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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
Form 10-QSB
[X] Quarterly report under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended September 30, 1996
[ ] Transition report under Section 13 or 15(d) of the
Exchange Act
For the transition period from _________ to __________
___________________
Commission File Number: 0-15938
___________________
Farmstead Telephone Group, Inc.
(Exact name of small business issuer as specified in its charter)
Delaware 06-1205743
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
81 Church Street, East Hartford, CT 06108-3728
(Address of principal executive offices) (Zip Code)
(860) 282-0010
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months, and (2) has been
subject to such filing requirements for the past 90 days. Yes [X] No [ ]
As of October 29, 1996, there were 3,262,329 shares of the issuer's $.001 par
value Common Stock outstanding.
Transitional Small Business Disclosure Format: Yes [ ] No [X]
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TABLE OF CONTENTS TO FORM 10-QSB
PART I. FINANCIAL INFORMATION
Page
Item 1. Financial Statements:
Consolidated Balance Sheets - September 30, 1996 and
December 31, 1995 3
Consolidated Statements of Operations - Three Months
Ended September 30, 1996 and 1995 4
Consolidated Statements of Operations - Nine Months
Ended September 30, 1996 and 1995 5
Consolidated Statement of Changes in Stockholders'
Equity - Nine Months Ended September 30, 1996 5
Consolidated Statements of Cash Flows - Nine Months
Ended September 30, 1996 and 1995 6
Notes to Consolidated Financial Statements (Unaudited) 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 11
Item 2. Changes in Securities 11
Item 3. Defaults Upon Senior Securities 11
Item 4. Submission of Matters to a Vote of Security Holders 11
Item 5. Other Information 11
Item 6. Exhibits and Reports on Form 8-K 11
Signatures 12
FARMSTEAD TELEPHONE GROUP, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
September 30, December 31,
(In thousands, except number of shares) 1996 1995
- --------------------------------------------------------------------------------------------------
(Unaudited)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 3,194 $ 622
Accounts receivable, less allowance for doubtful accounts 4,302 2,691
Inventories 3,295 1,946
Other current assets 162 139
------- -------
Total current assets 10,953 5,398
Property and equipment, net of accumulated depreciation
and amortization 485 256
Investment in unconsolidated subsidiaries 208 201
Other assets 134 54
------- -------
Total assets $11,780 $ 5,909
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Bank borrowings $ 1,973 $ 1,452
Accounts payable 2,385 1,053
Accrued expenses and other current liabilities 509 398
------- -------
Total current liabilities 4,867 2,903
------- -------
Stockholders' equity:
Preferred stock, $0.001 par value; 2,000,000 shares authorized;
no shares issued and outstanding - -
Common stock, $0.001 par value; 30,000,000 shares authorized;
3,124,406 shares issued and outstanding (Note 4) 3 2
Additional paid-in capital (Note 4) 11,697 8,450
Accumulated deficit (4,787) (5,446)
------- -------
Total stockholders' equity 6,913 3,006
------- -------
Total liabilities and stockholders' equity $11,780 $ 5,909
======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
FARMSTEAD TELEPHONE GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
Three Months Ended September 30, 1996 and 1995
<TABLE>
(In thousands, except per share amounts) 1996 1995
- ---------------------------------------------------------------------------------
<S> <C> <C>
Net sales and service revenues $5,597 $3,980
Cost of revenues 3,968 2,708
------ ------
Gross profit 1,629 1,272
------ ------
Operating expenses:
Selling, general and administrative expenses 1,437 1,515
Research and development expenses 24 45
------ ------
Total operating expenses 1,461 1,560
------ ------
Operating income (loss) 168 (288)
Interest expense (40) (31)
Equity in loss of unconsolidated subsidiary (18) (179)
Other income 18 9
------ ------
Income (loss) before income taxes 128 (489)
Provision for income taxes 3 3
------ ------
Net income (loss) $ 125 $ (492)
====== ======
Net income (loss) per share (Note 4) $ .05 $ (.23)
====== ======
Weighted average common and common equivalent shares (Note 4) 2,317 2,174
====== ======
</TABLE>
See accompanying notes to consolidated financial statements.
FARMSTEAD TELEPHONE GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
Nine Months Ended September 30, 1996 and 1995
<TABLE>
(In thousands, except per share amounts) 1996 1995
- -----------------------------------------------------------------------------------
<S> <C> <C>
Net sales and service revenues $14,367 $11,238
Cost of revenues 10,053 7,672
------- -------
Gross profit 4,314 3,566
------- -------
Operating expenses:
Selling, general and administrative expenses 3,864 3,845
Research and development expenses 82 58
------- -------
Total operating expenses 3,946 3,903
------- -------
Operating income (loss) 368 (337)
Interest expense (107) (68)
Equity in loss of unconsolidated subsidiary (33) (179)
Other income 442 16
------- -------
Income (loss) before income taxes 670 (568)
Provision for income taxes 11 13
------- -------
Net income (loss) $ 659 $ (581)
======= =======
Net income (loss) per share (Note 4) $ .30 $ ( .27)
======= =======
Weighted average common and common equivalent shares (Note 4) 2,203 2,123
======= =======
</TABLE>
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
(UNAUDITED)
Nine Months Ended September 30, 1996
<TABLE>
Common Stock Additional Accum-
----------------- paid-in ulated
(In thousands) Shares Amount capital deficit Total
- ---------------------------------------- ------ ------ ---------- ------- -----
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1995 21,239 $ 21 $ 8,431 $(5,446) $3,006
Stock options exercised 5 - 1 - 1
One-for-ten reverse stock split (Note 4) (19,120) (19) 19 - -
Sale of Units (Note 4) 1,000 1 3,246 - 3,247
Net income - - - 659 659
------- ---- ------- ------- ------
Balance at September 30, 1996 3,124 $ 3 $11,697 $(4,787) $6,913
======= ==== ======= ======= ======
</TABLE>
See accompanying notes to consolidated financial statements.
FARMSTEAD TELEPHONE GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Nine Months Ended September 30, 1996 and 1995
<TABLE>
(In thousands) 1996 1995
- ----------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 659 $ (581)
Adjustments to reconcile net income to net cash flows
provided by (used in) operating activities:
Depreciation and amortization 96 115
Gross profit deferred on sales to unconsolidated
subsidiary - 175
Equity in undistributed loss of unconsolidated
subsidiary 33 4
Changes in operating assets and liabilities:
Increase in accounts receivable (1,611) (319)
Increase in inventories (1,349) (404)
Increase in other assets (87) (7)
Increase (decrease) in accounts payable, accrued
expenses and other liabilities 1,443 (292)
------- -------
Net cash used in operating activities (816) (1,309)
------- -------
Cash flows from investing activities:
Purchases of property and equipment (325) (149)
Decrease in short-term investments - 75
Purchases of redeemable coupons (754) -
Redemptions of coupons 738 -
Investment in unconsolidated subsidiaries (40) (359)
------- -------
Net cash used in investing activities (381) (433)
------- -------
Cash flows from financing activities:
Proceeds from short-term borrowings 521 683
Repayments of short-term borrowings and capital
lease obligation - (14)
Proceeds from exercise of stock options and warrants, net 1 420
Proceeds from sales of common stock, net 3,247 4
------- -------
Net cash provided by financing activities 3,769 1,093
------- -------
Net increase (decrease) in cash and cash equivalents 2,572 (649)
Cash and cash equivalents at beginning of period 622 904
------- -------
Cash and cash equivalents at end of period $ 3,194 $ 255
======= =======
Supplemental schedule of non-cash financing and investing
activities:
Capital contribution obligation to ATC $ 40
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest $ 106 $ 71
Income taxes 19 5
</TABLE>
See accompanying notes to consolidated financial statements.
FARMSTEAD TELEPHONE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 1. BASIS OF PRESENTATION
The interim financial statements for 1996 are presented on a
consolidated basis (see Note 3), consisting of the accounts of Farmstead
Telephone Group, Inc. and its majority-owned subsidiaries (the "Company").
The interim financial statements presented herein are unaudited, however in
the opinion of management reflect all adjustments, consisting of adjustments
that are of a normal recurring nature, which are necessary for a fair
statement of results for the interim periods. For further information,
refer to the financial statements and notes thereto included in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1995.
Beginning in 1996, the Company has changed the presentation format of
the Consolidated Statement of Operations to provide more detailed
information for the readers of this statement. Comparative amounts for 1995
have also been conformed to this presentation format.
NOTE 2. OTHER ASSETS
As part of a class action lawsuit settlement in 1995, AT&T was
required to issue approximately 4.2 million $50 face value coupons to the
class action members. The coupons are freely transferable and are
redeemable against the cost of certain specified AT&T telephone system
products or maintenance services sold by the Company during the period May
1, 1995 through June 1, 1997. In 1996, the Company began purchasing coupons
in the marketplace at a discount to their $50 face value and redeeming them
with AT&T subject to a maximum discount of 20% of the sales price up to a
$2,500 maximum discount per transaction. The Company's accounting policy is
to record income in an amount equal to the excess of the face value of the
coupons redeemed over the acquisition cost of the coupons, in the period in
which it can calculate the amount of rebate it has earned. During the three
and nine months ended September 30, 1996 the Company recorded approximately
$0 and $410,000 respectively, as other income from the redemption of coupons
applicable to prior year sales. Rebates earned on current year purchases
are recorded in cost of sales after the related products are sold. During
the three and nine months ended September 30, 1996, rebates credited to cost
of sales amounted to approximately $0 and $250,000 respectively.
NOTE 3. FORMATION OF SUBSIDIARY
Effective February 29, 1996, the Company purchased from AT&T Systems
Leasing Corporation, a subsidiary of AT&T Capital Corporation, certain
assets of its discontinued Asset Recovery Center ("ARC") for a purchase
price of $250,000. Prior to its closing in January 1996, the ARC primarily
operated to service AT&T affiliates in the orderly disposition, by way of
consignment sales arrangements, of excess, overstocked and end-of-life
telecommunications, computer and data transmission equipment. The assets
acquired consisted primarily of warehouse equipment, vehicles, computer and
office equipment, and inventory. The Company concurrently formed a
subsidiary corporation, Farmstead Asset Management Services, LLC ("FAMS"),
which is using the purchased assets in a similar operation in Piscataway,
New Jersey. The Company is attempting to re-establish certain of the
relationships that the ARC enjoyed, however, no assurances can be given that
it will be able to do so. The Company believes that the operations of FAMS
will provide it with an opportunity to develop new sources of equipment for
resale to its existing customers, as well as to other wholesalers in the
telephone, data and computer secondary markets, and internationally.
NOTE 4. STOCKHOLDERS' EQUITY
In September 1996, the Company completed a secondary offering of
1,000,000 Units, each Unit consisting of one share of Common Stock, one
Redeemable Class A Common Stock Purchase Warrant (the "Class A Warrants")
and one Redeemable Class B Common Stock Purchase Warrant (the "Class B
Warrants" and collectively with the Class A Warrants, the "Warrants") at an
offer price of $4.06 per Unit. The Units were first offered to stockholders
of record as of August 12, 1996 pursuant to a Rights Offering, which
resulted in the sale of 80,512 Units. Upon completion of the Rights
Offering, all of the remaining 919,488 Units were then sold through an
underwritten offering. These transactions provided the Company with
approximately $3,247,000 net of expenses. In October 1996 an additional
137,923 Units were sold, pursuant to the underwriter's over-allotment option
provision, which provided the Company with an additional $495,000 net of
expenses. The Company intends to use the proceeds to finance and expand the
Company's business, both domestically and internationally, which could
include the acquisition of other businesses, although the Company currently
has no specific agreements. Proceeds will also be used to further develop its
products, to expand its product marketing, and for general working capital
purposes.
The shares of Common Stock and Warrants comprising the Units are not
currently separately tradable, and will become so only upon the
determination of the underwriter. Each Class A Warrant entitles the holder
to purchase one share of Common Stock at a price of $5.28 per share and each
Class B Warrant entitles the holder to purchase one share of Common Stock at
a price of $6.09 at any time commencing August 13, 1996 until August 12,
2001. The Warrants are redeemable by the Company at a redemption price of
$.10 per Warrant at any time commencing September 13, 1997, on thirty days'
prior written notice, provided that the reported closing price of the Common
Stock equals or exceeds $6.09 for the Class A Warrants and $6.90 for the
Class B Warrants, for a period of twenty consecutive trading days ending
five days prior to the notice of redemption.
In connection with the underwritten portion of the secondary offering,
the Underwriter received a warrant to purchase 89,948 Units at an exercise
price of $6.70, exercisable from September 17, 1997 until September 16,
2001.
Prior to the commencement of the secondary offering, the Company
implemented a one-for-ten reverse stock split which became effective August
13, 1996, and which had the effect of reducing the number of outstanding
shares of common stock prior to the commencement of the secondary offering
from 21,243,676 to 2,124,406, and the number of outstanding warrants from
1,835,727 to 183,579. In this report, all per share amounts and numbers of
shares have been restated to reflect the reverse stock split. In addition,
the common stock amount shown on the consolidated balance sheet has been
restated to reflect the $.001 par value of the post reverse split common
shares, with a transfer of approximately $19,000 to additional paid in
capital.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
Sales and service revenues for the three months ended September 30,
1996 were $5,597,000, representing an increase of $1,617,000 or 41% over
the comparable prior year period. The increase was primarily attributable
to (i) the Company's telephone equipment products and services, which were
up by 40% over the comparable prior year period due principally to an
increase in domestic end user sales, and (ii) revenues generated from FAMS,
which started operations in 1996. Revenues from voice processing product
sales and services declined by 17% from the comparable prior year period due
primarily to the expiration of the Company's OEM contract with AT&T in
February 1996, and to lower dealer sales. Revenues from telephone equipment
sales and services accounted for 83% of consolidated revenues for the three
months ended September 30, 1996 (83% in the comparable 1995 period), while
revenues from voice processing product sales and services accounted for 10%
of consolidated revenues in 1996 (17% in 1995). Revenues generated by FAMS
accounted for 7% of consolidated revenues for the three months ended
September 30, 1996.
Sales and service revenues for the nine months ended September 30,
1996 were $14,367,000, representing an increase of $3,129,000 or 28% over
the comparable prior year period. The increase was primarily attributable
to (i) the Company's telephone equipment products and services, which were
up by 34% over the comparable prior year period due principally to an
increase in domestic end user sales, and (ii) revenues generated from FAMS,
which started operations in 1996. Revenues from voice processing product
sales and services declined by 31% from the comparable prior year period due
to the expiration of the Company's OEM contract with AT&T in February 1996,
and to lower dealer sales. Revenues from telephone equipment sales and
services accounted for 82% of consolidated revenues for the nine months
ended September 30, 1996 (78% in the comparable 1995 period), while
revenues from voice processing product sales and services accounted for 12%
of consolidated revenues in 1996 (22% in 1995). Revenues generated by FAMS
accounted for 6% of consolidated revenues for the nine months ended
September 30, 1996.
Gross profit for the three months ended September 30, 1996 was 29% of
revenues as compared to 32% of revenues for the comparable prior year
period. The decrease was attributable to (i) increased product acquisition
costs on certain telephone system parts, and (ii) higher labor and
warehousing costs as a percent of sales. As a re-seller of used telephone
equipment, the nature of the Company's business is such that product
acquisition costs continually fluctuate based upon the source of supply,
availability of such equipment in the marketplace and on market demand, as
well as on the mix of products sold during the reporting period. The Company
is not aware of any market conditions which would cause gross profit
margins to significantly fluctuate from current levels.
Gross profit for the nine months ended September 30, 1996 was 30% of
revenues as compared to 32% of revenues for the comparable prior year
period. During the nine months ended September 30, 1996, net rebates
credited to cost of sales amounted to $250,000 which had the effect of
increasing the Company's gross profit margin to 30% from 28% otherwise
realized. Excluding the effect of the rebates and as described above,
increased product acquisition costs on certain telephone system parts and
higher labor and warehousing costs were the principal reasons for a lower
profit margin from the prior year.
Selling, general & administrative expenses for the three months ended
September 30, 1996 were $1,437,000 (26% of revenues) as compared to
$1,515,000 (38% of revenues) for the comparable 1995 period. The decrease
in SG&A was attributable to (i) the discontinuance in 1995 of the Company's
in-house service bureau and the marketing of the VTS-1000/2000 product line,
which accounted for SG&A costs of approximately $174,000 and (ii) a $296,000
decrease in international market development costs which were principally
incurred in the 1995 period pursuant to certain voice processing product
joint venture agreements in China which were terminated in November 1995.
Offsetting these decreases were SG&A expenses of $229,000 incurred by FAMS ,
which began operations in 1996, and increased sales compensation, personnel
costs and other operating costs associated with the Company's increased
business volume and number of employees.
Selling, general & administrative expenses for the nine months ended
September 30, 1996 were $3,864,000 (27% of revenues) as compared to
$3,845,000 (34% of revenues) for the comparable 1995 period. The $19,000
increase in SG&A was attributable to SG&A expenses of $557,000 incurred by
FAMS, which began operations in 1996, and increased sales compensation,
personnel costs and other operating costs associated with the Company's
increased business volume and number of employees. These increased costs
were offset by (i) the discontinuance in 1995 of the Company's in-house
service bureau and the marketing of the VTS-1000/2000 product line, which
accounted for costs of approximately $420,000 and (ii) a $523,000 decrease
in international market development costs, most of which amount was incurred
in the 1995 period pursuant to certain voice processing product joint
venture agreements in China which were terminated in November 1995.
Other income for the nine months ended September 30, 1996 was $442,000
as compared to $16,000 for the comparable 1995 period. Included in other
income for 1996 was $410,000 related to rebates earned from AT&T on coupons
tendered for redemption, net of coupon acquisition costs. The rebates are a
result of coupons issued by AT&T in 1995 in settlement of a lawsuit, which
are freely transferable and which can be used towards the cost of AT&T
products and services purchased from May 1995 through June 1, 1997. In 1996
the Company began purchasing coupons at a discount to their $50 face value
and redeeming them with AT&T for the full $50 face value. Accordingly, the
Company is recording as other income the difference between the face value
of the coupons and their acquisition cost. The Company expects to continue
to take advantage of the coupon redemption program through its June 1, 1997
expiration date. However, the Company is unable to predict the program's
effect on future operating results since (i) the supply of coupons in the
after-market is limited, (ii) the Company's acquisition cost for the coupons
can fluctuate, (iii) beginning June 1, 1996, rebates were restricted to
systems and maintenance services sold (previously, component parts were also
separately included in the program), and (iv) in any event, the Company
cannot reasonably estimate its future sales activity of products subject to
the rebate program. See Note 2 of the Notes to Consolidated Financial
Statements (Unaudited) included elsewhere herein.
Interest expense for the three and nine months ended September 30,
1996 was $40,000 and $107,000 respectively, as compared to $31,000 and
$68,000 for the respective three and nine month periods of 1995. The
increases in the current year periods were attributable to higher average
borrowings under the Company's revolving credit facility.
Liquidity and Capital Resources
Working capital at September 30, 1996 was $6,086,000, as compared to
$2,495,000 of working capital at December 31, 1995. The working capital
ratio at September 30, 1996 was 2.3 to 1 as compared to 1.9 to 1 at December
31, 1995.
Operating activities used $816,000 of cash during the nine months
ended September 30, 1996, principally due to higher levels of accounts
receivable and inventories attributable to higher sales levels, and to the
start-up of FAMS in 1996.
Investing activities used $381,000 of cash during the nine months
ended September 30, 1996, principally in the purchase of warehouse
equipment, vehicles, computer and office equipment for use by FAMS in its
business operations. In June 1996, the Company received approval from the
Securities and Exchange Commission of the Republic of the Philippines for
the formation of a Philippine corporation in which the Company invested
$40,000 for a 40% ownership interest. The corporation was formed for the
purpose of refurbishing, installing and selling electronics and
telecommunications equipment, and is expected to be fully operational during
the fourth quarter of 1996.
On March 13, 1996, FAMS entered into a two year lease for approximately
70,100 square feet of warehouse and office space in Piscataway, New Jersey at
a monthly rent of $24,827. This facility is used for the remarketing of used
Lucent Technologies/AT&T telephone and computer equipment, and for the
provision of asset storage and management services. Start-up costs of this
operation approximated $350,000, consisting principally of the $250,000 asset
purchase price plus relocation and other operating costs.
Financing activities provided $3,769,000 of cash during the nine
months ended September 30, 1996 attributable to $3,247,00 received from the
sale of Units as more fully described in Note 4 included herein, and a
$521,000 increase in borrowings under the Company's revolving credit line.
The average and highest amounts borrowed under this credit facility during
the nine months ended September 30, 1996 was $1,299,000 and $2,088,000,
respectively. The Company's borrowings are dependent upon the continuing
generation of collateral, subject to its $2 million credit line which, for
the period September 6, 1996 to October 31, 1996 was increased to $2.5
million.
The Company intends to use the proceeds of the secondary offering to
finance and expand the Company's business, both domestically and
internationally, which could include the acquisition of other businesses,
although the Company currently has no specific agreements. Proceeds will
also be used to further develop its products, to expand its product
marketing, and for general working capital purposes.
On November 5, 1996 the Company entered into a five year lease for
approximately 34,760 square feet of space in East Hartford, CT into which it
will relocate its current East Hartford and Danbury, CT operations. The
minimum rent will range from $13,759 to $15,207 per month over the initial
lease term.
Inflation has not been a significant factor in the Company's operations.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
None.
Item 2. Changes in Securities
Effective August 13, 1996, the Company implemented a one-for-ten
reverse split of its outstanding Common Stock. The reverse split also had
the following effect on the Company's outstanding Public Warrants: (i) the
exercise price of said warrants was increased to $5.00 per share, and (ii)
the market price triggering redemption of said warrants, at the option of
the Company, was adjusted to $11.25 per share.
As result of the additional issuance of securities from the secondary
offering, and pursuant to the anti-dilution provisions of the Public
Warrant agreement, the exercise price of these warrants was decreased to
$4.70 per warrant, and each warrant became exercisable into 1.06 shares of
common stock. Prior to this adjustment, the exercise price was $5.00 per
warrant, with each warrant exercisable into one share of common stock. All
other terms and conditions of these warrants, which are scheduled to expire
June 30, 1997, were unaffected.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
On September 5, 1996, the Company appointed American Securities
Transfer & Trust, Inc., of Denver, Colorado, as its new Transfer Agent,
Registrar and Warrant Agent.
On September 11, 1996, the Company de-listed its securities from the
Nasdaq Stock Market, Inc. and on September 12, 1996 commenced trading on the
American Stock Exchange. The Common Stock is traded under the symbol
"FTG", the Units under the symbol "FTG.U" and the Public Warrants under the
symbol "FTG.WS".
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
The following exhibits are filed herewith:
10.1 Agreement of Lease By and Between Tolland Enterprises and
Farmstead Telephone Group, Inc., dated November 5, 1996.
11. Statement Re: Computation of Per Share Earnings.
(b) Reports on Form 8-K: On August 13, 1996, the Company filed Form
8-K to report (i) that it had implemented a one-for-ten reverse split of its
outstanding common stock effective this date, which reduced its 21,243,676
shares of common stock to 2,124,406 shares, and which reduced its 1,835,727
outstanding warrants to 183,579 warrants, and (ii) that it had commenced a
Rights Offering of one million Units to shareholders of record on August 12,
1996.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
FARMSTEAD TELEPHONE GROUP, INC.
Dated: November 8, 1996 /s/ Robert G. LaVigne
----------------------------------------
Robert G. LaVigne
Vice President - Finance and
Administration, Chief Financial Officer
EXHIBIT 10.1
AGREEMENT OF LEASE
BY AND BETWEEN
TOLLAND ENTERPRISES
(LANDLORD)
FARMSTEAD TELEPHONE GROUP, INC.
(TENANT)
INDEX TO LEASE
--------------
ARTICLE CAPTION
- ------- -------
I Basic Lease Data, Exhibits and Riders
II Premises and Term
III Rent
IV Real Estate and Other Taxes
V Operating Expenses
VI Use of Premises
VII Services, Utilities and Repairs
VIII Assignment and Subletting
IX Compliance with Law, Etc.
X Conditions of Premises; Maintenance
XI Landlord's Right of Entry
XII Liens
XIII Default by Tenant; Right to Terminate;
Damages; Self-Help
XIV Alterations and Improvements
XV Limitation to Landlord's Liability;
Tenant's Indemnity; Insurance
XVI Damage to Premises
XVII Condemnation
XVIII Subordination
XIX Notices
XX Quiet Enjoyment
XXI Expiration
XXII Control of Park and Common Areas of Park
XXIII Security Deposit
XXIV Failure to Give Possession
XXV Fees and Expenses; Performance or Payment by
Landlord
XXVI Waiver of Trial by Jury, Counterclaim and
Right of Notice of Hearing
XXVII Delivery, Recording and Execution of Lease
XXVIII Successors and Assigns
XXIX Rules and Regulations
XXX Governing Law
XXXI No Waiver
XXXII No Brokerage
XXXIII Invalidity of Particular Provisions
XXXIV Estoppel Certificates
XXXV Security Agreement
XXXVI Provisions with Respect to Bankruptcy
XXXVII Hazardous Materials
XXXVIII First Option to Extend
XXXIX Second Option to Extend
BUILDING LEASE
--------------
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant
are the Parties hereinafter named, and which relates to space at the 22
Prestige Park Circle, located in East Hartford, Connecticut 06108. The
Parties to this instrument hereby agree with each other as follows:
ARTICLE I
---------
Basic Lease Data, Exhibits, and Riders
1.1 INTRODUCTION. The following sets forth basic data and identifying
Exhibits, and Riders elsewhere hereinafter referred to in this Lease,
and where appropriate, constitute definitions of the terms hereinafter
listed.
1.2 BASIC DATA.
DATE OF EXECUTION: November 5, 1996
LANDLORD: Tolland Enterprises, a Connecticut
general partnership
LANDLORD'S ADDRESS: Post Office Box 280228
(For Notices) East Hartford, CT 06128-0228
TENANT: Farmstead Telephone Group, Inc., a
Delaware corporation
TENANT'S ADDRESS: 81 Church Street
(For Notice & Billing) East Hartford, CT 06108
TENANT'S TRADE NAME: Farmstead Telephone Group, Inc.
PREMISES: 34,760 square feet (Gross Square
Footage) as shown on Exhibit "A"
together with the exclusive right to
park in the area depicted and
identified thereon as the "Parking
Area".
LEASE TERM: Sixty (60) calendar months (plus the
partial month, if any immediately
following the Commencement Date).
COMMENCEMENT: Term Commencement: Upon substantial
completion of Landlord's
Work by notice from
Landlord. Substantial
completion is defined as
all Landlord's Work
completed except those
items the completion of
which will not
materially and adversely
interfere with Tenant's
use of the Premises.
Rent Commencement: Thirty (30) days
following Term
Commencement Date.
MINIMUM RENT: Years 1-2: $165,110.00/Annual
($13,759.17/Monthly)($4.75 PSF)
Year 3: $173,800.00/Annual
($14,483.33/Monthly)($5.00 PSF)
Years 4-5: $182,490.00/Annual
($15,207.50/Monthly)($5.25 PSF)
OPTION TO EXTEND: Two (2) Options to Extend at three (3)
years each option.
TENANT'S PROPORTIONATE 100%
SHARE:
SECURITY DEPOSIT: $13,759.17
GUARANTOR: None
BROKER: Mark Duclos, Sentry Commercial Real Estate
Services, Inc.
TENANT INSURANCE
REQUIREMENTS: Public Liability Insurance
Bodily Injury: (Combined Limits
Property Damage: of $1,000,000)
PERMITTED USE: The Premises shall be used and occupied
solely for warehouse, distribution,
assembly, research and development,
manufacturing and general office and for
no other use or purpose.
ARTICLE II
----------
Premises and Terms
2.1 LOCATION OF PREMISES. Landlord hereby Leases to Tenant, and Tenant
hereby accepts from Landlord, the Premises suitably identified on
Exhibit "A" as those to be occupied by Tenant. Any dimensioning on
Exhibit "A" is plus or minus, and not to scale.
2.2 INITIAL TERM. The "Initial Term" of this Lease shall be sixty (60)
months plus that portion of the month in which the term begins if it
begins on a day other than the first day of a month, unless sooner
terminated as herein provided.
ARTICLE III
-----------
Rent
3.1 MINIMUM RENT. Tenant agrees to pay to Landlord, at Landlord's
mailing address, or at such other place as Landlord shall from time to
time designate by notice to Tenant, monthly, in advance, on the Rent
Commencement Date, and on the first day of each and every calendar month
during the term of this lease, a sum equal to the Minimum rent specified
in Section 1.2 hereof. All monies payable by Tenant to Landlord under
this lease shall be rent and payable and recoverable as rent in a manner
herein provided. Rent shall be paid to the Landlord without any offset,
withholding, reduction, prior notice or demand except as otherwise
provided in this Lease. Minimum rent for any partial month shall be
paid by Tenant to Landlord at such rate on a pro rata basis, and, if the
term of this Lease commences on a day other than the first day of a
calendar month, the Minimum rent payment for such month shall be the
proportionate part of such monthly Minimum Rent for the partial month
from the Rent Commencement Date to the first day of the succeeding
calendar month, and the Minimum Rent for such succeeding calendar month.
3.2 RETURNED CHECK. In the event Tenant pays any rent or other charge
by check or draft, and said check or draft is not honored by the bank on
which it is drawn,an additional charge of $15.00 shall be immediately
due and payable from Tenantto Landlord.
3.3 LATE PAYMENT. In the event that any payment of Rent is received by
Landlord more than ten (10) days after its due date, said payment shall
be subject to a charge of five percent (5%) of the amount of said
payment. The late charge provided in this Paragraph shall be in
addition to any interest or fees charged Tenant under Article XXV of
this Lease.
ARTICLE IV
----------
Real Estate and Other Taxes
4.1 TAXES. Shall mean all taxes, duties, assessment (general or
special) and all other charges of similar nature or any tax levied in
lieu of the foregoing assessed, levied or imposed against the Building
and the land whether said sums are payable to the Town wherein the
Premises are located or to any other governmental, or quasi-governmental
taxing authority having jurisdiction over the Building. Any assessments
shall be considered due as amortized over the maximum period permitted
by the applicable law. If due to a change in the method of taxation any
franchise, income, profit, rental or other tax shall be levied against
Landlord in substitution, in whole or in part for or in lieu of, any tax
which would otherwise constitute Taxes payable by Tenant hereunder, such
franchise, income, profit or other tax shall be deemed to be a tax for
the purpose hereof.
4.2 TENANT'S PROPORTIONATE SHARE. Shall mean of the Taxes and Common
Area Expenses applicable to the Building. Tenant shall pay to Landlord
Tenant's Proportionate Share as specified in Section 1.2 of any and all
Taxes due with respect to the Building and the land appurtenant thereto.
Any sum payable by Tenant for Taxes pursuant to this Paragraph shall be
deemed additional rent and shall be wholly due and payable within ten
(10) days after Landlord notified Tenant of the sum due together with a
general computation of said sum.
4.3 TAX YEAR. Shall mean the fiscal period during which taxes become
due and payable as levied by a governmental authority.
ARTICLE V
---------
Operating Costs for the Premises and the Building
5.1 OPERATING COSTS. Landlord, at Tenant's cost and expense, shall
repair and maintain in good condition and repair the paving, and
maintain sidewalks and parking area and lighting common to the Building
of which the Premises are part and shall maintain the entrances, exits
and areas appurtenant to the Building in a clean and orderly condition,
including maintaining in good and operating condition and repair the
roof, walls and foundation of the Building and all shrubbery thereon and
mowing of grass thereon and the prompt removal of snow and ice
therefrom. Tenant shall pay Landlord, as additional rent, Tenant's
Proportionate Share of such maintenance, and snow and ice removal and in
addition Tenant's Proportionate Share of the cost of operating,
maintaining and managing the Building. Tenant shall pay its
Proportionate Share of the costs for liability insurance, hazard
insurance and such other insurance as Landlord deems prudent. Landlord
shall maintain fire and extended coverage insurance on the Premises, at
replacement value at Tenant's expense. Such additional rent shall be
payable by Tenant to Landlord within thirty (30) days after Landlord
notified Tenant in writing of the sum due hereunder together with a
general computation and itemization by category of said sum. It is
acknowledged and agreed that Landlord shall have the roof watertight and
free of the need for repairs and in good condition prior to Lease
Commencement Date. Good condition to be determined by Landlord's and
Tenant's roofing consultants. Prior to November 13, 1996 Tenant shall
inspect the roof and immediately give Landlord written notice if Tenant
determines the roof to be unacceptable. If the two roofing consultants
are unable to agree on the status of the roof on or before November 13,
1996, then the matter shall be arbitrated before a mutually acceptable
roofing engineer on or before December 15, 1996, the cost of such
engineer to be shared equally by Landlord and Tenant. If the parties
are unable to agree on a roofing engineer by November 20, 1996, then the
current President of BOMA's Connecticut chapter shall appoint a roofing
engineer. The decision of the roofing engineer shall be final, and may
be enforced in a court of competent jurisdiction. Subsequent to Lease
Commencement Date Tenant shall be liable for roof repairs (but not roof
replacement).
5.2 In order to provide for current payments on account of Taxes or in
the aforesaid operating and maintenance costs and expenses, Landlord may
require that Tenant make payments on account of such additional rent in
twelve (12) equal monthly installments so that such installments will in
such subsequent twelve (12) month period equal (i) the additional rent
that was payable by Tenant hereunder for the prior Lease year for such
Taxes and operating and maintenance costs or (ii) the amount reasonably
estimated and projected by Landlord to be the current year's total of
such Taxes and operating and maintenance costs. To the extent that such
payments for such twelve (12) month period are less than the amount
actually due (resulting in underpayment for such costs in such twelve
(12) month period) Tenant shall upon demand of Landlord pay to Landlord
an amount equal to such underpayment, or Landlord shall, in case of an
overpayment, credit the overpayment to Rent thereafter payable by
Tenant.
Notwithstanding anything in the preceding paragraph to the contrary,
none of the following, without limitation, shall be included in
operating costs: (i) debt service on any mortgage or other loan, (ii)
costs attributable to capital improvements (except as otherwise
specifically permitted in Section 9.1) as defined by generally accepted
accounting principles, (iii) expenses of leasing space (including,
without limitation, leasing commissions, advertising, public relations
and promotions), (iv) depreciation of improvements which the Internal
Revenue Service requires to be depreciated, (v) costs of repairing
damage covered by fire and extended coverage, (vi) costs of repairing
damage for which Landlord receives reimbursement from others.
5.3 TENANT'S RIGHT TO AUDIT. Landlord shall keep good and accurate
books and records in accordance with generally accepted accounting
principles concerning operating expenses for a period of at least two
(2) years after the close of the calendar year. Tenant shall have the
right to audit Landlord's records, at Tenant's sole and full cost and
expense, to verify the accuracy of the final actual annual invoice for
Tenant's contribution hereunder. Written notice of Tenant's intention
to audit must be received by Landlord within thirty (30) days of
Landlord's submitting the year's final actual invoice; and said audit
must be commenced within thirty (30) days of said notice of intention.
Said audit must be pursued to completion once begun, without stoppage or
postponement, and same must be performed at Landlord's place of business
during the hours of 9:00 A.M. to 4:30 P.M., on business days. In the
event an overcharge by Landlord or an overpayment by Tenant is proven to
have occurred, Landlord shall refund the amount of same within thirty
(30) days and shall include with said refund interest at the rate of ten
(10%) percent per annum.
ARTICLE VI
----------
Use of the Premises
6.1 USE OF THE PREMISES. The premises shall be used and occupied for
the purpose specified in Section 1.2, and for no other use or purpose
whatsoever, and contained in said Section 1.2. The use of the Premises
must be in compliance with rules and regulations promulgated for the
Park by Landlord which are now or hereafter in effect and of which
Tenant has notice and in compliance with all applicable laws, ordinances
and regulations of all governmental or quasi- governmental authorities
and of all insurance companies insuring the Premises, or the Center, or
any portion thereof.
In this connection it is understood that Tenant shall not be permitted
to engage in any business activities in the parking areas and other
common areas (although Tenant's dumpsters will be placed in the area
appurtenant to the building) of the Premises or in the common areas of
the Park, without the written permission of Landlord and that all signs
outside of the Premises and all displays which are visible outside of
the Premises and all displays which are visible outside of the Premises,
shall be subject to the approval of Landlord which approval shall not be
unreasonably withheld. It is understood that Tenant shall not be
permitted to use any areas adjacent to the Premises, or any areas
designated for parking purposes, for the storage of any materials used
in connection with Tenant's business. Any unauthorized use of the
Premises or areas adjacent to the Premises or areas designated for
parking shall constitute a default by Tenant under the terms of this
Lease, and treated as a default under Section 13.1 with all applicable
rights.
ARTICLE VII
-----------
Services, Utilities and Repairs
7.1 SERVICES, UTILITIES AND REPAIRS. Landlord shall initially provide
systems to maintain the heat and cooling in the Premises and such system
and all other mechanical system services to Premises shall be in good
operating condition as of the Commencement Date.
Tenant shall, at its expense, pay for all utilities, including heat,
water, gas, and electricity used by Tenant on the Premises. Tenant
shall also maintain the heating, plumbing and gas systems. In this
connection, Landlord shall keep in full force and effect a full service
maintenance contractinsuring the performance of Tenant of its
obligations hereunder and insuring that the HVAC systems shall be in
good operating condition throughout the term without further expense of
Tenant. Tenant shall pay the cost of said contract upon receipt of a
bill for same (not greater than one (1) year in advance) from Landlord,
provided Tenant shall not be liable for the cost of the maintenance
contract in excess of a non full service/new equipment contract's cost.
Tenant shall maintain and repair at its expense, all portions of the
Premises, other than those which Landlord is obligated to maintain or
repair as set forth above, including but not limited to plate and window
glass both affecting the interior of the Premises and the exterior of
the Building relating to the Premises; Tenant shall also maintain and
repair any obligations that Landlord is obligated to maintain and to
repair as set forth above, when then same is necessary because of the
act or neglect of Tenant or its agents, servants, or invitees. Tenant
shall maintain plate and glass insurance in such form and amount and
with such companies as Landlord shall require. Tenant shall keep the
areas and walkways appurtenant to the Premises free and clear of rubbish
and debris and shall store its refuse and rubbish in receptacles of
Tenant's, which are approved by Landlord and in areas to be approved by,
Landlord, which approval shall not be unreasonably withheld.
ARTICLE VIII
------------
Assignment and Subletting
8.1 PROCEDURE.
a. Tenant will not, by operation of law or otherwise, assign, mortgage
or encumber this Lease, nor sublet or permit the Premises or any part
thereof to be used by other, without Landlord's prior expressed written
consent in each instance. The consent by Landlord to any assignment or
subletting shall not in any manner be construed to relieve Tenant from
obtaining Landlord's expressed written consent to any other or further
assignment or subletting nor shall any such consent by landlord serve to
relieve or release Tenant form its obligations to fully and faithfully
observe and perform all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed.
b. If Tenant shall desire to assign or to sublet the Premises, Tenant
shall give notice thereof to Landlord.
c. Tenant shall submit to Landlord in writing (i) the name of the
proposed assignee or subtenant; (ii) the terms and conditions of the
proposed assignment or subletting; (iii) the nature and character of the
business and credit of the proposed assignee or subtenant, and any other
information reasonably requested by the Landlord.
Landlord's consent to any such proposed assignment or subletting shall
not be unreasonably withheld or unduly delayed, provided, however, that
Landlord may withhold consent thereto if in the exercise of its sole
judgment it determines that:
1. The financial condition or general reputation of the proposed
assignee or subtenant are not consistent with the extent of the
obligation undertaken by the proposed assignment or sublease.
2. The proposed use of the Premises is not appropriate for the Building
or in keeping with the character of the existing tenancies or
permitted by the Tenant's Lease (but the foregoing shall not be
deemed to enlarge the purposes for which the Premises are
permitted to be used as set forth in this Lease).
3. The nature of the occupancy of the proposed assignee or subtenant
will cause an excessive density of employees or traffic or make
excessive demands on the Building's services or facilities or in
any way will lessen the character of the Building.
d. As a condition of Landlord's consent to any assignment or
subletting, each assignee of this Lease shall assume in writing all of
the terms, covenants and conditions of this Lease on the part of Tenant
hereunder to be performed and observed and an original or duplicate
original of the instrument of assignment and assumption or of the
sublease agreement shall be delivered to Landlord within five (5) days
following the making thereof. Any instrument of sublease shall
specifically state that such sublease is subject to all of the terms,
covenants and conditions of this Lease (but in the case of a sublet,
solely with respect to the sublet portion of the Premises).
If Tenant shall duly comply with all of the foregoing then, as
aforesaid, Landlord shall not unreasonably withhold or unduly delay its
consent to such assignment or subletting, provided further, however, and
on condition that at the time of requesting Landlord's consent Tenant
shall pay to Landlord the sum of $100.00 as a processing fee for each
assignment and/or subletting.
e. It is agreed that if Landlord shall not exercise any of its
foregoing options and shall consent to such assignment or subletting,
and Tenant shall thereupon assign this Lease or sublet all or any
portion of the Premises, then and in that event Tenant shall pay to
Landlord, as additional rent, (1) in the event of an assignment, the
amount of all monies, if any, which the assignee has agreed to and does
pay to Tenant in consideration of the making of such assignment less the
costs of the transaction, including but not limited to any brokerage
fees, advertising and alteration costs; and (2) in the event of a
subletting that amount, if any, by which the Minimum Rent and additional
rent payable by the sublessee to Tenant shall exceed the Minimum Rent
plus additional rent allocable to that part of the Premises affected by
such sublease, pursuant to the provisions of this Lease plus the
amounts, if any, payable by such sublessee to Tenant pursuant to any
side agreement as consideration (partial or otherwise) for Tenant making
such subletting less the costs of the transaction. Such additional rent
payments shall be made monthly within five (5) days after receipt of the
same by Tenant or within five (5) days after Tenant is credited with the
same by the assignee or sublessee. At the time of submitting the
proposed assignment or sublease to Landlord, Tenant shall certify to
Landlord in writing whether or not the assignee or sublessee has agreed
to pay any monies to Tenant in consideration of the making of the
assignment or sublease other than as specified and set forth in such
instruments, and if so Tenant shall certify the amounts and time of
payment thereof in reasonable detail.
f. If this Lease shall be assigned, or if the Premises or any part
thereof be sublet or occupied by any person or persons other than
Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, subtenant or occupant and apply the net amount collected
(which may be treated by Landlord as rent or as use and occupancy) to
the rent herein reserved but no such assignment, subletting, occupancy
or collection of rent shall be deemed a waiver of the covenants in this
Article, nor shall it be deemed acceptance of the assignee, subtenant or
occupant as a Tenant, or a release of Tenant from the full performance
by Tenant of all the terms, conditions an covenants of this Lease.
g. Each permitted assignee or transferee shall assume and be deemed to
have assumed this Lease and shall be and remain liable jointly and
severally with Tenant for the payment of the rent, additional rent and
adjustments of rent, and for the due performance of all the terms,
covenants, conditions and agreements herein contained on Tenant's part
to be performed for the term of this Lease. No assignment shall be
binding on Landlord unless, as hereinbefore provided, such assignee or
Tenant shall deliver to Landlord a duplicate original of the instrument
of assignment which contains a covenant of assumption by the assignee of
all of the obligations aforesaid and shall obtain from landlord the
aforesaid written consent prior thereto. Any assignment, sublease or
agreement permitting the use and occupancy of the Premises to which
Landlord shall not have expressly consented in writing shall be deemed
null and void and of no force and effect.
8.2 SALE OF STOCK. If Tenant is a corporation but not a publicly
traded corporation, Tenant agrees that if there shall be a sale or
transfer of the legal or beneficial interest of fifty percent (50%) or
more of the stock in Tenant as hereinbelow specially defined (whether
such sale occurs at one time or at intervals so that, in the aggregate,
over the term of this Lease, such a transfer shall have occurred),
Landlord shall have the right to cancel and terminate this Lease by
giving notice of Landlord's desire to do so at any time prior to the
expiration of sixty (60) days after notice from Tenant to Landlord of
any such transfer, all with the same force and effect as if the date of
such notice from Landlord were the date originally set forth for the
expiration of the term hereof. However, Landlord shall not have such
right to cancel and terminate this Lease if Landlord consents to such
sale, the criteria relating to the granting of such consent being the
same as the criteria for landlord's consent to an assignment of this
Lease, set forth in Article VIII hereof. A sale or transfer of stock
shall in no event abrogate the guaranty obligations of any guarantor of
Tenant's obligations.
The terms "sale" shall include any transfer other than (i) a transfer by
operation of law upon the death of a stockholder and the devolution of
the stock of such stockholder to his legal representatives, heirs or
legatees, or (ii) inter vivos transfers to members of the families of
the stockholders now controlling Tenant or trusts for the benefit
thereof, and such term "sale" shall also not include a sale to another
corporation listed on the major stock exchange. For purposes of this
Section 8.2 the "Tenant" means the Tenant or any corporation of which
Tenant now or hereafter is a subsidiary, or, of which Tenant's parent is
now, or then, a subsidiary, or which corporation otherwise controls,
directly or indirectly, Tenant.
8.3 FURTHER LIMITATIONS. In no event shall Landlord be obligated
either to consent to any proposed assignment or subletting or to elect
to terminate the Lease if at the time of proposal of assignment or
subletting, Tenant is in default under the terms and conditions of this
Lease.
8.4 EXCLUSIONS. Notwithstanding anything to the contrary or which
could be construed to the contrary contained in Article VIII, Tenant
may, without Landlord's consent (and without Section 8.2, or the fee
referred to in Section 8.1(d) being applicable) assign this Lease to (a)
any corporation or entity which shall own or control all of the issued
and outstanding stock of Tenant, or (b) any corporation or entity whose
issued and outstanding capital stock shall be owned by the same
shareholders who own or control the issued and outstanding capital stock
of Tenant and/or Tenant's parent, or (c) any corporation or entity into
which Tenant may merge or to whom it may sell all or substantially all
of its assets, or which may result in the consolidation of Tenant with
any other corporation or entity, or (d) any entity which is under the
control of Tenant, provided in all cases that the financial strength and
net worth of the resulting or successor corporation or entity [under
8.4(a), (b) and (c)] is at less equal to that of Tenant at the time of
such assignment, sale, merger or consolidation.
ARTICLE IX
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Compliance with Law, Etc.
9.1 COMPLIANCE WITH LAW, ETC. Tenant shall throughout the term of this
Lease, at its sole expense, promptly comply with all present and future
laws and regulations of all federal, state and municipal governments and
appropriate departments, commissions, boards, and officers thereof, and
the orders and regulations of the National Board of Fire Underwriters,
or any policies of insurance affecting the same of which Tenant has
notice, or any other body now or hereafter exercising similar functions,
which may be applicable to the Premises or Tenant's use thereof and
shall hold Landlord harmless from any fine, penalty or other charge that
may be imposed as a result of any such noncompliance. If Landlord is
required to comply with any of the foregoing, then Tenant shall be
required to pay Tenant's Proportionate Share of Landlord's costs
therefore, such payment to be made upon demand by Landlord, provided
that Tenant will not be required to pay, in any Lease Year, more than
the amortized annual amount of said costs as amortized over the useful
life of the improvement or alteration. Any increase in Landlord
insurance premiums caused by Tenant, or its use of the premises, or
normal rate increases shall be paid by Tenant to Landlord upon demand as
additional rent hereunder. Landlord hereby covenants that the Premises
is presently in compliance with the foregoing laws and regulations, or
will be placed in such compliance by Landlord prior to Lease
Commencement Date.
ARTICLE X
---------
Conditions of Premises; Maintenance
10.1 CONDITIONS OF PREMISES; MAINTENANCE. Unless the Landlord shall
have agreed to perform certain work for Tenant, as hereinafter set forth
(hereinafter defined as the "Landlord's Work") Tenant hereby accepts the
Premises and the Building (or if the work is to be performed, then
Tenant accepts the Premises and the Building subject to the completion
of the Landlord's Work) "as is" and in its present condition, but
subject to the obligations and representations of Landlord herein.
10.2 LANDLORD'S WORK. Landlord agrees to perform and complete the
improvements to the Premises described in Exhibit T in a good and
workmanlike manner ("Landlord's Work"). Said Landlord's Work shall be
performed at Landlord's expense and in compliance with law.
ARTICLE XI
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Landlord's Right of Entry
11.1 LANDLORD'S RIGHT OF ENTRY. Landlord shall have the right to enter
upon the Premises from time to time in order to inspect the same and to
perform any work therein as Landlord deems necessary, including without
limitation, maintenance, repairs and replacements therein which Landlord
deems appropriate, or for the purpose of showing the Premises to
Perspective purchasers, lessees or mortgagees, but this right shall be
exercised in such manner as not to unreasonably interfere with Tenant's
use and enjoyment of the Premises.
ARTICLE XII
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Liens
12.1 LIENS. Tenant will not permit any lien for money claimed against
or owing by Tenant to be placed against the Premises during the term
hereof and should any such lien be recorded, Tenant, will within twenty
(20) days after such lien is recorded, pay and discharge same. Should
any such lien be recorded and not be released or discharged, Landlord
may, at Landlord's option (but without obligation so to pay or discharge
such lien), pay and discharge any such lien, at the cost and expense of
Tenant.
ARTICLE XIII
------------
Default by Tenant; Right to Terminate; Damages, Self Help
13.1 DEFAULT BY TENANT; RIGHT TO TERMINATE; DAMAGES; SELF HELP. If
within ten (10) days after written notice Tenant shall fail to pay any
rent payable pursuant to Article III hereof, or additional rent payable
pursuant to Article IV and Article V hereof or make any other payments
when the same are due and payable under the terms of this Lease; or if
for a period of twenty (20) days after notice thereof has been given to
Tenant by Landlord, Tenant shall be in default or fail to perform or
comply with any other term hereof or any duty or obligation imposed upon
it by this lease or any rule or regulation of Landlord (providing,
however, that if such default cannot be reasonably cured within said
twenty (20) day period, Tenant shall fail to commence such cure within
the first five (5) days of said period and thereafter diligently pursue
the same to completion with all due diligence, good faith and in a
commercially reasonable manner); or if the Tenant shall be insolvent, or
there shall be filed by or against Tenant, or any guarantor of Tenant's
obligations hereunder, a petition is bankruptcy or insolvency or for
reorganization, dissolution, liquidation or for the appointment of a
receiver or trustee of all or a portion of Tenant's, or such
guarantor's, property the same is not discharged within sixty (60) days
thereafter or if Tenant or such guarantor makes an assignment for the
benefit of creditors or enters into an arrangement or admits its
inability to pay its debts as they become due; then and in any such
event Landlord shall have the right, at Landlord's option, to enter with
judicial process upon the Premises, without being guilty of trespass,
change the locks thereto, and again have, repossess, and enjoy the same
as if this Lease had not been made, and thereupon this Lease shall
terminate without prejudice, however, to the right of Landlord to
recover from Tenant all rent due and unpaid up to the time of such re-
entry; and, further upon such re-entry all payments of Minimum Rent for
the balance of the term of this Lease shall become due and payable, at
the option of Landlord, or Landlord's successors and assigns, but with
the obligation of Landlord to Tenant to mitigate damages; upon demand by
Landlord, or Landlord's successors or assigns, Tenant shall surrender to
them complete and peaceable possession of the Premises, and Landlord
may, without waiving or postponing any other rights given it by law in
such cases, re-let said Premises, or any part thereof, on such terms as
Landlord, or its successors, deems best, and apply the proceeds of such
reletting, less costs and expenses of Landlord in reletting towards such
costs, and hold Tenant responsible for the difference in such net
proceeds received by Landlord and the rental that would have been paid
by Tenant hereunder. Expenses of Landlord in reletting shall include
attorney's fees actually paid in obtaining and reletting the Premises
and all brokers, finders and similar fees incurred in the course of
reletting and all costs of renovating and redecorating the same.
Without such re-entry as provided in this paragraph, Landlord may
recover possession thereof in any manner permitted by law, including
summary process; it being understood that no demand for rent and no re-
entry for condition broken, as at common law, shall be necessary to
enable Landlord to recover such possession.
ARTICLE XIV
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Alterations and Improvements
14.1 ALTERATIONS AND IMPROVEMENTS. Except for alterations to Tenant's
sales equipment, Tenant shall not make any alterations or improvements
in or to the Premises without the written consent of Landlord which
consent shall not be unreasonably withheld as to interior non-
structural, non-mechanical, non-electrical changes. At Landlord's
option, such improvements or alterations shall be performed by Landlord,
at the cost of Tenant provided Landlord's charge and schedule shall be
competitive and said charge shall not exceed ten percent (10%) of any
responsive and responsible bid tendered by another contractor. Any
approved alteration or improvement shall be done by contractors approved
by Landlord and in a good and workmanlike manner and in a manner so that
the structural integrity of the building in which the Premises is
located shall not be impaired. Tenant shall obtain all necessary
permits and, at Landlord's option shall submit to Landlord architectural
renderings and insurance and lien waivers to Landlord required by
Landlord. Upon the making of such alterations or improvements the same
shall become the property of Landlord; provided, however, that, at its
option, Landlord may, on the termination of this Lease (provided this
election is made by Landlord at the time of its consent) require that
Tenant remove the same at no expense to Landlord and repair any damage
caused by such removal and that the Premises shall be left by Tenant in
the condition that the Premises were in at the commencement of the term
of this Lease, ordinary wear and tear casualty, condemnation and
Landlord's obligations excepted. With respect to the provisions of this
Section 14.1, Tenant shall comply with all governmental requirements;
including but no limited to building, electrical and plumbing codes.
All work performed shall be done in such a manner as not to disturb or
disrupt the operation of the Park or of any other occupants in the Park.
Following completion of any changes, additions or improvements, Tenant
shall furnish Landlord with current "as-built" drawings and
specifications for the Premises reflecting such changes, additions or
improvements made to the Premises. Any increase in the Real Estate
Taxes or insurance premiums on the Park attributable to such change,
addition or improvements shall be paid by Tenant.
ARTICLE XV
----------
Limitation on Landlord's Liability; Tenant's indemnity; Insurance
15.1 LIMITATION ON LANDLORD'S LIABILITY; TENANT'S INDEMNITY; INSURANCE.
Tenant shall look solely to Landlord's then equity interest in the
Building at the time owned, insurance proceeds, and income from the
Building, for recovery of any judgment from Landlord; it being agreed
that neither Landlord (original or successor), nor any partner (general
or limited), associate, executor, participant, principal, agent,
employee, executor, or other fiduciary, beneficiary, officer, or other
person or entity in or of any partnership, association, joint venture,
corporation or other entity, Trust, or Estate from time to time owning
Landlord's interest in this Lease, shall ever be personally liable for
any such judgment, or for the payment of any monetary obligation to
Tenant (it being agreed by Tenant that such exoneration from personal
liability is and shall be absolute and complete with no exception
whatsoever).
With respect to any services to be furnished or obligations to be
performed by Landlord to Tenant, Landlord shall never be responsible for
failure to furnish or perform the same when (and the time for
performance of the same shall be extended for such period as Landlord
is) prevented from doing so by strike, lockout, breakdown, accident,
order or regulation of or by any Governmental authority, or failure of
supply, of inability to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any
cause beyond Landlord's control (financial reasons will not be a
recognized cause hereunder), or for any cause due to any act or omission
of Tenant, Tenant's invitees, customers, servants, agents, employees,
licensees or any person claiming by, through or under Tenant
(collectively "Force Majeure").
Except as otherwise specifically provided herein Landlord shall not be
responsible for the loss of or damage to property or death or injury to
persons, occurring in or about the Premises, or the Building regardless
of the cause thereof, including, without limitation, any loss or damage
caused by: (a) any repairs or alterations, (b) any existing or future
condition, defect, matter or thing in the Premises or the property of
which the Premises are a part, whether caused by Tenant or by Tenant's
guests, its agents, employees or by others, or (c) defective electric
wiring, or the breaking, bursting, stoppage or leaking of any part of
the Premises or the Building, including the plumbing, air conditioning,
heating, fire control sprinkler systems, roof, or gas, sewer or pipes.
In no event shall Landlord ever be liable to Tenant for any indirect,
special, or consequential damages by reason of Landlord's breach or
default of the terms of this Lease or otherwise.
To the maximum extent this Agreement may be made effective, Tenant
agrees to indemnify and save Landlord harmless from and against all
claims of whatever nature arising in or about the Premises or the park
from any act or omission of Tenant, or Tenant's contractors, licensees,
agents, invitees, servants or employees. This indemnity and hold
harmless Agreement shall include indemnity against all costs, expenses
and liabilities occurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof with counsel
acceptable to Landlord, but shall exclude casualty, condemnation and
matters resulting from a failure by Landlord to perform its obligations
hereunder.
Tenant agrees to maintain in full force throughout the term of this
Lease, and thereafter so long as Tenant is in occupancy of any part of
the Premises, a policy of public liability and property damage insurance
under which Landlord is named as additional insured, and under which the
insurer agrees to indemnify and hold Landlord and those in privity of
estate with Landlord, harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents,
injuries and damages mentioned in this section, in the broadest form of
such coverage from time to time available in the State of Connecticut.
Each policy required to be maintained hereunder by Landlord and Tenent
shall contain full waiver of the right of subrogation of such insurance
company against the other party and its officers, directors and partners
and those in privity with the other party and its officers, directors
and partners and those in privity with the other party and shall be non-
cancelable and non-amendable with respect to such party and such party's
designees without ten (10) days prior notice to such other party; a
duplicate original or certificate thereof shall be delivered to such
other party. With respect to the liability policy of Tenent, the
minimum limits of liability of such insurance shall be as specified in
Article I.
ARTICLE XVI
-----------
Damage to Premises
16.1 DAMAGE TO PREMISES. In the event of damage to the Premises by
fire, the elements, or other casualty, Landlord shall have the option,
exercisable within thirty (30) days after such damage, to terminate this
Lease if such damage affects in excess of thirty (30%) percent of the
floor area of the Premises or, to repair the Premises and Landlord shall
give Tenant notice of the estimated date of repair completion. If such
damage renders the Premises untenantable in whole or in such part that it
is impracticable to conduct Tenant's business therein, the rent shall
abate until the damages have been repaired, based on the proportion
that the unused and unoccupied portion of the Premises bears to the
total Premises. If the damage to the Premises is not repaired by
Landlord within a reasonable time, or in any event is not or cannot be
repaired (according to Landlord's aforesaid estimate) within one
hundred eighty (180) days after such casualty, Tenant shall have the
right to terminate this Lease forthwith by giving the Landlord notice of
such termination no later than twenty (20) days after such one hundred
eighty (180) day period has elapsed or after getting Landlord's estimated
repair completion date if same exceeds one hundred eighty (180) days.
The one hundred eighty (180) day period is "time is of the essence",
and Force Majeure extension shall not be applicable. If Landlord or
Tenent shall not terminate this Lease as permitted herein, Landlord
shall proceed to repair the Premises with diligence and shall have
recourse to Landlord's casualty insurance policy for the cost of such
reconstruction and Landlord shall not look to Tenent for such costs.
ARTICLE XVII
------------
Condemnation
17.1 CONDEMNATION. If any material part of the Premises are taken in
condemnation proceedings or by any right of eminent domain for public or
quasi- public use, this Lease, at the option of Landlord, shall
terminate upon such taking. If all of the Premises or a substantial
amount of the appurtenant parking or ingress/egress are taken either
party may terminate the Lease. Such right of termination shall be
effectuated by giving notice from one party to the other. Landlord
alone, and not Tenant, shall have the right to participate in and
receive damages and/or compensation for any such taking and Tenant will
not bring any action or seek to recover damages for such taking and
Tenant hereby grants to Landlord all of the Tenant's rights, if any, to
such damages and covenants to execute and deliver such further
instruments of assignment thereof as the Lessor may from time to time
request.
Notwithstanding anything contained herein, Tenant shall be entitled to
any amount to the extent it shall not reduce Landlord's award, that may
be awarded as damages or paid as a result or in a settlement of such
proceeds or threat for damages to Tenant's business and fixtures and
moving expenses.
ARTICLE XVIII
-------------
Subordination
18.1 SUBORDINATION. This Lease is and shall be subordinate to any
mortgage or mortgages (the "Mortgagee") now or hereafter encumbering the
Premises or the Building or any portion therefor interest therein,
without the necessity of any further document (provided Mortgagee
furnishes Tenant with a commercially reasonable nondisturbance agreement
simultaneously with the effective date of such subordination) . Tenant
agrees to execute and deliver any further commercially reasonable
document or instruments which may be required to further effectuate said
subordination and to attorn to the holder of any such mortgage if the
holder subsequently becomes the owner of the Premises.
ARTICLE XIX
-----------
Notices
19.1 NOTICES. Whenever, by the terms of this Lease, notice shall or may
be given either to Landlord or to Tenant, such notice shall be in
writing, and shall be personally delivered or mailed by registered or
certified mail, postage prepaid, and shall be valid upon receipt by
addressee unless the last subparagraph hereof shall apply.
If intended for Landlord, addressed to Landlord at the address set forth
elsewhere in this Lease, or to such other address or addresses as may
from time to time hereafter be designated in writing by Landlord or
Landlord's agent.
If intended for Tenant, addressed to Tenant at the address or addresses
as may from time to time hereafter be designated by Tenant in writing,
or at the address specified in this Lease or at the Premises and to
George J. Taylor, Jr at 93 Farmstead Lane, Windsor, CT 06095, with a
courtesy copy (the delivery of which will not affect the validity of a
notice otherwise validly given) to David R. Glissman, Esquire,
MacDermid, Reynolds and Glissman, P.C., 86 Farmington Avenue, Hartford,
Connecticut 06105.
In the event the notice mailed with sufficient postage as above provided
shall not be received upon attempted delivery thereof to the proper
address and shall be returned by the Postal Service to the sender
because of a refusal of receipt, the absence of a person to receive, or
otherwise, the time of the giving of such notice shall be the time of
such attempted delivery.
ARTICLE XX
----------
Quiet Enjoyment
20.1 QUIET ENJOYMENT. Upon compliance with the terms and conditions of
this Lease, Tenant may peaceably and quietly have, hold and enjoy the
Premises for the term of this Lease and any extension of said term
provided for herein.
ARTICLE XXI
-----------
Expiration
21.1. EXPIRATION. At the expiration of the term of this Lease or any
extension thereof, Tenant will quit and surrender the Premises in as
good a state and condition as reasonable use and wear thereof will
permit, damage by the elements, fire and other casualty and obligations
of Landlord excepted. Any holding over by Tenant shall not operate,
except by written Agreement, to extend or renew this Lease, and no
tenancy of any duration shall be created thereby, provided, however, if
Tenant does hold over, without creating any additional estate in Tenant,
the Minimum Rent payable pursuant to Article III hereof shall be double
such Minimum Rent during the period of such holding over.
ARTICLE XXII
------------
Control of Park and Common Areas of Park
22.1 CONTROL OF BUILDING AND PARK. All automobile parking areas,
driveways, walkways, entrances and exits thereto, and other facilities
furnished by Landlord in the Park on which the Premises are located
shall at all times be subject to the reasonable rules and regulations
exclusive control and management of Landlord, and Landlord shall have
the right from time to time to establish, modify and enforce reasonable
rules and regulations with respect to all facilities and areas mentioned
in this Paragraph. Tenant shall have the exclusive use, however, of the
area identified as "Parking Area" on Exhibit A attached hereto.
ARTICLE XXIII
-------------
Security Deposit
23.1 SECURITY DEPOSIT. Tenant has deposited with Landlord the sum
specified in Section 1.2, if any, as security for the faithful
performance and observance by Tenant of the terms of this Lease. In the
event Tenant defaults under this Lease, Landlord may use, apply or
retain the whole or any part of the security so deposited to the extent
required for the payment of any Fixed Rent and additional rent or any
sum as Landlord may expend or may be required to expend by reason of
Tenant's default under this Lease, including, without limitation, any
damages or deficiency in the reletting of the Premises, whether such
damage or deficiency accrued before or after summary proceedings or
other re-entry by Landlord. If a part or all of the security deposit
shall be applied as herein provided and this Lease shall not terminate
then Tenant shall deposit with Landlord such additional sum necessary to
bring the security deposit to its original amount. In the event that
Tenant shall fully and faithfully comply with all of the terms of this
Lease, the security (without interest or earnings thereon) shall be
returned to Tenant after the date fixed at the end of this Lease and
delivery of the Premises or the Landlord may transfer the security to
such transferee and the Landlord shall thereupon be relieved from all
further liability for the return of such security; Tenant shall not
assign or encumber such security deposit.
ARTICLE XXIV
------------
Failure to Give Possession
24.1 FAILURE TO GIVE POSSESSION. If Landlord is unable to give
possession of the Premises on the date of commencement of the term
hereof, because of the holding over or retention of possession of any
lessee, or other occupant, or Landlord has not completed the Work,
Landlord shall not be subject to any liability for failure to give
possession on such date and the validity of this Lease shall not be
impaired nor shall the same be construed to extend the term of this
Lease, but the rent payable hereunder shall be abated (provided Tenant
is not responsible for the inability to obtain possession) until
Landlord shall have given Tenant written notice that the Premises are
substantially ready for Tenant's occupancy, whereupon such abatement
shall cease. If the Premises are not delivered within ninety (90) days
following the date hereof, Tenant shall have the right to terminate
their Lease, if such right is exercised prior to Landlord's notice of
delivery.
ARTICLE XXV
-----------
Fees and Expenses; Performance or Payment by Landlord
25.1 FEES AND EXPENSES; PERFORMANCE OR PAYMENT BY LANDLORD. If Tenant
shall default (after applicable cure periods) in the observance or
performance of any term on Tenant's part to be observed or performed
hereunder, then, Landlord may immediately, or at any time thereafter,
and, unless otherwise provided herein, without notice perform the same
for the account of Tenant. If Tenant fails to make any payment of
Minimum Rent, or additional rent hereunder when due or Landlord makes
any expenditures or incurs any obligations for the payment of money in
connection with a default of Tenant hereunder or performs any
obligations to be performed hereunder by Tenant and not so performed by
Tenant, including, without limitation, reasonable attorneys' fees, in
instituting, persecuting or defending any action or proceeding, such
unpaid rent, and sums paid or obligations incurred shall be due, with
interest at the rate of eighteen percent (18%) per annum from the date
that such rent was due or, Landlord cured a default of Tenant hereunder,
from the date of such payment by Landlord (or the date such obligation
is incurred by Landlord) to the date of payment by Tenant, and shall be
paid by Tenant to Landlord within five (5) days of rendition of any bill
or statement to Tenant therefor.
ARTICLE XXVI
------------
Waiver of Trial by Jury, Counterclaim and Right to Notice of Hearing
26.1 WAIVER OF TRIAL BY JURY, COUNTERCLAIM AND RIGHT TO NOTICE OF
HEARING. The Parties hereto hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the Parties hereto
against the other on any matters arising out of or connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises and any emergency, statutory or other remedy.
In the event Landlord commences any summary proceeding for possession of
the Premises, Tenant hereby waives the right to interpose any
counterclaim in any such proceeding.
ARTICLE XXVII
-------------
Delivery, Recording and Execution of Lease
27.1 DELIVERY OF LEASE. No rights are to be conferred upon Tenant until
this Lease has been signed by Landlord, and an executed copy of the
Lease has been delivered to Tenant. Employees or agents of Landlord
have no authority to make or agree to make a Lease or any other
Agreement or undertaking in connection herewith. The submission of this
document for examination and negotiation does not constitute an offer to
Lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and
delivery hereof by both Landlord and Tenant. All negotiations,
considerations, representations and understandings between Landlord and
Tenant, or any agent or other representative thereof, are incorporated
herein and no prior representations, understandings or agreements from
one party to the other shall be binding upon the parties. The terms
hereof may be modified or altered only by written Agreement between
Landlord and Tenant, and no act or omission of any employee or agent of
Landlord shall alter, change or modify any of the provisions hereof.
27.2 RECORDING. Tenant shall not record this Lease, and any such
recording will be a default hereunder, and at the sole option and
election of Landlord, any such recording shall automatically give
Landlord the right to terminate this Lease by written notice to Tenant
effective as of the date of such recording. Each party shall, on the
request of the other, execute a so-called Notice of Lease or short form
Lease in recordable form and complying with applicable law and
reasonably satisfactory to Landlord's attorneys. In no event shall such
document set forth the rental or other charges payable by Tenant under
this Lease; and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease, and is not
intended to vary the terms and conditions of this Lease.
27.3 EXECUTION OF LEASE. The person signing this Lease on behalf of
Tenant certifies that he has full authority to execute the same on
behalf of Tenant and that this Lease has been duly authorized, executed
and delivered by Tenant and is binding upon Tenant in accordance with
its terms.
ARTICLE XXVIII
--------------
Successors and Assigns
28.1 SUCCESSORS AND ASSIGNS. Subject to the terms hereof, all of the
terms of this Lease shall inure to the benefit of and be binding upon
the respective heirs, executors, administrators, successors (and to the
extent permitted hereunder) and assigns of the Parties hereto.
28.2 In the event Landlord decides to put the Premises up for sale on
the open market, Landlord shall give notice of this fact to Tenant.
ARTICLE XXIX
------------
Rules and Regulations
29.1 RULES AND REGULATIONS. The rules and regulations appended to this
Lease, if any, are hereby made a part of this Lease, and Tenant agrees
to comply with and observe the same. Tenant's failure to keep and
observe said rules and regulations following notice of such failure and
passing of the applicable grace period shall constitute a default under
the terms of this Lease. Landlord reserves the right, from time to
time, to adopt or amend or supplement said rules and regulations and to
reasonably adopt and promulgate additional rules and regulations
applicable to the Premises and to the Park. Notice of such additional
rules and regulations, and amendments and supplements, if any, shall be
given to Tenant, and Tenant agrees thereupon to comply with and observe
all such rules and regulations, and amendments thereto and supplements
thereof, provided the same shall be reasonable and shall apply uniformly
to all Tenants of Landlord.
ARTICLE XXX
-----------
Governing Law
30.1 GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State wherein the Premises are
located, as said laws may exist from time to time.
ARTICLE XXXI
------------
No Waiver
31.1 NO WAIVER. No provisions of this Lease shall be deemed to have
been waived by Landlord unless such waiver is in writing signed by
Landlord. Landlord's waiver of a breach of any term or condition of
this Lease shall not prevent a subsequent act, which would have
originally constituted a breach, from having the effect of any original
breach. Landlord's receipt of rent with knowledge of a breach by Tenant
of any term or condition of this Lease shall not be deemed a waiver of
such breach. Landlord's failure to enforce against Tenant or any other
Tenant of the Building any of the rules and regulations made by Landlord
shall not be deemed a waiver of such rules or regulations. Landlord
shall not be required to enforce any such rules against Tenant or any
other occupant of the Building but Landlord may assign to any other such
occupant its right to enforce such rules against Tenant. No act or
thing done by Landlord, its agents or employees during the Lease term
shall be deemed an acceptance of a surrender of the Premises and no
agreement to accept a surrender of the Premises shall be valid unless in
writing signed by Landlord. The delivery of keys to any of Landlord's
agents or employees shall not operate as a termination of this Lease or
a surrender of the Premises. No payment by Tenant, or receipt by
Landlord, of a lesser amount than the rent due shall be deemed to be
other than on account and as allocated in Landlord's sole discretion,
nor shall any enforcement or statement on any check or any letter
accompanying or payment as rent be deemed an accord and satisfaction and
Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other
remedy available to Landlord.
ARTICLE XXXII
-------------
No Brokerage
32.1 NO BROKERAGE. Tenant warrants and represents that Tenant has not
dealt with any broker, except as named in Section 1.2 (who will be paid
by Landlord), in connection with the consummation of this Lease; and in
the event of any brokerage claims against Landlord predicated upon prior
dealings with the Tenant named herein, Tenant agrees after notice to
hold harmless, defend and indemnify Landlord against any such claim.
ARTICLE XXXIII
--------------
Invalidity of Particular Provisions
33.1 INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Lease, or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
ARTICLE XXXIV
-------------
Estoppel Certificates
34.1 ESTOPPEL CERTIFICATES. Tenant shall, without charge, at any time
from time to time within ten (10) days after written request by
landlord, certify by written instrument, (in recordable form if
requested) duly executed, acknowledged and delivered to Landlord, or to
any mortgagee or proposed mortgagee, or any purchaser or proposed
purchaser, or to any other entity reasonably specified by Landlord:
a. The Term Commencement Date, the Rent Commencement Date,
the original expiration date, the present expiration date, and the
existence, number, and term of any Option periods.
b. Whether or not Landlord is in default, in any way, in the
performance of any of the covenants, conditions and agreements to
be performed by Landlord in accordance with this Lease and if
there is any such default, specifying the nature of same.
c. What the amount of rent is pursuant to the terms of this
Lease, and the dates, if any, to which the Rental and other
charges hereunder have been paid in advance.
d. That this Lease is unmodified and in full force and
effect, or in the event that there have been modifications, that
the same is in full force and effect as modified and setting forth
the modifications.
e. Whether or not there are then any existing claims,
setoffs or defenses against the enforcement of any of the
agreements, terms, covenants or conditions hereof upon the part of
Tenant to be performed or complied with, and if so, specifying the
same.
f. The status of any other matter relative to this Lease or
the relation of the Parties.
Upon the failure of Tenant to deliver such certificates within the time
above specified, such failure shall be deemed tantamount to the delivery
of the certificate by Tenant to Landlord to the effect that this lease
is valid and in full force and effect and that no party at the time is
in default under any of the terms of this Lease, and no advance payments
have been made.
Or in the alternative at Landlord's option, by failing to respond within
the said ten (10) days the Tenant hereby irrevocably appoints Landlord
as Attorney-In-Fact for the Tenant, with full power and authority to
execute and deliver in the name of the Tenant any such certificates.
ARTICLE XXXV
------------
Security Agreement
35.1 SECURITY AGREEMENT. Intentionally Omitted.
ARTICLE XXXVI
-------------
Provisions with Respect to Bankruptcy
36.1 BANKRUPTCY CODE ASSIGNMENTS. If the Lease is assigned to any
person or entity pursuant to the provisions of the Bankruptcy Code, 11
U.S.C.s 191 et seq., or otherwise, as now existing or hereafter amended
(the "Bankruptcy Code"), any and all monies or other considerations
payable or otherwise to be delivered in connection with such assignment
shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy
Code. Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord
shall be held in trust for the benefit of Landlord and be promptly paid
to or turned over to Landlord.
36.2 LANDLORD'S RIGHT OF FIRST REFUSAL. If Tenant or the trustee
assumes this Lease and proposes to assign the same pursuant to the
provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant or the trustee, then notice of such proposed
assignment, setting forth (i) the name and address of such person, (ii)
all of the terms and conditions of such offer, and (iii) the adequate
assurance to be provided Landlord to assure such person's future
performance under the Lease shall be given to Landlord by Tenant or the
trustee no later than twenty (20) days after receipt by Tenant or the
trustee, but in any event no later than ten (10) days prior to the date
that Tenant or the trustee shall make application to a court of
competent jurisdiction for authority and approval to enter into such
assignment and assumption, and Landlord shall thereupon have the prior
right and option, to be exercised by notice to Tenant or the trustee
given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide
offer made by such person, less any brokerage commissions and any costs
and expenses of preparing the Premises for the new tenant which may be
payable out of the consideration to be paid by such person for the
assignment of this Lease.
36.3 ASSIGNEE'S LIABILITY. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code shall be
deemed without further act or deed to have assumed all of the
obligations arising under this Lease on and after the date of such
assignment. Any such assignee shall upon demand execute and deliver to
Landlord an instrument confirming such assumption.
36.4 ITEMS INCLUDED IN RENT. Notwithstanding anything in this Lease to
the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as rent,
including, without limitation, the applicable Annual Minimum Rent and
additional rent, shall constitute rent for the purpose of Section
502(b)(6) of the Bankruptcy Code.
ARTICLE XXXVII
--------------
Hazardous Materials
37.1 HAZARDOUS MATERIALS. Tenant (nor Tenant's agents, servants,
employees, contractors, subtenants, assignees, invitees or guests) shall
not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically or chemically active or other
hazardous substances, or materials. Tenant shall not allow the storage
or use of such substances or materials in any manner not sanctioned by
law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought
into the Project any such materials or substances except to use in the
ordinary course of Tenant's business, and then only after written notice
is given to Landlord of the identity of such substances or materials.
Without limitation, hazardous substances and materials shall include
those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall
ever require testing to ascertain whether or not here has been release
of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Premises. In addition, Tenant shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief
regarding the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this lease from any release of hazardous materials
on the Premises occurring while Tenant is in possession, or elsewhere if
caused by Tenant or persons acting under Tenant. The within covenants
shall survive the expiration or earlier termination of the lease term.
ARTICLE XXXVIII
---------------
38.1 FIRST OPTION TO EXTEND. Provided the Tenant is not in default,
Tenant shall have one (1) option to extend the Term of this Lease for a
further period of three (3) years and no months provided, however, that
Tenant shall give Landlord notice of its intention to extend not less
than six (6) months prior to the expiration of the original Term of this
Lease. Said notice shall be effective only if given in the timely
manner described (time being of the essence in relation to said notice)
and provided Tenant is not in default under the Lease on the date of the
notice nor on the date the original Term of the Lease is scheduled to
expire. Such extended term shall be subject to all of the agreements,
covenants and conditions set forth in this Lease except for (i) the
Minimum Rent payable pursuant to Article III hereof which shall be as
set forth hereinafter, and except for (ii) further Options to Extend, as
to which there shall be one (1). It is agreed and understood that the
annual Minimum Rent for the extended period shall be equal to ninety-
five (95%) percent of fair market rental value rate of the Premises as
of the Commencement Date of this extended term.
The Parties shall execute an Amendment to this Lease at least three (3)
months prior to the said original expiration date memorializing said new
Minimum Rent.
If the Landlord and the Tenant are unable to mutually agree in writing
upon the said fair market rental value with thirty (30) days after
Tenant's exercise of its rights hereunder the said fair market rental
value shall be determined by a panel of two appraisers who are members
of the American Institute of Real Estate Appraisers one of whom shall be
selected by landlord and one by Tenant. The two appraisers shall
attempt to agree on the said value and if they cannot agree within
thirty (30) days, a third shall be selected by the two so nominated and
a decision by the majority of these three shall be accepted as final and
binding upon the Landlord and Tenant. All costs and expenses of said
appraisers shall be borne in equal shares by the Landlord and the
Tenant, except the said costs and expenses shall be borne by the party
requesting this appraisal procedure if the figure thus determined is
within ten (10%) percent of the figures proffered in writing by the
other party prior to commencing selection of the appraisers.
If Landlord or the Tenant shall fail to select an appraiser in
accordance with the provisions hereof and such failure shall continue
for a period of twenty (20) days after written notice thereof by either
to the other, then in that event the appraisers selected by the party
selecting an appraiser shall alone determine the fair market value and
the costs of such appraisal shall be paid in equal shares by the
Landlord and the Tenant.
ARTICLE XXXIX
-------------
39.1 SECOND OPTION TO EXTEND. Provided the Tenant is not in default and
further provided Tenant has validly exercised its First Option to
Extend, Tenant shall have one (1) option to extend the term of this
Lease for a further period of three (3) years and no months provided,
however, that Tenant shall give Landlord written notice of its intention
to extend not less than six (6) months prior to the expiration of the
term of this Lease as extended by the First Option to Extend. Said
notice shall be effective only if given in the timely manner described
(time being of the essence in relation to said notice) and provided
tenant is not in default under the Lease on the date of the notice nor
on the date the original term of the Lease is scheduled to expire as
extended by the First Option to Extend. Such extended term shall be
subject to all of the agreements, covenants and conditions set forth in
this Lease except for (i) the Minimum Rent payable pursuant to Article
III hereof which shall be as set forth hereinafter, and except for
further Options to Extend as to which there shall be none. It is agreed
and understood that the annual Minimum Rent for the extended period
shall be equal to ninety-five (95%) percent of fair market rental value
rate of the Premises as of the Commencement Date of this extended term.
The Parties shall execute an Amendment to this Lease at least three (3)
months prior to the said original expiration date memorializing said new
Minimum Rent.
If the Landlord and the Tenant are unable to mutually agree in writing
upon the said fair market rental value with thirty (30) days after
Tenant's exercise of its rights hereunder the said fair market rental
value shall be determined by a panel of two appraisers who are members
of the American Institute of Real Estate Appraisers one of whom shall be
selected by landlord and one by Tenant. The two appraisers shall
attempt to agree on the said value and if they cannot agree within
thirty (30) days, a third shall be selected by the two so nominated and
a decision by the majority of these three shall be accepted as final and
binding upon the Landlord and Tenant. All costs and expenses of said
appraisers shall be borne in equal shares by the Landlord and the
Tenant, except the said costs and expenses shall be borne by the party
requesting this appraisal procedure if the figure thus determined is
within ten (10%) percent of the figures proffered in writing by the
other party prior to commencing selection of the appraisers.
If Landlord or the Tenant shall fail to select an appraiser in
accordance with the provisions hereof and such failure shall continue
for a period of twenty (20) days after written notice thereof by either
to the other, then in that event the appraisers selected by the party
selecting an appraiser shall alone determine the fair market value and
the costs of such appraisal shall be paid in equal shares by the
Landlord and the Tenant.
IN WITNESS WHEREOF, the Parties hereto have set their hands and seals in three
(3) counterpart copies, each of which counterpart copy shall be deemed an
original for all purposes, as of the date and year first above written.
WITNESSES: LANDLORD:
TOLLAND ENTERPRISES
- ------------------------------
- ------------------------------ BY: /s/ Robert Beckenstein
----------------------
TENANT:
FARMSTEAD TELEPHONE GROUP, INC.
_____________________________
____________________________ BY: /s/ George J. Taylor, Jr.
-------------------------
George J. Taylor, Jr.
President, Chairman and Chief Executive
Officer
Exhibit 11
EXHIBIT 11. STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
(UNAUDITED)
Three and Nine Months Ended September, 30, 1996 and 1995
(In thousands, except per share amounts)
<TABLE>
Three months Nine months
ended 9/30 ended 9/30
---------------- ----------------
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Weighted average shares outstanding 2,291 2,138 2,180 2,080
Net effect of dilutive stock options and warrants
based on the treasury stock method using average
market price 26 36 23 43
------ ------ ------ ------
Total weighted average shares 2,317 2,174 2,203 2,123
====== ====== ====== ======
Net income (loss) $ 125 $ (492) $ 659 $ (581)
====== ====== ====== ======
Per share amount $ .05 $ (.23) $ .30 $ (.27)
====== ====== ====== ======
</TABLE>
In calculating weighted average shares, all securities convertible into
common stock are excluded if their inclusion would have the effect of
increasing the earnings per share amount or decreasing the loss per share
amount otherwise computed. Fully diluted earnings per share is not
presented because it is immaterial and anti-dilutive in both periods.
For purposes of this schedule, weighted average shares and per share amounts
shown for each period presented have been restated to give effect to a one-
for-ten reverse stock split implemented August 13, 1996.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 3,194
<SECURITIES> 0
<RECEIVABLES> 4,302
<ALLOWANCES> 0
<INVENTORY> 3,295
<CURRENT-ASSETS> 10,953
<PP&E> 485
<DEPRECIATION> 0
<TOTAL-ASSETS> 11,780
<CURRENT-LIABILITIES> 4,867
<BONDS> 0
0
0
<COMMON> 3
<OTHER-SE> 6,910
<TOTAL-LIABILITY-AND-EQUITY> 11,780
<SALES> 14,367
<TOTAL-REVENUES> 14,367
<CGS> 10,053
<TOTAL-COSTS> 10,053
<OTHER-EXPENSES> 49
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 107
<INCOME-PRETAX> 670
<INCOME-TAX> 11
<INCOME-CONTINUING> 659
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 659
<EPS-PRIMARY> .30
<EPS-DILUTED> 0
</TABLE>
