<PAGE>
Exhibit 10.28
LEASE AGREEMENT
LANDLORD: BerCar II,
LLC, a Massachusetts Limited Liability Company
TENANT:
Brooks-PRI Automation, Inc., a Delaware corporation
PREMISES: 12
Elizabeth Drive
Chelmsford, Massachusetts
DATE:
October 23, 2002
<PAGE>
TABLE OF CONTENTS
<Table>
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<S>
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<C>
ARTICLE I.
Demised Premises and Term
.......................................... 1
ARTICLE I.
Demised Premises and Term
.......................................... 1
1.1 Demised
Premises and Term ...............................................
1
1.2 Existing
Lease ..........................................................
1
1.3 Condition
of the Premises/Maintenance ...................................
1
1.4 Early
Occupancy .........................................................
1
1.5 Extension
Option ........................................................
1
1.5.1 First Extension
Term .......................................... 1
1.5.2 Second Extension
Term ......................................... 2
1.6 Conditions
of Option to Extend ..........................................
2
ARTICLE II.
Fixed Rent
.........................................................
2
ARTICLE II.
Fixed Rent
.........................................................
2
2.1 Fixed Rent
..............................................................
2
2.2 First
Extension Term Rent ...............................................
3
2.3 Second
Extension Term Rent ..............................................
3
2.4 Fair
Market Rent Arbitration
............................................ 3
2.5 General
Provisions for Rent Payments ....................................
3
ARTICLE III.
Additional Rent
.................................................... 4
ARTICLE III.
Additional Rent
.................................................... 4
3.1 Additional
Rent .........................................................
4
3.2 Public
Requirements .....................................................
4
3.3
Contests
by Tenant ......................................................
4
ARTICLE IV.
Control
............................................................
5
ARTICLE IV.
Control
............................................................
5
4.1 Control
.................................................................
5
4.1.1 Encumbrances by
Landlord ...................................... 5
4.1.2 Encumbrances by
Tenant ........................................ 5
4.2 Indemnity
...............................................................
5
4.3 Insurance
...............................................................
6
ARTICLE V.
Landlord's Representations
......................................... 6
ARTICLE V.
Landlord's Representations
......................................... 6
5.1 Landlord's
Representations ..............................................
6
ARTICLE VI.
Assignment
.........................................................
6
ARTICLE VI.
Assignment
.........................................................
6
6.1 Assignment
..............................................................
6
6.2
Non-Disturbance of Sublessees
........................................... 7
ARTICLE VII.
Alterations and Improvements
....................................... 7
ARTICLE VII.
Alterations and
Improvements ....................................... 7
7.1
Alterations and Improvements
............................................ 8
7.1.1 Approval of
Initial Renovations ............................... 8
7.1.2 Approval of
Subsequent Renovations ............................ 8
7.2 Certain
Liens ...........................................................
9
7.3 Tenant's
Permits ........................................................
9
7.4 Repairs by
Landlord .....................................................
9
ARTICLE VIII.
Notices
............................................................
9
ARTICLE VIII.
Notices
............................................................
9
8.1 Notices
.................................................................
9
ARTICLE IX.
Subordination to Mortgages
......................................... 10
ARTICLE IX.
Subordination to Mortgages
......................................... 10
9.1 Mortgage
Holder's Election ..............................................
10
9.2
Non-Disturbance Agreement
............................................... 10
9.2.1 Non-Disturbance
of Tenant ..................................... 10
9.2.2 Liability of
Mortgagee/Successor .............................. 11
9.2.3 Recognition of
Purchase Option ................................ 11
</Table>
i
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<Table>
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9.2.4 Intervening
Liens.................................... 11
9.3
Notice for Mortgagee..........................................
11
9.4
Mortgagee Consent.............................................
11
ARTICLE X.
Fire and Casualty and Restoration........................ 12
ARTICLE X.
Fire and Casualty and Restoration........................ 12
10.1
Fire
and Casualty and Restoration............................. 12
10.2
Tenant's Election to Restore..................................
12
10.3
Landlord's Approval of Reconstruction.........................
12
10.4
Tenant's Election to Delay Reconstruction.....................
12
10.5
Proceeds Paid to Landlord.....................................
12
ARTICLE XI.
Right of Entry........................................... 13
ARTICLE XI.
Right of Entry........................................... 13
11.1
Right of Entry................................................
13
ARTICLE XII.
Default.................................................. 13
ARTICLE XII.
Default.................................................. 13
12.1
Default.......................................................
13
12.2
Tenant's Default..............................................
13
ARTICLE XIII.
Eminent Domain........................................... 14
ARTICLE XIII.
Eminent Domain........................................... 14
13.1
Eminent Domain................................................
14
13.2
Partial Condemnation..........................................
14
13.3
Condemnation Award............................................
14
13.4
Condemnation/Personal Property................................
15
ARTICLE XIV.
Force Majeure............................................ 15
ARTICLE XIV.
Force Majeure............................................ 15
14.1
Force Majeure.................................................
15
ARTICLE XV.
Saving Clause............................................ 15
ARTICLE XV.
Saving Clause............................................ 15
15.1
Saving Clause.................................................
15
ARTICLE XVI.
Right to Purchase........................................ 15
ARTICLE XVI.
Right to Purchase........................................ 15
16.1
Right to Purchase.............................................
15
16.2
Closing of the
Purchase Option................................ 16
16.3
Landlord's Put................................................
16
ARTICLE XVII.
Notice of Lease.......................................... 16
ARTICLE XVII.
Notice of Lease.......................................... 16
17.1
Notice of Lease...............................................
16
ARTICLE XVIII.
Definitions and Interpretations.......................... 16
ARTICLE XVIII.
Definitions and Interpretations.......................... 16
18.1
Definitions and Interpretations...............................
16
18.2
Exculpation...................................................
16
ARTICLE XIX.
Hazardous Material....................................... 16
ARTICLE XIX.
Hazardous Material....................................... 16
19.1
Hazardous Material............................................
17
ARTICLE XX.
Effectiveness of Lease................................... 17
ARTICLE XX.
Effectiveness of Lease................................... 17
20.1
Effectiveness of Lease........................................
17
ARTICLE XXI.
Brokers.................................................. 17
ARTICLE XXI.
Brokers.................................................. 17
ARTICLE XXII.
Representatives.......................................... 17
ARTICLE XXII.
Representatives.......................................... 17
22.1
Representatives...............................................
17
</Table>
ii
<PAGE>
List of Schedules and Exhibits
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Schedule A Legal
Description of Lot
Schedule B Landlord's
Representations and Warranties
Exhibit A Form of
Assignment and Assumption of Lease Agreement
Exhibit B Form of
Tenant Estoppel of Hitite Microwave Corporation
Exhibit C Title
Commitment
Exhibit D Purchase
Option Closing Procedures
Exhibit E Form of
Notice of Lease
Exhibit F List of
Environmental Reports
</Table>
iii
<PAGE>
LEASE dated October 23, 2002 (the "Lease"), between BerCar II, LLC,
a
Massachusetts limited liability company (hereinafter referred to as
"Landlord")
and Brooks-PRI Automation, Inc., a Delaware corporation
(hereinafter referred
to as "Tenant").
ARTICLE 1. Demised Premises and Term
1.1
Demised Premises and Term: In consideration of the rents
reserved
herein and in consideration of the agreements and conditions herein
contained
on the part of Tenant to be performed and observed, Landlord does
hereby demise
and lease to Tenant, and Tenant does hereby hire from Landlord, the
premises
described in Schedule A of this Lease (hereinafter referred to as
"demised
premises"), for the original term of twelve (12) years commencing
upon October
1, 2002 (the "Rent Day") and expiring upon September 30, 2014 (the
"Original
Term").
1.2
Existing Lease: Tenant acknowledges that approximately 34,000
square
feet of floor area within the building comprising a portion of the
demised
premises is presently leased to Hittite Microwave Corporation by
lease dated
July 6, 1999, as amended by Amendment A dated as of August 15, 1999
(the
"Existing Lease"). Contemporaneously with Landlord's execution of
this Lease,
Landlord shall execute and deliver to Tenant an assignment of
Landlord's
interest in the Existing Lease with an effective date as of the
Rent Day, and
Tenant shall assume the obligations of Landlord under the Existing
Lease with
an effective date as of the Rent Day by entering into an assignment
and
assumption agreement in the form of Exhibit A attached. The form of
tenant
estoppel certificate to be delivered by the tenant under the
Existing Lease
is attached as Exhibit B.
1.3
Condition of the Premises/Maintenance: Tenant acknowledges that it
has
inspected the demised premises, and it is understood and agreed
that Tenant will
accept the demised premises in their existing physical condition,
and Landlord
shall be under no obligation to make any repairs, alterations or
improvements to
the demised premises prior to or at the commencement of the term
hereof or at
any time thereafter, except as herein specifically provided
otherwise. Tenant
shall perform, at its own cost and expense, any work required to
prepare the
demised premises for Tenant's occupancy.
1.4
Early Occupancy: During the time period commencing upon the
execution
and delivery of this Lease, and ending upon the commencement of the
term of
this Lease (the "Early Occupancy Period"), Tenant shall comply with
all of the
provisions of this Lease as if said period were part of the term of
this Lease,
except that no rent shall be payable for said period. Tenant shall
have full
access, use and occupancy of the demised premises during the Early
Occupancy
Period under the terms of the Lease.
1.5
Extension Option:
1.5.1 First Extension Term: Tenant shall have the right, at its
election,
to extend the Original Term of this Lease for an additional period
of ten (10)
years commencing upon October 1, 2014 and expiring upon September
30, 2004 (the
"First Extension Term"). Tenant shall exercise its option to extend
the term for
the First Extension Term by giving Landlord written notice of its
election no
earlier than April 1, 2013, and no later than the later to occur of
either (a)
September 20, 2013, or (b) the date which is ten (10) business days
after the
receipt by Tenant of
<PAGE>
a written reminder notice from Landlord to Tenant (the "First
Option Reminder
Notice") which expressly (i) refers to the option to extend the
term for the
First Extension Term, and (ii) states that the option to extend the
term for
the First Extension Term shall expire on the later of September 30,
2013 or ten
(10) business days after the date of receipt of the First Option
Reminder
Notice. The First Option Reminder Notice shall be delivered no
earlier than
April 1, 2013.
1.5.2 Second Extension Term: Tenant shall have the right, at its
election,
to extend the Original Term of this Lease as previously extended by
the First
Extension Term for an additional period of ten (10) years
commencing upon
October 1, 2024 and expiring upon September 30, 2034 (the "Second
Extension
Term"). Tenant shall exercise its option to extend the term for the
Second
Extension Term by giving Landlord written notice of its election no
earlier than
April 1, 2023, and no later than the later to occur of either (a)
September 30,
2023, or (b) the date which is ten (10) business days after the
receipt by
Tenant of a written reminder notice from Landlord to Tenant (the
"Second Option
Reminder Notice") which expressly (a) refers to the option to
extend the term
for the Second Extension Term, and (b) states that the option to
extend the term
for the Second Extension Term shall expire on the later of either
September 30,
2023, or ten (10) business days after the date of receipt of the
Second Option
Reminder Notice. The Second Option Reminder Notice shall be
delivered no earlier
than April 1, 2023.
1.6
Conditions of
Option to Extend: The expression "the Original Term"
means the period of twelve (12) years referred to in the first
paragraph of
this Article. Prior to the exercise by Tenant of any of said
elections to
extend the Original Term, the expression "the term of this Lease"
or any
equivalent expression, shall mean the Original Term; after the
exercise by
Tenant of any of the aforesaid elections, the expression "the term
of this
Lease" or any equivalent expression shall mean the Original Term as
it may have
been then extended. Except as expressly otherwise provided in this
Lease, all
the agreements and conditions in this Lease contained shall apply
to the
additional period or periods to which the Original Term shall be
extended as
aforesaid. If Tenant shall not give Landlord notice of Tenant's
decision to
exercise the next ensuing election in the manner and within the
time provided
aforesaid (i.e. by the later of the specified date or within ten
(10) business
days of the receipt of a reminder notice from Landlord as provided
above),
then, the term shall end upon the expiration of the term (as it may
have
theretofore been extended), and Tenant shall have no further right
to extend
the term of this Lease.
ARTICLE II. Fixed Rent
2.1
Fixed Rent:
Tenant agrees to pay to Landlord a fixed rent ("Fixed
Rent") at the following annual rates:
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------
Lease Years
Effective Dates
Annual Rent Rate Monthly
Payment
-------------------------------------------------------------------------------------
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<C>
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1-2
10/1/02 to 9/30/04
$556,500.00
$46,375.00
-------------------------------------------------------------------------------------
3-5
10/1/04 to 9/30/07
$695,625.00
$57,968.75
-------------------------------------------------------------------------------------
6-10
10/1/07 to 9/30/12
$788,375.00
$65,697.92
-------------------------------------------------------------------------------------
11-12 (or Purchase 10/1/12 to
9/30/14
$881,125.00
$73,427.08
Date)
(or Purchase Date)
-------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
2.2
First Extension Term Rent: During the First Extension Term for
which
the Original Term of this Lease may be extended as set forth in
Section 1.2
above the fixed rent payable hereunder shall be adjusted so as to
equal the
greater of (a) $1,576,750.00 per annum; or (b) ninety five percent
(95%) of the
"fair market rent" as
mutually determined by Landlord and Tenant through the
process of negotiation or as otherwise herein set forth; and
2.3
Second Extension Term Rent: During the Second Extension Term for
which
the Original Term of this Lease as previously extended may be
further extended
as set forth in Section 1.2 above, the fixed rent payable hereunder
shall be
adjusted so as to equal the greater of (a) $2,040,500.00 per annum;
or (b)
ninety-five percent (95%) of the "fair market rent" as mutually
determined by
Landlord and Tenant through the process of negotiation or as
otherwise herein
set forth.
2.4
Fair Market Rent Arbitration: Notwithstanding anything to the
contrary
contained herein, however, if for any reason whatsoever Landlord
and Tenant
shall not agree in writing upon the "fair market rent" for any
additional
period at least six (6) months prior to the commencement of the
additional
period in question, then the fair market rent for the additional
period in
question for premises of the size and nature of the demised
premises shall be
determined by licensed real estate appraisers having at least five
(5) years'
experience in the appraisal of commercial real estate in the
Metro-North /
Boston, Massachusetts market, one such appraiser to be designated
by each of
Landlord and Tenant. If either party shall fail to designate its
appraiser by
giving notice of the name of such appraiser to the other party
within fifteen
(15) days after receiving notice of the name of the other party's
appraiser,
then the appraiser chosen by the other party shall determine the
fair market
rent and his determination shall be final and conclusive. If the
appraisers
designated by Landlord and Tenant shall disagree as to the fair
market rent,
but if the difference between their estimates of fair market rent
shall be five
percent (5%) or less of the greater of the estimates, then the
average of their
estimates shall be the fair market rent for purposes hereof. If the
appraisers
designated by Landlord and Tenant shall disagree as to the amount
of fair
market rent, and if their estimates of fair market rent shall vary
by more than
five percent (5%) of the greater of said estimates, then they shall
jointly
select a third appraiser meeting the qualifications set forth
above, and his
estimate of fair market rent shall be the fair market rent for
purposes hereof
if it is not greater than the greater of the other two estimates
and not less
than the lesser of the other two estimates. If said third
appraiser's estimate
is greater than the greater of the other two estimates, then the
greater of the
other two estimates shall be the fair market rent for purposes
hereof; and if
the estimate of the third appraiser shall be less than the lesser
of the other
two estimates, then the lesser of the other two estimates shall be
the fair
market rent for purposes hereof. Each of Landlord and Tenant shall
pay for the
services of its appraiser, and if a third appraiser shall be
chosen, then each
of Landlord and Tenant shall pay for one-half of the services of
the third
appraiser.
2.5
General Provisions for Rent Payments: Rent Day shall be October
1,
2002. Fixed Rent and any additional rent payable to Landlord shall
be paid to
Landlord at the address provided for in Article 8, or to such other
legal
entity or to such other address as Landlord shall designate by
notice to
Tenant. Fixed Rent shall be paid to Landlord without notice or
demand and
without abatement, deduction, counterclaim or set off except only
as expressly
otherwise herein provided.
3
<PAGE>
ARTICLE III. Additional Rent
3.1
Additional Rent:
Tenant agrees to pay every "Imposition" (hereinafter
defined), before the same becomes delinquent, payable for any
period between
Rent Day and the expiration of the term of this Lease. Every
Imposition payable
for a period beginning before the Rent Day and ending after Rent
Day or for a
period beginning before the expiration of the term of this Lease
and ending
after the expiration of the term shall be apportioned and adjusted
between
Landlord and Tenant. Upon demand from time to time Tenant will
furnish to
Landlord evidence of payments of Impositions. "Impositions" shall
mean real
estate taxes, betterments assessments (special or general, ordinary
or
extraordinary), water and sewer taxes and any other ad valorem
charges made by
any public authority (consistent with the current system of real
estate taxes,
betterments assessments (special or general, ordinary or
extraordinary), water
and sewer taxes) which upon assessment or upon failure of payment
become a lien
upon the demised premises. If any betterments assessments may be
payable by law
in installments, at Tenant's election said betterments assessments
shall be
deemed payable not for the period in which the same are assessed
but in
installments for the periods in which the installments thereof are
payable. If
Landlord shall have the right to elect the period over which any
such assessment
may be paid, at Tenant's election, Landlord agrees to elect the
longest period
available to Landlord. Impositions shall not include any franchise,
estate,
inheritance, succession, capital levy or transfer tax of Landlord,
or any income
tax of Landlord or tax upon rents payable by Tenant.
3.2
Public Requirements:
Tenant agrees to comply during the term of this
Lease with all "Public Requirements" (hereinafter defined)
applicable to the
demised premises and to the public ways adjacent to the demised
premises.
"Public Requirements" mean laws, ordinances, by-laws, regulations
and orders of
all public authorities having jurisdiction, compliance with which
shall by law
be the obligation of the owner or occupant of the demised
premises.
3.3.
Contests by Tenant:
Tenant shall have the right to contest in good
faith any Imposition or Public Requirement in the manner provided
by law for
contesting the same, provided that if payment of any Imposition or
if compliance
with any Public Requirement shall be deferred pending such contest,
such
deferment of payment or deferment of compliance shall not
jeopardize Landlord's
interest in the demised premises. Such contest shall be in the name
of Tenant or
in the name of Landlord or in the names of both. At the request of
Tenant and
without cost or expense to Landlord, Landlord will join in any
contest and
execute any and all documents in connection therewith as Tenant may
reasonably
request. Tenant shall indemnify Landlord against, and save Landlord
harmless
from, any and all loss, damage, claims, liabilities, judgments,
costs and
expenses (including the cost and expense of defending any claim),
arising out of
any such contest or out of any deferring of payment of any
Imposition or any
deferring of compliance with any Public Requirement. Until such
time as an
abatement or refund shall be obtained, an Imposition shall be
deemed the amount
assessed; after an abatement or refund shall be obtained, the
Imposition shall
be deemed the amount assessed less the net abatement or refund.
4
<PAGE>
ARTICLE IV. Control
4.1 Control: Except as
otherwise set forth in the Existing Lease,
Tenant shall have exclusive possession and control of, and
responsibility for,
the demised premises and the public ways adjacent to the demised
premises to the
extent that possession or control of, or responsibility for such
ways is the
obligation of the property owner and not public authority.
4.1.1 Encumbrances by
Landlord: Landlord hereby covenants to Tenant
that Landlord shall not voluntarily create or permit to be created
any, liens,
easements, restrictions or encumbrances of any nature whatsoever or
otherwise
modify any items disclosed in the commitment for title insurance
(the "Title
Commitment") attached as Exhibit C with respect to the demised
premises after
the date hereof without the prior written consent of Tenant, such
consent not to
be unreasonably withheld or delayed. In addition, Landlord hereby
covenants to
Tenant that Landlord shall not (i) enter into any leases, tenancies
or other
agreements affording a right of occupancy of the demised premises,
enter into
any management, leasing, brokerage, purchase or maintenance
contracts which
shall be binding on Tenant or the demised premises, or grant any
rights or
options to purchase the demised premises except any which shall be
subordinate
to this Lease, or (ii) initiate or participate in any modifications
to the
existing buildings and zoning laws of the Town of Chelmsford, or
any other
governmental authority, relating to the use or occupancy of the
demised premises
after the date hereof without the prior written consent of Tenant,
such consent
with respect to the matters in clause (ii) only not to be
unreasonably withheld
or delayed.
4.1.2 Encumbrances by
Tenant: Subject to the conditions and
limitations in this Subsection 4.1.2, Landlord shall cooperate and
join in any
agreement, grant or covenant relating to the demised premises and
Tenant's use
and occupancy thereof requested by Tenant for the benefit of a
third party
subject to the review and approval of Landlord and its counsel on
the standards
set forth below. Landlord shall not unreasonably withhold,
condition or delay
its approval of: (a) the grant of an easement for sidewalks to the
Town of
Chelmsford in connection with the renovation of the demised
premises, or (b) any
encumbrance which by its terms automatically expires at the
expiration of the
term of this Lease and if Tenant fails to purchase the demised
premises. With
respect to any such encumbrance presented for Landlord's approval
which is not
specified for reasonable approval above, Landlord's approval shall
be given or
withheld and conditions shall be imposed in Landlord's sole
discretion, but
Landlord shall not unreasonably delay its response to a request for
approval of
any such encumbrance. In the event that during the Original Term
Landlord has
withheld its consent to any such encumbrance requested by Tenant
(either by the
reasonable approval or sole discretion standard), then Tenant may
elect to
proceed and require Landlord to cooperate and join in such
encumbrance on the
condition that then Landlord shall have the right to "put" the
demised premises
to Tenant at the Purchase Price referred to in Article 16 below and
Tenant shall
be obligated to purchase the demised premises at the Purchase Price
pursuant to
the process provided in Section 16.3 below for the Put Option.
4.2 Indemnity: To the
full extent allowed by applicable law (i.e.
subject to the limitations of Mass. Gen. Laws ch. 186 Section 15),
Tenant shall
indemnify Landlord against, and save Landlord harmless from, any
and all loss,
damage, claims, liabilities, judgments, costs and expenses
(including the cost
and expense of defending any claim), arising during the term of
this
5
<PAGE>
Lease out of any condition existing upon the demised premises, any
act occurring
upon the demised premises (other than acts of Landlord and its
agents), any use
made of the demised premises, or any omission or failure to act
upon the demised
premises; provided that in the event of any claim made against
Landlord,
Landlord shall give Tenant reasonably prompt notice of such
claim.
4.3
Insurance: Tenant
shall maintain with respect to the demised premises
during the term of this Lease a policy of commercial general
liability insurance
and if necessary commercial umbrella insurance in insurance
companies authorized
to do business in the Commonwealth of Massachusetts and with a
rating of not
lower than "A-" as
ranked by A.M. Best (or an equivalent rating by an alternate
service if the A.M. Best rating service is no longer available in
the future) in
amounts not less than Three Million Dollars ($3,000,000.00). Lessee
agrees to
provide fire damage legal liability with a limit of not less than
$500,000.00.
These insurance policies of Tenant shall cover bodily injury,
personal injury
and property damage liability from the demised premises and
obligations assumed
under this Lease. Tenant will furnish the Landlord and Landlord's
mortgagee with
a certificate or certificates of such insurance at the inception of
this Lease
and at the renewal date of such policies thereafter. Such
certificate[s] will
name Landlord and Landlord's mortgagee as an additional insured on
all such
policies. Such certificate[s] shall provide that the policies in
question shall
not be cancelled without 15 days prior notice to the certificate
holder. Such
insurance may be maintained under a blanket policy or policies
affecting the
demised premises and other premises.
ARTICLE V. Landlord's Representations
5.1
Landlord's
Representations: Landlord makes the representations,
warranties and agreements set forth in Schedule B of this
Lease.
ARTICLE VI. Assignment
6.1
Assignment: Except as
hereinafter set forth, Tenant shall not without
the prior written consent of Landlord assign, hypothecate, pledge
or otherwise
encumber this Lease, make any sublease or permit occupancy of the
demised
premises or any part thereof by anyone other than Tenant or the
tenant under the
Existing Lease. Landlord hereby agrees however that Tenant may,
without
Landlord's consent, assign its interest in this Lease or sublet the
whole or any
part of the demised premises to (a) an entity which owns all of the
outstanding
equity in Tenant ("Tenant's Parent"); (b) an entity wholly owned by
Tenant or by
Tenant's Parent ("a Subsidiary"); (c) an entity resulting from the
consolidation
or merger of Tenant with any other entity; or (d) an entity which
shall acquire
all or substantially all of the assets or equity of Tenant.
Landlord agrees,
further, that Landlord shall not unreasonably withhold, condition
or delay its
consent for a request by Tenant to assign this Lease or sublet the
whole or any
part of the demised premises to any other unrelated entities
provided, however,
if Tenant subleases any portion of the demised premises not
occupied pursuant to
the Existing Lease (excluding any Permitted Transfer), Tenant shall
pay to
Landlord the first Six Hundred Thousand Dollars ($600,000.00)
received by Tenant
pursuant to any such subletting at a rate per square foot in excess
of the fixed
rental rate per square foot payable by Tenant as set forth in
Article 2,
provided, however, before calculating any net profit of subleasing
or
assignment, Tenant may deduct the reasonable expenses of any such
subletting
(including the cost of tenant
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improvements to the demised premises made by Tenant which have not
previously
been amortized and which are properly allocated to the space to be
sublet or
assigned), the reasonable cost of tenant improvements or allowances
for tenant
improvements provided for the subtenant or assignee in question,
reasonable
legal expenses and leasing commissions. Each request by Tenant for
permission to
assign this Lease or to sublet the whole or any part of the demised
premises
shall be accompanied by a warranty by Tenant as to the amount of
rent to be paid
to Tenant by the proposed assignee or sublessee and a statement of
expenses to
be deducted in calculating the net proceeds of subleasing or
assignment. For
purposes of this paragraph, the term "rent" shall mean all fixed
rent,
additional rent or other payments and/or consideration payable by
one party to
another for the use and occupancy of premises (and shall exclude,
for example,
payments for support or services provided to the subtenant by
Tenant beyond
usual landlord services, payments made to Tenant for the sale of
its business or
sale or lease of its equipment to the subtenant in the normal
course of Tenant's
business at a commercially reasonable price in an arm's length
transaction).
Tenant further agrees that any sublease, license, concession or
agreement for
use, occupancy or utilization of space in the demised premises
entered into by
it or by anyone claiming under it shall contain the provisions set
forth in the
immediately preceding sentence. If there shall be any assignment or
subletting
by Tenant pursuant to the provisions of this paragraph, Tenant
shall remain
primarily liable for the performance and observance of the
covenants and
agreements herein contained on the part of Tenant to be performed
and observed,
such liability to be (in the case of any assignment) joint and
several with that
of such assignee. It is expressly understood and agreed that no
assignment of
Tenant's interest in this Lease shall be effective until such time
as Tenant
shall deliver to Landlord an agreement from the assignee, which
agreement shall
be reasonably satisfactory to Landlord in form and substance and
shall provide
that the assignee agrees with Landlord to be primarily liable for
the
performance and observance of the covenants and agreements herein
contained on
the part of Tenant to be performed and observed, such liability to
be joint and
several with that of Tenant.
6.2
Non-Disturbance of
Sublessees: Any sublease or subleases that may be
given by Tenant of all or part of the demised premises may contain
provisions
whereby the sublessee shall not be disturbed in its possession in
accordance
with the terms and conditions of its sublease except for such cause
as would
entitle the sublessor thereunder (Tenant hereunder) to terminate
such sublease
(such provisions being sometimes referred to as "non-disturbance"
clauses).
Accordingly, it is understood and agreed between the parties that
if prior to
the expiration of the term of this Lease Landlord shall have the
right to
possession of the demised premises or the portion thereof subject
to such
sublease (whether or not this Lease shall be terminated), then in
such event,
Landlord covenants and agrees that the sublessee thereunder shall
not be
disturbed in its possession in accordance with the terms and
conditions of such
sublease, except for such cause as would entitle the sublessor
under such
sublease to terminate such sublease; and if the sublessee will
agree in writing
to recognize Landlord as its landlord under the terms of such
sublease, then
Landlord will agree with such sublessee to perform and observe all
of the
obligations imposed by such sublease upon the landlord therein.
Landlord agrees,
in confirmation thereof, to deliver such instruments or documents
duly executed
for recordation that may be required by the sublessee to effectuate
the
foregoing.
ARTICLE VII.
Alterations and Improvements
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7.1
Alterations and Improvements: Subject to the terms of the
Existing
Lease referred to in Section 1.2 above and subject to the last two
(2) sentences
of this Section 7.1, Tenant shall have the right, without obtaining
any consent
from Landlord therefore, from time to time during the term of this
Lease, to
erect any lawful building or buildings or other lawful improvements
upon the
demised premises of any kind, nature or description, as it deems
desirable, and
to make repairs, changes, alterations, additions and other
improvements thereto,
structural or otherwise, and to demolish and remove any of the
same, as Tenant
may from time to time deem necessary or desirable provided,
however, that no
such alteration, demolition or addition shall diminish the value of
the demised
premises when considering the aggregate effect of alterations,
demolition or
additions made by Tenant to the demised premises. Also, subject to
the Existing
Lease and the terms of any other leases or subleases entered into
by Tenant for
any portion of the demised premises, Tenant shall have the right at
any time
during the term of this Lease, or at the expiration of the term, as
Tenant shall
see fit, to remove any and all improvements erected, installed or
placed on the
demised premises prior to or during the term hereof by Tenant,
notwithstanding
the fact that any such improvements may be deemed part of the
realty, and
notwithstanding any rule, regulation or statute to the contrary. In
the event
Landlord has approved the specific structural alteration or
demolition, Tenant
shall have no obligation to restore the demised premises except as
otherwise set
forth in the Existing Lease or as set forth in any other leases or
subleases
entered into by Tenant for any portion of the demised premises. In
the event
Landlord has not approved specific structural alterations or
demolition in
advance, then Tenant shall either restore the building and the
demised premises
with respect to such unapproved structural alteration or demolition
upon the
termination of this Lease, or, if this Lease is to expire at the
end of the
Original Term, and if Tenant does not so restore the demised
premises and the
building, then Landlord shall have the right to "put" the demised
premises to
Tenant at the Purchase Price referred to in Article 16 below and
Tenant shall be
obligated to purchase the demised premises at the Purchase Price
pursuant to the
process provided in Section 16.3 below for the Put Option.
7.1.1 Approval of Initial Renovations: Tenant shall submit to
Landlord
plans and drawings for the construction of the initial renovations
and additions
that Tenant will construct to the demised premises for review and
approval of
the structural elements thereof by Landlord in its discretion (the
"Initial TI
Plans"). Landlord shall promptly, and in no event later than 15
days after the
receipt of the Initial TI Plans, (or within 5 days after the
receipt of any
revision thereof submitted in response to Landlord's disapproval of
a prior
submission of the Initial TI Plans), respond in writing to
communicate
Landlord's approval or disapproval of specific structural elements
of the
Initial TI Plans. Landlord's response shall include a reasonably
detailed
breakdown of any specific structural elements that Landlord
disapproves. Tenant
shall have the election to either (a) revise the Initial TI Plans
and resubmit
them for reconsideration by Landlord, or (b) to proceed with the
renovations or
additions in question without Landlord's approval (and subject to
the provisions
of Section 7.1 above).
7.1.2 Approval of Subsequent Renovations: With respect to any
structural
alterations or additions to the demised premises done after the
initial
renovations and alterations of the demised premises, Tenant may at
its election
submit to Landlord plans and drawings for the construction of such
structural
alterations or additions for review and approval of the structural
elements
thereof by Landlord in its discretion (the "TI Plans"). Landlord
shall promptly,
and in no event later than 30 days after the receipt of any TI
Plans, (or within
10 days after the receipt
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of any revision thereof submitted in response to Landlord's
disapproval of a
prior submission of the TI Plans in question), respond in writing
to communicate
Landlord's approval or disapproval of specific structural elements
of the TI
Plans in question. Landlord's response shall include a reasonably
detailed
breakdown of any specific structural elements that Landlord
disapproves. Tenant
shall have the election to either (a) revise the TI Plans in
question and
resubmit them for reconsideration by Landlord, or (b) to proceed
with the
renovations or additions in question without Landlord's approval
(and subject to
the provisions of Section 7.1 above).
7.2
Certain Liens:
Tenant will cause to
be paid all charges for all work
done (labor and materials) upon the demised premises during the
term of this
Lease and will not suffer or permit any mechanics' or similar liens
for labor or
materials furnished to the demised premises during the term of this
Lease to
remain as a lien against the demised premises or any part thereof;
and if any
such lien shall be filed, Tenant will either pay the same or
procure the
discharge thereof by bonding, giving security or in such other
manner as may be
required or permitted by law. Tenant shall have the right, however,
in its name
or in the name of Landlord or in the name of both, to contest any
such lien,
provided that the existence of such lien pending such contest shall
not
jeopardize Landlord's interest in the demised premises. Tenant
shall indemnify
Landlord against, and save Landlord harmless from any and all loss,
damage,
claims, liabilities, judgments, costs and expenses arising out of
the filing of
any such lien. Notice is hereby given that Landlord shall not,
under any
circumstances, be liable to pay for any work, labor or services
rendered or
materials furnished to Tenant or any of its subtenants upon
credit.
7.3
Tenant's Permits:
Landlord agrees upon
request by Tenant to execute
or join in the execution of any application for any permits or
licenses
(including without limitation, zoning changes) which may be
necessary in
connection with the construction of any buildings or other
improvements on the
demised premises or the making of any alterations, additions and
repairs
thereto. All such permits and licenses shall be applied for and
secured at
Tenant's expense in Tenant's name alone unless Landlord's name is
also required
in connection therewith by such governmental authority. In
addition, Landlord
agrees to cooperate fully with Tenant, without cost or expense to
Landlord, in
connection with the exercise by Tenant of any of its rights under
this Lease. In
particular, and without limitation, Landlord agrees to execute
utility easements
and such other documents as Tenant may reasonably request.
7.4
Repairs by Landlord:
Landlord shall have no
obligation to make any
repairs or alterations to the demised premises or any part
thereof.
ARTICLE VIII.
Notices
8.1
Notices: All notices sent or required to be
sent hereunder shall be
sent by registered or certified mail, return receipt requested,
postage prepaid;
if sent to Landlord, the same shall be addressed to Landlord c/o
Altid
Enterprises, LLC, 17 Monsignor O'Brien Highway, P.O. Box 410207,
Cambridge,
Massachusetts 02141-0002 or to such other person or address as
Landlord may
hereafter designate by notice to Tenant; if sent to Tenant, the
same shall be
addressed to Tenant at 15 Elizabeth Drive, Chelmsford,
Massachusetts 01824 Attn:
Jeffrey J. Myrdek, Global Facilities Manager, and with a copy to
Brown Rudnick
Berlack Israels LLP, One Financial Center, Boston, Massachusetts
02111, Attn:
David H. Murphree, Esq., or to such other person or address as
Tenant may
hereafter designate by notice to Landlord. If Tenant
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has given notice to Landlord of the name and address of any
mortgagee of the
demised premises, a duplicate copy of every notice to Tenant shall
be given to
said mortgagee at said address by registered or certified mail,
return receipt
requested, postage prepaid. Such mortgagee shall have the same
rights as
Tenant, and a reasonable period of time after receipt by it of
notice of a
failure of Tenant, to correct any failure of Tenant.
ARTICLE IX. Subordination to Mortgages
9.1
Mortgage Holder's
Election: Subject to the requirement that any such
first mortgagee must first enter into a Non-Disturbance Agreement
(as defined
below) as a precondition to subordination, it is agreed that the
right and
interest of Tenant under this Lease shall be: (i) subject and
subordinate to
the lien of any present or future first mortgage (and to any and
all advances
to be made thereunder, and to the interest thereon) upon the
demised premises or
any property of which the demised premises are a part, if the
holder of such
mortgage shall elect, by notice to Tenant, to subject and
subordinate the right
and interest of Tenant under this Lease to the lien of its
mortgage; or (ii)
prior to the lien of any present or future first mortgage if the
holder of such
mortgage shall elect, by notice to Tenant, to give the right and
interest of
Tenant under this Lease priority to the lien of its mortgage. It is
understood
and agreed that the holder of such mortgage may also elect, by
notice to
Tenant, to make some provisions hereof subject and subordinate to
the lien of
its mortgage while granting other provisions hereof priority to the
lien of its
mortgage. In the event of any of such elections, and upon
notification by the
holder of such mortgage to that effect, the right and interest of
Tenant under
this Lease shall be deemed to be subordinate to, or to have
priority over, as
the case may be, the lien of said mortgage, irrespective of the
time of
execution or time of recording of any such mortgage. Tenant agrees
that it
will, upon request of Landlord, execute, acknowledge and deliver
any and all
instruments deemed by Landlord necessary or desirable to evidence
or to give
notice of such subordination or priority in a commercially
reasonable form
consistent with the provisions of this Lease and as approved by
Tenant and its
counsel. The word "mortgage" as used herein includes mortgages,
deeds of trust
or other similar instruments and modifications, consolidations,
extensions,
renewals, replacements and substitutes thereof.
9.2
Non-Disturbance
Agreement: Notwithstanding anything to the contrary
contained in this Article 9, Tenant shall not be required to
subordinate this
Lease and the lien hereof to the lien of any fut
