SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 27, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Numbers 0-25586 and 33-66740
UNIROYAL CHEMICAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-1258925
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
UNIROYAL CHEMICAL COMPANY, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY 06-1148490
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
BENSON ROAD
MIDDLEBURY, CONNECTICUT 06749
(Address of principal executive offices) (Zip Code)
Registrants' telephone number, including area code - (203) 573-2000
Indicate by check mark whether the registrants (1) have filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrants were required to file such reports), and (2) have been subject to
such filing requirements for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuers' classes of
common stock, as of November 19, 1997:
Uniroyal Chemical Corporation: 100 shares of Common Stock;
Uniroyal Chemical Company, Inc.: 100 shares of No Class Common Stock.
Registrants meet the conditions set forth in General Instruction (H)(1)(a) and
(b) of Form 10-Q and are therefore filing this Form with the reduced
disclosure format.
<PAGE>
THE REGISTRANTS ARE NOT REQUIRED BY SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 TO FILE THIS REPORT, WHICH IS BEING FILED TO COMPLY WITH
CERTAIN PROVISIONS OF THE INDENTURES APPLICABLE TO THREE SERIES OF OUTSTANDING
PUBLIC DEBT OF UNIROYAL CHEMICAL CORPORATION AND ONE SERIES OF SUCH DEBT OF
UNIROYAL CHEMICAL COMPANY, INC. UNIROYAL CHEMICAL CORPORATION IS A
WHOLLY-OWNED SUBSIDIARY OF CROMPTON & KNOWLES CORPORATION. UNIROYAL CHEMICAL
COMPANY, INC. IS A WHOLLY-OWNED SUBSIDIARY OF UNIROYAL CHEMICAL CORPORATION.
* * * * * * * * * * * * * * *
UNIROYAL CHEMICAL CORPORATION
UNIROYAL CHEMICAL COMPANY, INC.
FORM 10-Q
FOR THE QUARTER ENDED September 27, 1997
INDEX
PART I - FINANCIAL INFORMATION
Item 1 - Condensed Financial Statements and Accompanying Notes
Consolidated Statements of Operations (unaudited) for the
Quarters and Nine Months Ended September 27, 1997 and September 28, 1996
Consolidated Balance Sheets - September 27, 1997 (unaudited)
and December 28, 1996
Uniroyal Chemical Corporation
Uniroyal Chemical Company, Inc.
Consolidated Statements of Cash Flows (unaudited) for the
Nine Months Ended September 27, 1997 and September 28, 1996
Notes to Consolidated Financial Statements - Quarter ended
September 27, 1997 (unaudited)
Item 2 -- Management's Discussion and Analysis of Financial
Condition and Results of Operations
PART II - OTHER INFORMATION
Item 6 -- Exhibits and Reports on Form 8-K
Signatures
*Exhibit 10 - Second Amended and Restated Lease Agreement
*Exhibit 27 -- Financial Data Schedule
* A copy of these Exhibits are annexed to this report on Form 10-Q provided
to the Securities and Exchange Commission.
<PAGE>
UNIROYAL CHEMICAL CORPORATION UNAUDITED
UNIROYAL CHEMICAL COMPANY, INC.
Consolidated Statements of Operations
Quarters and nine months ended September 27, 1997 and September 28, 1996
(In thousands of dollars)
Quarters Ended Nine Months Ended
------------------ ------------------
Sept. 27, Sept. 28, Sept. 27, Sept. 28,
1997 1996 1997 1996
-------- -------- -------- --------
Net sales $289,801 $303,575 $921,497 $901,266
Cost of products sold 172,129 184,115 554,856 545,089
Selling, general and
administrative 42,251 43,961 126,217 129,020
Depreciation and
amortization 15,982 17,067 47,737 51,289
Research and
development 9,863 10,648 29,555 30,152
Severance and
other costs 10,000 - 10,000 -
Special environmental
provision 13,500 30,000 13,500 30,000
Merger and related
costs - 52,579 - 52,579
-------- -------- -------- --------
Operating profit (loss) 26,076 (34,795) 139,632 63,137
Interest 23,377 26,418 72,713 80,114
Other income (27,773) (337) (27,066) (165)
-------- -------- -------- --------
Earnings (loss) before
income taxes and
extraordinary loss 30,472 (60,876) 93,985 (16,812)
Income taxes 11,605 (11,182) 35,740 6,532
-------- -------- -------- --------
Earnings (loss) before
extraordinary loss 18,867 (49,694) 58,245 (23,344)
Extraordinary loss
on early
extinguishment of
debt (1,619) - (2,846) (441)
-------- -------- -------- --------
Net earnings (loss) $ 17,248 $(49,694) $ 55,399 $(23,785)
======== ======== ======== ========
See accompanying notes to consolidated financial statements
<PAGE>
UNIROYAL CHEMICAL CORPORATION SEPTEMBER 27, 1997 UNAUDITED
Consolidated Balance Sheets
September 27, 1997 and December 28, 1996
(In thousands of dollars)
Sept. 27, Dec. 28,
1997 1996
------------ ------------
ASSETS
CURRENT ASSETS
Cash $ 8,505 $ 21,015
Accounts receivable 196,776 137,238
Inventories 186,380 202,762
Other current assets 59,924 60,848
------------ ------------
Total current assets 451,585 421,863
NON-CURRENT ASSETS
Property, plant and equipment 348,950 367,962
Cost in excess of acquired net
assets 124,331 128,155
Other intangible assets 80,241 91,782
Other assets 94,764 123,545
------------ ------------
$1,099,871 $1,133,307
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current installments of long-term
debt $ - $ 731
Notes payable 2,113 8,595
Accounts payable 78,596 97,909
Accrued expenses 104,687 87,045
Income taxes payable 29,881 24,969
Other current liabilities 6,978 268
------------ ------------
Total current liabilities 222,255 219,517
NON-CURRENT LIABILITIES
Long-term debt 865,860 925,982
Accrued postretirement
liability 144,886 174,025
Other liabilities 151,711 150,615
STOCKHOLDERS' EQUITY (DEFICIT)
Additional paid-in capital 172,822 172,822
Accumulated deficit (425,008) (480,407)
Accumulated translation adjustment (29,895) (25,534)
Pension liability adjustment (2,760) (3,713)
------------ ------------
Total stockholders' deficit (284,841) (336,832)
------------ ------------
$1,099,871 $1,133,307
============ ============
See accompanying notes to consolidated financial statements
UNIROYAL CHEMICAL COMPANY, INC. SEPTEMBER 27, 1997 UNAUDITED
Consolidated Balance Sheets
September 27, 1997 and December 28, 1996
(In thousands of dollars)
Sept. 27, Dec. 28,
1997 1996
------------ ------------
ASSETS
CURRENT ASSETS
Cash $ 8,505 $ 21,015
Accounts receivable 196,776 137,238
Inventories 186,380 202,762
Other current assets 59,924 60,848
------------ ------------
Total current assets 451,585 421,863
NON-CURRENT ASSETS
Property, plant and equipment 348,950 367,962
Cost in excess of acquired net
assets 124,331 128,155
Other intangible assets 80,241 91,782
Other assets 94,764 123,545
------------ ------------
$1,099,871 $1,133,307
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current installments of long-term
debt $ - $ 731
Notes payable 2,113 8,595
Accounts payable 78,596 97,909
Accrued expenses 104,687 87,045
Income taxes payable 29,881 24,969
Other current liabilities 6,978 268
------------ ------------
Total current liabilities 222,255 219,517
NON-CURRENT LIABILITIES
Long-term debt 865,860 925,982
Accrued postretirement
liability 144,886 174,025
Other liabilities 151,711 150,615
STOCKHOLDERS' EQUITY (DEFICIT)
Common stock 1 1
Additional paid-in capital 174,504 174,504
Accumulated deficit (426,691) (482,090)
Accumulated translation adjustment (29,895) (25,534)
Pension liability adjustment (2,760) (3,713)
------------ ------------
Total stockholders' deficit (284,841) (336,832)
------------ ------------
$1,099,871 $1,133,307
============ ============
See accompanying notes to consolidated financial statements
UNIROYAL CHEMICAL CORPORATION UNAUDITED
UNIROYAL CHEMICAL COMPANY, INC.
Consolidated Statements of Cash Flows
Nine months ended September 27, 1997 and September 28, 1996
(In thousands of dollars)
Sept. 27, Sept. 28,
1997 1996
------------ ------------
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings (loss) $ 55,399 $(23,785)
Adjustments to reconcile net earnings
(loss) to net cash provided by
operations:
Depreciation and amortization 47,737 51,289
Non-cash interest 10,541 12,515
Deferred income taxes 21,305 (10,598)
Changes in assets and liabilities,
net (51,514) 61,160
------------ ------------
Net cash provided by operations 83,468 90,581
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (19,650) (20,275)
Other investing activities 675 (2,483)
------------ ------------
Net cash used by investing
activities (18,975) (22,758)
CASH FLOWS FROM FINANCING ACTIVITIES
Payments on long-term
borrowings (70,866) (31,252)
Payments on short-term
borrowings (5,901) (39,672)
Other financing activities - 2,024
------------ ------------
Net cash used by financing
activities (76,767) (68,900)
CASH
Effect of exchange rates on cash (236) 649
------------ ------------
Change in cash (12,510) (428)
Cash at beginning of period 21,015 16,043
------------ ------------
Cash at end of period $ 8,505 $ 15,615
============ ============
See accompanying notes to consolidated financial statements
UNIROYAL CHEMICAL CORPORATION
UNIROYAL CHEMICAL COMPANY, INC.
Notes to Unaudited Consolidated Financial Statements
Quarter Ended September 27, 1997
1. Presentation of Consolidated Financial Statements
Uniroyal Chemical Corporation ("UCC") is a wholly-owned subsidiary of
Crompton & Knowles Corporation. It is dependent on cash flow from Uniroyal
Chemical Company, Inc. ("Uniroyal Chemical") and its subsidiaries.
Accordingly, the consolidated financial statements of Uniroyal Chemical set
forth herein are presented on a basis of accounting which reflects all of the
adjustments to account for the acquisition of Uniroyal Chemical by UCC and all
of the operations (primarily interest expense), assets and liabilities of
UCC. Herein, UCC and Uniroyal Chemical, collectively, are referred to as the
"Companies".
The information included in the foregoing consolidated financial
statements is unaudited but reflects all adjustments which are, in the opinion
of management, necessary for a fair statement of the results for the interim
periods presented. It is suggested that the interim consolidated financial
statements be read in conjunction with the consolidated financial statements
and notes included in the Companies' fiscal 1996 Form 10-K.
Included in accounts receivable are allowances for doubtful accounts of
$5.2 million in 1997 and $3.7 million at December 28, 1996.
Accumulated depreciation amounted to $290.4 million at September 27, 1997
and $262.4 million at Dec. 28, 1996.
Accumulated amortization of cost in excess of acquired net assets was
$29.6 and $26.5 million and accumulated amortization of other intangible
assets was $117.7 and $106.7 million at September 27, 1997 and December 28,
1996, respectively.
Cash payments for the nine months ended September 27, 1997 and September
28, 1996 include interest payments of $55.6 and $63.1 million and income tax
payments of $10.8 and $8.2 million, respectively.
<PAGE>
2. Inventories
Components of inventories are as follows:
Sept. 27, Dec. 28,
1997 1996
------------ ------------
(In thousands)
Finished goods $135,406 $148,552
Work in process 7,730 9,296
Raw materials and supplies 43,244 44,914
------------ ------------
$186,380 $202,762
============ ============
3. Environmental and Other Matters
The Companies are involved in claims, litigation, administrative
proceedings and investigations of various types in a number of jurisdictions.
A number of such matters involve claims for a material amount of damages and
relate to or allege environmental liabilities, including clean-up costs
associated with hazardous waste disposal sites, natural resource damages,
property damage and personal injury. Uniroyal Chemical and some of its
subsidiaries have been identified by federal, state or local governmental
agencies, and by other potentially responsible parties (each a "PRP") under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, or comparable state statutes, as a PRP with respect to costs
associated with waste disposal sites at various locations in the United
States. In addition, Uniroyal Chemical is involved with environmental
remediation and compliance activities at some of its current and former sites
in the United States and abroad.
Each quarter, Uniroyal Chemical evaluates and reviews estimates for future
remediation and other costs to determine appropriate environmental reserve
amounts. For each site, a determination is made of the specific measures that
are believed to be required to remediate the site, the estimated total cost to
carry out the remediation plan, the portion of the total remediation costs to
be borne by Uniroyal Chemical and the anticipated time frame over which
payments toward the remediation plan will occur. During the quarter, Uniroyal
Chemical recorded a special environmental provision of $13.5 million and as of
September 27, 1997, Uniroyal Chemical's reserves for environmental remediation
activities totaled $101.5 million. These estimates may subsequently change
should additional sites be identified, circumstances change with respect to
any site, the interpretation of current laws and regulations be modified or
additional environmental laws and regulations be enacted.
Uniroyal Chemical intends to assert all meritorious legal defenses and all
other equitable factors which are available to it with respect to the above
matters. Uniroyal Chemical believes that the resolution of these environmental
matters will not have a material adverse effect on the consolidated financial
position of Uniroyal Chemical. While Uniroyal Chemical believes it is
unlikely, the resolution of these environmental matters could have a material
adverse effect on its consolidated results of operation in any given year if a
significant number of these matters are resolved unfavorably.
Other Income
The U.S. Department of the Army has funded certain costs related to
postretirement medical and life insurance benefits of retirees of Uniroyal
Chemical who worked at the Joliet Army Ammunition Plant in Joliet, Illinois.
These costs were previously accrued by Uniroyal Chemical as a result of
adopting FASB Statement No. 106 "Employers' Accounting for Postretirement
Benefits Other Than Pensions". Uniroyal Chemical operated the plant for the
Army on a cost reimbursement basis from the 1940's until 1993. The funds are
held in trust in satisfaction of the government's liabilities to reimburse
Uniroyal Chemical for these costs. At the same time, the government waived
its claim to certain funds held in pension trusts for the benefit of these
Joliet retirees. The resulting pretax gain amounted to $28 million, and is
included in other income in the consolidated statement of operations.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
The response to this item has been limited to an analysis of the results of
operations for the nine months ended September 27, 1997 as compared with the
nine months ended September 28, 1996 as Registrants meet the conditions set
forth in General Instruction (H)(1)(a) and (b) of Form 10-Q.
Nine Months Results
Overview
Consolidated net sales of $921.5 million for the first nine months of
September 27, 1997 increased 2% from the comparable period in 1996. The
increase resulted primarily from increased unit volume of 4% offset by lower
foreign currency translation of 1% and lower pricing of 1%. International
sales, including U.S. exports, decreased slightly as a percentage of total
sales to 43% from 44% for the first nine months of 1996.
Net earnings before extraordinary losses on early extinguishment of debt
increased 48% to $58.2 million. This compares with $39.4 million for the
prior year before merger and related costs of $52.6 million ($44.3 million
after-tax) and a special environmental provision of $30.0 million ($18.5
million after-tax). Net earnings were $55.4 million compared to a loss of
$23.8 million in 1996.
Gross margin as a percentage of net sales increased slightly to 39.8% from
39.5% for the first nine months of 1996. Consolidated operating profit,
before special charges of $23.5 million in 1997 and $82.6 million in 1996,
increased 12% to $163.1 million from $145.7 million in the prior year.
Sales by Major Product Line
Chemicals and polymers sales of $374.2 million were essentially unchanged
from the first nine months of 1996. Unit volume was higher by 5%, but was
offset by lower pricing of 4% and lower foreign currency translation of 1%.
Sales of rubber chemicals were lower than 1996 primarily due to lower
pricing. EPDM and nitrile rubber sales increased primarily as a result of
higher unit volume.
Crop protection sales of $311.1 million increased 2% from the comparable
1996 period. The increase was primarily attributable to higher unit volume.
Specialties sales of $235.2 million increased 6% from the nine month period
of 1996, primarily due to increased unit volume for urethane prepolymers and
specialty additives.
Other
Selling, general and administrative expenses of $126.2 million decreased 2%
versus the comparable period in 1996 due primarily to planned cost reductions
and lower foreign currency translation. Depreciation and amortization of $47.7
million decreased 7% versus the 1996 period as a result of certain assets
becoming fully depreciated or amortized. Research and development costs of
$29.6 million decreased 2% from the comparable period in 1996. Special charges
totaled $23.5 million for the first nine months of 1997. The environmental
charge of $13.5 million reflects Uniroyal Chemical's current estimate of
additional requirements for future remediation costs. The charge for severance
and other costs of $10.0 million includes severance costs of $4.9 million
relating to planned workforce reductions and other costs of $5.1 million
relating primarily to certain product liability claims and costs associated
with the implementation of SAP software. Interest expense of $72.7 million
decreased 9% from 1996 due primarily to lower levels of indebtedness. Other
income includes a gain of $28 million relating to a settlement with the U.S.
Department of the Army. The effective tax rate of 38.0% decreased versus 40.0%
in the comparable period in 1996. The rate in 1996 excludes the impact of
merger and related costs and a special charge for environmental costs.
PART II - OTHER INFORMATION
*10. Second Amended and Restated Lease Agreement between
Middlebury Partnership, as Lessor, and Uniroyal
Chemical Company, Inc., as Lessee, Dated as of August 28, 1997
*27. Financial data schedule
* A copy of these Exhibits are annexed to this report on Form 10-Q provided
to the Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
UNIROYAL CHEMICAL CORPORATION
UNIROYAL CHEMICAL COMPANY, INC.
(Registrants)
Date: November 25, 1997 By /s/ Charles J. Marsden
------------------ ------------------------
Vice President and
Chief Financial Officer and
Director
(Principal Financial Officer)
SECOND AMENDED AND RESTATED LEASE AGREEMENT
between
The Middlebury Partnership,
as Lessor,
and
Uniroyal Chemical Company, Inc.,
as Lessee,
Dated as of August 28, 1997
<PAGE>
TABLE OF CONTENTS
Page Number
1. LEASE OF PREMISES; TITLE AND CONDITION.......................2
(a) Premises ...............................................2
(b) Current Lessee Parking .................................2
(c) Additional Lessee Parking ..............................3
(d) Lessee's Obligation To Contribute To Costs Of
Future Parking...........................................4
(e) No Lessor Representations ..............................5
2. USE .......................................................6
3. TERM ......................................................7
4. RENT ......................................................7
(a) Fixed Rent .............................................7
(b) Additional Rent; Late Interest .........................9
(c) Rent Restrictions......................................11
(d) No Accord and Satisfaction.............................11
5. NET LEASE; NON-TERMINABILITY ...............................12
6. REPRESENTATIONS ............................................14
(a) Lessee's Representations...............................14
(b) Lessor's Representations...............................14
7. TAXES AND ASSESSMENTS; COMPLIANCE WITH LAW..................15
8. LIENS.......................................................25
9. INDEMNIFICATION ............................................26
(a) By Lessee .............................................26
(b) By Lessor .............................................27
(c) Mutual Release ........................................28
10. MAINTENANCE AND REPAIR .....................................29
11. ALTERATIONS ................................................30
12. CONDEMNATION, CASUALTY AND
TEMPORARY REQUISITION.......................................32
(a) General ...............................................32
(b) Total Condemnation or Casualty.........................34
(c) Condemnation Without Election to Terminate;
Partial Condemnation .................................35
(d) Casualty Without Election to Terminate; Partial
Casualty...............................................36
(e) Temporary Requisition..................................38
(f) Investment of Net Proceeds.............................38
13. INSURANCE...................................................39
(a) (i) Property Insurance..............................39
(ii) Boiler and Machinery Insurance..................40
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(iii) Comprehensive General Public Liability
Insurance.......................................40
(iv) Workers' Compensation Insurance.................40
(v) Builders' Risk..................................41
(b) Policy Requirements....................................41
(c) Delivery of Certificates...............................43
(d) Self-Insurance.........................................44
14. BROKER......................................................45
15. PERMITTED CONTESTS..........................................45
16. CONDITIONAL LIMITATIONS; DEFAULT PROVISIONS.................47
17. ADDITIONAL RIGHTS...........................................51
18. NOTICES, DEMANDS AND OTHER INSTRUMENTS......................52
19. ESTOPPEL CERTIFICATES.......................................54
20. NO MERGER...................................................54
21. SURRENDER...................................................55
22. MERGER, CONSOLIDATION OR SALE OF ASSETS.....................55
23. SEPARABILITY; BINDING EFFECT................................56
24. HEADINGS AND TABLE OF CONTENTS..............................57
25. SUBORDINATION; NON-DISTURBANCE..............................57
26. SCHEDULES...................................................58
27. QUIET ENJOYMENT.............................................58
28. RECORDING OF NOTICE OF LEASE................................58
29. LESSOR'S OBLIGATIONS........................................59
(a) Management and Maintenance.............................59
(b) Lessee's Reimbursement Obligations.....................60
(c) The Power Plant........................................61
(d) [Intentionally Omitted]................................65
(e) Lessor's Operating Expense Budget......................65
30. UTILITIES...................................................67
(a) Lessee's Payments .....................................67
(b) Tie-In Facilities For Emergency Heating and Cooling....67
(iii) Rent Abatement..................................69
(c) Interruption of Steam Production ......................70
(i) For Any Reason..................................70
(ii) Rent Abatement..................................71
(iii) For Reasons Within Lessor's Control.............72
31. INTERIOR SECURITY...........................................74
32. EXTERIOR SECURITY...........................................74
33. STREETS AND ROADS...........................................75
34. SELLER'S PERFORMANCE OF LESSEE'S OBLIGATIONS................75
35. SERVICE CONTRACTS...........................................75
36. TUNNEL USE and MAINTENANCE..................................76
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<PAGE>
37. RAZING OF CONFERENCE CENTER; ADMINISTRATION
BUILDING AND TUNNEL.........................................76
38. LESSOR'S CONSENT............................................77
39. ASSIGNMENT and SUBLETTING...................................77
(a) General ...............................................77
(b) Assignment.............................................77
(iii) Transferee of Lessee's Assets...................79
(c) Sublease...............................................80
(i) General.........................................80
(ii) Permitted Subleases ............................80
(iii) Definition of "affiliate", etc..................81
(d) No Right to Mortgage...................................83
(e) Lessor's Rights; Attornment............................83
40. EFFECTIVE DATE; NO PRE-EXECUTION EFFECT.....................84
41. TERMINATION OF FIRST AMENDED AND RESTATED LEASE.............84
42. LESSEE'S SIGNAGE RIGHTS.....................................85
43. EXCULPATORY CLAUSE..........................................86
44. COMMERCIAL TRANSACTION......................................87
45. WAIVER OF JURY TRIAL; COUNTERCLAIMS, ETC....................87
46. AUTHORITY...................................................88
47. NO OFFER....................................................88
48. CONSTRUCTION................................................88
49. SURVIVAL....................................................88
50. LESSOR'S COVENANT REGARDING FUTURE USE OF PARK..............89
51. PRIOR NOTICE OF PUBLIC MARKETING EFFORTS....................93
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<PAGE>
Schedule A - Description of the Land
Schedule B - Parking Sketch
Schedule C - [Intentionally Omitted]
Schedule D - Non-Disturbance Agreement
Schedule E - Emergency Tie-In Facilities
-5-
<PAGE>
W I T N E S S E T H:
WHEREAS, International Business Machines Corporation ("Original
Lessor") and Lessee entered into that certain Lease Agreement, dated as
of December 17, 1985 (the "Original Lease"), respecting certain
premises, commonly known as the R&D Building, located in the Preston
Hill Office Park in the Towns of Middlebury, Oxford and Southbury,
Connecticut; and
WHEREAS, the Original Lease was (i) modified by that certain
Modification of Agreement, of Side Letter and of Lease, dated October
31, 1986, by and among Original Lessor, Lessee and Uniroyal Properties,
Inc., and (ii) amended and restated pursuant to a certain Amended and
Restated Lease Agreement, dated as of December 17, 1985, and effective
as of December 30, 1989, between Original Lessor and Lessee (the
Original Lease, as so modified, amended and restated being hereinafter
referred to as the "First Amended and Restated Lease"); and
WHEREAS, Original Lessor has previously assigned all of its
interest in and to the First Amended and Restated Lease to Lessor; and
WHEREAS, Lessor and Lessee desire to amend and restate the
First Amended and Restated Lease, in its entirety as set forth
hereinafter, effective as of the date hereof.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which
are hereby mutually acknowledged, the parties hereto hereby agree as
follows:
<PAGE>
THIS SECOND AMENDED AND RESTATED LEASE AGREEMENT, dated as of
August 28, 1997 (referred to herein as this "Second Amended and
Restated Lease" or this "Lease"), is between the Middlebury Partnership,
a Connecticut general partnership ("Lessor"), and Uniroyal Chemical
Company, Inc., a New Jersey corporation ("Lessee"), and constitutes an
amendment and restatement of the First Amended and Restated Lease on the
terms hereinafter set forth.
Lessor and Lessee covenant and agree as follows:
1. Lease of Premises; Title and Condition.
(a) Premises. In consideration of the rents and covenants
herein stipulated to be paid and performed by Lessee, and upon the terms
and conditions herein specified, Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, the premises (the "Premises"), to wit,
the "R&D Building," which is one of the buildings located on the land
described in Schedule A attached hereto and made a part hereof (such
land, without regard to any buildings or improvements thereon, being
referred to as the "Land"), said R&D Building being the multiple-story
building designed for use as a research and development facility which
is located on the Land as of the date of the execution of this Lease in
the location designated as "R&D Bldg." on the "Parking Sketch"
hereinafter referred to.
(b) Current Lessee Parking. Appurtenant to the Lessee's
rights in and to the Premises shall be the use of the following: (i)
five hundred (500) parking spaces, for the parking of automobiles of
those employed at or visiting the Premises, consisting of the following:
(A)14 parking spaces located in the circle in front of the Premises, (B)
30 spaces in parking area 5, (C) 158 spaces in parking area 4, (D) 74
spaces in the southeasterly portion of parking area 3 [being the 74
spaces in parking area 3 which are nearest to the Premises], and (E) 224
spaces in parking areas 6 and 7 [being all of the parking spaces in
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<PAGE>
parking area 6 and the easternmost 57 spaces in parking area 7 (all of
the foregoing spaces being collectively referred to as "Existing Lessee
Parking"), all as so designated on the date hereof and as shown on the
"PARKING SKETCH" attached hereto as Schedule B and made a part hereof
and; (ii) the use, subject to the Lessor's security standards and
procedures as same may be established from time to time in accordance
with the terms of paragraph 32 (Exterior Security) herein, of the
streets and roads located on the Land from time to time, in common with
the Lessor and others to whom the Lessor may grant similar rights of use
in connection with the use of some portion of the Land and/or
improvement(s) now or hereafter located thereon, or in connection with
the use of property other than the Land and/or improvement(s) now or
hereafter located on such other property, or in connection with the use
of both the Land and/or improvements and other property and/or
improvements. The Premises are leased to Lessee in their present
condition without representation or warranty by Lessor and subject to
all applicable "Legal Requirements" (as such term is defined in
paragraph 7(b)(E)) now or hereafter in effect. Lessee has examined the
Premises and has found all of the same satisfactory for all purposes.
(c) Additional Lessee Parking. The Lessor agrees that,
should the Five Hundred (500) parking spaces, provided to Lessee as of
the date hereof, prove inadequate for the Lessee's needs during the Term
(as defined herein) of this Lease, the Lessee may, from time to time,
but not more often than annually during the Term, provide Lessor with a
notice specifying Lessee's reasonable additional parking requirements,
giving due consideration for Lessee's then existing, and then
anticipated future, employee and visitor parking needs ("Additional
Parking Needs"). Upon receipt of such notice, Lessor shall provide
Lessee with the use of such additional parking spaces as shall then
exist upon the Land and which are not dedicated to, or reasonably
reserved by Lessor for, the use of another existing or future lessee or
tenant of Lessor (herein referred to as "Available
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Parking"), up to the amount of Lessee's reasonable Additional Parking
Needs. In the event the then existing Available Parking should be
inadequate to satisfy Lessee's then existing Additional Parking Needs,
the Lessor shall, at the reasonable request of, and at the sole expense
of, the Lessee (which shall include the cost of municipal applications
and permits, construction costs and the costs of financing the
construction of such additional parking spaces), construct such number
of new parking spaces (the "New Parking Spaces") as shall, together with
the then Available Parking, be required to satisfy Lessee's reasonable
Additional Parking Needs. Notwithstanding anything to the contrary set
forth herein, the Lessor shall, in no event, be required to provide
Lessee with more than Four Hundred Fifty (450) New Parking Spaces, in
the aggregate, or more than Nine Hundred Fifty (950) Parking Spaces, in
the aggregate, including all Existing Lessee Parking, and any Available
Parking Spaces and New Parking Spaces which may, from time to time, be
provided to Lessee hereunder. Any Available Parking Spaces and any New
Parking Spaces which may be provided to Lessee hereunder shall be
located on portions of the Land selected by the Lessor, in Lessor's
sole, but reasonable, discretion, but shall be reasonably convenient to
the Premises. Lessee's use of all such Available Parking and New
Parking Spaces as shall be provided to Lessee under the terms of this
paragraph, shall be subject to all other terms and conditions of this
Lease. Notwithstanding anything to the contrary stated herein, this
subparagraph (c) shall impose no obligation to construct any New Parking
Spaces (A) on any Mortgagee, mortgagee in possession or a party deriving
title through the foreclosure of a mortgage or by a deed in lieu of
foreclosure, or (B) upon Lessor, in the event the construction or
creation of such New Parking Spaces shall not be reasonably feasible.
(d) Lessee's Obligation To Contribute to Costs of New Parking
Spaces. Lessee acknowledges and agrees that, in the event Lessor shall,
at any time during the Term hereof, (i) provide Lessee with the use of
Fifty (50), or more, Available Parking
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Spaces (whether singly or in the aggregate), and (ii) thereafter
construct or establish, either singly or in the aggregate, Fifty (50),
or more, New Parking Spaces (which are not in existence as of the date
Landlord provides Lessee with such Available Parking Spaces) at any
location on the Land, whether at the request of, or for the use of,
Lessee, or at the request of, or for the use of, any other tenant of
Lessor, then, in consideration for the increase in Lessee's parking
spaces pursuant to the terms of subparagraph (c) above, Lessee shall,
upon the construction or establishment of the first Fifty (50) of such
New Parking Spaces, reimburse Lessor, within ten (10) days of demand
therefor, for the costs of establishing or constructing the first Fifty
(50) of such New Parking Spaces, such costs to include the cost of
municipal applications and permits, construction costs and the costs of
financing construction of the first Fifty (50) of such New Parking
Spaces. Lessee's obligation under the preceding sentence shall be
deemed to be "additional rent" and, in the event of the non-payment of
such sum, Lessor shall have all rights and remedies which are generally
available to Lessor hereunder in the event of non-payment of rent.
(e) NO LESSOR REPRESENTATIONS. LESSOR MAKES NO WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH
RESPECT TO THE DESIGN, MERCHANTABILITY FITNESS FOR USE FOR ANY
PARTICULAR PURPOSE, CONDITION, OR DURABILITY OF THE PREMISES, OR
AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR
OTHERWISE, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO
BE BORNE BY LESSEE. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF
ANY NATURE IN THE PREMISES OR ANY FIXTURE OR OTHER ITEM
CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT,
LESSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO. THE PROVISIONS OF THIS PARAGRAPH
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l (e) HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION OF ANY WARRANTIES BY LESSOR, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PREMISES OR TITLE THERETO OR ANY
FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER
ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER
LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
2. Use.
(a) Lessee may use the Premises for administrative
offices and research and development uses, which (i) do not involve
research on mammals (other than rodents), and (ii) do not constitute a
public or private nuisance.
(b) In addition, Lessee may use the Premises for any
other use which may, from time to time, be permitted under then
applicable Legal Requirements (including zoning laws, rules, regulations
and codes), and for no other use or purpose whatsoever; provided,
however, that no use shall be made of the Premises, at any time during
the Term hereof, which:
(i) involves research on mammals (other than rodents),
(ii) would constitute a public or private nuisance,
(iii) would result in the discharge of objectionable fumes,
vapors or odors which can be perceived by other lessees or occupants of
the Land or Park,
(iv) would result in the generation of a level of traffic on the
Park roadways and in the Park parking areas during normal business
hours, by motor vehicles having more than two (2) axles and which would
be unreasonably disruptive of the use and enjoyment, by other lessees of
the Park, of such lessee's demised premises,
(v) would result in the generation of a level of noise, or other
sound, which as measured from the premises leased to any lessees of
other premises in the Park, would
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be unreasonably disruptive of the use and enjoyment, by such other
lessees, of such lessee's demised premises, or
(vi) would result in any additions or alterations to the
external appearance of the Premises (including external signage) which
are not substantially architecturally equivalent with (A) the
architectural styles of any other buildings then existing and occupied
upon the Land, or (B) any other architectural style which may then be
found in other developments in the State of Connecticut which are
similar to the Park.
Disputes under this subparagraph 2(b) shall be resolved pursuant
to the Expedited Arbitration provisions set forth in subparagraph 50 (b)
(Expedited Arbitration) herein.
3. Term. The term ("Term") of this Lease commenced on
December 17, 1985, and shall expire on the date which is twenty (20)
years, minus one day, after the Effective Date hereof (as such term is
defined in Paragraph 40 herein), unless earlier terminated in accordance
with any other provision hereof.
4. Rent.
(a) Fixed Rent. (i) Payment Schedule. The rent (the
"Fixed Rent") for the Premises during the Term of this Lease shall be
payable in accordance with the following chart:
PERIOD FIXED RENT
------------ ------------------
(i) From December 17, 1985 through $3,060,000.00 per annum
December 16, 1990: ($255,000.00 per month)
(ii) From December 17, 1990 through $3,672,000.00 per annum
December 16, 1995: ($306,000.00 per month)
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(iii) From December 17, 1995 $4,406,400 per annum
through the day immediately ($367,200.00 per month)
preceding the "Effective Date"
of this Second Amended and
Restated Lease (as such term is
defined in Paragraph 40 herein):
(iv) From Effective Date through date $3,678,798.00 per annum
which is 5 years, minus one day, ($306,566.50 per month)
after the Effective Date:
(v) From date which is five (5) years $3,545,230.00 per annum
after Effective Date through date ($295,435.83 per month)
which is ten (10) years, minus one
day, after the Effective Date:
(vi) From date which is ten (10) years $3,818,231.00 per annum
after the Effective Date through ($318,185.91 per month)
date which is fifteen (15) years,
minus one day, after the Effective
Date:
(vii) From date which is fifteen (15) years $4,219,892.00 per annum
after the Effective Date through date ($351,657.66 per month).
which is twenty (20) years, minus one
day, after the Effective Date:
(ii) Fixed Rent Rebate. (A) Notwithstanding anything to the
contrary contained in this Lease, in the event the Effective Date of
this Second Amended and Restated Lease shall not have occurred by
September 1, 1997, then, in the event the Effective Date shall
subsequently occur (without either Lessor or Lessee having exercised any
right to terminate this Second Amended and Restated Lease by reason of
the non-occurrence of said Effective Date prior to the Outside Date (as
defined in Paragraph 40 (b) herein)), upon the occurrence of the
Effective Date hereunder Lessor shall rebate to Lessee, in the time and
manner specified in (B) below, that portion of the fixed rent payable by
Lessee under the First Amended and Restated Lease for the period
commencing September 1, 1997 and expiring upon the earlier of the
Outside Date or the Effective Date hereunder (the "Rebate Period"), to
the extent the fixed rent payments under the First
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Amended and Restated Lease are in excess of the Fixed Rent which would
have been payable under this Second Amended and Restated Lease Agreement
during such Rebate Period had the Effective Date hereunder occurred on
September 1, 1997.
(B) Any rebate of Fixed Rent required to be paid by
Lessor to Lessee under (A) above shall be paid at the rate of $29,166.66
per month, commencing with the Effective Date hereunder and continuing
monthly until all amounts owed by Lessor to Lessee under (A) shall have
been paid in full, provided, however, that, in the event of an Event of
Default hereunder Lessor shall have no further obligation to pay Lessee
any such amounts otherwise due under (A) above.
(iii) All Fixed Rent is to be paid in immediately
available funds, in lawful money of the United States, in equal
installments, payable monthly in advance for each month or portion
thereof, commencing on the Effective Date hereof and thereafter on the
same day of each succeeding month throughout the Term, at the address of
Lessor specified for the giving of notices to Lessor herein or at such
other address or to such other person as Lessor from time to time may
designate.
(b) Additional Rent; Late Interest. All amounts which
Lessee is required to pay pursuant to this Lease howsoever denominated
(other than Fixed Rent and amounts payable as liquidated damages
pursuant to paragraph 16), together with every fine, penalty, interest
and cost which may be added for nonpayment or late payment thereof,
shall constitute "additional rent". If Lessee shall fail to pay any
such additional rent when the same shall become due, Lessor shall have
all rights, powers and remedies with respect thereto as are provided
herein or by law in the case of nonpayment of any Fixed Rent and shall
have the right to pay the same on behalf of Lessee as expressly provided
herein. The receipt or acceptance by Lessor of Fixed Rent and/or
additional rent with knowledge of any breach by Lessee of any term,
agreement, covenant, condition or
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obligation of this Lease shall not be deemed a waiver of such breach.
Lessee shall pay to Lessor interest at the rate of the greater of (i)
16% per annum (computed on a 30/360 day basis), or (ii) 2% in excess of
the rate set forth in the Eastern Edition of The Wall Street Journal
("WSJ"), in the section entitled "MONEY RATES," inserted in the blank in
the line reading substantially as follows: 'PRIME RATE: [ ] The base
rate on corporate loans posted by at least 75% of the nation's 30
largest banks" (herein referred to as the "WSJ Prime Rate") (each change
in such rate to be effective as of the effective date of such change and
computed on an actual/360-day basis) [but in no event shall such rate of
interest exceed the maximum rate allowed under applicable law] on all
overdue Fixed Rent from the due date thereof until paid, on all overdue
additional rent paid by Lessor on behalf of Lessee from the date of
payment by Lessor until repaid by Lessee, and on all other overdue
amounts from the due date thereof until paid. Lessee shall perform all
its obligations under this Lease at its sole cost and expense, and shall
pay all Fixed Rent and additional rent when due, without notice or
demand. If the publication of the WSJ Prime Rate should be
discontinued, or if the formulation of the WSJ Prime Rate should be
revised, at any time during the Term hereof, then the WSJ Prime Rate, as
revised, of such other government, or banking industry, index or
computation with which it is replaced, or which is based upon comparable
information, shall be selected by Lessor (exercising reasonable
discretion) in order to obtain substantially the same result as would be
obtained if the WSJ Prime Rate had not been discontinued or revised.
Lessee acknowledges and agrees that the foregoing late charge, required
to be paid by Lessee in the event Lessee shall fail to pay Fixed Rent or
additional rent when due hereunder, shall not be deemed to be a penalty,
but shall be deemed to be adequate, but not excessive liquidated damages
based upon the following considerations, which Lessor and Lessee agree
would constitute damages to Lessor for any late payment of Fixed Rent or
additional rent by Lessee
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hereunder, but which damages are difficult to quantify, to wit: (a)
Lessor's inability to pay debt service to its Mortgagee, real property
taxes and assessments, and other costs incident in owning and operating
the Premises, Land and Power Plant; and (b) any other costs which
Landlord may incur by reason of Lessee's late payment. Nothing contained
herein shall be construed as permitting Lessor to charge or receive
interest in excess of the maximum rate then allowed by law. Any
interest required to be paid by Lessee hereunder which is in excess of
the maximum legal rate of interest shall be credited against Fixed Rent
or additional rent next due hereunder, or if there is no remaining Fixed
Rent or additional rent due hereunder, shall be refunded to Lessee.
(c) Rent Restrictions. If the Fixed Rent or any
Additional Rent shall be or become uncollectible, reduced or required to
be refunded by virtue of any law, governmental order or regulation or
direction of any public officer or body pursuant to law in the nature of
a rent freeze or rent restriction, Lessee shall enter into such
agreement(s) and take such other action (without additional expense to
Lessor) as Lessor may reasonably request and as may be legally
permissible, to permit Lessor to collect the maximum Fixed Rent and
additional rent which may from time to time during the continuance of
such legal rent restriction be legally permissible, provided that in no
event shall the amount payable by Lessee as restricted rent exceed the
Fixed Rent and additional rent which would otherwise have been payable
hereunder in the absence of such rent restriction. Upon any termination
of such a rent restriction prior to the Expiration Date, (a) the Fixed
Rent and additional rent shall become and thereafter be payable under
this Lease in the amount of the Fixed Rent and additional rent set forth
in this Lease for the period following such termination, and (b) Lessee
shall pay to Lessor, to the maximum extent legally permissible, an
amount equal to (i) the Fixed Rent and additional rent which would have
been payable pursuant to this Lease during the period such rent
restriction was in effect with respect to
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this Lease, but for such legal rent restriction, less (ii) the Fixed
Rent and additional rent paid by Lessee during the period that such
legal rent restriction was in effect.
(d) No Accord and Satisfaction. No payment by Lessee
or receipt by Lessor of a lesser amount than the Fixed Rent or
additional rent due hereunder shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed to effect or evidence
an accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance or pursue any
other remedy in this Lease or at law or equity. Lessee waives Lessee's
rights, if any, to designate the items against which any payments made
by Lessee are to be credited, and Lessee agrees that Lessor may apply
any payments made by Lessee to any amounts then due hereunder by Lessee,
as Lessor sees fit, irrespective of and notwithstanding any designation
or request by Lessee as to the items against which any such payments
shall be credited.
5. Net Lease; Non-Terminability.
(a) This Lease is a net lease, and, any present or future
law to the contrary notwithstanding, Lessee shall not be entitled to any
abatement or reduction (except as otherwise expressly provided in
paragraphs 12 (Condemnation, Casualty and Temporary Requisition) or
paragraph 30 (Utilities)), setoff, counterclaim, defense or deduction
with respect to any Fixed Rent, additional rent or other sum payable
hereunder, nor, except as otherwise expressly provided herein, shall the
obligations of Lessee hereunder be affected, by reason of: any damage to
or destruction of the Premises; any taking of the Premises or any part
thereof by condemnation or otherwise; any prohibition, limitation,
restriction or prevention of Lessee's use, occupancy or enjoyment of the
Premises, or any interference with such use, occupancy or enjoyment by
any person other
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than Lessor, or Lessor's partners, employees, officers or agents; any
assignment or transfer in whole or in part of Lessor's or Lessee's
interest under this Lease; any matter affecting title to the Premises or
any eviction by paramount title or otherwise, excluding any claim made
by any person by, through or under Lessor; any default by Lessor
hereunder or under any other agreement; any proceeding relating to
Lessor; the impossibility or illegality of performance by Lessor, Lessee
or both; any bankruptcy of Lessor or anyone claiming under Lessor;
foreclosure or any other enforcement procedure by any Mortgagee of all
or any portion of the Premises; any action of any governmental
authority; Lessee's acquisition or ownership, subsequent to the date
hereof, of part of the Premises; or any other cause, whether similar or
dissimilar to the foregoing, or foreseen or unforeseen, any present or
future law to the contrary notwithstanding and whether or not Lessor or
Lessee shall have notice or knowledge of any of the foregoing. The
parties to this Lease intend that the obligations of Lessee hereunder
shall be separate and independent covenants and agreements and shall
continue unaffected unless such obligations shall have been modified or
terminated pursuant to an express provision of this Lease.
(b) Lessee shall remain obligated under this Lease in
accordance with its terms and shall not take any action to terminate,
rescind or avoid this Lease, notwithstanding any bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding affecting
Lessor, or any assignee of Lessor, or any action with respect to this
Lease which may be taken by any trustee, receiver or liquidator or by
any court. Lessee hereby waives all rights (i) to terminate this Lease
(except as expressly provided herein under paragraph 12 (Condemnation,
Casualty and Temporary Requisition)), (ii) to surrender this Lease, or
(iii) except as otherwise expressly provided herein, to any abatement or
deferment of Fixed Rent, additional rent or other sums payable
hereunder. Lessee shall remain obligated under this Lease in accordance
with its terms and Lessee
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hereby waives all rights now or hereafter conferred by statute or
otherwise to modify or to avoid strict compliance with this Lease.
Notwithstanding any such statute or otherwise, Lessee shall be bound by
all the terms and provisions contained in this Lease.
6. Representations.
(a) Lessee's Representations. Lessee represents to
Lessor, as of the date of this Lease in order to induce the Lessor to
amend and restate this Lease as provided herein and to lease the
Premises upon the terms and conditions contained in this Lease, that (i)
Lessee has all requisite corporate power and authority to enter into
this Lease and to consummate the transactions contemplated hereby; (ii)
the execution and delivery of this Lease and the consummation by Lessee
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Lessee; (iii) this Lease has
been duly executed and delivered by Lessee and constitutes a valid and
binding obligation of Lessee enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally;
and (iv) no consent, approval, order or authorization of, or
registration, declaration or filing with, any court or governmental
authority or instrumentality, domestic or foreign, is required by or
with respect to Lessee in connection with the execution and delivery of
this Lease by the Lessee or the consummation by Lessee of the
transactions contemplated hereby.
(b) Lessor's Representations. Lessor represents to Lessee
as of the date of this Lease, in order to induce the Lessee to amend and
restate this Lease and to lease the Premises upon the terms and
conditions contained in this Lease, that (i) Lessor has all requisite
partnership power and authority to enter into this Lease and to
consummate the transactions contemplated hereby; (ii) the execution and
delivery of this Lease and the consummation by Lessor of the
transactions contemplated hereby have been
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duly authorized by all necessary partnership action on the part of the
partners of Lessor; (iii) this Lease has been duly executed and
delivered by Lessor and, subject to satisfaction of the conditions
stated in Paragraph 40 (a) herein, constitutes a valid and binding
obligation of Lessor enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally; and (iv)
other than the satisfaction of the conditions stated in Paragraph 40 (a)
herein, no consent, approval, order or authorization of, or
registration, declaration or filing with, any court or governmental
authority or instrumentality, domestic or foreign, is required by or
with respect to Lessor in connection with the execution and delivery of
this Lease by the Lessor or the consummation by Lessor of the
transactions contemplated hereby.
7. Taxes and Assessments; Compliance with Law.
(a) Lessee shall pay:
(i) all taxes, assessments, levies, fees, water and sewer
rents and charges imposed, levied or assessed against the Premises or
any use thereof,
(ii) real estate taxes on the Land and the "Power Plant"
(as hereinafter defined), but only to the extent and on the terms
provided in (b) of this paragraph 7),
(iii) all other governmental charges, general and special,
ordinary and extraordinary, foreseen and unforeseen, which are, at any
time prior to or during the Term hereof, imposed or levied upon or
assessed against (A) the Premises or (B) this Lease and the leasehold
estate hereby created or which arises in respect of the operation,
possession or use of the Premises;
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(iv) all gross receipts or similar taxes imposed on Lessor
or levied upon, assessed against or measured by any Fixed Rent, additional
rent or other sum payable hereunder;
(v) all sales, value added, use and similar taxes imposed
on Lessor at any time levied, assessed or payable on account of the
acquisition (by Lessee), leasing or use of the Premises;
(vi) all charges for utilities communication and all
other services rendered or used in, on or about the Premises and all
taxes, assessments, liens and fees imposed upon any of the foregoing;
and
(vii) payments in lieu of each of the foregoing.
Notwithstanding the foregoing, Lessee shall not be
required to pay any franchise, estate, inheritance, transfer, income or
similar tax of Lessor, or successors in interest of Lessor or partners
of successors in interest of Lessor (other than any tax referred to in
clauses (iv) and (v) above), unless such tax is imposed, levied or
assessed in substitution for any other tax, assessment, charge or levy
which Lessee is required to pay pursuant to this paragraph 7(a);
Provided, however, that if, at any time during the term of this Lease,
the method of income taxation shall be such that there shall be levied,
assessed or imposed on Lessor a capital levy or other income tax
(however designated) directly on the rents received therefrom, or upon
the value of the Premises or any present or future improvement or
improvements on the Premises, then all such taxes, assessments, levies
or charges, or the part thereof so measured or based, shall be payable
by Lessee, but only as if the Premises were the only property of Lessor,
and Lessee shall pay and discharge the same as herein provided, or, if,
by law, Lessor must make payment of any such item(s), Lessee shall
promptly reimburse Lessor, as additional rent, for same. Lessee shall
furnish to Lessor, promptly after demand therefor, proof of payment of
all items referred to above
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which are payable by Lessee. If any such assessment may legally be paid
in installments, Lessee may pay such assessment in installments,
together with all interest due by reason of the payment of such
assessment in installments. Whenever part of a fiscal period of any tax
or assessment payable hereunder by Lessee is included within the Term of
this Lease, and a part thereof is included in a period of time after the
termination of this Lease, the amount of any tax or assessment relating
to such fiscal period shall be adjusted between Lessor and Lessee, upon
the termination of this Lease, so that Lessee shall bear only its
proportionate share of the cost thereof. In like manner, Lessee shall
bear its proportionate share of any tax or assessment paid by Lessor
prior to the commencement date hereof, if part of the fiscal period of
such tax or assessment is included within the Term of this Lease.
Subject to the terms of Paragraph 15 (Permitted Contests), Lessee shall
pay all taxes, assessments, charges and other payment obligations
referred to in this subparagraph 7 prior to delinquency; provided that
if the statement or bill for any such tax, assessment, charge or
obligations should be delivered or issued solely to Lessor in the first
instance (with Lessee having no independent knowledge of the issuance of
such tax, assessment, charge or obligation), then Lessee shall not be
deemed to be in default hereunder, unless Lessee shall fail to pay such
tax, assessment, change or other obligation within the later of (i) the
last date such item may be paid without incurring any interest or
penalty thereon, or (ii) ten (10) days after Lessor provides Lessee with
a notice of such tax, charge, assessment or obligation, together with a
statement of Lessee's share thereof.
If, at any time hereafter the Land or the Power Plant shall be
affected by any public improvement assessment or assessments, which are,
or may, become payable in future installments, the Lessee shall share in
the payment of such installment (including interest on the remaining
balance of the assessments which may become due during the Term of this
Lease, to the extent such installments relate to periods within the Term
of this
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Lease. Notwithstanding the foregoing, Lessee shall only be required to
share in the payment of interest on such installment if such interest is
due solely as a result of such tax or assessment liability being made
payable in installments; but not, in any case, due to Lessor's failure
to pay such installments to the appropriate taxing authority prior to
delinquency unless Lessee has failed to pay its share of such
installment to Lessor within the time and manner required hereunder. The
Lessee shall share in such an assessment in the proportion that the
gross square footage of buildings on all or such portion of the Land, as
is encumbered by such assessment, bears to the gross square footage of
the area of the Premises. Notwithstanding the foregoing, Lessee shall
not be required to pay any portion of any assessments levied against the
Land which are solely intended to pay for a public improvement solely
benefiting (x) the administration building located on the Land (being
the building designated as "Admin." on the Parking Sketch and referred
to herein as the "Administration Building") and/or (y) the conference
center located on the Land (being the building designated as "CONF." on
the Parking Sketch and referred to herein as the "Conference Center");
provided such public improvement provides no benefit for either the
Premises, or the Land, or the non-building improvements on the Land,
independent of the Administration Building and/or Conference Center, as
reasonably determined by Lessor.
(b) (A) [intentionally omitted]
(B) With respect to the taxes on the Land and the
Power Plant paid by or due from Lessor to the Towns of Middlebury, Oxford
and Southbury for the period of July 1, 1997 until December 31, 1997, on the
Effective Date Lessee shall pay to Lessor the amount by which the sum of
the following exceeds the amount paid by Lessee towards that portion of
such taxes applicable to the period from September 1, 1997 until
December 31, 1997, pursuant to the First Amended and Restated Lease:
(i) [intentionally omitted]
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(ii) the "Parking Percentage" (as hereinafter defined)
of the portion of said taxes which is attributable to the Land and the non-
building improvements on the Land; and
(iii) the "Area Percentage" (as hereinafter defined)
of the portion of said taxes which is attributable to the Power Plant;
and
(iv) one hundred percent (100%) of the portion of
said taxes which is attributable to the Premises.
(B) On the twentieth (20th) day of January and
July of 1998, and on the twentieth (20th) day of each January and July
thereafter, throughout the Term of this Lease, the Lessee shall pay to
the Lessor:
(i) the Parking Percentage of the taxes on the Land
which, to avoid penalties and/or interest thereon, must be paid by the
Lessor, on or prior to the "Tax Due Date" (to wit, the first day of the
following month) and which are attributable to the Land and the non-
building improvements on the Land;
(ii) the Area Percentage of the taxes on the Power
Plant which, to avoid penalties and/or interest thereon, must be paid by
the Lessor on or before the Tax Due Date and which are attributable to
the Power Plant; and
(iii) one hundred percent (100%) of the taxes on the
Premises which, to avoid penalties and/or interest thereon, must be paid
by the Lessor on or before the Tax Due Date and which are attributable
to the Premises.
(C) The foregoing procedure for the payment of taxes by
the Lessee to the Lessor is based on the current timing for the payment
of municipal taxes in the three (3) Towns in which the Land, Power Plant
and Premises are located (July and January, one-half each, in all three
Towns). Should any change occur in a due date for municipal taxes in
any of the subject towns, the Lessee and the Lessor shall change the
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above procedure to accomplish the intent that the Lessee pay to the
Lessor, twelve (12) days before taxes with respect to any part of the
Land, Power Plant and Premises would, if not paid, become delinquent,
the stated percentages of the taxes which the Lessor shall be obligated
to pay twelve (12) days later.
(D) As used herein:
(i) "Parking Percentage" ("PP" in the formula below)
means the percentage determined by the following formula:
PP = A/B, where A equals the number of automobile parking
spaces (including Existing Lessee Parking, Available Parking and New
Parking Spaces) allocated, from time to time hereunder, to the Premises,
and where B is the total number of the automobile parking spaces then
located on the Land; and
(ii) "Area Percentage" ("AP" in the formula below) means
the percentage determined by the following formula:
AP = C/D, where C equals the number of gross square feet
of floor area in the Premises, and where D equals the total gross square
footage of all completed buildings, except the Power Plant, located on
the Land at that time and which are connected to the Power Plant,
regardless of whether or not any of said building(s) actually receives,
or only has potential to receive, services from the Power Plant.
(Notwithstanding the foregoing, for purposes of calculating the Area
Percentage formula, "D" (i.e. the denominator in such formula) shall, at
all times during the Term hereof, include the gross square footage
presently allocated to the Administration Building (e.g. 236,265 gross
square feet), even if the Administration Building should no longer
exist. However, for purposes of this formula, "D" shall be increased by
the amount of any gross square footage added to the Premises after the
date hereof and "D" may be decreased by the gross square
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footage of the Conference Center (e.g. 56,560 gross square feet) in the
event and at such time as the Conference Center may no longer exist.)
The parties agree that, as of the date of this Lease, (a) the
Parking Percentage is Forty-Eight Percent (48%), based upon the Premises
being allocated 500 automobile parking spaces out of a total of 1,041
parking spaces located on the Land, (b) the Area Percentage is Fifty-Two
Percent (52%), based upon the Premises containing 318,704 gross square
feet and all completed buildings, except the Power Plant, located on the
Land containing a total of 611,529 gross square feet, and (c) and for
purposes of determining the Parking Percentage and Area Percentage, the
Conference Center contains 56,560 gross square feet of space and the
Administration Building contains 236,265 gross square feet of space.
(E) Legal Requirements and Contracts. Lessee shall
comply with and cause the Premises to comply with:
(i) all agreements to which Lessee is a party and
all laws, statutes, codes, ordinances, orders, judgments, decrees,
injunctions, rules, governmental rules or regulations, including but
not limited to all zoning, building codes, fire, safety and health
codes, permits, licenses, authorizations, directions and
requirements of all governments, including, without limitation, all
departments, commissions, boards, courts, authorities, agencies,
officials and officers thereof, and all provisions of the Americans
with Disabilities Act (42 U.S.C. <section>12,101) et seq., now in
force or which may be enacted or promulgated in the future and all
orders, rules and regulations of the Connecticut Board of Fire
Underwriters or any similar body, foreseen or unforeseen, ordinary
or extraordinary, or arising from any restrictions or agreements of
record (as of the date of Lessee's execution of this Lease), or
otherwise, including but not limited to any or all of the foregoing
which
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may require structural, unforeseen or extraordinary changes to the
Premises, which now or at any time hereafter may be applicable to
(1) the Lessee as the tenant, lessee or occupant of the Premises,
(2) the Premises or any part thereof, (3) any of the sidewalks
located within the Appurtenant Areas (as such term is defined in
paragraph 10 herein), transformer or basement vaults and transformer
or basement vault space, if any, or streets or ways, if any located
within Appurtenant Areas, but excluding any underground pedestrian
tunnels, or (4) any use or condition of the Premises or any part
thereof (all of the foregoing, together with "Environmental Laws"
(as defined in paragraph 7 (b) (G) below) being referred to as
"Legal Requirements"), and
(ii) all material contracts (including all insurance
policies required to be maintained by Lessee hereunder), agreements,
covenants, conditions and restrictions applicable to the Premises or
the ownership, occupancy or use thereof, existing as of the date of
the Original Lease, or which may have been subsequently entered
into, or assumed, by Lessee (singly a "Contract", collectively, the
"Contracts"). Notwithstanding the foregoing, if any notice of non-
compliance of any Legal Requirement or Contract should be delivered
or issued solely to Lessor in the first instance (with Lessee having
no independent knowledge of the issuance of such notice of non-
compliance), then Lessee shall not be considered to be in default
hereunder unless Lessee shall remedy such non-compliance within ten
(10) days after Lessor provides Lessee with notice of such non-
compliance.
(F) Lessee will obtain and keep in full force and effect,
or cause to be obtained and kept in full force and effect, whatever
governmental or regulatory approvals, consents, authorizations and/or
licenses, if any, which now or at any time hereafter may be required or
applicable with respect to (1) the Lessee as the tenant, lessee
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or occupant of the Premises, (2) the Premises or any part thereof, (3)
any of the sidewalks located within the Appurtenant Areas (as such term
is defined in paragraph 10 herein), transformer or basement vaults and
transformer or basement vault space, if any, or streets or ways, if any
located within Appurtenant Areas, but excluding any underground
pedestrian tunnels, or (4) any use or condition of the Premises or any
part thereof. Lessee will not do, or permit any parent, affiliate,
subsidiary or sublessee, or any officer, director, employee, agent or
invitee of any of the foregoing, to do any act or thing which materially
impairs the market value of the Premises, or which would, in all
likelihood, be adjudicated a public nuisance.
(G) Environmental Laws. (i) Lessee, during the Term of
this Lease, shall be responsible for Lessee's complying, and Lessee's
Contractors' (as defined below) complying, with all laws, ordinances,
rules, regulations, orders and judgments relating to the protection of
the environment, including, without limitation, the Clean Air Act, the
Clean Water Act, the Safe Drinking Water Act, the Toxic Substances
Control Act, the Resource Conservation and Recovery Act, as amended by
the Hazardous and Solid Waste Amendments of 1984, and CERCLA, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
<section><section>9601-9657 (the "Super Fund" Act), the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. <section>1801-1812, the
Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act (42 U.S.C. <section>6901 et seq.), the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. <section><section>136 et seq.
("FIFRA"), the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.) ("FWPCA") and Connecticut General Statutes 22a-114 et seq., 22a-
134 et seq. and 22a-451 et seq., including any amendments or extensions
thereof and all future similar statutes, laws, rules, regulations and
directives and any rules, regulations, standards or guidelines issued
pursuant to any of the foregoing, insofar as any such law, ordinance, rule,
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regulation, order or judgment applies to (A) Lessee's or Lessee's
Contractors' business, activities, acts or omissions conducted on, about
or from the Premises, or Land, or (B) Lessee's use and occupancy of the
Premises, Appurtenant Areas and Land, under this Lease (all of the
foregoing, being hereafter collectively referred to as "Environmental
Laws").
(ii) Lessee, during the Term of this Lease, shall be
responsible for the safe and proper generation, use, handling,
treatment, transportation, shipment, storage and disposal, by the Lessee
and/or Lessee's parent, affiliates, subsidiaries, assignees,
contractors, vendors, sublessees, licensees, representatives, agents and
employees, insofar as any of the foregoing are providing services or
materials to Lessee or the Premises (hereinafter, collectively, called
"Lessee's Contractors"), of all chemicals, oil, minerals, and toxic or
hazardous materials, substances and waste and each and all substances or
materials regulated pursuant to any Environmental Laws, including, but
not limited to, any such substance, emission or material now defined as
or deemed, under federal, state or common law, to be a regulated
substance or regulated waste, hazardous substance, toxic substance,
pesticide, explosives, radioactive materials, hazardous waste or any
similar or like classification or categorization thereunder (any of the
foregoing being hereinafter referred to as "Chemical Substances"), at
any time in, on or about the Premises or Land, or transported to or from
thereof, whether for disposal or otherwise, and for any spills,
releases, discharges, leaks, emissions or releases of any Chemical
Substance(s) by Lessee or any of Lessee's Contractors (a "Release"),
into or upon the air, ground or surface or ground water, or the
environment, and for any required clean-up, remediation, removal,
corrective measures, neutralization or containment of any Releases of
any Chemical Substances, and the monitoring thereof, including the
monitoring of any remediation of any Release of any Chemical Substances,
all at the Lessee's sole cost and expense. Lessee agrees to notify
Lessor, in writing, promptly upon Lessee receiving notice or actual
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knowledge thereof, should any Release of any quantity of any Chemical
Substance(s) occur in or about the Premises, Appurtenant Areas or Land,
if such Release is required to be reported to any governmental agency or
authority under applicable Environmental Law. On reasonable notice to the
Lessee (so as to afford Lessee a reasonable period to protect the
confidentiality of Lessee's operations in the Premises), Lessor and Lessor's
agents, representatives and contractors shall have the right, from time to
time, to inspect the Premises to ascertain whether Lessee's and/or Lessee's
Contractor's activities on, about and from the Premises and Land, and use and
occupancy of the Premises and Land, are in compliance with this Lease and
with all Legal Requirements and all Environmental Laws.
8. Liens.
(a) Lessee will promptly remove and discharge any charge,
lien, security interest or encumbrance upon the Premises or upon any
Fixed Rent, additional rent or other sum payable hereunder which arises
for any reason, including, without limitation, all liens which arise out
of the use, occupancy, construction, repair or rebuilding of the
Premises, by Lessee or any other person or entity other than Lessor or
any Lessor's Indemnitee (as such term is defined in paragraph 9 herein),
or by reason of labor or materials furnished, or claimed to have been
furnished, to Lessee or for the Premises (any of the foregoing being
referred to as a "Lien"); provided, however, that Lessee shall have the
right to contest Liens as provided in paragraph 15 (Permitted Contests)
and Lessee shall not be required to remove or discharge any Lien if (i)
payment therefor is not yet due, or (ii) such Lien arises solely as a
result of the action or inaction of Lessor or any Lessor's Indemnitee.
(b) NOTICE IS HEREBY GIVEN THAT LESSOR IS NOT AND SHALL
NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR
TO BE
FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE
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PREMISES OR ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT
NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN AND
TO THE PREMISES.
9. Indemnification.
(a) By Lessee. Subject to the terms of subparagraph (c)
below, Lessee shall pay, protect, indemnify and save harmless Lessor and
any partner, officer, agent, employee, director or shareholder of
Lessor, and any partner, officer, agent, employee, director or
shareholder of any partner or assignee of Lessor (collectively,
"Lessor's Indemnitees"), from and against, and shall defend all actions
against any such person, or entity, with respect to, any and all
liabilities, losses, damages, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims, demands
or judgments of any nature whatsoever, suffered or incurred by any
Lessor Indemnitee and arising from (i) any injury to or death of any
person(s), or damage to or loss of property or any other thing occurring
on or in the Premises, Lessee's Parking Spaces, or (with respect to
Lessee and Lessee's employees and visitors) upon any of the Appurtenant
Areas), or in any manner growing out of or resulting from or connected
with the use, nonuse, condition or occupancy of the Premises, Lessee's
Parking Spaces and the Appurtenant Areas, (ii) any injury to or death of
any person(s), or damage to or loss of property or any other thing
occurring on or in the Land, if caused by the negligence or misconduct
of Lessee or any of Lessee's Contractors, licensees, sublessees,
invitees or any person for whose conduct Lessee is responsible, (iii)
violation of any condition or agreement of this Lease by Lessee, (iv)
any act or omission of Lessee or its agents, any Lessee's Contractors,
licensees, sublessees, invitees or any person for whose conduct Lessee
is legally responsible, (v) violation by Lessee of any
contract or agreement to which Lessee is a party, or (vi)
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violation by Lessee of any contract or agreement to which Lessee is a
party, or (vi) violation by Lessee, any of Lessee's Contractors,
licensees, sublessees, invitees or any person for whose conduct Lessee
is legally responsible of any Legal Requirement affecting the Premises,
the Land, or any part thereof, or the ownership, occupancy or use
thereof, and (vi) any contest referred to in paragraph 15. The
obligations of Lessee under this paragraph 9 (a) shall survive any
expiration or termination of the Term of this Lease for all events
described in this paragraph 9 (a) which occur prior to the expiration or
termination of the Term of this Lease. In case any action shall be
brought against Lessor, or any Lessor's Indemnitee entitled to the
benefits of this paragraph in respect of which indemnity may be sought
against Lessee, then Lessor or such affected Lessor's Indemnitee, shall
promptly notify Lessee in writing and Lessee shall assume the defense
thereof, including the employment of counsel and the payment of all
expenses. Lessor or such Lessor's Indemnitee shall have the right to
employ separate counsel, at Lessor's or Lessor's Indemintee's expense,
in any such action and participate in the defense thereof. Lessee shall
not be liable for any settlement of any action without its consent, but,
if any such action is settled with the consent of Lessee, or if there
shall be final judgment for the plaintiff in any such action, Lessee
agrees to defend, indemnify and hold harmless Lessor or such affected
Lessor's Indemnitee from and against any loss or liability by reason of
such settlement or judgment; provided Lessor or Lessor's Indemnitee
shall have complied with the notice requirement set forth in this
Paragraph 9 (a).
(b) By Lessor. Subject to the terms of paragraph 23
(Separability; Binding Effect), paragraph 43 (Exculpatory Clause) and
subparagraph (c) below, Lessor shall pay, protect, indemnify and save
harmless Lessee, and any officer, agent, employee, director or
shareholder of Lessee (collectively, "Lessee's Indemnities"), from and
against, and shall defend all actions against any such person, or
entity, with respect to, any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees and
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expenses), causes of action, suits, claims, demands or judgments of any
nature whatsoever, suffered or incurred by any Lessee Indemnitee which
arises solely by reason of the gross negligence or willful misconduct of
Lessor. Subject to the terms of paragraph 23 (Separability; Binding
Effect) and paragraph 43 (Exculpatory Clause), the obligations of Lessor
under this paragraph 9 (b) shall survive any expiration or termination
of this Lease for all events described in this paragraph 9 (b) which
occur prior to the expiration or termination of the Term of this Lease.
In case any action shall be brought against Lessee, or any Lessee's
Indemnitee entitled to the benefits of this paragraph 9 (b) in respect
of which indemnity may be sought against Lessor, then Lessee or such
affected Lessee's Indemnitee, shall promptly notify Lessor in writing
and Lessor shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Lessee or such Lessee's
Indemnitee shall have the right to employ separate counsel, at Lessee's
or Lessee's Indemnitee's expense, in any such action and participate in
the defense thereof. Lessor shall not be liable for any settlement of
any action without its consent, but, if any such action is settled with
the consent of Lessor, or if there shall be final judgment for the
plaintiff in any such action, Lessor agrees to defend, indemnify and
hold harmless Lessee or such affected Lessee's Indemnitee from and
against any loss or liability by reason of such settlement or judgment;
provided Lessee or Lessee's Indemnitee shall have complied with the
notice requirement set forth in this Paragraph 9 (b).
(c) Mutual Release. Notwithstanding anything to the contrary
contained in this Lease, Lessor and Lessee each hereby releases the
other (and its partners, officers, directors, servants, agents,
contractors, employees and invitees) with respect to any claim
(including claims under Paragraphs 9 (a) and (b) above and any claims
for negligence or gross negligence) which it might otherwise have
against the other party for
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loss, damages or destruction of the type covered by any insurance which
such party is required, or agrees, to maintain under this Lease.
10. Maintenance and Repair. Lessee, at its own sole cost and
expense, will maintain all parts of (i) the Premises, (ii) all plantings
in that area around the Premises bounded on the west by a sidewalk and
on all other sides by portions of the loop road located on the Land,
(iii) the base building systems and base building equipment in the
Premises, including, but not limited to, fire safety (including
sprinkler and fire suppression systems), plumbing, steam distribution,
elevator, sanitary, heating, air-conditioning, ventilation and
electrical equipment and systems and other building equipment and
systems used in connection with the operation of the Premises
(hereinafter collectively referred to as the "Equipment")), and (iv) the
automobile parking spaces allocated to Lessee pursuant to this Lease,
the walkways between said Premises and said parking spaces and the areas
adjacent to the Premises which Lessee may use for shipping, receiving,
loading and unloading, the placement of refuse containers and the like
(collectively, the "Appurtenant Areas"), in good repair and condition,
having regard to the configuration of office and laboratory space and
the configuration of the "base building" systems and Equipment in the
Premises as of the date of this Second Amended and Restated Lease.
Except for ordinary wear and tear, Lessee shall not suffer or permit any
waste thereof, and will take all actions and will make all structural
and nonstructural, foreseen and unforeseen and ordinary and
extraordinary changes and repairs (or replacements) which may be
required for any reason to keep all parts of the Premises; such
Equipment and the Appurtenant Areas in good repair and condition, and in
compliance with all Legal Requirements (including, without limitation,
any Legal Requirement requiring the removal of asbestos or asbestos-
containing materials). Lessor shall not be required to maintain, repair
or rebuild all or any part of the Premises or the Appurtenant
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Areas. Lessee waives the right to require Lessor to maintain, repair or
rebuild all or any part of the Premises or the Appurtenant Areas, or
make repairs, at the expense of Lessor, pursuant to any Legal
Requirement or Contract, at any time in effect. All obligations and
waivers of Lessee under this paragraph 10 shall constitute part of the
consideration for Lessee's use and occupation of the Premises. The
Lessee, at Lessee's sole cost and expense, shall keep (A) the Premises
neat and free of dirt and debris and other accumulations, (B) all
portions of the Appurtenant Areas neat and free of dirt and debris, and
free of ice and snow and other accumulations, and (C) the area where the
Lessee is responsible for maintaining plantings and the walkways
referred to in clauses (i) and (iv) above neat and free of dirt, debris
and other accumulations, and free of ice and snow.
11. Alterations.
(a) Subject to the terms and conditions of subparagraph
(b) below, Lessee may, at its expense, make additions and alterations to
the interior of the Premises, provided that (i) same are not structural,
(ii) the fair market value of the Premises shall not be materially
lessened thereby, (iii) such work shall be completed in a good and
workmanlike manner and in compliance with all applicable Legal
Requirements and Contracts. Lessee shall provide Lessor with copies of
all Building Permits and Certificates of Occupancy which are issued in
connection with any Lessee Alterations. Alterations which affect the
exterior and/or structure of the Premises may not be made by Lessee
except in compliance with clauses (ii) and (iii) of the prior sentence
and paragraph 11 (b) hereof, unless Lessor's prior written consent shall
have been obtained, which consent shall not be unreasonably withheld or
delayed. All such additions, alterations, additional improvements,
substitutions and replacements, subject to the provision contained in
the next succeeding sentence, shall be and remain part of the realty and
the property of Lessor and shall be subject to this Lease.
Notwithstanding the foregoing, Lessee shall be entitled
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to take all depreciation allotted under the Internal Revenue Code for
any of the foregoing which may be installed by Lessee, at Lessee's sole
cost and expense. Lessee may place in the Premises any inventory, trade
fixtures, machinery, equipment or other property belonging to Lessee or
any third party or leased to Lessee by parties or any third party other
than Lessor (provided no security interest is granted or retained in any
of the foregoing which may be affixed to the Premises and not removed
without material damage thereto), and may remove the same at any time
during any Term of this Lease. Lessee shall repair any damage to the
Premises caused by such removal and shall restore the Premises, prior to
the expiration or termination of this Lease, to (A) good condition,
ordinary wear and tear excepted, and (B) the configuration of the
office space, laboratory space and "base building" systems and Equipment
existing in the Premises as of the date of this Second Amended and
Restated Lease.
(b) Lessee shall notify Lessor of any proposed
alteration, repair or improvement reasonably estimated to cost more than
$100,000 ("Major Undertaking"), which notice shall include a brief
narrative of the work that will be done and a copy of the plans and
specifications therefor. The plans and specifications for any Major
Undertaking shall be in conformity with nationally recognized sound and
prudent engineering and architectural standards. Lessor, by itself or
its agent, shall have the right, but not the obligation, from time to
time to inspect any Major Undertaking during construction to ensure that
such construction is completed in a manner which is consistent with such
plans and specifications and satisfies the requirements of paragraph
11(a).
(c) Notwithstanding the terms of subparagraph (a) above,
Lessor shall not unreasonably withhold its consent to any structural
alteration proposed by Lessee. Factors which may be considered by
Lessor in considering any such request by Lessee may include the
following: (i) the cost of reconfiguring the Premises for use by other
lessees
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following the expiration or termination of this Lease; (ii) whether the
proposed structural alteration will adversely affect the structural
integrity of the Premises, including exterior windows, walls,
foundation, supporting columns and roof; (iii) whether the proposed
structural alteration is reasonably likely to materially increase the
costs, as measured on a per square foot basis, of operating and
maintaining the Premises; (iv) whether such proposed structural
alteration is reasonably likely to adversely affect any the operation of
any base building system or Equipment in the Premises, including
plumbing, steam distribution, elevators, sanitary, electrical, heating,
ventilation or air-conditioning systems; (v) whether the proposed
structural alteration will be visible from the exterior of the
Premises; (vi) whether the proposed structural alteration is reasonably
likely to reduce the fair market value of the Premises, or the rentable
area configured for office space as of the date hereof; (vii) whether
the proposed structural alteration will change the configuration of
hallways, stairways, entrances, exits, loading doors, docks and ramps
existing as of the date hereof; and (viii) whether the Premises, upon
the completion of such proposed structural alteration, shall be in
compliance with all Legal Requirements and Contracts. Lessor's consent
to any alteration desired to be made by Lessee shall not be deemed to
constitute Lessor's representation or warranty that such proposed
alteration will be in compliance with Legal Requirements.
12. Condemnation, Casualty and Temporary Requisition.
(a) General. Lessee hereby irrevocably assigns to
Lessor, for application in accordance with the terms of this Lease, any
award, compensation or insurance payment to which Lessee may become
entitled by reason of Lessee's interest in the Premises, the fixtures,
Equipment therein and/or the Appurtenant Areas or any part(s) thereof
(exclusive of trade fixtures and equipment which can be removed without
damage to the Premises) and other personal property and any rights to
any award in respect of
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relocation expenses); provided that the same does not result in a
reduction of the award otherwise payable to Lessor (i) if the use,
occupancy or title of the Premises, such fixtures, Equipment and/or the
Appurtenant Areas or any part(s) thereof is taken, requisitioned or sold
in, by or on account of any actual or threatened eminent domain
proceeding, or other action by any person or governmental authority
having the power of eminent domain (an occurrence of the character
referred to in this clause (i) is hereinafter referred to as
"Condemnation"), or (ii) if the Premises, such fixtures, Equipment
and/or the Appurtenant Areas or any part(s) thereof are damaged or
destroyed by fire, flood or other casualty (an occurrence of the
character referred to in this clause (ii) is hereinafter referred to as
"Casualty").
Lessee shall appear in any such proceeding, action,
negotiation, prosecution or adjustment for any award, compensation or
insurance payment on account of any such Condemnation or Casualty, shall
take all appropriate action in connection therewith, shall pay all
expenses thereof, including, without limitation, the reasonable cost of
Lessor's reasonable participation therein, and shall direct any such
award, compensation or insurance payment (net of reasonable expenses of
collection) to be paid to the "Depository" (as defined in paragraph 12
(f)) for deposit as provided by this paragraph 12. Lessor shall be
entitled to participate in any such proceeding, action, negotiation,
adjustment at the cost and expense of Lessee. All amounts paid in
connection with any such Condemnation or Casualty shall be applied
pursuant to this paragraph 12, and all such amounts (minus the expense
of collecting such amounts, including any reimbursement for costs and
expenses in connection therewith to which Lessor is entitled pursuant to
this Lease), together with any interest earned thereon, excluding, in
any event, proceeds from business interruption insurance carried by
Lessee, or any sublessee, from time to time, are herein called the "Net
Proceeds." Lessor and Lessee shall be reimbursed for all reasonable
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costs and expenses in connection with each such proceeding, action,
negotiation, prosecution and adjustment out of any award, compensation
or insurance payment received, as provided in this paragraph 12. Lessee
agrees that this Lease shall control the rights of Lessor and Lessee in
any such award, and any present or future law to the contrary is hereby
waived.
(b) Total Condemnation or Casualty. If a Condemnation
shall result in (i) the taking of fifty percent (50%) or more of the
square foot floor area of the Premises, or fifty percent (50%) or more
of the parking spaces allocated to the Premises (unless other parking
spaces are allocated to the Premises by the Lessor which are reasonably
convenient to the Premises), or (ii) all access to the Premises being
taken, or if a Casualty shall destroy or substantially damage fifty
percent (50%) or more of the Premises, and in the judgment of a licensed
architect, reasonably acceptable to Lessor and Lessee, such destruction
or substantial damage cannot reasonably be expected to be fully restored
and repaired (such that the Premises, after restoration and repair,
consist of a building which complies in all respects with then-
applicable Legal Requirements, including building codes and zoning
regulations and which has substantially the same usefulness as before
the Casualty [for the uses being made of the Premises immediately prior
to the Casualty]) within nine (9) months after the date of the Casualty,
then Lessee and Lessor shall each have the right, exercisable not later
than sixty (60) days after the date title vests pursuant to a
condemnation, or the date of the Casualty, to terminate this Lease by
delivering to the other party notice of its intent to terminate this
Lease on the last day of the month after the month in which such notice
is given (the "Termination Date"). After the delivery of such notice,
this Lease shall terminate upon the Termination Date. Notwithstanding
paragraph 12(a) hereof, if this Lease is terminated as above set forth,
the Net Proceeds shall be payable to the Lessor.
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(c) Condemnation Without Election to Terminate; Partial
Condemnation. If, after a Condemnation, Lessee or Lessor does not give
notice of its intention to terminate this Lease as provided in paragraph
12(b), then this Lease shall continue in full force and effect, and
Lessee shall, at its expense, promptly commence to and diligently
rebuild, replace or repair to completion any damage to the Premises, the
fixtures and Equipment therein and/or the Appurtenant Areas caused by
such Condemnation in conformity with the requirements of paragraphs 10
or 11, as applicable, so as to restore the Premises, such fixtures and
Equipment and/or the Appurtenant Areas, as nearly as practicable, to the
condition and fair market value thereof immediately prior to such
occurrence, giving due regard to the fact that restoration of the entire
Premises may no longer be practicable. Prior to any rebuilding, a
reputable general contractor, reasonably acceptable to Lessor and
Lessee, shall reasonably determine the maximum cost of such rebuilding,
including, without limitation, all architect's fees and expenses
(collectively, the "Condemnation Restoration Cost"). The Condemnation
Restoration Cost shall be paid first out of Lessee's own funds to the
extent that the Condemnation Restoration Cost is estimated to exceed the
Net Proceeds payable in connection with such Condemnation (or the
Lessee, subject to the Lessor's written consent, which the Lessor agrees
not to withhold unreasonably, may insure payment of such excess by a
surety bond or escrow deposit of cash or its equivalent). After such
expenditure by Lessee (or insuring of payment) and provided that no
material default under this Lease shall have occurred and then be
continuing, Lessee shall be entitled to cause the Depository to pay
Condemnation Restoration Costs out of the Net Proceeds, but only against
certificates of an architect, reasonably acceptable to Lessor, Lessee
and any Mortgagee of Lessor (whose services shall be paid out of the Net
Proceeds), delivered to Lessor from time to time as such work of
rebuilding, replacement and repair progresses, each such certificate
describing the work for
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which Lessee is requesting payment, the cost incurred by Lessee in
connection therewith, stating that such costs have not theretofore been
reimbursed or paid, and that such work has been properly completed, and
that the remaining Net Proceeds are adequate to pay for all remaining
Condemnation Restoration Costs. Any Net Proceeds remaining after final
payment has been made for such work, provided that no material default
under this Lease shall have occurred and then be continuing, shall be
paid to Lessee to the extent required to reimburse Lessee for any
Condemnation Restoration Costs paid by Lessee and not theretofore
reimbursed, and the balance shall be paid to Lessor. If any
Condemnation Restoration Costs paid by Lessee pursuant to this paragraph
12(c) shall exceed the amount of such Net Proceeds, the deficiency shall
be paid by Lessee. In the event that a Condemnation does not result in
the termination of this Lease under the terms hereof, the Fixed Rent
shall be adjusted as of the date title vests pursuant to such
Condemnation so that the Fixed Rent payable after such Condemnation
shall be that portion of the Fixed Rent payable immediately prior to
such Condemnation which the rental value immediately after the
Condemnation (and the restoration required under the terms hereof) of
the Premises shall bear to the rental value of the Premises immediately
prior to the Condemnation. Said rental values shall be determined in
accord with the Real Estate Valuation Arbitration Rules then in effect,
or if no such Rules are then in effect, in accord with other recognized
real estate valuation rules then in effect, as reasonably determined by
Lessor.
(d) Casualty Without Election to Terminate; Partial
Casualty. If, after a Casualty, Lessee or Lessor does not give notice
of its intention to terminate this Lease as provided in paragraph 12(b)
then this Lease shall continue in full force and effect, and Lessee
shall, at its expense, promptly commence and diligently rebuild, replace
or repair to completion any damage in conformity with the requirements
of paragraph 10 or
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11, as applicable, so as to restore the Premises, as nearly as
practicable, to the condition and fair market value thereof immediately
prior to such Casualty. Prior to any rebuilding, a reputable general
contractor reasonably acceptable to Lessor, Lessee and the insurance
company which has issued the policy(ies) of insurance covering the
Premises, shall determine the maximum cost of such rebuilding,
including, without limitation, all architect's fees and expenses
(collectively, the "Casualty Restoration Cost"). The Casualty
Restoration Cost shall be paid first out of Lessee's own funds to the
extent that the Casualty Restoration Cost is estimated to exceed the Net
Proceeds payable in connection with such Casualty (or the Lessee,
subject to the Lessor's written consent, which the Lessor agrees not to
withhold unreasonably, may insure payment of such excess by a surety
bond or escrow deposit of cash or its equivalent). After such
expenditure by Lessee (or insuring of payment) and provided that no
default under this Lease shall have occurred and then be continuing,
Lessee shall be entitled to cause the Depository to pay Casualty
Restoration Costs out of the Net Proceeds, but only against certificates
of said architect delivered to Lessor from time to time as such work of
rebuilding, replacement and repair progresses, each such certificate
describing the work for which Lessee is requesting payment, the cost
incurred by Lessee in connection therewith, stating that such costs have
not theretofore been reimbursed or paid, and that such work has been
properly completed, and that the remaining Net Proceeds are adequate to
pay for all remaining Casualty Restoration Costs. Any Net Proceeds
remaining after final payment has been made for such work, provided that
no material default under this Lease shall have occurred and then be
continuing, shall be paid to Lessee to the extent required to reimburse
Lessee for any Casualty Restoration Cost paid by Lessee and not
theretofore reimbursed, and the balance shall be paid to Lessor. The
future value (determined at 8% per annum from the date Lessor receives
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same) of any balance so paid to the Lessor shall be credited by the
Lessor to the last installments of Fixed Rent to become due under this
Lease.
(e) Temporary Requisition. Notwithstanding any other
provision to the contrary contained in this paragraph 12, in the event
of any temporary requisition, this Lease shall remain in full force and
effect and Lessee shall be entitled to receive the Net Proceeds
allocable to such temporary requisition, except that such portion of the
Net Proceeds as is allocable to the period after the expiration or
termination of the Term of this Lease shall be paid to Lessor.
(f) Investment of Net Proceeds. All Net Proceeds shall
be deposited with a bank or other financial institution reasonably
designated by Lessor (the "Depository"). Lessee may direct the
investment of the amounts so deposited with the Depository pursuant to
this paragraph 12(f) in the following manner:
(i) repurchase obligations of the Depository at all
times fully secured by direct and general obligations of
the United States of America or obligations guaranteed as
to principal and interest by the United States of America;
(ii) direct and general obligations of the United
States of America or obligations guaranteed as to
principal and interest by the United States of America;
(iii) certificates of deposit of the Depository or
any nationally recognized banking institution whose debt
instruments are rated "AA" or better (or similar ratings)
by two nationally recognized rating institutions
reasonably acceptable to Lessor; or
(iv) commercial paper which is rated "A-1" or better
(or comparable ratings) by Standard & Poor's Corporation
or "P-1" or
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better (or, comparable ratings) by Moody's Investors
Service, Inc., or the successors to such rating
organizations.
Such investments of such funds shall mature in such amounts and
on such dates as to provide that amounts shall be available on the draw
dates sufficient to pay the amounts requested, and due to, Lessor or
Lessee, as the case may be. The Depository shall not be liable for any
loss resulting from the liquidation of each and every such investment.
The terms and conditions relating to such deposit and investments shall
otherwise be satisfactory to Lessor, Lessee and the Depository.
13. Insurance.
(a) Lessee will purchase and maintain insurance on the
Premises of the following character:
(i) Property Insurance: Insurance against loss or
damage by fire, lightning and all other perils covered by the "all risk"
endorsement, including, without limitation, flood insurance (if, but
only if, the Premises are located in a flood hazard area), issued by a
company available for use by the Lessee which satisfies the criteria set
forth below in this subparagraph (a), in amounts not less than the
actual replacement cost (exclusive of foundations and excavations) of
the Premises, as adjusted annually as hereinafter provided. Such
insurance policies may include reasonable deductibles, as reasonably
determined by Lessor and Lessor's Mortgagee (if any), giving due regard
for the industry and capital structure of the Lessee at the time of
issuance of such policy(ies). The amount of property insurance shall be
increased at least once in each year to reflect any increase in
replacement cost by using the then current Building Owners' Management
Association ("BOMA") Building Index, or another similar index of
construction costs generally accepted as accurate by risk management
professionals. Such
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insurance shall name the Lessor as insured and Lessee and any Mortgagee
of the Lessor as additional insureds, as their interests may appear.
(ii) Boiler and Machinery Insurance: Insurance in
respect of any boilers and pressure vessels or equipment of whatever
type or character (including, without limitation, pressure piping and
air-conditioning equipment) located in and/or serving the Premises
and/or the Appurtenant Areas in the minimum amount reasonably designated
by Lessor from time to time for each accident or in such greater amounts
as are then customary for property similar in use to the Premises and
located in the State of Connecticut or contiguous states.
(Notwithstanding the foregoing, Lessee shall not be required to procure
boiler and machinery insurance for any Power Plant machinery or
equipment; except for any process steam generation equipment which
Lessee may locate, from time to time, in the Power Plant in accordance
with the terms of Paragraph 30 (c) (i) herein and provided further that
this sentence is not intended to relieve Lessee from the obligation to
contribute towards the Lessor's cost of the insurance, procured for the
boilers and pressure vessels located in the Power Plant, as set forth in
Paragraph 29 (Management and Maintenance Expenses) (b) (Power Plant)
herein.
(iii) Comprehensive General Public Liability
Insurance: Comprehensive public general liability insurance (including
coverage for elevators and escalators, if any, premises operations and
contractual liability) with respect to the Premises and the Appurtenant
Areas, naming the Lessee and the Lessor (and any Mortgagee of the
Lessor) as insureds, as their interests may appear, against claims for
bodily injury, death and/or property damage occurring on, in or about
the Premises and/or the Appurtenant Areas and (as to Lessee's employees
and visitors) adjoining streets and sidewalks, in the minimum combined
single limit amount reasonably designated by Lessor from time to time,
for each occurrence for bodily injury, death and/or property damage, or
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in such greater amounts as are then customary for property similar in
use to the Premises and located in the State of Connecticut or
contiguous states. Lessor and Lessee agree that, as of the date hereof,
$8,180,966 is a reasonable minimum amount.
(iv) Workers' Compensation Insurance: Insurance
(including employers' liability insurance) to the extent required by the
laws and statutes of the State of Connecticut, including, without
limitation, during the course of any construction, alteration or repair
of the Premises and/or the Appurtenant Areas, workers' compensation and
employers' liability insurance covering its employees in such amount as
is required by law.
(v) Builders' Risk: During the course of any
construction or repair of the Premises and/or the Appurtenant Areas
which is anticipated to cost more than the sum of One Hundred Thousand
Dollars ($100,000), a Builders' Risk policy of insurance against "all
risks," including collapse and transit coverage, during construction and
covering the total value of work performed and Equipment, supplies and
materials furnished. Lessee's requirement to purchase builder's risk
insurance, under this subparagraph (v), shall be deemed satisfied if the
insurance described herein is provided by the general contractor
undertaking such alterations, repairs or improvements.
Such insurance shall be written by companies with a
consistent Best's rating of at least B+ or equivalent standard and a
minimum financial class of XI which are nationally or internationally
recognized, legally qualified to issue such insurance, selected by
Lessee and reasonably acceptable to Lessor and (other than [iv] workers'
compensation) shall name Lessor as a named insured and include Lessee as
a named insured as its interest may appear. If the Premises, or any
part thereof, shall be damaged or destroyed by fire or other insured
peril, and if the estimated cost of rebuilding,
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replacing or repairing the same shall exceed One Hundred Thousand
Dollars ($100,000), Lessee shall promptly notify Lessor thereof.
(b) Policy Requirements. The property insurance referred
to in clause (i) of paragraph 13(a) (except for property insurance
coverage for Lessee's personal property, equipment, trade fixtures and
furnishings and Worker's Compensation Insurance maintained under (iv)
therein) shall include a standard mortgagee endorsement in favor of any
institutional mortgagee or beneficiary (the "Mortgagee") under a
mortgage, deed of trust or other security interest creating a lien on
the interests of Lessor in the Premises (the "Mortgage") granted by
Lessor in accordance with paragraph 25 (Subordination and Non-
Disturbance) hereof; and any loss or damage under such property
insurance policy shall be payable to the first Mortgagee to be held and
applied pursuant to paragraph 12.
Every policy referred to in paragraph 13(a) (except for
property insurance coverage for Lessee's personal property, equipment,
trade fixtures and furnishings and Worker's Compensation Insurance
maintained under (iv) therein) shall contain reasonable deductibles, as
reasonably determined by Lessor and Lessor's Mortgagee (if any), giving
due regard for the industry and capital structure of the Lessee at the
time of issuance of such policies, and shall provide that (i) it will
not be amended, cancelled or reduced except after ten (10) days' written
notice to Lessor (and the Mortgagee, if applicable), (ii) such insurance
shall not be invalidated by any act or negligence of Lessee or Lessor or
any person or entity having an interest in the Premises, or by occupancy
or use of the Premises for purposes more hazardous than permitted by
such policy, or by any foreclosure or other proceedings or notices
thereof relating to the Premises, or by any change in title or ownership
of the Premises or the Land, (iii) all insurance claims pertaining to
the Premises in amounts of One Hundred Thousand Dollars ($100,000), or
less, shall be adjusted by the insurers thereunder with Lessee, and all
insurance claims pertaining to the Premises in
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excess of One Hundred Thousand Dollars ($100,000) shall be so adjusted
with Lessor and Lessee jointly, (iv) it shall include a waiver of all
rights of subrogation against Lessor, each Mortgagee and Lessee, (v) it
shall not contain a provision relieving the insurer thereunder of
liability for any loss by reason of the existence of other policies of
insurance covering the Premises against the perils involved, whether
collectible or not, and (vi) it shall include the Mortgagee and Lessor
as additional named insureds (but not on workers compensation
insurance). The Lessee will advise Lessor promptly, upon Lessee's
receipt of notice thereof, of any policy cancellation, reduction or
amendment which adversely affects the coverage provided thereby.
(c) Delivery of Certificates. Lessee shall deliver to Lessor
(and to the Mortgagee, if applicable) certificates of insurance
reasonably satisfactory to Lessor (and to the Mortgagee, if applicable)
evidencing the existence of all insurance or certified copies of all
policies which are required to be maintained by Lessee hereunder, such
delivery to be made (i) contemporaneously with the execution and
delivery of this Lease and (ii) at least thirty (30) days prior to the
expiration date of any such insurance. Lessee shall not obtain or carry
separate insurance concurrent in form or contributing in the event of
loss with that required by this paragraph 13 unless Lessor and the
Mortgagee are named insureds therein, with loss payable as provided
herein. Lessee shall immediately notify Lessor whenever any such
separate insurance is obtained and shall deliver to Lessor (and the
Mortgagee, if applicable), the certificates evidencing, or certified
copies of, the same. Any insurance required hereunder may be provided
under blanket policies as are then customary for other properties owned,
leased or occupied in the vicinity of the Premises and which are
reasonably acceptable to Lessor, provided that the coverage is not less
than the coverage contemplated by this paragraph 13 as separately
stated.
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(d) Self-Insurance. Notwithstanding the foregoing provisions
of this paragraph 13, all insurance which Lessee is required to procure and
maintain thereunder may include or consist entirely of self-insurance
issued by a validly formed and existing affiliate (the "Insurance
Affiliate"), provided that prior to effecting such self-insurance
hereunder Lessee provides Lessor with (A) the name of the Insurance
Affiliate, (B) evidence that such Insurance Affiliate is regulated by
the a State department of banking, (C) an opinion of legal counsel to
Lessee, or such Insurance Affiliate, stating that such Insurance
Affiliate is duly formed and validly existing and is authorized to
provide and issue the insurance coverage required to be provided by
Lessee hereunder, and (D) statutory financial statements of such
Insurance Affiliate. All insurance issued by an Insurance Affiliate
under this subparagraph (d) shall be written on an "occurrence basis"
and shall be evidenced by written certificates of insurance issued and
delivered to Lessor on an annual basis. Such policies must name Lessor
and Lessor's designated Mortgagees as additional insureds, specify the
forms and amounts of insurance provided by such Insurance Affiliate
(which coverage must be in the forms and amounts otherwise required by
this paragraph 13) and the deductibles for such coverage, which
deductibles shall not exceed $100,000. Such policies of insurance must
otherwise be reasonably acceptable to Lessor in form and substance. For
so long as Lessee is satisfying all or any portion of its insurance
obligations by self-insurance under this subparagraph (d) Tenant shall
submit to Landlord on or before May 1st of each year, the year-end
annual financial statements of such Insurance Affiliate, prepared in
accordance with generally accepted accounting principles, consistently
applied, and audited by an independent certified public accountant, for
the preceding calendar-year and such financial statements must otherwise
be reasonably acceptable to Lessor.
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(e) The requirements of this paragraph 13 shall not be
construed to negate or modify Lessee's obligations under paragraph 9
(Indemnification).
14. Broker.
(a) Lessee represents that it dealt with no broker in
connection with this Second Amended and Restated Lease, other than Mr.
Myers Mermel of the Corsair Group, New York, New York. Lessee hereby
indemnifies and holds Lessor harmless from any and all losses, damages
and expenses arising out of any inaccuracy or alleged inaccuracy of the
foregoing representation by Lessee, including court costs and reasonable
attorney's fees.
(b) Lessor represents that no broker or real estate agent has
a listing, or agency agreement with Lessor for the rental of the
Premises. Lessor hereby indemnifies and holds Lessee harmless from any
and all losses, damages and expenses arising out of any inaccuracy or
alleged inaccuracy of the foregoing representation by Lessor, including
court costs and reasonable attorney's fees.
15. Permitted Contests.
(a) Provided that nothing hereinafter contained in this
paragraph 15 shall excuse the Lessee from paying Fixed Rent and all
additional rent and making all other payments to the Lessor under this
Lease, Lessee shall not be required, nor shall Lessor have the right to
(i) pay, discharge or remove any tax, assessment, levy, fee, water
and/or sewer rents which are applicable solely to the Premises or
Lessee's property and which do not affect, or are based upon, any
portion of the Land (except any additional rent hereunder payable to or
for the benefit of Lessor), charge, mechanic's or materialman's lien,
attachment, lien or encumbrance, or (ii) comply or cause the Premises to
comply with any Legal Requirement applicable to the Premises or the use
thereof, or (iii) comply or cause the Premises to comply with any
contract, agreement, covenant, condition or restriction
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applicable to the Premises or the ownership, occupancy or use thereof,
in each case, for so long as Lessee shall contest, in good faith, the
existence, amount or validity thereof by appropriate proceedings which
(A) shall prevent the collection of or other realization upon the tax,
assessment, levy, fee, water and/or sewer rents, charge, attachment,
lien or encumbrance so contested, (B) shall prevent the sale, forfeiture
or loss of the Premises, the Land and/or any Fixed Rent, and/or any
additional rent and/or any other sum required to be paid by Lessee
hereunder, and (C) shall not affect the payment of any Fixed Rent, any
additional rent and/or any other sum required to be paid by Lessee
hereunder; provided that such contest shall not subject Lessor to the
risk of any criminal liability or any material civil liability. Lessee
shall pay and save Lessor harmless against any and all losses,
judgments, decrees and costs (including all reasonable attorneys' fees
and expenses) in connection with any such contest.
(b) As a condition precedent to the exercise by Lessee of the
rights provided in this paragraph 15, if the monetary amount of the
obligation being contested by Lessee hereunder (together with the
amounts of all other obligations then being contested by Lessee
hereunder), or if the cost of Lessee' compliance with the obligation
being contested (together with the cost of Lessee's compliance with all
other obligations then being contested hereunder) should exceed the sum
of Five Thousand Dollars ($5,000), then Lessee shall, prior to
instituting such contest, provide such security as may be reasonably
requested by Lessor, or the first lien Mortgagee, from time to time, and
shall post such security as may be required in the subject proceeding,
to insure ultimate payment of such tax, assessment, levy, fee, water
and/or sewer rents, charge, attachment, lien, or encumbrance and
compliance with Legal Requirements and to prevent (i) any sale or
forfeiture of the Premises, and (ii) any loss of any Fixed Rent, any
additional rent or any other sum required to be paid by Lessee
hereunder. Lessee shall notify Lessor (and the
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Mortgagee, if applicable) of each such proceeding for which the amount
in contest (either singly, or together with any other obligations or
costs then being contested hereunder) exceeds $50,000 within five (5)
business days prior to the commencement thereof, which notice shall
describe such proceeding in reasonable detail. Lessee will conduct all
such contests in good faith and with due diligence and will, promptly
after the final determination (including appeals) of such contest, pay
and discharge all amounts which shall be determined to be payable
therein. At Lessor's request, Lessee shall, from time to time, provide
Lessor with a reasonably detailed written report of the status of any
and all contests instituted under this paragraph 15.
16. Conditional Limitations; Default Provisions.
(a) Any of the following occurrences or acts shall
constitute an Event of Default under this Lease:
(i) if Lessee shall (1) fail to pay any installment of
Fixed Rent or any additional rent or other sum required to be paid by
Lessee hereunder when due and such failure shall continue for ten (10)
days after notice to Lessee of such failure; or (2) fail to observe or
perform any other provision hereof and such failure shall continue for
thirty (30) days after notice to Lessee of such failure (provided that,
in the case of any such default which cannot with diligence be cured
within such thirty-day period, if Lessee shall commence promptly to cure
the same and thereafter prosecute the curing thereof with diligence, the
time within which such default may be cured shall be extended for such
period as is reasonably necessary to complete the curing thereof with
diligence); or
(ii) if Lessee shall commence a voluntary case under
the Federal Bankruptcy Code, file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any federal or state
bankruptcy law or any similar federal or state law, or shall be
adjudicated a bankrupt, or shall become insolvent, or Lessee shall not
generally pay its
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debts as they become due, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or if a petition or answer proposing the
adjudication of Lessee as a bankrupt or its reorganization pursuant to
any federal or state bankruptcy law or any similar federal or state law
shall be filed in any court and Lessee shall consent to or acquiesce in
the filing thereof or such petition; or
(iii) if a receiver, trustee or liquidator of Lessee or
of all or substantially all of the assets of Lessee or Lessee's estate in
the Premises shall be appointed in any proceeding brought by or against
Lessee, as the case may be, or if any such receiver, trustee or
liquidator shall be appointed in any proceeding brought against Lessee
and shall not be discharged within ninety (90) days after such
appointment, or if Lessee shall consent to or acquiesce in such
appointment; or
(iv) if any representation or warranty of Lessee
contained in this Lease shall prove to be incorrect in any material
respect as of the time when the same shall have been made, to the
detriment of any person to whom or for whose benefit the representation
or warranty was made and adequate provision for cure of such detriment
reasonably acceptable to Lessor shall not have been made; or
(v) if the estate or interest of Lessee in the Premises
shall be levied upon or attached in any proceeding and such process
shall not be vacated or discharged within ninety (90) days after such
levy or attachment, unless such levy or attachment is being contested
pursuant to paragraph 15 of this Lease; or
(vi) if final judgment or judgments for the payment of
money in excess of $5,000,000 shall be outstanding against Lessee for
more than 90 days and shall not have been discharged in full (provided
no such judgment shall constitute a default hereunder for so long as the
effect of such judgment is stayed, or until any appeals filed in
connection with such judgment have been finally resolved, provided
Lessee shall, at all
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times, be diligently and in good faith appealing such judgment in a
court of appropriate jurisdiction); or
(vii) if a custodian for purposes of any federal or
state bankruptcy law or any similar federal or state law is appointed or
otherwise takes possession of a substantial portion of Lessee's assets;
or
(viii) if there should occur a default, which continues
beyond the expiration of all applicable notice and cure periods, by
Crompton & Knowles Corp. ("Guarantor") under the terms of a certain
Guaranty of Lease (the "Guaranty"), dated as of the date hereof, made by
Guarantor in favor of Lessor, pursuant to which Guarantor has guaranteed
the full and timely performance of all of Lessee's obligations under
this Lease; or
(ix) if Guarantor should disavow its obligations under
the Guaranty, or if the Guaranty, or any part thereof, is found to be
unenforceable by any court of law having competent jurisdiction over the
matter; or
(x) the filing, by or against Guarantor, in any court,
pursuant to any statute of the United States or of any State, of a
petition in bankruptcy, insolvency, or reorganization (which remains
undischarged for ninety (90) days), or the appointment of a receiver,
trustee, or conservator of all or a portion of Guarantor's property, or
the making by Guarantor of an assignment for the benefit of creditors,
or a general failure by Guarantor to pay its debts when due.
(b) If an Event of Default shall have happened and be
continuing, Lessor shall have the right to give Lessee three (3) days
notice of Lessor's termination of the Term of this Lease. Upon the
giving of such notice, the Term of this Lease and the estate hereby
granted shall expire and terminate on such date as fully and completely
and with the same effect as if such date were the date herein fixed for the
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expiration of the Term of this Lease, and all rights of Lessee hereunder
shall expire and terminate, but Lessee shall remain liable as
hereinafter provided.
(c) Upon the occurrence of any Event of Default, this
Lease shall continue in effect for so long as Lessor does not terminate
Lessee's right to possession under paragraph 16(b), above, and Lessor
may enforce all its rights and remedies under this Lease, including,
without limitation, the right to recover Fixed Rent, additional rent and
any other sums due in accord with this Lease (hereinafter, collectively,
"rent") as same become(s) due, and, without terminating this Lease, may
exercise all of the rights and remedies of a landlord. Acts of
maintenance, preservation or efforts to lease the Premises and the
appointment of a receiver upon application of Lessor to protect Lessor's
interest under this Lease shall not constitute an election to terminate
Lessee's right to possession.
(d) Should Lessor terminate this Lease pursuant to the
provisions of paragraph 16(b), above, Lessor shall have all the rights
and remedies to which Lessor may be entitled under applicable law, and,
in addition, Lessor shall be entitled to receive from Lessee:
(i) the worth at the time of award of the unpaid
rent and other amounts which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rent loss that the
Lessee proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount
by which the unpaid rent for the balance of the term of this Lease after
the time of award exceeds the amount of such rent loss that the Lessee
proves could be reasonably avoided; and
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(iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by Lessee's failure to perform its
obligation under this Lease or which, in the ordinary course of things,
would be likely to result therefrom. The "worth at the time of the
award" of the amounts referred to in (i) and (ii) above, shall be
computed using the interest rate set forth in paragraph 4(b), above.
The "worth at the time of award" of the amount referred to in (iii)
shall be computed by reference to competent appraisal evidence and the
formula prescribed by, and being the lowest discount rate permitted
under, applicable law.
(e) Upon the occurrence of an Event of Default hereunder,
Lessor shall use reasonable efforts to mitigate its damages as a result
thereof; provided Lessor shall have no obligation to attempt to relet
the Premises, or any part thereof, in preference to any other areas then
held by Lessor for lease.
17. Additional Rights.
(a) No right or remedy of Lessor hereunder shall be
exclusive of any other right or remedy, but shall be cumulative and in
addition to any other right or remedy hereunder or now or hereafter
existing. Failure of Lessor or Lessee to insist upon the strict
performance of any provision hereof or to exercise any option or right,
power or remedy contained herein shall not constitute a waiver or
relinquishment thereof for the future. Receipt by Lessor of any Fixed
Rent, additional rent or other sum payable hereunder with knowledge of
the breach of any provision hereof shall not constitute waiver of such
breach, and no waiver by either party of any provision hereof shall be
deemed to have been made unless made in writing.
(b) Lessee hereby waives and surrenders for itself and
all those claiming under it, including creditors of all kinds, (i) any
right or privilege which it or any of them may have to redeem the
Premises, or to have a continuance of this Lease after
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termination of Lessee's right of occupancy by order or judgment of any
court or by any legal process or writ, or under the terms of this Lease,
or after the termination of the Term of this Lease as herein provided,
and (ii) the benefits of any law which exempts property from liability
for debt or for distress for rent.
(c) If either party shall be in default in the
performance of any of its obligations hereunder in any material respect,
such party shall pay to the other, on demand, all expenses incurred by
such other party as a result thereof, including reasonable attorneys'
fees and expenses. If Lessor shall be made a party to any litigation
commenced against Lessee and Lessee shall fail to provide Lessor with
counsel reasonably satisfactory to Lessor and pay the expenses thereof,
Lessee shall pay, as additional rent hereunder, all costs and reasonable
attorneys' fees and expenses incurred by Lessor in connection with such
litigation.
(d) Notwithstanding anything to the contrary set forth
in this Lease, neither Lessor nor Lessor's agents (including, without
limitation, any property manager, employees, contractors, officers,
directors, shareholders, partners or principals (disclosed or
undisclosed) shall be liable to Lessee or Lessee's agents, employees,
contractors, subtenants, assignees, invitees, licensees or any other
occupant of the Premises for (i) except as otherwise expressly provided
in this Lease, any interruption to Lessee's business, or (ii) any
incidental damages, lost profits, lost savings, punitive, exemplary or
any other indirect, special or consequential damages of Lessee. Lessee
hereby waives, to the fullest extent permitted by law, any claim for
indirect or consequential damages in connection with any such loss.
18. Notices, Demands and Other Instruments. All notices,
offers, consents and other instruments given pursuant to this Lease
shall be in writing and shall be validly given (i) when hand-delivered
to Lessor or Lessee, to a general Partner, if Lessor or
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Lessee is a general or limited partnership, or to an officer, if Lessor
or Lessee is a corporation, (ii) on the third (3rd) business day
following the date when mailed, in a United States Postal Service post
office or branch post office in New York or Connecticut, by prepaid
registered or certified mail, Return Receipt Requested, or (iii) the
next business day after being deposited with a reputable
overnight/express mail carrier, such as Federal Express.
(a) if to Lessor, addressed to it at:
The Middlebury Partnership
c/o White-Middlebury Associates Limited Partnership
Hampton Plaza
300 East Joppa Road
Baltimore, MD 21286-3048
Attn: Mr. Willard Hackerman
With a copy to:
International Business Machines Corporation
Real Estate Services
New Orchard Road
Armonk, New York 10504
Attn: Associate General Counsel, Alan R. Wolfert, Esq.
(b) if to Lessee, addressed to:
Uniroyal Chemical Company, Inc.
World Headquarters
Middlebury, CT 06749
Attn: John T. Ferguson, Esq.
Vice President and General Counsel
With a copy to:
Crompton & Knowles Corp.
One Station Plaza Stamford, CT 06902
Attention: Chief Financial Officer
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(c) If to Mortgagee, at the address specified in the
non-disturbance agreement executed pursuant to paragraph 25
(Subordination; Non-Disturbance) hereof, and Lessor, Lessee and
Mortgagee each may from time to time specify, by giving 15 days' notice
to each other party, (i) any other address in the United States as its
address for purposes of notices pursuant to this Lease, and (ii) any
other person or entity that is to receive copies of notices, offers,
consents and other instruments hereunder.
19. Estoppel Certificates.
(a) Each party will, upon thirty (30) days notice at the
request of the other (or the Mortgagee if applicable), execute,
acknowledge and deliver to the other a certificate stating that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that (i) this Lease is in full force and effect as
modified, and setting forth such modifications), (ii) the dates to which
any Fixed Rent, additional rent and other sums payable hereunder have
been paid, (iii) either that, to the knowledge of the signer of such
certificate, no default exists hereunder, or specifying each such
default of which the signer has knowledge, whether or not Lessee is
still occupying and operating the Premises, and (iv) such other matters
in connection with this Lease as either party (or the Mortgagee, if
applicable) shall reasonably request. Any such certificate may be relied
upon by Lessee, any permissible sublessees, any prospective mortgagee or
purchaser of the Premises and/or the Land or any interest therein, and
any permissible assignee of any of the foregoing interests.
(b) Lessor and its authorized representatives may (but
are not obligated to) enter the Premises or any part thereof at all
reasonable times upon three days' notice for the purpose of inspecting
the same.
20. No Merger. There shall be no merger of this Lease, or of
the leasehold estate hereby created, with the fee estate in the Premises
by reason of the fact that
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the same person acquires or holds, directly or indirectly, this Lease or
the leasehold estate hereby created or any interest herein or in such
leasehold estate as well as the fee estate in the Premises or any
interest in such fee estate.
21. Surrender. Upon the expiration or termination of the term
of this Lease, Lessee shall surrender the Premises and the Appurtenant
Areas to Lessor in good order and condition, as specified in paragraph
10 (Maintenance and Repair) and paragraph 11 (Alterations) herein,
except for ordinary wear and tear. Lessee, at its sole cost and
expense, shall remove from the Premises and the Appurtenant Areas, on or
prior to the expiration or termination of the term of this Lease, all
property and equipment situated thereon which is not owned by Lessor and
shall repair any damage caused by the removal thereof. Property and
equipment not so removed shall, upon the earlier of (i) the termination
or expiration of this Lease, or (ii) Lessee's vacating the Premises,
become the property of Lessor, and Lessor may thereupon cause such
property to be removed from the Premises and the Appurtenant Areas and
disposed of, but the cost of any such removal and disposal shall be
borne by Lessee. Notwithstanding the foregoing, Lessee shall be
obligated to restore any alteration for which Lessor's consent was not
required if failure to perform such restoration would have a material
adverse effect on the value of the Premises. Lessee shall have no
obligation to restore any alteration to which Lessor consented, unless
such consent was conditioned upon restoration. Lessee's obligations
under this paragraph 21 shall survive the expiration or termination of
this Lease.
22. Merger, Consolidation or Sale of Assets. Upon the merger
of Lessee into another corporation, the consolidation of Lessee with one
or more other corporations or the sale or other disposition of all or
substantially all the assets of Lessee to one or more other entities,
the surviving entity or transferee of assets, as the case may be, (if
other than Lessee) shall deliver to Lessor an acknowledged instrument in
recordable form assuming a
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joint and several responsibility with Lessee as to all obligations,
covenants and responsibilities of Lessee hereunder. In any event, the
surviving entity (if other than Lessee), or transferee of assets, as the
case may be, shall be deemed to have assumed a joint and several
responsibility with Lessee as to all such obligations, covenants and
responsibilities upon such merger, consolidation or sale or other
disposition. Lessee agrees not to merge, consolidate or sell all or
substantially all of its assets to one or more other entities unless the
surviving entity or transferee of assets, as the case may be, shall have
a Standard and Poors (or similar nationally recognized rating agency)
rating of B+, or better, immediately after such sale, merger,
consolidation or disposition.
23. Separability; Binding Effect. Each provision hereof shall
be separate and independent and the breach of any such provision by
Lessor shall not discharge or relieve Lessee from its obligations to
observe and perform each and every covenant to be performed by Lessee
hereunder. If any provision hereof or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable,
the remaining provisions hereof, or the application of such provision to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision hereof
shall be valid and shall be enforceable to the fullest extent permitted
by law. All provisions contained in this Lease shall be binding upon,
inure to the benefit of, and be enforceable by, the respective
successors and assigns of Lessor and Lessee to the same extent as if
each such successor and assign were named as a party hereto, subject to
all agreements and restrictions contained in this Lease with respect to
assignment or other transfer of Lessee's interest in this Lease.
However, the obligations of Lessor under this Lease shall not be binding
upon Lessor herein named with respect to any period subsequent to the
transfer of its interest in the Land or Premises, as owner thereof, and
in the event of such transfer, such obligations shall thereafter be binding
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upon each transferee of the interest of Lessor herein named as such
owner of the Land or Premises, but only with respect to the period
ending with a subsequent transfer within the meaning of this paragraph,
and such transferee, by accepting such interest, shall be deemed to have
assumed such obligations except only as may be expressly otherwise
provided elsewhere in this Lease. A lease of Lessor's entire interest
in the Premises, or the Land, as owner thereof shall be deemed a
transfer within the meaning of this paragraph. This Lease may not be
changed, modified or discharged except by a writing signed by Lessor and
Lessee. Any such change, modification or discharge made otherwise than
as expressly permitted by this paragraph shall be void. This Lease
shall be governed by and interpreted in accordance with the laws of the
State of Connecticut. This Lease may be simultaneously executed in
multiple counterparts, each of which, when so executed and delivered,
shall constitute an original, fully enforceable counterpart for all
purposes.
24. Headings and Table of Contents. The table of contents and
the headings of the various paragraphs, subparagraphs and Schedules of
this Lease have been inserted for reference only and shall not to any
extent have the effect of modifying, amending or changing the expressed
terms and provisions of this Lease. In no event shall the rule
"EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS" be applied to the interpretation
of this Lease.
25. Subordination; Non-Disturbance.
(a) This Lease, including any future amendments thereto, and
all rights of Lessee hereunder, are and shall be subject and subordinate
in all respects to any Mortgage(s) now encumbering the Premises or
which, during the Term of this Lease, the Lessor may wish to have
encumber the Premises, or the Premises and other property, and to all
renewals, modifications, consolidations, replacements and extensions of
any such Mortgage(s); provided that the Mortgagee(s) shall enter into a
nondisturbance agreement,
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in recordable form, substantially in the form of Schedule D, which shall
be, at the time of execution, and which shall remain, for so long as
such Mortgage remains a lien upon the Premises, a valid and binding
obligation of Lessor, Mortgagee, or any person or entity claiming
ownership or other rights of Lessee hereunder, or derivative from
Lessee's rights hereunder. This paragraph shall be self-operative and
no further instrument of subordination shall be required, but the Lessee
agrees to execute and deliver to Lessor any confirmation(s) of such
subordination required by any Mortgagee(s).
(b) If, in connection with obtaining, continuing or renewing
mortgage financing for which the Land, the Appurtenant Areas, the
Premises and/or this Lease or any interest therein represents collateral
in whole or in part, a banking, insurance or other institutional lender
shall request reasonable modifications of this Lease as a condition of
such financing, Lessee will not unreasonably withhold, delay or defer
its consent thereto, provided that such modifications do not increase
the obligations of Lessee hereunder or adversely affect to a material
degree the Lessee's leasehold interest hereby created.
26. Schedules. Schedules A, B, C, D and E referred to in this
Lease and attached hereto are hereby incorporated by reference herein.
27. Quiet Enjoyment. Lessor covenants and agrees that Lessee,
upon paying the rents reserved herein and observing and keeping the
covenants, agreements and stipulations of this Lease on its part to be
kept, shall lawfully, peaceably and quietly hold, occupy and enjoy the
Premises subject to all the terms and provisions of this Lease during
the term of this Lease, without hindrance, ejection or molestation by
Lessor, or anyone claiming by, through or under Lessor.
28. Recording of Notice of Lease. Lessor and Lessee agree to
execute in triplicate a Notice of this Lease, in the form specified in
Connecticut General Statutes
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Section 47-19, for recording in the Land Records for the towns of
Middlebury, Oxford and Southbury, Connecticut.
29. Lessor's Obligations.
(a) Management/Maintenance. (i) Lessor shall hereafter
maintain, and provide grounds maintenance services (including, without
limitation, the prompt removal of snow and ice from all areas used by
pedestrian and vehicular traffic) with respect to, keep in good
condition and repair, including undertaking any and all repairs,
alterations and improvements, as are required to comply with applicable
Legal Requirements having regard to the condition of same at the time
Lessor assumes such responsibilities) and manage in a good and
businesslike manner, and provide exterior security, in accordance with
the terms of paragraph 32 (Exterior Security) for, such of the following
as are not Lessee's obligations under any of the other provisions of
this Lease: the Land; roadways; walkways; automobile parking areas;
tunnels; lawn areas; utility lines and conduits; water and sewer lines
and shrubbery (collectively, the "Non-Lessee Areas"). Lessor shall pay
for all utilities consumed on the Land and in the buildings and
improvements located thereon, and utilities required in connection with
the maintenance thereof, except for those consumed in connection with
the operations of the Power Plant and except for those consumed in the
Premises, and shall pay sewer rents or sewer use charges with respect to
the Land and the buildings and improvements located thereon, except for
those reasonably allocable to the Premises.
(ii) Lessor's Insurance. Lessor shall also procure and
maintain public liability insurance covering the Land and the Non-Lessee
Areas (or the Land, the Non-Lessee Areas and other property), naming
Lessor as insured and Lessee and any mortgagee of Lessor as additional
insureds, as their interests may appear, in the amount of at least
$5,000,000 for injury to or death of persons in any one accident and in
the amount of at
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least $250,000 for property damage in any one accident, boiler and
pressure vessel insurance in reasonable amounts and workmen's
compensation insurance as required by statute. Lessor shall procure and
maintain insurance against loss or damage to the Power Plant, including
Lessor's equipment therein, by fire, lightning and all other perils
covered by the "all risk" endorsement, including, without limitation,
flood insurance (if, but only if, the Power Plant is located in a flood
hazard area), in amounts not less than the actual replacement cost
(exclusive of foundations and excavations) of the Power Plant, including
all of Lessor's equipment therein. Lessor shall furnish Lessee with a
certificate of insurance evidencing the coverage Lessor is required to
maintain hereunder upon the execution of this Lease and annually
thereafter during the Term hereof, within thirty (30) business days' of
Lessee's request for same.
(b) Lessee's Reimbursement Obligations. (i) During the term
of this Lease, Lessee, promptly on demand, shall reimburse Lessor for portions
of several of the expenditures incurred by Lessor for any period in connection
with the Lessor's management, operational, maintenance, repair and restoration
obligations set forth above, as follows:
EXPENSE ITEM PORTION TO BE REIMBURSED
BY LESSEE
(1) Maintenance of lawn areas (including The amount thereof determined
trees and shrubs) and the watering, by multiplying the total expenses
fertilizing, mowing, trimming and by the Parking Percentage.
pruning thereof, and maintenance,
repair, restoration and replacement
(as necessary)
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of, and plowing snow from, roadways
and walkways to be used in common by
Lessee and Lessor (and possibly, by
others), including the signage, lighting
(including electricity), traffic control
and striping thereof, and of any fences
or curbing along same.
(2) Maintenance, repair, restoration and The amount thereof determined by
replacement (as necessary) of utility multiplying the total expenses
lines, conduits and distribution by the Area Percentage.
facilities (including fire/sprinkler
loops) and any drainage lines and
facilities located on the Land
(including any which serve buildings
or other improvements on the Land).
(c) The Power Plant; Power Plant Operating Expenses. As used
herein, "Power Plant" shall mean the building so designated on the
Parking Sketch, the equipment from time to time located therein and its
related lines and conduits as same are constituted from time to time.
Lessor, at Lessor's sole expense (except as hereinafter specifically
provided), shall operate the Power Plant in a good and businesslike
manner. The expenses so to be incurred in operating the Power Plant,
herein defined as the "Power Plant Operating Expenses" shall include,
without limitation, and whether related to the Power Plant, all of the
following: all maintenance expenses, utility costs (including, without
limitation, those for whatever electricity and other fuel is used from
time to time to run the Power Plant), sewer rents or sewer use charges,
real estate taxes, casualty, public liability and boiler and pressure
vessel insurance premiums, staff wages, benefits and workmen's
compensation insurance premiums and a pro-rata portion (based on useful-
life depreciation) of reasonable and necessary capital expenditures
(unless covered by insurance proceeds) for repairs and replacements
required during the Term hereof and during a period of operation of the
Power Plant.
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Lessor shall procure and maintain throughout the term of this Lease,
insurance against loss or damage to the Power Plant by fire, lightning
and other perils covered by the "all risk" endorsement, issued by an
insurance company licensed to conduct business in the State of
Connecticut, in amounts not less than the actual replacement cost
(exclusive of foundations and excavations) of the Power Plant. Such
insurance may contain reasonable deductibles. In the event of damage or
destruction of the Power Plant or any equipment therein, or any lines or
conduits connected thereto, Lessor shall, with all due diligence, repair
the Power Plant or such equipment, or such lines or conduits, as
promptly as possible.
Lessor shall have a duty to continue to produce the utilities
and services currently produced in the Power Plant (heated water for
heating, kitchen and lavatory purposes, chilled water for air
conditioning, process steam and any other utility or service so
produced), and Lessee shall have a duty to use the utilities and
services so produced (but only to the extent that the nature of Lessee's
occupancy requires such utilities and services), for use in the
Premises. Lessee shall promptly pay to Lessor, monthly and in arrears,
a portion of the expenses so incurred by Lessor, for the prior month, as
is hereinafter provided.
1.) Process Steam. For so long as the process steam
produced at the Power Plant shall be supplied solely to the Premises,
Lessee shall pay Lessor for all costs of generating and distributing
such process steam. During any period(s) that the process steam
generated at the Power Plant shall be supplied, directly or indirectly,
(i) to any building other than the Premises, or (ii) to any direct or
indirect user, secondary supplier or consumer of such process steam
other than Lessee, or any other occupant of the Premises, Lessee shall
pay Lessor a fair and equitable portion of the costs of generating and
distributing process steam, based upon the proportionate use of process
steam by all
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such users or consumers thereof, including Lessee, wherever located,
during such period(s), as determined by metering.
2.) Fixed Power Plant Operating Expenses. Lessee shall
pay Lessor Lessee's Area Percentage of those Power Plant Operating
Expenses (other than expenses associated with the production and
distribution of process steam) which are (A) not directly dependent upon
consumption levels, but which are in the nature of fixed operational
costs, including, but not limited to, taxes, labor costs and insurance
premiums, and (B) cannot be determined by metering or other quantifiable
methods; provided, however, that, for purposes of this subparagraph
29(c), during any period(s) of time that buildings not located on the
Land are connected to the Power Plant, the denominator of the Area
Percentage shall be increased by the gross square footage of such
buildings not located on the Land which are connected to, or indirectly
serviced by, the Power Plant. Should either Lessor or Lessee believe
that, using the Area Percentage formula and the procedures outlined in
this subparagraph (c), the Power Plant Operating Expenses intended to be
allocated among Lessee and all other direct and indirect users,
secondary suppliers and consumers thereof are not being equitably
allocated, or if Lessee believes that any capital expenditure was not
reasonable and/or necessary, Lessor or Lessee may request binding,
expedited arbitration pursuant to paragraph 50(b) (Expedited
Arbitration) below to determine an equitable method of allocating such
costs (e.g., metering, consultant surveys, observation of obvious use),
and/or to determine whether an expenditure was reasonable and necessary,
and the costs of implementing the arbitration decision (e.g., by the
purchase and installation of a meter or meters measuring the consumption
of utilities in the Premises), shall be shared equally by all parties to
the arbitration proceeding. The non-prevailing party, as determined by
such arbitration decision, shall be solely responsible for paying all
reasonable counsel fees and reasonable out-of-pocket expenses of Lessor and
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Lessee in connection with any such arbitration, and such non-prevailing
party shall be solely responsible for paying all other reasonable
expenses and fees of any such arbitration, including, but not limited
to, the reasonable fees of all arbitrators who may be appointed
hereunder. (Notwithstanding the foregoing, Lessee shall have no
obligation to pay for any costs and expenses incurred by Lessor in
connection with any arbitration arising out of a dispute regarding Power
Plant Operating Expenses, if such arbitration is instituted by any party
other than Lessor, Lessee or any occupant of space in the Premises.)
Whenever expedited arbitration, is requested under the terms of this
subparagraph 29(c), then, notwithstanding the terms of paragraph 50(b)
herein, the arbitrators chosen to decide such matter shall have
experience relevant to the issues to be determined. Pending the outcome
of such arbitration, Lessee shall pay to Lessor the amounts requested,
and when requested, by Lessor, subject to Lessor's promptly refunding
all or a portion of same in accord with the arbitration decision.
3.) Consumption Based Power Plant Operating Expenses.
Lessee shall pay Lessor for a portion of those costs of operating the
Power Plant, including Power Plant Operating Expenses, and those other
costs which are reasonably attributable to the production of chilled
water, heated water, and other utilities produced at the Power Plant,
which are affected by the level of consumption of utilities at the
Premises as determined by (i) a verifiable system of measurement to
determine the output of utilities and services from the Power Plant, and
(ii) the metered consumption of such utilities and services at the
Premises. Such meters shall be installed at the joint expense of Lessor
and Lessee. In the event that Lessor and Lessee cannot agree as to
Lessee's usage of chilled water, heated water or other utilities (and/or
the dollar costs of producing such utilities), then Lessor and Lessee
shall, for a period of fifteen (15) days after either party shall
provide the other party hereto with notice of a dispute as to Lessee's
usage of such utilities (and/or the dollar costs
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of producing such utilities), each use reasonable efforts to informally
resolve such matter in good faith. In the event Lessor and Lessee
cannot mutually resolve the matter in dispute within such fifteen (15)
day period, then either Lessor or Lessee may submit the matter to
binding, expedited arbitration in accord with paragraph 50 (b)
(Expedited Arbitration) below, but, pending the outcome of such
arbitration, Lessee shall pay to Lessor the amounts requested, and when
requested, by Lessor, subject to Lessor's promptly refunding all or a
portion of same in accord with the arbitration decision.
Lessee shall reimburse Lessor, promptly upon submission of
bills therefor (which shall not be submitted more often than monthly)
for Lessee's share of Power Plant Operating Expenses incurred by Lessor
during the Term of this Lease determined in the manner specified in 1)
through 3) above. Lessee's payment obligations hereunder shall be
deemed additional rent hereunder. Notwithstanding anything else to the
contrary contained in this Lease, Lessee shall not be responsible for
any portion of fixed or other costs or expenses associated with the
Power Plant or utilities or services received by any party or premises
therefrom, including, without limitation, "Power Plant Operating
Expenses" (previously defined herein), to the extent such costs are
attributable to (i) services which are wholly consumed by users or
consumers other than Lessee or any other occupant of the Premises, or
(ii) the acquisition, maintenance and repair of equipment which is
wholly dedicated to the production of a utility or service at or from
the Power Plant which is furnished to users or consumers other than
Lessee or any occupant of the Premises.
(d) [Intentionally Omitted].
(e) Lessor's Capital and Operating Expense Budget. Provided
that Lessee shall provide Lessor with notice of Lessee's designated
representative for purposes of this subparagraph 29(e) (hereafter
"Lessee's Representative") on or before January 1st of
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each year during the Term hereof, Lessor shall provide such Lessee's
Representative with (A) a copy of Lessor's annual budget for the
projected capital expenditures and operation, maintenance and repair of
the Non-Lessee Areas and the Power Plant, and (B) reasonable prior
notice of any single regularly scheduled maintenance, repair or
replacement to any aspect of the Non-Lessee Areas, or the Power Plant,
which is anticipated to cost in excess of One Hundred Thousand Dollars
($100,000). In addition, Lessor shall direct its appropriate agents and
representatives to meet with Lessee's Representative, at mutually
convenient times and locations, from time to time during the Term of
this Lease (but not more often than quarter-annually), in order to
provide, and discuss with, Lessee's Representative such information, as
may be reasonably available to Lessor, relative to Lessor's projected
capital expenditures and its scheduled maintenance and repairs,
including the anticipated costs thereof, for the Non-Lessee Areas and
the Power Plant for the duration of such calendar year. Notwithstanding
the foregoing, (A) Lessor shall not be estopped from subsequently
revising any budget or forecast provided to Lessee, or from canceling,
deferring or modifying the scope of any anticipated, forecast or
scheduled maintenance, repair or replacement of any Non-Lessee Area, or
the Power Plant, which Lessor may have provided Lessee with notice of;
provided, however, that if such revisions, forecasts, or modifications
would result in an increase of twenty percent (20%), or more, in the
projected annual budget for the Non-Lessee Areas or the Power Plant
(over that previously disclosed to Lessee), then Lessor shall provide
Lessee with notice thereof at least ten (10) days prior to implementing
such revisions or modification to the originally proposed annual budget
for the Non-Lessee Areas or Power Plant, as appropriate, together with
an explanation of the reason(s) underlying such increase in such budget,
and (B) Lessee and Lessee's Representative shall have no authority to
determine the necessity, timing or scope of any operational aspect,
maintenance, repair, restoration or replacement
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of any Non-Lessee Area or the Power Plant. Lessor's failure to comply
with any of the terms of this subparagraph 29 (e) shall not subject
Lessor to any claim for monetary damages, or otherwise relieve Lessee
from the obligation to pay Fixed Rent or any additional rent due under
this Lease, including its Parking Percentage of Expense Items under
subparagraph 19(b)(1) above, Lessee's Area Percentage of the Power Plant
Operating Expenses and the costs of all Power Plant generated utilities
furnished to the Premises.
30. Utilities.
(a) Lessee's Payments. At all times during the Term
hereof, the Lessee, at Lessee's sole cost and expense, shall pay for all
telephone service, heated water, heat, chilled water, air conditioning,
ventilation, electricity, process steam, gas, water and other utilities
or services which may be provided to, or consumed at, the Premises.
Lessee shall purchase from Lessor, whenever and to the extent required
in the Premises, the utilities and services produced in the Power Plant,
including heated water, chilled water and process steam (collectively,
the "Power Plant Utilities") and Lessee shall pay Lessor, promptly upon
submission of bills therefor (which shall not be rendered more often
than monthly), for the costs of producing and supplying the Power Plant
Utilities provided to, or consumed at, the Premises, as computed under
paragraph 29 (c) hereof, together with an appropriate portion of any
utility loss factor(s). The consumption of Power Plant Utilities at the
Premises is to be measured by existing meters, or any such additional
meters as may be reasonably necessary. Lessor and Lessee shall share
equally the cost of any additional meters which may be installed after
the date hereof to measure the consumption of Power Plant Utilities at
the Premises. Lessee shall also pay all sewer rents or sewer use
charges allocable to said Premises.
(b) Tie-In-Facilities For Emergency Heating and Cooling.
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(i) Lessor agrees, at its sole cost and expense, no
portion of which will be included in any Additional Rent, or in any other
charges to Lessee hereunder, to prepare the engineering plans and
specifications for, and to construct and install the modifications and
additions specified on Schedule E (Emergency Utilities Tie-Ins) attached
hereto (collectively, the "Tie-In Facilities"), to the Power Plant, or
elsewhere on the Land, which shall enable Lessee, subject to the terms
and conditions set forth hereinbelow, to provide hot water for heating
and other uses at the Premises and chilled water for air-conditioning
the Premises by connecting, on a temporary basis, leased mobile heating
and/or cooling units (the "Mobile Units") directly to such Tie-In
Facilities. Lessor shall, in consultation with Lessee, complete said
plans and specifications and construct and install the Tie-In Facilities
within one (1) year from the Effective Date of this Second Amended and
Restated Lease, or prior to any sale of the Lessor's interest in the
Premises to any third-party unrelated to Lessor, or either of its
partners, whichever is sooner.
(ii) In the event that any time during the Term of this
Lease subsequent to the installation of the Tie-In Facilities, Lessor fails
to provide the Premises with either chilled water or heated water from the
Power Plant, or otherwise, and the failure to provide either heated
water or chilled water to the Premises shall render the Premises
uninhabitable for more than three (3) full business days in any
consecutive two (2) week period, then, Lessee may provide Lessor with
notice of such failure and Lessee's intention to arrange for the
temporary rental of a Mobile Unit for the provision of heated water
and/or chilled water, as necessary, to the Premises and provided further
that:
(x) the inability or failure to provide such heated water
and/or chilled water was not due to the negligence or misconduct of
Lessee, or Lessee's failure to observe and perform any obligation
under this Lease, or a condemnation, fire or other casualty [in
which case Paragraph 12 (Condemnation, Casualty and
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Temporary Requisition) shall control], or Lessee's delay in
granting Lessor, or its contractors, access to the Premises [but
only if such delay hindered the commencement or diligent completion
said repairs];
(y) no Event of Default shall have occurred hereunder,
and
(z) Lessor has not commenced to furnish the Premises with
heated water and/or chilled water, as necessary, within two (2)
business days following receipt of Lessee's notice hereunder, then
Lessee may rent such Mobile Unit for the shortest term which is
generally available in the industry (provided Lessee may reserve the
right to renew such Mobile Unit lease for as long as may be necessary)
and thence temporarily locate such Mobile Unit in or adjacent to the
Power Plant or on the Land in a location that is reasonably acceptable
to Lessor, consistent with sound engineering principles, for direct
connection to the Tie-In Facilities.
In the event Lessee shall connect a Mobile Unit to the Tie-In
Facilities, then upon Lessee's receipt of notice from Lessor that Lessor
is again able to recommence furnishing heated and/or chilled water, as
appropriate, to the Premises, Lessee shall promptly disconnect such
Mobile Unit from the Tie-In Facilities and recommence to purchase heated
water and/or chilled water, as required at the Premises, from Lessor in
accordance with the terms of this Lease. The transportation,
installation, use and operation of a Mobile Unit shall be at Lessee's
sole risk. Lessee shall be solely responsible for any damage or injury
occurring to persons or property by reason of the transportation,
installation, use and operation of a Mobile Unit and Lessee shall
indemnify and hold Lessor harmless from and against any and all claims,
liabilities, costs, damages and expenses (including reasonable
attorneys' fees) incurred by Lessor by reason of the transportation,
installation, use and operation of a Mobile Unit.
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(iii) Rent Abatement. In the event that at any time
during the Term of this Lease subsequent to the installation of the Tie-In
Facilities, Lessee obtains either chilled water or heated water, as
appropriate, for the Premises from a Mobile Unit connected to the Tie-In
Facilities in accordance with the terms and conditions of subparagraph (b)
(ii) above, for more than thirty (30) consecutive days, then Lessee shall be
permitted to offset against Fixed Rent otherwise next due under this
Lease, the reasonable, verifiable, out-of-pocket costs of renting the
Mobile Unit (but excluding any and all costs associated with the
transportation, installation and operation of the Mobile Unit) which are
allocable to the period of time commencing with the thirty-first (31st)
day of Lessee's use of the Mobile Unit hereunder and expiring upon the
expiration of the then current minimum lease term for the Mobile Unit.
Lessee shall, at its sole cost, risk and expense, remove the Mobile Unit
from the Power Plant and Land promptly following the expiration of that
lease term for the Mobile Unit which shall expire next following
Lessor's recommencing to supply heated water and/or chilled water, as
required, to the Premises.
(c) Interruption of Steam Production.
(i) The design, construction and installation of the Tie-In
Facilities by Lessor under (b)(i) above shall be completed in such a
manner that Lessee may directly connect to the Tie-In Facilities a
mobile unit to provide process steam to the Premises (the "Mobile Steam
Unit").
(ii) For Any Reason. In the event that, at any time
subsequent to the installation of the Tie-In Facilities and during the
Term of this Lease, Lessor should be unable to provide the Premises with
process steam for more than three (3) full business days in any
consecutive two (2) week period, for any reason whatsoever, then Lessee
may provide Lessor with notice of such fact and Lessee's intention to
arrange for the temporary
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rental of a Mobile Steam Unit for the provision of process steam to the
Premises and provided further that:
(x) the inability or failure to provide such process steam
was not due to the negligence or misconduct of Lessee, or Lessee's
failure to observe and perform any obligation under this Lease, or a
condemnation, fire or other casualty [in which case Paragraph 12
(Condemnation, Casualty and Temporary Requisition) shall control],
or Lessee's delay in granting Lessor, or its contractors, access to
the Premises [but only if such delay hindered the commencement or
diligent completion said repairs];
(y) no Event of Default shall have occurred hereunder,
and
(z) Lessor has not commenced to furnish the Premises with
process steam within two (2) business days following receipt of
Lessee's notice hereunder,
then Lessee may rent such Mobile Steam Unit for the shortest
term which is generally available in the industry (provided Lessee may
reserve the right to renew such Mobile Steam Unit lease for as long as
may be necessary) and thence temporarily locate such Mobile Steam Unit
on the Land in a location that is reasonably acceptable to Lessor,
consistent with sound engineering principles, for direct connection of
the Mobile Steam Unit to the Tie-In Facilities.
In the event Lessee connects the Mobile Steam Unit to the Tie-
In Facilities, then upon Lessee's receipt of notice from Lessor that
Lessor is able to recommence furnishing process steam to the Premises,
Lessee shall promptly disconnect such Mobile Steam Unit from the Tie-In
Facilities and recommence its purchase of process steam from Lessor in
accordance with the terms of this Lease. The transportation,
installation, use and operation of a Mobile Steam Unit shall be at
Lessee's sole risk. Lessee shall be solely responsible for any damage
or injury occurring to persons or property by reason of the
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transportation, installation, use and operation of a Mobile Steam Unit
and Lessee shall indemnify and hold Lessor harmless from and against any
and all claims, liabilities, costs, damages and expenses (including
reasonable attorneys' fees) incurred by Lessor by reason of the
transportation, installation, use and operation of a Mobile Steam Unit.
(iii) Rent Abatement. In the event that at any time
subsequent to the installation of the Tie-In Facilities during the Term of
this Lease, Lessee obtains process steam for the Premises from a Mobile Steam
Unit connected to the Tie-In Facilities pursuant to the terms and
conditions of (c)(ii) above, for more than thirty (30) consecutive days,
then Lessee shall be permitted to offset against Fixed Rent otherwise
next due under this Lease, the reasonable, verifiable, out-of-pocket
costs of renting the Mobile Steam Unit (but excluding any and all costs
associated with the transportation, installation and operation of the
such Mobile Steam Unit) which are allocable to the period of time
commencing with the thirty-first (31st) day of Lessee's use of such unit
and expiring upon the expiration of the then current minimum lease term
for the Mobile Steam Unit. Lessee shall, at its sole cost, risk and
expense, remove the Mobile Steam Unit from the Power Plant and Land
promptly following the expiration of that lease term for the Mobile
Steam Unit which shall expire next following Lessor's recommencing to
supply process steam to the Premises.
(iv) For Reasons Within Lessor's Control. In the
event that, at any time subsequent to the installation of the Tie-In
Facilities and during the Term of this Lease, Lessor fails to provide
the Premises with process steam generated at the Power Plant, or
otherwise, for more than three (3) full business days in any consecutive
two (2) week period, solely because Lessor has failed to commence, or
has failed to diligently complete, any required repairs to the steam
generation equipment in the Power Plant which is devoted exclusively to
the provision of process steam to the Premises, then Lessee shall
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provide Lessor with notice of such fact and Lessee's intention to
exercise its self-help rights under this subparagraph (c)(iv) and
further provided that:
(w) the inability or failure to undertake such repair, or
to provide such processed steam, was not due to an event of Force
Majeure, the negligence or misconduct of Lessee, Lessee's failure to
observe and perform any obligation under this Lease, or Lessee's
delay in granting Lessor, or its contractors, access to the
Premises[but only if such delay hindered the commencement or
diligent completion said repairs],
(x) such failure is not caused by a condemnation, fire or
other casualty (in which case Paragraph 12 (Condemnation, Casualty
and Temporary Requisition) shall control,
(y) no Event of Default shall have occurred hereunder, and
(z) Lessor has not recommenced to provide process steam to
the Premises within two (2) business days following receipt of
Lessee's notice under this subparagraph (c)(iv), then
Lessee shall have the right, to undertake, at Lessee's sole
cost and expense and at Lessee's sole risk, such required repair(s) to
the steam generation equipment located in the Power Plant which
exclusively serves the Premises, provided Lessee diligently prosecutes
the completion of such repair in a good, safe and workmanlike manner and
in compliance with all Legal Requirements. Lessee may offset against
Fixed Rent otherwise next due under this Lease, the reasonable,
verifiable, out-of-pocket costs incurred by Lessee in making such
required repairs to the steam generation equipment in the Power Plant
which exclusively serves the Premises pursuant to the terms of this
subparagraph (c) (iv).
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(v) Any disputes under this subparagraph (c) shall be resolved
by arbitration in accordance with the provisions of subparagraph 29(d)
herein. Notwithstanding the foregoing, Lessee may not exercise self-help
rights under this subparagraph if the liability insurance required to be
maintained by Lessee under paragraph 13 (Insurance) of this Lease does
not cover the scope or location of Lessee's proposed self-help. The
self-help provisions of this subparagraph may only be exercised by the
original named Lessee, or any permitted assignee of Lessee's interest in
this Lease. (Nothing herein shall preclude Lessee, or any permitted
assignee of Lessee, from exercising the self-help provisions of this
subparagraph for the benefit of other occupants of the Premises.)
Lessee shall indemnify and hold Lessor harmless from any and all
liabilities, obligations, damages, penalties, injuries, claims, losses,
costs and expenses, including reasonable attorneys' fees and
disbursements, paid, suffered or incurred in connection with any
exercise, by Lessee, of its self-help rights stated herein, including
injury or claim of injury or death to person or property of any and
every nature or for any damage to, or loss of, any property of Lessor or
any other person, unless caused by the gross negligence of willful
misconduct of Lessor or any employee, agent or contractor of Lessor.
31. Interior Security. The Lessor shall have no obligation to
provide any security service to or within the Premises, and any security
desired by the Lessee shall be provided by the Lessee, at Lessee's sole
expense, and the Lessee agrees to defend, to indemnify and to hold
harmless the Lessor with respect to any injury to or death of persons,
or damage to property, resulting from inadequacies in the security
provided by the Lessee, and the Lessee's obligations so to defend, to
indemnify and to hold harmless shall survive the expiration or
termination of this Lease.
32. Exterior Security. During the entire term of this Lease,
the Lessor may, at the Lessor's option, impose reasonable security
regulations and procedures on the
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Land, Power Plant and other building located on the Land (excluding any
building(s) leased to the Lessee, or an affiliate of Lessee) in accord
with the Lessor's then-standards, and the Lessee and Lessee's
affiliates, and the employees and visitors of Lessee and/or of Lessee's
affiliates shall comply with such regulations and procedures; such
security procedures may, at the Lessor's option, include gatehouses and
reasonable control of ingress to and egress from the Land and/or other
property owned at the time by the Lessor. In no event shall any of
Lessor's security procedures restrict the hours of access to the
Premises or Appurtenant Areas, and subject to events of casualty,
condemnation, repairs and matters beyond Lessor's reasonable control,
Lessee shall have access to the Premises and Appurtenant Areas twenty-
four (24) hours each day, during the Term hereof. In no event shall
Lessor be liable for any good faith refusal by any security guard of a
request of access to the Land. Lessee expressly acknowledges that if
Lessor, from time to time, elects to provide security services to the
Land, Lessor shall not be deemed to have warranted the efficiency of any
security personnel, service, procedures or equipment and Lessor shall
not be liable in any manner for the failure of any such security
personnel, procedures or equipment to prevent or control, or apprehend
anyone suspected of personal injury, property damage or any criminal
conduct in, on or around the Land or the Premises.
33. Street and Roads. In connection with ingress to and
egress from the Premises and the Appurtenant Areas, the Lessee shall
have a nonexclusive right (in common with the Lessor and others to whom
rights to use same may hereafter be granted by the Lessor) to use,
subject to the Lessor's security standards and procedures (as same may
exist from time to time in accordance with paragraph 32 (Exterior
Security)), the streets and roads on the Land, as same may exist from
time to time.
34. Seller's Performance of Lessee's Obligations. For so long
as Uniroyal Properties, Inc. (the "Seller"), pursuant to that certain
Agreement of Sale and
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Purchase (the "Agreement of Sale") between International Business
Machines Corporation, as buyer, and the Seller, as seller, dated as of
the 28th of October, 1985, as amended, actually provides any service or
actually furnishes any item(s) which would be the Lessee's obligation
under this Lease, the Lessee shall be excused from providing such
service or furnishing such item(s).
35. Service Contracts. The Lessee agrees that no service or
maintenance contracts relating to the Premises and/or the Appurtenant
Areas and entered into or assumed by Lessee shall extend beyond the
expiration or termination of the Term of this Lease or require any
payments(s) by Lessor.
36. Tunnel Use and Maintenance. Subject to the terms of
paragraph 37 (Razing of Conference Center, Administration Building and
Tunnel) below, for so long as the Lessee (or an affiliate of the Lessee)
utilizes the kitchen and cafeteria areas of the Conference Center per
agreement with Lessor, or a lessee of the Conference Center, the Lessor
shall, at Lessor's expense, keep the underground tunnel connecting the
Conference Center to the Power Plant, and also connecting to the
Premises, in good condition and repair. Lessee shall have no obligation
to contribute towards the maintenance, repair or restoration of the
tunnels under subparagraph 29(b), except with respect to utility lines,
conduits or equipment therein. Further, Lessee shall be responsible for
the repair of any damage to the tunnels caused by the negligence or
misuse by Lessee or any of Lessee's employees, agents, contractors,
invitees, or sublessees. In no event will any reference to "conduits"
in this Lease be deemed to include any underground tunnels located, from
time to time, on the Land; provided that "conduits" shall include all
utility lines, pipes, cables, wires and the like which are located, from
time to time, in any such underground tunnels.
37. Razing of Conference Center, Administration Building and
Tunnel. Nothing contained in this Lease shall prohibit the owner(s) of
the Conference Center
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and/or Administration Building from razing and/or removing the
Conference Center, the Administration Building. or any part(s) thereof,
at any time, and, following any such razing and/or removal of any of
such buildings, from filling in or otherwise permanently discontinuing
the use of the underground tunnel connecting the Conference Center to
the Power Plant and then to the Premises, or any part(s) of it, at any
time. However, in the event Lessor shall fill-in or discontinue the use
of said tunnel, Lessor shall, at its sole cost and expense, no portion
of which shall be included in any additional rent or other charges to
Lessee hereunder, construct and install any conduits, pipes and other
facilities which may be necessary for the continued supply of utilities
from the Power Plant to the Premises. Lessor shall have no liability to
Lessee, and no obligation of Lessee under this Lease shall be reduced or
excused, by reason of the Lessor temporarily or permanently
discontinuing Lessee's use of any such tunnel or the Conference Center.
38. Lessor's Consent. Wherever in this Lease Lessor's consent
or approval is required, if Lessor shall refuse such consent or
approval, Lessee in no event shall be entitled to make, nor shall Lessee
make, any claim, and Lessee hereby waives any claim, for money damages
(nor shall Lessee claim any money damages by way of set-off,
counterclaim or defense) based upon any claim or assertion by Lessee
that Lessor unreasonably withheld or unreasonably delayed its consent or
approval. Lessee's sole remedy shall be an action or proceeding to
enforce any such provision, for specific performance, injunction or
declaratory judgment.
39. Assignment and Subletting.
(a) General. Lessee shall not assign its interest in this
Lease, or sublease all or any portion of the Premises, or otherwise
transfer its interests as Lessee under this Lease or in the Premises
and/or the Appurtenant Areas or any part(s) thereof, by operation of law
or otherwise, except as specifically permitted in this paragraph 39. No
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approval granted by Lessor under this paragraph shall relieve Lessee
from its obligation to obtain Lessor's prior written consent to any
subsequently desired or proposed assignment, sublease or other transfer
of all or any portion of Lessee's interest herein.
(b) Assignment.
(i) Subject to the terms, conditions and limitations
stated below, the Lessee shall be permitted to assign this Lease or sublet
the Premises to the purchaser of a division or former division of Crompton &
Knowles Corp. (or of substantially all of the assets of a division or
former division of Crompton & Knowles Corp., or the purchaser of the
voting stock of a wholly-owned subsidiary of Crompton & Knowles Corp.
which owns substantially all of the assets of a division or former
division of Crompton & Knowles Corp.), provided that:
(A) the Lessee is, and remains fully liable on this Lease
between Lessee and Lessor subsequent to such
assignment, and
(B) the Guarantor remains fully liable under its
Guaranty, and any future guarantor of the Lessee's
full and faithful performance under this Lease
remains fully liable on its guaranty, and
(C) the Lessee has submitted to the Lessor evidence
reasonably satisfactory to the Lessor that the
proposed assignee is capable of meeting, has the
technical and financial resources required to meet,
and agrees to meet, all Legal Requirements and
Environmental Laws intended to protect the
environment from harm due to the use and/or handling
and/or disposal of any one or more Chemical
Substances (whether solid, liquid or gaseous), and
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(D) Lessee shall not then be in default under this
Lease; and
(E) Lessee shall deliver to Lessor, a complete copy of
such assignee's written assumption of all of Lessee's
obligations under this Lease, no later than twenty
(20) days prior to the effective date of such
assignment.
(ii) For the purposes of this Lease, a sale of a
controlling interest in the voting stock of the then-lessee shall be
deemed a lease assignment and, except as herein provided, and except for
an assignment to Crompton & Knowles Corp. or a wholly-owned subsidiary
of Crompton & Knowles Corp., Inc., the Lessee shall be prohibited from
assigning this Lease, and any purported assignment shall be void and of
no effect.
(iii) Transferee of Lessee's Assets. Notwithstanding
anything to the contrary contained herein, but subject to the
restrictions and limitations stated below, Lessee may assign this Lease
to any duly organized and validly existing entity, authorized to conduct
business in Connecticut, which acquires substantially all of the
Lessee's stock or assets, provided: (A) such transfer of stock or assets
is intended solely for the purpose of enabling the transferee to
continue the original Lessee's business operations, and not principally
for the purpose of transferring the leasehold estate created hereby, (B)
Lessee provides Lessor with not less than sixty (60) days prior written
notice of such intended assignment, together with a detailed summary of
the proposed business operations of such transferee and detailed current
financial statements with respect to such transferee, (C) the proposed
assignee must have a Standard and Poors (or similar nationally
recognized rating agency) rating of B+, or better, immediately prior to,
and immediately subsequent to, such proposed assignment, (D) Lessee is
not then in default under this Lease, (E) Lessee has submitted to the
Lessor evidence reasonably satisfactory to the Lessor that the proposed
assignee is capable of meeting, has the technical and financial
resources required to meet,
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and agrees to meet, all Legal Requirements and Environmental Laws
intended to protect the environment from harm due to the use and/or
handling and/or disposal of any one or more Chemical Substances (whether
solid, liquid or gaseous), (F) Lessee shall deliver to Lessor, a
complete copy of such transferee's written assumption of all of Lessee's
obligations under this Lease, no later than twenty (20) days prior to
the effective date of such assignment, and (G) in no event shall any
such assignment release or relieve Lessee, or Guarantor, from any
liability or obligation under this Lease, or the Guaranty, whether
arising before or after such assignment.
(iv) Following any assignment of this Lease pursuant to
this subparagraph (b), provided that Guarantor remains fully liable
under its Guaranty, and any future guarantor of the Lessee's full and
faithful performance under this Lease remains fully liable on its
guaranty, this Lease may be reassigned to Crompton & Knowles Corp., or
to any other wholly-owned subsidiary of Crompton & Knowles Corp.,
provided that the assignor and the assignee shall, following such
reassignment, be jointly and severally liable on such reassignment, be
jointly and severally liable on this Lease with all other entities then
liable with respect thereto.
(c) Sublease.
(i) General. Provided Lessee shall not be in default of any
of its obligations under this Lease and provided the Lessee is and
remains fully liable on this Lease between Lessee and Lessor, and
provided further that the Guarantor remains fully liable under its
Guaranty of this Lease, and any future guarantor of the Lessee's full
and faithful performance under this Lease remains fully liable on its
guaranty, then in such case the Lessee shall be permitted to sublet the
Premises, or portions thereof, from time to time, with the prior written
consent of the Lessor, which consent shall not be unreasonably withheld.
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(ii) Permitted Subleases. Notwithstanding the foregoing, but
subject to the terms, conditions and limitations set forth herein and
provided that Lessee shall not then be in default in any of the terms,
covenants, conditions and agreements of this Lease, including but not
limited to the payment of the Fixed Rent or additional rent payable by
Lessee hereunder, Lessee may:
(A) sublet the Premises, in whole or in part, from time to
time, to a "wholly-owned subsidiary" or "affiliate" (as such terms are
hereinafter defined) of the originally named Lessee herein or Crompton &
Knowles Corp.; or
(B) sublet no more than Fifty Thousand (50,000) rentable
square feet of the Premises, in the aggregate, from time to time, to any
one or more duly organized and validly existing entities (hereinafter
referred to as a "Service Provider"), provided that (1) such Service
Provider(s) may use the sublet portion of the Premises only for the
provision of services to the Lessee and the Lessee's employees at the
Premises, such as cafeteria, fitness, travel agency and other similar
services which are ancillary to Lessee's use of the Premises for
administrative and office purposes, (2) such use shall be in compliance
with all Legal Requirements and the terms of this Lease, and for no
other use or purpose whatsoever, (3) Lessee shall provide Lessor with
notice of any sublease to a Service Provider, together with a copy of a
written sublease agreement, between Lessee and such Service Provider, in
form and substance reasonably acceptable to Lessor and conforming with
the terms of this paragraph 39, including subsection (v) below, within
ten (10) days of the commencement of such sublease, and (4) Lessee may
not sublease any portion of the Premises to any person engaged in the
manufacture, handling, storage, transportation or disposal of Chemical
Substances without the prior written consent of Lessor.
(iii) Definition of "affiliate", etc. A "wholly-owned
subsidiary" shall mean any corporation all of whose outstanding voting
stock shall at the time be owned,
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directly or indirectly, by the originally named Lessee herein, Crompton
& Knowles Corp., or by one or more of their wholly-owned subsidiaries.
An "affiliate" of the originally named Lessee herein, or of Crompton &
Knowles Corp., shall mean any entity which directly or indirectly
controls or is controlled by or is under common control with the
originally named Lessee herein or Crompton & Knowles Corp. For the
purposes of this definition, "control" (including "controlling,"
"controlled by" and "under common control with") as used with respect to
any entity, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such entity, whether through the ownership of voting securities, or by
contract or otherwise.
(iv) Each subletting pursuant to this paragraph (and any
amendment, modification or termination of an approved sublease) shall be
subject to all covenants, agreements, terms, provisions and conditions
contained in this Lease, except the covenants to pay Fixed Rent and
additional rent as provided hereunder. Lessee covenants and agrees
that, notwithstanding any subletting to any subtenant and/or acceptance
of Fixed Rent or additional rent by Lessor from any subtenant, Lessee
shall and will remain fully liable for the payment of the Fixed Rent and
additional rent due and to become due under this Lease and for the
performance of all the covenants, agreements, terms, provisions and
conditions contained in this Lease on the part of Lessee to be
performed, and all acts and omissions of anyone claiming under or
through any subtenant which shall be in violation of any of the
obligations of this Lease shall be deemed to be a violation by Lessee.
Lessee further covenants and agrees that, notwithstanding any such
subletting, no other and further subletting relating to any part of the
Premises shall or will be made except upon compliance with and subject
to the provisions of this Paragraph 39.
(v) With respect to each and every sublease or subletting
authorized by the provisions of this subparagraph 39 (c):
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(1) Any subletting shall be for a term ending no later
than one day prior to the last day of the Term of this Lease,
or any earlier termination of the term of this Lease, and that
part, if any, of the proposed term of any sublease, or any
renewal or extension thereof, which shall extend beyond a date
one day prior to such last day of the Term of this Lease or
earlier termination of the term of this Lease, is hereby
declared and agreed to be a nullity.
(2) Upon the execution of any such sublease as may be
authorized by this Paragraph 39, Lessee shall, within ten (10)
business days after execution thereof, promptly deliver to the
Lessor (and to the Mortgagee, if applicable) a complete copy of
such sublease.
(3) Every sublease hereunder shall contain a provision
in which the subtenant shall agree for the benefit of Lessor
that, in the event this Lease is cancelled or terminated prior
to the expiration date of the sublease, whether by voluntary or
involuntary means or by operation of law, or for any reason
whatsoever, the subtenant shall agree, if Lessor so requests,
to make full and complete attornment to Lessor for the balance
of the Term of the sublease, which attornment shall be
evidenced by an agreement in form and substance satisfactory to
Lessor, which the subtenant shall agree to execute and deliver
within ten (10) days of Lessor's request.
(d) No Right To Mortgage. Lessee shall have no right to
mortgage and/or pledge this Lease.
(e) Lessor's Rights; Attornment. Lessor shall have the right
to assign, mortgage, pledge or otherwise transfer its interests in this
Lease, the Premises, the Appurtenant Areas and/or any part(s) thereof,
by operation of law or otherwise. Lessee
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agrees that, at the option of the landlord under any ground lease now or
in the future affecting the Premises or the Land, Lessee shall attorn to
said landlord in the event of the termination or cancellation of such
ground lease and if requested by said landlord, enter into a new lease
with said landlord (or a successor ground-lessee designated by said
landlord) for the balance of the term of the Lease, upon the same terms
and conditions as in this Lease. In the event the Lessor shall
transfer, assign, or otherwise convey its interest in the Premises or
real property of which the Premises are a part, such transfer, sale,
assignment or conveyance shall be subject to this Lease and Lessee and
all assignees and sublessees of Lessee shall attorn to and respect such
successor owner as the new landlord hereunder.
40. Effective Date; No Pre-Execution Effect.
(a) The provisions of this Second Amended and Restated Lease
shall be effective upon the later of (i) the date this Second Amended
and Restated Lease is fully executed by the parties hereto, and (ii)
Lessor has closed the refinancing of the Preston Hill Park and obtained
the release of all liens and mortgages, encumbering the Preston Hill
Park as of the date hereof (including the Land and Premises) originally
granted to Mitsubishi Trust and Banking Corporation (the "Effective
Date"). Lessor and Lessee agree that, unless and until the Effective
Date shall occur, this document shall be of no force or effect,
regardless of any course of conduct by them which might indicate that an
agreement exists or which appears to comport with the terms and
conditions of this document.
(b) Notwithstanding the provisions of (a) above, in the event
the Effective Date has not occurred on or before November 14, 1997 (the
"Outside Date"), then either Lessor or Lessee may elect to terminate
this Second Amended and Restated Lease effective upon delivery of
written notice of termination under this subparagraph (b) to the other
party hereto, in which event the parties hereto shall have no further
rights or
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obligations to each other under this Second Amended and Restated Lease,
but the First Amended and Restated Lease shall remain in full force and
effect in accordance with its terms.
41. Termination of First Amended and Restated Lease. Lessor
and Lessee agree that, as of the day before the Effective Date (as
defined in Paragraph 40 above), the First Amended and Restated Lease
shall be deemed terminated by mutual agreement. Notwithstanding the
foregoing, all of the Lessor's and Lessee's respective obligations which
arose or accrued under the First Amended and Restated Lease, prior to
the termination of the First Amended and Restated Lease hereunder, to
pay rent for periods prior to the Effective Date and to indemnify Lessor
and all other obligations expressly so stated shall survive the
termination of the First Amended and Restated Lease.
42. Lessee's Signage Rights.
(a) For so long as Lessee, or a wholly-owned subsidiary or
affiliate of Lessee, (i) is occupying and conducting business in the
Premises, (ii) has not assigned or subleased, in whole or in part, its
or their interest in this Lease, or the Premises, and (iii) no Event of
Default shall have occurred hereunder:
(1) Lessor shall not name (or rename) the Preston Hill Office
Park (the "Park"), in which the Premises is located, after any
commercially recognized business entity which is a competitor of the
Lessee, without obtaining the Lessee's prior consent; provided Lessor
shall have no obligation to name the Park after the originally named
Lessee; and
(2) No other tenant of the Park shall be granted exterior
signage and rights other than at the exterior of such tenant's leased
premises, at each entrance to the Park and at strategic roadway
intersections in the Park.
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(3) No other tenant or occupant of the Park shall be granted
exterior signage and placard rights which exceed, in size, lettering or
prominence of location, any similar signage rights granted Lessee
hereunder. Any exterior signage installed by any other tenants in, on
or about any building in the Park or at Park entrances or strategic
roadway intersections, shall have a design which is consistent with
standards for similar signage for "Fortune 500" corporations located at
other office or research complexes in Connecticut.
(4) Lessee may install, at Lessee' expense, at each entrance
to the Park, at strategic roadway intersections in the Park, and on or
about the Premises, signage having a design consistent with standards
for similar signage for "Fortune 500" corporations located at other
office or research complexes in Connecticut. Lessee shall provide
Lessor with no less than thirty (30) days notice prior to the
installation of any Lessee signage, which notice shall include detailed
plans of Lessee' desired signage.
(b) All signage referring to Lessee, or its sublessee's may
also refer to Crompton & Knowles Corporation, or such other successor
and/or parent company of Lessee as there may be from time to time;
provided such reference to Crompton & Knowles may not be placed on
separate signage.
(c) Lessee shall keep and maintain, at Lessee' expense, all of
Lessee's signage in good condition and repair at all times during the
term of this Lease. All Lessee's signage shall comply with all Legal
Requirements and Lessee shall be solely responsible for procuring, at
Lessee's cost, all zoning and other municipal approvals which may be
required for Lessee's signage. Lessee shall remove all signs at the
expiration or termination of this Lease and restore the affected area to
its original condition.
43. Exculpatory Clause. All separate or personal liability of
Lessor under or in connection with this Lease, or any of Lessor's
partners, officers, directors,
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employees and/or joint ventures, is hereby waived by Lessee, and by
every person now or hereafter claiming by, through or under Lessee, and
Lessee agrees that it shall look solely to Lessor's interest in the
Premises (and for so long as Lessor owns fee simple title to the Land
and other buildings located on the Land, to Lessor's interest in the
Land and such other buildings) for the payment or other satisfaction of
any claim against Lessor under or in connection with this Lease.
44. COMMERCIAL TRANSACTION. LESSEE ACKNOWLEDGES THAT THIS
LEASE CONSTITUTES A COMMERCIAL TRANSACTION WITHIN THE MEANING
OF <section> 52-278A OF THE CONNECTICUT GENERAL STATUTES. PURSUANT
TO <section> 52-278F OF SAID CONNECTICUT GENERAL STATUTES, LESSEE
HEREBY WAIVES AND RELINQUISHES ALL RIGHTS TO NOTICE AND HEARING
AS PROVIDED IN <section> 52-278A THROUGH <section> 52-278G OF SAID
CONNECTICUT GENERAL STATUTES PRIOR TO LESSOR OBTAINING ANY
PREJUDGMENT REMEDY AGAINST TENANT IN CONNECTION WITH THE
ENFORCEMENT BY LESSOR OF ANY OF ITS RIGHTS OR REMEDIES UNDER
THIS LEASE. IF SUMMARY PROCESS IS UTILIZED, LESSEE HEREBY WAIVES
ALL REQUIRED NOTICES, PURSUANT TO <section> 47A-24 OF THE
CONNECTICUT GENERAL STATUTES, EXCEPT THOSE REQUIRED UNDER THIS
LEASE.
45. Waiver of Jury Trial; Counterclaims, Etc.
(a) Lessee waives Lessee's rights, if any, to assert a
counterclaim in any summary proceeding brought by Lessor against Lessee,
and Lessee agrees to assert any such claim against Lessor only by way of
a separate action or proceeding, unless such counterclaim would be
deemed waived or banned if not brought by Lessee in such summary
proceeding.
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(b) To the extent not prohibited by applicable law, Lessor and
Lessee hereby waive trial by jury in any action, proceeding or
counterclaim brought by either against the other or any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Lessor and Lessee, or Lessee's use or occupancy of the
Premises, or any emergency or other statutory remedy with respect
thereto.
46. Authority. Each of the individuals executing this Lease
on behalf of Lessee warrants and represents individually to Lessor that
Lessee is a duly authorized and existing corporation, qualified to do
business in the State of Connecticut, that Lessee has the full right and
authority to enter into this Lease, and that each and every individual
signing on behalf of Lessee is duly authorized to do so. Lessee will
provide evidence reasonably satisfactory to Lessor confirming these
representations.
47. No Offer. It is understood and agreed that this Lease is
submitted to Lessee on the understanding that it shall not be considered
an offer and shall not bind Lessor in any way until (a) Lessee has duly
executed and delivered duplicate originals to Lessor and (b) Lessor has
executed and delivered one (1) of said originals to Lessee.
48. Construction. This Lease represents the result of
negotiations between Lessor and Lessee, each of which has been (or has
had opportunity to be) represented by counsel of its own selection, and
neither of which as acted under duress or compulsion, whether legal,
economic or otherwise. Consequently, Lessor and Lessee agree that the
language in all parts of this Lease shall in all cases be construed as a
whole according to its fair meaning and neither strictly for or against
Lessor or Lessee. Further, the rule of "ejusdem generis" shall not
apply in construing the provisions of this Lease.
49. Survival. All of Lessee's obligations under this Lease
to pay rent and to indemnify Lessor and all other obligations expressly
so stated shall survive the expiration or sooner termination of the
Lease. No payments of money by Lessee to Lessor
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after the end of the Term shall reinstate, continue or extend the Term
or make ineffective any notice given to Lessee prior to the payment of
such money. After the service of notice or the commencement of a suit,
or after final judgment granting Lessor possession of the Premises,
Lessor may receive and collect any sums of rent due under this Lease,
and the payment of Rent shall not make ineffective any notice, or in any
manner affect any pending suit or any judgment previously obtained.
50. Lessor's Covenant Regarding Future Use of Park.
(a) Use Limitations. Notwithstanding anything to the contrary
contained in this Lease, during the Term of this Lease (and provided
this Lease shall then be in force and effect), Lessor shall prohibit all
other tenants and lessees of space in the Park from using any space in
the Park for (A) any warehousing use which is not ancillary to another
use otherwise permitted under this subparagraph (a), (B) any light
manufacturing or light industrial purposes, or (C) any other use which
may, from time to time, be permitted under applicable Legal
Requirements, including zoning laws, rules, regulations and codes, if,
but only if, any such uses which are described in (A), (B) or (C) above
would:
(i) involve research on mammals (other than rodents),
(ii) constitute a public or private nuisance,
(iii) result in the discharge of objectionable fumes, vapors or
odors as perceived from the Premises,
(iv) result in the generation of a level of traffic on the Park
roadways and in the Park parking areas, during normal business hours, by
motor vehicles having more than two (2) axles and which would be
unreasonably disruptive of the Lessee's use and enjoyment of the
Premises,
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(v) result in the generation of a level of noise, or other sound,
which, as measured at the Premises, would be unreasonably disruptive of the
Lessee's use and enjoyment of the Premises, or
(vi) result in (A) any additions or alterations to the external
appearance of any existing buildings (including external signage) on the
Land, or (B) the construction of any new buildings on the Land, or the
installation of external signage in the Park, which, in either case, if
substantially visible from the Premises, are not substantially
architecturally equivalent with (i) the external architectural style of
the Premises, and associated external signage, or (ii) any other
external architectural style which may then be found in other
developments in the State of Connecticut which are similar to the Park.
(b) Expedited Arbitration. In the event Lessor shall provide
Lessee with notice of a proposed use of the Park which Lessor believes
is, or shall be, in conformance with the terms of subparagraph (a)
above, Lessee shall, within five (5) business days of the delivery of
such notice to Lessee, provide Lessor with a reply (for purposes of this
subparagraph, the "reply") stating whether or not Lessee agrees that
such proposed use is in conformance with such covenant. If Lessee does
not agree that such proposed use will be in conformance with such
covenant, Lessee shall also state, with particularity, why Lessee
believes that such proposed use is not, or would not be, in conformance
with such covenant. Lessee's failure to provide such reply within such
five (5) business day period shall be deemed to constitute Lessee's
express consent to such proposed use and Lessee's express agreement that
such proposed use shall not be in violation of the covenant set forth in
subparagraph (a) above. In the event Lessee's reply shall indicate that
Lessee reasonably believes that such proposed use will be in violation
of such covenant, then, in the event the parties are unable to reconcile
such disagreement to their full satisfaction within five (5) business
days following Lessor's receipt of Lessee's
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reply hereunder, the matter shall be resolved, within twenty (20) days
thereafter, by mandatory, binding arbitration conducted, at a location
in the State of Connecticut selected by Lessor, in accordance with the
rules then prevailing of the American Arbitration Association, or its
successor as follows:
Lessor and Lessee shall, within five (5) days of the expiration
of such five (5) day informal dispute resolution period, each appoint an
arbitrator who shall promptly confer with each other and attempt to make
a joint determination of the issue. No arbitrator appointed hereunder
may be an individual who has represented either party hereto in
connection with this Lease or with any other real estate transactions.
If such arbitrators are able, within ten (10) days of their appointment,
to agree upon such matter they shall notify Lessor and Lessee in writing
of their joint determination which, absent fraud, bad faith, coercion or
other misdeed, shall be binding upon Lessor and Lessee. If such
arbitrators shall fail to reach a joint determination of such issue
within such ten (10) day period, then such arbitrators shall immediately
(1) prepare detailed written statements of the reasons for their
determinations of the issue(s) involved, (2) designate a third
arbitrator, and (3) submit copies of each such determination described
in clause (1) hereof to Lessor, Lessee and such third arbitrator. If
the two arbitrators shall fail to agree upon the designation of such
third arbitrator within five (5) days, either party may apply to the
American Arbitration Association in Connecticut or any successor
organization thereto having jurisdiction and having offices in
Connecticut, for the designation of such third arbitrator. The third
arbitrator shall conduct such hearings and investigations as (s)he may
deem appropriate and shall, within ten (10) days after the date of
his/her designation, choose the determination of the two arbitrators who
were originally selected by the parties which is the nearest to the
determination such third arbitrator would have made acting alone, and
that choice by the third arbitrator absent fraud, bad faith, coercion or
other
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misdeed shall be conclusively binding upon Lessor and Lessee. The non-
prevailing party, as determined by such arbitration decision, shall be
solely responsible for paying all reasonable counsel fees and
reasonable out-of-pocket expenses of Lessor and Lessee in connection
with any arbitration under this subparagraph (b), including the
reasonable expenses and fees of any arbitrator selected by it hereunder,
and such non-prevailing party shall be solely be responsible for paying
all other reasonable expenses and fees of any such arbitration,
including, but not limited to, the reasonable fees of the third
arbitrator who may be appointed hereunder. (Notwithstanding the
foregoing, Lessee shall have no obligation to pay for any costs and
expenses incurred by Lessor in connection with any arbitration arising
out of a dispute regarding Power Plant Operating Expenses, if such
arbitration is instituted by any party other than Lessor, Lessee or any
occupant of space in the Premises.) Each arbitrator participating in
the resolution of a dispute arising under Paragraph 2(b) or Paragraph
50(a) shall (i) have at least ten (10) years experience in the
architectural or commercial real estate development industry in the
State of Connecticut, and (ii) be familiar with the commercial real
estate market in the Middlebury, Connecticut area. Each arbitrator
participating in the resolution of a dispute arising under subparagraph
29 (c) (The Power Plant; Power Plant Operating Expenses), shall have
experience relevant to the issues to be determined. When the issues
submitted to arbitration have been determined, the parties hereto, on
request of either of them, shall enter into a signed, written
stipulation with respect thereto. The final decision of the arbitrator
shall be binding upon the parties hereto. The arbitration procedure
provided herein shall be the sole and exclusive remedy available to
Lessee for any claimed violation of the terms of Paragraph 50 (a) by
Lessor, or any proposed tenant, lessee or other occupant of any space in
the Park. Lessee hereby waives any and all rights to seek monetary
damages, injunctive or declaratory relief, or any other legal or
equitable remedy by reason of any claimed violation by Lessor, or any
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proposed tenant, lessee or other occupant of any space in the Park, of
the use restrictions stated in subparagraph 50 (a) above.
Notwithstanding the foregoing, Lessee may seek to enforce, by
appropriate legal or equitable means, any final decision rendered by
arbitration pursuant to this subparagraph 50 (b).
51. Prior Notice of Public Marketing Efforts. Lessor
agrees to provide Lessee with notice prior to (a) signing any listing
agreement with any real estate broker authorizing such broker to
publicly market the Premises for sale, or (b) placing any "For Sale"
signs on the Land. Lessor shall have no obligation to disclose to
Lessee the identity of any proposed purchaser of the Premises, Land or
Park, or the terms of any offers solicited or received by Lessor.
Lessor's failure to comply with the terms of this Paragraph 51 shall not
(i) constitute a default, by Lessor, under this Lease, (ii) prevent
Lessor from conveying good title to the Park, (iii) subject Lessor to
any claim for monetary damages, (iv) entitle Lessee to enjoin or prevent
any sale of the Park, or (v) otherwise relieve Lessee from any
obligation to pay Fixed Rent or any additional rent due under this
Lease.
[No further text on this page]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be executed as of the date first above written.
Witnesses:
THE MIDDLEBURY PARTNERSHIP, Lessor by
White-Middlebury Associates Limited
/s/ Stephen P. Duffy Partnership, its Managing General Partner,
/s/ Cheryl A. Neus By:/s/ W. Hackerman
----------------------
its Managing Partner
Witnesses: UNIROYAL CHEMICAL COMPANY, INC.,
Lessee
/s/ Elizabeth Carroll
- ------------------------- By: /s/ F. Manganella
------------------
Title: Treasurer
/s/ Timothy R. Carmody
[Seal]
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STATE OF CONNECTICUT )
) ss. Middlebury
COUNTY OF NEW HAVEN )
On this 10 day of November, 1997, personally
appeared before me /s/ Willard Hackerman, the Managing
Partner of White-Middlebury Associates Limited Partnership, the signer
and sealer of the foregoing instrument, and acknowledged the same to be
his/her free act and deed, the free act and deed of said Limited
Partnership and the free act and deed of The Middlebury Partnership.
/s/ Tammy Fanning
Notary Public
STATE OF CONNECTICUT )
) ss. Middlebury
COUNTY OF NEW HAVEN )
On this 28th day of August, 1997, personally appeared before me
Uniroyal Chemical Company, Inc., by Frank Manganella, its Treasurer, the
signer and sealer of the foregoing instrument, and acknowledged the same
to be his/her free act and deed, and the free act and deed of said
Corporation.
/s/ Timothy R. Carmody
----------------------------------------
Commissioner of the Superior Court
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SCHEDULE A
DESCRIPTION OF THE "LAND"
All those three certain pieces or parcels of land situated
in the Towns of Middlebury, Oxford and Southbury in the County of
Now Haven and State of Connecticut described as follows:
FIRST PARCEL:
A certain piece or parcel of land containing an area of
105.874 acres located in the Town of Middlebury, County of New
Haven and State of Connecticut, said parcel being southeasterly
of Interstate Highway 84 and southwesterly of Relocated Benson
Road and said piece or parcel of land being more particularly
described and bounded as follows:
Beginning at a point in the westerly highway line
of relocated Benson Road, said point being 502.81 feet southerly
of the southerly line of Conn. Highway Interstate Highway 84,
when measured along the westerly line of said relocated Benson
Road;
Thence proceeding along said westerly highway line of
relocated Benson Road in a straight line having a bearing of S 20
degrees 040' 09" E, a distance of 23.36 feet to a point of
curvature;
Thence continuing southeasterly along said highway
line in curved line concave to the northeast and having a
radius of 825 feet, a distance of 60 feet to a point of compound
curvature;
Thence continuing southeasterly along said highway
line in a curved line concave to northeast and having a radius of
3,241 feet, a distance of 1,032.31 feet to a point of compound
curvature;
Thence continuing southeasterly along said highway line in a
curved line concave to the northeast and having a radius of
1,714.17 feet, a distance of 494.348 feet to a point;
Thence S 65 degrees 34' 18" W, along land of International
Business Machines Corporation (referred to in the balance of this
Schedule, for purposes of describing bounding owners, as "IBM"),
a distance of 405.796 feet to a point;
Thence due south, along other land of IBM, a distance of
600.00 feet to a point;
Thence S 36 degrees 56' 20" W, along other land of IBM, a
distance of 832.00 feet to a point;
Thence due west, along other land of IBM, a distance of
600.00 feet to a point;
Thence N 38 degrees 22' 35" W, along other land of IBM, a
distance of 631.42 feet to a point;
Thence due south, along other land of IBM, a distance of
1,230.00 feet to a point;
Thence S 14 degrees 51' 30" W, along other land of IBM, a
distance of 291.46 feet to a point, which is the southeast corner
of the First Parcel and the northeast corner of the Second Parcel
described herein said point being in a division line between the
Town of Middlebury to the north and the Town of Oxford to the
south as shown on a map in Volume 10 at Page 88 of the Middlebury
Land Records (hereinafter referred to as the "Town Line Map");
Thence N 85 degrees 49' 30" W, along said Middlebury-Oxford
town line, being also a portion of the northerly line of the
Second Parcel described herein, a distance of 245.91 feet to a
point;
Thence due north, along other land of IBM, a distance of
2,951.486 feet to a point, said point being in the southeasterly
line of land of the State of Connecticut, being the southeasterly
highway line of Interstate Highway 84;
Thence N 42 degrees 37' 55" E, along said highway line, a
distance of 282.532 feet to a point;
Thence N 22 degrees 04' 35" E, along said highway line, a
distance of 213.60 feet to a point;
Thence N 41 degrees 04' 10" E, along said highway line, a
distance of 451.19 feet to a point;
Thence N 84 degrees 58' 15" E, along either land of IBM, a
distance of 756.39 feet to the point and place of beginning.
Said hereinabove described parcel being bounded:
NORTHEASTERLY by Relocated Benson Road;
SOUTHEASTERLY,EASTERLY, again SOUTHEASTERLY, SOUTHERLY,
SOUTHWESTERLY and again EASTERLY by other
land of IBM;
SOUTHERLY by Middlebury-Oxford town line being a
portion of the northerly line of the Second
Parcel described herein;
WESTERLY by other land of IBM;
NORTHWESTERLY by land of the State of Connecticut, being
Interstate Highway 84; and
NORTHERLY by other land of IBM.
SECOND PARCEL:
A certain piece or parcel of land containing an area of 8.2
acres, more or less, located in the Town of Oxford, County of New
Haven and State of Connecticut, said parcel being southerly of
the Oxford-Middlebury town line, and easterly of the Oxford-
Southbury town line and said piece or parcel of land being more
particularly described and bounded as follows:
Beginning at a point on the Oxford-Middlebury town line,
said point being distant easterly about 830 feet on a course
bearing S 85 degrees 49' 30" E from a point marking the
intersection of said town line with the center line of Eight Mile
Brook and the Oxford-Southbury town line, as shown on the Town
Line map which point i. the southeast corner of the First Parcel
described herein, and the northeast corner of the Second Parcel;
Thence proceeding S 26 degrees 22' 37" W, along other land
of IBM, a distance of 243.66 feet to a point;
Thence S 34 degrees 32' 04" W, along other land of IBM, a
distance of 248.09 feet to a point;
Thence S 69 degrees 40' 35" W, along other land of IBM, a
distance of 156.94 feet to a point;
Thence S 56 degrees 06' 50" W, along other land of IBM, a
distance of 131.14 feet to a point;
Thence S 65 degrees 39' 50" W, along other land of IBM, a
distance of 80.97 feet to a point;
Thence s 52 degrees 52' 25" W, along other land of IBM, a
distance of 82.28 feet to a point;
Thence S 47 degrees 16' 00" W, along other land of IBM, a
distance of 73.06 feet to a point, said point being in the center
line of Eight Mile Brook and also being in the division line
between the Town of Oxford to the east and the Town of Southbury
to the west as shown on the Town Line Map, said point being the
southeast corner of the Third Parcel described herein and the
southwest corner of the Second Parcel;
Thence proceeding northerly in an irregular line which marks
the center line of Eight Mile Brook and which denotes at this
location the town line between the Town of Oxford to the east and
the Town of Southbury to the west, as shown on the Town Line Map,
a distance of about 830 feet in part along the easterly line of
the Third Parcel described herein and in part along other land of
IBM to a point - said point being at the intersection of the
Oxford-Southbury town line with the Oxford-Middlebury town line
as shown on the Town Line Map;
Thence proceeding S 85 degrees 49' 30" E, along the said
Oxford-Middlebury town line, a distance of about 830 feet in part
along other land of IBM and in part, along the southerly line of
the First Parcel described herein to the point of beginning.
Said hereinabove described Second Parcel being bounded:
NORTHERLY by the Oxford-Middlebury town line, being, in
part the southerly line of other land of IBM
and in part the southerly line of the First
Parcel described herein;
SOUTHEASTERLY by other land of IBM; and
WESTERLY by the Oxford-Southbury town line as marked
by the center line of Eight Mile Brook and
being, in part the easterly line of the Third
Parcel described herein and in part the
easterly line of other land of IBM.
THIRD PARCEL:
A certain piece or parcel of land containing an area of 4.0
acres more or less located in the Town of Southbury, County of
New Haven and State of Connecticut, said parcel being westerly of
the Oxford-Southbury town line as evidenced by the center line of
Eight Mile Brook as shown on the Town Line Map and easterly of
Strongtown Rd. (Rte. 188), and said piece or parcel of land being
more particularly described and bounded as follows:
Beginning at a point on the Oxford-Southbury town line as
shown on the Town Line Map which point marks the southwesterly
corner of the Second Parcel herein described and southeast corner
of the Third Parcel;
Thence proceeding S 47 degrees 16' 00" W, along other land
of IBM, a distance of 70.00 feet to a point;
Thence S 54 degrees 43' 15" W, along other land of IBM, a
distance of 33.00 feet to a point;
Thence N 87 degrees 24' 50" W, along other land of IBM, a
distance of 26.16 feet to a point;
Thence S 81 degrees 54' 50" W, along other land of IBM, a
distance of 40.88 feet to a point;
Thence S 75 degrees 11' 00" W, along other land of IBM, a
distance of 84.38 feet to a point;
Thence S 71 degrees 27' 15" W, along other land of IBM, a
distance of 198.35 feet to a point;
Thence S 71 degrees 03' 20" W, along other land of IBM, a
distance of 261.29 feet to a point in the easterly highway line
of Strongtown Rd.,
Thence proceeding northeasterly along said highway line in a
curved line concave to the southeast and having a radius of
926.09 feet, a distance of 304.4 feet to a point of tangency;
Thence continuing along said highway line in a straight line
having a bearing of N 15 degrees 38' 00" E, a distance of 145.00
feet to a point;
Thence S 66 degrees 42' 22" E, along other land of IBM, a
distance of 229.24 feet to a point;
Thence S 84 degrees 03' 11" E, along other land of IBM, a
distance of 144.78 feet to a point;
Thence N 66 degrees 15' 02" E, along other land of IBM, a
distance of about 220 feet to a point, said point being on the
Southbury-Oxford town line as evidenced by the center line of
Eight Mile Brook as shown on the Town Line Map;
Thence proceeding southerly in an irregular line along said
center line of Eight Mile Brook, being a portion of the westerly
line of the Second Parcel described herein, a distance of about
220 feet to the point of beginning;
Said hereinabove described Third Parcel being bounded:
NORTHERLY by other land of IBM;
EASTERLY by said Southbury-Oxford town line being the
center line of Eight Mile Brook and being a
portion of the westerly line of the Second
Parcel described herein;
SOUTHERLY by other land of IBM; and
WESTERLY by Strongtown Rd. (Rte. 188).
All three hereinabove described and bounded pieces or
parcels of land being the land more particularly depicted on a
map consisting of two sheets entitled "Map Showing a Portion of
Property of International Business Machines Corporation Located
in the Towns of Middlebury, Southbury & Oxford, Connecticut,
Scale: 1" = 100' Total Area: 118 AC. + Dec. 3, 1987, rev. Dec.
17, 1987", said map having been prepared by Surveying Associates,
P.C. 432 Main Street, Danbury Conn. which map is on file in the
offices of the Town Clerks of the said towns of Middlebury,
Southbury and Oxford.
Said three parcels are conveyed together with the right to
maintain, repair and replace, and to use, any existing drainage
ditch, pipe or line located on or crossing, any adjoining land of
IBM, including, without limitation, the drainage ditch located
near Benson Road, which leads from the premises above described
onto other land of IBM lying to the south of the premises above
described.
<PAGE>
SCHEDULE B
PARKING SKETCH
<PAGE>
SCHEDULE C
[INTENTIONALLY OMITTED]
<PAGE>
SCHEDULE D
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Dated as of ___________,1997
Lessor: The Middlebury Partnership
Lessee: Uniroyal Chemical Company, Inc.
Address of Lessee: World Headquarters
Preston Hill Office Park
Middlebury, CT 06749
Description of Lease: As set forth in Exhibit A
Premises: R&D Building located on the land described in Exhibit B
(the "Land") and appurtenant rights described in the
Lease
UNIROYAL CHEMICAL COMPANY, INC., having its principal office at the
address specified above, as Lessee under the referenced lease (the
"Lease") of the Premises, and __________________________________
("Mortgagee"), as mortgagee under an Open-End Mortgage and Security
Agreement and assignee under an Assignment of Rents and Leases, both
dated as of the date hereof from The Middlebury Partnership ("Lessor"),
which encumber, among other property, the Premises and the rents payable
by Lessee under the Lease, and which are intended to be recorded
contemporaneously with this Agreement (together, the "Mortgage"), hereby
agree as follows:
1. Provided that no Event of Default (as defined in the Lease) has
occurred and is continuing under the terms of the Lease beyond any
applicable cure and that no
event has occurred which would permit Lessor to terminate the Lease
pursuant to any of its terms, Lessee's rights under the Lease shall not
be affected or disturbed by Mortgagee in
<PAGE>
the exercise of any of its rights under the Mortgage, or any renewal,
extensions, modifications or consolidations thereof, or the notes or
other obligations secured thereby, including, without limit, if any
action or proceeding is commenced by Mortgagee for the foreclosure of
the Mortgage or the sale of the Premises, Lessee shall not be named as a
party therein (unless such joinder shall be desirable to protect
Mortgagee's interest under the Mortgage or the Assignment, in which case
Mortgagee shall not seek affirmative relief from Tenant in any such
action or proceeding), and any sale of the Premises pursuant to the
exercise of any rights and remedies under the Mortgage, or any renewals,
extensions, modifications or consolidations thereof shall be made
subject to Lessee's rights under the Lease, as more particularly
provided herein. Mortgagee acknowledges that, to the best of its
knowledge and belief, Lessee is not in default under the Lease.
2. Lessee agrees to attorn to Mortgagee or any purchaser of the
Premises, and the Lease shall not be deemed terminated and shall
continue in full force and effect as, or as if it were, a direct lease
between Mortgagee or such purchaser of the Premises and Lessee, upon all
of the terms, covenants and conditions of the Lease; provided that
neither Mortgagee nor any such purchaser of the Premises shall:
(i) be liable for any act or omission of Lessor under the
Lease that occurs prior to the date of acquisition of title to the
Premises by the Mortgagee or any such purchaser; or
(ii) be bound by any previous modification of the Lease
or by any previous prepayment of more than one (1) month's Fixed Rent,
or any additional rent which Lessee shall have paid to Lessor in
advance, unless such modification or prepayment shall have been
expressly approved in writing by Mortgagee; or
(iii) be subject to any offsets or defenses which Lessee
may have against Lessor which arise out of any actions or omissions of
Lessor which occurred prior
D2
<PAGE>
to the date of acquisition of title to the Premises by the Mortgagee or
any such purchaser provided, however, this provision shall not affect
Lessee's rights to such offsets as Lessee may be expressly permitted to
exercise under the terms of the Lease which arise out of the actions or
omissions of the Mortgagee (or a purchaser therefrom) occurring from and
after the date of the acquisition of title to the Premises by the
Mortgagee, or such purchaser; or
(iv) be obligated to repair, replace, rebuild or restore
the Premises or any other land, buildings or improvements in the event
of damage or destruction; or
(v) be personally liable for the performance of Lessor's
obligations under or in connection with the Lease and Lessee shall look
only to such successor lessor's interest in the Premises (and for so
long as such foreclosing Mortgagee, or a purchaser therefrom, owns fee
simple title to the Land and other buildings located on the Land, to
such foreclosing Mortgagee's (or such purchaser's) interest in the Land
and such other buildings) (or the proceeds thereof) and to no other
property or assets of such successor lessor for the satisfaction of
Lessee's remedies under the Lease.
3. Subject to the terms and conditions of this Agreement, the
Lease and Lessee's rights thereunder are and shall be subject and
subordinate to the lien of the Mortgage and to all of the terms,
conditions, and provisions thereof, to all advances made or to be made
thereunder or under any of the notes or other obligations secured
thereby, and to any renewals, extensions, modifications or
consolidations thereof or such obligations, including any increases
therein, with the same force and effect as if the Mortgage and such
secured obligations, together with all such renewals, extensions,
modifications or consolidations, had been executed, delivered and
recorded prior to the execution and delivery of the Lease. Upon the
occurrence of a default under the Lease,
D3
<PAGE>
Mortgagee shall have the right to send a notice of default under the
Lease, which shall be effective for all purposes under the Lease.
4. The foregoing provisions shall be self-operative, provided that
Lessee and Mortgagee agree to execute and deliver to Mortgagee, to any
other person to whom Lessee herein agrees to attorn, or to Lessee such
other instrument in recordable form as either Lessee, Mortgagee or such
other person shall reasonably request in order to effectuate or evidence
said provisions.
5. This Agreement shall not operate (x) to place any
responsibility for the control, care, management or repair of the
Premises or any other land, buildings or improvements upon Mortgagee,
(y) to require Mortgagee to comply with any of the terms or provisions
of the Lease or otherwise impose any obligation upon Mortgagee with
respect to the Lease, or (z) to make Mortgagee responsible or liable for
any waste committed on the Premises or any other land, buildings or
improvements by any party or for the negligence, willful misconduct,
action or inaction in the management, upkeep, repair or control of the
Premises or any other land, buildings or improvements which shall result
in loss, injury or death to any lessee, sublessee or licensee of all or
any part of the Premises or any other land, buildings or improvements,
any employee of the same or any stranger.
6. Any act done or attempted in violation of any term or covenant
of this Agreement shall be wholly void as against Mortgagee, its
successors or assigns.
7. Lessee hereby warrants and represents, covenants and agrees to
and with Mortgagee:
D4
<PAGE>
(a) not to alter or modify the Lease in any
respect or to agree to any cancellation of the Lease without the prior
written consent of Mortgagee;
(b) to deliver to Mortgagee a duplicate of each
notice of default delivered to Lessor or any successor lessor at the same
time as such notice is given to Lessor or any successor lessor;
(c) that Lessee is now the sole owner of the
leasehold estate created by the Lease and shall not hereafter assign the
Lease except as permitted by the terms thereof;
(d) not to seek to terminate the Lease or abate
any of the rent thereunder by reason of any default of Lessor or any
successor lessor or any act or omission of Lessor or any successor lessor
which would entitle Lessee to cancel the Lease or abate any amount payable
thereunder or to claim a partial or total eviction without prior written
notice thereof to Mortgagee and the lapse thereafter of such time as under
the Lease was offered to Lessor or any successor lessor in which to remedy
the default, after which time Mortgagee, at its option, may remedy any such
default within thirty (30) days after the expiration of such time as Lessor
or such successor lessor was permitted to cure such default; provided,
however, (a) the foregoing additional thirty (30) day cure period shall not
apply to Lessee's right to exercise any self-help or rent abatement remedies
under the terms of Section 30(b)(ii) and (iii) or Section 30(c) of the Lease
by reason of any failure by Lessor, or any successor lessor, to provide heated
water, chilled water, or process steam to the Premises, as required pursuant
to the terms of the Lease, and (b) with respect to any default of Lessor, or
any successor lessor, under the Lease which cannot be remedied within such
time, if Mortgagee commences to cure such default within
D5
<PAGE>
such time and thereafter diligently proceeds with such efforts,
Mortgagee shall have such time as is reasonably necessary to complete
curing such default;
(e) not to prepay or compromise payment of
Fixed Rent, additional rent oor other sums due or to become due under the
Lease;
(f) to promptly certify in writing to
Mortgagee, in connection with any proposed assignment of the
mortgage, to the best of its knowledge, whether or not any default on the
part of Lessor or any successor lessor then exists under the Lease and to
deliver to Mortgagee any tenant estoppel certificates required under the
Lease; and
(g) upon receipt by Lessee of a notice from
Mortgagee that Lessor or any successor lessor has defaulted under the
Mortgage and has failed to cure the default within any applicable grace
period set forth in the Mortgage and requesting Lessee to henceforth make
all payments under the Lease to Mortgagee, Lessee shall thereafter pay
directly to Mortgagee all rent and other sums due and to become due under
the Lease.
8. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
9. This Agreement shall be governed and construed in accordance
with the laws of the State of Connecticut.
10. Lessee shall notify Mortgagee at:
----------------------------------
----------------------------------
----------------------------------
D6
<PAGE>
of any default of Lessor or any successor lessor under the Lease, and
agrees that no such default shall entitle Lessee to cancel the Lease or,
except as provided in (d) above, abate the rent payable thereunder.
11. This Agreement may not be terminated, amended or waived orally,
but only by an instrument in writing signed by Lessee and Mortgagee or
their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Witnesses: UNIROYAL CHEMICAL COMPANY, INC.,
a New Jersey corporation
- -------------------------
By:
--------------------------------
- ------------------------- Its:
[Name of Mortgagee]
- -------------------------
By:
--------------------------------
- ------------------------- Its:
Lessor hereby agrees to the provisions of
Paragraph 7(g) hereinabove on behalf of
itself and its successors and assigns as
Lessor under the Lease:
THE MIDDLEBURY PARTNERSHIP, a Connecticut
general partnership
- -------------------------
By:
--------------------------------
- ------------------------- Name:
Title:
D7
<PAGE>
STATE OF )
) ss. , 1997
COUNTY OF )
Personally appeared , of
Uniroyal Chemical Company, Inc., signer and sealer of the foregoing
instrument, and acknowledged the same to be his/her free act and deed as
such and the free act and deed of Uniroyal Chemical
Company, Inc., before me.
-------------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires:
STATE OF )
) ss. , 1997
COUNTY OF )
Personally appeared , of
, signer and sealer of the foregoing instrument,
and acknowledged the same to be his/her free act and deed as such
and the free act and deed of , before me.
-------------------------------------
Notary Public
My Commission Expires:
D8
<PAGE>
STATE OF )
) ss. , 1997
COUNTY OF )
On this day of 1997, before me personally
appeared , the Managing
Partner of White Middlebury Associates Limited Partnership, the signer
and sealer of the foregoing instrument, and acknowledged the same to be
his/her free act and deed, the free act and deed of such Limited
Partnership, in its capacity as a general partner of The Middlebury
Partnership, and the free act and deed of The Middlebury Partnership.
------------------------------------
Notary Public
My Commission Expires:
D9
<PAGE>
EXHIBIT A TO NON-DISTURBANCE AGREEMENT
DESCRIPTION OF LAND
<PAGE>
EXHIBIT B TO NON-DISTURBANCE AGREEMENT
DESCRIPTION OF LEASE
<PAGE>
SCHEDULE E
(EMERGENCY UTILITIES "TIE-INS")
1. Hot water supply and return lines, terminated with a flanged
cap.
2. Low pressure steam line, terminated with a flanged cap.
3. Domestic feed water line for makeup water.
4. Gas line.
5. Chilled water supply and return, terminated with a flanged cap.
6. Condenser supply and return, terminated with a flanged cap.
7. Electric Panel - 240 Volt.
GUARANTY OF LEASE
THIS GUARANTY OF LEASE, dated as of ________________, 1997, by
CROMPTON & KNOWLES CORP., a Massachusetts corporation, having its
principal office at One Station Plaza, Stamford, Connecticut 06901
(referred to herein as the "Guarantor") in favor of THE MIDDLEBURY
PARTNERSHIP, a Connecticut general partnership, having an office at 300
East Joppa Road, Towson, Baltimore, Maryland 21286 ("Landlord").
W I T N E S S E T H
WHEREAS, Guarantor has requested Landlord to enter into a
certain Second Amended and Restate Lease Agreement (as the same may be
hereafter modified or amended, the "Lease") with UNIROYAL CHEMICAL
COMPANY, INC. ("Tenant"), a New Jersey corporation, and wholly-owned
subsidiary of Guarantor, whereby Landlord would lease to Tenant a
certain building, consisting of approximately 318,704 gross square feet
of space, commonly known as the "R&D Building" in the Preston Hill
Office Park, located in Middlebury, Connecticut, together with certain
appurtenant rights relating to land in Middlebury, Oxford and Southbury,
Connecticut (said building and appurtenant rights, collectively, the
"Premises") for a term of twenty (20) years commencing on the "Effective
Date", as defined in the Lease;
WHEREAS, as a condition to Landlord's execution of such Lease,
Tenant is obligated to deliver Guarantor's guarantee of the performance
of Tenant's obligations under the Lease; and
WHEREAS, Landlord is unwilling to execute the Lease unless and
until this Guaranty is executed and delivered to it.
NOW, THEREFORE, in consideration of $1.00, and for other good
and valuable consideration received, and to induce Landlord to enter
into the Lease, Guarantor does hereby covenant, agree, represent and
warrant to Landlord as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor does hereby represent and warrant that (a) it has the
power to enter into and perform this Guaranty, and the execution and
delivery of this Guaranty has been duly authorized by all necessary
corporate action on the part of Guarantor, (b) neither this Guaranty,
nor the execution, delivery and performance hereof, nor the performance
of
<PAGE>
the agreements herein contained, nor the consummation of the
transactions herein contemplated will violate any statute, ordinance,
regulation, court order or decree or order or decree of any other
governmental authority or agency or any other agreement to which
Guarantor is subject, and no consent, approval, order or authorization
of, or registration, declaration or filing with, any court or
governmental authority or instrumentality, domestic or foreign, is
required by or with respect to Guarantor in connection with the
execution and delivery of this Guaranty by Guarantor, (c) this Guaranty
constitutes a valid and binding obligation of Guarantor enforceable
against Guarantor in accordance with its terms, (d) Tenant is a wholly-
owned subsidiary of Guarantor and Guarantor has determined that it is in
the best interests of Guarantor that Tenant enter into the Lease, and
(e) the lease of the Premises to Tenant, pursuant to the Lease,
constitutes good and valuable consideration to Guarantor for this
Guaranty.
ARTICLE II.
AGREEMENT TO GUARANTEE
Section 2.1. Obligations, Guarantees.
a) Guarantor hereby irrevocably and unconditionally
guarantees to Landlord (i) the full and prompt payment when due of all
Fixed Rent and Additional Rent and any other sums due whether now
existing or hereafter incurred, of Tenant under the Lease with respect
to the initial Lease Term and any renewal or extension thereof, and (ii)
the full and prompt performance of every other obligation of Tenant
under the Lease pertaining to the initial Lease Term and any renewal or
extension thereof. Each and every default in payment of Fixed Rent
and/or Additional Rent under the Lease or any other sum due under the
Lease, or Tenant's failure to observe and perform any other obligation
of Tenant under the Lease, whether monetary or non-monetary, shall give
rise to a separate cause of action hereunder, and separate suits may be
brought hereunder as each cause of action arises.
b) Guarantor further agrees that this Guaranty
constitutes an absolute, unconditional, present and continuing guaranty
and waives any right to require that any resort be had by Landlord to
(i) any security paid under the Lease, and (ii) Landlord's rights
against any other person, or entity, including Tenant, or (iii) any
other right or remedy available to Landlord by contract, applicable law
or otherwise. It is the intent of this Guaranty that Landlord shall
have resort to Guarantor without resorting to any remedy against Tenant.
c) The performance and payments called for
hereunder shall become due and payable to Landlord within five (5) days
after Landlord, or its successors or assigns, shall provide Guarantor
with notice thereof given in the manner
-2-
<PAGE>
specified in Section 3.2 herein, stating that any of the guaranteed
obligations of Tenant described in Section 2.1(a) above have not been
timely fulfilled and remain outstanding.
Section 2.2. Obligations Unconditional. The obligations of
Guarantor under this Guaranty shall be absolute and unconditional. This
Guaranty is a guaranty of payment and performance and not of collection.
To the fullest extent permitted by law, the obligations of Guarantor
hereunder shall not be affected, modified, released or impaired by any
state of facts or the happening, from time to time, of any event,
including, without limitation, any of the following, whether or not with
notice to, or the consent of, Guarantor:
a) The invalidity, irregularity, illegality or
unenforceability of, or any defect in, the Lease;
b) The compromise, settlement, release, extension,
expansion, indulgence, change, modification or termination of any or all
of the obligations, covenants and agreements of Tenant;
c) The failure to give notice to Guarantor of the
occurrence of any default under the terms and provisions of the Lease;
d) The actual or purported assignment of any of
Landlord's and/or Tenant's obligations, covenants and agreements
contained in the Lease, or the assignment of Landlord's rights under
this Guaranty;
e) The waiver of the payment, performance or
observance by Tenant of the obligations, conditions, covenants or
agreement or any or all of them contained in the Lease;
f) The extension of time for the payment of any
Fixed Rent or Additional Rent or the performance of any other obligation
by Tenant under the Lease;
g) The modification or amendment (whether material
or otherwise but including, without limitation, any increase or decrease
in the amount of rental payable under the Lease) of any term, duty,
obligation, covenant or agreement set forth in the Lease;
h) The taking or the omission to take any action or
to pursue any right or remedy under the Lease;
i) The voluntary or involuntary commencement of any
case or proceeding under the Federal Bankruptcy Code or any state or
foreign bankruptcy,
-3-
<PAGE>
insolvency or similar statute affecting Tenant and/or Guarantor, the
liquidation, dissolution, merger, consolidation, sale or other
disposition of all or substantially all of the assets of Tenant and/or
Guarantor, the marshaling of the assets and liabilities, receivership,
insolvency, assignment for the benefit of creditors, the reorganization,
arrangement, composition with creditors, or readjustment of debts or
other similar events or proceedings, or the appointment of a receiver,
conservator, custodian or sequestrator for all or part of the property
of Tenant and/or Guarantor, or any allegation or contest of the validity
of this Guaranty or of the Lease in any such proceeding; it being
specifically understood, consented and agreed to that this Guaranty
shall remain and continue in full force and effect and shall be
enforceable against Guarantor to the same extent and with the same force
and effect as if such events and proceeding shall not have been
instituted; and it is the intent and purpose of this Guaranty that
Guarantor shall and does hereby waive all rights and benefits which
might accrue to Guarantor by reason of any such proceeding(s) or
case(s);
j) Any failure of Landlord to mitigate the damages
resulting from any defaults by Tenant under the Lease;
k) Any failure of Landlord to preserve any security
under the Lease; or
l) Any renewal or extension of the term of the
Lease, or any expansion of the Premises covered by the Lease.
Section 2.3. No Waiver of Set-Off; No Right to Jury Trial. No
act of commission or omission of any kind or at any time upon the part
of Landlord in respect of any matter whatsoever shall in any way impair
the rights of Landlord to enforce any right, power or benefit under this
Guaranty and no set-off, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature (other than performance
by Tenant of its obligations under the Lease) which Guarantor has or may
have against Landlord or any affiliate thereof, shall be available
hereunder to Guarantor. GUARANTOR HEREBY WAIVES THE RIGHT OF TRIAL BY
JURY IN THE EVENT OF ANY LITIGATION BETWEEN LANDLORD AND
GUARANTOR IN RESPECT OF ANY MATTER ARISING OUT OF THIS GUARANTY.
Section 2.4. Waiver of Notice; Expenses. Guarantor hereby
expressly waives notice from Landlord of its acceptance of, and reliance
on, this Guaranty. Guarantor agrees to pay all costs, fees, commissions
and expenses (including all reasonable attorney fees) which may be
incurred by Landlord in enforcing or attempting to enforce this Guaranty
following any default on the part of Guarantor hereunder, whether the
same shall be enforced by suit or otherwise. Guarantor hereby waives
presentment of any instrument, demand of payment, protest and notice of
non-payment or protest thereof.
-4-
<PAGE>
Section 2.5. Subordination of Subrogation and Other Claims.
Guarantor hereby expressly subordinates, to and until all of the
obligations of the Tenant under the Lease have been paid, performed or
satisfied, any and all rights of subrogation, reimbursement, indemnity,
exoneration, contribution, or any other claim which Guarantor may now or
hereafter have against Tenant or any other person directly or
contingently liable for the obligations guaranteed hereunder, or against
or with respect to Tenant's property (including, without limitation, any
of Tenant's property collaterallizing the obligations of Tenant to
Landlord), arising from the existence or performance of this Guaranty.
Section 2.6. COMMERCIAL TRANSACTION. GUARANTOR ACKNOWLEDGES
THAT THIS GUARANTY CONSTITUTES A COMMERCIAL TRANSACTION WITHIN
THE MEANING OF <section> 52-278A OF THE CONNECTICUT GENERAL
STATUTES. PROVIDED LANDLORD HAS PROVIDED GUARANTOR WITH THE
NOTICE REQUIRED IN SECTION 2.1 (c) HEREIN, PURSUANT TO <section> 52-278F
OF SAID CONNECTICUT GENERAL STATUTES, GUARANTOR HEREBY WAIVES
AND RELINQUISHES ALL RIGHTS TO NOTICE AND HEARING AS PROVIDED IN
<section> 52-278A THROUGH <section> 52-278G OF SAID CONNECTICUT
GENERAL STATUTES PRIOR TO LANDLORD OBTAINING ANY PREJUDGMENT
REMEDY AGAINST GUARANTOR OR TENANT IN CONNECTION WITH THE
ENFORCEMENT BY LANDLORD OF ANY OF ITS RIGHTS OR REMEDIES UNDER
THE LEASE OR THIS GUARANTY. IF SUMMARY PROCESS IS UTILIZED,
GUARANTOR ACKNOWLEDGES THAT TENANT HAS WAIVED ALL REQUIRED
NOTICES, PURSUANT TO <section> 47A-24 OF THE CONNECTICUT GENERAL
STATUTES, EXCEPT AS OTHERWISE SPECIFICALLY REQUIRED TO BE
DELIVERED TO TENANT UNDER THE LEASE.
ARTICLE III.
NOTICE OF SERVICE OR PROCESS
AND OTHER PAPERS
Section 3.1. Service of Process. Guarantor hereby designates
and appoints its General Counsel as agent of Guarantor upon whom may be
served all process, pleadings, notices or other papers which may be
served upon Guarantor as a result of any obligations under this
Guaranty.
Section 3.2. Notices. Any notice required to be sent to
Guarantor, or any notice including process, pleadings or other papers
served upon the foregoing agent shall at the same time be sent by United
States registered or certified mail, postage pre-paid, or by any
nationally recognized overnight delivery service, such as Federal
Express, to
-5-
<PAGE>
Guarantor at the address set forth above or to such other address as
Guarantor shall specify by delivery of notice as aforesaid to Landlord,
at the address stated at the outset, Attention: General Counsel, or at
such other address as Guarantor may specify to Landlord at Landlord's
then specified address. Notice shall be deemed delivered on the next
business day after deposit with a nationally recognized overnight
delivery service, or three (3) days after deposit, as aforesaid, in the
U.S. mail.
Section 3.3. Consent to Jurisdiction. Guarantor irrevocably
and unconditionally (a) agrees that any suit, action or other legal
proceeding arising out of this Guaranty may be brought in the court of
record in the State of Connecticut situated in Fairfield County or the
courts of the United States, District of Connecticut, (b) consents to
the jurisdiction of each such court and any such suit, action or
proceeding, and (c) waives any objection which it may have to the laying
of venue in any such suit, action or proceeding in any of such court.
Section 3.4. Continued Existence. Guarantor shall maintain its
existence throughout the term of the Lease and for so long thereafter as
any claim may be brought in connection with the Lease.
ARTICLE IV.
MISCELLANEOUS
Section 4.1. Guaranty to Become Effective.
(a) The obligations of Guarantor hereunder shall arise
absolutely and unconditionally upon the Effective Date (as defined in
the Lease). Guarantor and Landlord agree that, unless and until (i) the
Effective Date shall occur, or (ii) Landlord and Tenant shall otherwise
expressly agree, in writing, that the Lease shall be in force and
effect, this Guaranty shall be of no force and effect.
(b) Notwithstanding the provisions of (a) above, in the event
the Effective Date has not occurred on or before November 1, 1997 and
either Landlord or Tenant shall elect to terminate the Lease by the
delivery of a written notice of termination to the other party to the
Lease in the time and manner specified in Section 40 (b) of the Lease,
then (i) this Guaranty shall also be deemed to have been terminated
effective as of the date of the termination of the Lease, and (ii) the
Guarantor and Landlord shall thereafter have no further rights and
obligations to each other under this Guaranty of Lease.
Section 4.2. Remedies Not Exclusive. No remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of
any other available remedy given under this Guaranty or hereafter
existing at law or in equity. No delay or failure to exercise
-6-
<PAGE>
any right or power accruing upon any default, omission or failure of
performance hereunder shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. If
any provision contained in this Guaranty should be breached by Guarantor
and thereafter duly waived by Landlord, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any
other breach hereunder. No waiver, amendment, release or modification
of the Guaranty shall be established by conduct, custom or course of
dealing, but solely by an instrument in writing duly executed by
Landlord and Guarantor.
Section 4.3. Severability. The invalidity or unenforceability
of any one or more of the phrases, sentences, clauses or sections of
this Guaranty shall not affect the validity or enforceability of the
remaining portion of this Guaranty or any part hereof.
Section 4.4. Applicable Law. This Guaranty shall be governed
by and construed in accordance with the laws of the State of
Connecticut.
Section 4.5. Successors and Assigns. This Guaranty shall be
binding upon, and be enforceable against Guarantor and its respective
successors, legal representatives and assigns and shall inure to the
benefit of Landlord, its successors, legal representatives and assigns.
Section 4.6. Defined Terms. All capitalized terms used herein,
which are not otherwise defined herein, shall have, unless otherwise
defined, the definitions given to them in the Lease.
Section 4.7. Assignment. In the event Landlord shall assign
its rights and interest in and to the Lease to any successor owner of
the Premises, then Landlord may also assign this Guaranty to any such
successor owner of the Premises and any such assignment by Landlord of
its interest in and to this Guaranty shall not be deemed to release or
relieve Guarantor from any of its obligations or liability hereunder and
this Guaranty shall continue in full force and effect following any such
assignment by Landlord.
[No further text on this page]
-7-
<PAGE>
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of
the date first above written.
CROMPTON & KNOWLES CORP.,
a Massachusetts corporation
-------------------------
By:
--------------------------------
Name:
------------------------- Its: , duly authorized
STATE OF CONNECTICUT )
) ss.: Middlebury
COUNTY OF NEW HAVEN )
On this day of August 1997, personally appeared
before Timothy R. Carmody, Esq., the undersigned officer, CROMPTON &
KNOWLES CORP., a Massachusetts corporation, by Frank Manganella, its
duly authorized who acknowledged that he
signed, sealed and delivered the above and foregoing instrument as his
free act and deed and the free act and deed of said CROMPTON & KNOWLES
CORP., authorized by the Board of Directors of said corporation, for the
purposes therein stated.
--------------------------------------
Timothy R. Carmody, Esq.
Commissioner of the Superior Court
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
Form 10-Q for the period ended September 27, 1997 and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<CIK> 0000858905
<NAME> UNIROYAL CHEMICAL CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-27-1997
<PERIOD-END> SEP-27-1997
<CASH> 8,505
<SECURITIES> 0
<RECEIVABLES> 201,952
<ALLOWANCES> 5,176
<INVENTORY> 186,380
<CURRENT-ASSETS> 451,585
<PP&E> 639,338
<DEPRECIATION> 290,388
<TOTAL-ASSETS> 1,099,871
<CURRENT-LIABILITIES> 222,255
<BONDS> 865,860
0
0
<COMMON> 0
<OTHER-SE> (284,841)
<TOTAL-LIABILITY-AND-EQUITY> 1,099,871
<SALES> 921,497
<TOTAL-REVENUES> 921,497
<CGS> 554,856
<TOTAL-COSTS> 781,865
<OTHER-EXPENSES> (27,066)
<LOSS-PROVISION> 1,063
<INTEREST-EXPENSE> 72,713
<INCOME-PRETAX> 93,985
<INCOME-TAX> 35,740
<INCOME-CONTINUING> 58,245
<DISCONTINUED> 0
<EXTRAORDINARY> 2,846
<CHANGES> 0
<NET-INCOME> 55,399
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Form 10-Q
for the period ended September 27, 1997 and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<CIK> 0000862612
<NAME> UNIROYAL CHEMICAL COMPANY, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-27-1997
<PERIOD-END> SEP-27-1997
<CASH> 8,505
<SECURITIES> 0
<RECEIVABLES> 201,952
<ALLOWANCES> 5,176
<INVENTORY> 186,380
<CURRENT-ASSETS> 451,585
<PP&E> 639,338
<DEPRECIATION> 290,388
<TOTAL-ASSETS> 1,099,871
<CURRENT-LIABILITIES> 222,255
<BONDS> 865,860
0
0
<COMMON> 1
<OTHER-SE> (284,842)
<TOTAL-LIABILITY-AND-EQUITY> 1,099,871
<SALES> 921,497
<TOTAL-REVENUES> 921,497
<CGS> 554,856
<TOTAL-COSTS> 781,865
<OTHER-EXPENSES> (27,066)
<LOSS-PROVISION> 1,063
<INTEREST-EXPENSE> 72,713
<INCOME-PRETAX> 93,985
<INCOME-TAX> 35,740
<INCOME-CONTINUING> 58,245
<DISCONTINUED> 0
<EXTRAORDINARY> 2,846
<CHANGES> 0
<NET-INCOME> 55,399
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
