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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM 10-K/A
(Mark One)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended October 31, 1993
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the Transition period from ___________ to ___________
Commission File No. 0-1424
ADC Telecommunications, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Minnesota 41-0743912
- ----------------------------------------- ---------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4900 West 78th Street
Minneapolis, Minnesota 55435
- ----------------------------------------- ---------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 938-8080
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock,
$.20 par value
Common Stock
Purchase Rights
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
/X/ Yes / / No
The aggregate market value of voting stock held by nonaffiliates of
the registrant, as of December 15, 1993, was approximately $910,884,000 (based
on the last sale price of such stock as reported by the NASDAQ National Market
System).
The number of shares outstanding of the registrant's common stock,
$.20 par value, as of December 15, 1993, was 27,725,682.
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K (Section 229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K. / /
DOCUMENTS INCORPORATED BY REFERENCE
Pursuant to General Instruction G(3), the responses to Items 10, 11,
12 and 13 of Part III of this report are incorporated herein by reference to the
information contained in the Company's definitive proxy statement for its 1994
Annual Meeting of Shareholders to be filed with the Securities and Exchange
Commission on or before February 28, 1994.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ADC TELECOMMUNICATIONS, INC.
Dated: January 11, 1994 By: /s/ Robert E. Switz
------------------------
Robert E. Switz
Vice President, Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
William J. Cadogan* President, Chief Executive Officer,
Chief Operating Officer and Director
(principal executive officer)
By: /s/ Robert E. Switz Vice President,
-------------------- Chief Financial Officer
Robert E. Switz (principal financial officer)
By: /s/ Joan K. Berg Vice President, By: /s/ Joan K. Berg
------------------- Controller ----------------
Joan K. Berg (principal accounting officer) Joan K. Berg
Attorney-in-Fact*
Dated: January 11, 1994
Charles M. Denny, Jr.* Director
Thomas E. Holloran* Director
B. Kristine Johnson* Director
Charles W. Oswald* Director
Jean-Pierre Rosso* Director
Donald M. Sullivan* Director
Warde F. Wheaton* Director
John D. Wunsch* Director
* By Power of Attorney filed with this report as Exhibit 24-a hereto.
48
Exhibit 10-bb
LEASE
between
999 RESEARCH PARKWAY INC., as Landlord
and
AMERICAN LIGHTWAVE SYSTEMS, INC. as Tenant
Dated as of September 30, 1993
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TABLE OF CONTENTS
No. Description Page
- --- ----------- ----
1. Definitions 1
2. Premises 3
3. Design and Construction 3
4. Tenant's Contingency 6
5. Determination of Rentable Area 6
6. Parking 6
7. Rent 6
8. Possession 7
9. Use 7
10. Care of Building and Parking Area 7
11. Rules and Regulations 7
12. Environmental Laws; Compliance With Laws 7
13. Alterations 9
14. Utilities and Services 10
15. Entry by Landlord 11
16. Subordination; Landlord Defaults Under Other Documents 11
17. Estoppel Certificates 11
18. Assumption of Risks 12
19. Indemnification 12
20. Insurance 12
21. Waiver of Insurable Claims 13
22. Assignment and Subletting 13
23. Damage or Destruction 13
24. Eminent Domain 14
25. Defaults 14
26. Waiver of Lease Provisions 15
27. Return of Possession to Landlord 16
28. Holding Over 16
29. Expansion Option 16
30. Environmental Inspections 16
31. Building Name and Identification 17
32. Notices 17
33. Memorandum of Lease; Recordable Termination 17
34. Effect of Tenant Defaults 17
35. Broker's Commission 17
36. Governing Law 17
37. Entire Agreement 18
38. Successors and Assigns 18
39. Building Roof Rights 18
40. Meaning of "Other Tenants"; Effective Date 18
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TABLE OF EXHIBITS
A. Arbitration Procedures 19
B. Initial Office Premises; First Expansion Space
C. Land
D. Parking Area
E. Severable Property
F. Landlord's Work Letter
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LEASE
This Lease (referred to below as the "Lease") is entered into as of
______________, 1993, between 999 RESEARCH PARKWAY INC., a Connecticut
corporation ("Landlord"), and AMERICAN LIGHTWAVE SYSTEMS, INC., a Delaware
corporation ("Tenant").
1. DEFINITIONS. In this Lease:
"Arbitration" means an arbitration conducted in accordance with the arbitration
procedures set forth on Exhibit A attached to this Lease.
"Base Building Work" means the Building and all related improvements (including
the Building's grounds, parking lots, access roads, utility, storm sewer and
sanitary sewer lines, lighting, elevators and heating, ventilating and air
conditioning systems), exclusive only of the Tenant Improvements in the
Building, to be constructed pursuant to the Final Base Building Plans and
attached Exhibit F.
"Building" means the building to be constructed pursuant to this Lease in
Meriden, Connecticut, on the Land.
"Casualty" means a fire, explosion, tornado, or other cause of damage to or
destruction of the Building.
"Commencement Date" means the later of (1) March 15, 1994, or (2) the Monday
following the date that the Base Building Work is Substantially Complete.
"Excusable Delays" means any unforeseeable delays due to strikes or other labor
disturbance, civil disturbance, future order of any government, court or
regulatory body claiming jurisdiction, unavailability of materials or labor
through commercially reasonable sources, fire or any other cause beyond the
reasonable control of the party by whom performance is required and its
contractors and other representatives, other than a delay caused by a lack of
funds. An Excusable Delay will be deemed to exist only if the party required to
perform notifies the other party of the delay not later than 10 days after the
occurrence of the event that gives rise to the delay and will be deemed to
continue only so long as such party exercises due diligence to remove or
overcome it, except that a party will not be required to settle a strike or
other labor dispute when it does not wish to do so.
"Event of Default" is defined in Section 25 of this Lease.
"First Expansion Space" means the space in the Building identified on attached
Exhibit B.
"Final Base Building Plans" means the final plans and specifications for the
Base Building Work approved pursuant to Section 3 of this Lease, which will
consist of architectural, mechanical and electrical construction drawings and
related specifications.
"Final TI Plans" means the final plans and specifications for the Tenant
Improvements for the First Expansion Space approved pursuant to Section 3 of
this Lease, which will consist of architectural, mechanical and electrical
construction drawings and related specifications.
"Initial Office Premises" means the space in the Building identified as such on
attached Exhibit B.
"Initial Term" means the period commencing on the Commencement Date and ending
on the date 10 years after the Commencement Date; provided, however, that, if
the date 10 years after the
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Commencement Date is not the last day of a calendar month, then such ending date
will be the last day of the calendar month in which the date 10 years after the
Commencement Date occurs.
"Land" means the property in Meriden, Connecticut legally described on attached
Exhibit C.
"Lease" means this Lease, all Exhibits attached to this Lease, and all properly
executed amendments, modifications and supplements to this Lease.
"Market Rent" means the monthly base rent (expressed as an amount per square
foot of Rentable Area in the Office Premises) that the Landlord would receive as
of the commencement date of the term in question if it were to lease the space
in question pursuant to the terms of this Lease (except to the extent that this
Lease is inconsistent with the assumptions and requirements set forth below) to
a tenant with a credit standing comparable to that of Tenant; for a term equal
to the period in question; with a commencement date of the date in question; and
in "as is" condition (except, that with respect to the First Expansion Space, it
shall be assumed that the space in question has a tenant finish equivalent to
the Initial Tenant Improvements). In determining the "Market Rent", current
conditions in the marketplace for comparable transactions shall be considered,
including without limitation, tenant inducements, if and to the extent then a
part of market conditions, such as, but not limited to, buildout allowances or
work, free rent, financial inducements and credits for moving expenses. The
Market Rent shall be reduced to account for the value of such inducements, and
following such reduction, Landlord shall have no obligation make such payments
in cash. In determining Market Rent, appropriate consideration shall be given
to arms length lease transactions within comparable building located in the
Meriden, Connecticut area. For purposes of the determination of Market Rent it
shall be assumed that Landlord and Tenant are each ready, willing and able to
enter into such a lease but are under no compulsion to do so.
"Monthly Base Rent" means during the Initial Term, the product of $0.8333
multiplied by the Rentable Area of the Initial Office Premises, plus Monthly
Base Rent for the First Expansion Space if added to the Premises pursuant to
Section 29 of this Lease, as determined pursuant to such Section.
"Office Premises" means the Initial Office Premises and the First Expansion
Space, if added to the Premises pursuant to this Lease.
"Preliminary Base Building Plans" means the preliminary plans and specifications
for the Base Building Work approved pursuant to Section 3 of this Lease.
"Parking Area" means the portion of the Land to be used for parking purposes, as
shown on attached Exhibit D.
"Preliminary TI Plans" means the preliminary plans and specifications for the
Tenant Improvements for the First Expansion Space approved pursuant to Section 3
of this Lease.
"Premises" means the following:
(1) The Initial Office Premises;
(2) The First Expansion Space, if added to the Premises pursuant to this
Lease; and
(3) The portions of the Parking Area as to which Tenant has exclusive and
nonexclusive parking rights pursuant to this Lease and reasonable
nonexclusive vehicular and pedestrian access to such portions of the
Parking Area and the remainder of the Premises.
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"Punchlist Items" means details of construction, decoration and mechanical
adjustments to the work in question which are minor in character and do not
materially interfere with use of the improvements in question.
"Reference Rate" means the annual "Prime Rate" of Chase Manhattan Bank, or the
successor of such a rate, or if Chase Manhattan Bank no longer determines such a
rate or successor rate, then the reference or prime rate, successor rate or
similar rate determined by a similar banking or financial institution reasonably
selected by Landlord.
"Rent" means Monthly Base Rent and all other charges and costs expressly payable
by Tenant under this Lease.
"Rentable Area" means the number of square feet contained within the area
bounded by the exterior surface of the exterior walls and the center of the
interior demising walls, if any, of the space being measured. The Rentable
Areas of the Initial Office Premises, First Expansion Space and the Building are
stipulated to be as set forth on attached Exhibit B.
"Substantial Completion" means that the work in question is complete, subject
only to Punch List Items. Improvements that are to be occupied or used by
Tenant will not be considered substantially complete until a certificate of
occupancy (permanent or temporary) has been issued by the City of Meriden with
respect to such improvements.
"Substantial Completion Date" means March 15,1994.
"Section" means a section of this Lease.
"Severable Property" means the property described on attached Exhibit E.
"Taking" means acquisition by a public authority having the power of eminent
domain of all or part of the Building by condemnation or conveyance in lieu of
condemnation.
"Tenant Improvements" means leasehold improvements (but not including Tenant's
trade fixtures, furniture, equipment and personal property) to the Office
Premises.
"Term" means the period beginning on the Commencement Date and ending on the
later of the last day of the Initial Term.
"Untenantable" means that the space in question is unsafe for Tenant's intended
use of such space or is in such a condition that Tenant is unable to conduct
business in such space in a normal fashion without unreasonable inconvenience.
2. PREMISES Landlord leases the Premises to Tenant, and Tenant leases the
Premises from Landlord, for the Term, under the terms and conditions of this
Lease.
3. DESIGN AND CONSTRUCTION. The design and construction of the Base Building
Work and the Premises will be subject to the following requirements:
(a) PRELIMINARY BASE BUILDING PLANS. Landlord will submit the Preliminary
Base Building Plans to Tenant not later than September 15, 1993. Tenant
will approve or disapprove such Preliminary Base Building Plans by giving
written notice of such approval or disapproval to Landlord. The basis for
such disapproval will be within the sole discretion of Tenant. If Tenant
fails to object to the Preliminary Base Building Plans within 15 days after
receiving them from Landlord, such Preliminary Base Building Plans will be
deemed approved. If Tenant objects to such Preliminary Base Building
Plans, Tenant's notice will state in what
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particulars objections are made. If such objections are made within such
15 day period, Landlord will, within 15 days after receiving Tenant's
written objections, either (a) make such revisions as are appropriate to
meet Tenant's objections and submit such revisions to Tenant for Tenant's
approval (which will be deemed given if not given or withheld within 10
days after Tenant's receipt of such submittal) or (b) terminate this Lease
by written notice to Tenant, in which case neither party will have any
further obligations to the other party under this Lease.
(b) FINAL BASE BUILDING PLANS. Landlord will submit the Final Base
Building Plans to Tenant not later than 15 days after Tenant has finally
approved the Preliminary Base Building Plans, which Final Base Building
Plans will be substantially consistent with such Preliminary Base Building
Plans. Tenant will approve or disapprove such Final Base Building Plans by
giving written notice of such approval or disapproval to Landlord, which
approval will not be unreasonably withheld. If Tenant fails to object to
the Final Base Building Plans within 15 days after receiving them from
Landlord, such Final Base Building Plans will be deemed approved. If
Tenant objects to such Final Base Building Plans, Tenant's notice will
state in what particulars objections are made. If such objections are made
within such 15 day period, Landlord will, within 15 days after receiving
Tenant's written objections, make such revisions as are appropriate to meet
Tenant's objections and will submit such revisions to Tenant in the same
manner described above. Landlord will pay for the preparation of all
architectural, mechanical and electrical drawings and specifications
regarding the Base Building Work.
(c) PRELIMINARY TI PLANS. Tenant will submit the Preliminary TI Plans to
Landlord within 21 days after Tenant exercises its option for the First
Expansion Space. Landlord will approve or disapprove such Preliminary TI
Plans by giving written notice of such approval or disapproval to Tenant.
The basis for such disapproval will be within the sole discretion of
Landlord. If Landlord fails to object to the Preliminary TI Plans within
15 days after receiving them from Landlord, such Preliminary TI Plans will
be deemed approved. If Landlord objects to such Preliminary TI Plans,
Landlord's notice will state in what particulars objections are made. If
such objections are made within such 15 day period, Tenant will, within 15
days after receiving Landlord's written objections, either (a) make such
revisions as are appropriate to meet Tenant's objections and submit such
revisions to Landlord for Landlord's approval (which will be deemed given
if not given or withheld within 10 days after Landlord's receipt of such
submittal); or (b) terminate this Lease, in which case neither party will
have any further obligations to the other party under this Lease.
(d) FINAL TI PLANS. Landlord will submit the Final TI Plans to Tenant not
later than 15 days after Landlord has approved the Preliminary TI Plans,
which Final TI Plans will be substantially consistent with the Preliminary
TI Plans. Tenant will approve or disapprove such Final TI Plans by giving
written notice of such approval or disapproval to Landlord, which approval
will not be unreasonably withheld. If Tenant fails to object to the Final
TI Plans within 15 days after receiving them from Landlord, such Final TI
Plans will be deemed approved. If Tenant objects to such Final TI Plans,
Tenant's notice will state in what particulars objections are made. If
such objections are made within such 15 day period, Landlord will, within
15 days after receiving Tenant's written objections, make such revisions as
are appropriate to meet Tenant's objections and will submit such revisions
to Tenant in the same manner described above. Landlord will pay for the
preparation of all architectural, mechanical and electrical drawings and
specifications regarding the Initial Tenant Improvements.
(e) CONSTRUCTION SCHEDULE. Landlord will proceed with the construction of
the Base Building Work with due diligence and continuity in an effort to
reach Substantial
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Completion thereof on or before the Substantial Completion Date, in
accordance with all applicable codes, rules, laws and regulations
substantially in accordance with the Final Base Building Plans and of a
quality that is consistent with the construction of such work in other
first-class high quality investment grade office/production buildings in
the Meriden, Connecticut area. If, subject to Excusable Delay, Landlord
does not Substantially Complete the Base Building Work on or before April
30, 1994, Tenant's Monthly Base Rent will be abated by 1/30 for each day of
delay in such completion after such date. If, notwith-standing the
existence of Excusable Delay, Landlord does not substantially complete the
Base Building Work on or before June 1, 1994, Tenant will have the right to
terminate this Lease by giving written notice to Landlord on or before the
earlier of 30 days after such date or the date of such completion.
(f) CONTRACTORS. Landlord will provide Tenant with a written list of the
major trade contractors that will install the elevators, the heating,
ventilating and air conditioning systems and the Tenant Improvements.
Tenant will have the right to approve or disapprove of such contractors by
giving written notice of such approval or disapproval to Landlord, which
approval will not be unreasonably withheld. If Tenant fails to object to
such list within 10 days after receiving such list from Landlord, such list
will be deemed to have been approved. If Tenant objects to any contractor
on such list, Tenant's notice will state on what basis such objection is
made and Landlord will, within 10 days after such objection, submit the
name of a replacement contractor to Tenant for approval in the same manner
described above.
(g) UPDATES. Landlord will, prior to commencement of construction, submit
a reasonably detailed, written construction schedule to Tenant and will, at
least every two weeks, notify Tenant in writing of the progress of
construction in reasonable detail. Landlord also agrees to promptly
provide to Tenant such other information as Tenant may from time to time
reasonably request regarding the progress of the project. Landlord will
notify Tenant of Landlord's estimate of the Substantial Completion Date at
least 30 days prior to such estimated Substantial Completion Date.
Landlord acknowledges that Tenant will rely upon such estimated Substantial
Completion Date in order to make arrangements for Tenant's move-in to the
Premises. If the actual Substantial Completion Date does not in fact occur
on such estimated Substantial Completion Date, Landlord agrees to reimburse
(up to $25,000.00) Tenant on the actual Commence-ment Date for any
additional moving costs (including mover cancellation charges) incurred by
Tenant as a result of the delay.
(h) LEASE SUPPLEMENT. Within 60 days after the Commencement Date,
Landlord and Tenant will execute an agreement supplementing this Lease,
setting forth the Commencement Date.
(i) PUNCH LIST ITEMS. Landlord will commence completion or correction of
Punch List Items promptly and will diligently pursue and complete them
within 30 days after Substantial Completion, or if completion of Punch List
Items cannot by their nature be completed within 30 days, Landlord will
advise Tenant of the reasons for the delay and will commence and diligently
pursue completion.
(j) CERTIFICATE OF OCCUPANCY. If Landlord has obtained a temporary
Certificate of Occupancy for the Base Building Work, Landlord will, with
due diligence, complete the remaining work required to obtain, and will
obtain, a permanent Certificate of Occupancy for the Base Building Work;
provided, however, that if the City of Meriden will not issue a permanent
Certificate of Occupancy until tenant improvements in the First Expansion
Space are completed, then Landlord will not be obligated to obtain such
permanent Certificate of Occupancy until the tenant improvements in the
First Expansion Space are completed.
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(k) ARBITRATION. Any dispute between Landlord and Tenant under this
Section 3 may be submitted by either party to Arbitration pursuant to
attached Exhibit A at any time.
4. TENANT'S CONTINGENCY. Tenant may terminate this Lease by written notice to
Landlord if (a) Landlord has not, on or before September 1,1993, provided a copy
to Tenant of a fully executed commitment for financing binding a reputable
lender or lenders to lend not less than the cost of constructing the Building or
(b) Tenant determines that such commitment has been terminated.
5. DETERMINATION OF RENTABLE AREA. The Rentable Area of all areas as to which
a Rentable Area determination is required and is not otherwise stipulated to
under the terms of this Lease will be determined in accordance with this Lease
by a licensed architect or engineer selected by Landlord, who will deliver to
Landlord and Tenant an appropriate certificate prior to the date such
determination becomes necessary under this Lease. Each such certificate will be
conclusive unless objected to by Landlord or Tenant by written notice to the
other party given within 10 days after receipt of the certificate. If, within
30 days after delivery of such objection, Landlord and Tenant cannot agree,
either party may submit the matter to Arbitration; provided, however, that
notwithstanding the existence of any such objection notice or Arbitration, until
such objection or Arbitration is resolved, Rent will be determined on the basis
of such certificate, and, upon such resolution, Landlord and Tenant will make
appropriate cash adjustments between them.
6. PARKING. The following provisions will apply to parking on the Land:
(a) Tenant (and its employees, invitees and subtenants) will have the
exclusive right, at no additional cost, to use the parking spaces situated
on the portion of the Parking Area marked in crosshatch on attached Exhibit
D and may install signs designating such parking spaces as "reserved"
generally or "reserved" for specific persons.
(b) Tenant will have the nonexclusive right, together with Landlord's
employees and tenants to use, at no additional cost, the parking spaces
situated on the portion of the Parking Area marked in hatch on attached
Exhibit D.
7. Rent.
(a) MONTHLY RENT.
Tenant will pay the Monthly Base Rent to Landlord at such place in the
United States as Landlord may designate by at least 10 days' prior written
notice to Tenant, in advance on the first day of each month during the
Term, without demand, deduction or setoff, except as otherwise expressly
provided in this Lease. Monthly Base Rent will begin on the Commencement
Date, except as otherwise stated in this Lease. Notwithstanding any other
provision of this Lease, Tenant may, without waiving any of its rights
under this Lease and without paying rent or any cost, take possession of
any portions of the Premises that are substantially complete prior to
Substantial Completion of all of the Base Building Work, but only to the
extent that such possession will not unreasonably interfere with
Substantial Completion of the Base Building Work and is not otherwise
prohibited by law.
(b) LATE PAYMENTS.
Any Rent which is not paid within 10 days after notice of such default is
given by Landlord to Tenant will bear interest from the date due to the
date paid at an annual rate equal to the Reference Rate, plus 2 percentage
points per annum, or the maximum rate of interest permitted by law,
whichever is less, and the interest will be paid to Landlord on demand;
provided, however, that Landlord shall have no obligation to deliver more
than one such notice during each calendar year of the Term, so that
following delivery by Landlord of one
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such notice during a calendar year, such interest will apply with respect
to Tenant's failure to pay a required payment within 10 days after any
subsequent due date during such calendar year, regardless of Tenant's
receipt of a default notice from Landlord. All amounts to be paid by
Tenant to Landlord under this Lease will be deemed to be additional rent
for purposes of payment and collection.
8. POSSESSION. If Tenant pays the Rent and performs all of Tenant's
obligations under this Lease, Landlord promises that Tenant will peaceably and
quietly possess and enjoy the Premises under this Lease.
9. USE. Tenant may use the Premises for office, research and development
and/or light manufacturing purposes and uses related thereto. Tenant will not
commit or permit any act or omission that results in the violation of any law,
governmental regulation, or insurance policy of Landlord relating to the
Building, or which will increase the insurance rates on the Building (unless
Tenant elects to pay such increase). Tenant will not permit any conduct or
condition that may unduly disturb or endanger other occupants of the Building.
10. CARE OF BUILDING AND PARKING AREA.
(a) LANDLORD'S OBLIGATIONS. Landlord will, (at Landlord's sole expense,
in a manner generally consistent with the maintenance and repair of similar
properties in the Meriden, Connecticut area) subject to the provisions of
Section 10(b) below, maintain and repair, during the first year of the
Term, (i) the Parking Area, (ii) all other improvements on the Land, (iii)
elevators, (iv) heating, ventilating and air conditioning systems, (v) the
landscaping and (vi) the Office Premises and the Building, and after the
first year of the Term, perform structural repairs to and preserve the
weather integrity of the Office Premises and the Building, except to the
extent such repairs or need for preservation are caused by the negligence
of Tenant or its agents. Landlord shall pass through to Tenant all
warranties issued by the manufacturer and/or installer of the heating,
ventilating and air conditioning systems. If Landlord fails to so perform
after receiving from Tenant reasonable notice and a reasonable period
within which to cure such default (except that, in an emergency, Tenant
need not provide such notice or period to cure), Tenant may perform
Landlord's obligations and charge the costs to Landlord (plus interest on
such charges from the date the charges are incurred by Tenant, at the rate
set forth in Section 7(b) of this Lease). Tenant shall be entitled to
setoff such costs and interest against Rent as provided in Section 25(b).
(b) TENANT'S OBLIGATIONS. After the first year of the Term, Tenant will
assume the repair and maintenance obligations of Landlord as described for
the first year of the Term, in the first sentence of Section 10(a) above.
Tenant will also pay as and when due and payable all installments of real
estate taxes and special assessments upon the Land and the Building.
Tenant shall obtain and pay for its own janitorial and garbage removal
services.
11. RULES AND REGULATIONS. Landlord and Tenant will, prior to the Commencement
Date, agree upon reasonable written rules and regulations governing the use of
the Parking Area and other common areas of the Building.
12. ENVIRONMENTAL LAWS; COMPLIANCE WITH LAWS.
(a) ENVIRONMENTAL LAWS.
(i) To the best of Landlord's knowledge, and except as may be
disclosed to Tenant in the environmental assessment obtained by Tenant
in April 1991 and July 1993
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Landlord warrants to Tenant that no toxic or hazardous substances or
wastes, pollutants or contaminants, including, without limitation,
asbestos, radon, urea formaldehyde, the group of organic compounds
known as polychlorinated biphenyls, petroleum products including
gasoline, fuel oil, crude oil and various constituents of such
products, and any hazardous substance as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. Section 9601-9657, as amended ("Hazardous
Substances"), have been or will be generated, treated, stored,
released or disposed of, or otherwise placed, deposited in or located
on the Building or the Land, nor has any activity been undertaken nor
will any such activity be undertaken on the Building or the Land that
would cause or contribute to (A) the Building or the Land to become a
treatment, storage or disposal facility within the meaning of, or
otherwise bring the Building or the Land within the ambit of, the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C
6901 et seq., or any similar state law or local ordinance, (B) a
release or threatened release of Hazardous Substances from the
Building or the Land within the meaning of, or otherwise bring the
Building or the Land within the ambit of, CERCLA, or any similar state
law or local ordinance, or (C) the discharge of pollutants or
effluents into any water source or system, the dredging or filling of
any waters or the discharge into the air of any emissions, that would
require a permit under the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq., or the Clean Air Act, 42 U.S.C. Section
7401 et seq., or any similar state law or local ordinance. Landlord
further warrants to Tenant that to the best of Landlord's knowledge,
and except as may be disclosed to Tenant in the environmental
assessment obtained by Tenant in April 1991 and July 1993 there are no
substances or conditions in or on the Building or the Land that may
support a claim or cause of action under RCRA, CERCLA or any other
federal, state or local environmental statutes, regulations,
ordinances or other environmental regulatory requirements. Landlord
further warrants to Tenant that to the best of Landlord's knowledge,
and except as may be disclosed to Tenant in the environmental
assessment obtained by Tenant in April 1991 and July 1993 no above
ground or underground tanks are located in or about the Land, or have
been located under, in or about the Land and have subsequently been
removed or filled.
(ii) Landlord and Tenant agree that they will not, under any
circumstances, cause or permit any Hazardous Substance to be used,
generated, handled, possessed, stored or disposed of on or within the
Building or in, upon or under the Land, or any part or parts thereof,
except for Hazardous Substances ordinarily used, generated, handled,
possessed, stored or disposed of in connection with their operations
or with building and common area maintenance if they are so used,
generated, handled, possessed, stored or disposed of in conformance
with all applicable laws and regulations ("Permitted Hazardous
Substances").
(iii) In the event that either Landlord or Tenant discovers or is
informed that a Hazardous Substance (other than a Permitted Hazardous
Substance) exists in the Building or upon the Land, Landlord or
Tenant, as the case may be, will immediately notify the other party to
this Lease in writing of such discovery or information. Landlord will
promptly take all acts necessary or required to prevent danger or harm
to the Tenant's employees and invitees, and to comply with all
applicable provisions of any federal, state or local law, statute,
code, ordinance, rule, regulation or requirement relating to such
Hazardous Substance; provided, however, that, if the Hazardous
Substance exists as the result of the acts of Tenant, Tenant will
promptly take all acts necessary or required to prevent danger or harm
to Tenant's employees and invitees and Landlord and Landlord's
tenants, employees and invitees, and to comply with all applicable
provisions of any federal,
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state or local law, statute, code, ordinance, rule, regulation or
requirement relating to such Hazardous Substance.
(iv) In the event that, and for so long as, there exists any danger
of harm to the employees or invitees of Tenant arising from Hazardous
Substances (other than Hazardous Substances (if any) disclosed in the
environmental assessment obtained by Tenant in April 1991 and July
1993) that have not been generated by Tenant or its subtenants, agents
or employees, as determined by public authorities, Tenant may vacate
the Premises or any affected portion of the Premises and all Rent due
under this Lease will abate from the date of such vacation, in
proportion to the space vacated, until the danger or harm is removed.
If Landlord cannot remove such danger or harm to the satisfaction of
the public authorities within 180 days of a vacation of the Premises
by Tenant pursuant to this subsection, Tenant may, within 30 days
after the expiration of such 180 day period, terminate this Lease by
written notice to Landlord given at any time prior to such removal.
(v) Landlord will indemnify, defend and hold Tenant and its agents,
employees, successors and assigns free and harmless from any claims,
damages, losses or liabilities arising from or in connection with any
breach of the warranties, representations or covenants set forth in
this Section, whether such claims, damages, losses or liabilities
arise during or after the Term of this Lease, except for claims,
damages, losses or liabilities arising from Hazardous Substances
brought into the Building or the Land by Tenant or its employees or
invitees (as to which Tenant will indemnify, defend and hold Landlord
harmless). Landlord's and Tenant's obligations under this subsection
to indemnify and hold each other harmless will survive the expiration
or earlier termination of this Lease. (The foregoing agreements are
intended to constitute indemnity agreements within the meaning of
Section 9607(e)(1) of the Comprehensive Environmental Response,
Compensation and Liability Act Of 1980 (42 USC 9607(e)(1)), but
nothing in that Act will be deemed to vitiate or limit, either
directly or indirectly, the obligations of the parties under this
Lease).
(vi) No expense of Landlord in complying with its obligations under
this Section 12(a) will be deemed an expense reimbursable to Landlord
by Tenant.
(b) COMPLIANCE WITH LAWS.
Subject to the provisions of Section 12(a) above, Tenant will, at its
expense, promptly comply with all laws, ordinances, rules, orders,
regulations, directives and other requirements of governmental authorities
("Governmental Requirements") now or subsequently pertaining to its use of
the Office Premises. Subject to the provisions of Section 12(a) above,
Landlord will, at its expense, comply with all other Governmental
Requirements pertaining to the Building and the Land.
13. ALTERATIONS. Tenant may, at its expense, make additions to and alterations
of the Office Premises, provided that: (a) such work shall be expeditiously
completed in a good and workmanlike manner and in compliance with all applicable
legal requirements and the requirements of all insurance policies maintained by
Landlord with respect to the Building; and (b) no structural alterations shall
be made or demolitions conducted in connection therewith having an estimated
cost of completion in excess of $10,000 unless Tenant shall have first notified
Landlord in writing thereof and Landlord shall have approved such alterations
and demolitions by written notice to Tenant, which approval will not be
unreasonably withheld and will be deemed given if not withheld by written notice
given to Tenant within 10 days after Landlord receives Tenant's written request
for such approval. All such additions and alterations shall, without
consideration, be and
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remain part of the realty and the property of Landlord, except to the extent
that they constitute Severable Property under this Lease (which Severable
Property will be removed by Tenant on or before the last day of the Term).
Tenant will promptly pay and discharge any mechanic's, materialmen's or other
lien against the Building or the Land resulting from Tenant's failure to make
such payment, or will contest the lien. Tenant will immediately notify Landlord
of any claim of lien or other action of which it has knowledge which relates to
any improvements in the Premises made by Tenant or at its direction. If a lien
is claimed, Tenant shall either cause it to be removed or contested within 10
days after notice from Landlord to do so. If Tenant fails to remove or contest
the lien within the 10-day period, Landlord may take such action as it deems
necessary to remove the lien, and the entire cost to Landlord in removing the
lien will immediately be due and payable by Tenant to Landlord. If Tenant
contests the lien, it will do so at its expense and will indemnify Landlord
against any claim, loss, demand and legal expense relating to any labor or
material furnished to the Premises at the request or direction of Tenant. If
Tenant elects to contest the lien, it must promptly notify Landlord and Landlord
may elect by written notice to Tenant to require Tenant to either (a) post a
bond or a letter of credit for the benefit of Landlord, the form and issuer of
which bond or letter of credit will be subject to the reasonable approval of
Landlord and the amount of which bond or letter of credit will equal not less
than 150% of the amount of the lien, or (b) provide Landlord with such other
reasonable assurances or security as may be required by Landlord, in its sole
discretion, to protect Landlord against the loss of any interest in the Land or
Building. If the lien is reduced to final judgment, Tenant will discharge the
judgment. Landlord may post notices of nonresponsibility on the Premises as
provided by law.
14. UTILITIES AND SERVICES.
(a) The following utilities and services will be provided by Landlord to
the Premises:
(i) NATURAL GAS. Landlord will cause natural gas service to be
supplied to the Office Premises and will supply, at Landlord's
expense, a separate meter or meters as to the Office Premises
(including expansions thereof). Tenant will pay to the natural gas
supplier the cost of all natural gas consumed by Tenant in the Office
Premises.
(ii) ELECTRICITY. Landlord will cause to be supplied electrical
system capacity to the Office Premises for connected load of 5 watts
per square foot for general office lighting and for miscellaneous
power and general office equipment and will install, at Landlord's
expense, a separate meter or meters as to the Office Premises
(including expansions thereof). Landlord will also cause to be
supplied, at Landlord's expense, electricity for lighting of the
Parking Area. Tenant will pay to the electricity supplier the cost of
all electricity consumed by Tenant in the Office Premises and the
Parking Area.
(iii) WATER AND SEWER. Landlord will cause hot and cold water and
sewer service to be supplied to the Office Premises for ordinary
laboratory, drinking, lavatory, toilet and kitchen/cafeteria purposes,
and for other uses typical of an office/production tenant and will
supply, at Landlord's expense, a separate meter or meters as to the
Office Premises (including expansions thereof). Tenant will pay to
the water/sewer supplier the cost of all water consumed and waste
discharged by Tenant in the Office Premises.
(iv) ACCESS. Landlord will provide Tenant with access to the
Premises, 24 hours per day, 365 days per year, except when access is
prohibited by law.
(v) INTERRUPTIONS. Landlord will not be liable for any loss or
damage resulting from any temporary interruption of the above
utilities and services due to repairs,
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alterations or improvements, or any variation, interruption or failure
of these services, except where caused by Landlord's negligence.
Landlord will use reasonable efforts to notify Tenant in advance of
any temporary interruption of service.
(b) The following services will be provided by Tenant to the Premises:
(i) HVAC AND ELECTRICAL SYSTEM MAINTENANCE. After the first
anniversary of the Commencement Date, Tenant will engage a qualified
contractor or qualified service personnel to maintain a preventative
maintenance program for the Building HVAC systems and the Building
electrical distribution system network. During the first year after
the Commencement Date, Landlord agrees to respond promptly to any
request by Tenant for HVAC repairs or adjustments.
(ii) SECURITY. Tenant will provide building security for the
Building in a manner consistent with that provided as to similar
buildings in the Meriden, Connecticut area. Such security will be
coordinated on a reasonable basis with Tenant's own security force, if
Tenant chooses to have one. Tenant may install its own security
system (which may include a card access system) in the Building for
use as to the Offices Premises.
15. ENTRY BY LANDLORD. Landlord and its agents will have the right to enter
the Premises at reasonable times, upon reasonable advance notice (except in case
of an emergency), but only with an escort provided by Tenant (if Tenant so
requires), (a) at any time during the Term, to satisfy its maintenance and
repair obligations under this Lease, or for exhibiting the Premises to insurance
carriers and (b) during the last 6 months of the Term, or at any time after a
Tenant default and the running of the applicable grace period, for exhibiting
the Office Premises to prospective tenants.
16. SUBORDINATION; LANDLORD DEFAULTS UNDER OTHER DOCUMENTS. At the request of
any mortgagee or ground lessor this Lease will be subject and subordinate to any
mortgage or ground lease which may now or hereafter encumber the Building and/or
the Land, and Tenant will execute, acknowledge and deliver to Landlord a
subordination, attornment and non-disturbance agreement reasonably acceptable to
such mortgagee or ground lessor evidencing such subordination and Tenant's
agreement to attorn to such mortgagee or ground lessor of such mortgagee or
ground lessor acquires title to the Premises; provided, however, that such
subordination, attornment and non-disturbance agreement does not impose
additional obligations or burdens upon Tenant, that this Lease remains
unmodified and that the mortgagee or ground lessor agrees in such subordination,
attornment and non-disturbance agreement that Tenant's peaceable and quiet
possession of the Premises under this Lease will not be disturbed so long as
Tenant is not in default under this Lease and that Tenant's rights of setoff
will be fully recognized by such mortgagee or ground lessor. If Landlord fails
to perform any obligation under any such mortgage or ground lease, Tenant may
perform Landlord's obligations and charge the costs to Landlord (plus interest
on such charges from the date the charges are incurred by Tenant, at the rate
set forth in Section 7(b) of this Lease).
17. ESTOPPEL CERTIFICATES. Within 10 days after written request from Landlord,
Tenant will execute, acknowledge and deliver to Landlord a document furnished by
Landlord, which may be relied upon by Landlord and any prospective purchaser,
mortgagee or ground lessor of the Building and/or the Land, stating (a) that
this Lease is unmodified and in full force and effect (or if modified, that the
Lease is in full force and effect as modified and stating the modifications),
(b) the dates to which rent and other charges have been paid, (c) the current
Monthly Base Rent, (d) the dates on which the Term begins and ends, (e) that
Tenant has accepted the Premises and is in possession, (f) that, to the
knowledge of Tenant, Landlord is not in default under this Lease, or specifying
any such default, and including such other information as the prospective
purchaser,
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mortgagee or ground lessor may reasonably require. Tenant will not be obligated
to make any inaccurate statements in such document.
18. ASSUMPTION OF RISKS. Tenant assumes all risk of loss or damage of Tenant's
property within the Premises, including any loss or damage caused by water
leakage, fire, windstorm, explosion, theft or other cause. Landlord will not be
liable to Tenant, or those claiming through Tenant, for injury, death or
property damage arising from the activities of Tenant. Landlord assumes all
risk of loss or damage of Landlord's property within or on the portions of the
Building or the Land not constituting the Office Premises, including any loss or
damage caused by water leakage, fire, windstorm, explosion, theft or other
cause. Tenant will not be liable to Landlord, or those claiming through
Landlord, for injury, death or property damage arising from the activities of
Landlord or Landlord's tenants or others under the control of Landlord.
19. INDEMNIFICATION. Tenant will indemnify Landlord against all claims,
demands and actions, and all related costs and expenses (including attorneys'
fees) for injury, death, disability or illness of any person arising from the
activities of Tenant.
20. INSURANCE.
(a) TENANT'S INSURANCE. Tenant will, on and after the Commencement Date,
maintain commercial general liability insurance covering injury, death,
disability or illness of any person, or damage to property, arising from
the activities of Tenant for limits of at least $5,000,000 single limit
coverage or such greater amounts as are from time to time carried by
comparable tenants in comparable buildings in the Meriden, Connecticut
area. Tenant will also maintain fire and all risk insurance for the
Building (including Tenant Improvements) in an amount sufficient to prevent
any party from becoming a co-insurer of any loss regarding the Building
(including Tenant Improvements), but in any event not less than 100% of the
actual replacement value of the Building (including Tenant Improvements),
and otherwise complying with the terms of any ground lease or mortgage to
which the Land or the Building may be subject, except that the payment and
use of the proceeds of such insurance proceeds shall, to the extent that
any such ground lease or mortgage and this Lease are inconsistent, be
governed by the terms of this Lease. Tenant's insurance will be written by
companies having an A.M. Best Company rating of A-VII or better (or if an
insurer is not rated by A.M. Best Company, then the insurer must have a
financial standing comparable to that of Industrial Risk Insurance as of
the date of this Lease). Tenant's liability insurance will name Landlord
and its first mortgagee as additional insureds. Any insurance required to
be maintained by Tenant under this Lease may be provided under "blanket"
policies, provided that the property required to be insured is specified
therein. Tenant will deliver to the Landlord an insurance certificate by
the insurers showing this coverage to be in effect. The insurance will
provide that the Landlord and its first mortgagee will be notified in
writing 30 days prior to cancellation of, or failure to renew, the
insurance.
(b) LANDLORD'S INSURANCE. Landlord or its contractors will, during any
period Landlord's construction of Tenant Improvements, maintain builder's
risk insurance on a completed value, non-reporting basis for the total cost
of such Tenant Improvements, and workers compensation insurance as required
by applicable law. Landlord will maintain commercial general liability
insurance covering injury, death, disability or illness of any person, or
damage to property, arising from the activities of Landlord or Landlord's
tenants or others under the control of Landlord, with liability limits
equal to or greater than the minimum limits for the liability insurance to
be carried by Tenant under this Section and otherwise complying with the
terms of the any ground leases or mortgages to which the Land or the
Building may be subject. Landlord's insurance will be written by
Industrial Risk Insurance or by companies having an A.M. Best Company
rating of A-VII or better. Any
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insurance required to be maintained by Landlord under this Lease may be
provided under "blanket" policies, provided that the property to be insured
is specified therein. Landlord will have no obligation to insure Tenant's
trade fixtures, furniture, equipment or personal property. Landlord will
deliver to Tenant certificates by the insurers showing these coverages to
be in effect. The insurance will provide that the Landlord, its mortgagees
and Tenant will be notified in writing 30 days prior to cancellation of, or
failure to renew, the insurance.
21. WAIVER OF INSURABLE CLAIMS. Landlord and Tenant release each other from
any liability for loss or damage by fire or other casualty coverable by a
standard form of "all risk" property insurance policy, whether or not the loss
or damage resulted from the negligence of the other, its agents or employees.
Each party will use reasonable efforts to obtain policies of insurance which
provide that this release will not adversely affect the rights of the insureds
under the policies.
22. ASSIGNMENT AND SUBLETTING. Tenant may not assign this Lease or sublet all
or any part of the Premises to any entity or person, except with the prior
written consent of Landlord, which will not be unreasonably withheld and will be
deemed given if not given or withheld within 10 days after Tenant's written
request for such consent is given to Landlord; provided, however, that Tenant
may, without the consent of Landlord, assign this Lease or sublet all or any
part of the Premises to any entity that controls, is controlled by or is under
common control with, Tenant, in which case Tenant will notify Landlord, in
writing, of such assignment of sublease within 20 days after it becomes
effective. Notwithstanding any one or more assignments of this Lease or
subletting of the Premises, (i) American Lightwave Systems, Inc. ("ALS") shall
remain liable under this Lease and all of the terms and provisions hereof,
including, without limitation, the obligations to pay Rent pursuant to this
Lease, and all obligations which survive termination of this Lease, (ii)
notwithstanding the continuing liability of ALS hereunder, Landlord may deal
exclusively with Tenant or any sublessee from time to time, and no notice to,
consent of or other action shall be required with respect to ALS, and (iii) no
action, omission, forbearance, amendment, agreement, occurrence or thing which,
but for this provision, would release or discharge ALS from any liability or
obligation imposed by this Lease shall effect such a release or discharge;
provided, however, that if, after assignment of this Lease by ALS, Landlord and
Tenant amend this Lease, ALS shall not be liable under any amendment to this
Lease to the extent it imposes any obligation or liability beyond those imposed
by this Lease at the time of the assignment by ALS. If, after any assignment of
this Lease, this Lease is terminated or Tenant is dispossessed pursuant to the
default and termination provisions of this Lease, ALS shall remain liable for
all obligations under this Lease (except to the extent above provided with
respect to the amendment) following its termination or the dispossession of
Tenant, or both. If this Lease is rejected or any rental or other obligation
hereunder is discharged or reduced in any bankruptcy or insolvency proceedings
involving any Tenant other than ALS, then, notwithstanding such rejection,
discharge or reduction, ALS shall be obligated under this Lease to the same
extent as it would have been liable if this Lease had been in effect until the
date of such rejection, discharge or reduction, and had, on that date, been
terminated in accordance with Section 25(a) of this Lease.
23. DAMAGE OR DESTRUCTION. If the Building or the Parking Area are or is
damaged by Casualty, Landlord will, within 30 days after the date of the
Casualty, notify Tenant of Landlord's reasonable determination as to the date
("Estimated Repair Date") by which the damage (including damage to the Tenant
Improvements and to Tenant's trade fixtures, equipment, furniture and personal
property) can be repaired. If Landlord's notice states that such repair cannot
be accomplished on or before the date 180 days after the date of such Casualty
or if the Casualty occurred within the last 12 months of the Term in effect on
the date of the Casualty, then Tenant may terminate this Lease by giving written
notice to Landlord within 30 days after such Landlord's notice is given. If the
Casualty occurs during the last 12 months of the Term, and the damaged Office
Premises includes 50% or more of the Building, Landlord may terminate this Lease
by written notice given to Tenant within 30 days after the date of the Casualty.
Landlord will also
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have the right to terminate this Lease by written notice given to Tenant within
30 days after the Casualty if the damage will cost more than $50,000 to repair
and was caused by a peril that was not insurable under a standard "all-risk"
casualty insurance policy, unless Tenant, by written notice given to Landlord
within 20 days after such notice is given to Tenant by Landlord, elects to pay
for the cost of repairing such uninsurable damage.
If this Lease is not so terminated, Landlord shall, at its expense, commence all
necessary repairs (including repair of the Tenant Improvement, but excluding of
Tenant's trade fixtures, equipment, furniture and personal property) and shall
diligently proceed to complete the same subject only to Excusable Delays. If
Landlord shall fail to commence all necessary repairs or shall not use its best
efforts to diligently complete such repairs, then Tenant may give Landlord
notice to do so. If Landlord shall not, within thirty days after Tenant's
notice, commence repair or proceed to use best efforts to diligently complete
such repairs, then in either case within 30 days after Tenant's notice, Tenant
may terminate this Lease by written notice to Landlord within 15 days after
expiration of such 30 day period. Tenant shall have the right to terminate this
Lease if such repairs shall not be completed on or before the date 6 months
after the Estimated Repair Date, by giving written notice of such termination to
Landlord within 30 days after the expiration of such period. Such right to
terminate may be exercised only by Tenant giving written notice of termination
to Landlord prior to substantial completion of the repairs by Landlord.
If this Lease is terminated under this Section 23, Rent will be prorated (a) as
of the date of the relevant termination as to the portion of the Office Premises
that is Untenantable and (b) as of the date of the Casualty as to the
Untenantable portion of the Office Premises, all in proportion to the Rentable
Areas attributable to such portions. During any period in which any portion of
the Office Premises is rendered Untenantable by the Casualty, the Rent will be
abated for the period of Untenantability (plus a period of 60 days or the number
of days required for Tenant to equip, furnish and move into such portion of the
Premises, whichever is less) in proportion to the amount of space which is
Untenantable.
24. EMINENT DOMAIN. If there is a Taking of all or a substantial part of the
Building, Tenant may terminate this Lease by giving written notice to Landlord
within 30 days after a final determination under applicable laws that the Taking
will occur, effective as of (a) the date the public authority takes possession
or (b) the date 90 days after the date of the giving of notice of termination by
Landlord or Tenant, whichever is later. If this Lease is so terminated, any
rents and other payments will be prorated as of the effective date of
termination and will be proportionately refunded to Tenant, or paid to Landlord,
as the case may be. If Tenant terminates this Lease, all damages, awards and
payments for the Taking will belong to Landlord irrespective of the basis upon
which they were made or awarded, except that Tenant will be entitled to any
amounts specifically awarded for Tenant's trade fixtures, furniture, equipment
or personal property or recovery for the cost of improvements made solely by
Tenant exclusive of any contribution or loan by Landlord or as a relocation
payment or allowance. If this Lease is not terminated as a result of the
Taking, Landlord will restore the remainder of the Premises to a condition as
near as reasonably possible to the condition prior to the Taking (including
restoration of the Tenant Improvements, but excluding restoration of Tenant's
trade fixtures, furniture, equipment or personal property) and Rent will be
abated (1) as to the portion of the Office Premises included in the Taking, for
the remainder of the Term, and (2) as to any other portion of the Office
Premises rendered Untenantable by the Taking, for the period of Untenantability
(plus a period of 60 days or the number of days required for Tenant to equip,
furnish and move into such portion of the Premises, whichever is less) in
proportion to the amount of space which is Untenantable.
25. Defaults.
(a) TENANT DEFAULTS. An Event of Default ("Event of Default") shall exist
under this Lease if (a) Tenant fails to pay rent or other amounts under
this Lease and such failure continues
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for 10 days after written notice by Landlord to Tenant, (b) Tenant fails to
perform any other obligation under this Lease and Tenant fails to commence
to cure such failure within 30 days after written notice by Landlord to
Tenant or to thereafter diligently and continuously pursue such cure, (c)
any proceeding is begun by or against Tenant to subject the assets of
Tenant to any bankruptcy or insolvency law or for an appointment of a
receiver of Tenant or of any of Tenant's assets and is not dismissed within
60 days, as to voluntary proceedings, or 120 days, as to involuntary
proceedings, or (d) Tenant makes-a general assignment of Tenant's assets
for the benefit of creditors. Landlord may, with or without terminating
this Lease, cure the default and charge Tenant all costs of doing so, plus
interest on such costs from the date(s) incurred at an annual rate equal to
the Reference Rate, plus 2 percentage points per annum, or the maximum rate
of interest permitted by law, whichever is less. Landlord also may elect
by written notice to Tenant, after an Event of Default, to terminate this
Lease and to require Tenant to pay to Landlord all past due amounts under
this Lease plus the present value (as of the date of such election) of the
amount, if any, by which (1) Monthly Base Rent which would have been
payable during the period (the "Remaining Period") from the date of such
election through the last day of the Term if this Lease has remained in
effect EXCEEDS (2) the Market Rent for the Premises for the Remaining
Period. For purposes of calculating the present value of such excess, a
discount rate equal to the annual yield on U.S. Treasury Bonds with a
remaining term equal to the Remaining Period shall be employed, and it
shall be assumed that the excess will be payable in equal monthly
installments over the Remaining Period.
(b) LANDLORD DEFAULTS. If Landlord defaults in the performance of any
obligation or agreement under this Lease and fails to cure such default
within 30 days (or such shorter period as may be reasonably imposed by
Tenant in the case of an emergency) after Tenant gives notice of such
default to Landlord and to any first mortgagee of Landlord that has given
written notice to Tenant of such mortgagee's desire to receive a written
notice of such default, Tenant may cure such default and charge the costs
to Landlord (plus interest on such charges from the date the charges are
incurred by Tenant, at the rate set forth in Section 7(b) of this Lease).
Landlord must pay such costs and interest to Tenant within 10 days after
Tenant's written request for such payment is given to Landlord; provided,
however, that if Tenant's notice of demand for such payments states that
Tenant will setoff such costs and interests against Rent if such payment is
not made, Landlord may, during such 10 business day period, make an
Arbitration Request pursuant to the provisions of Exhibit A of this Lease
with respect to the default of Landlord and the validity of such costs and
interest. If Landlord does not make such payment and does not make an
Arbitration Request within such 10 business day period, Tenant may setoff
the amount of such costs and interest against 10% of the next installment
of Rent due under this Lease and shall be permitted to continue to set off
against 10% of each of the succeeding installments of Rent until all such
costs and interest have been setoff, and such setoff shall be deemed to be
payment of Rent (the amounts that Tenant is entitled to setoff being
referred to below as "Permitted Setoff Amounts"). However, if Landlord
makes an Arbitration Request during such 10 business day period, Tenant
shall, rather than setting off such Permitted Setoff Amounts, deposit such
Permitted Setoff Amounts on the date(s) such setoff would otherwise be
permitted, in an interest-bearing escrow account with a banking
institution, pending the outcome of the Arbitration. The banking
institution will be designated by Tenant by written notice to Landlord, but
such designation will be subject to the consent of Landlord, which consent
will not be unreasonably withheld and will be deemed given if not given or
withheld within 5 days after Tenant gives such notice. Interest on the
funds placed in such escrow account will be given to the party entitled to
receive such funds, as determined pursuant to the Arbitration.
26. WAIVER OF LEASE PROVISIONS. No waiver of any provision of this Lease will
be deemed a waiver of any other provision, and waiver of a right or remedy in
one instance will not preclude
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enforcement of that same right or remedy in the future. The receipt of rent by
Landlord with knowledge of a default under this Lease by Tenant will not be
deemed a waiver of the default. Landlord will not be deemed to have waived any
provision of this Lease unless it is done by express written agreement by
Landlord. Any payment by Tenant and acceptance by Landlord of a lesser amount
than the full amount of all Rent then due will be applied to the earliest Rent
due. No endorsement or statement on any check or letter for payment of rent or
other amount will be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to its right to recover the balance of
any rent or other payment or to pursue any other remedy provided in this Lease.
27. RETURN OF POSSESSION TO LANDLORD. On expiration of the Term or sooner
termination of this Lease, Tenant will return possession of the Premises to
Landlord, without notice from Landlord, in good order and condition, except for
ordinary wear and tear, and except for damage, destruction or conditions Tenant
is not required to remedy under this Lease. Tenant will not be obligated to
remove any Tenant Improvements. Landlord will arrange with Tenant for a joint
inspection of the Premises immediately prior to the end of the Term and Tenant
will cooperate with Landlord in conducting such joint inspection. Tenant will
give Landlord all keys for the Premises and will inform Landlord of combinations
on any locks and safes on the Premises. Any property left in the Premises after
expiration or termination of this Lease will be deemed abandoned by Tenant and
will be the property of Landlord to dispose of as Landlord chooses.
28. HOLDING OVER. If Tenant remains in possession of the Premises after
expiration of the Term without a new lease, any such holding over will be at
will and Tenant will pay Rent with respect to the period of such holdover.
29. EXPANSION OPTION. Subject to the terms and conditions set forth in this
Section 29(a), Landlord grants to Tenant an option to add the First Expansion
Space to the Premises as follows:
(a) Tenant shall have the right to exercise such option, if at all, by
giving written notice of such exercise to Landlord and the First Expansion
Space will be added to the Premises on the day after the date that Landlord
Substantially Completes the Tenant Improvements required by Tenant for the
First Expansion Space pursuant to the Final TI Plans (which Tenant
Improvements shall be Substantially Completed by Landlord, at Landlord's
sole expense, not later than the date 45 days after Tenant's exercise of
such option.
(b) The Monthly Base Rent for the Expansion Premises will be equal to an
amount per square foot of Rentable Area in the First Expansion Space as
mutually determined by the parties, not to exceed the product of $0.4166
multiplied by the Rentable Area in the First Expansion Space.
(c) Except for Monthly Base Rent and as otherwise provided in this Lease,
the First Expansion Space will become a part of the Premises and will be
leased by Tenant upon the same terms and conditions as provided in this
Lease with respect to the remainder of the Premises.
30. ENVIRONMENTAL INSPECTION. Tenant will have the right to conduct
environmental testing of the Land and the Building during the period on or
before September 16,1993 (including, without limitation, the taking of soil
borings and samples and installation of monitoring wells). Tenant will restore
any property damaged by such testing to substantially the condition of the
affected property immediately preceding such testing. Tenant will have the
right to terminate this Lease by giving written notice of such termination to
Landlord at any time on or before September 23,1993, if Tenant is, in its sole
discretion, dissatisfied with the results of such testing. If Tenant does not
give such a notice to Landlord on or before such date, Tenant will be deemed to
have elected not to terminate this Lease on such basis.
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31. BUILDING NAME AND IDENTIFICATION.
(a) BUILDING NAME. Landlord will have the right to identify and refer to
the Building only by its street address or by a name designated by Tenant
by written notice to Landlord.
(b) SIGNAGE. Tenant may place its signs at reasonable locations on the
Land and Landlord will not restrict the number, placement, sizing or
coloring of any of Tenant's signs; provided, however, that Tenant must
comply with the covenants, conditions and restrictions applicable to the
Land and the Building on the date of this Lease (copies of which Landlord
has supplied to Tenant) and with all requirements of the City of Meriden,
Connecticut.
(c) BUILDING DIRECTORY. Landlord will, at Landlord's expense, provide
sufficient lines in the Building lobby directory to list all of Tenant's
departments, functions and operations situated in the Building, and the
names of all of Tenant's executives who are situated in the Building
individually.
32. NOTICES. Any notice under this Lease must be in writing, and must be sent
by prepaid certified mail, or by facsimile or by reputable overnight courier,
addressed to Tenant at 999 Research Parkway, Meriden, Connecticut 06450 (Attn:
President), and to Landlord at 999 Research Parkway, Meriden, Connecticut 06450
(Attn: Frank Galluzzo), or to such other address as is designated in a notice
given under this Section. A notice will be deemed given on the date of actual
receipt or one day after the deposit in the mail, whichever is earlier.
33. MEMORANDUM OF LEASE; RECORDABLE TERMINATION. Either party will, upon the
written request of the other party, execute a short form lease ("Memorandum of
Lease") regarding this Lease, in a form suitable for recording. Such Memorandum
of Lease will be dated as of the date of this Lease and will disclose the
parties, the Term of the Lease, descriptions of the Premises, Tenant's expansion
right and such other terms and conditions as the parties agree upon. The party
requesting the execution of such Memorandum of Lease will bear all costs of the
Memorandum of Lease, including any recording fees. Upon the execution of a
pertinent amendment to this Lease and the written request of either party, the
parties will execute a corresponding amendment to the Memorandum of Lease, with
the party requesting the execution of such amendment bearing all costs of the
amendment, including any recording fees. Either party will, following any
termination of this Lease and upon the written request of the other party,
execute a document setting forth the date of such termination, in a form
suitable for recording. Failure of a party to execute such a document will not
affect the termination, and in such event the party requesting the document may
execute and file an affidavit setting forth the date of termination. The party
requesting the execution of such document will bear all costs thereof, including
any recording fees
34. EFFECT OF TENANT DEFAULTS. If an Event of Default then exists, Tenant will
not be entitled to exercise any right it may have to lease additional space in
the Building.
35. BROKER'S COMMISSION. Landlord and Tenant represent and warrant to each
other that they have dealt with no brokers, finders or the like in connection
with this Lease, and agree to indemnify each other and to hold each other
harmless against all other claims, damages, costs or expenses of or for any
other such fees or commissions resulting from their actions or agreements
regarding the execution or performance of this Lease, and will pay all costs of
defending any action or lawsuit brought to recover any such fees or commissions
incurred by the other party, including reasonable attorney's fees.
36. GOVERNING LAW. This Lease will be construed under and governed by the laws
of Connecticut. If any provision of this Lease is illegal or unenforceable, it
will be severable and all other provisions will remain in force as though the
severable provision had never been included.
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37. ENTIRE AGREEMENT. This Lease contains the entire agreement between
Landlord and Tenant regarding the Premises. Tenant agrees that it has not
relied on any statement, representation or warranty of any person except as set
out in this Lease. This Lease may be modified only by an agreement in writing
signed by Landlord and Tenant. No surrender of the Premises, or of the
remainder of the Term, will be valid unless accepted by Landlord in writing.
38. SUCCESSORS AND ASSIGNS. All provisions of this Lease will be binding on
and for the benefit of the successors and assigns of Landlord and Tenant, except
that no person or entity holding under or through Tenant in violation of any
provision of this Lease will have any right or interest in this Lease or the
Premises.
39. BUILDING ROOF RIGHTS. Tenant will have the right to use of the Building
roof, at no cost, to install and use (all at Tenant's expense) an antenna, so
long as such antenna or antennas: (a) is or are installed at Tenant's sole
expense; (b) conform(s) with any applicable requirements of the City of Meriden,
Connecticut; and (c) is or are constructed pursuant to plans and specifications
and by a contractor and subcontractors approved in advance by Landlord in
writing (which approval will not be unreasonably withheld or delayed). Tenant
will pay and discharge all mechanic's, materialmen's and other liens regarding
such antenna as provided in Section 13 of this Lease. Tenant's use of the
Building roof will be in common with Landlord's use and will be subject to
reasonable rules and regulations imposed by Landlord.
40. MEANING OF "OTHER TENANTS"; EFFECTIVE DATE. For purposes of this Lease,
the term "other tenants" includes Landlord, to the extent that Landlord occupies
the Building. Landlord and Tenant have executed this Lease to be effective as
of the date stated in the first paragraph of this Lease.
Landlord:
999 RESEARCH PARKWAY INC.
By ______________________________________
Its ______________________________________
Tenant:
AMERICAN LIGHTWAVE SYSTEMS, INC.
By _____________________________________
Its ______________________________________
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EXHIBIT A
Arbitration Procedures
The parties to this Lease will initially attempt to agree upon the matter in
question. If they have been unable to so agree within the period that they are
required to agree as to such matter under the Lease, if any, then either party
may request by written notice to the other party ("Arbitration Request") that
the matter be determined by an arbitration board consisting of three reputable
real estate professionals who are recognized experts regarding office/production
leases in the Meriden, Connecticut area. One arbitrator will be appointed by
each party, and each such arbitrator will have no material financial or other
business interest in common with the party selecting such arbitrator. If a
party fails to appoint an arbitrator and notify the other party of such
appointment within 30 days after the Arbitration Request is made, then the
arbitrator that was appointed by such other party within such 30 day period will
be the sole arbitrator. If two arbitrators are properly appointed and such
first two arbitrators are unable to agree on a third arbitrator within thirty
(30) days after the appointment of the second arbitrator, then such third
arbitrator will be appointed by the presiding judge of the New Haven County
Superior Court, or by any person to whom such presiding judge formally delegates
the matter, or, if such methods of appointment fail, by the American Arbitration
Association.
If the matter in question is the determination of the Market Rent the parties
will submit a copy of this Lease to the sole arbitrator or the three
arbitrators, as the case may be. If the arbitration is conducted by a sole
arbitrator, such sole arbitrator will render his or her determination of the
Market Rent applicable during the period in question to the parties by the 60th
day after the Arbitration Request was made. If the arbitration is conducted by
three arbitrators, each arbitrator will submit his or her determination(s) of
the Market Rent applicable during the period in question in a sealed envelope by
the 30th day following appointment of the last arbitrator, and any
determinations not submitted by such time shall be disregarded. In such case,
the parties will meet on such 30th day (or if it is not a business day, on he
first business day thereafter) at 11:00 a.m. at the office of Landlord, or such
other place as the parties may agree, and simultaneously deliver the
determinations. If the determinations of at least two of the arbitrators are
identical in amount, such amount will be deemed the decision of the arbitrators.
If the determination of the three arbitrators are different in amount, the
decision as to the Market Rent will be independently determined as follows:
(a) If neither the highest nor lowest determination differs from the
middle determination by more than 15% of such middle determination, then
the decision will be deemed to be the average of the three determinations;
and determination, then the decision will be deemed to be the average of
the three determinations; and
(b) If clause (a) does not apply, then the decision will be deemed to be
the average of the middle determination and the determination closest in
amount to such middle determination.
If the matter in question is a matter other than the determination of Market
Rent, then the decision of the sole arbitrator or the decision of any two of the
three arbitrators will control, and such decision will be made and delivered to
Landlord and Tenant by such arbitrator or arbitrators not later than the date 60
days after the Arbitration Request was made (in the case of an arbitration
conducted by a sole arbitrator) or the 30th day following the appointment of the
last arbitrator (in the case of an arbitration conducted by three arbitrators).
An arbitration of any matter other than Market Rent will be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
The decision of the arbitrators, determined as above set forth, will be final
and non-appealable. The fees and expenses of the arbitrator or arbitrators will
be shared equally by Landlord and Tenant
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regarding an Arbitration to determine Market Rent, and will be paid by the
prevailing party, as determined by the sole arbitrator or the majority of the
three arbitrators, regarding any other Arbitration. The costs of all counsel,
experts and other representatives that are retained by a party will be paid by
such party.
During the period of time that any arbitration is pending under this Lease, the
parties to this Lease will continue to comply with all those terms and
provisions that are not the subject of the arbitration.
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EXHIBIT C
LEGAL DESCRIPTION OF LAND
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SCHEDULE E
SEVERABLE PROPERTY
All office furniture and equipment (desks, files, chairs, bookcases, projectors,
screens, viewers, credenzas, waste containers, typewriter stands, typewriters an
like items);
All decorations, paintings, and statuary of Tenant and its employees;
All telephones and communication equipment;
All specialized furniture include lobby furniture, conference room furniture and
cafeteria furniture, other than specialized receptionists desks;
Potted plants, trees, and shrubs located on the interior of the building;
All mail room furniture and equipment to include benches, meters, scales,
shelves,
Trash compactors;
Exterior or interior cleaning or maintenance tools and equipment;
All printing/copying accessories as decollators, bursters, collators, etc.;
All computer equipment (other than building HVAC devices) such as computers,
printers, controllers, memory devices and motor-generator sets; and
All personal property of Tenant and its employees.
