EXHIBIT 10.13
LEASE
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THIS LEASE, made this 16th day of January, 1990 by and between XXXXXX X.
X'XXXXX - XXXXXXX X. XXXXXXXX PARTNERSHIP (hereinafter referred to as
"Landlord") and MILLITECH CORPORATION, a corporation existing under the laws of
the Commonwealth of Massachusetts (hereinafter referred to as "Tenant").
WITNESSETH
Landlord, for and in consideration of the payment of the rent and the
performance of the covenants and agreements by Tenant herein contained, does
hereby lease to Tenant, and Tenant hereby lease from Landlord, the following
described premises:
A free-standing building ("Building 1") of 31,395 square feet of floor
space located on a certain parcel of land on the south side of East Site Access
Road, Deerfield Industrial Park, South Deerfield, Massachusetts, known as Lot 9
containing approximately 3.096 acres ("Parcel 1"). The land is more
particularly described in Exhibit A attached hereto and made a part hereof. A
second free-standing building ("Building 2") consisting of 7200 square feet of
one-story floor space and a 2-story building addition of 24,000 square feet of
floor space located on a certain parcel of land located on the south side of
East Site Access Road, Deerfield Industrial Park, South Deerfield,
Massachusetts, known as Lot 8 containing approximately two (2) acres ("Parcel
2"). Parcel 2 is more particularly described in Exhibit B attached hereto and
made a part hereof. The 24,000 square foot addition to Building 2 is to be
constructed for use by the Tenant in accordance with the plans and
specifications described in Exhibit C which plans and specifications were
supplied to Landlord and Tenant and are incorporated herein by reference.
Building 1 and Building 2 and Parcels 1 and 2 are hereafter collectively
referred to as the "Premises" or "Leased Premises."
ARTICLE 1. TERM
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a. The initial term of this Lease shall be for ten (10) years commencing on
the Commencement Date as hereinafter defined and expiring without further notice
or act on the tenth anniversary of the Commencement Date, as defined herein,
said period being hereinafter referred to as the "Initial Term."
b. Provided that the Tenant has provided notice thereof one hundred eighty
(180) days prior to the expiration of the immediately preceding lease term, the
Tenant shall have the right to extend the term of this Lease for an additional
five (5) year term upon and subject to the provisions of this Lease.
ARTICLE 2. COMMENCEMENT DATE
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The Commencement Date shall be the date upon which the addition to Building
2 is substantially completed in accordance with the plans and specifications
attached hereto as Exhibit C as indicated by the proper municipal authorities of
a Certificate of Occupancy for the addition to Building 2.
Promptly after the date hereof, Landlord will begin and prosecute the
construction of the Building 2 Addition in accordance with Exhibit C which
construction shall hereinafter be referred to as the "Improvements." In order
to determine that the Improvements are being built in accordance with the plans
and specifications, the Tenant and its representatives, shall have access to the
Improvements at all reasonable times during the construction thereof for the
purpose of making inspections of the work.
The Improvements shall be substantially completed and premises made
available to Tenant not later than June 30, 1990. Provided however, if the
construction of the Improvements shall be delayed by causes beyond the
reasonable control of Landlord, such as, but not limited to, strikes, inclement
weather making construction not feasible, scarcity of materials, acts of God,
war and governmental restrictions, the Commencement Date shall be adjusted
accordingly and rental payments shall xxxxx until delivery of possession occurs.
Landlord shall advise Tenant in writing of the Commencement Date not less than
ten (10) days prior thereto and immediately after the Commencement Date, the
Landlord and Tenant will enter into a written memorandum of the date of
commencement. Any work provided to be done under the plans and specifications
which shall not have been completed at the Commencement Date, shall be promptly
completed by Landlord and if not completed within thirty (30) days after the
delivery of possession, the Tenant may after fifteen (15) days written notice to
the Landlord complete the same and deduct the cost thereof from the rent for the
next ensuing month or months.
ARTICLE 3. RENT
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Tenant in consideration of the Lease, covenants and agrees to pay to
Landlord, as minimum annual rent (hereinafter referred to as "Base Rent") for
said Premises the following:
(i) for the first through fifth years of the initial term, the sum of Three
Hundred Thirty-Eight Thousand Six Hundred Seventy-Three and 73/100 Dollars
($338,673.74) payable in equal monthly installments of Twenty-Eight Thousand Two
Hundred Twenty-Two and 81/100 Dollars ($28,222.81);
(ii) during the sixth through tenth years of the initial term, at an annual
rate equal to the Base Rent of the first though fifth years of the initial term
increased by the greater of a) 20% or b) the percentage increase in the Consumer
Price Index during the first through fifth years of the initial term;
(iii) during the five year optional extension period, at an annual rate
which is the greater of the Base Rent during the sixth through tenth years of
the initial term increased by the greater of a) Twenty Percent (20%); or b) the
percentage increase in the Consumer Price Index during the sixth through tenth
years of the initial term.
Rent shall be paid in advance on the first day of each and every calendar
month during the term hereof. If the Commencement Date is other than the first
day of the calendar month, rent for the portion of the calendar month at the
beginning of the term and at the end of the term shall be apportioned. Said
payment shall be made in such manner and at such place or places as Landlord may
direct and until further notice said rental payments shall be made to the
Landlord; c/o Development Associates, 000 Xxxxxx Xxxxxx, Xxxx 0X, X.X. Xxx 000,
Xxxxxx, Xxxxxxxxxxxxx 00000-0000.
The Base Rent for the Initial Term has been established, in part, based
upon the cost to the Landlord of financing improvements to Building 1,
construction of Building 2, and construction of the addition to Building 2 with
a loan from Shawmut Bank N.A. at an initial rate of interest of eleven and 1/4
percent (11.25%) per annum for a twenty-five (25) year loan term. The rate of
interest on the loan is subject to changes monthly. In the event that the
interest rate on the Landlord's loan increases in any year, the Tenant shall pay
as Additional Rent any increases in the Landlord's debt service cost by
reimbursing the Landlord annually for interest in excess of eleven and 1/4
percent (11.25%) per annum (the "Excess Interest") paid to a lending institution
to service the above mentioned debt. The Tenant's responsibility to pay Excess
Interest shall be limited in any one year to a three percent (3%) increase in
said interest rate, it being the intention of the parties however that said
increases by cumulative, using the highest interest rate paid any prior year as
a base for calculating the three percent (3%) interest rate increase ceiling in
the succeeding year.
Any payment of Rent shall be considered overdue and assessed an interest
fee equal to one percent (1%) of the current monthly Base Rent unless said
payment is a) personally delivered to Landlord's place of business not more than
fifteen (15) calendar days after date due, or b) sent to Landlord postmarked not
more than ten (10) days after date due. In the event that an interest fee is
incurred, Landlord will promptly notify Tenant in writing of such event and
specify the amount of interest fee assessed. Tenant acknowledges that any such
amounts are due immediately and shall pay the full amount of interest fee to
Landlord within ten (10) days of receipt of said written notice.
It is the intention of the Landlord and Tenant that the rents and other
charges due the Landlord are "net" to the Landlord and that except for the
Landlord's obligations to pay for certain items of repair and/or replacement
specifically set forth in this Lease that the Tenant shall pay for all services,
utilities, repairs, insurances, taxes, and all other operating expenses of the
Premises whether or not specifically enumerated in this Lease.
ARTICLE 4. USE OF PREMISES
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Tenant shall use the Premises solely for the purposes of maintaining an
office and manufacturing facility. No other use shall be permitted without
prior written consent of
Landlord and Shawmut Bank N.A. or its subsidiary, or such other individual or
institution as may be holding a mortgage on the Premises during the term hereof.
Tenant shall at its own cost and expense, promptly observe and comply with all
laws, ordinances, requirements, orders, directive, rules and regulations of the
federal, state, county, municipal or town governments and of all governmental
authorities affecting the Premises and Improvements, whether the same are in
force at the commencement of the term of this lease or may be in the future
passed, enacted or directed. Provided, however, that in observing and complying
with all laws, ordinances, requirements, orders, directives, rules and
regulations of all governmental authorities, Tenant shall not be required, at
its expense, to make any structural repairs or changes in the Improvements or
any nonstructural repairs or changes in the Improvements or any nonstructural
repairs made necessary by defects in construction.
Tenant shall not use or permit the Premises to be used for any purpose
other than as specified herein and shall not use or permit the Premises to be
used for any unlawful, immoral, or disreputable purposes, not for any use or
occupation which would be in conflict with provisions of the Zoning Ordinance of
the Town of Deerfield, Massachusetts, applicable to the use and occupancy of
said Premises, or which would jeopardize or invalidate any of the insurance
coverage on said Premises or which would violate the restriction applicable to
the use of property in the Deerfield Industrial Park (the "Park Restriction").
ARTICLE 5. PAYMENT OF UTILITY CHARGES
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Tenant shall after the Commencement Date furnish and pay for its own gas,
water, telephone, electricity, sewage, including the installation of any meters
to calculate flowage, refuse disposal, and other utility services used or wasted
by it on said Premises. Gas, water and electricity shall be separately metered
for Premises, apart from other adjacent space rented, owned or reserved by
Landlord.
ARTICLE 6. TAXES AND ASSESSMENTS
---------------------
Tenant shall pay when due as Additional Rent, all state, city and county
real estate taxes, assessments, and other charges, including annual fees of the
Deerfield Economic Development and Industrial Corporation, that become due and
payable in connection with the premises, and any Improvements now thereon or
hereafter placed upon said Premises during the original term of this Lease or
during any extended terms in the event Tenant exercises its option to extend.
In the event of any such taxes, assessments, or charges levied on the Premises
may be paid on an installment basis, Landlord agrees to choose this method of
payment and Tenant shall be obligated to pay only those installments which
become due during the original term hereof or any renewal or extension thereof,
provided, however, that if the first mortgagee of the Landlord shall require the
payment of taxes, assessments, or charges on a periodic basis the Tenant shall
make such payments accordingly.
In the event the Premises are not separately assessed, but are a part of a
larger tax parcel, real estate taxes applicable to the Premises shall be a
prorata share of all real estate taxes levied
or assessed with respect to any tax period during the term hereof against the
land and Improvements comprising the tax parcel. Such prorata share shall be
determined as follows:
1. The amount of real estate taxes assessment with respect to any such tax
period against the land comprising the tax parcel multiplied by a fraction,
the numerator of which shall be the number of square feet of land area in
the Leased Premises and the denominator of which shall be the number of
square feet of land area in the tax parcel;
2. The amount of real estate taxes assessed with respect to any such tax
period against the Improvements located upon the tax parcel multiplied by a
fraction, the numerator of which shall be the number of square feet of
floor area then located on the Leased Premises and the denominator of which
shall be the number of square feet of floor area in the buildings so
assessed which are located on the tax parcel (including, but not limited to
Improvements located on the Leased Premises).
It is the intention of the parties hereto that Tenant shall pay the tax
assessment herein provided for a period equal to the original term or any
extension thereof, regardless of when such taxes become a lien. In no event
shall Tenant be required to pay such taxes for a period longer than the original
term or any extension thereof.
It is expressly agreed, however, that Tenant shall not be required to pay,
discharge or remove any taxes, assessments, charges or levies against the
Premises, or any part thereof, which Tenant may deem illegal or excessive or to
pay any judgments rendered therefor so long as Tenant shall at its own expense,
in good faith, contest the same or the validity thereof by proper proceedings
which shall operate to prevent the collection of the tax, assessment, lien or
imposition so contested on the sale of said Premises, or any part thereof, to
satisfy the same, so long as Tenant shall furnish to Landlord and its first
Mortgagee indemnity satisfactory to them against any loss or damage by reason of
such contest, including all costs and expenses thereof, and that pending any
such legal proceedings, and Landlord shall not have the right to pay or
discharge such tax or assessments thereby contested. In any such case, Tenant
shall fully protect and preserve the title and rights of Landlord as well as
Tenant's leasehold estate in and to the Premises.
ARTICLE 7. HAZARD INSURANCE
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During the term of this Lease or any extensions thereof Tenant at its own
expense, covenants that it will keep the Improvements now standing upon, or
which may hereafter be erected upon, the Premises insured against loss or damage
by fire and the hazards covered by extended coverage insurance in a responsible
insurance company or companies authorized to do business in the Commonwealth of
Massachusetts and to maintain such insurance at all times during the original
term of this Lease or any extensions thereof in an amount equal to not less than
the greater of $2,925,000 or the full insurable value of said Improvements. The
policy or policies thereof shall be taken out by Tenant and shall name Landlord
as an additional insured and each Mortgagee of the Landlord under the standard
Massachusetts mortgage clauses. Tenant shall provide Landlord and its
Mortgagees with a Certificate of Insurance in evidence of such
coverage. Should Tenant fail to carry such fire and extended coverage insurance,
Landlord or its Mortgagees may at its option cause such insurance as aforesaid
to be issued, and in such event, Tenant agrees to pay the premiums for such
insurance upon Landlord's or Mortgagee's demand, as additional rent.
Tenant shall be solely responsible for obtaining any fire or extended
coverage insurance for its personal property and improvements of Tenant and for
all goods, commodities and materials stored by Tenant in or about the Premises.
ARTICLE 8. LIABILITY INSURANCE
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At all times during the term hereof or any extension thereof, Tenant at its
own expense shall maintain and keep in force for the mutual benefit of Landlord
and Tenant general public liability insurance against claims for personal
injury, death or property damage occurring in or about the Premises or sidewalks
or areas adjacent to the Premises to afford protection to the combined single
limit of not less than One Million and 00/100 ($1,000,000.00) Dollars in respect
to injury or death to persons and property damage. The policy or policies shall
name the Landlord as an additional insured. In order to evidence the coverage
in effect, the Tenant shall provide the Landlord with a Certificate of Insurance
and will obtain a written obligation from the insurers to notify Landlord in
writing at least ten (10) days prior to cancellation or refusal to renew any
such policies. Should Tenant fail to carry such public liability insurance,
Landlord may, at its option, cause public liability insurance as aforesaid to be
issued, and in such event, Tenant agrees to pay the premiums for such insurance
promptly, upon Landlord's demand, as additional rent.
ARTICLE 9. INDEMNIFICATION
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Except as hereinafter provided, Tenant shall indemnify and save Landlord
harmless from and against any and all liability, claims, damages, penalties, or
judgments arising from or in any way connected with injury to person or property
sustained in action in and about the Premises in custody and control of Tenant,
during the term of this Lease. If Landlord shall, without fault on its part, be
made a part of any litigation commenced by or against Tenant, Tenant shall
protect and hold Landlord harmless and pay all costs, expenses and reasonable
attorneys fees that may be incurred or paid by Landlord in enforcing the
covenants and agreements of this Lease.
Except for the negligence of the Landlord or the negligence of Landlord's
officers, agents, servants, employees or contractors, Landlord shall not be
responsible or liability for any damage or injury to any property, fixtures,
buildings or other Improvements, or to any person or person at any time on the
Premises, including any damage or injury to Tenant or to any of Tenant's
officers, agents, servants, employees, contractors, customers or sublessees.
ARTICLE 10. MAINTENANCE AND REPAIRS
-----------------------
Tenant will repair and maintain the Leased Premises at Tenants' own
expense, and make every repair and replacement which may be needed to maintain
the Improvements, water, sewer,
pumping and heating systems, plumbing system, electrical wiring system,
sprinkler system and air conditioning in good condition and repair as the same
shall be on the Commencement Date. Tenant agrees to replace all glass with
glazing of the same size and quality of that broken. Tenant shall also maintain
and repair at its expense, lawn, landscaping, exterior paving and snow removal
where applicable. Notwithstanding any other provision of this Lease, the Tenant
shall not be required to make any repair to the structural members, including
roof, exterior walls, and foundations, of the Premises, except to such extent
such repairs are necessitated by the negligence of Tenant or Tenant's
overloading the floor or other structural elements or by Tenant's having made
substantial additional improvements to the Premises after the Commencement Date
repair and maintenance of which shall be the responsibility of the Tenant.
As of the commencement Date the Landlord will warrant that all structural
and mechanical systems of Buildings 1 and 2 are in good working order and
repair. Tenant shall have the benefit of all contractor and subcontractor
warranties relative to the Improvements.
If the repairs required to be made by Landlord or Tenant are not completed
within a reasonable time after request for such repair by the other party,
Landlord or Tenant, as the case may be, shall have the option to make such
repairs after first giving the other party fifteen (15) days notice of its
intention to do so, and any amounts expended by virtue thereof shall be added to
or subtracted from the next month's rent in the full amount of the expenditures.
ARTICLE 11. ALTERATIONS AND ADDITIONS
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Tenant at its expense, shall have the right to make such nonstructural
changes in the interior of the Premises, as it shall deem necessary or advisable
in adapting the Premises for its use. No structural changes shall be made
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld. All changes, alterations or installments shall be of
first class construction and shall, if required, be made only after obtaining
all permits for the same. The Tenant shall immediately pay all charges for such
changes, alterations or installations and shall not permit any liens for unpaid
labor or materials to arise.
All fixtures shall become a part of the Premises and the property of the
Landlord at the termination of the Lease except that trade fixtures, machinery
and equipment installed by Tenant shall be considered as its own and Tenant may
recover same at any time during the term of this Lease or any extension thereof,
provided that Tenant shall repair any damage caused to said Premises by such
removal.
ARTICLE 12. DAMAGE OR DESTRUCTION OF IMPROVEMENTS
-------------------------------------
In the event the Premises shall be rendered untenantable by insured
casualty, the Landlord will within one hundred twenty (120) days from the date
of said damage or destruction, repair and replace said Premises to substantially
the same condition as prior to the damage or destruction less wear and tear
caused by Tenant's use and occupation. If the Landlord fails to commence repair
of the damage or destruction within ten (10) business days (unless the repair or
restoration is of such character that it cannot be commenced within such time,
provided that in
any event that commencement thereof will occur within thirty (30) days of such
damage or destruction) from the date of such damage or destruction, or if the
Premises have not been replaced or repaired to such condition within one hundred
twenty (120) days, Tenant may at its option, (to be exercised by written notice
to the Landlord and to the Trustee) terminate this Lease. The Base Rent herein
required to be paid shall xxxxx during the period of such untenantability.
If the premises shall be damaged in part by insured casualty, but still
remain tenantable, the landlord shall repair said Premises to substantially the
same condition as prior to the damage less wear and tear caused by Tenant's use
and occupation. Landlord shall commence repair of the damage or destruction
within thirty (30) days from the date of occurrence. During the period of such
repairs and restorations, the Lease shall continue in full force and effect,
provided, however, that Tenant shall be required to pay the Base Rent, herein
reserved, abated by the percentage of area destroyed as compared to the total
area herein demised.
In the event that any damage or destruction occurring during the last
twelve (12) months of the original or extended term of this Lease to the extent
of ten (10%) percent or more of the insurable value of the Premises, Landlord or
Tenant may elect to terminate this Lease as of the date of the destruction or
damage, by giving notice of such election to the other and to the Trustee within
fifteen (15) days after such damage or destruction provided, however, that if
Tenant has exercised its option to purchase the Premises no such termination
shall take place and upon the payment of the purpose price the proceeds of
insurance shall be paid to the tenant.
Except as otherwise provided in the preceding paragraph, the Tenant shall
cause all insurance proceeds to be assigned to the Landlord in the event of fire
or other insured damage to be used for repair or restoration. In no event shall
the Landlord's obligations herein to restore the premises in the event of damage
or casualty exceed the amount of insurance proceeds made available to landlord
by the insurance carrier and released to Landlord by its Mortgagees for such
repair and/or restoration.
ARTICLE 13. LANDLORD'S RIGHT TO ACCESS
--------------------------
Tenant shall permit Landlord and Trustee and their agents to enter upon
said Premises at all reasonable times during business hours to examine the
condition of the same, provided that Landlord and/or Trustee gives Tenant
twenty-four (24) hour notice thereof except for in time of emergency, and
provided further that such entry is consistent with the Tenant's security
regulations, and shall permit Landlord and/or Trustee to make such repairs as
may be required. Tenant shall permit Landlord for a period of one hundred
eighty (180) days prior to the expiration of the original or extended term of
this Lease, to place upon the Premises the usual "For Rent" or "For Sale" signs,
and shall permit Landlord and his agents, at reasonable times, to conduct
prospective Tenants or Purchasers through said Premises after giving notice as
aforesaid.
ARTICLE 14. SURRENDER OF PREMISES
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Tenant shall surrender and deliver up said Premises and appurtenances at
the end of said term broom-clean and in as good condition and order as they were
at commencement of the term hereof, reasonable use and ordinary wear and tear
thereof and damage by fire or other casually and leasehold improvements made
with Landlord's consent excepted. Tenant may remove all the trade fixtures,
signs, equipment, stock and trade, and other items of a similar nature used in
connection with its business, including such as may have been temporarily
attached to the realty, provided all rents stipulated to be paid hereunder have
been paid and all damage to said Premises is properly repaired. If said removal
results in injury to or defacement of said Premises, Tenant shall immediately
repair the Premises at its expense.
ARTICLE 15. SIGNS
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Tenant shall have the privilege and right of placing on the Premises such
signs as it deems necessary and proper in the conduct of its business subject to
Landlord's prior written approval, which approval may not be unreasonably
withheld. Tenant shall comply with all laws, ordinances, deed and municipal
regulations and Industrial Park Restrictions applicable to the erection,
maintenance and the removal of said signs. Any damage to any Improvements by
said signs shall be restored by Tenant forthwith at its expense.
ARTICLE 16. ASSIGNMENT AND SUBLETTING
-------------------------
Provided Tenant is not in default of any of the terms, conditions or
covenants contained in this Lease, Tenant may assign this Lease or sublet the
Premises or any part thereof after first obtaining the prior written consent of
Landlord and Trustee which consent shall not be unreasonably withheld and upon
the further condition that the use of the property by a sublessee or assignee
are permitted by Municipal Ordinance, Industrial Park Restrictions, and that
such use will not create any default under any mortgage against the Premises.
No assignment or subletting consented to by Landlord shall relieve Tenant from
its liability hereunder, and each and every assignee or sublessee shall be
charged with all of the provisions hereof by a separate writing. Tenant shall
provide Landlord and Trustee with written identification of subtenant or
assignee, and terms of such subletting or assignment.
ARTICLE 17. EMINENT DOMAIN
--------------
If the entire Premises, or such part thereof, as, in the parties' judgment,
renders the remainder unsuitable for Tenant's continued use, shall be taken in
appropriation proceedings or by any rights of eminent domain, then this Lease
shall terminate and be void from the time when possession thereof is required
for public use, and such taking shall not operate as or be deemed an eviction of
the Tenant or a breach of Landlord's covenant for quiet enjoyment; but Tenant
shall pay all rent due, and perform and observe all other covenants hereof, up
to the time when possession is required for public use. Provided, however, that
if only a part of said Premises be so taken and in the Landlord and Tenant's
judgment the Leased Premises remain unsuitable for Tenant's continued use, and
if two (2) years or more of the term hereof then remains unexpired,
and if the remaining Premises can be substantially restored within sixty (60)
days, then this Lease shall not terminate, but Landlord will, at its sole
expense, restore the Leased Premises. Rent payable by Tenant during the period
of restoration shall be reduced by a reasonable amount, but after such
restoration, the rent herein reserved shall be paid by Tenant as herein provided
during the remainder of the term hereof abated by the percentage that the fair
market value of the Premises, attributable solely to the land and Improvements,
has been reduced because of such taking. Said market value immediately before
and after such taking shall be determined by agreement of the parties or,
failing agreement of the parties within thirty (30) days of the effective date
of such taking, by a local Independent Fee Appraiser selected by mutual
agreement of Landlord and Tenant, which appraiser's decision will be final and
binding on the parties. The cost of such appraiser shall be borne equally by
Landlord and Tenant.
Tenant shall have the right at its sole cost and expense to assert a
separate claim or join in Landlord's claim in any condemnation proceeding for
its personal property, its improvements, moving expenses, or any other claims it
may have; provided, however, that no award to the Tenant shall reduce the award
which would otherwise be due the Landlord and in no event prevent the Mortgagee
from collecting award proceeds. Tenant shall be entitled to and shall receive
that portion of any award or payment made which is attributable solely to its
claim, as set forth above and Landlord shall be entitled to and shall receive
that portion of any award of payment made which is attributable solely to the
land and Improvements erected thereon.
ARTICLE 18. DEFAULT
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The following events shall be deemed to be events of default by Tenant
under this Lease:
a. Tenant shall fail to pay any installment of the rent hereby reserved and
such failure shall continue for fifteen (15) days.
b. Tenant shall fail to comply with any term, provision or covenant of this
Lease, other than the payment of rent, and shall not cure such failure within
thirty (30) days after due written notice thereof to Tenant; or if such failure
shall be of such a nature that the same cannot be completely cured within the
said thirty (30) days and Tenant shall not have commenced to cure such failure
within such thirty (30) day period and shall not thereafter with reasonable
diligence and good faith proceed to cure such failure.
c. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
d. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof; or an involuntary petition in bankruptcy
shall be filed against Tenant thereunder.
e. A receiver or trustee shall be appointed for all or substantially all of
the assets of Tenant.
f. Tenant shall abandon or vacate the Premises during the term of this
Lease for a period in excess of three (3) months.
g. Tenant or anyone claiming under or through Tenant shall use the premises
in violation of zoning ordinances or in material violation of Park Restrictions.
h. Tenant or anyone claiming under or through Tenant shall use the Premises
in violation of the covenants of any mortgage applicable to the Premises.
Upon the occurrence of any of such events of default, Landlord shall have
the right, at Landlord's election subject to rules relating to government
security to pursue, in addition to and cumulative of any other rights Landlord
may have, at law or in equity, any one or more of the following remedies without
any notice or demand whatsoever:
a) Terminate this Lease, in which event Tenant shall immediately surrender
the Premises to Landlord, and if Tenant fails so to do, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearages in
rent, enter upon and take possession of the demised premises and expel or remove
Tenant and any other person who may be occupying said Premises or any part
thereof, without being liable for prosecution or any claim of damages therefore;
and Tenant agrees to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination.
b) Enter upon and take possession of the demised Premises and expel or
remove Tenant and any other person who may be occupying said Premises or any
part thereof without being liable for prosecution or any claim for damages
therefore, and relet the Premises and receive the rent thereof; crediting Tenant
therefore; and Tenant agrees to pay to Landlord on demand any deficiency that
may arise by reason of such reletting.
c) Enter upon the demised Premises without being liable for prosecution of
any claim for damages therefore, and do whatever Tenant is obligated to do under
the terms of this Lease, and Tenant agrees to reimburse Landlord on demand for
any expense which Landlord may incur in thus effecting compliance with Tenant's
obligations under the Lease, and Tenant further agrees that Landlord shall not
be liable for any damages resulting to the Tenant from such action, whether
caused by the negligence of Landlord or otherwise.
d) Require all rental payments by "subtenants" (including within that term
the third parties occupying various portions of the demised Premises under the
terms of Lease agreements with Tenant, as primary lessor or as sublessor) which
would otherwise be paid to Tenant to be paid directly to Landlord and apply such
rentals so paid to or collected by Landlord against any rents or other charges
due to Landlord by Tenant hereunder. No direct collection by Landlord from any
such "subtenants" shall release Tenant from the further performance of Tenant's
obligations hereunder.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the violation of
any of the terms, provisions and covenants herein contained. Failure by Landlord
to enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such default or of
any other violation or breach of any of the terms, provisions and covenants
herein contained. In determining the amount of loss or damage which Landlord may
suffer by reason of termination of this Lease or the deficiency arising by
reason of the reletting by Landlord as above provided, allowance shall be made
for the expense of repossession and any repairs. The Landlord shall use
reasonable efforts to relet the Leased Premises on commercially reasonable terms
and to apply all rents received in reduction of the Tenant's liability
hereunder.
ARTICLE 19. OPTION TO PURCHASE
------------------
a. Landlord grants Tenant the option, exercisable by Tenant at any time
during the term and any extension of this Lease, to purchase the Premises at a
purchase price in 1990 of Two Million, Nine Hundred Twenty-five Thousand Eight
Hundred Sixty-six ($2,925,866) which price shall increase at the rate of four
(4) percent per annum on the first day of each calendar year after 1990 during
the term and any extension of this Lease.
Tenant shall exercise its option to purchase by notice in writing thereof
delivered to or mailed by registered or certified mail to Landlord at Landlord's
address, which notice shall specify a closing date of not more than sixty (60)
days and not less than thirty (30) days from the date thereof. On the closing
date so specified or such other closing date as may be otherwise mutually agreed
upon between the parties, Landlord shall deliver to Tenant a good and sufficient
quitclaim deed running to Tenant or to the nominee designated in writing by
Tenant to Landlord prior to the closing date, which deed shall convey to Tenant
or Tenant's nominee a good and clear record and marketable title to the Premises
free and clear from all liens, encumbrances and restrictions, except:
1. Provisions of existing building and zoning laws;
2. Such taxes for the then current year as are not due and payable on the
date of delivery of such deed; and
3. Such other easements, restrictions and encumbrances of record which do
not materially interfere with the continuing use and operations of the
Premises.
Upon the delivery of such deed Tenant shall pay Landlord the purchase price in
full in cash or by bank or certified check and there upon all obligations of
Tenant under this Lease with respect to the Premises shall cease and determine
(except that the rent shall be apportioned as of such date).
b. In the event Landlord is unable to deliver the Premises to Tenant upon
the exercise of its option to purchase, this Lease shall automatically revive
and continue for a period of sixty (60) days during which time Landlord shall
use its best efforts (said obligation being limited by Landlord's expectation of
net proceeds from said sale) to deliver title to Tenant at the end of said
period. At the end of said sixty (60) days, tenant may elect to continue this
lease or terminate this lease, vacating the premises promptly.
ARTICLE 20. SERVICE OF NOTICE.
-----------------
Every notice, approval, consent or other communication authorized or
required by this Lease shall be in writing and sent by certified or registered
mail to the other party at the following address or at such other address as may
be designated by notice in writing given from time to tome and shall be deemed
given as of the date of mailing. If notice is to be given to Landlord it shall
be given at the following address:
c/o Development Associates
000 Xxxxxx Xxxxxx
Post Office Box 528
Xxxxxx, Xxxxxxxxxxxxx 00000
If notice is to be given to Tenant is shall be given at the following address:
Millitech Corporation
South Deerfield Research Park
Xxxx Xxxxxx Xxx 000
Xxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000
ARTICLE 21. QUIET ENJOYMENT
---------------
Landlord hereby covenants and agrees to and with the Tenant that the Tenant
shall have the peaceable possession and enjoyment of the Premises throughout the
term of this Lease without any hindrance, disturbance or ejectment by the
Landlord, its successors and assigns. Landlord represents and warrants that it
has full right and authority to enter into and perform its obligations as
Landlord under this Lease for the full term hereof.
ARTICLE 22. SUBORDINATION AND NONDISTURBANCE
--------------------------------
This Lease and all of the rights of Tenant hereunder are and shall be
subject and subordinate to the lien of any mortgage or mortgages hereinafter
placed on the Premises or any part thereof, except the Tenant's property or
trade fixtures, and to any and all renewals, modifications, replacements,
extensions or substitutions of any such mortgage or mortgages (all of which are
hereinafter termed the mortgage or mortgages) provided, nevertheless, each or
all of such mortgage or mortgages shall contain a provision to the effect that
so long as the Tenant is not in default under this Lease, or any renewal
thereof, no foreclosure of the lien of said mortgage or any other proceeding in
respect thereof shall divest, impair, modify, abrogate or otherwise adversely
effect any interest or rights whatsoever of the Tenant under the said Lease.
ARTICLE 23. RIGHTS OF MORTGAGEE
-------------------
Any Mortgagee of the Landlord shall have the following rights:
a. Any notice required to be given to the Landlord by the Tenant shall be
given as well in the same manner to the Mortgagee.
b. In the event that the Tenant shall have any excuse from paying rent or
right to set off its expenses from the rent, as a result of any default by the
Landlord or shall have any excuse from the performance of any obligation imposed
upon the Tenant by the terms of this Lease then and in such event, the tenant
shall give notice of its intended exercise of such right in the manner provided
for herein to the Mortgagee and thereafter the Trustee shall have the right, but
not the obligation, to cure said defaults within the time provided for cure of
the same as set forth in this Lease.
c. Upon the request of the Mortgagee or any assignee of the Mortgagee the
Tenant will furnish an estoppel certificate certifying that (i) the improvements
have been substantially completed or if not, the extent to which work remains,
and when completed that the Improvements have been completed in accordance with
the Lease; (ii) that the Tenant is in possession of the Premises; (iii) that
rent payments have commenced or are due and not paid more than one month in
advance; (iv) that the Lease is in full force and effect and has not been
amended, modified or superceded; (v) that the Tenant has received no notice that
the Lease has been assigned, transferred or pledged by the Landlord, not that
rentals under the Lease have been assigned other than to the Mortgagee; (vi)
that the Tenant has not advanced any unreimbursed sums to or on behalf of the
Landlord; (vii) that the Tenant holds no claim against the Landlord which is a
set off against rents due under the Lease; and (viii) such other information
concerning this tenancy as Mortgagee may from time to time require.
d. Upon the request of the Mortgagee the Tenant will furnish a copy of its
most recent annual report.
ARTICLE 24. HOLDOVER
--------
In the event Tenant remains in possession of the demised Premises after the
expiration of this Lease, it shall operate and be construed to be a tenancy from
month-to-month only, at a monthly rental equal to the annual rent charged at the
last and highest amount and additional rent paid for the last and highest amount
and additional rent paid for the last month of the term of this Lease plus
twenty (20%) percent of such amount, unless otherwise agreed in writing, and
otherwise subject to the conditions, provisions and obligations of this Lease
insofar as the same are applicable to a month-to-month tenancy. Written notice
thirty (30) days in advance given either Party to the other shall constitute
compliance with conditions of the month-to-month tenancy and establish the
termination date of the holdover term.
ARTICLE 25. TERMINATION OF PRIOR LEASE ON COMMENCEMENT DATE
-----------------------------------------------
Landlord and Tenant are parties to a certain "Lease" dated August 31, 1987
governing the portion of the Leased Premises described herein as Building 1 and
Building 2 ("Prior Lease"). Landlord and Tenant agree that the Prior Lease will
terminate on the Commencement Date as defined in Article 2 and all of the rights
of the Landlord and Tenant shall be thereafter governed by this Lease.
ARTICLE 26. GOVERNING LAW
-------------
This Lease and the performance thereof shall be governed, interpreted,
construed and regulated by the laws of the Commonwealth of Massachusetts.
ARTICLE 27. PARTIAL INVALIDITY
------------------
If any term, covenant, condition or provision of this Lease, or the
application thereof, to any person or circumstances, shall at any time or to any
extent be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition or provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
ARTICLE 28. INTERPRETATION
--------------
Wherever in this Lease the singular number is used, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders, and vice versa, as the context shall require. The section headings
used herein are for reference and conveniences only and shall not enter into the
interpretation thereof. This Lease may be executed in several counterparts,
each of which shall be an original but all of which shall constitute one and the
same instrument.
ARTICLE 29. SECURITY DEPOSIT
----------------
Tenant has deposited with the Landlord the sum of $12,938.35 as security
for the performance by the Tenant of the terms of this lease. The Landlord may
use, apply, or retain the whole or any part of this security deposit to the
extent required for the payment of any rent and additional rent or any sums as
to the Landlord may expand by reason of the Tenant's default in respect to any
of the terms of this lease, including but not limited to any damage or
deficiency in reletting of the leased property, whether such damages or
deficiency accrued before or after summary proceedings or any other reentry by
Landlord. In the event that the Tenant complies with all of the terms of the
lease, the security deposit shall be returned to the Tenant within 30 days after
the date fixed as the end of the lease. In the event of a sale of the premises
by the Landlord, they shall have the right to transfer the security deposit to
the purchaser and the Landlord shall thereupon be released from all liability
for the return of such security deposit. The Tenant shall look solely to the
new Landlord for the return of such deposits. The Tenant shall not assign or
encumber the money deposited as security and neither Landlord nor its successors
or assigns shall be bound by any such assignment or encumbrance.
ARTICLE 30. ENTIRE AGREEMENT
----------------
No oral statement or prior written matter shall have any force or effect.
Tenant agrees that it is not relying on any representations or agreements other
than those contained in this Lease. This agreement shall not be modified or
canceled except by writing subscribed by all parties.
ARTICLE 31. PARTIES
-------
The term "Landlord" as used in this Lease means only the owner, or
mortgagee in possession of the Leased Premises. Landlord Warrants to Tenant
that Landlord has the full right and lawful authority to enter into this Lease
and is fee simple owner of the Premises and title to the Leased Premises is free
and clear of any liens or encumbrances which would affect Tenant's use and
occupancy of said premises except those set forth in Exhibit A. Except as
otherwise expressly provided herein, the covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and their respective successors and assigns.
Executed as a sealed instrument as of the day and year first written above.
TENANT LANDLORD
MILLITECH CORPORATION XXXXXX X. X'XXXXX/XXXXXXX X.
XXXXXXXX PARTNERSHIP
By /s/ By /s/ Xxxxxx X. X'Xxxxx
--------------------------- ---------------------------
Its President Xxxxxx X. X'Xxxxx
General Partner
By /s/ Xxxxxx X. Day By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Its Vice President Xxxxxxx X. Xxxxxxxx
General Partner
EXHIBIT A
X'XXXXX-XXXXXXXX/MILLITECH LEASE
The land situate in South Deerfield, Franklin County, Massachusetts which
is shown as Lot 9 on a certain plan entitled "Deerfield Industrial Park
Disposition Parcels and Easements" recorded in the Franklin County Registry of
Deeds in Book of Plans 57, Page 93.
EXHIBIT B
X'XXXXX-XXXXXXXX/MILLITECH LEASE
The land situate in South Deerfield, Franklin County, Massachusetts which
is shown as Lot 8 on a certain plan entitled "Deerfield Industrial Park
Disposition Parcels and Easements" recorded in the Franklin County Registry of
Deeds in Book 57, Page 93.
EXHIBIT C
X'XXXXX-XXXXXXXX/MILLITECH LEASE
Plans by The X'Xxxxx Company, Inc., College Highway Southampton,
Massachusetts, all numbered 82073 and entitled "New Building Addition for
Millitech Corporation South Deerfield, MA" sheets 1-1, X-0, X-0, X-0, and A-4.
Specifications entitled "Outline specifications for Millitech Corporation"
revised October 17, 1989.
THE FOLLOWING IS A SUMMARY OF INFORMATION PROVIDED
IN THE EXHIBITS OF THE LEASE. FURTHER INFORMATION WILL BE
FURNISHED UPON REQUEST.
Exhibit A
Identification of where full description of the leased real property
(lot 9) is recorded.
Exhibit B
Identification of where full description of the leased real property
(lot 8) is recorded.
Exhibit C
Further identification of the plans and specifications for the addition
to Building 2.
Insert for Antennae
An agreement whereby the Landlord grants the Tenant the right to install
and operate, at its own cost and expense, up to two communications antennae on
the roof of the building.
