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-----BEGIN PRIVACY-ENHANCED MESSAGE-----
Proc-Type: 2001,MIC-CLEAR
Originator-Name: [email protected]
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<IMS-DOCUMENT>0000912057-94-000091.txt : 19940114
<IMS-HEADER>0000912057-94-000091.hdr.sgml : 19940114
ACCESSION NUMBER: 0000912057-94-000091
CONFORMED SUBMISSION TYPE: 10-K/A
PUBLIC DOCUMENT COUNT: 2
CONFORMED PERIOD OF REPORT: 19931031
FILED AS OF DATE: 19940113
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ADC TELECOMMUNICATIONS INC
CENTRAL INDEX KEY: 0000061478
STANDARD INDUSTRIAL CLASSIFICATION: 3661
IRS NUMBER: 410743912
STATE OF INCORPORATION: MN
FISCAL YEAR END: 1031
FILING VALUES:
FORM TYPE: 10-K/A
SEC ACT: 34
SEC FILE NUMBER: 000-01424
FILM NUMBER: 94501411
BUSINESS ADDRESS:
STREET 1: 4900 WEST 78TH ST.
CITY: MINNEAPOLIS
STATE: MN
ZIP: 55435
BUSINESS PHONE: 6129388080
FORMER COMPANY:
FORMER CONFORMED NAME: MAGNETIC CONTROLS CO
DATE OF NAME CHANGE: 19850605
</IMS-HEADER>
<DOCUMENT>
<TYPE>10-K/A
<SEQUENCE>1
<DESCRIPTION>10-K/A
<TEXT>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM 10-K/A
(Mark One)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended October 31, 1993
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the Transition period from ___________ to ___________
Commission File No. 0-1424
ADC Telecommunications, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Minnesota 41-0743912
- ----------------------------------------- ---------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4900 West 78th Street
Minneapolis, Minnesota 55435
- ----------------------------------------- ---------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 938-8080
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock,
$.20 par value
Common Stock
Purchase Rights
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
/X/ Yes / / No
The aggregate market value of voting stock held by nonaffiliates of
the registrant, as of December 15, 1993, was approximately $910,884,000 (based
on the last sale price of such stock as reported by the NASDAQ National Market
System).
The number of shares outstanding of the registrant's common stock,
$.20 par value, as of December 15, 1993, was 27,725,682.
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K (Section 229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K. / /
DOCUMENTS INCORPORATED BY REFERENCE
Pursuant to General Instruction G(3), the responses to Items 10, 11,
12 and 13 of Part III of this report are incorporated herein by reference to the
information contained in the Company's definitive proxy statement for its 1994
Annual Meeting of Shareholders to be filed with the Securities and Exchange
Commission on or before February 28, 1994.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ADC TELECOMMUNICATIONS, INC.
Dated: January 11, 1994 By: /s/ Robert E. Switz
------------------------
Robert E. Switz
Vice President, Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
William J. Cadogan* President, Chief Executive Officer,
Chief Operating Officer and Director
(principal executive officer)
By: /s/ Robert E. Switz Vice President,
-------------------- Chief Financial Officer
Robert E. Switz (principal financial officer)
By: /s/ Joan K. Berg Vice President, By: /s/ Joan K. Berg
------------------- Controller ----------------
Joan K. Berg (principal accounting officer) Joan K. Berg
Attorney-in-Fact*
Dated: January 11, 1994
Charles M. Denny, Jr.* Director
Thomas E. Holloran* Director
B. Kristine Johnson* Director
Charles W. Oswald* Director
Jean-Pierre Rosso* Director
Donald M. Sullivan* Director
Warde F. Wheaton* Director
John D. Wunsch* Director
* By Power of Attorney filed with this report as Exhibit 24-a hereto.
48
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>2
<DESCRIPTION>EXHIBIT 10-BB
<TEXT>
Exhibit 10-bb
LEASE
between
999 RESEARCH PARKWAY INC., as Landlord
and
AMERICAN LIGHTWAVE SYSTEMS, INC. as Tenant
Dated as of September 30, 1993
<PAGE>
TABLE OF CONTENTS
No. Description Page
- --- ----------- ----
1. Definitions 1
2. Premises 3
3. Design and Construction 3
4. Tenant's Contingency 6
5. Determination of Rentable Area 6
6. Parking 6
7. Rent 6
8. Possession 7
9. Use 7
10. Care of Building and Parking Area 7
11. Rules and Regulations 7
12. Environmental Laws; Compliance With Laws 7
13. Alterations 9
14. Utilities and Services 10
15. Entry by Landlord 11
16. Subordination; Landlord Defaults Under Other Documents 11
17. Estoppel Certificates 11
18. Assumption of Risks 12
19. Indemnification 12
20. Insurance 12
21. Waiver of Insurable Claims 13
22. Assignment and Subletting 13
23. Damage or Destruction 13
24. Eminent Domain 14
25. Defaults 14
26. Waiver of Lease Provisions 15
27. Return of Possession to Landlord 16
28. Holding Over 16
29. Expansion Option 16
30. Environmental Inspections 16
31. Building Name and Identification 17
32. Notices 17
33. Memorandum of Lease; Recordable Termination 17
34. Effect of Tenant Defaults 17
35. Broker's Commission 17
36. Governing Law 17
37. Entire Agreement 18
38. Successors and Assigns 18
39. Building Roof Rights 18
40. Meaning of "Other Tenants"; Effective Date 18
<PAGE>
TABLE OF EXHIBITS
A. Arbitration Procedures 19
B. Initial Office Premises; First Expansion Space
C. Land
D. Parking Area
E. Severable Property
F. Landlord's Work Letter
<PAGE>
LEASE
This Lease (referred to below as the "Lease") is entered into as of
______________, 1993, between 999 RESEARCH PARKWAY INC., a Connecticut
corporation ("Landlord"), and AMERICAN LIGHTWAVE SYSTEMS, INC., a Delaware
corporation ("Tenant").
1. DEFINITIONS. In this Lease:
"Arbitration" means an arbitration conducted in accordance with the arbitration
procedures set forth on Exhibit A attached to this Lease.
"Base Building Work" means the Building and all related improvements (including
the Building's grounds, parking lots, access roads, utility, storm sewer and
sanitary sewer lines, lighting, elevators and heating, ventilating and air
conditioning systems), exclusive only of the Tenant Improvements in the
Building, to be constructed pursuant to the Final Base Building Plans and
attached Exhibit F.
"Building" means the building to be constructed pursuant to this Lease in
Meriden, Connecticut, on the Land.
"Casualty" means a fire, explosion, tornado, or other cause of damage to or
destruction of the Building.
"Commencement Date" means the later of (1) March 15, 1994, or (2) the Monday
following the date that the Base Building Work is Substantially Complete.
"Excusable Delays" means any unforeseeable delays due to strikes or other labor
disturbance, civil disturbance, future order of any government, court or
regulatory body claiming jurisdiction, unavailability of materials or labor
through commercially reasonable sources, fire or any other cause beyond the
reasonable control of the party by whom performance is required and its
contractors and other representatives, other than a delay caused by a lack of
funds. An Excusable Delay will be deemed to exist only if the party required to
perform notifies the other party of the delay not later than 10 days after the
occurrence of the event that gives rise to the delay and will be deemed to
continue only so long as such party exercises due diligence to remove or
overcome it, except that a party will not be required to settle a strike or
other labor dispute when it does not wish to do so.
"Event of Default" is defined in Section 25 of this Lease.
"First Expansion Space" means the space in the Building identified on attached
Exhibit B.
"Final Base Building Plans" means the final plans and specifications for the
Base Building Work approved pursuant to Section 3 of this Lease, which will
consist of architectural, mechanical and electrical construction drawings and
related specifications.
"Final TI Plans" means the final plans and specifications for the Tenant
Improvements for the First Expansion Space approved pursuant to Section 3 of
this Lease, which will consist of architectural, mechanical and electrical
construction drawings and related specifications.
"Initial Office Premises" means the space in the Building identified as such on
attached Exhibit B.
"Initial Term" means the period commencing on the Commencement Date and ending
on the date 10 years after the Commencement Date; provided, however, that, if
the date 10 years after the
1
<PAGE>
Commencement Date is not the last day of a calendar month, then such ending date
will be the last day of the calendar month in which the date 10 years after the
Commencement Date occurs.
"Land" means the property in Meriden, Connecticut legally described on attached
Exhibit C.
"Lease" means this Lease, all Exhibits attached to this Lease, and all properly
executed amendments, modifications and supplements to this Lease.
"Market Rent" means the monthly base rent (expressed as an amount per square
foot of Rentable Area in the Office Premises) that the Landlord would receive as
of the commencement date of the term in question if it were to lease the space
in question pursuant to the terms of this Lease (except to the extent that this
Lease is inconsistent with the assumptions and requirements set forth below) to
a tenant with a credit standing comparable to that of Tenant; for a term equal
to the period in question; with a commencement date of the date in question; and
in "as is" condition (except, that with respect to the First Expansion Space, it
shall be assumed that the space in question has a tenant finish equivalent to
the Initial Tenant Improvements). In determining the "Market Rent", current
conditions in the marketplace for comparable transactions shall be considered,
including without limitation, tenant inducements, if and to the extent then a
part of market conditions, such as, but not limited to, buildout allowances or
work, free rent, financial inducements and credits for moving expenses. The
Market Rent shall be reduced to account for the value of such inducements, and
following such reduction, Landlord shall have no obligation make such payments
in cash. In determining Market Rent, appropriate consideration shall be given
to arms length lease transactions within comparable building located in the
Meriden, Connecticut area. For purposes of the determination of Market Rent it
shall be assumed that Landlord and Tenant are each ready, willing and able to
enter into such a lease but are under no compulsion to do so.
"Monthly Base Rent" means during the Initial Term, the product of $0.8333
multiplied by the Rentable Area of the Initial Office Premises, plus Monthly
Base Rent for the First Expansion Space if added to the Premises pursuant to
Section 29 of this Lease, as determined pursuant to such Section.
"Office Premises" means the Initial Office Premises and the First Expansion
Space, if added to the Premises pursuant to this Lease.
"Preliminary Base Building Plans" means the preliminary plans and specifications
for the Base Building Work approved pursuant to Section 3 of this Lease.
"Parking Area" means the portion of the Land to be used for parking purposes, as
shown on attached Exhibit D.
"Preliminary TI Plans" means the preliminary plans and specifications for the
Tenant Improvements for the First Expansion Space approved pursuant to Section 3
of this Lease.
"Premises" means the following:
(1) The Initial Office Premises;
(2) The First Expansion Space, if added to the Premises pursuant to this
Lease; and
(3) The portions of the Parking Area as to which Tenant has exclusive and
nonexclusive parking rights pursuant to this Lease and reasonable
nonexclusive vehicular and pedestrian access to such portions of the
Parking Area and the remainder of the Premises.
2
<PAGE>
"Punchlist Items" means details of construction, decoration and mechanical
adjustments to the work in question which are minor in character and do not
materially interfere with use of the improvements in question.
"Reference Rate" means the annual "Prime Rate" of Chase Manhattan Bank, or the
successor of such a rate, or if Chase Manhattan Bank no longer determines such a
rate or successor rate, then the reference or prime rate, successor rate or
similar rate determined by a similar banking or financial institution reasonably
selected by Landlord.
"Rent" means Monthly Base Rent and all other charges and costs expressly payable
by Tenant under this Lease.
"Rentable Area" means the number of square feet contained within the area
bounded by the exterior surface of the exterior walls and the center of the
interior demising walls, if any, of the space being measured. The Rentable
Areas of the Initial Office Premises, First Expansion Space and the Building are
stipulated to be as set forth on attached Exhibit B.
"Substantial Completion" means that the work in question is complete, subject
only to Punch List Items. Improvements that are to be occupied or used by
Tenant will not be considered substantially complete until a certificate of
occupancy (permanent or temporary) has been issued by the City of Meriden with
respect to such improvements.
"Substantial Completion Date" means March 15,1994.
"Section" means a section of this Lease.
"Severable Property" means the property described on attached Exhibit E.
"Taking" means acquisition by a public authority having the power of eminent
domain of all or part of the Building by condemnation or conveyance in lieu of
condemnation.
"Tenant Improvements" means leasehold improvements (but not including Tenant's
trade fixtures, furniture, equipment and personal property) to the Office
Premises.
"Term" means the period beginning on the Commencement Date and ending on the
later of the last day of the Initial Term.
"Untenantable" means that the space in question is unsafe for Tenant's intended
use of such space or is in such a condition that Tenant is unable to conduct
business in such space in a normal fashion without unreasonable inconvenience.
2. PREMISES Landlord leases the Premises to Tenant, and Tenant leases the
Premises from Landlord, for the Term, under the terms and conditions of this
Lease.
3. DESIGN AND CONSTRUCTION. The design and construction of the Base Building
Work and the Premises will be subject to the following requirements:
(a) PRELIMINARY BASE BUILDING PLANS. Landlord will submit the Preliminary
Base Building Plans to Tenant not later than September 15, 1993. Tenant
will approve or disapprove such Preliminary Base Building Plans by giving
written notice of such approval or disapproval to Landlord. The basis for
such disapproval will be within the sole discretion of Tenant. If Tenant
fails to object to the Preliminary Base Building Plans within 15 days after
receiving them from Landlord, such Preliminary Base Building Plans will be
deemed approved. If Tenant objects to such Preliminary Base Building
Plans, Tenant's notice will state in what
3
<PAGE>
particulars objections are made. If such objections are made within such
15 day period, Landlord will, within 15 days after receiving Tenant's
written objections, either (a) make such revisions as are appropriate to
meet Tenant's objections and submit such revisions to Tenant for Tenant's
approval (which will be deemed given if not given or withheld within 10
days after Tenant's receipt of such submittal) or (b) terminate this Lease
by written notice to Tenant, in which case neither party will have any
further obligations to the other party under this Lease.
(b) FINAL BASE BUILDING PLANS. Landlord will submit the Final Base
Building Plans to Tenant not later than 15 days after Tenant has finally
approved the Preliminary Base Building Plans, which Final Base Building
Plans will be substantially consistent with such Preliminary Base Building
Plans. Tenant will approve or disapprove such Final Base Building Plans by
giving written notice of such approval or disapproval to Landlord, which
approval will not be unreasonably withheld. If Tenant fails to object to
the Final Base Building Plans within 15 days after receiving them from
Landlord, such Final Base Building Plans will be deemed approved. If
Tenant objects to such Final Base Building Plans, Tenant's notice will
state in what particulars objections are made. If such objections are made
within such 15 day period, Landlord will, within 15 days after receiving
Tenant's written objections, make such revisions as are appropriate to meet
Tenant's objections and will submit such revisions to Tenant in the same
manner described above. Landlord will pay for the preparation of all
architectural, mechanical and electrical drawings and specifications
regarding the Base Building Work.
(c) PRELIMINARY TI PLANS. Tenant will submit the Preliminary TI Plans to
Landlord within 21 days after Tenant exercises its option for the First
Expansion Space. Landlord will approve or disapprove such Preliminary TI
Plans by giving written notice of such approval or disapproval to Tenant.
The basis for such disapproval will be within the sole discretion of
Landlord. If Landlord fails to object to the Preliminary TI Plans within
15 days after receiving them from Landlord, such Preliminary TI Plans will
be deemed approved. If Landlord objects to such Preliminary TI Plans,
Landlord's notice will state in what particulars objections are made. If
such objections are made within such 15 day period, Tenant will, within 15
days after receiving Landlord's written objections, either (a) make such
revisions as are appropriate to meet Tenant's objections and submit such
revisions to Landlord for Landlord's approval (which will be deemed given
if not given or withheld within 10 days after Landlord's receipt of such
submittal); or (b) terminate this Lease, in which case neither party will
have any further obligations to the other party under this Lease.
(d) FINAL TI PLANS. Landlord will submit the Final TI Plans to Tenant not
later than 15 days after Landlord has approved the Preliminary TI Plans,
which Final TI Plans will be substantially consistent with the Preliminary
TI Plans. Tenant will approve or disapprove such Final TI Plans by giving
written notice of such approval or disapproval to Landlord, which approval
will not be unreasonably withheld. If Tenant fails to object to the Final
TI Plans within 15 days after receiving them from Landlord, such Final TI
Plans will be deemed approved. If Tenant objects to such Final TI Plans,
Tenant's notice will state in what particulars objections are made. If
such objections are made within such 15 day period, Landlord will, within
15 days after receiving Tenant's written objections, make such revisions as
are appropriate to meet Tenant's objections and will submit such revisions
to Tenant in the same manner described above. Landlord will pay for the
preparation of all architectural, mechanical and electrical drawings and
specifications regarding the Initial Tenant Improvements.
(e) CONSTRUCTION SCHEDULE. Landlord will proceed with the construction of
the Base Building Work with due diligence and continuity in an effort to
reach Substantial
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Completion thereof on or before the Substantial Completion Date, in
accordance with all applicable codes, rules, laws and regulations
substantially in accordance with the Final Base Building Plans and of a
quality that is consistent with the construction of such work in other
first-class high quality investment grade office/production buildings in
the Meriden, Connecticut area. If, subject to Excusable Delay, Landlord
does not Substantially Complete the Base Building Work on or before April
30, 1994, Tenant's Monthly Base Rent will be abated by 1/30 for each day of
delay in such completion after such date. If, notwith-standing the
existence of Excusable Delay, Landlord does not substantially complete the
Base Building Work on or before June 1, 1994, Tenant will have the right to
terminate this Lease by giving written notice to Landlord on or before the
earlier of 30 days after such date or the date of such completion.
(f) CONTRACTORS. Landlord will provide Tenant with a written list of the
major trade contractors that will install the elevators, the heating,
ventilating and air conditioning systems and the Tenant Improvements.
Tenant will have the right to approve or disapprove of such contractors by
giving written notice of such approval or disapproval to Landlord, which
approval will not be unreasonably withheld. If Tenant fails to object to
such list within 10 days after receiving such list from Landlord, such list
will be deemed to have been approved. If Tenant objects to any contractor
on such list, Tenant's notice will state on what basis such objection is
made and Landlord will, within 10 days after such objection, submit the
name of a replacement contractor to Tenant for approval in the same manner
described above.
(g) UPDATES. Landlord will, prior to commencement of construction, submit
a reasonably detailed, written construction schedule to Tenant and will, at
least every two weeks, notify Tenant in writing of the progress of
construction in reasonable detail. Landlord also agrees to promptly
provide to Tenant such other information as Tenant may from time to time
reasonably request regarding the progress of the project. Landlord will
notify Tenant of Landlord's estimate of the Substantial Completion Date at
least 30 days prior to such estimated Substantial Completion Date.
Landlord acknowledges that Tenant will rely upon such estimated Substantial
Completion Date in order to make arrangements for Tenant's move-in to the
Premises. If the actual Substantial Completion Date does not in fact occur
on such estimated Substantial Completion Date, Landlord agrees to reimburse
(up to $25,000.00) Tenant on the actual Commence-ment Date for any
additional moving costs (including mover cancellation charges) incurred by
Tenant as a result of the delay.
(h) LEASE SUPPLEMENT. Within 60 days after the Commencement Date,
Landlord and Tenant will execute an agreement supplementing this Lease,
setting forth the Commencement Date.
(i) PUNCH LIST ITEMS. Landlord will commence completion or correction of
Punch List Items promptly and will diligently pursue and complete them
within 30 days after Substantial Completion, or if completion of Punch List
Items cannot by their nature be completed within 30 days, Landlord will
advise Tenant of the reasons for the delay and will commence and diligently
pursue completion.
(j) CERTIFICATE OF OCCUPANCY. If Landlord has obtained a temporary
Certificate of Occupancy for the Base Building Work, Landlord will, with
due diligence, complete the remaining work required to obtain, and will
obtain, a permanent Certificate of Occupancy for the Base Building Work;
provided, however, that if the City of Meriden will not issue a permanent
Certificate of Occupancy until tenant improvements in the First Expansion
Space are completed, then Landlord will not be obligated to obtain such
permanent Certificate of Occupancy until the tenant improvements in the
First Expansion Space are completed.
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(k) ARBITRATION. Any dispute between Landlord and Tenant under this
Section 3 may be submitted by either party to Arbitration pursuant to
attached Exhibit A at any time.
4. TENANT'S CONTINGENCY. Tenant may terminate this Lease by written notice to
Landlord if (a) Landlord has not, on or before September 1,1993, provided a copy
to Tenant of a fully executed commitment for financing binding a reputable
lender or lenders to lend not less than the cost of constructing the Building or
(b) Tenant determines that such commitment has been terminated.
5. DETERMINATION OF RENTABLE AREA. The Rentable Area of all areas as to which
a Rentable Area determination is required and is not otherwise stipulated to
under the terms of this Lease will be determined in accordance with this Lease
by a licensed architect or engineer selected by Landlord, who will deliver to
Landlord and Tenant an appropriate certificate prior to the date such
determination becomes necessary under this Lease. Each such certificate will be
conclusive unless objected to by Landlord or Tenant by written notice to the
other party given within 10 days after receipt of the certificate. If, within
30 days after delivery of such objection, Landlord and Tenant cannot agree,
either party may submit the matter to Arbitration; provided, however, that
notwithstanding the existence of any such objection notice or Arbitration, until
such objection or Arbitration is resolved, Rent will be determined on the basis
of such certificate, and, upon such resolution, Landlord and Tenant will make
appropriate cash adjustments between them.
6. PARKING. The following provisions will apply to parking on the Land:
(a) Tenant (and its employees, invitees and subtenants) will have the
exclusive right, at no additional cost, to use the parking spaces situated
on the portion of the Parking Area marked in crosshatch on attached Exhibit
D and may install signs designating such parking spaces as "reserved"
generally or "reserved" for specific persons.
(b) Tenant will have the nonexclusive right, together with Landlord's
employees and tenants to use, at no additional cost, the parking spaces
situated on the portion of the Parking Area marked in hatch on attached
Exhibit D.
7. Rent.
(a) MONTHLY RENT.
Tenant will pay the Monthly Base Rent to Landlord at such place in the
United States as Landlord may designate by at least 10 days' prior written
notice to Tenant, in advance on the first day of each month during the
Term, without demand, deduction or setoff, except as otherwise expressly
provided in this Lease. Monthly Base Rent will begin on the Commencement
Date, except as otherwise stated in this Lease. Notwithstanding any other
provision of this Lease, Tenant may, without waiving any of its rights
under this Lease and without paying rent or any cost, take possession of
any portions of the Premises that are substantially complete prior to
Substantial Completion of all of the Base Building Work, but only to the
extent that such possession will not unreasonably interfere with
Substantial Completion of the Base Building Work and is not otherwise
prohibited by law.
(b) LATE PAYMENTS.
Any Rent which is not paid within 10 days after notice of such default is
given by Landlord to Tenant will bear interest from the date due to the
date paid at an annual rate equal to the Reference Rate, plus 2 percentage
points per annum, or the maximum rate of interest permitted by law,
whichever is less, and the interest will be paid to Landlord on demand;
provided, however, that Landlord shall have no obligation to deliver more
than one such notice during each calendar year of the Term, so that
following delivery by Landlord of one
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such notice during a calendar year, such interest will apply with respect
to Tenant's failure to pay a required payment within 10 days after any
subsequent due date during such calendar year, regardless of Tenant's
receipt of a default notice from Landlord. All amounts to be paid by
Tenant to Landlord under this Lease will be deemed to be additional rent
for purposes of payment and collection.
8. POSSESSION. If Tenant pays the Rent and performs all of Tenant's
obligations under this Lease, Landlord promises that Tenant will peaceably and
quietly possess and enjoy the Premises under this Lease.
9. USE. Tenant may use the Premises for office, research and development
and/or light manufacturing purposes and uses related thereto. Tenant will not
commit or permit any act or omission that results in the violation of any law,
governmental regulation, or insurance policy of Landlord relating to the
Building, or which will increase the insurance rates on the Building (unless
Tenant elects to pay such increase). Tenant will not permit any conduct or
condition that may unduly disturb or endanger other occupants of the Building.
10. CARE OF BUILDING AND PARKING AREA.
(a) LANDLORD'S OBLIGATIONS. Landlord will, (at Landlord's sole expense,
in a manner generally consistent with the maintenance and repair of similar
properties in the Meriden, Connecticut area) subject to the provisions of
Section 10(b) below, maintain and repair, during the first year of the
Term, (i) the Parking Area, (ii) all other improvements on the Land, (iii)
elevators, (iv) heating, ventilating and air conditioning systems, (v) the
landscaping and (vi) the Office Premises and the Building, and after the
first year of the Term, perform structural repairs to and preserve the
weather integrity of the Office Premises and the Building, except to the
extent such repairs or need for preservation are caused by the negligence
of Tenant or its agents. Landlord shall pass through to Tenant all
warranties issued by the manufacturer and/or installer of the heating,
ventilating and air conditioning systems. If Landlord fails to so perform
after receiving from Tenant reasonable notice and a reasonable period
within which to cure such default (except that, in an emergency, Tenant
need not provide such notice or period to cure), Tenant may perform
Landlord's obligations and charge the costs to Landlord (plus interest on
such charges from the date the charges are incurred by Tenant, at the rate
set forth in Section 7(b) of this Lease). Tenant shall be entitled to
setoff such costs and interest against Rent as provided in Section 25(b).
(b) TENANT'S OBLIGATIONS. After the first year of the Term, Tenant will
assume the repair and maintenance obligations of Landlord as described for
the first year of the Term, in the first sentence of Section 10(a) above.
Tenant will also pay as and when due and payable all installments of real
estate taxes and special assessments upon the Land and the Building.
Tenant shall obtain and pay for its own janitorial and garbage removal
services.
11. RULES AND REGULATIONS. Landlord and Tenant will, prior to the Commencement
Date, agree upon reasonable written rules and regulations governing the use of
the Parking Area and other common areas of the Building.
12. ENVIRONMENTAL LAWS; COMPLIANCE WITH LAWS.
(a) ENVIRONMENTAL LAWS.
(i) To the best of Landlord's knowledge, and except as may be
disclosed to Tenant in the environmental assessment obtained by Tenant
in April 1991 and July 1993
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Landlord warrants to Tenant that no toxic or hazardous substances or
wastes, pollutants or contaminants, including, without limitation,
asbestos, radon, urea formaldehyde, the group of organic compounds
known as polychlorinated biphenyls, petroleum products including
gasoline, fuel oil, crude oil and various constituents of such
products, and any hazardous substance as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. Section 9601-9657, as amended ("Hazardous
Substances"), have been or will be generated, treated, stored,
released or disposed of, or otherwise placed, deposited in or located
on the Building or the Land, nor has any activity been undertaken nor
will any such activity be undertaken on the Building or the Land that
would cause or contribute to (A) the Building or the Land to become a
treatment, storage or disposal facility within the meaning of, or
otherwise bring the Building or the Land within the ambit of, the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C
6901 et seq., or any similar state law or local ordinance, (B) a
release or threatened release of Hazardous Substances from the
Building or the Land within the meaning of, or otherwise bring the
Building or the Land within the ambit of, CERCLA, or any similar state
law or local ordinance, or (C) the discharge of pollutants or
effluents into any water source or system, the dredging or filling of
any waters or the discharge into the air of any emissions, that would
require a permit under the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq., or the Clean Air Act, 42 U.S.C. Section
7401 et seq., or any similar state law or local ordinance. Landlord
further warrants to Tenant that to the best of Landlord's knowledge,
and except as may be disclosed to Tenant in the environmental
assessment obtained by Tenant in April 1991 and July 1993 there are no
substances or conditions in or on the Building or the Land that may
support a claim or cause of action under RCRA, CERCLA or any other
federal, state or local environmental statutes, regulations,
ordinances or other environmental regulatory requirements. Landlord
further warrants to Tenant that to the best of Landlord's knowledge,
and except as may be disclosed to Tenant in the environmental
assessment obtained by Tenant in April 1991 and July 1993 no above
ground or underground tanks are located in or about the Land, or have
been located under, in or about the Land and have subsequently been
removed or filled.
(ii) Landlord and Tenant agree that they will not, under any
circumstances, cause or permit any Hazardous Substance to be used,
generated, handled, possessed, stored or disposed of on or within the
Building or in, upon or under the Land, or any part or parts thereof,
except for Hazardous Substances ordinarily used, generated, handled,
possessed, stored or disposed of in connection with their operations
or with building and common area maintenance if they are so used,
generated, handled, possessed, stored or disposed of in conformance
with all applicable laws and regulations ("Permitted Hazardous
Substances").
(iii) In the event that either Landlord or Tenant discovers or is
informed that a Hazardous Substance (other than a Permitted Hazardous
Substance) exists in the Building or upon the Land, Landlord or
Tenant, as the case may be, will immediately notify the other party to
this Lease in writing of such discovery or information. Landlord will
promptly take all acts necessary or required to prevent danger or harm
to the Tenant's employees and invitees, and to comply with all
applicable provisions of any federal, state or local law, statute,
code, ordinance, rule, regulation or requirement relating to such
Hazardous Substance; provided, however, that, if the Hazardous
Substance exists as the result of the acts of Tenant, Tenant will
promptly take all acts necessary or required to prevent danger or harm
to Tenant's employees and invitees and Landlord and Landlord's
tenants, employees and invitees, and to comply with all applicable
provisions of any federal,
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state or local law, statute, code, ordinance, rule, regulation or
requirement relating to such Hazardous Substance.
(iv) In the event that, and for so long as, there exists any danger
of harm to the employees or invitees of Tenant arising from Hazardous
Substances (other than Hazardous Substances (if any) disclosed in the
environmental assessment obtained by Tenant in April 1991 and July
1993) that have not been generated by Tenant or its subtenants, agents
or employees, as determined by public authorities, Tenant may vacate
the Premises or any affected portion of the Premises and all Rent due
under this Lease will abate from the date of such vacation, in
proportion to the space vacated, until the danger or harm is removed.
If Landlord cannot remove such danger or harm to the satisfaction of
the public authorities within 180 days of a vacation of the Premises
by Tenant pursuant to this subsection, Tenant may, within 30 days
after the expiration of such 180 day period, terminate this Lease by
written notice to Landlord given at any time prior to such removal.
(v) Landlord will indemnify, defend and hold Tenant and its agents,
employees, successors and assigns free and harmless from any claims,
damages, losses or liabilities arising from or in connection with any
breach of the warranties, representations or covenants set forth in
this Section, whether such claims, damages, losses or liabilities
arise during or after the Term of this Lease, except for claims,
damages, losses or liabilities arising from Hazardous Substances
brought into the Building or the Land by Tenant or its employees or
invitees (as to which Tenant will indemnify, defend and hold Landlord
harmless). Landlord's and Tenant's obligations under this subsection
to indemnify and hold each other harmless will survive the expiration
or earlier termination of this Lease. (The foregoing agreements are
intended to constitute indemnity agreements within the meaning of
Section 9607(e)(1) of the Comprehensive Environmental Response,
Compensation and Liability Act Of 1980 (42 USC 9607(e)(1)), but
nothing in that Act will be deemed to vitiate or limit, either
directly or indirectly, the obligations of the parties under this
Lease).
(vi) No expense of Landlord in complying with its obligations under
this Section 12(a) will be deemed an expense reimbursable to Landlord
by Tenant.
(b) COMPLIANCE WITH LAWS.
Subject to the provisions of Section 12(a) above, Tenant will, at its
expense, promptly comply with all laws, ordinances, rules, orders,
regulations, directives and other requirements of governmental authorities
("Governmental Requirements") now or subsequently pertaining to its use of
the Office Premises. Subject to the provisions of Section 12(a) above,
Landlord will, at its expense, comply with all other Governmental
Requirements pertaining to the Building and the Land.
13. ALTERATIONS. Tenant may, at its expense, make additions to and alterations
of the Office Premises, provided that: (a) such work shall be expeditiously
completed in a good and workmanlike manner and in compliance with all applicable
legal requirements and the requirements of all insurance policies maintained by
Landlord with respect to the Building; and (b) no structural alterations shall
be made or demolitions conducted in connection therewith having an estimated
cost of completion in excess of $10,000 unless Tenant shall have first notified
Landlord in writing thereof and Landlord shall have approved such alterations
and demolitions by written notice to Tenant, which approval will not be
unreasonably withheld and will be deemed given if not withheld by written notice
given to Tenant within 10 days after Landlord receives Tenant's written request
for such approval. All such additions and alterations shall, without
consideration, be and
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remain part of the realty and the property of Landlord, except to the extent
that they constitute Severable Property under this Lease (which Severable
Property will be removed by Tenant on or before the last day of the Term).
Tenant will promptly pay and discharge any mechanic's, materialmen's or other
lien against the Building or the Land resulting from Tenant's failure to make
such payment, or will contest the lien. Tenant will immediately notify Landlord
of any claim of lien or other action of which it has knowledge which relates to
any improvements in the Premises made by Tenant or at its direction. If a lien
is claimed, Tenant shall either cause it to be removed or contested within 10
days after notice from Landlord to do so. If Tenant fails to remove or contest
the lien within the 10-day period, Landlord may take such action as it deems
necessary to remove the lien, and the entire cost to Landlord in removing the
lien will immediately be due and payable by Tenant to Landlord. If Tenant
contests the lien, it will do so at its expense and will indemnify Landlord
against any claim, loss, demand and legal expense relating to any labor or
material furnished to the Premises at the request or direction of Tenant. If
Tenant elects to contest the lien, it must promptly notify Landlord and Landlord
may elect by written notice to Tenant to require Tenant to either (a) post a
bond or a letter of credit for the benefit of Landlord, the form and issuer of
which bond or letter of credit will be subject to the reasonable approval of
Landlord and the amount of which bond or letter of credit will equal not less
than 150% of the amount of the lien, or (b) provide Landlord with such other
reasonable assurances or security as may be required by Landlord, in its sole
discretion, to protect Landlord against the loss of any interest in the Land or
Building. If the lien is reduced to final judgment, Tenant will discharge the
judgment. Landlord may post notices of nonresponsibility on the Premises as
provided by law.
14. UTILITIES AND SERVICES.
(a) The following utilities and services will be provided by Landlord to
the Premises:
(i) NATURAL GAS. Landlord will cause natural gas service to be
supplied to the Office Premises and will supply, at Landlord's
expense, a separate meter or meters as to the Office Premises
(including expansions thereof). Tenant will pay to the natural gas
supplier the cost of all natural gas consumed by Tenant in the Office
Premises.
(ii) ELECTRICITY. Landlord will cause to be supplied electrical
system capacity to the Office Premises for connected load of 5 watts
per square foot for general office lighting and for miscellaneous
power and general office equipment and will install, at Landlord's
expense, a separate meter or meters as to the Office Premises
(including expansions thereof). Landlord will also cause to be
supplied, at Landlord's expense, electricity for lighting of the
Parking Area. Tenant will pay to the electricity supplier the cost of
all electricity consumed by Tenant in the Office Premises and the
Parking Area.
(iii) WATER AND SEWER. Landlord will cause hot and cold water and
sewer service to be supplied to the Office Premises for ordinary
laboratory, drinking, lavatory, toilet and kitchen/cafeteria purposes,
and for other uses typical of an office/production tenant and will
supply, at Landlord's expense, a separate meter or meters as to the
Office Premises (including expansions thereof). Tenant will pay to
the water/sewer supplier the cost of all water consumed and waste
discharged by Tenant in the Office Premises.
(iv) ACCESS. Landlord will provide Tenant with access to the
Premises, 24 hours per day, 365 days per year, except when access is
prohibited by law.
(v) INTERRUPTIONS. Landlord will not be liable for any loss or
damage resulting from any temporary interruption of the above
utilities and services due to repairs,
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alterations or improvements, or any variation, interruption or failure
of these services, except where caused by Landlord's negligence.
Landlord will use reasonable efforts to notify Tenant in advance of
any temporary interruption of service.
(b) The following services will be provided by Tenant to the Premises:
(i) HVAC AND ELECTRICAL SYSTEM MAINTENANCE. After the first
anniversary of the Commencement Date, Tenant will engage a qualified
contractor or qualified service personnel to maintain a preventative
maintenance program for the Building HVAC systems and the Building
electrical distribution system network. During the first year after
the Commencement Date, Landlord agrees to respond promptly to any
request by Tenant for HVAC repairs or adjustments.
(ii) SECURITY. Tenant will provide building security for the
Building in a manner consistent with that provided as to similar
buildings in the Meriden, Connecticut area. Such security will be
coordinated on a reasonable basis with Tenant's own security force, if
Tenant chooses to have one. Tenant may install its own security