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EXHIBIT 10(y)
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LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into as of the 30th day
of
November, 2007, by and between Roger G. Little, Trustee of
SPI-Trust, under a
declaration of trust, dated May 3, 1976, and recorded with
Middlesex South
District Registry of Deeds, Book 12970, Page 625, having a
mailing address at
One Patriots Park, Bedford, Massachusetts 01730 (the "Landlord")
and Spire
Corporation, a Massachusetts corporation, with an address at One
Patriots Park,
Bedford, Massachusetts 01730 (the "Tenant").
W I T N E S S E T H:
WHEREAS, Tenant wishes to lease the Premises (as herein defined)
from
Landlord; and
WHEREAS, Landlord wishes to lease the Premises to Tenant.
NOW THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, Landlord and
Tenant hereby enter
into this Lease Agreement upon the terms and conditions set
forth herein.
1. Lease of Premises. Subject to all of the provisions
herein
contained, and in consideration of the rentals to be paid to
Landlord by Tenant,
and the other covenants and agreements to be kept and performed
by Tenant
hereunder, as hereinafter set forth, Landlord hereby leases to
Tenant, and
Tenant hereby leases from Landlord, the entire building
consisting of
approximately 144,230 square feet (the "Premises") situated in
Bedford,
Middlesex County, Massachusetts, located on the real estate
owned by Landlord on
the Westerly side of Wiggins Avenue, known as Patriots Park (the
"Real Estate")
of which approximately 91,701 square feet are located on the
first floor of the
Premises (the "First Floor Space") and 52,529 square feet are
located on the
second floor of the Premises (the "Second Floor Space"). Subject
to Landlord's
rights hereunder, the Tenant shall have the exclusive right to
use all areas
within the Premises, including without limitation, stairs,
lobbies, elevators,
hallways, corridors, restrooms, cafeteria and entrances and
exits in the
Premises, and the right to use all access roads, driveways,
parking areas,
loading docks, sidewalks, landscaped areas, trash pick-up areas,
recreational
areas and other amenities which are located within the Real
Estate. Tenant
acknowledges that it has been in possession of the Premises
since December 1,
1985 (the "Original Occupancy Date") and accepts the same in "AS
IS, WHERE IS"
condition. Subject to applicable law, Tenant shall use the
Premises only for
general office, warehouse, research and development (including,
without
limitation, a so-called "clean room"), and light manufacturing
(the "Permitted
Uses") and for no other use or purpose unless mutually agreed
otherwise.
2. Term. The term of this Lease Agreement (the "Term") shall be
for a
period of five (5) years, beginning on the 1st day of December,
2007 (the
"Commencement Date") and, unless terminated as herein provided,
continuing until
expiration on the 30th day of November, 2012 (the "Term
Expiration Date").
Tenant shall have the right to extend the Term for one (1)
additional period of
five (5) years as set forth in Section 20 herein.
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3. Rent. For the use and occupancy of the Premises Tenant
hereby
covenants and agrees to pay to or for the account of Landlord as
rental
("Rental"), without demand, deduction or offset, the following
amounts:
(a) An annual fixed rental due and payable in advance in
monthly
installments as provided below ("Base Rental") at Landlord's
business premises
located at Patriots Park, Bedford, Massachusetts, on the first
day of each and
every calendar month during the Term (a prorated and
proportional rent shall be
due for any periods of less than a calendar month at the
commencement and
expiration of the Term), all without set off or deduction:
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Annual Base Rental Rate Annual Monthly
Lease Year (per square foot) Base Rental Base Rental
---------- ----------------------- ------------- -----------
1 $12.50 $1,802,785.00 $150,239.58
---------- ----------------------- ------------- -----------
2 $13.25 $1,911,047.50 $159,253.95
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3 $14.00 $2,019,220.00 $168,268.33
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4 $14.75 $2,127,392.50 $177,282.70
---------- ----------------------- ------------- -----------
5 $15.50 $2,235,565.00 $186,297.08
---------- ----------------------- ------------- -----------
(b) All real estate taxes, or taxes in the nature of real
estate
taxes, or taxes assessed in lieu of or in addition thereto
(except income taxes
of general application, inheritance, estate or like taxes)
including special and
general assessments, however the same may be designated, levied
or to be levied
by any taxing authority upon the Premises or Real Estate ("Real
Estate Taxes")
throughout the entire Term. Real Estate Taxes shall be paid by
Tenant directly
to such taxing authority upon receipt of the tax bill but in no
event later than
fifteen (15) days prior to the last date upon which such taxes
may be paid
without interest or penalty. If the first or last year of the
Term shall not be
co-extensive with the tax year the amount of taxes payable by
Tenant hereunder
for such years shall be prorated in proportion to the period of
effectiveness of
the Lease Agreement during such years. Tax receipts shall be
furnished to
Landlord by Tenant from time to time upon request to show
Tenant's compliance
herewith on a current basis. If requested by any first mortgagee
of the Real
Property, Tenant agrees to instead make monthly deposits to such
mortgagee on
account of such taxes in an amount reasonably estimated to be
sufficient to pay
such taxes when they become due, provided that such deposits are
maintained in a
separate account and any interest payable with respect thereto
shall be payable
to Tenant.
(c) All utilities, including, without limitation, costs of
electricity, gas, fuel, water and sewage services assessed
against the Premises
and Real Estate ("Utility Costs").
(d) All other costs and expenses of every kind with respect to
(i)
operation, maintenance, repair and replacement of the Premises
and Real Estate
(excluding Direct Landlord Costs (as defined in Section 6(b)
below))
("Operations Costs") and (ii) insurance of the Premises and Real
Estate
("Insurance Costs").
(e) Notwithstanding Tenant's obligations to pay Real Estate
Taxes (as
defined in Section 3(b) above), Utility Costs (as defined in
Section 3(c)
above), Operations Costs (as defined in Section 3(d) above) and
Insurance Costs
(as defined in Section 3(d) above) as set forth in this Section
3, Landlord
shall be solely responsible for the payment any Direct Landlord
Costs (as
defined in Section 6(b) below) and the performance of any
obligation associated
with such costs.
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4. Net Lease. It is the intention of the parties hereto that
this is
a net lease and that all costs of ownership, maintenance,
repair, replacement
and use of the Premises and the Real Estate shall be paid by
Tenant in addition
to the fixed rent specified above and other sums payable by
Tenant hereunder
(each of which shall be treated as Rental, for non-payment of
which Landlord
shall have all rights which Landlord would have for non-payment
of fixed rent
hereunder), provided, however, that Landlord shall be
responsible for
maintenance and repair of structural portions of the Premises in
accordance with
Section 6(b) hereof. Tenant shall pay to or on behalf of
Landlord, through the
term of this Lease Agreement, the rent and other payments
hereunder, free of any
charges, assessments, impositions or deductions of any kind, all
of which Tenant
shall pay or discharge, without abatement, deduction or set off,
and Landlord
shall not be required to make any payment of any kind whatsoever
hereunder
(whether due to circumstances now existing or beyond present
contemplation of
the parties), except as herein otherwise set forth. It is the
intention of the
parties hereto that the obligations of Tenant hereunder shall be
separate and
independent covenants and agreements; that the Rental payable by
Tenant to, or
on behalf of, Landlord shall continue to be payable in all
events except as
expressly provided hereunder; and that the obligations of Tenant
hereunder shall
continue unaffected, unless the requirement to pay or perform
the same shall
have been abated pursuant to an express provision of this Lease.
Tenant waives
all rights (i) to any abatement, suspension, deferment,
reduction, or deduction
of or from the Rental or (ii) to quit, terminate, or surrender
this Lease or the
Premises or any part thereof, except as expressly provided
herein. The rights of
the parties in the event of a casualty to the Premises shall be
governed by
Section 13 hereto.
5. Tenants Covenants. Tenant further covenants and agrees as
follows:
(a) Except as set forth in Section 6(b) below, to maintain
the
Premises and Real Estate including, without limitation, the
doors and windows
thereof in good repair, condition and order in accordance with
good maintenance
practices; and to yield peaceable possession to Landlord of the
Premises at
termination or expiration of this Lease Agreement free of all
tenants and
occupants in as good repair and condition as at occupancy by
Tenant or may be
put thereafter except for ordinary wear and tear.
(b) To comply fully with any applicable statutes, ordinances,
and
lawful regulations, rules or orders which are now or hereafter
in effect
pertaining to the Premises and the Real Estate, including,
without limitation,
the Americans with Disabilities Act, and to the activities
conducted thereon, to
comply with all applicable rules or conditions reasonably
imposed with respect
to the Premises by any insurance carrier, and to prevent the
existence of any
nuisance, or the violation of any statute, ordinance or valid
rule, order or
regulation with respect thereto and to save Landlord harmless
from any failure
to do so.
(c) To keep the Premises and improvements thereto and property
of
Tenant therein insured to the extent of replacement value,
against loss or
damage by fire, windstorm, hail, explosion and the other risks
included in
Causes of Loss - Special Form property insurance policies from
time to time,
subject, however to a "deductible" clause in the maximum amount
of $50,000 or
such other amount as Tenant shall reasonably request and
Landlord shall approve,
which approval shall not be unreasonably withheld or delayed;
all of such
policies shall name as insured Landlord, any first mortgagee to
the Premises and
Tenant, as their respective interests may appear and shall
provide that they may
not be cancelled without at least fifteen (15) days' prior
written notice to
Landlord. Tenant agrees to furnish Landlord with a certificate
by the insurer as
to the existence thereof, together with a copy of such policy.
Tenant may
procure such insurance under a so-called
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blanket policy insuring other locations of the Tenant, provided
however, that
such policy shall provide on its face that such portion of the
face amount as is
required by this Lease Agreement is payable with respect to
covered loss
relating to the Premises and is not affected by losses on other
premises.
(d) To the fullest extent permitted by law, to indemnify
Landlord
fully against and to save Landlord harmless from loss,
liability, costs,
expense, attorney's fees and court costs, arising directly or
indirectly from
any claim or lawsuit by any person, firm, corporation,
association or
governmental agency or authority whomsoever, including (but not
limited to)
Tenant's officers, agents, contractors, employees or invitees,
for damages
asserted or sustained to person or property by reason of any
activity conducted
by Tenant upon the Premises or the Real Estate, or of any breach
by Tenant, its
officers, agents, employees, or invitees of the terms,
provisions and conditions
of this Lease Agreement, or occurring upon the Premises or the
Real Estate,
regardless of the merit or lack of merit of any such claim or
lawsuit, of the
fault or lack of fault on the part of Landlord and regardless of
the amount of
insurance carried; and further, to procure and keep in force, at
Tenant's sole
expense, public liability insurance written on an occurrence
basis covering the
Premises, with combined single limits of at least $5,000,000.00
per occurrence,
and $5,000,000.00 annual aggregate, and of $l,250,000.00 for
property damage
naming Landlord and any mortgagee of the Premises as additional
insureds,
provided that if greater coverage limits are normally carried
under similar
circumstances, Tenant agrees to increase such coverage limits
appropriately.
(e) To use its best efforts to prevent the filing or imposition
of
any lien of any kind whatsoever upon or against the Premises
based upon or
arising out of Tenant's actions, except by Landlord or with
Landlord's prior
written consent and in the event of the filing or imposition of
any such lien,
to discharge same or to obtain a surety bond sufficient to
discharge same within
30 days following the date of any such filing or imposition.
(f) To permit Landlord to enter the Premises during normal
business
hours, subject to Tenant's reasonable security and
confidentiality requirements,
where such entry will not unreasonably disturb or interfere with
Tenant's use of
the Premises and the operation of Tenant's business, and at any
time in case of
emergency, to examine, inspect, or make repairs, replacements,
changes or
alterations as set out in this Lease Agreement, and to take such
steps as
Landlord may reasonably deem necessary for the safety,
improvement or
preservation of the Premises. Landlord shall give reasonable
notice to Tenant
prior to any such entry, except in the case of an emergency, but
no such entry
shall constitute an eviction or entitle Tenant to any abatement
of Rental.
(g) In the event that Tenant shall fail to perform any act
required
by the foregoing covenants and such failure shall continue for a
period of 30
days after notice thereof from Landlord, Landlord may (but shall
not be
obligated to do so) perform such act without waiving or
releasing Tenant from
any of its obligations with respect thereto. Landlord shall be
entitled to
recover from Tenant all sums paid or costs incurred in
performing such acts on
demand.
(h) To perform all maintenance, repairs and replacements
necessary to
keep in good condition and working order (a) the heating,
ventilating, air
conditioning, plumbing, security, electrical, life safety and
all other
mechanical systems and equipment serving the Premises, (b) the
trees, shrubs,
plants, landscaping, on the Real Estate or otherwise serving the
Premises, and
(c) the parking lot, driveways and walkways on the Real
Estate.
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<PAGE>
(i) To perform all clearance and removal of snow and ice from
the
parking areas, driveways and walkways of the Real Estate for
safe use of such
parking areas and safe access to the Premises by Tenant and its
employees,
agents, contractors and invitees.
6. Landlord's Covenants.
(a) Landlord hereby represents, warrants, covenants and agrees
as
follows that Landlord has good and marketable title to the Real
Property and the
Premises, and Landlord has full right and authority to lease the
Premises and to
carry out its obligation under this Lease Agreement.
(b) Landlord agrees to maintain all structural portions of
the
Premises including the foundation, roof, exterior walls,
structural members and
other supporting structures, in good repair, condition and
order; provided,
however, that Landlord's responsibility for repair and
maintenance of the roof
shall exclude responsibility for repair of (i) leaks occurring
by reason of roof
penetrating structures installed or constructed by Tenant, (ii)
isolated minor
leaks occurring on the portion of the roof which Landlord has
not installed a
new rubber membrane as required by this Section 6(b) properly
repaired by simple
patching procedures (as opposed to a leak or series of leaks
which properly
require replacement or restoration of all or any portion of a
roof), or (iii)
any repairs required by reason of the negligence or default of
Tenant, its
officers, agents, employees, and invitees except to the extent
that Landlord
shall be insured against the same and receive the proceeds of
such insurance and
Landlord's mortgagees shall not retain the proceeds of such
insurance. In
addition, no later than September 1, 2009, Landlord, at its sole
expense, shall:
(1) install a new rubber membrane roof on the two-story portion
of the Premises,
but Tenant shall be responsible for the removal and
re-installation of any
special equipment, including all costs with respect to such
removal and
re-installation, on such portion of the roof as is necessary or
desirable in
connection with the installation of the rubber membrane roof,
(2) upgrade and
repair the front entrance of the Building as mutually agreed
upon by Landlord
and Tenant, (3) upgrade and repair the landscaped areas between
the parking lots
serving the Building and the entrance of the Building as
mutually agreed upon by
Landlord and Tenant, including without limitation grind down or
remove exposed
tree stumps, plant new grass, remove and replace dead shrubs,
(4) repair or
replace those certain window sills and trims, which, as of the
date hereof, are
damaged or faulty. Except as expressly stated, any costs
incurred by Landlord in
performing the foregoing obligations shall be deemed a "Direct
Landlord Cost".
Any exclusions from Landlord's maintenance obligation above
shall be Tenant's
responsibility. Landlord is not obligated to provide or perform
any service,
maintenance, repair, or replacement with respect to the Premises
or the Real
Estate except as set forth in this Section 6(b). In performance
of its
obligations set forth in this Section 6(b), Landlord shall use
commercially
reasonable efforts to perform such work in a manner and at such
times as shall
minimize disruption of Tenant's business operations in the
Premises.
(c) To give Tenant prompt notice of the name and mailing address
of
any mortgagee or holder of a first mortgage lien with respect to
the Premises
and of any change therein.
7. Subletting. Subject to all of the provisions of this
Lease
Agreement, Tenant shall not sublet, license, or permit the use
or occupancy of,
all or any portion of the Premises without the prior written
consent of the
Landlord, which consent, shall not be unreasonably withheld,
conditioned or
delayed. Tenant shall have no right to assign this Lease
Agreement nor any of
its rights hereunder, nor may same be assigned or pass to
another by operation
of law, and any attempt to so assign, without the express prior
consent of
Landlord, shall be utterly void. If Tenant desires to effectuate
a sublease,
Tenant shall deliver a notice to Landlord, which shall include
(i) the
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commencement date and termination date of such sublease and the
rent per square
foot, (ii) a true and complete statement reasonably detailing
the identity of
the proposed sublessee, the nature of its business and its
proposed use of the
Premises, (iii) current financial information with respect to
the sublessee,
including its most recent financial statements, and (iv) the
form of agreement
by which the sublease will be effected. Landlord shall be
entitled to fifty
percent (50%) of any consideration payable under the sublease
which exceeds the
Base Rental (pro rated on a per square foot basis for the
portion of the
Premises subject to such sublease) accruing hereunder during the
term of the
sublease after first deducting the monthly amortized costs
incurred by Tenant to
prepare the subleased premises for occupancy by such subtenant
and the amount of
the reasonable out-of-pocket brokerage and attorneys' fees
incurred by Tenant in
connection with such sublease. The sums payable under this
Section shall be paid
by Tenant to Landlord monthly as and when paid from the
subtenant to Tenant. The
obligation to obtain Landlord's prior consent and Landlord's
right to share in
profit shall not apply to (i) transactions with a business
entity, into or with
which Tenant is merged or consolidated, or to which all or
substantially all of
Tenant's assets are transferred, so long as (A) such transfer
was made for a
legitimate independent business purpose and not primarily for
the purpose of
transferring this Lease; (B) the successor to Tenant has a net
worth computed in
accordance with generally accepted accounting principles at
least equal to the
net worth of Tenant immediately prior to such merger,
consolidation or transfer;
and (C) proof satisfactory to Landlord of such net worth is
delivered to
Landlord at least ten (10) days prior to the effective date of
any such
transaction. Landlord's consent to any sublease shall not
relieve Tenant from
the obligation to obtain Landlord's consent to any further
sublease.
Notwithstanding any sublease or assignment, Tenant shall remain
fully liable for
the payment of all Rental and for the performance of all the
terms, covenants
and conditions contained in this Lease on Tenant's part to be
observed and
performed, and any default under any term, covenant or condition
of this Lease
by any sublessee or assignee shall be deemed to be a default
under this Lease by
Tenant.
8. Signs. Tenant shall be entitled to erect reasonable ground
and
building signs, subject to approval of Landlord, which shall not
be unreasonably
withheld, provided, however, Tenant's signs that are presently
existing and/or
installed on the Premises or Real Estate are hereby deemed
approved by Landlord.
All signs installed by Tenant shall comply with all requirements
of appropriate
governmental authorities, and all necessary permits or licenses
shall be
obtained by Tenant. Tenant shall maintain all signs in good
condition and repair
at all times, and shall save Landlord harmless form injury to
person or
property, arising from the erection and maintenance of said
signs. Upon vacating
the Premises, Tenant shall remove all signs and repair all
damage caused by such
removal.
9. Alterations and Improvements by Tenant.
(a) Tenant shall have the right during the continuance of this
Lease
Agreement to make such non-structural alterations, changes and
improvements to
the Premises as may be proper and necessary for the conduct of
Tenant's business
and for the full beneficial use of the Premises. Tenant shall
not make any
structural change in the Premises, alterations or additions to
the exterior of
the Premises (unless such alterations or additions are cosmetic
in nature), or
penetrations of the roof (except in connection with the
re-installation of
Tenant's equipment pursuant to Section 6(b) hereof, without
first having
obtained Landlord's written consent thereto, which consent may
be withheld in
Landlord's sole discretion. Without limitation, Landlord may
condition any such
consent by reserving the right to require the Premises to be
restored to the
same condition they were in prior to the making of any such
structural or
exterior change. Tenant shall pay all costs and expenses of such
alterations,
changes, and improvements, shall make the same in a good and
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workmanlike manner, and in accordance with all applicable laws,
codes, and
building regulations, and shall, prior to the making of such
alterations,
changes, and improvements, assure Landlord, in form satisfactory
to Landlord,
that payment for the same will be made by Tenant. Tenant hereby
completely and
fully indemnifies Landlord against any Mechanic's Liens or other
liens or claims
in connection with the making
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