EXHIBIT 10.5
FORM OF
LEASE
-----
THIS LEASE dated as of this first day of December, 1979, by and between
XXXXXX X. XXXXXXXX, XX. AND XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST
under a Declaration of Trust dated November 15, 1979 and recorded with the
Middlesex County Registry of Deeds (Southern District) in Book 13839, Page 406,
on November 16, 1979, hereinafter referred to as the "Lessor", and DATA
TRANSLATION, INC., a Massachusetts corporation with a usual place of business in
Natick, Massachusetts, hereinafter referred to as the "Lessee".
W I T N E S S E T H :
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PREMISES
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1. The Lessor hereby leases to the Lessee and the Lessee leases from the
Lessor upon the terms and conditions herein set forth the land and premises
located at Xxxxx Drive, Marlborough Industrial Park, Malborough, Massachusetts,
as more particularly described in Exhibit A attached hereto, with all buildings,
additions, improvements and fixtures now or hereafter located thereon or therein
(hereinafter referred to as the "Premises") and all personal or real and
personal property acquired with the proceeds of the $750,000 principal amount of
Industrial Revenue Bond (Data Translation, Inc.) of the City of Marlborough (the
"Project Bond"), including without limitation the property described in Exhibit
B attached hereto, and any modification thereof, substitutions therefor and
additions thereto made in pursuance of the loan agreement (the "Loan Agreement")
of even date and delivery herewith between the City of Marlborough, acting by
and through its Industrial Development Financing Authority, as lender, and the
Lessor, as borrower (the "Leased Machinery"). The Premises and Leased Machinery
as they may at any time exist are collectively referred to herein as the
"Project".
TERM
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2. To have and to hold the Project for a term of fifteen (15) years,
commencing on this first day of December, 1979, and ending on the first day of
December, 1994, unless sooner terminated as herein provided.
BASIC AND ADDITIONAL RENT
-------------------------
3. The Lessee agrees to pay as rent hereunder the aggregate amount for
which provision is made as follows:
A. The Lessee shall pay to the Indenture Trustee, in immediately
available funds for deposit in the Bond Fund for account of the Issuer on or
before each Loan Payment Date a sum which, together with other monies available
for such purpose in the Bond Fund, will equal the payment coming due on such
date under Section 5.1 of the Loan Agreement.
B. The Lessee shall pay to the Lessor annually during the term
hereof, on or before the thirtieth day of November of each year of such term,
the sum of Fifteen Thousand Dollars ($15,000).
C. The Lessee shall also pay to the Lessor annually during the term
hereof, on or before the thirtieth day of November of each year of such term,
the Cost of Living Payment to be determined as follows: The Cost of Living
Payment shall be zero for the first year (December 1, 1979 - November 30, 1980)
hereof. For each succeeding year of the term hereof (the Current Lease Year"),
(a) the percentage increase in the cost of living (the "Percentage") shall be
computed using as the basis of such computation the "Consumer Price Index for
Urban Wage Earners and Clerical Workers, Boston, Mass., All Items - Series A
(1967 = 100)" (the "Index") published by the Bureau of Labor Statistics of the
United States Department of Labor. The Index number for the month of December,
1979 (or for the nearest reported preceding month) shall be the "Base Index
Number", and the corresponding number for the month of December which starts the
Current Lease Year (or for the nearest reported preceding month) shall be the
"Current Index Number". The Percentage shall be ascertained by dividing the
Current Index Number by the Base Index Number and subtracting the integer 1 from
the quotient. (b) The Cost of Living Payment shall be zero if the Percentage is
less than zero. Otherwise, the Cost of Living Payment shall be the Percentage
multiplied by the sum of the rental payments called for during the Current Lease
Year by Sections 3A and 3B hereof. In the event (i) that the publication of the
Index shall be discontinued for the City of Boston or (ii) that the Index shall
be published at other than quarterly intervals, there shall be made in the
method of calculation herein provided such revisions as the circumstances may
require to carry out the intent of this Section 3C.
D. The Lessee agrees during each year of the term hereof to pay as
additional rent hereunder (a) the Additional Payments required to be paid
pursuant to Section 5.2 of the Loan Agreement and (b) all taxes and governmental
charges of
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any kind whatsoever that may at any time be lawfully assessed or levied against
or with respect to the Project or any machinery or other property installed or
brought by the Lessee therein thereon, all utility and other charges incurred
in the operation, maintenance, use, occupancy and upkeep of the Project and all
assessments and charges lawfully made by any governmental body for public
improvements that may be secured by a lien on the Project. Such additional rent
shall be paid to the Lessor or, at the Lessor's option, directly to the person
or entity to whom or to which such additional rent is due.
E. So long as the Bond is outstanding, if at any time there is a
final determination that the interest on the Bond is subject to federal income
taxation, the Lessee shall make any additional payments required to be made by
the Lessor under the Loan Agreement as a result of such final determination.
F. Notwithstanding any other provisions of this Section 3, the
Lessee shall at all times be obligated to pay as rental hereunder not less than
such amounts as will provide monies sufficient at all times to satisfy the
Lessor's obligations to make all payments required to be made by it under the
Loan Agreement to the Indenture or with respect to the Bond as such payments
become due and payable.
G. The Lessee shall have the right to apply for an abatement of
real estate or personal property taxes at any time, and from time to time, in
its own name or in the name of the Lessor. If at least thirty (30) days prior to
the last day for filling application for abatement of real estate or personal
property taxes for any year, the Lessor shall give notice to the Lessee that it
desires to file an application for abatement of real estate or personal property
taxes for said tax year, and if within twenty (20) days after the receipt of
said notice the Lessee shall not give notice to the Lessor that it shall file
such application, the Lessor shall have the right, at its own cost and expense,
to file such application. If either party shall prosecute an application for an
abatement, the other will cooperate and furnish any pertinent information in its
files reasonably required by the prosecuting party.
UTILITIES
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4. The Lessee shall, during the term hereof, pay for all utilities
consumed on or in connection with the use and occupancy of the Project,
including but not limited to all water, gas, sewer, electricity and fuel
charges. The Lessee also agrees to indemnify the Lessor against any damage
caused by any overloading of any utility system on the Premises or connected
with the same.
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CONDITION OF PROJECT: REPAIRS AND MAINTENANCE: USES
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5. A. The Lessee accepts the Premises and Leased Machinery in the
condition in which they are on the date of the commencement of the term hereof
and as they may subsequently be acquired, constructed and installed, and
acknowledges that they are in good order and condition and sufficient for the
uses intended by the Lessee.
B. The Lessee shall be responsible for the maintenance and repair of
the Project, and the Lessee shall, at its own expense, maintain, repair and
renew (as necessary) the Project, including but not limited to the maintenance
and repair of any structure on the Premises, the parking lots, the landscaping,
the mechanical and utility systems, the sidewalks, curbs, entrances,
passageways, and other areas adjoining the Premises and the Leased Machinery.
C. The Lessee shall, at its own expense, keep the said sidewalks,
curbs, entrances, passageways, parking lot areas adjoining the Premises in a
clean and orderly condition, free from snow, ice, rubbish and obstructions.
D. The Lessor reserves the right to enter upon the Premises to
inspect, maintain and repair the Project if the Lessee does not adequately do
so, and to charge to the Lessee the cost thereof. The Lessee agrees to pay said
cost charges when and if such charges are presented for payment.
E. The Lessee agrees that it will maintain the Project as a
"project" within the meaning of Chapter 40D of the Massachusetts General Laws,
as from time to time amended.
ALTERATIONS AND IMPROVEMENTS
----------------------------
6. A. The Lessee shall have the right to make such nonstructural
alterations, additions and improvements to the Project as may be necessary or
desirable for its business, provided that in each instance the Lessee shall
obtain the Lessor's written consent thereto.
B. The Lessee shall, before making any alterations, additions or
improvements, at its own expense, obtain all permits, approvals and certificates
required by any governmental authority and shall promptly deliver copies of same
to the Lessor. The Lessee will cause Lessee cause Lessee's contractors and
subcontractors to carry such workers' compensation, general liability and
personal and property damage insurance as the Lessor may reasonable require.
The Lessee agrees to hold the Lessor free and harmless from any liability for
labor or materials supplied for such work, and shall keep the Project free from
mechanics' liens of any kind by obtaining waivers
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thereof, by removing or bonding any lien filed within ten (10) days from
receipt of notice of the filing thereof.
C. Any and all alterations, addition or improvements to the Project
made by the Lessee during the term of this Lease shall become the property of
the Lessor without payment therefor by the Lessor.
INDEMNIFICATION AND LIABILITY
-----------------------------
7. The Lessee shall indemnify and hold the Lessor harmless from any and
all claims for injury to person or damage to property by reason of any accident
or happening on the Project unless caused by the fault of the Lessor or its
agents, servants or employees. The Lessee shall carry public liability insurance
in limits of at least $1,000,000 for injury or death to one person and
$1,000,000 for injury or death to more than one person in the same accident and
$500,000 for damage to property. On the commencement of the term of this Lease
and thereafter within thirty (30) days after each December 31, the Lessee shall
deliver to the Lessor copies of such policies or certificates of the insurer
with respect thereto, reasonably satisfactory to the Lessor, accompanied by
evidence of the payment of the premiums for the policies. All such insurance
policies shall provide that no cancellation thereof or material change therein
shall be made unless the Lessor and the Trustee shall have been given twenty
(20) days prior written notice thereof and that no act or omission by the Lessee
shall invalidate such policies as they apply to the Lessor.
FIRE AND EXTENDED COVERAGE INSURANCE
------------------------------------
8. A. In addition to the public liability insurance provided for in
paragraph 7 hereof, the Lessee shall keep the Project insured against loss or
damage of the kinds usually insured against by similar businesses in the area,
including, without limitation, insurance against loss or damage by fire,
lightning, and other risks from time to time included under extended coverage
policies with an insurance company or companies authorized to do business in
The Commonwealth of Massachusetts, and approved by the Lessor and the Trustee,
which approval shall not be unreasonably withheld. Such insurance shall be in an
amount not less than the full insurable value (actual replacement value) of the
Project. Each such insurance policy shall name the Lessor as the insured, with
loss payable to the Trustee.
B. Each insurance policy required hereunder shall provide that no
cancellation thereof or material change therin shall be made unless the Lessor
and the Trustee shall have first been given at least twenty (20) days' written
notice thereof, that no act or omission by the Lessee shall invalidate such
policy as it applies to the Lessor and that the Lessor shall not be liable for
any premiums for the assessments on such policy.
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On the commencement of the term of this Lease and thereafter within thirty (30)
days after each December 31, the Lessee shall deliver to the Lessor copies of
such policies or certificates of the insurer with respect thereto, reasonable
satisfactory to the Lessor, accompanied by evidence of the payment of the
premium for the policies.
C. The Lessee shall not violate or permit violation of any of the
conditions and provisions contained in the insurance policies provided for
hereunder. The Lessee shall perform and satisfy the requirements of the
insurance company writing any such policy, so that at all times insurance
companies of good standing shall be willing to write or to continue such
insurance policies. Nothing herein shall prevent the Lessor from carrying
additional insurance.
LESSEE'S FAILURE TO PERFORM
---------------------------
9. A. If the Lessee shall at any time fail to pay any tax or assessment
as required in this Lease or to take out, pay for, maintain, or deliver any of
the insurance policies provided for in this Lease or shall fail to make any
other payment or fail to perform any other act on its part to be made or
performed under this Lease, then the Lessor, without waiving or releasing the
Lessee from any obligation of the Lessee contained in this Lease, may (but shall
be under no obligation to): (1) pay any tax or assessment so payable by the
Lessee or (2) take out, pay for and maintain any of the insurance policies
provided for in this Lease or (3) after ten (10) days notice to the Lessee, make
any other payments or perform or cause to be performed any act on the Lessee's
part to be made or performed as in this Lease provided, and may enter upon the
Premises for any such purpose and take all such action thereon as may be
necessary therefor.
B. All sums so paid by the Lessor and all cost and expenses
incurred by the Lessor in connection with the performance of any such act
shall be paid by the Lessee to the Lessor on demand as if the same were
additional rent hereunder (and nonpayment of which shall have the same
consequences as nonpayment of rent).
MECHANICS' LIENS
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10. Notice is hereby given that the Lessor shall not be liable for any
labor or materials furnished or to be furnished to the Lessee and that no
mechanics' liens or other liens for any such labor or materials shall attach to
or affect the reversionary interests of the Lessor in and to the Project. The
Lessee further agrees to indemnify and hold harmless the Lessor against any and
all costs it may suffer on account of the same.
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EXPIRATION OF TERM
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11. A. The Lessee, at the expiration of the term hereof or at any prior
termination as herein provided, shall peaceably yield up the Project in the same
condition and repair as the same were in at the commencement of the term hereof
or as may have been put in thereafter, loss by eminent domain and ordinary wear
and tear expected.
B. The Lessee may, at any time prior to the expiration of the term
or prior termination thereof, then or within a reasonable time thereafter, not
to exceed twenty (20) days, remove its personal property, trade fixtures and
other equipment installed by it from the premises, provided that if any such
removal causes any damage to the Leased Machinery or Premises, the Lease shall
promptly repair the same. Any property, fixtures or equipment of the Lease
remaining on the Premises after said twenty-day period shall be deemed to be
abandoned and may be removed and disposed of by the Lessor as the Lessor shall
determine, and the Lessor shall charge the cost of such removal and any repairs
or replacements to the Premises necessitated thereby to the Lessee.
ASSIGNMENT AND SUB-LETTING
--------------------------
12. The Lessee shall not transfer, sublet, assign or otherwise alienate
this Lease or the Lessee's interest in and to all or any part of the Project,
nor shall the lessee grant any person any license or permission to use the
Project without the Lessor's prior written consent on each occasion.
DESTRUCTION BY CASUALTY
-----------------------
13. A. If the Project is wholly or partially damaged or destroyed by
xxxxx, fire, lightning, earthquake or other casualty, even if said damage or
destruction is so extensive as to render the Project unsuitable for the conduct
of the Lessee's business, this Lease shall not be considered terminated, and the
Lease shall have the obligation and agree hereunder to repair and restore the
Project and to render said Project tenantable. The rental obligation hereunder
shall not be considered to have been suspended or held in abeyance or abated
during said term of restoration or repair.
B. Upon such damage or destruction and during such period or repair
and restoration, there shall be applied for such purpose so much as may be
necessary of any net proceeds of insurance policies resulting from claims for
such losses, as well as any additional monies of the Lessee necessary therefor.
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EMINENT DOMAIN
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14. A. If title to or the temporary use of the Project, or any part
thereof, shall be taken under the exercise of the power of eminent domain by any
governmental body or by any person acting under governmental authority during
the term of this Lease, then there shall be no abatement or reduction in the
rental and other payments to be made by the Lessee hereunder and any proceeds
received from any award made in such eminent domain proceedings shall be paid to
and held by the Trustee in a separate condemnation award account and used, at
the discretion of the Lessor, for one or more of the purposes described in
Section 8.2 of the Loan Agreement.
B. If all of the outstanding Bonds are paid and discharged in
accordance with the provisions of the Indenture at any time after the entry of a
final order in a condemnation proceeding reducing the floor area of the
buildings on the Premises by more than one-fifth or rendering the portion not
taken permanently untenantable for Lessee's uses; either party may by notice to
the other within thirty (30) days thereafter terminate this Lease.
DEFAULT AND TERMINATION OF LEASE
--------------------------------
15. If the rent herein reserved shall not have been paid when due and
shall remain unpaid for a period of three calendar days thereafter; or if any of
the other covenants, conditions and obligations of the Lessee under this Lease
shall not be performed within thirty (30) days after notice by the Lessor or the
Trustee to the Lessee thereof; the Lessor (with the prior written consent of the
Trustee if any Bond is then outstanding) may, at its option, declare the term of
this Lease ended and enter upon the Premises, or any part thereof, either with
or without process of law, expel the Lessee or any person or persons occupying
in or upon the Premises, to repossess and enjoy the Project as of the Lessor's
former estate, without being guilty of trespass, forcible entry, detainer or
other tort.
ADDITIONAL REMEDIES ON DEFAULT
------------------------------
16. Notwithstanding any termination pursuant to Paragraph 15 above or any
entry or re-entry by the Lessor, the Lessee agrees to pay and be liable on the
days originally fixed herein for the payment thereof of amounts equal to the
several installments of rent and any other charges herein reserved as they would
under the terms of this Lease become due if this Lease had not been terminated
or if the Lessor had not entered or re-entered as aforesaid and whether the
Project be re-let
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or remain vacant in whole or in part or for a period less than the remainder of
the term or for the whole thereof; but in the event the Project be re-let in
whole or in part by the Lessor, the Lessee shall be entitled to a credit of the
net amount of rent received by the Lessor in re-letting after deduction of
reasonable expenses incurred in re-letting the Project and collecting the rent
in connection therewith. The Lessee shall also be liable to the Lessor for all
expenses, including reasonable attorneys' fees, incurred by the Lessor in
enforcing its rights under this Lease.
ASSENTS
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17. No assent, express or implied, by one party to any breach of any
convenant or condition herein contained on the part of the other to be performed
or observed and no waiver, express or implied, of a failure by one party to
insist on the other's prompt performance or observance of any such covenant or
condition shall be deemed to be a waiver or assent to any succeeding breach of
the same. The payment by the Lessee and acceptance of the Lessor of rent or
other payments hereunder or silence by either party as to any breach shall not
be construed as waiving any of such party's rights hereunder unless such waiver
is in writing. No payment by the Lessee or acceptance by the Lessor of a lesser
amount than shall be due the Lessor from the Lessee shall be deemed to be
anything but payment on account.
OBLIGATIONS UNCONDITIONAL
-------------------------
18. Subject to the provisions of Paragraph 20 hereof, the obligations of
the Lessee to pay basic rent and supplemental rent hereunder and to perform and
observe the other agreements on its part contained herein shall be absolute and
unconditional and shall not be subject to any right of recoupment or set-off.
Until such time as the term of this Lease expires or is terminated prior thereto
as herein provided, the Lease (i) will not suspend or discontinue payment of any
basic rent or supplemental rent pursuant to this Lease or (ii) fail to perform
and observe any of its other agreements contained in this Lease for any cause
including, without limiting the generality of the foregoing, failure of the
Lessor to complete construction of any structure on the Premises or to acquire
any portion of the Leased Machinery, any acts or circumstances that
may constitute failure of consideration, destruction of or damage to the
Project, any exercise of eminent domain, commercial frustration of purpose, any
change in the tax or other laws or administrative rulings of or administrative
actions by or under authority of the United States of America or of The
Commonwealth of Massachusetts or any failure of the Lessor, the City of
Marlborough or the Trustee to perform and observe
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any agreement, whether expressed or implied, or any duty, liability or
obligation arising out of or connected with this Lease, the Loan Agreement, the
Indenture or any other instrument or document executed in connection with the
issuance of the Project Bond.
DEFINITIONS
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19. In addition to the words and terms elsewhere defined in this Lease,
the following words and terms as used in this Lease shall have the following
meanings:
(a) "Additional Payments" means the payments required to be paid
pursuant to Section 5.2 of bthe Loan Agreement.
(b) "Bonds" means the bonds issued and to be issued pursuant to the
Indenture.
(c) "Indenture" means the Mortgage and Indenture of Trust of even
date herewith among the City of Malborough, acting by and through its
Industrial Development Financing Authority, the Lessor and the Trustee,
securing the Project Bond.
(d) "Trustee" means Worcester County National Bank or a successor
serving as trustee under the Indenture.
CONSENT
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20. Notwithstanding any other provision contained herein to the contrary,
no amendment, change, modification or alteration of the Loan Agreement or the
Indenture shall be made which would in any way increase the obligations of the
Lessee under this Lease without obtaining the Lessee's prior written consent
thereto.
NOTICES
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21. All notices or other communications hereunder shall be sufficiently
given and shall be deemed given when mailed by registered or certified mail,
postage prepaid, or sent by telegram addressed as follows: if to the Lessee, x/x
0 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: President, and if to
the Lessor, at 0 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
President. A dublicate copy of each notice, certificate or other communication
given hereunder by either party to the other shall also be given to the Trustee
at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Trust Department.
The parties hereto and the Trustee may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates, or
other communications shall be sent.
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22. The parties hereto agree that upon request by either party, the other
party will execute whatever instruments may be necessary for the recording of a
short form or notice of this Lease.
ENTIRE AGREEMENT
----------------
23. This instrument contains the entire and exclusive agreement between
the parties and supersedes all prior or contemporaneous arrangements,
understandings and agreements, whether oral or written. This Lease may not be
amended or modified except by a written instrument executed by the Lessor and
the Lessee and approved by the Trustee.
GOVERNING LAW AND SEVERABILITY
------------------------------
24. This Lease shall be governed by and interpreted in accordance with the
laws of Massachusetts. In the event any provision of this Lease shall be
determined invalid or unenforceable under applicable law, such provision shall,
insofar as possible, be construed or applied in such manner as will permit
enforcement. Otherwise, this Lease shall be construed as if such provision had
never been made part hereof.
HEADINGS
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25. The headings used herein are used only for convenience of reference
and are not to be considered as part of this Lease or to be used in determining
the intent of the parties hereto.
BINDING EFFECT
--------------
26. This Lease shall be binding upon and inure to the benefit of all
administrators, executors, personal representatives, heirs, successors and
permitted assigns, including all permitted subtenants of the parties hereto.
Each subtenant or assignee shall, as a pre-condition to the Lessor's approval of
the Lessee's sub-letting the Project or assigning this Lease, execute such
written instruments as the Lessor shall reasonably require evidencing his
agreement to be bound by each and every term of this Lease, provided that such
an agreement shall not, unless specifically provided, operate to release the
Lessee from its obligation hereunder.
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No trustee individually and no beneficiary of Xxxxx Xxxx Trust shall be
personally liable for the obligations of the Lessor hereunder, all such
liability being limited to the trust estate of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, the parties hereto set their hands and seals the day
and year first above written.
Xxxxx Xxxx Trust
/s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
As Trustees of Xxxxx Xxxx Trust
but not individually
Data Translation, Inc.
By /s/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------
President
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EXHIBIT A
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The real property component of the Project consists of a certain parcel of land
with buildings to be constructed thereon in Marlborough, Middlesex County,
Massachusettes, being shown as Lot 2F on Plan entitled "Plan of Land in
Marlborough, Mass., prepared for Marlborough Industrial Park Trust," dated
December 12, 1979, drawn by Xxxxxxxxx Brothers, Inc., registered land surveyors,
recorded with the Middlesex South District Registry of Deeds, Book , Page
, and bounded and described as follows:
NORTHEASTERLY by Xxxxx Drive as shown on said plan by three lines
measuring respectively, Fifty-eight and 26/100 (58.26)
feet, One Hundred two and 84/100 (102.84) feet, and One
Hundred seventy-three and 90/100 (173.90) feet;
SOUTHEASTERLY by Lot 2G shown on said plan Five Hundred ninety-five
and 36/100 (595.36) feet:
SOUTHWESTERLY by Xxxxxxx Street shown on said plan by two lines
measuring respectively, Two Hundred eighty-two and
34/100 (282.34) feet and Eighty-six and 14/100 (86.14)
feet: and
NORTHWESTERLY by land now formerly of Xxxxxxx X. Xxxxxxx, Xx. and
Xxxxxx Xxxxxxx and by land of Xxxxxxx Xxxxxx, Trustee
of First Marlboro Development Trust, indicated on said
plan by three lines measuring respectively, Two Hundred
eighty-three and 78/100 (283.78) feet, One Hundred
three and 36/100 (103.36) feet, and Two Hundred thirty-
seven and 88/100 (237.88) feet.
Containing 5.00 acres of land according to said plan.
Exhibit B
---------
The personal property component of the Project consists of the following
machinery, equipment, and other property owned or to be purchased by the
Borrower:
machinery and equipment related to the manufacture of microcomputer
products.
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LEASE
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THIS LEASE, dated as of the first day of April, 1981, is made by and between
XXXXXX X. XXXXXXXX, XX. AND XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST
under a Declaration of Trust dated November 15, 1979 and recorded with the
Middlesex County Registry of Deeds (Southern District) in Book 13839, Page 406,
on November 16, 1979, hereinafter referred to as the "Lessor", and DATA
TRANSLATION, INC., a Massachusettes corporation with a usual place of business
in Marlborough, Massachusettes, hereinafter referred to as the "Lessee". Terms
defined in the Mortgage and Indenture of Trust and Agreement of even date
herewith (the "Indenture") between the city of Marlborough, acting by and
through its Industrial Development Financing Agency, the Lessor, and the
Worcester County National Bank, as Trustee, and not otherwise defined herein are
used herein with the meanings so defined.
A G R E E M E N T:
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PREMISES
--------
1. The Lessor hereby leases the Project to the Lessee and the Lessee
leases the Project from the Lessor upon the terms and conditions herein set
forth.
TERM
----
2. To have and to hold the Project for a term commencing on the first day
of April, 1981, and ending on June 1, 1991, inclusive, unless sooner terminated
as herein provided.
BASIC AND ADDITIONAL RENT
------------------------
3. The Lessee agrees to pay as rent hereunder during the term hereof the
aggregate amount for which provision is made as follows:
A. The Lessee shall pay to the Lessor, in immediately available
funds for deposit in the Bond Fund for account of the Issuer, on or before the
date for each Loan payment referred to in Section 1001 of the Indenture, a sum
which, together with other monies available for such purpose
in the Bond Fund, will equal the Loan payments coming due on such date under
said Section 1001 of the Indenture.
B. The Lessee agrees to pay as additional rent hereunder (a) any
additional payments required to be paid pursuant to Section 1001 of the
Indenture and (b) all taxes and governmental charges of any kind whatsoever that
may be lawfully assessed or levied against or with respect to the Project or any
machinery or other property installed or brought by the Lessee therein or
thereon, all utility and other charges incurred in the operation, maintenance,
use, occupancy and upkeep of the Project and all assessments and charges
lawfully made by any governmental body for public improvements that may be
secured by an lien on the Project. Such additional rent shall be paid to the
Lesser or, at the Lessor's option, directly to the person or entity to whom or
to which such additional rent is due.
C. If there is a final determination that the interest on any Bond
is subject to federal income taxation, the Lessee shall make any additional
payments required to be made by the Lesser under Indenture during the term
hereof as a result of such final determination.
D. Notwithstanding any other provision of this Section 3, the Lessee
shall be obligated to pay as rental hereunder not less than such amounts as will
provide monies sufficient to satisfy the Lessor's obligations to make all
payments required to be made by it under the Indenture or with respect to the
Bonds as such payments become due and payable.
E. The Lessee shall have the right to apply for an abatement of real
estate or personal property taxes at any time, and from time to time, in its own
name or in the name of the Lessor. If at least thirty (30) days prior to the
last day for filing application for abatement of real estate or personal
property taxes for any year, the Lessor shall give notice to the Lessee that it
desire to file an application for abatement of real estate or personal property
taxes for said tax year, and if within twenty (20) days after the receipt of
said notice the Lessee shall not give notice to the Lessor that it shall file
such application, the Lessor shall have the right, at its own cost and expense,
to file such application. If either party shall prosecute an application for an
abatement, the other will cooperate and furnish any pertinent information in its
files reasonably required by the prosecuting party.
UTILITIES
---------
- 2 -
4. The Lessee shall, during the term hereof, pay for all utilities
consumed on or in connection with the use and occupancy of the Project,
including but not limited to all water, gas, sewer, electricity and fuel
charges. The Lessee caused by any overloading of any utility system at the
Project or connected with the same.
CONDITION OF PROJECT; REPAIRS AND MAINTENANCE; USES
---------------------------------------------------
5. A. The Lessee accepts the Project in the condition in which it is on
the date of the commencement of the term hereof and as it may subsequently be
acquired, constructed or equipped, and acknowledge that it is in good order and
condition and sufficient for the uses intended by the Lessee.
B. The Lessee shall be responsible for the maintenance and repair of
the Project, and the Lessee shall, at its own expense, maintain, repair and
renew (as necessary) the Project, including but not limited to the maintenance
and repair of any structure included in the Project, the parking lots, the
landscaping, the mechanical and utility systems, the sidewalks, curbs,
entrances, passageways and other areas adjoining the Project.
C. The Lessee shall, at its own expense, keep the said sidewalks,
curbs, entrances, passageways and parking lot areas adjoining the Project in a
clean and orderly condition, free from snow, ice, rubbish and obstructions.
D. The Lessor reserves the right to enter upon the Project to
inspect, maintain and repair the Project if the Lessee does not adequately do
so, and to charge to the Lessee the cost thereof. The Lessee agree to pay said
cost charges when and if such charges are presented for payment.
E. The Lessee agrees that it will maintain the Project as a
"project" within the meaning of Chapter 40D of the Massachusetts General Laws,
as from time to time amended.
ALTERATIONS AND IMPROVEMENTS
----------------------------
6. A. The Lessee shall have the right to make such nonstructural
alterations, additions and improvements to the Project as may be necessary or
desirable for its business, provided that in each instance the Lessee shall
obtain the Lessor's written consent thereto.
B. The Lessee shall, before making any alterations, additions or
improvements, at its own expense,
- 3 -
obtain all permits, approvals and certificates required by any governmental
authority and shall promptly deliver copies of same to the Lessor. The Lessee
will cause Lessee's contractors and subcontractors to carry such workers'
compensation, general liability and personal and property damage insurance as
the Lessor may reasonably require. The Lessee agrees to hold the Lessor free and
harmless from any liability for labor or materials supplied for such work, and
shall keep the Project free from mechanics' liens of any kind by obtaining
waivers thereof, by removing or bonding any lien filed within ten (10) days from
receipt of notice of the filing thereof.
C. Any and all alterations, additions or improvements to the Project
made by the Lessee during the term of this Lease shall become the property of
the Lessor without payment thereof by the Lessor.
INDEMNIFICATION AND LIABILITY
-----------------------------
7. The Lessee shall indemnify and hold the Lessor harmless from any and
all claims for injury to person or damage to property by reason of any accident
or happening the Project unless caused by the fault of the Lessor or its agents,
servants or employees. The Lessee shall carry public liability insurance in
limits of at least $1,000,000 for injury or death to one person and $1,000,000
for injury or death to more than one person in the same accident and $500,000
for damage to property. On the commencement of the term of this Lease and
thereafter within thirty (30) days after each December 31, the Lessee shall
deliver to the Lessor copies of such policies or certificates of the insurer
with respect thereto, reasonably satisfactory to the Lessor, accompanied by
evidence of the payment of the premiums for the policies. All such insurance
policies shall provide that no cancellation thereof or material change therein
shall be made unless the Lessor and the Trustee shall have been given twenty
(20) days, prior written notice thereof and that no act or omission by the
Lessee shall invalidate such policies as they apply to the Lessor.
FIRE AND EXTENDED COVERAGE INSURANCE
------------------------------------
8. A. In addition to the public liability insurance provided for in
paragraph 7 hereof, the Lessee shall keep the Project insured against loss or
damage of the kinds usually insured against by similar businesses in the area,
including, without limitation, insurance against loss or damage by fire,
lightning, and other risk from time to time included under extended coverage
policies with an insurance company or companies authorized to do business in The
- 4 -
Commonwealth of Massachusetts, and approved by the Lessor and the Trustee, which
approval shall not be unreasonably withheld. Such insurance shall be in an
amount not less than the full insurable value (actual replacement value) of the
Project. Each such insurance policy shall name the Lessor as the insured, with
loss payable to the Trustee.
B. Each insurance policy required hereunder shall provide that no
cancellation thereof or material change therein shall be made unless the Lessor
and the Trustee shall have first been given at least twenty (20) days' written
notice thereof, that no act or omission by the Lessee shall invalidate such
policy as it applies to the Lessor and that the Lessor shall not be liable for
any premiums for or assessments on such policy. On the commencement of the term
of this Lease and thereafter within thirty (30) days after each December 31, the
Lessee shall deliver to the Lessor copies of such policies or certificates of
the insurer with respect thereto, reasonably satisfactory to the Lessor,
accompanied by evidence of the payment of the premium for the policies.
C. The Lessee shall not violate or permit violation of any of the
conditions and provisions contained in the insurance policies provided for
hereunder. The Lessee shall perform and satisfy the requirements of the
insurance company writing any such policy, so that at all times insurance
companies of good standing shall be willing to write or to continue such
insurance policies. Nothing herein shall prevent the Lessor from carrying
additional insurance.
LESSEE'S FAILURE TO PERFORM
---------------------------
9. A. If the Lessee shall at any time fail to pay any tax or assessment
as required in this Lease or to take out, pay for, maintain or deliver any of
the insurance policies provided for in this Lease or shall fail to make any
other payment or fail to perform any other act on its part to be made or
performed under this Lease, then the Lessor, without waiving or releasing the
Lessee from any obligation of the Lessee contained in this Lease, may (but shall
be under no obligation to): (1) pay any tax or assessment so payable by the
Lessee or (2) take out, pay for and maintain any of the insurance policies
provided for in this Lease or (3) after ten (10) days' notice to the Lessee,
make any other payments or perform or cause to be performed any act on the
Lessee's part to be made or performed as in this Lease provided, and may enter
the project for any such purpose and take all such action therein as may be
necessary therefor.
- 5 -
B. All sums so paid by the Lessor and all costs and expenses
incurred by the Lessor in connection with the performance of any such act shall
be paid by the Lessee to the Lessor on demand as if the same were additional
rent hereunder (and nonpayment of which shall have the same consequences as
nonpayment of rent).
MECHANICS' LIENS
----------------
10. Notice is hereby given that the Lessor shall not be liable for any
labor or materials furnished or to be furnished to the Lessee and that no
mechanics' liens or other liens for any other such labor or materials shall
attach to or affect the reversionary interests of the Lessor in and to the
Project. The Lessee further agrees to indemnify and hold harmless the Lessor
against any and all costs it may suffer on account of the same.
EXPIRATION OF TERM
------------------
11. A. The Lessee, at the expiration of the term hereof or at any prior
termination as herein provided, shall peaceably yield up to the Project in the
same condition and repair as the same were in at the commencement of the term
hereof or as may have been put in thereafter, loss by eminent domain and
ordinary wear and tear excepted.
B. The Lessee may, at any time prior to the expiration of the term
or prior termination thereof, then or within a reasonable time thereafter, not
to exceed twenty (20) days, remove its personal property, trade fixtures and
other equipment installed by it from the Project, provided that if any such
removal causes any damage to the Project, the Lessee shall promptly repair the
same. Any property, fixtures or equipment of the Lessee remaining on the
Project after said twenty-day period shall be deemed to be abandoned and may be
removed and disposed of by the Lessor as the Lessor shall determine, and the
Lessor shall charge the cost of such removal and any repairs or replacements to
the Project necessitated thereby to the Lessee.
ASSIGNMENT AND SUBLETTING
-------------------------
12. The Lessee shall not transfer, sublet, assign or otherwise alienate
this Lease or the Lessee's interest in and to all or any part of the Project,
nor shall the Lessee grant any person any license or permission to use the
Project without the Lessor's prior written consent on each occasion.
- 6 -
DESTRUCTION BY CASUALTY
-----------------------
13. A. If the Project is wholly or partially damaged or destroyed by
storm, fire, lightning, earthquake or other casualty, even if said damage or
destruction is so extensive as to render the Project unsuitable for the conduct
of the Lessee's business, this Lease shall not be considered terminated, and the
Lessee shall have the obligation and agrees hereunder to repair and restore the
Project and to render said Project tenantable. The rental obligation hereunder
shall not be considered to have been suspended or held in abeyance or abated
during said term of restoration or repair.
B. Upon such damage or destruction and during such period of repair
and restoration, there shall be applied for such purpose so much as may be
necessary of any net proceeds of insurance policies resulting from claims for
such losses, as well as any additional monies of the Lessee necessary therefor.
EMINENT DOMAIN
--------------
14. A. If the title to or the temporary use of the Project, or any
part thereof, shall be taken under the exercise of the power of eminent domain
by any governmental body or by any person acting under governmental authority
during the term of this Lease, then there shall be no abatement of reduction in
the rental and other payments to be made by the Lessee hereunder and any
proceeds received from any award made in such eminent domain proceedings shall
be paid to and held by the Trustee in a separate condemnation award account and
used, at the discretion of the Lessor, for one or more of the purposes described
in Section 702 of the Indenture.
B. If all of the outstanding Bonds are paid and discharged in
accordance with the provisions of the indenture at any time after the entry of a
final order in a condemnation proceeding reducing the floor area of the
buildings in the Project by more than one-fifth or rendering the portion not
taken permanently untenable for Lessee's uses, either party may by notice to the
other within thirty (30) days thereafter terminate this Lease.
DEFAULT AND TERMINATION OF LEASE
--------------------------------
15. If the rent herein reserved shall not have been paid when due and
shall remain unpaid for a period of three calendar days thereafter; or if any
of the other covenants,
- 7 -
conditions and obligations of the Lessee under this Lease shall not be performed
within thirty (30) days after notice by the Lessor or the Trustee to the Lessee
thereof; then the Lessor (with the prior written consent of the Trustee if any
Bond is then outstanding) may, at its option, declare the term of this Lease
ended and enter upon the Project, or any part thereof, either with or without
process of law, expel the Lessee or any person or persons occupying in or upon
the Project, to repossess and enjoy the Project as of the Lessor's former
estate, without being guilty of trespass, forcible entry, detainer or other
tort.
ADDITIONAL REMEDIES ON DEFAULT
------------------------------
16. Notwithstanding any termination pursuant to Paragraph 15 above or any
entry or reentry by the Lessor the Lessee agrees to pay and be liable on the
days originally fixed herein for the payment thereof of amounts equal to the
several installments of rent and any other charges herein reserved as they would
under the terms of this Lease become due if this Lease had not been terminated
or if the Lessor had not entered or reentered as aforesaid and whether the
Project by relet or remain vacant in whole or in part or for a period less than
the remainder of the term or for the whole thereof; but in the event the Project
be relet in whole or in part by the Lessor, the Lessee shall be entitled to a
credit of the net amount of rent received by the Lessor in reletting after
deduction of reasonable expenses in reletting after deduction of reasonable
expenses in reletting the Project and collecting the rent in connection
therewith. The Lessee shall also be liable to the Lessor for all expenses,
including reasonable attorneys' fees, incurred by the Lessor in enforcing its
rights under this Lessee.
ASSENTS
-------
17. No assent, express or implied, by one party to any breach of any
covenant or condition herein contained on the part of the other to be performed
or observed and no waiver, express or implied, of a failure by one party to
insist on the other's prompt performance or observance of any such covenant or
condition shall be deemed to be a waiver or assent to any succeeding breach of
the same. The payment by the Lessee and acceptance by the Lessor of rent or
other payments hereunder or silence by either party as to any breach shall not
be construed as waiving any of such party's rights hereunder unless such waiver
is in writing. No payment by the Lessee or acceptance by the Lessor of a lesser
amount than shall be due the Lessor from the Lessee shall be deemed to be
anything but payment on account.
- 8 -
OBLIGATIONS UNCONDITIONAL
-------------------------
18. The obligations of the Lessee to pay basic rent and additional rent
hereunder and to perform and observe the other agreements on its part contained
herein shall be absolute and unconditional and shall not be subject to any right
of recoupment or setoff. Until such time as the term of this Lease expires or is
terminated prior thereto as herein provided, the Lessee (i) will not suspend or
discontinue payment of any basic rent or additional rent pursuant to this Lease
or (ii) fail to perform and observe any of its other agreements contained in
this Lease for any cause including, without limiting the generality of the
foregoing, failure of the Lessor to complete construction of or to acquire any
portion of the Project, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Project, any exercise of eminent
domain, commercial frustration of purpose, any change in the tax or other laws
or administrative rulings of or administrative actions by or under authority of
the United States of America or of the Commonwealth of Massachusetts or any
failure of the Lessor, the City of Marlborough or the Trustee to perform and
observe any agreement, whether expressed or implied, or any duty, liability or
obligation arising out of or connected with this Lease, the Indenture or any
other instrument or document executed in connection with the issuance of the
Project Bonds.
CONSENT; AMENDMENTS
-------------------
19. Notwithstanding any other provision contained herein to the contrary,
no amendment, change, modification or alteration of the Indenture shall be made
which would in any way increase the obligations of the Lessee under this Lease
without obtaining the Lessee's prior written consent thereto. This Lease may not
be amended or modified except by a written instrument executed by the Lessor and
the Lessee and approved by the Trustee.
NOTICES
-------
20. All notices or other communications hereunder shall be sufficiently
given and shall be deemed given when mailed by registered or certified mail,
postage prepaid, or sent by telegram addressed as follows: if to the Lessor, c/o
000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx, Attention: Xxxxxx X Xxxxxxxx, Xx.,
and if to the Lessee, at 000 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx, Attention:
President. A duplicate copy of each notice, certificate or other communication
given hereunder by either party to the other shall also be given to the Trustee
at 000 Xxxx Xxxxxx,
- 0 -
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Trust Department. The parties hereto
and the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
21. The parties hereto agree that upon request by either party, the other
party will execute whatever instruments may be necessary for the recording of a
short form or notice of this Lease.
ENTIRE AGREEMENT
----------------
22. This instrument contains the entire and exclusive agreement between
the parties relating to the Project and supersedes all prior or contemporaneous
arrangements, understandings and agreements relating to the Project, whether
oral or written.
GOVERNING LAW AND SEVERABILITY
------------------------------
23. This Lease shall be governed by and interpreted in accordance with the
laws of Massachusetts. In the event any provision of this Lease shall be
determined invalid or unenforceable under applicable law, such provision shall
insofar as possible, be construed or applied in such manner as will permit
enforcement. Otherwise, this Lease shall be construed as if such provision had
never been made part hereof.
HEADINGS
--------
24. The headings used herein are used only for convenience of reference
and are not to be considered as part of this Lease or to be used in determining
the intent of the parties hereto.
BINDING EFFECT
--------------
25. This Lease shall be binding upon and inure to the benefit of all
administrators, executors, personal representatives, heirs, successors and
permitted assigns, including all permitted subtenants of the parties hereto.
Each subtenant or assignee shall, as a pre-condition to the Lessor's approval of
the Lessee's subletting the Project or assigning this Lease, execute such
written instruments as the Lessor shall reasonably require evidencing his
agreement to be bound by each and every term of this Lease, provided that such
an agreement shall not; unless specifically provided, operate to release the
Lessee from its obligations hereunder.
- 10 -
No trustee individually and no beneficiary of Xxxxx Xxxx Trust shall be
personally liable for the obligations of the Lessor hereunder, all such
liability being limited to the trust estate of Xxxxx xxxx Trust.
IN WITNESS WHEREOF, the parties hereto set their hands and seals the day
and year first above written.
XXXXX XXXX TRUST
By:/s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
By:/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
As Trustees of Xxxxx Xxxx Trust,
but not individually
DATA TRANSLATION, INC.
By:/s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
President and Treasurer
- 11 -
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE dated as of this first day of April, 1980,
amending and supplementing the Lease dated as of December 1, 1979 (the "Original
Lease"), by and between XXXXXX X. XXXXXXXX, XX. AND XXXXXXXX X. XXXXXXXX,
TRUSTEES OF XXXXX XXXX TRUST under a Declaration of Trust dated November 15,
1979 and recorded with the Middlesex County Registry of Deeds (Southern
District) in Book 13839, Page 406, on November 16, 1979, hereinafter referred to
as the "Lessor", and DATA TRANSLATION, INC., a Massachusetts corporation with a
usual place of business in Natick, Masschusetts, hereinafter referred to as the
"Lessee".
W I T N E S S E T H:
-------------------
1. Section 1 of the Original Lease shall be and is hereby amended to read
as follows:
"The Lessor hereby leases to the Lessee and the Lessee leases from the
Lessor upon the terms and conditions herein set forth the land and premises
located at Xxxxx Drive, Marlborough Industrial Park, Marlborough,
Massachusetts, as more particularly described in Exhibit A attached hereto,
with all buildings, additions, improvements and fixtures now or hereafter
located thereon or therein (hereinafter referred to as the 'Premises') and
all personal or real and presonal property acquired with the proceeds of
the $750,000 principal amount of Industrial Revenue Bond (Data Translation,
Inc.) of the City of Marlborough (the 'Original Bond') or with the proceeds
of the $600,000 principal amount of Industrial Revenue Bond (Data
Translation, Inc.-- Second Series) of the City of Marlborough (the
'Additional Bond') (the Original Bond and the Additional Bond being
sometimes hereinafter called collectively the 'Project Bond'), including
without limitation the property described in Exhibit B attached to this
Lease, and any modification thereof, substitutions therefor and additions
thereto made in pursuance of the loan agreement dated as of December 1,
1979, as amended and supplemented by the First Amendment to Loan Agreement
dated as of April 1, 1980 and as may be further amended and supplemented
(the 'Loan Agreement'), between the City of Marlborough, acting by and
through its Industrial Development Financing Authority, as lender, and the
Lessor, as borrower (the 'Leased Machinery'). The Premises and Leased
Machinery as they may at any time exist are collectively referred to herein
as the 'Project'."
2. Section 3(D) of the Original Lease shall be and hereby is amended to
read:
"D. The Lessee agrees during each year of the term hereof to pay as
additional rent hereunder (a) the Additional Payments required to be paid
pursuant to Section 5.2 of the Loan Agreement, (b) all legal, accounting
and other out-of-pocket expenses incurred by the Lessor in connection with
its obligation as contemplated by the Indenture, the Loan Agreement, or
this Lease and (c) all taxes and governmental charges of any kind
whatsoever that may at any time be lawfully assessed or levied against or
with respect to the project or any machinery or other property installed or
brought by the Lessee therein or thereon, all utility and other charges
incurred in the operation, maintenance, use, occupancy and upkeep of the
Project and all assessments and charges lawfully made by any governmental
body for pubic improvements that may be secured by a lien on the Project.
Such additional rent shall be paid to the Lessor or, at the Lessor's
option, directly to the person or entity to whom or to which such
additional rent is due."
3. The parties hereto expressly agree that the rental payments under
Section 3(A) of the Original Lease shall be computed so as to include the
payments due under Section 5.1 of the Loan Agreement on account of both the
Original Bond and the Addition Bond to the same extent as originally therein
provided on account of the Original Bond.
4. References in the Original Lease to the Indenture shall be deemed to
refer to the Mortgage and Indenture of Trust dated as of December 1, 1979, as
amended and supplemented by the First Supplemental Mortgage and Indenture of
Trust dated as of April 1, 1980 and as may be further amended and supplemented,
among the City of Marlborough, acting by and through its Industrial Development
Financing Authority, the Lessor and the Trustee, unless the context clearly
requires otherwise.
-2-
IN WITNESS WHEREOF, the parties hereto set their hands and seals the day
and year first above written.
Xxxxx Xxxx Trust
/s/ Xxxxxx X. Xxxxxxxx Xx.
----------------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
As Trustee of Xxxxx Xxxx Trust but not
individually
Data Translation, Inc.
By /s/ Xxxxxx X. Xxxxxxxx Xx.
--------------------------------------
President
THE COMMONWEALTH OF MASSACHUSETTS) SS.
COUNTY OF WORCESTER )
On this day of , 1980, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx to me personally known, who, being by me
duly sworn, did say that they are Trustees of Xxxxx Xxxx Trust, under a
Declaration of Trust dated November 15, 1979 and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SEAL]
____________________________________
Notary Public
My Commission Expires:
-3-
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE dated as of the first day of November, 1984,
amending and supplementing the Lease dated as of April 1, 1981, as in effect on
the date hereof (the "Lease"), by and between XXXXXX X. XXXXXXXX, XX. AND
XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a Declaration of Trust
dated November 15, 1979 and recorded with the Middlesex County Registry of Deeds
(Southern District) in Book 13839, Page 406, on November 16, 1979 (the
"Lessor"), and DATA TRANSLATION, INC., a Massachusetts corporation with a
principal place of business in Marlborough, Massachusetts
W I T N E S S E T H
That the parties hereby agree that Section 2 of the Lease is hereby amended
to read as follow:
"2. To have and to hold the Project for a term commencing on this
first day of April, 1981, and ending on December 1, 1994, inclusive, unless
sooner terminated as herein provided."
IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first above written.
XXXXX XXXX TRUST
By _____________________________________
Xxxxxx X. Xxxxxxxx, Xx., Trustee
By _____________________________________
Xxxxxxx X. Xxxxxxxx, Trustee
As Trustees of Xxxxx Xxxx Trust but not
individually
DATA TRANSLATION, INC.
By _____________________________________
President and Treasurer
CONSENT OF TRUSTEE
------------------
The undersigned, as Trustee under a Mortgage and Indenture of Trust (the
"Indenture") dated as of April 1, 1981, as in effect, among the City of
Marlborough, acting by and through its Industrial development Financing
Authority, the Lessor and the undersigned, hereby consents to all the terms and
conditions of the foregoing First Amendment to Lease, approves its execution and
delivery by the parties, and waives any and all notice of such execution and
delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
By ________________________________
A duly authorized officer
As of November 1, 1984
CONSENT AND AGREEMENT OF BONDHOLDER
-----------------------------------
The undersigned certifies that it is the holder of all of the City of
Marlborough Industrial Revenue Bonds (Data Translation, Inc,--Third Series)
currently issued and outstanding pursuant to the Indenture hereinabove referred
to, and hereby consents to all the terms and conditions of the foregoing First
Amendment to Lease, approves its execution and delivery by the parties, and
waives any and all notice of such execution and delivery. The undersigned
further directs the Trustee under such Indenture to accept all payments,
prepayments and tenders of performance made on behalf of the Borrower (as
defined in such Indenture) by any third party with the same force and effect as
though made by the Borrower.
XXXXXX X. XXXXX 1974 TRUST
By ____________________________________
Xxxxxx X. Xxxxx, Trustee
By ____________________________________
Xxxxxx X. Xxxxxx, Trustee
As Trustee of Xxxxxx X. Xxxxx 1974
Trust but not individually
As of November 1, 1984
- 2 -
SECOND AMENDMENT TO LEASE
-------------------------
THIS SECOND AMENDMENT TO LEASE dated as of this first day of November,
1980, amending and supplementing the Lease dated as of December 1, 1979, as
amended and supplemented by a First Amendment to Lease dated as of April 1, 1980
(said lease, as amended by said First Amendment to Lease, being hereinafter
referred to as the "Amended Lease"), by and between XXXXXX X. XXXXXXXX, XX. AND
XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a Declaration of Trust
dated November 15, 1979 and recorded with the Middlesex County Registry of Deeds
(Southern District) in Book 13839, Page 406, on November 16, 1979, hereinafter
referred to as the "Lessor", and DATA TRANSLATION, INC., a Massachusetts
corporation with a usual place of business in Marlborough, Massachusetts,
hereinafter referred to as the "Lessee".
W I T N E S S E T H:
-------------------
1. Section 2 of the Amended Lease shall be and is hereby amended to read
as follows:
"2. To have and to hold the Project for a term of ten (10) years,
commencing on the first day of December, 1979, and ending on the first day
of December, 1989, unless sooner terminated as herein provided."
2. The first two lines of Section 3 of the Amended Lease shall be and are
hereby amended to read as follows:
"3. The Lessee agrees to pay rent hereunder, but only insofar as the
same is due and payable during the term hereof, the aggregate amount for
which provision is made as follow:"
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
Xxxxx Xxxx Trust, as Lessor
/s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
As Trustees of Xxxxx Xxxx Trust
but not individually
Data Translation, Inc., as Lessee
/s/ Xxxxxx X. Xxxxxxxx, Xx.
By -------------------------------
President and Treasurer
THE COMMONWEALTH OF MASSACHUSETTS)
COUNTY OF ) SS.
On this day of , 1980, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx to me personally known, who, being by me
duly sworn, did say that they are Trustees of Xxxxx Xxxx Trust, under a
declaration of Trust dated November 15, 1979 and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SEAL]
________________________________
Notary Public
My Commission Expires:
CONSENT AND WAIVER
Worcester County National Bank, as Trustee (the "Trustee") and as owner of
all the Bonds presently outstanding under a Mortgage and Indenture of Trust
dated as of December 1, 1979, as amended and supplemented by a First
Supplemental Mortgage and Indenture of Trust dated as of April 1, 1980, among
the City of Marlborough, acting by and through its Industrial Development
Financing Authority, the Lessor, and the Trustee, hereby consents to and
approves the execution by the Lessor and the Lessee and the delivery of the
foregoing Second Amendment to Lease, and hereby waives any and all notice of the
proposed execution and delivery of said Second Amendment to Lease.
WORCESTER COUNTY NATIONAL BANK,
as owner of all of the Bonds
presently outstanding
By [SIGNATURE ILLEGIBLE]
--------------------------------
Vice President
WORCESTER COUNTY NATIONAL BANK,
as Trustee
By [SIGNATURE ILLEGIBLE]
--------------------------------
THIRD AMENDMENT TO LEASE
------------------------
THIS THIRD AMENDMENT TO LEASE dated as of the thirtieth day of November,
1983, amending and supplementing the Lease dated as of December 1, 1979, as
amended and in effect on the date hereof (the "Lease"), by and between XXXXXX X.
XXXXXXXX, XX. AND XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a
Declaration of Trust dated November 15, 1979 and recorded with the Middlesex
County Registry of Deeds (Southern District) in Book 13839, Page 406, on
November 15, 1979, hereinafter referred to as the "Lessor," and DATA
TRANSLATION, INC., a Massachusetts corporation with a usual place of business in
Marlboro, Massachusetts, hereinafter referred to as the "Lessee"
W I T N E S S E T H
That the parties hereto hereby agree as follows:
1. Section 3C of the Lease is hereby deleted in its entirety.
2. Any payments to Lessor pursuant to Section 3C of the Lease not
heretofore made by Lessee are hereby forgiven, and Lessee shall have no further
liability with respect to the same.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
XXXXX XXXX TRUST
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
/s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
As Trustees of Xxxxx Xxxx Trust
but not individually
DATA TRANSLATION, INC.
BY /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
President
CONSENT OF TRUSTEE
The undersigned, as Trustee under a Mortgage and Indenture of Trust dated
as of December 1, 1979, as amended and in effect, among the City of Marlboro,
acting by and through its Industrial Development Financing Authority, the Lessor
and the undersigned, hereby consents to all the terms and conditions of the
foregoing Second Amendment to Lease, approves its execution and delivery by the
parties, and waives any and all notice of such execution and delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
By [SIGNATURE ILLEGIBLE]
-------------------------------
A duly authorized officer
November 30, 1983
CONSENT OF BONDHOLDER
The undersigned certifies that it is the holder of all of the City of
Marlboro Industrial Revenue Bonds (Data Translation, Inc. and Data Translation,
Inc.--Second Series) currently issued and outstanding pursuant to the Indenture
hereinabove referred to, and hereby consents to all the terms and conditions of
the foregoing Second Amendment to Lease, approves its execution and delivery by
the parties, and waives any and all notice of such execution and delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
By [SIGNATURE ILLEGIBLE]
-------------------------------
A duly authorized officer
November 30, 0000
-0-
XXXXXX XXXXXXXXX TO LEASE
-------------------------
THIS FOURTH AMENDMENT TO LEASE, dated as of the first day of November,
1984, amending and supplementing the Lease dated as of December 1, 1979, as
amended and in effect on the date hereof (the "Lease") by and between XXXXXX X.
XXXXXXXX, XX. AND XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a
Declaration of Trust dated November 15, 1979 and recorded with the Middlesex
County Registry of Deeds (Southern District) in Book 13839, Page 406, on
November 16, 1979, hereinafter referred to as the "Lessor", and DATA
TRANSLATION, INC., a Massachusetts, corporation with a usual place of business
in Marlborough, Massachusettes, hereinafter referred to as the "Lessee"
W I T N E S S E T H
-------------------
That the parties hereby agree as follows:
1. Section 1 of the Lease shall be and is hereby amended to read in its
entirety as follows:
"1. The Lessor hereby leases to the Lessee and the Lessee leases
from the Lessor upon the terms and conditions herein set forth the land and
premises located at Xxxxx Drive, Marlborough Industrial Park, Marlborough,
Massachusetts, as more particularly described in Exhibit A attached to
this Lease, with all buildings, additions, improvements and fixtures now or
hereafter located on any of said land or in any of said premises
(hereinafter referred to as the 'Premises'), and all personal or real and
personal property acquired with the proceeds of the $750,000 principal
amount of Industrial Revenue Bond (Data Translation, Inc.) of the City of
Marlborough (the 'Original Bond') or with the proceeds of the $600,000
principal amount of Industrial Revenue Bond (Data Translation, Inc.--Second
Series) of the City of Marlborough (the 'Second Bond') or with the proceeds
of the $1,700,000 principal amount of Industrial Revenue Bond (Data
Translation, Inc.--Fourth Series) of the City of Marlborough (the 'Fourth
Bond') (the Original Bond, the Second Bond and the Fourth Bond being
sometimes hereinafter called collectively the 'Project Bond'), including
without limitation the property described in Exhibit B attached to this
Lease, and any modification thereof, substitutions therefor and additions
thereto made in pursuance of the Loan Agreement dated as of December 1,
1979, as from time to time amended and in effect (the 'Loan Agreement'),
between the City of Marlborough, acting by and through its Industrial
Development Financing Authority, as lender, and the Lessor, as borrower
(the 'Leased Machinery'). The Premises and Leased Machinery as they may at
any time exist are collectively referred to herein as the 'Project'."
2. Section 2 of the Lease shall be and is hereby amended to read as
follows:
"2. To have and to hold the Project for a term commencing on the
first day of December, 1979 and ending on the first day of December,
1994, unless sooner terminated as herein provided."
3. The parties hereto expressly agree that the rental payments under
Section 3(A) of the Lease shall be computed so as to include the payments due
under Section 5.1 of the Loan Agreement on account of each of the Original Bond,
the Second Bond and the Fourth Bond to the same extent as originally therein
provided on account of the Original Bond.
- 2 -
IN WITNESS WHEREOF, the parties hereto set their hands and seals the day
and year first above written.
XXXXX XXXX TRUST
By /s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
As Trustees of Xxxxx Xxxx Trust,
but not individually
DATA TRANSLATION, INC.
By /s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
President and Treasurer
THE COMMONWEALTH OF MASSACHUSETTS)
COUNTY OF WORCESTER ) SS.
On this 7th day of November, 1984, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx to me personally known, who, being by me
duly sworn, did say that they are Trustee of Xxxxx Xxxx Trust, under a
Declaration of Trust dated November 15, 1979 and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SEAL]
/s/ [SIGNATURE ILLEGIBLE]
-------------------------------------
Notary Public
My Commission Expires: 7/6/96
- 3 -
FIFTH AMENDMENT TO LEASE
------------------------
THIS FIFTH AMENDMENT TO LEASE, dated as of April 22, 1987, amending and
supplementing the Lease dated as of December 1, 1979, as amended and in effect
on the date hereof (the "Lease") by the between XXXXXX X. XXXXXXXX, XX. AND
XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a Declaration of Trust
dated November 15, 1979 and recorded with the Middlesex County Registry of Deeds
(Southern District) in Book 13839, Page 406, on November 16, 1979, hereinafter
referred to as the "Lessor", and DATA TRANSLATION, INC., a Massachusetts
corporation with a usual place of business in Marlborough, Massachusetts,
hereinafter referred to as the "Lessee"
W I T N E S S E T H
-------------------
That the parties hereby agree as follows:
1. Section 1 of the Lease shall be and is hereby amended by adding the
phrase "the $1,000,000 Promissory Note dated April 22, 1987 of the Lessor in
favor of Shawmut Worcester County Bank, N.A. (the "Note") or with the proceeds
of" immediately after the phrase "property acquired with the proceeds of"
appearing in the first sentence thereof.
2. Section 3(A) of the Lease is hereby amended by adding a new second
sentence at the end thereof reading in its entirety as follows: "The Lessee
shall also pay, to the holders of the Note and in immediately available funds,
on or prior to the date on which such payment is due, an amount equal to the
payment coming due on such date under the Note."
3. The parties hereto expressly agree that any rental payments under
Section 3(F) of the Lease shall be computed so as to include payments due with
respect to the Note to the same extent as therein provided with respect to the
Bond.
4. Section 14(A) of the Lease is hereby amended by adding a new second
sentence at the end thereof reading in its entirety as follows: "Any amount
remaining after application as provided in the preceding sentence shall be paid
over to the holders of the Note to the extent necessary to prepay the Note in
full, together with any accrued
interest and premium thereon, and any further amount thereafter remaining shall
be paid over to the Lessor."
5. So long as any portion of the Note is outstanding, the Lease may not be
terminated under Section 14(B) or Section 15 of the Lease or otherwise, or
amended under Section 20 of the Lease or otherwise, without, in addition to any
other consents required under the Lease, the written consent of all holders of
the Note.
- 2 -
IN WITNESS WHEREOF, the parties hereto set their hand under seal as of the
day and year first above written.
XXXXX XXXX TRUST
/s/ Xxxxxx X. Xxxxxxxx Xx.
By --------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
By --------------------------------
As Trustees of Xxxxx Xxxx Trust,
but not individually
DATA TRANSLATION, INC.
/s/ Xxxxxx X. Xxxxxxxx Xx.
By --------------------------------
President
THE COMMONWEALTH OF MASSACHUSETTS)
COUNTY OF WORCESTER ) SS.
On this Monday of April, 1987, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx to me personally known, who, being by me
duly sworn, did say that they are Trustees of Xxxxx Xxxx Trust, under a
Declaration of Trust dated November 15, 1979 and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SEAL]
[SIGNATURE ILLEGIBLE]
-----------------------------
Notary Public
My Commission Expires: [DATE ILLEGIBLE]
- 3 -
CONSENT OF TRUSTEE
------------------
The undersigned, as Trustee under a Mortgage and Indenture of Trust (the
"Indenture") dated as of December 1, 1979, as amended and in effect, among the
City of Marlborough, acting by and through its Industrial Development Financing
Authority, the Lessor and the undersigned, hereby consents to all the terms and
conditions of the foregoing Fifth Amendment to Lease, approves its execution and
delivery by the parties, and waives any and all notice of such execution and
delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
[SIGNATURE ILLEGIBLE]
By ---------------------------------
A duly authorized officer
CONSENT AND AGREEMENT OF BONDHOLDER
-----------------------------------
The undersigned certifies that it is the holder of all of the City of
Marlborough Industrial Revenue Bonds (Data Translation, Inc.--First, Second and
Fourth Series) currently issued and outstanding pursuant to the Indenture
hereinabove referred to, and herby consents to all the terms and conditions of
the foregoing Fifth Amendment to Lease, approves its execution and delivery by
the parties, and waives any and all notice of such execution and delivery.
SHAWMUT WORCESTER
COUNTY BANK, N.A.
[SIGNATURE ILLEGIBLE]
By -----------------------------------
A duly authorized officer
- 4 -
SIXTH AMENDMENT TO LEASE
------------------------
THIS SIXTH AMENDMENT TO LEASE, dated as of April 5, 1988, amending and
supplementing the Lease as of December 1, 1979, as amended and in effect on the
date hereof (the "Lease") by and between XXXXXX X. XXXXXXXX, XX. AND XXXXXXX X.
XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a Declaration of Trust dated
November 15, 1979 and recorded with the Middlesex County Registry of Deeds
(Southern District) in Book 13839, Page 406, on November 16, 1979, hereinafter
referred to as the "Lessor", and DATA TRANSLATION, INC., a Massachusetts
corporation with a usual place of business in Marlborough, Massachusetts,
hereinafter referred to as the "Lessee".
W I T N E S S E T H
-------------------
That the parties hereby agree as follows:
1. Section 1 of the Lease shall be and is hereby amended by deleting the
phrase "the $1,000,000 Promissory Note dated April 22, 1987 of the Lessor in
favor of Shawmut Worcester County Bank, N.A. (the "Note") or with the proceeds
of" immediately after the phrase "property acquired with the proceeds of
appearing in the first sentence thereof and inserting in lieu thereof the
following: "the $5,000,000 Promissory Note dated April 5, 1988 of the Lessor in
favor of the Shawmut Worcester County Bank, N.A. (and any extensions, renewals
and refinancings thereof) (together, the "Note") or with the proceeds of."
2. The term "Premises" as defined in Section 1 of the Lease shall include
any structures built on the land known as Xxx 0X xx Xxxxxxxx Xxxxxxxxxx Xxxx.
3. The parties hereto expressly agree that any rental payments under
Section 3(F) of the Lease shall be computed so as to include payments due with
respect to the Note to the same extent as therein provided with respect to the
Bond.
4. So long as any portion of the Note is outstanding, the Lease may not
be terminated under Section 14(B) or Section 15 of the Lease or otherwise, or
amended under Section 20 of the Lease or otherwise, without, in addition to any
other consents required under the Lease, the written consent of all holders of
the Note.
IN WITNESS WHEREOF, the parties hereto set their hands under seal as of
the day and year first above written.
XXXXX XXXX TRUST
By /s/ Xxxxxx X. Xxxxxxxx Xx.
-----------------------------------
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
As Trustees of Xxxxx Xxxx Trust,
but not individually
DATA TRANSLATION, INC.
By /s/ Xxxxxx X. Xxxxxxxx Xx.
-----------------------------------
President
THE COMMONWEALTH OF MASSACHUSETTS)
COUNTY OF WORCESTER ) ss.
On this 5th day of April, 1988, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx to me personally known, who, being by me
duly sworn, did say that they are Trustees of Xxxxx Xxxx Trust, under a
Declaration of Trust dated November 15, 1979 and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SEAL]
[SIGNATURE ILLEGIBLE]
-----------------------------------
Notary Public
My Commission Expires: 7/6/90
- 2 -
CONSENT OF TRUSTEE
------------------
The undersigned, as Trustee under a Mortgage and Indenture of Trust (the
"Indenture") dated as of December 1, 1979, as amended and in effect, among the
City of Marlborough, acting by and through its Industrial Development Financing
Authority, the Lessor and the undersigned, hereby consents to all the terms and
conditions of the foregoing Sixth Amendment to Lease, approves its execution and
delivery by the parties, and waives any and all notice of such execution and
delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
[SIGNATURE ILLEGIBLE]
By -----------------------------------
A duly authorized officer
CONSENT AND AGREEMENT OF BONDHOLDER
-----------------------------------
The undersigned certifies that it is the holder of all of the City of
Marlborough Industrial Revenue Bonds (Data Translation, Inc.--First, Second and
Fourth Series) currently issued and outstanding pursuant to the Indenture
hereinabove referred to, and hereby consents to all the terms and conditions of
the foregoing Sixth Amendment to Lease, approves its execution and delivery by
the parties, and waives any and all notice of such execution and delivery.
SHAWMUT WORCESTER
COUNTY BANK, N.A.
[SIGNATURE ILLEGIBLE]
By ---------------------------------
A duly authorized officer
- 3 -
SEVENTH AMENDMENT TO LEASE
--------------------------
THIS SEVENTH AMENDMENT TO LEASE, dated as of June 22, 1988, amending and
supplementing the Lease dated as of December 1, 1979, as amended and in effect
on the date hereof (the "Lease") by and between XXXXXX X. XXXXXXXX, XX. AND
XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a Declaration of trust
dated November 15, 1979 and recorded with the Middlesex County Registry of
Deeds (Southern District) in Book 13839, Page 406, on November 16, 1979,
hereinafter referred to as the "Lessor", and DATA TRANSLATION, INC., a
Massachusetts corporation with a usual place of business in Marlborough,
Massachusetts, hereinafter referred to as the "Lessee".
W I T N E S S E T H
-------------------
The Parties hereby agree as follows:
1. The Lessor may apply up to $500,000 of the proceeds of the Note (as
defined in the Lease) for purposes other than the acquisition, construction or
equipping of structures built on the land known as Xxxx 0X xxx 0X xx Xxxxxxxx
Xxxxxxxxxx Xxxx, any proceeds so applied being referred to herein as "Excluded
Proceeds."
2. The term "Premises" as defined in Section 1 of the Lease shall exclude
any real or personal property acquired, constructed or equipped with the
Excluded Proceeds.
3. The parties hereto expressly agree that all rental payments under
Section 3(F) of the Lease shall be computed so as to exclude payments of
principal and interest due with respect to a principal amount of the Note (as
defined in the Lease) equal to the Excluded Proceeds.
4. The Lease as modified hereby is hereby confirmed as being in full force
and effect.
IN WITNESS WHEREOF, the parties hereto set their hands under seal as of the
day and year first above written.
XXXXX XXXX TRUST
/s/ Xxxxxx X. Xxxxxxxx, Xx.
By: ------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
By: ------------------------------
As Trustees of Xxxxx Xxxx
Trust, but not
individually
DATA TRANSLATION, INC.
/s/ Xxxxxx X. Xxxxxxxx, Xx.
By: -------------------------------
President
THE COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF MIDDLESEX ) SS.
------------------
On this day of , 1988, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx to me personally known, who, being by me
duly sworn, did say that they are Trustees of Xxxxx Xxxx Trust, under a
Declaration of Trust dated November 15, 1979 and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SEAL]
/s/ Xxxxxxxxx X. Xxxxx
-----------------------------------
Notary Public
Xxxxxxxxx X. Xxxxx
My Commission Expires:5/9/91
-2-
CONSENT OF TRUSTEE
------------------
The undersigned, as Trustee under a Mortgage and Indenture of Trust (the
"Indenture") dated as of December 1, 1979, as amended and in effect, among the
City of Marlborough, acting by and through its Industrial Development Financing
Authority, the Lessor and the undersigned, hereby consents to all the terms and
conditions of the foregoing Seventh Amendment to Lease, approves its execution
and delivery by the parties, and waives any and all notice of such execution and
delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
By: [SIGNATURE ILLEGIBLE]
-------------------------------------
A duly authorized officer
CONSENT AND AGREEMENT OF BOND AND NOTE HOLDER
---------------------------------------------
The undersigned certifies that (1) it is the holder of all of the City of
Marlborough Industrial Revenue Bonds (Data Translation, Inc. -- First, Second
and Fourth Series) currently issued and outstanding pursuant to the Indenture
hereinabove referred to and is the holder of the Note (as defined in the Lease
hereinabove referred to), (2) it hereby consents to all the terms and conditions
of the foregoing Seventh Amendment to Lease and approves its execution and
delivery by the parties, and (3) it hereby waives any and all notice of such
execution and delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
By: [SIGNATURE ILLEGIBLE]
-------------------------------------
A duly authorized officer
- 3 -
EIGHTH AMENDMENT TO LEASE
-------------------------
THIS EIGHTH AMENDMENT TO LEASE, dated as of November 29, 1989, amending and
supplementing the Lease dated as of December 1, 1979, as amended and in effect
on the date hereof (the "Lease") by and between XXXXXX X. XXXXXXXX, XX. AND
XXXXXXX X. XXXXXXXX, TRUSTEES OF XXXXX XXXX TRUST under a Declaration of Trust
dated November 15, 1979 and recorded with the Middlesex County Registry of Deeds
(Southern District) in Book 13839, Page 406, on November 16, 1979, hereinafter
referred to as the "Lessor", and DATA TRANSLATION, INC., a Massachusetts
corporation with a usual place of business in Marlborough, Massachusetts,
hereinafter referred to as the "Lessee".
W I T N E S S E T H
-------------------
That the parties hereby agree as follows:
1. Section 1 of the Lease shall be and is hereby amended by deleting the
phrase "the $5,000,000 Promissory Note dated April 15, 1988 of the Lessor in
favor of Shawmut Worcester County Bank, N.A. (and any extensions, renewals and
refinancings thereof (the "Note") or with the proceeds of" immediately after
the phrase "property acquired with the proceeds of" appearing in the first
sentence thereof and inserting in lieu thereof the following: "the $6,000,000
Promissory Note dated November 29, 1989 of the Lessor in favor of the Shawmut
Worcester County Bank, N.A. (and any extensions, renewals and refinancings
thereof) (together, the "Note") or with the proceeds of."
2. The Lessor may apply any portion of the proceeds of the Note (as
defined in the Lease) not used for purposes of acquisition construction or
equipping of structures built on the land known as Xxxx 0X xxx 0X xx Xxxxxxx
Xxxxxxxxxx Xxxx as it sees fit, such proceeds as so applied being referred to
herein as "Excluded Proceeds."
3. The term "Premises" as defined in Section 1 of the Lease shall exclude
any real or personal property acquired, constructed or equipped with the
Proceeds but shall include the land and improvements leased to Lessee under a
certain lease between Lessor and Lessee dated as of April 1, 1981, upon the
expiration of the term of said Lease.
4. Section 2 of the Lease is hereby amended by deleting the existing text
and replacing it with:
"To have and to hold the Project for a term of ten (10) years,
commencing on the first day of November, 1989, and ending on the first day
of December, 1999 unless sooner terminated as herein provided."
5. Section 3 of the Lease is hereby amended as follows:
5.1. Sections 3(A), 3(B) and 3(F) of the Lease are hereby deleted.
5.2. The following shall be added as Section 3(A):
"The Lessee shall pay semi-annually during the term hereof, on or before
the twenty-ninth day of May and the twenty-ninth day of November of each year of
such term, the Basic Rent for such year. "Basic Rent" shall mean the sum of (i)
One million, ninety-two thousand dollars ($1,092,000) per annum and (ii) any
additional interest costs payable by Lessor in such year under the Note due to
the failure of Lessee to maintain the financial ratios required for the most
favorable rate of interest under said Note, Less any amounts payable by Lessee
in such year under Sections 3(A) and 3(D) of a certain Lease dated as of April
1, 1981 between Lessor and Lessee. Of such Basic Rent, the amount necessary to
provide for debt service on the Bonds shall be paid to the Indenture Trustee,
and the balance shall be paid to the Lessor."
6. The Lease as modified hereby is hereby confirmed as being full force
and effect.
IN WITNESS WHEREOF, the parties hereto set their hands and seals as of the
day and year first above written.
XXXXX XXXX TRUST
/s/ Xxxxxx X. Xxxxxxxx Xx.
By --------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
By --------------------------------
As Trustees of Xxxxx Xxxx Trust
but not individually
DATA TRANSLATION, INC.
/s/ Xxxxxx X. Xxxxxxxx Xx.
By --------------------------------
President
THE COMMONWEALTH OF MASSACHUSETTS)
COUNTY OF WORCESTER ) SS.
On this 29th day of November, 1989, personally appeared before me Xxxxxx X.
Xxxxxxxx, Xx. and Xxxxxxx X. Xxxxxxxx, to me personally know, who, being by me
duly sworn, did say that they are Trustees of Xxxxx Xxxx Trust, under a
Declaration of Trust dated November 15, 1979, and said Trustees acknowledged the
foregoing to be their free act and deed as Trustees of Xxxxx Xxxx Trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
[SIGNATURE ILLEGIBLE]
-----------------------------------
(Seal) Notary Public
My Commission Expires: 7/6/90
2
CONSENT OF TRUSTEE
------------------
The undersigned, as Trustee under a Mortgage and Indenture of Trust (the
"Indenture") dated as of December 1, 1979, as amended and in effect, among the
City of Marlborough, acting by and through its Industrial Development Financing
Authority, the Lessor and the undersigned, hereby consents to all the terms and
conditions of the foregoing Eighth Amendment to Lease, approves its execution
and delivered by the parties, and waives any and all notice of such execution
and delivery.
SHAWMUT WORCESTER COUNTY BANK, N.A.
As Trustee
[SIGNATURE ILLEGIBLE]
By: -----------------------
A duly authorized officer
CONSENT AND AGREEMENT OF BONDHOLDER
-----------------------------------
The undersigned certifies that is the holder of all of the City of
Marlborough Industrial Revenue Bonds (Data Translation - First, Second and
Fourth Series) currently issued and outstanding pursuant to the Indenture
hereinabove referred to, and hereby consents to all the terms and conditions of
the foregoing Eight Amendment to Lease, approves its execution and delivery by
the parties, and waives any and all notice of such execution and delivery.
SHAWMUT WORCESTER
COUNTY BANK, N.A.
[SIGNATURE ILLEGIBLE]
By: ---------------------------
A duly authorized officer
-3-