Exhibit 2.11
THIS LEASE AGREEMENT made this 26th day of July 2002, by and between
AEROVOX INCORPORATED, a Delaware corporation, having a principal place of
business at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter with its successors and assigns called the "Landlord") and PARALLAX
POWER COMPONENTS, LLC, a Delaware limited liability company, having its
principal office at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter with its successors and permitted assigns called the "Tenant").
WITNESSETH:
ARTICLE I
Premises
Section 1. In consideration of the rents and covenants herein contained on
the part of the Tenant to be paid, performed and observed, the Landlord hereby
leases to the Tenant and the Tenant hereby leases from the Landlord subject to
the terms and provisions hereinafter set forth, the land (hereinafter called the
"Land") described in Exhibit A attached hereto together with all buildings and
improvements thereon and all easements and appurtenances thereto (collectively
such Land, buildings, improvements, easements and appurtenances being
hereinafter collectively referred to as the "premises" or "demised premises".
The building (the "Building") presently located on the Land contains
approximately 137,000 square feet. Tenant has caused its representatives to make
a complete inspection of the physical condition of the premises and fixtures
contained therein and agrees to accept the premises and said fixtures in their
present condition as is and where is. Landlord has made no representations or
warranties as to the condition of the premises or said fixtures. Landlord shall
have no obligation to perform any "fit up" work, alterations or other work prior
to commencement of the Term in order to prepare the premises for occupancy by
Tenant but nothing contained in this sentence shall limit or modify any of the
obligations of the Landlord under any other provisions of this Lease)
ARTICLE II
Term and Commencement
Section 1. TO HAVE AND TO HOLD the demised premises for the original term
(the "Term") of one (1) year from and after the date hereof unless sooner
terminated as herein provided.
ARTICLE III
Rent
Section 1. In consideration of the provisions hereof, Tenant shall pay to
Landlord an annual base rent during the Term hereof of $600,000.00 per annum
("annual base rent") in equal
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monthly installments of $50,000.00 per month payable in advance on the first day
of each calendar month during the Term (with payment of rent for the remainder
of June 2002 to be paid upon execution hereof).
Section 2. The Tenant shall pay, as additional rent hereunder, during the
Term hereof (but not for any period subsequent to the expiration or earlier
termination of the Term nor for any period prior to the commencement of the
Term), all real estate taxes, water rents and sewer charges (collectively
"taxes") which are assessed and payable upon, or with respect to, the premises
(and which are allocable to the Term, as the Term may be reduced as a result of
any termination of this Lease). The Tenant shall pay such additional rent to the
taxing (or other governmental) authority within thirty (30) days after
presentation of the applicable tax bills (and bills for such other amounts), but
in any event not sooner than ten (10) days prior to the last day or dates on
which said taxes and other additional rent may be paid without interest or
penalty. Landlord represents and warrants to Tenant that the annual taxes for
the current tax year are approximately $40,000 and that the assessment on the
premises for purposes of determining the amount of taxes does not exceed
$1,000,000.00. Notwithstanding anything contained in this Section 2 of Article
III of the Lease (or any other provisions of this Lease) to the contrary, it is
expressly understood and agreed that in no event shall Tenant be responsible
for, or have any obligation to pay, any portion of the taxes on the premises as
and to the extent that any such taxes are based, in whole or in part, on an
assessed value or other valuation of the premises (or any part thereof or any
interest therein or any revaluation or reassessment thereof) in excess of an
assessed value in the aggregate of $1,000,000.00. Landlord shall promptly pay,
when due, all taxes on the premises in excess of those taxes which Tenant is
obligated to pay hereunder.
If this lease shall commence on a date other than the first day of a tax
year, or terminate on a date other than the last day of a tax year, the Tenant
for that tax year shall pay to the Landlord only such portion of such additional
rent for the whole tax year as shall be proportionate to the portion of the tax
year contained within the term of this Lease.
Section 3. Landlord shall pay to Tenant one hundred (100%) percent of any
abatement, refund of real estate taxes paid or payable to Landlord allocable to
the Term or any part thereof within fifteen (15) days after Landlord shall
receive payment, credit or other benefit thereof, net of all costs paid by
Landlord in connection with obtaining such refund or abatement; provided however
that if Tenant is then in default under this Lease, such amounts shall be first
credited against any defaulted amounts due from Tenant under this Lease.
Section 4. During the Term, Tenant shall obtain and maintain the following
insurance on the premises with an insurance company reasonably acceptable to
Landlord: so called "all risk" coverage insurance (including business
interruption insurance covering a period of not less than twelve (12) months or
the remainder of the Term, whichever is less) and such other insurance covering
all hazards included within customary "all risks" coverage (exclusive of the
cost of coverage for damage due to terrorists' acts or the like), including
without limitation insurance covering fire, lightning, vandalism, malicious
mischief and boiler, pipe and sprinkler leakage, said insurance to be on a full
replacement cost basis (exclusive of footings and foundations). Such insurance
shall name Landlord and its first mortgage lender as an additional insured and
"loss payee." Such policy shall be non-cancelable with respect to the interest
of Landlord and such mortgagee without at least ten (10) days prior written
notice thereto. Landlord hereby approves the policy of insurance provided by
Tenant.
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Section 5. All payments of annual base rent hereunder shall be mailed to
the order of Landlord c/o Key Bank at KeyBank National Association, 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, 4/th/ Floor, or
otherwise as Landlord's lender, Key Bank may notify Tenant from time to time. If
Tenant shall receive conflicting demands for payment of annual base rent, Tenant
shall have the right to make payment thereof into the Bankruptcy Court in the
Landlord's Bankruptcy Case and related proceedings and such payment shall
satisfy Tenant's obligations hereunder with respect to such rent and other
charges.
ARTICLE IV
Covenants
Tenant covenants and agrees as follows:
(a) To cause no waste with respect to the demised premises;
(b) Tenant shall be responsible for maintaining its own exterior trash
receptacle and periodic trash removal;
(c) Tenant shall be responsible for removing snow and ice from the parking
areas, sidewalks and driveways on the Land and entrances to the
Building and for mowing the grass and maintaining the other existing
landscaping;
(d) Tenant shall not create, commit or maintain any nuisance upon the
premises; and
(e) Tenant shall comply with all Environmental Laws (as said term is
defined in Section 3 of Article XIII) in connection with Tenant's use,
storage or handling of Hazardous Materials (as said term is defined in
Section 3 of Article XIII) in the conduct of Tenant's business at the
premises.
ARTICLE V
Use of Demised Premises
Section 1. The Tenant shall have the right to use the demised premises for
use as a manufacturing, warehouse, storage, distribution, sale, research and
development facility and related office and other uses incidental thereto,
including without limitation, the development, manufacture, sale and
distribution of film capacitors, electromagnetic interference filters and
related products and for no other purposes whatsoever.
ARTICLE VI
Repairs And Alterations
Section 1. Tenant shall repair any damage to the Premises to the extent
caused by actions of Tenant, its agents or invitees. Tenant shall also be
responsible for routine maintenance of (a) the interior of the Building and
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(b) the electrical, plumbing, mechanical, heating, ventilating, air
conditioning, gas, elevator and sprinkler equipment located within or outside
the Building and (c) rooftop, mechanical and HVAC units, if any, in each case in
clauses (a) through (c) inclusive, to the extent necessary to keep the same in
operating condition during the Term (but not for any period subsequent to
expiration or earlier termination of the Term).
Notwithstanding the foregoing, in no event shall Tenant have any
obligation to perform any repairs or maintenance arising out of (a) normal wear
and tear, (b) faulty or defective construction, equipment or materials at the
premises at the date hereof, (c) any condition, whether known or unknown,
existing at the Premises at the date hereof whether above or below surface, (d)
any Capital Repairs (as said term is hereinafter defined), (e) except for
repairs or maintenance required of Tenant under the first two (2) sentences of
this Section 1 or under Article IV, any repairs or maintenance to, or with
respect to, the roof, structure, walls, heating, ventilating, air conditioning,
electrical, mechanical, elevators or other utility systems within or serving the
Premises, foundations, subsurface facilities of any type, paving, curbing,
sprinkler systems, indoor or outdoor, or the like, curbs, gutters, drainage
systems, leaks, sinkholes, soil erosion, outdoor lighting poles, lights and
fixtures, nor the parking areas, sidewalks or driveways located on or serving
the Premises and (f) any repairs or maintenance, the need for which arises out
of any fire, casualty, terrorism, or any other risk, peril or matter which is
included within the coverage of any policy of insurance carried by Tenant under
Section 4 of Article III of this Lease. As used in this Lease, the term "Capital
Repairs" shall mean any repairs, maintenance, replacement or other work, the
cost of which would constitute a capital expense, capital cost or capital item
as determined under generally accepted accounting principles consistently
applied or the useful life of which would exceed one (1) year.
Section 2. The Landlord shall promptly after receipt of written notice from
the Tenant, make (a) all repairs to the roof (including, without limitation,
repair of all roof leaks and (except for minor plumbing leaks) other leaks),
structure, foundations, beams, girders, mullions, exterior walls of the demised
premises, the structural elements of the premises, and the paved areas and (b)
all Capital Repairs to the walls, heating, ventilating, air conditioning,
electrical, mechanical, elevator and other utility systems within or serving the
premises, the subsurface facilities of any type, paving, curbing, landscaping,
sprinkler systems, indoor or outdoor or the like, curbs, gutters, drainage
systems, sink holes, soil erosion, outdoor lighting poles, lights and fixtures
(and all other repairs and maintenance except those which Tenant is obligated to
perform under Article IV or Section 1 of this Article VI).
Section 3. The Tenant shall at the expiration or earlier termination of
this lease remove its goods and effects and such of the equipment and machinery
owned by Tenant as Tenant may elect and peaceably yield up the demised premises,
in broom clean condition but excluding any damage or cleanup caused by or
related to fire, vandalism, riot, terrorism, acts of God, earthquake, war,
insurrection, wind, rain, flooding, weather and the like or other casualty or
any other insured claims and any damage caused by eminent domain. Tenant shall
repair any injury done to the demised premises by the installation by Tenant
following the date hereof of Tenant's machinery or equipment or the removal by
Tenant of the Tenant's machinery or equipment (whether or not initially
installed by Tenant).
Section 4. The Tenant shall have the right at its expense to make
non-structural alterations to the interior of the demised premises but if the
cost of any such alteration shall exceed $50,000.00 in the aggregate then Tenant
shall only perform the same after obtaining the prior written approval of
Landlord which approval will not be unreasonably withheld or delayed. Tenant
will, within 15 days after Tenant has notice of the filing thereof, remove, by
bonding or otherwise, any mechanic's lien filed against the premises for work
performed by Tenant, its agents, contractors and subcontractors. Upon expiration
or termination of the Term, any renovations or improvements to the Building made
by Tenant shall inure to the benefit of
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Landlord who shall retain ownership and title to such renovations and
improvements.
Section 5. Any trade fixtures, furniture and equipment owned by the Tenant
shall remain the property of the Tenant and may, subject to Tenant's repair
obligations set forth in Section 3 of this Article VI be removed by the Tenant
from the demised premises prior to the expiration or earlier termination of this
lease. In the event Tenant fails to remove said fixtures, furniture and/or
equipment prior to the expiration or earlier termination of this Lease, and such
failure continues for more than thirty (30) days after written notice received
by Tenant, they shall be deemed abandoned and may be disposed of by Landlord in
any way it sees fit at Landlord's sole cost and expense (and the proceeds
thereof may, in such case, be retained by Landlord).
ARTICLE VII
Utilities
Upon commencement of this Lease, Landlord and Tenant shall cooperate so
that all utilities will be billed directly to Tenant by the appropriate utility
company. Tenant shall pay when due all charges for utility services provided to
the demised premises during the Term hereof (but not for any period subsequent
to any termination of this Lease or prior to the commencement of the Term)
including, without limitation, electricity, gas, water, telephone, and the cost
of fuel to heat or air-condition the demised premises.
ARTICLE VIII
Liability Insurance
Section 1. Tenant agrees to maintain in full force during the Term (but not
for any period subsequent to expiration or earlier termination of the Term) a
policy of comprehensive liability and property damage insurance under which the
Landlord (and such other persons as are in privity of estate with Landlord as
may be set out in a notice from Landlord from time to time), Landlord's
mortgagee (as specified by Landlord in a written notice to Tenant) and Tenant
are named as insured. A duplicate original of a certificate of such insurance
shall be delivered to Landlord. The minimum limits of liability of such
insurance shall be Three Million and No/100ths ($3,000,000.00) Dollars for
injury (or death) to any one person and One Million and No/100ths
($1,000,000.00) Dollars with respect to damage to property.
ARTICLE IX
Insurance on Tenant's Property
Section 1. The Tenant shall, at its own expense (and in addition to its
other obligations to maintain insurance under Section 4 of Article III and under
Article VIII), maintain so called "all risk" insurance of adequate amounts with
respect to its own fixtures, merchandise, equipment and other property contained
in the demised premises.
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ARTICLE X
Signs
Tenant shall have the right to install, at its expense, any and all signs
which it may require in connection with its use of the Premises or the business
operations thereon so long as such signage and the installation thereof complies
with applicable law. Upon expiration or earlier termination of the Term, Tenant
shall remove any signage installed by Tenant and repair any damage caused by
such installation or removal. In addition, Tenant may, at its expense, remove
any and all existing signs located at or serving the Premises and in such case
Tenant shall take appropriate action to repair any damage caused by such
removal.
ARTICLE XI
Assignment
The Tenant shall not assign this lease or sublet all or any part of the
premises without the prior written consent of Landlord. Notwithstanding the
foregoing to the contrary, Tenant may assign this lease upon written notice to
Landlord but without Landlord's prior written consent to a "Permitted Assignee"
and/or a "Lender" (as said terms are hereinafter defined) and may also grant
collateral assignments and security interests in this Lease to a Lender without
prior written notice to Landlord. Landlord shall, subject to Section 8 of
Article XXII, have the right to freely assign its interest in their Lease. As
used herein, the term "Permitted Assignee" shall mean (a) any corporation,
partnership, limited partnership, limited liability company, trust or other
entity which is either owned or controlled, directly or indirectly, through one
or more intermediaries, or otherwise, by any person or entity which, directly or
indirectly, through one or more intermediaries, or otherwise, owns at least 33%
or more of the stock, equity or other indicia of ownership of Tenant as of the
date of this Lease and (b) any corporation, partnership, limited partnership,
limited liability company, trust or other entity which acquires all or
substantially all of the assets and business of the Tenant located at the
Premises. As used herein, the term "Lender" shall mean any bank, trust company,
savings bank, savings and loan association, insurance company, college or
university, pension or retirement fund, credit company or other company
regularly engaged in the business of lending which, in fact, makes a loan to
Tenant or any affiliate of Tenant secured, in whole or in part, by Tenant's
interest under this Lease. No such Lender shall, by virtue of accepting a
collateral assignment or security interest under this Lease ever assume or
become liable for performance of any obligations under this Lease. Upon request
of any such Lender, Landlord will execute such instruments as such Lender may
require in order to confirm that Landlord releases any claims which it may have
in and to any furniture, fixtures, equipment, inventory and other items of
personal property owned by Tenant as well as any accounts receivable, cash or
other assets in which a security interest has been granted to such Lender and
providing the Lender normal and customary rights of entry upon the Premises for
the purpose of perfecting and realizing upon its security interest in and to any
such assets, in each case, in such form and content as Tenant's Lender may
require consistent with normal and reasonable practice.
In the instance of assignment of this Lease to a Permitted Assignee, the
Permitted Assignee shall execute a written agreement assuming all obligations of
Tenant under the Lease
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arising from and after the date of such assignment but Tenant shall in any event
remain fully responsible for performance of this Lease.
ARTICLE XII
Estoppel Letters
Section 1. Tenant will upon request by Landlord or any Mortgagee of the
premises, from time to time execute and deliver to such party (a) an "Estoppel
Letter", so-called in form satisfactory to such party and/or (b) a copy of every
notice of default delivered by Tenant to Landlord at the same time and in the
same manner as to Landlord and/or (c) an agreement consenting to an assignment
of this lease to such party and acknowledging such assignment.
Section 2. Landlord will, upon request by Tenant or any of Tenant's
Lenders, from time to time, execute and deliver to such party (a) an estoppel
letter, so called in form reasonably satisfactory to Landlord and such party and
(b) a copy of every notice of default delivered by Landlord to Tenant at the
same time, in same manner as to Tenant and (c) if requested by Lender or
Tenant's Lender, an agreement consenting to an assignment of this Lease and/or
the granting of a security interest in this Lease to such party and
acknowledging such assignment and (d) an agreement permitting such Lender of
Tenant to enter upon the premises to conduct a sale and/or removal of all of the
property, machinery and equipment owned by Tenant and located thereon, and
releasing and waiving any right to assert a lien or claim against any such
property, machinery and equipment and any other assets of Tenant in which the
Tenant's Lender may, from time to time, hold a security interest, and containing
such other terms and provisions as Tenant's Lender may require, all in form and
substance reasonably satisfactory to the Tenant's Lender.
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ARTICLE XIII
Existing Warranties and Service Contracts; Tenant's Rights of Self Help;
Offset and Termination
Section 1. Existing Warranties. Landlord shall provide Tenant the benefit
of all warranties and service contracts which are available to Landlord under or
in connection with the premises, including, without limitation, the roof, the
foundations and any machinery and equipment located thereon and all systems
included therein, including, without limitation, all HVAC, mechanical,
electrical and plumbing systems. Landlord hereby grants Tenant the right to
enforce in the name of and on behalf of Landlord all warranties (and those
service contracts as are designated by Tenant in writing) in any way affecting
or benefitting the premises and/or the Building or any part thereof or any
mechanical, electrical, HVAC, roof or other system therein including, without
limitation, those warranties and service contracts set forth in Exhibit E
attached hereto.
Section 2. Tenant's Self Help. If (a) the premises or any part thereof,
including, without limitation, the Building, or the use and operation thereof
for the permitted uses, do not comply in all material respects with all laws,
ordinances, rules and regulations applicable thereto, including without
limitation, all zoning, subdivision, environmental, wetlands, building and
handicapped accessibility laws, rules and ordinances and notice of such
noncompliance is given to Tenant by any governmental authority, board,
commission, department of the City of New Bedford, the Commonwealth of
Massachusetts or the United States of America or any other governmental body,
authority, board, commission, department or the like (collectively a "Law
Violation Notice", provided however that the term Law Violation shall not
include a notice of noncompliance with any such laws, ordinances, rules and
regulations to the extent that such noncompliance is based on Tenant's
particular manner of use of the premises as opposed to use generally) or (b)
Landlord shall fail to perform, observe and comply with its obligations under
Section 2 of Article III, Section 2 of Article VI of this Lease or Article XXI
of this Lease or Section 2 of Article XXII of this Lease (collectively a
"Landlord Default") or (c) if (other than as a result of the acts of Tenant) any
Hazardous Materials (as said term is hereinafter defined) are present on or are
discharged or released onto or from the premises or exist on the premises (i) at
levels or in concentrations which equal or exceed the minimum reportable levels
or concentrations under the applicable Environmental Laws (as said term is
hereinafter defined) or (ii) in violation of applicable Environmental Laws, or
there is a threat of any of the foregoing (collectively, a "Release"), then, and
in any such event (in addition to all other rights which Tenant may have on
account thereof) Tenant shall have the following rights, all of which shall be
cumulative and not separate (and prior to or concurrently with the exercise of
any such rights, or as soon thereafter as is reasonable under the circumstances,
Tenant shall give Landlord (and the holder of any first mortgage of Landlord's
interest in the Premises from whom Tenant has received written notice requesting
that notices sent to Landlord under this Section 2 of Article XIII likewise be
sent to such mortgagee and setting forth the address, telephone number and fax
number of such mortgagee) notice of the applicable Law Violation Notice,
Landlord Default and/or Release of Hazardous Materials:
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(1) Tenant may, at its sole and exclusive option (but without any
obligation to do so) and without waiving any claim which it may have for
breach of agreement, at any time thereafter, attempt to cure such Law
Violation Notice and/or Landlord Default and/or undertake to remediate any
such Release of Hazardous Materials, and any amount (a "Cure Amount") paid
by Tenant in so doing shall be deemed paid for the account of Landlord and
Landlord shall pay all such Cure Amounts together with interest on such
Cure Amount (but only on the portion, if any, of such Cure Amount which
exceeds the Aggregate Offset Amount (as said term is hereinafter defined)
at ten (10%) percent per annum to Tenant upon demand and in addition to the
extent any such Cure Amounts are not paid by Landlord to Tenant within five
(5) days after notice thereof, Tenant shall have the right to offset and
deduct against the annual base rent and other sums payable under this Lease
(i) any and all such Cure Amounts so paid by Tenant together with interest
on such Cure Amount (but only on the portion, if any, of such Cure Amount
which exceeds the Aggregate Offset Amount) at the rate of ten (10%) percent
per annum and (ii) any damages which Tenant may suffer on account of the
existence or occurrence of any such matters including, without limitation,
lost revenues and lost profits, but excluding other consequential and
indirect damages and excluding punitive damages (provided however that the
maximum aggregate amount which Tenant may offset and deduct under the
foregoing clauses (i) and (ii) shall not exceed One Hundred Thousand
Dollars $100,000 (the "Aggregate Offset Amount") in the aggregate exclusive
however of amounts offset, deducted paid or advanced by Tenant on account
of any Landlord Default under Section 2 of Article III). Notwithstanding
the foregoing, in the event that Landlord fails to pay real estate taxes as
set forth in the last two sentences of Section 2 of Article III, then
Tenant may at its sole option, elect to pay and set off the entire amount
of taxes which Landlord failed to pay as a Cure Amount against the rent due
hereunder if the Tenant reasonably determines that Landlord's failure to
pay such real estate taxes will jeopardize in any manner whatsoever the
Tenant's use and occupancy of the premises or such failure to pay real
estate taxes may expose Tenant to any legal liability for Landlord's
failure to pay such taxes. Before Tenant shall be permitted to pay such tax
amount and offset such amount against rent due hereunder, Tenant shall give
Landlord and Key Bank three business days prior notice, provided however
that, upon giving such notice and the expiration of such three business day
period, nothing shall preclude Tenant from paying such tax and setting off
such paid amount, other than entry of an order by a court of competent
jurisdiction. Nothing contained in this Paragraph (1) shall be deemed to
preclude Landlord from attempting to cure a Law Violation Notice or a
Landlord Default or a Release of Hazardous Materials even though Tenant may
be exercising rights under this Paragraph 1 concurrently therewith (but
this sentence shall not be deemed to create or imply any grace or cure
period for any such Law Violation Notice or Landlord Default or Release of
Hazardous Materials.
(2) in the event of the presence or release of Hazardous Materials at
levels or in concentrations which equal or exceed the minimum reportable levels
or concentrations under applicable Environmental Laws or which violate
applicable Environmental Laws (an "Occurrence") (except for an Occurrence
resulting from an act of Tenant, its agents or invitees) or in the event that as
the result of or in connection with a Law Violation Notice or a Landlord Default
(collectively, all such Occurrences, Law Violation Notices and Landlord Defaults
being hereinafter collectively called "Abatement Events" and each being an
"Abatement Event"), any portion of the premises is rendered untenantable or
unusable by Tenant for its normal business
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operations, then, in addition to all other rights which Tenant may have on
account thereof, Tenant's obligation to pay annual base rent and other sums
under this Lease shall be equitably abated during the period of such
untenantability and also in the event that (i) more than ten (10%) percent of
the Building or the Premises is rendered untenantable or effectively unusable by
Tenant for its business purposes as intended by Tenant on account of any
Abatement Event or due to any leakage in the roof or other parts of the Building
and such untenantability continues for a period in excess of fifteen (15) days
or (ii) the aggregate Cure Amount expended by Tenant equals or exceeds the
Aggregate Offset Amount, Tenant shall also, in addition thereto, have the right,
exercisable by written notice to Landlord at any time thereafter, to terminate
this Lease by giving written notice to Landlord effective as of a date set forth
in such notice. As to Abatement Events occurring prior to the last 60 days of
the Term where less than 25% of the Premises is rendered untenantable or
effectively unusable by Tenant as aforesaid, the 15 day period referred to in
the prior sentence shall be subject to extension for up to an additional 15 days
on account of delays in restoring the premises to full tenantability and use by
Tenant caused by Force Majeure Events (as said term is defined in Section 7 of
Article XXII hereof) so long as Landlord has promptly commenced and diligently
pursues restoration of the premises to full tenantability and use by Tenant.
(3) As used herein, the term "Hazardous Materials" shall mean and
include, without limitation, any material or substance which is (i) petroleum,
(ii) asbestos, (iii) designated as a "hazardous substance" pursuant to Section
311 of the Federal Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33
U.S.C. SS 1321) or listed in SS 307 of the Federal Water Pollution Control Act
(33 U.S.C. SS 1317), (iv) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. SS 6901 et seq.
(42 U.S.C. SS 6903), (v) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. SS 9601 et seq. (42 U.S.C. SS 9601), as amended and regulations
promulgated thereunder, or (vi) defined as "oil" or a "hazardous waste", a
"hazardous substance", a "hazardous material" or a "toxic material" under any
other law, rule or regulation applicable to the Property, including, without
limitation, Chapter 21E of the Massachusetts General Laws, as amended and the
regulations promulgated thereunder. As used herein, the term "Environmental
Laws" shall mean, without limitation, each and every law, rule, order, statute
or regulation described above in this Section, together with (i) any amendments
thereto, or regulations promulgated thereunder and (ii) any other laws
pertaining to the protection of the environment or governing the use, release,
storage, generation or disposal of Hazardous Materials, whether now existing or
hereafter enacted or promulgated.
(4) The provisions of Section 7 of Article XXII of this Lease shall
not apply to any interpretation as to whether a Landlord Default has occurred
and (except as otherwise expressly provided in the last sentence of Subsection
(2) of Section 2) shall not apply to this Article XIII or so as to extend any
time period set forth in this Article XIII or so as to delay the rights of the
Tenant under this Article XIII.
(5) All rights and remedies which Tenant has under this Article XIII
or elsewhere in this Lease shall be cumulative and not separate and shall not be
deemed inconsistent with each other, and any two or more of such rights and
remedies may be exercised at the same time. The exercise by Tenant of any of its
rights and remedies under this Article XIII or elsewhere in this Lease shall not
require an order of the Bankruptcy Court (as said term is hereinafter defined)
pursuant to Section 362 of the Bankruptcy Code (as said term is hereinafter
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defined) or otherwise.
(6) If Tenant shall commence to attempt to cure a Law Violation
Notice, a Landlord Default or a Release of Hazardous Materials, Tenant shall
have the right to, at any time thereafter to cease such attempt without
liability or obligation to Landlord.
(7) If there should be any dispute between Landlord and Tenant, or
any uncertainty, as to whether a Law Violation Notice, Landlord Default or
Release of Hazardous Materials has occurred or whether an Abatement Event has
occurred or whether Tenant has rightfully exercised any right of offset,
deduction, abatement or termination under this Article XIII or as to the amount
of any such offset, deduction or abatement claimed by Tenant, Tenant shall have
the right (but not the obligation) without prejudice to any of its other rights
and remedies under this Article XIII to pay all amounts which are subject to
such dispute or uncertainty into escrow with Fidelity National Title Insurance
Company or any other national title insurance company selected by Tenant pending
the outcome of such disputes and/or uncertainty and in doing so shall be deemed
to be fully protected under this Lease to the same extent as if any amounts so
paid into escrow were amounts which Tenant had properly offset, deducted or
abated under this Article XIII.
ARTICLE XIV
Waiver of Subrogation
Landlord and Tenant each hereby releases the other from any and all
liability or responsibility to the other (or anyone claiming through or under
them by way of subrogation or otherwise) for any loss or damage to the demised
premises or property thereon against which the waiving party is protected by
insurance (but only to the extent of coverage provided by the applicable policy
of insurance), even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such time
as the releasor's policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair said policies or
prejudice the right of the releasor to recover thereunder. Landlord and Tenant
each hereby agree that it shall cause such a clause or endorsement to be
included in its insurance policies with respect to the demised premises, if
available, and, if necessary, pay an additional premium that may be charged
therefore.
ARTICLE XV
Damage by Fire, Etc.
Section 1. If the demised premises or the Building or any part thereof
shall be damaged or destroyed by fire, windstorm, terrorism or any other
casualty or any other cause which is an insured peril under any so-called "all
risk" policy of insurance or any policy carried by Tenant
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under Article III hereof, the Tenant shall give notice thereof to the Landlord
and unless this Lease is terminated as hereinafter provided, the Landlord, shall
(to the extent of insurance proceeds paid with respect to such fire, casualty or
other insured peril) within 60 days after the date of such damage or destruction
repair or rebuild the same so as to restore the demised premises (including the
Building but not including any of the personal property, machinery and equipment
owned by Tenant) to substantially the same condition they were in immediately
prior to such damage or destruction, provided that the Landlord shall not be
responsible for any delay in such repair or reconstruction which may result from
any cause beyond its reasonable control. Landlord shall not be liable to Tenant
for damages (including, without limitation, damage to Tenant's business or
specific performance) for failure of Landlord to restore. In the case of any
such restoration by Landlord (and provided that Tenant does not exercise any
right in this Article XV to terminate the Lease, Tenant shall bear the cost of
any deductibles under its insurance applicable to such restoration.
Section 2. If the Building located on the Land shall be damaged or
destroyed to the extent of forty four (44%) percent or more on a square footage
basis by any cause, the Landlord may elect by written notice to Tenant either to
terminate this lease or to repair or rebuild the same. If (a) damage to the
Building or Premises would cost more than $50,000.00 to repair or take more than
thirty (30) days to repair, or (b) if any such repair or restoration is not
completed within sixty (60) days after the date of any such fire, casualty or
other damage or cannot, in Tenant's sole judgment, be completed, or (c) if any
utility system serving the Premises was damaged and could not be used for the
purpose intended for more than twenty (20) days, or (d) all reasonable means of
primary access to the Premises and/or the Building became unavailable for more
than ten (10) days or (e) if the time remaining in the Term at the time of any
such damage or casualty is ninety (90) days or less or the time remaining in the
Term after deducting Tenant's estimate of the time needed to restore the
premises is less than sixty (60) days, then, in any such event, Tenant shall
have the right to terminate this Lease by written notice to Landlord effective
as of the date set forth in such notice (and, in the event of any failure of
Landlord to complete restoration of the premises, within the sixty (60) day
period set forth in clause (b) of this sentence, Landlord shall not be liable to
Tenant for damages, including, without limitation, damages to Tenant's business
for any such failure to restore or specific performance).
Section 3. If this Lease is not terminated as above provided, then, from
and after such damage and until (a) demised premises are restored as above
provided the rent reserved hereunder and all taxes, insurance and other sums
payable by Tenant hereunder shall equitably xxxxx either wholly or
proportionately according to the nature and extent of the injury and
interference with Tenant's ability to use the demised premises in whole or in
part and (b) a reasonable period has elapsed following such restoration as is
sufficient to permit Tenant to repair and/or install all damaged equipment and
machinery affected by such damage or restoration.
ARTICLE XVI
Eminent Domain
Section 1. If, as a result of any taking by eminent domain, which shall
be deemed to include a voluntary conveyance in lieu of a taking, the total floor
area remaining in the demised premises shall be reduced to less than fifty (50%)
percent of the total floor area in the demised premises at the commencement of
the term hereof, then at the election of the Landlord, exercisable by written
notice given to the Tenant within ninety (90) days after the date of the filing
of the notice of such taking this lease may be terminated as of the date when
the Tenant is required to vacate the demised premises or the portion thereof so
taken notwithstanding that the
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entire interest of the Landlord may have been divested by such taking, and if
following any such taking the Landlord does not terminate this lease and
provided Tenant does not terminate this Lease under Section 2 hereof, then the
Landlord, at the Landlord's expense, but only to the extent of the award
actually received by the Landlord for any such taking (subject to the rights of
any first mortgagee of the demised premises) and proceeding with all reasonable
dispatch shall do such work as may be required to put what may remain of the
demised premises in proper condition for the conduct of the Tenant's business
(but if Landlord fails to perform such work, Landlord shall have no liability to
Tenant for damages, including, without limitation, damages to Tenant's business
on account thereof nor shall Landlord be subject to specific performance on
account thereof. From and after the date on which the Tenant is required to
vacate the portion of the demised premises so taken, a just proportion of the
rent reserved herein according to the nature and extent of the taking of the
demised premises shall be abated until the demised premises are restored to such
condition that the Tenant can commence business therein and from and after the
date on which the Landlord shall restore the demised premises in the manner
above provided the rent shall be reduced in the proportion that the floor area
of the portion of the demised premises so taken bears to the floor area of the
demised premises at the commencement of the term hereof.
Section 2. In the event of a taking by eminent domain, whether permanent or
temporary, (a) any means of access to the premises is taken which (i) leaves
Tenant only with alternative means of access thereto which interferes with the
operation of Tenant's business on the premises or (ii) in the case where such
alternative means of access do not interfere with the operation of Tenant's
business on the premises, such alternative means of access is not acceptable to
Tenant in its reasonable discretion or (b) any part of the Building is taken or
(c) any part of the paved areas of the surface of the Land, are taken, then, and
in any such event, Tenant shall have the right to terminate this Lease by
notifying the Landlord of Tenant's election to terminate at any time thereafter
by giving written notice to Landlord stating the date when such termination
shall be effective.
Section 3. The Landlord reserves and excepts all rights to damages to the
Land, the Building, the demised premises and the leasehold hereby created by
reason of any taking by eminent domain or by reason of anything lawfully done or
required by any public authority, and the Tenant grants to the Landlord all the
Tenant's rights, if any, to such damages except with respect to the value of its
personal property, fixtures, equipment, damage to business, moving expense and
relocation expenses but such claims shall, if they otherwise diminish the award
paid to Landlord, be subordinate to the award payable to the Landlord hereunder.
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ARTICLE XVII
Default
Section 1. This lease is made on the condition that if the Tenant shall
fail to perform any obligation hereunder and such failure shall continue for ten
(10) days after written notice in payment of annual base rent, additional rent,
or in payment of any other sums due under this lease or for twenty five (25)
days after written notice of default in the case of any other obligation (or, if
said default cannot reasonably be expected to be cured within such twenty five
(25) day period, Tenant shall not within such twenty five (25) day period
promptly commence to cure such default and thereafter prosecute the curing of
such default to completion with due diligence) or if the estate hereby created
shall be taken on execution or other process of law, or if the Tenant shall be
declared bankrupt or insolvent according to law, or if the Tenant shall make or
offer to make, in or out of bankruptcy, a composition with the Tenant's
creditors, or if the Tenant shall make an assignment for the benefit of its
creditors, as if the Tenant shall commit any act of bankruptcy, or if a
receiver, trustee or other officer shall be appointed to take charge of all or
any substantial part of the Tenant's property by a court, or if a petition shall
be filed by or against the Tenant (except for a filing against Tenant by
Landlord or at the request of Landlord) for the reorganization of the Tenant or
for an "arrangement" under the Bankruptcy Code or under any other provisions of
the Bankruptcy Code or any successor or similar State or Federal statute or
regulation now or hereafter in effect, and the same, if filed against but not by
Tenant, shall not be dismissed within ninety (90) days after the date on which
it is filed, then and in any of the said cases, notwithstanding any prior
waivers or consent the Landlord lawfully may, in addition to and not in
derogation of any remedies for any preceding breach of covenant, immediately or
at any time thereafter and without prior demand or prior notice (1) terminate
this lease by notice in writing forthwith, or on a date stated in said notice,
(2) with process of law, enter into and upon the demised premises or any part
thereof in the name of the whole and repossess the same as of the Landlord's
former estate, and (3) expel the Tenant and those claiming through or under the
Tenant and remove its and their effects without being deemed guilty of any
manner of trespass and without prejudice to any remedies which might otherwise
be used for arrears of rent or preceding breach of covenant, and upon entry as
aforesaid this lease shall terminate; and in case of such termination or
termination by reason of default on the part of the Tenant, the Tenant shall pay
to the Landlord (i) all arrearages of annual base rent and other amounts
outstanding and (ii) in equal monthly installments, in advance (on the same days
when monthly installments on account of annual base rent are due and payable),
sums equal to each monthly installment of annual base rent herein provided for
or, if the demised premises have been relet, sums equal to the excess of the
annual base rent herein provided for over the sums actually received by the
Landlord from such reletting as well as any reasonable expenses incurred by the
Landlord as a consequence of such default or in such reletting including for
reasonable attorneys' fees and brokers' fees. Such sums being payable as
liquidated damages for the unexpired term hereof.
Section 2. All rights and remedies which the Landlord may have under this
lease shall be cumulative and shall not be deemed inconsistent with each other,
and any two or more of such rights and remedies may be exercised at the same
time insofar as permitted by law.
ARTICLE XVIII
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Notices
Any notice, request, demand or other communication required or permitted by
this lease shall, until either party notifies the other in writing of a
different address in accordance herewith, be deemed to be duly given if in
writing and sent by registered or certified first class mail, postage prepaid,
return receipt requested or by national overnight delivery service addressed as
follows:
If to Landlord, addressed to the Landlord:
x/x Xxxxxx & Xxxx, X.X.
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
With a copy to:
Key Bank
___________________
___________________
If to the Tenant:
At the address of Tenant set forth
in the Preamble to this Lease
ARTICLE XIX
Brokerage
Landlord and Tenant each warrants and represents to the other that it has
not dealt with any broker in connection with this lease or the demised premises
and each agrees to defend, indemnify and hold the other harmless from and
against any and all claims (including, without limitation, attorneys fees and
costs) for brokerage fees and commissions (except with respect to the above
named broker) by any broker claiming to have dealt with it in connection with
this lease.
ARTICLE XX
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Administrative Claims
Landlord agrees that each of the obligations of Landlord to Tenant under
this Lease and any damage claims therefor will (except to the extent the same
have been offset or deducted against rent or have been included as part of a
rent abatement by Tenant under Article XIII) constitute administrative claims in
the Landlord's Bankruptcy Case. As used in this Lease, (i) the term "Landlord's
Bankruptcy Case" shall mean the bankruptcy case under Chapter 11 of the
Bankruptcy Code involving Landlord (Case No. 01-14680, D. Mass.) and any related
proceeding; (ii) the term "Bankruptcy Court" shall mean the United States
Bankruptcy Court for the District of Massachusetts and (iii) the term
"Bankruptcy Code" shall mean 11 U.S.C. Section 101 et seq., as amended.
ARTICLE XXI
Master Lease, Sublease and SubSublease
Reference is made to that certain Lease (the "Master Lease") dated December
22, 1999 between the City of New Bedford (the "City"), as Lessor, and the New
Bedford Redevelopment Authority (the "Authority"), as Lessee, a copy of which is
attached hereto as Exhibit C, and that certain Sub-Lease (the "Sublease") dated
January 4, 2000 between the Authority, as sub-lessor and Landlord hereunder, as
sub-lessee, a copy of which is attached hereto as Exhibit D. Although this Lease
constitutes a sub-sublease under the Master Lease and Sublease, Tenant shall not
be bound by nor does Tenant agree to perform any of the terms, covenants and
conditions of the Master Lease or Sublease. The Tenant shall also have the
benefit of any and all applicable court orders and/or judgments issued by the
Bankruptcy Court in connection with Landlord's presently existing Bankruptcy
Case as and to the extent the same, directly or indirectly, relate to this Lease
or the use and occupancy of the premises by Tenant.
Landlord covenants and agrees not to amend, modify or terminate the Master
Lease or Sublease or accept any termination thereof without the prior written
consent of the Tenant. Subject to the requirements of the Bankruptcy Court in
connection with the Landlord's Bankruptcy Case, Landlord further agrees to fully
perform and comply with its obligations under the Sublease and shall cause the
Authority to observe, perform and comply with the Sublease. Subject to the
requirements of the Bankruptcy Court in connection with the Landlord's
Bankruptcy Case, Landlord shall use reasonable efforts to cause the Authority to
comply with its obligations under the Master Lease and shall use reasonable
efforts to restrict the Authority and the City from amending, modifying or
terminating the Master Lease without the prior written consent of Tenant.
Landlord further agrees that it will not reject, disaffirm or otherwise cancel
or terminate the Sublease or Master Lease under applicable bankruptcy or
insolvency laws or in connection with its pending Bankruptcy Case or otherwise.
Landlord will promptly provide Tenant with copies of all notices and
correspondence sent by or on behalf of Landlord, or received by or on behalf of
Landlord, under (i) the Master Lease, (ii) the Sublease and (iii) that certain
Tax Increment Financing Agreement (the "TIF Agreement") dated September 9, 1999
between the City and Landlord as well as copies of all real estate tax bills and
notices relating to real estate taxes on the premises.
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ARTICLE XXII
Miscellaneous Provisions
Section 1. No consent or waiver, express or implied, by the Landlord to or
of any breach in the performance by the Tenant of its agreements hereunder shall
be construed as a consent or waiver to or of any other breach in the performance
by the Tenant of the same or any other covenant or agreement. No acceptance by
the Landlord of any rent or other payment hereunder, even with the knowledge of
any such breach, shall be deemed a waiver thereof nor shall any acceptance of
rent or other such payment in a lesser amount than is herein required to be paid
by the Tenant regardless of any endorsement on any check or any statement in any
letter accompanying the payment of the same, be construed as an accord and
satisfaction or in any manner other than as a payment on account by the Tenant.
Section 2. Landlord agrees that upon Tenant's paying the rent and
performing and observing the agreements conditions and other provisions on its
part to be performed and observed, Tenant shall and may peaceably and quietly
have, hold and enjoy the demised premises during the term of this lease and any
extension thereof without any manner of hindrance or molestation by anyone
(including, without limitation, the City and Authority irrespective of any
termination or other action under or in connection with the Master Lease or
Sublease). Notwithstanding the foregoing, Landlord (and its officers, employees
and agents) and its creditors shall be permitted to have access to show, view
and inspect the premises at reasonable times and upon reasonable prior notice to
Tenant provided that they do not interfere with use or operations at the
premises.
Section 3. The conditions and agreements in this lease contained to be kept
and performed by the parties hereto shall be binding upon and inure to the
benefit of said respective parties, their legal representatives, successors and
assigns (subject, however, to Article XI hereof, in the case of assignee's of
Tenant). Wherever in this lease reference is made to either of the parties, it
shall be held to include and apply to the successors and assigns of such party
as if in each case so expressed, unless the context requires otherwise and
regardless of the number or gender of such party.
Section 4. This lease shall constitute the only agreement between the
parties relative to the demised premises and no oral statements and no prior
written matter not specifically incorporated herein shall be of any force or
effect. In entering into this lease, the Tenant relies solely upon the
representations and agreements contained herein. This agreement shall not be
modified (nor shall any provision be deemed waived) except by a writing executed
by both parties.
Section 5. The section and article headings throughout this instrument are
for convenience and reference only and shall in no way be held to limit, define
or describe the scope or intent of this lease or in any way affect this lease.
Section 6. This Lease shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts without regard to
its conflicts of laws provisions and the Landlord's Bankruptcy Court shall have
sole and exclusive jurisdiction over matters arising under or relating to this
Lease so long as Landlord's Bankruptcy Case is
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continuing.
Section 7. In any case where either party hereto is required to do any act,
delays caused by or resulting from Acts of God, war, civil commotion, fire,
flood or other casualty, unusually severe weather, or other causes beyond such
party's reasonable control shall not be counted in determining the time for
performance hereunder, whether such time be designated by a fixed date, a fixed
time or "a reasonable time", and such time shall be deemed to be extended by the
period of such delay, provided, however, that this provision shall not apply to
Articles XIII (except as otherwise expressly provided in the last sentence of
Subsection (2) of Section 2 thereof), XV, XVI or XXI of this Lease nor Section 2
of Article XXII.
Section 8. Landlord shall not sell, lease or otherwise transfer or assign
the premises, this Lease nor any rights, interests or obligations hereunder,
whether absolutely, as collateral security or otherwise unless the purchaser,
lessee, transferee, assignee or other party first expressly agrees to assume all
obligations of Landlord under this Lease and agrees to recognize and comply with
all of the terms of this Lease and all of Tenant's rights hereunder and enters
into a direct agreement with Tenant in conformance with the foregoing, all in
form and substance reasonably acceptable to Tenant.
Section 9. This Lease may be executed in multiple counterparts, each of
which shall be deemed an original and when taken together shall constitute one
and the same instrument.
Section 10. Landlord represents and warrants to Tenant that the only
mortgage which is outstanding upon the Landlord's interest in the premises is
the First Leasehold Mortgage, Security Agreement, and Assignment of Lease and
Rents and Financing Statement (the "First Mortgage") from Landlord to Key Bank
dated February 29, 2000 recorded in the Bristol County Registry of Deeds in Book
4360 Page 166. Landlord agrees that upon execution and delivery of this Lease,
Landlord will simultaneously deliver to Tenant the Subordination,
Non-Disturbance and Attornment Agreement (The "SNDA") in the form attached
hereto as Exhibit F, which shall have been fully executed by both Landlord and
the holder of the First Mortgage, namely Key Bank. Tenant agrees that it will
execute and deliver to Key Bank a fully executed counterpart of the SNDA. Upon
request, from time to time, Tenant will also execute and deliver in favor of any
other holder a first mortgage upon the Landlord's interest in the premises, a
subordination, non-disturbance and attornment agreement in the form of the SNDA
attached hereto as Exhibit F with such changes thereto as such first mortgagee
requests provided that such changes have first been approved by Tenant.
ARTICLE XXIII
List of Exhibits
Section 1: Exhibit A - Land
Exhibit B - Plan of demised premises
Exhibit C - Master Lease
Exhibit D - Sublease
Exhibit E - List of Warranties and Service Contracts
Exhibit F - SNDA
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EXECUTED under seal as of the day and year first above written.
LANDLORD:
AEROVOX INCORPORATED
________________________ /s/ XXXXXX X. XXXXXXX
Witness -----------------------------------
___________________________________
TENANT:
PARALLAX POWER
COMPONENTS, LLC
________________________ /s/ XXXXXX X. XXXXXXX
Witness -----------------------------------
___________________________________
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