EXHIBIT 10.21
LEASE AGREEMENT
This Lease Agreement (the "Agreement") is entered into by and between
GUADALAJARA INDUSTRIAL TECHNOLOGICO, S.A. DE C.V. (hereinafter referred to as
"Lessor") represented herein by Xxxxxx Xxxxxxxxx, its legal representative, and
PEMSTAR DE MEXICO, S.A. DE C.V., represented herein by Xxxxxxxx Xxxxx, its legal
representative, (hereinafter referred to as "Lessee") under the following
recitals and clauses.
RECITALS
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I. The Lessor, through its legal representative, hereby represents that:
a) It is a mercantile corporation incorporated under the laws of Mexico.
b) It is the owner of a parcel of land with an area of approximately
104,950 square meters, as more fully described in Exhibit "A" hereto
(the "Park"), and is the owner of a building being constructed thereon
identified as Building No. 1, with a total area of approximately
15,954 square meters (the "Building"), located at Prol. Las Xxxxxxx
No. 4500, Col. Xxxxx xx xx Xxxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx, XX
00000. The Park and the Building are described in the blueprint
attached hereto as Exhibit "B" which is incorporated herein by
reference.
c) It desires to design and construct for Lessee, as part of this
Agreement, certain leasehold improvements (the "Improvements") in and
around the Building, in accordance with the terms and subject to the
conditions of this Agreement.
d) It desires to lease approximately 5,575 m2 in total area in the
Building and associated Common Area (collectively referred to
hereinafter as the "Property") to the Lessee under the terms and
conditions hereof.
e) Lessor and its legal representative have the necessary authority to
execute this Agreement. Said authority has not been limited nor
revoked in any manner whatsoever.
II. The Lessee, through its legal representative, hereby represents that:
a) It is a mercantile corporation incorporated under the laws of Mexico.
b) It wishes to lease the Property from Lessor under the terms and
conditions hereof.
c) The Lessee and its legal representative have the necessary authority
to execute this Agreement. Said authority has not been limited nor
revoked in any manner whatsoever.
Based on the foregoing premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
mutually agree as follows:
AGREEMENT
ARTICLE ONE
THE PROPERTY
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(a) The Lessor warrants and represents that as of the first day of the
Initial Term (as hereinafter defined) it will have free, clear, absolute,
complete and unrestricted ownership of the Property, and that the Lessee shall
have the uninterrupted, quiet use and enjoyment of the Property. Lessor shall
design, construct and lease to Lessee, and Lessee shall lease from Lessor, the
Property, including the Improvements.
(b) Pursuant to the terms of this Lease Agreement, the Lessor shall deliver
to the Lessee the temporary use and possession of the Property including the
Improvements in accordance with the terms hereof, and Lessee shall accept the
delivery of same and covenants and agrees to use and enjoy the Property pursuant
to the provisions hereof.
ARTICLE TWO
CONSTRUCTION OF THE BASE BUILDING AND THE IMPROVEMENTS
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(a) Lessor shall furnish, at Lessor's sole cost and expense, all of the
material, labor and equipment necessary for the design and construction of the
Building and the Improvements in accordance with the terms of this Agreement.
Lessor shall construct the Building and the Improvements in a good and
workmanlike manner and shall construct the Improvements in accordance with the
scope of work dated June 26, 1998, which is found in the attached Exhibit "C",
as modified by the Lessor's comments and changes to those specifications
provided in the attached Exhibit "D". Lessor shall complete the construction of
the Building and the Improvements in accordance with all applicable statutes and
building codes, governmental rules, regulations and orders in effect to the
Municipio de Tlaquepaque, Estado de Jalisco, Republic of Mexico (collectively
referred to as the "Legal Requirements"). Lessor shall provide Lessee with one
set of "as-built" drawings of the Improvements within sixty (60) days after
substantial completion.
(b) Lessor shall substantially complete the Building and the Improvements
within six and one-half months from the date this Lease Agreement is fully
executed by both Lessee and Lessor, contingent upon Lessee's responding in a
timely fashion to all construction issues and questions that require Lessee's
input or approval. Commencing sixty (60) days in advance of that projected date
of completion, with Lessor's written permission, Lessee's employees and
contractors may enter the Improvements for the purpose of installing, in
accordance with Legal Requirements, Lessee's machinery, equipment, fixtures and
other personal property, as described in detail in Exhibit "E" hereto
(hereinafter "Lessee's Equipment"). Lessee will be responsible for installing
its Equipment in a manner that will not damage or alter the Building and the
Improvements. Upon vacating the premises at the end of the Lease Term, Lessee
will be responsible for repairing and/or replacing any damage or alterations
made to the Building due to the installation of its Equipment. Lessee will
submit an overview plan explaining the installation of Equipment to the Lessor,
prior to beginning these installations, for Lessor's review and approval. Lessee
may exercise this early entry privilege only if Lessee ensures that its
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employees and contractors do not interfere with Lessor's completion of the
construction of the Building and Improvements. Entry by Lessee's employees and
contractors for this limited purpose will not constitute Lessee's acceptance of
the Improvements or give rise to any obligation to pay rent with respect to the
Improvements.
(c) Lessee, upon satisfactory inspection of the completed Improvements,
shall deliver a formal notice of acceptance of the Improvements ("Notice") to
Lessor. Lessee shall have no obligation to pay rent and Lessor shall have no
obligation to permit lessee to occupy the Improvements until Lessee delivers
said Notice to Lessor. However, if, prior to Lessee's delivery of the Notice,
the Improvements are partially ready for occupancy and Lessee desires to
partially occupy the Property, Lessee may, with Lessor's prior written approval,
occupy the portion of the Improvements that is ready for occupancy and, in the
event of such occupancy, Lessee shall pay to Lessor a proportionate part of the
rent as equitably calculated on the basis of the value and area of that part of
the Improvements Lessee occupies. If, prior to substantial completion of the
construction of the Improvements, Lessee occupies a portion of the Improvements,
the terms of this Agreement will apply to that occupancy and such occupancy
shall signify Lessee's acceptance of Lessor's construction of the Improvements,
an acceptance which will only be applicable to the areas which are occupied
prior to final completion of the total building and improvements.
(d) Lessor must afford Lessee and its contractors reasonable access to the
Improvements during construction for the purposes of making preparations for
work that Lessee must undertake to ready the Improvements for Lessee's use. The
Lessee will obtain written approval from the Lessor for such early access and
evaluations.
(e) During the construction of the Building and Improvements, Lessee and
Lessor may jointly agree to Change Orders as to the specifications and design of
the Improvements. Only in cases where these Change Orders affect the original
scope of work described in the specifications in Exhibit "C" as modified by the
Lessor's alterations thereto described in Exhibit "D", the rent described in
Article Six below will be adjusted based on the project costs added to or
deducted from the original total cost of the construction project. The final
costs of the total Change Orders, if the result is an increase in overall
project cost on behalf of the Lessor, will be added to the monthly rent to be
paid by Lessee based on a capitalization rate of fifteen (15%) percent per
annum. Likewise, should the total Change Orders result in a lower project cost
on behalf of the Lessor, the final value of the Change Orders will be deducted
from the rent based on the same capitalization rate.
The Lessee and Lessor will work together in regard to Change Orders that affect
the original scope of work as described in Exhibit "C" and as modified by
Exhibit "D" in terms of bidding and analyzing the costs to be incurred in
implementing these Change Orders.
Moreover, Lessor will maintain the right to affect its own Change Orders in
regard to the construction of the Building and Improvements and will not be
required to obtain Lessee's approval for these Change Orders as long as said
changes do not substantially affect the scope of work described in Exhibit "C"
and Lessor's alterations thereto described in Exhibit "D".
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(f) Lessor shall ensure that the computer controlled systems which are
installed by or used by the Lessor in the Building and Improvements are
Millennium Compliant. The Millennium Compliant status shall be verified at
Lessor's option by either (a) a written warranty from the system manufacturer;
or (b) by physical testing of the system by a qualified third party. Lessor
shall give Lessee at least three (3) days notice in advance of any testing and
shall afford Lessee an opportunity to observe all such testing. Upon Lessee's
request, Lessor shall promptly provide Lessee with copies of written warranties
made by manufacturers of any systems affecting the Premises.
Millennium Compliant shall mean the ability of a system to provide the
following functions:
(i) consistently handle date information before, during and after
January 1, 2000, including but not limited to accepting date input,
providing date output, and performing calculations on dates or portions of
dates;
(ii) function accurately in accordance with all specifications and
without interruption before, during and after January 1, 2000, without any
change of operations associated with the advent of the new century;
(iii) respond to two-digit date input to the system in a way that
resolves any ambiguity as to century in a disclosed, defined and
predetermined manner; and
(iv) store and, if any system display or other output is available,
provide output of date information in ways that are unambiguous as to
century.
ARTICLE THREE
EXPANSION OPTION
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(a) The Lessee will have the right to expand its total rentable area to
approximately 11,150 m2 (the difference between the initial rentable area of the
Property and the rentable area as expanded being called the "Expansion Space")
during a twenty-four (24) month period (the "Option Period"). The Option Period
shall begin upon the Lessee's delivery to Lessor of its Notice of acceptance of
the Improvements.
(b) During months 1-12 of the Option Period, the Expansion Space will be
held off the market for the benefit of the Lessee.
(c) During months 13-24 of the Option Period, Lessor will have the right to
market the space as available for lease. However, each time during that period
that Lessor is solicited for a proposal by a third party in writing in regard to
the Lessee's Expansion Space, Lessor will be required to submit to the Lessee,
in writing, a notice that a proposal is forthcoming in regard to the Expansion
Space. The Lessee will then have seven (7) days within which to decide in
writing if it desires to exercise its option to expand at that immediate time.
If the Lessee does not respond as such, Lessor will proceed in negotiations with
the third party. Once Lessor has begun
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negotiations with a third party on the Expansion Space, the Lessee will have no
right to exercise its right to expand until the matter with that particular
third party is concluded.
Lessor's negotiation period with the third party will be limited to forty-five
(45) days from the time Lessee's seven-day response time expires. If Lessor and
the third party have not concluded their negotiations within that time frame,
Lessor will be required to submit an additional Notice of Proposal to the Lessee
in order to extend negotiations with the third party, and the Lessee will then
have an additional seven (7) days to decide if it desires to expand in the
Expansion Space.
If Lessor rents the Expansion Space to the third party, then the Lessee's right
to expand automatically expires. If the third party in question decides not to
rent the Lessee's Expansion Space then the Lessee's right to expand will be
restored, but not extended, and Lessor will be required to notify Lessee in
writing when and if another third party solicits a proposal on the space again
in the future until the expiration of the Option Period.
At any time during the Option Period, Lessor will have the right to construct
that portion of the Building which will be the Expansion Space in accordance
with the Lessor's specification as long as it complies with its twenty-four (24)
month commitment to the Lessee. If that portion of the building is already
constructed when and if the Lessee chooses to exercise its option to expand, the
Lessee will be required to move into the new space and begin paying rent within
a maximum period of thirty (30) days.
If the Expansion Space is not already constructed or completed for occupancy
when and if the Lessee chooses to exercise its option to expand, the Lessee will
be required to move into the new space and begin paying rent at the time the
space does become "substantially complete". It is estimated that the time-frame
for the construction of the Expansion Space will be approximately five (5) to
six (6) months.
At such time that Lessee exercises its option to expand, the rent to be paid per
square meter for the Expansion Space will be the same amount that is being paid
per square meter for the Property at the time Lessee exercises its right to
expand. Furthermore, the rent to be paid in regard to the Expansion Space shall
be subject to the annual increases in rent to be paid for the original space,
pursuant to Article Six of this agreement.
The construction specifications, materials and design for the Improvements in
the Expansion Space shall be in accordance with the same standards and design to
be implemented in the construction of the Property.
Lessor will make its best efforts to first least all of the other buildings to
be constructed in the Park, prior to constructing the Expansion Space and
offering it as available to other clients. Although it is Lessor's intent to
build the Expansion Space once all other space in the Park has been rented,
Lessor cannot guarantee that that will occur.
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ARTICLE FOUR
LEASE TERM
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(a) The initial term of this Lease (Initial Term) will begin upon Lessee's
delivery to Lessor of the Notice and extend until the last day of the one
hundred and twentieth (120th) full calendar month thereafter.
(b) Lessee shall receive two (2) five-year options ("Option Period') to
extend the original Lease Term. The Lease Price to be paid during any Option
Period will be negotiated at the time that said Option is exercised, but the
Lease Price will be no less than the amount Lessee is paying at the time of the
Option and will, at least, be subject to the same annual rent escalations
referred to in Article Six below.
ARTICLE FIVE
USE AND ENJOYMENT OF THE PROPERTY
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(a) The Lessor agrees that, as provided by Article [2409] of the Federal
District Civil Code and its corresponding Article of the Civil Code for the
State of Jalisco, this Lease Agreement shall survive any ownership conveyance
with respect to the Property or the foreclosure of any lien or mortgage of
Lessor and/or its assignees, transferees, successors and any and all other third
parties in the chain of title of the Property, and that any default in payment
of such liens or mortgages shall in no way prejudice the terms of this Lease
Agreement or any extensions hereof.
(b) The Lessee shall use the Property only for those purposes set forth in
detail in Exhibit "F" attached hereto and made a part hereof for all purposes,
and hereby agrees to notify Lessor in the event it wishes to modify the intended
use of the Property as set forth therein. Lessee's intended use of the Property
shall comply with all applicable laws and regulations necessary for the quiet
use of the Property and the Property shall not be used in any way which
contravenes the laws and regulations of the Municipality of Guadalajara, the
State of Jalisco, or the Federal Republic of Mexico.
(c) As stated above in Article 2(b), Lessee's Equipment which is to be
installed on the Property is described in detail in EXHIBIT "E" hereto. The
installation of Lessee's Equipment shall be carried out in a manner consistent
with all applicable municipal, state and federal regulations. Lessor's
requirement for approval as to any new equipment to be installed in the Building
following those conditions described in Article Two above, shall be limited to
the installation of new equipment that will cause alteration to the Building and
Improvements.
ARTICLE SIX
LEASE PRICE
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(a) Lessee shall pay Lessor a Lease Price per month equal to U.S. $5.85 per
square meter of rentable area (the "Lease Price") in the Property. The parties
to this agreement mutually agree that at the time of the execution of this
lease, the rentable area of the property is 5,575 square meters. Should the
rentable area change at some time prior to Lessee's occupancy of the building
and the receipt of Lessee's Notice, the total Lease Price will be adjusted to
reflect this
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per square meter lease rate. In addition to the Lease Price, Lessee
will also be responsible for paying Additional Rent (i.e., CAM, Property Taxes
and other rental payments) and the applicable Value Added Tax ("IVA") (these
three items being hereafter collectively referred to as the "Lease Payment").
(b) The Lease Price shall be fixed and shall remain unchanged until January
1, 2000. At that point and thereafter, the Lease Price will be annually
increased 2% on January 1 of each of the Initial Term.
(c) The Lease Payment shall become due and be paid on the first Friday of
each month; however, there shall be a proration for the period between the date
of delivery of the Notice and the last day of the calendar month in which the
Notice was delivered. The Lessee shall be responsible for ensuring that the
Lease Payment amount is delivered to Lessor's bank account in Guadalajara at
each billing cycle.
(d) The Lease Payment may be paid in Mexican Pesos calculated at the rate
of exchange of the Mexican Peso for the purchase of U.S. Dollars quoted in
Mexico's Federal Gazette (Diario Oficial de la Federaci?n) for the discharge of
obligations denominated in foreign currency published on the day when actual
payment is made, showing the rate as of the closing of the previous day.
(e) If Lessee becomes delinquent with respect to the payment of any amount
due under the terms of this Agreement, including, without limitation, the Lease
Payment, such amount, calculated in U.S. Dollars, will bear interest from the
third day following the date that amount becomes due until the date paid at a
monthly interest rate (the "Delinquency Rate") of 2%.
ARTICLE SEVEN
LEASE DEPOSIT
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As a condition of occupying the Property, Lessee hereby agrees to pay to Lessor,
upon execution of this Agreement, a Lease Deposit, which shall consist of the
Lease Payments due for two (2) full months of the Initial Term. The Lease
Deposit shall be returned to Lessee upon expiration of the Lease and upon
Lessee's vacancy of the Property, following Lessor's approval of the condition
of the Property, which shall not be unreasonably withheld.
ARTICLE EIGHT
TAXES
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(a) The Lessee shall be responsible for payment of the Value Added Tax
("IVA") applicable to the Lease Price. The Lessee shall also be responsible for
paying its pro-rata share of the Property Tax corresponding to the Property.
Such Property Tax shall be considered part of additional rent and shall be
invoiced directly by Lessor or Lessor's designee to Lessee. Should Lessee opt to
expand its leased space pursuant to Article Three, the Lessee's pro-rata share
of Property Tax shall be immediately increased accordingly. All charges for
Property Tax shall be identified separately.
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(b) The Lessor shall be responsible for payment of its own Income Tax and
the Asset Tax associated with the Property.
ARTICLE NINE
COMMON AREA MAINTENANCE ("CAM") AND PARK MANAGEMENT CHARGES
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Beginning at the time of Lessor's acceptance of Lessee's Notice or at the time
of any partial occupancy of the Building by Lessee, Lessee shall pay, on a
monthly basis as invoiced, its pro-rata share of the Common Area Maintenance
costs ("CAM") and management charges in the Park, as invoiced by the Property
Manager designated by the Lessor. The CAM will include, but not be limited to
costs related to Park access control, landscaping, public lights, preventive
maintenance, repair of utilities as required, and other common area services
rendered in the Park. The CAM will also include the costs of salaries, bonuses,
wages and any other direct or indirect cost related to the employment of
personnel sufficient to complete the responsibilities of the Manager, to include
a prorated portion of Accounting, Management and Technical personnel working
off-site, but contributing directly to the Park. CAM and management charges are
considered part of additional rent for purposes of this Lease. Lessee shall pay
the CAM charges within ten (10) days of receipt of each monthly invoice.
Not later than thirty (30) days prior to Substantial Completion of the Building,
the Park Manager shall deliver to Client a Notice advising the Lessee of the
monthly payments to be made by Lessee for the CAM charges for the remainder of
1999, such payments beginning at the time of Substantial Completion of the
Building. Such amount shall represent the Park Manager's good faith estimate of
anticipated CAM Services for such year. Lessee's CAM charges for 1999 shall not
exceed US$800.00 per month.
Lessee's CAM charges will be determined from year-to-year thereafter based on
Lessee's pro-rata share of the total CAM costs incurred annually by the Park.
Lessee's pro-rata share will be the percentage that the total square meters of
Lessee's Building bear to the entirety of the Rentable Area of the Park. The
"Rentable Area" shall be the entirety of all buildings in the Park that will be
developed. At this time, it is estimated that Lessor will ultimately construct
approximately a total of 60,000 square meters of buildings in the Park. As a
result, it is estimated that Lessee's pro-rata share of the total CAM costs
annually by the Park will be approximately 9%, assuming the square meter size of
Lessee's rentable area at this time as defined in Article Six above and assuming
the total area of the Park as defined in Recital I(b) above.
Beginning in 1999 and during the last ninety (90) days of each calendar year of
the Lease, the Park Manager will provide Lessee with its good faith estimate of
the CAM charges to be incurred during the following year. Lessee will then pay
its monthly pro-rata share of CAM charges during the following year based on
that estimate. Within ninety (90) days following the end of each calendar year,
the Park Manager shall reconcile and report to Lessee the amounts paid for CAM
Services and the amount received for CAM charges during the previous calendar
year. Any payments made by Lessee in excess of its pro-rata share of the CAM
charges shall then be credited to the Lessee's account. Conversely, if Lessee's
CAM payments during the previous year were less than Lessee's pro-rata share of
actual CAM costs accrued by the Park
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Manager, the additional amounts shall then
be invoiced to the Lessee at that time and Lessee will be responsible for
payment of this additional amount within thirty (30) days of receiving the
invoice.
The Lessee will have the right at any time and from time to time, to audit the
books and records of the Park Manager, at Lessee's sole cost and expense, for
the purpose of verifying its obligation to make any CAM charge payment and the
amount thereof. Such audit shall be upon reasonable notice, at reasonable
frequency and duration.
ARTICLE TEN
MAINTENANCE
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(a) The exact responsibilities of Lessor and Lessee with regard to
maintenance of the Property is set forth in detail in Exhibit "G" attached
hereto and made a part hereof for all purposes. Lessee will receive a monthly
invoice from the Park Manager for Building management and maintenance services
that reflects Lessee's pro-rata share of total Building management and
maintenance expenses.
(b) If, in order for a structural component of the Building to remain in
good condition, replacement of that component becomes necessary, Lessor's
obligation with respect to that structural component includes the obligation to
replace it.
(c) Any need for maintenance or replacement which arises as a result of
Lessee's conduct or negligence shall be accomplished by Lessee at his sole cost
and expense. Such maintenance or replacement will require Lessor's written
approval.
(d) Lessor shall accomplish all maintenance for which it is responsible as
soon as practicable following receipt of notice from Lessee.
(e) If, following notice from Lessor, Lessee fails to make any necessary
repairs or perform any necessary maintenance for which Lessee is responsible,
Lessor may cause the repairs or maintenance to be performed and Lessor's costs
of doing so will be payable as additional rent with the next installment of
Lease Payment that becomes due, or Lessee agrees to reimburse Lessor for these
costs within a period of thirty (30) days following invoicing by Lessor,
whichever comes later. If, following notice from Lessee, Lessor fails to make
any necessary repairs or perform any necessary maintenance for which Lessor is
responsible, Lessee may cause the repairs or maintenance to be performed and
Lessee's costs of doing so will be reimbursed to Lessee by Lessor within thirty
(30) days following invoicing by Lessee and final resolution of Lessor's
responsibility for said repairs. There will be no reduction of the rental
payments in this event.
ARTICLE ELEVEN
ALTERATIONS
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Lessee may, with the prior written approval of Lessor, make modifications or
alterations to the Property, at Lessee's own risk and expense, so long as they
do not result in irreversible damage
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to the Property. Lessee may make minor changes and modifications which do not
alter the structure of the property and do not compromise the quality of the
construction specifications, without the previous consent of the Lessor. All
fixtures and/or equipment of any nature installed in or about the Property by
the Lessee during the term of this Agreement, whether permanently affixed or
not, shall continue being property of the Lessee and shall be removed by Lessee
at the expiration or termination of this Agreement or any extension thereof,
unless Lessee requests and obtains written consent from Lessor, in advance, that
the improvements may remain in or about the Property at the expiration of this
Agreement, such consent not to be unreasonably withheld. Lessee shall promptly
reimburse Lessor for any and all damage caused to the Property by reason of said
removal of fixtures and equipment, or Lessee will also have the option of
repairing said damage at its own cost and restoring the Building to its original
condition.
ARTICLE TWELVE
LIABILITIES OF THE PARTIES
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(a) The Lessor and the Lessee shall each be responsible for damages to the
Property caused by their respective fault or negligence, or that of their
respective agents, employees, visitors or suppliers.
(b) In the event that the Lessee should be prevented, by any reason
attributable to the Lessor, from using any part of the Property, then Lessor
shall, within thirty (30) days following receipt of written notice from Lessee
setting forth the nature of the problem, provide a schedule of restoration
repairs to Lessee, and shall begin completion of the restoration repairs
immediately thereafter in order to restore the Property to its full use as soon
as practicable. During the time from Lessor's receipt of Lessee's notice to the
completion of the restoration repairs, Lessee's Lease Payments shall be reduced
in the same proportion that the non-usable area represents of the total area of
the Property during the period of repair, as will be agreed to in writing by the
parties.
(c) Lessor and Lessee agree that:
(i) The replacement value of any damage or destruction to the Property
shall be determined in good faith.
(ii) Any amounts payable by Lessee to Lessor for damages to the
Property shall be reduced in the amount of any proceeds of any insurance
paid to the Lessor.
ARTICLE THIRTEEN
PERMITS AND LICENSES
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As a condition to Lessee's obligation to pay rent hereunder and to be bound by
the terms of this Agreement, Lessor warrants that, as of the first day of the
Initial Term and throughout the term of the Agreement and any extension thereof,
the Property is zoned industrial for all legal purposes and the Park has been
totally approved by all competent Mexican governmental authorities. Lessee shall
be responsible for obtaining all pertinent permits and licenses required
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in order to allow Lessee to carry out its specific operations at the Property
prior to final occupancy.
ARTICLE FOURTEEN
ASSIGNMENT AND SUBLEASING
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The Lessee may not sublease the Property in whole or in part or assign this
Agreement to a third party without the previous written consent of Lessor, which
consent shall not be unreasonably withheld. At such time that Lessee and Lessor
agree to sublease the Property to a third party, Lessee will still be held
responsible for the Sublessee's adherence to the terms and conditions of this
Lease and to the terms and conditions of any subsequent Sublease Agreement.
ARTICLE FIFTEEN
INSURANCE
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(a) During the term of this Agreement and any extensions thereof, the
Lessor shall contract for and maintain blanket insurance to cover the Property
against any loss or damage by fire, lightning, explosion, hurricane, hail,
airplanes, vehicles, smoke, earthquake and/or volcanic eruption, strikes, riots,
vandalism, malfunction by boiler or compressor, explosion of a high pressure
boiler or compressor, and any other risk now or hereafter customarily covered
and reasonably available by extended coverage insurance, including glass
insurance, in amounts sufficient to prevent the Lessor or the Lessee from
becoming a coinsurer under the terms of the applicable policies, but in any
event in an amount not less than one hundred percent (100%) of the then full
insurable value (replacement value), which for the purposes of this Article
shall be deemed to be the cost of replacing the Property less the cost of
excavation and foundations of the Property. Such "full insurable value" shall be
determined from time to time, but not more frequently than once every twelve
(12) months, by the mutual agreement of the parties, and in lieu thereof, by
means of an appraisal to be performed by one of the three certified appraisers
designated by the Lessor and accepted by the Lessee, which appraisal shall be
paid for by the Lessor.
(b) Lessee's pro-rata share of the cost of this insurance shall be billed
to Lessee by Lessor on a monthly basis.
(c) Lessee shall, at Lessee's cost, be required to maintain its own
liability insurance to cover Lessee's equipment and personnel, and the equipment
and personnel of other occupants of the building, against any loss or damage
caused by Lessee or Lessee's equipment or personnel. Such policy shall name
Lessor as additional insured and shall be maintained through an insurance
company in good standing and acceptable to Lessor.
ARTICLE SIXTEEN
INDEMNITY
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Lessee shall indemnify, defend, save and hold Lessor harmless from and against
all losses, demands, claims, payments, suits, actions, recoveries and judgments
of any nature and type
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brought by any third party against Lessor by reason of any negligence or acts or
omissions of Lessee, its agents or employees, during the term of this Agreement.
Lessor shall indemnify, defend, save and hold Lessee harmless from and against
all losses, demands, claims, payments, suits, actions, recoveries and judgments
of any nature and type brought by any third party against Lessee by reason of
any negligence or acts of omissions of Lessor, its agents or employees, during
the term of this Agreement.
ARTICLE SEVENTEEN
DEFAULT BY LESSEE
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The occurrence of any one or more of the following events (the "Events of
Default") will constitute a default and breach of this Agreement by Lessee:
(i) Lessee's failure to pay the Lease Payment or additional rent when
due and the continuation of that failure for more than five (5) days after
the date on which Lessor gives Lessee written notice of the delinquency.
(ii) Lessee's permanent vacating or abandonment of the Property for a
period of sixty (60) or more consecutive days; with exception of cause
force majeure, acts of God or strikes.
(iii) Lessee's failure to observe or perform any of the covenants,
conditions or provisions of this Agreement that Lessee must observe or
perform, other than the late payment of the Lease Payment, where the
failure continues for a period of thirty (30) days after Lessee's receipt
of written notice from Lessor; if however, the nature of the obligation
that Lessee has failed to perform is such that more than thirty (30) days
are reasonably required for rectification, Lessee will be entitled to an
additional period of time to cure its failure, as reasonably determined by
Lessor, and an Event of Default will not occur so long as Lessee commences
the rectification within that thirty (30)-day period and diligently and
continuously prosecutes the rectification to completion;
(iv) The making by Lessee of any general assignment or general
arrangement for the benefit of its creditors; the filing by or against
Lessee of a petition seeking relief under any law relating to bankruptcy
(unless, in the case of a petition filed against Lessee, Lessee causes the
petition to be dismissed within 60 days after the date of its filing); the
appointment of a lessee or a receiver to take possession of substantially
all of Lessee's assets located in the Property or of Lessee's interest in
this Agreement, where possession is not restored to Lessee within 60 days
after the date of the appointment; or the attachment, execution or other
judicial seizure of substantially all of Lessee's assets located in the
Property or of Lessee's interest in this Agreement unless Lessee causes the
seizure to be discharged within 60 days after the date of the initiation of
the seizure; or
(v) Lessee's failure to discharge any lien placed upon the Property in
violation of this Agreement within 60 days after the lien or encumbrance is
filed against the Property.
12
ARTICLE EIGHTEEN
LESSOR'S REMEDIES
-----------------
At any time after the occurrence of an Event of Default, with or without
additional notice or demand, Lessor may do one or more of the following:
(a) terminate Lessee's right to possession of the Property and repossess
the Property by any lawful means without terminating this Agreement. In that
event Lessor shall use good faith and reasonable efforts under the circumstances
to re-let the Property for the account of Lessee on such terms and conditions as
Lessor in its sole discretion may determine to be appropriate (including a term
different than the Term, rental concessions, alterations and repair of the
Property). Lessor reserves the right, however, (i) to lease any other comparable
space available in any other building Lessor owns prior to offering the Property
for lease and (ii) to refuse to lease the Property to any potential lessee that
does not meet Lessor's standards and criteria for leasing space in the Park.
Except where Lessor fails to use good faith and reasonable efforts to re-let the
Property, as required above, Lessor will not be liable for, and Lessee's
obligation under this Agreement will not be diminished because of, Lessor's
failure to relet the Property or collect rental due in respect of a reletting.
For the purposes of that re-letting, Lessor may repair, remodel or alter the
Property. If Lessor fails to re-let the Property, Lessee shall pay to Lessor the
Lease Payment reserved in this Agreement for the balance of the Term as those
amounts become due in accordance with the terms of this Agreement. If Lessor
re-lets the Property, but fails to realize a sufficient sum for the re-letting
to pay the full amount of Lease Payments and additional rent reserved in this
Agreement for the balance of the Term as those amounts become due in accordance
with the terms of this Agreement, after paying all of the costs and expenses of
all decoration, repairs, remodeling, alterations and additions and the expenses
of the reletting and of the collection of the rent accruing from the reletting,
Lessee shall pay to Lessor the amount of any deficiency upon Lessor's demand
from time to time made;
(b) terminate this Agreement and repossess the Property by any lawful
means. In that event Lessor may recover from Lessee as damages (i) all Lease
Payments that became due prior to the termination and that remain unpaid, plus
interest accruing in respect of the delinquent sums at the Delinquency Rate, as
defined in Article 4(g), (ii) the discounted presented value (determined based
on the Amortization Rate) of the amount, if any, by which (A) the Base Rent due
under the terms of this Agreement for the balance of the Term that remained as
of the effective date of the termination exceeds (B) the fair market rental
value for the Property (including both base and additional rent components) for
the balance of the Term after deduction of all anticipated reasonable expenses
of re-letting for that period (such as the cost of preparation of the Leased
Property, leasing commissions and reasonable attorneys' fees associated with
occupancy by a new Lessee), (iii) the cost of recovering the Property (including
reasonable attorneys' fees and costs of suit), (iv) all reasonable costs and
expenses Lessor reasonably incurs in connection with the enforcement of Lessee's
obligation to pay those damages, including, without limitation, reasonable
attorneys' fees, and (v) any other sum of money and damages Lessee owes to
Lessor. If the amount described in division (B) above exceeds the amount
described in division (A) above, Lessor has no obligation to pay Lessee any part
of the excess or to credit any part of the excess against any other sums or
damages for which Lessee may be liable to Lessor at the time of the termination;
or
13
(c) pursue any other remedy available to Lessor under the laws of the
jurisdiction in which the Property is located.
For purposes of computing the additional rent that would have accrued and become
payable under the terms of this Agreement, the parties will assume that the
additional rental for the calendar year in which the Event of Default occurs and
each future calendar year for the balance of the Term that remained as of the
effective date of the termination equals Lessee's additional rent for the
calendar year prior to the year in which the Event of Default occurs compounded
at a rate equal to the mean average rate of inflation for the three (3) calendar
years preceding the calendar year in which the Event of Default occurs, as
determined by using the United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index (All Urban Consumers, all items, 1982-84 equals
100) for the Dallas, Texas metropolitan area. If that Index is discontinued or
revised during the term of this Agreement, all parties will use such other
government index or computation with which it is replaced in order to obtain
substantially the same result as would be obtained if the Index had not been
discontinued or revised. If no replacement Index exists, Lessor may select as a
replacement index an index that, in Lessor's reasonable opinion, is generally
recognized as the successor index.
If Lessor repossesses the Property in accordance with the terms of this
Agreement, Lessor has the right to keep in place and use, or to remove and
store, at Lessee's expense, all of the furniture, fixtures and equipment at the
Property, including that which is owned by or leased to Lessee at all times
prior to any foreclosure or repossession by any lessor or security interest
holder having an interest in that furniture, fixtures or equipment (a
"Claimant"). Lessor also has the right to relinquish possession of all or any
portion of the furniture, fixtures, equipment and other property to any Claimant
who presents to Lessor a copy of any instrument that the Claimant represents to
have been executed by Lessee (or any predecessor of Lessee) granting Claimant
the right under various circumstances to take possession of the furniture,
fixtures, equipment or other property, without the necessity on the part of
Lessor to inquire into the authenticity or legality of the instrument. At
Lessor's sole option and without prejudice to, or waiver of any rights it may
have, Lessor may i) escort Lessee to the Property to retrieve any personal
belongings of Lessee and its employees not covered by a lien in favor of Lessor,
or ii) obtain a list from Lessee of the personal property of Lessee and its
employees that is not covered by a lien in favor of Lessor, and make that
property available to Lessee or Lessee's employees, provided that Lessee first
pays in cash all costs and estimated expenses to be incurred in connection with
the removal of the property. Any property that Lessee does not remove within
five days after Lessor's demand will be conclusively presumed to have been
abandoned by Lessee, and Lessor may take over possession of that property and
declare it to be Lessor's property written notice to Lessee. Lessee stipulates
that the rights granted Lessor in this Article are commercially reasonable.
ARTICLE NINETEEN
EACH PARTY'S RIGHT TO PERFORM THE OTHER PARTY'S OBLIGATIONS
-----------------------------------------------------------
If at any time during the Initial Term or any extension thereof, Lessee fails to
perform one or more of its obligations under this Agreement, the Lessor, after
thirty (30) days written notice to
14
Lessee (or without notice in the case of
emergency) and without waiving or releasing the Lessee from any of its
obligations hereunder may, but shall be under no obligation to, perform Lessee's
obligations hereunder and may enter the Property for such purpose, and perform
all the necessary works needed. All reasonable expenses incurred and paid by
Lessor in connection herewith shall be payable by Lessee to Lessor on demand.
If at any time during the Initial Term or any extension thereof, Lessor fails to
perform one or more of its obligations under this Agreement, the Lessee, after
thirty (30) days written notice to Lessor (or without notice in the case of
emergency) and without waiving or releasing the Lessor from any of its
obligations hereunder may, but shall be under no obligation to, perform Lessor's
obligations hereunder and may enter the Property for such purpose, and perform
all the necessary works needed. All reasonable expenses incurred and paid by
Lessee in connection herewith shall be payable by Lessor to Lessee on demand.
ARTICLE TWENTY
SURRENDER OF PROPERTY
---------------------
(a) The Lessee shall, on the last day of the Initial Term of this Agreement
or of its extensions or upon early termination, surrender and deliver the
Property to the Lessor, without delay, in the same conditions in which the
Lessee received such, except for normal wear and tear, and the effects of the
elements and casualties covered by insurance. All signs installed or caused to
be installed by the Lessee shall be removed on or prior to the expiration of the
Initial Term of this Agreement or any of its extensions.
(b) In the event that upon the expiration of the Initial Term or any of its
extensions, Lessee does not vacate and deliver the Property to the Lessor,
Lessee shall pay as new rent the amount established in Article Six above, plus
fifty percent (50%). This fifty percent (50%) penalty shall not be applicable if
Lessee and Lessor are negotiating a renewal or extension of the Lease. In the
event that no negotiations are conducted, Lessee shall not holdover for more
than one month after expiration of the Initial Term of this Agreement or any of
its extensions. Acceptance of holdover payment by the Lessor shall not be
construed as a waiver by the Lessor to any right to recover possession of the
Property.
ARTICLE TWENTY-ONE
ENTRY ON THE LEASED PROPERTY BY LESSOR
--------------------------------------
Lessee shall permit Lessor and its authorized representative to enter the Leased
Property during reasonable business hours time for the purpose of inspecting
same and performing any necessary work therein, following twenty-four (24) hour
written notice from Lessor, except in the case of any emergency, in which case
no notice will be required. The Lessor shall have the right to enter the
Property during business hours during the period of six (6) months prior to
expiration of this lease for the purpose of showing the Property to prospective
Lessees following at least forty-eight (48) hours written notice to Lessee.
Notwithstanding the above, Lessor shall not in any way interfere with Lessee's
operation when entering on the Property and shall be liable to Lessee for any
damage caused by such interference.
15
ARTICLE TWENTY-TWO
SUBORDINATION
-------------
Lessee agrees, upon written request of Lessor, to subordinate this Agreement
(including any extension hereof) to any mortgage on the Property provided that
the mortgagee agrees, in writing, to acknowledge all the rights of the Lessee
under this Agreement. Likewise, the mortgagee shall agree not to disturb the
possession and other rights of Lessee hereunder. In the event that the mortgagee
acquires title to the Property through a foreclosure procedure or otherwise, the
mortgagee must agree to fully honor this Agreement and accept the Lessee as
lessee under this Agreement and to assume the Lessor's obligations hereunder. In
such event, Lessee agrees to recognize the mortgagee as the new lessor. Lessor
and Lessee agree to execute and deliver any appropriate instruments necessary to
carry out the agreements contained herein.
ARTICLE TWENTY-THREE
BROKERS
-------
Lessee is herein represented by CB Commercial/Xxxxxxx Xxxxx in its capacity as
Lessee's real estate representative ("broker"). Lessor agrees to pay the broker
a commission per separate agreement with Broker.
ARTICLE TWENTY-FOUR
ENVIRONMENTAL
-------------
Lessor represents that (1) at the beginning of the Initial Term of the Lease,
the Property will comply with applicable environmental laws and regulations, (2)
Lessor has not, and has no knowledge of any other person who has, caused any
release, threatened release or disposal of any hazardous substances, materials
or waste on, in, at or from the Property, (3) to the best of Lessor's knowledge
the Property is not subject to any imminent restrictions on the ownership,
occupancy, intended use or transferability of the Property in connection with
environmental laws or regulations, (4) to the best of Lessor's knowledge there
are no conditions or circumstances at the Property which pose a risk to the
environment or the health or safety of any persons.
Lessee has the right to inspect the Property and the surrounding area to ensure
that the current environmental condition of the Park and the construction
complies with Lessee's standards and expectations. By virtue of execution of
this Lease Agreement, Lessee accepts the environmental condition of the Property
as acceptable. Lessee is explicitly responsible and liable, both during and
after the term of this Agreement, for any environmental problems caused by
Lessee during its occupancy of the Property and shall indemnify, defend and hold
Lessor harmless against all said environmental liabilities. Should an incident
occur during the Initial Term of the Property or surrounding the Building which
is caused by a party other than Lessee and which Lessee deems as a possible risk
to Lessee's health or to Lessee's long-term environmental liability in regard to
the Property, the Building, and the surrounding land, Lessee will be expressly
responsible for reporting said incident to Lessor. At that time, both Lessee and
Lessor will make an assessment of the incident and any damages resulting
therefrom and will determine in good faith which party is at fault. A
remediation or clean-up plan will be formulated at that time, as well as a final
determination of fault, and all parties will be required to endorse said
16
determination and clean-up plan in writing. At that time, the responsible party
will be responsible for all costs and liabilities involved in the clean-up
effort.
ARTICLE TWENTY-FIVE
MODIFICATION TO THE CONTRACTUAL DOCUMENTS
-----------------------------------------
Unless otherwise agreed by the parties, any modification, release or discharge
of this Agreement or waiver of any of the provisions hereof, shall not be valid
or obligatory, unless made in writing and signed by the Lessor and the Lessee.
ARTICLE TWENTY-SIX
GUARANTY
--------
PEMSTAR Inc., herein represented by Xx. Xxxxx J. Burning, shall act as
GUARANTOR, and jointly obligates itself with the Lessee, guaranteeing in an
absolute and joint manner the compliance with all the obligations and
responsibilities derived from this Agreement, which obligations shall not cease
until the Lessee delivers the Property to the Lessor at the end of the Initial
Term or any extension thereof.
The GUARANTOR, by this means, expressly waives any and all order and
exclusion rights and all those rights granted by the Civil Code for the Federal
District under articles 2812, 2814, 2815, 2846 and 2849, and their correlative
articles of the Civil Code for the State of Jalisco. The GUARANTOR designates as
its domicile to receive notices under the terms of Article 2802 and 34 of the
civil Code for the Federal District, and the correlative articles of the Civil
Code.
PEMSTAR Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
ARTICLE TWENTY-SEVEN
ENTIRE AGREEMENT
----------------
The parties hereto agree that this Agreement and its exhibits contain all the
obligations and agreements between the parties, and supersedes any other
agreement either oral or in writing between the parties with respect to the
subject matter hereof.
ARTICLE TWENTY-EIGHT
TRANSLATION OF THE LEASE
------------------------
The Lessor and Lessee agree that this Lease document will be translated to
Spanish within ninety (90) days following execution of this English version. The
parties will agree in writing at that time that the Spanish version is an exact
translation which will be acceptable to both parties in the resolution of any
dispute under Mexican law.
17
ARTICLE TWENTY-NINE
REGISTRATION OF LEASE
---------------------
Pursuant to Article 2045 of the Civil Code of the State of Jalisco, the parties
hereto agree to sign original counterparts of the Spanish version of this
Agreement, to be coordinated per Article 28 above, before the presence of a
Notary Public of the State of Jalisco and protocalize the execution of the
Spanish version of this Agreement or obtain the Apostille of the Notary's
signature from the authority with jurisdiction over the county, municipality or
province where this Agreement is executed. The parties also hereby agree to take
all actions necessary to register this Agreement in the Public Registry of
Property and Commerce in Guadalajara, Jalisco, Mexico. All costs associated with
the protocolization of the Agreement before a Notary Public and registration of
this Agreement in the Public Registry of Property and Commerce in Guadalajara,
Jalisco shall be the responsibility of Lessee.
ARTICLE THIRTY
APPLICABLE LAW AND JURISDICTION
-------------------------------
THIS AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS OF THE CIVIL CODE FOR THE
STATE OF JALISCO, MEXICO. LESSOR AND LESSEE EXPRESSLY AGREE TO SUBMIT THEMSELVES
TO THE JURISDICTION OF THE COMPETENT COURTS OF GUADALAJARA, JALISCO, MEXICO,
WAIVING ANY OTHER LAW AND JURISDICTION WHICH MIGHT APPLY BY REASON OF THEIR
PRESENT OR FUTURE DOMICILES OR FOR ANY OTHER REASON.
ARTICLE THIRTY-ONE
NOTICES
-------
All notices, demands and requests provided for in this Agreement shall be made
in writing and shall be deemed to have been properly given (i) on the date of
receipt, if served personally or (ii) on date of receipt, if sent by overnight
courier, with proof of receipt, addressed to the Lessor or to the Lessee, as the
case may be, at its respective address last designated by notice to the other
party for that purpose. All notices shall either be delivered personally or by
overnight courier. Until the parties designate other addresses, their respective
addresses shall be as follows:
Lessee: PEMSTAR Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telecopier: 000-000-0000
18
Lessor: GUADALAJARA INDUSTRIAL TECNOLOGICO, S.A. DE C.V.
Ave. 5 de febrero, Xx. 0000-X
Xxxxx xxx Xxxxx - Xxxxxx
00000 Queretaro, QRO
MEXICO
Telecopier: (42) 18-6399
Attention: Xx. Xxxxxxx Xxxx
With Copy to: Xxxxxx X. Xxxxxx
Xxxxxx, Drought & Xxxxxx, Inc.
000 Xxxxx 00xx Xxxxxx
XxXxxxx, Xxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
19
IN WITNESS WHEREOF, the parties have executed this Agreement on the 30th day of
November, 1998.
Lessor: Lessee:
GUADALAJARA INDUSTRIAL PEMSTAR DE MEXICO, S.A. DE C.V.
TECNOLOGICO, S.A. DE C.V.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxxx Xxxxx
------------------------------ -------------------------------------
Xxxxxx X. Xxxxxxxxx Xxxxxxxx Xxxxx
Its: Its: President
----------------------------- ------------------------------------
Authorized Representative
Witness Witness
/s/
--------------------------------- -----------------------------------------
Guarantor:
PEMSTAR Inc.
By: /s/ Xx Xxxxxxx
-------------------------------------
Its: CEO
------------------------------------
Witness
-----------------------------------------
20
