EXHIBIT 10.28
LEASE
FROM
GOAT HOLLOW REALTY TRUST
TO
BENCHMARK ELECTRONICS CORPORATION
360 FORBES BLVD., MANSFIELD, MA
SECTION TABLE OF CONTENTS
1.1 REFERENCE DATA 1
2. PREMISES 2
2.1 Premises 2
2.2 Landlord's Reservations 3
3. COMMENCEMENT. TERM OF LEASE
AND TERMINATION 3
3.1 Condition And Delivery Of Premises 3
3.2 Termination Date 3
3.3 Option To Extend 3
4. IMPROVEMENTS 4
4.1 Landlord's Improvements 4
4.2 Tenant's Improvements 4
5. USE OF PREMISES 4
5.1 Permitted Use 4
5.2 Prohibited Uses 4
5.3 Licenses And Permits 5
5.4 Signs 5
6. RENT 5
6.1 Annual Fixed Rent 5
6.2 Additional Rent, Taxes and Other 6
Expenses
6.3 Late Charges 7
6.4 Security Deposit 7
7. SERVICES 8
7.1 Utility Expenses 8
7.2 Operating Cost 8
7.3 Repairs For Account Of Tenant 9
7.4 Curtailed Services 9
7.5 Payment For Tenant's Work 9
7.6 Cleaning Of Building 9
7.7 Landlord's Maintenance 9
8. TENANT'S ADDITIONAL COVENANTS 10
8.1 Compliance With Law 10
8.2 Compliance With Environmental Laws 10
8.3 Tenant's Indemnity 10
8.4 Tenant's Property Is Tenant's Risk 10
8.5 Overloading, Nuisance; Volatile Or
Dangerous Substances 10
8.6 Maintenance Of Premises 11
8.7 YieldUp 11
8.8 Alterations And Improvements By Tenant
After Term Commencement 11
8.9 Floor Load; Heavy Machinery 11
8.10 Assignment And Subletting 11
8.11 Landlord's Access To Premises 12
9. INSURANCE 12
9.1 Public Liability Insurance 12
9.2 Casualty Insurance 13
9.3 Workmen's Compensation 13
9.4 Certificate Of Insurance 13
9.5 Landlord's Insurance 13
9.6 Waiver of Subrogation 13
9.7 Increase In Insurance Risk 14
10. DAMAGE TO PREMISES AND CONSEQUENCES 14
OF EMINENT DOMAIN
10.1 Untenantability 14
10.2 Eminent Domain 15
11. DEFAULT AND REMEDIES 15
11.1 Events of Default 15
11.2 Damages - Termination 16
11.3 Effect Of Tax And Operating Expenses
On Damages 17
11.4 Landlord's Expenses In Performing
Obligations Of Tenant 18
11.5 Landlord's Remedies Not Exclusive 18
11.6 Effect Of Waivers Of Default 18
11.7 Repeated Defaults 18
11.7 No Accord And Satisfaction 18
12. LANDLORDS FINANCING 18
12.1 Subordination 18
12.2 Estoppel Certificate 19
12.3 Assignment of Rents 19
13. HOLDING OVER 20
13.1 Holding Over 20
14. MISCELLANEOUS PROVISIONS 21
14.1 Notices 21
14.2 Quiet Enjoyment 21
14.3 Limitation Of Landlord's Liability 21
14.4 Acts of God/Force Majeure 21
14.5 Applicable Law And Construction 22
14.6 Broker 22
14.7 Financing Requirements 22
14.8 Landlord's Representations 22
14.9 Agreement Made Only When Lease Signed 22
14.10 Recording 22
14.11 Governing Law 23
EXHIBIT A - Description of Property
LEASE
1.1 REFERENCE DATA. Each reference in this Lease to the following
subjects shall be construed to incorporate the data stated in this
Section 1.
DATE: September 15, 2000
PREMISES: The land more particularly described on Exhibit A attached hereto as
Exhibit A (the "Property") with the one-story steel frame and precast concrete
building now known and numbered 360 Forbes Blvd. In Mansfield, Bristol County,
Massachusetts (the "Building") containing net rentable area of approximately
44,080 square feet (said Property and Building collectively, the ("Premises")
LANDLORD: Nancy E. Thompson, Trustee of Goat Hollow Realty Trust created under
Declaration of Trust dated August 1, 1997 recorded in the Bristol County North
District Registry of Deeds in Book 7231, Page 267.
ADDRESS OF LANDLORD: 32 Pegan Lane, P.O. Box 656, Dover, MA 02030.
TENANT: Benchmark Electronics Corporation a corporation duly organized under
the laws of State of Delaware.
ADDRESS OF TENANT: 65 River Road, C5908, Hudson, NH 03051-0908.
ORIGINAL TERM: Five (5) years.
COMMENCEMENT DATE: September 15, 2000.
TERMINATION DATE: January 14, 2006.
LEASE YEAR: Successive 12 month periods beginning on the Commencement Date.
ONE (1) OPTION TO EXTEND: January 15, 2006 to January 14, 2011
ANNUAL FIXED RENT FOR ORIGINAL TERM (TRIPLE NET): see Section 6.1
January 15, 2001 to January 14, 2002: $352,640.00
January 15, 2002 to January 14, 2003: 363,660.00
January 15, 2003 to January 14, 2004: 374,680.00
January 15, 2004 to January 14, 2005: 385,700.00
January 15, 2005 to January 14, 2006: 396,720.00
TENANT'S PERCENTAGE OF REAL ESTATE TAXES: 100%
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TENANT'S PERCENTAGE OF OPERATING EXPENSES (commencing September 15, 2000) : 100%
PERMITTED USES: Light industrial manufacturing, engineering and office use and
for no other purpose(s).
SECURITY DEPOSIT: Two (2) Month's Rent or $58,773.00
BROKER: Insignia/ESG, Inc. and The Codman Company
LIST OF EXHIBITS: Exhibit A - Description of Property
2. PREMISES.
2.1 PREMISES. The Premises include a Building containing 44,080 rentable
square feet, as more particularly set forth in Section 1.1 together
with a right to use parking spaces on the Property.
2.2 LANDLORD'S RESERVATIONS. Landlord reserves access to the Premises,
as more particularly set forth in Section 8.11 hereof.
3. COMMENCEMENT, TERM OF LEASE AND TERMINATION.
3.1 CONDITION AND DELIVERY OF PREMISES. The Premises are leased to Tenant in
their existing condition without warranty or representations, except as stated
in this Lease. Landlord shall deliver possession of the Commencement Date, as
more particularly set forth in Section 1.1 hereof.
3.2 TERMINATION DATE. To have and to hold the Premises for the term commencing
on the Commencement Date and ending on the Termination Date or such earlier date
upon which said term may expire or be terminated pursuant to this Lease or
pursuant to law (collectively, the "Termination Date").
3.3 OPTION TO EXTEND. Provided Tenant is not in default of any material terms,
covenants or conditions contained in this Lease at the time of Tenant's exercise
of its option to extend the Original Term, as hereinafter set forth, and
provided further that the Tenant is not in default of any terms, covenants or
conditions contained in this Lease at the time of the commencement of each
extended term, Tenant shall have the right at its election to extend the
Original Term of this Lease for one (1) additional period commencing January 15,
2006 and terminating January 14, 2011 (hereinafter referred to as "Option" or
"Option Period", as case may be) said Option Period shall be referred to as the
"extended term", provided further that Tenant gives to Landlord written notice
of the exercise of the election of the Option at least twelve (12) months prior
to the expiration of the Original Term. All the same terms, covenants and
conditions of this Lease contained shall apply to the Extended Term, except that
the rent
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shall be adjusted as provided in Article 6, Section 6.1.2 and that the Tenant
shall not have any further option to again extend the term of this Lease beyond
the extended term. If the Tenant shall give notice of the exercise of an
election in the manner and within the time provided herein, the Term shall be
extended upon the giving of notice without the requirements of any action or the
execution of further instruments on the part of Landlord and Tenant, except only
to the extent to confirm Annual Fixed Rent and percentage of Tenant's obligation
for real estate taxes and operating expenses and the like. The Original Term and
Extended Term shall be collectively referred to as the "Term".
4. IMPROVEMENTS.
4.1 LANDLORD'S IMPROVEMENTS. Prior to the Commencement Date, Landlord shall
ensure that the roof, structure, heating and air conditioning equipment, parking
lot and loading dock equipment are in good working order and the interior of the
Building is delivered to Tenant "broom-cleaned".
4.2 TENANT'S IMPROVEMENTS. Provided Tenant obtains all insurance coverage
required in this Lease, Tenant may, prior to the Commencement Date and tender of
actual possession of the Premises, enter upon the Premises at Tenant's own risk
at such times as it deems appropriate to make various improvements thereon,
install fixtures and other equipment, all without unreasonably interfering with
Landlord's improvements in the Building. Tenant and Landlord agree that Tenant
shall, at its expense, remove the vestiges of a kitchen that remain on the
premises and shall not be obligated to replace and restore such kitchen when the
building is surrendered. Tenant shall not make any alterations, improvements,
additions and/or renovations to the Premises (collectively "improvements")
without first obtaining, in each instance, the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or delayed, except
and excluding improvements costing in the aggregate of less than $25,000.00 may
be done without Landlord's prior approval. Except only as hereinafter set forth,
all Tenant improvements shall be at Tenant's sole cost and expense. Tenant
agrees to indemnify and save harmless the Landlord from any and all expenses,
liens, claims, damages, loss or injury to persons or property in or on the
Premises arising out of or resulting from the obligation, undertaking or making
of any improvements. Tenant further agrees at Tenant's sole cost and expense to
procure in each and every instance all necessary permits, licenses or the like
before commencing any improvements. Tenant further agrees that all such
improvements done by Tenant or Tenant's servants, employees, agents, independent
contractors or the like shall be done in a good and workmanlike manner; that
such improvements shall be in
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conformity with all laws, ordinances or regulations of all public authorities
having jurisdiction (including without limitation obtaining any required
Certificate
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of Occupancy) and all insurance inspections or rating bureaus having
jurisdiction; that the Premises and/or Building will not be endangered or
impaired; that no equipment shall be placed on the roof without Landlord's prior
written approval; that Tenant shall, at Tenant's sole cost, repair any and all
damage caused by or resulting from such improvements; and that once the
improvements commence, Tenant shall complete the improvements with all
reasonable diligence. Tenant agrees to pay promptly when due all charges for
labor or materials in connection with any such improvements so that the Premises
shall at all times be free of any and all liens.
5. USE OF PREMISES
5.1 PERMITTED USE. Tenant shall occupy the Premises continuously during the
Term and shall use the Premises only for the purposes set forth in Section 1 and
for no other purposes or purposes.
5.2 PROHIBITED USES. Without limiting the generality of Section 5.1, Tenant
shall not use any part of the Premises (a) in any manner which would violate
this Lease, (b) for any unlawful purpose, or (c) in any manner which in
Landlord's reasonable judgment impairs the appearance of the Building or (d) in
any manner which materially and adversely impairs or interferes with Building
services or the economic heating of the Building.
5.3 LICENSES AND PERMITS. Tenants shall obtain at its expense all licenses
or permits required for the lawful conduct of Tenant's business.
5.4 SIGNS. Tenant shall not place signs on the Premises or on the exterior
of the Building, in any window or in any common or public area without
Landlord's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed. Tenant's signs shall be purchased and
installed at Tenant's sole cost and expense and shall comply with applicable
law.
6. RENT
6.1 ANNUAL FIXED RENT. In consideration of the demising and leasing of the
Premises by Landlord, Tenant covenants to pay to Landlord in lawful money of the
United States as rent for said Premises the Annual Fixed Rent amounts in equal
monthly installments commencing on January 15, 2001:
ANNUAL FIXED RENT MONTHLY FIXED RENT
January 15, 2001 to January 14, 2002: $352,640.00 $29,386.67
January 15, 2002 to January 14, 2003: 363,660.00 30,305.00
January 15, 2003 to January 14, 2004: 374,680.00 31,223.34
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January 15, 2004 to January 14, 2005: 385,700.00 32,141.67
January 15, 2005 to January 14, 2006: 396,720.00 33,060.00
6.1.2 In the event that Tenant exercises its right to extend the Original Term
of this Lease, as set forth in Section 3.3 hereof, Tenant agrees to pay during
the extended term the current market rent charged for similar office space in
the Mansfield/Route 95 market at the time of the commencement of the Option
Period. In the event that Landlord and Tenant, after acting reasonably and in
good faith, cannot agree upon the aforesaid current market value within a thirty
(30) day period ending eleven (11) months prior to the expiration of the
Original Term then, and in such an event, Landlord and Tenant shall select an
independent commercial real estate broker or real estate appraiser to determine
the fair market rental value of the Premises based on the then fair market value
of similar office space in the Mansfield/Route 95 market. If Landlord and Tenant
are unable to agree upon a mutually acceptable broker to make such determination
within five (5) business days after Tenant exercises such right, or if a broker
is unable to render an opinion with knowledge of the office rental market in the
area around the Building, then the parties shall resort to arbitration of the
determination of the fair market rental value as provided herein. In determining
the fair market rental value, the arbitrators shall consider only buildings of
comparable location, age and type of construction in the Mansfield/Route 95
market, as identified above, without consideration for the Tenant Improvements
to the extent said Tenant Improvements are in excess of tenant improvements
generally allowed for office buildings in the Mansfield/Route 95 Market at the
time of such determination of fair market rental value.
ARBITRATION OF FAIR MARKET RENTAL VALUE. If the purpose of the
arbitration is to determine the fair market rental value of the Premises, then
the following rules shall apply:
(a) All arbitration shall occur at a location in Boston, Massachusetts,
chosen by the arbitrators and shall be conducted pursuant to the rules of the
American Arbitration Association. The party desiring such arbitration shall give
written notice to the effect to the other party and simultaneously therewith
also shall give written notice to the American Arbitration Association,
requesting such organization to select, as soon as possible but in any event
within the next thirty (30) days, three arbitrators with expertise in the
subject matter of the arbitration. Each arbitrator shall be a member of the
American Institute of Real Estate Appraisers (or successor organization, or if
no such organization exists, then from persons of similar professional
qualifications), with the designating M.A.I. and with at least ten (10) years of
experience appraising commercial properties in the Boston metropolitan area;
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(b) The hearing shall be conducted such that each of Landlord and Tenant
shall have two (2) hours only to present oral evidence or argument, but either
party may present whatever written evidence or argument it deems appropriate
prior to the hearing (with copies of such written evidence being delivered
concurrently to the other party); and
(c) Within 30 days after the conclusion of the hearing, the arbitrators
shall again meet and simultaneously disclose in writing their respective
determinations of the fair market rental value. If the determination of at least
two of the arbitrators shall be identical in amount, said amount shall be the
fair market rental value. If the determinations of at least two of the
arbitrators shall not be identical in amount, the fair market rental value,
shall be determined as follows: (a) if neither the highest nor the lowest
determination differs from the middle determination by more than ten percent
(10%) of such middle determination, then the fair market rental value shall be
the average of all three determination, and (b) , if clause (a) does not apply,
then the fair market rental value shall be the average of the middle
determination and the determination closest in amount to said middle
determination.
Landlord and Tenant shall split the cost of determining the fair market
value of the Premises. The decision of the appointed broker or appraiser, as the
case may be, shall be final and binding, which decision shall be made within a
thirty (30) day period ending seven (7) months prior to the expiration of the
Original Term in the case of the Option Period.
Notwithstanding the foregoing, in no event shall the Annual Fixed Rent
for the first Lease Year of the Option Period be less than the last Lease Year
of the Original Term.
6.1.3 Except only as specifically set forth in this Lease, it is understood and
agreed that this is a totally triple net Lease, meaning and intending to mean
that Landlord shall not be responsible for expenses of any kind or nature
arising out of or in connection with the Premises and Tenant shall be
responsible for any and all such expenses, including without limitation any and
all real estate taxes, municipal charges and betterments, repairs, maintenance,
replacements, renovations, operating expenses, insurance, licenses and utilities
(e.g. gas, electricity, water, sewer, fuel, heating, lighting, air conditioning,
telephone cable and the like) and other Operating Expenses set forth in Section
7.2.
6.1.4 All rent and other payments required to be made by Tenant pursuant hereof
shall be paid and made payable to Landlord at 32 Pegan Lane, P.O. Box 656,
Dover, Massachusetts 02030 until Tenant is otherwise notified by Landlord. All
payments shall be made
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monthly in advance on the first day of each calendar month during the term of
this Lease unless such other date is specified by Landlord upon written notice
to Tenant. If the term shall commence or terminate upon a day other than the
first day of a calendar month, then Tenant shall pay, upon the commencement date
of the Term, a PRO RATA portion of the fixed monthly rent described above and
PRO RATA on a per diem basis with respect to the fractional calendar month. The
rent shall be payable on the first of each calendar month in advance, at such
place as shall be designated by Landlord from time to time by written notice to
Tenant.
6.1.5 In the due date of the amount payable under this Lease is a Saturday,
Sunday or legal holiday at the location of the principal business office of
Landlord or the holder of the Mortgage, such amount shall be deemed to be due on
the next business day.
6.1.6 The obligation of Tenant to make the payments required by this Lease, and
to perform and observe the other agreements on its part contained in this Lease,
shall be absolute and unconditional and shall not be subject to any right of
recoupment, set off, counterclaim, abatement (except as hereinafter specifically
set forth) , suspension, deduction or defense. Tenant shall not (i) suspend or
discontinue payment of any rent or additional rent pursuant to this Lease or
(ii) fail to perform and observe any of its other agreements contained in this
Lease for any cause or reason including, but not limited to, the occurrence of
any acts or circumstances that may constitute failure of consideration,
destruction of or damage to the Premises, except such abatement on a per diem
basis proportionate to the extent to which rentable square footage is required
unfit for occupancy in accordance with Section 10.1, commercial frustration of
purposes, any change in the tax or other laws or administrative rulings of or
administrative actions by or under authority of the United States of America or
the Commonwealth of Massachusetts.
6.2 ADDITIONAL RENT, TAXES AND OTHER EXPENSES.
6.2.1 TAXES AND ASSESSMENTS. The Tenant shall pay, after receipt by Tenant of
Landlord's bill, as additional rent hereunder, in each year during the Original
Term and any Extended Term all real estate taxes (meaning all general and
special taxes and assessments imposed by governmental authorities having
jurisdiction over the entire Premises and assessed against the owners of the
Property) . In addition, Tenant shall pay all ad valorem taxes, if any,
allocable to Tenant's signs and business equipment in the Premises. If some
method or type of taxation replaces the current method of assessment of real
estate taxes, or the type thereof, Tenant agrees that Tenant shall pay the same;
and if a tax (other than a Federal or State net income tax) is assessed on
account of the gross rents or other charges payable by
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Tenant to Landlord under the Lease, Tenant agrees to pay the same unless
applicable law prohibits the payment of such tax by Tenant. Tenant's liability
under this paragraph for any tax year which does not fall entirely within the
term of this Lease shall be apportionately prorated.
6.2.2. CONTEST OF TAXES. Tenant shall have the right to contest (including the
right to prepare and make filings, renditions and the like) the amount or
validity, in whole or in part, of any real estate taxes by appropriate
proceedings diligently conducted in good faith, but only after payment of such
taxes, unless such payment or a payment thereof under protest would operate as a
bar to such contents or interfere materially with the prosecuting thereof, in
which event, notwithstanding the provisions of Section 6.2.1, Tenant may
postpone or defer payment of such real estate tax if neither the Premises nor
any part thereof, would be reason of such postponement or deferment be in danger
of being forfeited or lost. Upon the termination of any such proceedings, Tenant
shall pay the amount of such real estate taxes or part thereof, if any, as
finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with any costs,
fees, including counsel fees, interest, penalties and any other liability in
connection therewith. Tenant shall be entitled to any refund of any real estate
taxes and penalties and interest thereon received by Landlord which have been
paid by Tenant, or which have been paid by Landlord but for which Landlord has
been previously reimbursed in full by Tenant. Landlord shall not be required to
join in any proceedings referred to in this Section unless the provisions of any
law, rule or regulation, at the time in effect shall require that such
proceedings be brought by or in the name of Landlord, in which event Landlord
shall join in such proceedings or permit the same to be brought in Landlord's
name. Landlord shall not ultimately be subjected to any liability for the
payment of any fees, including reasonable counsel fees, costs or expenses in
connection with such proceedings. Tenant agrees to pay all such fees, including
reasonable counsel fees, costs and expenses or, on demand, to make reimbursement
to Landlord of such payment.
6.2.3 BILLING OF TAXES. Landlord shall provide Tenant with a statement showing
Tenant's actual tax liability for the preceding year. Tenant will be credited or
debited with any difference between actual and estimated tax liability, which
shall be adjusted annually. If Tenant is late in any tax payment, Tenant shall
pay Landlord any interest required of Landlord by the taxing authority, or if
Landlord advances the Taxes, Tenant shall pay Landlord interest as stated in
Section 6.3. Tenant may, at Tenant's election, pay the real estate taxes
directly to the taxing authority, provided in each instance evidence of such
payment is promptly provided to Landlord.
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6.3 LATE CHARGES. Rent and additional rent not paid within ten (10) days of the
date due shall bear interest at the rate of five percentage points over the
prime rate of Fleet National Bank, but in no event more than eighteen percent
per annum (or at any lower maximum rate permitted by law) from the date first
due until paid.
6.4 SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit and
maintain with Landlord the Security Deposit set forth in Section 1.1 of this
Lease, which Landlord may commingle with Landlord's other funds without payment
of any interest to Tenant. The Security Deposit shall be returned to Tenant at
the expiration of this Lease upon Tenant's written request, provided Tenant has
not breached this Lease. Landlord from time to time in its discretion may apply
the Security Deposit in total or partial satisfaction of any event of default by
Tenant, without affecting or waiving any other rights or remedies provided for
under this Lease and in such event Tenant shall forthwith upon demand restore
the Security Deposit to the original sum deposited, subject to the reduction set
forth in Section 1.1. In the event any bankruptcy, insolvency, reorganization or
other creditor-debtor proceedings shall be instituted by or against Tenant, or
its successors or assigns, or any guarantor of Tenant hereunder, the Security
Deposit shall be deemed to be applied first to the payment of any Rent due
Landlord for all periods prior to the institution of such proceedings and the
balance, if any, of the Security Deposit may be retained by Landlord in partial
liquidation of Landlord's damages. Landlord shall deliver the Security Deposit
to the purchaser of Landlord's interest in the Property in the event that such
interest be sold, transferred or assigned and thereupon Landlord shall be
discharged and released from all further liability with respect to the Security
Deposit or the return thereof to Tenant, and Tenant agrees to look solely to the
new Landlord for the return of the Security Deposit, and this provision shall
also apply to any subsequent transferees. Landlord shall have the right to
assign the Security Deposit to Landlord's mortgage lender in connection with
financing or refinancing of the Property if so requested by the Lender. No
holder of a mortgage or deed of trust or lessor under a ground or underlying
lease to which this Lease is or may be superior or subordinate shall be
responsible in connection with the Security Deposit, unless such mortgagee or
holder of such deed of trust or lessor shall have actually received the Security
Deposit.
7. SERVICES.
7.1 UTILITY EXPENSES. Tenant agrees to pay or cause to be paid as additional
rent directly to the Landlord or party charged with the collection thereof all
charges for water, gas, electricity, telephone, sewer and other services
(collectively "Utility Expenses") used, rendered or supplied by or for the
Tenant upon or in connection with the Premises during the Term, including any
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extensions, and to indemnify Landlord and save it harmless against any liability
or damages on such account. Landlord shall have no obligation to provide any
utilities to the Premises.
7.2 OPERATING COST. The Tenant shall pay any and all Operating Expenses incurred
during the Original Term and any Extended Term either to Landlord, after receipt
by Tenant of Landlord's bill(s), as additional rent hereunder, or directly to
the vendor or service provider as and when billed. Operating Expenses are
defined for the purpose of this Lease as including the total cost and expense
incurred in operating, repairing, maintaining, replacing and managing the
Building of which the Premises forms a part, including without limitation,
security, insurance, water and sewer use charges, roof repairs, lighting,
electrical, mechanical, utility and other systems and services, removal of snow,
trash, rubbish and other refuse, sweeping, cleaning, routine maintenance and
service of utility, heating and cooling systems, maintenance and depreciation of
machinery and equipment used in operating and maintenance and the cost of
personnel to implement such services.
7.3 REPAIRS FOR ACCOUNT OF TENANT. If after written or oral notice, Tenant fails
to promptly make needed repairs to the Premises, as set forth in Section 8.6,
Landlord may, but shall not be obligated to do so, at Tenant's expense, make any
such repairs, without waiving any right or remedy for Tenant's failure to make
such repairs. If Tenant fails to promptly pay, Landlord may add said amount to
the rent due hereunder, together with interest thereon at the rate of five
percentage points over the prime rate of Fleet National Bank, but in no event
more than eighteen (18%) percent per annum (or at any lower maximum rate
permitted by law)
7.4 CURTAILED SERVICES. If any of utility services (e.g. electricity, water,
gas, etc.) are curtailed by any reason or cause beyond Landlord's reasonable
control, there shall be no abatement of rent or other compensation due Landlord,
nor shall Tenant's obligations hereunder be reduced, but Landlord shall use best
efforts to cause the provider of such utility services to timely restore the
interrupted service.
7.5 PAYMENT FOR TENANT'S WORK. The Premises shall at all times be free of liens
for labor and materials. To that end, Tenant shall pay promptly for all work or
services with respect to the Premises undertaken on behalf of Tenant. Except as
otherwise set forth in this Lease, Landlord shall receive a reasonable service
fee, determined by Landlord, for work performed for Tenant by or under the
supervision of Landlord.
7.6 CLEANING OF BUILDING. Tenant, at Tenant's sole cost and expense, shall
provide cleaning services to the Building.
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7.7 LANDLORD'S MAINTENANCE. Subject to the provisions of Section 7.2, Landlord
shall maintain and repair all structural portions of the Building, which may be
required in order to keep the Building presentable and in good repair and
tenantable condition, including but not limited to the roof, exterior walls,
structural floor slabs, columns, public stairways and corridors, lavatories,
equipment (including but not limited to other types of systems) and shall
replace and maintain any interior portions of the Building in need of same due
to structural or exterior defects, or failure by Landlord's negligence, default
or failure to repair any exterior or structural defects. Landlord shall
effectuate all repairs in a timely manner. Tenant shall notify Landlord in
writing of any repairs required in this Section 7.7 to be performed by Landlord.
Landlord shall complete the repairs within thirty (30) days of receipt of
Tenant's notice unless such repairs cannot be reasonably completed within said
thirty days, in which event Landlord shall thereafter diligently prosecute such
repairs until completed.
8. TENANT'S ADDITIONAL COVENANTS. Tenant covenants at its expense at all times
during the Lease Term and such further time as Tenant occupies the Premises or
any part thereof the following:
8.1. COMPLIANCE WITH LAW. Tenant, at its sole expense, shall comply with all
applicable laws and insurance requirements with respect to Tenant's use and
occupancy of the Premises.
8.2 COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant hereby covenants to Landlord
that: (a) Tenant shall (i) comply with all Laws applicable to the discharge,
generation, manufacturing, removal, transportation, treatment, storage, disposal
and handling of Hazardous Materials or Wastes as apply to the activities of the
Tenant, its directors, officers, employees, agents, contractors, subcontractors,
licensees, invitees, successors and assigns at the Property, (ii) remove any
Hazardous Materials or Wastes from the Premises in accordance with all
applicable Laws and orders of governmental authorities having jurisdiction to
the extent Tenant or its directors, officers, employees, agents, contractors,
subcontractors, licensees, invitees, successors and assigns brought such
Hazardous Materials or Wastes onto the Premises, (iii) pay or cause to be paid
all costs associated with such removal including restoration of the Premises,
and (iv) indemnify Landlord from and against all losses, claims and Costs
arising out of the migration of Hazardous Materials or Wastes from or through
the Premises which arose from acts or omissions of Tenant during Tenant's
occupancy of the Premises; (b) Tenant shall keep the Property free of any lien
imposed pursuant to any applicable Law in connection with the existence of
Hazardous Materials or Wastes in or on the Premises; (c) Tenant shall not
install or permit to be installed in the Premises any asbestos,
asbestos-containing materials or any other chemical or substance which has been
determined to be a hazard to health and environment; (d) Tenant
12
shall not cause, as a result of any act or negligent omission on the part of
Tenant, a releasing, spilling, leaking, pumping, emitting, pouring, discharging,
emptying or dumping of any Hazardous Materials or Wastes onto the Premises; (e)
Tenant shall give all notifications and prepare all reports required by any Laws
or any other law with respect to Hazardous Materials or Wastes that were first
brought onto the Premises by the Tenant (or Tenant's directors, officers,
employees, agents, contractors, subcontractors, licensees, invitees, successors
or assigns) existing on, release from or emitted from the Premises; (f) Tenant
shall promptly notify Landlord in writing of any release, spill, leak,
emittance, pouring, discharging, emptying or dumping of Hazardous Materials or
Wastes in or on the Premises; and (g) Tenant shall promptly notify Landlord in
writing of any summon, citation, directive, notice, letter or other
communication, written or oral, from any local, state or federal governmental
agency, or of any claim or threat of claim known to Tenant, made by any third
party relating to the presence or releasing, spilling, leaking, pumping,
emitting, pouring, discharging, emptying or dumping of any Hazardous Materials
or Wastes onto the Premises. The foregoing covenants shall not apply to
Hazardous Materials or Wastes existing in the Premises prior to the date of this
Lease. The term "Hazardous Materials or Wastes" shall mean any hazardous or
toxic materials, pollutants, chemicals, or contaminants, including without
limitation asbestos, asbestoscontaining materials, polychlorinated biphenyls
(PCBs) and petroleum products as defined, determined or identified as such in
any Laws, as hereinafter defined. The term "Laws" means any federal, state,
county, municipal or local laws, rules or regulations (whether now existing or
hereinafter enacted or promulgated) including, without limitation, the Clean
Water Act, 33 U.S.C. ss.1251 ET SEQ. (1972), the Clean Air Act, 42 U.S.C.
ss.7401 ET SEQ. (1970) , the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. ss.1802 ET SEQ. (1980) , as amended, and the
Resource Conservation and Recovery Act, 42 U.S.C. ss.6901 ET SEQ., any similar
state laws, as well as any judicial or administrative interpretation thereof,
including any judicial or administrative orders or judgments.
Tenant hereby agrees to defend, indemnify and hold harmless Landlord, its
employees, agents, contractors, subcontractors, licensees, invitees, successors
and assigns from and against any and all claims, losses, damages, liabilities,
judgments, costs and expenses (including, without limitation, reasonable
attorneys' fees and costs incurred in the investigation, defense and settlement
of claims or remediation of contamination) incurred by such indemnified parties
as a result of or in connection with the presence of or removal of Hazardous
Materials or Wastes existing at the Premises (except for Hazardous Materials or
Wastes existing at the Premises prior to the date of this Lease) or as a result
of or in connection with activities prohibited under this Section
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8.2. Tenant shall bear, pay and discharge, as and when the same become due and
payable, any and all such judgments or claims for damages, penalties or
otherwise against such indemnified parties, shall hold such indemnified parties
harmless against all claims, losses, damages, liabilities, costs and expenses,
and shall assume the burden and expense of defending all suits, administrative
proceedings, and negotiations of any description with any and all persons,
political subdivisions or government agencies arising out of any breach by
Tenant or Tenant's obligations under this Section 8.2.
8.3 TENANT'S INDEMNITY. Tenant shall defend, indemnify and save harmless the
Landlord and any other persons claiming by, through or under Landlord against
any and all liability or claims of any kind or nature whether for injury to
persons, including death, or damage to property (i) occurring on or arising out
of the use of the Premises during the term hereof by Tenant or any persons
claiming by, through or under Tenant; (ii) arising out of any default by Tenant
hereunder; or (iii) arising out of any act or omission to act by Tenant, its
agents, employees, licensees, franchisees, invitees, subtenants or any other
person for whom Tenant is responsible on or about the Premises at any time.
8.4 TENANT'S PROPERTY IS TENANT'S RISK. All property of Tenant and persons
claiming by, through, or under Tenant at any time on the Premises, shall be at
the sole risk of Tenant or such persons and if the whole or any part thereof
shall be destroyed or damaged by any cause whatever, no part of said loss or
damage shall be borne by Landlord; except that to the extent required by
Massachusetts law, the foregoing shall not exculpate the Landlord from liability
for its own negligence or willful act.
8.5 OVERLOADING, NUISANCE; VOLATILE OR DANGEROUS SUBSTANCES. Tenant shall not
injure, overload, deface, or otherwise harm the Premises, nor commit any
nuisance, not permit the emission of any objectionable noise, noxious or
objectionable odor or of any particulate residue; nor make, allow or suffer any
waste; nor make any use of the Premises which is improper, offensive, or
contrary to any law, ordinance, order or regulation of any public authority or
which will invalidate or increase the premium of any insurance. All dangerous
substances shall be stored safely and securely in compliance with law and
applicable government and insurance requirements and guidelines.
8.6 MAINTENANCE OF PREMISES. Tenant shall perform its own interior decorating;
keep in good condition and repair, excepting for reasonable wear and tear and
damage by fire and other casualty, the interior of the Building, including
without limitation all interior walls, floors, ceilings, doors, windows and
signs; make all necessary repairs not required to be made by Landlord, including
all repairs necessitated by the negligence of
14
Tenant or persons claiming by, through or under Tenant, and including without
limitation repairs to all improvements made by Tenant and further including
replacement of glass injured or broken, keeping all plumbing, lighting, heating,
air conditioning, sprinkler and other utility systems and equipment in good
working order, removing all snow and ice from the Property, maintaining all
lawns, plantings and other landscaped areas thereon in a healthy and attractive
state.
8.7 YIELD UP. At the expiration or earlier termination of this Lease, Tenant
shall surrender all keys to the Premises, remove all personal property, and all
Tenant's signs and yield up the Premises broom clean and in good order, repair
and condition, as the same were in on the Commencement Date or had been put in
thereafter, damage by unavoidable casualty or reasonable wear and tear excepted.
If Tenants property is not removed within thirty (30) days, Tenant shall pay to
Landlord the tenant at sufferance use and occupancy charge set forth in Section
13.1 on a per diem basis for each and every day after the thirtieth day until
all of Tenant's property is removed from the Premises. After sixty (60) days,
Landlord may dispose of Tenant's property not yet removed, as Landlord shall
determine.
8.7.1 WHAT ARE INTENDED TO BE FIXTURES. Equipment, improvements and
appurtenances attached to or built into the Premises prior to or during the Term
shall be and remain part of the Premises and are intended as real estate
fixtures and shall not be removed by Tenant unless otherwise expressly provided
in this Lease. All electric, plumbing, heating and sprinkling systems, fixtures
and outlets, vaults, panelling, molding, shelving, radiator enclosures,
flooring, HVAC equipment and HVAC ducts shall be deemed to be real estate
fixtures, whether or not attached to or built into the Premises.
8.8 ALTERATIONS AND IMPROVEMENTS BY TENANT AFTER TERM COMMENCEMENT. The Tenant
shall not make any alterations, improvements and/or additions to the interior or
exterior of the Premises, except in accordance with the provisions of Section
4.2 of this Lease.
8.9 FLOOR LOAD; HEAVY MACHINERY. Tenant shall place no load upon any floor of
the Premises exceeding the floor load per square foot of area which such floor
was designed to carry or which in its present condition it is capable of
carrying without damage and which is allowed by law.
8.10 ASSIGNMENT AND SUBLETTING. Tenant covenants and agrees that Tenant shall
not assign this Lease or sublet (which term, without limitation, shall include
the granting of concessions, licenses, and the like) without in each instance
having first received the express written consent of Landlord, which Consent
shall not be
15
unreasonably withheld or delayed, and in any case where Landlord shall consent
to such assignment or subletting, the Tenant named herein shall (i) remain fully
liable for the obligations of Tenant; hereunder, including without limitation,
the obligation to pay t rents and other amounts provided under this Lease, and
(ii) over to Landlord any and all rent or additional rent or other income
received from any sub-tenant or assignee (including sale furniture fixtures,
equipment and the like) in excess of Tenant obligations to Landlord, as set
forth in this Lease, as it is expressed intent ions of the parties hereto that
Tenant shall receive a profit from any assignment of subletting.
Tenant shall pay to Landlord, as additional rent, Landlord's reasonable legal
fees and other expenses incurred in connection with any proposed assignment or
sublet, including without: limitation, fees for review of documents.
8.11 LANDLORD'S ACCESS TO PREMISES. Tenant agrees that it permit Landlord, the
holder of any mortgage, and its agents enter the Premises at reasonable times
upon at least twenty-four (24) hours prior written notice (except in the case
emergencies) to (i) show the same to prospective tenants purchasers and lenders;
(ii) for the purpose of inspection, repairs, alterations, improvements or
additions of, or to the. Premises, as Landlord may deem reasonably necessary or
desirable. (iii) for the purpose of assuring Tenant's compliance with
obligations hereunder; (iv) to exercise Landlord's rights and discharge
Landlord's obligations under this Lease and (v) for purpose whatsoever related
to the safety, protection, preserve; or improvements of the Premises or of the
Building or of Landlord's interest. Landlord agrees that no entry by it shall
result in unreasonable interference with the conduct of Tenant business in the
Premises. Landlord further agrees that forcible entry will be made except to
prevent injury to persons substantial damage to property.
9. INSURANCE
9.1 PUBLIC LIABILITY INSURANCE. Tenant shall take out and maintain in force
throughout the Term comprehensive public liability insurance naming Landlord and
Tenant, and all persons claiming under them as insureds against all claims and
demands for any injury to person or property which may be claimed to occurred on
the Premises in an amount which at the beginning the Term shall not be less than
$2,000,000 for injury or death of one person $3,000,000 for injury or death of
more than one person, $500,000 for property damage or such higher amounts as
Landlord determines are required by reason of Tenant's use of the Premises and
which thereafter, if Landlord requires, shall be in on higher amounts as are
then consistent with sound commercial practice in the greater Boston area.
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9.2 CASUALTY INSURANCE. Tenant shall take out and maintain. throughout the Term
a policy of fire, vandalism, malicious mischief, extended coverage and so-called
all risk coverage insurance insuring Tenant's improvements in the Premises and
Tenant's fixtures, furnishing and equipment to the extent of full replacement
cost coverage with a deductible not to exceed $1,000.00, except that any such
insurance may be written with an 80% co-insurance clause, provided such policy
has a replacement-cost endorsement.
9.3 WORKMEN'S COMPENSATION. Tenant shall maintain policies of Workmen's
Compensation Insurance covering all employees, and if Tenant shall contract with
any independent contractor for the furnishing of labor, materials or services to
Tenant, Tenant shall require such independent contractor to maintain Workmen's
Compensation Insurance covering all its employees and all the employees of any
subcontractors.
9.4 CERTIFICATE OF INSURANCE. Such insurance shall be placed with insurance
satisfactory to Landlord and authorized to do business in Massachusetts. Such
insurance shall provide that it shall not be cancelled without at least ten (10)
days prior written notice to each insured named therein. Upon Landlord's
request, Tenant shall furnish Landlord with Certificates of. Insurance for all
such insurance and, at Landlord's request, shall furnish the holder of any
mortgage on the Building with Certificates of Insurance, together with evidence
satisfactory to' Landlord of the payment of all premiums.
9.5 LANDLORD'S INSURANCE. Landlord shall maintain during the Term such policies
of casualty, liability and other insurance, as Landlord shall determine. Tenant
agrees to cooperate with Landlord in obtaining and maintaining such insurance.
9.6 WAIVER OF SUBROGATION. Landlord and Tenant hereby release each other, to
the extent of their respective insurance coverages, from any and all liability
for any loss or damage caused by fire or any of the extended coverage
casualties, even if such fire or other casualty shall be brought about by the
fault or negligence of the party benefited by the release or its agents;
provided, however, this release shall be in force and effect only with respect
to loss or damage occurring during such time as thc.' policies of fire and
extended coverage insurance maintained by the releasing party shall contain a
clause to the effect that such release shall not affect said policies or the
right of the releasing party to recover thereunder. Landlord and Tenant each
agree to make best efforts to have their respective fire and extended coverage
insurance policies include such a clause so long as the same is obtainable
without extra cost, or if extra cost is chargeable therefor, so long as the
party benefited by such
17
clause in its discretion chooses to pay such extra cost.
9.7 INCREASE IN INSURANCE RISK. If Tenant's use of the Premises results in any
increase in Landlord's insurance rates on the Building, Tenant shall reimburse
Landlord for such increase in insurance charges.
10. DAMAGE TO PREMISES AND CONSEQUENCES OF EMINENT DOMAIN.
10.1 UNTENANTABILITY. Except as otherwise provided, if the Building shall be
partially damaged by fire or other casualty this Lease shall remain in full
force and effect and the damage the Building shall be repaired by Landlord.
Until such repairs are made, Rent shall be abated on a per diem basis
proportionate to the extent to which the rentable square footage of the Building
is rendered unfit for occupancy. Landlord shall incur no liability other than
abatement of rent on a per diem basis proportionate the extent to which the
rentable square footage of the Building is rendered unfit for occupancy, on
account of any delay in the completion of such repairs which may arise by reason
of adjustment; of insurance, labor difficulties or other cause beyond Landlord's
reasonable control. If all or any portion of the Building is destroyed by fire
or other casualty, acts of God or other cause, Landlord may elect, by written
notice to Tenant within sixty (60) days after the date of casualty:
(a) to terminate this Lease as of the date when the Building is so
destroyed or made unfit for occupancy; or
(b) to repair, restore or rehabilitate the Building Landlord's expense
within one hundred (100) days after Landlord is enabled to take possession of
the damaged Building and undertake reconstruction or repairs; and if Landlord
elects to so repair, restore or rehabilitate the Building, this Lease shall not
terminate, Landlord in good faith shall attempt to complete its. work as
promptly as reasonably possible, and Rent shall be abated on a per diem basis
proportionate to the extent and for the period during which the Building is
unfit for occupancy. Landlord's failure to elect to terminate this Lease in a
timely fashion shall constitute its election to proceed to repair the Building.
In the event Landlord shall proceed pursuant to the provisions of thin
subparagraph, and shall not substantially complete the work within said one
hundred (100) day period (excluding from said period loss or time resulting from
adjustment of insurance, labor difficulties or other Acts of Cod) either
Landlord or Tenant may then terminate this Lease, as of the date when the
Building was made unfit for occupancy, by written notice to the other not later
than ten (10) days after the expiration of said one hundred (100) day period,
computed as herein provided. In the event of termination of this Lease pursuant
to this Section 10.1, Rent shall be apportioned a per diem basis to and
including the effective date of such
18
termination, and Tenant shall promptly vacate the Premises and surrender the
same to Landlord. If the damage or destruction is due to the fault or negligence
of Tenant, or Tenant's agents, contractors, servants, employees, licensees or
invitees, the debris shall be removed at the expense of Tenant.
10.2 EMINENT DOMAIN. If the whole or any part of the Building shall be taken,
condemned or otherwise acquired by any public or quasi-public authority under
the power of eminent domain, condemnation or other proceedings so as to render
the Building untenantable, this Lease and the estate hereby created shall
terminate and wholly expire on the date title shall vest in acquiring authority,
and all Rent shall be prorated and adjusted as of said date. In no event
whatsoever shall Tenant have any claim against Landlord by reason of any
appropriation, condemnation or taking of the whole or any part of the Building,
nor shall Tenant have any claim to the amount, or any portion thereof, that may
be awarded as damages or paid as a result of said appropriation, condemnation or
taking. Tenant hereby assigns to Landlord all Tenant's rights, title and
interest in and to any and all amounts awarded or paid by reason of such
appropriation, condemnation or taking, provided, however, that none of the
foregoing is meant to deprive the Tenant from claiming moving expenses,
displacement expenses or the like solely from the acquiring authority.
11. DEFAULT AND REMEDIES.
11.1 EVENTS OF DEFAULT. (a) If Tenant shall default in the performance of any
of its obligations to pay the Annual Fixed Rent or additional rent hereunder
within five (5) days after it is due, or (b) if, within thirty (30) days after
written notice from Landlord to Tenant specifying any other non-monetary default
or defaults, Tenant has not commenced diligently to correct the default or
defaults so specified or has not thereafter diligently pursued such correction
to completion or (c) if any assignment shall be made by Tenant for the benefit
of creditors, or (d) if Tenant's leasehold interest shall be taken on execution,
or (e) if a petition is filed by Tenant or any guarantor of Tenant's obligations
under this Lease for adjudication as a bankrupt, or for reorganization or any
arrangement under any provision of the Bankruptcy Act, as then in force and
effect, or (f) if an involuntary petition under any of the provisions of said
Bankruptcy Act is filed against Tenant or any such guarantor of Tenant's
obligations and such involuntary petition is not dismissed within thirty (30)
days thereafter, or (g) if Tenant or any such guarantor shall be declared
bankrupt or insolvent according to law, or (h) if a receiver, trustee or
assignee shall be appointed for the whole or any part of Tenant's property or
the property of any such guarantor and shall not be removed within thirty (30)
days thereafter, then, and in any such cases, if such
19
default shall not have been cured, Landlord and its agents lawfully may, in
addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and with notice and with process
of law (forcible if necessary) enter into and upon the Premises or any part
thereof in the name of the whole or mail a notice of termination addressed to
Tenant at the Premises, and repossess the same as of Landlord's former estate
and expel Tenant and those claiming through or under Tenant and remove its and
their effects (forcible, if necessary) without being deemed guilty of any manner
of trespass and without prejudice or prior breach of covenant, and upon such
entry or mailing, as aforesaid, this Lease shall terminate, Tenant hereby
waiving all statutory rights (including without limitation rights of redemption,
if any) to the extent such rights may lawfully waived, and Landlord, with notice
to Tenant, may store Tenant's effects at the expense and risk of Tenant, and, if
Landlord so elects, may sell such effects at public auction and apply the net
proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay
over the balance, if any, to Tenant. For purposes of this Section 11.1 and all
sections under Section 11, "Tenant shall include any guarantor of any of Tenants
obligations under this Lease and any corporation of which Tenant is a controlled
subsidiary.
11.2 DAMAGES-TERMINATION. Upon the termination of this Lease under the
provision of this Section 11, Tenant shall pay to Landlord the Annual Fixed
Rent, additional rent and other charges payable by Tenant to Landlord up to the
time of such termination, shall continue to be liable for any preceding breach
of covenant, and in addition, shall pay to Landlord as damages, at the election
of Landlord, either:
(x) provided Landlord has used good faith efforts to mitigate Tenant's
damages, the amount by which, at the time of the termination of this Lease (Or
at any time thereafter if Landlord shall have initially elected damages under
subparagraph (y), below), (1) the aggregate of the Annual Fixed Rent, additional
rent, taxes, Utility Expenses, Operating Expenses and other charges projected
over the period commencing with such termination and ending on the Termination
Date, as stated in Section 1 (OR such later date to which the Lease has been
extended) exceeds (ii) the aggregate projected rental value of the Premises for
such period, or:
(y) amounts equal to the Annual Fixed Rent, additional rent, taxes, and
Operating Expenses and other charges which would have been payable by Tenant had
this Lease not been so terminated, payable upon the due dates therefor specified
herein following such termination and until the Termination Date, as specified
in Section 1, (or such later date to which the Lease has been extended)
provided, however, if Landlord shall re-let the Premises
20
during such period, that Landlord shall credit Tenant with the net rents
received by Landlord from such re-letting the expense incurred or paid by
Landlord in termination this Lease, as well as the expenses of re-letting,
including altering and preparing the Premises for a new tenant(s), broker's
commissions, attorneys' fees and all other similar and dissimilar expenses
properly chargeable against the Premises and the rental therefrom, it being
understood that any such re-letting may be for a period equal to or shorter or
longer than the remaining term of this Lease, as extended; and provided,
further, that (i) in no event shall Tenant be entitled to receive any excess of
such net rents over the sums payable by Tenant to Landlord hereunder and (ii) in
no event shall Tenant be entitled in any suit for the collection of damages
pursuant to this Subparagraph (y) to a credit in respect of any net rents from a
re-letting except to the extent that such net rents are actually received by
landlord prior to the commencement of such suit. If the Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent received
from such re-letting and of the expenses of re-letting.
The recovery of such damages, or any installments thereof, may be brought by
Landlord in one or multiple suites from time to time at Landlord's election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term of this Lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages to which in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant.
11.3 EFFECT OF TAX AND OPERATING EXPENSES ON DAMAGES. In the event of any
termination of this Lease or re-entry by Landlord under the provisions of this
Section 11 or other proceeding or action or any provision of law by reason of
default under this Lease on the part of Tenant, then for the purpose of
computing damages, as shall be payable pursuant to this Section 11, it is agreed
that:
(a) If Landlord shall elect that damages be payable pursuant to
Subparagraph (x) of Section 11.2, the computation of such damage shall be made,
insofar as the same relates to taxes, Utility Expenses and Operating Expenses by
taking the product of (i) the sum of taxes, and Operating Expense for the
immediately preceding fiscal year of Landlord, respectively, times (ii) the
number of years remaining of the full term hereby granted, on the assumption
that the amount of such taxes, Utility Expenses and Operating Expense so payable
for the immediately preceding fiscal
21
year of Landlord would have remained constant for each subsequent fiscal year
of the full term hereby granted.
(b) If Landlord shall elect that such damages be payable pursuant to
Subparagraph (y) of Section 11.2, the sums referred to in said Subparagraph (y)
shall include, without limitation, the amount of the taxes, Utility Expenses and
Operating Expense which under the provisions of Section 6.2, 7.1 and 7.2 would
be payable by Tenant for the period referred to in said Subparagraph (y) less
any credits due Tenant for reletting the Premises, as provided for in
Subparagraph (y).
11.4 LANDLORD'S EXPENSES IN PERFORMING OBLIGATIONS OF TENANT. If Tenant shall
default in the performance of any covenant of this Lease, Landlord may without
waiving or releasing any right or remedy immediately, or at any time thereafter,
without notice, perform the same for Tenant's account and Tenant shall pay on
demand as reimbursement the sum so paid by Landlord with all interests and
costs.
11.5 LANDLORD'S REMEDIES NOT EXCLUSIVE. Landlord's remedies stated in this
Lease are cumulative and not exclusive of any other remedies or means of redress
available to Landlord by law.
11.6 EFFECT OF WAIVERS OF DEFAULT. No consent or waiver, express or implied, by
Landlord or Tenant to any act or omission which otherwise would be a breach of
Tenant's obligations shall in any way be construed to impair Tenant's continuing
obligations hereunder or operate to permit similar acts or omissions.
11.7 REPEATED DEFAULTS. Intentionally Omitted.
11.8 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum than
the Annual Fixed Rent, additional rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent or
charge due, nor shall any endorsement or statement on any check or any letter
accompanying any check for payment as rent or other charge be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
12. LANDLORD'S FINANCING.
12.1 SUBORDINATION. This Lease is subject and subordinate to all matters of
record including without limitation any mortgages or ground leases and other
instruments in the nature of a mortgage, which may now be on or affect the
Premises, or any part thereof, and to each advance made or to be made under such
mortgages and to all renewals, modifications, consolidations, replacements and
22
extensions thereof and all substitutions therefor and Tenant shall, when
requested, promptly execute and deliver such written instruments as shall be
necessary to show the subordination of this Lease to any such mortgages, ground
leases and other such instruments in the nature of a mortgage and to any and all
advances made or to be made thereunder, provided that in the instrument of
subordination, the mortgagee (or trustee) agrees for itself and its successors
and assigns, that so long as Tenant shall not be in default of this Lease, the
mortgagee (or trustee) and its successors and assigns, will not disturb the
peaceful, quiet enjoyment of the Premises by Tenant and will recognize Tenant's
rights under this Lease.
12.2 ESTOPPEL CERTIFICATE. Each party shall, at any time and from time to time
upon not less than ten (10) days' prior written notice from the other party,
execute, acknowledge and deliver to the other party a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the dates to which the
rental and other charges are paid, in advance, if any; (ii) acknowledging that
there are not, to such party's knowledge, any uncured defaults on the part of
the other party hereunder, or specifying such defaults, if any which are
claimed; and (iii) certifying as to such other matters as the other party
reasonably shall request. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the property of
which the Premises are a part. Tenant's failure to deliver such statement within
such time shall be conclusive upon Tenant that this Lease is in full force and
effect, without modification, except as may be represented by Landlord, that
there are no uncured defaults in Landlord's performance, and that not more than
one month's rental has been paid in advance.
12.3 ASSIGNMENT OF RENTS. Tenant shall, upon receipt of written notice from
Landlord and any such mortgagee, overlessor, or other person to whom Landlord
may from time to time assign the rents or other payments due hereunder, make
payment of such rents or other payments to such person.
13. HOLDING OVER.
13.1 HOLDING OVER. If Tenant or anyone claiming under Tenant shall remain in
possession of the Premises or any part thereof after the expiration of the Term
of this Lease without any agreement in writing between Landlord and Tenant with
respect thereto, prior to acceptance of rent by Landlord, the person remaining
in possession shall be deemed a tenant at sufferance at a use and occupancy
charge equal to twice the rate of Annual Fixed Rent plus all other charge
payable under this Lease, and after
23
acceptance of rent by Landlord, the person remaining in possession shall be
deemed a tenant from month-to-month, subject to the provisions of this Lease
(but excluding all provisions for rent) insofar as the same may be made
applicable to a tenancy from month-to-month.
Notwithstanding the foregoing, Landlord may, prior to acceptance of rent for any
period after the Term, provided Tenant has not exercised any Tenant election to
extend the Term of this Lease, at its option forthwith re-enter and take
possession of the Premises or any part thereof without process or by any manner
provided by law without prejudice to claim for the use and occupancy charge as
stated above.
14. MISCELLANEOUS PROVISIONS
14.1 NOTICES. All notices hereunder shall be in writing and deemed duly served
if mailed, certified mail return receipt requested or delivered by a nationally
recognized overnight delivery service with tracking receipt, to Tenant, at the
Original Address of Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord, and Landlord, at the Original
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant.
14.2 QUIET ENJOYMENT. Upon Tenant's paying the rent and performing all
provisions of this Lease, Tenant may peaceably and quietly have, hold and enjoy
the Premises during the Term without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord.
14.3 LIMITATION OF LANDLORD'S LIABILITY. Tenant shall neither assert nor seek
to enforce any claim for breach of this Lease against any of Landlord's assets
other than Landlord's interest in the Building of which the Premises forms a
part and in the rents, issues and profits thereof, and Tenant agrees to look
solely to such interest for the satisfaction of any liability of Landlord under
this Lease. In no event shall Landlord (which term shall include, without
limitation, any of the officers, trustees, directors, partners, beneficiaries,
joint ventures, members, stockholders or other principals or representatives,
disclosed or undisclosed, thereof) ever be personally liable for any such
liability.
14.4 ACTS OF GOD. In any case where either party hereto is required to do any
act, other than the payment of Annual Fixed Rent or additional rent, delays,
caused by or resulting from acts of God, war, civil commotion, fire, flood or
other casualty, labor difficulties, shortages of labor, materials, or equipment,
unusual government regulations, unusually severe weather, or other causes beyond
such party's reasonable control shall not be counted in
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determining the time during which such act shall be completed, whether such time
be designated by a fixed date, a fixed time or "a reasonable time", and such
time shall be deemed to be extended by the period of such delay.
14.5 APPLICABLE LAW AND CONSTRUCTION. This Lease is made under Massachusetts
Law and shall bind Landlord and Tenant and their respective heirs, successors
and assigns. If any provisions of this Lease shall to any extent be invalid, the
remainder of this Lease, and the valid portion of such provisions, shall not be
affected thereby. There are no oral or written agreements between Landlord and
Tenant affecting this Lease. This Lease may be amended only by instruments in
writing executed by Landlord and Tenant. The titles of the several Articles and
Sections contained herein are for convenience only and shall not be considered
in construing this Lease.
14.6 BROKER. Tenant represents and warrants that it has not directly or
indirectly dealt, with respect to the leasing of the Premises, nor had its
attention called to the Premises by anyone other than the broker, person or
firm, if any, designated in Section 1. Tenant agrees to exonerate and save
harmless and indemnify Landlord against any claims for a commission arising out
of the execution and delivery of this Lease or out of negotiations between
Landlord and Tenant with respect to the leasing of other space in the Building,
provided that Landlord shall be solely responsible for the payment of brokerage
commission to the broker, person or firm, if any, designated in Section 1.
14.7 FINANCING REQUIREMENTS. If in connection with obtaining financing for the
Premises, the holder of the mortgage, a bank insurance company, pension trust or
other institutional lender shall request reasonable modifications in this Lease
as a condition to such financing, Tenant will not unreasonably withhold or
condition its consent thereto provided that such modifications do not increase
the obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created.
14.8 AGREEMENT MADE ONLY WHEN LEASE SIGNED. This Lease shall bind Landlord and
Tenant Only when executed and delivered by both. This Lease when signed by one
party and delivered to the other shall constitute an offer to enter into a lease
on the terms Set forth herein. No submission of this Lease, unsigned by either
party to the other, shall constitute an offer to lease.
14.9. RECORDING. Tenant agrees not to record the within Lease, but each party
hereto agrees, on the request of the other, to execute a so-called Notice of
Lease or short form lease in form recordable and complying with applicable law
and reasonably satisfactory to Landlord's attorneys. In no event shall such
document set forth the rental or other charges payable by Tenant
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under this Lease; and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease, and is not intended
to vary the terms and conditions of this Lease.
14.10 GOVERNING LAW. This Lease shall be governed exclusively by the provisions
hereof and by the Laws of the Commonwealth of Massachusetts, as the same may
from time to time exist.
Executed under seal on the date set forth in Section 1.1.
LANDLORD: TENANT:
Benchmark Electronics Corporation
By: /S/ NANCY E. THOMPSON By: /S/ GAYLA J. DELLY
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Nancy E. Thompson, Trustee Its Treasurer
of Goat Hollow Realty Trust Hereto duly authorized
CLERK'S CERTIFICATE
BENCHMARK ELECTRONICS CORPORATION
The undersigned hereby certifies (1) that he is the duly elected Clerk of the
Corporation executing this Lease, as Tenant, (2) that the Tenant's Board of
Directors has duly decided that the Tenant shall enter into this Lease and has
duly empowered the person who executed this Lease to do in the name and on
behalf of the Tenant, and (3) that the Tenant's execution and performance of
this Lease is consistent with and does not contravene or violate the law and
governing documents under which Tenant is organized and operated.
/s/ LENORA A. GURTON, CORPORATE SECRETARY
-----------------------------------------
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Exhibit A
ATTACHED TO AND MADE A PART OF THAT CERTAIN LEASE BY AND BETWEEN
GOAT HOLLOW REALTY TRUST AND
BENCHMARK ELECTRONICS CORPORATION
DESCRIPTION OF PROPERTY
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360 Forbes Boulevard
Mansfield, Massachusetts
PARCEL 1.
A certain parcel of land with the buildings thereon situated in the Interstate
95 Industrial center of 495, Mansfield, Bristol County, Massachusetts, shown as
Lot 604 on a plan entitled "Plan of Land in Mansfield, Mass. dated December 20,
1973, by Norwood Engineering Co., Inc., recorded with Bristol North District
Registry of Deeds in Book 144, Page 25, bounded and described as follows:
Northerly by Suffolk Road, 222.50 feet; Easterly by Lot 602 on said plan, 439.17
feet; Southerly by Lot 606 on said plan 272.50 feet; Westerly by Forbes
Boulevard, 389.17 feet; Northerly by Suffolk Road, by a curved line with a
radius of 50.00 feet, 78.54 feet. Containing, according to said Plan, 2 acres
and 32,018 square feet or 119,138 feet.
PARCEL 2
A certain parcel of land situated in the Interstate 95 Industrial Center at 495,
Mansfield, Bristol County, Massachusetts, shown as Lot 540 on a plan entitled
"Plan of Land in Mansfield and Foxboro, Massachusetts," dated November 13, 1975,
by Norwood Engineering Co., Inc., recorded with Bristol North District Registry
of Deeds in Plan Book 156, Pages 50 to 53, and with Norfolk Registry of Deeds as
Plan 887 of 1975 in Plan Book 251, bounded and described as follows: Westerly by
Forbes Boulevard, as shown on said plan, 295.45 feet; Northerly by land now or
formerly of Sun Chemical Corp., as shown on said plan, 280 feet; Easterly by
land now or formerly of Questor Corp., as shown on said plan, 345.45 feet;
Southerly by Suffolk Road, as shown on said plan, 230 feet; and Southwesterly by
the junction of Suffolk Road and Forbes Boulevard, as shown on said plan, 78.54
feet. Containing according to said plan, 96,189 square feet (2.21 acres) of
land.