Exhibit 10.53
TRANSLATION. ONLY FOR REFERENTIAL/INFORMATIONAL PURPOSES.
FROM FINAL, EXECUTED VERSION.
LEASE AGREEMENT
BETWEEN
FRACCIONADORA DINAMICA DEL XXXXXXXX X.X. DE C.V., Landlord
AND
CMC INDUSTRIAS XXXXXXXXXX X.X. DE C.V., Tenant
Premises Address:
-----------------
Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxxxxxx-Xxxxxxx
Xxxxxxxxx 0.0, Xxxxxxxxxx, Xxxxxx, Xxxxxx
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LEASE AGREEMENT
---------------
Industrial/Warehouse - Single Tenant
[Carretera Internacional Xxxxxxxxxx-Xxxxxxx
Xxxxxxxxx 0.0, Xxxxxxxxxx, Sonora, Mexico]
THIS LEASE AGREEMENT (THIS "LEASE") is made as of this 15th day of March
of 2001, by and between FRACCIONADORA DINAMICA DEL XXXXXXXX X.X. DE C.V.
(hereinafter "LANDLORD"), a Mexican commercial corporation, having a principal
place of business in Hermosillo, Sonora, Mexico, and represented herein by
Xxxx Xxxxx Xxxxxxx Xxxxx in his capacity as its legal representative, and
CMC INDUSTRIAS XXXXXXXXXX X.X. DE C.V. (hereinafter "TENANT"), a Mexican
commercial corporation, having a principal place of business in Hermosillo,
Sonora, Mexico, and represented herein by Xxxxx Xxxxx Xxxxxxxx as its legal
representative.
W I T N E S E T H:
A. Landlord hereby states, represents and warrants that:
(a) Landlord is a Mexican commercial corporation, duly incorporated and
existing as a "sociedad anonima de capital variable" pursuant to
applicable Mexican laws.
(b) As evidenced in EXHIBIT C executed by the Land Owners, Landlord has
proper and sufficient legal right and authority to grant to Tenant the
use and possession of the Premises for the term, pursuant to the terms
of this lease agreement.
(c) The Premises will have, no later than at the Commencement Date or
within 90 (ninety) calendar days after the Commencement Date, an
authorized zoning designation and a land use license that shall allow
light o low impactindustrial use (as may be applicable to the
industrial activities of manufacture of electronic components that the
Tenant intends to carry out at the Building and of which Landlord is
fully aware)in accordance with the city plan of the municipality of
Hermosillo, State of Sonora, Mexico ("Programa Municipal de Desarrollo
Xxxxxx xxx Xxxxxx xx Xxxxxxxxx xx Xxxxxxxxxx, Xxxxxxxxxxxxx 0000").
(d) Landlord wishes to grant to Tenant the temporary use and possession of
the Premises pursuant to the terms and conditions contained herein.
(e) Landlord has the necessary authority to execute this Lease. Said
authority has not been limited or revoked in any manner whatsoever.
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B. Tenant hereby states, represents and warrants that:
(a) Tenant is Mexican commercial corporation, duly incorporated and
existing as a "sociedad anonima de capital variable" pursuant to
applicable Mexican laws.
(b) Tenant wishes to accept from Landlord the use and possession of the
Premises for the terms and conditions contained herein.
(c) Tenant has the necessary authority to execute this Lease. Said
authority has not been limited or revoked in any manner whatsoever.
C. Both parties state that this Lease is being executed free from any and all
consensual defects.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, for themselves, their heirs,
executors, administrators, legal representative, successors and assigns, hereby
covenant and agree as follows:
C L A U S E S :
1. DEFINITIONS. The following terms shall have the meanings set forth below.
"Base Rent" shall mean the base rent payable by Tenant during the Term, as
follows (amounts set forth below are in currency of the United States of
America):
PAYMENTS MONTHLY/PER
DATES ANNUAL MONTHLY SQUARE FOOT
----- ------ ------- -----------
Years one (1) through five(5) $823,938 $68,661.50 $0.53
------- ---------- -----
Years six (6) through seven (7) $917,214 $76,434.50 $0.59
-------- ---------- -----
"Building" shall mean that certain building and other improvements [to be
constructed by Landlord at the Land in accordance with this Lease],
having a street address of Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxxxxxx-Xxxxxxx,
Xxxxxxxxx 0.0, Xxxxxxxxxx, Xxxxxx, Xxxxxx and [to contain/containing]
approximately 129,550 square feet.
"Commencement Date" shall mean the date of Substantial Completion. Landlord and
Tenant shall confirm the Commencement Date, Expiration Date and Term in
writing (in the form of EXHIBIT B attached hereto) immediately upon the
determination thereof.
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"Expiration Date" shall mean the last day of the calendar month in which the
seventh anniversary of the Commencement Date occurs; provided, however,
that if the Commencement Date occurs on the first day of a calendar month,
the Expiration Date shall be the last day of the calendar month immediately
preceding the calendar month in which the seventh anniversary of the
Commencement Date occurs.
"Guarantor" shall mean ACT Manufacturing, Inc.
"Guaranty" shall mean the guaranty of Tenant's obligations under this Lease
executed and delivered by Guarantor simultaneously with the execution and
delivery of this Lease, which guaranty is in the form of EXHIBIT D attached
hereto.
"Land" shall mean that certain real property on which the Building is or will be
situated, located in the City of Xxxxxxxxxx and State of Sonora, the area,
measures, and boundaries of which are shown in the plan that is attached
hereto as EXHIBIT A. The Land Owners' title over the Land is evidenced in
public instrument number 51,408, volume 1,412, executed before Xxxxxx
Xxxxxxx Xxxxxxxxx, Esq., notary public number eleven commissioned in
Hermosillo, Sonora, and registered with the Public Registry of Property and
Commerce of said place under number 227,471, volume 1,558, real estate
Clause, book one, on September 11, 1997.
"Land Owners" shall mean Mrs. Xxxxxxx del Xxxxxx Xxxx Xxxxxxxx and Mrs.
Xxxxxxxx de Xxxxxx Xxxxxx Xxxxxxxx, who are the legal owners of the Land.
"Laws" shall mean all applicable laws, statutes, codes, orders and regulations
and with any related directive, and with all rules, orders, regulations or
requirements of any board of fire underwriters or any other similar body
with respect to the Premises or the use or occupancy thereof.
"Licencia de Uso de Suelo" shall mean the land use license that Landlord hereby
undertakes to apply for and obtain, at its sole expense, no later than at
the Commencement Date or within 90 (ninety) calendar days after the
Commencement Date as provided in Section 5 paragraph (I), which license
shall allow light o low impact industrial use (as may be applicable to the
industrial activities of manufacture of electronic components that the
Tenant intends to carry out at the Building and of which Landlord is fully
aware) in accordance with the city plan of the municipality of Hermosillo,
State of Sonora, Mexico ("Programa Municipal de Desarrollo Xxxxxx xxx
Xxxxxx xx Xxxxxxxxx xx Xxxxxxxxxx, Xxxxxxxxxxxxx 0000").
"Plant" shall mean the portion of the Building that will be used by Tenant for
the installation and operation of its production lines, warehouses, and
shipping and receiving areas for materials and products, as shown in
EXHIBIT "F" hereto.
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"Offices" shall mean the portions of the Building other than the Plant, as shown
in Exhibit "F" hereto.
"Parking Spaces" shall mean the parking spaces included at the Premise's parking
facility.
"Permitted Uses" shall mean non-contaminating manufacturing, warehouse and
office uses to the extent same are permitted under the "Licensia de Uso de
Suelo".
"Premises" shall mean, collectively, the Land, the Building, and any other
building or improvements now or hereafter constructed on the Land.
"Rent Payment Account" shall mean the account number 0631581022, ABA 000000000,
in the name of Fraccionadora Dinamica del Xxxxxxxx X.X. de C.V., maintained
with Xxxxx Fargo Bank, branch number 1255, in Nogales, Arizona, United
States of America. Tenant shall pay rent by means of wire or intra or
inter-bank transfer of funds within the Mexican banking system or check
drawn on an account in a Mexican bank.
"Substantial Completion of the Plant" shall mean that (with the exception of
punch-list items which at Tenant's sole discretion would not prevent the
use or occupancy by Tenant of the Plant for the Permitted Uses, as
contemplated in Clause five (5) paragraphs (C) and (E)]) the following
three conditions have been met: (i) The work to be performed by Landlord in
accordance with Clause five (5), as far as the Plant is concerned and as
contemplated in such Clause, has been completed at Tenant's satisfaction;
(ii) the Tenant has full use and access to the Plant s; and (iii) the
Landlord has obtained a certificate from Landlord's architect specifying
the Landlord's work at the Plant has been completed in accordance with the
drawings and specifications as defined in Clause 5(A).
"Substantial Completion of the Offices" shall mean that [with the exception of
punch-list items which at Tenant's sole discretion would not prevent the
use or occupancy by Tenant of the Offices for the Permitted Uses, as
contemplated in Clause five (5) paragraph (G)] the following three
conditions have been met: (i) The work to be performed by Landlord in
accordance with Clause five (5), as far as the Offices is concerned and as
contemplated in such Clause five (5) paragraphs (C) and (G), has been
completed at Tenant's satisfaction; (ii) the Tenant has full use and
access to the Offices; and (iii) the Landlord has obtained a certificate
from Landlord's architect specifying the Landlord's work at the Offices has
been completed in accordance with the drawings and specifications as
defined in Clause 5(A).
"Term" shall mean the period commencing on the Commencement Date and ending on
the Expiration Date, being approximately seven (7) years.
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2. PREMISES AND TERM.
Premises and Term. Subject to the terms, covenants and conditions contained in
this Lease, Landlord hereby grants to Tenant the use and possession of the
Premises for the Term and Tenant hereby accepts same for the Term. The Premises
shall be used and occupied by Tenant solely for the Permitted Uses and for no
other purpose without Landlord's prior written consent. If Tenant takes
possession or enters into occupancy of the Premises prior to the Commencement
Date, such possession or occupancy shall be pursuant to all the terms, covenants
and conditions of this Lease. The Premises is demised subject to (a) the
existing state of title as of the commencement of the Term, (b) any state of
facts which an accurate survey or physical inspection thereof might show, and
(c) all zoning regulations, restrictions, rules and ordinances, building
restrictions and other laws and regulations now in effect or hereafter adopted
by any governmental authority having jurisdiction. Landlord has not made, does
not make, and has not authorized anyone else to make any representation as to
the present or future physical condition, operation, or any other matter or
thing pertaining to the Premises except as expressly set forth herein.
3. BASE RENT.
Tenant shall deposit monthly installments of Base Rent, along with applicable
value added tax, directly into the Rent Payment Account or at such other place
designated by Landlord by written notice given to Tenant to that effect,
monthly, in advance, on the first day of each calendar month during the Term,
without notice or demand and without any setoff, abatement or counterclaim,
unless otherwise provided hereunder. Deposits of rent will be made by Tenant
directly into the Rent Payment Account by, at the election of Tenant, wire
transfer or intra-or inter-bank transfer of funds within the Mexican banking
system or by check drawn on an account in a Mexican bank. Landlord agrees to
deliver to Tenant monthly rental invoices which shall comply with all
applicable legal and tax requirements and include a breakdown of the value added
tax. Said rental invoices shall be issued and delivered on the date rent is
paid and shall contain the amount of rent paid in Dollars of the United States
of America. If the Commencement Date does not occur on the first day of a
calendar month or if the Term does not expire or terminate on the last day of a
calendar month, rent payable hereunder shall be prorated for such partial month
on the basis of a thirty (30) day month. In addition to all other rights and
remedies provided Landlord, all amounts payable hereunder which remain unpaid
for five (5) days after their respective due dates shall bear interest from the
date that the same became due and payable to and including the date of payment,
whether or not demand is made therefor, at the rate of twelve percent (12%) per
annum.
4. TAXES AND UTILITIES; NET LEASE.
(A) Taxes. Tenant covenants to reimburse Landlord the legally determined
amount of property tax ("impuesto predial") applicable to the Premises
during the Term.
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(B) Utilities. Tenant shall directly contract for all utilities of every type
and nature required by it in its use of the Premises and shall pay or cause
to be paid, when due, all bills for water, sewerage, heat, gas, electricity
and other utilities, if any, used on, in connection with, or chargeable
against the Premises directly to the appropriate provider. Tenant shall
pay all deposits, substation contribution fees and connection fees with
respect to the delivery of utilities to the Premises.
(C) Net Lease. It is the purpose and intent of Landlord and Tenant that the
rent payable hereunder shall be absolutely net to Landlord so that this
Lease shall yield, net to Landlord, the rent specified herein in each year
during the Term. To the extent applicable, value added tax will be paid by
Tenant on all Landlord reimbursements required to be paid hereunder, as
indicated in the applicable invoice from Landlord to Tenant.
5. LANDLORD'S WORK.
(A) Attached hereto as EXHIBIT E are plans and outline specifications
including, without limitation, working drawings, construction drawings, and
electrical, mechanical and plumbing drawings necessary to construct the Building
(collectively, the "Drawings and Specifications" which Landlord and Tenants have
approved.
(B) Changes to the Drawings and Specifications shall only be made by written
change orders ("Change Order(s)") signed by Landlord and Tenant. In the event
Tenant wishes to make changes to the Drawings and Specifications, Tenant shall
submit a written request to Landlord stating with specificity the requested
modifications. Tenant will pay for any increase in Landlord's cost of
construction as well as any additional costs incurred in revising the Drawings
and Specifications on account of such requested modification. Landlord shall l
provide to Tenant, within ten (10) days from the date on which Landlord receives
the respective change request from Tenant, a good faith estimate of any such
additional costs and of the delay (the "Modifications Delay(s)"), if any, to be
caused by the requested change, and after receiving such estimate, Tenant shall
have the right to decline to proceed with such modifications by notice given
within three (3) days after receipt of such estimate (with Tenant obligated to
pay, within five (5) business days after receipt of an invoice, the reasonable
costs incurred by or on behalf of Landlord in preparing such estimate). If
Tenant accepts to proceed with the requested modifications after having reviewed
the Landlord's aforesaid estimate, it shall so notify it to Landlord in writing
within three (3) days after receipt of such estimate, and Landlord shall be
obligated to make the requested modifications. Any Modification Delay will not
extend the Commencement Date, unless the parties expressly agree otherwise in
the applicable Change Order.
(C) Landlord shall, at its sole cost and expense, construct or cause the
construction of the Building in strict accordance with the Drawings and
Specifications, in a good and workmanlike manner, in compliance with all
applicable laws, codes, ordinances and
Page 7 of 30
regulations, and shall cause (i) Pre-Completion of the Plant by February 28th,
2001 (two thousand and one), (ii) Substantial Completion of the Plant no later
than on March 15th, 2001 (two thousand and one), and (iii) Substantial
Completion of the Offices no later than on June 15th, 2001 (two thousand and
one). The dates of Pre-Completion and the Substantial Completion Date will each
be subject to extension, on a day for day basis, for the period of any
Modification Delays . The Commencement Date will not be delayed on account of
any delay in Substantial Completion attributable to any negligence or willful
misconduct of Tenant or any agent, contractor or representative of Tenant.
(D) "Pre-Completion of the Plant" shall mean that the Plant is sufficiently
complete for Tenant to install at the Plant Tenant's fixtures, machinery and
equipment. From and after the date of Pre-Completion of the Plant, upon
reasonable prior notice to Landlord (for construction scheduling purposes),
Tenant shall be permitted access to the Plant for such installations. It is
expressly understood and acknowledged by the parties that such access will be
subject to all of terms and conditions of this Lease on the part of Tenant to be
performed or observed except that (i) rent shall not be payable during such
period and (ii) Landlord's indemnification obligations under Clause 11 shall not
be in force during such period.
(E) On March 15th, 2001 (two thousand and one), Tenant shall meet with Landlord
to inspect the work at the Plant and determine whether or not Substantial
Termination of the Plant has taken place. Within five (5) days after Tenant's
inspection of the work, and provided any incomplete items are such that at
Tenant's sole discretion do not prevent Tenant from using or occupying the Plant
for the Permitted Uses, Tenant shall (i) submit to Landlord a punch-list
("Punch-list of the Plant") of incomplete items whose lack of completion do not
prevent Tenant from using or occupying the Plant for the Permitted Uses, and
(ii) take possession of the Plant. Landlord shall complete at its sole cost and
expense such punch-list items within 60 (sixty) days after receipt of the Punch-
List. Tenant's possession of the Plant shall be effective for the purposes of
this Agreement upon Tenant's written acceptance and acknowledgement, made within
the aforesaid five-day period, that the Plant is in the condition required by
the Drawings and Specifications, except as to incomplete items as set forth on
the Punch-list of the Plant. Said acceptance and acknowledgement shall be
evidenced by the execution of EXHIBIT "B".
(F) If from the inspection referred to in the immediately preceding paragraph
(E) of this Clause it turns out that the incomplete items are such that at
Tenant's sole discretion do prevent Tenant from using or occupying the Plant for
the Permitted Uses, Tenant shall indicate to the Landlord, in writing, what the
incomplete items are and shall grant to Landlord 15 (fifteen) additional
calendar days beginning on March 15th, 2001 (two thousand and one) for Landlord
to complete or correct said items, as the case may be, in the shortest time
possible within the granted extension and making to that effect its best efforts
in good faith, it being understood that during the said extension Tenant shall
not be obligated to pay rent. If after the elapsing of said extension of
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15 (fifteen) days the Plant continues to be, at Tenant's discretion, unfit for
being used or occupied by Tenant for the Permitted Uses, then Tenant shall be
entitled to, at its sole discretion, (i) terminate this Agreement without any
liability for Tenant, by giving written notice thereof to Landlord, or
(ii) grant Landlord a second extension of the Substantial Completion Date of
the Plant of up to 30 (thirty) calendar days beginning on March 30th, 2001
(two thousand and one), without Tenant being obligated to pay rent during such
second extension, in which case Landlord shall be obligated to complete the
Plant in the shortest time possible within the granted extension and making to
that effect its best efforts in good faith. Tenant's possession of the Plant
shall be effective for the purposes of this Agreement upon Tenant's written
acceptance of the Plant and written acknowledgement that the Plant is in the
condition required by the Drawings and Specifications, except as to incomplete
items as set forth on the Punch-list of the Plant. Said acceptance and
acknowledgement shall be evidenced by the execution of Exhibit "B".
(G) On June 15th, 2001 (two thousand and one), Tenant shall meet with Landlord
to inspect the work at the Offices and determine whether or not Substantial
Termination of the Offices has taken place. Within five (5) days after Tenant's
inspection of the work, and provided any incomplete items are such that at
Tenant's sole discretion do not prevent Tenant from using or occupying the
Offices for the Permitted Uses, Tenant shall (i) submit to Landlord a punch-list
("Punch-list of the Offices") of incomplete items whose lack of completion do
not prevent Tenant from using or occupying the Offices for the Permitted Uses,
and (ii) take possession of the Offices. Landlord shall complete at its sole
cost and expense such punch-list items within 30 (thirty) days after receipt of
the Punch-List for the Offices. Tenant's possession of the Offices shall be
effective for the purposes of this Agreement upon Tenant's written acceptance
of the Offices and writeen acknowledgement that the Offices are in the
condition required by the Drawings and Specifications, except as to incomplete
items as set forth on the Punch-list of the Offices.
(H) Landlord undertakes to deliver to Tenant, no later than on August 15th,
2001 (two thousand and one) a certified copy of the certificate of termination
of works and consent for the occupation and use (or "certificado de terminacion
de obra y anuencia para uso y ocupacion") issued by the government of the City
of Xxxxxxxxxx in connection with the Premises, it being understood that the non-
performance of such obligation by Landlord shall entitle Tenant to withhold
payment of the rents that may become payable during said lack of performance by
Landlord.
(I) Landlord undertakes to apply for and obtain, at its own expense, and to
deliver to Tenant no later than on the Commencement Date or within 90 calendar
days after the Commencement Date, a certified copy of the construction and Land
Use License issued by the City Government of Hermosillo in connection with the
Premises. Landlord's non-performance of the aforesaid obligation shall entitle
Tenant to early terminate this Agreement without any liability for Tenant
derived from said termination, by written notice to that effect given to
Landlord at any moment after the elapsing of the aforesaid 90-day period.
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6. PARKING; SECURITY.
Tenant shall have the exclusive use of the Parking Spaces located within the
parking facilities included as part of the Premises. Landlord shall not be
liable for any damage to, or any theft of, vehicles, or contents thereof, within
the parking facility, nor shall Landlord have any other obligation to provide
security or security measures at the Premises, all of which shall be Tenant's
responsibility.
7. REPAIRS AND MAINTENANCE.
(A) Landlord's Obligations. Landlord, at its expense, shall maintain and
repair the foundations, structure, exterior walls,and roof of the Building
provided that Tenant shall reimburse Landlord for the cost of any repairs or
maintenance performed by Landlord if caused by the negligence or criminal or
willful misconduct of Tenant or its agents, employees, contractors, invitees and
licensees. Landlord may enter the Premises at any time in an emergency, or at
all reasonable times for any purpose permitted hereunder, including, without
limitation, showing the Premises, during the last twelve (12) months of the
Term, to prospective tenants, purchasers or lender. Landlord shall use
reasonable efforts to minimize interference with Tenant's conduct of business in
connection with Landlord's performance of any work described in this Clause 7
(seven). Tenant agrees to notify Landlord promptly of any defective condition
known to Tenant which Landlord is obligated to repair. Except as provided
herein, Landlord shall not be obligated to provide any maintenance, repairs or
services to Tenant or the Premises.
(B) Tenant's Obligations. Except for Landlord's obligations set forth above,
Tenant, at its sole cost and expense, shall keep, repair and maintain the
Building and all fixtures and equipment therein, including, without limitation,
all plumbing, heating, air-conditioning, electrical, gas, water, sewerage and
similar systems, fixtures and equipment as well as the interior of the Building
(including interior walls, ceiling and floor coverings), window glass, loading
docks, exterior steps, doors and signs of Tenant on the outside of the Building,
as well as all areas at the Premises outside of the Building (including, without
limitation, parking facilities, driveways and landscaping) in good repair, order
and condition and in accordance with all Laws. Tenant shall keep the Premises
clean and in good order and shall arrange and pay for all garbage and refuse
removal. All repairs, maintenance and replacements to be made or performed by
Tenant shall be performed in a good and workmanlike manner in accordance with
applicable laws and regulations and the provisions of this Lease and shall be at
least the same quality and design as the original work or item.
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8. ASSIGNMENT AND SUBLEASING.
Only with the prior written approval of Landlord, Tenant may assign or convey
this Agreement or any rights hereunder, or allow the use or occupation of the
Premises by any other individuals or corporations, or wholly or partially
sublease the Premises.
9. TENANT'S INSURANCE.
Tenant shall maintain throughout the Term, at its expense, the following
insurance: (i) Fire and extended coverage insurance, naming Landlord as
insured and beneficiary, covering the Premises (hereinafter the "Improvements")
against loss or damage by fire, flood, windstorm, hail, earthquake, explosion,
riot, damage from aircraft and vehicles, smoke damage, vandalism, malicious
mischief and such other risks as are from time to time covered under "extended
coverage" endorsements and special extended coverage endorsements commonly known
as "all-risk" endorsements in an amount equal to the full replacement value of
the Building (which value is presently determined to be Six Million Dollars of
the United States of America [US$6,000,000]) and containing the waiver of
subrogation required in this Clause 9 (nine), (ii) commercial general liability
insurance on an occurrence basis providing coverage for bodily injury (including
death), property damage and products liability insurance (where such exposure
exists) containing a broad form contractual liability endorsement with a
combined single limit of at least [One Million Dollars of the United States of
America (US$1,000,000) per occurrence and Two Million Dollars of the United
States of America (US$2,000,000) in the aggregate for all occurrences within any
policy year]. The foregoing policies shall name Landlord and any party
designated by Landlord as an additional insured as their respective interests
may appear.
All insurance shall be placed with reputable companies licensed to do business
in accordance with applicable law and reasonably approved by Landlord and shall
be written as primary policies with annual deductibles not to exceed Ten
Thousand Dollars of the United States of America (US$10,000), and with any other
policies shall serve as excess coverage. Tenant shall deliver original
certificates of all such policies prior to the Commencement Date and each
anniversary date thereafter, which shall provide that no cancellation or non-
renewal of such policies shall be effective without thirty (30) days prior
written notice from the insurer to Landlord. Each party shall obtain a waiver
of subrogation or consent to a waiver of right of recovery against the other
party, and each hereby agrees that it will not make any claim against or seek to
recover from the other party for any loss or damage covered by its fire and
extended coverage insurance. Tenant shall not do any act or thing in the
Premises or store anything therein except as now or hereafter permitted by any
fire department, board of fire underwriters, or insurance rating organization
having jurisdiction or other authority having jurisdiction and then only in such
quantity and manner of storage as not to increase the existing rate of, or
adversely affect, or cause a cancellation of, any insurance policies covering
the Premises.
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10. EMINENT DOMAIN AND CASUALTY.
(A) Eminent Domain. If all or substantially all of the Premises is taken by a
public authority pursuant to the exercise of the power of eminent domain, this
Lease shall terminate on the date on which the condemning authority takes
possession of the Premises ("Date of Such Taking"). If part of the Premises is
taken such that, in Landlord's opinion, the Premises cannot be restored to an
economically viable condition, or if the holder of any mortgage encumbering the
Premises requires application of the condemnation proceeds to the reduction of
the mortgage indebtedness, Landlord may terminate this Lease upon thirty (30)
days prior written notice to Tenant. If Landlord does not terminate this Lease
and the condemnation renders all or a substantial portion of the Premises
untenantable, Tenant may terminate this Lease effective on the Date of Such
Taking by written notice given no later than fifteen (15) days after the Date of
Such Taking. Upon a partial taking which does not result in a termination of
this Lease: (i) rent shall be adjusted to reflect the reduced amount of rentable
area in the Building and (ii) Landlord shall restore the Premises, but only to
the extent of funds available to Landlord from the consideration paid for such
taking. Landlord shall not be obligated to replace or restore any improvements
or alterations to the Premises made by or on behalf of Tenant, or any of
Tenant's leasehold improvements, personal property, furniture, fixtures or
equipment. Upon any taking, Landlord shall be entitled to any resulting damages,
awards or any interest therein, and Tenant shall have no claim for the value of
any unexpired term of the Lease or otherwise. Tenant may independently claim for
the value of its furniture, fixtures and equipment or moving expenses, provided
that such claim shall not diminish Landlord's claim.
(B) Casualty. If the Premises or a substantial portion thereof is rendered
untenantable by fire, an act of God or force majeure, or any other cause and
Landlord reasonably determines (based on the determination of an independent
architect or engineer) that the damage cannot be repaired within one hundred
twenty (120) days after Landlord is notified of the casualty, then either
Landlord or Tenant may, within thirty (30) days after such determination (which
shall be provided to Tenant), give the other notice of termination of this
Lease, and the Term shall expire thirty (30) days after such notice is given,
with rent being apportioned as of the date of Lease termination. If either
Landlord or Tenant have not elected to terminate as herein provided, Landlord
shall repair the Premises, but only to the extent of the insurance proceeds
actually received by Landlord, with Tenant obligated to pay any deductible. If
such repair is not completed within one hundred eighty (180) days, the Tenant
shall have the right to terminate this lease by giving written notice to
Landlord which termination shall be effective thirty (30) days after such notice
is given. If insurance proceeds paid to Landlord are not sufficient to complete
the required repairs and Landlord elects not to complete same, Landlord shall
notify Tenant and Tenant shall have the right to terminate the Lease. During any
period Tenant is not able to occupy the Premises on account of any repair or
restoration, Tenant will have no obligation to pay rent or other amounts due
hereunder. Tenant shall give Landlord prompt written notice of any damage to the
Premises by fire or other casualty. Landlord's obligations to restore are
strictly limited to the replacement of the basic Building area. Landlord shall
not be obligated to restore any alterations, personal property, furniture,
fixtures or equipment.
Page 12 of 30
11. INDEMNIFICATION AND COMPLIANCE WITH LAWS.
(A) Tenant shall defend, indemnify and hold Landlord and its officers,
directors, employees, attorneys and agents (collectively, the "Indemnities")
harmless from and against any and all demands, cause of action, judgements,
costs, expenses, losses, damages, claims, or liability for any damage to any
property or injury, illness or death of any person (i) arising out of or in any
way related to claims for labor performed or materials furnished to Tenant or
the performance of any work done by or for the account of Tenant, whether or not
Tenant obtained Landlord's permission to have such work done, labor performed or
materials furnished (excluding the Landlord's work); or (ii) arising out of or
in any way related to any breach of a covenant or condition in the Lease to be
performed by Tenant. The provisions of this paragraph shall survive the
expiration or sooner termination of this Lease.
(B) Landlord or its agents shall not be liable to Tenant for any claims with
respect to (i) any death or injury suffered by Tenant or any employee,
contractor, licensee, invitee, guest, agent or customer of Tenant (each, a
"Tenant Party") or any other person, from any causes whatsoever, other than as a
result of Landlord's negligence or willful misconduct, or ii) any loss or damage
or injury to any property within the Premises belonging to Tenantor any other
person, other than as a result of Landlord's negligence or willful misconduct
and only up to Twenty Thousand Dollars of the United States of America
(US$20,000). In addition, Landlord or its agents shall not be liable for
interference with any utility, service, or ventilation, or any loss or damage
for which Tenant is required to insure or resulting from any construction,
alterations or repair required or permitted to be Performed by Tenant hereunder.
Notwithstanding the foregoing, if any utility or service provided to the
Premises is interrupted or diminished by any reason (including the public
interest), which interruption is not caused by the negligence or willful
misconduct of the Tenant, for more than five (5) days, the obligation to pay
rent shall be suspended until such utility or service is restored. In the event
such interruption continues for more than thirty (30) days, the Tenant shall
have the right to terminate this lease at any time prior to the restoration of
such utility or service, provided the interruption is the result of the
Landlord's negligence of willful misconduct.
(C) Tenant, at its expense, shall comply with all Laws, including, without
limitations, any Laws relating to any material that is prohibited, limited or
regulated as a toxic or hazardous substance, health or environmental hazard or
pollutant under any Laws ("Hazardous Materials"). Neither Tenant nor any Tenant
Party shall use, generate, store, treat, transport, dispose of or release any
Hazardous Materials at the Premises other than non-material and non-reportable
quantities of Hazardous Materials used in connection with the Permitted Uses and
only if property and legally used and stored and disposed of at Tenant's cost.
Landlord and Tenant each warrant to the other that it
Page 13 of 30
is now complying with, and agrees, at all times during the term of this Lease or
any extension hereof, to comply with those provisions of the social security of
such other laws of the municipality and the state within which they operate,
which require them to provide social security for their workers. Tenant shall
not be responsible for any hazardous materials or the presence of hazardous
materials on the Land or the Building occurring prior to the commencement date.
12. QUIET ENJOYMENT AND SUBORDINATION.
(A) Landlord covenants and agrees that, upon Tenant's performance of all the
terms, covenants and conditions hereof on Tenant's part to be performed, Tenant
shall have, hold and enjoy the Premises, subject to the terms, covenants and
conditions of this Lease.
(B) This Lease is subject and subordinate to any mortgage, deed of trust or deed
to secure debt (each, a "Mortgage"); any easement agreements; all ground and
underlying leases; and to any renewals, modifications, extensions, replacements,
and substitutions of any of the foregoing, now or hereafter affecting the
Premises. This provision shall be self-operative and no further instrument of
subordination shall be required; provided, however, that upon request, Tenant
shall execute and deliver instrument(s) in recordable form confirming this
subordination. The parties acknowledge that, pursuant to the Civil Code for the
State in which the Premises is located, this Lease shall survive any foreclosure
of any Mortgage. Landlord may assign the rents and its interest in this Lease
to the holder of any Mortgage.
13. EVENTS OF DEFAULT.
In addition to any other event specified in this Lease as an event of default,
the occurrence of any one or more of the following events during the Term (each,
as "Event of Default") shall constitute a breach of this Lease by Tenant, and
Landlord may exercise the rights set forth is Clause 14 (fourteen) or as
otherwise provided at law: (1) Tenant fails to pay any sum payable hereunder
within ten (10) days after written notice thereof from Landlord to Tenant; or
(2) Tenant fails to perform any of the other covenants, terms or conditions of
this Lease to be performed by Tenant (other than any monetary default), and,
unless expressly provided elsewhere in this Lease, such default shall continue
for thirty (30) days after written notice thereof from Landlord to Tenant, or,
in the case of a default which cannot with due diligence be cured within thirty
(30) days, Tenant fails to commence such cure promptly within such thirty (30)
day period and thereafter diligently prosecute such cure to completion; or (3)
Tenant files a voluntary petition in bankruptcy or becomes insolvent within the
meaning of any applicable bankruptcy code (the "Code"), or a petition is filed
against Tenant or Guarantor under the Code and is not dismissed with the
prejudice within sixty (60) days after filing, or Tenant seeks or consents to
the appointment of a receiver or other custodian for any substantial part of the
Tenant's properties or any part of the Premises, or (4) a lien or claim is filed
against the Premises arising out of any work
Page 14 of 30
performed by or on behalf Tenant and Tenant fails to discharge, or provide
appropriate surety bond for such lien or remedy such claim within thirty (30)
days after receiving notice of the filing thereof.
14. LANDLORD'S REMEDIES.
Upon the occurrence of an Event of Default, Landlord may pursue any remedies
available to Landlord under Laws including, without limitation, the right of
specific performance or payment of damages to the extent permitted by Laws.
Upon the occurrence of an Event of Default, Landlord may give Tenant written
notice of its election to rescind this Lease, whereupon Tenant's right to
possessions of the Premises shall cease on the day specified therein, and this
Lease shall be terminated.
15. HOLDING OVER.
If Tenant remains in possession of the Premises after the expiration or other
termination of the Term, or after the expiration of the legally provided one-
year extension, as the case may be, then, at Landlord's option, Tenant shall be
deemed to be occupying the Premises as a non-fixed term ("tacita reconduccion")
tenant pursuant to Laws, at a monthly rental equal to one hundred fifty percent
(150%) of the monthly rent payable hereunder during the last month of the Term,
along with the value added tax. Tenant shall defend, indemnify and hold
Landlord harmless from and against all claims, losses and liabilities for
damages resulting from failure to surrender possession upon the Expiration Date
or sooner termination of the Term, and such obligations shall survive the
expiration or sooner termination of this Lease. Tenant expressly waives, for
itself and for any person claiming through or under Tenant, any rights which
Tenant or such person may have under applicable law to obtain an equitable stay
in connection with any holdover summary proceedings instituted by Landlord.
16. NOTICES.
All notices, communications and notifications which are required from or
permitted to the parties with respect to this Agreement shall be addressed to
the persons indicated below and delivered at the domiciles indicated below,
unless the parties establish any other address at least 15 (fifteen) calendar
days prior to the date on which such change is to become effective:
(A) If to Landlord:
Fraccionadora Dinamica del Xxxxxxxx X.X. de C.V.
Xxxxxxxx Xxxxxxxxx # 00
Xxxxxxxxxx, Xxxxxx, Xxxxxx
To the attention of: Xx. Xxxx Xxxxx Xxxxxxx Xxxxx
Page 15 of 30
(B) If to Tenant:
CMC Industrias Xxxxxxxxxx X.X. de C.V.
Carretera Internacional Xxxxxxxxxx-Xxxxxxx
Kilometro 8.5
Hermosillo, Sonora
To the attention of: Mr. Xxxxx Xxxxx Xxxxxxxx
with a copy to: Lizarraga, Robles, Xxxxx x Xxxxxxx S.C.
To the attention of: Messrs. Xxxxxxx Xxxxxx Xxxxx
and Xxxx Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx Xxxxxx Xxxxxxx 00
Colonia Centenario
Hermosillo, Sonora, Mexico 83260
(C) If to Guarantor:
ACT Manufacturing, Inc.
0 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx, X.X.X. 00000
To the attention of: President
with a copy to: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx - Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx, X.X.X. 00000
To the attention of: Real Estate Department
Notices, communications and notifications shall be deemed effective on the
business day following that on which they were effectively delivered to any
person of legal age at the aforementioned addresses, notwithstanding they are
actually and effectively received or not received by the addressee. If sent by
mail, notices communications and notifications shall always be sent by certified
mail with acknowledgment of receipt.
If such notices, notifications or communications are not addressed to the
attention of the aforementioned parties, they shall not be used against the
sending party, which may invoke them to its own benefit.
17. BROKERS.
Tenant represents and warrants to Landlord that it has not dealt with any broker
in connection with the negotiation and/or execution of this Lease. Tenant
shall defend, indemnify and hold Landlord harmless from and against any and all
liability, loss, damage, expense, claim, action, demand, suit or obligation
arising out of or relating to a breach by Tenant of this representation and such
obligations shall survive the expiration or sooner termination of this Lease.
Page 16 of 30
18. FORCE MAJEURE.
Any obligation of Landlord which is delayed or not performed due to acts of God,
strike, riot, shortages of labor or materials, war, acts of terrorism,
governmental laws or action, or lack thereof, inaction by any governmental
authority with respect to the issuance of any licenses or permits necessary to
perform an act of Landlord hereunder or any other causes of any kind whatsoever
which are beyond Landlords reasonable control (each, a "Force Majeure"), shall
not constitute a default hereunder and shall be performed within a reasonable
time after the end of such cause for delay or nonperformance.
19. NO SETOFF.
Unless otherwise provided hereunder, all agreements, covenants and activities to
be performed by Tenant hereunder shall be at Tenant's expense and without any
abatement of rent, and Tenant shall not be entitled to any setoff, offset or
abatement of any rent due Landlord hereunder if Landlord fails to perform its
obligations hereunder. In no event shall Landlord, any holder of a mortgage be
responsible for any consequential damages incurred by Tenant resulting from a
default by Landlord, as consequential damages are known in the American legal
system, it being understood, however, that Landlord shall be responsible for
damages and losses as provided for in the Mexican "Codigo Civil Federal" and in
the "Codigo Civil para el Estado de Sonora", as one or the other may be
applicable, but only up to Twenty Thousand Dollars of the United States of
America (US$20,000).
Notwithstanding the foregoing, Tenant shall have the right to setoff and/or
deduct from its rent obligation any and all amounts which Tenant pays, and/or
any damages incurred by Tenant and/or by any parent or subsidiary of Tenant,
including the Guarantor, which directly or indirectly result from Landlord's
failure to fulfill its obligations under any financing arrangement Landlord may
currently or in the future have with a lender or other financial institution
inside or outside Mexico.
20. LIMITATION OF LANDLORD LIABILITY.
(A) The term "Landlord" as used herein shall mean only the owner of the
Premises. Upon a transfer of title or lease of the Premises, the transferor
shall be relieved of all covenants and obligations of Landlord hereunder
and Tenant shall look solely to the successor in interest of the transferor
as Landlord hereunder. Tenant agrees to attorn to the transferee or
assignee, such attornment to be self-operative.
(B) In no event shall Landlord be liable to Tenant for any failure of other
tenants in the Premises, if any, to operate their businesses, or for any
loss or damage caused by
Page 17 of 30
the acts or omissions of any other tenants. Notwithstanding anything to the
contrary contained herein, neither Landlord, nor any general or limited
partner in or of Landlord, whether direct or indirect, nor any direct or
indirect partners in such partners, nor any disclosed or undisclosed
officers, shareholders, principals, directors, employees, partners,
servants or agents of Landlord, nor any of the foregoing, nor nay
investment adviser or other holder of any equity interest in Landlord,
their successors, assigns, agents, or any mortgagee in possession shall
have any personal liability with respect to any provisions of this Lease.
21. ESTOPPEL CERTIFICATE.
Tenant shall deliver within, twenty (20) days after Landlord's written request
therefor, a certificate to the party designated to such request, in the form
supplied, certifying that (1) this Lease is unmodified and in full force and
effect (or stating any modifications then in effect), (2) that there are no
defenses or offsets thereto (or stating those claimed by Tenant), (3) the dates
to which rent has been paid, and (4) as to any other information reasonably
requested.
22. MISCELLANEOUS.
(A) Landlords failure to exercise its rights with respect to a breach of any
term, covenant or condition contained herein shall not be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition contained herein.
(B) Tenant acknowledges that it has not relied on any representations or
agreements except those expressed herein, and that this Lease contains the
entire agreement of the parties. No modifications of this Lease shall be
binding or valid unless in writing and executed and delivered by both parties.
Except as otherwise specifically provided herein, the terms, covenants and
conditions contained in this Lease, including the stipulation of the Term, shall
bind and inure to the benefit of the respective heirs, successors, executors,
administrators and assigns of each of the parties hereto.
(C) The submission of this document for review does not constitute an option,
offer or agreement to lease space. This document shall be effective only upon
Landlord's and Tenant's execution.. Except as expressly contained herein,
neither Landlord nor Landlord's agent has made representations, warranties or
promises with respect to the Premises or this Lease. Landlord and Tenant each
acknowledge that each has been represented by independent counsel and has
executed this Lease after being fully advised by said counsel as to its effect
and significance.
(D) This Lease shall be construed in accordance with the laws applicable in the
Mexican state in which the Premises is located. Unless herein waived, Landlord
and Tenant acknowledge that all of the applicable statutes of such state are
superimposed on the rights, duties and obligations of Landlord and Tenant
hereunder.
Page 18 of 30
(E) Where Tenant is required by this Lease to pay any sum of money or to do any
act within an indicated period or by a particular date, it is understood that
time is of the essence.
(F) If any term or provision of this Lease shall, to any extent, be illegal,
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and all other terms and provisions of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
(G) The parties acknowledge that pursuant to applicable Mexican law, this
Agreement shall be filed and recorded with the Public Registry of Property and
Commerce of Hermosillo, Sonora, Mexico, for which purpose either party may
request that this Agreement be notarized ("protocolizado") by a Mexican notary
public. Tenant hereby authorizes Messrs. Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx
Xxxxxxx Xxxxx, and Xxxx Xxxxxx Xxxxxxxxxx to, jointly or severally, request and
obtain said notarization on its behalf, and request and obtain the aforesaid
recordation also on behalf of Tenant.
(H) Unless otherwise stipulated in this Agreement, all references to days shall
be understood as made to calendar and not to working days.
23. ARBITRATION.
Any disputes or differences arising under this agreement between the Landlord
and the Tenant, including any disputes regarding the legal effect, performance
and interpretation hereof and the compliance with any obligations hereunder,
shall be resolved or settled through an arbitration decision according to the
following rules:
(A) Rules of the Arbitration.
The arbitration shall be governed by the rules established in Book Five, Title
IV (four) of the Mexican Commercial Code (as for that which has not been
modified by this clause) and the rules set forth in this clause. The arbitration
decision shall be rendered pursuant to all such rules.
(B) Place of arbitration.
Arbitration shall be conducted in Hermosillo, Sonora, at the offices agreed by
the arbitration court.
Without prejudice to what is set forth in the foregoing paragraph, the
arbitration court may hold meetings in any place or office it deems appropriate
for its members to deliberate, hearing the parties, witnesses or experts, and
examining properties or documents.
Page 19 of 30
(C) Arbitration Court.
The arbitration court shall consist of three members. One arbitrator shall be
appointed by the plaintiff, a second arbitrator shall be appointed by the
arbitrators and the third arbitrator shall be appointed by the arbitrators
designated by the plaintiff and the defendant.
If the defendant does not appoint its corresponding arbitrator within 10 (ten)
calendar days from the date of receipt of the plaintiff's request to refer the
dispute to arbitration and for the defendant to appoint an arbitrator, then, at
the request of the plaintiff, such appointment shall be made a competent state
or federal judge of Hermosillo, Sonora, whose resolution shall be unappealable
or irrefutable by any other means, including a proceedings to protect
constitutional rights.
The plaintiff's request referred to in the foregoing paragraph must also
indicate the arbitrator appointed by the plaintiff.
In the event the two arbitrators appointed by the parties fail to reach an
agreement as regards the appointment of the third arbitrator within 10 (ten)
calendar days from the date on which the defendant appointed its arbitrator,
then, at the request of any of the parties or arbitrators, the third arbitrator
shall be appointed by a competent federal or state judge of the city of
Hermosillo, Sonora, whose resolution shall be unappealable or irrefutable by any
other means, including a proceeding to protect constitutional rights.
Arbitrators must be individuals of legal age, legally qualified, morally
reliable, independent and impartial, with experience in commercial disputes and,
preferably, attorneys at law.
The arbitrators may also be companies or entities specialized in arbitration
services. However, in any case, any individual who respectively represents such
companies must fulfill the requirements specified in the immediately preceding
paragraph.
All decisions rendered by the arbitration court, including the arbitration award
and any kind of resolution must be made by majority of votes.
(D) Arbitration Language.
Arbitration shall be conducted in the Spanish language. This rule is applicable
to all written documents by the parties, all hearings and any award, decision or
communication of any other kind rendered by the arbitration court.
(E) Applicable Substantive Law.
Differences or disputes shall be resolved or settled through the application of
the Mexican substantive law, including its rules regarding the determination of
the applicable law.
Page 20 of 30
(F) Applicable Procedural Law.
Arbitration proceedings shall be governed by what is determined by the
arbitration court in accordance with article 1,435 (one thousand four hundred
thirty five), second paragraph of the Commercial Code, seeking (i) the
prevalence of material truth over formal truth, (ii) the equality of the
parties, and (iii) their full opportunity to offer and xxxxxxx evidence and
exercise their rights.
(G) Arbitration Award.
A process for the annulment of the arbitration award can only be initiated
before a judge or court legally qualified to hear its acknowledgement or
enforcement. The resolution of annulment of the arbitration award can only be
appealed through a proceeding to protect constitutional rights.
The resolution of acknowledgement and enforcement of the arbitration award can
only be appealed through a proceeding to protect constitutional rights.
(H) Reiteration of the arbitration commitment and express waiver of other
procedures.
The parties clearly, precisely and irrevocably waive any other procedure for the
settlement of disputes they would be entitled to under the law in the absence of
the arbitration agreement object of this clause, including any mercantile
executory proceeding.
(I) Precautionary Measures.
Notwithstanding what is set forth in this clause, the parties may request
precautionary measures from the competent state or federal courts, and such
request shall not be construed as a waiver or abandonment of the right to solve
or settle definite matters as stipulated in this clause.
(J) Costs of the arbitration and attorneys' fees.
The parties shall pay the costs of the arbitration, including the arbitrator's
fees, by equal portions. Each party shall pay the fees and the costs of their
respective attorneys.
(K) Judicial remedies.
This clause shall not be interpreted as prohibiting the requesting from
competent tribunals of judicial actions in support of the arbitration,
including, without being limited thereto, motions to submit to arbitration,
motions to stay judicial proceedings pending the completion of arbitration
proceedings, or motions to issue interlocutory injunctions to do or to refrain
from doing, or to repossess, attach, or other similar measures that may be
necessary to prevent irreparable damages or losses to one party pending the
completion of the arbitration proceedings.
Page 21 of 30
(L) Waiver of remedies.
The arbitration award shall be recognized and its execution ordered by any
competent court. The parties hereby waive any right that they may have to
challenge or appeal, before the Mexican tribunals or before any other tribunals,
with respect to any juridical issue that may arise during the arbitration
proceedings.
(M) Notices and notifications.
The parties agree that the delivery of any notices or notifications in
connection with any arbitration proceedings at their respective addresses
designated in this agreement (or at those designated in the future in writing)
shall be valid and sufficient.
This Clause on arbitration shall not apply to the Guarantor.
24. TRANSLATION. Except for Exhibit "D", this Lease has been prepared both in
English and in Spanish, and . in case of conflict, the Spanish version will
control. Exhibit "D" has been drafted and executed in English only.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
set forth above, in two copies that shall be considered one for all legal
purposes
Landlord:
/s/ Xxxx Xxxxx Xxxxxxx Xxxxx,
----------------------------
Fraccionadora Dinamica del Xxxxxxxx X.X. de C.V.
represented by Xxxx Xxxxx Xxxxxxx Xxxxx
Title: Attorney-in-fact
Date executed: Xxxxx 00, 0000
Xxxxxx:
/s/ Xxxxx Xxxxx Xxxxxxxx,
------------------------
CMC Industrias Xxxxxxxxxx X.X. de C.V.,
represented by Xxxxx Xxxxx Xxxxxxxx
Title: Attorney-in-fact
Date executed: March 16, 2001
EXHIBITS
--------
A. PLAN OF LAND
B. TERM CONFIRMATION LETTER
C. DOCUMENT EVIDENCING LANDLORD'S LEGAL RIGHT TO ENTER INTO AGREEMENT ON BEHALF
OF LAND OWNERS
D. GUARANTY
E. DRAWINGS AND SPECIFICATIONS OF PLANT AND OFFICES
Page 22 of 30
EXHIBIT A
---------
Plan Of Land
[Graphic Omitted]
Page 23 of 30
EXHIBIT B
Date: March 15th, 2001
RE: Lease Agreement (the "Lease") dated March 15th, 2001
Between Fraccionadora Dinamica del Xxxxxxxx X.X. de C.V. ("Landlord") and
CMC Industrias Xxxxxxxxxx X.X. de C.V. ("Tenant")
Premises: Land and Building (Premises) located at Xxxxxxxxx Xxxxxxxxxxxxx
Xxxxxxxxxx-Xxxxxxx, xxxxxxxxx 0.0, Xxxxxxxxxx, Xxxxxx, Xxxxxx
The undersigned hereby confirm as of the date set forth above, the
following:
1. Tenant has accepted possession of the Plant on March 15th, 2001, and is
currently Occupying same.
2. The Commencement Date and Expiration Date, as each is defined in the
Lease, are as follows:
Commencement Date: March 15th, 2001
Expiration Date: March 31st, 2008
3. The obligation to commence the payment of rent commenced or will commence
on March 15th, 2001.
4. All construction, alterations and improvements required to be performed
by Landlord pursuant to the terms of the Lease to cause Substantial
Completion of the Plant (as defined in the Lease) have been satisfactory
completed, except for the items mentioned in the Punch List of the Plant
referenced in Clause 5 (five) of the Lease.
Landlord:
By: ____________________________________
Title: ____________________________________
Tenant:
By: ____________________________________
Title: ____________________________________
Page 24 of 30
Exhibit C
----------
Document Evidencing Landlarod's Legal Right to Enter Into Agreement on Behalf of
Land Owners
[Omitted]
Page 25 of 30
EXHIBIT D
---------
GUARANTY OF LEASE
-----------------
In consideration of, and as an inducement to Fraccionadora Dinamica del
Xxxxxxxx X.X. de C.V. ("Landlord") to enter that certain lease of even date
herewith (the "Lease") with CMC Industrias Xxxxxxxxxx X.X. de C.V.("Tenant") for
the premises having an address of Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxxxxxx-Xxxxxxx,
Xxxxxxxxx 0.0, Xxxxxxxxxx, Xxxxxx, Xxxxxx and in further consideration of the
premises and other good and valuable consideration, the receipt of which is
hereby acknowledged, the undersigned, (the "Guarantor"), hereby guarantees,
absolutely and unconditionally, to Landlord the full and prompt performance of
all terms, covenants, conditions and agreements to be performed and observed by
Tenant under the Lease and any and all amendments, modifications and other
instruments relating thereto, whether now or hereafter existing, and the full
and prompt payment of all damages, costs and expenses which shall at any time be
recoverable by Landlord from Tenant by virtue of the Lease and any amendments,
modifications and other instruments relating thereto, (hereinafter called
"Liabilities of Tenant"); and Guarantor hereby covenants and agrees to and with
Landlord, its successors and assigns, that if Tenant, its successors and
assigns, shall default at any time in the payment of Base Rent (as defined in
the Lease) or any other sums or charges payable by Tenant under the Lease or in
the performance of any of the terms, covenants, provisions or conditions
contained in the Lease, Guarantor will forthwith pay to Landlord, its successors
and assigns, such Base Rent and other sums and charges and will forthwith
faithfully perform and fulfill all of such terms, covenants, conditions and
provisions of the Lease and will forthwith pay to Landlord all damages that may
arise in consequence of any such default by Tenant.
Guarantor agrees that, upon notice and demand, Guarantor will reimburse
Landlord, to the extent that such reimbursement is not made by Tenant, for all
expenses (including reasonable attorneys fees and disbursements) incurred by
Landlord in connection with any default by Tenant under the Lease or the
default by Guarantor under is Guaranty.
All moneys available to Landlord for application in payment or reduction of
the Liabilities of Tenant may be applied by Landlord, in such manner and in such
amounts as it may see fit, to the payment or reduction of such of the
Liabilities of Tenant as Landlord may reasonably elect.
This Guaranty shall be a continuing guaranty, and the liability of the
Guarantor hereunder shall in no way be affected, modified or diminished by
reason that any security for the Liabilities of Tenant is exchanged,
surrendered, or compromised, waived or released in whole or in part, or that any
default with respect thereto is
Page 26 of 30
waived, whether or not notice thereof is given to Guarantor, and it is
understood and agreed that Landlord may fail to set off and may release, in
whole or in part, any credit on its books in favor of Tenant, and may extend
further credit in any manner whatsoever to Tenant, generally deal with Tenant or
any such security as Landlord may see fit; and Guarantor shall remain bound
under this Guaranty notwithstanding any such exchange, surrender, release,
change, alteration, renewal, extension, continuance, compromise, waiver,
inaction, extension of further credit or other dealing.
Notwithstanding any provision to the contrary contained herein, Guarantor
hereby unconditionally and irrevocably waives (a) any and all rights of
subrogation to the claims, whether existing now or arising hereafter, Landlord
may have against Tenant, but only until such time as the Liabilities of Tenant
shall have been fully discharged, and (b) any and all rights of reimbursement,
contribution, or indemnity against Tenant which may have heretofore arisen or
may hereafter arise in connection with any guaranty or pledge or grant of any
lien or security interest made in connection with the Lease. Guarantor hereby
acknowledges that the waiver contained in the preceding sentence (the
"Subrogation Waiver") is given as an inducement to Landlord to enter into the
Lease and, in consideration of Landlords willingness to enter into the Lease,
Guarantor agrees not to amend or modify in any way the Subrogation Waiver
without Landlord's prior written consent. If any amount shall be paid to
Guarantor by Tenant on account of any claim set forth at any time when all the
Liabilities of Tenant shall not have been paid in full, such amount shall be
held in trust by Guarantor for Landlords benefit, shall be segregated from the
other funds of Guarantor and shall forthwith be paid over to Landlord to be
applied in whole or in part by Landlord against the Liabilities of Tenant,
whether matured or unmatured. Nothing herein contained is intended or shall be
construed to give Guarantor any rights of subrogation or right to participate in
any way in Landlords right title or interest in the Lease, notwithstanding any
payments made by Guarantor to or toward any payments due from Guarantor under
this Guaranty, all such rights of subrogation and participation being hereby
expressly waived and released.
Guarantor hereby expressly waives notice of acceptance of this Guaranty and
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall not be terminated, affected or impaired
by reason of the assertion or the failure to assert by Landlord against Tenant,
or Tenants successors and assigns, of any of the rights or remedies reserved to
Landlord pursuant to provisions of the Lease.
This is an absolute and unconditional guaranty of payment and not of
collection and Guarantor further waives any right to require that any action be
brought against Tenant or any other person or entity or to require that resort
be had to any security or to any balance of any deposit account or credit on the
books of Landlord in favor of Tenant or any other person or entity. Successive
recoveries may be had hereunder.
Page 27 of 30
Each reference herein to Landlord shall be deemed to include it 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,
distributees, executors, administrators, legal representatives, successors and
assigns of Guarantor, all of whom shall be bound by the provisions of this
Guaranty.
No delay on the part of Landlord in exercising any rights hereunder or
failure to exercise the same shall operate as a waiver of such rights; nor in
any event shall any modifications or waiver of the provisions of this Guaranty
nor any termination hereof effective unless in writing signed by Landlord, nor
shall any waiver be applicable except in the specific instance for which given.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if any payment of Guarantor on account of the Liabilities of Tenant must
be returned by Landlord upon the insolvency, bankruptcy or reorganization of
Tenant, Guarantor, or otherwise, as though such payment had not been made.
This Guaranty is, and shall be deemed to be, a contract entered into under
and pursuant to the laws of the Commonwealth of Massachusetts, U.S.A. and shall
be in all respects governed, construed, applied and enforced in accordance with
the laws of such State; and no defense given or allowed by the laws of any other
State or Country shall be interposed in any action or proceeding hereon unless
such defense is also given or allowed by the laws of the Commonwealth of
Massachusetts, U.S.A. In any action or proceeding arising out of this Guaranty,
Guarantor agrees to submit to personal jurisdiction in the Commonwealth of
Massachusetts, U.S.A. Guarantor hereby appoints Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
as its agent for service of process in any such action or proceeding. Guarantor
agrees to pay all costs and expenses, including, without limitation, reasonable
attorneys fees, which are incurred by Landlord in the enforcement of this
Guaranty.
This Guaranty may be executed in one or more counterparts, each of which
counterparts shall be an original. If Guarantor is a corporation, partnership,
joint venture or unincorporated association, each individual executing this
Guaranty on behalf of such entity represents and warrants that he or she is duly
authorized to execute and deliver this Guaranty on behalf of such entity and
that this Guaranty is binding upon such entity in accordance with its terms.
All of Landlords rights and remedies under the Lease or under this Guaranty
are intended to be distinct, separate and cumulative and no such right and
remedy therein or herein mentioned is intended to be in exclusion of or a waiver
of any of the others.
As a further inducement to Landlord to accept the Lease and in
consideration thereof, Landlord and Guarantor covenant and agree that in any
action or proceeding brought on, under or by virtue of this Guaranty, Landlord
and the Guarantor shall and do hereby waive trial by jury.
Page 28 of 30
Any notices which either party herein may desire to give to the other shall
be made in writing and shall be given by certified or registered mail, postage
prepaid, return receipt requested, or by a nationally recognized overnight
courier or be facsimile and shall be deemed to be given on the third (3rd)
business day after the date of posting in a United States Post Office or branch
post office or one day after delivery to the overnight courier upon receipt of
confirmation if by facsimile, and shall be delivered to Landlord, at Xxxxxxxx
Xxxxxxxxx #00, Xxxxxxxxxx, Xxxxxx, Xxxxxx.
Notices for Guarantor (s) shall be sent to the address(es) set forth below.
Either party may, by notice as aforesaid actually received, designate a
different address or addresses for communications intended for it.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
_____day of December, 2000.
Guarantor:
ACT MANUFACTURING, INC.
By: ___________________________
Name:___________________________
Title: _________________________
Date executed: _______________________
Page 29 of 30
Exhibit E
Drawings and Specifications of Plant and Offices
[Omitted]
Page 30 of 30 Pages
