Exhibit 10.15
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (this "AMENDMENT") is entered into as of the
24th day of July, 2000, by and between BCIA NEW ENGLAND HOLDINGS LLC, a Delaware
limited liability company with an address of Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000 ("LANDLORD") and PRI AUTOMATION, INC., a Massachusetts
corporation, formerly known as Precision Robots, Inc., with an address of 000
Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("TENANT").
RECITALS
A. Landlord is the owner of certain real property located and known as 000
Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "LOT") and the
building thereon (the "BUILDING") (the Lot, together with the Building
and all other improvements thereon, are hereinafter collectively
referred to as the "PREMISES");
B. Reference is made to that certain lease dated as of May 5, 1994 entered
into between The Prudential Insurance Company of America, as
predecessor in interest to Landlord, as landlord (the "ORIGINAL
Landlord"), and Precision Robots, Inc., as tenant, with respect to the
Premises;
C. Landlord is the current owner of the Premises and the current holder of
the landlord's interest under the Lease, and Tenant is the current
holder of the tenant's interest under the Lease;
D. Pursuant to the Lease, Tenant has been, and is now, in occupancy of the
Premises;
E. Pursuant to the Lease, the term thereof is set to expire on July 31,
2001;
F. Landlord and Tenant desire to amend the Lease in order to, among other
things, extend the term of the Lease upon the terms and conditions set
forth herein;
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby mutually acknowledged, Landlord and Tenant hereby agree as
follows:
AGREEMENTS
1. CAPITALIZED TERMS. Each capitalized term appearing but not
defined herein shall have the meaning, if any, ascribed to
such term in the Lease.
2. RECITALS. The recitals above set forth are true and complete
and are incorporated herein by reference.
3. AMENDMENTS. As of the date hereof, the Lease is amended as
follows:
a. LANDLORD. Throughout the Lease, the words "The
Prudential Insurance Company of America" are hereby
deleted and the words "BCIA New England Holdings LLC,
a Delaware limited liability company" are hereby
inserted in lieu thereof.
b. TENANT. Throughout the Lease, the words "Precision
Robots, Inc." are hereby deleted and the words "PRI
Automation, Inc., a Massachusetts corporation" are
hereby inserted in lieu thereof.
c. REFERENCE DATA. In Exhibit 1 to the Lease (REFERENCE
DATA):
(i) In the section thereof in which the term
"Premises" is defined, the words "consisting
of 122,342 square feet (SF)" are hereby
deleted and the words "agreed to contain
122,342 square feet (SF)" are hereby
inserted in lieu thereof.
(ii) In the section thereof in which the term
"Term" is defined, the words "Seven (7)
years" are hereby deleted and the words
"Seventeen (17) years" are hereby inserted
in lieu thereof.
(iii) In the section thereof in which the term
"Rent" is defined, the following language is
hereby inserted at the end thereof:
"Year 8 $19.50 per SF Net, Net, Net, $2,385,669 per year; $198,805.75 per month
Year 9 $19.50 per SF Net, Net, Net, $2,385,669 per year; $198,805.75 per month
Year 10 $19.50 per SF Net, Net, Net, $2,385,669 per year; $198,805.75 per month
Year 11 $19.50 per SF Net, Net, Net, $2,385,669 per year; $198,805.75 per month
Year 12 $19.50 per SF Net, Net, Net, $2,385,669 per year; $198,805.75 per month
Year 13 $23.50 per SF Net, Net, Net, $2,875,037 per year; $239,586.42 per month
Year 14 $23.50 per SF Net, Net, Net, $2,875,037 per year; $239,586.42 per month
Year 15 $23.50 per SF Net, Net, Net, $2,875,037 per year; $239,586.42 per month
Year 16 $23.50 per SF Net, Net, Net, $2,875,037 per year; $239,586.42 per month
Year 17 $23.50 per SF Net, Net, Net, $2,875,037 per year; $239,586.42 per month"
d. EXPIRATION DATE. In ARTICLE I of the Lease (TERM), in
the third (3rd) line of the first (1st) paragraph
thereof, the date "July 31, 2001" is hereby deleted
and the date "July 31, 2011" is hereby inserted in
lieu thereof.
e. TAXES. In ARTICLE II of the Lease (PAYMENT OF RENT),
in Section 2.2 thereof (Taxes), the second and third
sentences thereof are hereby
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deleted effective as of August 1, 2000 and the
following sentences are hereby inserted in place
thereof as of such date:
"Estimated payments by Tenant on account of Taxes
shall be made on the first day of each and every
calendar month during the Term of this Lease, in the
fashion herein provided for the payment of fixed
rent. The monthly amount so to be paid to Landlord
shall be sufficient to provide Landlord by the time
real estate tax payments are due with a sum equal to
Tenant's required payment, as reasonably estimated by
Landlord from time to time, on account of Taxes for
the then current Tax Year as hereinafter defined.
"Tax Year" shall mean a twelve (12) month period
commencing on July 1 and falling wholly or partially
within the Term. Once annually, Landlord shall advise
Tenant of the amount of the tax bills for the prior
Tax Year and the computation of Tenant's payment on
account thereof. If estimated payments theretofore
made by Tenant for the Tax Year covered by such bills
exceed the required payment on account thereof for
such Tax Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant
on account of Taxes (or promptly refund such
overpayment if the Term of this Lease has ended and
Tenant has no further obligation to Landlord); but if
the required payments on account thereof for such Tax
Year are greater than estimated payments theretofore
made on account thereof for such Tax Year, Tenant
shall pay the difference to Landlord as additional
rent within thirty (30) days after being so advised
by Landlord in writing, and the obligation to make
such payment for any period within the Term shall
survive the expiration or earlier termination of the
Term."
f. INSURANCE. In ARTICLE II of the Lease (PAYMENT OF
RENT), in Section 2.2.3 thereof (Insurance), the
following shall be added to the end of the first
sentence thereof:
"; provided, however, that from and after August 1,
2000, Tenant shall provide Comprehensive Liability
Insurance indemnifying Landlord and Tenant against
all claims and demands for any injury to person or
property which may be claimed to have occurred on the
Premises or at the Property as follows: $5,000,000.00
per occurrence/$10,000,000.00 aggregate (combined
single limit) for property damage, bodily injury or
death."
g. UTILITIES. Section 2.3 of the Lease is hereby deleted
and the following is hereby inserted in its place:
"2.3 UTILITIES Tenant agrees to pay directly to the
utility companies providing utilities to the Premises
all charges for utilities consumed at the Premises,
including without limitation, gas, electricity, and
water and sewer charges."
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h. ADDITIONAL COVENANTS. In ARTICLE III of the Lease
(ADDITIONAL COVENANTS OF TENANT):
(i) In Section 3.1.2 thereof, (A) the first
sentence thereof is hereby amended to insert
the words: "the roof and" before the word
"both", (B) in the fourth sentence thereof,
the phrase "make all repairs to the
Building" is hereby replaced by the phrase:
"make all repairs and replacements to the
Premises except the Landlord's Repair
Obligations, as defined below," and (C) the
last sentence thereof is hereby deleted and
replaced with the following:
"Notwithstanding anything to the contrary
herein contained, except as otherwise
provided in this Lease, Landlord agrees to
perform the following ("Landlord's Repair
Obligations"): (a) to keep in good order,
condition and repair the Structure, as
defined below, of the Building and (b) to
replace the roof of the Building and the
HVAC system of the Building when and if
required in Landlord's sole reasonable
judgment. If, during the Term of this Lease,
Landlord shall make a capital expenditure
for replacement of the HVAC system of the
Building, then, (1) to the extent that any
individual capital expenditure for such
purpose shall be less than $25,000.00 or any
set of capital expenditures for such purpose
shall be less than $50,000.00 in any
calendar year, Tenant shall pay to Landlord
the amount thereof as additional rent
hereunder within thirty (30) days of written
notice thereof and (2) to the extent that
any individual capital expenditure for such
purpose shall exceed $25,000.00 or any set
of capital expenditures for such purpose
shall exceed $50,000.00 in any calendar
year, Tenant shall pay to Landlord as
additional rent hereunder, in equal monthly
installments for the remainder of the Term,
from and after the date of such
expenditure(s), an amount for each such
calendar year equal to the annual charge-off
of such capital expenditure. Annual
charge-off shall be determined by dividing
the original capital expenditure or
expenditures PLUS an interest factor,
reasonably determined by Landlord, as being
the greater of (a) the per annum interest
rate then being charged for long-term
mortgages by institutional lenders on like
properties within the locality in which the
Property is located or (b) twelve percent
(12%) per annum, by the number of years of
useful life of the capital expenditure or
expenditures; and the useful life shall be
determined reasonably by Landlord in
accordance with generally accepted
accounting principles and practices in
effect at the time of making such
expenditure or expenditures. As used herein
the term "Structure" means the load bearing
portions of the walls, columns, beams,
concrete slab, footings, and structural
beams of the roof, in each case necessary to
preserve the load bearing capacity thereof,
and the outer facade of the outer walls
(specifically excluding all windows, window
casings, glass, and doors)."
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(ii) The following is hereby inserted at the end
of Section 3.3:
"If Tenant assigns this Lease or sublets or
otherwise permits occupancy of the Premises
or any portion thereof and Landlord consents
to the same, Tenant shall pay to Landlord as
additional rent, fifty percent (50%) of the
amount, if any, by which (a) any and all
compensation received by Tenant as a result
of such assignment or sublease, or other
occupancy, net of reasonable expenses
actually incurred by Tenant in connection
with such assignment or sublease or other
occupancy (with fit-up costs and brokerage
fees being amortized without interest over
the remaining Term (or, with respect to
fit-up costs, the useful life thereof, if
greater than the remaining Term) and with
such amortization and such excess payments
being recalculated upon any extension or
renewal of the Term hereof) exceeds (b) in
the case of an assignment, the Rent under
this Lease, and in the case of a sublease or
other occupancy, the portion of the Rent
allocable to the portion of the Premises
subject to such subletting or other
occupancy. Such payments shall be made on
the date the corresponding payments under
this Lease are due."
i. RIGHTS OF MORTGAGEES. In ARTICLE VII of the
Lease (MISCELLANEOUS), Section 7.2 thereof
is hereby amended and restated to read in
its entirety as follows:
7.2 RIGHTS OF MORTGAGEES.
7.2.1 GENERAL. Provided Tenant receives a fully-executed
original of the SNDA, as defined below, or a similar
instrument reasonably acceptable to Tenant, this
Lease shall be subject and subordinate to the lien
and terms of any mortgage, deed of trust or ground
lease or similar encumbrance (collectively, a
"Mortgage", and the holder thereof from time to time
the "Holder") from time to time encumbering the
Premises, whether executed and delivered prior to or
subsequent to the date of this Lease; provided,
however, that the Holder may at any time elect to
subordinate the lien and terms of any such Mortgage
to this Lease. If this Lease is subordinate to any
Mortgage and the Holder or any other party shall
succeed to the interest of Landlord pursuant to the
Mortgage (such Holder or other party, a "Successor"),
Tenant shall attorn to the Holder or Successor and
this Lease shall continue in full force and effect
between the Holder or Successor and Tenant. Tenant
agrees to execute such instruments of subordination
or attornment in confirmation of the foregoing
agreement as the Holder or Successor reasonably may
request. With respect to each Mortgage encumbering
the Premises from time to time during the Term,
Tenant agrees to execute a subordination,
non-disturbance and attornment agreement ("SNDA") in
substantially the form attached hereto as EXHIBIT C,
and Landlord shall cause the current Holder of
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the current Mortgage, and make reasonable efforts to
cause any future Holder of any future Mortgage, to
execute same, and upon any such execution Landlord
shall deliver such executed SNDA to Tenant.
7.2.2 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. With
reference to any assignment by Landlord of Landlord's
interest in this Lease, or the rents payable
hereunder, conditional in nature or otherwise, which
assignment is made to the Holder of a Mortgage on
property which includes the Premises, Tenant agrees
that the execution thereof by Landlord, and the
acceptance thereof by the Holder of such Mortgage
shall never be treated as an assumption by such
Holder of any of the obligations of Landlord
hereunder unless such Holder shall, by notice sent to
Tenant, specifically otherwise elect and, except as
aforesaid, such Holder shall be treated as having
assumed Landlord's obligations hereunder only upon
foreclosure of such Holder's Mortgage and the taking
of possession of the Premises.
(a) In no event shall the acquisition of
Landlord's interest in the Premises by a
purchaser which, simultaneously therewith,
leases Landlord's entire interest in the
Premises back to the seller thereof be
treated as an assumption by operation of law
or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to
such seller-lessee, and its successors from
time to time in title, for performance of
Landlord's obligations hereunder. In any
such event, this Lease shall be subject and
subordinate to the lease to such purchaser.
For all purposes, such seller-lessee, and
its successors in title, shall be the
Landlord hereunder unless and until
Landlord's position shall have been assumed
by such purchaser-lessor. Landlord shall,
however, make reasonable efforts to cause
such purchaser-lessor to execute an SNDA
with Tenant substantially in the form of
EXHIBIT C hereto, and upon any such
execution Landlord shall deliver such
executed SNDA to Tenant.
(b) Except as provided in subsection (a) above,
in the event of any transfer of title to the
Premises by Landlord, Landlord shall
thereafter be entirely freed and relieved
from the performance and observance of all
covenants and obligations hereunder which
accrue after the date of such transfer.
7.2.3 NOTICE TO MORTGAGEE. After receiving written notice
from Landlord of any Holder of a Mortgage which
includes the Premises, no
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notice from Tenant to Landlord alleging any default
by Landlord shall be effective unless and until a
copy of the same is given to such Holder (provided
Tenant shall have been furnished with the name and
address of such Holder), and the curing of any of
Landlord's defaults by such Holder shall be treated
as performance by Landlord.
j. TENANT'S PREPARATION OF PREMISES. In ARTICLE VIII of the Lease
(LEASEHOLD IMPROVEMENTS):
(i) In the last paragraph of Section 8.1 of the Lease
(Landlord's Work), the $75,000 payment thereunder
shall only be due and payable by Tenant if (a) Tenant
is in default under the Lease beyond all applicable
notice and cure periods, if any, and (b) Landlord
exercises any of its remedies as set forth in Article
V.
(ii) Section 8.2 (Tenant's Preparation of the Premises) is
hereby amended to insert the following language at
the end of the first paragraph thereof: "The
foregoing provisions of this Section 8.2 shall be
applicable to Tenant's initial fit up of the Premises
at the commencement of the Term. Commencing on August
1, 2000, Landlord shall provide Tenant with a second
leasehold improvement allowance (the "Second
Leasehold Improvement Allowance") of an amount not to
exceed $428,197.00 in the aggregate for painting,
carpeting, reconfiguring architecture, engineering
and other costs within thirty (30) days of
presentation of invoices to Landlord in reasonable
detail. Any of the Second Leasehold Improvement
Allowance for which disbursement requests have not
been made by December 31, 2001 shall be forfeited by
Tenant and Landlord shall have no further obligation
with respect thereto.
(iii) The following is hereby inserted into the Lease as a
new Section 8.5:
"8.5 (Minor Alterations)
Notwithstanding any provision of this Lease to the
contrary, without the consent of Landlord, Tenant
shall have the right to make alterations to the
interior of the Building so long as (a) the cost of
the same does not exceed $25,000 in any calendar
year, (b) the same does not adversely affect any
building system or the Structure of the Building."
(iv) The following is hereby inserted as a new Section
8.6:
"8.6 (Reseal/Restripe)
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Landlord agrees to use reasonable efforts to reseal
and restripe the Parking Lot adjoining the Building
on or before December 31, 2000 or if Landlord is
unable to do so, then as soon thereafter as is
reasonably practicable."
k. NOTICES. ARTICLE IX of the Lease (NOTICES) is hereby amended
as follows:
(1) to change the provision for notice to Landlord to the
following: "All notices for Landlord shall be
addressed to Landlord c/o Boston Capital
Institutional Advisors LLC, Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000, Attn: Xxxx X. Xxxxxx,
Managing Director, with a copy to Xxxxxxx X. Xxxxx,
Esq., Peabody & Xxxxxx LLP, 00 Xxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other place as may be
designated in written notice to Tenant"; and
(2) to delete the last sentence thereof and insert the
following in its place: "Unless otherwise directed in
writing, all rents shall be payable to Landlord x/x
Xxxxx Xxxx Xxx, Xxxxxx Xxxxxxx, Xxx 00000, 00
Xxxxxxx'x Xxxxx, Xxxxxxxx, XX 00000 or at such other
place as Landlord shall from time to time designate
by notice to Tenant."
l. OPTION TO EXTEND. The following language is hereby inserted
into the Lease as Article XIII:
"ARTICLE XIII
OPTION TO EXTEND
13.1 Provided that Tenant is not then in default hereunder beyond
applicable cure periods, if any, Tenant shall have the option
(the "Extension Option") to extend the Term of this Lease for
an additional period of five (5) years commencing on August 1,
2011 and expiring on July 31, 2016 (the "Extension Term"). The
Extension Option may be exercised by Tenant delivering to
Landlord written notice thereof (the "Tenant Extension
Notice") not earlier than February 1, 2010 and not later than
July 31, 2010. The Extension Term shall be upon all of the
same terms, covenants and conditions of this Lease as are in
effect upon Tenant's exercise of such Extension Option, except
(i) as to Annual Fixed Rent, which shall be determined as set
forth below, and (ii) that Tenant shall have no further
extension rights unless otherwise agreed to in writing by
Landlord.
Notwithstanding any provision herein to the contrary,
the Extension Option shall be null and void upon the
occurrence of any of the following events: (i) Tenant's
failure to exercise the Extension Option within the
aforementioned time period in accordance with the provisions
set forth herein, or (ii) Tenant assigning its interest in
this Lease, or (iii)
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Tenant at the time of such exercise having subleases in effect
which total more than 25% of the square footage in the
Building.
13.2 If Tenant exercises the Extension Option as provided in
Section 13.1 above, then the annual fixed rental (Rent), as
described in Section 2.1 of this Lease and in Exhibit 1 to
this Lease, for the Extension Term shall be the greater of (i)
$2,875,037 or (ii) the Fair Market Rent. As used herein, the
term "Fair Market Rent" means the Annual Fixed Rent as
determined: (i) by agreement between Landlord and Tenant,
negotiating in good faith, no later than thirty (30) days
after Tenant's timely exercise of the Extension Option, or
(ii) if Landlord and Tenant shall not have agreed upon the
Fair Market Rent by said date as aforesaid (an "Impasse"),
then Fair Market Rent for the Extension Term shall be fixed by
means of an Appraisers' Determination as defined below.
13.3 The term "Appraisers' Determination" refers to the following
procedures and requirements:
If an Impasse, as defined in Section 13.2 of this Lease,
occurs, then, for the purpose of fixing the Fair Market Rent
for the Extension Term, Landlord and Tenant shall agree upon
an appraiser who shall be a member of the M.A.I. or Counselors
of Real Estate (CRE) (or successor professional organizations)
and shall have at least ten (10) years experience appraising
rental values of comparable properties in the greater Boston
market area.
If Landlord and Tenant are not able to agree upon an appraiser
by the date which is ten (10) days after such an Impasse (the
"Appraiser Selection Deadline"), each of Landlord and Tenant
shall, within ten (10) additional days, that is, by the date
which is twenty (20) days after an Impasse, select an
appraiser with the foregoing qualifications whereupon each of
said appraisers shall, within five (5) days of their selection
hereunder, select a third appraiser with the foregoing
qualifications. The Fair Market Rent for the Extension Term
shall thereafter be determined to be the amount equal to the
average of the two appraisals which are closest in dollar
amount to each other except that if all three appraisals are
apart in equal amounts, then the appraisal which falls in the
middle shall be the Fair Market Rent for the Extension Term.
If either party fails to select an appraiser by the Appraiser
Selection Deadline, then the appraiser selected by the other
party, if selected by the Appraiser Selection Deadline, shall
be the sole appraiser. Landlord and Tenant shall share equally
the expense of any and all appraisers. The appraiser(s) shall
be obligated to make a determination of Fair Market Rent
within thirty (30) days of the appointment of either the
single appraiser (if only one) and within thirty (30) days of
the appointment of the third appraiser (if three are so
appointed). In determining the Fair Market Rent for the
Extension Term, the appraisers shall consider, among other
things, the then current arms length basic rent
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being charged to tenants for comparable properties in the
greater Boston market area. The appraisers shall not have the
right to modify any provision of this Lease and shall only
determine the Fair Market Rent which shall constitute the
annual fixed rent (Rent) under this Lease for the Extension
Term.
m. EXHIBIT C attached to this Amendment is hereby inserted into
the Lease as EXHIBIT C thereto.
4. BROKERS. Landlord and Tenant each represent that there are no brokers
involved with respect to this Amendment other than Xxxxxxxx & Grew
Incorporated and Xxxxxxxxx & Xxxx/Colliers and each party agrees to
indemnify, defend and hold harmless the other with respect to any other
broker in connection herewith. Landlord shall be responsible for any
commission due to Xxxxxxxx & Grew Incorporated and Xxxxxxxxx &
Xxxx/Colliers with respect to the transaction contemplated by this
Amendment.
5. EFFECTIVE DATE. The parties agree that this Amendment shall be
effective from and after the date hereof and not to any period of time
prior thereto. To the extent this Amendment contains language which
purports to amend the Lease with respect to periods of time prior to
the date hereof, such language is for clarification purposes only and
shall not be deemed to change the obligations of the parties with
respect thereto. In no event shall this Amendment be construed to
impose any liability on Landlord for any period of time preceding its
ownership of the Premises.
6. RATIFICATION OF LEASE PROVISIONS. Except as otherwise expressly
amended, modified and provided for in this Amendment, Tenant hereby
ratifies all of the provisions, covenants and conditions of the Lease,
and such provisions, covenants and conditions shall be deemed to be
incorporated herein and made a part hereof and shall continue in full
force and effect.
7. ENTIRE AMENDMENT. This Amendment contains all the agreements of the
parties with respect to the subject matter hereof and supersedes all
prior dealings between the parties with respect to such subject matter.
8. BINDING AMENDMENT. This Amendment shall be binding upon, and shall
inure to the benefit of the parties hereto, and their respective
successors and assigns.
9. GOVERNING LAW. This Amendment shall be governed by the law of the state
in which the Premises is located and the parties hereby submit to the
jurisdiction of such state.
10. SEVERABILITY. If any clause or provision of this Amendment is or should
ever be held to be illegal, invalid or unenforceable under any present
or future law applicable to the terms hereof, then and in that event,
it is the intention of the parties hereto that the remainder of this
Amendment shall not be affected thereby, and that in lieu of each such
clause or provision of this Amendment that is illegal, invalid or
unenforceable, such clause or provision shall be judicially construed
and interpreted to be as similar in substance and content to such
illegal,
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invalid or unenforceable clause or provision, as the context thereof
would reasonably suggest, so as to thereafter be legal, valid and
enforceable.
11. NO RESERVATION. Submission of this Amendment for examination or
signature is without prejudice and does not constitute a reservation,
option or offer, and this Amendment shall not be effective until
execution and delivery by all parties.
12. COUNTERPARTS. This Amendment may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
[The Remainder of this Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the date and year first above written.
LANDLORD:
BCIA NEW ENGLAND HOLDINGS LLC, a Delaware
limited liability company
By: BCIA NEW ENGLAND HOLDINGS MASTER LLC, a
Delaware limited liability company,
its Manager
By: BCIA NEW ENGLAND HOLDINGS MANAGER LLC,
a Delaware limited liability company,
its Manager
By: BCIA NEW ENGLAND HOLDINGS MANAGER
CORP., a Delaware corporation,
its Manager
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: EVP
TENANT:
PRI AUTOMATION, INC.,
a Massachusetts corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP & CFO
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EXHIBIT C
Form of Subordination, Non-Disturbance and Attornment Agreement
THIS AGREEMENT is made and entered into as of the _____ day of ____________,
_____ by and between THE CHASE MANHATTAN BANK, as Trustee under that certain
Pooling and Servicing Agreement dated as of November 1, 1999 for
Certificateholders of the Office Finance Corp Commercial Mortgage Pass-Through
Certificates Series 1999-FL1 ("MORTGAGEE"), and Power-One, Inc., a Delaware
corporation ("LESSEE").
R E C I T A L S:
A. Mortgagee has made a loan (the "LOAN") to BCIA New England Holdings
LLC, a Delaware limited liability company ("BORROWER"), secured by the
Borrower's interest in the real property known and numbered 000 Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, and more particularly described in EXHIBIT A
attached hereto and incorporated herein by reference (said real property and
improvements being herein called the "PROJECT"), such Loan being secured by a
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing
dated _________________ (the "MORTGAGE"), and recorded with the
______________Registry of Deeds in Book ____, Page ___, which Mortgage
constitutes a lien or encumbrance on the Project; and
B. Lessee is the holder of a leasehold estate in and to the Project
(the "DEMISED PREMISES"), under that Lease Agreement (the "LEASE") dated
_______________, 2000, executed by Borrower, as Landlord (Borrower being
sometimes hereinafter called "LESSOR"), and Lessee, as Tenant; and
C. Lessee and Mortgagee desire to confirm their understandings with
respect to the Lease and the Mortgage.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, Lessee and Mortgagee agree and
covenant as follows:
1. NON-DISTURBANCE. Mortgagee agrees that it will not disturb
the possession of Lessee under the Lease upon any judicial or non-judicial
foreclosure of the Mortgage or upon acquiring title to the Project by
deed-in-lieu of foreclosure, or otherwise, if the Lease is in full force and
effect and Lessee is not then in default under the Lease, and that Mortgagee
will accept the attornment of Lessee thereafter so long as Lessee is not in
default under the Lease.
2. ATTORNMENT. If the interests of Lessor in and to the
Demised Premises are owned by Mortgagee by reason of any deed-in-lieu of
foreclosure, judicial foreclosure, sale pursuant to any power of sale or other
proceedings brought by it or by any other manner, including, but not limited to,
Mortgagee's exercise of its rights under any assignment of leases and rents, and
Mortgagee succeeds to the interest of Lessor under the Lease, Lessee shall be
bound to Mortgagee under all of the terms, covenants and conditions of the Lease
for the balance of the term thereof remaining and any extension thereof duly
exercised by Lessee with the same
13
force and effect as if Mortgagee were the Lessor under the Lease; and Lessee
does hereby attorn to Mortgagee, as its lessor, said attornment to be effective
and self-operative, without the execution of any further instruments on the part
of any of the parties hereto, immediately upon Mortgagee's succeeding to the
interest of Lessor under the Lease; provided, however, that Lessee shall be
under no obligation to pay rent to Mortgagee until Lessee receives written
notice from Mortgagee that Mortgagee has succeeded to the interest of the Lessor
under the Lease or otherwise has the right to receive such rents. The respective
rights and obligations of Lessee and Mortgagee upon such attornment, to the
extent of the then remaining balance of the term of the Lease, shall be and are
the same as now set forth therein, it being the intention of the parties hereto
for this purpose to incorporate the Lease in this Agreement by reference, with
the same force and effect as if set forth in full herein.
3. MORTGAGEE'S OBLIGATIONS. If Mortgagee shall succeed to the
interest of Lessor under the Lease, Mortgagee, subject to the last sentence of
this Paragraph 3, shall be bound to Lessee under all of the terms, covenants and
conditions of the Lease; provided, however, that Mortgagee shall not be:
(a) Liable for any act or omission of any prior
lessor (including Lessor); or
(b) Subject to the offsets or defenses which Lessee
might have against any prior lessor (including Lessor); or
(c) Bound by any rent or additional rent or advance
rent which Lessee might have paid for more than the current month to
any prior lessor (including Lessor), and all such rent shall remain due
and owing, notwithstanding such advance payment; or
(d) Bound by any security or advance rental deposit
made by Lessee which is not delivered or paid over to Mortgagee and
with respect to which Lessee shall look solely to Lessor for refund or
reimbursement;
(e) Bound by any termination, amendment or
modification of the Lease made without its consent and written
approval;
(f) Liable under any warranty of construction
contained in the Lease or any implied warranty of construction; or
(g) Liable for the performance or completion of any
construction obligations under the Lease or for any loan or
contribution or rent concession towards construction of the Demised
Premises pursuant to the Lease.
Neither THE CHASE MANHATTAN BANK, as Trustee under that certain Pooling and
Servicing Agreement dated as of November 1, 1999 for Certificateholders of the
Office Finance Corp Commercial Mortgage Pass-Through Certificates Series
1999-FL1, nor any other party who from time to time shall be included in the
definition of Mortgagee hereunder, shall have any liability or responsibility
under or pursuant to the terms of this Agreement after it ceases to own an
interest in the Project. Nothing in this Agreement shall be construed to require
Mortgagee to see to the application of the proceeds of the Loan, and Lessee's
agreements set forth herein shall
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not be impaired on account of any modification of the documents evidencing and
securing the Loan. Lessee acknowledges that Mortgagee is obligated only to
Borrower to make the Loan only upon the terms and subject to the conditions set
forth in the Loan Agreement between Mortgagee and Borrower pertaining to the
Loan. In no event shall Mortgagee or any purchaser of the Project at foreclosure
sale or any grantee of the Project named in a deed-in-lieu of foreclosure, nor
any heir, legal representative, successor, or assignee of Mortgagee or any such
purchaser or grantee (collectively the Mortgagee, such purchaser, grantee, heir,
legal representative, successor or assignee, the "SUBSEQUENT LANDLORD") have any
personal liability for the obligations of Lessor under the Lease and should the
Subsequent Landlord succeed to the interests of the Lessor under the Lease,
Tenant shall look only to the estate and property of any such Subsequent
Landlord in the Project for the satisfaction of Tenant's remedies for the
collection of a judgment (or other judicial process) requiring the payment of
money in the event of any default by any Subsequent Landlord as landlord under
the Lease, and no other property or assets of any Subsequent Landlord shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to the Lease; provided, however, that
the Lessee may exercise any other right or remedy provided thereby or by law in
the event of any failure by Lessor to perform any such material obligation.
4. SUBORDINATION. The Lease and all rights of Lessee
thereunder are subject and subordinate to the lien and the terms of the Mortgage
and to any deeds of trust, mortgages, ground leases or other instruments of
security which do now or may hereafter cover the Project or any interest of
Lessor therein (collectively, the "PRIOR ENCUMBRANCES") and to any and all
advances made on the security thereof and to any and all increases, renewals,
modifications, consolidations, replacements and extensions of the Mortgage or of
any of the Prior Encumbrances. This provision is acknowledged by Lessee to be
self-operative and no further instrument shall be required to effect such
subordination of the Lease. Lessee shall, however, upon demand at any time or
times execute, acknowledge and deliver to Mortgagee any and all instruments and
certificates that in Mortgagee's judgment may be necessary or proper to confirm
or evidence such subordination. If Lessee shall fail or neglect to execute,
acknowledge and deliver any such instrument or certificate, Mortgagee may, in
addition to any other remedies Mortgagee may have, as agent and attorney-in-fact
of Lessee, execute, acknowledge and deliver the same and Lessee hereby
irrevocably appoints Mortgagee as Lessee's agent and attorney-in-fact for such
purpose. However, notwithstanding the generality of the foregoing provisions of
this paragraph, Lessee agrees that Mortgagee shall have the right at any time to
subordinate the Mortgage, and any such other mortgagee or ground lessor shall
have the right at any time to subordinate any such Prior Encumbrances, to the
Lease on such terms and subject to such conditions as Mortgagee, or any such
other mortgagee or ground lessor, may deem appropriate in its discretion.
5. NEW LEASE. Upon the written request of either Mortgagee or
Lessee to the other given at the time of any foreclosure, trustee's sale or
conveyance in lieu thereof, the parties agree to execute a lease of the Demised
Premises upon the same terms and conditions as the Lease between Lessor and
Lessee, which lease shall cover any unexpired term of the Lease existing prior
to such foreclosure, trustee's sale or conveyance in lieu of foreclosure.
6. NOTICE. Lessee agrees to give written notice to Mortgagee
of any default by Lessor or Borrower under the Lease not less than thirty (30)
days prior to terminating the
15
Lease or exercising any other right or remedy thereunder or provided by law.
Lessee further agrees that it shall not terminate the Lease or exercise any such
right or remedy provided such default is cured within such thirty (30) days;
provided, however, that if such default cannot by its nature be cured within
thirty (30) days, then Lessee shall not terminate the Lease or exercise any such
right or remedy, provided the curing of such default is commenced within such
thirty (30) days and is diligently prosecuted thereafter. Such notices shall be
delivered by certified mail, return receipt requested to:
GE Capital Loan Services, Inc.
000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx XxXxxxx
and
General Electric Capital Corporation
Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Securitizations
7. MORTGAGEE. The term "Mortgagee" shall be deemed to include
THE CHASE MANHATTAN BANK, as Trustee under that certain Pooling and Servicing
Agreement dated as of November 1, 1999 for Certificateholders of the Office
Finance Corp Commercial Mortgage Pass-Through Certificates Series 1999-FL1 and
any of its successors and assigns, including anyone who shall have succeeded to
Lessor's interest in and to the Lease and the Project by, through or under
judicial foreclosure or sale under any power or other proceedings brought
pursuant to the Mortgage, or deed in lieu of such foreclosure or proceedings, or
otherwise.
8. ESTOPPEL. Lessee hereby certifies, represents and warrants
to Mortgagee that:
(a) That the Lease is a valid lease and in full force
and effect. That there is no existing default in any of the terms and
conditions thereof and no event has occurred which, with the passing of
time or giving of notice or both, would constitute an event of default;
(b) That the Lease has not been amended, modified,
supplemented, extended, renewed or assigned, and represents the entire
agreement of the parties;
(c) That, except as provided in the Lease, Lessee is
entitled to no rent concessions or abatements;
(d) That Lessee shall not pay rental under the Lease
for more than one (1) month in advance. Lessee agrees that Lessee
shall, upon written notice by Mortgagee, pay to Mortgagee, when due,
all rental under the Lease;
16
(e) That all obligations and conditions under the
Lease to be performed to date have been satisfied, free of defenses and
set-offs;
(f) That Lessee has not received written notice of
any claim, litigation or proceedings, pending or threatened, against or
relating to Lessee, or with respect to the Demised Premises which would
affect its performance under the Lease. Lessee has not received written
notice of any violations of any federal, state, county or municipal
statutes, laws, codes, ordinances, rules, regulations, orders, decrees
or directives relating to the use or condition of the Demised Premises
or Lessee's operations thereon.
9. MODIFICATION AND SUCCESSORS. This Agreement may not be
modified orally or in any manner other than by an agreement, in writing, signed
by the parties hereto and their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their successors and assigns.
10. COUNTERPARTS. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement, binding on all
parties hereto, notwithstanding that all parties are not signatories to the
original or the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MORTGAGEE: THE CHASE MANHATTAN BANK, as Trustee under
that certain Pooling and Servicing Agreement
dated as of November 1, 1999 for
Certificateholders of the Office Finance
Corp Commercial Mortgage Pass-Through
Certificates Series 1999-FL1
BY: GE CAPITAL LOAN SERVICES, INC., as
Servicer pursuant to that certain
Pooling and Servicing Agreement
dated as of November 1, 1999 for
Certificateholders of the Office
Finance Corp Commercial Mortgage
Pass-Through Certificates Series
1999-FL1.
By:
-------------------------------
Name:
Title:
LESSEE:
By:
-------------------------------
Name:
Title:
18
STATE OF
-------------------------------
COUNTY OF
------------------------------
This instrument was acknowledged before me on this ___________ day of
___________________ , ______ by __________________________________, as
__________________________________ of GE CAPITAL LOAN SERVICES, INC., a Delaware
corporation, on behalf of said corporation.
(SEAL)
------------------------------------------
Notary Public in and for
the State of
-------------
------------------------------------------
Print name of notary
My Commission Expires:
--------------------
STATE OF
-------------------------------
COUNTY OF
------------------------------
This instrument was acknowledged before me on this __________ day of
_______, _____ by ______________________, as _________________________ of
_____________________, a _________________, on behalf of said _________________.
(SEAL)
-----------------------------------------
Notary Public in and for
the State of __________
-----------------------------------------
Print name of notary
My Commission Expires:
-------------------
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