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EXHIBIT 10.14
SUBLEASE
THIS SUBLEASE ("Sublease") is made as of September 1, 1997 (the "Effective
Date"), by and between THERMO INSTRUMENT SYSTEMS INC., a Delaware corporation
("Sublandlord"), and THERMO VISION CORPORATION, a Delaware corporation
("Subtenant").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Lease dated February 1, 1996
(as the same may have been amended, the "Master Lease"), by and between MGI 8
Forge Park, Inc. ("Master Landlord"), successor-in-interest to Prudential Realty
Acquisition Fund II Limited Partnership, and Sublandlord, Master Landlord
currently leases to Sublandlord the approximately eight (8) acre parcel of land
shown on EXHIBIT A to the Master Lease (the "Lot") and the one story building
containing 100,000 net square feet constructed thereon (the "Building"), known
and numbered as 0 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx (the "Master Premises");
and
WHEREAS, Sublandlord desires to sublease to Subtenant a portion of the
Building consisting of approximately 40,410 net square feet of floor area (the
"Sublease Premises"), as more particularly shown on EXHIBIT A attached hereto
and incorporated herein by this reference;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEMISE OF SUBLEASE PREMISES. Sublandlord hereby subleases to Subtenant
the Sublease Premises, upon the terms and subject to the conditions hereinafter
set forth or incorporated herein by reference. Subtenant shall have, as
appurtenant to the Sublease Premises, the non-exclusive right to use the
streets, drainage and utilities now or hereafter constructed within the 340 acre
parcel known as Forge Park, Franklin, Massachusetts, to the same extent and in
the same manner as Sublandlord is allowed to do so under Section 2.1 of the
Master Lease.
2. TERM. The term of this Sublease shall be for a period commencing on
the Effective Date set forth above and continuing through and including January
31, 2006 (the "Term").
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3. ANNUAL FIXED RENT. Subtenant shall pay to Sublandlord, in lawful money
of the United States, without any set-off or deduction whatsoever, annual fixed
rent (the "Annual Fixed Rent") at the following rates:
Annual Fixed
Rent Rate Monthly
Period (per square foot) Installment
------ ----------------- -----------
9/1/97 - 1/31/98 $5.00 $16,837.50
2/1/98 - 1/31/99 $5.25 $17,679.38
2/1/99 - 1/31/00 $5.50 $18,521.25
2/1/00 - 1/31/01 $5.75 $19,363.13
2/1/01 - 1/31/02 $5.90 $19,868.25
The Annual Fixed Rent shall be payable in twelve (12) equal monthly installments
in advance on the first day of each calendar month during the Term hereof. In
the event that the Term expires, or this Sublease is otherwise terminated in
accordance with its terms, on a date other than the last day of a calendar
month, the final monthly installment of Annual Fixed Rent shall be pro rated
accordingly on a per diem basis. All payments of Annual Fixed Rent, additional
rent and other charges under this Sublease shall be made to Sublandlord at its
address set forth in Section 20 below, or at such other address or addresses as
Sublandlord may from time to time designate. Annual Fixed Rent and any other
sums due hereunder not paid by the due date shall bear interest and be subject
to late payment fees, all in accordance with the provisions of Section 7.7 of
the Master Lease.
4. ADDITIONAL RENT.
4.1 Subtenant shall pay to Sublandlord, as additional rent,
Subtenant's Pro Rata Share (as hereinafter defined) of all Additional Rent
payable by Sublandlord under Article IV of the Master Lease, except for (i)
utility charges, which shall be payable in accordance with the provisions of
Section 4.3 below, and (ii) insurance premiums, which shall be payable in
accordance with the provisions of Section 4.4 below. For purposes of this
Sublease, Subtenant's Pro Rata Share shall be a percentage equal to the ratio of
the total net square footage of the Sublease Premises to the total net square
footage of the Building.
4.2 If Sublandlord shall obtain any abatement, refund or rebate in
real estate taxes or assessments theretofore paid by Subtenant under this
Sublease, Sublandlord shall promptly forward to Subtenant Subtenant's Pro Rata
Share of the same, less Subtenant's Pro Rata Share of the cost incurred by
Sublandlord, if any, in obtaining the same.
4.3 Subtenant shall pay to Sublandlord an amount equal to seventy
percent (70%) of all charges for water, sewer, gas, electricity and other
utilities and services used or consumed in the 70,000 square foot area of the
Building occupied by Sublandlord, Subtenant and Thermo Optek Corporation.
Notwithstanding the foregoing, Subtenant agrees to pay directly to the supplier
thereof all charges for telephone services used by Subtenant.
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4.4 Subtenant further agrees to pay to Sublandlord, as additional
rent, Subtenant's Pro Rata Share of the cost incurred by Sublandlord in
maintaining the all risk property insurance coverage on the Building as required
by Section 4.4.2.1(c) of the Master Lease.
4.5 Payment of all additional rent under this Article 4 shall be made
by Subtenant to Sublandlord within thirty-five (35) days after demand therefor.
5. INSURANCE.
5.1 Subtenant shall take out and maintain throughout the Term the
following insurance:
5.1.1 Comprehensive general liability insurance insuring against
claims and demands for any injury to person or damage to property
which may be claimed to have occurred on the Sublease Premises or on
the sidewalk or ways adjoining the Building, in amounts which shall be
at least equal to the limits required to be maintained by Sublandlord
with respect to its comprehensive liability insurance under Section
4.4.2.1(a) of the Master Lease. Such insurance shall name Sublandlord
and Master Landlord as additional insureds (except to the extent of
the negligence or willful misconduct of Sublandlord or Master
Landlord, as the case may be, and their respective agents, employees,
representatives or contractors).
5.1.2 Worker's compensation insurance with statutory limits
covering all of Subtenant's employees working on the Sublease
Premises.
5.2 All policies for insurance required under the provisions of
Section 5.1 above shall be obtained from responsible companies qualified to do
business in the Commonwealth of Massachusetts and in good standing therein, with
a Best's rating of "A-" or better. Subtenant agrees to furnish Sublandlord and
Master Landlord upon execution of this Sublease with certificates of all such
insurance, and of each renewal policy at least thirty (30) days prior to the
expiration of the policy it renews. Each policy under Section 5.1.1 above shall
be noncancellable with respect to the interest of Sublandlord and Master
Landlord without at least thirty (30) days' prior written notice.
5.3 Notwithstanding anything to the contrary contained in this
Sublease, Sublandlord and Subtenant each hereby waives all rights of recovery
against the other party, and such other party's insurance carrier (by way of
subrogation or otherwise), for all losses or damages to the Sublease Premises
and/or the Master Premises, any improvements thereon or any personal property of
either party therein, to the extent such waiver does not invalidate the
insurance coverage of either party and to the extent such losses or damages are
covered by insurance the damaged party is required to carry hereunder or
otherwise elects to maintain; provided, however, that the foregoing waiver by
either party shall not apply with respect to any loss or damage to the extent
caused by the negligence or willful misconduct of the other party, its agents,
employees, representatives or contractors.
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6. USE. Subtenant agrees to use and occupy the Sublease Premises solely
for the Permitted Uses set forth in Section 1.1 of the Master Lease.
7. REPAIR AND MAINTENANCE. Sublandlord shall perform the maintenance and
repair obligations with respect to the Building and the Lot as set forth in
Section 5.1.3.1 of the Master Lease. Subtenant shall pay to Sublandlord, within
thirty-five (35) days after demand therefor, Subtenant's Pro Rata Share of the
cost incurred by Sublandlord in performing such obligations, including without
limitation the cost incurred by Sublandlord in maintaining service contracts for
the heating and air-conditioning systems pursuant to Section 5.1.3.1 of the
Master Lease. Notwithstanding anything to the contrary contained herein, (i)
Subtenant shall be responsible for the full cost of all repairs to the Lot and
the Building (including without limitation the roof and structural components)
to the extent necessitated by Subtenant's negligence or willful misconduct, and
(ii) Subtenant shall be solely responsible for janitorial cleaning of the
Sublease Premises and garbage and trash disposal therefrom.
8. INDEMNIFICATION.
8.1 RECIPROCAL INDEMNIFICATION OF SUBLANDLORD AND SUBTENANT.
(a) Subtenant shall indemnify, defend with competent and
experienced counsel and hold harmless Sublandlord from and against any and all
damages, liabilities, actions, causes of action, suits, claims, demands, losses,
costs and expenses (including without limitation reasonable attorneys' fees and
disbursements and court costs) to the extent arising from or in connection with
the negligence or willful misconduct of Subtenant, its agents, employees,
representatives or contractors.
(b) Sublandlord shall indemnify, defend with competent and
experienced counsel and hold harmless Subtenant, its subsidiaries and
affiliates, and their respective officers, directors, shareholders and
employees, from and against any and all damages, liabilities, actions, causes of
action, suits, claims, demands, losses, costs and expenses (including without
limitation reasonable attorneys' fees and disbursements and court costs) to the
extent arising from or in connection with the negligence or willful misconduct
of Sublandlord, its agents, employees, representatives or contractors.
(c) The party seeking indemnification under this Section (the
"Indemnified Party") shall provide prompt written notice of any third party
claim to the party from whom indemnification is sought (the "Indemnifying
Party"). The Indemnifying Party shall have the right to assume exclusive control
of the defense of such claim or, at the option of the Indemnifying Party, to
settle the same. The Indemnified Party agrees to cooperate reasonably with the
Indemnifying Party in connection with the performance of the Indemnifying
Party's obligations under this Section.
(d) Notwithstanding anything to the contrary contained in this
Sublease, neither party hereto shall be liable to the other for any indirect,
special, consequential or
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incidental damages (including without limitation loss of profits, loss of use or
loss of goodwill) regardless of (i) the negligence (either sole or concurrent)
of either party or (ii) whether either party has been informed of the
possibility of such damages. It is expressly understood and agreed that damages
payable by either party to Master Landlord shall be deemed to constitute direct
damages of such party.
8.2 INDEMNIFICATION BY SUBTENANT OF MASTER LANDLORD. Subtenant agrees
to defend, save harmless and indemnify Master Landlord to the same extent as
Sublandlord is required to do so under the provisions of Section 5.1.5 of the
Master Lease; provided, however, that all references therein to (i) "Tenant"
shall be replaced with "Subtenant" and (ii) "Premises" shall be replaced with
"Sublease Premises."
9. SUBLANDLORD'S RIGHT TO ENTER. Subtenant agrees to permit Sublandlord
and its agents to enter into the Sublease Premises at reasonable times and upon
reasonable notice to examine the Sublease Premises and make repairs and
replacements pursuant to the terms of this Sublease. Except in the event of
emergency, Sublandlord, or any person acting under Sublandlord, shall be
accompanied while entering the Sublease Premises by a representative, agent or
employee of Subtenant, which representative, agent or employee Subtenant shall
make available promptly upon request.
10. CASUALTY OR TAKING. If the whole or any part of the Sublease Premises
shall be damaged by fire or other casualty or taken by any public authority or
for any public use, and the Master Lease is not terminated on account thereof,
this Sublease shall remain in full force and effect and Annual Fixed Rent and
all other charges payable hereunder shall not xxxxx unless there is an abatement
of Annual Fixed Rent and Additional Rent under the terms of the Master Lease,
and then only to the extent such abatement is allocable to the Sublease
Premises.
11. ALTERATIONS. Subtenant shall not make any alterations, additions or
improvements to the Sublease Premises without the prior written consent of
Sublandlord, which consent will not be unreasonably withheld; provided, however,
that it is understood and agreed that the granting of Sublandlord's consent
under this Article 11 with respect to any proposed alteration, addition or
improvement shall be conditioned upon Sublandlord's receipt of Master Landlord's
consent to the same, to the extent required by the terms of the Master Lease,
and further provided that the making by Subtenant of any such alteration,
addition or improvement shall be in compliance with all applicable provisions of
the Master Lease. At the time of the giving of its consent to any proposed
alteration, addition or improvement, Sublandlord shall notify Subtenant whether
or not Subtenant shall be required to remove such alteration, addition or
improvement upon the expiration or earlier termination of this Sublease.
Subtenant shall be required to repair, at Subtenant's expense, all damage caused
by any such removal. Master Landlord shall have the right to inspect at
reasonable times any work performed by or on behalf of Subtenant.
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12. ASSIGNMENT AND SUBLETTING.
12.1 Subtenant, for itself, its successors and assigns, expressly
covenants that it shall not assign, whether by operation of law or otherwise, or
pledge or otherwise encumber this Sublease, or sublet all or any part of the
Sublease Premises, without obtaining the prior written consent of Sublandlord.
Sublandlord reserves the right to transfer and assign its interest in and to
this Sublease to any entity or person who shall succeed to Sublandlord's
interest in and to the Master Lease.
12.2 Notwithstanding the foregoing provisions of this Article 12,
Subtenant shall have the right, without Sublandlord's consent, to assign this
Sublease or sublet any portion or all of the Sublease Premises to any
corporation controlled by Subtenant (any such assignee or subtenant being
hereinafter sometimes referred to as a "Permitted Transferee").
12.3 No assignment or sublease, whether or not approved, and no
indulgence granted by Sublandlord to any assignee or subtenant, shall in any way
impair the continuing primary liability of Subtenant hereunder, and no approval
in a particular instance shall be deemed to be a waiver of the obligation to
obtain Sublandlord's approval in any other case.
12.4 If for any assignment or sublease to any party other than a
Permitted Transferee Subtenant receives rent or other consideration, either
initially or over the term of such assignment or sublease, in excess of the
Annual Fixed Rent and additional rent called for hereunder, or in case of any
sublease of a part of the Sublease Premises, in excess of the portion of such
Annual Fixed Rent and additional rent which is fairly allocable to said part,
after appropriate adjustments to assure that all other payments called for
hereunder are appropriately taken into account, Subtenant shall pay to
Sublandlord as additional rent an amount equal to fifty percent (50%) of such
excess promptly after its receipt by Subtenant. In computing such excess,
leasehold improvements made by Subtenant in connection with such further
subletting or assignment shall be amortized on a straight-line basis over the
term of the sublease or assignment, and all brokerage, legal and other
reasonable costs incurred by Subtenant shall be deducted immediately.
13. SUBORDINATION. This Sublease shall be fully subordinate to (i) the
Master Lease and all extensions or modifications thereof and (ii) any holder of
a mortgage (as defined in Section 8.1 of the Master Lease) on the Sublease
Premises or any part thereof. The foregoing provisions shall be self-operative
and no further instrument of subordination shall be necessary; provided,
however, that Subtenant agrees to execute any and all documents or instruments
required by Master Landlord under the Master Lease, or the holder of any such
mortgage, or their respective counsel, to evidence such subordination. A true
and complete copy of the Master Lease is attached hereto as EXHIBIT B. The
provisions of the Master Lease are incorporated herein by reference, as they
relate to the Term hereof and to the Sublease Premises, with the same force and
effect as if they were fully set forth herein, except as to those matters
otherwise provided for herein and except for the following provisions: Sections
1.1 (except for the definitions of "Permitted Uses" and "Public Liability
Insurance Limits"), 2.2, 3.1, 3.2, 3.3 (the parenthetical only), 3.4, 4.1, 4.2.1
(the last paragraph only), 4.2.2.3, 4.2.2.4, 4.2.3, 4.4.2.1 (except for (i)
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Section 4.4.2.1(a), but only to the extent applicable to Section 5.1 of this
Sublease, and (ii) Section 4.4.2.1(c), but only to the extent applicable to
Section 4.4 of this Sublease) 5.1.9, 5.2.1, 9.7, 9.9 and 9.10. Subtenant hereby
assumes, and covenants and agrees to perform, all of the obligations of the
tenant under the Master Lease to the extent such obligations are incorporated
herein by reference and relate to the Sublease Premises during the Term hereof.
To the extent that any provision in the Master Lease incorporated herein by
reference conflicts with any provisions of this Sublease, the provisions of this
Sublease shall be controlling. Sublandlord agrees to perform its obligations as
tenant under the Master Lease, except to the extent such obligations are assumed
by Subtenant hereunder. If for any reason the term of the Master Lease is
terminated prior to the expiration date of this Sublease, this Sublease shall
thereupon terminate, and Sublandlord shall not be liable to Subtenant by reason
thereof.
14. COVENANTS REGARDING MASTER LEASE.
14.1 Subtenant covenants and agrees not to do or permit to be done any
act of commission or omission which would constitute a violation or default
under the Master Lease.
14.2 Each party hereto promptly shall deliver to the other party
copies of all notices, requests, demands or other communications which relate to
the Sublease Premises or the use or occupancy thereof after receipt of the same
from Master Landlord or others.
14.3 Sublandlord shall not incur any liability whatsoever to Subtenant
for any injury, loss, damage (whether direct, consequential or incidental) or
inconvenience incurred or suffered by Subtenant as a result of the exercise by
Master Landlord of any of the rights reserved to Master Landlord under the
Master Lease, nor shall such exercise constitute a constructive eviction or
default by Sublandlord hereunder, except to the extent, if any, such injury,
loss, damage or inconvenience is the result of the negligence or willful
misconduct of Sublandlord.
15. REPRESENTATIONS. Subtenant represents that it has made a thorough
examination and inspection of the Sublease Premises and is familiar with the
condition thereof. Subtenant hereby agrees that it is entering into this
Sublease without any representations or warranties by Sublandlord, its agents,
representatives, employees, servants, brokers or any other person as to the
present or future condition of the Sublease Premises or the appurtenances
thereto or any improvements therein or thereon. It is agreed that Subtenant does
and will accept the Sublease Premises "as is" and Sublandlord shall have no
obligation to perform any work therein except as expressly set forth in this
Sublease.
16. QUIET ENJOYMENT. Subject to the provisions of this Sublease,
Subtenant, upon paying the Annual Fixed Rent and all other sums and charges
herein provided, and observing and keeping all covenants, agreements and
conditions of this Sublease on its part to be observed and kept, shall quietly
have and enjoy the Sublease Premises during the Term of this Sublease.
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17. HOLDING OVER. Subtenant covenants that it will vacate the Sublease
Premises immediately upon the expiration or sooner termination of this Sublease.
If Subtenant shall remain in possession of the Sublease Premises or any part
thereof after the expiration or prior termination of the Term hereof, the
parties agree that no such holding over by Subtenant shall operate to extend or
renew this Sublease, and that any such holding over shall be construed as a
tenancy-at-will at one hundred fifty percent (150%) of the Annual Fixed Rent (on
a per diem basis) in effect when such holding over shall have commenced, and
such tenancy shall otherwise be subject to all the terms, conditions, covenants
and agreements of this Sublease. Subtenant further agrees to pay to Sublandlord
any additional amounts payable by Sublandlord to Master Landlord under the
Master Lease by reason of any such holding over by Subtenant.
18. DEFAULT.
18.1 In the event that Subtenant shall default in the payment of
Annual Fixed Rent, additional rent or any other charge payable hereunder, or
shall default in the performance or observance of any of the terms, conditions
and covenants of this Sublease, Sublandlord, in addition to and not in
limitation of any rights otherwise available to it, shall have the same rights
and remedies with respect to such default as are provided to Master Landlord
under the Master Lease with respect to defaults by the tenant thereunder, with
the same force and effect as though all such provisions relating to any such
default or defaults were set forth herein in their entirety, and Subtenant shall
have all of the obligations of the tenant under the Master Lease with respect to
such default or defaults.
18.2 In the event of a default by Subtenant in the performance of any
of its non-monetary obligations hereunder, Sublandlord may, at its option, at
any time thereafter and without waiving any other remedies for such default
contained herein or in the Master Lease as incorporated herein or at law or in
equity, give written notice to Subtenant that if such default is not cured
within ten (10) days after receipt of such notice by Subtenant, Sublandlord may
cure such default for the account of Subtenant, and any amount paid or incurred
by Sublandlord in so doing shall be deemed paid or incurred for the account of
Subtenant and Subtenant agrees promptly to reimburse Sublandlord therefor and
save Sublandlord harmless therefrom; provided, however, that Sublandlord may
cure any such default as aforesaid prior to the expiration of any waiting period
if reasonably necessary to protect Sublandlord's interest under the Master Lease
or to prevent injury or damage to persons or property.
19. ATTORNMENT. Notwithstanding anything to the contrary contained herein,
to the full extent required by Master Landlord, Subtenant shall attorn to Master
Landlord for the duration of the Term of this Sublease, as the same may be
extended, if the Master Lease is terminated for any reason.
20. NOTICES. Whenever, by the terms of this Sublease, notice, demand or
other communication shall or may be given to either party, the same shall be in
writing and addressed:
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If to Sublandlord:
Thermo Instrument Systems Inc.
0 Xxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President & COO
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
If to Subtenant:
Thermo Vision Corporation
0 Xxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President & COO
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
or to such other address or addresses as shall from time to time be designated
by written notice by either party to the other as herein provided. All notices
shall be hand-delivered or shall be sent by registered or certified mail,
postage pre-paid and return receipt requested, or by Federal Express or other
comparable service providing proof of delivery, and shall be deemed duly given
and received (i) if mailed, on the third business day following the mailing
thereof or (ii) if hand-delivered or sent by courier, the date of its receipt
(or if such day is not a business day, the next succeeding business day).
21. YIELD UP. At the expiration of the Term or earlier termination of this
Sublease, Subtenant shall surrender to Sublandlord all keys to the Sublease
Premises, remove all of its trade fixtures and personal property in the Sublease
Premises, remove all alterations, additions and improvements required to be
removed by this Sublease, remove all of Subtenant's signs wherever located,
repair all damage caused by such removal and yield up the Sublease Premises
(including all alterations, additions and improvements required to remain in the
Sublease Premises in accordance with Article 11 above), free of rubbish and
debris and in the same good order and repair in which Subtenant is obligated to
keep and maintain the Sublease Premises by the provisions of this Sublease,
reasonable wear and tear and damage by casualty or taking excepted.
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Any property not so removed shall be deemed abandoned and may be removed and
disposed of by Sublandlord in such manner as Sublandlord shall determine and
Subtenant shall pay Sublandlord the entire costs and expense incurred by
Sublandlord in effecting such removal and disposition and in making any
incidental repairs and replacements to the Sublease Premises.
22. ENVIRONMENTAL INDEMNIFICATION.
22.1 Subtenant agrees to indemnify, defend and hold harmless
Sublandlord from and against any and all liabilities, losses, damages, suits,
actions, causes of action, costs, expenses (including without limitation
reasonable attorneys' fees and disbursements and court costs), penalties, fines,
demands, judgments, claims or liens (including without limitation liens or
claims imposed under any so-called "Superfund" or other environmental
legislation) arising from or in connection with the use, storage, release or
discharge by Subtenant of Hazardous Materials (as hereinafter defined) on the
Sublease Premises and/or the Master Premises. Subtenant shall have the right to
assume exclusive control of the defense of any such suit, action or claim, and
Sublandlord agrees to cooperate reasonably with Subtenant in the performance by
Subtenant of its obligations under this Section.
22.2 Sublandlord agrees to indemnify, defend and hold harmless
Subtenant from and against any and all liabilities, losses, damages, suits,
actions, causes of action, costs, expenses (including without limitation
reasonable attorneys' fees and disbursements and court costs), penalties, fines,
demands, judgments, claims or liens (including without limitation claims or
liens imposed under any so-called "Superfund" or other environmental
legislation) arising from or in connection with the presence at the time of
Subtenant's taking possession of the Sublease Premises of Hazardous Materials
on, or the subsequent removal thereof from, the Master Premises (including
without limitation the Sublease Premises). Sublandlord shall have the right to
assume exclusive control of the defense of any such suit, action or claim, and
Subtenant agrees to cooperate reasonably with Sublandlord in the performance by
Sublandlord of its obligations under this Section.
22.3 For purposes of this Article 22, the term "Hazardous Materials"
shall include without limitation any petroleum product, any flammable, explosive
or radioactive material, or any hazardous or toxic waste, substance or material,
including without limitation substances defined as "hazardous substances",
"hazardous materials," "solid waste" or "toxic substances" under any applicable
laws relating to hazardous or toxic materials and substances, air pollution
(including noise and odors), water pollution, liquid and solid waste,
pesticides, drinking water, community and employee health, environmental land
use management, stormwater, sediment control, nuisances, radiation, wetlands,
endangered species, environmental permitting and petroleum products, which laws
may include, but not be limited to, the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended; the Toxic Substances Control Act; the Clean Water
Act; the National Environmental Policy Act, as amended; the Solid Waste Disposal
Act, as amended; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986; the Hazardous Materials Transportation Act, as
amended; the Resource Conservation and Recovery Act, as amended; the Clean Air
Act, as amended; the Emergency Planning and Community
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Right-to-Know Act, as amended; the Occupational Safety and Health Act, as
amended; comparable state laws; and all rules and regulations promulgated
pursuant to such laws and ordinances.
23. CONSENTS. Sublandlord's refusal to consent to or approve any matter or
thing, whenever Sublandlord's consent or approval is required under this
Sublease or under the Master Lease as incorporated herein, shall be deemed
reasonable if Master Landlord has refused or failed to give its consent to such
matter or thing. Subtenant agrees to reimburse Sublandlord upon demand for any
expenses which Sublandlord is required to pay to Master Landlord in connection
with obtaining the consent of Master Landlord to any proposed action by
Subtenant.
24. MISCELLANEOUS.
24.1 GOVERNING LAWS. This Sublease shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
24.2 ENTIRE AGREEMENT. This Sublease constitutes the entire agreement
between Sublandlord and Subtenant with respect to the subject matter hereof and
supersedes and replaces in its entirety the existing Sublease Agreement between
Sublandlord and Subtenant dated as of September 1, 1997, which existing Sublease
Agreement is hereby rendered null and void. This Sublease shall not be
supplemented, amended, varied or modified in any manner except by an instrument
in writing signed by both parties.
24.3 WAIVER. No delay or omission on the part of either party to this
Sublease in requiring performance by the other party or in exercising any right
hereunder shall operate as a waiver of any provision hereof or of any right
hereunder, and the waiver, omission or delay in requiring performance or
exercising any right hereunder on any one occasion shall not be construed as a
bar to or waiver of such performance or right on any future occasion.
24.4 REMEDIES CUMULATIVE. Any and all rights and remedies which either
party may have under this Sublease, at law or in equity, shall be cumulative and
shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law.
24.5 BROKER. Each of the parties hereto represents and warrants to the
other that there are no claims for brokerage commissions or finder's fees in
connection with this Sublease. Each party shall indemnify and hold harmless the
other party from and against any and all claims for brokerage fees, commissions
or other charges arising from the dealings of the indemnifying party in
connection with this Sublease.
24.6 SURVIVAL. It is understood and agreed that the provisions of
Articles 8 and 22 above shall survive the expiration or earlier termination of
this Sublease.
24.7 PERSONAL PROPERTY. All furnishings, fixtures, equipment, effects
and personal property of every kind, nature and description of Subtenant, and of
all persons claiming
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by, through or under Subtenant, which, during the Term of this Sublease or any
occupancy of the Sublease Premises by Subtenant, or anyone claiming by, through
or under Subtenant, may be on the Sublease Premises or elsewhere in the Master
Premises, shall at the sole risk and hazard of Subtenant and, if the whole or
any part thereof shall be destroyed or damaged by fire, water or otherwise, or
by the leakage or bursting of water pipes, steam pipes or other pipes, by theft,
or from any other cause, no part of said loss or damage is to be charged to or
borne by Sublandlord except to the extent caused by the negligence or willful
misconduct of Sublandlord, its agents, employees, representatives or
contractors.
24.8 HEADINGS. Article and Section headings and the organization of
this Sublease are for descriptive purposes only and shall not control or alter
the meaning of this Sublease.
24.9 SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
24.10 AUTHORITY. The individuals executing this Sublease hereby
represent and warrant that they are empowered and duly authorized to so execute
this Sublease on behalf of the parties they represent.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease under
seal as of the date first set forth above.
SUBLANDLORD:
THERMO INSTRUMENT SYSTEMS INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
President & COO
SUBTENANT:
THERMO VISION CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxx
President & CEO
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8 FORGE PARK
Franklin, Massachusetts
Lease
by and between
Prudential Realty Acquisition
Fund II Limited Partnership, Landlord
and
Thermo Instrument Systems Inc., Tenant
dated as of February 1, 1996
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LEASE
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the data stated for that
subject in this Section 1.1.
Date of this Lease: February 1, 1996
Premises: The approximately eight (8) acre parcel of land (the "Lot")
shown on Exhibit A and the one story building containing 100,000 net square feet
constructed thereon (the "Building"), located at Forge Park, Franklin,
Massachusetts, and known as 8 Forge Park. The Lot and Building are collectively
referred to as the "Premises".
Landlord: Prudential Realty Acquisition Fund II Limited
Partnership, a Delaware Limited Partnership
Original Address of Landlord: c/o Prudential Real Estate Investors, 00 XXX
Xxxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000
Tenant: Thermo Instrument Systems Inc., a Delaware
corporation
Original Address of Tenant: 0 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
Basic Term: Ten (10) years
Term Commencement Date: February 1, 1996
Annual Fixed Rent Rates:
Rate Yearly Payment Monthly Payment
---- -------------- ---------------
Year 1: $4.75 $475,000.00 $39,583.33
Year 2: 5.00 500,000.00 41,666.67
Year 3: 5.25 525,000.00 43,750.00
Year 4: 5.50 550,000.00 45,833.33
Year 5: 5.75 575,000.00 47,916.67
Year 6: 5.90 590,000.00 49,166.67
Year 7: 6.15 615,000.00 51,250.00
Year 8: 6.40 640,000.00 53,333.33
Year 9: 6.65 665,000.00 55,416.67
Year 10: 6.90 690,000.00 57,500.00
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Permitted Uses: Light manufacturing, research and development and
general office use.
Public Liability Insurance Limits (per occurrence):
Bodily Injury and Property Damage: $3,000,000 per occurrence
or greater amounts as required pursuant to the provisions of
Section 4.4.2.1.
Broker(s): Xxxxx, Xxxxxx Xxxxx & Partners
1.2 EXHIBITS. The Exhibits listed below in this section are
incorporated in this Lease by reference and are to be construed as a part of
this Lease.
EXHIBIT A: Site Plan showing the Premises
EXHIBIT A-1: Legal Description of Land
EXHIBIT A-2: Title Exceptions
EXHIBIT B: Omitted
EXHIBIT C: Forge Park Covenants and Restrictions
ARTICLE II
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases and demises to Tenant and
Tenant hereby leases from Landlord, subject to and with the benefit of the
terms, covenants, conditions and provisions of this Lease, the Premises. The
Premises shall include, as appurtenant to the land described on Exhibit A-1 on
which the Building is constructed, in common with other users of Forge Park, (a)
the right, to use all streets, drainage and utilities now or hereafter
constructed within the 340 acre parcel known as Forge Park, Franklin,
Massachusetts ("Forge Park") for all purposes for which public roads in the Town
of Franklin may be used including, without limitation, rights of pedestrians and
vehicular access and the right to connect with and utilize any and all water,
sewer, storm drain, gas, electrical, telephone or other public utility now or
hereafter located in such roadway adjacent to the Premises. Landlord represents
that there exists current rights and easements appurtenant to the Premises
required for providing water, sewer, storm drainage, telephone, electric and gas
service to the Premises adequate for the current uses and operations.
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Landlord represents and warrants that it is the fee simple owner of the
Premises and the Appurtenant Easements listed on Exhibit A-1 subject only to the
title matters set forth in the title insurance policy attached as Exhibit A-2.
If at any time during the Term of this Lease, as the same may be extended,
applicable law shall not permit the use of the Premises for the Permitted Uses
hereunder, Tenant, without waiving any other rights Tenant may have on account
thereof, may terminate this Lease upon no less than thirty (30) days' prior
written notice to Landlord.
2.2 TERM. TO HAVE AND TO HOLD for a term of ten (10) years
beginning on February 1, 1996 (the "Term").
2.3 INTENTIONALLY OMITTED
2.4 INTENTIONALLY OMITTED
ARTICLE III
IMPROVEMENTS
3.1 CONDITION OF THE PREMISES. Tenant accepts the Premises in
their current condition as of the Commencement Date. Landlord agrees to provide
Tenant a Tenant Allowance in the amount of $82,000.00 for Tenant improvements
and refurbishment. Landlord further agrees to provide Tenant with a $4,000.00
ADA Improvement Allowance to provide for ADA improvements to the Building
washrooms to make the washrooms handicapped accessible as required by state and
federal requirements. Both the Tenant Allowance and the ADA Improvement
Allowance will be paid to Tenant within thirty (30) days of the execution and
delivery hereof. Tenant agrees promptly thereafter to cause the handicapped
improvements to be installed in a good and workmanlike manner in accordance with
all applicable codes, rules and regulations.
3.2 TENANT WORK. All leasehold improvement and other Tenant
refurbishment work performed on the Premises whether paid for with the Tenant
Allowance or otherwise, shall be the responsibility of Tenant and shall be
performed in a good and workmanlike manner in accordance with applicable codes
(the "Tenant Work").
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All improvements and alterations and changes and additions (except for
Tenant Work or subsequent alterations paid for by Tenant, which shall be real
property owned by Tenant during the Term) shall be part of the Building. Any
Tenant Work or subsequent alterations, improvements, changes and additions
provided or paid for by Tenant may be removed by Tenant at the expiration of the
Term (provided Tenant repairs any damage caused by such removal or, at Tenant's
election, remain as part of the Premises. With respect to improvements,
alterations, changes or additions for which Landlord's consent is required
hereunder, the foregoing election shall be exercised when consent is requested.
3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION. All
construction work required or permitted by this Lease, whether by Landlord or
Tenant, shall be done in a good and workmanlike manner using new, first quality
materials (except that Tenant's Work may include previously utilized materials
designated by Tenant from Tenant's prior facilities) and in compliance with all
applicable laws and all lawful ordinances, regulations and orders of
governmental authority and insurers of the Building. Either party may inspect
the work of the other at reasonable times and shall give notice of observed
defects.
3.4 CONSTRUCTION REPRESENTATIVES. Each party shall, from time to
time, designate in writing an individual to the other party to review the plans
and specifications in connection with any alterations or improvement project(s)
undertaken by either party at the Premises for which consent of the other party
is required under this Lease and authorizes the other party to rely upon the
approval or other actions of such individual in connection with such activity.
ARTICLE IV
RENT
4.1 THE FIXED RENT. Tenant covenants and agrees to pay rent to
Landlord at the Original Address of Landlord or at such other place or to such
other person or entity as Landlord may, by no less than thirty (30) days' prior
notice to Tenant from time to time direct, at the rate ("Annual Fixed Rent
Rates") set forth in Article 1 in equal monthly installments equal to 1/12th of
the Annual Fixed Rent Rate in advance on the first day of each calendar month
included in the Term; and for any portion of a calendar month at the beginning
or end of the Term, at that rate payable in advance for such portion.
4.2 ADDITIONAL RENT. In order that the Fixed Rent shall be
absolutely net to Landlord (except to the extent expressly otherwise provided in
this Lease), Tenant covenants and agrees to pay, as Additional Rent, taxes,
municipal or state betterment assessments, insurance costs and utility charges
with respect to the Premises as provided in this Section 4.2. In no event,
however, shall Additional Rent include (i) betterment assessments or utility
charges with respect to the installation, modification, or replacement of the
Appurtenant Easements in Forge Park arising during the Basic Term or (ii)
betterment assessments or utility charges with respect to the development of
Forge Park.
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4.2.1 REAL ESTATE TAXES. Tenant shall pay directly to the
taxing authority the portion allocable to the Premises of: (i) all taxes,
assessments (special or otherwise), levies, fees, water and sewer rents and
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, which are, at any time prior to or during the Term hereof, imposed
or levied upon or assessed against (A) the Premises, (B) any Fixed Rent,
Additional Rent or other sum payable hereunder or (C) this Lease, or the
leasehold estate hereby created, or which arise in respect of the operation,
possession or use of the Premises by Tenant; (ii) all gross receipts or similar
taxes imposed or levied upon, assessed against or measured by any Fixed Rent,
Additional Rent or other sum payable hereunder; (iii) all sales, value added,
use and similar taxes at any time levied, assessed or payable on account of the
leasing or use of the Premises by Tenant; and (iv) all charges for utilities
furnished to the Premises which may become a lien on the Premises (collectively
"taxes and assessments" or if singular "tax or assessment"). For each tax or
assessment period, or installment period thereof, wholly included in the Term
,all such payments shall be made by Tenant not later than five (5) days before
the last date on which the same may be paid without interest or penalty,
provided that Landlord shall forward to Tenant a copy of all applicable tax
bills promptly after receipt by Landlord thereof and in any event, not less
than 20 days before the last date on which the same may be paid without
interest or penalty. For any fraction of a tax or assessment period, or
installment period thereof, included in the Term at the beginning or end
thereof, Tenant shall pay to Landlord, within 10 days after receipt of invoice
therefor, together with a copy of the applicable xxxx from the taxing
authority, the fraction of taxes and assessments so levied or assessed or
becoming payable which is allocable to such included period.
Nothing contained in this Lease shall, however, require Tenant to pay
any income taxes, excess profits taxes, excise taxes, franchise taxes, estate,
gift, succession, inheritance or transfer taxes provided, however, that if at
any time during the Term the present system of ad valorem taxation of real
property shall be changed so that in lieu of the whole or any part of the ad
valorem tax on real property, there shall be assessed on Landlord a capital levy
or other tax on the gross rents received with respect to the Lot and Building,
or both, or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect) measured by or based in whole or in part, upon gross rents, then
any and all of such taxes, assessments, levies or charges, to the extent so
measured or based ("Substitute Taxes"), shall be payable by Tenant; provided,
however, Tenant's obligation with respect to the aforesaid Substitute Taxes
shall be limited to the amount thereof as computed at the rates that would be
payable if the Premises were the only property of Landlord. Landlord shall
furnish to Tenant a copy of any notice of any public, special or betterment
assessment received by Landlord concerning the Premises. Notwithstanding
anything to the contrary contained in this Lease, in the event that Tenant is
obligated to pay any portion of any betterment or special assessment, Tenant's
payments shall be calculated as if such assessment were amortized on a
straight-line basis consistent with generally accepted accounting principles,
consistently applied ("GAAP"), such that Tenant shall pay a total amount equal
to its share of such assessment multiplied by a fraction, the
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numerator of which is the number of years remaining in the Term and the
denominator of which is the greater of (a) the number of years in the entire
Term or (b) the number of years for amortization indicated by GAAP.
Tenant shall have the right to prosecute an abatement or otherwise
contest any such tax or assessment, but only if Tenant shall first have given
Landlord written notice of Tenant's intention to do so and Landlord shall not
have advised Tenant, by written notice to Tenant within ten (10) days after
Tenant's notice, that Landlord will prosecute such abatement or contest. Tenant
shall prosecute any such abatement or contest at its own expense and shall not
discontinue the same without giving Landlord a reasonable opportunity to be
substituted therein at Landlord's expense. Tenant shall respond to all of
Landlord's reasonable inquiries as to the status of any such abatement
proceeding or contest, and Tenant shall not settle the same without Landlord's
prior written consent, which shall not be unreasonably withheld or delayed.
Tenant's expenses of the same shall be deducted from the proceeds of any such
abatement or contest. If Landlord shall obtain any abatement, refund or rebate
in real estate taxes or assessments theretofore paid by Tenant under this Lease,
Landlord shall promptly forward to Tenant the same, less the cost incurred by
Landlord in obtaining the same. Nothing in this paragraph shall relieve Tenant
of its obligation to make all payments required under this Section 4.2.1 and
when required hereunder.
4.2.2 INSURANCE.
4.4.2.1 INSURANCE TAKEN OUT BY TENANT. Tenant shall, as
Additional Rent, take out and maintain throughout the Term, the following
insurance:
(a) Comprehensive liability insurance
indemnifying Landlord (as an additional insured as provided below) and Tenant
against all claims and demands for any injury to person or property which may be
claimed to have occurred on the Premises or on the sidewalk or ways adjoining
the Premises, in amounts which shall, at the beginning of the Term, be at least
equal to $3,000,000 per combined single limit per occurrence, and, from time to
time during the Term, shall be for higher limits, if any, as are customarily
carried in the area in which the Premises are located on property similar to the
Premises and used for similar purpose and of which Tenant has received thirty
(30) days advance written notice from Landlord, which insurance shall name
Landlord as an additional insured (except to the extent of the negligence or
willful misconduct of Landlord, its agents, employees, representatives or
contractors);
(b) Worker's compensation insurance with
statutory limits covering all of Tenant's employees working on the Premises;
(c) All risk property insurance, with repair or
replacement coverage (with an agreed amount endorsement) insuring the Building
and one year's rent and real estate taxes, it being agreed that the initial
replacement value of the Building is $5,000,000, which
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all risk property insurance shall include coverage against loss or damage from
sprinklers and from leakage or explosions or cracking of boilers, pipes carrying
steam or water, or both, pressure vessels or similar apparatus. Insurance
against such other hazards and in such amounts as may from time to time be
customarily carried with respect to premises similar in character, location and
use to the Premises, to the extent the same is commercially reasonable.
4.2.2.3 CERTAIN REQUIREMENTS APPLICABLE TO INSURANCE
POLICIES. Policies for insurance provided for under the provisions of Section
4.2.2.1(c) and (d) shall, in case of loss to the Premises, name Landlord as an
additional named insured and be first payable to the holders of any mortgages on
the Premises under a standard mortgagee's endorsement. All policies for
insurance required under the provisions of Section 4.2.2 shall be obtained from
responsible companies qualified to do business in the Commonwealth of
Massachusetts and in good standing therein, with a Best's rating of "A-" or
better. Tenant agrees to furnish Landlord with certificates of all such
insurance which Tenant is obligated to obtain pursuant to Section 4.2.2.1 prior
to the beginning of the Term hereof and of each renewal policy at least thirty
(30) days prior to the expiration of the policy it renews. Each such policy
shall be noncancellable with respect to the interest of Landlord and such
mortgagees without at least thirty (30) days' written notice thereto.
4.2.2.4 WAIVER OF SUBROGATION. All insurance which is carried
by either party with respect to the Premises or to furniture, furnishings,
fixtures or equipment therein or alterations or improvements thereto, whether or
not required, shall include provisions which either designate the other party as
one of the insured or deny to the insurer acquisition by subrogation of rights
of recovery against the other party to the extent such rights have been waived
by the insured party prior to occurrence of loss or injury, insofar as, and to
the extent that such provisions may be effective without making it impossible to
obtain insurance coverage from responsible companies qualified to do business in
the Commonwealth of Massachusetts (even though extra premium may result
therefrom) and without voiding the insurance coverage in force between the
insurer and the insured party. In the event that extra premium is payable by
either party as a result of this provision, the other party shall reimburse the
party paying such premium the amount of such extra premium. If at the request of
one party, this non-subrogation provision is waived, then the obligation of
reimbursement shall cease for such period of time as such waiver shall be
effective, but nothing contained in this Section 4.2.2.4 shall derogate from or
otherwise affect releases elsewhere herein contained of either party for claims.
Each party shall be entitled to have certificates of any policies containing
such provisions. Each party hereby waives all rights of recovery against the
other for loss or injury against which the waiving party is protected by
insurance containing said provisions, reserving, however, any rights with
respect to any excess of loss or injury over the amount recovered by such
insurance. Notwithstanding anything to the contrary contained herein, in no
event shall the foregoing provisions of this Section 4.2.2.4 operate as a waiver
by either party with respect to any loss, damage or injury to the extent caused
by the negligence or willful misconduct of the other party, its agents,
employees, representatives or contractors.
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4.2.3 UTILITIES. Tenant shall pay directly to the proper authorities
charged with the collection thereof all charges for water, sewer, gas,
electricity, telephone and other utilities or services used or consumed on the
Premises, whether called charge, tax, assessment, fee or otherwise, including,
without limitation, water and sewer use charges and taxes, if any, all such
charges to be paid as the same from time to time become due.
ARTICLE V
TENANT'S ADDITIONAL COVENANTS
5.1 AFFIRMATIVE COVENANTS. Tenant covenants at its expense at all
times during the Term and for such further time as Tenant occupies the Premises
or any part thereof:
5.1.1 PERFORM OBLIGATIONS. To perform in a timely manner
all of the obligations of Tenant set forth in this Lease; and to pay when due
the Fixed Rent and Additional Rent and all charges, rates and other sums which
by the terms of this Lease are to be paid by Tenant.
5.1.2 USE. To use the Premises only for the Permitted Uses.
5.1.3.1 REPAIR AND MAINTENANCE. Subject to Article VI and
Section 5.1.3.2, to keep the Premises, including, without limitation, all
Tenant's improvements, all heating, plumbing, electrical, air-conditioning,
mechanical and other fixtures and equipment now or hereafter on the Premises,
and the grounds, driveways and parking lot, in good order, condition and repair
and at least as good order, condition and repair as they are in on the
Commencement Date or may be put in during the Term, reasonable use and wear only
excepted; to keep in a safe secure and sanitary condition all trash and rubbish
temporarily stored at the Premises; to make all repairs and replacements and to
do all other work necessary for the foregoing purposes; and to make all repairs
to roof and structural components of the Premises to the extent necessitated by
Tenant's willful misconduct or negligence. Notwithstanding anything to the
contrary in this Lease, in no event shall Tenant be obligated to make any
repairs or replacements which would constitute items of expense properly
chargeable to "capital account" under GAAP or which are required as the result
of the negligence or willful misconduct of Landlord, its agents, employees,
representatives or contractors, or the failure of Landlord to perform any of its
obligations under this Lease, all of which repairs and replacements shall be
made by Landlord at Landlord's sole cost and expense. To the extent not
performed by Tenant's own personnel, Tenant shall secure, pay for and keep in
force contracts with appropriate and reputable service companies providing for
the regular maintenance of the heating and air-conditioning systems and copies
of such contracts shall be furnished to Landlord. It is further agreed that the
exception of reasonable use and wear shall not apply so as to permit Tenant to
keep the Premises in anything less than a safe, useable condition in good and
tenantlike repair.
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5.1.3.2 LANDLORD'S MAINTENANCE OBLIGATION. Subject to Article
VI, Landlord covenants and agrees that it shall, at all times at its own cost
and expense, keep the roof (including without limitation the decking, gutters
and downspouts), foundation, exterior walls, load-bearing interior walls,
structural components and all underground utility lines, pipes and plumbing of
the Building in good order, condition and repair and at least as good order,
condition and repair as they are in on the Commencement Date hereof or may be
put in during the Term, reasonable use and wear and Tenant's obligations under
Article 5.1.3.1 only excepted.
5.1.4 COMPLIANCE WITH LAW AND INSURANCE REQUIREMENTS. To
make all repairs, alterations, additions or replacements to the Premises
reasonably required by any law or ordinance or any order or regulation of any
public authority due to a unique use of the Premises by Tenant and not generally
applicable to buildings of the type and age of the Building; to keep the
Premises equipped with all safety appliances so required; to pay all municipal
county, or state taxes assessed against the leasehold interest hereunder, or
against personal property of any kind on or about the Premises; not to dump,
flush, or in any way introduce any Hazardous Substances into the sewage or other
waste disposal system serving the Premises; to generate, store or dispose of
Hazardous Substances in or on the Premises or dispose of Hazardous Substance
from the Premises to any other location only in compliance with the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. ss.6901 et seq.,
the Massachusetts Hazardous Waste Management Act, M.G.L. c.21C, as amended, the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act,
M.G.L. c.21E, as amended, and all other applicable codes, regulations,
ordinances and laws; to notify Landlord of any incident which would require the
filing of a notice under Chapter 232 of the Acts of 1982; and to comply with the
orders and regulations of all governmental authorities with respect to zoning
building, fire, health and other codes, regulations, ordinances or laws
applicable to the Premises, except that Tenant may defer compliance so long as
the validity of any such law, ordinance, order or regulation shall be contested
by Tenant in good faith and by appropriate legal proceedings, if Tenant first
gives Landlord appropriate assurance against any loss, cost or expense on
account thereof. "Hazardous Substances" as used in this paragraph shall mean
"Hazardous Substances" as defined in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.9601 and the
Massachusetts Oil and Hazardous Materials Release Prevention and Response Act,
M.G.L. C.21E and regulations adopted pursuant to said Act. Tenant shall provide
Landlord with such information legally required by governmental authorities as
Landlord may reasonably request from time to time with respect to compliance
with this Section 5.1.4.
Tenant also covenants and agrees to comply promptly with the reasonable
recommendations of any insurer, foreseen or unforeseen, ordinary as well as
extraordinary, which may be applicable to the Premises, by reason of Tenant's
particular and specific manner of use thereof, provided that such
recommendations do not present a material financial burden to Tenant. In the
event Tenant does not comply with the recommendations of any insurer, Tenant
shall be liable for payment of any increase in the amount of any insurance
premium
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caused by any such non-compliance; provided, however, in no event shall any
activity be conducted by Tenant on the Premises which may give rise to any
cancellation of any insurance Policy or make any insurance unobtainable.
5.1.5 INDEMNITY. To defend, with competent and experienced
counsel all actions against Landlord, any partner, trustee, stockholder,
officer, director, employee or beneficiary of Landlord, holders of mortgages
secured by the Premises and any other party having an interest in the Premises
(Indemnified Parties) with respect to and to pay, protect, indemnify and save
harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature (a) to which any Indemnified Party is subject
because of the negligence or willful misconduct of Tenant before or during the
Term, or (b) arising from injury to or death of any person, or damage to or loss
of property, on the Premises to the extent caused by the negligence or willful
misconduct of Tenant before or during the Term except to the extent caused by
the negligence or willful misconduct of Landlord or its servants or agents.
5.1.6 LANDLORD'S RIGHT TO ENTER. To permit Landlord and its
agents to enter into the Premises at reasonable times and upon reasonable notice
to examine the Premises, make such repairs and replacements pursuant to the
terms of this Lease and show the Premises to prospective purchasers and lenders,
and, during the last year of the Term, to show the Premises to prospective
tenants and to keep affixed in suitable places notices of availability of the
Premises. Except in the event of emergency, Landlord, or any person acting under
Landlord, shall be accompanied while entering the Premises by a representative,
agent or employee of Tenant, which representative, agent or employee Tenant
shall make available promptly upon request.
5.1.7 PERSONAL PROPERTY AT TENANT'S RISK. All of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy of the Premises by
Tenant or anyone claiming under Tenant, may be on the Premises, shall, as
between the parties, be at the sole risk and hazard of Tenant and if the whole
or any part destroyed or damaged by fire, water or other leakage or bursting of
water pipes, steam pipes, or other pipes by theft or from any other cause, no
part of said loss or damage is to be charged to or to be borne by Landlord,
except that Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant or to any other person, for injury,
loss, damage or liability to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees, representatives or contractors,
or to the extent otherwise prohibited by law.
5.1.8 PREVAILING PARTIES. If any action at law or in
equity is brought to enforce or interpret the provisions of this Lease, the
prevailing party in such action shall be
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entitled to reimbursement of the reasonable attorneys' fees and disbursements
and court costs incurred by said prevailing party in connection with such
action.
5.1.9 YIELD UP. At the expiration of the Term or earlier
termination of this Lease: to surrender all keys to the Premises, to remove all
of its trade fixtures and personal property in the Premises (except as set forth
in Section 3.2), to remove all Tenant's signs wherever located, to repair all
damage caused by such removal and to yield up the Premises (including all
improvements and alterations made by Tenant and not removed except for trade
fixtures), free of rubbish and debris and in the same good order and repair in
which Tenant is obligated to keep and maintain the Premises by the provisions of
this Lease, reasonable wear and tear and damage by casualty or taking excepted.
Any property not so removed shall be deemed abandoned and may be removed and
disposed of by Landlord in such manner as Landlord shall determine and Tenant
shall pay Landlord the entire cost and expense incurred by it in effecting such
removal and disposition and in making any incidental repairs and replacements to
the Premises.
5.1.10 ESTOPPEL CERTIFICATE. Upon not less than twenty (20)
days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord
a statement in writing certifying whether this Lease is unmodified and in full
force and effect and that except as stated therein Tenant has no knowledge of
any defenses, offsets or counterclaims against its obligations to pay the Fixed
Rent and Additional Rent and any other charges and to perform its other
covenants under this Lease (or, if there have been any modifications that the
same is in full force and effect as modified and stating the modifications and,
if there are any defenses, offsets or counterclaims, setting them forth in
reasonable detail), the dates to which the Fixed Rent and Additional Rent and
other charges have been paid and a statement that to Tenant's knowledge,
Landlord is not in default hereunder (or if in default, the nature of such
default, in reasonable detail). Any such statement delivered pursuant to this
Section 5.1.10 may be relied upon by any prospective purchaser or mortgagee of
the Premises, or any prospective assignee of any such mortgage.
5.1.11 EXPENSES RE CONSENTS. Each party shall reimburse the
other promptly on demand for all reasonable legal expenses (not to exceed
$1,000.00 in any instance) incurred in connection with all requests by the
reimbursing party for consent or approval hereunder.
5.1.12 PARK RESTRICTIONS. To comply with the Forge Park
Covenants and Restrictions as set forth in Exhibit C, as the same may be amended
from time to time to provide for the beneficial operation of Forge park,
provided that such amendments do not materially interfere with Tenant's right of
use and enjoyment of the Premises pursuant to this Lease.
5.1.13 HOLDING OVER. Tenant covenants that it will vacate
the Premises immediately upon the expiration or sooner termination of this
Lease. If the Tenant retains possession of the Premises or any part thereof
after the termination of the Term, the Tenant
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shall pay the Landlord Holdover Rent at 150% the monthly rate specified in
Section 1 for the time the Tenant thus remains in possession. The provisions of
this Section do not exclude or limit Landlord's rights or remedies for holding
over beyond the expiration of the Term of this Lease.
5.2 NEGATIVE COVENANTS. Tenant covenants at all times during the
Term and for such further time as Tenant occupies the Premises or any part
thereof:
5.2.1 ASSIGNMENT AND SUBLETTING. Not to assign this Lease
or to sublease all or any part of the Premises; provided however, that Tenant
may, without Landlord's consent, assign this Lease or sublet any portion or all
of the Premises to (i) any corporation, partnership, trust, association or other
business organization directly or indirectly controlling, controlled by or under
common control with Tenant, or (ii) to any successor by merger, consolidation or
acquisition of all or substantially all of the assets of Tenant, (any such
assignee or subtenant being hereinafter sometimes referred to as a "Permitted
Transferee". No assignment or sublease, whether or not approved, and no
indulgence granted by Landlord to any assignee or sublessee, shall in any way
impair the continuing primary liability (which after an assignment shall be
joint and several with the assignee) of Tenant hereunder, and no approval in a
particular instance shall be deemed to be a waiver of the obligation to obtain
Landlord's approval in any other case.
Notwithstanding the preceding paragraph, Landlord agrees not to
unreasonably withhold or delay its consent to a sublease of all or any portion
of the Premises. Any proposed assignment or subleasing shall be presumed
reasonable and shall conclusively be deemed reasonable unless Landlord objects
in writing, stating the relevant grounds, within ten (10) business days after
such proposal is made by Tenant. Tenant shall promptly provide such information
concerning the proposed sublessee or assignee as Landlord reasonably requests.
If for any assignment or sublease to any party other than a Permitted
Transferee Tenant receives rent or other consideration, either initially or over
the term of the assignment or sublease, in excess of the rent called for
hereunder, or in case of sublease of part, in excess of such rent fairly
allocable to the part, after appropriate adjustments to assure that all other
payments called for hereunder are appropriately taken into account, Tenant shall
pay to Landlord as Additional Rent 50% of such excess of such payment of rent or
other consideration received by Tenant promptly after its receipt. In computing
such excess, subleasehold improvements made by Tenant shall be amortized on a
straight-line basis over the term of the sublease or assignment and all
brokerage, legal and other reasonable costs incurred by Tenant shall be deducted
immediately.
5.2.2 OVERLOADING AND NUISANCE. Not to injure, overload,
deface or otherwise harm the Premises; nor commit any nuisance; nor permit the
emission of any objectionable noise, vibration or odor; nor make, allow or
suffer any waste; not make any use
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of the Premises which is contrary to any law or ordinance or which will
invalidate any of Tenant's insurance required hereunder.
ARTICLE VI
CASUALTY OR TAKING
6.1 TERMINATION. In case during the Term more than twenty-five
(25%) percent of the floor area of the Building or more than twenty-five (25%)
percent of the parking spaces appurtenant to the Premises, or such portion of
the Lot comprising the Premises which shall make continued use of the Building
impracticable, shall be (i) damaged by fire or casualty such that Landlord is
unable, or otherwise fails, to notify Tenant within thirty (30) days thereafter
that such damage is reasonably estimated to be restored within 210 days after
the casualty or (ii) taken by any public authority or for any public use
(hereinafter referred to as the "Termination Event"), then this Lease may be
terminated at the election of Landlord or Tenant. Such election, which may be
made notwithstanding the fact that Landlord's entire interest may have been
divested, shall be made by the giving of notice by the terminating party within
forty-five (45) days after the Casualty or Taking.
6.2 RESTORATION. If neither party exercises said election, or if a
casualty or taking other than a Termination Event occurs, this Lease shall
continue in force and a just proportion of the rent reserved, according to the
nature and extent of the damages sustained by the Premises, shall be abated from
the date of the casualty or taking until the Premises, or what may remain
thereof, shall be put by Landlord in the same condition existing immediately
prior to such casualty or taking (or, in the case of a taking, as nearly as
practicable to such condition) subject to zoning and building laws or ordinances
then in existence, which, unless Landlord has exercised its option to terminate
pursuant to Section 6.1, Landlord covenants to do with reasonable diligence at
Landlord's expense, provided that Landlord's obligations with respect to
restoration shall not require Landlord to expend more than the net proceeds of
insurance recovered or damages awarded for such casualty or taking. "Net
proceeds of insurance recovered or damages awarded" refers to the gross amount
of such insurance or damages less the reasonable expenses of Landlord in
connection with the collection of the same, including without limitation, fees
and expenses for legal and appraisal services. If such damage is not so repaired
within 210 days of such casualty or taking (subject to Section 9.5 but in no
event more than 240 days after such casualty), upon notice given within the
following thirty (30) days, Tenant may terminate this Lease.
6.3 AWARD. Irrespective of the form in which recovery may be had
by law, all rights to damages or compensation for the Building and the Land
shall belong to Landlord in all cases. Tenant hereby grants to Landlord all of
Tenant's rights to such damages and compensation, and covenants to deliver such
further assignments thereof as Landlord may from time to time reasonably
request, except that Tenant expressly reserves the right to
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petition the taking authority for a separate award applicable to Tenant's
personal property and relocation costs.
ARTICLE VII
DEFAULTS
7.1 EVENTS OF DEFAULT. (a) If Tenant shall default in the
performance of any of its obligations to pay the Fixed Rent or Additional Rent
hereunder and if such default shall continue for five (5) days after notice from
Landlord designating such default or if within thirty (30) days after notice
from Landlord to Tenant specifying any other default or defaults Tenant has not
commenced diligently to correct the default or defaults so specified or has not
thereafter diligently pursued such correction to completion, or (b) if any
assignment for the benefit of creditors shall be made by Tenant, or (c) if
Tenant's leasehold interest shall be taken on execution or other process of law
in any action against Tenant, or (d) if a lien or other involuntary encumbrance
is filed against Tenant's leasehold interest, and is not discharged within
twenty (20) days after written notice thereof by Landlord to Tenant, or (e) if a
petition is filed by Tenant for liquidation, or for reorganization or an
arrangement or any other relief under any provision of the Bankruptcy Code as
then in force and effect, or (f) if an involuntary petition under any of the
provisions of said Bankruptcy Code is filed against Tenant and such involuntary
petition is not dismissed within sixty (60) days thereafter, then, and in any of
such cases, Landlord and the agents and servants of Landlord lawfully may, in
addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and without demand or notice and
with or without process of law enter into and upon the Premises or any part
thereof in the name of the whole or mail a notice of termination addressed to
Tenant, and repossess the same as of Landlord's former estate and expel Tenant
and those claiming through or under Tenant and remove its and their effects
without being deemed guilty of any manner of trespass and without prejudice to
any remedies which might otherwise be used for arrears of rent or prior breach
of covenant and upon such entry or mailing as aforesaid, this Lease shall
terminate Tenant hereby waiving all statutory rights (including without
limitation rights of redemption, if any) to the extent such rights may be
lawfully waived and Landlord, without notice to Tenant, may store Tenant's
effects, and those of any person claiming through or under Tenant at the expense
and risk of Tenant, and, if Landlord so elects, may sell such effects at public
auction or private sale and apply the net proceeds to the payment of all sums
due to Landlord from Tenant, if any, and pay over the balance, if any, to
Tenant.
7.2 REMEDIES. In the event that this Lease is terminated under any
of the provisions contained in Section 7.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay punctually to
Landlord all sums and to perform all the obligations which Tenant covenants in
this Lease to pay and to perform in the same manner and to the same extent and
at the same time as if this Lease had not been terminated. In
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calculating the amounts to be paid by Tenant pursuant to the next preceding
sentence, Tenant shall be credited with any amount paid to Landlord as
compensation as in this Section 7.2 provided and also with the net proceeds of
any rent obtained by Landlord by reletting the Premises, after deducting all
Landlord's reasonable expenses in connection with such reletting, including
without limitation, all repossession costs, brokerage commissions, fees for
legal services and expenses of preparing the Premises for such reletting (less
any sums paid to Landlord by the new tenant with respect thereto), it being
agreed by Tenant that Landlord may (i) relet the Premises or any part or parts
thereof, for a term or terms which may, at Landlord's option, be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term and may grant such concessions and free rent as Landlord, in
its reasonable judgment, considers advisable or necessary to relet the same and
(ii) make such alterations, repairs and decorations in the Premises as Landlord,
in its reasonable judgment, considers advisable or necessary to relet same, and
no action of Landlord in accordance with the foregoing or failure to relet or to
collect rent under reletting shall operate or be construed to release or reduce
Tenant's liability as aforesaid. Landlord agrees to use reasonable efforts to
relet the Premises promptly.
If at any time after termination of this Lease, Tenant defaults in
making the payments required in the paragraph immediately above, and in lieu of
any other damages or indemnity and in lieu of full recovery by Landlord of all
sums payable under all the foregoing provisions of this Section 7.2, Landlord
may, by notice to Tenant, elect to recover, and Tenant shall thereupon pay, as
liquidated damages, an amount equal to the aggregate of the Fixed Rent and
Additional Rent accrued in the twelve (12) months (or the number of months
remaining in the term at the time of Tenant's default if less than twelve (12))
ended next prior to such termination, plus the amount of rent of any kind
accrued and unpaid at the time of termination and less the amount of any
recovery by Landlord under the foregoing provisions of this Section 7.2 up to
the time of payment of such liquidated damages.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
7.3 REMEDIES CUMULATIVE. Any and all rights and remedies which
either party has under this Lease, and at law and equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law.
7.4 LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not
be obligated to, cure, at any time following ten (10) days' prior notice to
Tenant (except in cases of emergency when no notice shall be required) any
default by Tenant under this Lease; and
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whenever Landlord so elects, all costs and expenses incurred by Landlord,
including reasonable attorneys' fees, in curing a default, shall be paid by
Tenant to Landlord as Additional Rent on demand, together with interest thereon
at the rate provided in Section 7.7 from the date of payment by Landlord to the
date of payment by Tenant. Notwithstanding the foregoing, in the event of an
emergency, Landlord agrees to use reasonable efforts to notify Tenant promptly.
7.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by
either party to any act or omission which otherwise would be a breach of any
covenant or condition herein, or any waiver by either party of the breach of any
covenant or condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing obligation of
any covenant or condition herein, or otherwise, except as to the specific
instance, operate to permit similar acts or omissions.
The failure of either party to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
shall not be deemed a waiver of such violation nor prevent a subsequent act,
which would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed to
have been a waiver of such breach by Landlord. No consent or waiver, express or
implied, by either party to or of any breach of any agreement or duty shall be
construed as a waiver or consent to or of any other breach of the same or any
other agreement or duty.
7.6 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a
lesser sum than the Fixed Rent, Additional Rent or any other charge then due
shall be deemed to be other than on account of the earliest installment of such
rent or charge due, unless Landlord elects by notice to Tenant to credit such
sum against the most recent installment due, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
or other charge be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy in this Lease provided.
7.7 INTEREST ON OVERDUE SUMS. If Tenant fails to pay Fixed Rent,
Additional Rent and other charges payable by Tenant to Landlord within two
business days after the due date thereof (without regard to any requirement of
notice from Landlord or any period of grace allowed to Tenant under this Lease
before Landlord is allowed to exercise any extraordinary remedy on account
thereof), the amount so unpaid shall, from and after the second such occurrence
in any given year, bear interest at a rate (the "Delinquency Rate") equal to
three percent (3%) in excess of the Prime Rate as published in the Wall Street
Journal, from time to time in effect or, if such rate is in excess of any
maximum interest rate permissible under applicable law, the Delinquency Rate
shall be the maximum interest rate permitted under applicable law, commencing
with the due date and continuing through the day preceding the date on which
payment of such delinquent payment with interest thereon is paid.
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ARTICLE VIII
MORTGAGES
8.1 RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein
includes mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or holders of a mortgage. Until the holder
of a mortgage shall enter and take possession of the Premises for the purpose of
foreclosure, such holder shall have only such rights of Landlord as are
necessary to preserve the integrity of this Lease as security. Upon entry and
taking possession of the Premises for the purpose of foreclosure, such holder
shall have all the rights of Landlord. Notwithstanding any other provision of
this Lease to the contrary, no such holder of a mortgage shall be liable either
as mortgagee or as assignee, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder shall
enter and take possession of the Premises for the purpose of foreclosure, and
such holder shall not in any event be liable to perform or for failure to
perform the obligations of Landlord under Article 3. Upon entry for the purpose
of foreclosure, such holder shall be liable to perform all of the obligations of
Landlord (except for the obligations under Article 3), subject to and with the
benefit of the provisions of this Lease, provided that a discontinuance of any
foreclosure proceeding shall be deemed a conveyance under said provisions to the
owner of the equity of the Premises. No Fixed Rent, Additional Rent or any other
charge shall be paid more than thirty (30) days prior to the due dates thereof
and payments made in violation of this provision shall (except to the extent
that such payments are actually received by a mortgagee in possession or in the
process of foreclosing its mortgage) be a nullity as against such mortgagee and
Tenant shall be liable for the amount of such payments to such mortgagee.
The covenants and agreements contained in this Lease with respect to
the rights, powers and benefits of a holder of a mortgage (including, without
limitation, the covenants and agreements contained in this Section 8.1)
constitute a continuing offer to any person, corporation or other entity, which
by accepting a mortgage subject to this Lease, assumes (i) the obligations
herein set forth with respect to such holder and (ii) the obligation to release
proceeds for restoration pursuant to Section 6.2, provided that no default by
Tenant hereunder has occurred and continues beyond the applicable notice and
grace periods and that such proceeds are sufficient for restoration in
accordance with Section 6.2. Such holder hereby constitutes a party of this
Lease as an obligee hereunder to the same extent as though its name were written
hereon as such; and such holder shall be entitled to enforce such provisions in
its own name. Tenant agrees on request of Landlord to execute and deliver from
time to time any agreement which may be necessary to implement the provisions of
this Section 8.1.
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In the event of any act or omission by the Landlord which would give
the Tenant the right to terminate this Lease or to claim a partial or total
eviction, the Tenant shall not exercise any such right (a) until it shall have
given written notice of such act or omission to the holder of any deed of trust
or mortgage encumbering the Premises whose name and address shall have been
furnished to the Tenant in writing, at the last address so furnished, and (b)
until a reasonable period of time for remedying such an act or omission shall
have elapsed following the giving of such notice, provided that following the
giving of such notice the Landlord or said holder shall, with reasonable
diligence, have commenced and continued to remedy such act or omission or to
cause the same to be rendered.
In the event any proceedings are brought for the foreclosure of, or in
the event of exercise of the power of sale under, any mortgage or deed of trust
now or hereafter encumbering the Premises or any part thereof, Tenant shall
agree to and shall attorn to the purchaser upon such foreclosure or sale or upon
any grant of a deed in lieu of foreclosure, and recognize such purchaser as the
Landlord under this Lease if so requested by such purchaser.
8.2 SUPERIORITY OF LEASE; OPTION TO SUBORDINATE. Unless Landlord
exercises the option set forth below in this Section 8.2, this Lease shall be
superior to and shall not be subordinate to any mortgage or other voluntary lien
or other encumbrance on the Premises. Landlord shall have the option to
subordinate this Lease to any mortgage of the Premises provided that the holder
of record thereof enters into an agreement with Tenant by the terms of which
such holder will agree (a) to recognize all of the rights of Tenant under this
Lease, (b) to perform Landlord's obligations hereunder arising after the date of
such holder's acquisition of title as hereinafter described, and (c) to accept
Tenant as tenant of the Premises under the terms and conditions of this Lease in
the event of acquisition of title by such holder through foreclosure proceedings
or otherwise and Tenant will agree to recognize the holder of such mortgage as
Landlord in such event, which agreement shall be made expressly to bind and
inure to the benefit of the successors and assigns of Tenant and of the holder
and upon anyone purchasing said Premises at any foreclosure sale. Tenant and
Landlord agree to execute and deliver any appropriate instruments necessary to
carry out the agreements contained in this Section 8.2. Landlord represents that
as of the date of execution of this Lease, that there is no mortgage on the
Premises.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required or
permitted hereunder shall be in writing and addressed, if to the Tenant, at the
Original Address of Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord, with a copy to Thermo Electron
Corporation, 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: General
Counsel, and, if to Landlord, at the Original Address
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of Landlord or such other address as Landlord shall have last designated by
notice in writing to Tenant. Any notice shall be deemed duly given three (3)
business days after mailing to such address postage prepaid, registered or
certified mail, return receipt requested, or when delivered to such address by
hand.
9.2 QUIET ENJOYMENT. Landlord agrees, so long as Tenant is not in
default hereunder beyond the expiration of all applicable notice and cure
periods, Tenant shall and may peaceably and quietly have, hold and enjoy the
Premises during the Term without any manner of hindrance or molestation from
Landlord or anyone claiming under Landlord subject, however, to the terms of
this Lease.
9.3 LEASE NOT TO BE RECORDED. Tenant agrees that it will not
record this Lease. Both parties shall, upon the request of either, execute and
deliver a notice of this Lease in such form, if any, as may be permitted by
applicable statute. If this Lease is terminated before the Term Expiration Date,
the parties shall execute, deliver and record an instrument acknowledging such
fact and the actual date of termination of this Lease, and Tenant hereby
appoints Landlord its attorney-in-fact, coupled with an interest, with full
power of substitution to execute such instrument for the sole purpose of
terminating this Lease of record.
9.4 BIND AND INURE; LIMITATION OF LANDLORD'S LIABILITY. The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Premises shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Premises. The obligation of Landlord shall be binding upon the assets of
Landlord which comprise the Premises but not upon other assets of Landlord. No
individual partner, trustee, stockholder, officer, director, employee or
beneficiary of Landlord shall be personally liable under this Lease and Tenant
shall look solely to Landlord's interest in the Premises in pursuit of its
remedies upon an event of default hereunder, and the general assets of Landlord
and its individual partners, trustees, stockholders, officers, employees or
beneficiaries of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant; provided
that the foregoing provisions of this sentence shall not constitute a waiver of
any obligation evidenced by this Lease and provided further that the foregoing
provisions of this sentence shall not limit the right of Tenant to name Landlord
or any individual partner or trustee thereof as party defendant in any action or
suit in connection with this Lease so long as no personal money judgment shall
be asked for or taken against any individual partner, trustee, stockholder,
officer, employee or beneficiary of Landlord.
9.5 ACTS OF GOD. In any case where either party hereto is required
to do, any act, delays caused by or resulting from acts of God, war, civil
commotion, fire, flood or other casualty, unusual labor difficulties, unusual
shortages of labor, materials or equipment, government regulations, unusually
severe weather, or other causes beyond such party's reasonable control shall not
be completed, whether such time be designated by a fixed date, a
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fixed time or a "reasonable time", and such time shall be deemed to be extended
by the period of such delay.
9.6 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in
default in performance of any of its obligations hereunder unless it shall fail
to perform such obligations and such failure shall continue for a period of
thirty (30) days or such additional time as is reasonably required to correct
any such default after notice has been given by Tenant to Landlord specifying
the nature of Landlord's alleged default, provided Landlord has commenced to
cure such default within said thirty (30)-day period and thereafter diligently
prosecutes such cure to completion. Tenant shall have no right to terminate this
Lease for any default by Landlord hereunder and no right, for any such default,
to offset or counterclaim against any rent due hereunder.
In the event Landlord fails to act to cure any default of which it has
been given notice and opportunity to cure as provided in the immediately
preceding paragraph, Tenant may cure such default and recover from Landlord for
the reasonable costs and expenses incurred by Tenant in curing such default.
9.7 BROKERS. Each party warrants and represents to the other that
it has had no dealings with any broker or agent in connection with this Lease
other than the Broker(s) set forth in Article I and covenants to defend with
competent and experienced counsel, hold harmless and indemnify the other party
from and against any and all cost, expense or liability for any compensation,
commissions and charges claimed by any broker or agent other than the Broker(s)
set forth in Article I with respect to the indemnifying party's dealings in
connection with this Lease or the negotiation thereof. The fees and commissions
of the Broker(s) set forth in Article I shall be paid by Landlord.
9.8 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed
by and construed in accordance with the laws of the Commonwealth of
Massachusetts. If any term, covenant, condition or provision of this Lease or
the application thereof to any person or circumstances shall be declared
invalid, or unenforceable by the final ruling of a court of competent
jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this Lease and their application to persons or circumstances shall
not be affected thereby and shall continue to be enforced and recognized as
valid agreements of the parties, and in the place of such invalid or
unenforceable provision, there shall be substituted a like, but valid and
enforceable provision which comports to the findings of the aforesaid court and
most nearly accomplishes the original intention of the parties.
There are no prior oral or written agreements between Landlord and
Tenant affecting this Lease. This Lease may be amended and the provisions hereof
may be waived or modified, only by instruments in writing executed by Landlord
and Tenant.
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The titles of the several Articles and Sections contained herein are
for convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and their
respective heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively. If there be more than one tenant,
the obligations imposed by this Lease upon Tenant shall be joint and several.
9.9 SUBMISSION NOT AN OFFER. The submission of a draft of this
Lease or a summary of some or all of its provisions does not constitute an offer
to lease or demise the Premises, it being understood and agreed that neither
Landlord nor Tenant shall be legally bound with respect to the leasing of the
Premises unless and until this Lease has been executed by both Landlord and
Tenant and a fully executed copy delivered.
9.10 EXISTING LEASE. The existing lease dated February 27, 1987 by
and between Forge Park Limited Partnership as Landlord whose interest has been
assigned to Landlord, and Tenant shall, upon the execution and delivery of this
Lease, be terminated effective January 31, 1996 as to all unaccrued obligations
of either party.
9.11 INDEMNIFICATION BY LANDLORD. Subject to Section 9.4 hereof,
Landlord shall indemnify, defend with competent and experienced counsel and hold
harmless Tenant, its parent, subsidiaries and affiliates, and their respective
officers, directors, shareholders and employees, from and against any and all
damages, liabilities, actions, causes of action, suits, claims, demands, losses,
costs and expenses (including without limitation reasonable attorneys' fees and
disbursements and court costs) to the extent arising during the Term hereof from
or in connection with the negligence or willful misconduct of Landlord, its
agents, employees, representatives or contractors. The provisions of this
Section 9.12 shall survive the expiration or earlier termination of this Lease.
WITNESS the execution hereof under seal on the day and year first above
written.
TENANT:
THERMO INSTRUMENT SYSTEMS INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Its: Executive Vice President &
Chief Operating Officer
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LANDLORD:
PRUDENTIAL REALTY ACQUISITION
FUND II LIMITED PARTNERSHIP
By: Prudential Realty Partnerships, Inc.
------------------------------------
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Vice President
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EXHIBIT A
AND
EXHIBIT A-1
DESCRIPTION OF PREMISES
Lot 6 on a Plan entitled "Subdivision Plan of Land in Franklin, MA
(Norfolk County) Being a Subdivision of Lot 26 shown on Land Court Plan 7594-5
Scale 1 inch = 100 Feet Date: October 31, 1986"
The portion of such plan showing Lot 6 is attached hereto.
37
LOT 5
UNREGISTERED A=644,526:SQ FT
REGISTERED A=173,257:SQ FT
-----------------------------
TOTAL A=817,783:SQ FT
A=18774:ACRES
N/F
XXXXX X. XXXXX, XXXXXX X. XXXXXXX
XXXXXXX X. XXXXXXXXX, XXXXXXX XXXXXX AND
XXXX X. XXXXXX; TRUSTEES OF FORGE PARK REALTY TRUST
[Plot Plan of Property]
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EXHIBIT A-2
1. Terms and provisions of Forge Park Covenants and Restrictions.
2. Slope easement for the benefit of Ten Forge Park as shown on
Exhibit A-1.
3. Future creation of a 12 foot sewer and utility easement along the
Westerly side of locus and 20 foot sewer and utility easement along the
Easterly side of locus.
4. Easement granted by said Trustees to New England Telephone and
Telegraph Company filed with said Registry District as Document No.
501367 on September 17, 1986, recorded with said Deeds as Instrument
No. 106968 (Book , Page ).
5. Order of Land Court to approve submission of definitive subdivision
plan, Case No. 7594-S dated February 12, 1987, filed with said Registry
District on February 20, 1987 as Document No. 514581.
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EXHIBIT C
FORGE PARK COVENANTS AND RESTRICTIONS
COVENANTS AND RESTRICTIONS
TO BE SET FORTH IN DEED OF THE PREMISES
The premises are conveyed subject to the following restrictions hereby
imposed for the exclusive benefit of the Grantors and their successors in trust
as owners of the benefitted land hereinafter described and of such of those
successors in title to any portions of the benefitted land, if any, to whom the
right to enforce these restrictions may hereafter be expressly granted of
record:
1. DESIGN REVIEW AND APPROVAL
In order to achieve continuity and compatibility of architecture,
landscaping, and site development, all plans pertaining to building
and site design (including layout, parking capacity, landscaping,
drainage, utilities, lighting, signs, and subsequent alterations and
additions) are subject to review and prior written approval by the
Grantors or such successors. Such plans shall conform to master
development plans for Forge Park (master drainage, definitive
subdivision, and utility infrastructure plans) except with written
consent from the Grantors or such successors.
The design review process is intended to facilitate the development and
coordination of building plans in addition to the enforcement of these
protective restrictions. All plans will be reviewed by the Grantors or
such successors within thirty (30) days from submission. Upon
completion of construction in accordance with approved plans, the
Grantors or such successors, upon request, shall execute an instrument
in recordable form approving such construction.
2. USES ALLOWED
No uses will be made of the premises except for the purposes of office,
light industry, manufacturing, research and development, warehousing
and distribution, hotel, conference/educational training, child care,
fitness, telecommunications transmission, and limited retail uses in
compliance with the local zoning by-laws and regulations. Any other
uses must be approved by the Grantors or such successors. No use shall
be offensive to the neighborhood by reason of odor, fumes, dust, smoke,
noise or pollution, nor hazardous by reason of
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danger of fire, explosion, or improper use and storage of hazardous
waste materials.
3. DEVELOPMENT DENSITY
Minimum setbacks for buildings shall be fifty (50) feet from all street
lines; thirty (30) feet from side property lines; and thirty (30) feet
from rear property lines. Front yard (50 foot setback) shall be
maintained as a 75% landscaped area with only paved driveways and
sidewalks allowed. For side and rear yards, fifteen (15) foot setback
lines will be maintained as landscaped areas with the exception of 25%
of such area allowed for paved driveways and sidewalks. Minimum fifty
(50) foot setback and landscaped areas will be maintained for land
abutting residentially zoned property.
5. BUILDING EXTERIOR
To maintain a quality standard of construction and appearance, the
exterior walls of each building are to be constructed of brick,
architectural concrete block, architectural pre-cast concrete,
procelain enamel or similar metal panels, or other comparable material
approved by the Grantor or such successors. Building roofs will be
flat, with a slope of no more than one foot per twenty-four (24) lineal
feet. All rooftop structures or equipment shall be screened, so as not
to be visible from public view. With approval of the Grantors or such
successors, the requirement of screening may be waived if rooftop
equipment is organized in a consistent pattern and painted a uniform
color so as to present an inoffensive roofscape. All equipment mounted
at grade shall be architecturally related to its surroundings and
screened with landscaping or approved fencing material.
6. LOADING DOCKS
Loading docks will not be permitted to face any street or primary
access roadways within Forge Park. Where necessary, structural buffers
and/or landscaping shall be provided to screen loading areas from
public view.
7. PARKING AREAS
Parking areas shall be surfaced with bituminous concrete, concrete,
brick, or approved equal. Curbing will be provided to control drainage
runoff from parking areas. Type VB vertical granite curb will be
provided at curb cuts on the public way. No on-street parking will be
permitted. Parking of vehicles shall only be permitted on paved areas.
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8. OPEN STORAGE
Open storage shall be permitted provided such storage is located to the
rear of the front line of the principal building, shall not exceed
fourteen (14) feet in height and shall be screened from public view by
substantial means, such as an ornamental wall or approved fencing
erected in such a way as not to make the exterior appearance of the
building or views from adjacent buildings unacceptable. Plans for open
storage will be submitted for approval by the Grantors or such
successors.
9. LIGHTING
Walkways and parking areas shall be adequately lighted. No exterior
lighting shall be mounted higher than twenty-five (25) feet above
finished grade, and lighting sources shall be shielded to prevent
excessive glare. Building mounted lighting is not permitted for
illumination of yards to the front and street side of buildings.
Properties adjacent to residential areas will design lighting plans in
order to minimize lighting impact and glare on residential areas. In
all cases, lighting shall not spill beyond site boundaries. Lighting
source shall be metal halide, fluorescent, incandescent, or mercury
vapor.
10. UTILITY SERVICE LINES
All utility service lines shall be placed underground.
11. SIGNAGE
The purpose of signage standard is to ensure a consistency of park
signage and enhance the visual unity and clarity of the park
environment. Building/site identification signs must conform to park
standards. All signs within individual sites shall be internally
consistent. All signs will be reviewed for approval by the Grantors or
their successors.
ATTACHED TO STRUCTURES
Signs shall not extend above the roof line of the structure or
wall to which the sign is attached. The area of the sign will
be no greater than twenty percent (20%) of the exterior wall
area. The height of the letters will be limited to five (5)
feet. Signs shall not extend greater than eighteen (18) inches
from the building wall.
FREE STANDING SIGNS
Free standing signs may be used for business identification,
directional purposes and traffic control. Signs shall be
limited to ten (10) feet in
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height and sixty (60) square feet. Where possible, such signs
shall be coordinated with park signed system standards.
ILLUMINATION
Illuminating signs must be restrained in order not to detract
from the aesthetics of the park. Flashing and moving signs are
not permitted.
DIRECTIONAL SIGNS
All signs employed for directional purposes (i.e., parking,
shipping, and receiving, etc.) shall be no greater than four
(4) square feet and shall be installed no closer than
twenty-five (25) feet inside of public right of way lines.
12. BUILDING MAINTENANCE
Reasonable care shall be taken to maintain all structures, landscaping,
and site improvements in accordance with their condition as of the
completion of construction. In the event there is a partial or total
destruction of a structure or other improvements, the owner of the
structure shall commence and proceed as soon as practicable, but in no
case later than six (6) months after the event, either: (1) to rebuild
the damaged structure and/or improvements, or (2) to demolish the
damaged structure and/or improvements and to restore the premises as
much as practicable to their condition prior to construction.
13. CONDITION OF PREMISES
If property is unimproved, grass and weeds must be kept cut below ten
(10) inches. If property is improved, it must be landscaped within six
(6) months upon completion of construction (or no later than is
practicable based on weather and growing conditions) according to a
plan approved by the Grantors or such successors. Landscaping shall be
designed to provide a park-like setting for the buildings and to screen
parking, loading, and road areas. Minimum standards for trees include:
street trees 2 inches caliper, evergreen trees 4 feet - 6 feet height,
and deciduous ornamental and screening trees 2 inches caliper.
All grounds will be maintained in first-class condition suitable to a
quality industrial park. If, in the opinion of the Grantors or such
successors, property is poorly maintained, and after thirty (30) days
prior notice to the owner, the Grantors or their successors reserve the
right to enter upon the premises and to
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maintain the same in proper condition at the owner's expense.
14. The premises shall not be subdivided without the express approval of
the Grantors or such successors.
These restrictions shall remain in effect until January 1, 2017 and may
be extended for successive periods of twenty (20) years each pursuant to General
Laws, Chapter 184, Section 27, as the same may be amended.
Approvals may be given, and these restrictions waived in particular
respects, only by an instrument in writing signed by the Grantors or their
successors in trust, as long as they are owners of any portion of the benefitted
land hereinafter referred to, or their successors in title to whom the exclusive
benefit of these restrictions may hereafter have been expressly granted of
record, or by any agent to whom authority therefor may have been delegated by
the Grantors or such successors by instrument duly recorded, and such
instrument, whether or not recorded, shall be binding on all persons succeeding
to the benefit of these restrictions. The completion for more than six (6)
months of any construction, other than exterior signs, driveways, parking areas,
grading and landscaping, shall be conclusive evidence of approval or waiver
unless suit for enforcement has been theretofore commenced and notice thereof
theretofore recorded appropriately to affect the record title to the premises
and any such construction may be repaired or replaced in case of damage or
destruction. No owner shall be responsible except for violations occurring on
his land while owner.
No general or common scheme shall be implied in favor of the owned
premises nor shall the Grantors be under any duty or obligation to enforce any
restrictions which may be imposed on other premises within Forge Park.
The Grantors benefitted land consists of the registered and
unregistered land in Franklin, Norfolk County, Massachusetts owned by the
Grantors shown on a plan entitled: "Plan of Land in Franklin, Mass.", dated
October 30, 1980, by Xxxxxxxxx Brothers, Inc. recorded with the Norfolk
Registry of Deeds in Plan Book 286 as Plan No. 1071 of 1980.
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ASSIGNMENT OF LEASE
This ASSIGNMENT (this "Assignment") is made as of the 30th day of August,
1996, by and between Prudential Realty Acquisition Fund II Limited Partnership,
a Delaware limited partnership having a principal place of business at 000 Xxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx ("Seller"), and MGI 8 Forge Park, Inc., a
Massachusetts corporation having a principal place of business at c/o MGI
PROPERTIES, Xxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Buyer").
Buyer is today purchasing from Seller the land, with buildings and
improvements thereon, known as 0 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx, more
particularly described in EXHIBIT A attached hereto (the "Premises"). In
consideration of such purchase and the conveyance of the Premises by Seller and
other valuable consideration, the receipt and sufficiency of which are mutually
acknowledged, the parties agree as set forth below.
Seller hereby assigns to Buyer, without recourse, all of Seller's right,
title and interest as landlord in the lease dated February 1, 1996, by and
between Seller as landlord and Thermo Instrument Systems, Inc. as tenant (the
"Lease"); and as owner of the Premises in all licenses, permits and approvals of
governmental authorities with respect to the Premises (the "Permits"), with
respect to the period from and after the date of this Assignment. Buyer hereby
accepts the foregoing assignment and assumes and agrees to perform all
obligations of the landlord under the Lease and all obligations of the owner of
the Premises under the Permits, with respect to the period from and after the
date of this Assignment.
Seller makes no representation or warranty whatsoever with respect to the
Lease and Permits.
Seller hereby agrees to indemnify the Buyer against and hold the Buyer
harmless from all costs, claims, and liabilities of the landlord under the Lease
arising with respect to the period prior to the date of this Assignment, and the
Buyer hereby agrees to indemnify the Seller against and hold the Seller harmless
from all costs, claims, and liabilities of the landlord under the Lease arising
with respect to the period from and after the date of this Assignment.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Buyer and the Seller have caused this Assignment to
be executed under seal by their duly authorized representatives as of the day
and year first above written.
SELLER
PRUDENTIAL REALTY ACQUISITION
FUND II LIMITED PARTNERSHIP
PRUDENTIAL REALTY
PARTNERSHIP, INC., its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BUYER
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: SVP
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