Exhibit 10.28
LEASE AGREEMENT
LANDLORD: BerCar II, LLC, a Massachusetts Limited Liability Company
TENANT: Xxxxxx-PRI Automation, Inc., a Delaware corporation
PREMISES: 00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx
DATE: October 23, 2002
TABLE OF CONTENTS
ARTICLE I. Demised Premises and Term .......................................... 1
ARTICLE I. Demised Premises and Term .......................................... 1
1.1 Demised Premises and Term ............................................... 1
1.2 Existing Lease .......................................................... 1
1.3 Condition of the Premises/Maintenance ................................... 1
1.4 Early Occupancy ......................................................... 1
1.5 Extension Option ........................................................ 1
1.5.1 First Extension Term .......................................... 1
1.5.2 Second Extension Term ......................................... 2
1.6 Conditions of Option to Extend .......................................... 2
ARTICLE II. Fixed Rent ......................................................... 2
ARTICLE II. Fixed Rent ......................................................... 2
2.1 Fixed Rent .............................................................. 2
2.2 First Extension Term Rent ............................................... 3
2.3 Second Extension Term Rent .............................................. 3
2.4 Fair Market Rent Arbitration ............................................ 3
2.5 General Provisions for Rent Payments .................................... 3
ARTICLE III. Additional Rent .................................................... 4
ARTICLE III. Additional Rent .................................................... 4
3.1 Additional Rent ......................................................... 4
3.2 Public Requirements ..................................................... 4
3.3 Contests by Tenant ...................................................... 4
ARTICLE IV. Control ............................................................ 5
ARTICLE IV. Control ............................................................ 5
4.1 Control ................................................................. 5
4.1.1 Encumbrances by Landlord ...................................... 5
4.1.2 Encumbrances by Tenant ........................................ 5
4.2 Indemnity ............................................................... 5
4.3 Insurance ............................................................... 6
ARTICLE V. Landlord's Representations ......................................... 6
ARTICLE V. Landlord's Representations ......................................... 6
5.1 Landlord's Representations .............................................. 6
ARTICLE VI. Assignment ......................................................... 6
ARTICLE VI. Assignment ......................................................... 6
6.1 Assignment .............................................................. 6
6.2 Non-Disturbance of Sublessees ........................................... 7
ARTICLE VII. Alterations and Improvements ....................................... 7
ARTICLE VII. Alterations and Improvements ....................................... 7
7.1 Alterations and Improvements ............................................ 8
7.1.1 Approval of Initial Renovations ............................... 8
7.1.2 Approval of Subsequent Renovations ............................ 8
7.2 Certain Liens ........................................................... 9
7.3 Tenant's Permits ........................................................ 9
7.4 Repairs by Landlord ..................................................... 9
ARTICLE VIII. Notices ............................................................ 9
ARTICLE VIII. Notices ............................................................ 9
8.1 Notices ................................................................. 9
ARTICLE IX. Subordination to Mortgages ......................................... 10
ARTICLE IX. Subordination to Mortgages ......................................... 10
9.1 Mortgage Holder's Election .............................................. 10
9.2 Non-Disturbance Agreement ............................................... 10
9.2.1 Non-Disturbance of Tenant ..................................... 10
9.2.2 Liability of Mortgagee/Successor .............................. 11
9.2.3 Recognition of Purchase Option ................................ 11
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9.2.4 Intervening Liens.................................... 11
9.3 Notice for Mortgagee.......................................... 11
9.4 Mortgagee Consent............................................. 11
ARTICLE X. Fire and Casualty and Restoration........................ 12
ARTICLE X. Fire and Casualty and Restoration........................ 12
10.1 Fire and Casualty and Restoration............................. 12
10.2 Tenant's Election to Restore.................................. 12
10.3 Landlord's Approval of Reconstruction......................... 12
10.4 Tenant's Election to Delay Reconstruction..................... 12
10.5 Proceeds Paid to Landlord..................................... 12
ARTICLE XI. Right of Entry........................................... 13
ARTICLE XI. Right of Entry........................................... 13
11.1 Right of Entry................................................ 13
ARTICLE XII. Default.................................................. 13
ARTICLE XII. Default.................................................. 13
12.1 Default....................................................... 13
12.2 Tenant's Default.............................................. 13
ARTICLE XIII. Eminent Domain........................................... 14
ARTICLE XIII. Eminent Domain........................................... 14
13.1 Eminent Domain................................................ 14
13.2 Partial Condemnation.......................................... 14
13.3 Condemnation Award............................................ 14
13.4 Condemnation/Personal Property................................ 15
ARTICLE XIV. Force Majeure............................................ 15
ARTICLE XIV. Force Majeure............................................ 15
14.1 Force Majeure................................................. 15
ARTICLE XV. Saving Clause............................................ 15
ARTICLE XV. Saving Clause............................................ 15
15.1 Saving Clause................................................. 15
ARTICLE XVI. Right to Purchase........................................ 15
ARTICLE XVI. Right to Purchase........................................ 15
16.1 Right to Purchase............................................. 15
16.2 Closing of the Purchase Option................................ 16
16.3 Landlord's Put................................................ 16
ARTICLE XVII. Notice of Lease.......................................... 16
ARTICLE XVII. Notice of Lease.......................................... 16
17.1 Notice of Lease............................................... 16
ARTICLE XVIII. Definitions and Interpretations.......................... 16
ARTICLE XVIII. Definitions and Interpretations.......................... 16
18.1 Definitions and Interpretations............................... 16
18.2 Exculpation................................................... 16
ARTICLE XIX. Hazardous Material....................................... 16
ARTICLE XIX. Hazardous Material....................................... 16
19.1 Hazardous Material............................................ 17
ARTICLE XX. Effectiveness of Lease................................... 17
ARTICLE XX. Effectiveness of Lease................................... 17
20.1 Effectiveness of Lease........................................ 17
ARTICLE XXI. Brokers.................................................. 17
ARTICLE XXI. Brokers.................................................. 17
ARTICLE XXII. Representatives.......................................... 17
ARTICLE XXII. Representatives.......................................... 17
22.1 Representatives............................................... 17
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List of Schedules and Exhibits
Schedule A Legal Description of Lot
Schedule B Landlord's Representations and Warranties
Exhibit A Form of Assignment and Assumption of
Lease Agreement
Exhibit B Form of Tenant Estoppel of Hitite Microwave Corporation
Exhibit C Title Commitment
Exhibit D Purchase Option Closing Procedures
Exhibit E Form of Notice of Lease
Exhibit F List of Environmental Reports
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LEASE dated October 23, 2002 (the "Lease"), between BerCar II, LLC, a
Massachusetts limited liability company (hereinafter referred to as "Landlord")
and Xxxxxx-PRI Automation, Inc., a Delaware corporation (hereinafter referred
to as "Tenant").
ARTICLE 1. Demised Premises and Term
1.1 Demised Premises and Term: In consideration of the rents reserved
herein and in consideration of the agreements and conditions herein contained
on the part of Tenant to be performed and observed, Landlord does hereby demise
and lease to Tenant, and Tenant does hereby hire from Landlord, the premises
described in Schedule A of this Lease (hereinafter referred to as "demised
premises"), for the original term of twelve (12) years commencing upon October
1, 2002 (the "Rent Day") and expiring upon September 30, 2014 (the "Original
Term").
1.2 Existing Lease: Tenant acknowledges that approximately 34,000 square
feet of floor area within the building comprising a portion of the demised
premises is presently leased to Hittite Microwave Corporation by lease dated
July 6, 1999, as amended by Amendment A dated as of August 15, 1999 (the
"Existing Lease"). Contemporaneously with Landlord's execution of this Lease,
Landlord shall execute and deliver to Tenant an assignment of Landlord's
interest in the Existing Lease with an effective date as of the Rent Day, and
Tenant shall assume the obligations of Landlord under the Existing Lease with
an effective date as of the Rent Day by entering into an assignment and
assumption agreement in the form of Exhibit A attached. The form of tenant
estoppel certificate to be delivered by the tenant under the Existing Lease
is attached as Exhibit B.
1.3 Condition of the Premises/Maintenance: Tenant acknowledges that it has
inspected the demised premises, and it is understood and agreed that Tenant will
accept the demised premises in their existing physical condition, and Landlord
shall be under no obligation to make any repairs, alterations or improvements to
the demised premises prior to or at the commencement of the term hereof or at
any time thereafter, except as herein specifically provided otherwise. Tenant
shall perform, at its own cost and expense, any work required to prepare the
demised premises for Tenant's occupancy.
1.4 Early Occupancy: During the time period commencing upon the execution
and delivery of this Lease, and ending upon the commencement of the term of
this Lease (the "Early Occupancy Period"), Tenant shall comply with all of the
provisions of this Lease as if said period were part of the term of this Lease,
except that no rent shall be payable for said period. Tenant shall have full
access, use and occupancy of the demised premises during the Early Occupancy
Period under the terms of the Lease.
1.5 Extension Option:
1.5.1 First Extension Term: Tenant shall have the right, at its election,
to extend the Original Term of this Lease for an additional period of ten (10)
years commencing upon October 1, 2014 and expiring upon September 30, 2004 (the
"First Extension Term"). Tenant shall exercise its option to extend the term for
the First Extension Term by giving Landlord written notice of its election no
earlier than April 1, 2013, and no later than the later to occur of either (a)
September 20, 2013, or (b) the date which is ten (10) business days after the
receipt by Tenant of
a written reminder notice from Landlord to Tenant (the "First Option Reminder
Notice") which expressly (i) refers to the option to extend the term for the
First Extension Term, and (ii) states that the option to extend the term for
the First Extension Term shall expire on the later of September 30, 2013 or ten
(10) business days after the date of receipt of the First Option Reminder
Notice. The First Option Reminder Notice shall be delivered no earlier than
April 1, 2013.
1.5.2 Second Extension Term: Tenant shall have the right, at its election,
to extend the Original Term of this Lease as previously extended by the First
Extension Term for an additional period of ten (10) years commencing upon
October 1, 2024 and expiring upon September 30, 2034 (the "Second Extension
Term"). Tenant shall exercise its option to extend the term for the Second
Extension Term by giving Landlord written notice of its election no earlier than
April 1, 2023, and no later than the later to occur of either (a) September 30,
2023, or (b) the date which is ten (10) business days after the receipt by
Tenant of a written reminder notice from Landlord to Tenant (the "Second Option
Reminder Notice") which expressly (a) refers to the option to extend the term
for the Second Extension Term, and (b) states that the option to extend the term
for the Second Extension Term shall expire on the later of either September 30,
2023, or ten (10) business days after the date of receipt of the Second Option
Reminder Notice. The Second Option Reminder Notice shall be delivered no earlier
than April 1, 2023.
1.6 Conditions of Option to Extend: The expression "the Original Term"
means the period of twelve (12) years referred to in the first paragraph of
this Article. Prior to the exercise by Tenant of any of said elections to
extend the Original Term, the expression "the term of this Lease" or any
equivalent expression, shall mean the Original Term; after the exercise by
Tenant of any of the aforesaid elections, the expression "the term of this
Lease" or any equivalent expression shall mean the Original Term as it may have
been then extended. Except as expressly otherwise provided in this Lease, all
the agreements and conditions in this Lease contained shall apply to the
additional period or periods to which the Original Term shall be extended as
aforesaid. If Tenant shall not give Landlord notice of Tenant's decision to
exercise the next ensuing election in the manner and within the time provided
aforesaid (i.e. by the later of the specified date or within ten (10) business
days of the receipt of a reminder notice from Landlord as provided above),
then, the term shall end upon the expiration of the term (as it may have
theretofore been extended), and Tenant shall have no further right to extend
the term of this Lease.
ARTICLE II. Fixed Rent
2.1 Fixed Rent: Tenant agrees to pay to Landlord a fixed rent ("Fixed
Rent") at the following annual rates:
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Lease Years Effective Dates Annual Rent Rate Monthly Payment
-------------------------------------------------------------------------------------
1-2 10/1/02 to 9/30/04 $556,500.00 $46,375.00
-------------------------------------------------------------------------------------
3-5 10/1/04 to 9/30/07 $695,625.00 $57,968.75
-------------------------------------------------------------------------------------
6-10 10/1/07 to 9/30/12 $788,375.00 $65,697.92
-------------------------------------------------------------------------------------
11-12 (or Purchase 10/1/12 to 9/30/14 $881,125.00 $73,427.08
Date) (or Purchase Date)
-------------------------------------------------------------------------------------
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2.2 First Extension Term Rent: During the First Extension Term for which
the Original Term of this Lease may be extended as set forth in Section 1.2
above the fixed rent payable hereunder shall be adjusted so as to equal the
greater of (a) $1,576,750.00 per annum; or (b) ninety five percent (95%) of the
"fair market rent" as mutually determined by Landlord and Tenant through the
process of negotiation or as otherwise herein set forth; and
2.3 Second Extension Term Rent: During the Second Extension Term for which
the Original Term of this Lease as previously extended may be further extended
as set forth in Section 1.2 above, the fixed rent payable hereunder shall be
adjusted so as to equal the greater of (a) $2,040,500.00 per annum; or (b)
ninety-five percent (95%) of the "fair market rent" as mutually determined by
Landlord and Tenant through the process of negotiation or as otherwise herein
set forth.
2.4 Fair Market Rent Arbitration: Notwithstanding anything to the contrary
contained herein, however, if for any reason whatsoever Landlord and Tenant
shall not agree in writing upon the "fair market rent" for any additional
period at least six (6) months prior to the commencement of the additional
period in question, then the fair market rent for the additional period in
question for premises of the size and nature of the demised premises shall be
determined by licensed real estate appraisers having at least five (5) years'
experience in the appraisal of commercial real estate in the Metro-North /
Boston, Massachusetts market, one such appraiser to be designated by each of
Landlord and Tenant. If either party shall fail to designate its appraiser by
giving notice of the name of such appraiser to the other party within fifteen
(15) days after receiving notice of the name of the other party's appraiser,
then the appraiser chosen by the other party shall determine the fair market
rent and his determination shall be final and conclusive. If the appraisers
designated by Landlord and Tenant shall disagree as to the fair market rent,
but if the difference between their estimates of fair market rent shall be five
percent (5%) or less of the greater of the estimates, then the average of their
estimates shall be the fair market rent for purposes hereof. If the appraisers
designated by Landlord and Tenant shall disagree as to the amount of fair
market rent, and if their estimates of fair market rent shall vary by more than
five percent (5%) of the greater of said estimates, then they shall jointly
select a third appraiser meeting the qualifications set forth above, and his
estimate of fair market rent shall be the fair market rent for purposes hereof
if it is not greater than the greater of the other two estimates and not less
than the lesser of the other two estimates. If said third appraiser's estimate
is greater than the greater of the other two estimates, then the greater of the
other two estimates shall be the fair market rent for purposes hereof; and if
the estimate of the third appraiser shall be less than the lesser of the other
two estimates, then the lesser of the other two estimates shall be the fair
market rent for purposes hereof. Each of Landlord and Tenant shall pay for the
services of its appraiser, and if a third appraiser shall be chosen, then each
of Landlord and Tenant shall pay for one-half of the services of the third
appraiser.
2.5 General Provisions for Rent Payments: Rent Day shall be October 1,
2002. Fixed Rent and any additional rent payable to Landlord shall be paid to
Landlord at the address provided for in Article 8, or to such other legal
entity or to such other address as Landlord shall designate by notice to
Tenant. Fixed Rent shall be paid to Landlord without notice or demand and
without abatement, deduction, counterclaim or set off except only as expressly
otherwise herein provided.
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ARTICLE III. Additional Rent
3.1 Additional Rent: Tenant agrees to pay every "Imposition" (hereinafter
defined), before the same becomes delinquent, payable for any period between
Rent Day and the expiration of the term of this Lease. Every Imposition payable
for a period beginning before the Rent Day and ending after Rent Day or for a
period beginning before the expiration of the term of this Lease and ending
after the expiration of the term shall be apportioned and adjusted between
Landlord and Tenant. Upon demand from time to time Tenant will furnish to
Landlord evidence of payments of Impositions. "Impositions" shall mean real
estate taxes, betterments assessments (special or general, ordinary or
extraordinary), water and sewer taxes and any other ad valorem charges made by
any public authority (consistent with the current system of real estate taxes,
betterments assessments (special or general, ordinary or extraordinary), water
and sewer taxes) which upon assessment or upon failure of payment become a lien
upon the demised premises. If any betterments assessments may be payable by law
in installments, at Tenant's election said betterments assessments shall be
deemed payable not for the period in which the same are assessed but in
installments for the periods in which the installments thereof are payable. If
Landlord shall have the right to elect the period over which any such assessment
may be paid, at Tenant's election, Landlord agrees to elect the longest period
available to Landlord. Impositions shall not include any franchise, estate,
inheritance, succession, capital levy or transfer tax of Landlord, or any income
tax of Landlord or tax upon rents payable by Tenant.
3.2 Public Requirements: Tenant agrees to comply during the term of this
Lease with all "Public Requirements" (hereinafter defined) applicable to the
demised premises and to the public ways adjacent to the demised premises.
"Public Requirements" mean laws, ordinances, by-laws, regulations and orders of
all public authorities having jurisdiction, compliance with which shall by law
be the obligation of the owner or occupant of the demised premises.
3.3. Contests by Tenant: Tenant shall have the right to contest in good
faith any Imposition or Public Requirement in the manner provided by law for
contesting the same, provided that if payment of any Imposition or if compliance
with any Public Requirement shall be deferred pending such contest, such
deferment of payment or deferment of compliance shall not jeopardize Landlord's
interest in the demised premises. Such contest shall be in the name of Tenant or
in the name of Landlord or in the names of both. At the request of Tenant and
without cost or expense to Landlord, Landlord will join in any contest and
execute any and all documents in connection therewith as Tenant may reasonably
request. Tenant shall indemnify Landlord against, and save Landlord harmless
from, any and all loss, damage, claims, liabilities, judgments, costs and
expenses (including the cost and expense of defending any claim), arising out of
any such contest or out of any deferring of payment of any Imposition or any
deferring of compliance with any Public Requirement. Until such time as an
abatement or refund shall be obtained, an Imposition shall be deemed the amount
assessed; after an abatement or refund shall be obtained, the Imposition shall
be deemed the amount assessed less the net abatement or refund.
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ARTICLE IV. Control
4.1 Control: Except as otherwise set forth in the Existing Lease,
Tenant shall have exclusive possession and control of, and responsibility for,
the demised premises and the public ways adjacent to the demised premises to the
extent that possession or control of, or responsibility for such ways is the
obligation of the property owner and not public authority.
4.1.1 Encumbrances by Landlord: Landlord hereby covenants to Tenant
that Landlord shall not voluntarily create or permit to be created any, liens,
easements, restrictions or encumbrances of any nature whatsoever or otherwise
modify any items disclosed in the commitment for title insurance (the "Title
Commitment") attached as Exhibit C with respect to the demised premises after
the date hereof without the prior written consent of Tenant, such consent not to
be unreasonably withheld or delayed. In addition, Landlord hereby covenants to
Tenant that Landlord shall not (i) enter into any leases, tenancies or other
agreements affording a right of occupancy of the demised premises, enter into
any management, leasing, brokerage, purchase or maintenance contracts which
shall be binding on Tenant or the demised premises, or grant any rights or
options to purchase the demised premises except any which shall be subordinate
to this Lease, or (ii) initiate or participate in any modifications to the
existing buildings and zoning laws of the Town of Chelmsford, or any other
governmental authority, relating to the use or occupancy of the demised premises
after the date hereof without the prior written consent of Tenant, such consent
with respect to the matters in clause (ii) only not to be unreasonably withheld
or delayed.
4.1.2 Encumbrances by Tenant: Subject to the conditions and
limitations in this Subsection 4.1.2, Landlord shall cooperate and join in any
agreement, grant or covenant relating to the demised premises and Tenant's use
and occupancy thereof requested by Tenant for the benefit of a third party
subject to the review and approval of Landlord and its counsel on the standards
set forth below. Landlord shall not unreasonably withhold, condition or delay
its approval of: (a) the grant of an easement for sidewalks to the Town of
Chelmsford in connection with the renovation of the demised premises, or (b) any
encumbrance which by its terms automatically expires at the expiration of the
term of this Lease and if Tenant fails to purchase the demised premises. With
respect to any such encumbrance presented for Landlord's approval which is not
specified for reasonable approval above, Landlord's approval shall be given or
withheld and conditions shall be imposed in Landlord's sole discretion, but
Landlord shall not unreasonably delay its response to a request for approval of
any such encumbrance. In the event that during the Original Term Landlord has
withheld its consent to any such encumbrance requested by Tenant (either by the
reasonable approval or sole discretion standard), then Tenant may elect to
proceed and require Landlord to cooperate and join in such encumbrance on the
condition that then Landlord shall have the right to "put" the demised premises
to Tenant at the Purchase Price referred to in Article 16 below and Tenant shall
be obligated to purchase the demised premises at the Purchase Price pursuant to
the process provided in Section 16.3 below for the Put Option.
4.2 Indemnity: To the full extent allowed by applicable law (i.e.
subject to the limitations of Mass. Gen. Laws ch. 186 Section 15), Tenant shall
indemnify Landlord against, and save Landlord harmless from, any and all loss,
damage, claims, liabilities, judgments, costs and expenses (including the cost
and expense of defending any claim), arising during the term of this
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Lease out of any condition existing upon the demised premises, any act occurring
upon the demised premises (other than acts of Landlord and its agents), any use
made of the demised premises, or any omission or failure to act upon the demised
premises; provided that in the event of any claim made against Landlord,
Landlord shall give Tenant reasonably prompt notice of such claim.
4.3 Insurance: Tenant shall maintain with respect to the demised premises
during the term of this Lease a policy of commercial general liability insurance
and if necessary commercial umbrella insurance in insurance companies authorized
to do business in the Commonwealth of Massachusetts and with a rating of not
lower than "A-" as ranked by A.M. Best (or an equivalent rating by an alternate
service if the A.M. Best rating service is no longer available in the future) in
amounts not less than Three Million Dollars ($3,000,000.00). Lessee agrees to
provide fire damage legal liability with a limit of not less than $500,000.00.
These insurance policies of Tenant shall cover bodily injury, personal injury
and property damage liability from the demised premises and obligations assumed
under this Lease. Tenant will furnish the Landlord and Landlord's mortgagee with
a certificate or certificates of such insurance at the inception of this Lease
and at the renewal date of such policies thereafter. Such certificate[s] will
name Landlord and Landlord's mortgagee as an additional insured on all such
policies. Such certificate[s] shall provide that the policies in question shall
not be cancelled without 15 days prior notice to the certificate holder. Such
insurance may be maintained under a blanket policy or policies affecting the
demised premises and other premises.
ARTICLE V. Landlord's Representations
5.1 Landlord's Representations: Landlord makes the representations,
warranties and agreements set forth in Schedule B of this Lease.
ARTICLE VI. Assignment
6.1 Assignment: Except as hereinafter set forth, Tenant shall not without
the prior written consent of Landlord assign, hypothecate, pledge or otherwise
encumber this Lease, make any sublease or permit occupancy of the demised
premises or any part thereof by anyone other than Tenant or the tenant under the
Existing Lease. Landlord hereby agrees however that Tenant may, without
Landlord's consent, assign its interest in this Lease or sublet the whole or any
part of the demised premises to (a) an entity which owns all of the outstanding
equity in Tenant ("Tenant's Parent"); (b) an entity wholly owned by Tenant or by
Tenant's Parent ("a Subsidiary"); (c) an entity resulting from the consolidation
or merger of Tenant with any other entity; or (d) an entity which shall acquire
all or substantially all of the assets or equity of Tenant. Landlord agrees,
further, that Landlord shall not unreasonably withhold, condition or delay its
consent for a request by Tenant to assign this Lease or sublet the whole or any
part of the demised premises to any other unrelated entities provided, however,
if Tenant subleases any portion of the demised premises not occupied pursuant to
the Existing Lease (excluding any Permitted Transfer), Tenant shall pay to
Landlord the first Six Hundred Thousand Dollars ($600,000.00) received by Tenant
pursuant to any such subletting at a rate per square foot in excess of the fixed
rental rate per square foot payable by Tenant as set forth in Article 2,
provided, however, before calculating any net profit of subleasing or
assignment, Tenant may deduct the reasonable expenses of any such subletting
(including the cost of tenant
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improvements to the demised premises made by Tenant which have not previously
been amortized and which are properly allocated to the space to be sublet or
assigned), the reasonable cost of tenant improvements or allowances for tenant
improvements provided for the subtenant or assignee in question, reasonable
legal expenses and leasing commissions. Each request by Tenant for permission to
assign this Lease or to sublet the whole or any part of the demised premises
shall be accompanied by a warranty by Tenant as to the amount of rent to be paid
to Tenant by the proposed assignee or sublessee and a statement of expenses to
be deducted in calculating the net proceeds of subleasing or assignment. For
purposes of this paragraph, the term "rent" shall mean all fixed rent,
additional rent or other payments and/or consideration payable by one party to
another for the use and occupancy of premises (and shall exclude, for example,
payments for support or services provided to the subtenant by Tenant beyond
usual landlord services, payments made to Tenant for the sale of its business or
sale or lease of its equipment to the subtenant in the normal course of Tenant's
business at a commercially reasonable price in an arm's length transaction).
Tenant further agrees that any sublease, license, concession or agreement for
use, occupancy or utilization of space in the demised premises entered into by
it or by anyone claiming under it shall contain the provisions set forth in the
immediately preceding sentence. If there shall be any assignment or subletting
by Tenant pursuant to the provisions of this paragraph, Tenant shall remain
primarily liable for the performance and observance of the covenants and
agreements herein contained on the part of Tenant to be performed and observed,
such liability to be (in the case of any assignment) joint and several with that
of such assignee. It is expressly understood and agreed that no assignment of
Tenant's interest in this Lease shall be effective until such time as Tenant
shall deliver to Landlord an agreement from the assignee, which agreement shall
be reasonably satisfactory to Landlord in form and substance and shall provide
that the assignee agrees with Landlord to be primarily liable for the
performance and observance of the covenants and agreements herein contained on
the part of Tenant to be performed and observed, such liability to be joint and
several with that of Tenant.
6.2 Non-Disturbance of Sublessees: Any sublease or subleases that may be
given by Tenant of all or part of the demised premises may contain provisions
whereby the sublessee shall not be disturbed in its possession in accordance
with the terms and conditions of its sublease except for such cause as would
entitle the sublessor thereunder (Tenant hereunder) to terminate such sublease
(such provisions being sometimes referred to as "non-disturbance" clauses).
Accordingly, it is understood and agreed between the parties that if prior to
the expiration of the term of this Lease Landlord shall have the right to
possession of the demised premises or the portion thereof subject to such
sublease (whether or not this Lease shall be terminated), then in such event,
Landlord covenants and agrees that the sublessee thereunder shall not be
disturbed in its possession in accordance with the terms and conditions of such
sublease, except for such cause as would entitle the sublessor under such
sublease to terminate such sublease; and if the sublessee will agree in writing
to recognize Landlord as its landlord under the terms of such sublease, then
Landlord will agree with such sublessee to perform and observe all of the
obligations imposed by such sublease upon the landlord therein. Landlord agrees,
in confirmation thereof, to deliver such instruments or documents duly executed
for recordation that may be required by the sublessee to effectuate the
foregoing.
ARTICLE VII. Alterations and Improvements
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7.1 Alterations and Improvements: Subject to the terms of the Existing
Lease referred to in Section 1.2 above and subject to the last two (2) sentences
of this Section 7.1, Tenant shall have the right, without obtaining any consent
from Landlord therefore, from time to time during the term of this Lease, to
erect any lawful building or buildings or other lawful improvements upon the
demised premises of any kind, nature or description, as it deems desirable, and
to make repairs, changes, alterations, additions and other improvements thereto,
structural or otherwise, and to demolish and remove any of the same, as Tenant
may from time to time deem necessary or desirable provided, however, that no
such alteration, demolition or addition shall diminish the value of the demised
premises when considering the aggregate effect of alterations, demolition or
additions made by Tenant to the demised premises. Also, subject to the Existing
Lease and the terms of any other leases or subleases entered into by Tenant for
any portion of the demised premises, Tenant shall have the right at any time
during the term of this Lease, or at the expiration of the term, as Tenant shall
see fit, to remove any and all improvements erected, installed or placed on the
demised premises prior to or during the term hereof by Tenant, notwithstanding
the fact that any such improvements may be deemed part of the realty, and
notwithstanding any rule, regulation or statute to the contrary. In the event
Landlord has approved the specific structural alteration or demolition, Tenant
shall have no obligation to restore the demised premises except as otherwise set
forth in the Existing Lease or as set forth in any other leases or subleases
entered into by Tenant for any portion of the demised premises. In the event
Landlord has not approved specific structural alterations or demolition in
advance, then Tenant shall either restore the building and the demised premises
with respect to such unapproved structural alteration or demolition upon the
termination of this Lease, or, if this Lease is to expire at the end of the
Original Term, and if Tenant does not so restore the demised premises and the
building, then Landlord shall have the right to "put" the demised premises to
Tenant at the Purchase Price referred to in Article 16 below and Tenant shall be
obligated to purchase the demised premises at the Purchase Price pursuant to the
process provided in Section 16.3 below for the Put Option.
7.1.1 Approval of Initial Renovations: Tenant shall submit to Landlord
plans and drawings for the construction of the initial renovations and additions
that Tenant will construct to the demised premises for review and approval of
the structural elements thereof by Landlord in its discretion (the "Initial TI
Plans"). Landlord shall promptly, and in no event later than 15 days after the
receipt of the Initial TI Plans, (or within 5 days after the receipt of any
revision thereof submitted in response to Landlord's disapproval of a prior
submission of the Initial TI Plans), respond in writing to communicate
Landlord's approval or disapproval of specific structural elements of the
Initial TI Plans. Landlord's response shall include a reasonably detailed
breakdown of any specific structural elements that Landlord disapproves. Tenant
shall have the election to either (a) revise the Initial TI Plans and resubmit
them for reconsideration by Landlord, or (b) to proceed with the renovations or
additions in question without Landlord's approval (and subject to the provisions
of Section 7.1 above).
7.1.2 Approval of Subsequent Renovations: With respect to any structural
alterations or additions to the demised premises done after the initial
renovations and alterations of the demised premises, Tenant may at its election
submit to Landlord plans and drawings for the construction of such structural
alterations or additions for review and approval of the structural elements
thereof by Landlord in its discretion (the "TI Plans"). Landlord shall promptly,
and in no event later than 30 days after the receipt of any TI Plans, (or within
10 days after the receipt
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of any revision thereof submitted in response to Landlord's disapproval of a
prior submission of the TI Plans in question), respond in writing to communicate
Landlord's approval or disapproval of specific structural elements of the TI
Plans in question. Landlord's response shall include a reasonably detailed
breakdown of any specific structural elements that Landlord disapproves. Tenant
shall have the election to either (a) revise the TI Plans in question and
resubmit them for reconsideration by Landlord, or (b) to proceed with the
renovations or additions in question without Landlord's approval (and subject to
the provisions of Section 7.1 above).
7.2 Certain Liens: Tenant will cause to be paid all charges for all work
done (labor and materials) upon the demised premises during the term of this
Lease and will not suffer or permit any mechanics' or similar liens for labor or
materials furnished to the demised premises during the term of this Lease to
remain as a lien against the demised premises or any part thereof; and if any
such lien shall be filed, Tenant will either pay the same or procure the
discharge thereof by bonding, giving security or in such other manner as may be
required or permitted by law. Tenant shall have the right, however, in its name
or in the name of Landlord or in the name of both, to contest any such lien,
provided that the existence of such lien pending such contest shall not
jeopardize Landlord's interest in the demised premises. Tenant shall indemnify
Landlord against, and save Landlord harmless from any and all loss, damage,
claims, liabilities, judgments, costs and expenses arising out of the filing of
any such lien. Notice is hereby given that Landlord shall not, under any
circumstances, be liable to pay for any work, labor or services rendered or
materials furnished to Tenant or any of its subtenants upon credit.
7.3 Tenant's Permits: Landlord agrees upon request by Tenant to execute
or join in the execution of any application for any permits or licenses
(including without limitation, zoning changes) which may be necessary in
connection with the construction of any buildings or other improvements on the
demised premises or the making of any alterations, additions and repairs
thereto. All such permits and licenses shall be applied for and secured at
Tenant's expense in Tenant's name alone unless Landlord's name is also required
in connection therewith by such governmental authority. In addition, Landlord
agrees to cooperate fully with Tenant, without cost or expense to Landlord, in
connection with the exercise by Tenant of any of its rights under this Lease. In
particular, and without limitation, Landlord agrees to execute utility easements
and such other documents as Tenant may reasonably request.
7.4 Repairs by Landlord: Landlord shall have no obligation to make any
repairs or alterations to the demised premises or any part thereof.
ARTICLE VIII. Notices
8.1 Notices: All notices sent or required to be sent hereunder shall be
sent by registered or certified mail, return receipt requested, postage prepaid;
if sent to Landlord, the same shall be addressed to Landlord c/o Altid
Enterprises, LLC, 17 Monsignor O'Brien Highway, P.O. Box 410207, Cambridge,
Massachusetts 02141-0002 or to such other person or address as Landlord may
hereafter designate by notice to Tenant; if sent to Tenant, the same shall be
addressed to Tenant at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 Attn:
Xxxxxxx X. Xxxxxx, Global Facilities Manager, and with a copy to Xxxxx Xxxxxxx
Xxxxxxx Israels LLP, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn:
Xxxxx X. Xxxxxxxx, Esq., or to such other person or address as Tenant may
hereafter designate by notice to Landlord. If Tenant
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has given notice to Landlord of the name and address of any mortgagee of the
demised premises, a duplicate copy of every notice to Tenant shall be given to
said mortgagee at said address by registered or certified mail, return receipt
requested, postage prepaid. Such mortgagee shall have the same rights as
Tenant, and a reasonable period of time after receipt by it of notice of a
failure of Tenant, to correct any failure of Tenant.
ARTICLE IX. Subordination to Mortgages
9.1 Mortgage Holder's Election: Subject to the requirement that any such
first mortgagee must first enter into a Non-Disturbance Agreement (as defined
below) as a precondition to subordination, it is agreed that the right and
interest of Tenant under this Lease shall be: (i) subject and subordinate to
the lien of any present or future first mortgage (and to any and all advances
to be made thereunder, and to the interest thereon) upon the demised premises or
any property of which the demised premises are a part, if the holder of such
mortgage shall elect, by notice to Tenant, to subject and subordinate the right
and interest of Tenant under this Lease to the lien of its mortgage; or (ii)
prior to the lien of any present or future first mortgage if the holder of such
mortgage shall elect, by notice to Tenant, to give the right and interest of
Tenant under this Lease priority to the lien of its mortgage. It is understood
and agreed that the holder of such mortgage may also elect, by notice to
Tenant, to make some provisions hereof subject and subordinate to the lien of
its mortgage while granting other provisions hereof priority to the lien of its
mortgage. In the event of any of such elections, and upon notification by the
holder of such mortgage to that effect, the right and interest of Tenant under
this Lease shall be deemed to be subordinate to, or to have priority over, as
the case may be, the lien of said mortgage, irrespective of the time of
execution or time of recording of any such mortgage. Tenant agrees that it
will, upon request of Landlord, execute, acknowledge and deliver any and all
instruments deemed by Landlord necessary or desirable to evidence or to give
notice of such subordination or priority in a commercially reasonable form
consistent with the provisions of this Lease and as approved by Tenant and its
counsel. The word "mortgage" as used herein includes mortgages, deeds of trust
or other similar instruments and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof.
9.2 Non-Disturbance Agreement: Notwithstanding anything to the contrary
contained in this Article 9, Tenant shall not be required to subordinate this
Lease and the lien hereof to the lien of any future mortgage unless the holder
of such mortgage shall enter into an agreement with Tenant, recordable in form
(a "Non-Disturbance Agreement"), in a commercially reasonable form consistent
with the provisions of this Lease and as approved by Tenant and its counsel,
and to the effect of the following listed provisions in Sub-paragraphs 9.2.1
through 9.2.4. Upon request of Tenant, each holder of a mortgage on the demised
premises (including without implied limitation that holder of any mortgage in
place as of the time of execution of this Lease) shall enter into a
Non-Disturbance Agreement (whether or not such mortgage holder has elected to
subordinate Tenant's interest).
9.2.1 Non-Disturbance of Tenant: In the event of foreclosure of, or
transfer by deed in lieu of foreclosure, or similar action taken under, such
mortgage, Tenant's possession of the demised premises shall not be terminated
or disturbed by such mortgage holder or anyone claiming under such mortgage
holder so long as Tenant shall not be in default of any material provision
under this Lease beyond any applicable notice and cure periods.
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9.2.2 Liability of Mortgagee/Successor: In the event that the holder of a
mortgage shall succeed to Landlord's right, title and interest in this Lease, it
is expressly understood and agreed that such mortgage holder shall not be liable
for the performance of any of Landlord's obligations hereunder, except for the
performance of those obligations which arise or continue during the period of
time that such mortgage holder holds Landlord's right, title and interest in
this Lease. For purposes of this paragraph, such mortgage holder shall not be
deemed to hold Landlord's right, title and interest by virtue of any type of
collateral assignment of this Lease to it; it being understood that said holder
shall only be deemed to hold Landlord's right, title and interest if it shall
foreclose its mortgage or take a deed in lieu of foreclosure.
9.2.3 Recognition of Purchase Option: Any such mortgage holder must
expressly recognize and confirm the effect and enforceability of and acknowledge
that its interest is subject to Tenant's Purchase Option under Article 16 below
and that Tenant's Purchase Option shall continue in full force and effect after
any foreclosure of such mortgage or deed given in lieu of foreclosure, or after
any subsequent transfer to anyone claiming under such mortgage holder.
9.2.4 Intervening Liens: Any Non-Disturbance Agreement shall be solely for
the benefit of the mortgage holder that is party to such agreement, and its
successors in interest in the mortgage or in the demised premises, as the case
may be, and shall not be enforceable for the benefit of the holder or any
intervening lien to which the mortgage holder is subordinate (either by priority
or through the effect of subordination).
9.3 Notice for Mortgagee: After receiving notice from Landlord or from
any person, firm or other entity that such person, firm or other entity holds a
mortgage, as hereinbefore defined, which includes the demised premises as all or
as part of the mortgaged premises, no notice from Tenant to Landlord shall be
effective unless and until a copy of the same is given by certified or
registered mail to such holder, and the curing of any of Landlord's defaults by
such holder shall be treated as performance by Landlord. Tenant agrees that if
Landlord does not cure any default specified in a notice of default given by
Tenant to Landlord within fifteen (15) calendar days after Landlord's receipt
thereof, then Tenant shall give further notice of that fact to such mortgage
holder, and such mortgage holder shall thereupon, if it shall so elect, have the
right, but not the obligation, to cure the default of Landlord within twenty
(20) calendar days after its receipt of such further notice from Tenant, and in
case of a default which cannot, with due diligence, be cured within said twenty
(20) days, then the twenty (20) days shall be extended for such period as may be
necessary to complete the curing of the same with all due diligence and
continuity. This paragraph 9.3 benefits the holder of any mortgage entitled to
notices and shall not affect the rights of Tenant against the Landlord absent
prejudice to such mortgage holder.
9.4 Mortgagee Consent: Finally, Tenant agrees that so long as any present
or future first mortgage shall remain in effect Tenant shall not alter, modify,
amend, change, surrender or cancel this Lease nor pay the rent due hereunder in
advance for more than thirty (30) days, except as may be required herein,
within the prior written consent of the holder thereof, and Tenant will not
seek to be made an adverse or defendant party in any action or proceeding
brought to enforce or foreclose such mortgage. Tenant further agrees that it
shall not subordinate its interest in this Lease to the lien of any junior
mortgage, security agreement or lease affecting the demised premises, unless
the holder of the first mortgage shall consent thereto.
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' ARTICLE X. Fire and Casualty and Restoration
10.1 Fire and Casualty and Restoration: If any of the buildings or other
improvements on the demised premises shall be damaged or destroyed or rendered
untenantable, in whole or in part, by fire, the elements or any other cause,
such damage or destruction or conditions rendering said premises untenantable
shall not operate to terminate this Lease, but this Lease shall continue in
full force and effect, and without any reduction or abatement of rent of any
kind whatsoever. Neither Landlord nor Tenant shall be obligated to repair or
restore the demised premises or any portions thereof to the condition preceding
such damage or destruction or rendering untenantable or any other condition.
10.2 Tenant's Election to Restore: In the event that Tenant elects to
restore the demised premises after any casualty, then Tenant shall be permitted
to retain all proceeds of insurance from such casualty, provided that Tenant
shall restore the structure and base building improvements of the demised
premises (i.e. that portion of the demised premises equivalent to the demised
premises as delivered to Tenant at the outset of the term of this Lease before
the construction of Tenant's improvements and alterations) (the "Base
Building") to a value equivalent to the value of the demised premises as
delivered at the outset of the term of this Lease.
10.3 Landlord's Approval of Reconstruction: The design of the Base
Building to be reconstructed following casualty shall be subject to the
approval of Landlord, not to be unreasonably withheld, conditioned or delayed.
Tenant shall submit plans for the reconstruction of the demised premises for
Landlord's approval consistent with the process provided in Paragraph 7.1.1
above. During the Original Term, Tenant may elect to proceed with
reconstruction of the demised premises following casualty without the approval
of the Landlord of the design of the Base Building, provided that to the extent
the Landlord has not approved the design of the structural elements of the
demised premises as reconstructed, then Landlord shall have the right to "put"
the demised premises to Tenant at the Purchase Price referred to in Article 16
below and Tenant shall be obligated to purchase the demised premises at the
Purchase Price pursuant to the process provided in Section 16.3 below for the
Put Option.
10.4 Tenant's Election to Delay Reconstruction: To the extent that Tenant
intends that it may undertake reconstruction of the demised premises following
a casualty, but Tenant has elected to delay such reconstruction, Tenant may
retain the proceeds of insurance from such casualty in a segregated account
subject to escrow arrangements reasonably satisfactory to Landlord and
Landlord's mortgagee. In the event that Tenant exercises its Purchase Option,
Tenant may retain the proceeds of insurance from such casualty regardless of
Tenant's intent to restore the demised premises.
10.5 Proceeds Paid to Landlord: At any point, if Tenant elects finally
and irrevocably not to restore the demised premises following a casualty, and
if Tenant has declined to exercise its Purchase Option, the insurance proceeds
from such casualty shall be paid to Landlord to the extent of the value of the
demised premises as delivered to Tenant at the outset of the term of this Lease
before the construction of Tenant's improvements and alterations, provided that
if Landlord receives the insurance proceeds from such a casualty, then the
Landlord's Put Option shall be of no further force and effect.
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ARTICLE XI. Right of Entry
11.1 Right of Entry: Landlord shall have the right at all reasonable times
during the term of this Lease to enter upon the demised premises for the purpose
of inspecting the same, and, if Tenant has not exercised its Purchase Option,
during the six (6) month period prior to the expiration of the term, Tenant will
permit Landlord to enter upon the demised premises at reasonable times for the
purpose of showing the same to prospective tenants. Any entry by Landlord shall
be made after reasonable prior notice to Tenant (and in the case of entry to
premises subleased by Tenant to a sublessee, notice to Tenant and such
sublessee). Except in the case of emergency, reasonable prior notice shall
include at a minimum written notice of (a) the proposed time of entry, (b) the
individuals or parties proposed to enter the property, and (c) a contact person
representing the Landlord for coordination, and shall be given at lease one full
business day prior to the proposed time of entry. In case of emergency, prior
notice shall be limited or waived as is reasonable in the circumstances. Any
such entry shall be made without unreasonable interference with Tenant (or, if
applicable such sublessee's business), and such right of entry shall be subject
to any security measures adopted by Tenant (or, if applicable, such sublessee).
ARTICLE XII. Default
12.1 Landlord's Self-Help: If Tenant shall default in the performance or
observance of any agreement or condition in this Lease contained on its part to
be performed or observed other than an obligation to pay money to Landlord, and
shall not cure such default within thirty (30) days after notice from Landlord
specifying the default (or shall not within said period commence to cure such
default and thereafter prosecute the curing of such default to completion with
due diligence), Landlord may, at its option, without waiving any claim for
damages for breach of agreement, at any time thereafter cure such default for
the account of Tenant, and any amount paid or any contractual liability incurred
by Landlord in so doing shall be deemed paid or incurred for the account of
Tenant, and Tenant agrees to reimburse Landlord therefore or save Landlord
harmless therefrom; provided that Landlord may cure any such default as
aforesaid prior to the expiration of said waiting period but after notice to
Tenant, if the curing of such default prior to the expiration of said waiting
period is reasonably necessary to protect the real estate or Landlord's interest
therein, or to prevent injury or damage to persons or property. If Tenant shall
fail to reimburse Landlord upon demand for any amount paid for the account of
Tenant hereunder, said amount shall be added to and become due as a part of the
next payment of rent due hereunder.
12.2 Tenant's Default: (1) If rent or any other payment required to be
made hereunder shall not be paid for more than ten (10) days after Tenant shall
have received notice from Landlord of the failure of payment hereof; or (2) if
there shall be a failure in the performance or observance of any other agreement
or condition contained herein on the part of Tenant to be performed or observed
and such failure shall not be corrected within thirty (30) days after Tenant
shall receive notice from Landlord of such failure (or such longer period as may
be required to correct such failure if within said thirty (30) day period Tenant
shall commence to correct the same and thereafter diligently pursue the
correction thereof), then Landlord shall have the right, at its election, to
terminate the term of this Lease by giving notice to Tenant of the exercise of
said election, and in the event of Landlord's giving such notice of election to
terminate, the term
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of this Lease shall terminate on the date designated therefore in said notice,
which date shall be not less than three (3) days after the receipt of such
notice by Tenant, and thereupon, or at any time thereafter, and without any
further notice or demand, Landlord may re-enter the demised premises in the
manner prescribed by law.
In case of any such termination, Tenant will indemnify Landlord against
all loss of rent and other payments provided herein to be paid by Tenant to
Landlord between the time of termination and the expiration of the term of
this Lease as then constituted. It is understood and agreed that at the time of
the termination or at any time thereafter Landlord may rent the demised
premises, and for a term which may expire after the expiration of the term of
this Lease, without releasing Tenant from any liability whatsoever, that Tenant
shall be liable for any expenses incurred by Landlord in connection with
obtaining possession of the demised premises and in connection with any
reletting, including, but, without limitation, reasonable attorney's fees and
reasonable brokers' fees, and that any monies collected from any reletting
shall be applied first to the foregoing expenses and then to payment of rent
and all other payments due from Tenant to Landlord. Landlord shall use
commercially reasonable efforts to mitigate its damages arising from Tenant's
default or termination of this Lease in case of Tenant's default.
It is expressly understood and agreed that no action or proceeding to oust
Tenant from possession or to terminate the term of this Lease shall be taken or
brought by Landlord unless the notices herein specified be first given and the
times to cure defaults hereinabove specified have expired without such defaults
having been cured.
ARTICLE XIII. Eminent Domain
13.1 Eminent Domain: If the whole of the demised premises shall be taken
by right of eminent domain, this Lease shall be terminated as of the time of
the taking and rent shall be apportioned and adjusted as of said time.
13.2 Partial Condemnation: If a part of the demised premises shall be
taken by right of eminent domain, this Lease shall not be terminated but Fixed
Rent shall thereafter xxxxx in proportion to the area of the demised premises
so taken, except that if at such time there shall be a sublease or subleases in
existence on portions of the demised premises, the Fixed Rent shall thereafter
xxxxx in the same proportion as the annual rent under said sublease or
subleases shall be abated on account of such taking.
13.3 Condemnation Award: Landlord and Tenant shall jointly prosecute and
settle the proceedings for the determination and payment of the award payable
on account of any such taking, and the cost of such proceedings shall be a
first charge against the award received. The net award shall be divided between
Landlord and Tenant as follows: first, Landlord shall be entitled to so much of
the net award as is fairly allocable to the reversionary value of the land
taken; and second, Tenant shall be entitled to so much of the net award as is
fairly allocable to the leasehold value of the land taken and to so much of the
award as is fairly allocable to the improvements taken; it being intended that
the net award shall be fairly allocated, first between land taken and
improvements taken, and then that the portion so allocated to land taken shall
be further fairly allocated between (i) reversionary value and (ii) leasehold
value. Notwithstanding the foregoing, out of the net award and before any
division between Landlord and Tenant as
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provided above there shall be paid to the holders of the mortgages placed on
the demised premises, or any part or parts thereof, by Tenant or by Landlord at
Tenant's request pursuant to the provisions of Article 12, either the balance
unpaid on said mortgages together with interest to date of payment if this
Lease be terminated as aforesaid or the requirements of the holders of said
mortgages if this Lease not be so terminated; and if this Lease shall not be
terminated by reason of said taking subject to Article 9 above, there shall be
paid to Tenant the cost of repairing and restoring the improvements which
remain upon the demised premises after said taking.
13.4 Condemnation/Personal Property: Tenant's right and the right of
subtenants of Tenant to receive compensation or damages for its fixtures or
personal property shall not be affected in any manner by any provision in this
Article 13 contained.
ARTICLE XIV. Force Majeure
14.1 Force Majeure: In any case where either party hereto is required to
do any act (other than make a payment of money) delays caused by or resulting
from Act of God, war, civil commotion, fire or other casualty, labor
difficulties, general shortages of labor, materials or equipment, government
regulations or other causes beyond such party's reasonable control shall not be
counted in determining the time when the performance of such act must be
completed, whether such time be designated by a fixed time, a fixed period of
time or "a reasonable time".
ARTICLE XV. Saving Clause
15.1 Saving Clause: It is agreed that if any provision of this Lease
shall be determined to be void by any court of competent jurisdiction, then
such determination shall not affect any other provision of this Lease, all of
which other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one of which would render the provision void and the
other of which would render the provision valid, then the provision shall have
the meaning which renders it valid. The failure of Landlord or Tenant to insist
upon a strict performance of any of the terms, conditions and covenants herein
shall not be deemed a waiver of any subsequent breach of any of the terms,
covenants and conditions herein contained.
ARTICLE XVI. Right to Purchase
16.1 Right to Purchase: Tenant shall have a one time right to purchase
the entire demised premises at its election (the "Purchase Option") for a
purchase price of $8,400,000.00 (the "Purchase Price"). Tenant shall exercise
the Purchase Option by giving Landlord written notice of its election no
earlier than October 1, 2012, and no later than the later to occur of either
(a) September 30, 2013 or (b) the date which is ten (10) business days after
the receipt by Tenant of a written reminder notice from Landlord to Tenant (the
"Purchase Option Reminder Notice") which expressly (a) refers to the Purchase
Option, and (b) states that the Purchase Option shall expire on the later of
September 30, 2013, or ten (10) business days after the date of receipt of the
Purchase Option Reminder Notice. The Purchase Option Reminder Notice shall be
delivered no earlier than October 1, 2012.
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16.2 Closing of the Purchase Option: The closing of the purchase of the
demised premises pursuant to the Purchase Option shall be carried out under the
terms and conditions set forth in Exhibit D attached.
16.3 Landlord's Put: In the event that Landlord has the right to "put"
the demised premises to Tenant (the "Put Option") pursuant to Paragraph 4.1.2,
Paragraph 7.1 or Paragraph 10.3, then Landlord may exercise the Put Option by
giving written notice of Landlord's election to Tenant during a period of sixty
(60) days beginning on the later of either October 1, 2013, or ten (10)
business days after the date of receipt of the Purchase Option Reminder Notice.
If Landlord elects to exercise its Put Option to force Tenant to purchase the
demised premises, then Landlord and Tenant shall proceed to close the purchase
of the demised premises pursuant to the provisions for the closing on the
Purchase Option as if Tenant had timely elected to purchase the demised
premises pursuant to its Purchase Option.
ARTICLE XVII. Notice of Lease
17.1 Notice of Lease: At the request of either party Landlord and Tenant
will execute a short form lease or a notice of lease, recordable in form, as
may be required by the laws of the state in which the demised premises are
located so that notice of this Lease may be on record. The form of Notice of
Lease is attached as Exhibit E.
ARTICLE XVIII. Definitions and Interpretations
18.1 Definitions and Interpretations: The words "Landlord" and "Tenant"
and the pronouns referring thereto, as used in this Lease, shall mean, where
the context requires or admits, the persons named herein as Landlord and as
Tenant, respectively, and their respective heirs, legal representatives,
successors and assigns, irrespective of whether singular or plural, masculine,
feminine or neuter. This Lease shall bind and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors
and assigns. In the event of a transfer by any holder of Tenant's interest in
this Lease, such holder shall thereupon be relieved of all obligations of
Tenant thereafter accruing under this Lease and it shall be deemed that the
transferee has assumed and agreed to carry out all of the obligations of Tenant
under this Lease during such transferee's ownership. If Landlord shall be more
than one person, the obligations of Landlord shall be joint and several.
18.2 Exculpation: If all or any part of Landlord's interest in this Lease
shall be held by a trust, no trustee, shareholder or beneficiary of said trust
shall be personally liable for any of the covenants, or agreements, express or
implied, hereunder. The covenants and agreements of such party shall be binding
upon the trustees of said trust as trustees as aforesaid and not individually
and upon the trust estate. Without limiting the generality of the foregoing,
and whether or not Landlord's interest in this Lease shall be held by a trust,
Tenant specifically agrees to look solely to the Landlord's interest in the
demised premises (or the proceeds of sale, condemnation or insurance) for
recovery of any judgment from Landlord. The parties acknowledge that the
provisions of this Paragraph 18.2 are subject to the limitations of applicable
law (i.e. Mass. Gen. Laws ch. 186, section 15).
ARTICLE XIX. Hazardous Material
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19.1 Hazardous Material: Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Lot any such materials or substances except to use in the ordinary course of
Tenant's business, and then only after written notice is given to Landlord of
the identity of such substances or materials (collectively "Hazardous
Materials"). Without limitation, hazardous substances and materials shall
include those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq., any applicable state or local laws and the regulations adopted
under these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any release of hazardous
materials caused by Tenant or persons acting under Tenant, then the reasonable
costs thereof shall be reimbursed by Tenant to Landlord upon demand as
additional rent if such requirement applies to the demised premises. In
addition, Tenant shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Tenant's best knowledge and belief
regarding the presence of hazardous substances or materials on the demised
premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere
provided in this Lease from any release of hazardous materials on the demised
premises occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the term of this Lease.
ARTICLE XX. Effectiveness of Lease
20.1 Effectiveness of Lease: Upon execution of this Lease Landlord shall
deliver possession of the demised premises to Tenant, and during the period
between such delivery of possession and the commencement of the term of this
Lease all of the provisions of this Lease, except those relating to the payment
of rent (Fixed and additional), shall apply, to the extent that said provisions
may be made applicable to said period, it being expressly understood that Tenant
shall have the right and privilege prior to the commencement of the term, and
subject to the terms of the Existing Lease of entering the demised premises for
the purpose of commencing construction thereon without any liability to Landlord
for rent or other payments.
ARTICLE XXI. Brokers
21.1 Brokers: Tenant warrants that it has dealt with no brokers in
connection with obtaining this Lease except for Xxxxx Xxxxx & Partners and CRESA
Partners ("the Brokers"). Landlord shall, by separate agreement, pay all fees
and commissions due the Brokers for bringing about the execution and delivery of
this Lease, and agrees to defend, indemnify and save Tenant harmless from any
and all claims from any broker other than the Brokers.
ARTICLE XXII. Representatives
22.1 Representatives: From time to time during the term of this Lease, the
Tenant and the Landlord shall each appoint an individual representative,
respectively "Tenant's
17
Representative" and "Landlord's Representative" who shall be empowered to
receive communications and have the authority to deal with matters of the day
to day administration of this Lease. Initially Tenant's Representative shall be
Xxxxxxx X. Xxxxxx, Global Facilities Manager, and Landlord's Representative
shall be Xxxxxx X. Xxxxx.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed as a sealed instrument as of the day and year first above written.
LANDLORD:
BerCar II LLC, BY ITS MANAGERS:
ALTID ENTERPRISES, LLC
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Xxxxxxx X. Xxxxx, Manager
By: /s/ Xxxxxxx X. Xxxxx
____________________________
Xxxxxxx X. Xxxxx, Manager
SENNEN REALTY TRUST
/s/ Xxxxxx X. Xxxxx
_______________________________
Xxxxxx X. Xxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxx
_______________________________
Xxxxxxx X. Xxxxxxx, Trustee
TENANT:
XXXXXX-PRI AUTOMATION, INC.
By /s/ Xxxxx X. Xxxxxxxxx
______________________
Name: Xxxxx X. Xxxxxxxxx
Title: SR. VP of Finance
& ADM, CFO
ATTEST:
By /s/ Xxxxxxxx X. Xxxxx
_______________________
Name: Xxxxxxxx X. Xxxxx
Title: Executive Assistant
18
SCHEDULE A
LEGAL DESCRIPTION OF LOT
A certain parcel of land, with the building thereon, situated in
Chelmsford, Middlesex County, Massachusetts, being shown as Lot 2 on a plan
entitled "Subdivision Plan of Land in Chelmsford, Mass., as drawn for Xxxxxxx X.
and Xxxxxxx X. Xxxxx," dated October 24, 1979, recorded in the Middlesex County,
North District, Registry of Deeds in Plan Book 130 as Plan 159, and being more
particularly bounded and described as follows:
NORTHWESTERLY by Xxxxxxxxx Drive, by two lines measuring
one hundred twenty-nine and 01/100 (129.01)
feet and two hundred thirty and 21/100
(230.21) feet, respectively;
NORTHEASTERLY by Lot B, as shown on said plan, two
hundred forty-two and 86/100 (242.86) feet;
NORTHWESTERLY again, by said Lot B, by two lines measuring
four hundred forty-five (445) feet and two
hundred sixteen and 61/100 (216.61) feet,
respectively;
EASTERLY by Lot A, as shown on said plan, one
hundred sixty-five and 80/100 (165.80) feet;
SOUTHEASTERLY by land n/f of Xxxxxx and Xxxxxx Xxxxx, two
hundred sixty-seven and 95/100 (267.95) feet;
EASTERLY again, by said land of Xxxxx, two hundred
ninety-two and 96/100 (292.96) feet;
SOUTHEASTERLY by land n/f of Xxxxxxx and Xxxxxx Xxxxxx,
n/f of Xxxx and Xxxxxxxx Xxxxxx, n/f of
Xxxxx and Xxxxxxx Bomeage and n/f of Xxxxxxx
and Xxxx Xxxxxx, three hundred (300) feet
to an iron pin;
SOUTHWESTERLY by land n/f of Alpa Wrecking Co., one
hundred ninety-three (193) feet;
SOUTHERLY by land n/f of said Alpa Wrecking Co., three
hundred twenty-nine and 59/100 (329.59)
feet; and
WESTERLY by Lot 1, as shown on said plan, by two
lines measuring two hundred sixty-six (266)
feet and one hundred thirty-four and 02/100
(134.02) feet, respectively.
SCHEDULE B
Landlord's Representations and Warranties
(A) Landlord is the owner in fee simple of the demised premises and has full
right, power and authority to execute and perform this Lease and to grant the
estate herein demised.
(B) The demised premises are subject to no mortgages, leases, easements,
restrictions, encroachments, liens, agreements, claims or other encumbrances
(collectively called "Encumbrances") except as may be expressly set forth on
Schedule A. Tenant shall within one thirty (30) days after the execution and
delivery of this Lease obtain a Title Binder of a title insurance company
acceptable to Tenant, dated as of a time subsequent to the recording of this
Lease, or a short form thereof, committing the title insurance company to insure
to Tenant the leasehold interest of Tenant, upon payment of the title insurance
company's regular premium therefore, subject only to such Encumbrances as shall
be set forth in such Title Binder. If such Title Binder shall show Encumbrances
in addition to the Encumbrances set forth in Schedule A, Tenant shall have the
right at its election, exercised by Tenant's giving notice to Landlord within
fifteen (15) days thereafter, to terminate this Lease or to cause said
additional Encumbrances to be removed as exceptions to title. If this Lease
shall be terminated as aforesaid, this Lease shall become void and neither
Landlord nor Tenant shall have any claim against the other under this Lease or
on account of the termination hereof. If Tenant shall cause any of said
Encumbrances to be removed as exceptions, Landlord shall reimburse Tenant for
the reasonable cost to Tenant thereof, and the amount of such cost not so
reimbursed shall be deducted by Tenant from Fixed Rent.
(C) The demised premises contains parking for 5.8 cars per 1,000 square feet
of Rentable Floor Area as of the date of this Lease.
(D) Tenant, on paying the rent herein reserved and performing and observing
the agreements and conditions in this Lease contained on the part of Tenant to
be performed and observed, shall subject to the Existing Lease, peaceably and
quietly have, hold and enjoy the demised premises during the full term of this
Lease, free from molestation by any party whatsoever.
(E) Landlord has no knowledge of the presence or release of any Hazardous
Materials at the demised premises except as disclosed in the environmental
reports listed in attached Exhibit F.
(F) The copy of the Existing Lease of Hittite Microwave Corporation separately
provided to Tenant is correct and complete and includes all amendments thereto.
The estoppel certificate of Hittite Microwave Corporation delivered under
separate cover to Tenant (in the form of Exhibit B) is correct and complete as
of the date of this Lease.
(G) The schedule of encumbrances listed on the Title Commitment is correct and
complete as of the date of this Lease.
(H) To Landlord's knowledge, the demised premises is not affected by or subject
to any pending or threatened (x) condemnation suits or similar proceedings, (y)
claims, charges, complaints, petitions or unsatisfied orders by or before any
administrative agency or court, or (z) litigation, claims, actions, complaints,
petitions or unsatisfied order by or in favor of any party whatsoever, including
without limitation any mechanics' or materialmen's liens which, with respect to
any of the foregoing, are reasonably expected to have a material and adverse
effect on the demised premises; and
(I) To Landlord's knowledge, Landlord has not received from any governmental
authority having jurisdiction over the demised premises any notice alleging any
material violation by the demised premises of any law or any ordinance, order
or regulation of any governmental authority, including, but not limited to,
building, zoning, fire, disability, safety and health ordinances, statues,
regulations and requirements.
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION OF
LEASE AGREEMENT
ASSIGNMENT AND ASSUMPTION OF
LEASE AGREEMENT
This Assignment and Assumption of Leases (this "Agreement") is made and
entered into as of the ___ day of __________, 2002 by and between BerCar II,
LLC, a Massachusetts Limited Liability Company ("Assignor"), and Xxxxxx-PRI
Automation, Inc., a Delaware corporation ("Assignee").
WITNESSETH:
WHEREAS, concurrently with the execution and delivery of this Agreement,
Assignor is leasing to Assignee, by a
Lease Agreement dated as of ________,
2002 by and between Assignor, as Landlord, and Assignee, as Tenant (the "Master
Lease"), that certain real property legally described in Exhibit A attached
hereto and made a part hereof for all purposes (the "Property");
WHEREAS, Assignor has agreed to assign to Assignee a certain lease as
hereinafter set forth;
NOW, THEREFORE, in consideration of the receipt of Ten Dollars ($10.00),
the assumptions by Assignee hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor and Assignee agree as follows:
1. Assignor does hereby ASSIGN, SET OVER and DELIVER to Assignee, its
successors and assigns, all of landlord's/lessor's right, title and interest in
that certain Lease dated July 6, 1999, as amended by Amendment A dated as of
August 15, 1999 by and between Assignor, as landlord, and Hittite Microwave
Corporation ("Hittite"), as tenant (the "Hittite Lease"), together with any and
all refundable tenant security and other refundable deposits in landlord's/
lessor's possession with respect to said Hittite Lease as of the date of this
Agreement (collectively, the "Deposits"). A schedule of such Deposits is
attached as Exhibit B.
2. Assignee hereby assumes and hereby covenants and agrees to fully and
faithfully perform, observe and comply with all of the covenants, agreements,
conditions and other terms and provisions stated in the Hittite Lease which,
under the terms of the Hittite Lease, are to be performed, observed, and
complied with by the landlord from and after the date of this Agreement.
Assignee acknowledges that Assignee shall become solely responsible and liable
on the Hittite Lease as landlord thereunder from and after the date hereof and
Assignee hereby agrees to indemnify, release and hold Assignor harmless from
and against any and all claims pertaining to the Hittite Lease, arising from
events occurring from and after the date of this Agreement, including, without
limitation, claims made by Hittite with respect to the Deposit to the extent
paid or assigned to Assignee or for which Assignee received a credit at Closing.
3. This Assignment is made in connection with the Master Lease and on
the condition that in the event of any reversion of the Assignee's interest as
"Tenant" under the Master Lease to Assignor as "Landlord" under the Master
Lease, or its successor as the owner of
the Property, then this Assignment shall be of no further force or effect
thereafter, and the Hittite Lease shall be automatically deemed reassigned to
Assignor. The Assignee shall cooperate in executing any reasonable agreement or
instrument confirming the effect of such reassignment. No such reassignment
shall relieve Assignee from its liabilities and obligations as the holder of the
interest of the landlord named under the Hittite Lease that arise during or with
respect to the period that Assignee holds such interest.
4. This Assignment shall inure to the benefit of, and be binding upon, the
successors, executors, administrators, legal representatives and assigns of the
parties hereto.
5. This Assignment shall be construed under and enforced in accordance
with the laws of the Commonwealth of Massachusetts.
6. This Assignment may be executed in two or more counterparts, and it
shall not be necessary that any one of the counterparts be executed by all of
the parties hereto. Each fully or partially executed counterpart shall be
deemed an original, but all of such counterparts taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE ON FOLLOWING PAGE]
EXECUTED effective as of the date first above written.
ASSIGNOR:
BERCAR II, LLC, by its Managers:
ALTID ENTERPRISES, LLC
By:
-----------------------------
Xxxxxxx X. Xxxxx, Manager
By:
-----------------------------
Xxxxxxx X. Xxxxx, Manager
SENNEN REALTY TRUST
By:
-----------------------------
Xxxxxx X. Xxxxx, Trustee
By:
-----------------------------
Xxxxxxx X. Xxxxxxx, Trustee
ASSIGNEE:
XXXXXX-PRI AUTOMATION, INC.
By:
-----------------------------
Name:
Title:
Exhibit A
-----------
[Description of Real Property]
Exhibit B
------------
Deposits
EXHIBIT B
FORM OF TENANT ESTOPPEL OF HITITE MICROWAVE CORPORATION
TENANT ESTOPPEL
---------------
To: Xxxxxx-PRI Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Global Facilities Manager
Re: Lease dated July 6, 1999, as amended by Amendment A dated as of August 15,
1999 (collectively, the "LEASE") by and between BerCar II, LLC, as landlord
(the "MASTER LANDLORD"), and Hittite Microwave Corporation, as tenant (the
"TENANT"), with respect to the premises described in the Lease as
approximately 34,000 square feet (the "PREMISES") and which are a part of
the property located at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (the
"PROPERTY").
Ladies and Gentlemen:
The undersigned Tenant understands that Xxxxxx-PRI Automation, Inc. (the
"SUB-LANDLORD") and Master Landlord have or will be entering into a
lease
agreement ("MASTER LEASE") whereby Sub-Landlord will be leasing the entire
Property (including the Premises) from Master Landlord. In connection with the
Master Lease, Master Landlord and Sub-Landlord have or will enter into an
Assignment and Assumption of
Lease Agreement under which Master Landlord will
assign to Sub-Landlord and Sub-Landlord will assume from Master Landlord,
Master Landlord's interest in the Lease.
Tenant understands that Sub-Landlord will rely upon the information and
matters set forth below in entering into the Master Lease. For purposes of this
certificate the Master Landlord and the Sub-Landlord are referred to
collectively as "LANDLORD".
The Tenant, for the benefit of Sub-Landlord, its successors and assigns,
hereby certifies, represents, warrants, agrees and acknowledges that:
1. The Lease has not been assigned, amended or modified in any way, nor
have the Premises been sublet in whole or in part, except for the following [if
no exceptions are stated, there are NONE]:
-------------------------------------
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
2. A true and complete copy of the Lease, including, if any, all
amendments and modifications, is attached hereto as Exhibit A. There are no
side letters or other arrangements relating to the Premises or the Property.
3. The Lease is presently in full force and effect according to its
terms and is the valid and binding obligation of Tenant.
-1-
4. Neither Tenant nor Landlord is in default under the Lease nor does any
state of facts exist which with the passage of time or the giving of notice, or
both, could constitute a default under the Lease.
5. All conditions under the Lease to be satisfied by Landlord as of the
date hereof (including, without limitation, all work, if any, to be performed by
Landlord in the Premises or the Property) have been satisfied, and all
contributions, if any, required to be paid by Landlord under the Lease to date
for improvements to the Premises have been paid, except as hereafter stated [if
no exceptions are stated, there are NONE]:
------------------------------------
------------------------------------------------------------------------------.
6. Tenant is in possession of the Premises and is fully obligated to pay
and is paying the rent and other charges due under the Lease and is fully
obligated to perform and is performing all of the other obligations of Tenant
under the Lease, except as hereafter stated [if no exceptions are stated, there
are NONE]:
---------------------------------------------------------------------
------------------------------------------------------------------------------.
7. The term of the Lease commenced on , , and expires on
---------- ----
, .
---------- ----
8. The Lease does not provide for any payments (including, without
limitation, rent credits) by Landlord to Tenant which are presently due and
payable, or which are due and payable in the future, except as hereafter stated
[if no such payments or credits are stated, there are NONE]:
-------------------
------------------------------------------------------------------------------.
9. On this date, to the best of Tenant's knowledge, there are no existing
defenses, set-offs or counterclaims which Tenant has against the enforcement of
the Lease by Landlord, except as hereafter stated [if no exceptions are stated,
there are NONE]:
---------------------------------------------------------------
------------------------------------------------------------------------------.
10. The base rent being paid under the Lease is $ per month
-------------
($ per annum). The base rent has been paid for the Premises up to and
--------
including , 2002, and the next rental payment is due on ,
---------- -----------
200 . The monthly common area charges are $ per month ($ per
- ------ -------
annum). The monthly real estate charges are $ per month ($ per
--------- -------
annum). Except as hereafter stated, no rent has been paid more than one (1)
month in advance of the due date [if no advance rents are stated, there are
NONE]:
-------------------------------------------------------------------------
-------------------------------------------------------------------------------
------------------------------------------------------------------------------.
11. Tenant shall not make any prepayment of rent under the Lease more than
one (1) month in advance of the due date thereunder.
- 2 -
12. The security deposit is $45,837.00 (the "SECURITY DEPOSIT").
13. Except as hereafter stated, the Tenant has no options or rights to
renew, extend, amend, modify, or change the term of the Lease [if no such
options or rights are stated, there are NONE]: One (1) option to extend for five
(5) years pursuant to Article 13 of the Lease.
14. Except as hereafter stated, the Tenant has no options or rights of
expansion, purchase or first refusal concerning the Lease, Premises or the
building of which Premises are a part [if no such options or rights are stated,
there are NONE]: NONE.
15. Tenant does not have any rights to terminate the Lease other than
those contained in the Lease and any termination rights which may be available
to Tenant upon the occurrence of an event of default by Landlord under the
Lease.
16. There are no actions, whether voluntary or otherwise, pending or
threatened against the Tenant, or any guarantor of the Tenant's obligations
under the Lease, pursuant to the bankruptcy or insolvency laws of the United
States or any similar state laws, and there are no claims or actions pending
against Tenant which if decided against Tenant would materially and adversely
affect Tenant's financial condition or Tenant's ability to perform Tenant's
obligations under the Lease.
17. Tenant has no actual or constructive knowledge of the presence of, or
any processing, use, storage, disposal, release or treatment of any hazardous or
toxic materials or substances at, on or beneath the Premises.
18. A [Notice] [Memorandum] of Lease has been field or recorded at
___________ _____________________________________.]
19. This Agreement shall be binding upon Tenant and Tenant's successors
and permitted assigns.
[The balance of this page is intentionally left blank]
-3-
DATED: as of __________ __, 2002 and executed as an instrument under seal
at ______________, _________________.
TENANT:
HITTITE MICROWAVE CORPORATION
By:
_____________________________
Name:
_______________________
Its:
_______________________
Hereunto Duly Authorized
Date executed by Tenant: _________
-4-
COMMONWEALTH OF MASSACHUSETTS
______________________, ss. ___________________________, 2002
Then personally appeared before me _______________________________, the
_____________________________ of Hittite Microwave Corporation, and acknowledged
the foregoing to be such person's free act and deed, as the ____________________
of Hittite Microwave Corporation and the free act and deed of said corporation
and made oath that the facts therein stated are true, accurate and complete.
________________________________________
, Notary Public
My commission expires:
- 5 -
EXHIBIT A
Copy of Lease
(including all amendments)
-6-
EXHIBIT C
TITLE COMMITMENT
COMMITMENT FOR TITLE INSURANCE
ISSUED BY
FIRST AMERICAN TITLE INSURANCE COMPANY
NATIONAL COMMERCIAL DIVISION
PRUDENTIAL CENTER - 000 XXXXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX 00000
ALTA COMMITMENT NO. 32160
PROPERTY ADDRESS: 00 XXXXXXXXX XXXXX, XXXXXXXXXX, XXXXXXXXXXXXX
FIRST AMERICAN TITLE INSURANCE COMPANY, herein called the Company, for valuable
consideration, hereby commits to issue its policy or policies of title insurance
as identified in Schedule A, in favor of the proposed insured named in Schedule
A, as owner or mortgagee of real estate or interest covered hereby in the land
described or referred to in Schedule A, upon payment of the premiums and charges
therefor; all subject to the provisions of Schedules A and B and to the
Conditions and Stipulations hereof.
This Commitment shall be effective only when the identity of the proposed
insured and the amount of the policy or policies committed for have been
inserted in Schedule A hereof by the Company, either at the time of the issuance
of this Commitment or by subsequent endorsement.
This Commitment is preliminary to the issuance of such policy or policies of
title insurance and all liability and obligations hereunder shall cease and
terminate six (6) months after the effective date hereof or when the policy or
policies committed for shall issue, whichever first occurs, provided that the
failure to issue such policy or policies is not the fault of the Company.
This Commitment shall not be valid or binding until countersigned by an
authorized officer or agent of the Company.
CONDITIONS AND STIPULATIONS
1. The term "mortgage", when used herein, shall include deed of trust, trust
deed or other security instrument.
2. If the proposed insured has or acquires knowledge of any defect, lien,
encumbrance, adverse claim or other matter affecting the estate or interest
or mortgage thereon covered by this Commitment other than those shown in
Schedule B hereof, and shall fail to disclose such knowledge to the Company
in writing, the Company shall be relieved from liability for any loss or
damage resulting from any act of reliance hereon to the extent the Company
is prejudiced by failure to so disclose such knowledge. If the proposed
insured shall disclose such knowledge to the Company, or if the Company
otherwise acquires, actual knowledge of any such defect, lien, encumbrance,
adverse claim or other matter, the Company at its option may amend Schedule
B of this Commitment accordingly, but such amendment shall not relieve the
Company from liability previously incurred pursuant to paragraph 3 of these
Conditions and Stipulations.
3. Liability of the Company under this Commitment shall be only to the named
proposed insured and such parties included under the definition of Insured
in the form of policy or policies committed for and only for actual loss
incurred in reliance hereon in undertaking in good faith (a) to comply with
the requirements hereof, or (b) to eliminate exceptions shown in Schedule
B, or (c) to acquire or create the estate or interest or mortgage thereon
covered by this Commitment. In no event shall such liability exceed the
amount stated in Schedule A for the policy or policies committed for and
such liability is subject to the insuring provisions, exclusions from
coverage, and the conditions and stipulations of the form of policy or
policies committed for in favor of the proposed insured which are hereby
incorporated by reference and are made a part of this commitment except as
expressly modified herein.
4. Any claim of loss or damage, whether or not based on negligence, and which
arises out of the status of the title to the estate or interest or the lien
of the insured mortgage covered hereby or any action asserting such claim,
shall be restricted to the provisions and conditions and stipulations of
this Commitment.
IN WITNESS WHEREOF, the Commitment has caused this Commitment to be signed and
sealed, to become valid when countersigned by an authorized officer or agent of
the Company, all in accordance with its By-Laws. This Commitment is effective as
of the date shown in Schedule A as "Effective Date".
FIRST AMERICAN TITLE INSURANCE COMPANY
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxx, Vice President
FIRST AMERICAN TITLE INSURANCE COMPANY
National Commercial Division
000 Xxxxxxxxxx Xxxxxx - Prudential Center
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000)000-0000 y (000)000-0000 y Fax: (000)000-0000
COMMITMENT FOR TITLE INSURANCE
SCHEDULE A
Commitment Number: 32160
1. EFFECTIVE DATE: August 16, 2002
2. POLICY OR POLICIES TO BE ISSUED: AMOUNT OF INSURANCE
-------------------------------- -------------------
(A) ALTA 1992 LOAN POLICY $ TO BE DETERMINED
PROPOSED INSURED: TO BE DETERMINED
(B) ALTA 1992 LEASEHOLD OWNER'S POLICY $ TO BE DETERMINED
PROPOSED INSURED: XXXXXX-PRI AUTOMATION, INC.
3. THE ESTATE OR INTEREST IN THE LAND DESCRIBED OR REFERRED TO IN THIS
COMMITMENT AND COVERED HEREIN IS FEE SIMPLE AND TITLE HERETO IS AT THE
EFFECTIVE DATE HEREOF VESTED IN: BerCar II, LLC, a Massachusetts Limited
Liability Company, by virtue of a Deed from BerCar LLC, dated April 15, 1998,
recorded with the Middlesex North Registry of Deeds, Book 9206, Page 185.
4. THE LAND REFERRED TO IN THIS COMMITMENT IS DESCRIBED AS SET FORTH ON THE
ATTACHED EXHIBIT A:
PROPERTY ADDRESS: 00 XXXXXXXXX XXXXX
XXXX, XXXXX: CHELMSFORD, MASSACHUSETTS
COUNTY: MIDDLESEX, NORTH
FIRST AMERICAN TITLE INSURANCE COMPANY
NATIONAL COMMERCIAL DIVISION
000 XXXXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX 00000
By: /s/ XX Xxxxxxxx
--------------------
Authorized Signatory
EXHIBIT A
LEGAL DESCRIPTION Commitment No. 32160
A certain parcel of land situated on the Southeasterly side of
Xxxxxxxxx Drive located in the Town of Chelmsford, Middlesex County,
Commonwealth of Massachusetts, shown as Lot 2 on a plan titled, "Subdivision
Plan of Land in Chelmsford, Massachusetts, as drawn for Xxxxxxx X. and Xxxxxxx
X. Xxxxx, October 24, 1979, scale 1" - 100', revised February 11, 1980," as
prepared by Merrimack Engineering Services, Inc., 00 Xxxx Xxxxxx -- Xxxxx 00,
Xxxxxxx, Xxxxxxxxxxxxx 00000, recorded in the Middlesex North District, Registry
of Deeds Plan Book 130, Plan 159, bounded and described as follows:
Beginning at a point in the Easterly line of Xxxxxxxxx Drive, at the
Eastern corner of said Lot 2 at Land of Xxxxxxx and Xxxxxxx Xxxxx, shown as Lot
3 on said plan;
Thence
R = 375.0' Length = 230.21 along Xxxxxxxxx Drive to the point of
curvature of the roadway marked by a
nail set in the driveway; Thence
S 44 degrees-14'-16" W 129.01' along Xxxxxxxxx Drive to a point at land
now or formerly of Xxxxxxx X. and
Xxxxxxx X. Xxxxx, shown as Lot #1 on the
referenced plan, then turning and
running
S 07 degrees-01'-06" E 400.02' along lands now or formerly of Xxxxxxx
X. and Xxxxxxx X. Xxxxx, to a point at
land of Alpa Wrecking Company, thence
turning and running
N 82 degrees'-38'-54" E 329.59' along lands now or formerly of Alpa
Wrecking Company, to a point, thence
turning and running
S 58 degrees-06'-44" E 193.00' along lands now or formerly of Alpha
Wrecking Company, to a point at land now
or formerly of Xxxxx and Xxxxxxx
Bomenge, thence turning and running
N 51 degrees-36-'45" E 300.00' along lands now or formerly of Xxxxx and
Xxxxxxx Bomenge, Xxxx and Xxxxxxxx
Xxxxxx, Xxxxxxx and Xxxxxx Xxxxxx, to a
point at land of Xxxxxxx and Xxxxxx
Xxxxxx, thence turning and running
N 04 degrees-57'-08" E 292.96' along lands now or formerly of Xxxxxxx
and Xxxxxx Xxxxxx, and Xxxxxx and Xxxxxx
Xxxxx, to a point at land now or
formerly of Xxxxxx and Xxxxxx Xxxxx,
thence turning and running
N 58 degrees-31'-30" E 267.95' along lands now or formerly of Xxxxxx
and Xxxxxx Xxxxx to a point at land now
or formerly of Xxxxxxx X. and Xxxxxxx X.
Xxxxx, known as Lot A, thence turning
and running
N 11 degrees-45'-44" W 165.80' along lands now or formerly of Xxxxxxx
X. and Xxxxxxx X. Xxxxx, to other lands
now or formerly of Xxxxxxx X. and
Xxxxxxx X. Xxxxx, known as Lot B on the
S 62 degrees-13'-17" W 216.61' along Lot B, now or formerly of
Xxxxxxx X. and Xxxxxxx X. Xxxxx to
a point, thence turning and running
S 78 degrees-14'-16" W 445.00' along Lot B, now or formerly of
Xxxxxxx X. and Xxxxxxx X. Xxxxx, to
a point, thence turning and running
N 46 degrees-45'-44" W 242.86' along Lot B, now or formerly of
Xxxxxxx X. and Xxxxxxx X. Xxxxx, to
a point, at Xxxxxxxxx Drive, being
the point of beginning.
The above described parcel of Land contains an area of 10.625 Acres as shown on
the above referenced plan.
Property Address: 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
SCHEDULE B - Xxxxxxx 0 XXXXXXXXXX XX. 00000
REQUIREMENTS
THE FOLLOWING ARE THE REQUIREMENTS TO BE COMPLIED WITH:
ITEM A) Payment to or for the account of the grantors or mortgagors of
the full consideration for the estate or interest to be insured.
ITEM B) Payment of the premiums, fees and charges for the policy.
ITEM C) Payment of all taxes, charges, assessments, levied and assessed
against the subject premises, which are due and payable.
ITEM D) Proper instrument(s) creating the estate or interest to be
insured must be Executed and duly filed for record, to wit:
a) Lease from BerCar II, LLC to Xxxxxx-PRI Automation, Inc.
to be insured.
b) Mortgage from proposed Owner to proposed Lender to be
insured.
c) Certificate of Municipal Liens.
d) Release, Termination, Discharge of the following matters
which appear of public record: See Schedule B items 7, 8,
15, 16 & 17
ITEM E) Satisfactory completion of a standard Mechanic Lien/Parties in
Possession Affidavit and Indemnity Form alleging that any
improvements and/or repairs or alterations thereto are completed,
that contractor, sub-contractors, labor and materialmen are all
paid and have released of record all liens or notice of intent to
perfect a lien for labor or material, plus identification of
parties in possession, including rent roll, if appropriate.
ITEM F) Full on ground Title Insurance Survey and standard surveyor
report which locates and defines all recorded exceptions noted in
Schedule B, section 2 and reflecting issues which are
satisfactory in the Company's sole discretion.
ITEM G) The Company may make other requirements or exceptions upon its
review of the proposed documents creating the estate or interest
to be insured, or otherwise ascertaining details of the
transaction.
ITEM H) Authority documents for all parties executing documents.
NOTE: THIS COMPANY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND/OR
EXCEPTIONS UPON REVIEW OF SAID DOCUMENTS.
SCHEDULE B - XXXXXXX 0 XXXXXXXXXX XX. 00000
EXCEPTIONS
The policy or policies to be issued will contain exceptions to the following
unless the same are disposed of to the satisfaction of the Company.
1. Any facts, rights, interests, or claims which are not shown by the public
records but which would be ascertained by an inspection of said land or by
making inquiry of persons in possession thereof.
2. Discrepancies, conflicts in boundary lines, shortage in area, encroachments,
or any other facts which a correct survey would disclose, and which are not
shown by public records.
3. Any lien, or right to a lien, for services, labor or material heretofore or
hereafter furnished, imposed by law and not shown by the public records.
4. Real estate taxes and municipal charges which constitute liens.
5. Title to and rights of the public and others entitled thereto in and to
those portions of the insured premises lying within the bounds of adjacent
streets, roads and ways.
6. Easements granted by Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx to Chelmsford
Water District dated June 17, 1980, and recorded in Book 2425, Page 129, as
affected by a Revised Easement dated October 16, 1981, and recorded in Book
2506, Page 621.
7. Easements granted by Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx to Massachusetts
Electric Company and New England Telephone and Telegraph Company dated June
18, 1980, and recorded in Book 2425, Page 127, as affected by revised
easement dated October 15, 1981, and recorded in Book 2510, Page 591.
8. Drainage easements granted by Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx dated
November 28, 1983, and recorded in Book 2682, Page 636.
9. Declaration of Common Easement by Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated
June 23, 1981, recorded in Book 2485, page 445.
13. Easement Agreement by Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx, as Trustees of
00 Xxxxxxxxx Xxxxx Realty Trust, dated November 19, 1984, recorded in Book
2909, page 21.
15. Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing from BerCar II, LLC to Archon Financial, L.P., dated April 16,
1998, recorded with said Deeds, Book 9212, page 38.
16. Assignment of Leases and Rents from BerCar II, LLC to Archon Financial,
L.P., dated April 16, 1998, recorded with said Deeds, Book 9212, Page 87.
17. UCC Financing Statement from BerCarr II, LLC to Archon Financial, L.P.,
recorded with said Deeds, Book 9212, Page 101, as assigned to LaSalle
National Bank Association, as Trustee for the GS Mortgage Securities
Corporation II, Commercial Pass-Through Certificates, Series 1998-C1,
recorded with said Deeds, Book 12990, page 102.
END OF SCHEDULE
/s/ illegible signature
-----------------------------
Authorized Signature
Exhibit D
Purchase Option Closing Procedures
Closing Date: The date (the "Closing Date") when the deed to the demised
premises shall be delivered and the Purchase Price shall be paid (the "Closing")
shall be the date elected by Tenant by written notice given not less than 30
days prior, and shall be no earlier than January 2, 2015, and no later than
September 30, 2015. The Closing shall take place at 10:00 a.m. on the Closing
Date at the demised premises or at such other location as the parties shall
agree in writing.
Seller's Deliveries: At the Closing, Landlord shall deliver to Tenant or its
nominee or assignee (i) a fully executed and acknowledged quitclaim deed
transferring fee simple title (which shall be a one hundred percent (100%)
ownership interest) in and to the demised premises, free and clear of all
encumbrances other than Approved Exceptions, as hereinafter defined, (ii) an
affidavit or certificate satisfying the requirements of Section 1445 of the
Internal Revenue Code of 1986, as amended (the "FIRPTA Certificate"), (iii) such
certificates or other instruments (including but without limitation (x) an
affidavit that there are no tenants or other parties in possession of the
demised premises (other than Tenant and any parties claiming under Tenant) and
that Landlord has no knowledge of any work having been done at the demised
premises (other than by Tenant or any parties claiming under Tenant) which would
entitle anyone now or hereafter to claim a mechanics' or materialmen's lien on
the demised premises and (y) evidence of Landlord's authority as may be
reasonably required by Tenant) which are customary in like transactions in the
greater Boston area (including, if and to the extent applicable, an assignment
without warranty or representation of any other property rights of Landlord with
respect to the demised premises) and (iv) a 1099 tax reporting form.
Purchase Price: The "Purchase Price" for the demised premises shall be paid to
the Landlord at the Closing in cash or by wire transfer or certified funds
check.
Title: At the Closing, Landlord shall deliver to Tenant or, if Tenant so directs
by notice to Landlord at least three (3) days prior to Closing, to Tenant's
nominee or assignee, a good and sufficient quitclaim deed to the demised
premises, which shall convey good, record and marketable title to the demised
premises free and clear of all liens, municipal betterments, assessments,
easements, restrictions and encumbrances of any nature or description
whatsoever, except the following (the "Approved Exceptions"):
i. provisions of applicable building codes and zoning laws;
ii. liens for municipal betterments;
iii. rights, easements, restrictions and other title matters of record
which are set forth in the Title Commitment, and such other title
matters arising after the date hereof which are consented to in
writing by Tenant, created by Tenant or result from Tenant's failure
to act; and
iv. the Lease (and the notice of lease with respect thereto) and parties
in possession thereunder (i.e., only Tenant or any party claiming
under Tenant).
Registered Title. In addition to the foregoing, if the title to the demises
premises or any portion thereof is registered, the deed shall be in form
sufficient to entitle Tenant to a Certificate of Title for the demised
premises, and Landlord shall deliver with said deed all instruments, if any,
necessary to enable Tenant to obtain such Certificate of Title.
Lease: The Original Term of the Lease shall be extended beyond September 30,
2014 to the Closing Date and shall terminate as of the Closing, subject to any
undischarged obligation of either party thereunder which is by the terms thereof
to survive the termination thereof.
Use of Purchase Money to Clear Title: In order to enable Landlord to make
conveyance as herein provided, Landlord may, at Closing, use the Purchase Price
or any portion thereof to clear title of any or all encumbrances or adverse
interests, and all instruments required therefore shall be procured and recorded
simultaneously with the recording of Landlord's deed of the Property or
thereafter, provided other reasonably satisfactory arrangements for the
procuring and recording of such instruments are made at Closing.
Adjustments: The Purchase Price shall not be subject to any adjustment.
Closing Costs: Tenant shall pay all premiums for any and all title insurance
policies it may obtain with respect to the Property. All real estate transfer
taxes shall be borne by Landlord. All other costs and expenses, if any, shall
be borne by the respective parties in accordance with standard conveyancing
practices in the greater Boston area prevailing on the Closing Date for similar
transactions.
Remedies: If Landlord fails to fulfill obligation to convey the demised
premises to Tenant pursuant to the Purchase Option as provided in the Lease and
this Exhibit D, Tenant shall have the following rights and remedies, all of
which shall be cumulative except to the extent otherwise provided by applicable
law (it being understood that Tenant's right to obtain the remedy of specific
performance is conditioned upon payment in full to Landlord of the Purchase
Price hereunder):
(A) Seek specific performance of the Purchase Option (Landlord hereby
acknowledging that the demised premises are unique and, for that reason, among
others, Tenant will be irreparably damaged if the Purchase Option is not
specifically enforced. Accordingly, in the event of any breach or default of
the Purchase Option by Landlord, Landlord hereby irrevocably stipulates that
Tenant shall have, without prejudice to any right or remedy otherwise available
at law or in equity, the right to demand and have specific performance of the
Purchase Option);
(B) Seek actual damages provided that such damages shall not exceed One Million
and 00/100 Dollars ($1,000,000); or
(C) Seek a restraining order and/or injunction to prevent Landlord from selling
or encumbering or otherwise transferring the Property to any other party.
In the event of Landlord's default of its obligations under the Purchase
Option, Tenant at all times shall have the right to continue its use and
occupancy of the Property pursuant to the Lease until resolution of Landlord's
default.
EXHIBIT E
FORM OF NOTICE OF LEASE
NOTICE OF LEASE
Notice is hereby given pursuant to Chapter 183, Section 4 of the General Laws,
of a lease upon the following terms:
Landlord: BerCar II, LLC,
a Massachusetts limited liability company
Tenant: Xxxxxx-PRI Automation, Inc.
a Delaware corporation
Date of Lease _________________, 2002
Execution:
Demised Premises: A certain parcel of land, with the building thereon,
situated at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, as more particularly described on
Exhibit A attached hereto and incorporated herein.
Term and Approximately twelve (12) years, commencing on or about
Commencement Date: October 1, 2002 and expiring on September 30, 2014.
Extension Options: Two (2) extension options of ten (10) years each
pursuant to and subject to the terms and provisions of
Sections 1.5 and 1.6 of the Lease.
Right to Purchase: Tenant, at its election, has a one (1) time right to
purchase the entire Premises pursuant to and subject
to the terms and provisions of Article 16 of the Lease.
Executed as an instrument under seal this ____day of ________, 2002.
LANDLORD: TENANT:
BerCarII, LLC Xxxxxx-PRI Automation, Inc.
By: By:
__________________________ __________________________
Name: Name:
Title: Title:
COMMONWEALTH OF MASSACHUSETTS
_________, ss. ____________, 2002
Then personally appeared the above-named ____________ as ____________ of
____________, a _____________, on behalf of the _________ (in its capacity as
________ of ________), and acknowledged the foregoing instrument to be his/her
free act and deed in said capacity and the free act and deed of said __________
(in its capacity as __________ of said _________), before me,
_______________________________
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
_________, ss. ____________, 2002
Then personally appeared the above-named ____________ as ____________ of
____________, a _____________, and acknowledged the foregoing instrument to be
his/her free act and deed in said capacity and the free act and deed of said
__________, before me,
_______________________________
, Notary Public
My Commission Expires:
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT F
LIST OF ENVIRONMENTAL REPORTS
(1) Phase I Environmental Site Assessment, 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX,
by Xxxxxxx Environmental Management, Inc., dated March 22, 1996.
(2) Phase I Environmental Site Assessment, 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, by ENSR, 000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx, dated
March 1998.
(3) Phase I Environmental Site Assessment, 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx, by XX Xxxxx, Inc., [draft dated, September 6, 2002].
