SUBLEASE
This agreement made as of July 26, 2002, between TYCO PRINTED CIRCUIT GROUP LP,
a Delaware limited partnership with a place of business at 0000 Xxxx Xxxxxx
Xxxxx 000 Xxxxxxx XX 00000 (the "SUBLESSOR"), Titan EMS, Inc., a Delaware
corporation with a place of business at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, XX
("SUBLESSEE") and SVPC Partners, LLC, a Delaware limited liability company and
Phoenix Business Trust, a Delaware business trust (collectively "GUARANTORS").
SUBLESSOR hereby sublets to SUBLESSEE and SUBLESSEE hereby
takes and hires from SUBLESSOR, upon the terms and conditions
hereinafter set forth, the following premises ("SUBLESASE"):
The portion of the Timber Business Park described as Building
B, consisting of approximately 27,984 square feet ("DEMISED PREMISES").
This building is located at 00000 Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx
XX. This building is the subject of a restated Lease dated February 01,
1999 ("PRIME LEASE") between Longmeadow Partners ("OVERLANDLORD") and
Tyco Printed Circuit Group LP as successor in interest to Xxxxxxxxxx
Industries Inc. The PRIME LEASE is attached as Exhibit A.
I. CONDITIONS
The SUBLEASE shall be expressly conditioned on the following:
(a) This SUBLEASE shall not be effective unless and until
OVERLANDLORD provides its written consent to the SUBLEASE by
SUBLESSOR to SUBLESSEE. SUBLESSOR will diligently pursue said
consent.
(b) This SUBLEASE shall not be effective unless and until
SUBLESSEE furnishes to SUBLESSOR a certificate of insurance
for Pollution Legal Liability policy naming SUBLESSOR as an
additional insured with the following limits: (i) $3 million
per incident and (i) $6 million aggregate.
(c) SUBLESSEE agrees to be bound by the terms of the prime lease,
which is incorporated herein by reference PRIME LEASE. For
purposes of this SUBLEASE, wherever in PRIME LEASE the word
"Lessor" or "Landlord" is used it shall be deemed to mean the
SUBLESSOR herein and wherever in the PRIME LEASE the word
"Lessee" or `Tenant" is used it shall be deemed to mean the
SUBLESSEE herein. During the term of this SUBLEASE and for all
subsequent periods for obligations which have arisen prior to
the termination of this SUBLEASE, SUBLESSEE expressly agrees
to comply with all obligations of SUBLESSOR under the PRIME
LEASE, for the benefit of SUBLESSOR and Landlord, except in
the event of a conflict between the terms of this SUBLEASE and
the PRIME LEASE, in which case the terms of this SUBLEASE
shall prevail.
(d) SUBLESSOR will provide to SUBLESSEE the following reports:
o Permit Rule FTU Closure Certification Report for
00000 Xxx Xxxx Xxxxxxx Xxxx., Xxxxxxx, XX, dated July
2002
o Facility closure Report for 44358 & 00000 Xxx Xxxx
Xxxxxxx Xxxx., Xxxxxxx, XX, dated July 2002.
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The closure reports have been issued by Earth Tech. Verbal
acceptance of the results included in these reports has been
received by SUBLESSOR from regulatory authorities. SUBLESSOR
will provide to SUBLESSEE copies of these reports and will
provide to SUBLESSEE copies of final findings provided by
regulatory authorities.
(e) Without in any way limiting the generality of the provisions
of subparagraph (c) above, the requirements for SUBLESSEE'S
use of hazardous materials, and its compliance with all
applicable laws, are set forth in Article Sixteen of the PRIME
LEASE, and are incorporated as though fully set forth herein.
SUBLESSEE expressly agrees to comply with the terms of Article
Sixteen of the PRIME LEASE (with SUBLESSEE assuming the
obligations and liabilities of Article 16 applicable to
Lessee), including but not limited to the indemnity provisions
contained therein, and will comply with all applicable state,
federal, and local environmental rules and regulations.
(f) SUBLESSEE providing to SUBLESSOR a security deposit (the
"Deposit") in the amount of $100,000 Dollars as security for
SUBLESSEE'S performance of all its obligations hereunder
pursuant to Paragraph (9) below.
(g) The requirements for SUBLESSEE'S use of the DEMISED PREMISES
are contained throughout the PRIME LEASE, which is
incorporated herein, and particularly in Article Six, which
pertains to the condition of the DEMISED PREMISES, and
maintenance, repair, and alterations. SUBLESSEE express
agreement to comply with the terms of Article Six, including
but not limited to Section 6.02, which shall apply to exempt
the SUBLESSOR from Liability.
(h) SUBLESSEE'S acceptance of the condition of roof, structural,
HVAC systems.
(i) SUBLESSOR to provide SUBLESSEE Copies of all existing drawings
and professional reports (unless privileged) on the property
within five (5) days of the execution of this SUBLEASE.
(j) The execution by GUARANTOS of the form of guaranty acceptable
to SUBLESSOR and attached as Exhibit B.
(k) Upon satisfaction of the foregoing conditions, SUBLESSEE may
take possession of the DEMISED PREMISES, SUBLESSEE'S
obligations under this SUBLEASE, including but not limited to
the rental obligations shall commence immediately upon the
satisfaction of the foregoing conditions, whether or not
SUBLESEE has physically taken possession of the DEMISED
PREMISES.
(l) In the event that any of the foregoing conditions are not met
by August 16, 2002, this SUBLEASE shall be null and void, with
no obligations or liability by either party to the other.
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1. TERMS OF SUBLEASE
The term of this SUBLEASE ("Term") shall commence on August 19, 2002
("Term Commencement Date") and shall expire on January 31, 2009 (unless sooner
terminated pursuant to the provisions hereof) ("Termination Date"),
notwithstanding any extension options offered in the PRIME LEASE that SUBLESSEE
must pursue directly with OVERLANDLORD. SUBLESSEE agrees, in accordance with the
terms of the PRIME LEASE, to return the DEMISED PREMISES to its condition at the
start of the PRIME LEASE, exclusive of normal wear and tear, and inclusive of
all interior and exterior building modifications.
2. RENT
SUBLESSEE covenants and agrees to pay to SUBLESSOR during the term
hereof, without any demand set-off or deduction, fixed annual base rent payable
in the amounts as set forth in Exhibit C, and shall be subject to all applicable
late fees described in the PRIME LEASE. The monthly rent shall be payable on the
first day of each month. It is agreed that this is a triple net lease and that
SUBLESSEE shall have all obligations to pay additional rent (whether for real
property taxes, insurance, common area maintenance charges or otherwise) or to
reimburse SUBLESSOR for same, pursuant to the terms of the PRIME LEASE.
3. ADDITIONAL ENVIRONMENTAL REQUIREMENTS
In addition to the requirements of Article Sixteen of the PRIME LEASE, with
which SUBLESSEE is expressly bound to comply, SUBLESSEE further agrees that it
shall give written notice to SUBLESSOR of any communication received by
SUBLESSEE from any governmental authority or other party alleging the existence
of Toxic Materials in, on, under or about the DEMISED PREMISES, or any alleged
violation of environmental law, regulation or ordinance with respect to the
DEMISED PREMISES. Upon reasonable notice from SUBLESSOR, SUBLESSEE shall provide
SUBLESSOR with access to the DEMISED PREMISES during all reasonable times in
order to enable SUBLESSOR to conduct any inspection, monitoring, remediation,
removal or repair related to the presence or alleged presence of Toxic Materials
in, on, under or about the DEMISED PREMISES. SUBLESSEE acknowledges that
SUBLESSOR has no obligation whatsoever by the terms of this SUBLEASE to engage
in any remediation removal or repair.
4. THE PRIME LEASE
4.1. This agreement is a SUBLEASE under a lease dated February 1, 1999,
between SUBLESSOR and OVERLANDLORD pursuant to which SUBLESSOR is the holder of
the lessee interest. SUBLESSEE acknowledges the receipt of a copy of the PRIME
LEASE from SUBLESSOR. It is understood and agreed by the parties hereto that
this SUBLEASE and the liability of both SUBLESSOR and SUBLESSEE hereunder are
expressly conditioned and predicated upon and shall not become effective unless
and until SUBLESSOR herein has obtained from the OVERLANDLORD such written
consent and approval of this SUBLEASE as may be required under the PRIME LEASE.
4.2. This SUBLEASE is expressly subject to the terms and provisions of
the PRIME LEASE and, except to the extent such terms and provisions are
specifically contrary to the express written provisions of this SUBLEASE, in
which case the provisions of this SUBLEASE shall control, such terms and
provisions of the PRIME LEASE are hereby incorporated by reference as part of
this SUBLEASE.
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4.3. With respect to work, services, repairs and restoration or the
performance of other obligations of the OVERLANDLORD under the PRIME LEASE,
SUBLESSOR herein, does not undertake and shall have no obligation to perform any
of the same. SUBLESSOR'S sole obligation with respect thereto shall be to
request the same, after request by SUBLESSEE, and to send all notices required
under the PRIME LEASE to the OVERLANDLORD. If the OVERLANDLORD does not comply
with its obligations under the PRIME LEASE, SUBLESSEE, as its own expense, shall
have the right to enforce the performance of such obligations against
OVERLANDLORD (but not against SUBLESSOR) in its own name or in the name of
SUBLESSOR herein (as required or permitted by applicable law, but in any event
without cost or expense to SUBLESSOR) but only to the extent permitted by the
PRIME LEASE and SUBLESSEE shall indemnify, exonerate and hold SUBLESSOR harmless
from and against any loss, cost, expense, damages or liability that SUBLESSOR
may suffer or incur as a result thereof. SUBLESSOR shall cooperate with
SUBLESSEE and (to the extent requested by SUBLESSEE in writing) shall take or
refrain from taking all actions reasonably necessary to further the intent of
his provision, provided that SUBLESSEE reimburses SUBLESSOR for all costs and
expenses incurred by SUBLESSOR in connection therewith.
4.4. Notwithstanding anything herein contained to the contrary, if the
PRIME LEASE terminates during the term hereof for any reason whatsoever, this
SUBLEASE shall terminate upon such termination of the PRIME LEASE with the same
force and effect as if such termination date had been named herein as the date
of expiration hereof.
4.5. Whenever SUBLESSOR'S consent is necessary to any act of SUBLESSEE
under this SUBLEASE, it is understood and agreed that SUBLESSOR shall not be
deemed to be unreasonable in withholding such consent if (i) the OVERLANDLORD'S
consent to such act is also required under the PRIME LEASE and (ii) OVERLANDLORD
fails to give its consent.
4.6. SUBLESSEE covenants and agrees not to do or commit any act which
shall constitute a default under the PRIME LEASE and agrees to defend and save
SUBLESSOR harmless and indemnified from and against any and all liability, loss,
cost, damage or expense, including reasonable attorneys' fees, arising out of or
in connection with any act or failure to act which constitutes a default under
the PRIME LEASE.
5. USE
5.1. SUBLESSEE shall occupy and use the DEMISED PREMISES for
manufacture of printed circuit boards, including manufacturing and services
related thereto, and shall not use the DEMISED PREMISES for any other purpose.
SUBLESSEE shall, at its cost and sole expense, promptly comply with all
applicable laws, ordinances, rules, regulations, orders, certificates of
occupancy, conditional use or other permits, variances, covenants and
restrictions of record, and requirements of any fire insurance underwriters,
rating bureaus or government agencies relating in any manner to the DEMISED
PREMISES and the occupation and use by SUBLESSEE thereof. SUBLESSEE shall
conduct its business in and use the DEMISED PREMISES in a lawful manner and
shall not use or permit the use of the DEMISED PREMISES or the common areas in
any manner that will tend to create waste or a nuisance or shall tend to disturb
other occupants of the Timber Business Park.
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5.2. SUBLESSEE accepts the DEMISED PREMISES on an "as is" basis and
hereby warrants and represents that it is fully familiar with the physical
condition of the DEMISED PREMISES, and finds it to be satisfactory. The parties
agree that SUBLESSOR has made no representations of any kind in connection with
respect to the condition of the DEMISED PREMISES and that SUBLESSOR shall not be
liable for any latent or patent defects existing therein. Notwithstanding the
foregoing, SUBLESSOR has no knowledge of any patent defect(s) that would prevent
SUBLESSEE use of the DEMISED PREMISES; to the best of its knowledge, SUBLESSOR'S
prior use of the DEMISED PREMISES was in full compliance with all governmental
building permits and requirements.
5.3. SUBLESSEE shall have access to the DEMISED PREMISES and the
Building seven (7) days a week, twenty-four (24 hours a day, subject to the
reasonable rules and regulations imposed by SUBLESSOR or the OVERLANDLORD.
5.4. SUBLESSEE acknowledges and agrees that SUBLESSOR has no obligation
to provide guard service or other security measures for the benefit of the
DEMISED PREMISES or Timber Business Park, and SUBLESSOR shall have no liability
to SUBLESSEE, or its employees, agents, or invitees due to its failures to
provide such services, SUBLESSEE assumes all responsibility for the protection
of SUBLESSEE, its agents, employees, contractors and invitees and the property
of SUBLESSEE and of SUBLESSEE'S agents, employees, contractors and invitees from
acts of third parties.
6. ASSIGNMENT AND SUBLEASING
SUBLESSEE shall not assign, mortgage, pledge, encumber or otherwise
transfer this SUBLEASE or make any further SUBLEASE or permit the occupancy of
the DEMISED PREMISES or any part thereof by anyone other than SUBLESSEE. Any
consent by SUBLESSOR to an assignment or subletting or occupancy shall not in
any way be construed to relieve SUBLESSEE from obtaining the express consent in
writing of SUBLESSOR to any further assignment or subletting or occupancy. As
used in this Section 6, the terms "assign" and "transfer" shall be deemed to
include any transfer of SUBLESSEE'S interest in this SUBLEASE by operation of
law. SUBLESSOR'S consent herein shall not be unreasonably withheld.
7. BROKER'S COMMISSION
SUBLESSEE represents and warrants to SUBLESSOR that SUBLESSEE has not
employed any real estate broker in connection with this transaction. Each of
SUBLESSOR and SUBLESSEE shall indemnify and hold the other harmless from and
against any claim, loss, damage, cost or liability for any brokerage commission
or fee which may be asserted by any broker, agent or finder engaged by the
indemnifying party or with whom the indemnifying party has dealt in connection
with this SUBLEASE.
8. NOTICES
All notices shall be given to by certified mail return receipt
requested (or by nationally recognized overnight courier) to SUBLESSOR at the
address first written above with a copy, to Xx. Xxxx Xxxxxx, 0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, XX 00000, or to such other place as may be designated by
written notice to the SUBLESSEE; if sent to SUBLESSEE, the same shall be sent to
SUBLESSEE at the DEMISED PREMISES with a copy to, or to such other place as may
be designated by written notice to the SUBLESSOR; and if sent to GUARANTORS, to
such place as may be designated by written notice to the SUBLESSOR.
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9. SECURITY DEPOSIT
SUBLESSEE will pay and SUBLESSOR shall hold during the Term, a
security deposit ("Deposit") in the amount of $100,000 Dollars as security for
SUBLESSEE'S performance of all its obligations hereunder. SUBLESSOR may apply
the Deposit, or any part, to SUBLESSOR'S damages arising from SUBLESSEE'S
default without prejudice to any other SUBLESSOR remedy. If any part of the
Deposit is applied, SUBLESSEE immediately shall restore the Deposit to its
original amount. Upon written request, SUBLESSOR shall return the remaining
Deposit to SUBLESSEE on the Termination Date and SUBLESSEE'S surrender of
possession of the DEMISED PREMISES to SUBLESSOR, so long as SUBLESSEE is not
then in default hereunder. SUBLESSOR shall have no obligation to pay interest on
the Deposit and may commingle the Deposit with SUBLESSOR'S funds. If SUBLESSOR
conveys its interest under this SUBLEASE, the Deposit, or any part not applied
previously, may be turned over to the new SUBLESSOR. SUBLESSOR shall obtain a
receipt for said security deposit and shall give such receipt to SUBLESSEE.
SUBLESSEE shall look solely to the new SUBLESSOR for proper application and the
return of the Deposit.
10. MAINTENANCE, REPAIRS AND ALTERATIONS
10.1. SUBLESSOR'S Obligations. SUBLESSOR shall provide notice to
OVERLANDLORD of any maintenance, repair or replacement obligation for which
OVERLANDLORD is responsible under the PRIME LEASE once SUBLESSEE provides notice
of same to SUBLESSOR. This shall be SUBLESSOR'S sole maintenance, repair or
replacement obligation with respect to any repair or maintenance obligation that
is the OVERLANDLORD'S obligation under the PRIME LEASE. All other repair and
maintenance of the structural elements of, or the Building systems servicing,
the DEMISED PREMISES shall be performed by SUBLESSEE, at SUBLESSEE'S expense
pursuant to the requirements of the PRIME LEASE and subject to provision of a
bonding certificate in the name of the SUBLESSOR. There shall be no abatement of
rent or liability to SUBLESSEE on account of any injury or interference with
SUBLESSEE'S business with respect to any improvements, alterations or repairs
made by OVERLANDLORD or the SUBLESSOR to the DEMISED PREMISES or the Building of
which it is part. SUBLESSOR shall make a best effort attempt to perform said
repair or maintenance without disturbing SUBLESSEE'S business.
10.2 SUBLESSEE'S Obligations. (a) SUBLESSEE, at its sole cost and
expense, shall be responsible for keeping the DEMISED PREMISES in the same
order, repair and condition as the same are in on the date hereof or in such
better condition as the same may be put in hereafter, reasonable wear and tear
excepted and damage by fire and other casualty excepted. Without limiting the
foregoing, SUBLESSEE shall keep the DEMISED PREMISES in a clean and sanitary
condition, and shall maintain, repair and (if necessary) replace all doors and
other partitions that are part of the DEMISED PREMISES.
(b) On the last day of the Term hereof, or on any sooner
termination, SUBLESSEE shall surrender the DEMISED PREMISES to SUBLESSOR in the
same condition as received or in such better condition as the same may be put in
hereafter, ordinary wear and tear and casualty excepted, clean and free of
debris and SUBLESSEE'S personal property. SUBLESSEE shall repair any damage to
the DEMISED PREMISES occasioned by the installation or removal of SUBLESSEE'S
trade fixtures, furnishings and equipment.
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10.3 Alterations and Additions. SUBLESSEE shall not, unless in
accordance with the PRIME LEASE and with SUBLESSOR'S prior written consent
(which may not be unreasonably withheld), make any alterations, improvements,
additions, utility installations or repairs ("Alterations") in, on or about the
DEMISED PREMISES. SUBLESSEE shall pay, when due, all claims for labor or
materials furnished to or for SUBLESSEE at or for use in the DEMISED PREMISES,
which claims are or may be secured by any mechanic's or materialmen's lien
against the DEMISED PREMISES. SUBLESSEE shall not allow any liens relating to
any work undertaken by SUBLESSEE to be recorded against the DEMISED PREMISES and
shall take all necessary action to forthwith remove any such lien recorded
against the DEMISED PREMISES. At the expiration of the term, SUBLESSOR may
require the removal of any Alterations installed by SUBLESSEE and the
restoration of the DEMISED PREMISES to their prior condition, reasonable wear
and tear and casualty excluded, at SUBLESSEE'S expense. All Alterations (whether
or not such Alterations constitute trade fixtures of SUBLESSEE) that may be made
to the DEMISED PREMISES by SUBLESSEE shall be paid for by SUBLESSEE, at its sole
cost and expense, and shall be made and done in a good and workmanlike manner.
If this SUBLEASE is terminated due to the expiration of its term or otherwise,
and SUBLESSEE fails to remove its property as required by pursuant to this
Section 10.3, in addition to any other remedies available to SUBLESSOR under
this SUBLEASE, and subject to any other right or remedy SUBLESSOR may have under
applicable law, SUBLESSOR may deem such Alterations as abandoned or remove any
property of SUBLESSEE from the DEMISED PREMISES and store the same elsewhere at
the expense and risk of SUBLESSEE.
11. INSURANCE
11.1. SUBLESSEE shall obtain and keep in force during the term of this
SUBLEASE a commercial general liability policy of insurance which coverage
acceptable to SUBLESSOR, in SUBLESSOR'S reasonable discretion, which, by way of
example and not limitation, protects SUBLESSEE and SUBLESSOR and OVERLANDLORD
(as additional insureds) against claims for bodily injury, personal injury and
property damage based upon, involving or arising out of the SUBLESSEE'S use,
occupancy, operation or maintenance of the DEMISED PREMISES and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $2,000,000.00 per occurrence
with an "Additional Insured-Managers and Landlords (and SUBLESSORS) of Premises
Endorsement" and contain the "Amendment of the Pollution Exclusion" for damage
caused by heat, smoke or fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons or organizations, but
shall include coverage for liability assumed under this SUBLEASE as an "insured
contract" for the performance of SUBLESSEE'S indemnity obligations under this
SUBLEASE.
11.2 SUBLESSEE shall, at all times during the term hereof, maintain in
effect workers' compensation insurance as required by applicable law, if any.
11.3 Except as otherwise set forth in this SUBLEASE, neither SUBLESSOR
nor SUBLESSEE shall be liable to the other party or to any insurance company (by
way of subrogation or otherwise) for any (i) loss or damage to any building,
structure or other tangible property; (ii) liability for personal injury; or
(iii) losses under worker's compensation laws and benefits, even though such
loss, damage or liability might be caused by the negligence of such party, its
agents, contractors, invitees, or employees. Both SUBLESSOR and SUBLESSEE shall
obtain a waiver or subrogation from their respective insurance companies.
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12. SELF-HELP
If the SUBLESSEE defaults in the performance or observance of
any agreement or obligation of SUBLESSEE contained in this SUBLEASE, and does
not cure such default within the applicable grace period provided therefore
after notice from SUBLESSOR specifying the default (or in the case of a default
that cannot be cured within such applicable grace period, if SUBLESSEE does not
commence the cure of such default within ten (10) days after the date of said
notice or if SUBLESSEE does not prosecute such cure until completion with due
diligence), SUBLESSOR may, at SUBLESSOR'S sole option and without waiving any
claim for breach of agreement, at any time thereafter cure such default for the
account of SUBLESSEE, and make any necessary payments in connection therewith,
including without limitation, attorneys' fees and other costs in connection with
any legal action which may be brought and any amounts so paid by SUBLESSOR shall
be deemed paid for the account of SUBLESSEE and shall be added to the rent due
hereunder and SUBLESSEE shall pay same upon demand, together with interest
thereon at the rate of eighteen (18%) percent.
13. DEFAULT
(a) Each of the following shall be a default ("Event of Default")
hereunder:
(i) the failure of SUBLESSEE to pay any rent due hereunder,
which failure continues for five (5) days after written notice thereof
is given by SUBLESSOR to SUBLESSEE.
(ii) The failure of SUBLESSEE to maintain insurance as
required under this SUBLEASE.
(iii) The failure of SUBLESSEE to perform any other obligation
of SUBLESSEE hereunder (other than the payment of rent and the
maintenance of said insurance) which failure continued for fifteen (15)
days after written notice thereof is given by SUBLESSOR to SUBLESSEE,
or if such obligation cannot reasonably be performed within fifteen
(15) days, the failure of SUBLESSEE to commence performance of such
obligation within fifteen (15) days after the date of said notice or
the failure of SUBLESSEE to prosecute such performance until completion
with due diligence (which completion must in any event be achieved
within sixty (60) days after SUBLESSEE'S receipt of said written
notice, or such failure shall be deemed to be an Event of Default
hereunder).
(iv) If the SUBLESSEE is a corporation, partnership, trust, or
other entity, the liquidation, termination or dissolution of the
SUBLESSEE, unless SUBLESSEE'S interest in this SUBLEASE is assigned
with the SUBLESSOR'S consent in connection with such liquidation,
termination, or dissolution.
(v) If SUBLESSEE or makes an assignment for the benefit of
creditors, or if a receiver of any of the property of the SUBLESSEE or
any such guarantor is appointed, or a petition in bankruptcy or any
other proceeding under any law for relief of debtors is filed by or
against the SUBLESSEE, provided that in the case of any involuntary
receivership or involuntary petition in bankruptcy or other such
proceeding, the same shall not be deemed to be an Event of Default
hereunder if it is dismissed within ninety (90) days from the date of
its filing.
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(vi) If the leasehold estate hereby created is taken on
execution or other process of law.
(vii) Any action or inaction by SUBLESSOR that causes or
results in a default under the PRIME LEASE.
Upon the occurrence of any Event of Default, the SUBLESSOR lawfully may, in
addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and without prior demand or
prior notice, terminate this SUBLEASE by notice in writing (such termination to
be effective forthwith, or on a later date stated in said notice, if any),
and/or with or without process of law (forcibly, if necessary) enter into and
upon the DEMISED PREMISES or any part thereof in the name of the whole and
repossess the same and expel the SUBLESSEE and those claiming through or under
the SUBLESSEE and remove the SUBLESSEE and its effects (forcibly, if necessary),
without being deemed guilty of any manner of trespass and without prejudice to
any remedies which might otherwise be used for arrears of rent or other
preceding breach of covenant, and upon entry as aforesaid or on the date of
termination pursuant to the foregoing notice, whichever occurs first, this
SUBLEASE shall terminate. In the case of any such termination of this SUBLEASE,
and without limiting SUBLESSEE'S liability for any default by SUBLESSEE
hereunder prior to such termination, the SUBLESSEE shall indemnify the SUBLESSOR
against (i) loss of rent herein provided for the period from the time of such
termination to the scheduled expiration of the term hereof as in effect
immediately prior to such termination, plus, if any case, (ii) expenses of the
SUBLESSOR incurred in connection with such default or in connection with the
reletting of the DEMISED PREMISES, including, without limitation, attorney's
fees, broker's fees, expense or repairing and putting the DEMISED PREMISES in
good order and condition, and preparing the same for re-rental, and expenses of
removing, storing and/or selling any personal property of SUBLESSEE remaining on
the DEMISED PREMISES after the termination of this SUBLEASE.
(b) In the event of an Event of Default or any other default
on the parts of SUBLESSEE hereunder, whether or not the SUBLESSOR shall
elect to terminate this SUBLEASE, in addition to all other rights and
remedies of SUBLESSOR, SUBLESSEE agrees that SUBLESSEE shall pay to the
SUBLESSOR any expenses incurred by the SUBLESSOR as a consequence of
such default, including, but not limited to, reasonable attorneys'
fees.
(c) In addition to the rights and remedies provided in this
Section, SUBLESOR shall have all other rights and remedies available
under the PRIME LEASE and at law or in equity for any default by
SUBLESSEE under the provisions of this SUBLEASE. All rights and
remedies which the SUBLESSOR may have under this SUBLEASE or at law or
in equity shall be cumulative and shall not be deemed to be
inconsistent with each other, and any two or more of such rights and
remedies may be exercised at the same time or in such sequence as
SUBLESSOR may determine.
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(d) SUBLESSOR shall be deemed in default under this SUBLEASE
if SUBLESSOR fails to commence to observe or perform any of the
provisions of the SUBLEASE to be observed or performed by it, where
such failure continues for thirty (30) days after SUBLESSOR'S receipt
of notice from SUBLESSEE stating that SUBLESSOR failed to observe or
perform the subject provision of this SUBLEASE when required.
14. ESTOPPEL CERTIFICATES. Recognizing that either party may find it
necessary to establish to third parties, such as accountants, banks, mortgages
(or prospective mortgages), purchasers (or prospective purchasers) or the like,
the then current status of performance hereunder, one party, on the written
request of the other party or OVERLANDLORD, made from time to time, will
promptly furnish a written statement in form reasonably satisfactory to the
other party as to the status of any matter pertaining to this SUBLEASE.
15. SUCCESSORS AND ASSIGNS
The covenants and agreements of the parties hereto shall run with the
land and be binding upon and inure to their respective successors and assigns.
16. INDEMNITY
SUBLESSEE hereunder agrees to indemnify, defend and hold the SUBLESSOR
harmless as well as the OVERLANDLORD and their respective employees, partners,
agents, contractors, and lenders ("Indemnified Parties") from and against any
and all liability, loss, cost, damage, claims, loss of rents, liens, judgments,
penalties, fines, settlement costs, investigation costs, the cost of consultants
and experts, attorneys fees, court costs and other legal expenses, insurance
policy deductibles and other expenses ("Damages") arising out of or related to
the subletting or operation of the DEMISED PREMISES unless such Damages are a
result of such Indemnified Party's gross negligence or willful misconduct. To
the extent practical, each party agrees to look to any insurance proceeds or
coverage provided by any insurance policy carried by that party, pursuant to
this SUBLEASE and made available to the other party.
17. LANDLORD'S ACCESS
SUBLESSOR and OVERLANDLORD and their respective agents, contractors and
employees shall have the right to enter the DEMISED PREMISES and employees shall
have the right to enter the DEMISED PREMISES at reasonable times and upon
reasonable notice for the purpose of inspecting the DEMISED PREMISES, performing
any services required of SUBLESSOR or OVERLANDLORD, showing the DEMISED PREMISES
to prospective purchasers, lenders, or tenants, undertaking safety measures and
making alterations, repairs, improvements or additions to the DEMISED PREMISES
or to the Building. In the event of an emergency, SUBLESSOR or OVERLANDLORD may
enter the DEMISED PREMISES by any reasonable means, and SUBLESSOR OVERLANDLORD
shall not be liable to SUBLESSEE for damage to the DEMISED PREMISES or to
SUBLESSEE'S property resulting from such access.
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18. SIGNS
SUBLESSEE shall have the right, at its sole cost and expense, to be
identified in the directory of Timber Business Park, subject to the reasonable
rules and regulations of the OVERLANDLORD and the space limitations of Timber
Business Park and any applicable law or ordinance. SUBLESSEE shall also have the
right, at its sole cost and expense, to place its name on the DEMISED PREMISES
subject to the reasonable rules and regulations of the OVERLANDLORD and/or
SUBLESSOR.
19. HOLDOVER
If SUBLESSEE holds over in occupancy of the DEMISED PREMISES after the
Termination Date (or sooner termination of the SUBLEASE), SUBLESSEE shall,
become a tenant at sufferance only, at a daily rental rate equal to two (2)
times the fixed rent in effect at the expiration of the Term of the SUBLEASE,
plus all other amounts due from SUBLESSEE under this SUBLEASE, and otherwise
subject to the terms and conditions herein specified, so far as applicable, and
shall be liable for all damages sustained by SUBLESSOR on account of such
holding over. This Section shall not operate as a waiver of any right of reentry
provided in this SUBLEASE, and SUBLESSOR acceptance of rent after expiration of
the Term or earlier termination of this SUBLEASE shall not constitute consent to
a holdover or result in a renewal. If SUBLESSEE fails to surrender the DEMISED
PREMISES upon the expiration of the Term or earlier termination of this SUBLEASE
despite demand by SUBLESSOR to do so, SUBLESSEE shall indemnify and hold
SUBLESSOR harmless from all loss or liability, including, without limitation,
any claim made by any succeeding tenant resulting from such failure.
20. WAIVER OF JURY TRIAL.
SUBLESSOR AND SUBLESSEE HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY
JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY
ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER SUBLESSOR AGAINST SUBLESSEE
OR SUBLESSEE AGAINST SUBLESSOR ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN
ANY WAY CONNECTED WITH, THIS SUBLEASE, THE RELATIONSHIP OF SUBLESSOR AND
SUBLESSEE, SUBLESSEE'S USE OR OCCUPANCY OF THE DEMISED PREMISES, OR ANY CLAIM OF
INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUE, OR
REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.
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SUBLESSOR AND SUBLESSEE ACKNOWLEDGE THAT THEY HAVE READ AND REVIEWED THIS
SUBLEASE AND, BY EXECUTION OF THIS SUBLEASE, SHOW THEIR INFORMED AND VOLUNTARY
CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS SUBLEASE IS
EXECUTED, THE TERMS OF THIS SUBLEASE ARE COMERCIALLY REASOANBLE AND EFFECTUATE
THE INTENT AND PURPOSE OF SUBLESSOR AND SUBLESSEE WITH RESPECT TO THE DEMISED
PREMISES. SUBLESSEE ACKNOWLEDGES THAT IT HAS BBEEN GIVEN THE OPPORTUNITY TO HAVE
THIS SUBLEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TO ITS EXECUTION. PREPARATION
OF THIS SUBLEASE BY SUBLESSOR OR SUBLESSOR'S AGENT AND SUBMISSION OF SAME TO
SUBLESSEE SHALL NOT BE DEEMED AN OFFER BY SUBLESSOR TO SUBLEASE THE DEMISED
PREMISES TO SUBLESSEE OR THE GRANT OF AN OPTION TO SUBLESSEE TO SUBLEASE THE
DEMISED PREMISES.
21. NON-SOLICITATION
During the term of this SUBLEASE, SUBLESSEE shall not solicit, recruit,
or induce, any employee or contract/temporary employee of SUBLESSOR to leave
employment of SUBLESOR for any reason whatsoever. Notwithstanding the foregoing,
these provisions shall not apply to any individual that in the exercise of his
or her right to work in the state of California applies for or seeks from
SUBLESSEE employment or replies to an advertisement published by SUBLESSEE
seeking employees.
SUBLESSEE shall not encourage any customers or suppliers to refrain
from or stop doing business with SUBLESSOR. Notwithstanding the foregoing,
SUBLESSEE may seek or compete for the non-exclusive business of such customers
or suppliers.
A breach of SUBLESSEE of either provision of this paragraph, may, at
the sole discretion of SUBLESSOR, result in an Event of Default pursuant to
Paragraph 13, iii above.
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Executed as a sealed instrument as of the day and year first written
above.
SUBLESSOR:
TYCO PRINTED CIRCUIT GROUP LP
By: __________________________________
Its: _________________________________
Name: ________________________________
Date: ________________________________
SUBLESSEE:
TITAN EMS, INC.
By: __________________________________
Its: _________________________________
Name: ________________________________
Date: ________________________________
OVERLANDLORD:
LONGMEADOW PARTNERS
By: __________________________________
Its: _________________________________
Name: ________________________________
Xxxxxxx X. Xxxxxxx, President
Date: ________________________________
GUARANTORS:
SVPC PARTNERS, LLC
By: __________________________________
Its: _________________________________
Name: ________________________________
Date: ________________________________
PHOENIX BUSINESS TRUST
By: __________________________________
Its: _________________________________
Name: ________________________________
Date: ________________________________
