EXHIBIT 10.33
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LEASE
(ENTIRE BUILDING)
Between
Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx
Landlord
And
PEMSTAR INC.
Tenant
Address of Premises:
Constitution Drive, The Miles Xxxxxxxx Industrial Park, Xxxxxxx, XX 00000
Dated as of April 30, 2001
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BASIC TERMS
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The information provided on this page is for convenience purposes only. In the
event of any conflict or inconsistency between the terms set forth below and the
terms of the attached Lease, the terms of the Lease shall be controlling.
DATE: April 30, 2001
PROPERTY DESCRIPTION: All that certain parcel of land situated at Xxx 00X,
Xxxxxxxxxxxx Xxxxx, in the Miles Xxxxxxxx Industrial
Park in Taunton, Bristol County, Massachusetts, all
more particularly described as Lot 58R on a plan
entitled "Plan of Land in Taunton, Mass owned by
Taunton Development Corp.", dated March 27, 1997, by
Xxxxxxxx Engineering Corp., recorded with the Bristol
North District Registry of Deeds in Plan Book 361,
Page 55, together with the improvements thereon,
including a building consisting of approximately
83,800 square feet of manufacturing, distribution,
warehouse and office space.
USE: Offices and manufacturing, assembly, storage and
distribution of electronics products and any other
lawful business purpose
LANDLORD'S NAME AND
ADDRESS: Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx
c/o The Matco Electronics Group
000 X. Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
TENANT'S NAME AND ADDRESS: PEMSTAR INC.
0000 Xxxxxxxxxx Xxxxx XX
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
INITIAL TERM: Five years, April 30, 2001, through April 30, 2006
OPTIONS TO EXTEND: One five (5) year option.
INITIAL TERM MONTHLY
BASE RENT: $41,000.00
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INDEX
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Article Title of Article Page
------- ---------------- ----
1 Definitions................................................. 1
2 Premises, Condition......................................... 4
3 Lease Term.................................................. 5
4 Rent........................................................ 5
5 Impositions, Assessments.................................... 6
6 Use......................................................... 7
7 Surrender................................................... 8
8 Insurance................................................... 9
9 Indemnification............................................. 10
10 Operation, Repairs and Maintenance; Alterations............. 11
11 Discharge of Liens.......................................... 14
12 Compliance with Laws........................................ 15
13 Damage or Destruction....................................... 15
14 Condemnation................................................ 16
15 Assignment.................................................. 18
16 Default..................................................... 19
17 Tenant Equipage............................................. 21
18 Subordination............................................... 21
19 Entry by Landlord; Performance of Covenants................. 22
20 Certificates................................................ 22
21 Notices..................................................... 23
22 Miscellaneous............................................... 24
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LEASE
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(ENTIRE BUILDING)
THIS LEASE ("Lease") is made as of April 30, 2001, by and between Xxxxx
X. Xxxxxxxx and Xxxxxx Xxxxxxxx having an address at 000 Xxxxx Xxxxxx Xxxx,
Xxxxxx, XX 00000 ("Landlord"), and PEMSTAR INC., a Minnesota corporation having
an office at 0000 Xxxxxxxxxx Xxxxx XX, Xxxxxxxxx, Xxxxxxxxx 00000 ("Tenant").
ARTICLE 1
Definitions
1.1 Certain Definitions. Landlord and Tenant agree that the following
capitalized terms when used herein shall, unless the context otherwise requires,
have the following meanings:
"Accessibility Regulation" shall mean a Law relating to accessibility
of facilities or properties for disabled, handicapped and/or physically
challenged persons, including, without limitation, the Americans With
Disabilities Act of 1991, as amended.
"Additional Rent" shall mean all sums payable by Tenant pursuant to
this Lease, except Base Rent.
"Base Rent" shall mean the sums payable to Landlord pursuant to Section
4.1.1 hereof.
"Building" shall mean the warehouse/manufacturing building located on
the Land, together with all Building Elements thereof, but excluding any Tenant
Equipage.
"Building Elements" shall mean the structural elements of the Building,
together with those portions of the building systems therein which provide
electrical, gas, water and sewer services to the Building for general warehouse
and office uses (as opposed to such systems which are specific to the particular
uses of Tenant). Building Elements expressly exclude all Tenant Improvements and
Tenant Equipage. In illustration of the foregoing, the general electrical and
plumbing systems providing electrical service to a main breaker box and making
water and sewer service available to common lavatories and washbasins are
Building Elements, distribution wiring to work areas and plumbing and sewer work
to operational areas of the Premises are Tenant Improvements and any specialized
wiring and plumbing unique to a particular activity being conducted by Tenant in
the Premises are Tenant Equipage.
"Commencement Date" shall mean the day the Lease Term begins as
identified in Section 3.1 hereof.
"Consumer Price Index" means the All Items portion of the "Consumer
Price Index for All Urban Consumers", U.S. City Average published by the Bureau
of Labor Statistics of the United States Department of Labor. If the base year
selected by the United States Department of Labor for calculation of such index
shall be changed, then the resultant index derived from such change shall be
readjusted to reflect the base initially established. In the event said index
shall be discontinued, Landlord shall select another index published by a
department or agency of the United States Government to be substituted for the
prior index, with any appropriate adjustment required because of differences in
the prior index and the substituted index. This procedure shall continue until
such time as no such index is so published, at which time Landlord shall
reasonably substitute an index prepared by an appropriate corporation or other
entity.
"Environmental Regulation" shall mean a Law relating to the environment
and/or the impact thereof on human health or safety, or governing, regulating or
pertaining to the generation, treatment, storage, handling, transportation, use
or disposal of any Hazardous Substance, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. 9601, et seq., the Hazardous Materials Transportation Act, 49
U.S.C. 1801, et seq., and the Resource Conservation and Recovery Act 42 U.S.C.
6901 et seq., and the regulations promulgated thereunder.
"Event of Default" shall mean any of the events or circumstances
described in Section 16.1 hereof.
"Expiration Date" shall mean the day the initial Lease Term expires as
identified in Section 3.1 hereof (or, if Tenant exercises its early termination
option pursuant to Section 3.3 hereof, the Expiration Date set forth in the
notice given pursuant to such Section).
"Full Insurable Value" shall mean the replacement cost of the Building,
without allowance for depreciation, but excluding footings, foundations and
other portions of improvements which are not insurable. A determination of Full
Insurable Value shall be made at least once every three (3) years at Tenant's
expense by a firm of qualified property insurance appraisers satisfactory to
Landlord and to property insurance companies generally.
"Hazardous Substance" means any substance or material defined in or
governed by any Environmental Regulation as a dangerous, toxic or hazardous
pollutant, contaminant, chemical, waste, material or substance, and also
expressly including urea-formaldehyde, polychlorinated biphenyls, dioxin,
asbestos, asbestos containing materials, nuclear fuel or waste, radioactive
materials, explosives, carcinogens and petroleum products, including but not
limited to crude oil or any fraction thereof, natural gas, natural gas liquids,
gasoline and synthetic gas, or any other waste, material, substance, pollutant
or contaminant which would subject the owner or operator of the Premises to any
damages, penalties or liabilities under any applicable Environmental Regulation.
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"Impositions" shall mean all real estate taxes, water, sewer, heat,
electricity, gas and all other utility rates and other similar governmental
charges, which are assessed, levied, confirmed, imposed or shall become payable
upon or with respect to the Premises during the term hereof. There shall also be
included with such term any taxes which may hereafter be imposed upon or payable
with respect to the Rent payable by Tenant hereunder, excluding income and
franchise taxes imposed with respect to all income of Landlord.
"Land" shall mean the parcel of land described in Part I of Exhibit A
attached hereto, together with all appurtenances thereto and easements
benefiting such parcel.
"Law" shall mean any federal, state or local law, statute, code,
ordinance, rule or regulation applicable to the Premises or the use or operation
thereof.
"Lease Term" shall mean the term of this Lease as identified in Article
3 hereof, including any extensions of the initial term made in accordance with
the provisions thereof.
"Permitted Encumbrances" shall mean those matters listed in Part II of
Exhibit A attached hereto.
"Premises" shall mean the Land and Building and all other improvements
now, or at any time hereafter, erected or situated on the Land.
"Rent" shall mean all Base Rent, Additional Rent and other sums payable
to Landlord or on behalf of Landlord under this Lease, whether or not
specifically denominated as rent.
"Tenant Equipage" shall mean all Tenant Equipment, temporary dividers
and partitions, and special use building and utility systems, from time to time
located on the Premises. In illustration, and not in limitation of the
foregoing, Tenant Equipage shall include all project-specific equipment and
support systems now existing or installed from time to time to meet the
requirements of a specific manufacturing project or process as opposed to being
of general utility in the Premises. Tenant Equipage includes, without
limitation, such items as compressed air systems, demineralized water systems
and nitrogen systems.
"Tenant Equipment" shall mean Tenant's personal property and items of
manufacturing equipment other than building or utility systems. Tenant Equipment
does not include building or support systems such as compressed air systems,
demineralized water systems and nitrogen systems.
"Tenant Improvements" shall mean the internal non-load bearing walls,
internal general-purpose building and utility systems, such items as general use
heating and air conditioning units and systems as well as all internal walls and
offices.
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ARTICLE 2
Premises, Condition
2.1 Leasing. Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord, subject to the Permitted Encumbrances
and upon all of the terms, covenants and conditions set forth herein.
2.2 Warranties of Condition. Landlord warrants that the Premises are in
good and safe condition, structurally sound and that all heating, ventilating
and cooling systems, plumbing systems, electrical systems and other building
systems are and will be in good working condition, and in compliance with
Accessibility Regulations and all other applicable Laws. Without limitation of
the foregoing, Tenant may submit to Landlord at any time prior to the date
ninety (90) days after taking possession of the Premises a punchlist of
defective items in the Premises. Landlord agrees to correct all such defective
items, at Landlord's sole expense, as soon as reasonably possible, but in no
event more than thirty (30) days after receipt of notice from Tenant.
Notwithstanding the foregoing, Landlord will, at Landlord's sole expense,
correct any latent defect promptly after Tenant notifies Landlord of any latent
defect. Tenant will not be deemed to waive any rights Tenant may have against
Landlord under Landlord's warranties, as provided below, by taking possession of
the Premises. Landlord agrees to provide Tenant with copies of all warranties
and maintenance information from manufacturers with respect to the components of
the Premises.
2.3 Environmental. Without limitation of the foregoing, Landlord has
supplied to Tenant a true and complete copy of a Preliminary Site Assessment
dated September 16, 1994 by Xxxxxxxx Engineering Corp. (TEC Job No. 10052.010);
a Report on Oil and Hazardous Material Site Evaluation, Proposed Building for
U.S. Assemblies Company, Constitution Drive, Taunton, Massachusetts by Xxxxx &
Xxxxxxx, Inc. dated May 1997 (File No. 11651-042) and a letter dated March 29th,
2001 from Xxxxxxx X. Xxxxxx, Executive Director of the Taunton Development
Corporation (the "Reports"). Landlord represents and warrants to Tenant that
Landlord does not have and does not know of any other environmental reports,
studies or tests which have been prepared or conducted with respect to the
Premises, which provide additional information or contradict the findings set
forth in the Reports and the tests identified therein. Landlord represents and
warrants that, except as provided in the Reports, to the best of Landlord's
knowledge: (i) the Premises are in compliance with all Environmental Regulations
and (ii) no Hazardous Substances have been stored, used or otherwise located on,
in or under the Premises. Landlord agrees to indemnify, defend and hold Tenant
harmless against any and all Environmental Damages incurred or to be incurred as
a result Existing Contamination or Landlord Contamination or failure to comply
with any Environmental Regulations, including reasonable attorneys' fees.
"Existing Contamination" means Contamination, if any, which exists on, in,
below, or is migrating on, under or in the direction of the Premises, whether
known or unknown on the date Tenant takes possession of the Premises. "Landlord
Contamination" means contamination at the Premises caused by or arising out of
any act, omission, neglect or fault of Landlord or its agents, employees,
contractors or invitees. "Contamination" means the
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uncontained or uncontrolled presence of or release of Hazardous Substances into
any environmental media from, upon, within, below, into or on the Premises.
"Environmental Damages" means all claims, judgments, losses, penalties, fines,
liabilities, encumbrances, liens, costs and reasonable expenses of
investigation, defense or good faith settlement resulting from violations of
Environmental Regulations, and including, without limitation: (i) damages for
personal injury and injury to property or natural resources; (ii) reasonable
fees and disbursement of attorneys, consultants, contractors, experts and
laboratories; (iii) costs of any cleanup, remediation, removal, response,
abatement, containment, closure, restoration or monitoring work required by any
Environmental Regulation and other costs reasonably necessary to restore full
economic use of the Premises; and (iv) third-party claims relating to the
immediately preceding subsections (i) - (iii). Landlord will perform any
remediation required by any governmental authority in such a manner as to have
as little impact on Tenant's business being conducted at the Premises as
reasonably possible. If Existing Contamination or Landlord Contamination
actually prevents Tenant, or is reasonably expected to prevent Tenant, or its
employees or customers, from occupying any material part of the Premises in a
manner that materially adversely affects Tenant's business being conducted at
the Premises for any period of 60 or more continuous calendar days, Tenant will
have the right to terminate the Lease by giving written notice to Landlord.
Landlord's obligations and liabilities under this Section will survive the
expiration or termination of this Lease.
ARTICLE 3
Lease Term
3.1 Initial Term. The Premises are leased to Tenant, for a term (the
"Initial Term") of five (5) years, commencing on April 30, 2001, and ending on
April 30, 2006, unless sooner terminated or further extended, as hereinafter
provided.
3.2 Option to Extend. Provided that no Event of Default shall exist
hereunder at the time of exercise of such option, Tenant shall have the right
and option to extend the Lease Term for one additional period of five years (the
"Extension Period"), commencing on the day following the Expiration Date. Such
option shall be exercised by Tenant giving written notice (an "Extension
Notice") thereof to Landlord not later than one year prior to what would
otherwise be the last day of the Lease Term, time being of the essence. If
Tenant so exercises its option to extend the Lease Term, all of the terms,
covenants, conditions and provisions of this Lease shall continue to be
applicable during such additional period, except that the monthly Base Rent
shall be adjusted as provided below.
ARTICLE 4
Rent
4.1 Rent. Tenant agrees to pay to Landlord, without demand, at the
address set forth hereinabove, or at such other place as Landlord may from time
to time designate in writing, Rent for the Premises as follows:
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4.1.1 Base Rent. A monthly Base Rent shall be due and payable
in advance on the first day of each and every calendar month during the
Lease Term, commencing May 1, 2001.
(a) Initial Term. For the Initial Term, the monthly Base
Rent shall be $41,000.00 per month.
(b) Extension Period. In the event Tenant exercises its
option to extend the Lease Term as provided in
Section 3.2 above, during the Extension Period, the
monthly Base Rent shall be the lesser of (a)
$47,983.00 or (b) $41,000 multiplied by the ratio of
the Consumer Price Index for the month of March of
2006 to the Consumer Price Index for the month of
March, 2001.
4.1.2 Additional Rent. Tenant shall pay as Additional Rent all
other sums of money required to be paid pursuant to this Lease, which
shall be paid at the time and in the amounts set forth elsewhere in
this Lease.
ARTICLE 5
Impositions, Assessments
5.1 Tenant to Pay Impositions. Landlord shall pay all Impositions
existing or pending or arising out of use of the Premises on or before the
Commencement Date. Tenant shall pay, as Additional Rent, when due and before any
fine or penalty is added thereto for the nonpayment thereof, all other
Impositions which become due and payable during the years which are included in
whole or in part in the Lease Term; provided, however, that if any such
Imposition may be paid in installments, Tenant may pay each installment before
any fine or penalty is added to any such installment for the nonpayment thereof.
Impositions due and payable during the years when the Lease Term commences and
terminates shall be prorated according to the number of days in such years
included in the Lease Term. With respect to Impositions which are payable in
installments which extend beyond the Lease Term, Tenant shall only be obligated
to pay those installments which fall within the Lease Term. Tenant shall also
reimburse Landlord for sales or rental taxes, if any, paid or payable by
Landlord on rentals from the Premises.
5.2 Payment of Assessments. Landlord shall pay all special assessments
for local improvements and betterments levied or pending or which relate to
improvements in place on the Commencement Date. Tenant covenants to pay when due
and before any fine or penalty is added thereto for the nonpayment thereof, all
other assessments for local improvements and betterments which become due and
payable during the years which are included in whole or in part in the Lease
Term; provided, however, that if any such assessment may be paid in
installments, Tenant shall be required to pay only those installments which come
due during the Lease Term. If any such assessments are proposed, and if Tenant
so requests, Landlord agrees to cooperate with and
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assist Tenant in seeking to have such assessments made payable in installments,
spread over the longest period then available under applicable law and/or
governmental policies.
5.3 Evidence; Contents. Tenant shall deliver to Landlord from time to
time duplicate receipts or photostatic copies thereof showing payment of all
Impositions within 10 days after Landlord's request therefor from time to time.
Landlord shall, at its option, have the right at any time during the Lease Term
to pay, without the necessity of inquiring into the validity or legality
thereof, any delinquent Impositions and interest and penalties thereon, and the
amount so paid, including reasonable expenses incurred in connection therewith,
shall be so much Additional Rent due from the Tenant to Landlord at the next
rental payment date after such payment; provided, however, that if Tenant shall
in good faith proceed to contest any such Impositions or the validity thereof by
proper legal proceedings which shall operate to prevent the collection thereof
and the sale of the Premises or any part thereof to satisfy the same, Tenant
shall not be required to pay, discharge or remove any Impositions so long as
such proceeding is pending and Tenant is diligently prosecuting such proceeding;
provided further that Tenant, not less than 10 days before any such Impositions
shall become delinquent, shall give notice to Landlord of Tenant's intention to
contest the validity thereof and shall deposit with Landlord an amount
sufficient to pay the contested Impositions, plus penalty and interest through
the period of contest.
5.4 Utilities. Landlord represents and warrants that water, sewer, gas,
heat, electricity, light and power are available to the Premises in amounts
adequate for the business conducted on the Premises prior to the Commencement
Date and will continue to be so available. Tenant acknowledges that Landlord
shall not be required to furnish to Tenant any water, sewer, gas, heat,
electricity, light, power or any other facilities, equipment, labor, materials
or any services of any kind whatsoever. Tenant shall make its own arrangements,
at its own cost and expense, for the furnishing to the Premises of all
utilities, facilities or services required for Tenant's use, and Tenant shall
pay for all such utilities, facilities or services to the Premises.
ARTICLE 6
Use
6.1 Use. The Premises may be used and occupied by Tenant for offices
and manufacturing, assembly, storage and distribution of electrical,
electromechanical and electronic products and components and any other lawful
business purposes which do not cause loss of any tax exemption on the Landlord's
Massachusetts Industrial Finance Agency ("MIFA") Industrial Development Revenue
Bonds (Xxxxx X. and Xxxxxx Xxxxxxxx Issue - Series 1997) (the "Bonds") and which
are permitted under the terms of the Bond Documents or are consented to by MIFA.
If Tenant shall use the Premises in violation of this Section 6.1, Landlord may
give Tenant written notice demanding that Tenant terminate such improper use
within 30 days thereafter. A failure to timely cease such violation shall be
deemed a default in the performance of a provision of this Lease, within the
meaning of Section 16.1.2 hereof.
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6.2 Compliance with Environmental Regulations. Except for substances
and in quantities which are normally used in the operation of Tenant's business
or for the maintenance or operation of the Premises, and which are used, stored
and disposed of in accordance with all applicable Environmental Regulations,
Tenant shall not, nor shall it authorize others to, place, store, locate,
generate, produce, create, process, treat, handle, transport, incorporate,
discharge, emit, spill, release, deposit or dispose of any Hazardous Substance
in, upon, under, over or from the Premises. Tenant shall cause all Hazardous
Substances placed in or under the Premises by or with authority of Tenant and
which are not permitted under the foregoing sentence and which are the result of
Tenant's violation of the foregoing sentence, and which exist in quantities
which violate applicable Environmental Regulations to be properly removed
therefrom and properly disposed of at Tenant's expense. Tenant shall not install
or permit to be installed any underground storage tank on or under the Land.
Tenant shall, promptly after obtaining actual knowledge thereof, give notice to
Landlord of (i) any activity in material violation of any applicable
Environmental Regulation relating to the Premises, (ii) any governmental or
regulatory actions instituted or threatened under any Environmental Regulation
affecting the Premises, (iii) all claims made or threatened by any third party
against Tenant or the Premises relating to any Hazardous Substance or a
violation of any Environmental Regulation, and (iv) any discovery by Tenant of
any occurrence or condition on or under the Premises which could subject
Landlord, Tenant or the Premises to a claim under any Environmental Regulation.
Any investigation, remedial or corrective action taken with respect to the
Premises shall be done under the supervision of a qualified engineer or
consultant acceptable to Landlord who shall, at the completion of such
investigation or action, provide a written report thereon to Landlord. If such
investigation, remedial or corrective action is required as a result of Tenant's
violation of its obligations under this Section 6.2, the same shall be performed
at Tenant's expense.
ARTICLE 7
Surrender
7.1 Time; Condition. Upon termination of this Lease, whether by reason
of lapse of time, forfeiture or otherwise, Tenant shall immediately surrender
possession of the Premises to Landlord in good order, condition and repair,
ordinary wear and tear and loss by insured casualty excepted, and shall remove
all Tenant Equipment (unless Landlord and Tenant otherwise agree in writing).
All Tenant Equipage (other than the Tenant Equipment) not removed from the
Premises by Tenant shall become the property of Landlord without any obligation
on the part of Landlord to compensate Tenant therefor. If possession be not
immediately surrendered, Landlord may forthwith re-enter the Premises and
repossess the same or any part thereof and expel and remove therefrom all
persons and property without being deemed guilty of any unlawful act or liable
for damages by reason of such re-entry and without prejudice to any other legal
remedy available to Landlord.
7.2 Removal of Tenant Equipage. Notwithstanding the preceding Section
hereof, Tenant or Tenant's lender(s) may remove any or all of the Tenant
Equipage (including any or all Tenant
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Equipment), provided that such removal shall be made prior to the end of the
Lease Term. Tenant or such lender shall repair any damage resulting from such
removal at Tenant's sole expense.
ARTICLE 8
Insurance
8.1 Tenant Insurance. Tenant, at its sole cost and expense, shall
maintain in effect at all times during the Lease Term, a Commercial General
Liability Insurance policy, which policy shall include coverage for bodily
injury, property damage, personal injury, contractual liability (applicable to
this Lease), independent contractors and products-completed operations
liability. Such policy shall provide coverage of at least $1,000,000 for each
occurrence and annual aggregate coverage of at least $2,000,000.
8.2 Landlord Insurance. Landlord shall purchase and maintain insurance
on the Building against loss by fire and other hazards as reasonably required by
Landlord's Mortgagee under the Bonds, and in any event with coverage not less
than that covered by a so-called "all-risk" form of policy, including contingent
liability from operation of building laws coverage, in an amount not less than
the Full Insurable Value. Such policy shall have an "agreed amount" endorsement
or otherwise exclude co-insurance participation by the insured, and may include
a deductible in an amount not greater than $10,000.00. Tenant shall reimburse
Landlord for the cost of such insurance by remitting payment to Landlord within
30 days after receipt of evidence that Landlord has paid the same.
8.3 Insured Parties; Other Provisions. All property insurance policies
shall name Tenant as an additional named insured. All liability insurance
policies shall name Landlord, Landlord's mortgagee and Tenant as named insureds.
In the event that the holder of such a mortgage is named as an insured under any
of the foregoing property insurance policies, the proceeds under such policies
shall be made payable to such mortgagee or mortgagees pursuant to standard
mortgagee clauses. Each of the foregoing policies shall, to the extent
reasonably available, contain the agreement of the insurer that:
8.3.1 Such policies shall not be canceled except upon 30 days'
prior notice to each named insured;
8.3.2 The insurer waives all rights of subrogation against all
named insureds; and
8.3.3 The insurance provided thereunder shall not be affected
by any defense the insurer may have against Landlord, Tenant or any
other person.
8.4 Companies; Renewals; Failure to Provide. All policies required by
this Article shall be carried in such companies and upon forms reasonably
acceptable to Landlord and Tenant. Certificates of all policies required to be
furnished by a party hereunder shall be deposited with
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the other party hereto prior to the commencement of the Lease Term, and renewals
thereof, and evidence of the payment of premium to continue coverage in force
shall all be deposited with such other party not less than 30 days prior to the
date on which such insurance would otherwise expire. At Landlord's option,
exercised in writing, in the event Tenant shall fail to provide a policy Tenant
is required to carry, Landlord may obtain such insurance and the entire cost
thereof shall be due and payable as Additional Rent upon billing by Landlord. At
Tenant's option, exercised in writing, in the event Landlord shall fail to
provide a policy Landlord is required to carry, Tenant may obtain such insurance
and shall not be required to reimburse Landlord for any insurance costs for the
period during which the insurance so obtained by Tenant is in effect.
ARTICLE 9
Indemnification
9.1 Tenant Indemnity. Tenant shall indemnify and hold Landlord harmless
against and from all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses, including reasonable attorneys' and other
consultants' fees, which may be imposed upon, incurred by or asserted against
Landlord by reason of any accident, injury, death or damage to property
occurring in, on or about the Premises during the Lease Term, unless and except
to the extent arising out of the negligence or misconduct of Landlord or its
agents or employees or out of the condition of the Premises at the time Landlord
delivers possession thereof to Tenant. In case any action or proceeding is
brought against Landlord by reason of such indemnified liabilities, obligations,
damages, penalties, claims, costs, charges, and expenses, Tenant, upon written
notice from Landlord, shall at Tenant's expense resist or defend such action or
proceeding by counsel approved by Landlord in writing.
9.2 Landlord Indemnity. Landlord shall indemnify and hold Tenant
harmless against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including reasonable attorneys' and other
consultants' fees, which may be imposed upon, incurred by or asserted against
Tenant by reason of any accident, injury, death or damage to property occurring
in, on or about the Premises during the Lease Term, to the extent arising out of
the negligence or misconduct of Landlord or its agents or employees or out of
the condition of the Premises at the time Landlord delivers possession thereof
to Tenant. In case any action or proceeding is brought against Tenant by reason
of such indemnified liabilities, obligations, damages, penalties, claims, costs,
charges, and expenses, Landlord, upon written notice from Tenant, shall at
Landlord's expense resist or defend such action or proceeding by counsel
approved by Tenant in writing.
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ARTICLE 10
Operation, Repairs and Maintenance; Alterations
10.1 Landlord Repairs and Maintenance. Prior to delivering possession
of the Premises to Tenant, Landlord, at its sole expense, will cause the
Premises to comply with all Accessibility Regulations and all other Laws.
Landlord, at its sole expense, will be responsible for any noncompliance of the
Premises with the Laws existing at the Commencement Date. Throughout the Lease
Term, Landlord shall, at Landlord's sole cost and expense, keep the roof and all
structural elements of the Premises, the exterior supporting walls and the
foundations of the Premises in good, watertight condition and repair and shall
make all repairs or replacements to the Premises, where such repairs or
replacements are necessary due to design, construction or latent defects, or are
subject to construction or material warranties. Landlord will do or cause others
to do all necessary shoring of foundations and walls of the Building and every
other act or thing for the safety and preservation thereof which may become
necessary by reason of any excavation or other building operation upon any
adjoining property or street, alley or passageway.
10.2 Tenant Operation, Repairs and Maintenance. Throughout the Lease
Term (and except for the matters which Landlord is required to repair and
maintain pursuant to Section 10.1 above), Tenant shall, at Tenant's sole cost
and expense, take good care of the Premises, including the roof and spouting,
all passageways, sidewalks, curbs and vaults adjoining the Premises, and shall
put and keep the same in good order, condition and repair, and shall make all
non-structural repairs thereto, all as may be necessary to keep the Premises and
the fixtures, appurtenances, and installations therein contained in good order
and condition and in compliance with all Laws. When used in this Lease, the term
"repairs" shall include all replacements, renewals, and alterations, when
necessary and appropriate. All repairs made by Tenant shall be comparable in
quality and class to the original work. Tenant shall keep the Building
adequately heated during all months of the year when temperatures are below
freezing to prevent damage to the Building by freezing or heaving and further
shall make all repairs necessary to avoid any structural damage or injury to the
Premises whether caused by freezing or heaving or any other reason. Tenant shall
also keep and maintain all portions of the Premises, and all passageways,
roadways, entrances, curbs and sidewalks adjoining the Premises, in a clean and
orderly condition, reasonably free of accumulated dirt, rubbish, snow and ice,
and any other unlawful obstructions; and Tenant shall not permit or suffer the
overloading of any of the floors of the Building. Without limitation of the
foregoing, Tenant shall not do, permit or suffer to be committed any waste or
damage, disfigurement or injury to the Premises, or any part or portion thereof,
except as expressly provided in this Article 10.
10.3 Alterations. Landlord and Tenant acknowledge that Tenant's
anticipated use of the Premises may require periodic remodeling and alterations
of the Premises to accommodate the varying needs of Tenant and/or its customers.
Landlord also has legitimate rights to approve certain changes to the Premises.
To balance these interests, the parties agree as follows:
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10.3.1 Work Not Requiring Consent. Tenant may at any time and
from time to time do the following at Tenant's sole cost and expense
and without obtaining the consent of Landlord
(a) make changes, alteration, additions, restorations or
improvements in, to or of the Tenant Equipage.
(b) add or make changes to Tenant Improvements (herein
collectively referred to as a "Tenant Improvement
Alteration") or make non-structural alterations to
Building Elements(herein collectively referred to as
a "Minor Building Alteration") costing $50,000 (as
such sum may be adjusted as set forth below) or less,
in any 12 month period.
The amount of Tenant Improvement Alterations and Minor Building
Alterations which can be made without Landlord consent shall be
increased from time to time in proportion to the increase, if any, in
the Consumer Price Index between the date of this Lease and the date
the work is being performed.
10.3.2 Work Requiring Consent. Tenant may not make any change,
alteration, addition, restoration or improvement in, to or of the
Building Elements other than Minor Building Alterations (herein
collectively referred to as a "Major Building Alteration") without
first, in each instance, obtaining the written consent of Landlord and
compliance with the provisions of Section 10.3.3 below. Such consent
shall not be unreasonably withheld unless (a) in the reasonable opinion
of Landlord, the Major Building Alteration would materially impair the
structural integrity of the Building, or any part thereof, or (b)
Landlord's mortgagee's consent is required and is withheld; and shall
not be withheld to the extent to which such a Building Alteration is in
fact required to effect compliance with any Law. Before the
commencement of any Major Building Alteration herein:
(a) Tenant shall, except in emergency, give 60 days'
prior written notice thereof to Landlord;
(b) Tenant shall obtain Landlord's prior written approval
of a licensed architect or a licensed professional
engineer selected and paid for by Tenant who shall
supervise any such Major Building Alteration; and
(c) Tenant shall obtain Landlord's prior written approval
of plans and specifications prepared by said approved
architect or engineer, which approval shall not be
unreasonably withheld or delayed. No such Major
Building Alterations shall be made except such as are
in all material respects in accordance with said
plans and specifications. The reasonable cost and
expense, if any, of reviewing the plans and
specifications for each such Major Building
Alteration, whether by Landlord, or by the holders of
any first
12
mortgage, if for any reason billed by them or by any
of them to Landlord, shall be paid by Tenant to
Landlord, as Additional Rent, forthwith upon demand.
10.3.3 For purposes of this Section, Tenant Improvement
Alterations, Minor Building Alterations and Major Building Alterations
are collectively called "Alterations."
(a) No Alteration shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be
required from time to time, all permits and
authorizations of any federal, state or municipal
government or department, or subdivision of any of
them, having or asserting jurisdiction. Landlord
shall join in the application for such permits or
authorizations, if and to the extent required, but at
Tenant's sole cost and expense.
(b) Any Alteration shall be made promptly and in a good
and workmanlike manner and in compliance with all
applicable permits and authorizations and building
and zoning laws, and with all other Laws.
(c) The cost of any Alteration shall be paid when due so
that the Premises shall at all times be free of liens
for labor and materials supplied or claimed to have
been supplied to the Premises and free from any
encumbrances, chattel mortgages, conditional bills of
sale, or security interests.
(d) Whenever appropriate, the property insurance required
to be maintained during the Lease Term shall be
endorsed or supplemented to provide, at Tenant's sole
cost and expense, during any period when Building
Alterations are in progress, for builder's risk
insurance. Xxxxxxx'x compensation insurance covering
all persons employed in connection with the work and
with respect to whom death or bodily injury claims
could be asserted against Landlord, Tenant or the
Premises, and comprehensive general public liability
insurance, providing full coverage with respect to
any accident, injury or occurrence involving,
relating to, or arising during or as a result of such
Building Alteration, naming Landlord and Tenant as
insureds, with limits of not less than those required
for commercial general liability insurance hereunder,
shall be maintained by Tenant (or Tenant's
independent contractor) at Tenant's (or at such
contractor's) sole cost and expense at all times when
any work is in progress in connection with any such
Building Alteration.
(e) No Alteration shall materially increase the height of
the Building, or combine, tie-in or connect the
Building and/or any other portion of the Premises, or
any structure or improvement thereon erected or
situated, with any other building or improvement
located on any adjoining property; and Tenant shall
in no event include or attempt to include the
Premises with other properties in a
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common zoning lot under any zoning ordinance or
related statute which may now or hereafter be
applicable to the Premises in such respect.
ARTICLE 11
Discharge of Liens
11.1 No Liens. If any lien for work performed or materials supplied
after the Commencement Date is filed against the Premises or Landlord's or
Tenant's interest therein, other than liens arising as a result of acts of
Landlord, Tenant shall immediately notify Landlord and shall bond over such lien
or cause same to be discharged of record within 30 days after notice of such
filing. Tenant, at its sole expense, shall defend the Premises and Landlord
against all suits for the enforcement of any such lien or any bond in lieu of
such lien, and Tenant hereby indemnifies Landlord against any and all loss,
cost, damage, expense or liability resulting from any such lien or suit. Should
Tenant fail to so discharge any such lien, Landlord may do so by payment, bond
or otherwise on 10 days' written notice to Tenant, and the amount paid or
incurred therefor by Landlord shall be reimbursed to Landlord by Tenant as
Additional Rent upon demand, with interest from the date of demand at the
maximum rate of interest lawfully permitted to be collected (limited to the rate
of 18% per annum).
11.2 Right to Contest. Tenant shall have the right to contest any such
mechanic's or other lien claim filed against the Premises or any part thereof if
Tenant notifies Landlord in writing of its intention so to do, diligently
prosecutes any such contest, at all times effectually stays or prevents any
official or judicial sale of the Premises under execution or otherwise, and pays
or otherwise satisfies any final judgment adjudicating or enforcing such
contested mechanic's or other lien and thereafter promptly procures and records
a satisfaction and release of same, provided Tenant has deposited with Landlord
a sum sufficient to cover the lien so contested, plus interest, costs and
attorneys' fees which will accrue during the period of such contest.
11.3 No Consent. Nothing in this Lease shall be deemed to constitute
the consent or request of Landlord to any contractor, subcontractor or material
supplier for the performance of any labor or the furnishing of any materials for
any specific improvement to the Premises. Notice is hereby given that Landlord
has assumed no obligation and shall not be liable or responsible for or in
connection with any labor or materials hereafter furnished to Tenant, or to any
other party, whether on credit, or otherwise, and that no mechanic's or other
lien for any such labor or materials shall attach to or affect the Premises, or
Landlord's reversionary interest and estate therein. Landlord shall have the
right to post and maintain on the Premises, notice of nonresponsibility under
the laws of the State of Massachusetts.
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ARTICLE 12
Compliance with Laws
12.1 Compliance. Throughout the Lease Term, Tenant shall at Tenant's
sole cost and expense (except as provided below), promptly remove of record any
and all violations noted or filed against the Premises, shall correct all
conditions constituting violations, and shall promptly comply with all present
and future Laws and directives of all federal, state and municipal governments,
departments, commissions, boards and officers, and all orders, rules and
regulations of the National Board of Fire Underwriters, or any other body or
bodies exercising similar functions, which may be applicable to the Premises and
the sidewalks, alleyways, passageways, curbs and vaults adjoining the Premises,
or to the use or manner of use of the Premises, or to the owners, tenants or
occupants thereof, whether or not any such Law or directive shall necessitate
structural changes or improvements, or interfere with the use and enjoyment of
the Premises. To the extent that any such work shall be the result of conditions
existing at the Commencement Date, or to the extent the existence of such
condition constitutes a breach of any representation or warranty of Landlord
hereunder, Landlord shall reimburse Tenant for all such costs upon demand. If
Landlord fails to pay such sum within 30 days after demand, Tenant may, at its
option and in addition to all other rights and remedies hereunder, offset such
costs against Rent accrued or accruing hereunder.
12.2 Insurance Requirements. Tenant shall likewise at Tenant's sole
expense observe and comply with the requirements of all policies of public
liability and property insurance, and all other policies of insurance at any
time in force with respect to the Premises, and Tenant shall, in the event of
any violation or any attempted violation of the provisions of this Article by
any subtenant or occupant, take all required steps, immediately upon knowledge
of such violation or attempted violation, to remedy or prevent the same, as the
case may be.
ARTICLE 13
Damage or Destruction
13.1 Casualty. In the event that the Premises shall be damaged or
destroyed by fire or other casualty, Tenant shall promptly give written notice
thereof to Landlord, and Landlord shall promptly repair, restore, replace, or
rebuild the same, as nearly as may be practicable, to its condition and
character immediately prior to such damage or destruction. Such restoration,
repairs, replacements, rebuilding or alterations shall be commenced promptly and
prosecuted with reasonable diligence, subject only to unavoidable delays. The
net insurance proceeds on account of such damage or destruction to or of the
Building Elements, and collected by Landlord and/or Tenant shall be held in
trust and shall be made available to Landlord as the work progresses (subject to
periodic delivery of appropriate architect's certifications as to the cost of
the required work remaining until full completion, and title company
certifications as to the absence of any liens, or encumbrances relating to such
work) for use in making payments when due for the repairs, restoration or
replacement required under this Article 13, and pursuant to such controls and
subject to such approvals as Tenant shall reasonably require. If such insurance
15
money shall be insufficient to pay the entire cost of such work, Landlord agrees
to pay the deficiency. At any time after the completion of such work, the
balance of the insurance money not theretofore used pursuant to the foregoing
provisions of this section shall be paid to Landlord or Landlord's mortgagee as
their interests shall appear.
13.2 Rental Abatement. During any period in which the Premises or any
portion of the Premises is made untenantable as a result of the Casualty, all
Rent will be abated for the period of time untenantable in proportion to the
square foot area untenantable.
13.3 Option to Terminate. In the event (a) the Premises are damaged by
fire, explosion or other casualty insured under the fire and extended coverage
insurance policy required hereunder (an "Insured Casualty") to the extent that
such damage materially adversely affects Tenant's ability to use the Premises
for its business purposes and the Premises cannot be or is not repaired,
replaced and restored by Landlord within 6 months from the date of the casualty,
(b) the Premises are damaged by a casualty or occurrence other than an Insured
Casualty, and Landlord elects not to rebuild at its cost, (c) such damage occurs
at any time within the last twelve (12) months of the Lease Term, or (d) the
Premises or any portion thereof, is damaged by fire, explosion or other casualty
and the Premises cannot be repaired, rebuilt or restored to substantially the
same or similar condition, under any applicable law, code, ordinance or other
governmental order or under any other agreement to which the Premises are
subject (a "Prohibited Casualty"), then in such event, Tenant may terminate this
Lease by giving Landlord written notice of termination. In any such event, all
Rent payable hereunder shall be apportioned to the date of such damage or
destruction and Landlord shall be entitled to receive and retain all insurance
proceeds relating to the Building Elements payable by reason of such occurrence.
Insurance proceeds relating to the Tenant Equipage payable by reason of such
occurrence shall be paid to and be the property of Tenant. Tenant shall also
have the right and option to terminate this Lease as of the date of such damage
or destruction if the holder of any mortgage covering the Premises refuses to
make the net insurance proceeds available for restoration and Landlord also
refuses to provide such funds. Such option shall be exercised by Tenant giving
written notice thereof to Landlord within 30 days after Landlord notifies Tenant
that the funds will not be available.
13.4 Release. Landlord releases Tenant from all claims, and all
liability or responsibility to Landlord and to anyone claiming through or under
Landlord, by way of subrogation or otherwise, for any loss or damage to the
Building caused by fire or other peril, even if such fire or other peril was
caused in whole or in part by the negligence or other act or omission of Tenant
or its agents or employees.
ARTICLE 14
Condemnation
14.1 Total Taking. If the entire Premises shall be condemned or taken
through or under the power of eminent domain, or if such a material portion of
the Premises is so taken that in the
16
reasonable opinion of Tenant the restoration of the remaining portions of the
Premises for the uses thereof at the time of such partial taking is economically
unfeasible, this Lease and the term hereof shall cease and terminate upon the
date of the vesting of title in the condemning authority, and all Rent hereunder
shall be apportioned to such date of termination, and any payments theretofore
made in advance by Tenant shall be refunded ratably to Tenant. Landlord shall be
entitled in such event to receive the entire award for the Land and Building
Elements so taken or condemned which may be made in such condemnation
proceeding, and Tenant shall not be entitled to receive any portion thereof.
Tenant hereby assigns and transfers to Landlord any and all claims to such award
and waives and relinquishes any right to make any claim for an award for the
value of this Lease, or otherwise; provided, however, that Tenant shall be
permitted to make separate claims for all Tenant Equipage, and for relocation
expenses and allowances, to the extent available.
14.2 Partial Taking. If less than such a material portion of the
Premises shall be taken or condemned, as aforesaid, this Lease shall continue
and shall remain in full force and effect; provided, however, that the Base Rent
hereunder shall thereafter be reduced in an equitable manner in proportion to
the reduction in value of the Premises for Tenant's use. The Base Rent shall be
reduced to the product obtained when the Base Rent otherwise payable hereunder
is multiplied by a fraction, the numerator of which shall be the total floor
area of the Building (expressed in square feet) remaining following the
condemnation and restoration, and the denominator of which shall be the total
floor area thereof (expressed in square feet) upon the Commencement Date. Such
reduction in Base Rent shall first become effective as of the first day of the
month next succeeding the date of vesting of title in the condemning authority,
and shall not in any event diminish, reduce or xxxxx the Impositions, Additional
Rent and other charges payable hereunder by Tenant. In the event of such a
partial condemnation, Landlord shall promptly make, or cause to be made, all
demolition, repairs, reconstruction, restoration, replacement or rebuilding and
all other work necessary, as nearly as may be practicable, to restore the
Building Elements to the utility and condition immediately prior to such taking
(and including any new parking areas and/or demolition of the existing Building,
to the extent the same may be reasonably necessary to accommodate Tenant's use
of the Premises after the condemnation). The net proceeds of the award in
respect of such partial taking or condemnation, after the payment of all fees
and expenses incurred in connection with the collection of such award, shall be
paid over to Landlord, and shall be held in trust and shall be made available to
Landlord as work progresses (subject to periodic delivery of appropriate
architect's certifications as to the cost of the required work remaining until
full completion, and title company certifications as to the absence of any
liens, or encumbrances relating to such work) for use in making payments when
due for the demolition, repairs, restoration or replacement required under this
Article 14, and pursuant to such controls and subject to such approvals as
Landlord or Landlord's mortgagee shall reasonably require. If such proceeds
shall be insufficient to pay the entire cost of such work, Tenant agrees to pay
the deficiency. At any time after the completion of such work, the balance of
the proceeds not theretofore used pursuant to the foregoing provisions of this
section shall be paid to Landlord or Landlord's mortgagee as their interests
shall appear. During any period in which the Premises or any portion of the
Premises is made untenantable as
17
a result of the Condemnation or the work being performed by Landlord, all Rent
will be abated for the period of time untenantable in proportion to the square
foot area untenantable.
14.3 Temporary Taking. If the whole or any part of Tenant's estate or
interest under this Lease shall be taken or condemned by any governmental agency
or authority for its temporary use or occupancy, this Lease shall not terminate
by reason thereof, and Tenant shall continue to pay, in the manner and at the
times herein specified, the Base Rent, the Impositions and all other Additional
Rent, and all other charges payable by Tenant hereunder, without any abatement
or reduction thereof, and, except only to the extent that Tenant may be
prevented from so doing pursuant to the terms of the order of the condemning
authority, Tenant shall perform and observe all of the other terms, covenants,
conditions and obligations hereof upon the part of Tenant to be performed and
observed, as though such taking had not occurred. Tenant shall be entitled to
receive the entire award paid for or in connection with such a taking, whether
by way of damages, as rent, or otherwise, so long as Tenant shall not be in
default hereunder; provided, however, that if the award is paid in a lump sum,
or shall be payable less frequently than in monthly installments, the award
shall be paid to and held jointly by Landlord and Tenant, in Landlord's and
Tenant's names, in an interest-bearing account with a commercial banking
organization designated by Landlord and such award shall be applied as follows:
(a) If the award shall be made in a lump sum, it shall be
divided by the number of months included in the period of such
temporary use or occupancy and, so long as Tenant shall not be in
default hereunder, an amount equal to the quotient shall be paid over
to Tenant monthly; and
(b) If the award or awards shall be paid less frequently than
in monthly installments, each such installment shall be divided by the
number of months to which it is attributable and, so long as Tenant
shall not be in default hereunder, an amount equal to the quotient
shall be paid over to Tenant monthly;
provided, however, that if such period of temporary use or occupancy shall
extend beyond the expiration of the Lease Term, Landlord shall be entitled to
receive and retain the amount of the award attributable to the period subsequent
to the expiration of the Lease Term. Upon the termination of any such period of
temporary use or occupancy, Tenant shall, at its sole cost and expense, restore
the Premises, as nearly as may be practicable, to the condition thereof
immediately prior to such taking.
ARTICLE 15
Assignment
15.1 Assignment by Tenant. Except as otherwise provided in this Lease,
Tenant shall not transfer, mortgage or pledge this lease or sublease the entire
Premises without Lessor's prior written consent. Notwithstanding the foregoing,
Tenant shall have the right, upon ten (10) days written notice to Landlord, but
without Landlord's consent, to sublet the Premises or to assign
18
this Lease to any parent, subsidiary or related entity of Tenant; any entity
with which Tenant may merge or any entity acquiring all or substantially all of
the assets or stock of Tenant or of that division or operating group of Tenant
which occupies the Premises, provided that any such assignee shall assume all
obligations of Tenant under this Lease and shall agree to comply with all
provisions of this Lease, including the use restrictions of Section 6.1 hereof.
Landlord may deem any levy or sale on execution of this lease or any assignment
or sale of this lease in bankruptcy or assignment to a receiver to be an
assignment within the meaning of this section. No assignment of this Lease or
sublease of the Premises or any part thereof shall be deemed a release of
Tenant, which shall continue to be jointly, severally, unconditionally and
primarily liable for payment and performance of all obligations hereunder with
any assignee.
15.2 Assignment by Landlord. In the event that Landlord, or any
successor owner of the Premises, or the lessee under any ground or underlying
lease, or any holder of Landlord's interest in this Lease, or any fee owner of
all or any portion of the Premises (or the owner of any interest or estate
therein), shall convey or otherwise dispose of such title, interest or estate,
or shall assign Landlord's interest in this Lease to any ground or underlying
lessee, then all liabilities and obligations thereafter accruing or maturing on
the part of Landlord or any such successor-owner of the Premises, or former
holder of Landlord's interest under this Lease, or former fee owner of the
Premises or any interest or estate therein, shall cease and terminate, and each
successor-owner of the Premises or holder of Landlord's interests under this
Lease, shall, without further agreement, be bound by Landlord's covenants and
obligations, but only during the respective periods of the ownership by such
parties; and Tenant shall continue to be bound by this Lease, and shall
recognize the successor to Landlord's interests as the Landlord hereunder.
ARTICLE 16
Default
16.1 Events of Default. There shall be an "Event of Default" hereunder
and the Landlord may terminate this Lease upon 30 days' notice to Tenant:
16.1.1 If Tenant shall be in default in the payment of any
Rent and such default is not cured within 30 days after written notice
thereof given by Landlord; or
16.1.2 If Tenant shall be in default in the performance of any
of the terms, covenants, conditions and provisions of this Lease on
Tenant's part to be performed (other than the covenants for the payment
of Rent) and such default is not cured within 60 days after written
notice thereof given by Landlord; or if such default shall be of such
nature that it cannot be cured completely within said 60 day period, if
Tenant shall not have promptly commenced curing such default within
such period and shall not thereafter proceed with reasonable diligence
and dispatch and in good faith to remedy such default; or
19
16.1.3 If Tenant shall be adjudicated a bankrupt, shall make a
general assignment for the benefit of its creditors, or invoke the
benefit of any insolvency act, or if a permanent receiver or trustee in
bankruptcy be appointed for Tenant's property and such appointment is
not vacated within 90 days; or
16.2 Termination. If Landlord shall give the applicable notice of
termination provided in Section 16.1, then, upon the expiration of the
applicable period, this Lease shall terminate and Tenant shall then quit and
surrender the Premises to Landlord. If this Lease shall so terminate, it shall
be lawful for Landlord, at its option, without formal demand or notice of any
kind, to re-enter the Premises by summary dispossession proceedings, or by any
other lawful means, and to remove Tenant therefrom without being liable for any
damages therefor.
16.3 Remedies. Notwithstanding such termination as provided in Section
16.2, and such re-entry by Landlord, or in the event Landlord shall dispossess
Tenant by summary proceedings, or otherwise, the obligations of Tenant shall
survive and Tenant shall remain liable for all of its obligations hereunder for
the balance of the Lease Term, and shall reimburse Landlord for all costs and
expenses as Landlord may reasonably sustain or incur for attorneys' and
accountants' fees and disbursements, brokerage fees, and/or putting the Premises
in good order, and for preparing the same for re-rental; and Landlord may re-let
the Premises, or any part or parts thereof, either in the name of Landlord, or
as agent for Tenant, on such conditions and for such term or terms as Landlord
may deem advisable, if Landlord so elects, which terms may at Landlord's option
be less than or exceed the unexpired period which would otherwise have
constituted the remainder of the Lease Term; and Tenant shall pay to the
Landlord, as damages for the failure of Tenant to observe and perform this
Lease, and Tenant's undertakings and obligations hereunder, any deficiency
(herein called the "deficiency") between the Rent hereby reserved and/or
covenanted to be paid, including all Impositions and other charges required to
be paid by Tenant hereunder, and the net amounts, if any, of the rents collected
on account of such re-lettings of the Premises for each month of the period
which would otherwise have constituted the unexpired Lease Term, if this Lease
had remained in effect. Landlord agrees to exercise good faith efforts to
mitigate its damages hereunder. Tenant shall pay such deficiency to Landlord
monthly, in advance, on the days on which the Rent would have been payable under
this Lease if this Lease were still in effect, and Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same shall arise or accrue.
At any time after any such expiration or termination, whether or not Landlord
shall have collected any monthly deficiencies, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
liquidated and agreed final damages for Tenant's default, an amount equal to the
then present worth (computed using 10% per annum as the discount factor) of the
excess of the Rent, Impositions and other charges reserved under this Lease from
the date of such expiration or termination for what would have been the then
unexpired Lease Term if the same had remained in effect, above the then fair
market rental value of the Premises for the same period.
16.4 No Release. The remedies of Landlord and Tenant provided in this
Lease are cumulative and shall not exclude any other remedies to which either
may be lawfully entitled.
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The failure of either party to insist upon strict performance by the other of
any term, covenant or condition herein contained shall not be a waiver of such
term, covenant or condition by the non-objecting party for the future. The
acceptance by Landlord of the payment of fewer than three monthly installments
of Rent after notice is received by Landlord of an Event of Default or state of
affairs which, but for the giving of notice and/or passage or time would be an
Event of Default shall not constitute a waiver of such Event of Default or state
of affairs.
16.5 Costs; Interest. In the event it is necessary to commence an
action to enforce the terms hereof, the party prevailing in such action shall be
entitled to its reasonable attorneys' fees and expenses, including those
incurred at the appellate level. Tenant shall be liable to Landlord for interest
on all sums not paid to Landlord when due hereunder from the date due until paid
at the rate of 10% per annum, or such lesser rate as shall be the maximum
permitted by law.
ARTICLE 17
Tenant Equipage
17.1 Tenant Equipage. The Tenant Equipage shall be and be deemed the
sole property of Tenant until and unless it becomes the property of Landlord
pursuant to Article 7 above. Tenant shall have the right from time to time to
pledge the Tenant Equipage and/or grant security interests in the Tenant
Equipage to its lender(s) and Landlord agrees to execute such Lessors'
Agreements, Landlord Waivers or other agreements as may be required by such
lender(s) in connection with any lending secured thereby.
ARTICLE 18
Subordination
18.1 Lease Subordinate. This Lease shall be and it hereby is made, and
shall at all times be and remain, subject and subordinate to the lien of any
duly recorded first mortgage, whether heretofore or hereafter made, affecting or
encumbering the Premises, and to all extensions, renewals, modifications or
replacements thereof; provided that provisions substantially as follows with
respect to this subordination shall be contained in such mortgage (or in a
separate instrument), and at all times duly observed by the holder thereof,
namely that so long as this Lease has not been terminated by reason of any
default by Tenant hereunder, and so long as Tenant is not in default in the
payment of Rent or any Imposition or other charge payable by Tenant as in this
Lease provided, Tenant shall not (unless required by law) be made a party to any
action or proceeding to foreclose any such mortgage, or to any judgment of
foreclosure and sale, and Tenant's use, possession, tenancy and occupancy
hereunder shall remain undisturbed and shall survive any such action,
proceeding, order or judgment and the proceeds of all insurance and/or
condemnation affecting the Premises shall be applied as herein provided.
18.2 Attornment. The subordination of this Lease and Tenant's rights
hereunder, as provided in Section 18.1, shall be effective without the execution
of any further or other
21
instruments by Tenant, but Tenant shall, at Landlord's request, and without
charge therefor to Landlord, execute and deliver any further document or
instrument to evidence the subordination of this Lease to such mortgage as shall
comply with the provisions of Section 18.1; and, to the extent requested by the
holder of any such mortgage, Tenant shall execute and deliver such instruments
and documents as shall confirm Tenant's undertaking and agreement hereunder to
attorn under the terms and provisions of this Lease to such a mortgagee, or to
the designee or nominee of such mortgagee, or to the purchaser of the mortgaged
premises at a foreclosure sale, or at a sale of the premises pursuant to such
power of sale as may be contained in such mortgage, and to recognize such
mortgagee, its designee or nominee, or such purchaser, as the Landlord hereunder
from and after the date of such a transfer of title, with the same force and
effect as if the Premises had been sold or conveyed to such new landlord by the
prior landlord hereunder.
ARTICLE 19
Entry by Landlord; Performance of Covenants
19.1 Entry. Tenant shall permit Landlord or its agents to enter the
Premises during normal business hours (and at any time in cases of emergency)
(i) for the purpose of inspection thereof, (ii) for showing the Premises to
persons wishing to purchase the same, or in connection with mortgage or other
financing, and (iii) at any time within 12 months prior to the expiration of the
Lease Term, for exhibition to persons wishing to rent the same.
19.2 Cure of Covenants. If Tenant shall be in default hereunder,
Landlord may, with or without declaring an "Event of Default", upon 10 days'
prior notice to Tenant, or without notice in case of an emergency, cure such
default on behalf of Tenant (unless Tenant shall itself, within such period,
commence and thereafter diligently proceed to cure such default), and for the
purpose thereof may enter upon the Premises, and upon demand Tenant shall
reimburse Landlord for any reasonable and necessary expenses incurred to effect
such cure, together with interest thereon at the maximum rate which may be
legally collected by Landlord (not to exceed 18% per annum).
ARTICLE 20
Certificates
20.1 Estoppel Certificates. Tenant agrees, at any time, and from time
to time, upon not less than 10 days' prior written notice by Landlord, to
execute, acknowledge and deliver to Landlord, or to any existing or prospective
ground or underlying lessee or mortgagee, or to any prospective purchaser, of
the Premises, a statement or certificate in writing setting forth the Rent,
Impositions and other charges then payable, and specifying each element thereof,
and certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect, as
modified, and setting forth the modifications), and the dates to which the Rent,
Impositions, and other charges payable hereunder have been paid, and stating (to
the extent known to Tenant) whether or not the Landlord is in default in
keeping, observing or performing any of the terms contained in this Lease and,
if in default, specifying
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each such default. It is intended that any such statement or certificate
delivered pursuant hereto may be relied upon by Landlord, by any prospective
purchaser of the Premises, or by any existing or prospective ground or
underlying lessee, mortgagee, or lender.
ARTICLE 21
Notices
21.1 Notices. All notices, demands, consents, or requests under this
Lease must be in writing and shall be sent postage prepaid by United States
registered or certified mail addressed, or telecopied and followed within one
day by registered or certified mail, if the party for whom intended is the
Landlord, to Landlord at the following addresses and telecopy numbers:
Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
with copy to Xxxxx, Xxxxxx & Xxxxxx, LLP
0 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
and if such party is the Tenant, to Tenant at the following addresses and
telecopy numbers:
PEMSTAR INC.
0000 Xxxxxxxxxx Xxxxx XX
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy No.: (000) 000-0000
with copy to: Xxxxxx & Xxxxxxx LLP
Suite 340, 000 Xxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Notices, demands, consents or requests served or given as aforesaid shall be
deemed sufficiently served or given for all purposes hereunder on the day on
which such telecopying or mailing shall occur; provided, however, that in lieu
of such notice by United States registered or certified mail, the party giving
the notice may do so by personal delivery to the addresses above specified.
Either party shall have the right to change the address or telecopy number to
which notices shall thereafter be sent to it by giving notice to the other party
as aforesaid, but not more than two addresses shall be in effect at any given
time for Landlord and Tenant hereunder.
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ARTICLE 22
Miscellaneous
22.1 Quiet Possession. Landlord covenants that Tenant shall peaceably
and quietly enjoy the Premises for as long as Tenant performs and observes its
obligations hereunder.
22.2 Holding Over by Tenant. In the event of holding over by Tenant
after expiration or termination of the Lease Term, without the consent of
Landlord, Tenant shall pay as monthly Base Rent 125% of the Base Rent applicable
to the last month of the Lease Term for the entire holdover period. In the event
that, and so long as, Landlord and Tenant are negotiating in good faith for the
renewal or extension of this Lease and Tenant holds over with Landlord's consent
such tenancy shall be on the same terms as provided for in this Lease other than
this Section 22 and shall continue on such terms as a tenancy from month to
month until sixty (60) days after notice by Landlord to Tenant of Landlord's
intention to terminate the tenancy. During any such consensual holdover period,
the rent shall be the same rent as was or would be applicable for the Extension
Period.
22.3 Binding Effect. The terms, covenants, conditions and agreements
herein contained shall run with the Premises and shall bind and inure to the
benefit of the parties hereto and their respective representatives, successors
and assigns.
22.4 Captions. The captions of this Lease are for convenience and ease
of reference only, and in no way define, limit or describe the scope or intent
of this Lease, nor in any way affect this Lease, and shall be disregarded in the
interpretation hereof.
22.5 Severable. If any provisions of this Lease shall be declared
invalid or unenforceable, the remainder hereof shall remain unaffected thereby
and shall continue in full force and effect.
22.6 Interpretation. It is acknowledged that in preparation of this
Lease, indistinguishable contributions have been made by representatives of both
Landlord and Tenant, and that Landlord and Tenant each waives any and all
rights, either at law or in equity, to have this Lease, or any term or provision
herein contained, construed in favor of either party over the other by reason of
who drafted the same.
22.7 Entire Agreement. This Lease contains the entire and only
agreement between the parties hereto with respect to the Premises; and no oral
statements, agreements or representations not embodied in this Lease shall have
any force or effect. This Lease shall not be modified or amended in any manner
except in writing, by instrument executed by both parties.
22.8 Interpretation of Terms. All personal pronouns used in this
agreement shall include the other genders whether used in the masculine or
feminine or neuter gender, and the singular shall include the plural whenever
and as often as may be appropriate.
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22.9 No Partnership. This Lease does not create the relationship of
principal and agent or of partnership or of joint venture or of any association
between Landlord and Tenant, the sole relationship between the parties being
that of landlord and tenant. The laws of the State of Massachusetts shall govern
the validity, performance and enforcement of this Lease.
22.10 Brokers. Each party hereby indemnifies the other and agrees to
hold the other harmless from and against the claim of any other realtor, broker
or agent with whom such party may have dealt with regard to such sale, this
Lease or the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have each duly executed this
Lease as of the date and year first above written.
LANDLORD:
----------------------------
Xxxxx X. Xxxxxxxx
----------------------------
Xxxxxx Xxxxxxxx
TENANT: PEMSTAR INC.
By
-------------------------
Its
-------------------------
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EXHIBIT A
Part I:
Legal description of the Land
That certain premises consisting of a certain parcel of land located on the
westerly side of Constitution Drive in The Miles Xxxxxxxx Industrial Park shown
as lot 58R containing 7.02 acres as shown on a Plan entitled "Plan of Land in
Taunton, Massachusetts Owned by the Taunton Development Corporation Scale 1" =
100', dated March 27, 1997, Xxxxxxxx Engineering Corporation, which plan is
recorded in the Bristol County Northern District Registry of Deeds at Plan Book
361, Page 55.
Part II
Permitted Encumbrances
Liens as to which an attornment agreement acceptable to Tenant has been executed
and easements which do not adversely affect the use and operation of the
Premises for the purposes contemplated by this Lease.
