<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended July 31, 1997
-------------
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to _______________
Commission File Number 0-19705
LINKON CORPORATION
(Exact name of small business issuer as specified in its charter)
Nevada 13-3469932
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
140 Sherman Street,
Fairfield, Connecticut 06430
(Address of principal executive offices)
(203) 319-3175
--------------
(Issuer's telephone number, including area code)
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 (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
----- -----
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date.
Class Outstanding at September 4, 1997
- --------------------------------------- --------------------------------
Common Stock, Par Value $.001 Per Share 10,896,252
==========
Transitional Small Business Disclosure Format (Check one):
Yes ; No X
----- -----
<PAGE>
LINKON CORPORATION
FORM 10-QSB
QUARTERLY REPORT
For the Three Months Ended July 31, 1997
Page to Page
------------
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements:
Consolidated Balance Sheet - July 31, 1997 and 1996 3 - 4
and January 31, 1997
Consolidated Statements of Operations - Six Months
Ended July 31, 1997 and 1996 5
Consolidated Statements of Operations - Three Months
Ended July 31, 1997 and 1996 6
Consolidated Statements of Cash Flows - Three Months
Ended July 31, 1997 and 1996 7
Notes to Consolidated Financial Statements 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9-11
Exhibit I - Calculation of Earnings per Share 12
PART II. Other Information 13
Signatures 14
2
<PAGE>
PART 1- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
LINKON CORPORATION AND SUBSIDIARY
---------------------------------
CONSOLIDATED BALANCE SHEETS
---------------------------
(Unaudited)
A S S E T S
-----------
July 31 July 31 January 31,
1997 1996 1997
------- ------- -----------
Current Assets
- --------------
Cash and Cash Equivalents $ 101,838 $ 357,258 $ 630,726
Certificate of Deposit -- 65,838 --
Accounts Receivable (Net of Allowance) 264,202 424,527 433,498
Notes Receivable 51,000 51,000 51,000
Other Receivables -- 21,852 3,359
Inventory 452,861 778,143 628,498
Prepaid Expenses 95,251 78,200 58,513
---------- ---------- ----------
Total Current Assets 965,152 1,776,818 1,805,594
---------- ---------- ----------
Machinery & Equipment
- ---------------------
Machinery & Equipment, at cost 1,276,478 1,060,166 1,262,341
Equipment under Capital Leases 123,157 156,965 123,156
---------- ---------- ----------
1,399,635 1,217,131 1,385,497
Less: Accumulated Depreciation (971,902) (777,505) (869,902)
---------- ---------- ----------
Machinery & Equipment, Net 427,733 439,626 515,595
---------- ---------- ----------
Other Assets
- ------------
Software (Net of Amortization) 967,251 962,130 990,668
Investments, at cost 34,613 34,613 34,613
Prepaid Financing Costs 23,528 33,985 28,756
Deferred Offering Costs -- -- --
Security Deposits 8,195 7,695 8,195
Organization Costs (Net of
Amortization) -- -- --
Total Other Assets 1,033,587 1,038,423 1,062,232
---------- ---------- ----------
$2,426,472 $3,254,867 $3,383,421
========== ========== ==========
The accompanying notes to consolidated financial statements are an integral
part of this report.
3
<PAGE>
LINKON CORPORATION AND SUBSIDIARY
---------------------------------
CONSOLIDATED BALANCE SHEETS
---------------------------
(Unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
July 31 July 31 January 31,
1997 1996 1997
------- ------- -----------
Current Liabilities
- -------------------
Accounts Payable $619,046 $326,523 $656,127
Bank Loan Payable -- 52,730 --
Taxes Payable 5,000 8,108 5,000
Interest Payable 164,861 143,750 86,111
Accrued Expenses 64,074 7,272 148,132
-------- -------- --------
Total Current Liabilities 852,981 538,383 895,370
-------- -------- --------
Long Term Liabilities
- ---------------------
Notes Payable, Net 1,299,569 1,215,274 1,291,810
---------- ---------- ----------
Commitments and Contingencies -- -- --
- -----------------------------
Stockholders' Equity
- --------------------
Common Stock, $.001 Par Value,
25,000,000 shares authorized,
10,896,252 shares issued and
outstanding 10,897 10,754 10,867
Capital in Excess of Par Value 9,374,266 9,129,970 9,329,296
Retained Earnings
(Accumulated Deficit) (9,111,241) (7,639,514) (8,143,922)
---------- ---------- ----------
Total Stockholders' Equity 273,922 1,501,210 1,196,241
---------- ---------- ----------
$2,426,472 $3,254,867 $3,383,421
---------- ---------- ----------
The accompanying notes to consolidated financial statements are an integral part
of this report.
4
<PAGE>
LINKON CORPORATION AND SUBSIDIARY
---------------------------------
CONSOLIDATED STATEMENTS OF OPERATIONS
-------------------------------------
(Unaudited)
Six Months Six Months
Ended July 31, Ended July 31,
1997 1996
-------------- --------------
Gross Revenues $ 1,528,050 $ 864,981
Cost of Goods Sold - Product 784,909 377,083
- Software amortization 192,732 113,766
977,641 490,849
----------- -----------
Gross Margin On Sales 550,409 374,132
Selling, General and
Administrative Expenses 1,287,263 945,319
Research and Development 125,667 161,209
1,412,930 1,106,528
----------- -----------
Operating Income(Loss) ( 862,521) (732,396)
Other Income (Expense)
Interest Income 25 4,163
Gain (Loss) on Foreign Currency
Translation -- (445)
Gain on Sale of Securities -- 679,909
Interest Expense ( 104,823) (118,826)
----------- -----------
( 104,798) 564,801
----------- -----------
Income(Loss) Before Income Taxes ( 104,798) 167,595
Income Taxes -- 5,523
----------- -----------
Net Income(Loss) $ ( 967,319) $ (173,118)
Income(Loss)Per Share $(.09) $(.02)
Weighted Average Number of Shares
Outstanding 10,853,002 10,753,252
Fully Diluted Income(Loss) Per Share $(.09) $(.02)
The accompanying notes to consolidated financial statements are an integral part
of this report.
5
<PAGE>
LINKON CORPORATION AND SUBSIDIARY
---------------------------------
CONSOLIDATED STATEMENTS OF OPERATIONS
-------------------------------------
(Unaudited)
Three Months Three Months
Ended July 31, Ended July 31,
1997 1996
-------------- --------------
Gross Revenues $ 805,501 $ 460,768
Cost of Goods Sold - Product 361,764 201,823
- Software amortization 96,366 56,883
458,130 258,706
---------- -----------
Gross Margin On Sales 347,371 202,062
Selling, General and
Administrative Expenses 674,966 473,543
Research and Development 52,626 77,636
727,592 551,179
----------- -----------
Operating Income(Loss) ( 380,221) (349,117)
Other Income (Expense)
Interest Income 0 2,532
Gain(Loss) on Foreign Currency
Translation -- (228)
Gain on Sale of Securities -- 679,909
Interest Expense ( 66,368) (79,820)
----------- -----------
( 66,368) 602,393
----------- -----------
Income(Loss) Before Income Taxes ( 446,589) 253,276
Income Taxes -- 0
Net Income(Loss) $ ( 446,589) $ 253,276
Income(Loss) Per Share $(.04) $.02
Weighted Average Number of Shares
Outstanding 10,853,002 10,753,252
Fully Diluted Income(Loss) Per Share $(.04) $.02
The accompanying notes to consolidated financial statements are an integral part
of this report.
6
<PAGE>
LINKON CORPORATION AND SUBSIDIARY
---------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
-------------------------------------
(Unaudited)
Increase (Decrease) in Cash and Cash Equivalents
<TABLE>
<CAPTION>
Six Months Ended July 31,
1997 1996
---------------- --------
<S> <C> <C>
Cash Flows From Operating Activities:
------------------------------------
Net Income (Loss) $( 967,319) $( 173,118)
Add: Adjustments to Reconcile Net Loss to
Net Cash Used in Operating Activities:
Depreciation & Amortization 302,491 197,457
Gain on Sale of Securities -- (679,909)
Changes in Assets and Liabilities:
(Increase) Decrease in Certificate of Deposit -- ( 1,904)
(Increase) Decrease in Accounts Receivable 169,296 186,860
(Increase) Decrease in Other Receivables 3,359 29,361
(Increase) Decrease in Inventory 175,637 110,512
(Increase) Decrease in Prepaid Expense ( 36,738) ( 50,794)
(Increase) Decrease in Software ( 169,315) ( 147,748)
(Increase) Decrease in Prepaid Financing Cost 5,228 5,228
(Increase) Decrease in Security Deposits -- 12,236
Increase (Decrease) in Accounts Payable (37,081) ( 677,601)
Increase (Decrease) in Accrued Expenses ( 84,058) --
Increase in Interest Payable 78,750 43,750
Increase (Decrease) in Taxes Payable -- ( 10,000)
----------- -----------
Net Cash Used in Operating Activities ( 559,750) (1,155,670)
----------- -----------
Cash Flows From Investing Activities:
- ------------------------------------
Cash Paid to Purchase Equipment ( 14,138) ( 14,158)
Proceeds from Sale of Securities 0 1,020,000
Investment in Non-Marketable Securities 0 ( 483)
----------- -----------
Net Cash Provided by (Used in) Investing Activities ( 14,138) 1,005,359
----------- -----------
Cash Flows from Financing Activities:
Proceeds from Sale of Common Stock 45,000 --
Borrowings(Payments) on Bank Debt -- ( 15,000)
Net Cash Provided by (Used in) Financing Activities 45,000 ( 15,000)
----------- -----------
Net Increase (Decrease) in Cash ( 528,888) ( 165,311)
Cash and Cash Equivalents at Beginning of Period 630,726 522,569
Cash and Cash Equivalents at End of Period $ 101,838 $ 357,258
=========== ===========
</TABLE>
The accompanying notes to consolidated financial statements are an integral part
of this report.
7
<PAGE>
LINKON CORPORATION
------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
July 31, 1997
-------------
1) In the opinion of the Company, the accompanying unaudited financial
statements contain all adjustments(consisting of only normal recurring
accruals) necessary to present fairly the financial position as of July 31, 1997
and 1996, and January 31, 1997, and the results of operations for the six month
and three month periods ended July 31, 1997 and 1996 and cash flows for the six
month periods ended July 31, 1997 and 1996.
The accounting policies followed by the Company are set forth in Note 3 to
the Company's financial statements in the Linkon Corporation Annual Report on
Form 10-KSB for the fiscal year ended January 31, 1997.
2) ANALYSIS OF STOCKHOLDERS' EQUITY:
<TABLE>
<CAPTION>
Capital
Outstanding in Excess Accumulated
Shares Amount of Par Value Deficit
----------- ------ ------------ -----------
<S> <C> <C> <C> <C>
Balance January 31, 1997 10,866,252 $10,867 $9,329,296 $(8,143,922)
Issuance of 30,000 $ 30 $ 44,970 --
Common Stock, Net of
Expenses
Loss for Six Months
Ended July 31, 1997 -- -- -- ( 967,319)
----------- ------- ---------- -----------
Balance - July 31, 1997 10,896,252 $10,897 $9,374,266 $(9,111,241)
=========== ======= ========== ===========
</TABLE>
3) RECLASSIFICATION OF THE AMORTIZATION OF CAPITALIZED SOFTWARE COSTS:
------------------------------------------------------------------
During the quarter ending October 31, 1996 the Company reclassified the
amortization of capitalized software costs from the Research & Development
category to Cost of Goods Sold. Due to this reclassification the Company has
restated all financial statements being presented to take account of this
reclassification for prior periods. This reclassification had no effect on the
results of operations or net loss being reported on the income statements being
presented. All information provided in the following Management's Discussion and
Analysis of Financial Condition and Results of Operations is being presented
after taking into consideration this reclassification.
4) Financing of Operations:
-----------------------
See Management's Discussion and Analysis- Liquidity and Capital Resources as to
the Company's need for additional capital and any plans for the future financing
of its operations.
8
<PAGE>
ITEM 2
------
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
---------------------------------------
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
Net Income (Loss)
- -----------------
The Company reported a net loss of $967,319 for the first six months of
fiscal 1998 as compared to a net loss of $173,118 for the same period during the
prior year, notwithstanding an increase in gross revenues of 77% for the same
period (see "Revenues" below). This increase in the net loss reported by the
Company was due to the following factors:
Selling, General and administrative expenses increased from $945,319 in the
first six months of fiscal year 1997 to $1,287,263 in the same six months of
fiscal year 1998. This is discussed more fully under the section entitled
"Selling, General and Administrative Expenses" below.
Gross Margin decreased from 43% in the first six months of fiscal year 1997
to 36% in the same six months of fiscal year 1998. This is more fully discussed
under the section entitled "Cost of Goods Sold" below.
The Company had $679,909 of other income during the first six months of
fiscal 1997 from the sale of its investment in Concentric Network Corporation,
which income did not recur during the corresponding period of fiscal 1998.
For the three months ended July 31, 1997, the Company reported a net loss
of $446,589 as compared to a net income of $253,276 for the three month period
ended July 31, 1996. This was primarily as a result of gain on sale of
securities as a result of the sale of its investment in Concentric Network
Corporation during the three month period ended July 31, 1996.
Revenues
- --------
For the six months ended July 31, 1997 revenues increased by $663,069 from
the six month period ended July 31, 1996, an increase of 77%. For the three
months ended July 31, 1997, revenues increased $344,733 from the three month
period ended July 31, 1996, an increase of 75%. These increases were due mainly
to increased shipments to AT&T, the Company's largest customer. During the six
months ended July 31, 1997 the Company shipped approximately $1.1M of the
EscapeTM Platform and associated services to AT&T. The Company's total order
backlog as of 7/31/97 was $269,738. Substantially the entire backlog was for
products scheduled to be shipped during the third quarter of fiscal 1998.
During the six months ended July 31, 1997, the Company introduced
LinkNet/TM/, its new Internet Telephony(Voice and Fax over the Internet)
product. A small quantity of initial shipments of this product were made during
the first six months of fiscal 1998, and the Company expects sales of this
product to increase during the third and fourth quarter of fiscal 1998.
The Company continues to concentrate on developing and expanding its
customer base and is currently working on several new projects for other major
customers which it anticipates will diversify its customer base and increase
revenues in both the near and long-term. While the certainty of these new
projects becoming future revenues for the Company cannot be measured at this
point in time, the management of the Company is encouraged by the inquiries it
is receiving concerning its products.
Cost of Goods Sold
- ------------------
Cost of goods sold for products, consisting of parts, supplies and
manufacturing costs for the Company's hardware and software products, including
software amortization, were $977,641 and $490,849 for the six months ended July
31, 1997 and 1996 respectively. This constituted approximately 64% and 57% of
revenues for the six months ended July 31, 1997 and 1996 respectively.
Management attributes the change in cost of goods sold primarily to highly
competitive pricing associated with shipments to AT&T during the first quarter
of fiscal 1998. The cost of goods sold varies with each product line, with
software having little or no material cost (approximately 5-10%). The primary
costs incurred by the Company are for materials and equipment relating to its
hardware products, which also carry lower profit margins than the Company's
software
9
<PAGE>
products. The Company manufactures and assembles all hardware through contracted
third party suppliers under the direct supervision of the Company's management.
Cost of goods were $458,130 for the three months ended July 31, 1997, as
compared to $258,706 for the corresponding period of fiscal 1997, constituting
approximately 56% of the revenues for each such period.
While management continues to believe that its products can ultimately be
sold with a less than 50% cost of goods sold, management also realizes the need
to gain market share for its products and will, for the near term, be aggressive
in its pricing policy. However, management also believes that the cost of sales
will go down as customers begin to order enhanced software features, which
features carry significantly lower costs than the Company's hardware products,
and as well as a result of research and development projects aimed at increasing
efficiency while reducing cost.
Selling, General and Administrative Expenses
- --------------------------------------------
Selling, general and administrative expenses for the six months ended July
31, 1997 and 1996 were $1,287,263 and $945,319 respectively. This constituted
approximately 84% and 109% of revenues for the six months ended July 31, 1997
and 1996 respectively. Selling, general and administrative expenses for the
three months ended July 31, 1997 and 1996 were $674,966 and $473,543
respectively. This constituted approximately 84% and 103% of revenues for the
three months ended July 31, 1997 and 1996 respectively. This increase was due
primarily to increases in staffing in Sales, Marketing and Customer Support,
expenditures for Marketing and Advertising programs for the EscapeTM Platform,
and legal and administrative costs associated with the Company's shareholders
meeting held on March 25, 1997.
Research, Development and Software
- ----------------------------------
The Company incurred research, development and software costs of
approximately $271,467 and $307,009 for the six months ended July 31, 1997 and
1996 respectively. The Company incurred research, development and software costs
of approximately $125,526 and $150,536 for the three months ended July 31, 1997
and 1996 respectively. This decrease was primarily due to the Company's
determination to reduce these costs in fiscal 1998 in light of the of the
Company's continuing losses. These amounts consist of internal salaries, outside
consulting services, equipment and fixed overhead costs. The Company expects
research, development and software costs to increase in future periods as
finances permit.
Liquidity and Capital Resources
- -------------------------------
To date, the Company has funded operations from the receipt of proceeds
from private placements of debt and equity, including the exercise of warrants,
interest earned from the investment of such proceeds in interest earning assets,
and revenues from operations. During the fiscal year ended January 31, 1997 the
Company received $169,439 in net proceeds, after payment of offering related
expenses, from exercises of warrants and from the sale of its common stock.
During the first six months of fiscal 1998, the Company raised approximately
$45,000 of net proceeds from the exercises of warrants. These amounts were
primarily used to fund operations.
During the first six months of fiscal 1998, net cash used in operating
activities was approximately $560,000. As a result, on July 31, 1997, the
Company held cash and cash equivalents of approximately $102,000, down from cash
of approximately $631,000 as of January 31, 1997, and had a working capital
surplus (current assets minus current liabilities) of approximately $113,000,
down from a working capital surplus of approximately $910,000 as of January 31,
1997. The Company's cash flow and liquidity continues to be severely impaired
due to ongoing losses from operations. While the Company's Maestro System has
begun to gain acceptance in the market, the Company is mostly finding strong
interest at large call centers with the Company's EscapeTM Platform. While the
Company believes that this will be a good market for the Company's products over
time, the complexity of the EscapeTM Platform, and the size of the orders,
requires longer lead times from first inquiry to sale than with the Company's
other products. While the Company's management continues to believe that in the
near future the Company will be cash flow positive from its operations as the
Maestro System's products continue to gain acceptance and popularity in the
marketplace, there can be no assurances either that such will in fact occur or
exactly when the Company may reach such a cash flow position.
10
<PAGE>
Based primarily on the strength of its recent purchase orders from AT&T ,
the Company has begun to be able to finance its operations through receivables
financing, secured by purchase orders from creditworthy customers. In May of
1997 the Company was able to consumate a factoring arrangement with Boston
Financial and Equity Corporation to finance receivables from AT&T and other
customers as required. The Company is also currently pursuing alternative
financiers to secure asset based funding and purchase order financing to finance
future orders from customers as required (although no such arrangement is in
place as of this date).
Provided the Company's MaestroTM System continues to gain market
acceptance, the Company believes that it will be able to rely less on private
equity financings and the exercise of warrants by existing warrant holders and
more on cash flow generated from revenues from increased hardware and software
sales to fund its continuing operations. However, due to the planned
introduction of new and improved products, and the anticipated growth due to,
among other things, the manufacturing of hardware and software products and the
expansion of operations, management anticipates that there will be a continued
need for cash resources from sources other than operations to meet, among other
things, anticipated commitments for raw materials, increased marketing
activities, and personnel.
The Company does not currently contemplate any significant capital
expenditures during fiscal 1998. The Company does not believe that there are
any contingencies which would have a material adverse effect on the Company's
financial condition, future operating results or liquidity.
Statements throughout this report that state the Company's or its
management's intentions, beliefs, expectations or predictions of the future are
forward looking statements. It is important to note that the Company's actual
results could differ materially from those projected in such forward looking
statements.
11
<PAGE>
EXHIBIT I
LINKON CORPORATION
------------------
CALCULATION OF EARNINGS PER SHARE
---------------------------------
(Unaudited)
Six Months Six Months
Ended Ended
July 31, 1997 July 31, 1996
------------- -------------
Loss for the Period $( 967,319) $( 173,118)
========== ===========
Weighted Number of Shares Outstanding 10,853,002 10,753,252
========== ===========
Loss Per Share: $ (.09) $ (.02)
========== ===========
12
<PAGE>
LINKON CORPORATION
------------------
PART II. OTHER INFORMATION
---------------------------
Item 2. Changes in Securities
---------------------
In February 1997, the following individuals exercised warrants to purchase an
aggregate of 30,000 shares of Common Stock of the Company, at a purchase price
per share of $1.50, for aggregate consideration of $45,000: Peter and Susan
Deakins (2,500 shares), Kurt A. Wohl (2,500 shares), Morton S. Ackerman (5,000
shares) and Joao Carvalho (20,000 shares). With respect to such issuances,
based upon representations of such specified individuals, the Company relied
upon exemptions from registration provided by Section 3(a)(9) and 4(2) of the
Securities Act of 1993, as amended, and Rule 506 promulgated thereunder.
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
a. Exhibits
Exhibit
No. Description of Document
------- -----------------------
10 Commercial Lease, dated as of June 17, 1997, between 140
Sherman Street, LLC and Linkon Corporation(1)
27 Financial Data Schedule for the period ended July 31,
1997(1)
____________
(1) Submitted separately, electronically.
b. Reports on Form 8-K
There were no reports on Form 8-K filed for the three months ended
July 31, 1997.
13
<PAGE>
LINKON CORPORATION
------------------
In accordance with the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LINKON CORPORATION
------------------
Registrant
DATED: September 15, 1997 /s/ Lee W. Hill
---------------------------
BY: LEE W. HILL
CHIEF EXECUTIVE OFFICER
DATED: September 15, 1997 /s/ Thomas V. Cerabona
---------------------------
BY: THOMAS V. CERABONA
VICE PRESIDENT OF OPERATIONS
PRINCIPAL ACCOUNTING OFFICER
14
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description of Document
----- -----------------------
10 Commercial Lease, dated as of June 17, 1997, between 140
Sherman Street, LLC and Linkon Corporation(1)
27 Financial Data Schedule for the period ended
July 31, 1997(1)
____________
(1) Submitted separately, electronically.
15
<PAGE>
EXHIBIT 10
- --------------------------------------------------------------------------------
COMMERCIAL
LEASE
- --------------------------------------------------------------------------------
THIS LEASE is made as of this 17th day of June, 1997, by and between 140
Sherman Street, LLC (hereinafter referred to as "Landlord") and the following
party (hereinafter referred to as "Tenant"): (R.D. Scinto, Inc)
Linkon Corporation
IN CONSIDERATION of the mutual benefits and obligations set forth in
this Lease, Landlord and Tenant agree as follows:
ARTICLE I
LEASING DATA
1.1 LEASING DATA. This Article contains data used in other provisions
of this Lease but set forth in this Article for ease of reference. For example,
although the Monthly Base Rent is specified in this Article, Article IV is the
operative provision of the Lease regarding the payment of the monthly Base Rent.
Whenever any item contained in this Article is more specifically described in a
subsequent Article of the Lease, the more specific description will control.
(a) The "Building" is the building in which the Leased Premises is
located and is known as 140 Sherman Street, Fairfield,
Connecticut
(b) The "Leased Premises" is located on the fifth floor of the
Building, with the floor area outline of the Leased Premises
being shown on Exhibit A, attached hereto.
(c) The "Leased Premises Square Footage" is 5,704 square feet.
(d) The "Initial Commencement Date" is September 1, 1997.
(e) The "Initial Term" is the period of time beginning with the
Initial Commencement Date and ending at the end of the 12th full
calendar month from and after the Initial Commencement Date.
(f) The "Leased Premises Use" is general administrative business
offices.
- --------------------------------------------------------------------------------
PAGE 1
<PAGE>
(g) The "Base Rent" for the Initial Term is $5,228.67 per month.
(h) The "Security Deposit" is $5,200 Carryover from current lease.
(i) The "Notice Address" for Landlord and Tenant are:
Landlord:
Robert D. Scinto, 140 Sherman St, LLC
c/o R.D. Scinto, Inc.
P.O. Box 880
Shelton, CT 06484
Tenant:
Linkon Corporation
140 Sherman Street
Fairfield, Ct 06430
Attn: Mr. Thomas Cerabona
- --------------------------------------------------------------------------------
PAGE 2
<PAGE>
ARTICLE II - DEFINITIONS
2.01. CAPITALIZED WORDS AND PHRASES. This Lease contains many words and
phrases with initial, capitalized letters. These words and phrases are used as
specially defined terms in an effort to make the Lease easier to read. An effort
has been made to set forth some of the more common defined terms in this
Article, but other Articles may also contain defined terms. Whenever a
capitalized word or phrase is used in this Lease, it shall have the definition
specifically ascribed to it, unless the context of the usage implies otherwise.
Some of the definitions listed below may not be used in the main body of the
Lease. Some definitions which may not be used in the main body of the Lease are
nevertheless listed because in some situations, the Data Section or additional
provisions or exhibits added to the Lease may incorporate the use of such
definitions.
2.02. "ADDITIONAL RENT" means any charge, other than the Base Rent, payable
by Tenant to Landlord under any provision of this Lease.
2.03. "BUILDING" means the building in which the Leased Premises is located
and "BUILDINGS" means all of the buildings in the Project.
2.04. "COMMON AREA" means all portions of the Project other than rentable
spaces in the Buildings.
2.05. "CONSENT" OR "APPROVAL" of Landlord means only the consent or approval
given by Landlord in writing.
2.06. "CPI" means the United States Department of Labor Bureau of Labor
Statistics Consumer Price Index-All Urban Consumers-All Cities (1982-4 = 100),
or if such index is no longer published, a substitute selected by Landlord which
represents similar changes in consumer prices.
2.07. "FISCAL YEAR" means the 12 month periods comprising Landlord's fiscal
year for the purposes of computing Monthly Additional Rent. It is contemplated
that the Fiscal Year will be the calendar year, but Landlord may choose a Fiscal
Year other than the calendar year.
2.08. "LANDLORD'S INSURANCE PREMIUMS" means the premiums for Landlord's
Insurance Coverages, Landlord's Insurance Coverages being defined in paragraph
8.02.
2.09. "LEASED PREMISES" means the rentable space leased to Tenant at the
Project, as generally described in the Data Section. A more particular
description of the Leased Premises is all space within the lateral, upper and
lower boundaries, excluding common utility lines and other similar items, as
described below. The lateral boundary of the Leased Premises is the unfinished
face of the sheet-rock and inside surface of the glass on all demising walls. If
any wall is incomplete as of the inception of the Lease, the lateral boundary
shall be the inside face of the demising wall studs until they are sheet-rocked.
For the purposes of this paragraph, a demising wall is any wall separating the
Leased Premises from any other space within its Building and any exterior
Building wall separating the Leased Premises from the outdoors. The upper
boundary of the Leased Premises is the lower surface of the suspended acoustical
ceiling, and if none, the lower surface of the roof or deck of the next floor
above the Leased Premises. The lower boundary of the Leased Premises is the
unfinished surface of the concrete floor. The Leased Premises does not include
any pipe, conduit, duct chase, wire, structural building support column, or
other similar item located within the boundary of the Leased Premises but which
represents a building component that serves portions of the Project besides only
the Leased Premises.
2.10. "LEASED PREMISES SQUARE FOOTAGE" means the square footage set forth in
Article I, which represents the agreed upon rentable square footage of the
Leased Premises, which rentable squre footage is different than and in excess of
the usable square footage.
2.11. "LEASED PREMISES UTILITY CHARGES" means the charges payable by Tenant
for utility consumption by the Leased Premises, as futher described in paragraph
5.02.
2.12. "NOTICE" means only written notification given by one party to the
other. Notice may only be given by: a form of US Mail in which the recipient is
required to sign a receipt (such as certified, return receipt); a nationally
recognized courier service which requires recipient to sign a receipt (such as
Federal Express or UPS Next Day); and, in the case of Notice to Tenant,
delivery to the Leased Premises. All Notices will be effective on receipt,
except in the case of delivery to the Leased Premises, in which event the Notice
will be effective as of the date of delivery. Notice must be given to the other
party at the party's Notice Address, except in the case of Notice to Tenant,
which may always be given at the Leased Premises. The Notice Address for each
party is the address listed in the Data Section of this Lease, or to such other
address designated by a party by Notice to the other party, provided, that
Landlord shall not be required to give Notice to more than one address, and if
more than one address is specified, Landlord may choose any one address of those
designated by Tenant.
2.13. "PROJECT" means the Building and the real estate associated with the
Building, the current boundary of which is described on Exhibit B.
2.14. "PROJECT OPERATING EXPENSES" means all of the reasonable expenses
incurred by Landlord in the Operation of the Project except for those expenses
which are specifically excluded in this paragraph below, as may be adjusted by
the following sentence. If during all or part of any Fiscal Year the Project
has not been fully occupied, then for the purposes of computing Project
Operating Expenses for such Fiscal Year, Project Operating Expenses shall be
those expenses which would have reasonably been incurred had the Project been
fully occupied and would otherwise qualify as proper Project Operating Expenses.
The preceding sentence shall in no event allow Landlord to receive payment or
reimbursement for more than 100% of the expenses actually incurred by Landlord
for the revelant Fiscal Year. Project Operating Expenses includes, without
limitation: (a) the cost of any personnel of Landlord directly involved in the
operation of the Project, provided such personnel are not above the grade of
building manager and provided that the cost of any personnel serving more
properties than the Project is allocated to the Project only in proportion to
the time spent on the Project business; (b) the cost of equipment and supplies
used in the maintenance and operation of the Project (salt and sand in the
winter months, for example); (c) the cost of keeping the Project in good repair
(repairs & replacements); (d) the cost of utilities serving the Common Area and
utilities serving the Leased Premises other than those in Article 5 hereof
(electricity for the parking lot lighting and HVAC, for example); (e) a
reasonable management fee consistent with the operation of a first-class office
building in the local market; (f) the cost of maintenance and cleaning of the
Common Area; (g) the cost of equipment maintenance contracts; (h) landscaping
costs; (i)restriping and repairing the parking area serving the Project; (j)
Landlord's Insurance Premiums; (k) Project Taxes; and (l) any other item
reasonably expended for the maintenance, operation, repair and insurance of the
Project. Project Operating Expenses shall not include: [i] the cost of any
structural repairs or structural replacements for the Building; [ii] the cost of
any item that is not reasonable (which means no rates for any services will be
billed in excess of fair market rates - which may, for example, include a
reasonable premium for overtime, after hours services and emergency services);
[iii] any depreciation of any equipment or of any portion of the Project; [iv]
any income tax imposed upon Landlord's income or any estate or gift tax of
Landlord; [v] any payment on any mortgage debt secured by the Project; [vi] the
cost of construction for any additional rentable space in the Project; [vii]
fit-out cost for the fit-out of the leased premises of any tenant; [viii] any
marketing and brokerage expenses in connection with the leasing of any space in
the Project to any tenant; and [ix] any expenses incurred by Landlord in
connection with the enforcement of a lease against any tenant.
2.15. "PROJECT TAXES" means the regularly assessed real estate tax of the
municipality in which the Project is located and any other tax or use charge
imposed upon the Project or its operation such as, without limitation; a sewer
assessment or use charge; a fire district tax; and/or a special taxing district
tax. Project Taxes does not include any personal property tax imposed upon the
personal property of any tenant or any other tax which may be imposed directly
upon a tenant rather than the Project or its owner generally.
2.16. "RENT" means all sums payable by Tenant to Landlord under the
provisions of this Lease, including all Base Rent and Additional Rent.
2.17. "TENANT'S PERCENTAGE" means the percentage equivalent to the ratio of
the Leased Premises Square Footage divided by the Total Building Square Footage,
which may be adjusted upon any change in the Leased Premises Square Footage or
Total Building Square Footage, but will not be adjusted based upon the degree of
occupancy of the Project.
2.18. "TERM" means the period of time during which Tenant is entitled to
possession of the Leased Premises in accordance with the provisions of this
Lease, but does not include any hold over period.
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2.19. "TOTAL BUILDING SQUARE FOOTAGE" means the gross rentable square
footage of all of the rentable tenant spaces in the Building, whether rented or
not. The Total Building Square Footage is subject to adjustment, such as an
increase if any additional rentable square footage is constructed as an addition
to the Building.
2.20. "WALL STREET PRIME" means the interest rate published by the Wall
Street Journal as the base rate on corporate loans posted by at least 75% of the
nation's 30 largest banks, or a similar substitute rate selected by Landlord if
the foregoing rate is no longer published.
ARTICLE III - LEASING OF LEASED PREMISES AND TERM OF LEASE
3.01. LEASING OF LEASED PREMISES. Landlord hereby leases the Leased
Premises to Tenant for the Term, together with a right to use certain portions
of the Common Area, subject to the other provisions of this Lease.
3.02. QUIET ENJOYMENT. Upon payment by Tenant of the Rents herein
provided, and upon the observance and performance of all the covenants,
provisions and conditions on Tenant's part to be observed and performed, Tenant
shall peaceably and quietly hold and enjoy the Leased Premises for the Term
without hindrance or interruption by Landlord or any person claiming by or
through Landlord, except as expressly provided in this Lease.
3.03. COMMENCEMENT DATE. The Term will begin on the "Actual Commencement
Date". The "Actual Commencement Date" is the Initial Commencement Date set forth
in the Data Section, unless Landlord is unable to deliver possession of the
Leased Premises on or before the Initial Commencement Date on account of any
delay caused by any existing occupant of the Leased Premises not vacating on
time or unless Landlord is delayed in completing any Landlord's "Initial Fit-Out
Work" (defined in paragraph 3.04). In the case of any such delay, the Actual
Commencement Date shall be the Initial Commencement Date extended to the date on
which Landlord tenders possession of the Leased Premises to Tenant, in
substantially the condition promised to Tenant (for example - as is & broom
clean and/or with substantial completion of Landlord's Initial Fit-Out Work - as
may be set forth in other provisions of this Lease regarding the condition of
the Leased Premises upon delivery to Tenant).
3.04. CONDITION OF LEASED PREMISES UPON DELIVERY TO TENANT. The Leased
Premises shall be delivered to Tenant on the Actual Commencement Date in as-is
condition, broom clean and free of all personal property of others, except that
Landlord will perform any work set forth in Exhibit C, attached hereto, as
Landlord's Initial Fit-Out Work. Any Landlord's Initial Fit-Out Work shall be
performed by Landlord in a good and workmanlike manner. Landlord will commence
any Landlord's Initial Fit-Out Work on or before the date felt to be reasonably
early enough for the work to be substantially completed on or before the Initial
Commencement Date, unless Landlord is unable to begin the work on account of
being unable to obtain occupancy of the Leased Premises due to the existing
occupancy of another party, in which event, Landlord shall use Landlord's best
efforts to obtain possession of the Leased Premises and begin Landlord's Fit-Out
Work promptly after possession of the Leased Premises has been obtained.
ARTICLE IV - PAYMENT OF RENT
4.01 PAYMENT OF RENT. Tenant shall pay the monthly Base Rent and the
Monthly Additional Rent on the first day of each month during the Term, in
advance. The amount of the Monthly Additional Rent and method of billing
therefore is set forth in paragraph 4.02. Any other charge shall be due in
accordance with the Lease provision governing the charge. For example, if Tenant
is to pay Landlord for any fit-out work, the charge and manner of payment for
that may be covered under the provision specifying the fit-out work.
4.02 MONTHLY ADDITIONAL RENT. The Monthly Additional Rent is: (i)
Tenant's Percentage of Project Operating Expenses; plus (ii) Leased Premises
Utility Charges. At the beginning of each Fiscal Year, Landlord shall prepare an
itemized estimate (in reasonable detail) of all of the components of the
Monthly Additional Rent expected to be incurred by Tenant during the ensuing
Fiscal Year. Landlord will provide a copy of the statement of estimated Monthly
Additional Rent to Tenant and Tenant shall pay the Monthly Additional Rent based
on Landlord's estimated statement, each monthly payment to be 1/12 of the
estimated Monthly Additional Rent to be incurred for the full Fiscal Year. After
the end of each Fiscal Year, Landlord will prepare an itemized statement of the
actual Monthly Additional Rent incurred by Tenant during the prior Fiscal Year,
together with a statement of any overpayment or underpayment of actual Monthly
Additional Rent based upon the estimated payments made by Tenant. Landlord will
render the statement of Monthly Additional Rent actually incurred by Tenant
within 90 days after the end of each Fiscal Year. In the case of an
underpayment, Tenant shall pay the shortage to Landlord within 30 days after
rendering the statement of actual Monthly Additional Rent to Tenant. In the case
of an overpayment, Landlord will reimburse the amount of the overpayment to
Tenant within 30 days after the rendering of the statement. In the event it
becomes apparent to Landlord during the course of a Fiscal Year that the actual
Monthly Additional Rent will be materially different than the estimated Monthly
Additional Rent (on account of an unexpected increase in the municipal real
estate tax, for example), then Landlord may amend the statement of estimated
monthly Additional Rent and the monthly payments will be adjusted such that all
of the newly estimated Monthly Additional Rent for the full Fiscal Year will
have been paid via the Monthly Additional Rent payments made prior to the new
estimate plus payment of the equal adjusted installments of the Monthly
Additional Rent payments remaining in the Fiscal Year. If Landlord has not
provided Tenant with statement of estimated Monthly Additional Rent prior to the
beginning of a Fiscal Year, Tenant shall make installment payments based upon
the installments in effect for the prior year until the new statement of
estimated Monthly Additional Rent is rendered to Tenant. The calculation of
monthly Additional Rent shall be in accordance with Generally Accepted
Accounting Principles (unless express provisions of this Lease deviate). Any
component of Project Taxes shall be charged to any period in the same manner in
which real estate tax is adjusted on closings for property in the municipality
in which the Project is located, but if not adjusted, then in advance, each
payment covering the period when first due until the date on which a payment is
next first due (the method of adjustment for the regular municipal real estate
tax being in advance--based upon a uniform fiscal year.) All utility bills and
other similar expenses shall be allocated to the period of usage which resulted
in the bill. For example, if Landlord receives a Common Area electric bill in
January 1994, which bill covers a period beginning in November 1993 and ending
in December 1993, the electric bill would be charged to 1993 Project Operating
Expenses.
4.03 ADDITIONAL PROVISIONS REGARDING PAYMENT OF RENT. All Rent shall be
due and payable without any setoff or deduction to Landlord at the times
specified in this Article, above. If any installment of Rent is not paid within
10 days of its due date, Tenant shall pay a late charge to Landlord equal to the
greater of $100 or 5% of the overdue payment. If the outstanding balance of Rent
owed to Landlord contains any amount that has not been paid within 10 days of
its due date, Tenant shall pay a late charge to Landlord equal to or greater of
$100 or 5% of the overdue payment. If the outstanding balance of Rent owed to
Landlord contains any amount that has not been paid within 10 days of its due
date, then beginning on the 11th day, the entire outstanding balance of Rent
owed by Tenant shall bear interest at the "Default Rate", until the outstanding
balance no longer includes any amounts not paid within 10 days of their due
date. The "Default Rate" is the rate of interest equal to the lesser of: (i) 4%
over the "Wall Street Prime" in effect at the time the Default Rate begins to
accrue; or (ii) the maximum rate of interest permitted to be charged under law.
Any liability for unpaid Rent shall survive the termination of the Lease.
ARTICLE V - LEASED PREMISES UTILITIES
5.01 RESPONSIBILITY TO PROVIDE UTILITIES TO THE LEASED PREMISES.
Landlord shall provide electric power for the lighting and power outlets for the
Leased Premises and heating fuel and electricity for the air conditioning system
for the Leased Premises. If Landlord is responsible to provide the Leased
Premises to Tenant with any plumbing fixtures (such as kitchen facilities with a
sink or bathroom facilities), Landlord will provide a water supply to the
plumbing fixtures and a waste line from such plumbing fixtures. Landlord will
provide Tenant with a location in the Building with a local telephone line
connection to which Tenant may run Tenant's telephone lines. Landlord may
provide for any utility to be separately metered to Tenant, and, at Landlord's
option, may require Tenant to maintain Tenant's own, metered account with the
utility company providing such separately metered utility. In the case of any
utility for which Tenant is required to maintain Tenant's own separately metered
account, Landlord's responsibility to provide such utility to the Leased
Premises shall consist of being responsible to maintain all building
<PAGE>
systems installed by Landlord for such utility system in good repair and
providing the utility up to the point of the meter. Tenant, and not Landlord,
will be responsible for maintaining the metered account and for keeping the
utility turned on from and after the point of the meter.
5.02. RESPONSIBILITY TO PAY FOR LEASED PREMISES UTILITY CHARGES. Tenant
shall pay all charges for utilities used, consumed in or allocable to the Leased
Premises ("Leased Premises Utility Charges"). In the case of separately metered
utilities, Landlord may direct that Tenant maintain Tenant's own account with
the utility company providing the service to the Project, in which case, payment
to the utility company and keeping the utility turned on past the point of the
meter shall be Tenant's responsibility. If Tenant is in arrears with any utility
company for any separately metered utility service to the Project, Landlord may
pay the utility company charges, and Tenant shall forthwith owe Landlord
reimbursement, together with interest from and after the date of Landlord's
payment at the Default Rate (defined in Article IV). If any utility consumption
in the Leased Premises is not separately metered. Landlord may allocate the
shared utility consumption to the Leased Premises in any reasonable manner. If
the electricity consumed in the Leased Premises is not separately metered,
Tenant shall pay Landlord for the electric consumption at the rate of $1.25 per
square foot of Leased Premises Square Footage per annum, increased by the amount
of any rate increase imposed after the execution of this Lease by the utility
company providing service to the Building. The preceding $1.25 per square foot
per annum rate is based on normal office usage, and Landlord reserves the right
to increase the Tenant electric charges in the event that Tenant's electric
consumption shall be in excess of normal office usage (for example, excess usage
due to a computer installation with high energy consumption). The Leased
Premises Utility Charges are payable in monthly installments, in the manner set
forth in Article IV.
ARTICLE VI - USE OF LEASED PREMISES AND TENANT'S CONDUCT IN PROJECT
6.01 PERMITTED USE FOR LEASED PREMISES BY TENANT. Tenant and any
permitted assignee or sublessee shall use the Leased Premises for the sole and
exclusive purpose set forth in the Data Section and no other purpose. The use of
the Leased Premises shall also be in accordance with all laws affecting the
Leased Premises, including the municipal zoning laws. Unless the use set forth
in the Data Section expressly provides otherwise, the use of the Leased Premises
shall be limited to the operation of a general business office. Tenant will
comply with all rules and regulations reasonably established by Landlord for the
governing of conduct of tenants in general in the Project, of which Tenant is
given notice.
6.02. TENANT ALTERATIONS, TENANT'S CONTRACTORS, MECHANICS LIENS, ETC.
Tenant shall not cause any alteration or improvement to be made to the Leased
Premises or to any other portion of the Project unless Tenant has obtained
Landlord's prior Consent. Landlord will not unreasonably withhold Landlord's
Consent to such alterations or improvements, but prior to rendering Consent,
Landlord may require Tenant to submit building plans (in detail reasonably
required by Landlord) and the identity of the contractor or contractors and
subcontractors to perform any such alterations and the references for such
contractors and subcontractors reasonably requested by Landlord. Prior to the
commencement of any such alteration or improvement by any contractor, Landlord
will be provided with a certificate of insurance for such contractor, showing
public liability coverage, workers' compensation coverage and any other coverage
reasonably required by Landlord, which certificate names Landlord as an
additional insured and provides that the coverage will not be canceled or not
renewed without at least 15 days advance Notice to Landlord. All work performed
by or through Tenant shall be performed in full compliance with all laws, shall
be carried out in a prompt and workmanlike manner and shall not interfere with
the peaceful enjoyment of the Project by any other tenant. Tenant shall
promptly pay all contractors and materialmen hired by Tenant to furnish any
labor or materials which may give rise to the filing of a mechanic's lien
against the Project attributable to alterations and improvements done by or
through Tenant. Should any such lien be placed against the Project, Tenant shall
cause same to be discharged as against the Project within the sooner of: (i) 10
business days after Tenant receives notice of such lien: or (ii) 10 business
days after request by Landlord to remove such lien; (iii) the date on which the
lien could have been removed had Tenant used all reasonable efforts to remove it
after Notice from Landlord of it. If bond is filed and such lien is discharged,
Tenant shall not be obligated to discharge the lien by payment. Notwithstanding
any notice and grace period before default elsewhere set forth in this Lease, if
Tenant shall fail to discharge such lien within the time period set forth in
this paragraph above, and shall further fail to discharge such lien within 10
more business days after Notice of failure to discharge the lien is given from
Landlord, then Tenant shall be in material default of the Lease, without any
further notice or grace period.
6.03. TENANT'S GENERAL COMPLIANCE WITH LAWS. Tenant shall, at Tenant's
sole cost and expense, comply with all of the requirements of all laws now in
force or which may hereafter be in force and not being reasonably disputed by
Tenant pertaining to Tenant's use of the Leased Premises and Project and any act
therein by Tenant. Specific reference is made to Tenant's duty to comply with
all state, federal and local laws concerning environmental protection and
Tenant's conduct at the Project. Tenant shall indemnify and hold Landlord
harmless from and against any damage, liability, cost and/or expense which
Landlord may suffer by reason of Tenant's failure to comply with the laws
governing Tenant's conduct at the Project, including all laws concerning
environmental protection. Tenant shall undertake no acts which would result in
the Leased Premises being defined as an "Establishment" under the environmental
laws of the State of Connecticut.
6.04. SIGNAGE & WINDOW TREATMENT. Tenant will not place or maintain, or
cause to be placed or maintained, on any portion of the Project exterior to the
Leased Premises or any portion of the Project (including the Leased Premises)
visible from the exterior of the Leased Premises, any sign or advertising matter
without Landlord's written consent. Tenant shall not place any object on any
portion of the Project exterior to the Leased Premises without Landlord's
written consent. Tenant shall not install or maintain any window treatment
without the prior written consent of Landlord. Landlord may require Tenant to
install window treatments with a particular exterior appearance (color, style
and quality), as viewed from the exterior of the Leased Premises.
6.05. ENVIRONMENTAL COMPLIANCE. Tenant will not under any circumstances
cause or permit the depositing, spillage or seepage of any "Hazardous or Special
Substance" in any dumpster or in any other area of the Project other than in an
area and in a manner which is in strict compliance with all laws and which is
Approved in advance by Landlord. Tenant will not use, store, generate or dispose
of any substance in any manner which would cause the project to be classified as
an Establishment under the laws of the State of Connecticut. Tenant will
indemnify Landlord from and against any loss, cost, damage, fines, testing
deemed reasonably necessary by Landlord or any other expense incurred by
Landlord as a result of any violation of any environmental law or this paragraph
by Tenant or any agent, servant, employee or contractor of Tenant. "Hazardous or
Special Substance" means any substance that may not be dumped in a land fill as
general trash, any substance listed under the laws of the State of Connecticut
or the United States as a hazardous waste, or any other substance whose use,
presence or storage at the Leased Premises requires any person to comply with
any environmental reporting or registration requirement under any law.
6.06. OTHER DUTIES OF TENANT REGARDING MAINTENANCE, REPAIR AND CONDUCT
AT THE PROJECT. Tenant will conform Tenant's conduct to the following standards
and will perform the following duties, all in a prompt, diligent and workmanlike
manner, at Tenant's sole cost and expense;
(a) Tenant will maintain the Leased Premises in a clean and net condition;
(b) Tenant will keep the Leased Premises in good repair; except that any repairs
to the structure of the Building which are not necessitated by any negligent
or willful act or omission of Tenant shall be performed by Landlord;
(c) Tenant will remove all trash from the Leased Premises with such frequency as
is consistent with the operation of Tenant's business in a first class
manner, which will include placing general trash in the appropriate Project
Dumpster and recyclable trash in the appropriate Project Dumpster in order
to comply with any environmental laws affecting Tenant's conduct.
(d) Tenant will comply with all laws affecting Tenant's use of the Leased
Premises and any recommendations of Landlord's fire insurance rating
organization, which laws may include,
<PAGE>
but are not limited to; the municipal zoning regulations; any
enviromental laws; and any licensing laws regulating the operation of
Tenant's business.
(e) Tenant will comply with all rules and regulations reasonably established
by Landlord regarding the use of the Project, which rules may be
presently existing or hereafter established and may include, for example
rules governing employee parking, time for rubbish removal, manner of
making deliveries to the Leased Premises and style of signage.
6.07. LIMITATIONS ON TENANT'S CONDUCT. Tenant agrees to abide by the
following limitations regarding conduct at the Project:
(a) Tenant will not cause or permit the playing of any loudspeakers,
phonographs, public address systems or similar audio devices in any
manner so as to be audible outside of the Leased Premises.
(b) Tenant will not place any trash anywhere in the Project outside of the
Leased Premises except in the Project Dumpsters of Tenant's Dumpsters,
as the case may be.
(c) Tenant will not cause or permit to emanate from the Leased Premises any
objectionable odor, as determined in Landlord's reasonable discretion.
(d) Tenant will not do anything which interferes with the use and peaceful
enjoyment of the leased premises of any other tenant.
(e) Tenant will not solicit business in the Common Area via distribution of
handbills or other advertising matter or vis verbal contact with patrons
of the Project, other than personal discussions with persons known to
the person soliciting prior to such person's entry into the Common Area.
(f) Tenant will not permit the parking of any vehicles in any manner which
interferes with the drives, sidewalks and fire lanes and any other areas
desired to be kept clear by Landlord.
(g) Tenant will not permit the overnight parking of any vehicles in the
parking area.
(h) Tenant will not receive or ship merchandise or equipment outside of the
areas designated by Landlord for loading and unloading.
(i) Tenant will not place any load on any floor in excess of its loading
capacity.
(j) To the extent that Tenant may control the temperature in the Leased
Premises, Tenant will not permit the temperature in the Leased Premises
to fall low enough to cause any pipes to freeze.
(k) Tenant will not keep, use, sell, or offer for sale in or upon the Leased
Premises any article which may be prohibited by the standard form of
fire insurance policy.
(l) Tenant will not use the Leased Premises or any portion of the Common
Ares for any purpose prohibited by law or for any activity that is
generally considered inconsistent with the operation of a first class
building of the same type as the Building.
ARTICLE VII - LANDLORD'S MAINTENANCE OF PROJECT AND OTHER ACTIVITIES OF LANDLORD
IN PROJECT
7.01. LANDLORD'S MAINTENANCE DUTIES. Landlord will perform all maintenance
and repair reasonably necessary to maintain the Project in a condition
consistent with a first class property of the type constituted by the Project
(e.g., office building, R&D building, retail center, etc.) in the municipality
in which it is located. Notwithstanding the preceding sentence, Landlord's
maintenance obligations shall not extend to any maintenance duties of Tenant set
forth in Article V or the maintenance of any other portion of the Project which
is the responsibility of any other tenant under such other tenant's lease.
Landlord's maintenance duties shall be carried out in a prompt, diligent and
workmanlike manner and shall include (to the extent not required to be performed
by Tenant under Article V):
(a) keeping the Common Area, including the parking areas reasonably clean.
(b) performing snow and ice removal and sanding/salting for all portions of
the Common Area constituting parking areas, drives and walkways.
(c) keeping the exterior and structure of the Building in good repair,
except that to the extent not covered by Landlord's Insurance; Tenant
will be responsible for any repair necessitated by the neglect or
willful misconduct of Tenant or Tenant's agents, servants, employees, or
contractors.
7.02. PROJECT DUMPSTERS AND TENANT'S DUMPSTERS. "Project Dumpsters are those
trash receptacles referred to in this paragragh. Landlord will provide a
dumpster or dumpsters for normal volumes of office trash in a location or
locations in the Project selected by Landlord. In the event Tenant's refuse
consists of other than normal volumes of office trash. Landlord reserves the
right to require Tenant to supply a dumpster or dumpsters for Tenant's trash
("Tenant's Dumpsters"), at Tenant's sole cost and expense, under contract which
is subject to Landlord's prior approval, which approval may be withheld on
account of the contract not being cancelable on not more than one month's
advance notice. The cost incurred by Landlord in providing a dumpster or
dumpsters may be included as an element of Project Operating Expenses or may be
charged as a Monthly Reimbursement reasonably allocated by Landlord among all of
the tenants using any dumpster in common with other parties.
7.03. LANDLORD'S RIGHT TO RELOCATE THE LEASED PREMISES. Landlord reserves the
right to relocate the Leased Premises to another space in the Project at any
time prior to or during the Term, subject to the following conditions. If
Landlord shall desire to relocate Tenant, Landlord shall give Tenant at least 60
days advance Notice of the relocation (the "Relocation Notice"), which shall
include the estimated effective date of the relocation and a floor area outline
and Leased Premises Square Footage of the new Leased Premises. Tenant shall
cooperate in a prompt manner after receipt of Relocation Notice, for the purpose
of development any fit-out plans desired by Tenants for the new leased Premises.
Landlord shall perform and bear the cost of any fit-out desired by Tenant for
the new Leased Premises, provided that Landlord shall only be required to
perform and pay for any fit-out that is specified by Tenant not later than 30
days after Landlord's Relocation Notice and provided the specified fit-out
requested to be performed by Landlord does not constitute a level of fit-out in
excess of the level of quality and quantity (on a per square foot basis) as
existed in the Leased Premises at the time of Landlord's relocation Notice.
Landlord may tender possession of the new Leased Premises to Tenant at any time
after the estimated effective date for the relocation contained in the
Relocation Notice, provided that any fit-out work required to be performed by
Landlord has been substantially completed. Landlord shall either: pay for the
reasonable cost of a moving service hired by Tenant (which cost has been
Approved by Landlord before the service is hired); or directly arrange and pay
for Tenant's move into the new Leased Premises. The date of tender of possession
of the new Leased Premises is the Relocation Commencement Date, and on such
date: the new Leased Premises shall be substituted for the previous Leased
Premises; the floor area outline given by Landlord with the Relocation Notice
shall be the new Exhibit A of this Lease; the Base Rent shall be adjusted by the
proportionate change in the Leased Premises Square Footage (the square footage
being calculated in the same manner as that for the original Leased Premises);
and any other factor dependent upon the Leased Premises Square Footage shall be
adjusted accordingly. Unless Tenant shall otherwise Consent, the exercise of
Landlord's right to relocate Tenant shall be limited such that the Leased
Premises Square Footage and the frontage of the new Leased Premises shall not
vary by more than 5% from the previous Leased Premises Square Footage. Tenant
shall vacate the previous Leased Premises not later than 5 days after the
Relocation Commencement Date, leaving the previous Leased Premises in the same
condition as would be required had the Term for the previous Leased Premises
come to an end by expiration of time.
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7.04. LANDLORD'S RIGHT TO PERFORM WORK IN PROJECT. Landlord shall have
the right to undertake the following activities in the Project: construction of
additions to the Buildings and additional buildings; demolition of Buildings;
changing the grade and/or layout of the parking area or other Common Area;
excavation of the Common Area for the purposes of the above and/or installing or
repairing utility lines; and remodeling of the exterior of the Buildings.
Landlord's right to undertake any of the foregoing activities shall be limited
such that: there will be no unreasonable interference with Tenant's use of the
Leased Premises or access thereto; there shall be no materially adverse change
with respect to the proximity of Tenant's parking to the Leased Premises; and
Tenant's parking shall not decrease below the level required to be maintained
under the municipal zoning regulations.
7.05. LANDLORD'S RIGHT TO PIPES, ETC. Landlord shall have the right to
install, maintain and repair pipes, wires, ducts and similar items in the space
above any suspended ceiling and, in the case of an area with no suspended
ceiling, in the area of the Leased Premises reasonably close to the underside of
the roof or next floor above the Leased Premises. Landlord may enter the Leased
Premises for the purpose of performing such installation, maintenance and
repair, and for the purpose of performing any maintenance or repair of any
portion of the Project for which entry into the Leased Premises is necessary,
provided any entry by Landlord under this paragraph is accomplished in a manner
which minimizes any disruption to Tenant's business.
ARTICLE VII - INSURANCE, INDEMNIFICATION, WAIVERS, ETC.
8.01. TENANT'S INSURANCE COVERAGES. Tenant will maintain Tenant's
Insurance Coverages at all times during the Term. Tenant's Insurance Coverages
shall be maintained with an insurance carrier licensed to do business in
Connecticut and Approved of in advance by Landlord, Landlord's Approval not to
be unreasonably withheld and to be based on whether the insurance carrier
maintains a rating reasonably satisfactory to Landlord from a rating service
such as A.M. Best. Landlord may require Tenant to name Landlord as an additional
insured on Tenant's public liability policy and as a loss payee (to the extent
of damage to the realty) on Tenant's property insurance policy. Landlord may
require Tenant to provide Landlord with a copy of the policy or policies
evidencing Tenant's Insurance Coverages and Tenant shall provide Landlord (prior
to the Actual Commencement Date) with a certificate whereby the insurance
carrier agrees not to cancel or fail to renew its coverage unless at least 15
days advance Notice is provided to Landlord. If Tenant shall fail to procure
Tenant's Insurance Coverages or provide Landlord with the copy of an insurance
policy or a certificate of insurance, as Landlord may request under the
provisions of this paragraph, Landlord may procure, but without any obligation
to do so, any Tenant's Insurance Coverages and Tenant will pay Landlord the
reasonable cost of the same. Tenant's Insurance Coverages are the following
insurance coverages, or such lesser coverages as Landlord may approve of in
advance:
(a) General public liability insurance coverage in at least the single limit
amount of $500,000, without deductible, insuring Tenant against all personal
injury and property damage claims for which Tenant is required to indemnify
Landlord under the provisions of this Lease.
(b) All-risk property insurance insuring at least the full replacement value
(less a commercially reasonable deductible not to exceed $2,000) of all of
Tenant's personal property at the Project and all fixtures and improvements
forming a part of and located within the boundaries of the Leased Premises.
8.02. LANDLORD'S INSURANCE COVERAGES. Landlord may maintain Landlord's
Insurance Coverages. Landlord's Insurance Coverages consist of any insurance
coverage reasonably maintained by Landlord in connection with the operation of
the Project, which coverages may include: a public liability insurance policy;
an all-risk property insurance policy, including coverage for rental loss on
account of property damage; and workers' compensation coverage for personnel
carrying out activities chargeable to Project Operating Expenses.
8.03. TENANT TO PAY FOR EXCESS INSURANCE PREMIUMS. Tenant will promptly
pay Landlord the amount of any insurance premium for Landlord's Insurance
Coverages which is in excess of the premium payable had Tenant's use of the
Leased Premises been a use for which the lowest premiums for Landlord's
Insurance Coverages are available. In the case where Tenant and any other
tenant's use or non use of their respective leased premises results in any
insurance premium in excess of the most favorable premiums for Landlord's
Insurance Coverages, Tenant shall be responsible to pay Landlord the portion of
the excess which the Leased Premises Square Footage bears to the total leased
premises square footage of all tenants causing the excess premium, or any other
reasonable allocation made by Landlord of the excess in premiums for Landlord's
Insurance Coverages caused by Tenant.
8.04. NO SUBROGATION - WAIVERS OF CLAIM. Landlord and Tenant, to the
extent not prohibited in their insurance policies, waive the rights of
subrogation against the other party on account of any insured loss. Tenant and
Landlord each recognize that they may obtain property insurance, covering losses
to property on account of acts and/or omissions of the other, and if such
coverage is not obtained, the party failing to maintain the coverage shall bear
the risk of any insurable property loss (less a commercially reasonable
deductible) caused by any act or omissions of the other party not arising to
the level of gross negligence or willful misconduct. Accordingly, in the event
of any uninsured property loss or damage of Tenant caused by any act or omission
of Landlord that does not constitute willful misconduct or gross negligence,
which loss or damage could have been insured under a standard tenant's all-risk
property insurance policy. Tenant waives any claim against Landlord on account
of the loss (except for recovery of commercially reasonable deductible not in
excess of $2,000). Further provided, in the event of any uninsured property loss
or damage of Landlord caused by any act or omission of Tenant that does not
constitute willful misconduct or gross negligence, which loss or damage could
have been insured under a standard Landlord's all-risk property insurance
policy, Landlord waives any claim against Tenant on account of the loss (except
for recovery of a commercially reasonable deductible.)
8.05. INDEMNIFICATION AGAINST THIRD PARTY CLAIMS. In the case of third
party claims arising out of an act or omission of Tenant or an agent, servant or
employee of Tenant (a "Tenant Fault Claim") and not out of an act or omission of
Landlord or an agent, servant or employee of Landlord (a "Landlord Fault
Claim"), Tenant shall be responsible for the Tort Indemnity of Landlord. In the
event of a Landlord Fault Claim, Landlord shall be responsible for the Tort
Indemnify of Tenant. In the event of claims which are both Tenant Fault Claims
and Landlord Fault Claims, Tenant shall be responsible for the claim to the
extent of the limit of public liability insurance coverage required to be
maintained by Tenant under paragraph 8.01(a), Landlord shall then be responsible
to the extent of the limit of Landlord's public liability insurance coverage,
and thereafter each party shall be responsible for the claim in the proportion
such party's fault bears to the total fault of Landlord and Tenant. Each party
shall be responsible for the Tort Indemnity of the other party for the portion
of the claim which is the responsibility of the party owing the Tort Indemnity.
Tort Indemnity shall mean that the party responsible for the indemnification
shall provide the legal defense of the claim (counsel being subject to the
approval of the indemnified party, approval not to be unreasonably withheld) and
the indemnifying party shall be responsible to pay the amount of the claim
(subject to the right to defend it) up to the limits of the indemnifications set
forth in this paragraph, above, except that in the case of claims which are both
Tenant Fault Claims and Landlord Fault Claims, each party shall be responsible
for such party's own costs of legal defense. Tort Indemnity shall not be owed to
the extent that the party owing the indemnification has been prejudiced by any
failure of the party seeking the indemnification to give Notice to the other
party within a reasonable time after said party becomes aware of a claim in
which the other party may owe an indemnity obligation under this paragraph.
ARTICLE IX - ASSIGNMENT AND SUBLETTING
9.01. LANDLORD'S CONSENT REQUIRED FOR ASSIGNMENT AND SUBLETTING.
Tenant will not assign this Lease in whole or in part nor sublet all or any part
of the Leased Premises without the prior written Consent of Landlord, which will
not be unreasonably withheld or delayed. Prior to any assignment or subletting
for which Landlord's Consent is required. Tenant shall give Notice to Landlord
of the proposed assignee or subtenant and the terms of the proposed assignment
or substenancy, and upon request of Landlord. Tenant will provide Landlord with
any other
<PAGE>
information reasonably requested by Landlord for the purpose of evaluating the
proposed assignee or subtenant. Landlord hereby expressly Consents to any
assignment or subletting to an entity controlled by Tenant, which controls
Tenant, or is under the control of the same entity that controls Tenant (a
"Tenant Affiliated Entity"). For the purposes of the preceding sentences,
"control" means legal voting control. The Consent by Landlord to any assignment
or subletting shall not constitute a waiver of the necessity for such Consent to
subsequent assignment or subletting. Assignment or subletting shall include a
change in a majority of any ownership of Tenant (in the case of a tenant that is
not an individual) and shall include an assignment or subletting by operation of
law (attachment of Tenant's interest in the leasehold, for example). Unless
landlord shall give express Consent of the release of Tenant, no assignment or
subletting or acceptance of any rent from any part in possession of the Leased
Premises shall constitute a release of Tenant from the obligations under this
Lease. By accepting the assignment of this Lease, any assignee assumes all
obligations of Tenant to Landlord from and after the date of the assignment,
jointly and severally with Tenant. Any attempted assignment or subletting by
Tenant without the prior Consent of Landlord shall be void. No assignment or
subletting shall provide for a rental payment, or other payment for use and
occupancy or utilization, based in whole or in part on the net income or profits
derived by any person or entity from the property assigned, subleased, occupied
or utilized (other than an amount based upon a fixed percentage of sales), and
any such purported assignment or subletting based upon such payment shall be
void and any amount payable thereunder or any rental amount therefor passed to
any person or entity shall not have deducted therefrom any expenses or costs
related in any way to the leasing of such space.
9.02 RELEASE OF TENANT ON CERTAIN ASSIGNMENTS AND SUBLETTINGS. Except
for an assignment or subletting to a Tenant Affiliated Entity, for which express
Consent is given in paragraph 9.01, in the event Tenant gives Landlord any
Notice of proposed assignment of this Lease or subletting of more than 50% of
the Leased Premises, the Landlord may, by Notice to Tenant, terminate this Lease
by lapse of time, effective on the date specified in Landlord's termination
Notice. Landlord's termination Notice under this paragraph may only be given
within 30 days after Notice of the proposed assignment or subletting from
Tenant, unless, within 15 days after the Notice from Tenant Landlord makes a
request to Tenant for further information with which to evaluate the proposed
assignee or subtenant, in which event the time within which Landlord may give
Notice of termination shall be extended to 30 days after Tenant has provided the
further information to Landlord. Landlord's termination Notice must specify an
effective date for the termination, and if the termination Notice is given, this
Lease shall come to an end by lapse of time as if the Term had always expired on
the effective date of the termination, and provided Tenant has vacated the
Leased Premises in accordance with the provisions of this Lease, Tenant shall be
deemed to be released from any further liability or obligations of Tenant under
this Lease arising from and after the date Tenant has vacated.
9.03 LANDLORD'S RIGHTS ON PROPOSED SUBLETTING OR ASSIGNMENT. In the
event Tenant desires to sublet or assign this Lease in whole or in part, other
than to a Tenant Affiliated Entity, for which express Consent is given in
paragraph 9.01, then Landlord shall have the right of first refusal against such
subletting or assignment in accordance with the further provisions of this
paragraph. Tenant shall give Landlord Notice of the terms of any bona fide offer
to sublet or assign pursuant to which Tenant desires to consummate a subletting
or assignment, which terms shall not include consideration for the subrent or
assignment price in anything other than cash and shall not include the subrental
or assignment of any premises other than all or a portion of the Leased
Premises. Landlord shall have 15 days after the Notice from Tenant to notify
Tenant of Landlord's acceptance of said subletting or assignment terms. If
Landlord shall not exercise Landlord's right of refusal within the 15 day time
period, the subletting or assignment shall be free of Landlord's refusal right
contained in this paragraph as to a subletting or assignment on the terms
contained in the Notice from Tenant, provided that such assignment or sublease
is executed and commences within not more than 60 days after Tenant's
aforementioned Notice to Landlord. If Tenant wishes to sublet or assign at a
lower rent, more favorable terms to assignee or subtenant or outside of said 60
day period. Tenant must again Notice to Landlord the terms of any such bona fide
offer acceptable to Tenant and the above process shall be repeated.
ARTICLE X - ESTOPPEL CERTIFICATES, SUBORDINATION, ETC.
10.01 ESTOPPEL CERTIFICATES. Upon request of Landlord or any mortgage
of Landlord, Tenant shall execute an estoppel certificate, certifying the status
of any facts with respect to the Lease. Estoppel certification may include:
whether the Lease is in full force and effect; the rentals due under the Lease
and the degree to which same have been paid; that there are no defenses or
claims against Landlord for any alleged violation of the Lease by Landlord, or a
statement of such defenses or claims; acknowledgment of the interpretation or
meaning of any term of the Lease, provided such acknowledgement shall not change
any term or provision hereof; and such other matters reasonably requested to be
certified in the estoppel certificate.
10.02 SUBORDINATION, ATTORNMENT, ETC. This lease and all rights of the
Tenant under this Lease, will be, at the election of any mortgagee of the
Project, either subordinate or superior, in all or in part, to the lien of the
mortgagee. Notwithstanding the foregoing or any other provision of this Lease to
the contrary, if there shall be more than one mortgage on the Project, the
rights of Tenant under this Lease shall not be treated as inferior to any
inferior mortgage without the consent of all mortgagees superior in right to the
mortgage to which Tenant's rights are sought to be subordinated. The
subordination provisions in this Paragraph shall be self-operative, without the
need for any execution of any other document. In the event any proceeding is
brought for the foreclosure of the Leased Premises, Tenant agrees to attorn to
the mortgagee in the event of strict foreclosure, or to the purchaser in the
event of foreclosure by sale or deed in lieu of foreclosure, and recognize such
mortgagee or purchaser (as the case may be) as the Landlord under this Lease.
Tenant further agrees to execute any further instrument or instruments which
Landlord or Landlord's successors in title may at any time require to evidence
the subordination of this Lease to the lien of any such mortgage or mortgages
and Tenant's agreement to attorn.
10.03 EXECUTION OF DOCUMENTS BY TENANT. Tenant will execute and deliver
to Landlord or the party designated by Landlord, within ten days after
presentation of the proposed form, any estoppel certificate and/or
subordination, attornment and/or non disturbance agreement requested to be
executed by Tenant pursuant to the terms of this Lease. Tenant further agrees to
include in any such documents, if requested by Landlord: an agreement not to pay
Landlord rent for more than one month in advance, an agreement to give any
mortgagee a notice of any alleged default by Landlord and a reasonable time for
such mortgagee to have such default cured before Tenant will exercise any right
to terminate this Lease and an agreement that Tenant will not look to such
mortgages for the return of any security deposit or other monies not actually
received by such mortgages. If Tenant shall not have delivered the executed
documents, required to be executed and delivered under this Article, within the
ten day period set forth above, Landlord may give Tenant Notice of Tenant's
failure to deliver such documents, and if Tenant shall then fail to deliver said
executed documents within three business days after delivery of such Notice,
notwithstanding any provision for notice and grace period for default elsewhere
contained in this Lease, Tenant shall be in default of the lease, and Landlord
shall have all rights provided for in the event of such default, including
termination. It is acknowledged that foreseeable damages of Landlord on account
of a breach of Tenant's obligations under this Article may include the loss of
and/or additional charge incurred by Landlord in connection with a sale of the
Project or a financing of which the Project is to serve as collateral.
ARTICLE XI - TENANT'S SECURITY DEPOSIT
11.01 TENANT'S SECURITY DEPOSIT. Tenant's Security Deposit is due and
payable to Landlord upon execution of this Lease. The Security Deposit shall be
security for the full and faithful performance of all obligations of Tenant
under this Lease. The rights and remedies reserved to the Landlord under this
Lease are cumulative, and in the event of a default by the Tenant, the Landlord
shall not be required to resort to the Security Deposit before exercising any
other remedy available to Landlord under this Lease or by law. The Security
Deposit will be refunded without interest to the Tenant promptly following the
expiration of this Lease, except to the extent the Security Deposit has been
applied to any damages of Landlord on account of Tenant's failure to comply with
any obligation of Tenant under this Lease. In no event, except when the Landlord
elects at Landlord's sole option to do so, may the Tenant set off or apply any
part of the Security Deposit against any Rent.
<PAGE>
12.01. REPAIR OF DAMAGE AND RENTAL ABATEMENT DURING REPAIR PERIOD. If
the Leased Premises or any portion of the Project materially affecting the
appearance or use of the Leased Premises is damaged by fire or other casualty
during the Term, Landlord shall, at Landlord's own expense, use best efforts to
cause the damage to be promptly repaired within a reasonable tie, which period
shall not exceed six months. If by reason of such damage not the fault of
Tenant, any portion of the Leased Premises is thereby rendered untenable and
Tenant ceases use of said portion of the Leased Premises, the Monthly Base Rent
and Monthly Additional Rent shall be abated in proportion to the area of the
Leased Premises rendered untenable and which is not used by Tenant, said
abatement to continue until the sooner of the time when the Leased Premises is
repaired or until Tenant uses the damaged portion of the Leased Premises.
Landlord's obligation to restore under this Article shall be limited to the
extent of insurance proceeds made available by any mortgage having control over
the disposition of such proceeds and shall be limited to not include the
restoration of any portion of the Leased Premises for which Tenant is required
to maintain property insurance under paragraph 8.01. Tenant shall be responsible
to promptly restore any portion of the Leased Premises for which Tenant is
required to maintain property insurance under paragraph 8.01.
12.02. TERMINATION FOR FAILURE TO REPAIR. If the Leased Premises or
any portion of the Project is damaged by fire or other casualty not the fault of
Tenant during the Term, and if said Damage materially adversely affects
Tenant's ability to carry on Tenant's business in the Leased Premises, then the
portion of the damage that is not Tenant's responsibility to restore is not
repairable or repaired within six months, Landlord or Tenant shall have the
right, to be exercised by Notice to the other party to terminate this Lease,
which Notice may not be given later than any date upon which the damage has been
substantially repaired. Upon the giving of such termination Notice, the Term
shall immediately come to an end and by lapse of time.
ARTICLE XIII - EMINENT DOMAIN
13.01. TERMINATION ON ACCOUNT OF TAKING. If any portion of the Leased
Premises or any portion of the Project materially affecting the appearance or
use of the Leased Premises is taking in condemnation proceedings or by any right
of eminent domain, this Lease shall terminate by lapse of time, as if the Term
had always ended on the effective date of the vesting of title in the condemning
authority.
13.02. TENANT NOT ENTITLED TO LANDLORD'S AWARD. In the event any
portion of the Project is taken in condemnation proceedings or by any right of
eminent domain or is transferred by Landlord under the threat of and in lieu of
the exercise of the power of eminent domain, all proceeds of any award, judgment
or settlement payable by the taking, condemning or transferee authority shall be
and remain the sole and exclusive property of Landlord, and Tenant waives any
right to make any claim to said award, judgment or settlement received by
Landlord. Tenant may pursue Tenant's own claim against the condemning authority
permitted by statute to be paid to Tenant without diminishing or reducing the
award, judgment or settlement payable to Landlord.
ARTICLE XIV - LANDLORD'S LIABILITY LIMITATIONS
14.01. LIMITATIONS REGARDING SECURING CLAIMS. In the event of any
alleged default of Landlord, Tenant agrees that Tenant will not seek to secure
any claim for damages or indemnification by any attachment, garnishment or
other security proceeding against any property of the Landlord other than the
Project, or, if sold, any sales proceeds of the Project, and in the event Tenant
obtains any judgment against Landlord by virtue of an alleged default of
Landlord, Tenant agrees that Tenant will not look to any property of Landlord
other than the Project, or if sold, any sales proceeds, for satisfaction of such
judgment. In no event will Tenant be entitled to recover against Landlord, or
prosecute or maintain any action for the recovery against Landlord of, any
consequential damages and/or business interruption damages against Landlord on
account of an act or omission of Landlord which constitutes a breach of this
Lease by Landlord.
14.02. TRANSFER OF LANDLORD'S INTEREST IN PROJECT. Upon any transfer
of Landlord's interest in the Project, the then transferor Landlord shall be
relieved of any and all liability to Tenant arising from and after the transfer,
and the transferee Landlord shall not be liable to Tenant for any liability
arising prior to the transfer. Notwithstanding the foregoing, if any condition
shall exist on the date of transfer which would entitle Tenant to terminate this
Lease or the continuance of which would entitle Tenant to terminate this Lease
after the passage of time, unless the condition is corrected within any time
allowed under this Lease or by law, the transfer shall not affect Tenant's right
to terminate.
14.03. NO LIABILITY FOR THEFT, ETC. All property of Tenant in the
Project shall be kept at Tenant's own risk, and Landlord shall not be
responsible for any theft of Tenant's property or any property of any agent,
servant, employee, contractor or invitee of Tenant, unless the theft is
committed by Landlord, and Tenant shall indemnify and hold Landlord harmless
from any claim against Landlord by any agent, servant, employee, contractor or
invitee of Tenant based upon any allegation of them for which Landlord's
liability is disclaimed under this paragraph.
ARTICLE XV - DEFAULTS AND ENFORCEMENT OF LEASE
15.01. EVENTS OF DEFAULT BY TENANT. Tenant will be in default of
Tenant's obligations under the Lease upon the happening of any of the following:
(a) If any payment of Rent has not been made within 5 business days after
Notice to Tenant that the payment has not been received by Landlord on
or before its due date.
(b) If Tenant shall commit a default on account of a failure to execute and
deliver any estoppel or subordination, non disturbance and/or ???
agreement in the manner provided in Article X.
(c) If Tenant shall commit a default or account of a failure to discharge a
mechanic's lien in the manner provided in paragraph 6.02
(d) The failure to cure any non compliance with the obligations for the
continuous operation of Tenant's business set forth elsewhere in this
Lease, if any, within 5 business days after Notice from Landlord for the
final violation in any one year, 2 business days for a second violation
in any one year and any violation thereafter, without Notice for a third
or more violation in a one year period.
(e) The failure to cure within 30 days after Notice to Tenant the non
compliance by Tenant with any other obligation of Tenant under this
Lease, except that in the case of an obligation not capable of being
cured within said 30 day period (determined without regard to the cost
or ability to pay for compliance), Tenant will not be in default as long
as Tenant has commenced the cure of the non compliance reasonably
promptly after the Notice and is continuously thereafter diligently
proceeding to complete the cure.
15.02. REMEDIES ON ACCOUNT OF DEFAULT. In the event of default by
Tenant, then Landlord may terminate this Lease and recover possession of the
Leased Premises, and Landlord may exercise any other remedy available under the
law to Landlord on account of a breach of lease by a tenant.
15.03. COSTS OF ENFORCING LEASE. Landlord shall be entitled to
reimbursement from Tenant of the reasonable costs of enforcement of this Lease
incurred by Landlord (including a reasonable attorney's fees) in any action or
proceeding (whether or not suit is brought) of Landlord to enforce the
provisions of this Lease on account of any failure of Tenant to adhere to
Tenant's obligations under this Lease, provided that Landlord prevails in such
action or proceeding.
15.04. JURY WAIVER, FORUM AND VENUE. Landlord and Tenant waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties against the order on any manner whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's Use
or occupancy of the Lease Premises.
<PAGE>
and/or claim of injury or damage. In any dispute between the parties relating to
the tenancy hereby granted, unless the parties shall agree otherwise, the
exclusive forum for any such legal action shall be the Connecticut state court
hearing landlord and tenant disputes, with venue based on the location of the
Leased Properties and not the residence or location of the parties.
ARTICLE XVI - VACATING AT THE END OF TERM, HOLDING OVER
16.01. VACATING LEASED PREMISES AT END OF TERM. At the expiration of the
Term, whether by lapse of time or for any other reason, Tenant will surrender
the Leased Premises to Landlord, the condition of which upon the surrender shall
be broom clean, free of all personal property and in good repair, reasonable
wear and tear excepted. All keys to any doors at the Leased Properties shall be
turned over to the Landlord upon the surrender, and tenant shall provide
Landlord with any other means for opening any other locks (safes, vaults, etc.)
at the Leased Premises upon the surrender. Prior to the surrender, Tenant shall
remove all of the Tenant's trade fixtures, unless Landlord shall Consent to the
retention of any trade fixtures, Tenant will remove any alteration that had made
in the Project by Tenant without Landlord's Approval; and Tenant will repair
and/or restore the Leased Premises and/or Project as a result of any removal of
any fixture or improvement removed by Tenant. Without diminishing Tenant's
responsibility to remove Items from and repair damage in the Leased Premises at
the end of the Term, if, prior to Tenant's vacating of the Leased Premises,
Tenant fails to remove any item of personal property or any trade fixtures or
improvement that it is Tenant's responsibility of remove, all such items will
become the property of Landlord.
16.02. HOLDING OVER. If Tenant shall hold over beyond the end of the
Term with the Consent of Landlord, then the provisions of the hold over tenancy
shall be the same provisions set forth in this Lease governing the rights and
obligations of the parties during the Term, except that the tenancy shall be on
the basis of a month to month tenancy, terminable by Landlord immediately by
issuance of a notice to quit possession, so long as the quitting date is at
least 3 days after the giving of the notions to quit; there shall be no rights
or options in Tenants to extend this Term, increase or decrease the size of the
Leased Premises, purchase any portion of the Project, exercise any right of
refusal to any leasing or sale of any portion of the Project or any similar
rights that may have been in effect during this Term; and the Monthly Base Rent
for the hold over shall be the Monthly Base Rent in effect immediately prior to
the end of the Term, which shall be increased in the same manner as the Monthly
Base Rent had been increased by any formula or with any regular frequency during
the Term. If Tenant shall not have vacated the Leased Premises on or before the
end of the Term and does not have Landlord's Consent to remain in the Leased
Premises, the failure to vacate shall not be treated as a hold over for any
further term and it is agreed that the use and occupancy damages for which
Tenant will be liable during any such period of occupancy will be the amount
that would have been payable as Additional Rent had this Lease remained in
effect during the period of occupancy plus an amount equal to twice the Monthly
Base Rent in effect at the end of the Term.
ARTICLE XVII - MISCELLANEOUS PROVISIONS
17.01. NO WAIVER OF OBLIGATIONS. The waiver by Landlord or Tenant of
any breach by or obligation of the other party of any provision of this Lease
shall not be deemed to be a waiver of any other branch or obligation. The
acceptance of any Rent by Landlord or the payment thereof by Tenant shall not be
deemed to be a waiver of any breach by any party. No payment by Tenant or
receipt by Landlord of any payment which is less than the amount due shall be
deemed to be a waiver of any right to obtain payment of the full amount due, and
Landlord may apply any payment by Tenant to any charge owed by Tenant to
Landlord under the provisions of this Lease, and no restrictive endorsement,
??? of Tenant or any other attempt by Tenant to restrict the application of the
payment in any ordinary manner shall be operative or affective, and no
endorsement or any check or payment made by or on behalf of Tenant shall be
deemed as any accord and satisfaction for any obligation, other than
satisfaction of the charge to which Landlord has applied the payment. No waiver
of any breach of obligation of any party shall be effective unless in writing by
the party charged with the waiver.
17.02. ENTIRE AGREEMENT. This Lease, including any exhibits attached
to it or referenced by it, constitute the entire agreement between the parties
as to this leasing, and there are no covenants, promises, agreements, conditions
or understandings, either oral or written, between the parties other than those
contained in or specifically referenced by this Lease. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon either party
unless in writing by the party to be charged.
17.03. SEVERABILITY. The provisions of this Lease are severable, and
if any provision shall be downloaded to be invalid or unenforceable, the
provision shall be enforced to the extent permitted by law and, to the extent
any provision or portion thereof remains unenforceable or invalid, it shall be
severed from this Lease and the remainder of the Lease shall be valid and
enforced to the fullest extent permitted by the law.
17.04. HEADINGS NOT TO LIMIT EFFECT OF LEASE. The headings for the
articles and paragraphs of this Lease are inserted for ease of reference only
and no such heading shall be interpreted to the limit the operation of any
language contained in the article or paragraph following the heading. All
language in this Lease shall be given its full operative effect, regardless of
the article or paragraph to which it is located and regardless of its location,
proximity or lack of proximity to any other related or unrelated provisions.
17.05. DATES. If the Initial or Actual Commencement Date or any other
date on which any obligation or event in this Lease is dependent is not a date
certain, the Commencement Date shall in no event be later than a time which
would not violate any applicable rule against perpetuities, determined as if all
relevant lives in being ceased as of the date of execution of this Lease.
17.06. FORCE MAJEURE. In the event that Landlord or Tenant shall be
delayed in, hindered if, or prevented from, the performance of any act required
under the provisions of this Lease, except for the payment of money, by reason
of strikes, lock-outs, labor troubles, inability to procure materials, failure
of power, restrictive governmental laws or regulations, riots, insurrection, war
or other reason of a like nature not the fault of the party whose act is delayed
("Force Majeure"), then as long as the party whose act is delayed is using best
efforts to avoid this delay and the effect of the Force Majeure, then
performance of such act shall be excused for the period of the delay.
17.07. LANDLORD'S ENTRY INTO LEASED PREMISES. Landlord and Landlord's
agents and other representatives shall have the right to enter into and upon the
Leased Premises at all reasonable hours, upon reasonable advance written or
verbal notice to Tenant and consistent with Tenant's security requirements, for
the purpose of examining the Leased Premises or making such repairs or
alternations therein as may be necessary, in Landlord's reasonable discretion,
for maintaining the Project in a condition of safety and good repair. Landlord's
entry under this paragraph may be made at any hour and without notice in the
case of emergency. During any period in which Tenant is in possession of the
Leased Premises, Tenant will provide Landlord with a key or set of keys and any
other means necessary for Landlord to gain emergency access to the Leased
Premises in accordance with the provision of this Paragraph, and Tenant shall
update the key, keys or other means of access on hand with Landlord at any time
the locks to the Leased Premises are changed.
17.08. SHOWING OF LEASED PROPERTIES. Tenant will permit Landlord and
Landlord's agents to show the Leased Premises to any prospective purchaser of
the Project at reasonable hours and upon advance written or verbal notice to
Tenant. During any period in which there are less than 6 months remaining in the
Term, Tenant will permit Landlord and Landlord's agents: to show the Leased
Premises to any prospective tenant for the Leased Premises at reasonable hours
and upon advance written or verbal notice to Tenant; and to plant a sign on the
front of the Leased Premises offering the same for lease, so long as it does not
interfere with any of Tenant's signage permitted under other provisions of
this Lease.
17.09. NO RESERVATION OR OFFER. The submission of this Lease for
examination does not constitute a reservation of the Leased Premises, and
options to lease the Leased Premises or in any other manner an offer by
Landlord, unless and until it is executed by Landlord and delivered to Tenant.
17.10. NO RECORDING. Tenant shall not record this Lease, but Landlord
agrees to execute a notice of lease in accordance with the Connecticut General
Statutes regarding the recording of notices of lease.
<PAGE>
Tenant may record the notice of lease. If Tenant violates this paragraph, then
notwithstanding any other provision of this Lease to the contrary, Landlord may,
at Landlord's election, without any further Notice or cure period, terminate the
Lease on account of the breach.
17.11. JOINT AND SEVERAL LIABILITY. The references to Tenant and
Landlord in this Lease mean all persons or entities comprising Tenant or
Landlord at any given time, and if Tenant or Landlord shall consist of more than
one person or entity, the obligations of each person or entity shall be joint
and several with all other persons or entities comprising Tenant or Landlord, as
applicable.
17.12. CHOICE OF LAW. Connecticut law shall apply to all state law
matters arising under this Lease.
ADDITIONAL TERMS: none
<PAGE>
IN WITNESS WHEREOF, each party has caused this Lease to be executed on
the date below written, the date of the Lease being as of the date set forth on
the face page, if different than the date of execution for either part.
Landlord Tenant
/s/ Robert Senito /s/ Thomas Cenabona
- -------------------- -------------------
Robert Senito Linkon Corporation
By: Thomas V. Cenabona
Its: Vice President
Date: 6-23-97 Date: 6-18-97
<PAGE>
State of Connecticut
ss City/Town of Fairfield
County of Fairfield
Personally appeared Thomas V. Cenabona, signer and sealer of the
foregoing instrument, who acknowledged himself or herself to be the Vice
President of Linkon Corporation and the execution to be his or her free act and
deed and the duly authorized free act and deed of ,
---------------------
before me, this 18th of June, 1997.
/s/ Jennifer R. Hogarth
--------------------------------
Commissioner of the Superior Court/Notary Public
Jennifer R. Hogarth
Notary Public
My Commission Expires August 31, 1998
State of Connecticut
ss City/Town of Shelton
County of Fairfield
Personally appeared Robert D. Scinto, 140 Sherman St., LLC, signer of
the foregoing instrument, who acknowledged the same to be his free act and deed,
before me, this 23rd day of June, 1997.
/s/ Eleanor M. Choate
-----------------------------------
Notary Public
Eleanor M. Choate
Notary Public
My Commission Expires July 31, 1998
<PAGE>
EXHIBIT A
LEASE BETWEEN 140 SHERMAN ST., LLC &
LINKON CORPORATION
140 SHERMAN STREET
FAIRFIELD, CT
SECOND FLOOR
[Floor plan detailing layout of Leased Premises omitted]
<PAGE>
EXHIBIT B
DESCRIPTION OF LAND
All those two certain pieces, parcels or tracts of land, together with the
buildings and improvements thereon situated in the Town of Fairfield, County of
Fairfield and State of Connecticut and described as follows:
FIRST PARCEL:
- -------------
All that certain piece, parcel or tract of land known as 128-140 Sherman Street,
bounded and described as follows:
NORTHERLY 126.02 feet by land now or formerly of E. Richard Henry, land
now or formerly of Murren, Homa & Pellegrino, Inc., each
in part;
EASTERLY 11.04 feet; again
NORTHERLY 30.00 feet, all by land now or formerly of Olympia A. Crist
and George A. Crist; again
EASTERLY 178.72 feet by land now or formerly of May Y. McGarry;
SOUTHERLY 179.59 feet by Sherman Street; and
WESTERLY 190.42 feet by land now or formerly of the Town of Fairfield
and by land now or formerly of Bessie B. Sullivan, each
in part.
Together with all right, title and interest, if any, to a right of way to the
Post Road, as reserved in a certain Warranty Deed from Charles S. Fox to Thomas
F. Davis and Sarah E. Davis, dated October 7, 1931, and recorded in the Land
Records of the Town of Fairfield in Book 145 at Page 192.
Together with all right, title and interest, if any, to the right to use seven
parking spaces as provided in a certain instrument from Nicholas Phakias and
George A. Crist to Ralph A. Monaco, et., al., dated May 3, 1974, and recorded in
said Land Records in Book 597 at Page 984.
PARCEL TWO
- ----------
All that certain piece, parcel or trace of land containing 12,000 square feet,
shown and designated as Plot "A" on a certain map entitled "Map of Property for
Frank W. Carroll, Fairfield, Connecticut, May 12, 1977" made by The Huntington
Company Engineers and Surveyors, and on file in the office of the Town Clerk of
Fairfield as Map No. 4622 and more particularly bounded and described as
follows:
NORTHERLY by Sherman Street, 124.31 feet by a bent line;
EASTERLY by other land now or formerly of Frank W. Carroll, 105.25 feet;
SOUTHERLY by land now or formerly of Carroll Brothers, 146.57 feet; and
WESTERLY in part by land now or formerly of Robert Erika E. Coccarelli, and
in part by land now or formerly of Mary Elizabeth Flanagan, in all
75.20 feet.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
LINKON CORPORATION
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM YHE
COMPANY'S CONSOLIDATED BALANCE SHEET DATED AS OF JULY 31, 1997 AND THE COMPANY'S
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE SIX MONTHS ENDED JULY 31, 1997 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS AND THE
NOTES THERETO.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-END> JUL-31-1997
<CASH> 101,838
<SECURITIES> 0
<RECEIVABLES> 388,090
<ALLOWANCES> 72,888
<INVENTORY> 452,861
<CURRENT-ASSETS> 965,152
<PP&E> 1,399,635
<DEPRECIATION> 971,902
<TOTAL-ASSETS> 2,426,472
<CURRENT-LIABILITIES> 852,981
<BONDS> 1,299,569
<COMMON> 10,897
0
0
<OTHER-SE> 273,922
<TOTAL-LIABILITY-AND-EQUITY> 2,426,472
<SALES> 1,528,050
<TOTAL-REVENUES> 1,528,050
<CGS> 977,641
<TOTAL-COSTS> 977,641
<OTHER-EXPENSES> 1,412,930
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 104,798
<INCOME-PRETAX> (967,319)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (967,319)
<EPS-PRIMARY> (0.09)
<EPS-DILUTED> (0.09)
</TABLE>
