Exhibit 10.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (“Agreement”) is entered into as of December 17, 2021 (“Effective Date”) between CLARKS AMERICAS, INC., a Delaware corporation (“Assignor”) and MARKFORGED, INC., a Delaware corporation (“Assignee”).
RECITALS
WHEREAS, 1265 MAIN OFFICE SUBSIDIARY LLC, a Delaware limited liability company (“Landlord”) and Assignor are parties to that certain Lease dated as of April 30, 2015, as amended by that certain (i) First Amendment to Lease dated as of July 11, 2016, (ii) Second Amendment to Lease dated as of January 17, 2017, (iii) Third Amendment to Lease dated as of May 21, 2020, (iv) Fourth Amendment to Lease dated as of January 28, 2021 and (v) Consent to Assignment and Fifth Amendment to Lease (the “Fifth Amendment”) dated of even date (as so amended, collectively, the “Lease”), pursuant to which Landlord has leased to Assignor certain premises (the “Premises”) consisting of the building known as and numbered 00 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx and previously referred to in the Lease as 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (the “Building”) located in the Complex as more particularly described in the Lease. Terms not otherwise defined herein shall have the same meaning as set forth in the Lease;
WHEREAS, Assignor desires to assign its interest in the Lease and the Premises to Assignee and Assignee desires to accept this assignment and assume the obligations of Assignor under the Lease and shall thereafter comply with all terms of the Lease as fully as if, for purposes hereof, Assignee were the Tenant under the Lease, effective as of April 1, 2022 (the “Assignment Effective Date”); and
WHEREAS, Assignor and Assignee have agreed that Assignor shall transfer to Assignee its right, title and interest to certain personal property and equipment currently located at the Premises as of the Assignment Effective Date;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged:
1. Assignment of Assignor’s Interest in the Lease and the Premises. Assignor hereby assigns to Assignee all of Assignor’s interest in the Lease and the Premises, effective as of 12:01 a.m. EST on the Assignment Effective Date.
2. Acceptance of Assignor’s Interest in the Lease and the Premises. Assignee hereby accepts this assignment from Assignor and, effective from and after the Assignment Effective Date, Assignee shall assume the obligations of Assignor under the Lease and comply with all terms of the Lease as fully as if, for purposes hereof, Assignee were the Tenant under the Lease.
3.Sale of certain personal property to Assignee. Upon the Assignment Effective Date, Assignor shall convey, transfer, and deliver to Assignee all of Assignor’s right, title and interest in and to (i) all of Assignor’s furniture, trade fixtures, equipment and other personal property then located at the Premises (except those items listed on Exhibit A attached hereto), (ii) the emergency generator at the Premises and (iii) the generator connections located on the equipment pad situated outside on the north side of the Building ((i)-(iii) collectively,
the “Purchased FF&E”), all of which is being transferred “AS IS,” “WHERE IS,” and “WITH ALL FAULTS” and, except as to title, without any representation or warranty of any nature whatsoever, express or implied, oral or written, and in particular without any representation or warranty of merchantability or fitness for a particular purpose or of authenticity.
4.Exoneration and Indemnification of Assignor. From and after the Assignment Effective Date, Assignee agrees to exonerate, protect, defend, indemnify and hold harmless Assignor from and against any and all losses, liabilities, costs, expenses, damages, claims and causes of action, whether known or unknown, including attorneys’ fees and expenses, arising out of or related to the Lease and/or the Premises (collectively, “Claims”), to the extent any such Claims are for matters occurring on or after the Assignment Effective Date.
5. Exoneration and Indemnification of Assignee. From and after the Assignment Effective Date, Assignor agrees to exonerate, protect, defend, indemnify and hold harmless Assignee from and against any and all Claims, to the extent any such Claims are for matters occurring prior to the Assignment Effective Date.
6. Successors and Assigns. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Assignor and Assignee respectively.
7.Brokers. Assignor and Assignee agree that Section 16(a) of the Fifth Amendment shall be controlling on all matters relating to any Broker or the Assignment Brokers (as such terms are defined in the Fifth Amendment) or both.
8.Governing Law. This Agreement shall be construed under and enforced in accordance with the laws of the Commonwealth of Massachusetts. Assignor and Assignee agree that (a) jurisdiction for any legal process taken with respect to this Agreement and/or enforcement or compliance by or against any of the parties to this Agreement shall be exclusively commenced and processed within the State Courts of Middlesex or Suffolk Counties of the Commonwealth of Massachusetts, and (b) Assignor and Assignee submit to such jurisdiction.
9.Counterparts. This Agreement may be signed in multiple originals and/or may be separately signed and assembled to contain the signatures of all the parties, with each counterpart constituting an original document. A signed counterpart of this Agreement sent by electronic transmission, including, without limitation, by telecopy or as a .pdf by email, shall be deemed an original and legally binding on the party signing.
10.Authority. The party executing this Agreement on behalf of Assignee represents and warrants to Assignor that he/she has the authority on behalf of Assignee to execute this Agreement and bind Assignee to the terms and conditions of this Agreement. The party executing this Agreement on behalf of Assignor represents and warrants to Assignee that he/she has the authority on behalf of Assignor to execute this Agreement and bind Assignor to the terms and conditions of this Agreement.
11.Captions. The captions of this Agreement are only for a matter of convenience and reference and have no other meaning or effect.
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Executed as an instrument under seal as of the date first written above.
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ASSIGNOR: |
CLARKS AMERICAS, INC., |
a Delaware corporation |
By: |
/s/ Xxxx Xxxxxxxx |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
President |
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Duly Authorized |
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ASSIGNEE: |
MARKFORGED, INC., |
a Delaware corporation |
By: |
/s/ Xxxx Xxxxxxxx |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
CFO |
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Duly Authorized |
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Exhibit A
Excluded Items
The following furniture, trade fixtures, equipment other personal property located at the Premises are excluded from the transfer from Assignor to Assignee provided for in Section 3 of this Agreement:
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