EXHIBIT 10-L
AGREEMENT OF LEASE
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FOR AND IN CONSIDERATION of the mutual covenants herein contained, the
parties hereto do hereby agree as follows:
1. Incorporated Terms. The following terms are incorporated by
reference into this Agreement:
(a) DATE OF LEASE:
August 12, 1997
(b) NAME AND ADDRESS OF LANDLORD:
PVP - SALEM ASSOCIATES, L.P.
c/o Xxxx X. Xxxxxxx & Associates, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
(c) NAME AND ADDRESS OF TENANT:
PARLEX CORPORATION
0 Xxxxxxxxxx Xxx
Xxxxx, Xxx Xxxxxxxxx 00000
(d) DESCRIPTION OF DEMISED PREMISES:
Units 3,4,5 and 7 of the building commonly known as 0 Xxxxxxxxxx
Xxx, Xxxxx, Xxx Xxxxxxxxx, consisting of approximately 34,000
square feet and shown cross-hatched on the Plot Plan Rider.
(e) TERM OF LEASE:
Ten (10) years, commencing July 1, 1997 and expiring June 30,
2007, subject to such rights of termination and expiration as are
otherwise set forth in this Lease, including, without limitation,
the right of early termination set forth in Section 40 hereof.
(f) PERMITTED USE:
Manufacture and assembly of electronic components and equipment
only and for no other purpose whatsoever.
(g) SECURITY DEPOSIT:
See Section 34
(h) BROKER:
None.
(i) RIDERS TO LEASE:
Annual Base Rent Rider
Plot Plan Rider
Extension Option Rider
Real Estate Tax Rider
Operating Expense Rider
Available Space Rider
Termination of Lease Rider
Rules and Regulations Rider
(j) PROPORTIONATE SHARE:
46.26%
(k) NAME AND ADDRESS OF TENANT'S COUNSEL:
Xxxxxx X. Xxxxxxx, Esq.
Kutchin & Xxxx, P.C.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
2. Description of Demised Premises. Landlord hereby leases to Tenant
and Tenant hereby hires from Landlord, the premises described in Section
1(d) (the "Demised Premises" or the "Premises"). The Demised Premises are
part of a multi-tenant building (the "Building") located on the land (the
"Land") shown on the Plot Plan Rider (the Land and Building and other
improvements thereon, collectively, the "Property"). Landlord reserves the
right to install pipes, wiring, shafts, vents, conduits and the like through
the Premises and Tenant shall not be entitled to any reduction of Annual
Base Rent by reason thereof. Without limiting the foregoing, Landlord
agrees that in exercising its rights under the immediately preceding
sentence it shall use good faith efforts to minimize interference with
Tenant's use and occupancy of the Premises.
3. Term. The term of the Lease (the "Term") shall commence on the
date set forth in Section 1(e) (the "Commencement Date") and terminate on
the date set forth in Section 1(e) (the "Expiration Date"), except as
hereinafter provided.
The first Lease Year shall be the period commencing on the
Commencement Date and ending twelve calendar months thereafter, provided,
however, that if the Commencement Date is not the first day of a month, the
first Lease Year shall commence on the Commencement Date and end twelve
calendar months from the last day of the month in which the Commencement
Date occurs. Each succeeding twelve calendar month period thereafter shall
be a Lease Year.
4. Annual Base Rent; Additional Rent. (a) As of the Commencement
Date the Tenant shall pay to the Landlord at the address set forth in Par.
1(b), or to such other person or at such other place as the Landlord may
from time to time designate in a written notice to Tenant, WITHOUT PREVIOUS
DEMAND THEREFOR AND WITHOUT COUNTERCLAIM, DEDUCTION OR SET-OFF OF ANY NATURE
WHATSOEVER EXCEPT AS OTHERWISE HEREINAFTER EXPRESSLY SET FORTH, the annual
base rent ("Annual Base Rent") set forth on the Annual Base Rent Rider
attached hereto. Annual Base Rent shall be payable in monthly installments
as set forth on the Annual Base Rent Rider in advance on or before the first
day of each month during the term of the Lease. If the Commencement Date
shall be other than the first day of a calendar month, Tenant shall pay
Landlord on the Commencement Date the proportionate amount of Annual Base
Rent for the balance of such month. The first full monthly installment of
Annual Base Rent shall be paid by Tenant on the execution of this Lease,
together with the Security Deposit in the amount set forth in Par. 1(g).
(b) Tenant shall also pay to Landlord Tax Rent and Expense Rent in
accordance with the Real Estate Tax Rider and Operating Expense Rider
attached hereto.
(c) All other sums other than Annual Base Rent payable by Tenant
under this Lease, including, but not limited to Tax Rent, Expense Rent,
Service Fees, Default Interest (as said terms are hereinafter defined),
insurance costs, utility charges, Landlord's reasonable attorneys' fees and
court costs, maintenance and repair costs and any other charges or costs due
from Tenant in accordance with the terms of this Lease, shall be deemed to
be "Additional Rent" regardless to whom such sums may be payable. EXCEPT AS
OTHERWISE HEREINAFTER EXPRESSLY SET FORTH, ADDITIONAL RENT SHALL BE PAYABLE
WITHOUT COUNTERCLAIM, DEDUCTION OR SET-OFF OF ANY NATURE WHATSOEVER. In the
event of Tenant's failure to make timely payment of any item of Additional
Rent, Landlord shall have available to it all rights and remedies provided
by this Lease and by law as for non-payment of Annual Base Rent. The term
"Rent" in the Lease means Annual Base Rent and Additional Rent. Acceptance
and/or negotiation by Landlord of Tenant's check for any portion of Rent due
shall not be construed to be a waiver of the balance of the Rent due.
(d) In addition to, and not in lieu of or substitution for, the Tax
Rent referred to in Section 4(b) hereof, Tenant shall pay before delinquency
any and all taxes, assessments, impositions, excises, fees and other charges
levied, assessed or imposed by governmental or quasi-governmental authority
upon Tenant or its business operation, or based upon the use or occupancy of
the Premises, or upon Tenant's leasehold interest, trade fixtures,
furnishings, equipment, leasehold improvements, alterations, changes and
additions made by Tenant, merchandise and personal property of any kind
owned, installed or used by Tenant in, from or upon the Premises. Tenant
shall pay, when due and payable, any sales tax, or other tax, assessment,
imposition, excise or other charge now or hereafter levied, assessed or
imposed upon or against this Lease or any Rent or other sums paid or to be
paid hereunder, or Tenant's or Landlord's interest in this Lease or any Rent
or other sums paid or to be paid hereunder, including, without limitation,
any use tax and/or occupancy tax imposed, assessed or levied by the Federal
Government or any department, bureau, agency or division thereof and/or by
the state, county or municipality in which the Property is located and/or by
any other governmental or quasi-governmental authority having jurisdiction.
Should the appropriate taxing authority require that any tax, assessment,
imposition, excise or other charge referred to in this Section 4(d) be
collected by Landlord or Landlord's agent for or on behalf of such taxing
authority, then such tax, assessment, imposition, excise or other charge
shall be paid by Tenant to Landlord or Landlord's agent in monthly
installments as Additional Rent in accordance with the terms of any notice
from Landlord or Landlord's agent to such effect. The taxes, assessments,
impositions, excises, fees and other charges described in this Section 4(d)
shall be the obligation of Tenant and not Landlord or Landlord's agent. If
any tax, assessment, imposition, excise, fee or other charge covered by this
Section 4(d) is imposed on Landlord or Landlord's agent, then, Tenant shall
pay the same to Landlord, as Additional Rent hereunder, within ten (10) days
after receipt of each xxxx therefor. Notwithstanding the foregoing, it is
the express intent and understanding of the parties that Tenant shall not be
required to pay for the same item twice; therefore, Tenant's obligation
under this Section 4(d) shall not include any component of the Tax Rent.
5. Net Lease. It is the intention of Landlord and Tenant that this
is a net lease and that the Annual Base Rent shall be absolutely net to
Landlord and that Tenant shall be solely responsible for and pay all costs
for the use, operation, maintenance, care and repair of the Demised Premises
and its Proportionate Share of the same with respect to the Property.
6. Insurance. (a) Throughout the Term, Tenant shall procure and
maintain, at its expense, a policy of comprehensive public liability
insurance, including contractual liability coverage and automobile liability
insurance on all owned, non-owned and hired vehicles used in connection with
the Demised Premises (which automobile liability insurance can be secondary
coverage), insuring Landlord, PVP-Salem Corp., Xxxx X. Xxxxxxx personally,
Xxxx X. Xxxxxxx & Associates, Inc. (Landlord's managing agent) any party
holding a mortgage on the Property ("Landlord's Mortgagee") and Tenant
against such liability as Tenant is obligated to indemnify Landlord against
pursuant to Section 24 hereof. The initial amount of such insurance shall
be at least $5,000,000 in combined single limit with respect to injury or
death in any one accident, and at least $5,000,000 for damage to property.
Such amount shall be subject to periodic increase in accordance with
commercially reasonable standards, provided, Landlord shall not so increase
said amount more than once every three years. However, the amount of such
insurance shall not limit Tenant's liability hereunder.
(b) Each insurance policy shall name as certificate holders and
additional insureds Landlord, PVP-Salem Corp., Xxxx X. Xxxxxxx personally,
Xxxx X. Xxxxxxx & Associates, Inc., and any Landlord's Mortgagee, as their
respective interests may appear, except that the foregoing designation shall
not be required with respect to Tenant's workers' compensation insurance.
Each policy shall contain standard mortgagee endorsement clauses. All
insurance policies shall be maintained with insurance companies authorized
to transact insurance business in the state in which the Property is located
and holding a "General Policyholder's Rating" of A-VIII or better, as set
forth in the most current issue of "Best's Insurance Guide". The original
all risk insurance policy (or copy thereof certified by the insurer) and
certificates evidencing other insurance Tenant is required to maintain
hereunder shall be deposited with Landlord no later than ten (10) days after
the date of execution hereof. Evidence of renewals of all policies shall be
deposited with Landlord not less than thirty (30) days prior to the end of
the term of each such policy. Original and renewal policies or certificates
authenticated by the insurer or its authorized representative shall be
accompanied by proof of installment payments of the premiums as made by
Tenant. Such insurance shall not be subject to cancellation except after at
least thirty (30) days prior written notice to Landlord and Landlord's
Mortgagee by nationally reputable overnight delivery service that obtains
written receipts of delivery (e.g., Federal Express, UPS), and any loss
shall be payable notwithstanding any act or negligence of Tenant or
Landlord. If Tenant furnishes insurance hereunder under a blanket policy,
such blanket policy shall contain an endorsement that names Landlord, PVP
Salem Corp., Xxxx X. Xxxxxxx and Associates, Inc., Xxxx X. Xxxxxxx,
individually, and any other designee of Landlord as certificate holders and
additional named insured, references the Premises and guarantees a minimum
limit available for the Premises equal to the insurance amounts required in
this Lease. In the event Tenant fails to procure, maintain and/or pay for
the insurance required by this Lease, at the times and for the durations
specified in this Lease, which failure continues uncured for ten (10) days
after written notice thereof from Landlord to Tenant, Landlord shall have
the right, but not the obligation, at any time and from time to time, and
without further notice, to procure such insurance and/or pay the premiums
for such insurance, in which event, Tenant shall repay Landlord, within
fifteen (15) days of demand by Landlord (which demand shall be accompanied
by receipts or other evidence of the amount paid by Landlord), as Additional
Rent, all sums so paid by Landlord (including, but not limited to, insurance
brokerage fees and/or insurance consulting fees) together with interest
thereon at the Default Interest rate provided in this Lease and any
reasonable costs or expenses incurred by Landlord in connection therewith,
without prejudice to any other rights and remedies of Landlord under this
Lease.
(c) Tenant agrees that no insurance obtained by Tenant with respect
to the Property or this leasehold shall be written by Princeton Insurance
Company or any subsidiary or affiliate thereof.
(d) Tenant shall obtain for each insurance policy procured by it
regarding the Property or any property located thereon, an appropriate
clause therein or endorsement thereto pursuant to which each such insurance
company waives its subrogation rights against Landlord, PVP-Salem Corp.,
Xxxx X. Xxxxxxx & Associates, Inc., Xxxx X. Xxxxxxx personally and Tenant.
If waiver of subrogation shall not be obtainable except at additional
charge, Tenant shall pay the insurer's additional charge therefor. Each
policy evidencing the insurance to be carried by Tenant under this Lease
shall contain a clause that such policy and the coverage evidenced thereby
shall be primary with respect to any policies carried by Landlord, and that
any coverage carried by Landlord shall be excess insurance. Insurance
proceeds payable under Tenant's policies shall be totally exhausted in
satisfaction of any claim before any proceeds resulting from Landlord's
policies may be utilized.
(e) Tenant shall comply with the reasonable requirements of any
insurance policy carried by Landlord or Tenant covering the Property or the
Premises, all reasonable requirements of the issuer of any such policy, and
the applicable regulations and requirements of the National Board of Fire
Underwriters, any applicable local board of fire underwriters, and any other
body exercising a similar function, except if such compliance would
materially and adversely affect Tenant's ability to utilize the Premises for
the use described in Section 1(f) hereof. If the premiums for any insurance
policy maintained by Landlord applicable to the Property exceed the rate
that would have been applicable for the permitted use of Tenant as a result
of the failure by Tenant to comply with such requirements, or as a result of
or in connection with the use to which the Premises are put by Tenant if
said use is other than that expressly set forth in Section 1(f) of this
Lease, or due to any Alterations or improvements made by Tenant and/or the
methods or processes employed by Tenant and/or materials used by Tenant on
or about the Premises or Property, Tenant shall reimburse Landlord for such
excess within ten (10) days after Landlord's request therefor, as Additional
Rent. In the event Tenant's use and occupancy of the Demised Premises
causes any additional charge or increase in the insurance premiums on the
Property in excess of those rates which would normally be imposed for
insuring a Building of similar construction, and if said use and occupancy
is other than that expressly set forth in Section 1(f) of this Lease, then
and in that event, Tenant shall pay the amount of such additional charge or
increase in the insurance premiums upon Landlord's demand therefor.
7. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all light, power, natural gas, fuel, oil, sewer
service, sprinkler stand-by service, water, telephone, refuse disposal and
other utilities and services supplied to the Demised Premises. Landlord
shall not be liable to Tenant, and Tenant's obligations under the Lease
shall not be abated, in the event of any interruption or inadequacy of any
utility or service supplied to the Demised Premises or Building, except to
the extent that any such interruption or inadequacy is caused by the
negligence or deliberate wrongful acts of Landlord.
8. Use of Demised Premises. (a) The Demised Premises may only be
used for the use set forth in Section 1(f). The Demised Premises shall not
be used for retail sales or any other retail use whatsoever. No part of the
Demised Premises may be used for warehousing or storage of any hazardous
materials or so-called "red-labeled" materials or substances, except in
accordance with all relevant law, rules, regulations and ordinances of all
governmental authorities having jurisdiction.
(b) Notwithstanding anything to the contrary in this Lease, Tenant
shall not use or permit the Demised Premises to be used for (i) any unlawful
purpose; (ii) in violation of the Building's zoning code designation as the
same shall be in force from time to time during the term hereof; (iii) in
violation of any certificate of occupancy covering the Demised Premises;
(iv) any use which may constitute a public or private nuisance or make
voidable any insurance in force relating to the Demised Premises; or (v) any
purpose which creates or produces noxious odors, smoke, fumes, emissions,
noise or vibrations or disturbs any other tenant of the Building in said
tenant's peaceful enjoyment of the Property or said tenant's premises
therein.
(c) Tenant shall not cause or permit any overloading of the floors of
the Building. Tenant shall not install any equipment or other items upon or
through the roof, or cause openings to be made in the roof, without
Landlord's prior written consent, which consent Landlord shall not be
unreasonably withheld. It shall be reasonable for Landlord to withhold its
consent from any installation, work or improvement which would adversely
affect the integrity of the roof or the enforceability of any roof warranty.
(d) No storage of any goods, equipment or materials shall be
permitted outside the Building.
9. Existing Conditions. Landlord represents and warrants to Tenant
that to the best of Landlord's knowledge as of the date of execution hereof,
Landlord is not in receipt of any notices of outstanding violations of any
laws, ordinances, orders, rules, regulations and other governmental
requirements relating to the use, condition and occupancy of the Premises or
Property, including the Americans With Disabilities Act, all handicapped
access related requirements, and all rules, orders, regulations and
requirements of the Board of Fire Underwriters or insurance service office,
or any similar body having jurisdiction over the Premises. TENANT ACCEPTS
THE DEMISED PREMISES IN ITS "AS IS" CONDITION AS OF THE DATE HEREOF. Except
as otherwise herein provided, Tenant acknowledges that Landlord has not made
any representation as to the condition of the Demised Premises or the
suitability of the Demised Premises for Tenant's intended use.
10. Maintenance and Repairs. (a) Tenant, at its cost and expense,
shall keep, maintain and take good care of the Premises and shall make all
repairs to the interior non-structural portions of the Premises, including
the ceilings, walls, doors, windows, window treatments, lighting and
flooring, which are necessary or desirable to keep the Premises in good
order and repair. Upon Tenant's request, fluorescent lamps, ballasts and
incandescent bulbs shall be replaced by Landlord at Tenant's expense.
(b) In making the aforesaid repairs and/or any Alterations, as said
term is defined in Section 11 hereof, Tenant shall utilize its own employees
or contractors reasonably satisfactory to Landlord.
(c) Landlord shall keep, maintain and, if necessary, replace the roof
and structural portions of the Building and the plumbing and electrical
service lines furnished by Landlord to the Premises and the heating,
ventilation and air conditioning systems which were installed by Landlord
and which service the Premises, in good order, condition and repair, and
shall keep, maintain and, if necessary, replace all portions of the
Property's common areas, exterior lighting, parking areas, sidewalks and
landscaped areas in an attractive and clean condition free of dirt and
rubbish, and clear the drives, parking areas, walkways and sidewalks of
accumulations of snow and ice. Any and all reasonable costs, expenses and
fees incurred by Landlord in fulfilling its obligations under the
immediately preceding sentence, shall be deemed, and shall be added to,
"expenses" as said term is defined in the Operating Expense Rider attached
hereto.
(d) Tenant shall not commit or suffer, and shall use all reasonable
precaution to prevent waste, damage or injury to the Premises, Building or
Property and the equipment thereon.
(e) Tenant shall use its best efforts to notify Landlord immediately
by telephone of any damage, leak, suspicious smell or condition Tenant
discovers or becomes aware of at or about the Premises or Property.
(f) If requested by Landlord, to facilitate snow removal work, Tenant
and its employees and invitees shall park vehicles only in areas designated
by Landlord or shall not park in any parking areas while snow removal work
is in progress.
(g) In the event that Landlord shall fail to provide any utilities or
services which the Landlord is required to provide under this Lease or shall
fail to perform any other obligation which Landlord is required to perform
under this Lease, including, without limitation, any maintenance obligation,
where such failure materially adversely affects the use and occupancy by the
Tenant of the Premises or the Tenant's operations therein, and if such
failure shall continue for more than fifteen (15) days after notice thereof
from Tenant without Landlord commencing to cure such failure and thereafter
pursuing such cure to completion with all diligence, then, without
limitation to Tenant's other rights and remedies provided hereunder or at
law or in equity, during the pendency of such failure Tenant may, but shall
not be obligated to, cure such failure on behalf of the Landlord and the
Landlord shall reimburse the Tenant for the reasonable cost of curing the
same within fifteen (15) days of Tenant's demand therefor.
11. Alterations and Improvements. (a) Except as otherwise
hereinafter expressly set forth, Tenant shall not make any alterations,
additions or improvements to the Demised Premises, whether structural or
non-structural (the "Alterations"), without Landlord's prior written
consent, which consent with respect to non-structural alterations only shall
not be unreasonably withheld. In no event shall Alterations reduce the size
or cubic content of the Building or reduce the value of the Demised Premises
or Building. Tenant shall submit to Landlord detailed plans and
specifications stamped by Tenant's architect or licensed engineer for all
proposed Alterations. In the event any such Alteration is structural in
nature or involves or impacts upon the electrical, plumbing or HVAC systems
of the Premises and/or Property, Tenant shall reimburse Landlord for all
reasonable, third-party, out-of-pocket expenses incurred by Landlord in
connection with Landlord's review thereof. Prior to the commencement of any
Alterations, Tenant shall also provide to Landlord for Landlord's prior
approval the identity of the contractor Tenant proposes to employ to
construct the Alterations, which approval shall not be unreasonably
withheld. All Alterations shall be accomplished in accordance with the
following conditions:
(1) Tenant and its contractor shall execute an agreement in
form reasonably satisfactory to Landlord indemnifying Landlord for any
damage to the Building caused by the contractor and its
subcontractors.
(2) Tenant shall procure all governmental permits and
authorizations for the Alterations, and obtain and provide to
Landlord an official certificate of occupancy and/or compliance
upon completion of the Alterations, if appropriate.
(3) Tenant shall arrange for extension of the general liability
insurance provided for in Section 6(a) to apply to the
construction of the Alterations. Further, Tenant shall procure
and maintain or cause its contractors and other agents to
procure and maintain Builders Risk Casualty Insurance in the
amount of the full replacement cost of the Alterations and
statutory Workers Compensation Insurance covering persons
employed in connection with the work. All such insurance shall
conform to the requirements of Section 6(b).
(4) Tenant shall construct the Alterations in a good and
workmanlike manner utilizing materials of first class quality
and in compliance with all laws and governmental regulations.
(b) Within thirty (30) days of completion of the Alterations, if the
Alterations as actually performed and constructed are different than the
Alterations as depicted on the plans and specifications therefor, Tenant
shall provide Landlord with "as built" sepia transparency plans (or the
equivalent thereof) of the Alterations.
(c) Except for Tenant's fixtures, furniture, machinery, equipment and
personal property, including any HVAC equipment installed by Tenant, all
Alterations shall be the property of Landlord and shall remain on the
Demised Premises upon termination of the Lease, or, if Landlord so requires,
a portion of or all Alterations shall be removed by Tenant on or prior to
the termination of the Lease and Tenant shall restore the Demised Premises
substantially to its condition prior to such Alterations, reasonable wear
and tear excepted.
(d) Tenant shall not install antennas, communication towers,
satellite dishes or any other equipment on the roof, exterior walls or
window xxxxx of the Building. Tenant shall not install cable television in
the Premises or penetrate the wall of the Building with cables, conduits and
exhaust vents or fans, without Landlord's prior approval, which shall not be
unreasonably withheld. It shall be reasonable for Landlord to withhold its
consent from any Alteration or other work or improvement which would
adversely affect the integrity of the roof or the enforceability of any roof
warranty.
(e) It is agreed that Tenant may make non-structural, interior
Alterations to the Premises without Landlord's prior consent, but subject to
all of the other provisions of this Lease which govern Alterations, if the
aggregate cost of such non-structural, interior Alterations does not exceed
$10,000.00 and if such non-structural, interior Alterations do not affect
the electric system of the Property and/or the HVAC system of the Property
and/or the plumbing system of the Property and/or the structural system of
the Property and/or the Property's fenestration and/or the exterior doors of
the Premises and/or any of the hallways or Common Areas of the Property.
12. Covenant Against Liens. Tenant shall not have any right to
subject Landlord's interest in the Property to any mechanic's lien or any
other lien whatsoever. If any mechanic's lien or other lien, charge or
order for payment of money shall be filed as a result of the act or omission
of Tenant, at its sole cost and expense, Tenant shall cause such lien,
charge or order to be discharged or appropriately bonded within twenty (20)
days after notice from Landlord thereof, and Tenant shall indemnify and save
Landlord harmless from all liabilities and costs resulting therefrom.
13. Signs. Except as otherwise hereinafter expressly set forth,
Tenant shall not place any signs on the Property without Landlord's prior
written approval of its design, location and manner of installation, which
consent shall not be unreasonably withheld. In no event shall any sign be
installed on the roof or above the parapet height of the Building. Tenant
shall remove its signs upon termination of this Lease and restore the
Property substantially to its condition prior to installation of the signs,
reasonable wear and tear excepted. Without limiting the foregoing, Landlord
acknowledges that in connection with Tenant's present use and occupancy of
the Premises under the Prior Lease (as said term is defined in Section 38
hereof), Tenant has installed one or more signs on the Property. To the
extent such signs exist as of the date of execution hereof, Landlord agrees
that such signs may remain upon the Property during the Term of this Lease,
provided, Tenant, at its cost and expense shall repair such signs as
necessary and shall remove such signs upon the expiration or termination of
the Term of this Lease and shall repair all damage caused by such removal.
14. Compliance With Law. Tenant shall take all action to conform to
and comply with all laws, orders, regulations and/or requirements of any
governmental authority now or hereafter applicable to Tenant's use or
occupancy of the Premises, including, without limitation, the federal
Occupational Safety and Health Act, and/or laws, orders, regulations or
requirements relating to Alterations to the Premises. Tenant shall obtain
all permits necessary for Tenant's occupancy or use of the Demised Premises.
15. Environmental Law Compliance. (a) Tenant agrees that it shall,
at its sole cost and expense, fulfill, observe and comply with all of the
terms and provisions of all other federal, state and local environmental
laws now in effect or hereinafter enacted, as any of the same may be amended
from time to time, and all rules, regulations, ordinances, orders and
directives issued or promulgated pursuant thereto or in connection therewith
with respect to Tenant's use of the Demised Premises.
(b) Tenant agrees to comply with the provisions or recommendations of
any federal, state or local environmental law, regulation or recommendation
applicable to Tenant or Tenant's use or occupancy of the Premises, or the
materials or methods used by Tenant. Tenant shall comply with any laws
requiring trash recycling, or, if Tenant's failure to comply continues
uncured after notice from Landlord, Tenant shall pay to Landlord upon
Landlord's demand, as Additional Rent hereunder, any and all fines, fees,
service charges and/or increased trash removal costs incurred by, or
assessed or levied against, Landlord or the Property, as a result of
Tenant's failure to so fully comply.
(c) Except in accordance with all applicable laws, rules,
regulations, ordinances and codes, Tenant agrees not to use the Premises or
any other portion of the Property for the purpose of storing, handling,
transferring, transporting, producing, refining or processing "hazardous
substances" as such term is defined in any federal, state or local law or
regulation applicable to Tenant, the Premises or Tenant's use or occupancy,
and not to release, spill, leak, pump, emit, pour, empty or dump any such
"hazardous substances" onto the Premises or any other portion of the
Property, or any adjacent property, or into the sewer or other waste
disposal system serving the Property, or any water course on or near the
Property or any dumpster servicing the Property, no matter where located.
(d) Landlord warrants and represents that to the best of Landlord's
knowledge, the Property is free of asbestos containing materials. Without
limiting the foregoing, in the event asbestos containing material or
hazardous substances are found to be present in the Building, Tenant agrees
to vacate the Premises if requested by Landlord to permit removal of such
materials or substances and this Lease shall not be terminated as a result
thereof, except as hereinafter expressly set forth. If the asbestos
containing material or hazardous substance found to be present in the
Building was not introduced into the Building by Tenant or Tenant's
servants, agents, employees or contractors, and if, in connection with the
removal of such materials or substances, Tenant must vacate all or a portion
of the Premises, then, Tenant shall be entitled to an equitable abatement or
reduction of Base Annual Rent and Additional Rent for the period of such
vacation, said abatement or reduction to be based upon that portion of the
Premises vacated by Tenant.
(e) Any fine, penalty, surcharge or service charge resulting from
Tenant's failure to comply in accordance with this paragraph shall be paid
by Tenant as Additional Rent within ten (10) days after notice thereof from
Landlord.
(f) Tenant shall indemnify, defend and hold harmless Landlord from
all fines, suits, procedures, cleanup costs, claims and actions of any kind
arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the Demised Premises which occur during
the Term or elsewhere on the Property which are caused by Tenant, and from
all fines, suits, procedures, claims and actions of any kind arising out of
Tenant's failure to provide all information, make all submissions and take
all actions required by any governmental agency or quasi-governmental
agency.
(g) Tenant shall have no responsibility for any environmental
conditions which predate its original use and occupancy of the Premises or
which are caused by any person or entity other than Tenant or Tenant's
employees or agents. Landlord shall indemnify, defend and hold Tenant
harmless from all fines, suits, procedures, cleanup costs, claims and
actions of any kind, including, reasonable attorneys' fees and costs,
arising out of or in any way connected with any release, dumping, spills or
discharges of hazardous substances or wastes caused by Landlord or
Landlord's employees or agents.
(h) Landlord's and Tenant's obligations under this Section shall
survive the expiration of this Lease.
16. Landlord's Access. Landlord and its representatives may enter
the Demised Premises at all reasonable times upon reasonable prior notice to
Tenant (or at any time in the event of emergency) for the purpose of
inspecting the Demised Premises, or making any repairs, replacements or
improvements or to show the Demised Premises to prospective purchasers,
investors, encumbrancers, tenants or other parties, or for any other
reasonable purpose Landlord deems necessary. During the final twelve (12)
months of the Term, Landlord may place customary "For Sale" or "For Lease"
signs on the Demised Premises. Landlord shall repair any damage to the
property of Tenant caused by or resulting from Landlord's inspection of the
Premises, showing of the Premises or repairs, replacements or improvements
improperly performed by Landlord.
17. Assignment and Subletting. (a) Tenant shall not assign or
encumber Tenant's interest in this Lease, or sublet any portion of the
Demised Premises, or grant concessions or licenses with respect to the
Demised Premises, without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. If Landlord does not respond
to Tenant's request for consent to any particular assignment or subletting
within twenty (20) days of Landlord's receipt of all information reasonably
requested by Landlord to evaluate said assignment or subletting, Landlord
shall be deemed to have consented to said particular assignment or
subletting. The foregoing shall not be construed to impose an obligation
upon Landlord not to unreasonably withhold or delay its consent with respect
to any other provision of this Lease where Tenant is required to obtain
Landlord's consent. Except as expressly permitted by Section 17(b) directly
below, the change of any ownership or beneficial interest of Tenant,
including, without limitation, the transfer of any legal or beneficial
interest in any stock, partnership interest, limited liability company
interest or limited liability partnership interest of Tenant, or the
admission of any new principal to any tenant entity, shall be deemed to be
an assignment of this Lease requiring Landlord's consent. The foregoing
shall not apply to the sale of stock of any publicly traded company.
(b) Upon prior written notice to Landlord, Tenant may assign this
Lease or sublet the Demised Premises without Landlord's consent, (i) to any
corporation which controls, is controlled by or is under common control with
Tenant, or (ii) to any corporation resulting from the merger of or
consolidation with Tenant or (iii) to any entity which purchases all or
substantially all of the assets of Tenant's laminated cable division, which
is, as of the date of execution hereof, situated in the Premises, provided
in any such event such assignee or sublessee shall assume all of Tenant's
obligations under this Lease, and such assignee or sublessee shall then have
a net worth at least equal to $5,000,000. If the net worth is less than
$5,000,000 then Tenant shall guarantee all the obligations of this Lease.
(c) If Tenant desires to assign this Lease or sublet all or any
portion of the Demised Premises, Tenant shall submit to Landlord a written
request for Landlord's approval thereof, setting forth the name, principal
business address, and nature of business of the proposed assignee or
sublessee; method of business operation, number of employees and expected
daily visitor traffic to the Premises; copies of the assignee's or
sublessee's last three years' independent certified public accountant-
prepared financial statements, three bank references; three business
references; and the details of the proposed assignment or subletting,
including a copy of the proposed assignment or sublease instrument and plans
for any Alterations required for the proposed assignee or sublessee. There
shall also be furnished to Landlord a description of (i) the manner in which
the proposed assignee's or subtenant's use of the Premises would not
conflict with or negatively impact other tenants of the Property; and (ii)
the manner in which the proposed assignee's or subtenant's use would not
negatively affect the Premises, Building, Property and other tenants.
Tenant shall also furnish any other information reasonably requested by
Landlord. Tenant's written request to Landlord for Landlord's consent to
such assignment or subletting shall also contain a written option to
Landlord to terminate this Lease as of the effective date of such proposed
assignment or sublease. In the event of a proposed sublease of less than a
substantial portion of the Demised Premises, Landlord shall have the right
to terminate this Lease with respect to the portion of the Demised Premises
to be sublet, and this Lease shall continue with respect to the remaining
portion of the Demised Premises. Landlord may enter into a direct lease
with the proposed assignee or sublessee, if Landlord so elects. Landlord's
acceptance of rent from a proposed assignee or sublessee shall not be
construed to constitute its consent to an attempted assignment or
subletting.
(d) In the event of a permitted assignment or subletting, Tenant
shall remit to Landlord as Additional Rent each month during the remainder
of the Term one-half of any rent or other sums received by Tenant from its
assignee or sublessee in excess of the Annual Base Rent and other charges
paid by Tenant allocable to the Demised Premises or portion thereof sublet,
as the case may be.
(e) No assignment or subletting hereunder, whether or not with
Landlord's consent (whether or not such consent is required hereunder),
shall release Tenant from any obligations under this Lease, and Tenant shall
continue to be primarily liable hereunder. If Tenant's assignee or
sublessee defaults under this Lease, Landlord may proceed directly against
Tenant without pursuing its remedies against the assignee or sublessee as
long as Landlord has made reasonable efforts to resolve the dispute with the
assignee or sublessee. Consent to one assignment or subletting shall not be
deemed a consent to any subsequent assignment or subletting. Landlord may
consent to subsequent assignments or sublettings or modifications of this
Lease, all without notice to Tenant and Tenant shall not be relieved of
liability under this Lease.
(f) Within fifteen (15) days of Tenant's receipt of an invoice
therefor, Tenant shall pay to Landlord, as Additional Rent hereunder, in
advance all reasonable costs, including reasonable legal fees, which
Landlord shall incur in reviewing any proposed assignment or subletting,
and/or architectural review fees to review any plans for Alterations in
connection with an assignment or subletting, provided, however, that
Landlord agrees that such costs and fees shall not exceed $1,000.00 per
proposed assignment or per proposed sublease.
(g) Tenant shall not assign this Lease or sublet any portion of the
Premises to a current or former tenant or occupant of the Building or to any
prospective tenant who has previously communicated its space requirements to
Landlord, or any entity in any way related to any of the foregoing.
(h) Intentionally Omitted.
(i) By executing this Lease Tenant agrees that the foregoing
requirements for assigning this Lease or subletting the Premises are
reasonable and necessary for Landlord to properly manage the Property.
(j) The acceptance by Landlord of the proposed assignee's or
subtenant's check and/or depositing such check in Landlord's account shall
not be construed as Landlord's consent to such proposed assignee or
subtenant.
18. Casualty. If the Building is damaged by fire or other casualty,
and (i) the insurance proceeds actually received by Landlord on account of
such damage are sufficient to pay for the necessary repairs, (ii) Landlord's
Mortgagee permits Landlord to utilize the insurance proceeds to repair such
damage, and (iii) Landlord represents that the Building can be substantially
repaired within six (6) months after the date of such casualty, this Lease
shall remain in effect and Landlord shall substantially repair the damage
within six (6) months after the date of such casualty, subject to delays
beyond Landlord's control. If any of the foregoing conditions requiring
Landlord to repair the Building is not met, Landlord, by notice to Tenant
given within one hundred twenty days of the date of casualty, said time
period to be strictly of the essence, may elect either to (i) terminate this
Lease; or (ii) repair the damage as soon as reasonably possible, in which
event this Lease shall remain in full force and effect (but Tenant shall
then have the right to terminate this Lease if the Property cannot be
substantially repaired within six (6) months after the date of casualty).
Tenant's notification of termination pursuant to the immediately preceding
sentence, if any, shall be required within thirty (30) days after the date
of said notice of election from Landlord. Time shall be strictly of the
essence with regard to Tenant's notification of termination. If, for any
reason whatsoever, Landlord has not received Tenant's aforesaid written
notification of termination within the aforesaid thirty (30) day period,
then, Tenant shall automatically and irrevocably be deemed to have waived
its said right of termination and Landlord's notice of election shall be
deemed accepted and approved by Tenant. If this Lease shall remain in full
force and effect following a casualty, and if said casualty or the repair
and/or restoration of the damage caused thereby shall render the Premises
untenantable, in whole or in part, then and in those events, there shall be
an equitable abatement of Annual Base Rent and Additional Rent based upon
the portion of the Premises rendered untenantable, from the date the
Premises (or said portion thereof) became untenantable until the date that
the Premises (or said portion thereof) becomes tenantable. Tenant waives
the protection of any law which grants a tenant the right to terminate a
lease in the event of the destruction of a leased property, and agrees that
the provisions of this paragraph shall govern in the event of any
destruction of the Premises and/or Building and/or Property. Landlord shall
not be required to repair improvements or alterations to the Property made
by Tenant, except to the extent, if any, that any insurance proceeds
received by Landlord specifically compensate Landlord for the value of any
such improvements or alterations.
19. Condemnation. If more than twenty-five (25%) percent of the Land
and/or Building shall be taken under the power of eminent domain or sold
under the threat thereof ("Condemnation") and Tenant's use of the Demised
Premises is materially adversely affected, this Lease shall terminate on the
date on which title to the Demised Premises or portion thereof shall vest in
the condemning authority. If more than 25% of the Demised Premises is taken
by Condemnation and Tenant's use of the remainder of the Demised Premises,
as determined by Tenant in good faith, shall not be reasonably adequate for
the operation of its business thereof, then, Tenant shall have the option of
terminating this Lease on the date on which title to the condemned portion
shall vest in the condemning authority; provided, that Tenant must exercise
said option by written notice to Landlord within thirty (30) days of the
date that Tenant first receives notice of the Condemnation. Time shall be
strictly of the essence with regard to Tenant's notice of termination. If,
for any reason whatsoever, Landlord has not received Tenant's aforesaid
written notice within said thirty (30) day period, Tenant shall be deemed to
have conclusively elected to continue this Lease with respect to that
portion of the Demised Premises not taken. With respect to any Condemnation
which does not result in the termination of this Lease, this Lease shall
remain in effect as to the portion of the Demised Premises not taken,
Landlord shall restore the improvements not taken as nearly as reasonably
practicable to their condition prior to the Condemnation as soon as
reasonably practicable following receipt of all condemnation proceeds or
awards, and the Annual Base Rent shall be reduced proportionately in
accordance with the reduction in the square foot area of the Demised
Premises following the Condemnation. Landlord shall be entitled to receive
the entire award in any Condemnation proceeding relating to the Demised
Premises, except that Tenant may assert a separate claim to an award for its
moving expenses and relocation expenses and for fixtures and personal
property installed by Tenant at its expense, provided Tenant's claim does
not in any way interfere with or diminish Landlord's award. It is
understood that Tenant shall have no claim against Landlord for the value of
the unexpired Term of this Lease or any options granted under this Lease.
Landlord shall not be required to restore improvements or alterations to the
Demised Premises made by Tenant, except to the extent, if any, that any
condemnation award received by Landlord specifically compensates Landlord
for the value of any such improvements or alterations.
20. Surrender of Demised Premises. Upon termination of the Lease,
Tenant shall surrender the Demised Premises to Landlord broom clean, and in
good order and condition, except for ordinary wear and tear, and damage by
casualty which Tenant was not obligated to remedy under Section 18. Tenant
shall remove its machinery and equipment and repair any damage to the
Demised Premises caused by such removal. Tenant shall not remove any power
wiring or power panels, lighting or lighting fixtures, wall coverings,
blinds or other window coverings, carpets or other floor coverings, heaters
or air conditioners or fencing or gates, except if installed by Tenant and
required by Landlord to be removed from the Demised Premises. All personal
property of Tenant remaining on the Demised Premises after Tenant's
surrender of the Premises shall be deemed abandoned and at Landlord's
election may either be retained by Landlord or may be removed from the
Demised Premises at Tenant's expense. Any item required by Landlord to be
removed by Tenant which Tenant fails to remove from the Premises may be
removed by Landlord and the reasonable cost of removal may be deducted from
the Security Deposit. Said deduction from the Security Deposit shall not be
deemed a waiver of any other right Landlord may have hereunder or under law.
The foregoing shall not be construed to prohibit Tenant from removing its
movable trade fixtures and non-structural improvements, including, HVAC
purchased and installed at Tenant's expense, it being understood and agreed
that such movable trade fixtures and non-structural improvements, including,
HVAC purchased and installed at Tenant's expense, shall be removed by
Tenant, at Tenant's cost and expense, at or prior to the expiration or
earlier termination of the Term of this Lease. Any damage to the Premises
and/or the Property caused by said removal shall be repaired by Tenant at
its cost and expense.
If during the last one hundred eighty (180) days of the Term, Tenant
shall have removed all or substantially all of Tenant's property and all of
its personnel from the Premises, Landlord may at any time thereafter enter,
alter, renovate and redecorate the Premises without any reduction or
abatement of the Tenant's Rent or incurring any liability for any
compensation to Tenant or adverse effect on this Lease or Tenant's
obligations hereunder. If Landlord commences alterations, renovations or
redecorations to the Premises, Tenant shall not thereafter occupy the
Premises.
21. Holdover. In the event Tenant remains in possession of the
Demised Premises after the expiration of the term of this Lease (the
"Holdover Period"), in addition to any damages to which Landlord may be
entitled or other remedies Landlord may have by law, Tenant shall pay to
Landlord a rental for the Holdover Period at the rate of twice the sum of
(i) the Annual Base Rent payable during the last lease year of the term,
plus (ii) all items of Additional Rent and other charges with respect to the
Demised Premises payable by Tenant during the last lease year of the Term.
Nothing herein contained shall be deemed to give Tenant any right to remain
in possession of the Demised Premises after the expiration of the Term of
this Lease. The sum due to Landlord hereunder shall be payable by Tenant
upon demand.
22. Events of Default; Remedies. (a)(1) Tenant shall be in default
upon the occurrence of one or more of the following events (an "Event of
Default"): (i) Tenant fails to pay any installment of Annual Base Rent,
Additional Rent or any other sum of money required to be paid by Tenant
hereunder within seven (7) days of the date when due, provided, however,
that solely with respect to the first occurrence of such failure to pay
within any twelve (12) month period, Landlord shall give Tenant written
notice of such failure and Tenant shall not be deemed in default unless
Tenant fails to cure such failure within five (5) business days of said
notice; it being expressly understood and agreed that Landlord shall not be
required to give any notice of failure to pay with respect to the second
occurrence of nonpayment within any twelve (12) month period or with respect
to any subsequent occurrences of nonpayment within said twelve (12) month
period; (ii) Tenant fails to perform any of Tenant's non-monetary
obligations under this Lease within the Non-Monetary Grace Period (as said
term is hereinafter defined) (provided that if more than the Non-Monetary
Grace Period is required to complete such performance, Tenant shall not be
in default if Tenant commences such performance within said Non-Monetary
Grace Period and thereafter diligently pursues its completion); (iii) Tenant
abandons the Demised Premises for thirty (30) days or more; or (iv) Tenant
makes an assignment for the benefit of creditors, or if a petition for
adjudication of bankruptcy or for reorganization is filed by or against
Tenant and is not dismissed within ninety (90) days, or if a receiver or
trustee is appointed for a substantial part of Tenant's property and such
appointment is not vacated within ninety (90) days; or (v) Tenant assigns
all or any portion of its interest in this Lease, sublets all or any portion
of the Premises or transfers or allows the transfer of any legal interest or
beneficial interest in Tenant, except as otherwise expressly permitted by
Section 17 of this Lease.
(2) With respect to any particular failure by Tenant to perform
any of Tenant's non-monetary obligations under this Lease, the "Non-
Monetary Grace Period" shall be a period of thirty (30) days from the
date of written notice of said particular failure from Landlord,
provided, however, if said particular failure (i) threatens or
jeopardizes the integrity of the structure of the Building or any one
or more of the electrical, plumbing, mechanical and/or HVAC systems of
the Building or (ii) adversely affects the ability of any other tenant
or occupant of the Building to enjoy said tenant's or occupant's
premises at the Building or (iii) jeopardizes or threatens the safety,
health or welfare of any occupants of the Building or of any other
parties lawfully entitled to be upon the Property or Building,
including, without limitation, Landlord's agents, employees and
contractors or (iv) gives rise to the existence of an emergency
situation, then and in any of said events, the Non-Monetary Grace
Period shall be a period of ten (10) days after written notice of said
particular failure from Landlord.
(b) On the occurrence of an Event of Default, without limiting any
other right or remedy Landlord may have, Landlord may without notice or
demand:
(i) Declare the entire amount of unpaid Annual Base Rent and
Additional Rent for the balance of the Term immediately due and
payable.
(ii) Terminate this Lease and Tenant's right to possession of
the Demised Premises by any lawful means, in which event Tenant shall
immediately surrender possession of the Demised Premises to Landlord.
At its option, Landlord may occupy the Demised Premises or cause the
Demised Premises to be redecorated, altered, divided, consolidated
with other adjoining property, or otherwise prepared for reletting,
and may relet the Demised Premises or any part thereof for a term or
terms to expire prior to, at the same time or subsequent to the
original Expiration Date, and receive the rent therefor, applying the
sums received first to the payment of such reasonable expenses as
Landlord may have incurred in connection with the recovery of
possession, preparing for reletting and the reletting itself,
including brokerage and attorneys' fees, and then to the payment of
damages in amounts equal to the rent hereunder and to the cost and
expense of performance of the other covenants of Tenant under this
Lease. Tenant agrees to pay to Landlord damages equal to the rent and
other sums payable by Tenant under this Lease, reduced by the net
proceeds of the reletting, if any, as ascertained from time to time.
In reletting the Premises, Landlord may grant commercially reasonable
rent concessions, and Tenant shall not be entitled to any credit
therefor. Tenant shall not be entitled to any surplus resulting from
any reletting. If Landlord elects to occupy the Premises or any part
thereof, there shall be allowed against Tenant's obligation for rent
during the period of Landlord's occupancy, the reasonable value of
such occupancy, not to exceed in any event the rent payable hereunder
for such portion of the Premises. Such occupancy shall not be
construed as a release of Tenant's liability hereunder.
(iii) Permit Tenant to remain in possession of the Demised
Premises, in which event this Lease shall continue in effect.
Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to receive the rent as
it becomes due under this Lease.
(iv) Pursue any other remedy now or hereafter available under
the laws of the jurisdiction in which the Demised Premises is located.
(c) The remedies available to Landlord herein specified are not
intended to be exclusive and are not intended to prevent Landlord from
exercising any other remedy or means of redress to which Landlord may be
lawfully entitled. In addition to other remedies provided in this Lease,
Landlord shall be entitled to restraint by injunction of any violation or
threatened violation by Tenant of any of the provisions of this Lease.
Landlord's exercise of any right or remedy shall not prevent Landlord from
exercising any other right or remedy. Except as otherwise herein expressly
set forth, Landlord shall not be obligated to give Tenant any notice of an
Event of Default in order to enforce its remedies hereunder.
(d) To the extent permitted by law, Tenant, for itself and any person
claiming through or under Tenant, waives any equity or right of redemption
provided by any law.
(e) Tenant agrees to pay as Additional Rent, upon Landlord's demand
therefor, all reasonable attorneys' fees, court costs and other reasonable
expenses incurred by Landlord in the enforcement of any of the obligations
or agreements of Tenant under this Lease.
(f) Landlord shall use good faith efforts to relet the Premises and
to otherwise mitigate damages caused by Tenant's defaults.
23. Service Fee; Interest; Legal Fees. (a) Tenant's failure to make
prompt and timely payment of Annual Base Rent, Additional Rent and/or any
other payments required under this Lease may cause Landlord to incur
unanticipated costs, which are impractical to ascertain. Therefore, if
Landlord does not receive any payment of Annual Base Rent, Additional Rent
or other sums due from Tenant to Landlord within five (5) days after it
becomes due, Tenant shall pay Landlord as Additional Rent a service fee
equal to five (5%) percent of the overdue amount (the "Service Fee"). This
service fee shall be in addition to reasonable costs incurred by Landlord in
enforcing this Lease and in addition to the Default Interest set forth
below. Landlord agrees that solely with respect to the first incident of
non-payment/late payment within any twelve (12) month period during the Term
of this Lease, Landlord shall not impose the Service Fee unless such non-
payment/late payment is not cured within five (5) days of written notice
thereof from Landlord to Tenant (which written notice shall be deemed
sufficient if transmitted by hand delivery to the Premises or by facsimile
or otherwise delivered in accordance with Section 35 hereof). The foregoing
shall not be construed to require Landlord to give any notice of any nature
whatsoever with respect non-payment or late payment of Rent; nor shall the
foregoing be construed to limit any of Landlord's rights under Section 22 of
this Lease. The foregoing is intended solely to limit Landlord's right to
impose the Service Fee and then only with respect to the first incident of
non-payment/late payment within any twelve (12) month period.
(b) Any amount owed by Tenant to Landlord which is not paid when due
shall bear interest at the rate of eighteen (18%) percent per annum
("Default Interest") from the due date of such amount. The payment of
Default Interest on such amounts shall not extend the due date of any amount
owed. If the interest rate specified in this Lease shall exceed the rate
permitted by law, the Default Interest shall be deemed to be the maximum
legal interest rate permitted by law.
24. Indemnification. (a) Tenant shall indemnify and hold harmless
Landlord, PVP-Salem Corp., Xxxx X. Xxxxxxx & Associates, Inc. and Xxxx X.
Xxxxxxx personally from and against all liability, claims or costs,
including reasonable legal fees and court costs, arising from (i) Tenant's
use of the Demised Premises; (ii) any breach of this Lease by Tenant; (iii)
any negligent or wrongful act or omission of Tenant; (iv) any injury to
person or damage to property occurring on or about the Demised Premises; (v)
any injury to person or damage to property occurring on the Property
resulting from any negligence or misconduct of Tenant or any of its
employees or agents; or (vi) any injury to the person of, or damage to the
property of, any employee, servant, agent, guest, invitee, assignee,
sublessee, customer or contractor of Tenant occurring on or about any part
of the Premises or, occurring on or about any part of the Property, but then
solely to the extent caused by the negligence or wrongful act of Tenant,
except to the extent that any such liability, claim or cost arises as a
result of Landlord's negligence or deliberate wrongful acts. Tenant shall
defend Landlord, PVP-Salem Corp., Xxxx X. Xxxxxxx & Associates, Inc. and
Xxxx X. Xxxxxxx personally against any such claim of a third party, with
counsel reasonably acceptable to Landlord, provided, that counsel provided
by Tenant's insurer shall be deemed acceptable to Landlord. The obligation
of Tenant under this Section 24 shall survive expiration or earlier
termination of the Term of this Lease.
(b) Except as otherwise in this Lease provided, Landlord shall
indemnify and hold Tenant harmless from and against all liability, claims or
costs, including reasonable fees and court costs, arising from (i) any
breach of this Lease by Landlord; or (ii) any negligent or deliberate
wrongful act or omission of Landlord; or (iii) any injury to person or
damage to property occurring on or about the Premises or Property to the
extent caused by Landlord's negligence or deliberate wrongful acts, except
to the extent that any such liability, claim or cost arises as a result of
Tenant's negligence or deliberate wrongful acts. Landlord shall defend
Tenant against any such claim of a third party with counsel reasonably
acceptable to Tenant, provided, that counsel provided by Landlord's insurer
shall be deemed acceptable to Tenant. The obligation of Landlord under this
Section 24 shall survive expiration or earlier termination of the Term of
this Lease.
25. Landlord's Right to Cure Tenant's Default. If Tenant fails to
make any payment or perform any act on its part to be made or performed,
which failure continues uncured beyond any applicable notice and/or cure
period otherwise provided in this Lease, if any, then Landlord, without
waiving or releasing Tenant from such obligation, may make such payment or
perform such act on Tenant's part, and the costs incurred by Landlord in
connection with such payment or performance, together with Default Interest
thereon, shall be paid by Tenant to Landlord as Additional Rent within five
(5) days of Landlord's demand therefor.
26. Waiver of Liability. Landlord shall not be liable for any injury
or damage to the business, equipment, merchandise or other property of
Tenant or any of Tenant's employees or invitees or any other person on or
about the Property, resulting from any cause, including, but not limited to:
(i) fire, steam, electricity, water, gas or rain; (ii) leakage, obstruction
or other defects of pipes, sprinklers, wires, plumbing, air conditioning,
boilers or lighting fixtures; or (iii) condition of the Property, except to
the extent that any such injury or damage results from Landlord's negligence
or deliberate wrongful acts.
27. Force Majeure. If either party (the "performing party") is
unable to perform any of its obligations or to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to
make or is delayed in making any repair, additions, alterations or
decorations, or is unable to supply or is delayed in supplying any equipment
or fixtures, or is unable to provide access to the Premises, Building and/or
Property, due to events beyond the performing party's control, the time
provided to the performing party for performing such obligations shall be
extended by a period of time equal to the duration of such events, and the
other party hereto shall not be entitled to any claim against the performing
party by reason thereof, and the obligation of the other party hereto to pay
rent and perform all its other obligations under this Lease shall not be
affected, impaired or excused thereby. Events beyond the performing party's
control include, but are not limited to, acts of God, war, civil commotion,
labor disputes, strikes, casualty, labor or material shortages, government
regulation or restriction, weather conditions, or utility power surge,
outage or interruption. Notwithstanding anything to the contrary herein, it
is expressly understood that the foregoing provisions of this Section 26
shall not apply to, and shall not excuse or postpone, Tenant's obligations
under this Lease to pay Annual Base Rent, Additional Rent and/or any other
amount, cost, fees or charge due and payable by Tenant under this Lease.
(b) Landlord shall not be liable to Tenant nor shall Tenant be
entitled to any abatement or reduction of rent, in the event of the
suspension, interruption, failure or inadequacy of any of the services to be
provided by Landlord pursuant to this Lease, to the extent that such
suspension, interruption, failure or inadequacy is caused by malfunction,
accident, breakdown, repairs, replacement, strikes, inability to obtain
supplies, governmental regulations or restrictions, actions of utility
companies or any other cause beyond Landlord's reasonable control.
28. Notice of Landlord's Default. Tenant shall give to Landlord and
any ground lessor and/or Landlord's Mortgagee whose name and address have
been furnished to Tenant, written notice of any failure by Landlord to
perform any of Landlord's obligations under this Lease. Except as may be
otherwise expressly set forth in this Lease, Landlord shall not be in
default under this Lease unless Landlord (or such ground lessor or
Landlord's Mortgagee) fails to cure such non-performance within thirty (30)
days after receipt of Tenant's notice. If more than thirty (30) days are
required to cure such non-performance, Landlord shall not be in default if
such cure is commenced within such thirty (30) day period and thereafter
diligently pursued to completion.
29. Landlord's Liability Limited. If the Landlord or any successor
in interest or assignee of Landlord shall be an individual, tenancy in
common, joint tenancy, general or limited partnership, limited liability
company, limited liability partnership, joint venture, trust or other
entity, there shall be no personal liability of such individual, tenancy in
common, joint tenancy, general or limited partnership, limited liability
company, limited liability partnership, joint venture, trust or other
entity, or parties to the tenancy in common, joint tenancy, general or
limited partnership, limited liability company, limited liability
partnership, or joint venture or other entity, or the trustees or
beneficiaries of the trust, in connection with this Lease. Tenant agrees to
look solely to the interest of Landlord in the Property for the collection
of any judgment or other judicial process requiring the payment of money by
Landlord in the event of any default or breach by Landlord with respect to
this Lease or in any way relating to the Demised Premises. No other assets
of Landlord or any principal, agent or employee of Landlord shall be subject
to levy, execution or other procedures for the satisfaction of Tenant's
remedies.
30. Estoppel Statement; Financial Statement. (a) Upon Landlord's
reasonable request, Tenant shall execute, acknowledge and deliver to
Landlord a written statement certifying: (i) the Commencement Date; (ii)
the Expiration Date; (iii) that this Lease is in full force and effect (if
such is the case) and unmodified (or if modified, stating the
modifications); (iv) the last date of payment of the Annual Base Rent,
Additional Rent and other charges and the time period covered by each
payment; (v) that Landlord is not in default under this Lease (or, if
Landlord is claimed to be in default, stating the nature of the default);
and (vi) such other matters as may be reasonably required by Landlord,
Landlord's Mortgagee or any prospective mortgage lender. Tenant shall
deliver such statement to Landlord within fifteen (15) days after Landlord's
request. Any such statement may be given to and relied upon by Landlord's
Mortgagee, any prospective mortgage lender or other encumbrancer of the
property or any prospective purchaser of the Property.
(b) Within twenty (20) days after Landlord's request, Tenant shall
deliver to Landlord certified true copies of Tenant's most recent Form 10-Q
and most recent Form 10-K, or, if Tenant is not then a publicly traded
company, such financial statements prepared by an independent certified
public accountant as are reasonably required to verify the net worth of
Tenant. Any such statement may be given by Landlord to any Landlord's
Mortgagee or prospective encumbrancer of the Property. Tenant represents to
Landlord that each such financial statement shall be a true and accurate
statement as of the date of such statement, which may be relied upon by
Tenant, Tenant's Mortgagee and any prospective encumbrancer of the Property.
31. Quiet Enjoyment. (a) Landlord covenants and warrants to Tenant
that Landlord has full right and lawful authority to enter into this Lease
for the Term of this Lease, including any Extension Term provided in the
Extension Option Rider hereto. Landlord further covenants and warrants to
Tenant that Landlord is lawfully seized of the Leased Premises and has good
and marketable title thereto, subject to existing tenancies and all liens,
encroachments, encumbrances, restrictions, conditions, reservations,
easements and other matters of record and subject further to the lien of
real estate taxes due but not yet payable.
(b) Landlord covenants that as long as Tenant pays the Annual Base
Rent and Additional Rent and performs its other obligations under this
Lease, Tenant shall peaceably and quietly have, hold and enjoy the Demised
Premises for the term provided by this Lease without hinderance or
interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject to the provisions
of this Lease.
(c) Landlord reserves to itself such access and utility easements
over, under and across the Demised Premises as may be required by Landlord
from time to time in connection with the ownership, use or operation of any
other property of Landlord or any affiliated party of Landlord. No such
easement shall materially interfere with Tenant's use of the Demised
Premises or adversely affect Tenant's business operations at the Premises.
32. Subordination; Attornment. (a) Subject to, and in accordance
with, the terms provided in Section 32(b) - 32(d) below, this Lease is
subject and subordinate to any ground lease or mortgage which may now or
hereafter encumber the Property, and any renewals, modifications,
consolidations, replacements or extensions thereof.
(b) The provisions of this Section 32(b) shall apply only to Parlex
Corporation and only so long as Parlex Corporation uses and occupies the
Premises. With respect to any party which holds a mortgage on the Property
as of the date of execution hereof ("existing mortgagee"), within ten (10)
days of the date of execution of this Lease by both Landlord and Tenant,
Landlord shall request that said existing mortgagee enter into a
subordination, non-disturbance and attornment agreement ("SNDA") with
Landlord and Parlex Corporation, which SNDA shall, inter alia, contain a
provision which states that in the event of the foreclosure of said existing
mortgagee's mortgage, said existing mortgagee will recognize this Lease and
will not disturb Parlex Corporation in its possession of the Premises, nor
disturb Tenant's right to enjoyment of the terms, conditions and covenants
under the Lease, unless Parlex Corporation has committed an act of default
which, under the terms of this Lease, would permit Landlord to terminate
this Lease (the foregoing provision is hereinafter referred to as the "Non-
disturbance Provision"). If, within forty-five (45) days of the execution
of this Lease by Landlord and Tenant, Landlord's existing mortgagee delivers
(or causes to be delivered) to Landlord and Parlex Corporation, a form of
SNDA which contains the Non-disturbance Provision as hereinabove
specifically described, which form said mortgagee is prepared to enter into,
then and in that event, Landlord shall have no further obligation with
respect to obtaining a SNDA from said existing mortgagee and Parlex
Corporation shall have no right to terminate this Lease or modify its
obligations hereunder, even if said SNDA is thereafter not entered into
(unless the reason said SNDA is not entered into is Landlord's or said
existing mortgagee's refusal to execute same, provided, that the foregoing
shall not be construed to require either Landlord or said existing mortgagee
to agree to any modifications to said existing mortgagee's form of SNDA).
If, within forty-five (45) days of the execution of this Lease by Landlord
and Tenant, Landlord's existing mortgagee does not deliver (or cause to be
delivered) to Landlord and Parlex Corporation a form of SNDA which contains
the Non-disturbance Provision as hereinabove specifically described, which
form said mortgagee is prepared to enter into, then and in that event,
Parlex Corporation may elect to terminate this Lease by written notice to
Landlord, provided such written notice is received by Landlord no later than
the fifty-fifth (55th) day following the date of execution of this Lease by
Landlord and Tenant. Time shall be strictly of the essence with regard to
Tenant's notice of termination. If such written notice of termination is
not received by Landlord on or before said fifty-fifth (55th) day, Parlex
Corporation shall automatically and conclusively be deemed to have
irrevocably waived the right of termination set forth in this Section 32(b).
(c) The provisions of this Section 32(c) shall apply only to Parlex
Corporation and only so long as Parlex Corporation uses and occupies the
Premises. With respect to any future mortgagee of the Property, Landlord
shall request that said future mortgagee enter into a SNDA with Landlord and
Parlex Corporation, which SNDA shall contain a Non-disturbance Provision, as
hereinabove specifically described, which form said mortgagee is prepared to
enter into. If, within forty-five (45) days of the date on which said
future mortgagee first acquires its mortgage on the Property, said future
mortgagee delivers (or causes to be delivered) to Landlord and Parlex
Corporation a form of SNDA which contains the Non-disturbance Provision, as
hereinabove specifically described, which form said mortgagee is prepared to
enter into, then and in that event, Landlord shall have no further
obligation with respect to obtaining a SNDA from said future mortgagee and
Parlex Corporation shall have no right to terminate this Lease or modify its
obligations hereunder, even if said SNDA is thereafter not entered into
(unless the reason said SNDA is not entered into is Landlord's or said
future mortgagee's refusal to execute same, provided, that the foregoing
shall not be construed to require either Landlord or said future mortgagee
to agree to any modifications to said future mortgagee's form of SNDA). If,
within said forty-five (45) day period Landlord's future mortgagee does not
deliver (or cause to be delivered) to Landlord and Parlex Corporation a form
of SNDA which contains the Non-disturbance Provision, then and in that
event, Parlex Corporation may elect to terminate this Lease by written
notice to Landlord, provided such written notice is received by Landlord no
later than the tenth (10th) day following the expiration of said forty-five
(45) day period. Time shall be strictly of the essence with regard to
Tenant's notice of termination. If such written notice of termination is
not received by Landlord on or before said tenth (10th) day, Parlex
Corporation shall automatically and conclusively be deemed to have
irrevocably waived the right of termination set forth in this Section 32(c).
(d) The provisions of this Section 32(d) apply to all individuals and
entities other than Parlex Corporation, who/which may at any time during the
term hereof be deemed the Tenant hereunder. With respect to any existing or
future mortgagee of the Property, Landlord shall use good-faith efforts to
have said mortgagee enter into a SNDA with Landlord and any such individual
or entity. Landlord shall not be required to make more than one good faith
effort from each mortgagee. It is expressly understood and agreed that the
respective rights and obligations of the parties hereunder shall in no way
whatsoever be nullified, canceled, diminished, limited, enlarged, expanded
or otherwise modified or affected by the refusal of one or more of such
mortgagees to enter into a subordination, non-disturbance and attornment
agreement and/or by the requirement by one or more of said mortgagees that
the parties utilize said mortgagee's particular form of subordination, non-
disturbance and attornment agreement.
(e) If Landlord's interest in the Property is acquired by any ground
lessor, Landlord's Mortgagee, or purchaser at a foreclosure sale, Tenant
shall attorn to the transferee of or successor to Landlord's interest in the
Property and recognize such transferee or successor as landlord under this
Lease. Such transferee or successor shall not be liable for any act or
omission of any prior landlord, or be subject to any offsets or defenses
which Tenant might have against any prior landlord, or be bound by any Rent
which Tenant might have paid for more than the current month to any prior
landlord, or be liable for any security deposit under this Lease unless
actually transferred to such transferee or successor.
(f) Tenant agrees that this Lease shall be modified in accordance
with the reasonable request of any institutional Landlord's Mortgagee,
provided no such modification changes the business terms of this Lease.
(g) The foregoing provisions shall be self-operative and no further
instrument or act on the part of Tenant shall be necessary to effect the
same. Tenant shall nevertheless sign and deliver any document necessary or
appropriate to evidence the subordination, attornment or agreement above
provided within twenty (20) days after Landlord's request therefor. Tenant
further agrees to execute and/or deliver within twenty (20) days after
Landlord's request therefor any other documents reasonably required by
Landlord's Mortgagee in connection with the financing or refinancing of the
Property, or insuring the Property.
33. Brokerage. Each party represents to the other that it did not
deal with any real estate broker in connection with this Lease, other than
the real estate broker (if any) whose identity is set forth in Section 1(h).
The commission of such broker (if any) shall be paid by the party as set
forth in Section 1(h). Each party shall indemnify and hold the other
harmless from any claim for a commission or other fee made by any broker
with whom the indemnifying party has dealt, other than the broker identified
in Section 1(h).
34. Security Deposit. Pursuant to the Prior Lease, as said term is
hereinafter defined, Tenant has deposited with Landlord the sum of
$15,744.13 to be held as the security deposit under said Prior Lease (the
"Prior Security"). Tenant hereby expressly agrees that on the Commencement
Date the Prior Security shall be deemed returned to Tenant pursuant to the
Prior Lease and immediately thereafter redeposited with Landlord. The Prior
Security shall be held by Landlord as the security deposit under this Lease
(the "Security Deposit"). Landlord shall have the right to use the Security
Deposit to cure any default of Tenant hereunder, including, but not limited
to,payment of Annual Base Rent, Additional Rent, Service Fees or other debts
of Tenant due Landlord, or repair or restoration of the Demised Premises.
If Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within twenty (20) days after Landlord's
demand therefor. Provided Tenant has fully complied with all of the terms
of this Lease, Landlord shall return the Security Deposit to Tenant without
interest on the date thirty (30) days after the surrender of the Demised
Premises by Tenant. Landlord may deliver the Security Deposit to the
purchaser or other transferee of Landlord's interest in the Property in the
event the Property is sold or otherwise transferred, and, upon written
notice of said transfer with copies of the documentation evidencing said
transfer (which written notice is joined in, or verified by, said purchaser
or transferee), Landlord shall be discharged from any further liability with
respect to the Security Deposit.
35. Notices. (a) All notices in connection with this Lease or the
Demised Premises shall be in writing and shall be sent by reliable overnight
delivery service which requires a signed delivery slip (e.g., Federal
Express). Notices to Landlord shall be delivered to the address specified
in Section 1(b). Notices to Tenant shall be delivered to 000 Xxxx Xxxxxx,
Xxxxxxx, XX 00000. All notices shall be effective upon delivery or
attempted delivery (provided such attempted delivery occurs on a business
day) in accordance with this provision. Either party may change its notice
address upon written notice to the other party given in accordance with this
provision.
(b) Without limiting the foregoing, whenever in this Lease Landlord
is required or desires to give notice to Tenant, such notice shall be deemed
given by Landlord if such notice is sent to Tenant by the office of (i)
Landlord, (ii) Xxxx X. Xxxxxxx & Associates, Inc. or (iii) Landlord's
Counsel. As used herein, Landlord's Counsel shall mean any attorney who is
a member of or associated with the firm of Lasser Xxxxxxx, L.L.C, 00
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx or such other attorney or law firm
as Landlord may notify Tenant of by notice given in accordance with this
Section 35.
36. Memorandum of Lease. Tenant shall not record this Lease or any
memorandum thereof.
37. INTENTIONALLY OMITTED.
38. No Other Agreements. (a) THIS LEASE SETS FORTH ALL THE
PROMISES, INDUCEMENTS, AGREEMENTS, CONDITIONS AND UNDERSTANDINGS, BETWEEN
LANDLORD AND TENANT RELATIVE TO THE DEMISED PREMISES AND THERE ARE NO
PROMISES, AGREEMENTS, CONDITIONS OR UNDERSTANDINGS, EITHER ORAL OR WRITTEN,
EXPRESSED OR IMPLIED, BETWEEN THEM OTHER THAN AS HEREIN SET FORTH. WITHOUT
LIMITING THE FOREGOING, NO PRIOR DRAFTS OF THIS LEASE OR LETTERS OR OTHER
COMMUNICATIONS, WRITTEN OR ORAL, BETWEEN PRINCIPALS, AGENTS OR EMPLOYEES OF
LANDLORD OR TENANT SHALL BE EFFECTIVE TO CONSTITUTE A MODIFICATION OF THIS
LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITING EXECUTED BY THE
AUTHORIZED SIGNATORIES OF LANDLORD AND TENANT. IN NO EVENT WHATSOEVER SHALL
THIS LEASE BE DEEMED MODIFIED OR ALTERED IN ANY MANNER BY EITHER VERBAL OR
WRITTEN COMMUNICATION BETWEEN TENANT AND LANDLORD'S AGENTS OR EMPLOYEES.
(b) Without limiting the foregoing, the parties expressly agree that
any and all prior leases and agreements, whether oral or written, expressed
or implied, relating to Tenant's use and occupancy of the Demised Premises
or any portion thereof, including, without limitation, a Lease Agreement
executed on or about July 8, 1992 between AHB Realty Corporation, as
Landlord, and Tenant ("Prior Lease") shall be and hereby are declared null
and void as of the Commencement Date hereunder and all of said prior leases
and agreements and the tenancies created thereby shall be and hereby are
terminated as of said Commencement Date. As of said Commencement Date, all
obligations of Landlord and Tenant under the Prior Lease shall cease and
from and after said date the Prior Lease shall be void. Simultaneously with
the execution of this Lease, Landlord and Tenant shall execute a Termination
of Lease Agreement relating to the Prior Lease in the form attached hereto
as Termination of Lease Rider. Said Termination of Lease Rider shall
provide, inter alia, for full and final cross-releases between Landlord and
Tenant relating to all claims, demands, actions and causes of action
(collectively, "Claims") which either party (the "claiming party") may have
against the other party arising out of or relating to the Prior Lease, to
the extent such Claims are known to the claiming party on or prior to the
date of execution of this Lease. Without limiting the foregoing, Landlord
and Tenant agree that as of the execution of this Lease, the Option to Renew
set forth in Section 1.3 of the Prior Lease is irrevocably rendered null and
void and of no force and effect.
39. Miscellaneous. (a) The failure of either party to insist on
strict performance of any provision of this Lease, or to exercise any right
contained herein, shall not be construed as a waiver of such provision or
right in any other instance.
(b) The captions in this Lease are intended to assist the parties in
reading this Lease and are not a part of the provisions of this Lease.
Whenever required by the context of this Lease, the singular shall include
the plural and the plural shall include the singular. The masculine,
feminine and neuter genders shall each include the other.
(c) Tenant acknowledges that it has been represented, or has had the
opportunity to be represented, in the negotiation and execution of this
Lease by independent legal counsel selected by Tenant of its own free will
and Tenant has had the opportunity to discuss the provisions of this Lease
with said counsel. In the construction of this Lease or any of the terms
and provisions thereof, no inference shall be drawn against Landlord as a
result of the fact that the Lease was drawn by Landlord's counsel.
(d) The laws of the state in which the Property is located shall
govern this Lease.
(e) If Tenant is a corporation, partnership or other entity, each
person signing this Lease on behalf of Tenant represents that he has full
authority to do so and that this Lease binds the corporation, partnership or
other entity, as the case may be.
(f) This Lease is binding upon any party who legally acquires any
rights or interest in this Lease from Landlord or Tenant; provided, however,
Landlord shall have no obligation to Tenant's successor unless the interest
of Tenant's successor in this Lease is acquired in accordance with Section
17. The term "Landlord" as used in this Lease means only the owner, for the
time being, or the mortgagee in possession, for the time being, of the
Property, so that in the event of any sale of the Property, the said
Landlord shall be and hereby is entirely freed and relieved of any liability
for performance of all covenants and obligations of Landlord set forth in
this Lease.
(g) The submission of this Lease to Tenant shall not be deemed to be
an offer and shall not bind either party until duly executed by Landlord and
Tenant.
(h) This Lease may be executed in counterparts, and, when all
counterpart documents are executed, the counterparts shall constitute a
single binding instrument.
(i) A determination by a court of competent jurisdiction that any
provision of this Lease or any part thereof is illegal or unenforceable
shall not invalidate the remainder of this Lease or such provision, which
shall continue to be in effect.
(j) Intentionally Omitted.
(k) Except as otherwise herein expressly set forth, the parties
intend that whenever Landlord's consent or approval is expressly or
impliedly required by any provision of this Lease, the consent or approval
may be granted or withheld arbitrarily in Landlord's sole discretion.
(l) Any delay by Landlord in billing Tenant for sums due under this
Lease shall not constitute a waiver of Landlord's right to receive such sums
from Tenant notwithstanding that this Lease may have theretofore been
terminated or expired.
(m) Subject to the conditions hereinafter set forth, Tenant and its
employees and invitees shall have the right, in common with Landlord and
other tenants of the Property and their employees and invitees, to use the
parking areas provided by Landlord on the Property for the parking of
passenger automobiles, except for those areas, if any, designated
"Excepted". Tenant shall only park in the areas provided for Tenant's use.
Tenant's parking shall not be reserved and shall be limited to vehicles no
larger than standard sized passenger automobiles, passenger vans, sport
utility vehicles or single axle or light pickup vehicles. Tenant shall not
cause large trucks, non-passenger vans, motor homes, mobile homes or
trailers or other large vehicles to be parked within the parking areas.
Vehicles shall be parked only in striped parking spaces and not in
driveways, access roads, fire zones, loading areas or other locations not
specifically designated for parking. Landlord shall have the right to
assign parking spaces for the exclusive use of Tenant and/or other tenants
of the Property and/or Landlord and their employees and invitees, and Tenant
and its employees and invitees shall not park their vehicles in parking
spaces allocated to others by Landlord. Landlord shall not be required to
keep parking spaces clear of unauthorized vehicles or to otherwise supervise
the use of the parking areas. Landlord shall not be responsible for any
damage to or theft of any vehicles in the parking areas. Landlord may issue
parking permits, install a gate system or impose any other system as
Landlord deems necessary for the use of the parking areas. Provided the
following do not substantially adversely affect Tenant's permitted use of
the Premises and the operation of its business at the Premises as
contemplated by this Lease, Landlord reserves the right from time to time
(i) to change or reduce the parking areas, roads and driveways; and (ii) to
make any alterations or repairs that it deems necessary to the parking
areas, roads or driveways, and to temporarily revoke or modify the parking
rights granted to Tenant without any abatement or reduction of rent by
reason thereof. Landlord may designate fire zones in the parking area,
handicapped parking spaces, loading zones (limited duration parking) and no
parking zones, and Tenant shall not be entitled to any reduction or
abatement of rent. Landlord may require Tenant to furnish it with the
automobile license numbers assigned to vehicles of Tenant and its employees
and invitees and to notify Landlord of any changes thereof. Upon notice to
Tenant, Landlord may limit parking spaces to visitors. In the event Tenant
or any of its employees or invitees violates Landlord's parking regulations,
Tenant agrees that Landlord may tow the violating motor vehicles at the
expense of the vehicle owner, including charges for towing, storage and
damage to the vehicle which may occur.
(n) Intentionally Omitted.
(o) Provided the following does not substantially adversely affect
Tenant's permitted use of the Premises and the operation of its business at
the Premises as contemplated by this Lease, Landlord reserves the right to
suspend any of the services agreed to be supplied by Landlord hereunder when
reasonably necessary by reason of accident or for repairs, alterations,
replacements or improvements necessary or desirable in the reasonable
judgment of Landlord for as long as shall be reasonably required by reason
thereof, and, except as may be otherwise expressly set forth in this Lease,
Landlord shall not be liable to Tenant and Tenant shall not be entitled to
any abatement or reduction of Rent by reason thereof.
(p) Tenant shall observe the rules and regulations set forth in the
Rules and Regulations Rider attached hereto, and such other reasonable rules
and regulations as Landlord may from time to time adopt, on prior written
notice to Tenant. Landlord shall not be obligated to enforce the rules and
regulations against any tenant, and Landlord shall not be liable for
violation of same by any tenant, or any of its employees or invitees.
(q) Notwithstanding anything to the contrary herein, with respect to
the parking spaces located in the front of the Building, but not the parking
spaces at the sides or rear of the Building, Tenant agrees that it and its
employees, servants, agents, contractors, licensees and invitees shall
utilize only those parking spaces located in front of the Premises and not
any parking spaces located in any other portion of the front of the
Building.
(r) If at any time during the Term hereof a dispute shall arise as to
any amount or sum of money to be paid by one party to the other party under
the provisions hereof, the party against whom the obligation to pay the
money is asserted shall have the right to make payment "under protest" which
payment shall not be regarded as a voluntary payment, and there shall
survive the right on the part of such party to institute suit for recovery
of such sum. If it shall be adjudged that there was no legal obligation on
the part of such party to pay such sum or any part thereof, such party shall
be entitled to recover from the other party such sum or so much thereof as
it was not legally required to pay under the provisions of this Lease.
(s) If at any time a dispute shall arise between the parties hereto
as to any work to be performed by either of them under the provisions
hereof, the party against whom the obligation to perform the work is
asserted may perform such work and pay the cost thereof "under protest",
performance of such work in no event to be regarded as a voluntary
performance, and there shall survive the right on the part of such party to
institute suit for recovery for the reasonable cost of such work. If it
shall be adjudged that there was no legal obligation on the part of such
party to perform such work or any party thereof, such party shall be
entitled to recover from the other party the reasonable cost of such work or
the reasonable cost of so much thereof as such party was not legally
required to perform under this Lease.
(t) In the event of any litigation or other adversarial proceeding
between Landlord and Tenant under, or relating to, the provisions of this
Lease, the prevailing party, by final court order, judgment or decree, shall
be entitled to recover from the non-prevailing party all of the prevailing
party's reasonable costs and expenses including, without limitation,
reasonable legal fees, incurred in such litigation or other proceeding.
(u) The provisions of Sections 39(t), 39(u) and 39(v) shall survive
the expiration or earlier termination of the Term hereof.
(v) Upon execution hereof, Landlord and Tenant shall execute a Notice
of Lease pursuant to the provisions of New Hampshire R.S.A. 477:7-a, in a
form reasonably satisfactory to Landlord and Tenant.
40. Right of Early Termination. (a) Tenant shall have a one time
only right to terminate this Lease, such termination to be effective as of
11:59 p.m. of the last day of the seventh Lease Year of the Term hereof (the
"Early Termination Date"), provided, Tenant satisfies each and every one of
the following conditions:
1. Tenant shall give Landlord written notice of Tenant's
election to exercise the right of termination set forth in this
Section 40(a) ("Notice of Termination"), which Notice of Termination
must be received by Landlord (i) no earlier than the first day of the
sixth (6th) Lease Year of the Term hereof and (ii) no later than the
last day of the sixth (6th) Lease Year of the Term hereof. Time shall
be strictly of the essence with respect to delivery of the Notice of
Termination. If, for any reason whatsoever, Landlord receives the
Notice of Termination prior to the first day of the sixth (6th) Lease
Year, said Notice of Termination shall conclusively be deemed null and
void and of no force and effect. If, for any reason whatsoever,
Landlord fails to receive the Notice of Termination on or before the
last day of the sixth (6th) Lease Year of the Term hereof, Tenant's
right to terminate as set forth in this Section 40(a) shall
automatically and irrevocably lapse and be null and void.
2. Tenant shall not be in material default under the terms of
this Lease on the date Landlord receives the Notice of Termination and
on the Early Termination Date. This condition may be waived by
Landlord at its sole discretion and may not be used by Tenant as a
means to negate the effectiveness of Tenant's exercise of the right to
terminate.
3. The Notice of Termination shall be accompanied by a check,
made payable to Landlord, in an amount equal to three (3) monthly
installments of Rent, at the rate of Rent in effect for the sixth
(6th) Lease Year of the Term hereof, which amount shall be due and
payable as an early termination fee, in addition to, and not in lieu
of or substitution of, all Annual Base Rent, Additional Rent and/or
other charges due and owing from Tenant to Landlord through the Early
Termination Date. As used in this paragraph, the term "Rent" shall
include Annual Base Rent, Tax Rent, Expense Rent, Additional Rent and
any and all other items included within the definition of Rent as set
forth in Section 4(c) hereof.
(b) If Landlord receives a timely and proper written Notice of
Termination and if Tenant otherwise satisfies all of the conditions
hereinbefore set forth in Section 40(a), then, the parties shall perform
their respective obligations and enjoy their respective rights under this
Lease through the Early Termination Date, the term of this Lease shall
terminate at 11:59 p.m. on the Early Termination Date as if said date were
the date initially set forth for the termination of the Term of this Lease
and on or before 11:59 p.m. of the Early Termination Date, Tenant shall
vacate and surrender the Premises to Landlord in the condition required by
this Lease for surrender of the Premises upon expiration of the Term. Upon
Landlord's receipt of such a timely and proper written Notice of
Termination, and Tenant's satisfaction of all of the conditions hereinbefore
set forth in Section 40(a), and Tenant's vacation and surrender of the
Premises as aforesaid, all obligations of the parties under this Lease shall
cease and thereafter this Lease shall be void, except to the extent that any
provision of this Lease expressly provides that a particular obligation of
either Landlord or Tenant shall survive the expiration or termination of the
Term hereof.
THE RIDERS ENUMERATED IN SECTION 1(I) ARE ATTACHED HERETO AND MADE A
PART OF THIS LEASE AS FULLY AS IF SET FORTH HEREIN AT LENGTH. THE TERMS
USED IN THE RIDER HAVE THE SAME MEANINGS AS SET FORTH IN THE LEASE. THE
PROVISIONS OF A RIDER SHALL PREVAIL OVER ANY PROVISIONS OF THE LEASE WHICH
ARE INCONSISTENT OR CONFLICT WITH THE PROVISIONS OF THE RIDER.
IN WITNESS WHEREOF, the parties hereby have duly executed this Lease
as of the date set forth in Section 1(a).
LANDLORD:
WITNESS: PVP-SALEM ASSOCIATES, L.P.
BY: PVP-SALEM CORP.,
Its General Partner
______________________________ By: /s/ Xxxx X. Xxxxxxx
___________________________
XXXX X. XXXXXXX,
President
TENANT:
ATTEST: PARLEX CORPORATION
______________________________ By: /s/ Xxxxx X. Xxxxxx
___________________________
Its: President
__________________________
ANNUAL BASE RENT RIDER
----------------------
Date of Lease: August 12, 1997
Landlord: PVP-Salem Associates, L.P.
Tenant: Parlex Corporation
Property: Portion of 0 Xxxxxxxxxx Xxx, Xxxxx, X.X.
1. Annual Base Rent. The Annual Base Rent payable by Tenant to
Landlord for each and every Lease Year of the Term shall be as follows:
For the first Lease Year of the Term hereof, the Annual Base Rent
shall be $192,100.00 per annum, payable in equal monthly installments of
$16,008.33 per month. For each particular Lease Year from, after and
including the second Lease Year of the Term hereof, through, to and
including the tenth Lease Year of the Term hereof (said particular Lease
Year being hereinafter in this paragraph referred to as the "Lease Year in
Question"), Annual Base Rent shall be an annual amount equal to the product
of (i) $192,100.00 multiplied by (ii) a fraction, the numerator of which
shall be the Index (as hereinafter defined) existing on the first day of the
Lease Year In Question and the denominator of which shall be the Index
existing as of the Commencement Date; provided, however, that in no event
whatsoever shall the Annual Base Rent for the Lease Year In Question be less
than $192,100.00. As used herein, the term "Index" shall mean and shall
refer to the Consumer Price Index, All Urban Consumers (CPI-U) for the
Boston -- Lawrence -- Salem, MA -- NH Area, all items (1982-84 = 100) of the
United State Bureau of Labor Statistics, United States Department of Labor.
In the event that as of any relevant date the Index is no longer published
or issued, such other index as in Landlord's reasonable judgment provides a
basis for wage negotiations shall be used and employed in the place and
stead thereof. Without limiting the foregoing, in the event that the level
of the Index for the first day of the Lease Year In Question is not known as
of said first day, Tenant shall continue to pay Annual Base Rent at the rate
in effect immediately prior to the commencement of the Lease Year In
Question until the Index for the first day of the Lease Year In Question
becomes available. Thereafter, Landlord shall determine the proper Annual
Base Rent payable during the Lease Year In Question, which shall apply
retroactively from and after the first day of the Lease Year In Question.
To the extent that Tenant shall have paid less than the full and proper
amount of Annual Base Rent from and after the first day of the Lease Year In
Question, said deficiency shall be paid to Landlord within fifteen (15) days
of Landlord's demand therefor.
Initials:
/s/ PVP
_____________________
Landlord
/s/ PJM
_____________________
Tenant
EXTENSION OPTION RIDER
----------------------
Date of Lease: August 12, 1997
Landlord: PVP-Salem Associates, L.P.
Tenant: Parlex Corporation
Property: Portion of 0 Xxxxxxxxxx Xxx, Xxxxx, X.X.
1. Grant of Option. So long as Tenant has not theretofore exercised
its right of early termination as set forth in Section 40 hereof, and
subject to all of the provisions of this Rider, Landlord hereby grants to
Tenant the option (the "Option") to extend the Term following the expiration
of the original term hereof (the "Initial Term") for an additional term of
ten (10) years (the "Extension Term").
2. Exercise of Option. The Option shall be exercised only by written
notice (the "Extension Notice") delivered to Landlord in accordance with
Section 35 of the Lease at least one (1) year before the expiration of the
Initial Term. No verbal communication by Tenant with Landlord or any of its
principals, agents or employees of exercise of this Option shall be an
effective exercise of this Option. Time shall be of the essence with
respect to delivery of the Extension Notice and if, for any reason
whatsoever, Landlord fails to receive the Extension Notice within the
specified time period, the Option shall automatically and irrevocably lapse,
be null and void and Tenant shall have no further right to extend the Term.
3. Conditions Precedent to Option. The Option shall be exercisable
by Tenant and the Lease shall continue for the Extension Term on all of the
foregoing conditions:
(a) At the time Landlord receives the Extension Notice and at the
commencement of the Extension Term, Tenant shall not then be in material
default under any of the provisions of the Lease. This condition may be
waived by Landlord at its sole discretion and may not be used by Tenant as a
means to negate the effectiveness of Tenant's Extension Notice.
(b) At the time Landlord receives the Extension Notice and at the
commencement of the Extension Term, the Tenant named in Section 1(c) of the
Lease shall not have assigned the Lease or sublet any portion of the Demised
Premises.
4. Extension Term Provisions. The Extension Term shall be on all of
the same terms and conditions set forth in the Lease and applicable to the
Initial Term, including provisions relating to the payment of Additional
Rent, except that the Annual Base Rent for the Extension Term shall be
determined in the following manner:
(a) The Annual Base Rent for the first Lease Year of the Extension
Term shall be the then current market rental rate for comparable industrial
space in Salem, New Hampshire (the "Fair Market Rental"), provided, however,
that in no event whatsoever shall the Annual Base Rent for the first Lease
Year of the Extension Term be less than the Annual Base Rent for the last
Lease Year of the Initial Term. If the Fair Market Rental as determined by
Landlord is not greater than the Annual Base Rent for the last Lease Year of
the Initial Term, then, the Annual Base Rent for the first Lease Year of the
Extension Term shall conclusively be deemed to be equal to the Annual Base
Rent for the last Lease Year of the Initial Term, and Landlord shall provide
notice to that effect to Tenant. If, in Landlord's opinion, the Fair Market
Rental is greater than the Annual Base Rent for the last Lease Year of the
Initial Term, then, Landlord shall set forth its opinion of the Fair Market
Rental in a written notice from Landlord to Tenant ("Notice of Rent
Determination") given within sixty (60) days following Landlord's actual
receipt of the Extension Notice from Tenant, If Tenant does not wish to
accept the Fair Market Rental as set forth in Landlord's Notice of Rent
Determination, then, Tenant shall give Landlord written notice of such non-
acceptance ("Tenant's Notice of Non-Acceptance") within twenty (20) days
after Tenant's receipt of Landlord's Notice of Rent Determination; said
twenty (20) day period being strictly of the essence. If Tenant notifies
Landlord that Tenant accepts Landlord's determination of the Fair Market
Rental, or, if, for any reason whatsoever, Landlord fails to receive a
timely and proper Notice of Non-Acceptance, then, Tenant shall
automatically, conclusively, and irrevocably be deemed to have accepted and
agreed to the Fair Market Rental set forth in Landlord's Notice of Rent
Determination. If Tenant delivers a timely and proper Notice of Non-
Acceptance to Landlord, then, Tenant shall automatically, conclusively and
irrevocably be deemed to have withdrawn and nullified its prior exercise of
the Option to extend the Term of this Lease for the Extension Term, unless
said Notice of Non-Acceptance expressly contains a demand to submit the
determination of the Fair Market Rental to the appraisal process described
below.
(b) If Tenant's timely and proper Notice of Non-Acceptance contains a
demand to submit the determination of the Fair Market Rental to appraisal,
then, within twenty (20) days of said proper and timely demand, Landlord and
Tenant shall each retain a reputable appraiser with at least ten (10) years
experience in appraising industrial buildings in Salem, New Hampshire. Each
party shall bear the cost of its appraiser. Each party shall direct its
appraiser to render his/her opinion of the Fair Market Rental within thirty
(30) days of the date of his/her selection. Each party's appraiser shall
prepare a written report setting forth said appraiser's opinion of the Fair
Market Rental. In the event that the Fair Market Rentals determined by the
two appraisers shall not differ by more than five (5%) percent of the lower
appraisal, then the Fair Market Rental shall be deemed to be the average of
the two appraisals and said average shall be final, conclusive and binding
on Landlord and Tenant. If the Fair Market Rentals determined by the two
appraisers shall differ by more than such five (5%) percent amount, then,
the two (2) appraisers shall select a third appraiser with at least ten (10)
years experience in appraising industrial buildings in Salem, New Hampshire,
with Landlord and Tenant each to pay one half (1/2) of the cost of such
third appraiser. Said third appraiser's sole function shall be to select as
the Fair Market Rental either the Fair Market Rental determined by
Landlord's appraiser or the Fair Market Rental determined by Tenant's
appraiser. Said third appraiser shall have no right to average the
appraisals of Landlord's appraiser and Tenant's appraiser or otherwise
select as the Fair Market Rental any amount other that determined by
Landlord's appraiser or that determined by Tenant' appraiser. So long as
the third appraiser proceeds as aforesaid, the determination of the Fair
Market Rental by the third appraiser shall be binding and conclusive on
Landlord and Tenant and shall be set forth in an Amendment to Lease which
Landlord and Tenant shall both promptly execute. The third (3rd) appraiser
shall be instructed to submit his or her appraisal report within thirty (30)
days after the date of his or her engagement.
(c) For each particular Lease Year of the Extension Term from, after
and including the second Lease Year of the Extension Term hereof, through,
to and including the tenth Lease Year of the Extension Term hereof (said
particular Lease Year being hereinafter in this paragraph referred to as the
"Lease Year in Question"), Annual Base Rent shall be an annual amount equal
to the product of (i) Fair Market Rental multiplied by (ii) a fraction, the
numerator of which shall be the Index (as hereinafter defined) existing on
the first day of the Lease Year In Question and the denominator of which
shall be the Index existing as of the first day of the first Lease Year of
the Extension Term; provided, however, that in no event whatsoever shall the
Annual Base Rent for the Lease Year In Question be less than the Fair Market
Rental. As used herein, the term "Index" shall mean and shall refer to the
Consumer Price Index, All Urban Consumers (CPI-U) for the Boston -- Lawrence
-- Salem, MA -- NH Area, all items (1982-84 = 100) of the United State
Bureau of Labor Statistics, United States Department of Labor. In the event
that as of any relevant date the Index is no longer published or issued,
such other index as in Landlord's reasonable judgment provides a basis for
wage negotiations shall be used and employed in the place and stead thereof.
Without limiting the foregoing, in the event that the level of the Index for
the first day of the Lease Year In Question is not known as of said first
day, Tenant shall continue to pay Annual Base Rent at the rate in effect
immediately prior to the commencement of the Lease Year In Question until
the Index for the first day of the Lease Year In Question becomes available.
Thereafter, Landlord shall determine the proper Annual Base Rent payable
during the Lease Year In Question, which shall apply retroactively from and
after the first day of the Lease Year In Question. To the extent that
Tenant shall have paid less than the full and proper amount of Annual Base
Rent from and after the first day of the Lease Year In Question, said
deficiency shall be paid to Landlord within fifteen (15) days of Landlord's
demand therefor.
(d) If Tenant's Notice of Non-Acceptance does not contain a demand to
submit the determination of the Fair Market Rental to the appraisal process
described above, then, Tenant shall automatically, conclusively and
irrevocably be deemed to have withdrawn and nullified its prior exercise of
the Option to extend the Term of this Lease for the Extension Term; the Term
of this Lease shall expire upon the last day of the Initial Term; and Tenant
shall have no further option of any nature whatsoever to extend the Term
beyond said last day of said Initial Term.
(e) Tenant shall have no option to further extend the Term beyond the
Extension Term herein provided.
Initials:
/s/ PVP
_____________________
Landlord
/s/ PJM
_____________________
Tenant
REAL ESTATE TAX RIDER
---------------------
Date of Lease: August 12, 1997
Landlord: PVP-Salem Associates, L.P.
Tenant: Parlex Corporation
Property: Portion of 0 Xxxxxxxxxx Xxx, Xxxxx, X.X.
Tenant shall pay as Additional Rent, Tenant's Proportionate Share, as
defined in Par. 1(j) of the Lease, of all real estate taxes assessed against
the Property for any tax fiscal year which occurs wholly or partially during
the Term of this Lease (such Additional Rent is hereinbefore and hereinafter
called the "Tax Rent"). The term "real estate taxes" shall mean (i) any
tax, assessment or other governmental charge of any kind, which at any time
during the Term may be levied, assessed, or imposed upon, or become due and
payable with respect to, or against the Property and/or the Building or any
part of either; (ii) any assessment for public betterment or improvements
levied, assessed or imposed upon or against the Property; (iii) any
reasonable legal fees, court costs, appraisal fees and other costs incurred
by Landlord in connection with contesting the assessed valuation of the
Property for real estate tax purposes; (iv) any tax levied, assessed or
imposed at any time upon or against the receipt of income or rents and/or
the use or occupancy of all or any portion of the Building and/or Land,
including, without limitation, any so-called "occupancy tax" or so-called
"use tax"; and (v) any other tax, levy, assessment or charge replacing or
supplementing in whole or in part any tax, levy, assessment or charge
included within clause (i) through (iv) directly above. Real estate taxes
for any tax fiscal year beginning before the Commencement Date or
terminating after the Expiration Date shall be apportioned so that Tenant
shall pay only such portion of the real estate taxes as shall be
attributable to the portion of such tax fiscal year occurring during the
Term of this Lease. The term "real estate taxes" shall not include income
taxes, estate taxes, or inheritance taxes. Tenant shall pay 100% of any
increase in tax assessment attributable to improvements or alterations to
the Building and/or Premises made by or for Tenant specially.
If a tax, levy or assessment for public improvements is levied against
the Property, and if Landlord elects to pay such assessment in installments,
then, Tenant shall pay its Proportionate Share of the installments payable
during or attributable to the Term, together with any interest due as a
result of the installment payments. Any installment which relates partially
to a period during the Term hereof and partially to a period outside the
Term hereof shall be appropriately prorated.
Tenant shall pay its Tax Rent, as Additional Rent in monthly
installments on the first day of each month on an estimated basis as
determined by Landlord. Landlord may adjust such estimate at any time and
from time to time based upon Landlord's reasonable anticipation of the real
estate taxes which may be assessed against the Property. Within a
reasonable time after the real estate taxes for any tax fiscal year shall be
fixed by the appropriate governmental authorities, Landlord shall deliver to
Tenant a statement setting forth the actual real estate taxes assessed
against the Property for such tax fiscal year, the amount paid by Tenant as
Tax Rent on account thereof, Tenant's Share of such real estate taxes, and
the amount due to or from Tenant, together with a copy of the actual tax
xxxx. If Tenant has paid less than the actual amount due, Tenant shall pay
the difference to Landlord within fifteen (15) days after Landlord's request
therefor as Additional Rent. Any amount paid by Tenant which exceeds the
actual amount due shall be credited to the next succeeding payments due as
Tax Rent hereunder, unless the Term has then expired in which event such
excess amount shall be refunded to Tenant forthwith.
Tenant shall have a period of fifteen (15) days after receipt
Landlord's statement of Tax Rent due to object to Landlord's billing. Such
objection shall be in writing and delivered to Landlord within fifteen (15)
days of Tenant's receipt of such xxxx, and shall be accompanied by payment
in full of the Tax Rent. Tenant shall then have a period of thirty (30)
days to review the records of Landlord with respect to the real estate taxes
of the Property. During said review, Landlord shall make available to
Tenant evidence of Landlord's payment of real estate taxes. In the event
Tenant does not give such notice on a timely basis, or make such
investigation on a timely basis, Tenant's right to object to the Tax Rent
shall be deemed waived and Landlord's statement of Tax Rent deemed approved
by Tenant. Time shall be of the essence with respect to Tenant's notice of
objection and review of Landlord's records. Without limiting the foregoing,
if Tenant's review of Landlord's records relating to real estate taxes for
any particular period of the Term hereof demonstrates to the satisfaction of
Landlord and Tenant that Tenant has paid more than Tenant's Proportionate
Share of all real estate taxes for said period, then, the excess amount paid
by Tenant shall be utilized by Tenant as a credit against its obligation to
pay Annual Base Rent and/or Additional Rent for any period after the date of
said review.
Initials:
/s/ PVP
_____________________
Landlord
/s/ PJM
_____________________
Tenant
OPERATING EXPENSE RIDER
-----------------------
Date of Lease: August 12, 1997
Landlord: PVP-Salem Associates, L.P.
Tenant: Parlex Corporation
Property: Portion of 0 Xxxxxxxxxx Xxx, Xxxxx, X.X.
Tenant shall pay as Additional Rent Tenant's Proportionate Share, as
defined in Par. 1(j) of the Lease, of all operating expenses of the Property
for any calendar year which occurs wholly or partially during the Term of
this Lease (such Additional Rent is hereinbefore and hereinafter called the
"Expense Rent"). The term "expenses" shall mean (i) all of Landlord's
Insurance Costs (as hereinafter defined); (ii) any and all reasonable and
necessary costs incurred by Landlord in providing the services described in
Landlord's Services Rider and (iii) any and all reasonable and necessary
costs incurred by Landlord in connection with the operation, maintenance,
care and repair of the Property, including, but not limited to, gardening
and landscaping; snow removal; repairing, resurfacing or repaving the
parking areas, roads or driveways on the Property; repairing, resurfacing or
repaving the walkways, entrances or exits on the Property; repairing leaks
to the roof, walls, windows and basement of the Building; repairing or
replacing the drainage on the Property; inspecting, repairing or resurfacing
the roof; repairing, adjusting or replacing parts of the HVAC equipment;
electrical repairs or replacements; plumbing repairs or replacements; common
area, restroom and/or hallway repairs or replacements; commissions and
consulting fees in connection with the placement of insurance (provided,
that if such insurance relates to the Property, as well as other properties,
then, such commissions and consulting fees shall be equitably allocated
between the Property and such other properties); direct wages, fringe
benefits and payroll taxes of all employees specifically required to provide
services to the Property; labor and materials for repairs and replacements
for the Building and other improvements on the Property; trash removal;
service contracts provided the same are competitively bid on an annual
basis; fuel oil; painting; security; elevator inspection, maintenance and
repair; telephonic expenses solely as reasonable and necessary for the
operation of the Property; common area and parking lot utilities; signage
and directory costs; professional fees to the extent they are related to the
operation and/or management of the Property; administrative expenses;
management fees; and alterations and improvements made by reason of
governmental requirements unless such alterations or improvements are
required as a result of another tenant's specific use of its premises at the
Property. The costs of cleaning the Common Areas and utilities serving the
Common Areas only shall be included in "expenses". Notwithstanding anything
to the contrary herein, it is agreed that all costs incurred by Landlord for
any item that would be characterized as a capital improvement under
generally accepted accounting principles shall be amortized on a straight
line basis over the useful life of said capital improvement. During each
year of the Term hereof only said portion of said costs as are allocable to
said year together with interest on said costs, from the date said costs
were incurred, at the rate of Prime plus one (1%) percent per annum, shall
be included in "expenses". If the Commencement Date is other than the first
day of a calendar year, or the Expiration Date is prior to the last day of a
calendar year, the Expense Rent shall be apportioned so that Tenant shall
pay only such portion of the expenses of the Property attributable to such
calendar year occurring during the Term of this Lease.
As used herein, the term "Landlord's Insurance Costs" shall mean any
and all premiums and other costs incurred by Landlord in order to obtain
and/or maintain one or more of the following policies of insurance for the
Property or any part thereof: (i) insurance covering all risk of physical
loss or damage to the Building in the full amount of its replacement value
(including agreed amount endorsement), but in no event less than the amount
required by any mortgagee of the Property ("Landlord's Mortgagee") (such
policy shall provide protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils, including demolition and increased cost of
construction, water damage, sprinkler leakage, and any other perils which
Landlord or Landlord's Mortgagee deems reasonably necessary or which
Landlord's Mortgagee requires); (ii) rental income insurance in an amount
equal to one year's Annual Base Rent and all Additional Rent; (iii)
insurance against loss or damage by boiler or machinery or internal
explosion or breakdown of boilers, equipment or electrical appurtenances, in
an amount required by Landlord or any Landlord's Mortgagee; (iv) flood
hazard insurance in the amount of the full replacement cost of the Building,
or if such amount of insurance is not obtainable, in the maximum amount
which is obtainable if such flood hazard insurance is required by Landlord's
Mortgagee; and (iv) comprehensive public liability insurance, including
contractual liability coverage; plus any deductible amount provided for
under any of the foregoing policies in the event of loss.
Tenant shall pay its Expense Rent as Additional Rent in monthly
installments on the first day of each month on an estimated basis as
reasonably determined by Landlord. Landlord may adjust such estimate at any
time and from time to time based upon Landlord's experience and anticipation
of costs, provided such adjustments are not made more than twice in any
Lease Year. After the end of each calendar year during the Term, Landlord
shall deliver to Tenant a statement setting forth the actual expenses of the
Property for such calendar year, the amount paid by Tenant as Expense Rent
on account thereof, Tenant's Share of such expenses, and the amount due to
or from Tenant. If Tenant has paid less than the actual amount due, Tenant
shall pay the difference to Landlord within fifteen (15) days after
Landlord's request therefor as Additional Rent. Any amount paid by Tenant
which exceeds the amount due shall be credited to the next succeeding
payments due as Expense Rent hereunder, unless the Term has then expired in
which event such excess amount shall be refunded to Tenant.
Tenant shall have a period of fifteen (15) days after receipt
Landlord's statement of Expense Rent due to object to Landlord's billing.
Such objection shall be in writing and delivered to Landlord within fifteen
(15) days of Tenant's receipt of such xxxx and shall be accompanied by
payment in full of the Expense Rent. Tenant shall then have a period of
thirty (30) days to review the records of Landlord with respect to the
expenses of the Property. In the event Tenant does not give such notice on
a timely basis, or make such investigation on a timely basis, Tenant's right
to object to the Expense Rent shall be deemed waived and Landlord's
statement of Expense Rent deemed approved by Tenant. Time shall be of the
essence with respect to Tenant's notice. Without limiting the foregoing, if
Tenant's review of Landlord's records relating to expenses for any
particular period of the Term hereof demonstrates to the satisfaction of
Landlord and Tenant that Tenant has paid more than Tenant's Proportionate
Share of expenses for said period, then, the excess amount paid by Tenant
shall be utilized by Tenant as a credit against its obligation to pay Annual
Base Rent and/or Additional Rent for any period after the date of said
review.
Notwithstanding anything to the contrary herein, the following shall
not be deemed "expenses": (i) costs incurred by Landlord to repair or
remedy defects in the initial construction of the Building; (ii) costs
incurred by Landlord to construct an improvement to the Building which is
intended to benefit only a specific tenant of the Building; and (iii) costs
incurred by Landlord, which would otherwise be "expenses" under this Rider,
which costs are reimbursed to Landlord by insurance carriers or contractors.
Initials:
/s/ PVP
_____________________
Landlord
/s/ PJM
_____________________
Tenant
AVAILABLE SPACE RIDER
---------------------
Date of Lease: August 12, 1997
Landlord: PVP-Salem Associates, L.P.
Tenant: Parlex Corporation
Property: Portion of 0 Xxxxxxxxxx Xxx, Xxxxx, X.X.
0. The Enco Space. Subject to all of the provisions of this Rider,
Tenant agrees that it shall add to the Demised Premises that portion of the
Building presently occupied by Enco Manufacturing Company (the "Enco
Space"), at such time as the Enco Space becomes vacant and available for
lease during the Term hereof, provided that the Enco Space becomes available
for occupancy on or before December 1, 1998. Landlord represents that the
Enco Space contains approximately 12,000 square feet. Without limiting the
foregoing, Landlord shall use best faith efforts to terminate the current
lease for the Enco Space and cause the present tenant thereof to vacate same
and remove all its possessions as soon as possible after the date of
execution hereof.
2. Notice of Availability. Landlord shall notify Tenant that the
Enco Space will become vacant and ready for occupancy in the condition
hereinafter provided by this Rider (the "Space Notice"). This Space Notice
shall set forth the date on which Landlord anticipates being able to deliver
possession of the Enco Space to Tenant and the amount by which the Annual
Base Rent for the Demised Premises shall be increased. Said increase in
Annual Base Rent shall be determined by Landlord by dividing the Annual Base
Rent in effect on the date of the Space Notice by 34,000 and then
multiplying the quotient so determined by 12,000 (subject to any increase in
Annual Base Rent that Landlord may be entitled to if the Space Notice is
sent in one particular Lease Year and the date on which Tenant first
occupies the Enco Space occurs in a subsequent Lease Year).
From and after the Possession Date, as said term is defined in Section
3 of this Available Space Rider, all references in the Lease to the term
Annual Base Rent, including, without limitation, all references to said term
in the Annual Base Rent Rider, shall be deemed references to the Annual Base
Rent as increased by this Section 2 of this Available Space Rider. Without
limiting the foregoing, it is expressly understood and agreed that from and
after the Possession Date, the annual increases in Annual Base Rent provided
for in the Annual Base Rent Rider shall apply to the entire Annual Base
Rent, including that portion allocable to the Enco Space.
3. Condition of Enco Space, Delivery of Possession. The Enco Space
shall not be deemed ready for occupancy, nor in compliance with the
provisions of this Rider, until and unless Landlord is ready and able to
deliver same to Tenant in the following condition: broom clean, with all
personal property, trade fixtures, machinery and equipment removed
therefrom; all sprinkler, electrical, plumbing and HVAC systems which
service the Enco Space in good working order; and all interior walls and
floors in good condition, without any holes or similar damage. Except as
hereinabove set forth, Tenant shall accept the Enco Space in its "as is"
condition on the Possession Date (as said term is hereinafter defined), and
except for Landlord's obligations under the immediately preceding sentence,
all alterations and improvements to the Enco Space, if any, shall be made at
Tenant's expense, subject always, however, to all the terms and provisions
of this Lease relating to alterations, modifications and improvements of the
Demised Premises. So long as the Enco Space is then ready for occupancy,
the term "Possession Date" shall mean the earlier of (i) the thirty-first
(31st) day following the date Tenant receives the Space Notice and (ii) the
first day Tenant commences to use and occupy the Enco Space. If, however,
the Enco Space is not then ready for occupancy, the Possession Date shall be
postponed until the day on which the Enco Space becomes ready for occupancy
as provided for herein. Without limiting the foregoing, it is agreed that
Tenant shall not be responsible for any environmental or other pre-existing
dangerous or illegal conditions existing at the Enco Space prior to the
Possession Date.
4. Not an Option. It is not the intent of Landlord and Tenant to
grant Tenant any option hereunder. Rather, it is the express intent of
Landlord and Tenant hereunder to require (i) Landlord to deliver the Enco
Space and (ii) Tenant to accept the Enco Space, subject always to the terms
and provisions of this Rider. Notwithstanding anything to the contrary
herein, Landlord, at its sole discretion, may elect not to deliver the Enco
Space to Tenant on the Possession Date, in which case the Enco Space shall
not become part of the Demised Premises, if, as of the Possession Date, one
or more of the following conditions exists:
(a) Tenant is in material default with respect to any of its
obligations under this Lease; or
(b) The Tenant named in Section 1(c) of the Lease shall have
theretofore assigned this Lease or sublet any portion of the Premises.
It is expressly understood and agreed that Landlord, in its sole and
absolute discretion, may elect to deliver the Enco Space to Tenant on the
Possession Date notwithstanding the existence of one or more of said
conditions, in which event Tenant shall accept the Enco Space and said Enco
Space shall thereupon become part of the Demised Premises.
5. Enco Space Provisions. (a) From and after the Possession Date
the Lease shall be deemed amended to include the Enco Space as part of the
Demised Premises and the terms "Premises" and "Demised Premises" as used in
this Lease shall thereafter be deemed to include the Enco Space. From and
after the Possession Date, all of the terms and conditions set forth in the
Lease shall be applicable to the Enco Space as if same were originally part
of the Premises, except the Annual Base Rent shall be as set forth in
Landlord's Space Notice and Tenant's Proportionate Share shall be increased
to 62.59%, which percentage Landlord represents shall be Tenant's true,
correct and accurate Proportionate Share after the Possession Date.
(b) At any time after the Possession Date, Tenant shall execute and
deliver to Landlord an agreement confirming the addition of the Enco Space
to the Demised Premises, and setting forth the square foot area of the Enco
Space, the Possession Date, the Annual Base Rent for the Enco Space and the
aggregate Annual Base Rent for the Demised Premises (including the Enco
Space) on the Possession Date, and such other matters as Landlord shall
reasonably request or require.
6. No Violations. Landlord represents and warrants to Tenant that to
the best of Landlord's knowledge on the date of execution hereof, Landlord
is not in receipt of any notices of outstanding violations of any
ordinances, orders, rules, regulations, and other governmental requirements
relating to the use, condition and occupancy of the Enco Space, including
the Americans With Disabilities Act, all handicapped access related
requirements and all rules, orders, regulations and requirements of the
Board of Fire Underwriters or insurance service office, or any similar body
having jurisdiction over the Enco Space.
7. Rent Concession. Notwithstanding anything to the contrary herein,
Tenant shall not be obligated to pay any Annual Base Rent or Additional Rent
for the Enco Space for the first thirty (30) days following the Possession
Date.
Initials:
/s/ PVP
_____________________
Landlord
/s/ PJM
_____________________
Tenant
TERMINATION OF LEASE RIDER
--------------------------
TERMINATION OF LEASE, by and between PVP-SALEM ASSOCIATES, L.P., as
Landlord, and PARLEX CORPORATION, as Tenant.
BACKGROUND
----------
A. On or about July 8, 1992, AHB Realty Corporation, as Landlord and
Tenant entered into an Agreement of Lease (the "Lease" for the purposes of
this Rider only) for certain premises located at 0 Xxxxxxxxxx Xxx, Xxxxx,
Xxx Xxxxxxxxx (the "Premises" for the purposes of this Rider only). The
term of the Lease expired June 30, 1997.
B. Landlord is the successor-in-interest to AHB Realty Corporation.
Tenant and Landlord now wish to enter into a new lease ("New Lease") for the
Premises.
C. Each party (hereinafter in this paragraph the "first party") is
prepared to enter into the New Lease if and only if the other party agrees
to formally terminate the Lease and release the first party and all of the
first party's predecessors-in-interest from all presently known claims
thereunder.
AGREEMENT
---------
FOR AND IN CONSIDERATION of the foregoing premises and in further
consideration of the covenants and agreements hereinafter set forth, the
parties agree as follows:
1. The Lease shall be and hereby is terminated as of 11:59 P.M. on
the date ("Termination Date") immediately preceding the Commencement Date of
the New Lease.
2. Effective as of the Commencement Date of the New Lease, Tenant
shall and hereby does irrevocably, unconditionally, fully and finally
release Landlord and all of Landlord's predecessors-in-interest from any and
all claims, demands, actions and causes of action (collectively, "Claims")
which Tenant may have against Landlord and/or any or all of Landlord's
predecessors-in-interest as a result of or in connection with the Lease or
Tenant's use and occupancy of the Premises at all times prior to the
Commencement Date of the New Lease, no matter how or under what theory of
liability such claims arise, to the extent such Claims are presently known
to Tenant.
3. Effective as of the Commencement Date of the New Lease, Landlord
shall and hereby does irrevocably, unconditionally, fully and finally
release Tenant and all of Tenant's predecessors-in-interest from any and all
Claims which Landlord may have against Tenant and/or any or all of Tenant's
predecessors-in-interest as a result of or in connection with the Lease or
Tenant's use and occupancy of the Premises at all times prior to the
Commencement Date of the New Lease, no matter how or under what theory of
liability such claims arise, to the extent such Claims are presently known
to Landlord.
4. Each party (hereinafter in this Section the "first party")
acknowledges that the other party (hereinafter in this Section the "second
party") would not enter into the New Lease unless the first party executed
and delivered to the second party this instrument, including the release
provisions set forth in Sections 2 and 3 above. The first party agrees that
the execution by the second party of the New Lease is sufficient
consideration to the first party for granting of said release. The first
party agrees that it shall not seek any additional consideration from the
second party or any of the second party's predecessors-in-interest for the
granting of said release.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals this 12th day of August, 1997.
LANDLORD:
WITNESS: PVP-SALEM ASSOCIATES, L.P.
BY: PVP-SALEM CORP.,
Its General Partner
______________________________ By: /s/ Xxxx X. Xxxxxxx
___________________________
XXXX X. XXXXXXX,
President
TENANT:
ATTEST: PARLEX CORPORATION
______________________________ By: /s/ Xxxxx X. Xxxxxx
___________________________
Its: President
__________________________
RULES AND REGULATIONS RIDER
---------------------------
Date of Lease: August 12, 1997
Landlord: PVP-Salem Associates, L.P.
Tenant: Parlex Corporation
Property: Portion of 0 Xxxxxxxxxx Xxx, Xxxxx, X.X.
Xxxxxxxx hereby promulgates the following Rules and Regulations with
respect to the Property:
1. The roads, driveways, parking areas, sidewalks, entrances,
elevators, stairways and halls shall not be obstructed by any tenant or used
for any purpose other than for ingress to and egress from such tenant's
Premises. No tenant shall store any of its property outside of its
Premises.
2. No tenant shall use or keep any foul or noxious gas or substance
in its Premises, or permit its Premises to be used in a manner offensive or
objectionable to Landlord in its sole judgment or other tenants of the
Building by reason of noise, odors or vibrations. No animals or birds shall
be kept on the Property.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside of its Premises or the Building or on the inside of its Premises
which is visible from the outside of the premises without the prior written
consent of the Landlord, except as provided in the Lease.
4. Except as currently existing, no tenant shall lay linoleum or
other similar floor coverings so that the same shall come in direct contact
with the floor of its Premises, and if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt
shall be first fixed to the floor by a paste or other material that may
easily be removed with water; the use of cement or other similar adhesive
material is expressly prohibited. Carpeting without padding shall have jute
backing and shall be installed only with quick release cement.
5. Tenant shall not install any additional locks or change the locks
on any of the entrance doors or interior doors of its Premises.
6. Tenant shall not install any window coverings other than venetian
blinds as specified by Landlord, without Landlord's consent, which shall not
be unreasonably withheld.
7. No tenant shall place a load upon any floor of its Premises
exceeding the floor load per square foot area which it was designed to carry
and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes, office machines, other machines and
mechanical equipment. Such installations shall be placed in locations in
the Premises and in such manner sufficient to absorb and prevent vibration,
noise and annoyance.
8. Freight, furniture, equipment, supplies, merchandise and bulky
matter shall be delivered to and removed from the Premises only through the
entrances and corridors designated by Landlord, and only during the hours
and in the manner prescribed by Landlord. Any damage that occurs to the
Premises, Building and/or Property due to such deliveries shall be repaired
by Landlord at Tenant's sole cost and expense. All amounts due and owing by
Tenant to Landlord pursuant to the immediately preceding sentence shall be
deemed Additional Rent under this Lease and shall be paid by Tenant to
Landlord within fifteen (15) days of Landlord's invoice therefor.
9. No tenant shall bring or keep in its Premises any inflammable,
combustible or explosive fluid, material, chemical or substance, or cause
any odors of cooking or other processes, or any objectionable odors to
permeate in or emanate from its Premises.
10. Tenant shall not install any item of equipment in its Premises,
Building and/or Property which creates a harmonics problem which interferes
with other equipment in the Building, or creates a power factor of less than
90%.
Initials:
/s/ PVP
_____________________
Landlord
/s/ PJM
_____________________
Tenant
