Exhibit 10.1
LEASE
BY AND BETWEEN
CEDAR MARLBORO REALTY CORPORATION
("Landlord")
AND
SMTEK NEW ENGLAND, INC.
("Tenant")
OF PREMISES LOCATED AT
000 XXXXX XXXX XXXX
XXXXXXXXXXX, XXXXXXXXXXXXX
TABLE OF CONTENTS
ARTICLE PAGE
1 TERMS....................................................................1
2 COMMENCEMENT AND EXPIRATION DATES........................................2
3 PAYMENT OF RENT..........................................................2
4 SECURITY DEPOSIT.........................................................2
5 USES.....................................................................3
6 LATE CHARGES.............................................................5
7 REPAIRS AND MAINTENANCE..................................................6
8 UTILITIES AND SERVICE....................................................7
9 COST OF SERVICES AND UTILITIES...........................................8
10 PROPERTY TAXES...........................................................9
11 PERSONAL PROPERTY TAXES.................................................11
12 LIABILITY INSURANCE.....................................................11
13 FIRE INSURANCE?FIXTURES AND EQUIPMENT...................................12
14 DESTRUCTION AND DAMAGE..................................................12
15 ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURES.........................14
16 ACCEPTANCE OF PREMISES..................................................15
17 TENANT IMPROVEMENTS.....................................................15
18 ACCESS..................................................................15
19 WAIVER OF SUBROGATION...................................................16
20 INDEMNIFICATION.........................................................16
21 ASSIGNMENT AND SUBLETTING...............................................16
22 ADVERTISING.............................................................19
23 LIENS...................................................................19
24 DEFAULT.................................................................19
25 SUBORDINATION...........................................................22
26 SURRENDER OF POSSESSION.................................................22
27 NON-WAIVER..............................................................23
28 HOLDOVER................................................................23
29 CONDEMNATION............................................................23
30 NOTICES.................................................................23
31 MORTGAGEE PROTECTION....................................................23
32 COSTS AND ATTORNEYS' FEES...............................................24
33 BROKERS.................................................................24
34 LANDLORD'S LIABILITY....................................................24
35 ESTOPPEL CERTIFICATES...................................................25
36 FINANCIAL STATEMENTS....................................................25
37 TRANSFER OF LANDLORD'S INTEREST.........................................26
38 RIGHT TO PERFORM........................................................26
39 SALES AND AUCTIONS......................................................26
40 NO ACCESS TO ROOF.......................................................26
41 SECURITY................................................................26
42 AUTHORITY OF TENANT.....................................................27
43 NO ACCORD OR SATISFACTION...............................................27
44 MODIFICATIONS FOR LENDER................................................27
45 TENANT'S PROPERTY.......................................................27
46 EXTERIOR SIGNS AND INSTALLATIONS........................................27
47 INTENTIONALLY DELETED...................................................27
48 FLOOR LOAD ? HEAVY MACHINERY............................................28
49 LANDLORD'S DEFAULT......................................................28
50 TENANT'S RISK...........................................................28
51 GENERAL PROVISIONS......................................................28
52 RULES AND REGULATIONS...................................................30
53 PARKING.................................................................30
54 OPTION TO EXTEND........................................................30
55 INTENTIONALLY DELETED...................................................31
56 LANDLORD'S INSURANCE...................................................32
57 LANDLORD'S REPRESENTATIONS AND COVENANTS AS TO HAZARDOUS
MATERIALS...............................................................32
58 ADDITIONAL LANDLORD REPRESENTATIONS AND WARRANTIES......................32
59 LANDLORD'S AUTHORITY....................................................33
LIST OF EXHIBITS
EXHIBIT A-1 Current Existing Site Plan
EXHIBIT B Current Rules and Regulations
LEASE SUMMARY SHEET
1. LANDLORD: Cedar Marlboro Realty Corporation
Managing Agent:
Cedar Marlboro Realty Corporation
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xx 00000
2. TENANT: SMTEK New England, Inc.
3. PREMISES: 69,376 Square feet
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxxx, Xx.
4. TERM OF LEASE: Eight (8) Years and commencing November 1,
2001 and terminating on October 31, 2009.
5. RENT:
BEGIN RENT ANNUAL MONTHLY
YEAR SQ. FT. DATE PSF RENT RENT
YEAR 1 69,376 NOV-01 $5.65 392,092 $32,674
YEAR 2 69,376 NOV-02 $5.90 409,436 $34,120
YEAR 3 69,376 NOV-03 $6.15 426,662 $35,555
YEAR 4 69,376 NOV-04 $6.97 483,235 $40,270
YEAR 5 69,376 NOV-05 $7.27 504,269 $42,022
YEAR 6 69,376 NOV-06 $7.59 526,354 $43,863
YEAR 7 69,376 NOV-07 $7.97 552,672 $46,056
YEAR 8 69,376 NOV-08 $8.36 580,306 $48,359
6. APPORTIONMENT FACTOR: 100 %
7. GUARANTOR: SMTEK International, Inc.
8. SECURITY DEPOSIT: $57,619.00
LEASE
THIS LEASE is made this 1st day of November 2001, by and between Cedar
Marlboro Realty Corporation ("Landlord"), of 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, 00000, and SMTEK New England, Inc. ("Tenant"), of 000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxxx, Xx 00000 Upon the execution of this Lease, any and
all prior leases regarding the premises shall become null and void.
RECITALS:
Landlord, for and in consideration of the rents and all other charges and
payments hereunder and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, leases to Tenant, and
Tenant hereby hires and takes from Landlord, the premises described below
("Premises"), subject to all matters hereinafter set forth and upon and
subject to the covenants, agreements, terms, provisions and conditions of this
Lease for the term hereinafter stated.
NOW THEREFORE Landlord and Tenant agree to the following, unless
otherwise specifically modified by provisions of this Lease:
1. TERMS.
1.1 PREMISES. The Premises consist of approximately 69,376 square
feet located at the building at 000 Xxxxx Xxxx Xxxx, Xxxxxxxxxxx, Ma.,
("Building") and land area shown on Exhibit A-1 Existing Site Plan, attached
hereto and incorporated herein by reference. Tenant shall have appurtenant to
the Premises the non-exclusive right to use, and permit its invitees to use,
the access driveways, if any, to the Premises.
1.2 AGREED AREAS.
Building Rentable Area: 69,376 sq. ft.;
Premises Rentable Area: 69,376 sq. ft.;
Apportionment Factor: 100%
1.3 LEASE TERM. The lease begins on November 1, 2001 and terminates
on October 31, 2009 ("Term").
1.4 BASE RENT. (a) The basic rent ("Base Rent") for the Term is to be
paid in monthly installments based on the following schedule:
BEGIN RENT ANNUAL MONTHLY
YEAR SQ. FT. DATE PSF RENT RENT
YEAR 1 69,376 NOV-01 $5.65 392,092 $32,674
YEAR 2 69,376 NOV-02 $5.90 409,436 $34,120
YEAR 3 69,376 NOV-03 $6.15 426,662 $35,555
YEAR 4 69,376 NOV-04 $6.97 483,235 $40,270
YEAR 5 69,376 NOV-05 $7.27 504,269 $42,022
YEAR 6 69,376 NOV-06 $7.59 526,354 $43,863
YEAR 7 69,376 NOV-07 $7.97 552,672 $46,056
YEAR 8 69,376 NOV-08 $8.36 580,306 $48,359
In addition to the Base Rent, Tenant shall pay the Additional Rent
described in Section 9, the Property Taxes as described in Section 10, and all
other charges due from Tenant hereunder, all of which shall be deemed Rent due
under this Lease.
1.5 RENT PAYMENTS. All payments of Rent shall be made to Cedar
Marlboro Realty Corporation, 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xx. 00000 .
2. COMMENCEMENT AND EXPIRATION DATES.
2.1 LEASE TERM. The term of this Lease shall be as set forth in
Section 1.3.
2.2 LEASE COMMENCEMENT DATE. This Lease shall commence on November 1,
2001.
3. PAYMENT OF RENT. Tenant shall pay Landlord the Base Rent and
Additional Rent (as defined in Section 9) and any other payments due under
this Lease without prior notice, deduction or offset, in lawful money of the
United States in advance on or before the first day of each month, except that
the first month's Base Rent shall be paid upon the execution hereof, at the
address noted in Section 1.5, or to such other party or at such other place as
Landlord may hereafter from time to time designate in writing. Base Rent,
Additional Rent and other amounts due under this Lease for any partial month
at the beginning or end of the Lease Term shall be pro rated.
4. SECURITY DEPOSIT AND GUARANTY.
4.1 SECURITY DEPOSIT: $57,619.00.
4.2 GUARANTY: A Guaranty executed by SMTEK INTERNATIONAL, INC. dated
as of the Lease Date hereof shall remain in full force during the Lease Term.
5. USES.
5.1 PERMITTED USES. The Premises are to be used only for design,
manufacturing, and testing of electronic assemblies, office uses, sales and
marketing, and uses customarily accessory thereto ("Permitted Use") and for no
other business or purpose without the prior written consent of Landlord.
5.2 HAZARDOUS MATERIALS.
5.2.1. As used herein, the term "Hazardous Material" shall
mean any substance or material which has been determined by any state, federal
or local governmental authority to be capable of posing a risk of injury to
health, safety or property, including all of those materials and substances
designated as hazardous or toxic by the Massachusetts Department of
Environmental Protection, the U.S. Environmental Protection Agency, the
Consumer Product Safety commission, the Food and Drug Administration, or any
other governmental agency now or hereafter authorized to regulate materials
and substances in the environment.
5.2.2 Tenant agrees not to introduce any Hazardous Material
in, on or adjacent to the Premises without complying with all applicable
federal, state and local laws, rules, regulations, policies and authorities
relating to the storage, use or disposal, and clean-up of Hazardous Materials,
including, but not limited to, the obtaining of proper permits.
5.2.3 Tenant shall immediately notify Landlord of any inquiry,
test, investigation, or enforcement proceeding by or against Landlord or the
Premises concerning a hazardous Material caused by any act or failure to act
by the Tenant, its employees, officers, directors, shareholders, agents,
independent contractors or guests (collectively, the "Tenant Parties"). Tenant
acknowledges that Landlord, as the owner of the Premises, shall have the
right, at its election, in its own name or as Tenant's agent, to negotiate,
defend, approve, and appeal, at Tenant's expense, any action taken or order
issued with regard to a Hazardous Material by an applicable governmental
authority.
5.2.4 If Tenant's storage, use or disposal of any Hazardous
Material in, on or adjacent to the Premises results in any contamination of
the Premises, the soil or surface or groundwater (i) requiring remediation
under federal, state or local statues, ordinances, regulations or policies, or
(ii) at levels which are unacceptable to Landlord, in Landlord's reasonable
judgment, Tenant agrees to clean-up the contamination. Tenant further agrees
to indemnify, defend and hold Landlord harmless from and against any claims,
suits, causes of action, costs, fees, including attorneys' fees and costs,
arising out of or in connection with any clean-up work, inquiry or enforcement
proceeding in connection therewith, and any Hazardous materials currently or
hereafter used, stored or disposed of by Tenant or its agents, employees,
contractors or invitees on or about the Premises.
5.2.5 Notwithstanding any other right of entry granted to
Landlord under this Lease, Landlord shall have the right to enter the Premises
for reasonable cause to have consultants enter the Premises throughout the
term of this Lease for the purpose of determining: (1) whether the Premises
are in conformity with federal, state and local statues, regulations,
ordinances, and policies including those pertaining to the environmental
condition of the Premises, (2) whether Tenant has complied with this Section
5, and (3) the corrective measures, if any, required of Tenant to ensure the
safe use, storage and disposal of Hazardous Materials, or to remove Hazardous
Materials, Tenant agrees to provide access and reasonable assistance for such
inspections. Such inspections may include, but are not limited to, entering
the Premises or adjacent property with drill rigs or other machinery for the
purpose of obtaining laboratory samples. Landlord shall not be limited in the
number of such inspections during the term of this Lease. If such consultants
determine that Tenant, or that Tenant's use of the most recent previous
Tenant's Hazardous Materials, has violated any of its covenants herein, Tenant
shall reimburse Landlord for the cost of such inspections within ten (10) days
of receipt of a written statement. In all other instances, Landlord shall be
responsible for the cost of each such inspection. If such consultants
determine that the Premises are contaminated with Hazardous Materials as a
result of the acts or omission of Tenant, or if Tenant is storing materials of
the most recent previous tenant that are found to be contaminated, Landlord
shall so notify Tenant, which notice shall include a copy of such consultants'
reports. Tenant shall have the right, at its sole cost and expense, to hire
its own consultant approved by Landlord's consultants in their reasonable
judgment (the "Tenant's Consultant") to investigate the presence of Hazardous
Materials. If, within thirty (30) days after Landlord notifies Tenant of
Landlord's consultants' reports, Tenant's Consultant determines that Tenant or
a Tenant Party is the cause of such contamination, or if Tenant fails to hire
a consultant and produce a report within such thirty (30) day period, then
Tenant shall, in a timely manner, at its expense, remove such Hazardous
Materials or otherwise comply with the recommendations of such consultants to
the reasonable satisfaction of Landlord and any applicable governmental
agencies. If the conclusion of Tenant's consultant differs from the
Landlord's the Consultants shall pick a third consultant to decide which
conclusion is the most accurate. The Parties shall share the cost of the third
consultant equally. The right granted to Landlord herein to inspect the
Premises shall not create a duty on Landlord's part to inspect the Premises,
or liability of Landlord for Tenant's use, storage or disposal of Hazardous
Materials, it being understood that Tenant shall be solely responsible for all
liability in connection therewith.
5.2.6 Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease in the same condition it was
when Landlord delivered it to the Tenant and in a condition which complies
with all applicable governmental statues, ordinances, regulations and
policies. The condition of the Premises upon delivery shall be based on the
Phase 1 Report prepared by Lycott Environmental Research Inc. dated February
3, 1994 together with the IES, Inc. reports dated June 17, 1996 and October 8,
1997, and any reports generated since that time but before November 1, 2001,
altogether referred to as the "Phase 1 Reports". The Phase 1 Reports state the
Premises complies with all applicable governmental statues, ordinances,
regulations and policies.
5.2.7 Tenant's obligations under this Article 5 shall survive
termination of this Lease.
5.2.8 As of the date hereof Landlord represents and warrants
that Landlord has not received any environmental report or any notice
concerning any violation of applicable laws relating to hazardous waste or
hazardous materials. Landlord also represents and warrants that it is not
aware of any violation of applicable laws relating to hazardous waste or
hazardous materials.
6. LATE CHARGES. Tenant hereby acknowledges that late payment to
Landlord of Base Rent, Additional Rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. If any Base Rent, Additional
Rent or other sum due from Tenant is not received by Landlord or Landlord's
designated agent within 10 days after such amount is due, then Tenant shall
pay to Landlord a late charge equal to five percent (5%) of such overdue
amount, plus any attorneys' fees and costs incurred by Landlord by reason of
Tenant's failure to pay Base Rent, Additional Rent and other charges when due
hereunder. The parties hereby agree that such late charges and, if applicable,
the default interest hereinafter described, represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's late
payment. Landlord's acceptance of such late charges shall not constitute a
waiver of Tenant's default with respect to such overdue amount or stop
Landlord from exercising any of the other rights and remedies granted
hereunder. In the event that any payment of Base Rent, Additional Rent or
other sums due hereunder is not received by Landlord within thirty (30) days
when due, then in addition to the late charge described herein such overdue
amount shall accrue interest at the rate of fourteen percent (14%) per year
commencing on the thirty-first (31st) day the same has remained unpaid and
continuing until Landlord or Landlord's designated agent receives full
payment.
7. REPAIRS AND MAINTENANCE.
7.1 LANDLORD'S OBLIGATIONS. Landlord shall maintain, repair and
replace or cause to be maintained, repaired and replaced the roof (for amounts
in excess of $2,500 per each lease year), foundations and exterior walls of
the Building, the structure of the Building and the underground utility and
sewer pipes outside the exterior walls of the Building, if any, in reasonably
good order and reasonably good operating condition except for damage
occasioned by any act or omission of Tenant or Tenant's employees, guests,
agents, customers, independent contractors, or invitees, the repair of which
damage shall be paid for by Tenant within ten (10) days of Landlord's written
demand. Subject to Landlord's right of access pursuant to Article 18, Tenant
shall be exclusively responsible for maintaining the Premises in good order
and condition, and Landlord shall not be under any obligation to inspect the
Premises. Landlord shall in no event be responsible to Tenant for the repair
of glass in the Premises, the doors (or related glass and finish work) leading
to the Premises. Tenant shall promptly report in writing to Landlord any
defective condition known to it which Landlord is required to repair, and
failure to so report such defects shall make Tenant responsible to Landlord
for any liability incurred by Landlord by reason of such conditions. Landlord
reserves the right from time to time, without unreasonable interference with
Tenant's use: (a) to install, use, maintain, repair, replace and relocate for
service to the Premises and other parts of the Building, or either, pipes,
ducts, conduits, wires and appurtenant fixtures, wherever located in the
Premises or Building;' and (b) to alter or relocate any other common facility.
Installations, replacements and relocations referred to in clause (a) above
shall be located, if practical, above ceiling surfaces, below floor surfaces
or within perimeter walls of the Premises. Landlord will use best efforts not
to inconvenience Tenant in such installations, replacements and relocations.
7.2 TENANT'S OBLIGATIONS.
(a) Tenant shall, throughout the initial term of this Lease and
any renewals thereof, at its expense, maintain in clean and good order and
repair the Premises including, without limitation, the interior surfaces of
all walls, the exterior and interior portions of all doors, windows, plate
glass, all plumbing and sewage facilities within the Premises, all electrical
fixtures, heating and air-conditioning, hot water heaters, electrical systems,
air compressor and associated equipment, sprinkler systems (excepting
sprinkler repairs or replacements that would customarily be capitalized),
floors and ceilings, lighting fixtures, and fire safety equipment. Tenant
shall maintain the landscaping and keep trash off the Property. Tenant agrees
to return the Premises to Landlord at the expiration or prior termination of
this Lease in as good condition and repair as when first received, normal wear
and tear, damage by storm, fire, lightning, earthquake or other insured
casualty excepted. Tenant hereby waives Tenant's right to make repairs and
deduct the expenses of such repairs from the Rent due under the Lease. Without
limitation, Tenant shall continually during the term of this Lease maintain
the Premises in accordance with all laws, codes and rules and regulations of
the proper officers of governmental agencies having jurisdiction, and of the
applicable board of fire underwriters, and shall, at Tenant's own expense,
obtain all permits, licenses and the like required by applicable law.
(b) If maintenance or repairs are required to be made by Tenant
pursuant to the terms hereof, Landlord may demand that Tenant make the same
forthwith, and if Tenant refuses or neglects to commence such repairs and
complete the same with reasonable dispatch, after such demand, Landlord may
(but shall not be required to do so) make or cause such repairs to be made,
the cost of which Tenant shall pay to Landlord within ten (10) days after
notice thereof and Landlord shall not be responsible to Tenant for any loss or
damage that may occur to Tenant's stock or business by reason thereof.
(c) Tenant shall, throughout the term of this Lease, maintain and
repair the Premises HVAC system. In this regard, Tenant shall maintain at all
times during the term of this Lease, at Tenant's sole cost and expense, a
maintenance contract for the Premises HVAC system. Such maintenance contract
shall be in a form and with a contractor satisfactory to Landlord and shall
provide for the inspection and maintenance of the Premises HVAC system at
least once very calendar quarter. The contractor shall be local, generally
engaged in the trade, and duly licensed. A detailed report regarding each
inspection, including an explanation of repairs made and repairs to be
required in the future, shall be forwarded to upon Landlord's request. Such
contract shall be terminable only upon thirty (30) days' prior notice to
Landlord.
(d) Tenant shall pay for costs to repair the HVAC System
excepting any structural repairs. Structural repairs to the HVAC System are
defined as the cost of any single repair or replacement in excess of $2,500.
The costs of Structural repairs shall be shared equally between the Landlord
and Tenant.
8. UTILITIES AND SERVICES.
8.1 BUILDING SERVICES. Landlord shall provide:
(a) Cold water (at temperatures supplied by the City of
Marlborough) to the Premises. Tenant agrees to pay for water consumed, as
shown on such meter, together with the sewer charge based on such meter
charges, as and when bills are rendered, and should Tenant be in default in
making such payment Landlord may pay such charges and collect the same from
Tenant as an additional charge together with any interest or penalties. Tenant
shall provide, at its sole cost and expense, a dumpster and a refuse service
for its own garbage.
(b) Free access to the Premises at all times, subject to
restrictions based on emergency conditions.
8.2 Electricity.
(a) Tenant shall purchase and receive electric current for the
Premises directly from the public utility corporation serving the Building and
Landlord shall permit Landlord's existing wires, risers, conduits and other
electrical equipment of Landlord to be used for such purpose. Tenant covenants
and agrees that its use of electric current shall not exceed the existing
capacity of the Building as of the date hereof. In the event that Tenant
requires additional capacity it shall, at its own cost and expense, upgrade
the electrical current for the Premises or, if necessary, the Building. In no
event shall Tenant's capacity exceed the maximum load from time to time
permitted by applicable governmental regulations. Landlord shall not in any
way be liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if, during the Term of this Lease, either the
quantity or character of electric current is changed or electric current is no
longer available or suitable for Tenant's requirements due to a factor or
cause beyond Landlord's control.
9. COST OF SERVICES AND UTILITIES.
9.1 DEFINITIONS. In addition to the Rent, Tenant shall pay to
Landlord Tenant's Share of Operating Costs (as hereinafter defined) under this
section 9 as "Additional Rent". Tenant's Share of Operating Costs shall be
determined as provided herein, using the following definitions:
9.1.1 "OPERATING COSTS" shall mean Costs of Utilities not
separately metered and billed directly to the Tenant and Other Operating
Costs.
9.1.1.1 "COSTS OF UTILITIES" shall mean all expenses paid or
incurred by Landlord for water, gas, sewer, oil and utility services used by
Tenant and any surcharges imposed.
9.1.1.2 "OTHER OPERATING COSTS" shall mean all other expenses
paid or incurred by Landlord for insuring, per Section 56 hereinunder,
maintaining, operating, repairing and managing the Premises and the parking
areas.
9.1.2 "LEASE YEAR" shall mean the Twelve-month period
commencing January 1 and ending December 31. Tenant shall pay its pro rata
share of tax and operating costs for November and December 2001 being the
first Lease Year.
9.1.3 "ACTUAL COSTS" shall mean the actual expenses paid or
incurred by Landlord for Operating Costs during any Lease Year of the term
hereof.
9.1.4 "TENANT'S SHARE OF OPERATING COSTS" shall mean the total
amount of Operating Costs multiplied by the Apportionment Factor.
9.1.5 "ESTIMATED COSTS ALLOCABLE TO THE PREMISES" shall mean
Landlord's estimate of Tenant's Share of Operating Costs for the following
Lease Year to be given by Landlord to Tenant pursuant to Section 9.2
9.2 ADDITIONAL RENT: Prior to the commencement of each Lease Year
during the term hereof, Landlord shall furnish Tenant a written statement of
the Estimated Costs Allocable to the Premises for such Lease Year and a
calculation of the Additional Rent as follows: One-twelfth (1/12th) of the
amount shall be Additional Rent payable by Tenant as provided in Section 3 for
each month during the Lease Year. If at any time or times during such Lease
Year, it appears to Landlord that the Actual Costs will vary from Landlord's
estimate by more than five percent (5%) on an annualized basis, Landlord may,
by written notice to Tenant, revise its estimate for such Lease year and
Additional Rent payments by Tenant for such Lease Year shall be based on such
revised estimate.
9.3 ACTUAL COSTS. Within ninety (90) days after the close of each
Lease Year during the term hereof, Landlord shall deliver to Tenant a written
statement setting forth the actual Tenant's Share of Operating Costs during
the preceding Lease Year. If such costs for any Lease Year exceed Estimated
Costs Allocable to the Premises paid by Tenant to Landlord pursuant to Section
9.2, Tenant shall pay the amount of such excess to Landlord as Additional Rent
within thirty (30) days after receipt of such statement by Tenant. If such
statement shows such costs to be less than the amount paid by Tenant to
Landlord pursuant to Section 9.2, then the amount of such overpayment by
Tenant shall be credited by Landlord to the next Rent payable by Tenant.
9.4 END OF TERM. If this Lease terminates on a day other than the last
day of a Lease Year, the amount of any adjustment to Estimated Costs Allocable
to the Premises with respect to the Lease Year in which such termination
occurs shall be pro rated on the basis which the number of days from the
commencement of such Lease Year to and including such termination date bears
to 365; and any amount payable by Landlord to Tenant or Tenant to Landlord
with respect to such adjustment shall be payable within thirty (30) days after
delivery by Landlord to Tenant of the statement of Tenant's Share of Operating
Costs with respect to such Lease Year.
10. PROPERTY TAXES.
10.1 CONTRIBUTION TO TAXES. In addition to the Base Rent provided in
Section 1.4, and the Additional Rent, Tenant shall pay to Landlord its share
of Property Taxes under this Section 10. Tenant's Share of Property Taxes (as
hereinafter defined) shall be determined as provided herein, utilizing the
following definitions:
10.1.1 "Property Taxes" shall be defined to include any form of
assessment, license, fee, rent, tax, levy, penalty (if a result of Tenant's
delinquency), or tax (Other than net income, estate, succession, inheritance,
transfer or franchise taxes), imposed by an authority having the direct or
indirect power to tax, or by any city, county, state or federal government or
any improvement or other district or division thereof, whether such tax is:
(i) determined by the area of the Building or the parcel upon which it is
constructed or any part thereof or the Rent and other sums payable hereunder
by Tenant, including, but not limited to, any gross income or excise tax
levied by any of the foregoing authorities with respect to receipt of such
rent or other sums due under this Lease; (ii) upon any legal or equitable
interest of Landlord in the Building, the parcel upon which it is constructed
or the Premises or any part thereof; (iii) upon this transaction or any
document to which Tenant is a party creating or transferring any interest in
the Building or the parcel upon which it is constructed; (iv) levied or
assessed in lieu of, in substitution for, or in addition to, existing or
additional taxes against the Building or the parcel upon which it is
constructed whether or not now customary or within the contemplation of the
parties; or (v) surcharged against the Parking Area as defined in Section 53
below.
10.1.2 The term "Tenant's Share of Property Taxes" shall mean
the amount of Property Taxes payable during any Lease Year by Landlord and
multiplied by the Apportionment Factor.
10.1.3 The term "Lease Year" shall mean the period defined in
Section 9.1.2.
10.2 ADDITIONAL RENT FOR ESTIMATED INCREASES IN TENANT'S SHARE OF
PROPERTY TAXES. Landlord shall furnish Tenant with a written statement setting
forth the estimate of Tenant's Share of Property Taxes. One-twelfth (1/12th)
of Tenant's Share of Property Taxes shall be Additional Rent payable by Tenant
as provided in Section 3.
10.3 ACTUAL PROPERTY TAXES. Within ninety (90) days after the close of
each Lease Year during the term hereof, Landlord shall deliver to Tenant a
written statement setting forth Tenant's Share of Property Taxes during the
preceding Lease Year. If such amount exceeds Tenant's estimated Share of
Property Taxes pursuant to Section 10.2, Tenant shall pay the amount of such
excess to Landlord as Additional Rent within thirty (30) days after receipt of
such statement by Tenant. If such statement shows such amount to be less than
the amount paid by Tenant to Landlord pursuant to Section 10.2, then the
amount of such overpayment shall be credited by Landlord to the next immediate
Base Rent payable by Tenant.
10.4 END OF TERM. If this Lease terminates on a day other than the
last day of a Lease Year, the amount of any adjustment between the estimated
and actual Tenant's Share of Property Taxes with respect to the Lease year in
which such termination occurs shall be pro rated on the basis of a 365-day
year; and any amount payable by Landlord to Tenant or Tenant to Landlord with
respect to such adjustment shall be payable within thirty (30) days after
delivery by Landlord to Tenant of the statement of Tenant's Share of Property
Taxes with respect to such lease year.
10.5 ABATEMENT. At Tenant's request and at Tenant's expense, Landlord
shall apply for and diligently prosecute an abatement of Property Taxes for
any tax year within the Term. If Landlord shall receive any tax refund or
reimbursement of Property Taxes or sum in lieu thereof with respect to any
Lease Year for which Tenant paid Tenant's Share of Property Taxes, Landlord
shall pay to Tenant, provided there does not then exist a Default of Tenant,
an amount equal to such refund or reimbursement or sum in lieu thereof
(exclusive of any interest) multiplied by the Apportionment Factor; provided,
that in no event, shall Tenant be entitled to receive more than the payments
made by Tenant of account of Taxes for such tax year pursuant to paragraph (b)
of Section 10.2.
11. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid,
before delinquency any and all taxes levied or assessed and which become
payable during the term of this Lease upon all Tenant's leasehold
improvements, equipment, furniture, fixtures, and any other trade fixtures and
personal property located on the Premises. In the event any or all of Tenant's
leasehold improvements, equipment, furniture, fixture, and any other trade
fixtures and personal property located on the Premises. In the event any or
all of Tenant's leasehold improvements, equipment, furniture, fixture, and any
other personal property and trade fixtures shall be assessed and taxed with
Property Taxes, Tenant shall pay to Landlord its share of such taxes within
ten (10) days after delivery to Tenant by Landlord of a statement in writing
setting forth the amount of such taxes applicable to Tenant's property.
12. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of Commercial General
Liability insurance including personal injury liability, property damage
liability, contractual liability, products and completed operations liability
insuring Tenant, Landlord, its agents and mortgagee against any liability
arising out of the ownership, use, occupancy or maintenance of the Premises.
Such insurance shall be in the amount of not less than Three Million and
no/100ths dollars ($3,000,000.00) for bodily injury and property damage for
any one accident or occurrence. Fire legal liability insurance in an amount of
not less than Fifty Thousand and no/100ths Dollars ($50,000.00) shall also be
obtained and kept in force during the term of this Lease at Tenant's expense.
The limit of any of such insurance shall not limit the liability of Tenant
hereunder. Tenant may provide this insurance under a blanket policy, provided
that such insurance shall have a landlord's protective liability endorsement
specifically describing the Premises. If Tenant fails to procure and maintain
such insurance, Landlord may, but shall not be required to procure and
maintain the same, at Tenant's expense to be reimbursed by Tenant within ten
(10)days of written demand. All insurance required to be obtained by Tenant
hereunder shall be issued by companies acceptable to Landlord. Thirty (30)
days prior to the Lease Commencement Date, Tenant shall deliver to Landlord
certified copies of policies or, at Landlord's discretion, certificates of
liability insurance required herein with loss payable clauses satisfactory to
Landlord. Any deductible under such insurance policy in excess of Ten Thousand
and no/100ths Dollars ($10,000.00) must be approved by Landlord in writing
prior to issuance of such policy. No policy shall be cancelable or subject to
reduction of coverage except upon thirty (30) days' prior written notice to
Landlord. All such policies shall name Landlord and its agents as named
insureds, shall be written as primary policies not contributing with and not
in excess of coverage which Landlord may carry, and shall be written with an
insurance carrier satisfactory to Landlord with a Best rating of at least A-
VIII. From time to time, as Landlord or its mortgagee deems necessary, the
insurance coverage and limits of such coverage required hereunder will be
reviewed; by Landlord, and Tenant will be notified of any revisions or
increases thereto required by Landlord, Tenant shall obtain any revised or
increased coverage required by Landlord within thirty (30) days of any such
notification from Landlord.
13. FIRE INSURANCE - FIXTURES AND EQUIPMENT. Tenant shall maintain in
full force and effect on all trade fixtures and equipment and other personal
property on the Premises, a policy of all risk property insurance covering the
full replacement value of such property. During the term of this Lease, the
proceeds from any such policy of insurance shall be used for the repair or
replacement of the fixtures and equipment so insured. Landlord shall have no
interest in the insurance upon Tenant's equipment and fixtures and will sign
all documents reasonably necessary or proper in connection with the settlement
of any claim or loss by Tenant. Landlord will not carry insurance on Tenant's
possessions. Tenant shall furnish Landlord with certificate of insurance
evidencing that the requirements set forth herein are in full force and
effect. Any deductible in excess of Ten Thousand and no/100ths Dollars
($10,000.00) under such insurance must be approved in writing by Landlord
prior to issuance of such policy. Upon demand, Tenant shall provide Landlord,
at Tenant's expense, with such increased amount of existing insurance, and
such other insurance as Landlord or Landlord's lender may reasonably require
to afford Landlord and Landlord's lender adequate protection. Tenant shall
provide Landlord with notice of loss or damage to property within forty-eight
(48) hours after such loss or damage occurs. Tenant shall furnish Landlord
with certificate of such insurance naming Landlord as an additional insured.
No policy shall be cancelable or subject to reduction of coverage except upon
thirty (30) days' prior written notice to Landlord.
14. DESTRUCTION AND DAMAGE.
14.1 CASUALTY DAMAGE - INSURED. In the event of substantive
destruction of the Building, Landlord shall elect either to promptly commence
repair and restoration of the Building and prosecute the same diligently to
completion, in which event this Lease shall remain in full force and effect,
or not to repair or restore the Building, in which event this Lease shall
terminate. In either case, Landlord shall give Tenant written notice of its
intention within forty-five (45) days after the occurrence of such
destruction. If Landlord elects to repair or restore the Building pursuant to
this Section 14.1 and does not substantially repair or restore the Building
within ten (10) months from the date of destruction, Tenant may elect to
terminate this Lease upon thirty (30) days' prior notice to Landlord. Should
Landlord, however, substantially complete such repair or restoration within
such thirty (30) days after Tenant's notice to terminate, this Lease shall
continue in full force and effect and the Lease shall not terminate. If
Landlord elects not to restore the Building, this Lease shall be deemed to
have terminated as of the date of such total destruction.
14.1.2 PARTIAL DESTRUCTION. In the event of a partial destruction of the
Building to an extent not exceeding twenty-five percent (25%) of the full
insurable value thereof and if the damage thereto is such that the Building
may be repaired or restored within ninety (90) days from the date that repair
work would commence and Landlord will receive insurance proceeds sufficient to
cover the cost of such repairs, Landlord shall commence and proceed diligently
with the work of repair and restoration, in which event the Lease shall
continue in full force and effect; or if such repair and restoration requires
longer than ninety (90) days or the cost thereof exceeds twenty-five percent
(25%) of the full insurable value thereof or if the insurance proceeds payable
to Landlord will not be sufficient to cover such cost, Landlord may elect
either to so repair and restore, in which event the Lease shall continue in
full force and effect, or not to repair, reconstruct or restore, in which
event the Lease shall terminate. In either case, Landlord shall give written
notice to Tenant of its intention within forty-five (45) days after the
destruction occurs. If Landlord elects to repair or restore the Building
pursuant to this Section 14.1.2 and does not substantially repair or restore
the Building within six (6) months from the date of destruction, Tenant may
elect to terminate this Lease upon thirty (30) days' prior notice to Landlord.
Should Landlord, however, substantially complete such repair or restoration
within such thirty (30) days after Tenant's notice to terminate, this Lease
shall continue in full force and effect and the Lease shall not terminate. If
Landlord elects not to restore the Building, this Lease shall be deemed to
have terminated as of the date of such partial destruction.
14.2 RELEASE. Upon any termination of this Lease under any of the
provisions of this article, the parties shall be released thereby without
further obligation to the other from the date of the damage or destruction,
except for items which have theretofore accrued and are then unpaid or
obligations which shall survive such termination.
14.3 RENT ABATEMENT. In the event of repair and restoration as herein
provided, the monthly installments of Base Rent shall be abated
proportionately in the ratio which Tenant's use of the Premises is impaired
during the period of such repair, reconstruction or restoration; provided,
however, if the damage is due, directly or indirectly, to the fault or neglect
of Tenant, or its officers, contractors, licensees, agents, servants,
employees, guests, invitees or visitors, there shall be no abatement of Rent,
except to the extent Landlord receives proceeds from any applicable insurance
policy of Tenant to compensate Landlord for loss of Base Rent Additional Rent,
and Tenant's Share of Property Taxes. Tenant shall not be entitled to any
compensation or damages for loss of use of the whole or any part of said
Premises and/or any inconvenience or annoyance occasioned by such damage,
repair, reconstruction or restoration.
14.4 DELAY. Tenant shall not be released from any of its obligations
under this Lease except to the extent and upon the conditions expressly
stated in this article.
14.5 UNINSURED DAMAGE. If damage to the Building or the Premises is
due to any cause other than fire or other peril covered by extended coverage
insurance, Landlord may elect to terminate this Lease within twenty (20) days
after the occurrence of such damage by sending notice to the Tenant.
14.6 REPAIR OBLIGATION. If Landlord is obligated to or elects to
repair or restore as herein provided, Landlord shall repair or restore only
those portions of the Building and Premises which were originally provided at
Landlord's expense and Landlord's Work as defined in Section 17.1 below; and
the repair and restoration of areas or items not provided at Landlord's
expense shall be the obligation of Tenant.
14.7 END OF TERM. Notwithstanding anything to the contrary contained
in this article, Landlord may elect to terminate this Lease in the event of
damage to the Building or the Premises occurring during the last twelve (12)
months of the Lease or any extension thereof within thirty (30)days of such
event of damage.
15. ALTERATIONS AND ADDITIONS: REMOVAL OF FIXTURE. Tenant shall not
make or allow to be made any alterations, additions or improvements to or on
the Premises (including for the purposes hereof, wall-to-wall carpeting)
without first obtaining the written consent of Landlord, which shall not be
unreasonably withheld or delayed. Any such alterations, additions or
improvements made, including, but not limited to, wall covering, paneling and
built-in cabinet work, but excepting movable furniture and trade fixtures,
shall be made at Tenant's sole expense, according to plans and specifications
approved in writing by Landlord, in compliance with all applicable laws, by a
licensed contractor, and in a good and workmanlike manner conforming in
quality and design with the Premises existing as of the Lease Commencement
Date, shall not diminish the value of the Building or the Premises and shall
at once become a part of the realty and shall be surrendered with the
Premises. If during the process of Tenant's making alterations or additions
asbestos removal is required by applicable law, the Tenant shall bear the
responsibility and cost to removing the Hazardous Material. Upon the
expiration or sooner terminations of the term hereof, Tenant shall, upon
written demand by Landlord, at Tenant's sole expense, with due diligence,
remove any alterations, additions, or improvements made by Tenant, designated
by Landlord's approval of such alterations, additions and improvements, and
repair any damage to the Premises caused by such removal. Tenant shall remove
all of its movable property and trade fixtures which can be removed without
damage to the Premises at the termination of this Lease, either by expiration
of the term or other cause, and shall pay Landlord any damages for injury to
the Premises or Building resulting from such removal. If Tenant shall fail to
remove any of its property of any nature whatsoever from the Premises or the
Building at the termination of this Lease or when Landlord has the right of
reentry, Landlord may, in accordance with the provisions of applicable statues
governing commercial landlord and tenant matters, remove and store such
property without liability for loss thereof or damage thereto, such storage to
be for the account and at the expense of Tenant. If Tenant shall not pay the
cost of storing any such property after it has been stored for a period of
thirty (30) days or more from the date at which Landlord notified Tenant of
Landlords intent to store such items, Landlord may, at its option, sell, or
permit to be sold, any or all such property at public or private sale, in such
manner and at such times and places as Landlord, in its sole discretion, may
deem proper, without notice to Tenant, unless notice is required under
applicable statues, and shall apply the proceeds of such sale: first, to the
cost and expense of such sale, including reasonable attorneys' fees actually
incurred; second, to the payment of the costs for charges for storing any such
property; third, to the payment of any other sums of money which may then be
or thereafter become due Landlord from Tenant under any of the terms hereof;
and fourth, the balance, if any, to Tenant. In the course of any work being
performed by Tenant, Tenant agrees to use labor compatible with that being
employed by Landlord for work in or to the Building or other buildings owned
by Landlord or its affiliates (which term, for purposes hereof, shall include,
without limitation, entities which control or are under common control with
Landlord, or which are controlled by Landlord or, if Landlord is a
partnership, by any partner of Landlord) and not to employ or permit the use
of any labor or otherwise take any action which might result in a labor
dispute involving personnel providing services in the Building pursuant to
arrangements made by Landlord.
16. ACCEPTANCE OF PREMISES. Tenant shall be deemed to have accepted
the Premises on the Lease Commencement Date in their "AS IS" condition except
as otherwise stated in Section 17 herein. Landlord agrees that if government
laws require the removal of asbestos, Landlord shall bear the responsibility
and cost of removing the Hazardous Material unless such Laws were brought on
due to the Tenant doing work in the Premises, in which case Tenant shall bear
the responsibility and cost.
17. TENANT IMPROVEMENTS.
17.1 (a) The Premises are being leased in their condition AS IS
WITHOUT REPRESENTATION OR WARRANTY BY LANDLORD.
18. ACCESS. Landlord and its agents shall have the right to enter
into and upon the Premises or any part thereof during regular business hours
and upon reasonable notice, and in the case of an emergency, at any time:
(a) to examine the same;
(b) to order the removal of any signs not affixed in accordance
with the terms of this Lease (or to remove the same if said
order shall not be complied with within ten (10) days),
(c) to gain access to the common area utility room for any
reason,
(d) to show the Premises to prospective purchasers, mortgagees,
or insurance inspectors or during the last 18 months of the
lease term to prospective tenants provided, however that
such inspections do not interfere unreasonably with the
business being conducted in the Premises.
19. WAIVER OF SUBROGATION. Whether the loss or damage is due to the
negligence of either party or either parties' agents or employees, or any
other cause, the parties hereby release the other party and other parties'
agents and employees from responsibility for and waives its entire claim of
recovery for (i) any loss or damage to the personal property of Tenant in the
Building, including the Building itself, arising out of any of the perils
which are covered by Tenant's property insurance policy, with extended
coverage endorsements, or (ii) loss resulting from business interruption or
loss of rental income, at the Premises, arising out of any of the perils which
may be covered by the business interruption or by the loss of rental income
insurance policy held by Tenant or Landlord. Tenant and Landlord shall cause
its insurance carrier(s) to consent to such waiver of all rights of
subrogation against the other party.
20. INDEMNIFICATION. Tenant shall indemnify, defend and hold harmless
Landlord, its agents, employees, officers, directors, partners and
shareholders from and against any and all liabilities, judgments, demands,
causes of action, claims, losses, damages, costs and expenses, including
reasonable attorneys' fees and costs, arising out of the use, occupancy,
conduct, operation or management of the Premises by, or the willful misconduct
or negligence of, Tenant, its officers, contractors, licenses, agents,
servants, employees, guests, invitees, or visitors in or about the Building or
arising from any breach or default under this Lease by Tenant, or arising from
any accident, injury, or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about the Building or Premises. This
indemnification shall survive termination of this Lease. This provision shall
not be construed to make Tenant responsible for loss, damage, liability or
expense resulting from injuries to third parties caused by the negligence of
Landlord, or its officers, contractors, licensees, agents, employees, or
invitees.
21. ASSIGNMENT AND SUBLETTING.
21.1 LANDLORD'S CONSENT. Tenant shall not assign this Lease, or
sublease all or any part of the Premises, or permit the use of the Premises by
any party other than Tenant, without the prior written consent of Landlord.
Landlord's consent shall not be unreasonably withheld or delayed. When Tenant
reaches an agreement with a subtenant, Tenant shall notify Landlord in writing
of the name and address of the proposed assignee or subtenant and the nature
and character of the business of the proposed assignee or subtenant and shall
provide financial information including financial statements of the proposed
assignee or subtenant and shall provide the form of sublease or assignment
document to be used by Tenant and proposed assignee or subtenant. Tenant shall
also provide Landlord with a copy of the proposed sublet or assignment
agreement for use with Landlord. Landlord shall have the option (to be
exercised within thirty [15] days from the submission of Tenant's request) to
cancel this Lease as of the commencement date stated in the proposed sublease
or assignment. If Landlord does not exercise its option within the time set
forth above, its consent to any proposed assignment or sublease shall not be
unreasonably withheld. The sale or transfer of more than fifty percent (50%)
or more of the stock in Tenant whether in one or more transactions which in
the aggregate total such greater than fifty percent (50%) shall be deemed an
assignment hereunder and shall require Landlord's prior written consent.
Notwithstanding anything in this Article 21 to the contrary,
Tenant shall have the right to assign this Lease to its parent corporation or
to any subsidiary or Affiliated Corporation. An Affiliated Corporation is
defined as a corporation which directly or indirectly owns at least fifty
percent (50%) interest in Tenant or in which Tenant owns at lease fifty
percent (50%), provided that Tenant shall delivery to Landlord within ten (10)
days after the date of such assignment, an executed copy of the assignment
wherein such parent corporation, subsidiary, affiliated corporation, or the
corporation which directly or indirectly owns fifty percent (50%) interest in
Tenant or in which Tenant owns at least a fifty percent (50%) interest,
assumes for the benefit of Landlord of all the obligation of Tenant under this
Lease and further provided that any such assignment shall not relieve Tenant
from liability for the payment of rent or other sums herein provided or from
the obligation to keep and be bound by the terms, conditions, and covenants of
this Lease. In the event such parent, subsidiary, or affiliated corporation or
the corporation which directly or indirect owns at lest fifty percent (50%)
interest in Tenant or in which Tenant owns at least a fifty percent (50%)
interest shall at any time after the date of such assignment no longer be a
parent, subsidiary, or affiliated corporation or the corporation which
directly or indirectly owns at least a fifty percent (50%) interest in Tenant
or in which Tenant owns at least a fifty percent (50%) interest, then such an
event shall constitute an assignment for the purposes hereof and shall be
subject to the provisions of this Section. Notwithstanding anything herein to
the contrary, Landlord agrees that any of Tenant's subsidiaries or affiliates,
as defined herein, including without limitation, Design Circuits, Inc., may
take occupancy of all or any of Premises and such use shall not be considered
an assignment or subletting hereunder.
21.2 CRITERIA. In determining whether or not to grant its consent to a
proposed sublet or assignment, Landlord shall be entitled to consider all
reasonable criteria including, but not limited to, the following:
(i) that the proposed subtenant or assignee is a reputable party
of reasonable financial worth and stability in light of the responsibilities
involved and does not impose a greater load upon the Premises and the Building
services (such as janitorial and security services) then imposed by Tenant,
(ii) that the sublease or assignment agreement requires payment
of the rent and other amounts as required of Tenant hereunder with respect to
the space being subleased or assigned which are in no event less than that
being offered by Landlord for similar space in the Building under leases then
being negotiated, and
(iii) that Tenant shall provide Landlord with reasonable proof of
(i), (ii), (iii), and (iv), and
(iv) Tenant is not in default hereunder at the time it makes its
request for such consent or at the time the assignment or sublet is to take
effect.
21.3 APPROVED SUBLEASES AND ASSIGNMENTS. If Landlord approves an
assignment or sublease as herein provided, Tenant shall pay to Landlord, as
additional rent due under this Lease, all of the difference ("The
Difference"), if any, between the Base Rent plus Additional Rent allocable to
that part of the Premises affected by such assignment or sublease pursuant to
this Lease, and the rent and any additional rent payable by the assignee or
subtenant to Tenant, unless the total area subleased is less than 20,000
square feet in which case the Tenant shall keep The Difference. No consent to
any assignment or sublease shall constitute a further waiver of the provisions
of this section, and all subsequent assignments or subleases may be made only
with the prior written consent of Landlord. An assignee of Tenant, at the
option of Landlord, shall become directly liable to Landlord for all
obligations of Tenant hereunder, but no sublease or assignment by Tenant shall
relieve Tenant of any liability hereunder. Any assignment or sublease without
Landlord's consent shall be void, and shall, at the option of Landlord,
constitute a default under this Lease. In the event that Landlord shall
consent to a sublease or assignment hereunder, Tenant shall pay Landlord's
reasonable fees, not to exceed One Thousand and no/100ths Dollars ($1,000.00)
per transaction, incurred in connection with the processing of documents
necessary to the giving of such consent.
21.4 UNAPPROVED SUBLEASES AND ASSIGNMENTS. If this Lease is assigned,
or if the Premises or any part thereof is sublet or occupied by anybody other
than Tenant and its employees without the consent of Landlord as required
herein, Landlord may collect the rents from such assignee, subtenant or
occupant, as the case may be, and apply the net amount collected to the Rent
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed: (a) a waiver of the requirements set forth in this Article
21, (b) the acceptance by Landlord of such assignee, subtenant or occupant, as
the case may be, as a tenant, or (c) a release to Tenant from the future
performance by Tenant of its covenants, agreements and obligations contained
in this Lease.
22. ADVERTISING. Tenant shall not display any sign, graphics,
notice, picture, or poster, or any advertising matter whatsoever, anywhere in
or about the Premises or the Building at places visible from anywhere outside
the Building or at the entrance to the Premises without first obtaining
Landlord's written consent hereto, such consent not to be unreasonably
withheld or delayed. Any such consent by Landlord shall be upon the
understanding and condition that Tenant will maintain the sign in good
condition and remove the same at Tenant's expense upon the expiration or
sooner termination of this Lease. Tenant shall repair any damage to the
Premises or the Building caused by such removal.
23. LIENS. Tenant shall keep the Premises and the Building free from
any liens arising out of any such work performed, materials ordered or
obligations incurred by or on behalf of Tenant, and Tenant hereby agrees to
indemnify and hold Landlord, its agents, employees, independent contractors,
officers, directors, partners, and shareholders harmless from any liability,
cost or expense for such liens. Tenant shall cause any such lien imposed to be
released or record by payment or posting of the proper bond acceptable to
Landlord within ten (10) days after the earlier of imposition of the lien or
written request by Landlord. Tenant shall give Landlord written notice of
Tenant's intention to perform work on the Premises which might result in any
claim of lien, at least ten (10) days prior to the commencement of such work
to enable Landlord to post and record a Notice of Non-responsibility or other
notice deemed proper before commencement of any such work. If Tenant fails to
remove any lien within the prescribed ten (10) day period, then Landlord may
do so at Tenant's expense and Tenant's reimbursement to Landlord for such
amount shall be deemed Additional Rent. Such reimbursement shall include all
sums disbursed, incurred or deposited by Landlord, including Landlord's costs,
expenses and reasonable attorneys' fees with interest thereon at the maximum
rate of interest permitted by law.
24. DEFAULT.
24.1 TENANT'S DEFAULT. A default under this Lease by Tenant shall
exist if any of the following occurs:
24.1.1 If Tenant fails to pay Base Rent, Additional Rent or any
other sum required to be paid hereunder within ten (10) days after said amount
is due; or
24.1.2 If Tenant fails to perform any term, covenant or
condition of this Lease except those requiring the payment of money, and
Tenant fails to cure such breach within thirty (30) days after written notice
from Landlord where such breach could reasonably be cured within such thirty
(30) day period; provided, however, that where such failure could not
reasonably be cured within the thirty (30) day period, that Tenant shall not
be in default if it commences such performance within the thirty (30) day
period and diligently thereafter prosecutes the same to completion; or
24.1.3 If Tenant assigns its assets for the benefit of its
creditors; or
24.1.4 If the sequestration or attachment of or execution on
any material part of Tenant's personal property essential to the conduct of
Tenant's business occurs, and Tenant fails to obtain a return or release of
such personal property within thirty (30) days thereafter, or prior to sale
pursuant to such sequestration, attachment or levy, whichever is earlier; or
24.1.5 If a court makes or enters any decree or order other
than under the bankruptcy laws of the United States adjudging Tenant to be
insolvent, or approving as properly filed a petition seeking reorganization of
Tenant, or directing the winding up or liquidation of Tenant, and such decree
or order shall have continued for a period of thirty (30) days.
24.1.6 The chronic delinquency by Tenant in the payment of
monthly Rent, or any other periodic payments required to be paid by Tenant
under this Lease, shall constitute a default. "Chronic delinquency" shall mean
failure by tenant to pay Rent, or any other periodic payments required to be
paid by Tenant under this Lease within three (3) days after written notice
thereof for any three (3) months (consecutive or non-consecutive) during any
twelve (12) month period. In the event of a chronic delinquency, at Landlord's
option, Landlord shall have the additional right to require that monthly Rent
be paid by Tenant quarter-annually, in advance.
24.1.7 If there is a Guarantor, the happening of any of the
events described in paragraphs 24.13, 24.1.4 or 24.1.6 of this Section with
respect to the Guarantor shall constitute a default of Tenant hereunder.
24.2 REMEDIES. Upon a default, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by law or
otherwise provided in this Lease, to which Landlord may resort cumulatively or
in the alternative:
24.2.1 Landlord may continue this Lease in full force and
effect, and this Lease shall continue in full force and effect as long as
Landlord does not terminate this Lease, and Landlord shall have the right to
collect Base Rent, Additional Rent and other charges when due.
24.2.2 Landlord may terminate Tenant's right to possession of
the Premises at any time by giving written notice to that effect, and relet
the premises or any part thereof. On the giving of the notice, all of Tenant's
rights in the Premises shall terminate. Upon such termination, Tenant shall
surrender and vacate the Premises in the condition required by Section 26, and
Landlord may re-enter and take possession of the Premises and all the
remaining improvements or property and eject Tenant or any of Tenant's
subtenants, assignees or other person or persons claiming any right under or
through Tenant or eject some and not others or eject none. This Lease may also
be terminated by a judgment specifically providing for termination. Any
termination under this section shall not release Tenant from the payment of
any sum then due Landlord or from any claim for damages or Base Rent,
Additional Rent or other sum previously accrued or then accruing against
Tenant. Upon such termination Tenant shall be liable immediately to Landlord
for all costs Landlord incurs in reletting the Premises or any part thereof,
including, without limitation, broker's commissions, expenses of cleaning and
redecorating the Premises required by the reletting and like costs. Reletting
may be for a period shorter or longer than the remaining term of this Lease.
No act by Landlord other than giving written notice to tenant shall terminate
this Lease. Acts of maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right
to possession. On termination, Landlord has the right to remove all Tenant's
personal property and store same at Tenant's cost and to recover from Tenant
as damages:
(a) The worth at the time of award of unpaid Base Rent, Additional
Rent and other sums due and payable which had been earned at the
time of termination; plus
(b) The worth at the time of award of the amount by which the unpaid
Base rent, Additional Rent and other sums due and payable which
would have been payable after termination until the time of award
exceeds the amount of such rent loss that Tenant proves could have
been reasonably avoided; plus
(c) The worth at the time of award of the amount by which the unpaid
Base Rent, Additional Rent or other sums due and payable for the
balance of the term after the time of award exceeds the amount of
such rent loss that Tenant proves could be reasonably avoided;
plus
(d) Any other amount necessary which is to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease, or which, in the ordinary
course of things, would be likely to result therefrom, including,
without limitation, any costs or expenses incurred by Landlord
(including reasonable attorney's fees): (i) in retaking possession
of the Premises; (ii) in maintaining, repairing, preserving,
restoring, replacing, cleaning, altering or rehabilitating the
Premises or a portion thereof, including such acts for reletting
to a new tenant or tenants; (iii) for leasing commissions; or (iv)
for any other costs necessary or appropriate to relet the
Premises; plus
(e) At Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by the
laws of the state of Massachusetts.
The "worth at the time of award" of the amounts referred to in Sections
24.2.2 (a) and (b) is computed by allowing interest at the maximum interest
rate allowed by law on the unpaid rent and other sums due and payable from the
termination date through the date of award. Tenant waives redemption or relief
from forfeiture under any other present or future law, in the event Tenant is
evicted or Landlord takes possession of the Premises by reason of any default
of Tenant hereunder.
24.2.3 Landlord may, with or without terminating this Lease,
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant. No re-entry or taking possession of
the Premises by Landlord pursuant to this section shall be construed as and
election to terminate this Lease unless a written notice of such intention is
given to Tenant.
25. SUBORDINATION. Upon request of Landlord, Tenant will, in writing,
subordinate its rights hereunder to the lien of any mortgage, deed of trust,
ground lease or underlying lease now or hereafter in force against the
Premises, and to all advances made or hereafter to be made upon the security
thereof, provided that such mortgagee or ground lessor agrees the Lease shall
remain in full force and effect for the full term hereunder as long as the
Tenant has not been in default hereof (the "Nondisturbance Agreement").
Mortgagee of Ground Lessor shall not be obligated to provide a Nondisturbance
Agreement if the Tenant is in default hereunder. Tenant shall execute and
return to landlord any such subordination documents within ten (10) days of
Landlord's written request. In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by Landlord covering the Premises, Tenant shall
attorn to the purchaser at any such foreclosure, or to the grantee of a deed
in lieu of foreclosure, and recognize such purchaser or grantee as Landlord
under this Lease provided such Purchaser or Grantee agrees to a Nondisturbance
Agreement if the Tenant is not in default hereunder.
26. SURRENDER OF POSSESSION. Upon expiration of the term of this
Lease, Tenant shall promptly and peacefully surrender the Premises to Landlord
in as good condition as when received by Tenant from Landlord or as thereafter
improved, reasonable use and wear and tear excepted, all to the reasonable
satisfaction of Landlord. If the Premises are not surrendered in accordance
with the terms of this Lease, Tenant shall indemnify Landlord and its agents,
employees, independent contractors, officers, directors, partners, and
shareholders against any loss or liability including reasonable attorneys'
fees and costs, and including liability to succeeding tenants, resulting from
delay by Tenant in so surrendering the Premises. This indemnification shall
survive termination of this lease.
27. NON-WAIVER. The failure of Landlord to seek redress for violation
of or to insist upon the strict performance of any covenant or condition of
this Lease shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of Base Rent or Additional Rent and/or the
allowance, by Landlord, of Tenant's exercise of any option for renewal, if
any, granted hereunder, with knowledge of the breach of any covenant of this
Lease, shall not be deemed to be a waiver of such breach. No provision of this
Lease shall be deemed to have been waived or modified by Landlord unless such
waiver or modification shall be in writing and signed by the party against
whom such waiver of modification is sought to be enforced.
28. HOLDOVER. If Tenant shall, without the written consent of
Landlord, hold over after the expiration of the term of this Lease, such
tenancy shall be deemed a month- to-month tenancy, which tenancy may be
terminated as provided by applicable state law. During such tenancy, Tenant
agrees to pay to Landlord, each month, the greater of the fair market rental
value for the Premises or one hundred fifty percent (150%) of the Base Rent
and Additional Rent payable by Tenant for the last month of the term of this
Lease.
29. CONDEMNATION. If twenty (20%) percent or more of the Premises or
of such portions of the Building as may be required for the reasonable use of
the Premises, are taken by eminent domain or sale under threat of condemnation
by eminent domain, this Lease shall automatically terminate as of the date
title vests in the condemning authority, and all Base Rent, Additional Rent,
and other payments shall be paid to that date. Landlord reserves all rights to
damages to the Premises for any partial or entire taking by eminent domain,
and Tenant hereby assigns to Landlord any right Tenant may have to such
damages or award, and Tenant shall make no claim against Landlord or the
condemning authority for damages for termination of the leasehold interest or
interference with Tenant's business. Tenant shall have the right to claim and
recover from the condemning authority compensation for any loss which Tenant
may incur for Tenant's moving expenses, business interruption or taking of
Tenant's personal property (not including Tenant's leasehold interest).
30. NOTICES. All notices and demands which may be required or
permitted to be given to either party hereunder shall be in writing, and shall
be sent by United States mail, postage prepaid (I) with respect to Landlord,
to the address set out in Section 1.5, and (ii) with respect to Tenant, in
care of the Chief Financial Officer, SMTEK International, Inc., 0000 Xxxxxx
Xxxxx, Xxxxxxxx Xxxx, XX 00000 or to the then current address of the Tenant
that is known to the Landlord, and to such other person or place as each party
may from time to time designate in a notice to the other. Notice shall be
deemed given upon the earlier of actual receipt or seventy-two (72) hours
after deposit in the United States mail, postage prepaid.
31. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagee(s) by
registered mail, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of notice of assignment of rents and leases, or otherwise) of the addresses of
such mortgagee(s). Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then the
mortgagee(s) shall have an additional ninety (90) days within which to cure
such default.
32. COSTS AND ATTORNEYS' FEES: If Tenant or Landlord shall bring any
action against the other, arising out of this Lease, including any suit by
Landlord for the recovery of Base Rent, Additional Rent or other payments
hereunder, or possession of the Premises, the losing party shall pay the
prevailing party a reasonable sum for attorneys' fees and costs in such suit,
at trial and on appeal, and such attorneys' fees and costs shall be deemed to
have accrued on the commencement of such action.
33. BROKERS. Tenant and Landlord represent and warrant to the other
party that neither it nor its officers or agents nor anyone acting on its
behalf has dealt with any real estate broker and Tenant and Landlord agree to
indemnify the other and hold the other, its agents, employees, partners,
directors, shareholders and independent contractors harmless, from all
liabilities, costs, demands, judgments, settlements, claims, and losses,
including reasonable attorneys fees and costs, incurred by the other party in
conjunction with any such claim or claims of any other broker or brokers
claiming to have interested Tenant in the Building or Premises or claiming to
have caused Tenant to enter into this Lease.
34. LANDLORD'S LIABILITY. Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and agreements herein made on the
part of Landlord are made and intended not for the purpose of binding Landlord
personally or the assets of Landlord but are made and intended to bind only
Landlord's interest in the Premises and Building, including all property in
connection with the building or the Premises as the same may, from time to
time, be encumbered and no personal liability shall at any time be asserted or
enforceable against Landlord or its trustees, beneficiaries, stockholders,
officers or partners or their respective heirs, legal representatives,
successors and assigns on account of the Lease or on account of any covenant,
undertaking or agreement of Landlord in this Lease. In no event shall Landlord
be liable for any indirect or consequential damages, including without
limitation, loss of profits, loss of business, damage to goodwill and/or
damage to reputation. To the maximum extent this agreement may be made
effective according to law, Tenant agrees that Landlord shall not be
responsible or liable to Tenant, or to those claming by, through or under
Tenant, for any loss or damage that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the
premises adjacent to or connecting with the Premises or any part of the
property upon which the Premises is located or otherwise. No personal
liability shall at any time be asserted or enforceable against any individual
stockholder of Tenant or their respective heirs, legal representatives,
successors and assigns on account of the Lease or on account of any covenant,
undertaking or agreement of Tenant in this Lease.
35. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, within
ten (10) days of Landlord's written request, execute, acknowledge and deliver
to Landlord or its designee a written statement stating: the date the Lease
was executed and the date it expires; the date Tenant entered occupancy of the
Premises; the amount of Base Rent, Additional Rent and other charges due
hereunder and the date to which such amounts have been paid; that this Lease
is in full force and effect has not been assigned, modified, supplemented or
amended in any way (or specifying the date and terms of any agreement so
affecting this Lease); that this Lease represents the entire agreement between
the parties as to this leasing; that all conditions under this Lease to be
performed by Landlord have been satisfied (or specifying any such conditions
that have not been satisfied); that all required contributions by Landlord to
Tenant on account of Tenant's improvements have been received (or specified);
that all required contributions by Landlord to Tenant on account of Tenant's
improvements have been received (or specifying any such contributions that
have not been received); that on this date, there are no existing defenses or
offset which Tenant has against the enforcement of this Lease by Landlord;
that no Rent has been paid more than one (1) month in advance; that no
security has been deposited with Landlord (or, if so, the amount thereof); or
any other matters evidencing the status of the Lease, as may be required
either by a lender making a loan to Landlord to be secured by a deed of trust
or mortgage against the Building, or a purchaser of the Building. It is
intended that any such statement delivered pursuant to this paragraph may be
relied upon by a prospective purchaser of Landlord's interest in the Building.
If Tenant fails to respond within ten (10) days of receipt by Tenant of a
written request by Landlord as herein provided, Tenant shall be deemed to have
given such certificate as above provided without modification and shall be
deemed to have admitted the accuracy of any information supplied by Landlord
to a prospective purchaser or mortgagee.
36. FINANCIAL STATEMENTS. Within five (5) days after Landlord's
request, Tenant shall deliver to Landlord the most current financial
statements the Tenant has prepared, and financial statement of the two (2)
years prior to the current financial statements year, with an opinion of a
certified public accountant, including a balance sheet and profit and loss
statement for the most recent prior year, all prepared in accordance with
generally accepted accounting principles consistently applied. In addition,
within five (5) days after Landlord's request Tenant shall furnish Landlord
with copies of any updated financial statements or information made available
to banks. Tenant shall promptly notify Landlord of any material change in its
financial condition. If Tenant consists of more than one entity, all of the
foregoing requirements shall apply to each such entity. Notwithstanding the
foregoing and as long as Tenant's Guarantor remains a publicly traded company
and issues quarterly audited financial statements, the failure of Tenant to
provide such financial information shall not be deemed a breach of this Lease.
Landlord recognizes that the Tenant is a wholly owned subsidiary of the
Guarantor. Further, the Landlord recognizes that the Guarantor is a publicly
traded company and that consolidated earnings, including those earnings of the
Tenant, are publicly reported every quarter and are available on the Internet
at xxx.xxx.xxx at the "XXXXX" portion of that web site.
37. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer(s)
of Landlord's interest in the Premises or the Building, other than a transfer
for security purposes only, the transferor shall be automatically relieved of
any and all obligations and liabilities on the part of Landlord accruing from
and after the date of such transfer, and Tenant agrees to attorn to the
transferee.
38. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money,
other than Base Rent and Additional Rent, required to be paid by it hereunder
or shall fail to perform any other act on its part to be performed hereunder,
and such failure shall continue for twenty (20) days, Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease. Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of the nonpayment of sums due under this
section as in the case of default by Tenant in the payment of Rent. All sums
paid by Landlord and all penalties, interest and costs in connection
therewith, shall be due and payable by Tenant on the next day after such
payment by Landlord, together with interest thereon at the maximum rate of
interest permitted by law from such date to the date of payment.
39. SALES AND AUCTIONS. Tenant may not display or sell merchandise
outside the exterior walls and doorways of the Premises and may not use such
areas for storage. Tenant further agrees not to install any exterior lighting,
amplifiers or similar devices or use in or about the Premises and advertising
medium which may be heard or seen outside the Premises, such as flashing
lights, searchlights, loudspeakers, phonographs or radio broadcasts. Tenant
shall not conduct or permit to be conducted any sale by auction in, upon or
from the Premises whether said auction be voluntary, involuntary, pursuant to
any assignment for the payment of creditors or pursuant to any bankruptcy or
other insolvency proceeding.
40. ACCESS TO ROOF. Tenant shall have the right of access to the roof
of the Building and shall not be permitted to install any aerial, fan, air
conditioner or other device on the roof of the Building without the prior
written consent of Landlord. Any aerial, fan, air conditioner or device
installed with such written consent shall be maintained by Tenant in good
condition and shall be subject to removal by Landlord, at Tenant's expense,
without notice, at any time. Tenant shall be permitted access to the roof
without prior written notice to Landlord to repair or maintain any equipment
installed on the roof. Tenant shall also be responsible for reimbursing
Landlord for any repairs and restoration to the roof or Building resulting
from the installation, repair, maintenance or removal of such items on the
roof. Any Tenant access or actions shall not violate any warranties on the
roof.
41. SECURITY. Section intentionally deleted
42. AUTHORITY OF TENANT. If Tenant is a corporation or partnership,
each individual executing this Lease on behalf of said corporation or
partnership represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of said corporation or partnership, and that this
Lease is binding upon said corporation or partnership.
43. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the Rent and other sums due hereunder shall
be deemed to be other than on account of the earliest rent or other sums due,
nor shall any endorsement or statement on any check or accompanying any check
or payment be deemed an accord and satisfaction; and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the balance
of such Rent or other sum and to pursue any other remedy provided in this
Lease.
44. MODIFICATIONS FOR LENDER. If in connection with obtaining
financing for the Building or any portion thereof, Landlord's lender shall
request reasonable modifications to this Lease as a condition to such
financing, Tenant shall not unreasonably withhold, delay, or defer its consent
to such modifications provided such modifications do not materially adversely
affect Tenant's rights hereunder, and Landlord pays all of Tenant's reasonable
attorneys' fees in connection with such modifications.
45. TENANT'S PROPERTY. Tenant may place fixtures, equipment, personal
property and the like involved in operating Tenant's business ("Tenant's
Property") in the Premises. Tenant covenants and agrees that all Tenant's
Property of every kind, nature and description which may be in or upon the
Premises or Building, in the public corridors, or in the sidewalks, area ways
and approaches adjacent thereto, during the term hereof, and any movement of
Tenant's Property, shall be at the sole risk and hazard of Tenant and Tenant
hereby indemnifies and agrees to save Landlord harmless from and against any
liability, loss, injury, claim or suit resulting directly or indirectly
therefrom.
46. EXTERIOR SIGNS AND INSTALLATIONS. Tenant shall place no signs,
installations or structures (collectively "Signs") of any kind or nature
including, without limitation, antennae, communications equipment, satellite
dishes, basketball baskets and poles in the common areas or upon the outside
walls or roof of the Building or elsewhere on the Premises except with the
prior written consent of Landlord which consent shall not be unreasonably
withheld or delayed. Any and all Signs placed on or about the Premises by
Tenant shall comply with Landlord's rules and regulations and all governmental
laws governing such Signs and Tenant shall be responsible to Landlord for any
damage caused by the installation, use, or maintenance of such Signs. Tenant
shall remove any of its Signs, upon the termination of this Lease and repair
any damage caused by the Signs installation or removal and, if Tenant fails to
do so, Landlord shall have the right to remove the Signs and make such repairs
at Tenant's expense.
47. INTENTIONALLY DELETED
48. FLOOR LOAD - HEAVY MACHINERY.
(a) Tenant shall not place a load upon any floor in the Premises
exceeding the floor load of 150 pounds per square foot and no load on the
mezzanine in excess of 50 pounds per square foot.
(b) If any such safe, machinery, equipment, freight, bulky
matter or fixtures requires special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do such work, and that all work
in connection therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant, and Tenant will
exonerate, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly from
such moving.
49. LANDLORD'S DEFAULT. Landlord shall in no event be in default in
the performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty (30)
days, or such additional time as is reasonably required to correct any such
default, after notice by Tenant to Landlord specifying wherein Landlord has
failed to perform any such obligations.
Each of the following shall constitute a "Landlord Default"
hereunder if Landlord breaches, violates or fails to fulfill any other of its
obligations or covenants under this Lease and such breach, violation or
failure is not cured within thirty (30) days after notice from Tenant of such
breach, violation, or failure, or such additional time, not to exceed sixty
(60) days, as is reasonably necessary to cure such breach, violation, or
failure, provided that Landlord commences to cure such default within such
thirty (30) day period and diligently proceeds to complete such cure.
50. TENANT'S RISK. To the maximum extent this agreement may be made
effective according to law, Tenant agrees to use and occupy the Premises and
to use such other portions of the Property as Tenant is herein given the right
to use at Tenant's own risk; and except if caused by Landlord or any Landlord
Party Landlord shall have no responsibility or liability for any loss of or
damage to Tenant's property, or for any inconvenience, annoyance, interruption
or injury to business arising from Landlord's making any repairs or changes
which Landlord is permitted by this Lease, or required by law, to make in or
to any portion of the Premises or other sections of the Property, or in or to
the fixtures, equipment of appurtenances thereof if the same is undertaken,
performed and completed with reasonable diligence. The provisions of this
Section shall be applicable from and after the execution of this Lease, and
during such further period as Tenant may use or be in occupancy of any part of
the Premises or of the Building.
51. GENERAL PROVISIONS.
51.1 ACCEPTANCE. This lease shall only become effective and binding
upon full execution hereof by Landlord and delivery of a signed copy to
Tenant. The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for, the
Premises.
51.2 JOINT OBLIGATION. If there be more than one Tenant, the
obligations hereunder imposed shall be joint and several.
51.3 MARGINAL HEADINGS, ETC. The marginal headings, Table of Contents,
lease summary sheet and titles to the articles of this Lease are not a part of
the Lease and shall have no effect upon the construction or interpretation of
any part hereof.
51.4 CHOICE OF LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
51.5 SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, inure to and bind the
heirs, successors, executors, administrators and assigns of the parties
hereto.
51.6 RECORDATION. Neither Landlord nor Tenant shall record this Lease.
Landlord and Tenant have simultaneously hereunder signed a Notice of Lease
attached hereto as Exhibit B. The Notice of Lease may be recorded at the
request of either Landlord or Tenant.
51.7 QUIET POSSESSION. Upon Tenant's paying the Rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant
shall have quiet possession of the Premises for the term hereof, subject to
all the provisions of this Lease.
51.8 INABILITY TO PERFORM. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, acts of God,
or any other cause beyond the reasonable control of Landlord.
51.9 PARTIAL INVALIDITY. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, acts of God,
or any other cause beyond the reasonable control of Landlord.
51.10 CUMULATIVE REMEDIES. No remedy of election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative with all other
remedies at law or in equity.
51.11 ENTIRE AGREEMENT. This Lease contains the entire agreement of the
parties hereto and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein, shall be of any
force or effect.
51.12 EXHIBITS. All exhibits and addenda attached hereto are
incorporated herein by this reference.
52. RULES AND REGULATIONS. Tenant agrees to comply with such
reasonable rules and regulations as Landlord may adopt from time to time for
the orderly and proper operation of the Building and parking and other common
areas. A copy of the rules and regulations now in effect is attached as
Exhibit B, which Tenant acknowledges and with which Tenant specifically agrees
to comply. Such rules may include but shall not be limited to the following:
(i) restricting of employee parking to a limited, designated area or areas;
and (ii) regulation of the removal, storage and disposal of Tenant's refuse
and other rubbish at the sole cost and expense of Tenant. The rules and
regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible to Tenant for the nonperformance of
any of said rules and regulations by any other tenants or occupants of the
Building.
53. PARKING. Tenant shall have the right to use a total of 195
undesignated parking spaces ("the "Parking Area") for its employees, customers
and guests in the parking lots located on the Property in the front, side and
back of the Building as shown on the attached Exhibit A-1 ("Existing Site
Plan"). Tenant shall indemnify and hold harmless Landlord, its agents,
employees, officers, directors, partners and shareholders from and against any
and all liability, judgment, demands, cause of action, claim, loss of damages,
costs and expenses including reasonable attorney fees and costs arising out of
any use, occupancy, conduct, operation or management of the areas adjacent to
the exterior of the Building including, without limitation, the parking areas,
sidewalks, landscaped areas and access ways, both ingress and egress. In
addition, Tenant agrees for itself and its agents, employees, invitees and
guests to abide by reasonable rules and regulations of general applicability
governing the use of the parking areas adjacent to the Building. Tenant's use
of the parking areas shall be in common with other tenants, invitees and
visitors at the Building. Tenant agrees not to overburden the parking
facilities and agrees to cooperate with Landlord and other tenants in the use
of the parking facilities. Landlord reserves the right in its absolute
discretion to determine whether the parking facilities are becoming
overburdened and to allocate and assign parking spaces among tenants and to
reconfigure the parking area and modify the existing ingress to and egress
from the parking areas as Landlord shall deem appropriate. Landlord shall
maintain and repair the parking facilities so as to maintain them in a safe
and passable condition. The cost of such maintenance shall be included as
Additional Rent.
54. OPTION TO EXTEND. Tenant shall have the option to extend the
initial Term as to the entire Premises for one (1) additional period of ten
(10) years (the "Additional Term"), upon the same terms and conditions then in
effect with respect to the Premises, except for Annual Fixed Rent (as
hereinafter defined), which shall be determined as provided hereinbelow,
provided that at the time such option to extend is exercised and at the
expiration of the initial Term Tenant shall not be in default under this Lease
beyond any applicable notice and cure period.
Annual Fixed Rent for the Additional Term payable with respect to
the Premises shall be the greater of (i) the prevailing fair market rental
rate for the Premises as of the date of commencement of the Additional Term,
as determined as hereinafter set forth, or (ii) the Annual Fixed Rent payable
by Tenant with respect to the Premises for the last Lease Year during the
initial Term.
At any time after the date which is thirteen (13) months prior to
the Expiration Date and prior to the date which is eleven (11) months prior to
the Expiration Date, Tenant may request Landlord to inform Tenant of
Landlord's determination of the prevailing fair market rental rate for the
Premises which will be in effect for the Additional Term, and in such event
Landlord shall within twenty (20) days thereafter notify Tenant as to the
prevailing fair market rental rate for the Additional Term as of the
commencement of the Additional Term, as determined by Landlord ("Landlord's
Rent Notice").
If Tenant elects to exercise the option to extend the initial Term
of this Lease for the Additional Term, Tenant shall do so by written notice to
Landlord ("Tenant's Exercise") given not later than the date which is ten (10)
months prior to the Expiration Date or the date which is mutually agreed upon
at such time. If Tenant fails to exercise the extension option within the
aforesaid time period, Tenant's right to such extension of the Term of this
Lease shall expire. Tenant's Exercise shall contain a statement from Tenant
that it either accepts or rejects Landlord's determination of the prevailing
fair market rental rate for the Premises as set forth in Landlord's Rent
Notice. If Tenant rejects Landlord's determination of the prevailing fair
market rental rate for the Premises as set forth in Landlord's Rent Notice,
then Tenant's Exercise shall also contain the name of one appraiser. In such
event Landlord shall, within twenty (20) days of Landlord's receipt of
Tenant's Exercise, provide Tenant with written notice of a second appraiser.
Thereafter, within ten (10) days of Landlord's designation of the second
appraiser, Landlord's and Tenant's respective appraisers shall select a third
appraiser. Each appraiser shall have had at lease ten (10) years experience in
the valuation of commercial real estate and lease transactions in the
Metropolitan Boston area. Within thirty (30) days of the selection of the
third appraiser as aforesaid, the three appraises (by a majority decision or
by an average of the three individual determinations if no majority decision
is reached) shall determine the prevailing fair market rental rate for the
Premises for the Additional Term. Such determination of the prevailing fair
market rental rate for the Premises for the Additional Term shall be
conclusive and biding upon Landlord and Tenant. Landlord and Tenant shall each
be responsible for the costs of their respective appraiser, and Landlord and
Tenant shall each be responsible fifty percent (50%) of the costs of the third
appraiser.
55. Section intentionally deleted
ADDITIONAL PROVISIONS.
56. LANDLORD'S INSURANCE. Landlord shall maintain at all times
during the term of the Lease the following insurance policies: (I) fire
insurance (including extended coverage, vandalism, boiler insurance, loss of
rents insurance, malicious mischief, sprinkler leakage and water damage
coverage and demolition and debris removal), insuring in full the replacement
cost of all improvements, alterations and additions to the Building, and all
other property owned or used by Landlord and located at the Building; and (II)
commercial general liability insurance, contractual liability insurance and
property damage insurance with respect to the Building with limits of not less
than $5,000,000 combined single limit for personal injury, sickness or death
or for damage to or destruction of property for any one occurrence and not
less then $5,000,000 combined single limit for personal injury, sickness or
death or for damage to or destruction of property for total claims in the
aggregate during any one (1) policy year. The cost of such insurance shall be
included in the operating expenses and paid as Additional Rent subject to
Section 9 herein.
57. LANDLORD'S REPRESENTATIONS AND COVENANTS AS TO HAZARDOUS
MATERIALS.
The parties acknowledge that Landlord does not make any representation or
warranty whatsoever with respect to the condition of the Premises or the
Building or any portion thereof (including the absence or presence thereon or
therein of Hazardous Materials, asbestos or any other building material) other
than those representations and warranties contained in Section 5.2.8 hereof.
Tenant acknowledges that it has had opportunity to inspect the premises and
satisfy itself with respect to the condition of the same and takes the
Premises in "As Is / Where is " conditions, excepting the work to be performed
by Landlord hereunder.
Landlord agrees that it shall not generate, store, handle, or dispose of any
Hazardous Materials in, on or about the Premises in any manner contrary to
applicable laws. Landlord shall not permit its agents, employees, contractors
or representatives to generate, store, handle, or dispose of any Hazardous
Materials in, on or about the Premises in any manner contrary to applicable
laws.
All obligations of the parties contained in this Lease in connection with
Hazardous Materials shall survive the expiration or earlier termination of
this Lease Agreement.
58. ADDITIONAL LANDLORD REPRESENTATIONS AND WARRANTIES. Landlord
represents and warrants to Tenant as follows:
(a) Landlord is the sole fee simple owner of the Property;
(b) As of the date of the Lease Bear Xxxxxxx Commercial
Mortgage Inc is the only mortgagee of the Property or any
portion thereof;
(c) Landlord shall use its diligent efforts to obtain an
agreement from such mortgagee providing a customary
Nondisturbance Agreement.
59. LANDLORD'S AUTHORITY. Landlord and the officers signing this
Lease on behalf of Landlord represent and warrant to Tenant that Landlord is a
Massachusetts corporation duly organized and validly existing, and has full
power and authority to execute, deliver, and perform its obligations under
this Lease, and the execution, delivery, and performance hereby have been duly
authorized by all necessary action of Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, under
seal, in triplicate, on the day and year first above written.
TENANT: LANDLORD:
SMTEK New England, Inc. Cedar Marlboro
a Massachusetts Corporation a Massachusetts Corporation
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxxx Xxxxxx Xxxxx X. Xxxxxxxx
EXHIBIT B
FOR LEASE OF 000 XXXXX XXXX XXXX
RULES AND REGULATIONS
Landlord reserves the right to institute rules and regulations for the safety
of all occupants in the existing and proposed building reference the Lease.
GUARANTY OF PAYMENT AND
PERFORMANCE OF LEASE OBLIGATIONS
THIS GUARANTY made as of this 1st day of November 2001, by and between SMTEK
International, Inc. having its main office at 0000 Xxxxxx Xx., Xxxxxxxx Xxxx,
XX 00000 (hereinafter called the "Guarantor") and Cedar Marlboro Realty
Corporation having an office at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xx. 00000
(hereinafter called "Lessor").
WITNESSETH:
WHEREAS, SMTEK New England, Inc., having an office at 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxxxxx, Xx 00000 (hereinafter called "Lessee"), has requested Lessor to
enter into a certain lease (hereinafter called the "Lease").
WHEREAS, Lessor is willing to enter into the Lease with Lessee only if it
received a guaranty of Guarantor covering the Obligations of Lessee (as
hereinafter defined) to Lessor under the Lease.
NOW THEREFORE, for good and valuable consideration, and in order to induce
Lessor to enter into the Lease with Lessee, Guarantor hereby guarantees,
absolutely and unconditionally, to Lessor the full, faithful and punctual
performance, fulfillment, observance and payment of all of the obligations and
liabilities of Lessee under the Lease, monetary and otherwise, and all other
obligations and liabilities of Lessee to Lessor of whatever nature, whether
now existing or hereafter incurred, whether matured or unmatured and whether
absolute or contingent in connection with the Lease all of which are herein
collectively called the "Obligations of Lessee".
Guarantor agrees that, with or without notice or demand, Guarantor shall
reimburse Lessor, to the extent that such reimbursement is not made by Lessee,
for all expenses (including counsel fees) incurred by Lessor in connection
with any of the Obligations of Lessee.
All money available to Lessor for application in payment or reduction of the
monetary Obligations of Lessee may be applied by Lessor in such manner and in
such amounts and at such time or times as it may see fit to the payment or
reduction of such of the monetary Obligations of Lessee as Lessor may elect.
Guarantor hereby agrees that all rights and remedies of Lessor under the Lease
and hereunder shall survive any discharge, moratorium or other relief granted
any person primarily or secondarily liable in any proceeding under federal or
state law relating to bankruptcy, insolvency or the relied or rehabilitation
or debtors, and any consent by Lessor to, or participation by Lessor in the
proceeds of, any assignment, trust or mortgage for the benefit of creditors,
or any composition or arrangement of debts, may be made without the
undersigned being discharged or affected in any way thereby. However, any and
all proceeds or benefits received by the Lessor from any source shall operate
as a set off in favor of the Guarantor.
Guarantor hereby waives (a) notice of acceptance of this guaranty and of
extensions of credit by Lessor to Lessee; (b) notice of and consent to any and
all amendments, extensions and renewals of the Lease, and all assignments,
subleases and other actions that may be permitted thereunder by Lessee or
Lessor, any and all other amendments, extensions and renewals, any and all
advances, extensions, settlements, compromises, favors and indulgences, any
and all receipts, substitutions, additions and releases of person primarily or
secondarily liable, and any and all acceptances by Lessor or negotiable
instruments, commercial paper and other property, and agrees that none of the
foregoing, should there be any, shall discharge or affect in any way the
liability of the undersigned hereunder; (c) presentment and demand for payment
of any of the Obligations of Lessee; (d) protests and notice of dishonor or
default to the undersigned or to any other party with respect to any of the
Obligations of Lessee; (e) all other notices to which Guarantor might
otherwise be entitled; (f) any demand for payment under this guaranty; and (g)
any right to require marshaling or exhaustion of any right or remedy against
any person, collateral or other property. Notwithstanding any of these
subsections (a) through (g), any and all proceeds or benefits received by the
Lessor from any source shall operate as a set off in favor of the Guarantor.
This is a guaranty of payment and performance and not of collection and
Guarantor further waives any right to require that any action be brought
against Lessee or any other person or to require that resort be had to any
security or to any balance of any deposit account or credit on the books of
Lessor in favor of Lessee or any other person.
Each reference herein to Lessor shall be deemed to include its successors and
assigns, in whose favor the provisions of this guaranty shall also inure. Each
reference herein to Guarantor shall be deemed to include the heirs, executors,
administrators, legal representatives, successors and assigns of Guarantor,
all of whom shall be bound by the provisions of this guaranty.
The term "Guarantor" as used herein shall, if this instrument is signed by
more than one party, mean the "Guarantor and each of them" and each
undertaking herein contained shall be their joint and several undertaking,
provided, however, that in the next succeeding paragraph hereof the term
"Guarantor" shall mean the "Guarantor or any of them." If any party hereto
shall be a partnership, the agreement and obligations on the part of the
undersigned herein contained shall remain in force and applicable
notwithstanding any changes in the individuals composing the partnership and
the term "Guarantor" shall include any altered or successive partnerships but
the predecessor partnerships and their partners shall not thereby be released
from any obligation or liability.
No delay on the part of Lessor in exercising any rights hereunder or failure
to exercise the same shall operate as a waiver of such rights; no notice to or
demand on Guarantor shall be deemed to be a waiver of the obligation of
Guarantor or of the right of Lessor to take further action without notice or
demand as provided herein; not in any event shall any modification or waiver
of the provisions of this guaranty be effective unless in writing nor shall
any such waiver be applicable except in the specific instance for which given.
This is, and shall be deemed to be, a contract entered into under and pursuant
to the laws of the Commonwealth of Massachusetts and shall be in all respects
governed, construed, applied and enforced in accordance with the laws of said
Commonwealth; and no defense given or allowed by the laws of any other state
or country shall be interposed in any action hereon unless such defense is
also given or allowed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Guarantor has executed these presents under seal as of the
day and year first above written.
By:
----------------------------
Xxxx Xxxxxxx, CFO
SMTEK International, Inc.
MA Lease.doc
