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EXHIBIT 10.6
LEASE
VECTRON TECHNOLOGY, INC., a Delaware corporation with an address of 000
Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx, (hereinafter, the "Landlord"), hereby leases
to Methuen Acquisition Corporation, a Massachusetts corporation, with an address
of 000 Xxxxxxxxx Xx, Xxxxxxx XX 00000 (hereinafter the "Tenant") and Tenant
hereby leases from Landlord the Premises on the following terms and conditions:
1. PREMISES:
That portion of the building situated on Lot 37/Map 7 (the "Building")
as shown on Hillsborough County Registry of Deeds Plan #21758 in Hudson, New
Hampshire (the "Property") hatch-marked in red on the plan attached hereto as
Exhibit A, and consisting of approximately 31,400 square feet (the "Premises");
together with the right to use in common with Landlord and others entitled
thereto the common driveways, walkways and grounds necessary for pedestrian and
vehicular access to the Premises and the right to use in common with others
entitled thereto the common lavatories and corridors in the Building except as
they shall be marked for the exclusive use of Tenant on Exhibit A; together with
the right to park a total of ninety nine (99) vehicles in striped but
non-assigned parking spaces in the following areas: Twelve (12) parking spaces
adjacent to the tenant's proposed main entrance to the Premises, Twelve (12)
parking spaces adjacent to the employee entrance to the Premises; and
Seventy-Five (75) parking spaces in the upper parking lot on the Property; and
together with the right to use one bay of the two-bay loading dock located at
the northwestern corner of the Building.
2. TERM:
Tenant shall have and hold the Premises for a term of five (5) years
which term shall commence on April 1, 1999 (the "Commencement Date") and shall
end on April 1, 2004 (the "Term"), unless such Term shall be sooner terminated
as hereinafter provided. Notwithstanding the foregoing, Landlord shall provide
Tenant access to the Premises prior to the Commencement Date and beginning on
February 1, 1999 on a base rent-free basis for the purpose of Tenant's
effectuating Tenant's Work as defined and provided in Paragraph 8 hereof;
provided, however, that Tenant shall : a) be responsible for ( and shall pay to
Landlord promptly upon receipt of an invoice for same) Additional Rent payable
by Tenant to Landlord as provided in Paragraph 7 hereof during the access period
prior to the Commencement Date, and 2) comply with all other provisions of this
lease during such period.
3. OPTIONS TO EXTEND:
There are no express options to renew or extend hereunder. Without
obligating the Landlord to renew or extend hereunder, on or about twelve (12)
months prior to the lease expiration date, upon the request of Tenant, Landlord
shall advise Tenant of the availability of all or a portion of the Premises for
future lease.
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4. BASE RENT:
A. For Lease Year One of the Term (as hereinafter defined),
Tenant shall pay an annual base rent of One Hundred Fifty Seven Thousand Dollars
in equal monthly installments of Thirteen Thousand Eighty-Three and 34/100
Dollars ($13,083.34), without offset or deduction except as expressly set forth
in this Lease, to Landlord at 000 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx prior to or
on the first (1st) day of the Term and on the fifteenth (15th) day of each month
thereafter (with the rent for any fraction of a 30/31 day month to be prorated).
For purposes of this Lease, "Lease Year One" shall mean the period from April 1,
1999 through April 1, 2000; thereafter, "Lease Year" shall refer to each
successive twelve (12) month period.
B. For lease year Two of the term, tenant shall pay an annual
base rent of One hundred Seventy Two Thousand Seven Hundred Dollars in equal
monthly installments of Fourteen Thousand Three Hundred Ninety One and 67/100
Dollars ($14,391.67) without offset or deduction except as expressly set forth
in this Lease to Landlord on the same basis as provided in paragraph A above.
C. For Lease Years Three through Five of the Term, inclusive,
the annual base rent shall be re-computed annually effective on each one year
anniversary date of the Commencement Date and shall be an amount determined by
multiplying the annual base rent for the preceding Lease Year by a fraction, the
numerator of which shall be the Consumer Price Index (as hereinafter defined)
for the last complete month prior to the expiration of such preceding Lease
Year, and the denominator of which shall be the Consumer Price Index for the
month prior to the month in which the preceding Lease Year began; provided,
however, that if such fraction results in a number which is less than one, the
base rent will not be decreased in any given Lease Year. As used herein, the
term "Consumer Price Index" shall mean (i) the Consumer Price Index for all
Urban Consumers - (CPI - U) - U.S. City (All Cities) Average All Items (1982 -
1984 =100) published by the Bureau of Labor Statistics of the United States
Department of Labor, or (ii) if the publication of such Consumers' Price Index
shall be discontinued, the comparable index most clearly reflecting diminution
of the real value of the annual base rent herein provided for. In the event of a
change in the base for the Price Index, the numerator and denominator of the
fraction referred to above shall be appropriately adjusted to reflect continued
use of the 1982-1984 base of the Consumers' Price Index or in the case of such
comparable index, the continued use of the base period in effect at the time of
its adoption for use hereunder.
A late payment penalty of five (5%) percent of the rent owed shall be
assessed on any rent not paid within five (5) days when due.
5. SECURITY DEPOSIT:
Concurrent with the execution of this lease, Tenant has delivered to
Landlord the sum of Fourteen Thousand Three Hundred Ninety One Dollars and
67/100 Dollars ($14,391.67) which amount shall be held by the Landlord as the
"Security Deposit". The Security Deposit may be
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used by the Landlord to cure any default or breach of Tenant under this Lease,
and to the extent not so used shall be returned to Tenant upon the termination
of this Lease as provided for herein. In no event shall the Security Deposit be
considered prepaid rent.
6. NO PREPAYMENT:
Tenant shall have no right to prepay rent except on Landlord's
authorization.
7. ADDITIONAL RENT:
A. Tenant shall pay to the Landlord as Additional Rent,
Tenant's Share (as hereinafter defined) of the following:
1) Operating Expenses. Common area expenses incurred
by Landlord for the operation, cleaning, maintenance and repair of the Property
and including, without limitation, maintenance of lawn and landscaping, lighting
and snowplowing of all walks, driveways and loading areas of the Building;
2) Real Estate Taxes and Assessments. All real estate
taxes relating to the Premises, all other taxes which may be levied in lieu of
real estate taxes, assessments and other governmental charges or levies, general
and specific, ordinary and extraordinary, unforeseen as well as foreseen, of any
kind and nature, for public improvements which are assessed, levied, confirmed,
or become a lien upon the Premises; and
3) Insurance. The premium charged for fire insurance.
B. Tenant's Share shall be determined by a formula of which
the numerator is the amount of square feet held by the Tenant (31,400) and the
denominator is the total amount of rentable square feet in the building
(121,364), or Twenty-Six Percent (26%) ("Tenant's Share"). Tenant's Share shall
be paid in monthly installments, in amounts estimated from time to time by
Landlord on the first day of each and every calendar month, in advance,
commencing with the Commencement Date.
C. Upon Tenant's request, within sixty (60) days after the end
of each calendar year during the term hereof, Landlord shall furnish to Tenant a
statement, prepared by Landlord, in reasonable detail setting forth the
computation of such Additional Rent; thereupon there shall be a prompt
adjustment between Landlord and Tenant with payment to, or repayment by
Landlord, as the case may require. Tenant shall have the right to inspect
Landlord's books and records relative to such Additional Rent charges during
normal business hours and upon reasonable prior notice.
D. Tenant shall pay such Additional Rent to Landlord,
commencing on the Commencement Date (which amount of Additional Rent may include
any additional amount of Additional Rent owing by Tenant during the period of
access by Tenant prior to the
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Commencement Date for effectuating Tenant's Work) and continuing on the first of
each month thereafter at the time the monthly payment of base rent is due
pursuant to the terms hereof. For Year Lease One, the Tenant's Share of
Additional Rent on a monthly basis is Three Thousand Eight Hundred Fifty and
00/100 Dollars ($3,850.00).
8. TENANT IMPROVEMENTS:
Landlord acknowledges that Tenant intends to perform certain leasehold
improvements to the Premises following the execution of this lease and beginning
on or about January 1, 1999 ("Tenant's Work"). Tenant shall prepare complete
plans and specifications necessary for Tenant's Work, together with a complete
list of equipment to be installed in the Premises by Tenant (collectively
"Tenant's Plans") and Tenant shall submit Tenant's Plans to Landlord for
Landlord's approval. Tenant shall not be permitted to commence Tenant's Work
until such approval is granted. Tenant shall cause Tenant's Work to be performed
in a good and workmanlike and shall complete the work at Tenant's sole cost and
expense.
9. UTILITIES:
This Lease is totally net except as otherwise provided in this Lease.
Landlord shall provide in such capacities as hereinafter set forth and Tenant
shall pay for water/sewer, heat, electricity (including air conditioning), and
gas either by separate meter established for the Premises, when possible, in
which case Tenant shall pay for such service(s) by direct payment to the utility
provider, or by proration, in which case Tenant shall pay Tenant's Share to
Landlord as Additional Rent. In the case of electrical service to the Premises,
Landlord shall provide Tenant with a maximum capacity as follows: 1000 Amps
service, 480 V, 3 phase. Should Tenant require any additional electrical
capacity in excess of the foregoing amounts, Tenant may, subject to the review
and written consent of Landlord, arrange for the provision of increased
electrical capacity to the Premises at Tenant's sole expense. Landlord shall be
entitled to monitor and/or meter all non-separately metered utility functions
and usages on the Premises. In the event that Tenant's usage of any
non-separately metered utility is disproportionately greater than Landlord's
usage, Landlord shall be entitled to install separate meters.
Landlord shall supply reasonable heat, light and air-conditioning to
common areas of the Building at the prorated expense of Tenant in accordance
with Paragraph 7 hereof. All utilities are provided subject to interruption due
to any accident, to the making of repairs, alterations or improvements, to labor
difficulties, to trouble in obtaining fuel, electricity, service or supplies
from the sources from which they are usually obtained for the Building, or to
any cause beyond the Landlord's control. Landlord agrees to use reasonable
efforts to cause the cessation of any such interruption and to the extent
reasonably possible to effect repairs during nonbusiness hours and upon
reasonable notice to Tenant.
Landlord shall not be responsible for procuring or the cost or fees
associated with any sewer, wastewater discharge or any other required permits or
licenses required by Tenant in the conduct of its business on the Premises, all
of which shall be at Tenant's sole cost and expense.
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10. USE OF PREMISES:
Tenant shall use the Premises for electronic manufacturing and other
uses incidental thereto. Tenant shall not permit or suffer the Premises to be
occupied or used for any unlawful, illegal, disreputable or extrahazardous
business, use or purpose, nor in such mariner as to constitute a nuisance.
Tenant shall procure any and all licenses or permits required by state, federal
or local law regulation or authorities in the use of the Premises by Tenant,
including but not limited to, permits or licenses required for air quality,
wastewater, sewer discharge and the like. In its use of the Premises and the
Common Areas, Tenant agrees for itself, its employees, agents and invitees, to
conduct itself in a businesslike manner at all times, consistent with standards
established by the Landlord for the operation of a first class business
operation and to follow and abide by the rules and regulations established by
the Landlord from time to time. With the exception of the right to park and
maintain a tractor-trailer truck at the loading dock bay which has been assigned
to Tenant hereunder, Tenant shall not park, store or maintain any
tractor-trailer trucks, construction vehicles or any other types of commercial
trucks or transports on the Property.
11. FIRE INSURANCE:
Landlord shall procure and Tenant shall pay for (pursuant to Paragraph
7 hereof) such amount of fire and extended coverage insurance of the building in
which the Premises are located in an amount equal to the full replacement value
of the building. Upon Tenant's request, Landlord shall provide to Tenant
evidence of such insurance coverage. Personal property insurance shall be the
responsibility of Tenant, and Landlord shall not be liable to Tenant for loss or
damage from any cause whatsoever to machinery, equipment, appurtenances,
furniture and furnishings, trade fixtures, goods, wares, merchandise, inventory
and other property of Tenant or others in the Premises.
12. LIABILITY INSURANCE:
Tenant shall maintain with respect to the Premises comprehensive public
liability insurance on an occurrence basis in the amount of $2,000,000.00 per
occurrence and $1,000,000.00 per individual in case of personal injury or death
and $500,000.00 in case of loss, destruction or damage to personal property. The
Tenant shall deposit with the Landlord certificates for such insurance at or
prior to the expiration of any such policies. All such insurance certificates
shall provide that such policies shall not be canceled without at least thirty
(30) days prior written notice to each assured therein.
13. MAINTENANCE AND REPAIRS:
Landlord shall keep, at its sole cost and expense, the foundation,
exterior walls, roof, floor slabs and the structural parts of the Building in
good condition and repair throughout the
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term of this Lease. Tenant shall be responsible for the maintenance and repair,
at Tenant's expense, of the floor, coverings, drainage systems, and interior
walls constructed by Tenant on the Premises, and Tenant shall also be
responsible for the general maintenance and repairs of the Premises and all
mechanical, electrical, plumbing and nonmechanical installations and systems
therein (whether or not constructed by Tenant's Landlord) in good condition and
repair, by making repairs to, and performing maintenance of, the Premises as
needed (including plate glass), interior painting and repainting, the repair of
floors and carpets, the keeping of windows and doors watertight and the
maintenance in good operating condition of all plumbing, electrical, heating,
sprinkling, air-conditioning and other utility systems exclusively serving the
Premises, and at the expiration or earlier termination of this Lease for any
cause herein provided shall deliver up the Premises to Landlord in the same
condition and state of repair as they were at the beginning of the term hereof,
or as they may be put during the term, reasonable wear and tear and damage by
casualty and taking by eminent domain excepted. Tenant shall not permit the
Premises to be overlooked, damaged, stripped, or defaced, nor suffer any waste.
Landlord shall maintain such heating, cooling, electrical, plumbing and sewer
installations which do not exclusively serve the Premises, and cause all
existing parking areas, driveways, grounds and walkways to be maintained in good
repair and clean condition, subject to Tenant's obligation to pay its Tenant's
Share in accordance with Paragraph 7 hereof.
14. ALTERATIONS ADDITIONS SIGNS:
A. Except as specified in Tenant's Work and as approved by
Landlord, Tenant shall not make structural or non-structural alterations or
additions to the Premises without the prior written consent of the Landlord
which consent shall not be unreasonably withheld or delayed. All such
alterations shall be at Tenant's expense and shall be in quality at least equal
to the present construction. Tenant shall not permit any mechanics' liens, or
similar liens, to remain upon the Premises for labor and material furnished to
Tenant or claimed to have been furnished to Tenant in connection with work of
any character performed or claimed to have been performed at the direction of
Tenant and shall cause any such lien to be released of record forthwith without
cost to Landlord. Any alterations or improvements made by the Tenant shall, at
the option of the Landlord unless otherwise agreed in writing or otherwise
provided for in this Lease, be removed by Tenant and the Premises restored to
their prior condition by Tenant at its expense or shall become the property of
the Landlord at the termination or occupancy as provided herein. Tenant may,
without Landlord's prior consent, from time to time, and at its own expense,
make such alterations, restorations, changes, replacements, additions or
installations of a nonstructural nature in and to the interior of the Premises,
the cost of which shall not exceed ten thousand dollars ($10,000.00) in each
instance, provided Tenant has first delivered plans and specifications therefor
to Landlord. Within fifteen (15) days after Landlord's receipt of such plans,
Landlord shall advise Tenant in writing of any such work which must be removed
at the expiration or sooner termination of this Lease. If Landlord has not
responded within said fifteen (15) days Tenant shall have no obligation to
remove said work, but may at its option.
B. Tenant shall not affix any sign to any part of the Premises
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Any
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approved sign or signage shall be at Tenant's expense. Tenant's name may appear
on each door immediately servicing the Premises and on the building directory in
the size, style and color first approved in writing by Landlord. Landlord may
remove any sign it has not approved.
15. ENVIRONMENTAL MATTERS:
A. The Tenant represents and warrants that except for: (i) the
use of de minimis quantities of substances or materials which in a nonoffice
setting or in greater quantities or concentrations would otherwise be defined as
Hazardous Materials or Hazardous Wastes; and (ii) the use of certain substances
and materials in the ordinary course of Tenant's electronic assembly business
which are or may be Hazardous Materials or Hazardous Wastes (in which event,
Tenant agrees to comply with all state, federal and local governmental statutes,
ordinances and regulations applicable to the use thereof), Tenant shall not use
the Premises (or any area outside of the Premises in the Building or outside of
the Building on the Property) for the Storage, Treatment or Disposal of
Hazardous Materials or Hazardous Wastes, and hereby certifies that its
operations or other use of the Premises will not involve same. Any spill,
discharge or release in or about the Premises or within the Building or on the
Property caused by Tenant, its employees, agents or invitees, shall be the sole
and exclusive responsibility of Tenant, and Tenant shall be exclusively liable
for any such incident or event as hereinafter provided. For the purposes of this
Lease, the terms "Hazardous Materials", "Hazardous Wastes", "Storage",
"Treatment", "Disposal" and "Generator" are defined by cumulative reference to
the following sources as amended from time to time: (1) the Resource
Conversation and Recovery Act of 1976, 42 U.S.C. ss.6901 et seq (RCRA); (2) EPA
Federal Regulations promulgated under RCRA and codified in 40 C.F.R. Parts
260265 and Parts 122124; (3) the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss.9601 (CERCLA), as amended by the
Superfund Amendments and Reauthorization Act of 1986 (XXXX); (4) New Hampshire
X.X.X. Xx 000, 000X; and 147B; and (5) New Hampshire regulations promulgated
thereunder by any agency or department of the State of New Hampshire.
B. The Tenant agrees to indemnify, demand and hold
harmless its Landlord, its successors and assigns and its officers, directors,
employees from and against any liability, claim, causes of action, damages,
loss, cost or expense (including, without limitation, reasonable attorneys' fees
and related expenses) arising from:
(1) the imposition or recording of a lien for
expenditures from the New Hampshire Hazardous Waste Clean Up Fund under XX XXX
000X, as amended, with respect to any disposal at the Premises caused by the
Tenant;
(2) any loss of value in the Premises as a result of
any such lien referred to in subparagraph (B)(1) above;
(3) containment of the Hazardous Wastes or Hazardous
Materials generated or produced by Tenant at the Premises;
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(4) necessary cleanup of Hazardous Waste or Hazardous
Materials and restoration of the Premises and the surrounding environment;
(5) removal of the Hazardous Wastes or Hazardous
Materials generated or produced by tenant at the premises;
(6) such actions as may be necessary to monitor,
assess and evaluate the release or threat of release of a Hazardous Waste or
Hazardous Material generated or produced by tenant at the premises; or to
mitigate damage to the public health or welfare that may otherwise result from a
release or threat of release;
(7) any breach by Tenant of any representation or
warranty set forth in this Section 15;
(8) any failure to implement and complete its
responsibilities identified in this Section 15;
(9) any administrative or civil actions brought or
issued by any regulatory authority against Landlord with respect to the
responsibilities of Tenant covered in this Section 15;
(10) any civil action in a federal or state court
that may be commenced by third parties with respect to environmental matters
pursuant to the private party suit provisions of applicable environmental laws
including but not limited to those laws set forth in subparagraph (A) above; and
(11) the release by Tenant of any Hazardous Materials
or Hazardous Wastes into the environment.
C. In connection with the indemnity provisions set forth in
subparagraph B above and elsewhere in this Lease, Tenant hereby agrees to: 1)
provide Landlord as of the date hereof with a copy of its audited financial
statements from its previous fiscal year and thereafter on an annual basis
within ninety (90) days of the end of its fiscal year. Landlord agrees to
maintain Tenant's financial statements in strict confidence; 2) notify Landlord
within ten (10) business days of any change in ownership of Tenant; any change
in Tenant's principal bank; and any adverse change in Tenant's financial
condition.
D. The Tenant shall obtain all environmental permits, licenses
and approvals required by local, state and federal laws, ordinances, rules and
regulations in connection with its electronic assembly business and in Tenant's
capacity, if at all, as a Generator of Hazardous Wastes or Hazardous Materials
with regard to air emissions or discharges into the groundwater, and further
covenants and agrees to notify the Landlord immediately of all notices of
violations or adverse inspection reports from any governmental authority.
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E. Tenant's indemnity obligations in this Section shall
survive: (i) the expiration or termination of this Lease Agreement; and (ii) any
transfer of the title to the Premises (whether by sale, foreclosure, deed in
lieu of foreclosure or otherwise).
F. Tenant represents and warrants that Tenant:
(1) shall operate the pretreatment water process
located at the Premises, if any, ("Wastewater Treatment Process") in a
workmanlike manner in accordance with generally recognized standards for
wastewater treatment;
(2) shall comply with all applicable federal, state
and local laws and regulations pertaining to the operation of the Wastewater
Treatment Process and the discharge of wastewater into the Xxxxxx municipal
sewer; and
(3) shall not bring to the Premises any wastes or
wastewater from offsite sources.
G. In the event of a spill, leak, discharge, or other release
of Hazardous Wastes or Hazardous Materials to the environment in a reportable
quantity by the Tenant at the Premises, the Tenant shall immediately notify the
Landlord. Any such notice to Landlord shall be given verbally and in writing to
the Landlord's Facility Manager. Tenant shall be solely responsible for
notifying governmental authorities of releases of such substances at the
Premises. In addition, Landlord shall make available to Tenant any records of
other spills that are prepared by Tenant. Tenant not responsible for any
environmental conditions that predate the lease.
16. INDEMNIFICATION AND LIABILITY:
Unless the following damages are caused by Landlord's negligence or
wrongful willful acts, Landlord shall not be liable to Tenant for any injury or
damage to the Premises or to any property of Tenant or to any property of any
third person, firm, association or corporation on or about the Premises, and
Tenant shall indemnify and save Landlord harmless from and against any and all
liability and damages and from and against any and all suits, claims and demands
of any kind or nature, by and on behalf of any person, firm, association or
corporation, arising out of or based upon any incident, occurrence, injury or
damage which shall or may happen on or about the Premises and from and against
any matter or thing growing out of the condition, maintenance, repair,
alteration, use, occupation or operation of the Premises or the installation of
any property therein or the removal of any property therefrom.
17. DESTRUCTION: WHOLE AND PARTIAL:
If the Premises shall be so damaged that repairs and restoration cannot
be accomplished within a period of one hundred eighty (180) days from start of
repair or restoration unless the destruction or damage is caused by Tenant or
persons for whose conduct it is responsible and is not insured against by a
policy benefiting Landlord (in which case this lease in Landlord's sole
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discretion, shall not automatically terminate), this lease shall automatically
terminate without further act of either party hereto, and each party shall be
relieved of any further obligation to the other except for the rights and
obligations of the parties under Paragraph 18 and except Tenant shall be liable
for and shall promptly pay Landlord any rent then in arrears or Landlord shall
promptly rebate to Tenant the pro rata portion of any rent paid in advance. If
the Premises shall be so damaged that repairs and restoration can be
accomplished within said period one hundred eighty (180) days, this lease shall
continue in effect in accordance with its terms and Landlord shall diligently
proceed to adjust the loss with insurance carrier(s), obtain building permit(s),
commence to repair and complete the same within said one hundred eighty (180)
day period; provided, however, unless such damage is caused by Tenant or persons
for whose conduct it is responsible and is not insured against by a policy
benefiting Landlord (in which case, in Landlord's sole discretion, Tenant's rent
shall not xxxxx), that until such repairs and restoration have been accomplished
a portion of the rent shall xxxxx equal to the proportion of the Premises
rendered unusable by the damage. Landlord shall be entitled to all fire
insurance proceeds except insurance specifically insuring property of Tenant and
shall in no event be obligated to undertake repairs the cost of which exceeds
the proceeds.
18. EMINENT DOMAIN:
In the event that the Premises shall be lawfully condemned or taken by
a public authority either in their entirety or in such proportion that they are
no longer suitable for the intended use by the Tenant, then this Lease shall
automatically terminate without further act of either party hereto on the date
when possession of the Premises shall be taken by such public authority, and
each party hereto shall be relieved of any further obligation to the other
except that the Tenant shall be liable for and shall promptly pay to the
Landlord any rent then in arrears or the Landlord shall promptly rebate the
Tenant a pro rata portion of any rent paid in advance and the Security Deposit,
subject to the provisions of Paragraph 5 hereof. In the event the proportion of
the Premises so condemned or taken is such that they are still suitable for use
by the Tenant, then this Lease shall continue in effect in accordance with its
terms and a portion of the rent shall xxxxx equal to the proportion of the
rental value of the Premises so condemned or taken. In either of the above
events, the award for the property so condemned or taken will be payable solely
to the Landlord, except that tenant may apply for a separate award so long as
award does not diminish the value of the landlord's award.
19. SUBORDINATION:
Tenant agrees that this Lease and all rights of Tenant hereunder are
and shall be subject and subordinate to the lien of (1) any mortgage
constituting a first lien on the Premises, or any part thereof, at the date
hereof, and (2) the lien of any mortgage hereafter executed conveying the
Premises or any part thereof, and (3) any renewal, modification, consolidation
or extension of any mortgage referred to in clause (1) or clause (2). Tenant
shall, on demand at any time or times, execute, acknowledge and deliver to
Landlord at the cost and expense of Tenant, any and all instruments that may be
necessary or proper to subordinate this lease and all rights of Tenant hereunder
to the lien of any mortgage, or other instrument referred to in clause (3)
above.
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Landlord will use its best efforts to obtain a nondisturbance agreement
from its present mortgagee in favor of the Tenant. "Best efforts" shall not
include the expenditure of funds by Landlord or the incurring of liability of
Landlord. Landlord agrees that the subordination of this Lease to any future
mortgagee and Tenant's obligation to attorn to any future mortgagee shall be
conditional upon any such mortgagee agreeing not to disturb Tenant's use and
occupancy of the Premises and to recognize Tenant's rights under this Lease so
long as Tenant is not in default hereunder. In the event Landlord is unable to
obtain any future mortgagee's nondisturbance agreement Tenant shall have the
right, upon thirty (30) days' written notice to Landlord to cancel this Lease;
provided, however, that Tenant is not in default hereunder which default is not
cured or in the process of being cured Tenant is at least in the same position
financially as it is at the time of the execution of this Lease.
20. SURRENDER:
At the expiration or on the earlier termination of this Lease for any
cause herein provided for, Tenant shall peaceably and quietly quit the Premises
and deliver possession of the same to Landlord, together with all alterations
and additions thereto except those alterations and additions made by Tenant at
Tenant's expense and as otherwise set forth in this Lease, in the same condition
as they were at the beginning of the term or as they were put during the term,
fair wear and tear and any damage by casualty and taking by eminent domain
excepted, together with all keys and locks thereto. Tenant shall remove all its
goods and effects from the Premises including all signs and lettering. If Tenant
fails to remove any of its property from the Premises, Landlord is authorized,
without liability to Tenant for loss or damage thereto, and at the sole risk of
Tenant, to remove and store any of the property or to sell at public or private
sale with ten (10) days notice to Tenant, any and all of the property not so
removed and to apply the net proceeds of such sale to the payment of any sum
due, or to destroy such property.
21. ASSIGNMENT; SUBLEASING:
Tenant shall not assign or sublease any portion or the whole of the
Premises without the prior written consent of Landlord which consent shall not
be unreasonably withheld or delayed. In connection with any request by Tenant
for such consent to assignment or subletting, Tenant shall submit to Landlord in
writing in the name of the proposed assignee or subtenant, (ii) such information
as to its financial responsibility and standing as Landlord may reasonably
require, and (iii) all of the terms and provisions upon which the proposed
assignment or subletting is to be made. Upon receipt from Tenant of such request
and information Landlord shall have an option to be exercised in writing within
twenty (20) days after its receipt from Tenant of such request and information
if the request is to assign the Lease or to sublet all of the Premises, to
cancel or terminate this Lease, or, if the request is to sublet a portion of the
Premises only, to cancel and terminate this Lease with respect to such portion,
in each case as of the date set forth in Tenant's request submitted to Landlord;
in the event Landlord shall exercise such option, Tenant shall surrender
possession of the entire Premises, or the portion which is the subject of the
option, as the case may be, on the date set forth in such notice in accordance
with the provisions of this Lease relating to surrender of the Premises at the
expiration of the Lease. If
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this Lease shall be canceled as to a portion of the Premises only, the annual
base rent shall thereafter be abated proportionately according to the ratio that
the number of rentable square feet in the portion of the space surrendered bears
to the rentable square feet of the Premises. In the event Landlord shall not
exercise its option to cancel this Lease pursuant to the foregoing provisions,
Landlord shall not unreasonably withhold its consent to the requested assignment
or subletting, provided that: (1) the terms and provisions of such assignment or
subletting shall specifically make applicable to the assignee or subtenant all
of the provisions of this Paragraph 19 so that Landlord shall have against the
assignee or subtenant all rights with respect to any further assignment and
subletting which are set forth herein; (2) no assignment or subletting shall
affect the continuing primary liability of Tenant (which, following assignment,
shall be joint and several with assignee); (3) no consent to any of the
foregoing in a specific instance shall operate as a waiver in a subsequent
instance; and (4) no assignment shall be binding upon Landlord or any of
Landlord's mortgagees, unless Tenant shall deliver to Landlord an instrument in
recordable form which contains a covenant of assumption by the assignee running
to Landlord and all persons claiming by, through or under Landlord, but the
failure or refusal of the assignee to execute such instrument of assumption
shall not release or discharge assignee from its liability as Tenant hereunder.
In the event Landlord shall not exercise its option to cancel this Lease
pursuant to the foregoing provisions, Landlord shall be entitled to receive
fifty percent of all amounts received by Tenant in excess of annual base rent
and additional rent reserved in this Lease applicable to the space being so
assigned or sublet.
22. LANDLORD'S ACCESS:
Landlord or its representative shall have free access to the Premises
at reasonable intervals during normal business hours and upon reasonable notice
to Tenant for the purpose of inspection, or for showing the premises to
prospective purchasers or tenants, or for the purpose of making repairs which
Tenant is obligated to make hereunder but has failed or refused to make and
shall have access at any time and without notice for emergency repairs. The
preceding sentence shall not impose upon Landlord any obligation to make
repairs. Landlord shall also be entitled to install video cameras on, within or
about the access doors to the Premises including but not limited to, the points
of ingress and egress to and from the Building for security related purposes.
Neither Tenant, nor its employees, agents or invitees shall have any access
whatsoever to those portions of the Building other than the Premises as defined
herein.
23. HOLDING OVER:
If Tenant shall hold over after the expiration of the term hereof, such
holding over shall not extend the term of this Lease but shall create a month to
month tenancy upon all terms and conditions of the Lease except that the rent
shall be equal to 150% the then current base and additional rent. This inclusion
of the preceding sentence shall not be construed as Landlord's permission for
Tenant to hold over.
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24. ATTORNMENT:
Tenant shall in the event of sale or assignment of Landlord's interest
in the Premises or in the event of foreclosure of any mortgage to which this
Lease is subject, on request of the purchaser, attorn to him and recognize such
purchaser as Landlord under this Lease, provided that tenant shall have received
from such purchaser or transferee a non disturbance agreement.
25. NOTICE:
Any notice from Landlord to Tenant relating to the Premises or its
occupancy shall be deemed duly served, if left at the Premises addressed to the
Tenant, and mailed to Tenant: by registered or certified mail, return receipt
requested, postage prepaid. Any notice from the Tenant to Landlord relating to
the Premises or the occupancy thereof, shall be deemed duly served, if mailed to
the Landlord by registered or certified mail, return receipt requested, postage
prepaid, addressed to the Landlord at such address as the Landlord may from time
to time designate in writing. All rent and notices shall be paid and sent to the
Landlord at 000 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000.
26. DEFAULT:
If (a) any installment of base rent or any additional rent shall not be
paid within ten (10) days of its due date; or (b) Tenant defaults in the
performance or observance of any other covenant or condition in this Lease and
such default remains unremedied for thirty (30) days after written notice
specifying a default or defaults hereunder has been given to Tenant by Landlord
provided that if such default is of such a nature that it cannot be cured prior
to the expiration of such thirty (30) day period, then such default shall not be
deemed to continue so long as Tenant proceeds to cure the default as soon as
reasonably possible and continued to take all steps necessary to complete such
cure; or (c) Tenant makes an assignment for the benefit of creditors, files a
voluntary petition in bankruptcy, is adjudicated insolvent or bankrupt,
petitions or applies to any tribunal for any receiver or any trustee of or for
Tenant or substantial part of its property, commences any proceeding relating to
Tenant or any substantial part of its property under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute or
any jurisdiction, whether now or hereafter in effect, or there is commenced
against Tenant any such proceeding which remains undismissed for a period of
sixty (60) days, or any order approving the petition in any such proceeding is
entered, or Tenant by any act indicates its consent to, or acquiescence in, any
such proceeding or the appointment of any receiver of or trustee for Tenant or
any substantial part of its property, or suffers any such receivership or
trusteeship to continue undischarged for a period of sixty (60) days, then, in
any of such events, Landlord may immediately or at any time thereafter and
without demand or notice enter upon the Premises or any part thereof in the name
of the whole and repossess the same and expel Tenant and those claiming through
or under Tenant and remove their effects if necessary, without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or breach of covenant, and upon such
entry this Lease shall
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terminate and Tenant covenants that Tenant shall remain and continue liable to
Landlord in an amount equal to the total rent reserved for the balance of the
term less the net amounts (after deducting the expenses of reletting, repair,
renovation or demolition) which Landlord realizes from the reletting of the
Premises. If Landlord relets the Premises after Tenant's default, then any
payment received will be deemed on account, as to Tenant's obligation and Tenant
shall be responsible for any deficiency as it becomes due during the remaining
term of this Lease. If the Premises are relet for more than the rent hereunder,
then Tenant will not be entitled to any additional amounts and said amounts will
be the sole property of Landlord. Tenant shall have the right to present
prospective Tenant(s) to Landlord in an effort to assist Landlord in its
obligation to mitigate damages.
27. TENANT'S MANUFACTURING PROCESS:
Tenant hereby agrees to provide Landlord with a list of all chemicals
used or to be used on the Premises prior to the delivery, use or storage of such
chemicals on the Premises, and Landlord shall have the right to approve all
chemicals prior to Tenant's use thereof on the Premises. Attached hereto as
Exhibit B is a complete list of all chemicals Tenant shall be using or storing
on the Premises as of the Commencement Date. The foregoing obligation to notify
Landlord of any additional chemicals to be brought onto the Premises and
Landlord's right to approve same is an ongoing obligation and right hereunder.
Tenant agrees that it will take whatever action is reasonably necessary to
control and minimize any elevated noise levels, excess vibration, noxious fumes
or odors which would be reasonably likely to negatively impact workplace safety,
air quality and other life safety criteria on the Premises and in the Building.
In the event Tenant's manufacturing process at any time negatively affects the
Landlord and/or its operations and/or other portions of the Building, Tenant,
upon notice from Landlord, shall proceed immediately to take such steps as are
reasonably necessary, at Tenant's sole cost and expense, to reduce such noise,
vibration, fumes, odors or other intrusive or disruptive activities to levels
acceptable to Landlord. Tenant hereby agrees to indemnify Landlord for any and
all losses incurred by Landlord as a result of Tenant's failure to comply with
this Paragraph 27.
28. COSTS:
In the event either party hereto commences litigation against the other
to enforce its rights hereunder, the prevailing party in such litigation shall
be entitled to recover from the other its reasonable attorney's fees and
expenses incidental to such litigation.
29. WAIVER:
Any consent, express or implied, by Landlord to any breach by Tenant of
any covenant or condition of this Lease shall not constitute a waiver by
Landlord of any prior or succeeding breach by Tenant of the same or any other
covenant or condition of this Lease. Acceptance by Landlord of rent or other
payment with the knowledge of a breach or a default under any term hereof by
Tenant shall not constitute a waiver by Landlord of such breach or default.
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30. QUIET ENJOYMENT:
Tenant, on paying the rents and performing all of the covenants and
conditions hereof, shall peaceably and quietly enjoy the Premises, subject
nevertheless to the terms of this Lease.
31. INTEGRATION:
All representations, statements and agreements heretofore made are
merged in this Lease which is the full expression of the parties' obligations
and neither party, in entering this Lease, has relied upon any statement or
representation not set forth herein.
32. GOVERNING LAWS:
This Lease is made in and shall be interpreted and enforced according
to the law of New Hampshire.
33. BROKER'S COMMISSION:
Landlord and Tenant represent and warrant to the other that neither of
them has had any contact with any real estate broker or finder in connection
with this transaction with the exception of Hunneman Commercial Company whose
commission Landlord shall pay pursuant to a separate agreement between Landlord
and said broker. Each party agrees to indemnify the other against and hold
harmless the other for any cost, claim, loss, liability, damage or expense
(including reasonable attorney's fees) arising from any breach of the foregoing
warranty and representation.
34. ARBITRATION:
Either party may, upon ten (10) days written notice to the other party,
require that any or all claims or disputes arising out of or relating to this
Lease (with the exception of nonpayment of rent) shall be determined by
arbitration under the rules, then obtaining of the American Arbitration
Association. A decision of an arbitrator made in accordance with the provisions
of this Paragraph shall be final and binding upon the parties hereto and
enforceable in a court of law.
35. COVENANTS TO RUN WITH THE LAND:
The covenants and agreements of Landlord and Tenant shall run with the
land and be binding upon and inure to the benefit of them and their respective
heirs, executors, administrators, successors and assigns. Landlord shall have
the right to sell, assign, transfer, or otherwise alienate its interest in the
Building and this lease, and upon such sale, assignment, transfer, or
alienation, the new owner shall succeed to all of Landlord's obligations
hereunder,
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and Tenant shall be bound to the new owner to the same extent as it
was bound to Landlord. At such time, Landlord shall be entirely freed and
relieved of any obligation, duty or responsibility under this lease.
36. GUARANTY:
Smartflex Systems, Inc., a California corporation, with an address of
00000 Xxxxxxxx Xxx. Xxxxxx XX 00000-0000 (hereinafter the "Guarantor"), the
parent company of the Tenant named herein, hereby unconditionally agrees to
guaranty all of the Tenant's obligations hereunder.
37. AUTHORITY:
Landlord, Tenant and Guarantor represent and warrant to each other that
the individual(s) executing this Lease are duly authorized to execute and
deliver this Lease on behalf of Landlord, Tenant and Guarantor, respectively,
and upon the request of any party, the parties shall furnish to the other
written evidence of such authority.
DATED: February 4, 1999
WITNESS: /s/ Xxx X. Xxxxx
LANDLORD:
VECTRON TECHNOLOGY, INC.
/s/ Xxxxxx Xx Xxxxx
-----------------------------------
By: Xxxxxx Xx Xxxxx
Its: Treasurer
TENANT:
METHUEN ACQUISITION CORPORATION
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
By: Xxxxxx X. Xxxxxxxx
Its: General Manager
GUARANTOR:
SMARTFLEX SYSTEMS, INC.
/s/ Xxx Xxxxxxxxxxx
-----------------------------------
By: Xxx Xxxxxxxxxxx
Its: Director of Logistics
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EXHIBIT A
PREMISES
[Diagram of Premises with xxxxx-xxxxx across
Methuen Acquisition Corp's space]
18
EXHIBIT B
---------
LIST OF TENANT'S CHEMICALS
CHEMICAL NAME USAGE
------------- -----
(1) 311-62CN FLUX 170 GALLONS PER YEAR
(0) 0000 XXXXXXX 200 GALLONS PER YEAR
(3) ISOPROPYL ALCOHOL 50 GALLONS PER YEAR
(4) FRY PURE SUPER L.D.C. SOLDER BARS 3600 LBS PER YEAR
(5) WS609 WATER SOLUBLE PASTE 136 LBS PER YEAR
WASTE TREATMENT
---------------
EXHIBIT B
---------
CHEMICAL NAME USAGE
------------- -----
(1) SOLDER DROSS 55 GALLONS PER YEAR
(2) DI WATER FROM WASHER 200 GALLONS PER YEAR
