tenant
will pay directly all charges incurred for all utility services used and
separately metered on or from the Premises and any maintenance charges for
said
utilities. Landlord will in no event be required to furnish or be liable for
any
interruption or failure of any utility services on the Premises.
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10.
|
COMMON
AREAS
|
10.1 Definition:
The
“Common
Areas”
are
defined as all areas and facilities outside the Premises that are provided
and
designated for the general use and convenience of Tenant and other tenants
in
the Building. Landlord reserves the right from time to time to make changes
in
the shape, size, location, number and extent of the land and improvements
constituting the Common Areas, provided that Landlord shall not materially
impair the ability of Tenant to operate its business.
10.2 Operation
and Rules and Regulations:
During
the term of this Lease, Landlord shall operate, manage, and maintain the Common
Areas, subject to the sole discretion of Landlord, and such reasonable
regulations and changes therein as Landlord shall make from time to time
(“Regulations”).
Tenant shall abide by and conform to the Regulations and shall cause the
subtenants, agents, employees, customers, invitees, licensees, independent
contractors and guests (“Guests”)
of
Tenant to so abide and conform. Landlord reserves the right from time to time
to
make all reasonable modifications to the Regulations, which shall be binding
upon Tenant upon delivery of a copy of them to Tenant. Landlord will undertake
to enforce the Regulations in a consistent manner with respect to all tenants
of
the Building, but shall not be responsible to Tenant for the nonperformance
of
any Regulations by any other tenants of the Building.
5
10.3 License
To Use:
Landlord hereby grants to Tenant and its Guests, during the term of this Lease,
the license to use, for their benefit, in common with such other parties as
are
entitled to such use, the Common Areas, subject to the rights, powers and
privileges herein reserved to Landlord. Landlord shall have the right to do
and
perform such other acts in the Common Areas as, in its sole discretion, Landlord
shall determine to be advisable for the maintenance, preservation, improvement
or convenient use of the Building.
10.4 Parking:
Tenant
and its Guests are granted during the term of this Lease a license in common
with others to park during Tenant’s business hours (on a first come, first
served basis) up to 40 motor vehicles within the parking area in the Common
Areas, but only in areas designated by Landlord for that purpose. Landlord
shall
have the right to police the parking facilities and enforce parking restrictions
and applicable Regulations by any lawful means.
10.5 Rubbish
Removal; Repairs:
Tenant
shall keep all of its trash, rubbish and garbage in an area and manner as
designated by Landlord, subject to applicable Regulations. Tenant shall repair,
at its cost, all deterioration or damage to the Common Areas occasioned by
its
lack of ordinary care. If Tenant does not make such repairs to the Common Areas
promptly, Landlord may, but need not, make repairs, and Tenant shall promptly
pay the cost thereof as Additional Rent.
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11.
|
MAINTENANCE
AND REPAIRS
|
11.1 Landlord’s
Obligations.
Landlord shall, at its sole cost and expense, maintain the structural soundness
of the roof, foundation, floors and exterior walls, and shall keep the foregoing
items and the sprinkler alarm monitoring systems and the heating, air
conditioning, ventilation, electrical and plumbing systems and Landlord’s
fixtures at the Building (but not the windows) in good repair, reasonable wear
and use and maintenance occasioned by Tenant’s misuse or negligence excepted.
Landlord shall, at Tenant’s cost and expense as an Operating Expense, keep the
driveway, parking area and sidewalks clean and free and clear of ice, snow,
debris and other obstructions, maintain all landscaped areas and mow all grass
areas on a regular basis during the growing season. In the event of repairs
contemplated in Sections
13
and
14,
the
provisions of those Sections shall control.
11.2 Landlord
Inability to Perform.
Landlord reserves the right, without liability to Tenant and without
constituting any claim of constructive eviction, to stop, interrupt or delay
(a)
repairing or replacing any service, equipment or fixtures serving the Premises
and (b) the use of any Building facilities, at such times and for as long as
may
reasonably be required by any cause beyond the reasonable control of Landlord.
No such stoppage or interruption shall entitle Tenant to any abatement of rent
or other compensation, nor shall this Lease or any of the obligations of Tenant
be affected or reduced by reason of any such stoppage, interruption or delay.
Landlord shall use reasonable efforts to reinstate any service or use which
may
be stopped or interrupted as aforesaid.
6
11.3 Tenant’s
Obligations. Tenant shall at its own cost and expense keep and maintain all
other portions of the Premises not included as part of Landlord’s Obligations as
set forth in Section
11.1
above,
in good, safe and sanitary order, condition and repair, reasonable wear and
use
excepted, and will suffer no waste. During the Term, Tenant shall, at its sole
cost and expense, purchase a service contract for the heating, air conditioning
and ventilation systems in the Building, which contract shall be reasonably
acceptable to Landlord. Except as otherwise provided in Section
11.1
above or
under Sections
13
or
14,
Tenant
will promptly make all necessary repairs upon or in connection with the Premises
and all structural and mechanical repairs necessitated by Tenant’s or Tenant’s
Guests’ negligence or misuse of the Premises or its use and occupancy thereof.
All repairs made by Tenant shall be at least equal to the original work in
class
and quality. At the expiration or other termination of this Lease Tenant will
deliver the Premises in good repair and condition, reasonable wear and tear
only
excepted, unless this Lease is terminated under Sections
13
or
14.
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12.
|
INSPECTION
|
Landlord
and Landlord’s agents and representatives will have the right to enter and
inspect the Premises at any reasonable time during business hours after
reasonable advance oral or written notice to Tenant, or at any time in case
of
emergency, for the purpose of ascertaining the condition of the Premises, curing
any default on the part of Tenant, making repairs to the Premises or showing
the
Premises to prospective tenants or purchasers.
|
13.
|
CASUALTY
DAMAGE
|
13.1 Duty
to Repair.
If
the
Premises, or any part thereof, shall be damaged by any casualty and Tenant
shall
give prompt written notice thereof to Landlord, Landlord shall, subject to
the
provisions of Section
13.2
below,
proceed with reasonable diligence to repair or cause to be repaired such damage.
If the Premises, or any part thereof, shall be rendered untenantable by reason
of such damage, Rent hereunder shall be appropriately abated for the period
from
the date of such damage to the date when the damage shall have been
substantially repaired. Provided, if Landlord or any mortgagee of the Premises
shall be unable to collect the insurance proceeds (including rent insurance
proceeds) applicable to such damage because of negligence or willful misconduct
on the part of Tenant or its Guests, the cost of repairing such damage shall
be
paid by Tenant and there shall be no abatement of Rent. Unless due to the
negligence or willful misconduct of Landlord or its agents and contractors,
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business, furniture, furnishings or equipment of Tenant resulting
in any way from such damage or the repair thereof. If Landlord elects or shall
be obligated to repair or restore any damage as aforesaid, the scope of work
shall be limited to the original condition of the Premises on the Commencement
Date, subject to reasonable wear and tear.
7
13.2 Damage
to Building.
Notwithstanding the provisions of Section
13.1
above,
if the Building shall be completely destroyed or so damaged by such casualty
that substantial alteration or reconstruction (which shall be deemed to mean
(1)
damage affecting at least 40% of the square footage of the Building, or (2)
reconstruction or alterations that would take longer than five (5) months from
the date such damage occurs to complete) shall, in Landlord’s reasonable
opinion, be required (which opinion will be delivered to Tenant within thirty
(30) days of the date of such damage), then Landlord or Tenant may, at its
option, terminate this Lease by notifying the other in writing of such
termination within sixty (60) days after the date of such damage.
|
14.
|
CONDEMNATION
|
14.1 Complete
Taking.
If the
whole of the Premises shall be taken for any public or quasi-public use, then
this Lease shall automatically terminate as of the date that possession has
been
taken. Landlord shall give Tenant prompt notice of its knowledge of any actual
or contemplated condemnation proceedings.
14.2 Substantial
Condemnation.
If any
portion of the Premises shall be taken by condemnation, which taking is
sufficient to render the remaining portion thereof unsuitable in the reasonable
judgment of Landlord or Tenant for the use described in Section
18,
either
party may give thirty (30) days written notice to the other of the termination
of this Lease.
14.3 Non-Substantial
Condemnation.
If a
lesser portion of the Premises than that specified in Section
14.2
shall be
taken by condemnation, this Lease shall continue in full force and effect as
to
the portion of the Premises remaining, provided that Base Rent shall be reduced,
effective upon such taking, in proportion to the gross floor area of the
Premises taken. In such event, Landlord agrees, at Landlord’s sole cost, but
only to the extent of any award actually available to Landlord (and not paid
to
Landlord’s mortgagee) attributable to the Premises, to as soon as reasonably
possible restore the Premises to a complete unit of like quality and character
as Landlord is required to deliver to Tenant at the Commencement Date, subject
to reasonable wear and tear suffered to the date of such taking and the
practical limitations of such restoration caused by the condemnation. If
Landlord does not complete such restoration to a complete unit within ninety
(90) days of the date title is transferred to the condemning authority, Tenant
may terminate this Lease by giving Landlord thirty (30) days written notice
thereof.
14.4 Landlord’s
Ownership of Condemnation Award.
All
awards of any kind for the taking of the Premises or any part thereof shall
be
the sole and exclusive property of Landlord. Tenant hereby assigns and
specifically waives in favor of Landlord all rights it has to said award or
judgment. Notwithstanding the foregoing, Tenant may pursue a separate award
for
moving expenses, its leasehold interest or as otherwise allowed by applicable
law, so long as such award does not reduce the award made to
Landlord.
8
|
15.
|
EXEMPTION
OF LANDLORD FROM LIABILITY, LANDLORD’S DEFAULT AND TENANT’S LIMITATION OF
REMEDIES
|
15.1 Exemption.
Tenant
hereby agrees that Landlord shall not be liable for injury to Tenant’s business
or any loss of income therefrom or for damage to the property of Tenant or
Tenant’s Guests or for injury to the person of Tenant or Tenant’s Guests, unless
such damage or injury is caused by or results from the negligence or willful
misconduct of Landlord, its agents, contractors or employees.
15.2 Default
by Landlord.
Landlord shall not be in default hereunder unless Landlord fails to perform
obligations required of Landlord within a reasonable time, but in no event
until
thirty (30) days after written notice by Tenant to Landlord specifying therein
the obligation which Landlord has failed to perform; provided, however, that
if
the nature of Landlord’s obligation is such that more than thirty (30) days are
required for performance, then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion.
|
16.
|
INSURANCE
|
16.1 Tenant
Liability and Hazard Insurance.
Tenant,
at its own expense, shall provide and keep in force with companies acceptable
to
Landlord (i) broad form comprehensive general liability insurance in the amount
of not less than One Million Dollars ($1,000,000) per occurrence, such limits
to
be for any greater amounts as may be reasonably required by Landlord, and (ii)
policies of fire and extended coverage insurance on Tenant’s personal property
in the Premises with standard coverage vandalism, malicious mischief, special
extended perils (all risk) and difference in conditions coverages and coverage
against such other risks or hazards and in an amount of not less than One
Million Dollars ($1,000,000.00). Tenant shall furnish Landlord with certificates
of such policies whenever required by Landlord.
16.2 Landlord
Liability and Hazard Insurance.
Landlord shall maintain in full force and effect on the Building and Common
Areas (i) a policy or policies of fire and extended coverage insurance with
standard coverage vandalism, malicious mischief, special extended perils (all
risk) endorsements to the extent of the replacement value thereof, and (ii)
broad form comprehensive general liability insurance in the amount of not less
than Three Million Dollars ($3,000,000.00) per occurrence. Tenant shall have
no
interest in such insurance and will sign all documents reasonably necessary
or
proper in connection with the settlement of any claim or loss by Landlord.
Landlord represents that such insurance names Landlord’s mortgagee as an
additional insured with a right to notice of cancellation, and Landlord agrees
to provide Tenant with notice of the cancellation of any such insurance (other
than in connection with the rollover of the policy into, or the replacement
of
the policy with, a new policy where there is no gap in coverage).
9
|
17.
|
WAIVER
OF SUBROGATION
|
Landlord
and Tenant hereby mutually waive any and all rights of recovery against one
another for real or personal property loss or damage occurring to the Premises
or any personal property therein from perils insured against under the insurance
policies existing for the benefit of the respective parties and will assure
that
such insurance permits waiver of liability and contains a waiver of subrogation.
Nothing herein contained shall relieve Landlord or Tenant from any liability
to
the other in connection with any uninsured damage to the Premises by fire or
other casualty if such party shall be legally liable in such
respect.
|
18.
|
USE;
COMPLIANCE WITH LAW
|
18.1 Use.
The
Premises shall be used and occupied only for such commercial office,
warehousing, manufacturing and related uses as are permitted under existing
zoning regulations and for no other purposes.
18.2 Compliance
with Law and Restrictive Covenants.
Tenant
shall, at Tenant’s expense, comply promptly with, and shall not use the Premises
in violation of, all applicable laws, statutes, ordinances, rules, regulations
and orders, including, but not limited to, those relating to environmental,
health and safety matters (“Laws”),
insurance company requirements and restrictive covenants (of which Tenant has
been given written notice) regulating the use by Tenant of the Premises and
shall, at Tenant’s expense, obtain and comply with the terms of any and all
licenses and permits necessary for any such use. Tenant shall not use or permit
the use of the Premises in any manner that will tend to create waste or a public
or private nuisance. Tenant shall not use or permit the Premises to be used
for
any purpose which would render the insurance thereon void or cause an increase
in the premiums for such insurance. To the best of Landlord’s knowledge,
Tenant’s proposed use of the Premises will not void or cause an increase in
insurance premiums.
|
19.
|
ALTERATIONS,
IMPROVEMENTS AND SIGNS
|
19.1 Alterations.
Tenant
shall not make any alterations of, substitution and replacement for, additions
to or removals from (“alterations”)
the
Premises, the cost of which exceeds $2,500.00, without Landlord’s advance
written consent in each and every instance, which consent shall not be
unreasonably withheld or delayed.
19.2 Required
Work.
If any
alterations are made by Tenant, all work required in connection therewith shall
be promptly paid for by Tenant and performed in compliance with all Laws in
a
first class and workmanlike manner and shall conform to the orders, rules and
regulations of private insurance rating bureaus. Tenant shall procure and pay
for all required permits, certificates and licenses in connection with such
alterations and shall obtain such public liability, builder’s risk and worker’s
compensation insurance as Landlord may reasonably require.
19.3 Ownership
and Removal.
All
permanently attached additions, non-trade fixtures and improvements, in or
upon
the Premises, whether placed thereon by Tenant or by Landlord, shall become
Landlord’s property and shall remain upon the Premises at the termination of
this Lease without compensation, allowance or credit to Tenant, unless Landlord
has requested Tenant to remove such items at the time they were constructed
or
installed, in which event, Tenant shall cause such removal at Tenant’s expense.
All other improvements and trade fixtures installed by Tenant may be removed
by
Tenant prior to the termination of this Lease if Tenant so elects and such
property or any portion thereof will be removed if required by Landlord; upon
any such removal Tenant will restore the Premises to their original condition.
Any such property remaining on the Premises after termination shall become
the
property of Landlord.
10
19.4 Signs.
Tenant
shall not install or maintain any sign or graphics on the exterior or interior
of the Premises without first obtaining Landlord’s written approval and consent,
which consent shall not be unreasonably withheld or delayed.
|
20.
|
LIENS
AND ENCUMBRANCES
|
Tenant
will not cause, suffer or permit any liens or encumbrances on, nor do any act
which will in any way encumber or impair, the title of Landlord in and to the
Premises. Any claim to, or lien upon the Premises arising from any act or
omission of Tenant, including, but not limited to, any mechanics or
materialmen’s liens, will accrue only against the leasehold estate of Tenant and
will be subject and subordinate to the paramount title and rights of Landlord
in
and to the Premises. Landlord may, but will not be obligated to, procure the
discharge of any such lien upon thirty (30) days prior written notice to Tenant.
Any amount so paid by Landlord, and all reasonable legal and other expenses
of
Landlord in defending any such action or procuring the discharge of such lien,
shall become due and payable as Additional Rent on the date of Landlord’s notice
to Tenant of such payment or deposit.
|
21.
|
SUBORDINATION;
ATTORNMENT
|
21.1 Subordination.
Tenant
accepts this Lease subject and subordinate in all respects to any mortgage
which
may now or hereafter be placed on or affect the fee interest in the Project
(the
“mortgage”),
and
to each advance made, or hereafter to be made, under any such mortgage, and
to
all renewals, modifications, consolidations, replacements, extensions and
substitutions of and for such mortgage. This Section
21.1
shall be
self-operative and no further instrument of subordination shall be required.
In
confirmation of such subordination, Tenant shall execute and deliver promptly
any certificate that Landlord, and any mortgagee or their respective successors
in interest may reasonably request. Landlord shall use its best efforts to
obtain a non-disturbance agreement from the holder of any such mortgage, in
a
form reasonably acceptable to Tenant and such holder.
21.2 Attornment.
If any
foreclosure proceedings are brought under any mortgage or any mortgagee obtains
possession of the Premises by deed or lease in lieu of foreclosure, or in any
other such similar matter, Tenant, at the request of any such party obtaining
possession will attorn to and recognize them as Landlord under this Lease,
provided such party agrees not to disturb Tenant’s rights under this Lease.
Tenant shall, at the request of Landlord, execute a document in form proper
for
recording confirming such agreement to attorn.
11
|
22.
|
ASSIGNMENT
AND SUBLETTING
|
22.1 No
Assignment or Sublease.
Except
as specifically provided herein, Tenant shall not assign, sublet, mortgage
or
otherwise transfer this Lease, the Premises, or any part hereof or thereof
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. A transfer of fifty percent (50%) in the
aggregate or more of an interest in Tenant (whether by stock, partnership
interest or otherwise) by any party or parties in interest will be deemed an
assignment of this Lease. Consent by Landlord to any assignment, subletting,
mortgage or transfer shall not operate to relieve, release or discharge Tenant
from any covenant or obligation hereunder, except to the extent, if any,
expressly provided for in such consent, or be deemed to be a consent to or
relieve Tenant from obtaining Landlord’s consent to any subsequent assignment,
transfer, subletting or mortgage. Landlord shall not be deemed to have
unreasonably withheld its consent hereunder if its consent is withheld because:
(a) Tenant is in default under this Lease and such default has not been timely
cured; (b) any notice of termination of this Lease or termination of Tenant’s
possession shall have been given under Section
24
hereof;
(c) the portion of the Premises which Tenant proposes to sublease, including
the
means of ingress to and egress from and the proposed use thereof, and the
remaining portion of the Premises, will violate any applicable laws; (d) the
proposed use of the Premises by the subtenant or assignee does not conform
with
the use permitted by Section
18
hereof;
or (e) in the reasonable judgment of Landlord, the proposed subtenant or
assignee is of a character or is engaged in a business which would be
deleterious to the reputation of the Premises, or the subtenant or assignee
is
not sufficiently financially responsible to perform its obligations under the
proposed sublease or assignment; provided, however, that the foregoing are
merely examples of reasons for which Landlord may withhold its consent and
shall
not be deemed exclusive of any permitted reasons for reasonably withholding
consent, whether similar to or dissimilar from the foregoing
examples.
22.2 Subtenant
Rentals.
In the
event of a default by Tenant hereunder, if the Premises or any part thereof
are
then sublet, Landlord may at its option collect directly from such subtenant
all
rents becoming due to Tenant under such sublease and apply such rent against
any
sums due to it by Tenant hereunder, without thereby waiving or releasing Tenant
from the further performance of its obligations hereunder.
|
23.
|
DEFAULT
|
23.1 Event
of Default.
The
occurrence of any one or more of the following events will constitute a default
hereunder:
A. Tenant
fails to make any payment within three (3) business days after the same is
due
hereunder. Landlord agrees that it will apply the Security Deposit to cure
such
failure in full, and Tenant shall not be in default hereunder unless it fails
to
replenish the Security Deposit as required under Section
7.1
above.
If the Security Deposit is not sufficient to cure such failure in full, Tenant
shall be in default hereunder if its fails to pay such shortfall to Landlord
within three (3) business days after notice thereof from Landlord.
12
B. Tenant
voluntarily assigns this Lease or subleases the Premises, or any part thereof,
without the prior written approval of Landlord, except as expressly provided
in
Section
22
hereof.
C. Tenant
fails to observe or perform any of the other covenants, conditions or provisions
of this Lease and Tenant fails to cure such default within thirty (30) days
after notice thereof in writing to Tenant.
D. Tenant
files a petition in bankruptcy or for reorganization or for an arrangement
pursuant to the Bankruptcy Act of the United States or shall be adjudicated
a
bankrupt or shall admit in writing its inability to pay its debts generally
as
they become due, or if a petition or answer proposing the adjudication of Tenant
as a bankrupt pursuant to the Bankruptcy Act of the United States or any similar
federal or state law is filed and such petition or answer shall not be
discharged or denied within sixty (60) calendar days after the date of filing
thereof.
E. A
receiver, trustee or liquidator of Tenant or of all or substantially all the
property of Tenant or of its interest in the Premises shall be appointed in
any
proceeding brought by Tenant, or if any such receiver, trustee or liquidator
shall be appointed in any proceeding brought against Tenant and if such
receiver, trustee or liquidator shall not be discharged within sixty (60)
calendar days after such appointment.
F. The
Premises shall have been abandoned or left unoccupied for twenty-five (25)
consecutive calendar days.
G. The
occurrence of any other event which is defined as a default elsewhere in this
Lease, together with the passage of the applicable grace period, if any, without
cure.
|
24.
|
REMEDIES
|
Upon
the
occurrence of any one or more such events of default, Landlord may at its
election, either terminate this Lease or terminate Tenant’s right to possession
only, without terminating this Lease, pursuant to the following
provisions:
24.1 Termination
of Lease.
A. Landlord
shall have the right, at its election, to terminate this Lease on a date
specified in a notice from Landlord to Tenant. On such Termination Date, all
right, title and interest of Tenant hereunder shall expire, and Tenant shall
then peaceably and quietly quit the Premises and surrender the same to Landlord,
but Tenant shall remain liable as hereafter provided. If any such notice is
given, Landlord shall have the immediate right of re-entry and possession of
the
Premises and the right, pursuant to the provisions of Section
24.3,
to
remove all persons and other property therefrom.
13
B. Upon
termination of this Lease, Landlord at its option shall be entitled to recover
as liquidated damages, in lieu of all other claims for damages on account of
the
termination of this Lease, an amount equal to the total of:
(i) all
Rent
and Additional Rent due and payable by Tenant through the Termination Date;
plus
(ii) an
amount
equal to the value of Rent and Additional Rent to be paid by Tenant for the
residue of the stated term hereof, less the fair rental value of the Premises
for the remainder of the stated term (taking into account all time and expenses
necessary to obtain the replacement tenant or tenants).
Tenant’s
economic obligations under this Section
24.1.B.
shall
survive the termination of this Lease. Said amount shall be due and payable
by
Tenant immediately upon demand by Landlord.
24.2 Termination
of Possession.
A. Landlord
shall have the right, at its election, to terminate Tenant’s right of possession
only, without terminating this Lease, on a date specified in a notice from
Landlord to Tenant, and on such date, all rights of Tenant with respect to
possession of the Premises shall expire. Upon such date, Landlord may, at its
option, repossess the Premises pursuant to the provisions of Section
24.3,
without
terminating this Lease or releasing Tenant, in whole or in part, from any of
Tenant’s obligations hereunder, including the payment of Rent hereunder for the
full Term.
B. Landlord
will make a reasonable attempt to relet all or any part of the Premises for
such
rent and upon terms satisfactory to Landlord. If Landlord does not relet the
Premises, Tenant will periodically pay Landlord when due all Rent and other
amounts due from Tenant to Landlord under this Lease for the remainder of the
Lease Term. If the Premises are relet and a sufficient sum is not realized
from
such reletting (after paying all of the reletting costs and the collection
of
the rental accruing therefrom) to satisfy the Rent for the remainder of the
Lease Term, Tenant will be liable for the difference in Rent and shall pay
same
upon demand to Landlord. Tenant agrees that Landlord may commence successive
actions to recover any sums falling due under the terms of this Section
24.2.B.,
or may,
upon such reletting, terminate this Lease pursuant to Section
24.1
and
proceed against Tenant in one action for liquidated damages thereunder. Landlord
shall not be liable or responsible for failure to relet the Premises, or if
the
Premises are relet, for failure to collect the rent thereof under such
reletting.
24.3 Repossession
of Premises.
Upon
termination of this Lease or upon termination of Tenant’s possession, Landlord
may peacefully reenter the Premises in accordance with applicable Laws and
remove all persons, fixtures, chattels, signs, and other evidence of tenancy
therefrom and Landlord will not be liable for any damages resulting therefrom
unless caused by Landlord’s negligence or willful misconduct. Upon such
repossession, Landlord may again have and enjoy the same as if this Lease had
not been made, and in any such event, neither Tenant nor any person claiming
through or under Tenant shall be entitled to possession of the Premises, but
shall immediately quit and surrender the Premises. Tenant shall pay to Landlord,
upon demand, any and all expenses incurred in such removal and all storage
charges for such property so long as the same shall be in Landlord’s possession
or under Landlord’s control. Landlord may thereafter, for the purpose of
reletting the Premises at its option under Section
24.1,
or as
such attempt is required under Section
24.2,
make
any repairs, changes, alterations or additions in or to the Premises and incur
reasonable reletting costs as may be necessary, in Landlord’s sole reasonable
discretion.
14
24.4 Miscellaneous
Remedy Provisions:
A. Nothing
herein shall limit or prejudice the right of Landlord to prove and obtain the
maximum damages allowed by any statute or rule of law in any proceedings for
bankruptcy or insolvency, whether or not the amount be greater than the amount
of damages otherwise allowed under this Paragraph
24.
B. Landlord
may collect and receive any Rent due from Tenant, and the payment thereof shall
not: (1) constitute a waiver of or affect any notice or demand given, suit
instituted or judgment obtained by Landlord; (2) serve to reinstate, continue
or
extend the Lease Term; or (3) be held to waive, affect, change, modify or alter
the rights or remedies which Landlord has against Tenant in equity or at law
or
by virtue of this Lease, unless any such rights are specifically waived by
Landlord in writing.
C. If
Tenant
at any time fails to make any payment or perform any of its obligations
hereunder, Landlord may, but shall not be obligated to make such payment or
performance and in connection therewith to pay reasonable expenses and employ
counsel. All sums so paid by Landlord shall be deemed Additional Rent and shall
be payable upon demand, and Landlord shall have the same rights and remedies
for
the nonpayment thereof as in the case of default in the payment of Rent. Unless
caused by Landlord’s negligence or willful misconduct, Landlord shall not in any
event be liable for any damages caused by reason of Landlord’s performance
hereunder.
|
25.
|
LANDLORD’S
LIEN
|
In
addition to any statutory lien Landlord has, Tenant hereby grants to Landlord
a
continuing security interest in all personal property of Tenant situated on
or
about the Premises which is underground or cannot be removed without material
damage to the Premises. Such property will not be removed from the Premises
without Landlord’s consent until all sums of money and other obligations then
due Landlord hereunder are first paid and discharged. Upon a default under
this
Lease, Landlord shall have, in addition to all other remedies provided herein
or
by law, all rights and remedies under the Uniform Commercial Code.
|
26.
|
SURRENDER
|
Upon
the
Termination Date, Tenant shall at once peaceably surrender the Premises to
Landlord in the same condition in which the same were received from Landlord
at
the Commencement Date and as altered with the written consent of Landlord,
ordinary wear and tear excepted. All property situated on the Premises which
is
not owned by Landlord shall be disposed of and be deemed owned by the applicable
parties in accordance with the provisions of Section
19.3.
15
|
27.
|
HOLDING
OVER
|
Any
holding over by Tenant of the Premises after the Termination Date will operate
and be construed to be a tenancy from month to month only at a monthly rental
of
one hundred twenty-five percent (125%) of the last monthly Base Rent plus all
other Additional Rent payable hereunder, and upon the terms hereof applicable
to
month-to-month tenancy. Nothing contained herein is to be construed to give
Tenant the right to hold over at any time and Landlord may exercise any and
all
remedies at law or in equity to recover possession of the Premises and damages
resulting from any such holding over.
|
28.
|
QUIET
ENJOYMENT
|
Tenant,
provided it is not in default hereunder, shall peaceably and quietly hold,
occupy, and enjoy the Premises for the Lease Term without hindrance, ejection,
or interruption by Landlord, or persons lawfully or equitably claiming under
Landlord (except as provided under Section
12.
|
29.
|
NOTICES
|
All
notices required or permitted hereunder or required by law shall be in writing
and either served personally upon the party or an officer of the party to whom
the notice is addressed or sent via United States Mail, postage prepaid,
certified mail, return receipt requested, national overnight delivery service
or
hand delivered, addressed to the parties hereto at their respective addresses
set forth below or as they have heretofore specified by written notice delivered
in accordance herewith and shall be deemed given when received or upon refusal
to accept, or upon return because of impossibility to deliver.
The
mailing address of Landlord and Tenant are:
|
Landlord
|
Tenant
|
|
Commerce
Park Realty, LLC
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Power
Designs, Inc.
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
With
a copy to:
|
With
a copy to:
|
|
Pepe
& Hazard LLP
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
|
▇▇▇▇▇
▇. ▇▇▇▇, Esq.
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
16
Any
notice by either party hereto to the other which relates to a default which,
if
not cured within the applicable grace period, would give rise to termination
rights by either party shall be simultaneously given to any mortgagee of the
Project.
|
30.
|
RECORDING
|
Tenant
shall not record this Lease and any such recordation shall be a default
hereunder. Concurrently with the execution of this Lease, Landlord and Tenant
shall, at the request of either party, execute a short form “memorandum” of this
Lease prepared by Landlord in form suitable for recording which Tenant may,
at
its cost, record; provided that Tenant shall, if it records such memorandum,
furnish a copy bearing the recorder’s stamp to Landlord. Upon the termination of
this Lease, Tenant shall, at the request of Landlord, execute and deliver to
Landlord a lease cancellation instrument in form suitable for
recording.
|
31.
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MISCELLANEOUS
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31.1 Definitions.
Words
of any gender used in this Lease will be construed to include any other gender
and words in the singular number shall include the plural unless the context
requires otherwise. The term “person” when used in this Lease shall mean any
individual, corporation, partnership, limited partnership, firm, trust, joint
venture, business association, syndicate, combination, organization or any
other
person or entity. The term “business day” when used in this Lease shall mean any
day other than Saturday, Sunday or any legal holiday under the laws of the
United States or the State of Connecticut.
31.2 Binding
Effect.
The
terms, provisions, covenants and conditions contained in this Lease will apply
and, inure to the benefit of, and be binding upon, the parties hereto and upon
their respective heirs, legal representatives, successors and permitted assigns,
except as otherwise herein expressly provided.
31.3 Interest
Rate.
Except
as expressly herein provided, any amount due to Landlord or Tenant not paid
when
due shall bear interest from the date due at the rate of twelve percent (12%)
or
the highest rate permitted by law, whichever is less.
31.4 Captions.
The
headings to the Sections of this Lease are for convenience only and do not
define, limit or otherwise describe the scope or intent of this Lease or any
provision hereof nor affect the interpretation of this Lease.
31.5 Entire
Agreement.
This
Lease and the Exhibits hereto contain all agreements of the parties with respect
to any matter mentioned herein or therein. No prior agreement or understanding
pertaining to any such matter shall be effective. This Lease may be modified
in
writing only, signed by the parties in interest at the time of the
modification.
31.6 Time
of the Essence.
Time is
of the essence with respect to the due performance of the terms, covenants
and
conditions herein contained.
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31.7 Separability.
If any
term or provision of this Lease is to any extent held invalid or unenforceable,
the remaining terms and provisions of this Lease will not be affected thereby,
but each term and provision of this Lease will be valid and be enforceable
to
the fullest extent permitted by law.
31.8 Non-Exclusive
Remedies.
No
remedy or election hereunder shall be deemed exclusive, but shall wherever
possible, be cumulative with all other remedies at law or in
equity.
31.9 No
Waiver.
No
waiver by Landlord or Tenant of any provision hereof shall be deemed a waiver
of
any other provision hereof or of any subsequent breach of the same or any other
provision. Landlord’s or Tenant’s consent to or approval of any act shall not be
deemed to render unnecessary the obtaining of consent to or approval of any
subsequent act.
31.10 No
Merger.
The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, and shall, at the option of Landlord,
terminate all or any existing subtenancies or may, at the option of Landlord,
operate as an assignment to Landlord of any or all of such subtenancies. There
shall be no merger of this Lease or of the leasehold estate hereby created
with
the fee estate in the Premises or any part hereof by reason of the fact that
the
same person may acquire or hold all or part of both such estates.
31.11 Governing
Law.
This
Lease shall be construed and enforceable in accordance with the laws of the
State of Connecticut.
31.12 Assignment
by Landlord.
Nothing
in this Lease is to be deemed to limit or affect the right of Landlord to sell,
assign, encumber, transfer, lease or otherwise dispose of any or all of
Landlord’s interest in any portion or all of the Premises. From and after the
date of any such transfer, Landlord shall be relieved of all liability for
Landlord’s obligations thereafter to be performed hereunder.
31.13 Exhibits.
All
Exhibits referred to in and attached to this Lease are hereby made a part of
this Lease.
31.14 Partial
Payment.
No
receipt or acceptance by Landlord from Tenant of less than the monthly Rent
herein stipulated shall be deemed to be other than a partial payment on account
for any due and unpaid Rent; no endorsement or statement on any check or any
letter or other writing accompanying any check or payment of Rent to Landlord
shall be deemed an accord and satisfaction, and Landlord may accept and
negotiate such check or payment without prejudice to Landlord’s rights to
recover the remaining balance of such unpaid Rent or pursue any other remedy
provided in this Lease.
31.15 Requested
Amendments.
Tenant
agrees to execute any amendments to this Lease required by a lender to enable
Landlord to obtain financing for the Premises or to enable Landlord to
effectuate a sale of the Premises or any portion thereof so long as Tenant’s
rights hereunder are not materially adversely affected thereby.
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31.16 Injunctive
Relief.
In
addition to the other remedies provided in this Lease, Landlord shall be
entitled to injunctive relief in case of the violation, or attempted or
threatened violation, of any of the covenants, agreements, conditions or
provisions of this Lease or to a decree compelling performance of any of the
covenants, agreements, conditions or provisions of this Lease.
31.17 Waiver
of Rights.
TO
THE EXTENT PERMITTED BY LAW, TENANT HEREBY WAIVES FOR ITSELF AND ALL THOSE
CLAIMING UNDER IT, ANY RIGHTS WHICH IT MAY HAVE UNDER ANY PRESENT OR FUTURE
CONSTITUTION, STATUTE OR RULE OF LAW: (I) TO REDEEM THE PREMISES AFTER
TERMINATION OF TENANT’S RIGHT OF OCCUPANCY BY ORDER OR JUDGMENT OF ANY COURT OR
BY ANY LEGAL PROCESS OR WRIT; (II) WHICH ENTITLES TENANT TO NOTICE OR HEARING
PRIOR TO LANDLORD OBTAINING ANY PREJUDGMENT REMEDY; IN CONNECTION HEREWITH,
TENANT WAIVES AND RELINQUISHES ALL RIGHTS TO NOTICE AND HEARING UNDER
CONNECTICUT GENERAL STATUTES SECTION 52-278A ET SEQ.; AND (III) TO A TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER OR ANY MATTERS BETWEEN THE PARTIES WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE.
31.18 Expenses
and Attorneys Fees.
A. If
Landlord or Tenant shall be in default in the performance of any of its
obligations hereunder, the non-performing party shall pay to the other party
all
the reasonable costs and expenses incurred in connection therewith, including
without limitation, reasonable attorney’s fees, whether or not resort is had to
judicial proceedings.
B. If
Landlord or Tenant shall, without fault on its part, be made a party to any
litigation commenced against the other and if the party against whom the
litigation has been commenced shall fail to provide the other party with counsel
approved by such other party (such approval not to be unreasonably withheld),
the party against whom the litigation has been commenced shall pay all
reasonable costs and reasonable attorney’s fees incurred or paid by the other in
connection with such litigation.
31.19 Effective
Date of Lease.
Submission of this instrument for examination does not constitute a reservation
of or option for the Premises. This Lease becomes effective only upon execution
and delivery by both Landlord and Tenant.
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32.
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INDEMNIFICATION
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32.1 Subject
to the waiver of subrogation provisions of Section
17,
Tenant
agrees to indemnify and save harmless Landlord from and against any and all
liabilities, damages, costs, expenses (including any and all reasonable
attorney’s fees and expenses of Landlord), causes of action, suits, claims,
demands or judgments of any nature whatsoever arising from (i) any work or
thing
done in, on or about the Premises or any part thereof by or at the request
or
direction of Tenant, any subtenant or their respective Guests, (ii) injury
to,
or the death of, persons or damage to property at the Premises or upon adjoining
sidewalks, streets, alleys, curbs, vaults, spaces or ways, or in any manner
growing out of or connected with the use, nonuse, condition, possession,
operation, maintenance, management or occupation of the Premises or resulting
from the condition thereof or of adjoining sidewalks, streets, alleys, curbs,
vaults, spaces or ways, which is not caused by the negligence or willful
misconduct of Landlord, (iii) any negligence on the part of Tenant, any
subtenant or their respective Guests and (iv) violation by Tenant, any subtenant
or their respective Guests of any agreement or condition of this Lease and
of
conditions, agreements, restrictions, or Laws affecting the Premises or the
ownership, occupancy or use thereof.
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32.2 Subject
to the waiver of subrogation provisions of Section
17,
Landlord agrees to indemnify and save harmless Tenant from and against any
and
all liabilities, damages, costs, expenses (including any and all reasonable
attorney’s fees and expenses of Tenant), causes of action, suits, claims,
demands or judgments of any nature whatsoever arising from (i) any work or
thing
done by Landlord, its agents, contractors and other Guests as part of Landlord’s
Obligations pursuant to the terms of this Lease; (ii) injury to, or the death
of, persons or damage to property at the Premises or upon adjoining sidewalks,
streets, alleys, curbs, vaults, spaces or ways, caused by the negligence or
willful misconduct of Landlord, its agents, contractors and other Guests, and
(iii) any negligence on the part of Landlord or its agents, contractors or
other
Guests.
[SIGNATURES
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IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and
year first above written.
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LANDLORD:
COMMERCE
PARK REALTY, LLC
By:
Commerce
Park Management Company
Its
Manager
By:
______________________
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Its
President
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TENANT:
POWER
DESIGNS, INC.
By
______________________
Name:
Its:
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EXHIBIT
A
PREMISES
EXHIBIT
B
WORK
LETTER
The
following build out will be in accordance with the attached drawing referenced
as Exhibit B1:
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Construct
fire rated demising wall
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Subdivision
and separate metering of electrical and HVAC
service
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Repair
or replace all rooftop HVAC units
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Install
new roof and repair all rooftop
leaks
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Construction
of five (5) new offices similar in nature to the existing offices,
inclusive of framing, drywall, painting, ceiling tiles and electrical
wiring
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Repaint
walls and re-carpet one of the existing offices per Exhibit B1
attached
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Create
egress from production area to the rear of engineering lab and install
double door
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Install
door from existing engineering lab to rear portion of engineering
lab
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Install
interior loading dock door and repair exterior loading dock
door
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Existing
air compressor to remain in place in the generator room as shown
on
Exhibit B1, but Landlord will provide Tenant access to such compressor
on
a daily basis for purposes of turning the unit on and off and servicing
same as needed
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Installation
of utility sinks in existing men’s
lavatory
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Secure
and encapsulate existing phone system utility
room
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Vacated
space to be left in as is condition, subject to ordinary wear and
tear,
but Tenant shall be responsible for damage not constituting ordinary
wear
and tear
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