Exhibit 10.52
BUILD TO SUIT
INDUSTRIAL LEASE AGREEMENT
BETWEEN
INDUSTRIAL DEVELOPMENTS INTERNATIONAL (TEXAS), L.P.
AS LANDLORD
AND
ACT MANUFACTURING, INC.
AS TENANT
LEASE INDEX
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Section Subject
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1 Basic Lease Provisions
2 Demised Premises
3 Term
4 Base Rent
5 Intentionally Omitted
6 Additional Rent
7 Use of Demised Premises
8 Insurance
9 Utilities
10 Taxes and Other Impositions
11 Maintenance and Repairs
12 Tenants' Personal Property; Indemnity
13 Tenant's Fixtures
14 Signs
15 Landlord's Lien
16 Governmental Regulations
17 Environmental Matters
18 Construction of Demised Premises
19 Tenant Alterations and Additions
20 Services by Landlord
21 Fire and Other Casualty
22 Condemnation
23 Tenant's Default
24 Landlord's Right of Entry
25 Lender's Rights
26 Estoppel Certificate and Financial Statement
27 Landlord Liability
28 Notices
29 Brokers
30 Assignment and Subleasing
31 Termination or Expiration
32 Late Payments
33 Rules and Regulations
34 Dispute Resolution Procedure
35 Miscellaneous
36 Special Stipulations
37 Lease Date
38 Authority
39 No Offer Until Executed
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Exhibit "A" Legal Description
Exhibit "A- I" Site Plan
Exhibit "A-2" Floor Plan
Exhibit "A-311 Elevation Plan
Exhibit "A-4" Preliminary Construction Specifications
Exhibit "B" Permitted Encumbrances
Exhibit "C" Rules and Regulations
Exhibit "D" Protective Covenants
Exhibit "E" Special Stipulations
Exhibit `IF" Certificate of Authority
Exhibit "G" Signage Criteria
ii
BUILD TO SUIT
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INDUSTRIAL LEASE AGREEMENT
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THIS LEASE AGREE (this "Lease") is made as of the Lease Date (as defined in
Section 37) by and between INDUSTRIAL DEVELOPMENTS INTERNATIONAL (TEXAS), L.P.,
a Georgia limited partnership ("Landlord"), and ACT MANUFACTURING, INC., a
Delaware corporation ("Tenant") (the words "Landlord" and "Tenant" to include
their respective legal representatives, successors and permitted assigns where
the context requires or permits).
WITNESSETH:
1. Basic Lease Provisions. The following constitute the "Basic Lease
Provisions" of this Lease:
(a) Demised Premises: Exhibit "A" attached hereto
(b) Building Square Footage: approximately 100,000 sq. ft.
(c) Annual Base Rent:
Lease Years 1 - 5 $836,004.00 (as may be adjusted pursuant to
Special Stipulation l(d))
Lease Years 6 - 10 $962,004.00 (as may be adjusted pursuant to
Special Stipulation l(d))
(d) Monthly Base Rent Installments
Lease Years 1 - 5 $69,667.00
Lease Years 6 - 10 $80,167.00
(e) Lease Commencement Date: The later to occur of Substantial
Completion, as defined in Section 3 (b) or ▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇) Base Rent Commencement Date: same as above
(g) Primary Term: 10 years
(h) Security Deposit: $0.00
(i) Reserved
(j) Permitted Use: Office, research and development, light
manufacturing and warehouse uses and other uses reasonably incidental
thereto, all as permitted by applicable laws, rules and regulations
(k) Addresses for notice:
Landlord: Industrial Developments International
(Texas), L.P.
c/o Industrial Developments International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager - Lease Administration
Tenant: ACT Manufacturing, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
with a copy to the Demised Premises
(l) Address for rental payments:
Industrial Developments International (Texas), L.P.
c/o IDI Services Group, Inc,
P. 0. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(m) Broker(s): ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
2. Demised Premises. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, Landlord does hereby
lease and demise unto Tenant, and Tenant does hereby hire, lease and accept,
from Landlord, that certain parcel of real property more particularly described
in Exhibit "A" attached hereto and by this reference made a part hereof (the
"Land") situated in Plano Business Park (the "Project"), located in Collin
County, Texas, together with and including all buildings, structures, driveways,
parking lots, walkways, landscaping and other appurtenances thereto and all
other improvements, with the consent of Tenant, at anytime during the term of
this Lease erected, or situated thereon including specifically, but, without
limitation, a building (the "Building") to be constructed containing
approximately 100,000 square feet (measured on a "drip-line" basis from the
outside of the exterior walls of the Building) of office and warehouse space, of
which approximately 14,800 square feet shall be office space and to be located
on the Land as shown on ▇▇▇▇▇▇▇ "▇- ▇" ▇▇▇▇▇▇▇▇ hereto, and all other
improvements including all driveways, parking lots, walkways, landscaping and
other appurtenances thereto (collectively, the "Demised Premises") subject only
to the matters on Exhibit "B" attached hereto and the Protective Covenants
attached hereto as Exhibit "D", which will be amended following the Lease Date
to include the Property (herein referred to collectively as "Permitted
Encumbrances"), all upon the terms and conditions hereinafter set forth. The
Demised Premises including the Building shall be developed and constructed by
Landlord substantially in accordance with the Preliminary Drawings prepared by
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MacGregor Associates Architects and/or ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc., attached hereto
as Exhibit "A-1" (herein, the "Site Plan"); Exhibit "A-2" (herein, the "Floor
Plan") and Exhibit "A-3" (herein, the "Elevation Plan"), and the construction
specifications attached hereto as Exhibit "A-4" (herein "Preliminary
Construction Specifications"), (the plans and specifications as shown on
Exhibits "A-1" through "A-4" are herein, collectively the "Preliminary Plans")
and in accordance with the terms of Section 18 hereof. The Building and
improvements comprising the Demised Premises shall be located substantially as
shown on the Site Plan. [see Special Stipulation l(d)]
3. Term.
(a) To have and to hold the Demised Premises for
(i) a preliminary term (the "Preliminary Term") which shall commence
on the Lease Date and shall expire on the Lease Commencement Date, as defined
herein; and
(ii) a primary term (the "Primary Term") which shall commence on the
Lease Commencement Date and shall expire one hundred twenty (120) calendar
months thereafter (the Preliminary Term, the Primary Term, and any and all
extensions thereof, herein referred to as the "Term"). The Term shall end on
the final day thereof without the requirement of notice from either party to the
other.
(b) For purposes of this Lease, the term "Substantial Completion" or
any grammatical variation thereof shall mean sufficient completion of
construction of the Demised Premises in accordance with the Plans and
Specifications (as defined in Section 18), so that Tenant can lawfully occupy
the Demised Premises, as evidenced by the delivery by Landlord to Tenant of (i)
a Certificate of Occupancy or its equivalent (or Temporary Certificate of
Occupancy or its equivalent) for the Building issued by the appropriate
governmental authority if so required by applicable law, and (ii) a Certificate
of Substantial Completion on standard AIA Form G-704 certified by the project
architect, MacGregor Associates Architects (the "Architect"). In the event
completion to such extent is delayed because of Tenant Delay, as defined herein,
then Substantial Completion shall be deemed to mean the date when the Demised
Premises would have been completed to such extent but for such Tenant Delay, as
determined by the Architect. In the event Tenant shall dispute the
determination of such date by the Architect, the parties shall utilize the
Dispute Resolution Procedure as defined in Section 34, with Qualified Architects
serving as Officials. For purposes of this Lease, the Architect shall be deemed
a "Qualified Architect" for Landlord.
(c) The Lease Commencement Date and the Expiration Date, when
determined as herein provided, shall be evidenced by a supplemental agreement to
be executed upon the request of either party to the other party hereto.
(d) The term "Lease Year", as used in this Lease, shall mean the
twelve (12)-month period commencing on the Base Rent Commencement Date, and each
twelve (12)-month period thereafter during the Term; provided, however, that (i)
the first Lease Year will include
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the period between the Lease Commencement Date and the Base Rent Commencement
Date, if applicable, and (ii) if the Base Rent Commencement Date is a day other
than the first day of a calendar month, the first Lease Year shall include the
period between the Base Rent Commencement Date and the end of the calendar month
in which the Base Rent Commencement Date occurs and shall extend through the end
of the twelfth (12th) full calendar month following the Base Rent Commencement
Date.
4. Base Rent. Tenant shall pay to Landlord at the address set forth in
Section 1(1) as base rent for the Demised Premises, commencing on the Base Rent
Commencement Date and continuing throughout the Term in lawful money of the
United States the annual amount set forth in Section 1(c) payable in equal
monthly installments as set forth in Section l(d) (the "Base Rent"), payable in
advance, without demand and without abatement, reduction, set-off or deduction,
on the first day of each calendar month during the Term. If the Base Rent
Commencement Date shall fall on a day other than the first day of a calendar
month, the Base Rent shall be apportioned pro rata on a per them basis (i) for
the period between the Base Rent Commencement Date and the first day of the
following calendar month (which pro rata payment shall be due and payable on the
Base Rent Commencement Date), and (ii) for the last partial month of the Term,
if applicable. No payment by Tenant or receipt by Landlord of rent hereunder
shall be deemed to be other than on account of the amount due, and no
endorsement or statement on any check or any letter accompanying any check or
payment of rent shall be deemed an accord and satisfaction, and Landlord may
accept such check as payment without prejudice to Landlord's right to recover
the balance of such installment or payment of rent or pursue any other remedies
available to Landlord.
5. Intentionally Omitted.
6. Additional Rent. Any amounts required to be paid by Tenant under this
Lease (in addition to Base Rent) and any charges or expenses incurred by
Landlord on behalf of Tenant under the terms of this Lease, including, without
limitation, any expenses incurred for taxes, insurance, maintenance, repairs,
replacements, management fees (not to exceed one percent (1%) of Base Rent),
owner's association dues and assessments, landscaping, utilities and other
charges assessed against or attributed to the Demised Premises which are the
obligation of Tenant hereunder, shall be considered additional rent (herein,
"Additional Rent") payable in the same manner and upon the same terms and
conditions as Base Rent reserved hereunder except as expressly set forth herein
to the contrary. Additional Rent shall include, and Tenant shall and does
hereby agree to pay directly, or to reimburse Landlord upon demand for, as
Landlord may direct any and all (i) management fees (not to exceed one percent
(1%) of Base Rent), (ii) owner's association dues, assessments and/or fees
assessed against or attributed to the Demised Premises pursuant to any
applicable easements, covenants, restrictions, agreements, declaration of
protective covenants or development standards, (iii) landscape maintenance and
utilities costs and charges, and (iv) all other such charges or costs paid by
Landlord with respect to or imposed or assessed upon or against the Demised
Premises from time to time throughout that portion of the Term (and any
extension thereof) commencing with the Lease Commencement Date. Any failure on
the part of Tenant to pay such Additional Rent when due shall entitle Landlord
to the remedies available to it for non-payment of Base Rent, including, without
limitation, late charges and interest thereon at the Interest Rate (as herein
defined) pursuant to Section 32 hereof.
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Tenant's obligations for payment of Additional Rent shall begin to accrue on the
Lease Commencement Date regardless of the Base Rent Commencement Date.
Notwithstanding anything to the contrary contained herein, the term "Additional
Rent" shall not include (i) controllable expenses incurred through the use of
parties affiliated with Landlord, to the extent such expenses exceed market
rates, (ii) expenses attributable to items covered by Landlord's Warranty
(hereinafter defined) or which are otherwise covered by warranty, (iii) expenses
attributable to a breach of Landlord's representations contained in paragraph
18(h) hereof, and (iv) costs of capital improvements unless such costs are
incurred for the purpose of causing a material decrease in Additional Rent or
are made with respect to improvements to comply with laws, ordinances or
regulations, and then only to the extent of the amortization of such
expenditures over the useful life of such capital item.
7. Use of Demised Premises.
(a) The Demised Premises shall be used for the Permitted Use set
forth in Section 1(j) and for no other purpose.
(b) Tenant will permit no liens arising by, through or under Tenant to
attach or exist against the Demised Premises, and shall not commit any waste.
(c) The Demised Premises shall not be used for any illegal purposes,
and Tenant shall not allow, suffer, or permit any vibration, noise, odor, light
or other effect to occur within or around the Demised Premises that could
constitute a nuisance or trespass for any tenant of Landlord occupying an
adjoining building, its customers, agents, licensees or invitees. Upon notice
by Landlord to Tenant that any of the aforesaid prohibited uses are occurring,
Tenant agrees to promptly remove or control the same.
(d) Tenant shall not in any way violate any law, ordinance or any
restrictive covenant affecting the Demised Premises as shown by and included in
the Permitted Encumbrances, including specifically, but without limitation, the
Protective Covenants (as defined in Section 33), and shall not in any manner use
the Demised Premises so as to cause cancellation of, or prevent the use of the
fire and extended coverage insurance policy required hereunder. Landlord makes
no (and does hereby expressly disclaim any) covenant, representation or warranty
as to the Permitted Use being allowed by or being in compliance with any
applicable laws, rules, ordinances or restrictive covenants now or hereafter
affecting the Demised Premises, and any zoning letters, copies of zoning
ordinances or other information from any governmental agency or other third
party provided to Tenant by Landlord or any of Landlord's agents or employees
shall be for informational purposes only, Tenant hereby expressly acknowledging
and agreeing that Tenant shall conduct and rely solely on its own due diligence
and investigation with respect to the compliance of the Permitted Use with all
such applicable laws, rules, ordinances and restrictive covenants, including
specifically, but without limitation, the Protective Covenants, and not on any
such information provided by Landlord or any of its agents or employees.
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8. Insurance
(a) Tenant covenants and agrees that from and after the Lease
Commencement Date or any earlier date upon which Tenant enters or occupies the
Demised Premises or any portion thereof, Tenant will carry and maintain, at its
sole cost and expense, the following types of insurance, in the amounts
specified and in the form hereinafter provided for:
(i) Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Demised Premises and Tenant's use
thereof against claims for bodily injury or death, property damage and product
liability occurring upon, in or about the Demised Premises, such insurance to be
written on an occurrence basis (not a claims made basis), to be in combined
single limits amounts not less than Three Million Dollars ($3,000,000.00) and to
have general aggregate limits of not less than Five Million Dollars
($5,000,000.00) for each policy year, provided, however, such amounts can be met
in combination with umbrella insurance coverage, provided (x) Landlord and any
other parties in interest from time to time designated by Landlord to Tenant
shall be named as an additional insured under such umbrella policy as their
interests may appear, (y) such umbrella policy contains a "per location
aggregate" endorsement, and (z) the requirements set forth in Section 8 of the
Lease are otherwise satisfied. The insurance coverage required under this
Section 8(a)(i) shall, in addition, extend to any liability of Tenant arising
out of the indemnities provided for in Section 12 and, if necessary, the policy
shall contain a contractual endorsement to that effect.
(ii) (A) insurance on the "All-Risk" or equivalent form on a
Replacement Cost Basis against loss or damage to the Building and all other
improvements now or hereafter located on the Land, having a deductible not
greater than Fifty Thousand Dollars ($50,000.00); and in an amount sufficient to
prevent Landlord or Tenant from becoming a co-insurer of any loss, but in any
event in amounts not less than 100% of the actual replacement value of such
Building and improvements. Landlord shall have the right to require from
Tenant, not more often than once every twelve (12) months, reasonable evidence
of the agreed upon replacement cost value of the Building;
(B) insurance on the "All-Risk" or equivalent form against
abatement or loss of rental by reason of the occurrences covered by the
insurance described in clause (A) above and by reason of any service
interruptions in an amount equal to Base Rent and all Additional Rent for at
least twelve (12) months following the occurrence of such casualty;
(C) if applicable, boiler and machinery insurance covering losses
to or from any steam boilers, pressure vessels or similar apparatus requiring
inspection under applicable state or municipal laws or regulations which are
located at the Demised Premises or on any other building systems for which such
coverage is available, in amounts determined by Tenant to be appropriate or for
such higher amounts as may at any time be reasonably required by Landlord and
having a deductible of not more than Fifty Thousand Dollars ($50,000.00);
coverage shall be on a broad form comprehensive basis including loss of income
with a limit of at least an amount which is reasonably acceptable to Landlord;
and
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(D) worker's compensation insurance to the extent required by the
laws of the state in which the Demised Premises are located and employees
liability insurance in the amount of at least $ 1,000,000.00.
(b) All policies of the insurance provided for in Section 8(a) shall
be issued in form acceptable to Landlord by insurance companies with a rating of
not less than "A+," and financial size of not less than Class XII, in the most
current available "Best's Insurance Reports", and licensed to do business in the
state in ,which the Building is located. Tenant shall have the right to
increase the deductible amounts under the policies of insurance required by
Sections 8(a)(ii)(A) and (C) above, subject to the approval of Landlord, such
approval not to be unreasonably withheld; provided, however, that Landlord shall
be entitled to withhold such approval unless Tenant is able to demonstrate that
the requested increase in any such deductible is commercially reasonable for
improvements comparable to the Building. Each and every such policy:
(i) shall name Landlord as well as Landlord's Lender, as defined in
Section 25, and any other party reasonably designated by Landlord, as an
additional insured. In addition, the coverage described in Section 8(a)(ii)
shall also name Landlord as "loss payee";
(ii) shall be delivered to Landlord, in the form of an insurance
certificate acceptable to Landlord as evidence of such policy, prior to delivery
of possession of the Demised Premises to Tenant and thereafter within fifteen
(15) days prior to the expiration of each such policy, and, as often as any such
policy shall expire or terminate. Renewal or additional policies shall be
procured and maintained by Tenant in like manner and to like extent;
(iii) shall contain a provision that the insurer waives any right of
subrogation against Landlord on account of any loss or damage occasioned to
Tenant, its property, the Demised Premises or its contents arising from any risk
covered by all risks fire and extended coverage insurance of the type and amount
required to be carried hereunder;
(iv) shall contain a provision that the insurer will give to Landlord
and such other parties in interest at least fifteen (15) days notice in writing
in advance of any material change, cancellation, termination or lapse, or the
effective date of any reduction in the amounts of insurance; and
(v) shall be written as a primary policy which does not contribute to
and is not in excess of coverage which Landlord may carry.
(c) Any insurance provided for in Section 8(a) may be maintained by
means of a policy or policies of blanket insurance, covering additional items or
locations or insureds; provided, however, that:
(i) Landlord and any other parties in interest from time to time
designated by Landlord to Tenant shall be named as an additional insured
thereunder as its interest may appear;
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(ii) the coverage afforded Landlord and any such other parties in
interest will not be reduced or diminished by reason of the use of such blanket
policy of insurance;
(iii) any such policy or policies shall specify therein the amount of
the total insurance allocated to the Tenant's improvements and property; and
(iv) the requirements set forth in this Section 8 are otherwise
satisfied.
(d) In the event that Tenant shall fail to carry and maintain the
insurance coverages set forth in this Section 8, Landlord may upon thirty (30)
days notice to Tenant (unless such coverages will lapse in which event no such
notice shall be necessary) procure such policies of insurance and Tenant shall
promptly reimburse Landlord therefor.
(e) Each party may, at any time, but not more than one (1) time in any
twelve (12) month period, require a review of the insurance coverage and limits
of liability set forth in Section 8 to determine whether the coverage and the
limits are reasonable and adequate in the then existing circumstances. The
review shall be undertaken on a date and at a time set forth in a party's notice
requesting a review and shall be conducted at the Demised Premises. If the
parties are, after a review, unable to agree on either the coverage or the
limits, then the parties shall employ the Dispute Resolution Procedure (as
defined in Section 34) with insurance advisors having at least ten (10) years
experience in insurance for commercial and industrial properties serving as
Officials. In rendering the decision the Officials shall consider the
requirements of Section 8; the cost of the insurance to be obtained, inflation,
changes in condition, and the insurance then being carried by similar industrial
use developments in the area of the Project.
9. Utilities. Commencing on the Lease Commencement Date (or such earlier
date-as Tenant physically occupies all or any portion of the Demised Premises,
regardless of whether or not Tenant conducts business operations during such
period of occupancy) and continuing through the remainder of the Term, Tenant
shall be responsible for maintaining the portion of the utility lines located
between the Land boundary line and the Building and Tenant shall promptly pay as
billed to Tenant all rents and charges for water and sewer services and all
costs and charges for gas, steam, electricity, fuel, light, power, telephone,
heat and any other utility or service used or consumed in or servicing the
Demised Premises and all other costs and expenses involved in the care,
management and use thereof to the extent charged by the applicable utility
companies. If Tenant fails to pay any utility bills or charges, Landlord may,
at its option and upon reasonable notice to Tenant, pay the same and in such
event, the amount of such payment, together with interest thereon at the
Interest Rate as defined in Section 32 from the date of such payment by
Landlord, will be added to tenants next due payment, as Additional Rent.
10. Taxes and Other Impositions.
(a) Commencing on the Lease Commencement Date and continuing through
the remainder of the Term, Tenant shall be solely obligated for the costs of all
real estate taxes and other impositions for the Demised Premises, including the
Building and the Land, and Tenant agrees to pay all installments of such
imposition which accrue during the Term. If any real estate taxes or other
impositions for the Demised Premises are payable in arrears, Tenant
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agrees to pay to Landlord Tenant's share of such taxes attributable to the last
year of the Term within thirty (30) days after Tenant receives from Landlord
evidence of the actual amount due for such last year. This provision shall
expressly survive the expiration or termination of this Lease in order to settle
up Tenant's pro rata share of such taxes for the final Lease Year of the Term.
(b) Real estate taxes and other impositions shall mean all ad valorem
taxes, water and sanitary taxes, assessments, liens, licenses and permit fees or
any other taxes imposed, assessed or levied against the Land and the Demised
Premises, and all other charges, impositions or burdens of whatever kind and
nature, whether or not particularized by name, and whether general or special,
ordinary or extraordinary, foreseen or unforeseen, which at any time during the
Term may be created, assessed, confirmed, adjudged, imposed or charged upon or
with respect to the Demised Premises, the Land, or any improvements made
thereto, or on any part of the foregoing or any appurtenances thereto, or
directly upon this Lease or the rent payable hereunder or amounts payable by any
subtenants or other occupants of the Demised Premises, or upon this transaction
or any documents to which Tenant is a party or successor-in-interest, or against
Landlord because of Landlord's estate or interest herein, by any governmental
authority, or under any law, including among others, all rental, sales, use,
inventory or other similar taxes and any special tax bills and general, special
or other assessments and liens or charges made on local or general improvements
or any governmental or public power or authority whatsoever.
(c) Notwithstanding the foregoing, if any imposition shall be created,
levied, assessed, adjudged, imposed, charged or become a lien with respect to a
period of time which commences before the Lease Commencement Date or ends after
the expiration date of the Term (other than an expiration date of the Term by
reason of breach of any of the terms hereof by Tenant), then Tenant shall only
be required to pay that portion of such imposition which is equal to the
proportion of said period which falls within the Term. If Tenant is permitted
to pay (by the assessing and collecting authorities) and elects to pay any
imposition in installments, Tenant shall nevertheless pay any and all
installments thereof which are due prior to the expiration of the Term or sooner
termination of the Term. Nothing contained in this Lease shall require Tenant
to pay any income or excess profits or taxes assessed against Landlord, or any
corporation, capital stock and franchise taxes imposed upon Landlord. Landlord
agrees to deliver to Tenant copies of all such notices of real estate taxes and
impositions which Landlord receives.
(d) Landlord and Tenant shall cooperate in attempting to have the tax
bills for the Demised Premises sent directly to Tenant. Landlord shall forward
tax bills and all notices with respect thereto related to the Demised Premises
to Tenant promptly after Landlord's receipt thereof Tenant shall furnish
Landlord evidence of the payment of all real estate taxes and impositions
related to the Demised Premises at least ten (10) days before the last day upon
which they may be paid without any fine, penalty, interest or additional cost.
If Tenant fails to pay the real estate taxes and impositions related to the
Demised Premises when due and Landlord elects to pay the real estate taxes and
impositions related to the Demised Premises, Tenant agrees to pay Landlord such
real estate taxes and impositions attributable to the Demised Premises so paid
by Landlord, within thirty (30) days after receipt of written notice from
Landlord.
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11. Maintenance and Repairs.
(a) Tenant's Obligations. From and after the Lease Commencement Date
and throughout the Term, Tenant shall, at its own cost and expense, except as
provided in Section 11(b) below, maintain the Demised Premises, including but
not limited to the electrical systems, heating, air conditioning and ventilation
systems, plate glass, windows and doors, sprinkler and plumbing systems. During
the Term, Tenant shall maintain in full force and effect a service contract for
the heating, ventilation and air conditioning systems with an entity reasonably
acceptable to Landlord. Tenant shall deliver to Landlord (i) a copy of said
service contract prior to the Lease Commencement Date, and (ii) thereafter, a
copy of a renewal or substitute service contract within thirty (30) days prior
to the expiration of the existing service contract. Tenant's obligations to
repair and maintain the Demised Premises shall also include, without limitation,
repair, maintenance and replacement of all plumbing and sewage facilities within
and about the Demised Premises (excluding however, the portion of water and
sewer lines between the boundary of the Land and Building, which shall be
Landlord's responsibility), fixtures, interior walls, floors (including floor
slabs), ceilings, windows, doors, storefronts, painting and caulking, plate
glass, skylights, all electrical facilities and equipment including, without
limitation, lighting fixtures, lamps, fans and any exhaust equipment and
systems, electrical motors, and all other appliances and equipment of every kind
and nature located in, upon or about the Demised Premises including, without
limitation, exterior lighting and fencing, and any sidewalks, parking areas and
access ways (including, without limitation, curbs and striping) upon the Demised
Premises and the landscaping and grounds surrounding the Building. All glass,
both interior and exterior, is at the sole risk of Tenant; and any broken glass
shall be promptly replaced at Tenant's expense by glass of like kind, size and
quality. Unless the same is caused solely by the negligent action or inaction
of Landlord, Landlord shall not be liable to Tenant or to any other person for
any damage occasioned by failure in any utility system or by the bursting or
leaking of any vessel or pipe in or about the Demised Premises, or for any
damage occasioned by water coming into the Demised Premises or arising from the
acts or neglects of occupants of adjacent property or the public.
(b) Landlord's Obligations. Landlord shall, at its own cost and
expense, maintain in good condition and repair the roof, foundation (beneath the
floor slab) and structural frame of the Building. Landlord's obligation shall
exclude the cost of any maintenance or repair required because of the act or
negligence of Tenant, Tenant's employees, agents or any other party acting on
behalf of Tenant, the cost of which shall be the responsibility of Tenant.
Landlord shall also be responsible for maintaining the landscaping at the
Demised Premises, but shall pass all costs reasonably and actually (i.e. with no
▇▇▇▇ up) incurred in connection therewith to Tenant, which Tenant agrees to pay
as Additional Rent hereunder.
12. Tenant's Personal Property, Indemnity. All of Tenant's personal
property in the Demised Premises shall be and remain at Tenant's sole risk, and
Landlord shall not be liable for, and Tenant hereby releases Landlord from, any
and all liability for theft thereof or any damage thereto occasioned by any acts
or negligence of any third persons, or any act of God, other than Landlord. As
to bodily injury or property damage (including personal property of Tenant),
Landlord shall not be liable for any injury to the person or property of Tenant
or other persons in or about the Demised Premises, Tenant expressly agreeing to
indemnify and save Landlord
10
harmless in all such cases, except to the extent occasioned by any negligence of
Landlord, its agents, employees or contractors. Tenant further agrees to
reimburse Landlord for any reasonable costs or expenses, including without
limitation, reasonable attorneys' fees which Landlord may actually and
reasonably incur in investigating, handling or litigating any such claim against
Landlord by a third person. Tenant shall have the option to defend Landlord with
counsel selected by Tenant and reasonably acceptable to Landlord. Landlord
agrees to indemnify and save Tenant harmless from any liability, cost or
expenses arising from or occasioned by any negligence or willful misconduct of
Landlord, its agents, employees or contractors. The provisions of this Section
12 shall survive the expiration or termination of this Lease with respect to any
damage, injury, or death occurring before such expiration or termination.
13. Tenant Fixtures. Tenant shall have the right to install in the
Demised Premises trade fixtures required by Tenant or used by it in its
business, and if installed by Tenant, to remove any or all such trade fixtures
from time to time during and upon termination or expiration of this Lease,
provided Tenant is not then in default under the terms of this Lease and any
applicable grace period has not expired with the default having not been cured;
provided, however, that prior to the expiration of the Term, Tenant shall remove
said trade fixtures from the Demised Premises and repair and restore any damage
or injury to the Demised Premises (to the condition in ,which the Demised
Premises existed prior to such installation) caused by the installation and/or
removal thereof.
14. Signs. No sign, advertisement or notice shall be inscribed, painted,
affixed, or displayed on the windows or exterior walls of the Demised Premises
or on any public area of the Building,, except in such places, numbers, sizes,
colors and styles as are approved in advance in writing by Landlord, ,which
approval shall not be unreasonably withheld or delayed and which conform to all
applicable laws and/or ordinances and the Protective Covenants and to the
Signage Criteria attached hereto as Exhibit G. Any and all signs installed or
constructed by or on behalf of Tenant pursuant hereto shall be installed,
maintained and removed by Tenant, at Tenant's sole cost and expense.
15. Landlord's Lien. Notwithstanding any other provision hereof to the
contrary, Tenant does hereby grant to Landlord, and Landlord shall have at all
times, a security interest in and valid first lien upon all of the personal
property and trade fixtures of Tenant situated in and upon the Demised Premises
to secure the obligations of Tenant for all Base Rent, Additional Rent and other
sums to become due hereunder and the performance by Tenant of each and all of
Tenant's other covenants and obligations hereunder. The security interest and
lien herein granted may be foreclosed in the manner and form provided by law for
the foreclosure of chattel mortgages or in any other manner provided or
permitted by law. Upon the written request of Tenant, Landlord agrees to
subordinate its Landlord's liens to any lender not affiliated with Tenant
providing inventory, equipment or operating capital financing.
16. Governmental Regulations. Tenant shall promptly comply throughout the
Term of this Lease, at Tenant's sole cost and expense, with all present and
future laws, ordinances and regulations of all applicable governing authorities
relating to all or any part of the Demised Premises, foreseen or unforeseen,
ordinary as well as extraordinary, or to the use or manner
11
of use of the Demised Premises or to the sidewalks, parking areas, curbs and
access ways adjoining the Demised Premises. In the event that such law,
ordinance or regulation requires a renovation, improvement or replacement to the
Demised Premises, then Tenant shall be required to make such renovation,
improvement or replacement at Tenant's sole cost and expense and in compliance
with Section 19 hereof Tenant shall also observe and comply with the
requirements of all policies of public liability, fire and other policies of
insurance at any time in force with respect to the Demised Premises.
17. Environmental Matters.
---------------------
(a) For purposes of this Lease:
(i) "Contamination" as used herein means the uncontained or
uncontrolled presence of or release of Hazardous Substances (as hereinafter
defined) into any environmental media from, upon, within, below, into or on any
portion of the Demised Premises, the Building, or the Project so as to require
remediation, cleanup or investigation under any applicable Environmental Law (as
hereinafter defined).
(ii) "Environmental Laws" as used herein means all federal, state, and
local laws, regulations, orders, permits, ordinances or other requirements,
which exist now or as may exist hereafter, concerning protection of human
health, safety and the environment, all as may be amended from time to time.
(iii) "Hazardous Substances" as used herein means any hazardous or
toxic substance, material, chemical, pollutant, contaminant or waste as those
terms are defined by any applicable Environmental Laws (including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 et seq. ("CERCLA") and the Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq. ["RCRA"]) and any solid wastes,
polychlorinated biphenyls, urea formaldehyde, asbestos, radioactive materials,
radon, explosives, petroleum products and oil.
(b) Landlord represents that, except as set forth in environmental
reports delivered by Landlord to Tenant (i) to Landlord's actual knowledge,
Landlord has not treated, stored or disposed of any Hazardous Substances upon or
within the Demised Premises and (ii) to Landlord's actual knowledge, no
Hazardous Substances are present on or under the Land as of the date of this
Lease.
(c) Tenant represents that all its activities on the Demised Premises
or the Project during the course of this Lease will be conducted in compliance
with Environmental Laws. Tenant warrants that to the best of its knowledge it
is currently in compliance with all applicable Environmental Laws and that there
are no pending or overtly threatened notices in writing of deficiency, notices
of violation, orders, or judicial or administrative actions involving alleged
violations by Tenant of any Environmental Laws. Tenant, at Tenant's sole cost
and expense, shall be responsible for obtaining all permits or licenses or
approvals under Environmental Laws necessary for Tenant's operation of its
business on the Demised Premises and shall make all notifications and
registrations required by any applicable Environmental
12
Laws. Tenant, at Tenant's sole cost and expense, shall at all times comply with
the terms and conditions of all such permits, licenses, approvals, notifications
and registrations and with any other applicable Environmental Laws affecting in
any way the Demised Premises. Tenant warrants that it will obtain all such
permits, licenses or approvals and make all such notifications and registrations
required by any applicable Environmental Laws necessary for Tenant's operation
of its business on the Demised Premises.
(d) Tenant shall not cause or permit any Hazardous Substances to be
brought upon, kept, stored or used in or about the Demised Premises, the
Building, or the Project without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed; provided, however, that
the consent of Landlord shall not be required for the use at the Demised
Premises of cleaning supplies, toner for photocopying machines and other similar
materials, in containers and quantities reasonably necessary for and consistent
with normal and ordinary use by Tenant, at the Demised Premises, in the routine
operation or maintenance of Tenant's office equipment or in the routine
janitorial service, cleaning and maintenance for the Demised Premises.
(e) Tenant shall not cause or permit the release of any Hazardous
Substances by Tenant or any of its subsidiaries or affiliates, or any of
Tenant's or such subsidiaries' or affiliates' agents, contractors, employees,
licensees or invitees (collectively, "Tenant's Affiliates") into any
environmental media such as air, water or land, or into or on the Demised
Premises, the Building or the Project in any manner that violates any
Environmental Laws. If such release shall occur, Tenant shall (i) take all
steps-reasonably necessary to contain and control such release and any
associated Contamination, (ii) clean up or otherwise remedy such release and any
associated Contamination to the extent required by, and take any and all other
actions required under, applicable Environmental Laws and (iii) notify and keep
Landlord reasonably informed of such release and response.
(f) Regardless of any consents granted by Landlord pursuant to Section
17(d) allowing Hazardous Substances upon the Demised Premises, Tenant shall
under no circumstances whatsoever cause or permit (i) any activity on the
Demised Premises which would cause the Demised Premises to become subject to
regulation as a hazardous waste treatment, storage or disposal facility under
RCRA or the regulations promulgated thereunder; (ii) the discharge of Hazardous
Substances into the storm sewer system serving the Project; or (iii) the
installation of any underground storage tank or underground piping on or under
the Demised Premises.
(g) Tenant shall and hereby does indemnify Landlord and hold and
defend Landlord harmless from and against any and all reasonable and actual
expense, loss, and liability suffered by Landlord (except to the extent that
such expenses, losses, and liabilities arise out of Landlord's own negligence or
willful act), by reason of the storage, generation, handling, treatment,
transportation, disposal, or arrangement for transportation or disposal, of any
Hazardous Substances (whether accidental, intentional, or negligent) by Tenant
or Tenant's Affiliates or by reason of Tenant's breach of any of the provisions
of this Section 17. Such expenses, losses and liabilities shall include,
without limitation, (i) any and all expenses that Landlord may incur to comply
with any Environmental Laws; (ii) any and all costs that Landlord
13
may incur in studying or remedying any Contamination at or arising from the
Demised Premises; (iii) any and all costs that Landlord may incur in studying,
removing, disposing or otherwise addressing any Hazardous Substances; (iv) any
and all fines, penalties or other sanctions assessed upon Landlord; and (v) any
and all reasonable legal and professional fees (to the extent the same are
reasonable) and costs incurred by Landlord in connection with the foregoing. The
indemnity contained herein shall survive the expiration or earlier termination
of this Lease.
18. Construction of Demised Premises.
(a) Within thirty (30) days after the date hereof, Landlord shall
prepare, at Landlord's sole cost and expense, and submit to Tenant a set of
plans and specifications (collectively, the "Plans and Specifications") based
upon the Preliminary Plans, covering all work to be performed by Landlord in
constructing the Building and other improvements which shall be a part of the
Demised Premises. Tenant shall have five (5) days after receipt of the Plans
and Specifications in which to review and to give to Landlord in original also
written notice of its approval of the Plans and Specifications or its requested
changes to the Plans and Specifications. Tenant shall have no right to request
any changes to the Plans and Specifications which would materially alter either
the size of the Demised Premises or the exterior appearance or basic nature of
the Building, as the same are contemplated by the Preliminary Plans. If Tenant
fails to approve or request changes to the Plans and Specifications by five (5)
days after its receipt thereof, then Tenant shall be deemed to have approved the
Plans and Specifications and the same shall thereupon be final. If Tenant
requests any changes to the Plans and Specifications, Landlord shall make those
changes which are reasonably requested by Tenant and shall within ten (10) days
of its receipt of such request submit the revised portion of the Plans and
Specifications to Tenant. Tenant may not thereafter disapprove the revised
portions of the Plans and Specifications unless Landlord has unreasonably failed
to incorporate reasonable comments of Tenant and, subject to the foregoing, the
Plans and Specifications as modified by said revisions, shall be deemed to be
final upon the submission of said revisions to Tenant. Tenant shall at all times
in its review of the Plans and Specifications, and of any revisions thereto, act
reasonably and in good faith. After Tenant has approved the Plans and
Specifications or the Plans and Specifications have otherwise been finalized
pursuant to the procedures set forth hereinabove, any subsequent changes to the
Plans and Specifications requested by Tenant (herein referred to as a "Change
Order") shall be at Tenant's sole cost and expense and subject to Landlord's
written approval, which approval shall not be unreasonably withheld, conditioned
or delayed. If after the Plans and Specifications have been finalized pursuant
to the procedures set forth hereinabove Tenant requests any Change Order and, as
a result thereof, completion of construction of the Improvements is delayed
beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base
Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant
may by Change Order replace the materials called for in the Plans and
Specifications with comparable materials, or with materials of a higher grade,
but Tenant shall have no right to change the materials to materials which, in
Landlord's sole opinion, are of an inferior grade or quality to those called for
in the Plans and Specifications. The aggregate cost of all such Change Orders in
excess of the costs reflected in the Plans and Specifications shall be paid in
cash by Tenant to Landlord upon Landlord's submission to Tenant of written
request for payment of such additional cost and not later than the Lease
Commencement Date. The cost to Tenant for preparing and administering Change
Orders shall be Landlord's cost.
14
(b) Landlord shall, at its sole cost and expense, construct the
Building and other improvements pursuant to the Plans and Specifications, and in
accordance with the terms and conditions of this Lease ("Landlord's Work").
Landlord shall make no changes to the Plans and Specifications without Tenant's
written consent, with the exception of immaterial details which will not affect
Tenant's use and occupancy of the Building and other improvements. Landlord
shall have the final Plans and Specifications sealed by the Architect, obtain
all required building permits, certificates and licenses and thereafter, in
accordance with all applicable law and insurance requirements, perform
Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary
Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve
Substantial Completion, at Landlord's sole cost and expense, on or before March
21, 2001. In the event that Landlord is unable to Substantially Complete the
Demised Premises for occupancy by Tenant on or before March 21, 2001, as
extended by Ordinary Delay and Tenant Delay (as defined below), the Lease
Commencement Date, the Base Rent Commencement Date and the Expiration Date shall
be postponed one day for each day Substantial Completion is delayed until the
Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay
(as defined below) in which event no adjustment shall be made for the number of
days of Tenant Delay. In addition, in the event that Landlord is unable to
achieve Substantial Completion on or before March 22, 2001, as extended by
Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then
from and after the adjusted Rent Commencement Date, Tenant shall receive a
credit against Base Rent equal to two (2) days of Base Rent for each day of
Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is
fully realized by Tenant, as its sole remedy.
(d) Reserved
(e) The Substantial Completion target date of March 21, 2001 and the
Penalty Date shall be extended for one (1) day for each day that Substantial
Completion is delayed:
(i) as a result of the failure by Tenant to timely approve or
disapprove the Plans and Specifications, or as a result of Change Orders or
other changes requested by Tenant in the Plans and Specifications after the
Tenant's approval thereof (collectively referred to herein as "Tenant Delay");
or
(ii) due to national strikes or other national labor troubles not
specific to the Demised Premises, war or other national emergency, accidents,
floods, fire, damage or other casualties, abnormal weather or acts or omissions
of Tenant, or delays by utility companies in bringing utility lines to the
Demised Premises (collectively referred to herein as "Ordinary Delay"). The
inability or refusal of Landlord to make any monetary payment shall not
constitute or result in an Ordinary Delay.
(f) On or prior to the date of Substantial Completion of the Demised
Premises; a representative of Landlord and a representative of Tenant together
shall inspect the Demised Premises and, within fifteen (15) days thereafter,
generate a punchlist of defective or uncompleted items relating to the
completion of construction of the improvements within the
15
Demised Premises (the "Punchlist"), which Punchlist shall indicate the
estimation by the parties of the cost of each item. Landlord shall, within a
reasonable time after the Punchlist is prepared and agreed upon by Landlord and
Tenant, complete such incomplete work and remedy such defective work as are set
forth on the Punchlist.
(g) Upon the Lease Commencement Date, Tenant shall execute and deliver
to Landlord a letter confirming (i) the Lease Commencement Date, the Base Rent
Commencement Date and the Expiration Date of this Lease, (ii) that Tenant
accepts the Demised Premises subject only to Landlord's completion of the items
listed on the Punchlist.
(h) Landlord hereby warrants to Tenant that the materials and
equipment furnished by Landlord's contractors in the completion of Landlord's
Work will be of good quality and new and in conformity with all applicable laws,
ordinances, rules and regulations, that such work will conform to the Plans and
Specifications and that during the one (1) year period following the date of
Substantial Completion of Landlord's Work, such materials and equipment and the
work of such contractors shall be free from defects not inherent in the quality
required or permitted hereunder (the foregoing referred, to herein as
"Landlord's Warranty"). This warranty shall exclude damages or defects caused
by abuse by Tenant and Tenant's Affiliates, improper or insufficient
maintenance, improper operation, or normal wear and tear under normal usage.
19. Tenant Alterations and Additions.
(a) Except as to any nonstructural alterations, improvements, or
additions to the Demised Premises (collectively a "Tenant Change"), ,which
Tenant Changes individually cost less than $25,000, Tenant shall not make or
permit to be made any other Tenant Change without first obtaining on each
occasion Landlord's prior written consent (which consent Landlord agrees not to
unreasonably withhold or delay) and Lender's prior written consent (if such
consent is required). With respect to any such Tenant Change requiring
Landlord's prior written consent, Landlord may require that Tenant furnish
Landlord with a full set of plans and specifications for any such Tenant Change
prior to the commencement thereof together with an original builder's risk
policy of insurance in form and amount of coverage reasonably acceptable to
Landlord, showing Tenant as named insured, and Landlord and Lender (if
applicable) as loss payees. If Landlord, at the time of giving its approval to
any Tenant Change, notifies Tenant that approval is conditioned upon
restoration, then upon written request of Landlord, Tenant shall, at its sole
cost and expense and upon the termination of this Lease, remove the same and
restore the Demised Premises to its condition prior to such Tenant Change.
(b) All Tenant Changes shall be performed in accordance with all legal
requirements applicable thereto and in a good and workmanlike manner with
firstclass materials and, upon completion of any Tenant Change, Tenant shall
furnish to Landlord "as-built" drawings showing the location and type thereof.
No Tenant Change shall impair the structural strength of the Building or reduce
its value, Tenant shall take or cause to be taken all steps that are required or
permitted by law in order to avoid the imposition of any materialmen's or
mechanics' liens upon the Building or the Demised Premises, and Tenant shall pay
the fall cost of any Tenant Change and Tenant shall give Landlord such
reasonable security as may be
16
requested by Landlord to insure payment of such cost. Except as otherwise
provided herein and in Section 12 hereof, all Tenant Changes and all repairs and
all other property attached to or installed on the Demised Premises by or on
behalf of Tenant shall immediately upon completion or installation thereof be
and become part of the Demised Premises and the property of Landlord without
payment therefor by Landlord and shall be surrendered to Landlord upon the
expiration or earlier termination of the Term. With respect to any Tenant
Change, whether or not requiring Landlord's prior consent, Landlord shall have
no duty or obligation to make any replacement or repair thereto, whether
interior or exterior, structural or non-structural, ordinary or extraordinary or
as required to comply with any law.
(c) To the extent permitted by law, all of Tenant's contracts and
subcontracts for such Tenant Changes shall provide that no lien shall attach to
or be claimed against the Demised Premises or any interest therein other than
Tenant's leasehold interest in the Demised Premises, and that all subcontracts
let thereunder shall contain the same provision. Whether or not Tenant
furnishes the foregoing, Tenant agrees to hold Landlord harmless against all
liens, claims and liabilities of every kind, nature and description which may
arise out of or in any way be connected with such work. Tenant shall not permit
the Demised Premises to become subject to any mechanics', laborers' or
materialmen's lien on account of labor, material or services furnished to Tenant
or claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed for the Demised Premises
by, or at the direction or sufferance of Tenant and if any such liens are filed
against the Demised Premises, Tenant shall promptly discharge the same;
provided, however, that Tenant shall have the right to contest, in good faith
and with reasonable diligence, the validity of any such lien or claimed lien if
Tenant shall give to Landlord, within fifteen days after demand, such security
as may be reasonably satisfactory to landlord to assure payment thereof and to
prevent any sale, foreclosure, or forfeiture of Landlord's interest in the
Demised Premises by reason of non-payment thereof; provided further that on
final determination of the lien or claim for lien, Tenant shall immediately pay
any judgment rendered, with all proper costs and charges, and shall have the
lien released and any judgment satisfied. If Tenant fails to post such security
or does not diligently contest such lien, Landlord may, without investigation of
the validity of the lien claim, discharge such lien and Tenant shall reimburse
Landlord upon demand for all costs and expenses incurred in connection
therewith, which expenses shall include any reasonable attorneys' fees,
reasonable paralegals' fees and any and all costs associated therewith,
including litigation through all trial and appellate levels and any costs in
posting bond to effect a discharge or release of the lien. Nothing contained in
this Lease shall be construed as a consent on the part of Landlord to subject
the Demised Premises to liability under any lien law now or hereafter existing
of the state in which the Demised Premises are located.
20. Services by Landlord. From and after the Lease Commencement Date,
Landlord shall be responsible for providing no services to the Demised Premises
whatsoever, except for the services for which Landlord is specifically obligated
pursuant to Section 18 (f) and (h) or as otherwise specifically provided for
herein.
17
21. Fire and Other Casualty.
(a) If the Building or other improvements on the Land shall be damaged
or destroyed by fire or other casualty, Tenant, at Tenant's sole cost and
expense, shall promptly and diligently proceed to adjust the loss with the
insurance companies (subject to the approval of the Lender (if applicable) and
of Landlord) and arrange for the disbursement of insurance proceeds, and repair,
rebuild or replace such Building and other improvements, so as to restore the
Demised Premises to the condition in which they were immediately prior to such
damage or destruction. The net proceeds of any insurance recovered by reason of
such damage or destruction in excess of the cost of adjusting the insurance
claim and collecting the insurance proceeds (such excess being referred to
herein as the "Net Insurance Proceeds") shall be held by the Lender (provided
that such Lender is a bank, savings association, insurance company or other
similar institutional lender; herein called "Institutional Lender"), or, if no
Institutional Lender then holds a Mortgage on the Demised Premises, by any
national or state chartered bank which is reasonably acceptable to Landlord and
Tenant; and the Net Insurance Proceeds shall be released for the purpose of
paying the fair and reasonable cost of restoring such Building and other
improvements. Such Net Insurance Proceeds shall be released to Tenant, or to
Tenant's contractors, from time to time as the work progresses, pursuant to such
requirements and limitations as may be reasonably acceptable to Landlord and
Lender (if the Lender so requires), including, without limitation, lien waivers
from each of the contractors, subcontractors, materialmen and suppliers
performing the work. If the Net Insurance Proceeds (less any applicable
deductible) are insufficient to restore the Demised Premises Tenant shall be
obligated to pay such deficiency and the amount of any such deductible.
Notwithstanding the foregoing, if the Net Insurance Proceeds are less than
Twenty-Five Thousand Dollars ($25,000.00), and if the Lender agrees in writing,
such Net Insurance Proceeds may be held by Tenant and used by Tenant to pay the
fair and reasonable cost of restoring such Demised Premises and other
improvements. If the Net Insurance Proceeds exceed the full cost of the repair,
rebuilding or replacement of the damaged Building or other improvements, then
the amount of such excess Net Insurance Proceeds shall be paid to Tenant upon
the completion of such repair, rebuilding or replacement. Landlord agrees not
unreasonably to withhold or delay any approvals required to be obtained by
Tenant from Landlord pursuant to the provisions of this Section 21 (a).
(b) Whenever Tenant shall be required to carry out any work or repair
and restoration pursuant to this Section 21, Tenant, prior to the commencement
of such work, shall deliver to Landlord for Landlord's prior approval (which
shall not be unreasonably withheld or delayed) a full set of the plans and
specifications therefor, together with a copy of all approvals and permits which
shall be required from any governmental authority having jurisdiction. After
completion of any major repair or restoration, Tenant shall, as soon as
reasonably possible, obtain and deliver to Landlord a Certificate of Substantial
Completion from the inspecting architect and a permanent Certificate of
Occupancy (or amended Certificate of Occupancy), if required by applicable laws,
issued by the appropriate authority with respect to the use of the Demised
Premises, as thus repaired and restored. Any such work or repair and
restoration, in all cases, shall be carried out by Tenant in a good and
workmanlike manner with materials at least equal in quality to the original
materials used therefor prior to the damage or destruction. If, after a default
by Tenant that is continuing, Landlord shall carry out any such work or repair
and restoration pursuant to the provisions of this Section 21, then Landlord
shall be entitled to
18
withdraw monies held for application to the costs of such work from time to time
as such costs are incurred.
22. Condemnation.
(a) If all of the Demised Premises is taken or condemned for a public
or quasi-public use, this Lease shall terminate as of the earlier of the date
title to the condemned real estate vests in the condemnor and the date on which
Tenant is deprived of possession of all of the Demised Premises. In such event,
the Base Rent herein reserved and all Additional Rent and other sums payable
hereunder shall be apportioned and paid in full by Tenant to Landlord to that
date, all Base Rent, Additional Rent and other sums payable hereunder prepaid
for periods beyond that date shall forthwith be repaid by Landlord to Tenant,
and neither party shall thereafter have any liability hereunder, except that any
obligation or liability of either party, actual or contingent, under this Lease
which has accrued on or prior to such termination date shall survive.
(b) In the event of a taking of "Substantially All of the Demised
Premises" (as herein defined), Tenant may, at its option, upon thirty (30) days'
written notice to Landlord, which shall be given no later than sixty (60) days
following the taking, have the right to terminate this Lease. All Base Rent and
other sums payable by Tenant hereunder shall be apportioned and paid through and
including the date of taking, and neither Landlord nor Tenant shall have any
rights in any compensation or damages payable to the other in connection with
such condemnation. For purposes of this provision, "Substantially All of the
Demised Premises" shall mean (i) so much of the Demised Premises as, when taken,
leaves the untaken portion unsuitable, in the reasonable opinion of Tenant, for
the continued feasible and economic operation of the Demised Premises by Tenant
for the same purposes as immediately prior to such taking or as contemplated
herein, (ii) so many of the parking spaces on the Land are taken as to reduce
the parking ratio below that which is required by the zoning ordinance
applicable to the Project, and Landlord's failure to provide substantially
similar alternative parking adjacent to the Demised Premises reasonably
acceptable to Tenant within sixty (60) days after such taking, or (iii) so much
of the Demised Premises is taken that access to the Demised Premises is
materially impeded, as reasonably determined by Tenant.
(c) If only part of the Demised Premises is taken or condemned for a
public or quasi-public use and this Lease does not terminate pursuant to Section
22(b) above, Tenant shall restore, using all reasonable speed and diligence, the
Demised Premises to a condition and to a size as nearly comparable as reasonably
possible to the condition and size thereof immediately prior to the taking and
Landlord, to the extent of the award Landlord receives in excess of the costs of
collecting the award and value of the Land taken (herein, the "Net Condemnation
Proceeds"), shall release the Net Condemnation Proceeds to Tenant for that
purpose and Tenant shall have the right to participate in any proceeding
relating to the awarding of restoration damages. There shall be an equitable
abatement of the Base Rent and Additional Rent based on the actual loss of use
of the Demised Premises suffered by Tenant from the taking. Determination of
such loss of use of the Demised Premises after a partial taking shall be
mutually agreed to by the parties within sixty (60) days from the date of the
taking and if the parties can not so agree, then such loss of use shall be
determined in accordance with the Dispute
19
Resolution Procedure (as defined in Section 34), with real estate appraisers
having at least ten (10) years experience appraising commercial real estate,
including build-to-suit leases, serving as Officials. Pending such
determination, Tenant shall continue to pay the Base Rent and Additional Rent as
herein originally specified, and upon such determination, if Tenant is entitled
to a refund because of an overpayment of Base Rent or Additional Rent, Landlord
shall make the same promptly, or in lieu thereof credit the amount thereof to
future installments of Base Rent or Additional Rent as they become due.
(d) Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Section 22, without
deduction therefrom for any estate vested in Tenant by this Lease, and, subject
to Section 22(c) above, Tenant shall receive no part of such award. Nothing
herein contained shall be deemed to prohibit Tenant from making a separate
claim, against the condemnor, to the extent permitted by law, for the value of
the unamortized tenant improvements (installed in accordance with Section 19 at
Tenant's expense), Tenant's moveable trade fixtures, machinery and moving
expenses, provided that, in any case, the making of such claim shall not and
does not adversely affect or diminish Landlord's award.
23. Tenant's Default.
(a) The occurrence of any one or more of the following events shall
constitute an event of default (herein referred to as an "Event of Default") of
Tenant under this Lease:
(i) if Tenant fails to pay Base Rent or any Additional Rent hereunder
as and when such rent becomes due and such failure shall continue for more than
five (5) days after receipt of written notice from Landlord of such failure;
(ii) if Tenant fails to pay Base Rent or any Additional Rent on time
more than three (3) times in any period of twelve (12) months, notwithstanding
that such payments have been made within the applicable cure period;
(iii) if the Demised Premises become abandoned for more than ten (1O)
consecutive days or if Tenant fails to take possession of the Demised Premises
on the Lease Commencement Date (or within a reasonable time thereafter);
(iv) if Tenant permits to be done anything which creates a lien upon
the Demised Premises and fails either (A) to discharge, (B) bond such lien, or
(C) post security with Landlord acceptable to Landlord, within thirty (30) days
after receipt by Tenant of ,written notice thereof;
(v) if Tenant violates the provisions of Section 30 of this Lease by
attempting to make an unpermitted assignment or sublease;
(vi) if Tenant fails to maintain in force all policies of insurance
required by this Lease and such failure shall continue for more than ten (10)
days after Landlord gives Tenant notice of such failure;
20
(vii) if any petition is filed by or against Tenant or any guarantor
of this Lease under any present or future section or chapter of the Bankruptcy
Code, or under any similar law or statute of the United States or any state
thereof (which, in the case of an involuntary proceeding, is not permanently
discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60)
days of commencement), or if any order for relief shall be entered against
Tenant or any guarantor of this Lease in any such proceedings;
(viii) if Tenant or any guarantor of this Lease is adjudicated
insolvent or makes a transfer in fraud of creditors or makes an assignment for
the benefit of creditors;
(ix) if a receiver, custodian, or trustee is appointed for the Demised
Premises or for all or substantially all of the assets of Tenant or of any
guarantor of this Lease, which appointment is not vacated within sixty (60) days
following the date of such appointment; or
(x) if Tenant fails to perform or observe any other term of this Lease
and such failure shall continue for more than thirty (30) days after Landlord
gives Tenant notice of such failure, or, if such failure cannot be corrected
within such thirty (30) day period, if Tenant does not commence to correct such
default within said thirty (30) day period and thereafter diligently prosecute
the correction of same to completion within a reasonable time.
(b) Upon the occurrence of any one or more of the aforesaid Events of
Default, or upon the occurrence of any other default or defaults by Tenant under
this Lease, Landlord may, at Landlord's option, without any demand or notice
whatsoever (except as expressly required in this Section 23):
(i) Terminate this Lease by giving Tenant notice of termination, in
which event this Lease shall expire and terminate on the date specified in such
notice of termination with the same force and effect as though the date so
specified were the date herein originally fixed as the termination date of the
Term, and all rights of Tenant under this Lease and in and to the Demised
Premises shall expire and terminate and subject to any duty of Landlord to
mitigate its damages imposed by then-applicable laws, Tenant shall remain liable
for all obligations under this Lease arising up to the date of such termination,
and Tenant shall surrender the Demised Premises to Landlord on the date
specified in such notice, and if Tenant fails to so surrender Landlord shall
have the right, without notice, to enter upon and take possession of the Demised
Premises and to expel or remove Tenant and its effects without being liable for
prosecution or any claim for damages therefor; or
(ii) Terminate this Lease as provided in Section 23(b)(i) hereof and
recover from Tenant all damages Landlord may incur by reason of Tenant's
default, including, without limitation, a sum which, at the date of such
termination, is calculated as follows: (1) the value of the excess, if any, of
(A) the Base Rent, Additional Rent and all other sums which would have been
payable hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the expiration date of the original
Term (or any applicable extension or renewal term then in effect) had this Lease
not been terminated
21
(the "Remaining Term"), over (B) the aggregate reasonable rental value of the
Demised Premises for the Remaining Term (which excess, if any, shall be
discounted to present value at the "Treasury Yield" [as defined below] rate for
the Remaining Term), plus (2) the costs of recovering possession of the Demised
Premises and all other expenses incurred by Landlord due to Tenant's default,
including, without limitation, reasonable attorney's fees, plus (3) the unpaid
Base Rent and Additional Rent earned as of the date of termination plus any
interest and late fees due hereunder, plus other sums of money and damages owing
on the date of termination by Tenant to Landlord under this Lease or in
connection with the Demised Premises, all of which excess sum shall be deemed
immediately due and payable; provided, however, that such payments shall not be
deemed a penalty but shall merely constitute payment of liquidated damages, it
being understood and acknowledged by Landlord and Tenant that actual damages to
Landlord are extremely difficult, if not impossible, to ascertain. "Treasury
Yield" shall mean the rate of return in percent per annum of Treasury Constant
Maturities for the length of time specified as published in document H. 15(519)
(presently published by the Board of Governors of the U.S. Federal Reserve
System titled "Federal Reserve Statistical Release") for the calendar week
immediately preceding the calendar week in which the termination occurs. If the
rate of return of Treasury Constant Maturities for the calendar week in question
is not published on or before the business day preceding the date of the
Treasury Yield in question is to become effective, then the Treasury Yield shall
be based upon the rate of return of Treasury Constant Maturities for the length
of time specified for the most recent calendar week for which such publication
has occurred. If no rate of return for Treasury Constant Maturities is published
for the specific length of time specified, the Treasury Yield for such length of
time shall be the weighted average of the rates of return of Treasury Constant
Maturities most nearly corresponding to the length of the applicable period
specified. If the publishing of the rate of return of Treasury Constant
Maturities is ever discontinued, then the Treasury Yield shall be based upon the
index which is published by the Board of Governors of the U.S. Federal Reserve
System in replacement thereof or, if no such replacement index is published, the
index which, in Landlord's reasonable determination, most nearly corresponds to
the rate of return of Treasury Constant Maturities. In determining the aggregate
reasonable rental value pursuant to subparagraph (ii)(1)(B) above, the parties
hereby agree that, at the time Landlord, seeks to enforce this remedy, all
relevant factors should be considered, including, but not limited to, (a) the
length of time remaining in the Term, (b) the then current market conditions in
the general area in which the Building is located, (c) the likelihood of
reletting the Demised Premises for a period of time equal to the Remaining Term,
(d) the net effective rental rates then being obtained by landlords for similar
type space of similar size in similar type buildings in the general area in
which the Building is located, (e) the vacancy levels in the general area in
which the Building is located, (o current levels of new construction that will
be completed during the remainder of the Term and how this construction will
likely affect vacancy rates and rental rates and (g) inflation; or
(iii) Without terminating this Lease, and with or without notice to
Tenant, Landlord may in its own name but as agent for Tenant enter into and upon
and take possession of the Demised Premises or any part thereof, and, at
Landlord's option, remove persons and property therefrom and such property, if
any, may be removed and stored in a warehouse or elsewhere at the cost of, and
for the account of Tenant, all without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby,
22
and, subject to any duty of Landlord to mitigate its damages imposed by then-
applicable laws, Landlord may rent the Demised Premises or any portion thereof
as the agent of Tenant with or without advertisement, and by private
negotiations and for any term upon such terms and conditions as Landlord may
deem necessary or desirable in order to relet the Demised Premises. Subject to
any duty of Landlord to mitigate its damages imposed by then-applicable laws,
Landlord shall in no way be responsible or liable for any failure to rent the
Demised Premises or any part thereof, or for any failure to collect any rent due
upon such reletting. Upon each such reletting, all rentals received by Landlord
from such reletting shall be applied: first, to the payment of any indebtedness
(other than any rent due hereunder) from Tenant to Landlord; second, to the
payment of any costs and expenses of such reletting, including, without
limitation, brokerage fees and attorney's fees and costs of alterations and
repairs; third, to the payment of rent and other charges then due and unpaid
hereunder; and the residue, if any, shall be held by Landlord to the extent of
and for application in payment of future rent, if any becomes owing, as the same
may become due and payable hereunder. In reletting the Demised Premises as
aforesaid, Landlord may grant rent concessions and Tenant shall not be credited
therefor. If such rentals received from such reletting shall at any time or from
time to time be less than sufficient to pay to Landlord the entire sums then due
from Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall, at Landlord's option, be calculated and paid monthly.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for any such previous default provided
same has not been cured and proceed under subsections 23(b)(i) or 23(b)(ii)
above; or
(iv) Without terminating this Lease, and with or without notice to
Tenant, Landlord may enter into and upon the Demised Premises and without being
liable for prosecution or any claim for damages therefor, maintain the Demised
Premises and repair or replace any damage thereto or do anything or make any
payment for which Tenant is responsible hereunder. Tenant shall reimburse
Landlord immediately upon demand for any expenses ,which Landlord incurs in thus
effecting Tenant's compliance under this Lease, and Landlord shall not be liable
to Tenant for any damages with respect thereto; or
(v) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same so
long as Tenant is in default under this Lease; or
(vi) To the extent permitted by then-applicable law, allow the Demised
Premises to remain unoccupied and collect rent from Tenant as it comes due; or
(vii) Foreclose any security interest in the property of Tenant which
Landlord may have under the laws of the state where the Building is located or
under this Lease, including the immediate taking of possession of all property
on or in the Demised Premises; or
(viii) Pursue such other remedies as are available at law or in equity.
(c) If this Lease shall terminate as a result of or while there exists
a default hereunder, any funds of Tenant held by Landlord may be applied by
Landlord to any damages
23
payable by Tenant whether provided for herein or by law) as a result of such
termination or default.
(d) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a bar
to the maintenance of any subsequent actions or proceedings for the recovery of
such sum or sums so omitted.
(e) If any statute or rule of law shall limit any of Landlord's
remedies as hereinabove set forth, Landlord shall nonetheless be entitled to any
and all other remedies hereinabove set forth.
(f) No agreement to accept a surrender of the Demised Premises and no
act or omission by Landlord or Landlord's agents during the Term shall
constitute an acceptance or surrender of the Demised Premises unless made in
writing and signed by Landlord. No re-entry or taking possession of the Demised
Premises by Landlord shall constitute an election by Landlord to terminate this
Lease unless a written notice of such intention is given to Tenant.
(g) No provision of this Lease shall be deemed to have been waived by
either party unless such waiver is in writing and signed by the party making
such waiver. Landlord's acceptance of Base Rent or Additional Rent following an
Event of Default hereunder shall not be construed as a waiver of such Event of
Default. No custom or practice which may grow up between the parties in
connection with the terms of this Lease shall be construed to waive or lessen
either party's right to insist upon strict performance of the terms of this
Lease, without a written notice thereof the other party.
(h) The rights granted to Landlord in this Section 23 shall be
cumulative of every other right or remedy provided in this Lease or which
Landlord may otherwise have at law or in equity or by statute, and the exercise
of one or more rights or remedies shall not prejudice or impair the concurrent
or subsequent exercise of other rights or remedies or constitute a forfeiture or
waiver of Base Rent, Additional Rent or damages accruing to Landlord by reason
of any Event of Default. If an Event of Default shall occur, Tenant shall pay
to Landlord, on demand, all expenses incurred by Landlord as a result thereof,
including reasonable attorneys' fees, court costs and expenses. Other than in
connection with a claim arising from the negligence or intentional misconduct of
Landlord, its employees, agents or representatives, if Landlord shall be made a
party to any litigation commenced against Tenant as a result of this Lease,
Landlord's ownership of the Demised Premises or the relationship of Landlord and
Tenant arising by virtue of this Lease, Tenant shall pay all costs and
reasonable attorneys' fees incurred by Landlord in connection with such
litigation. Notwithstanding anything to the contrary contained herein, in the
event any third party prevails in any action to which Landlord is made a party
and it is ultimately determined that there was no negligence or intentional
misconduct on the part of Landlord, Tenant shall pay all costs and reasonable
attorneys' fees incurred by Landlord in connection with such litigation.
24
24. Landlord's Right of Entry. Tenant agrees to permit Landlord and the
authorized representatives of Landlord and of the Lender to enter upon the
Demised Premises at all reasonable times for the purposes of (a) inspecting the
Demised Premises, (b) making any necessary repairs thereto pursuant to Section
18(f),and (c) performing any work therein that may be necessary by reason of
Tenant's failure to make such repairs or perform any such work required of
Tenant under this Lease; provided that, except in the case of an emergency,
Landlord shall give the Tenant reasonable prior notice not less than two (2)
days in advance of Landlord's intended entry into the Building. Nothing herein
shall imply any duty upon the part of Landlord to do any of the work described
in clause (c) above, and the performance thereof by Landlord shall not
constitute a waiver of Tenant's default in failing to perform such work.
Landlord shall not be liable for inconvenience, annoyance, disturbance or other
damage to Tenant by reason of making such repairs or the performance of such
work in the Demised Premises or on account of bringing materials, supplies and
equipment into or through the Demised Premises during the course thereof, and
the obligations of Tenant under this Lease shall not thereby be affected;
provided, however, that Landlord shall use reasonable efforts not to disturb or
otherwise interfere with Tenant's operations in the Demised Premises in making
such repairs or performing such work. Landlord also shall have the right to
enter the Demised Premises at all reasonable times to exhibit the Demised
Premises to any prospective purchaser, mortgagee or tenant.
25. Lender's Rights.
(a) For purposes of this Lease:
(i) "Lender" as used herein means the holder of a Mortgage;
(ii) "Mortgage" as used herein means any or all mortgages, deeds
to secure debt, deeds of trust or other instruments in the nature thereof which
may now or hereafter affect or encumber Landlord's title to the Demised
Premises, and any amendments, modifications, extensions or renewals thereof.
(b) This Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien and security title of any Mortgage. Tenant
recognizes and acknowledges the right of Lender to foreclose or exercise the
power of sale against the Demised Premises under any Mortgage.
(c) Tenant shall, in confirmation of the subordination set forth in
Section 25(b) and notwithstanding the fact that such subordination is self-
operative, and no further instrument or subordination shall be necessary, upon
demand, at any time or times, execute, acknowledge, and deliver to Landlord or
to Lender any and all instruments requested by either of them to evidence such
subordination.
(d) If requested by Lender, Tenant shall, upon demand, at any time or
times, execute, acknowledge, and deliver to Lender, any and all instruments that
may be necessary to make this Lease superior to the lien of Lender's Mortgage.
25
(e) If Lender (or Lender's nominee, or other purchaser at foreclosure)
shall hereafter succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease, Tenant
shall, if requested by such successor, attorn to and recognize such successor as
Tenant's landlord under this Lease without change in the terms and provisions of
this Lease, and Tenant shall promptly execute and deliver any instrument that
may be necessary to evidence such attornment, provided that such successor shall
not be bound by (i) any payment of Base Rent or Additional Rent for more than
one month in advance, except prepayments in the nature of security for the
performance by Tenant of its obligations under this Lease, and then only if such
prepayments have been deposited with and are under the control of such
successor, or (ii) any provision of any amendment to the Lease to which Lender
has not consented, (iii) the defaults of any prior landlord under this Lease
which are not continuing, (iv) any offset rights arising out of the defaults of
any prior landlord under this Lease. Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between each successor
landlord and Tenant, subject to all of the terms, covenants and conditions of
this Lease.
(f) In the event there is a Mortgage at any time during the Term,
Landlord shall cause the Lender to enter into a subordination, nondisturbance
and attornment agreement with Tenant reasonably satisfactory to Tenant and
consistent with this Section 25 (an "SNDA"), and Tenant's agreement (i) to
attorn to Lender and (ii) that the Lease is subordinate to such Mortgage, is
conditioned upon Tenant's receipt of such SNDA.
26. Estoppel Certificate and Financial Statement.
(a) Landlord and Tenant agree, at any time, and from time to time,
within fifteen (15) days after written request of the other, to execute,
acknowledge and deliver to the requesting party, a statement in writing in
recordable form certifying that: (i) this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect, as modified) and (ii) the dates to which Base Rent, Additional Rent
and other charges have been paid, (iii) whether or not, to the best knowledge of
the signer of such certificates, there exists any failure by Landlord to perform
any term, covenant or condition contained in this Lease, and, if so, specifying
each such failure of which the signer may have knowledge, (iv) (if such be the
case) the Tenant has unconditionally accepted the Demised Premises and is
conducting its business therein, (v) and as to such additional matters as may be
reasonably requested, it being intended that any such statement delivered
pursuant hereto may be relied upon by the requesting party and by any purchaser
of title to the Demised Premises or by any Lender or any assignee thereof or any
party to any sale-leaseback of the Demised Premises, or the landlord under a
ground lease affecting the Demised Premises.
(b) If Landlord desires to finance, refinance, or sell the Building,
Industrial Center or any part thereof, Tenant and all Guarantors shall deliver
to any potential lender or purchaser designated by Landlord such financial
statements of Tenant and such Guarantors as may be reasonably required by such
lender or purchaser, including but not limited to Tenant's financial statements
for the past 3 years. All such financial statements shall be received by
Landlord and such lender or purchaser in confidence and shall be used only for
the purposes herein set forth.
26
27. Landlord Liability. No owner of the Demised Premises, whether or not
named herein, shall have liability hereunder after it ceases to hold title to
the Demised Premises. Neither Landlord nor any officer, director, shareholder,
partner or principal of Landlord, whether disclosed or undisclosed, shall be
under any personal liability with respect to any of the provisions of this
Lease, and if Landlord is in breach or default with respect to Landlord's
obligations or otherwise under this Lease, Tenant shall look solely to the
equity of Landlord in the Demised Premises for the satisfaction of Tenant's
remedies. It is expressly understood and agreed that Landlord's liability under
the terms, covenants, conditions, warranties and obligations of this Lease shall
in no event exceed the loss of Landlord's equity interest in the Demised
Premises.
28. Notices. Any notice required or permitted to be given or served by
either party to this Lease shall be deemed given when made in writing and either
(i) personally delivered, (ii) deposited with the United States Postal Service,
postage prepaid, by registered or certified mail, return receipt requested, or
(iii) delivered by overnight delivery service providing proof of delivery,
properly addressed to the address set forth in Section 1(k) (as the same may be
changed by giving written notice of the aforesaid in accordance with this
Section 28). If any notice mailed is properly addressed with appropriate
postage but returned for any reason, such notice shall be deemed to be effective
notice and to be given on the date of mailing.
29. Brokers. Tenant represents and warrants to Landlord that, except for
those parties set forth in Section 1(m) (the "Brokers"), Tenant has not engaged
or had any conversations or negotiations with any broker, finder or other third
party concerning the leasing of the Demised Premises to Tenant who would be
entitled to any commission or fee based on the execution of this Lease. Tenant
hereby further represents and warrants to Landlord that Tenant is not receiving
and is not entitled to receive any rebate, payment or other remuneration, either
directly or indirectly, from the Brokers, and that it is not otherwise sharing
in or entitled to share in any commission or fee paid to the Brokers by Landlord
or any other party in connection with the execution of this Lease, either
directly or indirectly. Tenant hereby indemnities Landlord against and from any
claims for any brokerage commissions arising by, through or under Tenant (except
those payable to the Broker, all of which are payable by Landlord pursuant to a
separate agreement) and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees and
expenses, for any breach of the foregoing. The foregoing indemnification shall
survive the expiration or termination of the Lease for any reason.
30. Assignment and Subleasing.
(a) Tenant may not assign, mortgage, pledge, encumber or otherwise
transfer this Lease, or any interest hereunder, or sublet the Demised Premises,
in whole or in part, without on each occasion first obtaining the prior express
written consent of Landlord, which consent Landlord shall not unreasonably
withhold. Any change in control of Tenant resulting from a merger,
consolidation, stock transfer or asset sale shall be considered an assignment or
transfer which requires Landlord's prior written consent. For purposes of this
Section 29, by way of example and not limitation, Landlord shall be deemed to
have reasonably withheld consent if Landlord reasonably determines (i) that the
prospective assignee or subtenant is not of
27
a financial strength to satisfy its obligations under such assignment or
sublease, (ii) that the proposed use of the Demised Premises by such prospective
assignee or subtenant (including, without limitation, a use involving the use or
handling of Hazardous Substances) will negatively affect the value or
marketability of the Building, or the Project or (iii) that the prospective
assignee or subtenant is a current tenant in the Project or is a bona-fide
third-party prospective tenant.
(b) If Tenant desires to assign this Lease or sublet the Demised
Premises or any part thereof, Tenant shall give Landlord written notice no later
than forty-five (45) days in advance of the proposed effective date of any
proposed assignment or sublease, specifying (i) the name and business of the
proposed assignee or sublessee, (ii) the amount and location of the space within
the Demised Premises proposed to be subleased, (iii) the proposed effective date
and duration of the assignment or subletting and (iv) the proposed rent or
consideration to be paid to Tenant by such assignee or sublessee. Tenant shall
promptly supply Landlord with financial statements and other information as
Landlord may reasonably request to evaluate the proposed assignment or sublease.
Landlord shall have a period of fifteen (15) days following receipt of such
notice and other information requested by Landlord within which to notify Tenant
in writing that Landlord elects: (i) to permit Tenant to assign or sublet such
space; provided, however, that, if the rent rate agreed upon between Tenant and
its proposed subtenant is greater than the rent rate that Tenant must pay
Landlord hereunder for that portion of the Demised Premises, or if any
consideration shall be promised to or received by Tenant in connection with such
proposed assignment or sublease (in addition to rent), then one half (1/2) of
such excess rent and other consideration (after payment of brokerage
commissions, attorneys' fees and other disbursements reasonably incurred by
Tenant for such assignment and subletting if acceptable evidence of such
disbursements is delivered to Landlord) shall be considered Additional Rent owed
by Tenant to Landlord, and shall be paid by Tenant to Landlord, in the case of
excess rent, in the same manner that Tenant pays Base Rent and, in the case of
any other consideration, within ten (10) business days after receipt thereof by
Tenant; or (ii) to refuse, in Landlord's reasonable discretion (taking into
account all relevant factors including, without limitation, the factors set
forth in the Section 29(a) above), to consent to Tenant's assignment or
subleasing of such space (in which event Landlord shall specify the particular
reason(s) why Landlord refused such request) and to continue this Lease in full
force and effect as to the entire Demised Premises. If Landlord should fail to
notify Tenant in writing of such election within the aforesaid fifteen (15) day
period, Landlord shall be deemed to have elected option (ii) above. Tenant
agrees to reimburse Landlord for reasonable legal fees and any other reasonable
costs incurred by Landlord in connection with any requested assignment or
subletting, and such payments shall not be deducted from the Additional Rent
owed to Landlord pursuant to subsection (ii) above. Tenant shall deliver to
Landlord copies of all documents executed in connection with any permitted
assignment or subletting, which documents shall be in form and substance
reasonably satisfactory to Landlord and which shall require such assignee to
assume performance of all terms of this Lease on Tenant's part to be performed.
(c) No acceptance by Landlord of any rent or any other sum of money
from any assignee, sublessee or other category of transferee shall be deemed to
constitute Landlord's consent to any assignment, sublease, or transfer.
Permitted subtenants or assignees shall become liable directly to Landlord for
all obligations of Tenant hereunder, without, however, relieving
28
Tenant of any of its liability hereunder. No such assignment, subletting,
occupancy or collection shall be deemed the acceptance of the assignee, tenant
or occupant, as Tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. Any assignment or sublease
consented to by Landlord shall not relieve Tenant (or its assignee) from
obtaining Landlord's consent to any subsequent assignment or sublease.
31. Termination or Expiration.
(a) No termination of this Lease prior to the normal ending thereof,
by lapse of time or otherwise, shall affect Landlord's right to collect rent for
the period prior to termination thereof.
(b) At the expiration or earlier termination of the Term, Tenant shall
surrender the Demised Premises and all improvements, alterations and additions
thereto, and keys therefor to Landlord, clean and neat, and in the same
condition as at the Lease Commencement Date, ordinary wear and tear only
excepted.
(c) If Tenant remains in possession of the Demised Premises after
expiration of the Term, with or without Landlord's acquiescence and without any
express agreement of the par-ties, Tenant shall be a tenant-at-sufferance at the
greater of (i) one hundred fifty percent (150%) of the Base Rent in effect at
the end of the Term or (ii) one hundred fifty percent (150%) of the then current
fair market rental value of the Demised Premises. Tenant shall also continue to
pay all other Additional Rent due hereunder, and there shall be no renewal of
this Lease by operation of law. In addition to the foregoing, Tenant shall be
liable for all damages, direct and consequential, incurred by Landlord as a
result of such holdover. No receipt of money by Landlord from Tenant after the
termination of this Lease or Tenant's right of possession of the Demised
Premises shall reinstate, continue or extend the Term or Tenant's right of
possession.
32. Late Payments. In the event any installment of rent, inclusive of
Base Rent, or Additional Rent or other sums due hereunder, if any, is not paid
(i) within five (5) days after Tenant's receipt of written notice of such
failure to pay on the first two occasions during any twelve (12) month period,
or (ii) as and when due with respect to any subsequent late payments in any
twelve (12) month period, Tenant shall pay an administrative fee equal to five
percent (5%) of such past due amount, plus interest on the amount past due at a
rate equal to the lesser of (X) fifteen percent (15%) per annum or (Y) the
maximum interest rate allowed under applicable law (the "Interest Rate") to
defray the additional expenses incurred by Landlord in processing such payment.
33. Rules and Regulations. Tenant agrees to abide by the Rules and
Regulations set forth on Exhibit "C" attached hereto, as well as other rules and
regulations reasonably promulgated by the Landlord from time to time, and the
declaration of protective covenants for the Project, attached hereto as Exhibit
"D", as it may be amended from to time, including to add the Property thereto
(herein, the "Protective Covenants"), which Protective Covenants shall run with
the Land and be binding on Tenant, its successors and assigns.
29
34. Dispute Resolution Procedure.
(a) In the event that a dispute arises between Landlord and Tenant
under the Lease, and the Lease specifically provides that the dispute resolution
procedure outlined in this Section 34 (herein referred to as the "Dispute
Resolution Procedure") shall be utilized, the par-ties shall proceed as follows:
(i) The party electing to proceed under the procedures outlined herein
(the "Electing Party") shall give written notice of such election to the other
party (the "Other Party"), and shall designate in writing the Electing Party's
selection of an individual with the qualifications outlined in the section of
the Lease giving rise to this remedy (the "Official") who shall act on the
Electing Party's behalf in determining the disputed fact.
(ii) Within twenty (20) days after the Other Party's receipt of the
Electing Party's selection of an Official, the Other Party, by written notice to
the Electing Party, shall designate an Official who shall act on the Other
Party's behalf in determining the disputed fact.
(iii) Within twenty (20) days of the selection of the Other Party's
Official, the two (2) Officials shall render a joint written determination of
the disputed fact. If the two (2) Officials are unable to agree upon a joint
written determination within such twenty (20) day period, each Official shall
render his or her own written determination and the two Officials shall select a
third Official within such twenty (20) day period. In the event the two
Officials are unable to select a third Official within such twenty (20) day
period, then either party may apply to a court of original jurisdiction in
Collin County, Texas for appointment by such court of such third Official.
(iv) Within twenty (20) days after the appointment of the third
Official, the third Official shall select one of the determinations of the two
(2) Officials originally selected, without modification or qualification.
(v) If either Landlord or Tenant fails or refuses to select an
Official, the Official selected shall alone determine the disputed fact.
Landlord and Tenant agree that they shall be bound by the determination of
disputed fact pursuant to this subsection. Landlord shall bear the fee and
expenses of its Official, Tenant shall bear the fee and expenses of its
Official, and Landlord and Tenant shall share equally the fee and expense of the
third Official, if any.
35. Miscellaneous.
(a) The parties hereto hereby covenant and agree that any present or
future law to the contrary notwithstanding, this Lease shall not terminate,
except as herein specifically provided, and Landlord shall receive the Base Rent
and Additional Rent and all other sums payable by Tenant hereinabove provided as
net income from the Demised Premises, without any abatement, reduction, set-off,
counterclaim, defense or deduction and not diminished by (i) any imposition of
any public authority of any nature whatsoever during the Term, notwithstanding,
any changes in the method of taxation or raising, levying or assessing any
imposition, or any
30
changes in the name of any imposition, or (ii) any expenses or charges required
to be paid by Tenant to maintain, restore or replace the Demised Premises or to
protect Landlord's ownership of the Demised Premises, other than payments under
any Mortgage now existing or hereafter created by Landlord. The obligations of
Tenant hereunder shall not be affected by reason of any damage to or destruction
of the Demised Premises except as expressly otherwise provided to the contrary
in this Lease. Tenant shall remain obligated under this Lease in accordance with
its terms and shall not take any action to terminate, rescind or void this
Lease, solely as a result of any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Landlord or any assignee
of Landlord.
(b) If any clause or provision of this Lease is determined to be
illegal, invalid or unenforceable under present or future laws effective during
the Term, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and that in lieu of
such illegal, invalid or unenforceable clause or provision there shall be
substituted a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid and
enforceable. If such invalidity is essential to the rights of either or both
parties, then the affected party shall have the right to terminate this Lease on
written notice to the other.
(c) All rights, powers, and privileges conferred hereunder upon the
parties hereto shall be cumulative, but not restrictive to those given by law.
(d) TIME IS OF THE ESSENCE OF THIS AGREEMENT.
(e) No failure of Landlord or Tenant to exercise any power given
Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or
Tenant with its obligations hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Landlord's or
Tenant's rights to demand exact compliance with the terms hereof.
(f) This Lease contains the entire agreement of the parties hereto as
to the subject matter of this Lease and no prior representations, inducements,
promises, letters of intent or agreements, oral or otherwise, between the
parties not embodied herein shall be of any force and effect. Any future
amendment to this Lease must be in writing and signed by the parties hereto.
The masculine (or neuter) pronoun, singular number shall include the masculine,
feminine and neuter gender and the singular and plural number.
(g) This contract shall create the relationship of landlord and tenant
between Landlord and Tenant; no estate shall pass out of Landlord; Tenant has a
usufruct, not subject to levy and sale, and not assignable by Tenant except as
expressly set forth herein.
(h) Landlord and Tenant agree to execute, upon request of the other, a
short form memorandum of this Lease in recordable form and the requesting party
shall pay the costs and charges for the recording of such short form memorandum
of lease. Under no circumstances shall Tenant have the right to record this
Lease (other than a short form memorandum of Lease, as approved by Landlord),
and should Tenant do so, Tenant shall be in default hereunder.
31
(i) The captions of this Lease are for convenience only and are not a
part of this Lease, and do not in any way define, limit, describe or amplify the
terms or provisions of this Lease or the scope or intent thereof.
(j) This Lease may be executed in multiple counterparts, each of which
shall constitute an original, but all of which taken together shall constitute
one and the same agreement.
(k) This Lease shall be interpreted under the laws of the State in
which the Demised Premises is located.
(l) The parties acknowledge that this Lease is the result of
negotiations between the parties, and in construing any ambiguity hereunder no
presumption shall be made in favor of either party. No inference shall be made
from any item which has been stricken from this Lease other than the deletion of
such item.
(m) All of the covenants, agreements, conditions and undertakings
contained in this Lease shall extend and inure to and be binding upon the
parties hereto and their permitted successors and assigns.
(n) None of the covenants, terms or conditions of this Lease to be
kept and performed by either party shall in any manner be altered, waived,
modified, changed or abandoned, except by a written instrument, duly signed and
delivered by both parties.
(o) To the extent permitted by law, each of Tenant and Landlord hereby
expressly waives any right to trial by jury of any action, cause of action,
claim, demand, or proceeding arising under or with respect to this Lease, or in
any way connected with, related to, or incidental to the dealings of Landlord
and Tenant with respect to this Lease, in each case whether now existing or
hereafter arising, and whether sounding in contract, tort, or otherwise. To the
extent permitted by law, each of Tenant and Landlord hereby agrees that any such
action, cause of action, claim, demand or proceeding shall be decided by a court
trial without a jury and that Tenant or Landlord may file a copy of this Lease
with any court or other tribunal as written evidence of the consent of each of
Tenant and Landlord to the waiver of its right to trial by jury.
36. Special Stipulations. The Special Stipulations, if any, attached
hereto as Exhibit E, are incorporated herein and made a part hereof, and to the
extent of any conflict between the foregoing provisions and the Special
Stipulations, the Special Stipulations shall govern and control.
37. Lease Date. For purposes of this Lease, the terms "Lease Date", "date
of this Lease" or similar terms used herein shall mean the later date upon which
this Lease is signed by Landlord and Tenant.
38. Authority. If Tenant is not a natural person, Tenant shall cause its
corporate secretary or general partner, as applicable, to execute the
certificate attached hereto as Exhibit F.
32
Tenant is authorized by all required corporate or partnership action to enter
into this Lease and the individual(s) signing this Lease on behalf of Tenant are
each authorized to bind Tenant to its terms.
39. No Offer Until Executed. The submission of this Lease to Tenant for
examination or consideration does not constitute an offer to lease the Demised
Premises and this Lease shall become effective, if at all, only upon the
execution and delivery thereof by Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands under
seals, the day and year first above written.
LANDLORD:
Date: September 14, 2000 INDUSTRIAL DEVELOPMENTS INTERNATION (TEXAS), L.P.,
--------------------
a Georgia limited partnership
By: ID International (Texas), Inc., a Georgia
corporation, its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Title: Secretary
-----------
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------
Title: Assistant Secretary
---------------------
[CORPORATE SEAL]
TENANT:
Date: September 5, 2000 ACT MANUFACTURING, INC., a Delaware corporation
-------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
--------------
Title: President & CEO
-----------------
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: VP Finance
------------
[CORPORATE SEAL]
34
ATTESTATION
Landlord:
--------
STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
BEFORE ME, a Notary Public in and for said County, personally appeared ▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇, known to me to be the person(s) who, as Secretary and
Assistant Secretary, respectively, of ID International (Texas), Inc., a Georgia
corporation, the corporation which executed the foregoing instrument in its
capacity as general partner of Landlord, signed the same, and acknowledged to me
that they did so sign said instrument in the name and upon behalf of said
corporation, in its capacity as general partner of Landlord, that the same is
their free act and deed and they were duly authorized thereunto by the
corporation and the partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this 14th day of September, 2000.
/s/ ▇▇▇▇▇▇ ▇. Monocel
---------------------
Notary Public
My Commission Expires:
Tenant:
------
STATE OF MASSACHUSETTS
COUNTY OF MIDDLESEX
BEFORE ME, a Notary Public in and for said County, personally appeared ▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me to be the person(s) who, as President
and CEO and VP of Finance, respectively, of ACT Manufacturing, Inc., the
corporation which executed the foregoing instrument in its capacity as Tenant,
signed the same, and acknowledged to me that they did so sign said instrument in
the name and upon behalf of said corporation as officers of said corporation,
that the same is their free act and deed as such officers, respectively, and
they were duly authorized thereunto by its board of directors; and that the seal
affixed to said instrument is the corporate seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this 5th day of September, 2000.
/s/ Page ▇. ▇▇▇▇▇
-----------------
Notary Public
My Commission Expires:
35
EXHIBIT A
---------
PROPERTY DESCRIPTION
STATE OF TEXAS:
COUNTY OF COLLIN:
BEING a tract of land situated in the ▇.▇. ▇▇▇▇▇▇▇▇▇▇ Survey, Abstract No. 633
and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Survey, Abstract ▇▇. ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, being a portion of that same tract of land (Tract No. 2) as described in
deed to ASG Plano Industrial, Ltd., recorded in County Clerk's File No. 95-
0060322 of the Real Property Records of Collin County, Texas and being more
particularly described as follows:
COMMENCING at a 1" iron rod found at the intersection of the northerly line of
Plano Parkway (Variable width R.O.W. per Cabinet F, Slide 18 and Cabinet F,
Slide 119 of the Plat Records of Collin County, Texas (PRCCT)), with the west
line of Los ▇▇▇▇ Boulevard (110' R.O.W. per Cabinet F, Slide 18, PRCCT), same
being the southeast corner of said ASG Plano Industrial, Ltd. Tract No. 2, from
which a 5/8" iron rod found at the intersection of the northerly line of said
Plano Parkway, with the east line of said Los ▇▇▇▇ Boulevard bears S 77
(degrees) 42'00" E, 111.62 feet;
THENCE along the northerly line of said Plano Parkway and the south line of said
ASG Plano Industrial, Ltd. Tract No. 2, the following:
N 77 (degrees) 42'00" W, a distance of 596.70 feet (Deed & Plat 596.80 feet)
to a 1/2" iron rod with a plastic cap set at the point of a curvature of a
circular curve to the left, having a radius of 905.00 feet;
Northwesterly, along said circular curve to the left, through a central
angle of 12 (degrees) 30'30", an arc distance of 197.57 feet and having a
chord that bears N 83 (degrees) 57'1 5" W, 197.18 feet to a 1/2" iron rod
with a plastic cap set at the point of tangency;
S 89 (degrees) 47'30" W, a distance of 381.57 feet to a 1/2" iron rod with a
plastic cap set at the POINT OF BEGINNING of the herein described tract of
land;
S 89 (degrees) 47'30" W, a distance of 396.00 feet to a cut "x" in concrete
set previously at an angle point in the north line of said Plano Parkway
(Per Cabinet K, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇);
THENCE N 00 (degrees) 12'30" W, departing the south line of said ASG Plano
Industrial, Ltd. Tract No. 2, along an offset in the north line of said Plano
Parkway, at a distance of 5.00 feet passing a cut "x" in concrete set previously
at an angle point in the north line of said Plano Parkway and the southeast
corner of ▇▇▇ ▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ of ▇▇▇▇ ▇ & ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
an addition to the City of Plano, Collin County, Texas as recorded in Cabinet L,
Slide 645, PRCCT, departing the north line of said Plano Parkway, along the east
line of said Lot 3, at a distance of 400.00 feet passing a 1/2 iron rod set
previously at the northeast corner of said Lot 3 and the easterly most southeast
corner of Replat ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, an addition to the City
of Plano, Collin County, Texas as recorded in Cabinet L, Slide 937, PRCCT,
continuing
A-1
along the east line of said Lot 2R, a total distance of 846.07 feet to a City of
Plano monument set previously in the north line of said ASG Plano Industrial,
Ltd. Tract No.-2 and the southerly line of a 100' Right-of-Way described in deed
to Dallas Area Rapid Transit Property Acquisition Corporation (D.A.R.T.) as
recorded in Volume 3424, Page 126 of the Deed Records, Collin County, Texas, at
the northeast corner of said Lot 2R, from which a 1" iron rod found at the
intersection of the southerly line of said D.A.R.T. tract, with the east line of
Shiloh Road (140 R.O.W. per Cabinet F, Slide 18, PRCCT) bears N 79 (degrees)
32'43" W, 1474.68 feet;
THENCE S 79 (degrees) 32'43" E, along the southerly line of said D.A.R.T. tract
and the north line of said ASG Plano Industrial, Ltd. Tract No. 2, a distance
of 402.96 feet to a 1/2" iron rod with a plastic cap set at the northeast
corner of the herein described tract of -land, from which a I" iron rod found
at the intersection of the south line of said D.A.R.T. tract, with the east
line of said Los ▇▇▇▇ Boulevard bears S 79 (degrees) 32'43" E, 1323.39 feet;
THENCE S 00 (degrees) 12'30" E, departing the south line of said D.A.R.T.
tract, traversing said ASG Plano Industrial, Ltd. Tract No. 2, parallel to and
396.00 feet east of the east line of said ▇▇▇ ▇▇, ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇, ▇▇▇▇▇ 1, a
distance of 771.51 feet to the POINT OF BEGINNING and containing 320,281 square
feet or 7.353 acres of land.
▇-▇
▇▇▇▇▇▇▇ "▇-▇"
[Site Plan]
Exhibit "A-2"
[Floor Plan]
Exhibit "A-3"
[Elevation Plan]
EXHIBIT B
Permitted Encumbrances
Easement granted by The Southwestern Town Lot Corporation to City of Plano,
dated March 20, 1978, filed for record on May 3, 1978 and recorded in Volume
1107, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ as shown on survey dated
July 20, 2000, prepared by ▇▇▇▇▇▇▇ And ▇▇▇▇▇▇▇▇, Inc. (Affects Tracts 1 and 2)
Terms, provisions, easements and conditions contained in Reciprocal Driveway
Easement executed by and between Industrial Development International (Texas)
L.P. and ASG Plano Industrial, Ltd., a Texas limited partnership, dated June 2,
1997, filed for record on June 4, 1997 and recorded in Volume 3925, Page ▇▇▇,-
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. (Affects Tract 1)
Easement granted by ASG Plano Industrial, Ltd., a Texas limited partnership to
City of Plano, dated May 30, 1997, filed for record on June 4, 1997 and
recorded in Volume 3925, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. (Affects
Tract 1)
Easement granted by ASG Plano Industrial, Ltd., a Texas limited partnership to
City of Plano, dated May 30, 1997, filed for record on June 4, 1997 and
recorded in Volume 3925, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. (Affects
Tract 1)
Easement granted by ASG Plano Industrial, Ltd., a Texas limited partnership to
City of Plano, dated May 30, 1997, filed for record on June 4, 1997 and
recorded in Volume 3925, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. (Affects
Tract 1)
Terms, provisions, easements and conditions contained in Easement Agreement
executed by and between Industrial Developments International L.P. and Cabot
industrial Properties, L.P., dated December 9, 1999, filed for record on
December 9, 1999 and recorded in Volume 4559, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇. (Affects Tract 1)
All of the oil, gas and other minerals and all other elements not considered a
part of the surface estate are excepted herefrom, not insured herein nor
guaranteed hereunder, all having been reserved in instrument recorded in Volume
1322, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. (Affects Tract 1 and 2)
B-1
EXHIBIT C
---------
RULES AND REGULATIONS
These Rules and Regulations have been adopted by Landlord for the mutual benefit
and protection of all the tenants of Buildings in the Project in order to insure
the safety, care and cleanliness of the Project and the preservation of order
therein.
1. The sidewalks, entrances, passages, corridors or halls shall not be
obstructed or used for any purpose other than ingress and egress. Except to
comply with Tenant's maintenance and repair obligations set forth in the Lease,
no tenant and no employees of any tenant shall go upon the roof of any Building
without the consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls
of any Building.
3. The washroom partitions, mirrors, washbasins and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags or other substances, including
Hazardous Substances shall be thrown therein.
4. No tenant shall cause or permit any objectionable or offensive odors to
be emitted from any Building, other than odors which are customary in connection
with the Permitted Use, and then only to the extent the same are in compliance
with all applicable laws.
5. No Building, or any portion thereof, shall be used for lodging or
sleeping or for any immoral or illegal purposes.
6. No tenant of any Building shall make, or permit to be made any unseemly
or disturbing noises, sounds or vibrations or disturb or interfere with tenants
of this or neighboring buildings or premises or those having business with them.
7. Each tenant must, upon the termination of this tenancy, restore to the
Landlord all keys of stores, offices, and rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to the Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change.
8. If any tenant shall employ one or more persons to do janitorial or
other similar work in its demised premises, that tenant shall, while such
persons are outside the Demised Premises, follow such directions as the manager
of the Building may prescribe with respect to the control of such persons, and
such tenant shall be responsible for all acts of such persons.
9. Canvassing, soliciting and peddling in the Project are prohibited and
each tenant shall cooperate to prevent such activity.
C-1
10. Landlord will direct electricians as to where and how telephone or
telegraph wires are to be introduced. Except for alterations which are
otherwise permitted under the Lease without Landlord's consent, no boring or
cutting for wires or stringing of wires will be allowed without written consent
of Landlord. The location of telephones, call boxes and other office equipment
affixed to any portion of any building within the Project shall be subject to
the approval of Landlord.
11. Parking spaces associated with any Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express ,written permission of Landlord. Trucks and tractor
trailers may only be parked at designated areas of the Building. Trucks and
tractor trailers shall not block access to the Building.
12. No tenant shall use any area of the Project for storage purposes other
than the interior of its Demised Premises.
C-2
EXHIBIT D
PROTECTIVE COVENANTS
That certain Declaration of Protective Covenants, Agreements, Easements,
Charges and Liens for Plano Business Park dated May 24, 1999 and recorded in
Volume 4426, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, as amended
D-1
EXHIBIT E
SPECIAL STIPULATIONS
The Special Stipulations set forth herein are hereby incorporated into the
body of the lease to which these Special Stipulations are attached (the
"Lease"), and to the extent of any conflict between these Special Stipulations
and the preceding language, these Special Stipulations shall govern and control.
1. Construction of Demised Premises.
(a) Notwithstanding the provisions of Section 18 of this Lease,
Landlord shall be responsible for the cost of the construction of the
interior improvements within the Demised Premises only up to an amount
equal to $2,000,000.00 (the "Tenant Allowance"). Upon substantial
completion of said interior improvements, Landlord shall deliver to Tenant
a ▇▇▇▇ for all amounts in excess of the Tenant Allowance. Tenant agrees to
pay such ▇▇▇▇ in fall. to Landlord within thirty (30) calendar days
following receipt of such ▇▇▇▇.
(b) For purposes of this Special Stipulation, the cost of the
construction of said interior improvements shall be deemed to include, but
not be limited to, the cost of the Plans and Specifications, permits and
all tenant buildout, including, without limitation, demising walls,
utilities, and the heating, ventilating and air conditioning system;
provided however that Landlord agrees that the first $ 1 0,000.00 spent on
architectural and construction plans and drawings shall be at Landlord's
sole cost and expense and shall not be included within the cost of
construction of the interior improvements for purposes of the Tenant
Allowance.
(c) Nothing contained herein shall relieve Landlord of its obligation
to construct the shell Building, in accordance with agreed upon Plans and
Specifications, at Landlord's sole cost and expense and not as a component
of the Tenant Allowance.
(d) Within thirty (30) calendar days after Substantial Completion of
the Building, either party may have the Building measured by an architect
using accepted BOMA Standards, based on a "drip-line" measurement from the
outside of the exterior walls of the Building. The architect is subject to
the other party's prior approval, which approval will not be unreasonably
withheld or delayed. The square footage so certified by such architect
shall conclusively determine the Building Square Footage for all purposes
under this Lease. If the Building Square Footage is less than the amount
set forth in Section I (b) of the Lease by more than 300 square feet, the
Annual Base Rent and Monthly Base Rent Installments shall be adjusted
downwards on the basis of the square footage of the Building so certified
by such architect, using the annual rental rates per square foot of $8.36
per square foot during Lease Years I through 5 and $9.62 per square foot
during Lease Years 6 through 10. If neither party elects to have the
Demised Premises and Building measured in accordance with this paragraph,
then the square footage of the Building shall be deemed to be as set forth
in Section I (b) of the Lease.
E-1
2. Option to Extend Term.
(a) Landlord hereby grants to Tenant two (2) options to extend the
Term for a period of five (5) years, each such option to be exercised by
Tenant giving written notice of its exercise to Landlord in the manner
provided in this Lease at least one hundred eighty (I 80) days prior to
(but not more than two hundred ten (2 1 0) days prior to) the expiration of
the Term, as it may have been previously extended. No extension option may
be exercised by Tenant if an Event of Default has occurred and is then
continuing or any facts or circumstances then exist which, with the giving
of notice or the passage of time, or both, would constitute an Event of
Default either at the time of exercise of the option or at the time the
applicable Term would otherwise have expired if the applicable option had
not been exercised.
(b) If Tenant exercises its options to extend the Term, Landlord
shall, within thirty (30) days after the receipt of Tenants notice of
exercise, notify Tenant in writing of Landlord's reasonable determination
of the Base Rent for the Demised Premises, which amount shall be based on
(i) ninety-five percent (95%) of the market rate for such space (with
respect to the first five (5) year option), and (ii) one hundred percent
(100%) of the market rate for such space (with respect to the second five
(5) year option). Tenant shall have thirty (30) days from its receipt of
Landlord's notice to notify Landlord in writing that Tenant does not agree
with Landlord's determination of the Base Rent and that Tenant elects to
determine the Prevailing Market Rate (as defined and calculated below). If
Tenant does not notify Landlord of such election within thirty (30) days of
its receipt of Landlord's notice, Base Rent for the Demised Premises for
the applicable extended term shall be the Base Rent set forth in Landlord's
notice to Tenant. The phrase "Prevailing Market Rate" shall mean ninety-
five percent (95%) of the then prevailing market rate for base minimum
rental calculated on a per square foot basis for leases covering buildings
comparable to the Building (as adjusted for any variances between such
buildings and t ` he Building) located in the area of Collin County, Texas
(hereinafter referred to as the "Market Area"). The Prevailing Market Rate
shall be determined by an appraisal procedure as follows:
In the event that Tenant notifies Landlord that Tenant disagrees with
Landlord's determination of the market rate and that Tenant elects to
determine the Prevailing Market Rate, then Tenant shall specify, in
such notice to Landlord, Tenant's selection of a real estate appraiser
who shall act on Tenant's behalf in determining the Prevailing Market
Rate. Within twenty (20) days after Landlord's receipt of Tenant's
selection of a real estate appraiser, Landlord, by written notice to
Tenant, shall designate a real estate appraiser, who shall act on
Landlord's behalf in the determination of the Prevailing Market Rate.
Within twenty (20) days of the selection of Landlord's appraiser, the
two (2) appraisers shall render a joint written determination of the
Prevailing Market Rate, which determination shall take into
consideration any differences between the Building and those buildings
comparable to the Building located in the Market Area, including
without limitation age, location, setting and type of building. If
the two (2) appraisers are unable to agree upon a joint written
determination within said twenty (20) day period, the two appraisers
shall select a third appraiser within such twenty (20) day
E-2
period. Within twenty (20) days after the appointment of the third
appraiser, the third appraiser shall render a written determination of
the Prevailing Market Rate by selecting, without change, the
determination of one (1) of the original appraisers as to the
Prevailing Market Rate and such determination shall be final,
conclusive and binding. All appraisers selected in accordance with
this subparagraph shall have at least ten (10) years prior experience
in the commercial leasing market of the Market Area and shall be
members of the American Institute of Real Estate Appraisers or similar
professional organization. If either Landlord or Tenant fails or
refuses to select an appraiser, the other appraiser shall alone
determine the Prevailing Market Rate. Landlord and Tenant agree that
they shall be bound by the determination of Prevailing Market Rate
pursuant to this paragraph. Landlord shall bear the fee and expenses
of its appraiser; Tenant shall bear the fee and expenses of its
appraiser; and Landlord and Tenant shall share equally the fee and
expenses of the third appraiser, if any.
(c) Except for the Base Rent, which shall be determined as set forth
in subparagraph (b) above, leasing of the Demised Premises by Tenant for
the applicable extended term shall be subject to all of the same terms and
conditions set forth in this Lease, including Tenant's obligation to pay
Additional Rent as provided in this Lease; provided, however, that any
improvement allowances, rent abatements or other concessions applicable to
the Demised Premises during the initial Term shall not be applicable during
any such extended term, nor shall Tenant have any additional extension
options unless expressly provided for in this Lease. Landlord and Tenant
shall enter into an amendment to this Lease to evidence Tenant's exercise
of its renewal option.
3. Lease Contingency. This Lease, and all obligations of Landlord and
Tenant hereunder, are made expressly contingent on Landlord acquiring fee simple
title to the Land on or before the date which is thirteen (13) business days
following the date Landlord (or its legal counsel) receives original
counterparts of the Lease as executed by Tenant. Landlord and Tenant
acknowledge that Landlord is currently under contract to purchase the Land from
ASG Plano Industrial, Ltd., the current record title holder thereof ("Seller").
Landlord represents and warrants to Tenant that Landlord's obligations to
purchase the Land from Seller are not subject to any specific contingency
related to Landlord's ability to obtain financing for the acquisition of the
Land. Landlord agrees that simultaneously with its execution of the Lease,
Landlord will deliver to Seller notice of Landlord's intent and desire to close
on the acquisition of the Land as soon as possible, in the time prescribed by
the terms of the contract between Landlord and Seller. In the event that
Landlord, for whatever reason, does not acquire fee simple title to the Land on
or before the date set forth above, then, (i) Landlord will promptly notify
Tenant thereof and (ii) at either Landlord's or Tenant's option, this Lease will
terminate and be of no further force or effect except for any obligations which,
by the terms hereof, expressly survive any such termination.
4. Environmental Matters. If and only if Tenant complies with all of the
following conditions and with Section 17 of this Lease, Tenant may use and store
the substances in the Demised Premises of the type and in the quantities
described on Exhibit E-1 attached hereto:
E-3
(i) Tenant uses and stores all such substances in accordance with all applicable
Environmental Laws; (ii) Tenant obtains all necessary permits and uses and
stores such substances in compliance with those permits; (iii) Tenant uses and
stores all such substances in accordance with the Materials Safety Data Sheets
("MSDS Sheets") which Tenant has provided to Landlord, (iv) Tenant does not use
or store any of such substances (or any other substances) in a manner that would
cause the Demised Premises to become subject to regulation as a hazardous waste
treatment, storage or disposal facility under RCRA or the regulations
promulgated thereunder; and (v) Tenant shall not use or store such substances
(or any other substances) in a manner as to cause Tenant to become regulated as
a generator under RCRA other than as a Conditionally Exempt Small Quantity
Generator as defined by RCRA. "Conditionally Exempt Small Quantity Generator"
shall mean the current RCRA definition of a generator of not more than 100 kg.
of hazardous wastes per month. For purposes of this weight limitation item only,
"hazardous wastes" means only those materials defined as "hazardous wastes" upon
the effective date of this Lease.
E-4
EXHIBIT E-1
SMT CHEMICALS
The following items are the chemicals that will be predominately used in the SMT
process. The brief explanation with each chemical is based on equipment and
processes that are planned to be in use.
- Solder ( Raw Bar Stock) SEE MSDS 822 rev 08/03/93
------
The raw bar solder is to be used in the wave solder application- Small
amounts of solder dross will accumulate on top of the wave. This dross
will be removed about twice per shift, Precautions will be put in place to
ensure dross is handled properly. The dross is fully recyclable via the
solder vendor selected.
(No hazards associated when following proper procedures)
- Solder Paste SEE MSDS 637 rev 04/29/94
------------
The solder paste will be the most widely used chemical in the SMT area.
It's a Formulation of tiny solder spheres and flux held together with a
binding agent. Most of the solder paste will be reflowed leaving behind
flux compounds. These flux residues will be washed off by the aqueous
cleaning system. The aqueous cleaning system is closed looped, ( the water
used will be recycled) and not sent to drain. The flux compounds will be
captured in a series of carbon and resin beds. When the beds become
saturated they will be sent to an approved vendor for regeneration.
The solder paste that is not reflowed (miss printed boards and solder
stencils) will be washed off with the stencil cleaner. The stencil cleaner
in mind uses D.I. water and a mild detergent in conjunction with
ultrasonics. The stencil cleaner effectively cleans until the point where
the solution becomes saturated with pastes. At the point of saturation the
waste water is pumped to an evaporator, which is part of the entire stencil
cleaner system. The water is evaporated off and the remaining waste can be
handled as hazardous waste or, may possibly be recycled.
(No hazards associated when following proper procedures)
- Flux SEE MSDS 354 rev 12/27/90
----
Most of the fluxes used will be a water soluble type that will be cleaned
off in the closed loop water cleaner. The highest percentage of flux will
be sprayed on boards in the wave solder Machine. The wave is equipped with
a fire suppression system (CO2 charged) in the extreme case a fire should
occur.
(No hazards associated when following proper procedures)
E-1
- Nitrogen SEE MSDS AIRCO NITROGEN, GAS
Some of the equipment used in the SMT area will utilize nitrogen as an
inerting gas. A pad outside of the plant will -need to be poured to support
a tank of approximately 11000 gallons. The actual tank Size will more than
likely be in the range of 3000 - 6000 gallons, but the pad size should be
sized for a larger tank for, upgrading to a larger tank is more cost
effective than pouring a new pad. The tank will be installed by a licensed
team supplied by the nitrogen vendor we choose. The nitrogen will also need
to be plumbed from the tank to the equipment. Safety requirements will need
to be adhered to ensure that no liquid nitrogen reaches the equipment. The
levels of nitrogen are such that it will not asphyxiate personnel.
(No hazards associated when following proper procedures)
- SMT Adhesive SEE MSDS 874 REV 01/18/95
------------
An adhesive for attaching parts to the bottom side of boards will be used.
The adhesive has not been selected at this time but, there are no known
safety issues with many of the adhesives used for this application.
(No hazards associated when following proper procedures)
E-2
EXHIBIT F
CERTIFICATE OF AUTHORITY
CORPORATION
The undersigned, Secretary of ACT Manufacturing, Inc., a Delaware
corporation ("Tenant"), hereby certifies as follows to Industrial Developments
International (Texas), L.P., a Georgia limited partnership ("Landlord"), in
connection with Tenant's proposed lease of Building E, at Plano Business Park,
Collin County, Texas (the "Premises"):
1. Tenant is duly organized, validly existing and in good standing under
the laws of the State of Delaware, and duly qualified to do business in the
State of Texas.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of Tenant, a lease
of the Premises and that the signature opposite the name of each individual is
an authentic signature:
▇▇▇▇ ▇. ▇▇▇▇ CEO/President /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ --------------------------------------- ---------------------------------------
(name) (title) (signature)
------------------------------------ --------------------------------------- ---------------------------------------
(name) (title) (signature)
------------------------------------ --------------------------------------- ---------------------------------------
(name) (title) (signature)
3. That the foregoing authority was conferred upon the person(s) named
above by the Board of Directors of Tenant, at a duly convened meeting held
September 5, 2000.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Secretary
[CORPORATE SEAL]
F-1
EXHIBIT G
---------
INDUSTRIAL DEVELOPMENTS INTERNATIONAL
SOUTHWEST REGION
SIGNAGE CRITERIA
----------------
All signs, including temporary signs, must be approved in writing by the
Landlord prior to installation. The location, size, color and construction of
signs will be in keeping with the character of IDI' Southwest region. Unless
otherwise approved in writing by the Landlord, only one (1) sign shall be
permitted for each occupant. Except as set forth in subsection c below, only
signs identifying the occupant shall be permitted. All signs must be either
attached to the building or ground mounted and adhere to the following
guidelines:
a. Building Mounted Signs:
(1) Shall be installed by Landlord, at the expense of Tenant, so as to be
parallel to and contiguous with the building wall.
(2) Shall not project more than ten (10) inches from the building wall.
(3) Shall have a maximum mounting height equal to three-fourths (3/4) the
height of the building surface on which it is placed or as designated by
Landlord.
(4) Shall have all capital letters constructed as separate pieces of individual
construction.
(5) The maximum height of each letter shall be 24" on a single line sign and
18" maximum on a double line sign.
(6) Shah be a design and material compatible with the building design and
materials. The lettering color and material at your project, shall be of a
matte finished black plex. face, or color approved by Landlord.
(7) A logo sign and/or a sign identifying products or services shall be allowed
on the door or on the storefront glass panel adjacent to the door. Such
logo and lettering shall be of vinyl construction and not cover more than
25% of the door or adjacent glass panel. These signs must be approved in
writing by Landlord prior to installation,
b. Ground Mounted Signs:
(1) Shall not be closer than ten (10) feet from any property line.
(2) Shall not be closer than three (3) feet from a driveway or parking area.
(3) Shall not have a gross surface area of more than forty (40) square feet.
G-1
