Lease dated April 5, 2018 by and between Akcea Therapeutics, Inc. and MEPT Seaport 13 Stillings LLC

THIS LEASE (this “Lease”) is made by and between

“Landlord”       MEPT Seaport 13 Stillings LLC, a Delaware limited liability company

and

“Tenant”          Akcea Therapeutics, Inc., a Delaware corporation.

 

 

Access Laws:  The Americans With Disabilities Act of 1990 (including the Americans with Disabilities Act Accessibility Guidelines for Building and Facilities) and all other Governmental Requirements relating to the foregoing.

Additional Rent:  Defined in the Section entitled “Additional Rent”.

Affiliate:  An entity controlling, controlled by, or under common control with Tenant (control being defined as ownership of more than fifty percent (50%) of the beneficial ownership of the entity in question).

Base Amount Allocable to the Premises:  Defined in Section entitled “Additional Rent”.

Base Rent:  Subject to Section 3.3 hereof, the monthly amount of Base Rent and the portion of the Lease Term during which such monthly amount of Base Rent is payable shall be determined from the following table.  For convenience and ease of reference, the annual rental rate for the computation of Base Rent and the annual Base Rent are also set forth in tabular form with the annual Base Rent equaling the monthly Base Rent installment multiplied by twelve.  In the case of any conflict or inconsistency between the monthly Base Rent installment and the other illustrative figures set forth in tabular form or in any computations utilizing such figures, the monthly Base Rent installment so specified shall be controlling and conclusive.

 

The above rent schedule begins on the first day of the first full month of the Lease Term beginning on or after the Commencement Date.  If the Commencement Date is a date other than the first day of a calendar month, then, subject to Section 3.3 hereof, Base Rent for the partial month in which the Commencement Date occurs shall be at the same rate as months 1 through 12, but shall be prorated as provided in Section 3.2 hereof.

Brokers:  Tenant was represented in this transaction by JLL Boston (“Tenant’s Broker”), a licensed real estate broker.  Landlord was represented in this transaction by CB Richard Ellis N.E. Partners, L.P. (“Landlord’s Broker”), a licensed real estate broker.

 

Building:  The building located on the Land at 22 Boston Wharf Road, Boston, Massachusetts, containing approximately 120,143 rentable square feet.

Business Day:  Calendar days, except for Saturdays, Sundays and Holidays.

Claims:  An individual and collective reference to any and all claims, demands, damages, injuries, losses, liens, liabilities, penalties, fines, lawsuits, actions, other proceedings and expenses (including attorneys’ fees and expenses incurred in connection with the proceeding whether at trial or on appeal).

Commencement Date:  The earliest of (a) the date on which Tenant occupies any portion of the Premises and begins conducting business therein, (b) the date on which the Tenant Improvements (as defined in Exhibit C attached hereto) in the Premises are Substantially Completed (as defined in Exhibit C attached hereto), (c) the date on which the Tenant Improvements in the Premises would have been Substantially Completed but for the occurrence of any Tenant Delay Days (as defined in Exhibit C attached hereto), or (d) August 15, 2018.

Effective Date:  The date of this Lease set forth on the signature page hereof.

ERISA:  The Employee Retirement Income Security Act of 1974, as now or hereafter amended, and the regulations promulgated under it.

Estimated Operating Costs Allocable to the Premises:  Defined in the Section entitled “Additional Rent”.

Events of Default:  One or more of those events or states of facts defined in the Section entitled “Events of Default”.

Governmental Agency:  The United States of America, the state in which the Land is located, any county, city, district, municipality or other governmental subdivision, court or agency or quasi-governmental agency having jurisdiction over the Land and any board, agency or authority associated with any such governmental entity, including the fire department having jurisdiction over the Land.

Governmental Requirements:  Any and all statutes, ordinances, codes, laws, rules, regulations, orders, directives and requirements of any Governmental Agency as now or later enacted, promulgated or amended and all permits and approvals now or later issued by any Governmental Agency with respect to the Premises, the Building or the use thereof.

Green Agency Ratings:  Any one or more of the following ratings, as same may be in effect or amended or supplemented from time to time: The U.S. EPA’s Energy Star® rating and/or Design to Earn Energy Star, the Green Building Initiative’s Green GlobesTM for Continual Improvement of Existing Buildings (Green GlobesTM-CIEB), the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) rating system, LEED EBOM (existing buildings operations and maintenance) and any applicable substitute third party or governmental mandated rating systems.

Hazardous Substance(s):  Asbestos, PCBs, petroleum or petroleum-based chemicals or substances, urea formaldehyde or any chemical, material, element, compound, solution, mixture, sub-stance or other matter of any kind whatsoever which is now or later defined, classified, listed, designated or regulated as hazardous, toxic or radioactive by any Governmental Agency.

Holiday:  New Year’s Day, Martin Luther King, Jr.’s Birthday, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, any other holidays designated by an executive order of the President of the United States or by Act of Congress and any other days commonly recognized as holidays by other first-class office buildings in the Boston, Massachusetts metropolitan area.

Land:  The land upon which the Building is located in Boston, Suffolk County, Commonwealth of Massachusetts.

Landlord:  The limited liability company named on the first page of this Lease, or its successors and assigns as provided in the Section entitled “Assignment by Landlord”.

Landlord’s Agents:  The managers, officers and employees of Landlord and the consultants and advisors to the Landlord and employees of the foregoing.

Lease Memorandum:  Defined in the Section entitled “Lease Memorandum”.

Lease Term or Term:  The period commencing on the Commencement Date and ending on the last day of that calendar month which is one hundred twenty-three (123) months after the month that the Commencement Date occurs in, provided that, if the Commencement Date is the first day of a calendar month, the Lease Term shall end on the last day of the one hundred twenty-third (123^rd) calendar month of the Lease Term, including the calendar month in which the Commencement Date occurs.

Lender:  Defined in the Section entitled “Landlord’s Default”.

Manager:  CB Richard Ellis - N.E. Partners, LP, or its replacement as specified by written notice from Landlord to Tenant.

Manager’s Address: John F. Sullivan, RPA, CCIM, Vice President/General Manager, CBRE/New England, Asset Services, 101 Seaport Boulevard, 6^th Floor, Boston, Massachusetts 02210, which address may be changed by written notice from Landlord to Tenant.

Operating Costs:  Defined in the Section entitled “Additional Rent”.

Operating Costs Allocable to the Premises:  Defined in the Section entitled “Additional Rent”.

Permitted Use:  General business office use, so long as such use is consistent with Governmental Requirements and with first-class buildings of the same or similar use as the Building located in the metropolitan area in which the Building is located.

Person: A natural person, a partnership, a corporation or any other form of business or legal association or entity.

Prepaid Rent.  One Hundred Eighty-Six Thousand Seventy-Nine and 16/100 Dollars ($186,079.16), to be applied toward Base Rent for the first full calendar month of the Lease Term or to the first full calendar month for which Base Rent is due.

Premises:  Subject to Section 2.1.1, the entire ninth (9^th) floor of the Building, depicted on the plan attached hereto as Exhibit B and agreed by Landlord and Tenant for all purposes under this Lease to consist of approximately thirty thousand one hundred seventy-five (30,175) rentable square feet.  The number of rentable square feet recited above shall be final, conclusive and controlling.

Prime Rate:  Defined in the Section entitled “Default Rate”.

Property Taxes:  (a) Any form of ad valorem real or personal property tax or assessment imposed by any Governmental Agency on the Land, Building, related improvements or any personal property owned by Landlord associated with such Land, Building or improvements; (b) any other form of tax or assessment, license fee, license tax, tax or excise on rent or any other levy, charge, expense or imposition made or required by any Governmental Agency on any interest of Landlord in such Land, Building, related improvements or personal property; (c) any fee for services charged by any Governmental Agency for any services such as fire protection, street, sidewalk and road maintenance, refuse collection, school systems or other services provided or formerly provided to property owners and residents within the general area of the Land; (d) any governmental impositions allocable to or measured by the area of any or all of such Land, Building, related improvements or personal property or the amount of any base rent, additional rent or other sums payable under any lease for any or all of such Land, Building, related improvements or personal property, (e) any gross receipts or other excise tax allocable to,  measured by or a function of any one or more of the matters referred to in clause (d); (f) any impositions by any Governmental Agency on any transaction evidenced by a lease of any or all of such Land, Building, related improvements or personal property or charge with respect to any document to which Landlord is a party creating or transferring an interest or an estate in any or all of such Land, Building, related improvements or personal property; (g) any increase in any of the foregoing based upon construction of improvements or change of ownership of any or all of such Land, Building, related improvements or personal property, and (h) tax consultant fees and expenses and costs of appeals of any Property Taxes.  Property Taxes shall not include taxes on Landlord’s net income, nor estate, succession, inheritance, gift, franchise, corporation and transfer taxes.  Notwithstanding the foregoing, for purposes of Section 3.4 hereof, “Property Taxes” shall not include any Property Taxes, as defined above, assessed against or properly allocable to the Garage (as hereinafter defined).

Rent Commencement Date:  The date that is three (3) months after the Commencement Date.

Restrictions:  Any covenants, conditions and restrictions applicable to and encumbering the Land as of the effective date of this Lease or which are thereafter placed upon the Land provided that they do not materially, adversely affect use of the Premises for the Permitted Use in accordance with the terms hereof.

Specialty Alterations:  Any Tenant Improvements or Tenant Alterations which are not standard office installations including, without limitation, any curved walls, drywall ceilings, decorative soffits, full kitchens, raised flooring including, without limitation, raised computer room flooring and raised auditorium style seating/flooring, computer room installations, supplemental HVAC equipment, Telecommunications Facilities, safe deposit boxes, vaults, libraries or file rooms requiring reinforcement of floors, internal staircases, slab penetrations, conveyors, dumbwaiters, and other Tenant Improvements or Alterations of a similar character and/or incorporating unusual architectural elements.  Specialty Alterations also shall be deemed to include all wiring and cabling installed by Tenant.

Telecommunication Facilities:  Equipment, facilities, apparatus and other materials utilized for the purpose of electronic telecommunication, including cable, switches, wires, conduit and sleeves.

Telecommunication Services:  Services associated with electronic telecommunications, whether in a wired or wireless mode, including basic voice telephone services.

Tenant:  The person or entity(ies) named on the first page of this Lease and its permitted successors and assigns as provided herein.

Tenant Alterations:  Defined in the Section entitled “Tenant Alterations”.

Tenant Improvement Allowance:  Defined in Exhibit C attached hereto.

Tenant Improvements:  Defined in Exhibit C attached hereto.

Tenant’s Agents:  Any subtenant of Tenant and any and all officers, partners, contractors, subcontractors, consultants, licensees, agents, concessionaires, servants, employees, customers, guests, invitees or visitors of Tenant, of any subtenant of Tenant.

Tenant’s Pro Rata Share:  The percentage obtained by dividing the rentable square feet of the Premises by the rentable square feet of the Building.  The rentable square feet of the Premises are 30,175 and the rentable square feet of the Building are 120,143.  Therefore, Tenant’s Pro Rata share is 30,175 /120,143 = twenty-five and 16/100 percent (25.16%).  Landlord and Tenant stipulate that the number of rentable square feet in the Premises and in the Building set forth above is conclusive and shall be binding upon them.

Year:  A calendar year commencing January 1 and ending December 31 or that portion of the calendar year within the Lease Term.

2.1          Lease of Premises.

2.1.1       Landlord leases the Premises to Tenant, and Tenant leases the Premises from Landlord, upon the terms and conditions set forth in this Lease.  Notwithstanding anything herein to the contrary, not included in the Premises are the roof or ceiling, the floor and all perimeter walls, except the inner surfaces thereof, and the perimeter doors (except the entry doors) and windows in or on the ninth floor of the Building.  In addition, notwithstanding anything herein to the contrary, not included in the Premises are the portions of the ninth floor of the Building used for shafts, stacks, pipes and conduits not serving the Premises, all mechanical, electrical and other utility rooms or closets located on such floor and all stairwells.

2.1.2       Subject to the Rules and Regulations (as hereinafter defined) and all other terms and conditions of this Lease, Tenant shall have, as appurtenant to the Premises, the non-exclusive right and license to use, and permit its invitees to use in common with Landlord and others, public or common lobbies, hallways, stairways, elevators and common walkways necessary for access to the Building and the Premises, and, if the portion of the Premises on any floor includes less than the entire floor, the common toilets, corridors and elevator lobby of such floor; and the loading areas, pedestrian sidewalks, landscaped areas, trash enclosures, and other areas or facilities, if any, which are located in or on the Building or the Land and designated by Landlord from time to time for the non-exclusive use of tenants and other occupants of the Building (collectively, the “Common Facilities”).

2.2          Lease Term.  The Lease Term shall be for the period stated in the definition of that term, unless earlier terminated as provided in this Lease.

2.3          Tender of Possession.  Landlord and Tenant presently anticipate that possession of the Premises will be tendered to Tenant in the condition required by this Lease on or about August 15, 2018 (the “Estimated Delivery Date”).  If Landlord is unable to tender possession of the Premises in such condition to Tenant by the Estimated Delivery Date, then, except as otherwise expressly provided in Section 2.4.2, (a) the validity of this Lease shall not be affected or impaired thereby, (b) Landlord shall not be in default hereunder or be liable for damages therefor, and (c) Tenant shall accept possession of the Premises when Landlord tenders possession thereof to Tenant.  By occupying the Premises, Tenant shall be deemed to have accepted the Premises in their condition as of the date of such occupancy, subject to the performance of punch-list items that remain to be performed by Landlord, if any

2.4          Commencement Date.

2.4.1       The Commencement Date shall be the date set forth in the definition of that term in Section 1 hereof.  Tenant acknowledges that the Premises shall be delivered in the condition required herein and that no representations or warranties as to the condition of the Premises have been made by Landlord.  The taking of possession by Tenant shall establish that the Premises are in good and satisfactory condition when possession was so taken and the Commencement Date shall occur as provided in the definition of that term in Section 1 hereof.  In no event shall Tenant’s refusal or failure to take possession of the Premises delay or postpone the occurrence of the Commencement Date.

2.4.2       Notwithstanding the foregoing, if the Tenant Improvements are not Substantially Completed by the Completion Termination Date (as hereinafter defined), Tenant may terminate this Lease by delivering to Landlord written notice thereof at any time before the earlier of (1) ten (10) days following the Completion Termination Date or (2) the date on which the Tenant Improvements are Substantially Completed.  The termination right afforded to Tenant under this Section 2.4.2 shall be Tenant’s sole remedy for Landlord’s failure to timely Substantially Complete the Tenant Improvements.  Time is of the essence for the delivery of Tenant’s termination notice under this Section 2.4.2; accordingly, if Tenant fails to timely deliver such notice, then Tenant’s right to terminate this Lease under this Section 2.4.2 shall expire.  As used herein, “Completion Termination Date” means the date that is one hundred (100) days plus the number of Tenant Delay Days plus the number of Force Majeure Delay Days (as hereinafter defined) after the Estimated Delivery Date.  As used herein, “Force Majeure Delay Days” means each day of delay in achieving Substantial Completion of the Tenant Improvements for the reasons specified in Section 6.8 of this Lease.

2.5          Early Entry.  Tenant shall be permitted entry into the Premises prior to the Commencement Date at such times designated by Landlord solely for the limited purpose of installing Tenant’s furniture and Telecommunications Facilities, but any such entry or entries shall be at the Tenant’s sole risk and subject to all of the terms and conditions of this Lease, except the obligation to pay Base Rent and escalations for Property Taxes and Operating Expenses.  Tenant, however, shall be liable for payment of any above standard services (such as after-hours HVAC service) that are provided to Tenant during the period of Tenant’s early access or possession prior to the Commencement Date).

2.6          Lease Memorandum.  Within a reasonable period of time after the Commencement Date, Landlord may prepare and submit to Tenant a Lease Memorandum in the form of Exhibit D attached hereto, and solely with respect to the matters set forth in such form, completed in good faith by Landlord, and executed by Landlord.  The information inserted on the Lease Memorandum shall be controlling and conclusive and shall prevail over any inconsistent provision in this Lease on (a) the mutual execution of the Lease Memorandum by Landlord and Tenant or (b) the lapse of seven (7) days following delivery of the Lease Memorandum to Tenant without Tenant delivering to Landlord a written objection to all or part of the information in the Lease Memorandum.  If Tenant does object in good faith to any information set forth in the Lease Memorandum, it shall execute the Lease Memorandum subject to its specifically-stated, written objections.  Tenant must explain the reasons for its objections in reasonable detail.  That portion of the Lease Memorandum to which no objection was made shall be conclusive and controlling.  Pending resolution of any dispute by agreement or a final determination by a court of competent jurisdiction in accordance with this Lease, Landlord’s information as inserted in the Lease Memorandum shall be utilized subject to any later adjustment agreed or found to be appropriate.  Tenant’s refusal or failure to execute a Lease Memorandum shall neither prevent nor delay the occurrence of the Commencement Date.  In no event shall the Lease Memorandum be recorded.  Notwithstanding anything herein to the contrary, Tenant shall only be obligated hereunder to execute and deliver to Landlord a Lease Memorandum once during the Lease Term.

2.7          Use and Conduct of Business.

2.7.1       The Premises are to be used only for the Permitted Uses and for no other business or purpose without the prior consent of Landlord.  Landlord makes no representation or warranty as to the suitability of the Premises for Tenant’s intended use.  Tenant shall, at its own cost and expense, obtain and maintain any and all licenses, permits, and approvals necessary or appropriate for its use, occupation and operation of the Premises for the Permitted Uses.  Tenant’s inability to obtain or maintain any such license, permit or approval necessary or appropriate for its use, occupation or operation of the Premises shall not relieve it of its obligations under this Lease, including the obligation to pay Base Rent and Additional Rent.  Notwithstanding the foregoing, Landlord shall ensure that the common areas, facilities and systems of the Building are in compliance with all applicable Governmental Requirements, including all Access Laws.  In the event that Tenant is unable to obtain a certificate of occupancy or otherwise access and use the Premises for the Permitted Use following completion of the Tenant Improvements because the common areas, facilities and systems of the Building are not in compliance with all applicable Governmental Requirements, including all Access Laws, Tenant shall immediately so notify Landlord in writing and Landlord shall use reasonable efforts to cause such violation to be corrected.

2.7.2       No act shall be done in or about the Premises that is unlawful or that will increase the existing rate of insurance on any or all of the Land or Building.  Tenant shall not commit or allow to be committed or exist during the Term and any period thereafter that Tenant continues to occupy all or part of the Premises: (a) any waste upon the Premises, (b) any public or private nuisance, or (c) any act or condition which unreasonably disturbs the quiet enjoyment of any other tenant in the Building, violates any of Landlord’s contracts affecting any or all of the Land or Building, creates or contributes to any work stoppage, strike, picketing, labor disruption or dispute, interferes in any material way with the business of Landlord or any other tenant in the Building or with the rights or privileges of any contractors, subcontractors, licensees, agents, concessionaires, subtenants, servants, employees, customers, guests, invitees or visitors or any other persons lawfully in and upon the Land or Building, or causes any material impairment or reduction of the good will or reputation of the Land or Building.

2.7.3       Tenant shall not, without the prior consent of Landlord, use any apparatus, machinery, device or equipment in or about the Premises which will cause any substantial noise or vibration or any material increase in the normal consumption level of electric power.  If any of Tenant’s apparatus, machinery, devices or equipment should disturb the quiet enjoyment of any other tenant in the Building and Landlord notifies Tenant thereof, then Tenant shall provide, at its sole cost and expense, adequate insulation or take such other action, including removing such apparatus, machinery, devices or equipment, as may be reasonably necessary to eliminate the disturbance.  No food or beverage dispensing machines shall be installed by Tenant in the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed.

2.7.4       Tenant shall not use or operate the Premises in any manner that will cause the Building or any part thereof not to conform with Landlord’s sustainability practices or the certification of the Building issued pursuant to any Green Agency Rating and the requirements set forth on Exhibit K attached hereto.

2.8          Compliance with Governmental Requirements and Rules and Regulations.  Tenant shall comply with all Governmental Requirements and all Restrictions relating to its use, occupancy and operation of the Premises and shall observe such reasonable rules and regulations as may be adopted and published by Landlord from time to time for the safety, care and cleanliness of the Premises and the Building, and for the preservation of good order in the Building and for the administration and management of the Building.  Current Rules and Regulations are attached to this Lease as Exhibit E.

2.9          Parking.  During the Term, and any Extension Term, Landlord shall make available to Tenant, at no additional cost to Tenant (other than Parking Rent (as hereinafter defined)), not to exceed one (1) monthly parking pass per 1,333 rentable square feet of the Premises (the “Maximum Number of Parking Passes”) for use in the parking garage located in the Building (the “Garage”).  Each such parking pass (a “Parking Pass”) shall permit Tenant or an Employee (as hereinafter defined) to park one (1) automobile in the Garage on an unassigned, non-reserved basis, on a 24 hour per day, 7 day per week basis, subject to conditions outside of Landlord’s control.

The number of Parking Passes made available to Tenant hereunder for each calendar month during the Lease Term shall be as designated by Tenant in accordance with the following provisions of this Section 2.9, up to a maximum of the Maximum Number of Parking Passes at any one time.  The number of Parking Passes made available to Tenant hereunder for the first full calendar month of the Lease Term (and any partial calendar month of the Lease Term preceding such first full calendar month) shall be as set forth in a notice from Tenant to Landlord no later than the date that is sixty (60) days after the Effective Date.  If Tenant fails to timely notify Landlord as aforesaid, then the number of Parking Passes made available to Tenant hereunder for the first full calendar month of the Lease Term (and any partial calendar month of the Lease Term preceding such first full calendar month) shall be the Maximum Number of Parking Passes.  Thereafter, at any time during the Lease Term, Tenant may increase or decrease the number of Parking Passes made available to Tenant hereunder (up to a maximum of the Maximum Number of Parking Passes at any one time) by giving Landlord written notice (a “Change Notice”) of such increase(s) or decrease(s).  Commencing on the first day of the second full calendar month following Landlord’s receipt of a Change Notice, the number of Parking Passes made available to Tenant hereunder shall be the number designated in such Change Notice.  Thereafter, the number of Parking Passes made available to Tenant hereunder shall be the number designated in the last received Change Notice (up to a maximum of the Maximum Number of Parking Passes), subject to increase or decrease as provided herein effective on the first day of the second full calendar month after Landlord’s receipt of any subsequent Change Notice.  Notwithstanding the foregoing, if, upon receipt by Landlord of a Change Notice, the number of parking spaces available for use in the Garage on a monthly basis is less than the number of Parking Passes requested in such Change Notice, then Landlord shall not be obligated to provide to Tenant more than that number of Parking Passes equal to the number of parking spaces then available for use in the Garage on a monthly basis.

For each calendar month during the Lease Term, Tenant shall pay Landlord (or, at Landlord’s option, the Garage Operator (as hereinafter defined)) rent (the “Parking Rent”) for each Parking Pass made available to Tenant for such calendar month at the rate being charged, from time to time, by Landlord or the Garage Operator for monthly unreserved parking (the “Prevailing Rate”), plus any applicable tax imposed thereon.  The current (i.e., as of the Effective Date) Prevailing Rate for Parking Passes for monthly unreserved parking in the Garage is $440.00 per Parking Pass per month.  The current (i.e., as of the Effective Date) Prevailing Rate for Parking Passes for monthly reserved parking in the Garage is $500.00 per Parking Pass per month on the first floor of the Garage and $470.00 per Parking Pass per month on the second floor of the Garage.  The monthly Parking Rent shall be paid by Tenant to Landlord in accordance with Section 3.1 of this Lease.  If, for any reason, Tenant shall fail to timely pay the monthly Parking Rent as provided in this Section 2.9 and such failure shall continue beyond the notice and cure period applicable to payments of rent under this Lease, then Tenant shall have no further right to use the Parking Passes under this Section 2.9 unless and until Tenant has cured such failure.

Neither Landlord nor the Garage Operator shall be responsible for money, jewelry, automobiles or other personal property lost in or stolen from the Garage regardless of whether such loss or theft occurs when the Garage or other areas therein are locked or otherwise secured against entry.  Neither Landlord nor the Garage Operator shall be liable for any loss, injury or damage to persons using the Garage or automobiles or other property therein, it being agreed that, to the fullest extent permitted by applicable Governmental Requirements, the use of the Garage shall be at the sole risk of Tenant and its employees.

Landlord shall have the right from time to time to promulgate reasonable rules and regulations regarding the Garage, the parking spaces therein and the use thereof, including, but not limited to, rules and regulations controlling the flow of traffic to and from various parking areas, the angle and direction of parking and the like.  Tenant shall comply with and shall cause its employees to comply with all such rules and regulations as well as all reasonable additions and amendments thereto.

Tenant shall not store (beyond normal daily or multi-day but short term (e.g., vacation) parking) or permit its employees to store (beyond normal daily or multi-day but short term (e.g., vacation) parking) any automobiles in the Garage without the prior written consent of Landlord.  Except for emergency repairs, Tenant shall not perform any work, or permits its employees to perform any work, on any automobiles while located in the Garage.  If it is necessary for Tenant or its employees to leave an automobile in the Garage overnight, Tenant or such Employee shall provide Landlord with prior notice thereof identifying the license plate number and model of such automobile.

Landlord shall have the right to temporarily close the Garage or certain areas therein in order to perform necessary repairs, maintenance and improvements to the Garage.  Landlord shall use reasonable efforts to minimize the number, extent and duration of such closures.

Tenant shall have no right to sublet, assign, or otherwise transfer the Parking Passes (or any of them), and shall not permit any Parking Pass to be sublet, assigned or otherwise transferred, except (i) to its employees or (ii) in connection with an assignment or subletting permitted under the terms of this Lease (in the case of such a subletting, in reasonably proportionate numbers given the size of the subleased space).  Landlord shall have the right to terminate Tenant’s parking rights with respect to any Parking Pass that is sublet or assigned in violation of the preceding sentence.

Landlord may elect to provide parking cards or keys to control access to the Garage.  In such event, Landlord shall provide Tenant with one card or key for each Parking Pass that Tenant has the right to use under this Section 2.9, provided that Landlord shall have the right to require Tenant to place a reasonable deposit on such access cards or keys and to pay a reasonable fee for any lost or damaged cards or keys.

Landlord hereby reserves the right to enter into a management agreement or lease with a Person for the operation of the Garage (the “Garage Operator”).  In such event, Tenant, upon request of Landlord, shall enter into a commercially reasonable parking agreement with the Garage Operator and pay to the Garage Operator (rather than Landlord) the Parking Rent required to be paid under this Section 2.9.  Notwithstanding the foregoing, no such parking agreement shall reduce the Maximum Number of Parking Passes.  Landlord shall not have any liability for claims arising through acts or omissions of the Garage Operator.  It is understood and agreed that the identity of the Garage Operator may change from time to time during the Term.  In connection therewith, any parking lease or agreement entered into between Tenant and a Garage Operator shall be freely assignable by such Garage Operator or any successors thereto.

2.10        Sustainable Building Operations.

2.10.1     This Building is or may become in the future certified under certain Green Agency Ratings or operated pursuant to Landlord’s sustainable building practices, as same may be in effect or modified from time to time.  Landlord’s sustainability practices address, without limitation, whole-building operations and maintenance issues including chemical use; indoor air quality; energy efficiency; water efficiency; recycling programs; exterior maintenance programs; and systems upgrades to meet green building energy, water, Indoor Air Quality, and lighting performance standards.  Tenant shall endeavor to cause all of Tenant’s construction and maintenance methods and procedures, material purchases, and disposal of waste to be in compliance with minimum standards and specifications as outlined by the Green Agency Ratings, and Tenant shall cause all such methods, procedures, purchases and disposal to be in compliance with all Governmental Requirements.

2.10.2     Tenant shall use reasonable efforts to: utilize proven energy and carbon reduction measures, including energy efficient bulbs in task lighting; use lighting controls; implement daylighting measures to avoid overlighting interior spaces; close shades on the south side of the Building to avoid over-heating the Premises; turn off lights and equipment at the end of the work day; purchase ENERGY STAR® qualified equipment, including but not limited to, lighting, office equipment, commercial and residential quality kitchen equipment, vending and ice machines; and purchase products certified by the U.S. EPA’s Water Sense® program.

2.11        Recycling and Waste Management.  Tenant covenants and agrees, at its sole cost and expense:  (a) to comply with all present and future Governmental Requirements regarding the collection, sorting, separation, and recycling of garbage, trash, rubbish and other refuse generated by the users and occupants of the Premises  (collectively, “trash”); (b) to use reasonable efforts to comply with Landlord’s recycling policy, as stated in the Rules and Regulations (as such policy may be amended or supplemented from time to time), as part of Landlord’s sustainability practices where it may be more stringent than applicable Governmental Requirements, including without limitation, recycling such categories of items designated by Landlord and transporting such items to any recycling areas designated by Landlord; (c) to sort and separate its trash and recycling into such categories as are provided by Governmental Requirements or Landlord’s then-current sustainability practices; (d) place each separately sorted category of trash and recycling in separate receptacles as reasonably directed by Landlord; (e) that Landlord reserves the right to refuse to collect or accept from Tenant any trash or recycling that is not separated and sorted as required by Governmental Requirements, and to require Tenant to arrange for such collection at Tenant’s sole cost and expense, utilizing a contractor reasonably satisfactory to Landlord; and (f) that Tenant shall pay all costs, expenses, fines, penalties or damages that may be imposed on Landlord or Tenant by any Governmental Agency by reason of Tenant’s failure to comply with the provisions of this Section 2.11.

3.1          Payment of Rental.  Except for and to the extent of any rent abatement expressly provided for hereunder, Tenant agrees to pay Base Rent, Additional Rent and any other sum due under this Lease to Landlord without demand, deduction, credit, adjustment or offset of any kind or nature, in lawful money of the United States when due under this Lease, at the Rent Payment Address, or to such other party or at such other place as Landlord may from time to time designate in writing.

3.2          Base Rent.  Simultaneously with the execution and delivery of this Lease by Tenant, Tenant shall pay to Landlord the amount specified in the definition of Prepaid Rent for the month specified in the definition of that term.  Tenant agrees to pay the monthly installments of Base Rent to Landlord, without demand and in advance, on or before the first day of each calendar month of the Lease Term.  The monthly Base Rent installment payable hereunder for any partial month at the beginning or end of the Lease Term shall be prorated.  Base Rent payable hereunder for any partial month at the beginning of the Lease Term shall be paid by Tenant on the Commencement Date.

3.3          Base Rent Abatement.  The “Rent Abatement Period” shall mean the period commencing on the Commencement Date and ending on the day prior to the Rent Commencement Date.  Notwithstanding anything herein to the contrary, Landlord agrees not to demand or collect, and Tenant shall have no obligation to pay, monthly Base Rent or Additional Rent payable under Section 3.4 below for the Rent Abatement Period.

3.4          Additional Rent.  Definitions of certain terms used in this Section 3.4 are set forth in subsection 3.4.6.  Tenant agrees to pay to Landlord additional rent as computed in this Section 3.4 (individually and collectively, “Additional Rent”):

3.4.1       Estimated Operating Costs.  For each Year during the Lease Term, Tenant shall pay to Landlord, as Additional Rent, one-twelfth (1/12) of the amount, if any, by which the Estimated Operating Costs Allocable to the Premises for such Year exceeds the Base Amount Allocable to the Premises.  This amount for each Year (the “Monthly Estimated Amount”) shall be paid in advance on or before the first day of each calendar month of such Year.  Landlord shall furnish Tenant a written statement of Estimated Operating Costs Allocable to the Premises for each Year in advance of the commencement of such Year.  However, if Landlord fails to furnish Tenant such written statement for a Year prior to the commencement of such Year, then Tenant shall continue to pay Landlord in advance on or before the first day of each calendar month of such Year the Monthly Estimated Amount for the prior Year until Landlord furnishes Tenant such written statement for such Year.  Notwithstanding the foregoing, Landlord reserves the right, from time to time during each Year, to reasonably revise the Estimated Operating Costs Allocable to the Premises, and, upon notice to Tenant of such revision, Tenant shall adjust its payment to Landlord under this subsection 3.4.1 accordingly.

3.4.2       Actual Costs.  After the close of each Year, Landlord shall deliver to Tenant a written statement setting forth in reasonable line item detail the Operating Costs Allocable to the Premises during the preceding Year.  Landlord shall exercise commercially reasonable efforts to deliver such statement to Tenant within one hundred twenty (120) days after the close of each Year, but the failure to do so shall not affect Tenant’s obligations hereunder.  If such Operating Costs Allocable to the Premises for any Year exceed the Estimated Operating Costs Allocable to the Premises paid by Tenant to Landlord pursuant to subsection 3.4.1 for such Year, Tenant shall pay the amount of such excess to Landlord within twenty (20) Business Days after receipt of such statement by Tenant.  If such statement shows the Operating Costs Allocable to the Premises to be less than the Estimated Operating Costs Allocable to the Premises paid by Tenant to Landlord pursuant to subsection 3.4.1, then the amount of such overpayment shall be paid by Landlord to Tenant within twenty (20) Business Days following the date of such statement or, at Landlord’s option, shall be credited towards the installment(s) of Additional Rent next coming due from Tenant.

3.4.3       Determination.  The determination of Operating Costs Allocable to the Premises (as hereinafter defined) shall be made in good faith by Landlord.

3.4.4       End of Term.  If this Lease shall terminate on a day other than the last day of a Year, (a) Landlord shall estimate the Operating Costs Allocable to the Premises and Property Taxes Allocable to the Premises for such Year predicated on the most recent reliable information available to Landlord; (b) the amount determined under clause (a) of this sentence shall be prorated by multiplying such amount by a fraction, the numerator of which is the number of days within the Lease Term in such Year and the denominator of which is 365; (c) the Operating Costs Base Amount Allocable to the Premises shall be prorated in the manner described in clause (b); (d) the clause (c) amount (i.e., the prorated Operating Costs Base Amount Allocable to the Premises) shall be deducted from the clause (b) amount (i.e., the prorated Operating Costs Allocable to the Premises); (e) if the clause (d) amount exceeds the Estimated Operating Costs Allocable to the Premises paid by Tenant for the last Year in the Lease Term, then Tenant shall pay the excess to Landlord within twenty (20) Business Days after Landlord’s delivery to Tenant of a statement for such excess; and (f) if the Estimated Operating Costs Allocable to the Premises paid by Tenant for the last Year in the Lease Term exceeds the clause (d) amount, then Landlord shall refund to Tenant the excess (less any amounts then owed by Tenant to Landlord) within the twenty (20) Business Day period described in clause (e).  Landlord’s and Tenant’s obligations under this Section 3.4 shall survive the expiration or other termination of this Lease.

3.4.5       Definitions.  Each underlined term in this subsection 3.4.5 shall have the meaning set forth next to that underlined term:

Operating Costs Base Amount Allocable to the Premises:  The Operating Costs Allocable to the Premises for the Base Year.  For the initial Lease Term, the “Base Year” is the year beginning January 1, 2018 and ending December 31, 2018.

Estimated Operating Costs Allocable to the Premises:  Landlord’s reasonable estimate of Operating Costs Allocable to the Premises for a Year to be given by Landlord to Tenant pursuant to subsection 3.4.1.

Operating Costs:  All expenses paid or incurred by Landlord for maintaining, operating, owning and repairing any or all of the Land, Building, Premises, related improvements, and the personal property used in conjunction with such Land, Building, Premises and related improvements, except for Property Taxes.  Included are all expenses paid or incurred by Landlord for: (a) utilities, including electricity, water, gas, sewers, fire sprinkler charges, refuse collection, Telecommunication Services, cable television, steam, heat, cooling or any other similar service and which are not payable directly by tenants in the Building; (b) supplies; (c) cleaning, painting and janitorial services (including window washing), landscaping and landscaping maintenance (including irrigating, trimming, mowing, fertilizing, seeding and replacing plants), snow removal and other services; (d) security services, if any; (e) insurance premiums and applicable insurance deductible payments by Landlord; (f) commercially reasonable management fees; (g) compensation (including employment taxes and fringe benefits) of all persons (at or below the level of property manager or building supervisor) and business organizations who perform duties in connection with any service, repair, maintenance, replacement or improvement or other work included in this subsection; (h) license, permit and inspection fees; (i) assessments and special assessments due to deed restrictions, declarations or owners associations or other means of allocating costs of a larger tract of which the Land is a part; (j) rental of any machinery or equipment; (k) accounting services related to the Building, and charges for the computation of the rents and charges payable by tenants in the Building (but only to the extent the cost of such fees and services are in addition to the cost of the management fee); (l) the cost of repairs or replacements; (m) charges under maintenance and service contracts; (n) legal fees and other expenses of legal or other dispute resolution proceedings that benefit Building tenants generally; (o) maintenance and repair of the roof and roof membranes, (p) costs incurred by Landlord for compliance with any and all Governmental Requirements, including Access Laws, and to increase the efficiency of any electrical, mechanical or other system servicing the Building or the Land; (q) elevator service and repair, if any; (r) business taxes and license fees; (s) any other expense or charge which in accordance with generally accepted accounting and management principles would be considered an expense of maintaining, operating, owning or repairing the Building; (t) insurance endorsements or insurance policies purchased in order to repair, replace and re-commission the Building for re-certification pursuant to any Green Agency Rating (or, in the event the Building has not achieved any certification under any Green Agency Rating, such insurance that is purchased in order to facilitate rebuilding the building upon a casualty so as to achieve such certification) or support achieving energy and carbon reduction targets; (u) all costs of maintaining, managing, reporting, commissioning, and recommissioning the Building or any part thereof that was designed and/or built to be sustainable and conform with any commissioning the Building or any part thereof to seek certification under any Green Agency Rating (the costs and expenses described in this item (t) are collectively referred to herein as the “Green Agency Rating Costs” and such Green Agency Rating Costs shall in no event exceed five percent (5%) of the total Operating Costs (net of Property Taxes) in any Year); and (u) the amortization of Includable Capital Costs in accordance with the next sentence.  “Includable Capital Costs” means and refers to any costs which are required to be capitalized under generally accepted accounting principles to the extent such costs are for (1) reducing or avoiding increases in Operating Costs in Landlord’s good faith estimate, (2) replacing, modifying and/or adding improvements or equipment mandated by any Governmental Requirement either enacted or which takes effect after the date of this Lease or as a result of any new interpretation adopted by governmental authorities after the Commencement Date and any repairs, disposals or removals necessitated thereby (including, but not limited to, the cost of complying with Access Laws), or (3) any other items necessary to carry out Landlord’s maintenance, repair, replacement and other obligations under this Lease.  Includable Capital Costs shall be amortized with interest return at the Prime Rate plus two (2) percentage points over the estimated useful life of the capital improvement as determined by Landlord and the annual amortization of principal and interest attributable to the Lease Term shall be an Operating Cost.

Exclusions from Operating Costs:  Operating Costs shall not include any of the following:

(i)            ground rent;

(ii)           capital expenditures required to be capitalized in accordance with generally accepting accounting principles, other than Includable Capital Costs (the amortization of which shall be included in Operating Costs as provided above):

(iii)          interest and amortization of funds borrowed by Landlord for items other than Includable Capital Costs;

(iv)          leasing commissions and advertising and space planning and improvement expenses incurred in procuring tenants;

(v)           salaries, wages, or other compensation paid to officers or executives of Landlord in their capacities as officers and executives;

(vi)          costs incurred in connection with the making of repairs or replacements which are the obligation of another tenant or occupant of the Building;

(vii)         costs of any item which is reimbursed to Landlord by other tenants or third parties;

(viii)        any utility or other service used or consumed in the premises leased or leasable to any tenant or occupant, including, without limitation, gas, electricity, water, and sewer, if Tenant’s use or consumption of such utility or other services is separately metered or sub-metered at the Premises or Tenant is charged a separate amount therefor;

(ix)          costs incurred in connection with Landlord’s preparation, negotiation, dispute resolution and/or enforcement of leases;

(x)           costs of any additions to or expansions of the Building to the extent such costs and expenses are for the construction of additional leasable area;

(xi)          costs of repairs, restoration or replacements occasioned by Casualty (excluding Landlord’s deductibles) or caused by the exercise of the right of eminent domain to the extent Landlord is actually paid or reimbursed by insurance or condemnation proceeds;

(xii)          the cost to make improvements, alterations and additions to the Building which are incurred by Landlord because the Building or common areas violate any valid, applicable Governmental Requirement in effect and as interpreted by governmental authorities as of the Commencement Date;

(xiii)        costs incurred to comply with Governmental Requirements relating to the investigation, monitoring and/or removal of Hazardous Substances which (i) were in existence in the Building or on the Land prior to the date hereof (but specifically excluding Permitted Hazmat Costs, as defined below), and were of such a nature that a federal, state or municipal governmental authority, if it had then had knowledge of the presence of such Hazardous Substances, in the state, and under the conditions that they then existed in the Building or on the Land, would have then required the removal of such Hazardous Substances or other remedial or containment action with respect thereto, or (ii) were caused by Landlord or Landlord’s Agents (but specifically excluding Permitted Hazmat Costs), or (iii) are actually recovered by Landlord from a third party who was responsible for introducing any such Hazardous Substances to the Building or the Land.  Landlord shall use commercially reasonable efforts to recover the foregoing described costs related to Hazardous Substances from any identified third party that caused same, provided that in no event shall Landlord be required to initiate litigation against such party.  As used herein, “Permitted Hazmat Costs” means and refers to all costs and expenses incurred by Landlord in connection with the acquisition, storage, handling, removal and disposal of any Hazardous Substances used by Landlord in the ordinary course of business and in compliance with applicable Governmental Requirements in maintaining, operating, servicing, repairing and replacing any equipment at the Building or on the Land, all of which shall be included in Operating Costs;

(xiv)        any costs in the nature of fees, fines or penalties arising out of Landlord’s breach of any obligation (contractual or at law, and including, without limitation, costs, fines, interest, penalties and costs of litigation incurred as a result of late payment of taxes and/or utility bills), including attorneys’ fees related thereto;

(xv)         amounts paid to subsidiaries or affiliates of Landlord for services rendered to the Building or the Land to the extent such amounts exceed the competitive costs for delivery of such services were they not provided by such related parties;

(xvi)        the cost of installing, operating and maintaining any commercial concession operated by Landlord for profit, such as an observatory, broadcasting facility, luncheon club, theater, cafeteria, convenience store, or exercise facility, except to the extent such concessions are subsidized by Landlord for the benefit of all tenants;

(xvii)       any rental of equipment which, if purchased, would not be includable in Operating Costs;

(xviii)      costs incurred in connection with the initial construction and development of the Building, parking areas or other improvements, or repair of defects in such initial construction;

(xix)        costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building or the Land;

(xx)         costs of any disputes between Landlord and its employees, or outside fees paid in connection with disputes with adjacent property owners which are not intended to benefit tenants of the Building generally;

(xxi)        Landlord’s general corporate overhead and general administrative expenses, which would not be chargeable to operating expenses of the Building, determined in accordance with generally accepted accounting principles, consistently applied; and all costs related to maintaining Landlord’s existence as a corporation, limited liability company or other entity;

(xxii)       contributions to political or charitable organizations;

(xxiii)      costs properly attributable to the maintenance and repair of the Garage; and

(xxiv)      the cost of any special service provided to a particular tenant of the Building but not to tenants of the Building generally.

Gross-Up Provision:  If less than ninety-five percent (95%) of the net rentable area of the Building is occupied by tenants at all times during any Year (including the Base Year), then Operating Costs for such Year which vary with occupancy of the Building shall, for purposes of this Section 3.4, be increased to the amount which would have been incurred had ninety-five percent (95%) of the Building been occupied at all times during such Year by tenants.

Operating Costs Allocable to the Premises:  The product of Tenant’s Pro Rata Share times Operating Costs (net of Property Taxes).

Property Tax Base Amount:  Tenant’s Pro Rata Share of Property Taxes payable for the Tax Base Year.  For the initial Lease Term, the “Tax Base Year” is the fiscal tax year 2019 (beginning July 1, 2018 and ending June 30, 2019).

Property Taxes Allocable to the Premises:  Tenant’s Pro Rata Share of Property Taxes.

Qualified Person:  This means an accountant or other person experienced in accounting for income and expenses of office projects, who is engaged solely by Tenant on terms which do not entail any compensation based or measured in any way upon any savings in Additional Rent or reduction in Operating Costs Allocable to the Premises achieved through the inspection process described in this subsection.

3.4.6       Property Tax Escalation.  In addition to the payments required by the foregoing provisions of this Section 3.4, Tenant shall pay as Additional Rent to Landlord one-twelfth (1/12) of the amount, if any, by which (a) Landlord’s estimate of the Property Taxes Allocable to the Premises for the current tax year exceeds the Property Tax Base Amount.  This sum shall be paid in advance on or before the first day of each calendar month of the Lease Term.  Notwithstanding the foregoing, Tenant shall have no obligation to pay Additional Rent required under this Section 3.4.7 prior to the date that is twelve (12) months after the Commencement Date.  After the close of each tax year during the Lease Term, Landlord shall deliver to Tenant a written statement setting forth (1) the actual Property Taxes Allocable to the Premises for the preceding tax year, (2) the difference between the amount referred to in clause (1) and the Property Tax Base Amount and (3) the differential between the amount referred to in clause (2) and the sum of the tentative monthly payments toward such amount made by Tenant.  If the differential referred to in clause (3) of the previous sentence represents an underpayment by Tenant, such differential shall be paid to Landlord within twenty (20) Business Days after delivery of Landlord’s written statement to Tenant. If such differential represents an overpayment by Tenant, Landlord shall, at its option, either credit such overpayment to the installment(s) of Additional Rent next coming due from Tenant or refund such overpayment to Tenant within twenty (20) Business Days after Tenant’s concurrence in the amount due as a refund.  If the Lease Term begins or ends on a day other than the beginning or end of a tax year, the amount due as described in clause (2) of this subsection shall be prorated on a per diem basis with reference to the tax year.  The provisions of this subsection shall survive the expiration or other termination of this Lease.

3.4.7       Tenant’s Costs.  Tenant agrees to reimburse or pay Landlord within twenty (20) Business Days after invoice from Landlord for (a) any expenses incurred by Landlord for janitorial services, including, without limitation, carpet cleaning, garbage and trash removal, over and above the normal janitorial services provided by Landlord pursuant to Section 4.1.3, (b) any expense incurred by Landlord for usage in the Premises of heating, ventilating and air conditioning services, elevator services, electricity, water, janitorial services, or any other services or utilities over and above the normal usage for the Premises, (c) any expense incurred by Landlord relating to or arising out of the usage by Tenant or Tenant’s Agents of the public or common areas of the Building or Land, or any of the equipment contained therein, which usage is over and above the normal usage for such public or common areas or equipment, and (d) any other direct expense incurred by Landlord on Tenant’s behalf.  Landlord reserves the right to install and activate separate metering of electricity, water or other utilities to the Premises, and Tenant agrees to reimburse or pay Landlord within twenty (20) Business Days after invoice from Landlord for all costs of such separate metering, in which case the Operating Costs Base Amount Allocable to the Premises and Operating Costs shall be adjusted accordingly.

3.4.8       Operating Cost Audit.  Landlord shall maintain records concerning estimated and actual Operating Costs Allocable to the Premises for no less than eighteen (18) months following the period covered by the statement or statements furnished Tenant, after which time Landlord may dispose of such records.  Provided that no Event of Default has occurred and is continuing, Tenant may, at Tenant’s sole cost and expense, cause a Qualified Person (defined above) to inspect Landlord’s records for the prior Year.  Such inspection, if any, shall be conducted no more than once each Year, during Landlord’s normal business hours within one hundred twenty (120) calendar days after receipt of Landlord’s written statement of Operating Costs Allocable to the Premises for the previous Year, upon first furnishing Landlord at least twenty (20) Business Days prior written notice.  In no event shall Tenant be permitted to inspect Landlord’s records for any particular Year more than once.  As a condition to Tenant’s right to conduct such inspection, Tenant agrees (i) to promptly furnish Landlord (at Tenant’s cost) with a copy of the report of Tenant’s inspection of Landlord’s records, and (ii) except as required by applicable Governmental Requirements, that neither Tenant nor any of Tenant’s Agents shall divulge the contents of Landlord’s records or the results of its inspection to any third party.  Any errors disclosed by the inspection shall be promptly corrected by Landlord; provided, however, that if Landlord disagrees with any such claimed errors, Landlord shall have the right to cause another inspection to be made by an auditor of Landlord’s choice.  In the event the results of the inspection (taking into account, if applicable, the results of any additional inspection caused by Landlord) reveal that Tenant has overpaid obligations for a preceding period, the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following such inspection or, at Landlord’s option (except after the expiration of the Lease Term), credited against Tenant’s subsequent installment(s) of Operating Costs Allocable to the Premises due to Landlord under the Lease.  In the event that such results show that Tenant has underpaid its obligations for a preceding period, the amount of such underpayment shall be paid by Tenant to Landlord with the next succeeding installment obligation of estimated Operating Costs Allocable to the Premises (except after the expiration of the Lease Term, in which case Tenant shall pay Landlord the amount of such underpayment within thirty (30) days following such examination).  Tenant shall pay the cost of such inspection, unless the total Operating Costs Allocable to the Premises for the Year in question is determined to be in error by more than ten percent (10%) in the aggregate, and, as a result thereof, Tenant paid to Landlord more than the actual Operating Costs Allocable to the Premises due for such Year, in which case Landlord shall pay the cost of such inspection not to exceed the amount Tenant was overcharged for the Year in question).

3.4.9       Payments Deemed Additional Rent.  Any sums payable under this Lease pursuant to this Section 3.4 or otherwise shall be Additional Rent and, in the event of nonpayment of such sums, Landlord shall have the same rights and remedies with respect to such nonpayment as it has with respect to nonpayment of the Base Rent due under this Lease.

3.5          Utilities

3.5.1       Landlord shall have the right from time to time to select the company or companies providing electricity, gas, fuel, one or more categories of Telecommunication Services and any other utility services to the Building.  Landlord reserves the right to change electricity providers for the Building at any time and to purchase green or renewable energy.  At Landlord’s option, electricity service for lights, plugs and to power HVAC equipment shall either be (a) separately metered to the Premises and separately accounted for and billed to Tenant by the utility provider or (b) measured by a check meter and separately accounted for and billed to Tenant by Landlord, in which case Tenant shall pay Landlord for such electricity as and when billed by Landlord.  The direct meter or check meter for such electricity, as applicable, shall be installed by Landlord, at Landlord’s expense.  With the exception of water and sewer and HVAC service (and electricity if Landlord elects to measure Tenant’s electricity consumption by check meter as provided above), Tenant shall contract directly and pay for all utilities used on or from the Premises together with any taxes, penalties, surcharges or similar charges relating to such utilities.  If any such service other than electricity (electricity being billed as provided above) is not separately metered to the Premises or is not otherwise separately accounted for and billed to Tenant by the utility provider, then, at Landlord’s option, the cost therefor shall either be (a) paid by Tenant to Landlord or (b) included as an Operating Cost under this Lease.

3.5.2       Tenant acknowledges that space on the Building rooftop and in Building risers, equipment rooms and equipment closets is limited.  If Tenant requires Telecommunication Services for the Premises other than from the provider or providers of Telecommunication Services selected by Landlord and whose Telecommunication Facilities are installed in or about the Building or on the rooftop of the Building, provision for alternate or supplemental Telecommunication Services or Telecommunication Facilities has been made in a license agreement accompanying and made part of this Lease.  Unless otherwise required by applicable Governmental Requirements, neither Tenant, nor a provider of Telecommunication Services to Tenant, in the future shall be entitled to locate or install Telecommunication Facilities in, on or about the Building without (a) first obtaining Landlord’s advance, written consent (given in its absolute discretion) and (b) the advance execution by Landlord and Tenant of a satisfactory agreement granting a license to Tenant for such purposes and setting forth the scope, the additional rent, if any, royalties and the other terms and conditions of that license, and (c) Tenant negotiating and obtaining the right, if any is required, to bring such Telecommunication Facilities across public or private property to an approved entry point to the Building.  The agreement referred to in clause (b) of the previous sentence shall be incorporated in and become part of this Lease.  Any future application by Tenant for permission to locate or install Telecommunication Facilities shall (1) be in such form and shall be accompanied by such supporting information as the Landlord may require, (2) be subject to such procedures, regulations and controls as the Landlord may specify and (3) be accompanied by such payment as the Landlord may reasonably request to reimburse Landlord for its costs of evaluating and processing the application and in negotiating and preparing the agreement described earlier in this subsection.

3.5.3       Landlord shall in no case be liable or in any way be responsible for damages or loss to Tenant arising from the failure of, diminution of or interruption in electrical power, natural gas, fuel, Telecommunication Services, sewer, water, or garbage collection services, other utility service or building service of any kind to the Premises, unless such interruption in, deprivation of or reduction of any such service was caused by the negligence or willful misconduct of Landlord, its agents or contractors or by a failure in facilities, equipment or systems in the Landlord’s ownership.  To the extent that Landlord bears any responsibility hereunder for any such interruption, deprivation or reduction in utility or building services to the Premises, Landlord’s responsibility and Tenant’s remedy shall be limited to an abatement in Base Rent and Additional Rent on account of Operating Costs and Property Taxes for the period beginning with (a) the day which is four (4) consecutive Business Days after the date on which Tenant delivers notice to Landlord of such interruption, deprivation or reduction, provided that such interruption, deprivation or reduction deprives Tenant of reasonable use of a substantial portion of the Premises, and ending on (b) the date that such interruption, deprivation or reduction which is Landlord’s responsibility hereunder is no longer causing Tenant to be deprived of reasonable use of a substantial portion of the Premises.

3.5.4       HVAC service shall be provided to the Premises Mondays through Fridays, except Holidays, from 8:00 am. to 6:00 p.m.(“Building Standard Hours”), in accordance with the specifications attached hereto as Exhibit J.  Landlord shall provide HVAC service at times in addition to Building Standard Hours (“After-Hours HVAC”); provided, however, Tenant gives Landlord notice prior to 1:00 p.m. on the same day such After-Hours HVAC is required with respect to service on Business Days and prior to 1:00 p.m. on the immediately preceding Business Day with respect After-Hours HVAC on non-Business Days.  The charge to Tenant for After-Hours HVAC shall be at Landlord’s then-standard hourly rate in effect from time to time for After-Hours HVAC (which rate is currently $35.00 per hour per floor and is subject to change from time to time); provided, however there will be no charge for After-Hours HVAC on Saturdays, except Holidays, between 9:00 AM and 1:00 PM (although Tenant must request same as set forth in the preceding sentence).  Any HVAC service on Holidays shall be considered After-Hours HVAC.

3.5.5       Tenant shall not install any supplemental HVAC, space heaters or other utilities or energy-intensive equipment (“Supplemental Utilities Equipment”) in the Premises without Landlord’s prior written consent.  In the event that Landlord consents in writing to such installation, Tenant shall be responsible, all at its sole cost and expense, for the installation, maintenance, and repair of any of Supplemental Utilities Equipment, and, at Landlord’s election, shall remove same from the Premises upon the expiration or termination of the Lease Term at Tenant’s sole cost and expense.  Tenant agrees that it will maintain and repair any Supplemental Utilities Equipment, and major components thereof, in first-class condition, and any such equipment will be operated on sensors or timers that limit the operation of such Supplemental Utilities Equipment to hours of occupancy in the areas immediately adjacent to the occupying personnel.  Tenant shall, at its sole cost and expense, enter into a regularly scheduled preventative maintenance/service contract with a maintenance contractor or the seller of any such Supplemental Utilities Equipment, and upon Landlord’s reasonable request, Tenant will provide Landlord with reasonable evidence of such maintenance and repair.  Upon Landlord’s request, at reasonable times and upon prior notice to Tenant (except in the event of an emergency, where no notice is required), Landlord shall have the right to inspect the aforementioned Supplemental Utilities Equipment and major components provided Landlord shall use commercially reasonable efforts to minimize Landlord’s interference with Tenant’s business, Tenant shall not permit any Supplemental Utilities Equipment to disturb or interfere with any of the Building’s systems or any other tenant in the Building, and Tenant will remove, at Tenant’s sole cost and expense, any such Supplemental Utilities Equipment at Landlord’s direction in the event of such disturbance or interference.  Landlord reserves the right to separately submeter (or cause Tenant to separately submeter) any Supplemental Utilities Equipment, all at Tenant’s sole cost and expense.  In the event that any Supplemental Utilities Equipment is required to be removed from the Premises by Tenant pursuant to the terms of this subsection 3.5.5, Tenant shall be responsible to Landlord for any damage caused to the Premises or Building in connection therewith.

3.5.6       Tenant shall be required to submit to Landlord any electricity consumption data and costs in a format available to Tenant without additional cost.

3.5.7       Landlord’s failure to furnish, or any interruption, termination or suspension of, services required to be furnished by Landlord under this Lease (a “Service Failure”) shall not render Landlord liable to Tenant, constitute a constructive eviction of Tenant, give rise to an abatement of rent, except as expressly provided below, nor relieve Tenant from the obligation to fulfill any covenant or agreement.  If the Premises, or a material portion of the Premises, is made untenantable for a period in excess of four (4) consecutive Business Days as a result of a Service Failure not caused by Tenant or any Tenant’s Agent, then Tenant, as its sole remedy, shall be entitled to receive an abatement of Base Rent payable hereunder during the period beginning on the fifth consecutive Business Day of the Service Failure and ending on the day the applicable service has been restored.  However, if the entire Premises has not been rendered untenantable by the Service Failure, the amount of abatement that Tenant is entitled to receive hereunder shall be prorated based upon the percentage of the Premises rendered untenantable and not used by Tenant.

3.6          Holdover.  Tenant is not authorized to hold over beyond the expiration or earlier termination of the Lease Term.  If Tenant holds over, Tenant shall be a tenant at sufferance.  During such holding over, Tenant shall pay to Landlord Base Rent equal to the greater of (i) one hundred fifty percent (150%) of the rate of Base Rent in effect on the expiration or termination of the Lease Term and (ii) one hundred fifty percent (150%) of the prevailing rental rate in the Building for similar space, plus all Additional Rent and other sums payable under this Lease.  Tenant also shall be bound by all of the other covenants and conditions specified in this Lease, so far as applicable.  If Landlord does not consent to the Tenant’s remaining in possession, Landlord shall have all the rights and remedies provided for by law and this Lease, including the right to recover consequential damages suffered by Landlord in the event of Tenant’s wrongful refusal to relinquish possession of the Premises.  Notwithstanding the foregoing, Tenant shall have no liability under this Section 3.6 for consequential damages if Tenant vacates and surrenders possession of the Premises in accordance with Section 4 hereof within forty-five (45) days after the expiration or earlier termination of the Lease Term.

3.7          Late Charge.  If Tenant fails to make any payment of Base Rent, Additional Rent or other amount when due under this Lease, a late charge is immediately due and payable by Tenant equal to five percent (5%) of the amount of any such payment.  Landlord and Tenant agree that this charge compensates Landlord for the administrative costs caused by the delinquency.  The parties agree that Landlord’s damage would be difficult to compute and the amount stated in this Section 3.7 represents a reasonable estimate of such damage.  Assessment or payment of the late charge contemplated in this Section 3.7 shall not excuse or cure any Event of Default or breach by Tenant under this Lease or impair any other right or remedy provided under this Lease or under law.  Notwithstanding the foregoing, no late charge shall be due or payable with respect to the first late payment in any twelve (12) month period during the Lease Term provided that Tenant makes payment within three (3) Business Days after receipt of written notice from Landlord.

3.8          Default Rate.  Any Base Rent, Additional Rent or other sum payable under this Lease which is not paid when due shall bear interest at a rate equal to the lesser of: (a) the published prime or reference rate then in effect at a national banking institution designated by Landlord (the “Prime Rate”), plus four (4) percentage points, or (b) the maximum rate of interest per annum permitted by applicable law (the “Default Rate”), but the payment of such interest shall not excuse or cure any Event of Default or breach by Tenant under this Lease or impair any other right or remedy provided under this Lease or under law.

4.1          Maintenance and Repair by Landlord.

4.1.1       Subject to the Sections entitled “Damage or Destruction” and “Condemnation”, Landlord shall maintain the roof, structural elements, common building systems and equipment and the public and common areas of the Building in reasonably good order and condition subject to reasonable wear and tear.  Landlord shall make such repairs thereto as become necessary after obtaining actual knowledge of the need for such repairs.  All repair costs shall be included in Operating Costs unless expressly excluded in subsection 3.4.5 hereof, except for damage occasioned by the act or omission of Tenant or Tenant’s Agents which shall be paid for entirely by Tenant upon demand by Landlord.  In the event any or all of the Premises becomes in need of maintenance or repair which Landlord is required to make under this Lease, Tenant shall promptly give written notice to Landlord, and Landlord shall not be obligated in any way to commence such maintenance or repairs until a reasonable time elapses after Landlord’s receipt of such notice.

4.1.2       Landlord shall not be liable by reason of any injury to or interference with Tenant’s business arising from the making of any repairs, alterations, additions or improvements in or to the Premises or the Building or to any appurtenances or equipment therein.  Subject to the foregoing, Landlord shall use commercially reasonable efforts to minimize any such injury or interference.  Except as and to the extent expressly provided in subsection 3.5.3 hereof, there shall be no abatement of rent because of such repairs, alterations, additions or improvements or because of any delay by Landlord in making the same.

4.1.3       During the Lease Term, Landlord shall furnish janitorial services to the Premises on weekdays, other than Holidays, in accordance with the specifications attached hereto as Exhibit I or such other specifications established by Landlord from time to time, provided that the janitorial services provided for under such other specifications are comparable to the janitorial services then being provided by landlords to tenants in similar office buildings in Boston, Massachusetts.

4.2          Maintenance and Repair by Tenant.

4.2.1       Except as is expressly set forth as Landlord’s responsibility pursuant to the Section entitled “Maintenance and Repair by Landlord,” Tenant shall, at Tenant’s sole cost and expense, keep clean and maintain the Premises in good condition and repair, including interior painting, plumbing and utility fixtures and installations located in the Premises, carpets and floor coverings, all interior wall surfaces and coverings (including tile and paneling), window replacement (excluding exterior windows), entry and interior doors, roof penetrations and membranes in connection with any Tenant installations on the roof, light bulb replacement (which lighting purchases must comply with Landlord’s sustainability practices and shall be reported to Landlord in a format suitable to Landlord) and interior preventative maintenance.  All maintenance and repairs made by Tenant must comply with Landlord’s sustainability practices and any applicable Green Agency Rating, as the same may change from time to time.  If Tenant fails to maintain or repair the Premises in accordance with this Section 4.2, then Landlord may, but shall not be required to, enter the Premises upon five (5) Business Days prior written notice to Tenant (or immediately without any notice in the case of an emergency) to perform such maintenance or repair at Tenant’s sole cost and expense.  Tenant shall pay to Landlord the cost of such maintenance or repair plus a fifteen percent (15%) administration fee within ten (10) Business Days of written demand from Landlord.

4.2.2        Without limiting the generality of subsections 3.5.5 or 4.2.1 hereof, Tenant shall be responsible at Tenant’s sole cost and expense for the maintenance, repair and/or replacement of any special heating, ventilating, air conditioning, plumbing, electrical or other systems and fixtures installed solely to service the Premises, whether installed or paid for by Landlord or Tenant.

4.3          Common Areas/Security; Access.

4.3.1       The common areas of the Building shall be subject to Landlord’s sole management and control.  Without limiting the generality of the immediately preceding sentence, Landlord reserves the exclusive right as it deems necessary or desirable to install, construct, remove, maintain and operate lighting systems, facilities, improvements, equipment, Telecommunication Facilities and signs on, in or to all parts of the common areas; change the number, size, height, layout, or locations of walks, driveways and truckways or parking areas now or later forming a part of the Land or Building; make alterations or additions to the Building or common area; close temporarily all or any portion of the common areas to make repairs,  changes or to avoid public dedication; grant easements to which the Land will be subject; replat, subdivide, or make other changes to the Land; place or relocate or cause to be placed or relocated utility lines and Telecommunication Facilities through, over or under the Land and Building; and use or permit the use of all or any portion of the roof of the Building.  Landlord reserves the right to relocate parking areas and driveways (if any) and to build additional improvements in the common areas.  Except in the case of an emergency or as required by Governmental Requirements, Landlord shall use commercially reasonable efforts to minimize interference with Tenant’s access to or permitted use of the Premises in connection with the exercise by Landlord of the rights reserved in this subsection 4.3.1.

4.3.2       Landlord has no duty or obligation to provide any security services in, on or around the Premises, Land or Building, and Tenant recognizes that security services, if any, provided by Landlord will be for the sole benefit of Landlord and the protection of Landlord’s property and under no circumstances shall Landlord be responsible for, and Tenant waives any rights with respect to, Landlord providing security or other protection for Tenant or Tenant’s Agents or property in, on or about the Premises, Land or Building.  Subject to Landlord’s prior approval, Tenant may, at its sole cost and expense, install, establish and maintain security services within the Premises; provided that, such security services (including any apparatus, facilities, equipment or people utilized in connection with the provision of such security services) comply with the Governmental Requirements and shall not cause the Building to be out of compliance with the Governmental Requirements.  Notwithstanding the foregoing, any such security services installed, established or maintained by Tenant must not affect or impact any portion of the Building or the Land other than the Premises and shall not in any way limit or interfere with Landlord’s ability to exercise its rights as provided in the Section entitled “Access”.  Tenant’s rights under this subsection are subject to all the obligations, limitations and requirements as set forth in the Sections entitled “Tenant Alterations” and “Tenant’s Work Performance”.

4.3.3       Tenant shall have the right to use the freight elevator and loading dock for the Building on a non-discriminatory, first-come, first served basis, it being understood that the use of the freight elevator and loading dock must be scheduled reasonably in advance with Landlord and shall be subject to the payment of Landlord’s then standard, reasonable fee for any such usage after Building Standard Hours.  Such use shall be subject to the Building’s rules and regulations in effect from time to time.

4.3.4       Tenant shall have access to the Building and the Premises for Tenant and its employees and business invitees 24 hours per day/7 days per week, subject to the terms of this Lease and such security or monitoring systems as Landlord may reasonably impose, including, without limitation, sign-in procedures and/or presentation of identification cards.

4.4          Tenant Alterations.  Tenant shall not make any alterations, additions or improvements in or to the Premises, or make changes to locks on doors, or add, disturb or in any way change any floor covering, wall covering, fixtures, plumbing, wiring or Telecommunication Facilities (individually and collectively, “Tenant Alterations”), without first obtaining the consent of Landlord, which consent Landlord may withhold in its sole discretion.  Notwithstanding the foregoing, Landlord’s consent to any Tenant Alterations that are entirely within the Premises and do not impact any structural components of the Building or any Building systems shall not be unreasonably withheld, conditioned or delayed.  For all purposes hereof, the phrase “Tenant Alterations” shall include any signs installed or proposed to be installed by Tenant pursuant to Section 4.23.  Tenant shall deliver to Landlord full and complete plans and specifications for any proposed Tenant Alterations and, if consent by Landlord is given, all such work shall be performed at Tenant’s expense by Tenant.  Tenant shall pay to Landlord all reasonable out-of-pocket costs incurred by Landlord for any architecture, engineering, supervisory and/or legal services in connection with any Tenant Alterations, including, without limitation, Landlord’s review of any plans and specifications.  Without limiting the generality of the foregoing, Landlord may require Tenant, at Tenant’s sole cost and expense, to obtain and provide Landlord with proof of insurance coverage, in forms, amounts and by companies reasonably acceptable to Landlord.  Should Tenant make any Tenant Alterations without Landlord’s prior written consent, or without satisfaction of any conditions established by Landlord, Landlord shall have the right, in addition to and without limitation of any right or remedy Landlord may have under this Lease, at law or in equity, to require Tenant to remove some or all of Tenant Alterations, or at Landlord’s election, Landlord may remove such Tenant Alterations and restore the Premises at Tenant’s expense.  Nothing contained in this Section 4.4 or the Section entitled “Tenant’s Work Performance” shall be deemed a waiver of the provisions of the Section entitled “Mechanic’s Liens”.    Notwithstanding the foregoing, Tenant shall not be required to obtain Landlord’s consent for redecorating, repainting, recarpeting, or other alterations, tenant improvements or physical additions to the Premises which are cosmetic in nature totaling less than Fifty Thousand Dollars ($50,000.00) in any single instance or series of related alterations performed within a twelve (12) month period (provided that Tenant shall not perform any improvements, alterations or additions to the Premises in stages as a means to subvert this provision), in each case provided that (A) Tenant delivers to Landlord written notice thereof, a list of contractors and subcontractors to perform the work (and certificates of insurance for each such contractor and subcontractor) and, if and only if plans and/or specifications are prepared for the work, copies of such plans and/or specifications, prior to commencing any such alterations, additions or improvements (for informational purposes only so long as no consent is required by Landlord as required by this Lease), (B) the installation thereof does not require the issuance of any building permit or other governmental approval, or involve any core drilling or the configuration or location of any exterior or interior walls of the Building, and (C) such alterations, additions and improvements will not affect (i) the Building’s structure or the Building’s systems, (ii) the provision of services to other Building tenants, or (iii) the appearance of the Building’s common areas or the exterior of the Building.

4.5          Tenant’s Work Performance.  If Landlord consents to any Tenant Alterations, Landlord may, in its absolute discretion, require that Tenant provide a payment and performance bond to cover the entire work to be performed, which bond must be in form, amount and by a company acceptable to Landlord.  Notwithstanding the foregoing, Landlord shall not require Tenant to obtain a payment and performance bond if (a) at the time of such Tenant Alterations, Tenant has a tangible net worth at least equal to or greater than the tangible net worth of Tenant as of the date of this Lease, and (b) the aggregate cost of the Tenant Alterations (including all related Tenant Alterations which may be part of a larger project or a series of related projects) is less than Seventy-five Thousand Dollars ($75,000.00).  Any Tenant Alterations to be performed under this Section 4.5 shall be performed by contractors approved by Landlord (which approval shall not be unreasonably withheld or delayed) and employed by Tenant under one or more construction contracts, in form and content approved in advance in writing by Landlord.  Approval shall be subject to Landlord’s discretion and shall include a requirement that the prime contractor and the respective subcontractors of any tier performing the Tenant Alterations: (a) be parties to, and bound by, a collective bargaining agreement with a labor organization affiliated with the Building and Construction Trades Council of the AFL-CIO applicable to the geographic area in which the Building is located and to the trade or trades in which the work under the contract is to be performed and (b) employ only members of such labor organizations to perform work within their respective jurisdictions.  The previous sentence shall apply whether it is Landlord or Tenant performing or contracting for any such alterations, additions, improvements or installations.  Waivers or exceptions to the requirement in the third sentence of this Section 4.5 may be given only in writing by Landlord.  With the specific, prior written approval of Landlord, which may be withheld in Landlord’s sole and absolute discretion, in clause (a) of the third sentence of this Section 4.5 the following substitutions may be made: (1) a project labor agreement in place of a collective bargaining agreement, and (2) an independent, nationally recognized labor organization in place of a labor organization affiliated with the Building and Construction Trades Council of the AFL-CIO.  Tenant’s contractors, workers and suppliers shall work in harmony with and not interfere with workers or contractors of Landlord or other tenants of Landlord.  If Tenant’s contractors, workers or suppliers do, in the opinion of Landlord, cause such disharmony or interference, Landlord’s consent to the continuation of such work may be withdrawn upon written notice to Tenant.  All Tenant Alterations shall be (1) completed in accordance with the plans and specifications approved by Landlord; (2) completed in accordance with all Governmental Requirements; (3) carried out promptly in a good and workmanlike manner; (4) of all new materials; and (5) free of defect in materials and workmanship.  In addition to the above requirements, Tenant shall use commercially reasonable efforts to contract for services to be performed in or about the Premises with companies which are a Responsible Contractor.  A “Responsible Contractor” is defined as a contractor or subcontractor who pays workers a fair wage and Fair Benefits as evidenced by payroll and employee records and who complies with a service-disabled veteran business policy.  “Fair Benefits” are defined as including employer-paid family health care coverage, pension benefits, and apprenticeship programs.  Any and all Tenant Alterations shall adhere to the design and construction requirements set forth in Exhibit K attached hereto.  Any and all Tenant Alterations that affects at least fifty percent (50%) of the Premises will be performed in accordance with Landlord’s sustainability practices (as same may be in effect or amended or supplemented from time to time), and any Green Agency Ratings, as the same may change from time to time.  Tenant further agrees to use reasonable efforts to engage a qualified third party LEED or Green Globe Accredited Professional or similarly qualified professional during the design phase through implementation of any Tenant Alterations covered by the preceding sentence, in order to review all plans, material procurement, demolition, construction and waste management procedures to ensure they are in full conformance to Landlord’s sustainability practices, as aforesaid, and Tenant agrees to use reasonable efforts to seek and maintain LEED for Commercial Interiors certification for such Tenant Alterations.  Notwithstanding the foregoing, in exercising such reasonable efforts to engage a qualified third party LEED or Green Globe Accredited Professional or to seek and maintain LEED for Commercial Interiors certification for such Tenant Alterations, Tenant shall not be required to incur, as to any material component of the Tenant Alterations, a substantial increase in the cost of such component of the Tenant Alterations.  Tenant shall pay for all damage to the Premises, Building and Land caused by Tenant or Tenant’s Agents.  Tenant shall indemnify, defend and hold harmless Landlord and Landlord’s Agents from any Claims arising as a result of the Tenant Alterations or any defect in design, material or workmanship of any Tenant Alterations.

4.6          Surrender of Possession.  Tenant shall, at the expiration or earlier termination of this Lease, surrender and deliver the Premises to Landlord in as good condition as when received by Tenant from Landlord or as later improved, reasonable use and wear and damage by Casualty excepted (but only if and to the extent Tenant is not obligated to repair such damage under Section 4.9 hereof), and free from all tenancies or occupancies by any person.

4.7          Removal of Property and Tenant Alterations.  Unless otherwise agreed to in writing by Landlord, Tenant agrees that there are and shall be no fixtures in the Premises owned by Tenant.  Upon expiration or earlier termination of this Lease, Tenant may remove its personal property, office supplies, trade fixtures and office furniture and equipment if (a) such removal is completed prior to the expiration or earlier termination of this Lease; and (b) Tenant immediately repairs all damage caused by or resulting from such removal.  All other property in the Premises and any Tenant Alterations (including, wall-to-wall carpeting, paneling, wall covering, lighting fixtures and apparatus or Telecommunication Facilities or any other article affixed to the floor, walls, ceiling or any other part of the Premises or Building) shall become the property of Landlord and shall remain upon and be surrendered with the Premises: provided, however, at Landlord’s sole election, Tenant shall be obligated, at its sole cost and expense, to remove all (or such portion as Landlord shall designate) of the Tenant Alterations constituting Specialty Alterations (including Telecommunication Facilities), repair any damages resulting from such removal and return the Premises to the same condition as existed prior to such Tenant Alterations.  Notwithstanding the foregoing, if Tenant’s submission of its plans and specifications to Landlord for approval of any Tenant Alterations is accompanied by a written request that Landlord identify any Tenant Alterations which Landlord considers Specialty Alterations (if any) that Landlord may require Tenant to remove upon the expiration or earlier termination of this Lease, Landlord shall identify such Specialty Alterations (if any) by a written notice (a “Removal Notice”) to Tenant given at the time of Landlord’s approval of such plans and specifications if, but only if, Tenant’s request for approval of such plans and specifications is submitted with a notice at the top of the page having a heading in at least 12-point type, bold and all capital letters stating “LANDLORD’S APPROVAL MUST IDENTIFY ANY SPECIALTY ALTERATIONS WHICH LANDLORD MAY REQUIRE TENANT TO REMOVE UPON THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE”.  In all events, Tenant shall be required to remove all wiring and cabling installed in the Building by or at the request of the Tenant.  Tenant waives all rights to any payment or compensation for such Tenant Alterations (including Telecommunication Facilities).  If Tenant shall fail to remove any of personal property from the Premises, Building or Land at the expiration or earlier termination of this Lease or when Landlord has the right of re-entry, Landlord may, at its option, remove and store such personal property, at Tenant’s expense, without liability for loss of or damage to such personal property, such storage to be for the account and at the expense of Tenant.  Tenant shall pay all costs incurred by Landlord within seven (7) Business Days after demand for such payment.  If Tenant fails to pay the cost of storing any such personal property, Landlord may, at its option, after it has been stored for a period of twenty (20) Business Days or more, sell or permit to be sold, any or all such personal property at public or private sale (and Landlord may become a purchaser at such sale), in such manner and at such times and places as Landlord in its sole discretion may deem proper, without notice to Tenant, and Landlord shall apply the proceeds of such sale: first, to the cost and expense of such sale, including reasonable attorney’s fees actually incurred; second, to the payment of the costs or charges for storing any such personal property; third, to the payment of any other sums of money which may then be or later become due Landlord from Tenant under this Lease; and, fourth, the balance, if any, to Tenant.  Notwithstanding anything herein to the contrary, Tenant shall not be obligated to remove from the Premises at the end of the Term any of the improvements depicted on the Space Plans (as hereinafter defined); provided, however, at Landlord’s sole election, Tenant shall be obligated, at its sole cost and expense, to remove from the Premises at the end of the Term the kitchen depicted on the Space Plans and repair any damage caused by such removal.

4.8          Landlord’s Access.  Tenant shall permit Landlord and Landlord’s Agents to enter into the Premises at any time to perform janitorial services in accordance with subsection 4.1.3 and at any time on at least one (1) Business Day’s notice (except in case of emergency in which case no notice shall be required), for the purpose of inspecting the same or for the purpose of repairing, altering or improving the Premises or the Building.  Nothing contained in this Section 4.8 shall be deemed to impose any obligation upon Landlord not expressly stated elsewhere in this Lease.  When, and for so long as, reasonably necessary, Landlord may temporarily close Building or Land entrances, Building doors or other facilities, without liability to Tenant by reason of such closure and without such action by Landlord being construed as an eviction of Tenant or as relieving Tenant from the duty of observing or performing any of the provisions of this Lease.  Landlord shall have the right to enter the Premises at any time during the last twelve (12) months of the Lease Term after at least twenty-four (24) hours’ prior written or oral notice to Tenant and at any time during the Lease Term that an Event of Default exists (with or without prior notice to Tenant) for the purpose of showing the Premises to prospective tenants.  Tenant shall give written notice to Landlord at least twenty (20) Business Days prior to vacating the Premises and shall arrange to meet with Landlord for a joint inspection of the Premises prior to vacating.  In the event of Tenant’s failure to give such notice or arrange such joint inspection, Landlord’s inspection at or after Tenant’s vacating the Premises shall be conclusively deemed correct for purposes of determining Tenant’s responsibility for repairs and restoration.  Landlord shall not be liable for the consequences of admitting by passkey, or refusing to admit to the Premises, Tenant or any of Tenant’s Agents.

4.9          Damage or Destruction.

4.9.1       If the Premises are damaged by fire, earthquake or other casualty (each a “Casualty”), Tenant shall give prompt written notice (a “Casualty Notice”) thereof to Landlord.  After Landlord’s receipt of the Casualty Notice, Landlord shall make a determination (based upon the advice of Landlord’s architect, engineer, contractor or other professional) of the time required to substantially repair such damage (“Landlord’s Estimated Restoration Period”), and Landlord shall so notify Tenant of same.  Landlord shall notify Tenant of Landlord’s Estimated Restoration Period within ninety (90) days after the applicable Casualty.  If Landlord estimates that the damage can be repaired in accordance with the then-existing Governmental Requirements within nine (9) months after Landlord’s receipt of the Casualty Notice and if there are sufficient insurance proceeds available to repair such damage, then Landlord shall proceed with reasonable diligence to restore the Premises to substantially the condition which existed prior to the damage and this Lease shall not terminate.  If, in Landlord’s estimation, the damage cannot be repaired within such nine (9) month period or if there are insufficient insurance proceeds available to repair such damage, Landlord may elect in its absolute discretion to either: (a) terminate this Lease or (b) restore the Premises to substantially the condition which existed prior to the damage and this Lease will continue.  If Landlord’s Estimated Restoration Period exceeds nine (9) months from the date of Landlord’s receipt of the Casualty Notice, Tenant also shall have the right to terminate this Lease by giving Landlord written notice of such termination within ten (10) Business Days after Landlord’s delivery to tenant of notice of the Landlord’s Estimated Restoration Period (time being of the essence).  If Landlord restores the Premises under this Section 4.9, then (1) Landlord shall use commercially reasonable efforts to proceed toward completion of the restoration and Tenant shall pay to Landlord, upon demand, Tenant’s Pro Rata Share of any applicable deductible amount specified under Landlord’s insurance and (2) notwithstanding anything to the contrary contained herein, Landlord shall not be required to repair or restore Tenant Improvements, Tenant Alterations (including Telecommunication Facilities), or any or all furniture, fixtures, equipment, inventory, improvements or other property which was in or about the Premises at the time of the damage and was not owned by Landlord.  In the case of damage to the Premises or the Building which is of a nature or extent that (a) such damage materially interferes with Tenant’s access to or use of a portion but not all of the Premises (such portion being referred to herein as the “Materially Affected Premises”), Base Rent and Additional Rent otherwise payable hereunder shall be abated by the percentage that the rentable area of the Materially Affected Premises bears to the total rentable area of the Premises, for the period beginning on the date of the Casualty Notice and ending on the earlier of (i) the date that Landlord has substantially completed its repairs to the Materially Affected Premises and (ii) the date that Tenant uses any portion of the Materially Affected Premises for the conduct of its business, or (b) such damage materially interferes with Tenant’s access to or use of the entire Premises, all Base Rent and Additional Rent otherwise payable hereunder shall be abated for the period beginning on the date of the Casualty Notice and ending on the earlier of (i) the date that Landlord has substantially completed its repairs to the Premises and (ii) the date that Tenant uses any portion of the Premises for the conduct of its business.  Except for the abatement of rent if and to the extent provided herein, Tenant agrees to look to the provider of Tenant’s insurance for coverage for the loss of Tenant’s use of the Premises and any other related losses or damages incurred by Tenant during any reconstruction period.  If this Lease has not been terminated by Landlord or Tenant as provided above, the validity and effect of this Lease shall not be impaired in any way by the failure of Landlord to complete repairs and restoration of the Premises or the Building prior to the expiration of Landlord’s Estimated Restoration Period.  Notwithstanding the foregoing, if the Premises have not been restored to the condition required by Landlord hereunder prior to the later of the expiration of Landlord’s Estimated Restoration Period or the date which is twelve (12) months after Landlord’s receipt of the Casualty Notice (which date in each case shall be extended one day for each day of delay caused by any act or omission of Tenant and for events of Force Majeure as contemplated in Section 6.8 hereof), then Tenant shall have the right to cancel this Lease upon not less than sixty (60) days prior written notice given to the Landlord within ten (10) Business Days after the expiration of such period (time being of the essence), provided such cancellation shall be void and this Lease shall continue in full force and effect in the event that substantial completion of the Premises is achieved within such sixty (60) day period (which date shall be extended one day for each day of delay caused by any act or omission of Tenant and for events of Force Majeure as contemplated in Section 6.8 hereof).

4.9.2       If the Building is damaged by Casualty and more than fifty percent (50%) of the Building is rendered untenantable, without regard to whether the Premises are affected by such damage, Landlord may, in its absolute discretion and without limiting any other options available to Landlord under this Lease or otherwise, elect to terminate this Lease by notice in writing to Tenant within forty (40) Business Days after the occurrence of such damage if Landlord is also terminating the leases of other tenants in the Building who are similarly situated to Tenant. Such termination shall be effective sixty (60) days after receipt by Tenant of such termination notice.

4.9.3       Notwithstanding anything contained in this Lease to the contrary, if there is damage to the Premises or Building and the holder of any indebtedness secured by a mortgage or deed of trust covering any such property requires that the insurance proceeds be applied to such indebtedness or if the insurance proceeds are otherwise inadequate to complete the repair of the damages to the Premises, the Building or both, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within fifteen (15) Business Days after Landlord is notified of such requirement.  Such termination shall be effective sixty (60) days after receipt by Tenant of such termination notice.

4.9.4       Notwithstanding the foregoing, if the Premises or the Building are materially damaged or destroyed within the final twelve (12) months of the Term and Landlord estimates that less than six (6) months will remain in the Lease Term on the date by which Landlord estimates completion of its restoration work, either party may, at its option, elect to terminate this Lease upon written notice to the other party within thirty (30) days following such damage or destruction.

4.10        Condemnation.  If greater than twenty-five percent (25%) of the Premises, or such portions of the Building as may be required for the Tenant’s reasonable use of the Premises, are taken by eminent domain or by conveyance in lieu thereof, this Lease shall automatically terminate as of the date the physical taking occurs, and all Base Rent, Additional Rent and other sums payable under this Lease shall be paid to that date.  In case of taking of less than twenty-five percent (25%) of the Premises or a portion of the Building not required for the Tenant’s reasonable use of the Premises, then this Lease shall continue in full force and effect and the Base Rent shall be equitably reduced based on the proportion by which the floor area of the Premises is reduced, such reduction in Base Rent to be effective as of the date the physical taking occurs.  Additional Rent and all other sums payable under this Lease shall not be abated but Tenant’s Pro Rata Share may be redetermined as equitable under the circumstances.  Landlord reserves all rights to damages or awards for any taking by eminent domain relating to the Premises, Building, Land and the unexpired term of this Lease.  Tenant assigns to Landlord any right Tenant may have to such damages or award and Tenant shall make no claim against Landlord for damages for termination of its leasehold interest or interference with Tenant’s business.  Tenant shall have the right, however, to claim and recover from the condemning authority compensation for any loss to which Tenant may be entitled for Tenant’s moving expenses or other relocation costs; provided that, such expenses or costs may be claimed only if they are awarded separately in the eminent domain proceedings and not as a part of the damages recoverable by Landlord.

4.11        Intentionally Omitted.

4.12        Indemnification.

4.12.1     Except to the extent resulting from the negligence or willful misconduct of Landlord or Landlord’s Agents or from Landlord’s or Landlord’s Agents’ violation of applicable Governmental Requirements and subject to the terms of the Section entitled “Waiver of Subrogation”, Tenant shall indemnify, defend and hold harmless Landlord and Landlord’s Agents from and against any and all Claims, arising in whole or in part out of (a) the possession, use or occupancy of the Premises or the business conducted in the Premises, (b) any act, omission or negligence of Tenant or Tenant’s Agents, or (c) any breach or default under this Lease by Tenant.  Subject to the Section entitled “Waiver of Subrogation”, Landlord shall defend, indemnify, and hold harmless Tenant and its agents from and against all claims, demands, liabilities, causes of action, suits, judgments, damages, and expenses (including reasonable attorneys’ fees) for any Claims arising from any occurrence in or on the Building’s common areas to the extent caused by the negligence or willful misconduct of Landlord or Landlord’s agents.

4.12.2     Except as specified in the next sentence or as otherwise expressly provided in this Lease, neither Landlord nor Landlord’s Agents shall, to the extent permitted by law, have any liability to Tenant, or to Tenant’s Agents, for (1) any Claims arising out of any cause whatsoever, including repair to any portion of the Premises: (2) interruption in or interference with the use of the Premises or any equipment therein; (3) any accident or damage resulting from any use or operation by Landlord, Tenant or any person or entity of heating, cooling, electrical, sewerage or plumbing equipment or apparatus or Telecommunication Facilities; (4) termination of this Lease by reason of damage to the Premises or Building; (5) fire, robbery, theft, vandalism, mysterious disappearance or a Casualty of any kind or nature; (8) actions of any other tenant of the Building or of any other person or entity; (7) inability to furnish any service required of Landlord as specified in this Lease; or (8) leakage in any part of the Premises or the Building from rain, ice or snow, or from drains, pipes or plumbing fixtures in the Premises or the Building.  Landlord shall be responsible only for Claims arising solely out of the negligence or willful misconduct of Landlord in failing to repair or maintain the Building as required by this Lease; but in no event shall Landlord’s responsibility extend to any interruption to Tenant’s business or any indirect or consequential losses suffered by Tenant or Tenant’s Agents or extend beyond Landlord’s responsibility as set forth in the Section entitled “Utilities” when that Section is applicable.  The obligations of this Section 4.12 shall be subject to the Section entitled “Waiver of Subrogation”.

4.13        Tenant Insurance.

4.13.1     Tenant shall, throughout the Lease Term, at its own expense, keep and maintain in full force and effect the following policies, each of which shall be endorsed as needed to provide that the insurance afforded by these policies is primary and that all insurance carried by Landlord is strictly excess and secondary and shall not contribute with Tenant’s liability insurance:

(a)          A policy of commercial general liability insurance, including a contractual liability endorsement covering Tenant’s obligations under the Section entitled “Indemnification”, insuring against claims of bodily injury and death or property damage or loss with a combined single limit at the Commencement Date of this Lease of not less than Five Million Dollars ($5,000,000.00), which limit shall be reasonably increased during the Lease Term at Landlord’s request to reflect both increases in liability exposure arising from inflation as well as from changing use of the Premises or changing legal liability standards, which policy shall be payable on an “occurrence” rather than a “claims made” basis, and which policy names Landlord, Bentall Kennedy (U.S.) Limited Partnership, the Manager and, at Landlord’s request, Landlord’s mortgage lender(s) and/or investment advisors, as additional insureds;

(b)          A policy of extended property insurance (which is commonly called “all risk”) covering Tenant Improvements, Tenant Alterations (including Telecommunication Facilities), and any and all furniture, fixtures, equipment, inventory, improvements and other property in or about the Premises which is not owned by Landlord, for one hundred percent (100%) of the then current replacement cost of such property;

(c)          Business interruption insurance in an amount sufficient to cover costs, damages, lost income, expenses, Base Rent, Additional Rent and all other sums payable under this Lease, should any or all of the Premises not be usable for a period of up to twelve (12) months;

(d)          A policy of worker’s compensation insurance as required by applicable Governmental Requirements and employer’s liability insurance with limits of no less than One Million Dollars ($1,000,000.00); and

(e)          If at any time during the Lease Term Tenant owns or leases any motor vehicle(s), a policy of comprehensive automobile liability insurance, including loading and unloading, and covering owned, non-owned and hired vehicles, with limits of no less than One Million Dollars ($1,000,000.00) per occurrence.

4.13.2     All insurance policies required under this Section 4.13 shall be with companies reasonably approved by Landlord and each policy shall provide that it is not subject to cancellation, lapse or reduction in coverage except after thirty (30) days’ written notice to Landlord.  Prior to the Commencement Date and from time to time thereafter, Tenant shall deliver to Landlord, Bentall Kennedy (U.S.), LP, the Manager, and, at Landlord’s request, any other parties hereunder required to be named as additional insureds, certificates evidencing the existence and amounts of all such policies.

4.13.3     If Tenant fails to acquire or maintain any insurance or provide any certificate required by this Section 4.13, Landlord may, but shall not be required to, obtain such insurance or certificates and the costs associated with obtaining such insurance or certificates shall be payable by Tenant to Landlord on demand.

4.14        Landlord’s Insurance.  Landlord shall, throughout the Lease Term, keep and maintain in full force and effect:

4.14.1     A policy of commercial general liability insurance, insuring against claims of bodily injury and death or property damage or loss with a combined single limit at the Commencement Date of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate, which policy shall be payable on an ‘occurrence” rather than a “claims made” basis;

4.14.2     A policy of extended property insurance (what is commonly called ‘all risk”) covering the Building and Landlord’s personal property, if any, located on the Land in the amount of one hundred percent (100%) of the then current replacement value of such property; and

4.14.3     Landlord may, but shall not be required to, maintain other types of insurance as Landlord deems appropriate, including but not limited to, property insurance coverage for earthquakes and floods in such amounts as Landlord deems appropriate.  Such policies may be “blanket” policies which cover other properties owned by Landlord.

4.15        Waiver of Subrogation.  Notwithstanding anything in this Lease to the contrary, Landlord and Tenant hereby each waive and release the other from any and all Claims or any loss or damage that may occur to the Land, Building, Premises, or personal property located therein, by reason of Casualty regardless of cause or origin, including the negligence or misconduct of Landlord, Tenant, Landlord’s Agents or Tenant’s Agents, but only to the extent of the insurance proceeds paid to such releasor under its policies of insurance or, if it fails to maintain the required policies, the insurance proceeds that would have been paid to such releasor if it had maintained such policies.  Each party to this Lease shall promptly give to its insurance company written notice of the mutual waivers contained in this subsection, and shall cause its insurance policies to be properly endorsed, if necessary, to prevent the invalidation of any insurance coverages by reason of the mutual waivers contained in this subsection.

4.16        Assignment and Subletting by Tenant.

4.16.1     Tenant shall not have the right to assign, transfer, mortgage or encumber this Lease in whole or in part, nor sublet the whole or any part of the Premises, nor allow the occupancy of all or any part of the Premises by another, without first obtaining Landlord’s written consent.  Landlord shall not unreasonably withhold its consent to any assignment or subletting of the Premises, provided that the proposed assignee or subtenant (1) is creditworthy, (2) has a good reputation in the business community, (3) will use the Premises for the Permitted Use, (4) will not use the Premises or Building in a manner that would materially increase the pedestrian or vehicular traffic to the Premises or Building, (5) is not a governmental entity, or subdivision or agency thereof, (6) is not another occupant of the Building, and (7) is not a person or entity with whom Landlord is then, or has been within the six-month period prior to the time Tenant seeks to enter into such assignment or subletting, negotiating to lease space in the Building or any Affiliate of any such person or entity; otherwise, Landlord may withhold its consent in its sole discretion.  Additionally, Landlord may withhold its consent in its sole discretion to any proposed assignment or subletting if any Event of Default by Tenant then exists.  Notwithstanding any permitted assignment or subletting, Tenant shall at all times remain directly, primarily and fully responsible and liable for the payment of all sums payable under this Lease and for compliance with all of its other obligations as tenant under this Lease.  Landlord’s acceptance of Base Rent, Additional Rent or any other sum from any assignee, sublessee, transferee, mortgagee or encumbrance holder shall not be deemed to be Landlord’s approval of any such conveyance.  Upon the occurrence of an Event of Default, if the Premises or any part of the Premises are then subject to an assignment or subletting.  Landlord may, at its option, collect directly from such assignee or subtenant all rents becoming due to Tenant under such assignment or sublease and apply such rents against any sums due to Landlord from Tenant under this Lease.  No such collection shall be construed to constitute a novation or release of Tenant from the further performance of Tenant’s obligations under this Lease.  Landlord’s right of direct collection shall be in addition to and not in limitation of any other rights and remedies provided for in this Lease or at law.  Tenant makes an absolute assignment to Landlord of such assignments and subleases and any rent, lease security deposits and other sums payable under such assignments and subleases as collateral to secure the performance of the obligations of Tenant under this Lease.

4.16.2     In the event Tenant desires to assign this Lease or to sublet all or any portion of the Premises, Tenant shall give written notice of such desire to Landlord setting forth the name of the proposed subtenant or assignee, the proposed term, the nature of the proposed subtenant’s or assignee’s business to be conducted on the Premises, the rental rate, and any other particulars of the proposed subletting or assignment that Landlord may reasonably request.  Without limiting the preceding sentence, Tenant shall also provide Landlord with: (a) such financial information as Landlord may reasonably  request concerning the proposed subtenant or assignee, including recent financial statements certified as accurate and complete by a certified public accountant and by the president, managing partner or other appropriate officer of the proposed subtenant or assignee: (b) proof reasonably satisfactory to Landlord that the proposed subtenant or assignee will immediately occupy and thereafter use the entire Premises (or any sublet portion of the Premises) for the remainder of the Lease Term (or for the entire term of the sublease, if shorter) in compliance with the terms of this Lease; and (c) a copy of the proposed sublease or assignment or letter of intent.  Tenant shall pay to Landlord, upon Landlord’s demand therefor, Landlord’s reasonable attorneys’ fees incurred in the review of such documentation and in documenting Landlord’s consent, not to exceed $2,500.00 for each request for Landlord’s consent.  Receipt of such fees shall not obligate Landlord to consent to the proposed assignment or sublease.

4.16.3     In determining whether to grant or withhold consent to a proposed assignment or sublease, Landlord may consider, and weigh, any factor it deems relevant, in its reasonable discretion.

4.16.4     Within fifteen (15) Business Days after Landlord’s receipt of all required information to be supplied by Tenant pursuant to this Section 4.16, Landlord shall notify Tenant of Landlord’s approval, disapproval or conditional approval of any proposed assignment or subletting or of Landlord’s election to recapture as described below.  Landlord shall have no obligation to respond unless and until all required information has been submitted.  In the event Landlord approves of any proposed assignment or subletting, Tenant and the proposed assignee or sublessee shall execute and deliver to Landlord an assignment (or subletting) and assumption agreement in form and content reasonably satisfactory to Landlord.

4.16.5     Any transfer, assignment or hypothecation of any of the stock or interest in Tenant, or the assets of Tenant, or any other transaction, merger, reorganization or event, however constituted, whether in a single transaction or series of transactions over a six (6) month period, which (a) results in fifty percent (50%) or more of such stock, interest or assets going into different ownership, or (b) is a subterfuge denying Landlord the benefits of this Section 4.16, shall be deemed to be an assignment within the meaning and provisions of this Section 4.16 and shall be subject to the provisions of this Section 4.16.  Notwithstanding the foregoing, any transfer, assignment or hypothecation of any of the publicly traded common stock in Tenant held by Ionis Pharmaceuticals as of the Effective Date shall not be subject to this Section 4.16.

4.16.6     If Landlord consents to any assignment or sublease and Tenant receives rent or any other consideration, either initially or over the term of the assignment or sublease, in excess of the Base Rent and Additional Rent (or, in the case of a sublease of a portion of the Premises, in excess of the Base Rent paid by Tenant on a square footage basis under this Lease) (such amount being referred to herein as the “Gross Profit”), Tenant shall pay to Landlord fifty percent (50%) of the Net Profit.  As used herein, the “Net Profit” means the Gross Profit less the reasonable and customary marketing and transaction expenses incurred by Tenant in making such assignment or sublease, including, without limitation, costs or allowances for leasehold improvements, reasonable legal fees and leasing commissions, provided that, for purposes of calculating the Net Profit, such expenses shall be amortized over the term of the applicable assignment or sublease.

4.16.7     Landlord shall have the right to recapture the Premises or the applicable portion thereof (a “Recapture”) by giving written notice of such Recapture to Tenant within fifteen (15) Business Days after receipt of Tenant’s written request for Landlord’s consent to such proposed assignment or subletting.  Tenant shall have no right to retract its request for Landlord’s consent to assign or sublease once such request has been made.  Such Recapture shall terminate this Lease as to the applicable space effective on the prospective effective date of assignment or subletting, which shall be the last day of a calendar month and shall not be earlier than forty-five (45) Business Days after receipt of Tenant’s request hereunder.  If less than the entire Premises are Recaptured, this Lease shall remain in full force and effect with respect to that remaining area not Recaptured by Landlord.  Tenant shall surrender that portion of the Premises Recaptured by Landlord in accordance with the terms and conditions of this Lease.  Notwithstanding the foregoing, if at any time during the Term Tenant is occupying the entre Premises and is proposing to sublease not more than 10,000 rentable square feet of floor area of the Premises, then Landlord shall not have the right to Recapture with respect to such proposed sublease.

4.16.8     Notwithstanding anything to the contrary in this Lease, provided that all amounts due under this Lease have been paid in full and further provided that no Event of Default exists, upon not less than ten (10) Business Days advance written notice to Landlord but without Landlord’s consent, Tenant may assign this Lease or sublet all or any portion of the Premises to an Affiliate of the Tenant, provided (a) that Tenant has delivered to Landlord satisfactory evidence that the assignee or subtenant is an Affiliate of the Tenant, (b) Tenant reimburses Landlord on demand for all reasonable costs and expenses incurred by Landlord in determining compliance with the terms of this Section 4.16.8, including reasonable attorneys’ fees, and (c) such entity remains an Affiliate of Tenant subsequent to the date of such assignment and for the remainder of the Lease Term.  In all events, Tenant shall remain liable for its obligations under this Lease despite any such transfer.

4.16.9     Notwithstanding anything to the contrary in this Lease, provided that all amounts due under this Lease have been paid in full and further provided that no Event of Default exists, Tenant may, without Landlord’s consent, assign this Lease in conjunction or connection with any merger, consolidation, corporate reorganization (other than pursuant to the bankruptcy laws), or the sale of all or substantially all of the assets of Tenant or the sale or other transfer of all or substantially all of the Tenant’s stock or other ownership interests (directly or indirectly), provided that the resulting or surviving entity or transferee (as applicable) (a) assumes all of the liabilities and obligations of the Tenant under this Lease in a writing in form and substance reasonably satisfactory to Landlord, and (b) has a tangible net worth immediately following such transaction certified to Landlord by an independent certified public accountant equal to or greater than the tangible net worth of Tenant as of the date of this Lease or the date immediately prior to such transaction (whichever is greater), in each case as determined in accordance with generally accepted accounting principles.  Tenant agrees (w) that Tenant shall furnish to Landlord written notice of such assignment at least ten (10) Business Days prior to the effective date of such assignment, unless, because of any confidentiality requirements applicable to such assignment, Tenant may not give to Landlord advance notice of such assignment, (x) that Tenant shall furnish to Landlord evidence of any such completed assignment within five (5) Business Days after the effective date of such assignment, (y) that Tenant shall remain liable for its obligations under this Lease, despite any such assignment, and (z) to reimburse Landlord on demand for all reasonable costs and expenses incurred by Landlord in determining compliance with the terms of this subsection, including reasonable attorneys’ fees.  The provisions of Section 4.16.7 shall not apply to an assignment pursuant to this Section 4.16.9.

4.17        Assignment by Landlord.  Landlord shall have the right to transfer and assign, in whole or in part, its rights and obligations under this Lease and in any and all of the Land or Building.  If Landlord sells or transfers any or all of the Building, including the Premises, Landlord and Landlord’s Agents shall, upon consummation of such sale or transfer, be released automatically from any liability relating to obligations or covenants under this Lease to be performed or observed after the date of such transfer, provided that the transferee assumes in writing Landlord’s obligations and covenants to be performed or observed under this Lease after the date of such transfer, and, in such event, Tenant agrees to look solely to the transferor with respect to such liability.

4.18        Estoppel Certificates and Financial Statements.  Tenant shall, from time to time, upon the written request of Landlord, execute, acknowledge and deliver to Landlord or its designee a written statement stating: (a) the date this Lease was executed and the date it expires; (b) the date Tenant entered into occupancy of the Premises; (c) the amount of monthly Base Rent and Additional Rent and the date to which such Base Rent and Additional Rent have been paid; and (d) certifying that (1) this Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way (or specifying the date of the agreement so affecting this Lease); (2) Landlord is not in breach of this Lease (or, if so, a description of each such breach) and that no event, omission or condition has occurred which would result, with the giving of notice or the passage of time, in a breach of this Lease by Landlord; (3) this Lease represents the entire agreement between the parties with respect to the Premises; (4) all required contributions by Landlord to Tenant on account of Tenant improvements have been received; (5) on the date of execution, there exist no defenses or offsets which the Tenant has against the enforcement of this Lease by the Landlord; (6) no Base Rent, Additional Rent or other sums payable under this Lease have been paid in advance except for Base Rent and Additional Rent for the then current month; (7) no security has been deposited with Landlord (or, if so, the amount of such security); (8) it is intended that any Tenant’s statement may be relied upon by a prospective purchaser or mortgagee of Landlord’s interest or an assignee of any such mortgagee; and (9) such other information as may be reasonably requested by Landlord.  If Tenant fails to respond within ten (10) days of its receipt of a written request by Landlord as provided in this Section 4.18, such shall be a breach of this Lease and Tenant shall be deemed to have admitted the accuracy of any information supplied by Landlord to a prospective purchaser, mortgagee or assignee.  In addition, Tenant shall, from time to time, upon the written request of Landlord, deliver to or cause to be delivered to Landlord or its designee then current financial statements (including a statement of operations and balance sheet and statement of cash flows) certified as accurate by a certified public accountant (or by the chief financial officer of Tenant if Tenant does not obtain financial statements certified by a certified public accountant) and prepared in conformance with generally accepted accounting principles for (i) Tenant, (ii) any successor entity to Tenant by merger or operation of law, and (iii) any guarantor of this Lease.  Landlord will not disclose any aspect of Tenant’s financial statements except (1) to Landlord’s mortgagee or prospective mortgagees or purchasers of the Building, (2) in litigation between Landlord and Tenant, and/or (3) if required by court order.  Tenant shall not be required to deliver the financial statements required under this Section 4.1.8 more than once in any 12-month period unless requested by Landlord’s mortgagee or a prospective buyer or lender of the Building or an Event of Default occurs.

4.19        Modification for Lender.  If, in connection with obtaining construction, interim or permanent financing for the Building or Land, Landlord’s lender, if any, shall request reasonable modifications to this Lease as a condition to such financing, Tenant will not unreasonably withhold or delay its consent to such modifications; provided that such modifications do not increase the obligations of Tenant under this Lease or materially adversely affect Tenant’s rights under this Lease.

4.20        Hazardous Substances.

4.20.1     Neither Tenant, any of Tenant’s Agents nor any other person shall store, place, generate, manufacture, refine, handle, or locate on, in, under or around the Land or Building any Hazardous Substance, except for storage, handling and use of reasonable quantities and types of cleaning fluids and office supplies in the Premises in the ordinary course and the prudent conduct of Tenant’s business in the Premises.  Tenant agrees that (a) the storage, handling and use of such permitted Hazardous Substances must at all times conform to all Governmental Requirements and to applicable fire, safety and insurance requirements; (b) the types and quantities of permitted Hazardous Substances which are stored in the Premises must be reasonable and appropriate to the nature and size of Tenant’s operation in the Premises and reasonable and appropriate for a first-class building of the same or similar use and in the same market area as the Building; and (c) no Hazardous Substance shall be spilled or disposed of on, in, under or around the Land or Building or otherwise discharged from the Premises or any area adjacent to the Land or Building.  In no event will Tenant be permitted to store, handle or use on, in, under or around the Premises any Hazardous Substance which will increase the rate of fire or extended coverage insurance on the Land or Building, unless: (1) such Hazardous Substance and the expected rate increase have been specifically disclosed in writing to Landlord; (2) Tenant has agreed in writing to pay any rate increase related to each such Hazardous Substance; and (3) Landlord has approved in writing each such Hazardous Substance, which approval shall be subject to Landlord’s discretion.

4.20.2     Tenant shall indemnify, defend and hold harmless Landlord and Landlord’s Agents from and against any and all Claims arising out of any breach of any provision of this Section 4.20, which expenses shall also include laboratory testing fees, personal injury claims, clean-up costs and environmental consultants’ fees.  Tenant agrees that Landlord may be irreparably harmed by Tenant’s breach of this Section 4.20 and that a specific performance action may appropriately be brought by Landlord; provided that, Landlord’s election to bring or not bring any such specific performance action shall in no way limit, waive, impair or hinder Landlord’s other remedies against Tenant.

4.20.3     As of the execution date of this Lease, Tenant represents and warrants to Landlord that, except as otherwise disclosed by Tenant to Landlord, Tenant has no intent to bring any Hazardous Substances on, in or under the Premises except for the type and quantities authorized in the first paragraph of subsection 4.20.1.

4.21        Access Laws.

4.21.1     Tenant agrees to notify Landlord promptly if Tenant receives notification or otherwise becomes aware of: (a) any condition or situation on, in, under or around the Land or Building which may constitute a violation of any Access Laws or (b) any threatened or actual lien, action or notice that the Land or Building is not in compliance with any Access Laws.  If Tenant is responsible for such condition, situation, lien, action or notice under this Section 4.21, Tenant’s notice to Landlord shall include a statement as to the actions Tenant proposes to take in response to such condition, situation, lien, action or notice.

4.21.2     Tenant shall not alter or, after the Commencement Date, permit any subtenant or any other Person to alter the Premises in any manner which would violate any Access Laws or increase Landlord’s responsibilities for compliance with Access Laws, without the prior approval of the Landlord.  In connection with any such approval, Landlord may require a certificate of compliance with Access Laws from an architect, engineer or other person acceptable to Landlord.  Tenant agrees to pay the reasonable fees incurred by such architect, engineer or other third party in connection with the issuance of such certificate of compliance.  Landlord’s consent to any proposed Tenant Alteration shall not (a) relieve Tenant of its obligations or indemnities contained in this Section 4.21or elsewhere in this Lease or (b) be construed as a warranty that such proposed alteration complies with any Access Law.

4.21.3     Tenant shall be solely responsible for all costs and expenses relating to or incurred in connection with: (a) failure of the Premises to comply with the Access Laws; and (b) bringing the Building and the common areas of the Building into compliance with Access Laws, if and to the extent such noncompliance arises out of or relates to: (1) Tenant’s use of the Premises, including the hiring of employees; (2) any Tenant Alterations to the Premises; or (3) any Tenant Improvements constructed in the Premises at the request of Tenant, regardless of whether such improvements are constructed prior to or after the Commencement Date.

4.21.4     Landlord shall be responsible for all costs and expenses relating to or incurred in connection with bringing the common areas of the Building into compliance with Access Laws, unless such costs and expenses are Tenant’s responsibility as provided in the preceding subsection.

4.21.5     Tenant agrees to indemnify, defend and hold harmless Landlord and Landlord’s Agents from and against any and all Claims arising out of or relating to any failure of Tenant or Tenant’s Agents to comply with Tenant’s obligations under this Section 4.21.

4.21.6     The provisions of this Section 4.21 shall supersede any other provisions in this Lease regarding Access Laws, to the extent inconsistent with the provisions of any other Sections hereof.

4.22        Quiet Enjoyment.  Landlord covenants that, provided no Event of Default has occurred, Tenant shall and may peacefully have, hold and enjoy the Premises without hindrance or molestation by Landlord subject to the provisions of this Lease.

4.23        Signs.

4.23.1     Tenant shall be permitted to have its entity name listed on the main directory sign for the Building situated in the main lobby of the Building at Landlord’s expense.

4.23.2     After the Commencement Date, Tenant shall have the right, at Tenant’s cost, to install, maintain, repair and replace identification signage in the elevator lobby on each full floor of the Premises (i.e., each floor of the Building that is entirely leased by Tenant).  Any identification signage (or replacement thereof) installed in the elevator lobby on any full floor of the Premises (i.e., any floor of the Building that is entirely leased by Tenant) may be Tenant’s then current logo design; provided such signage shall be subject to Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

4.24        Subordination.

4.24.1     Tenant subordinates this Lease and all rights of Tenant under this Lease to any mortgage, deed of trust, ground lease or similar instrument which may from time to time be placed upon the Premises (and all renewals, modifications, replacements and extensions of such encumbrances), and each such mortgage, deed of trust, ground lease or other instrument shall be superior to and prior to this Lease.  Notwithstanding the foregoing, the holder or beneficiary of such mortgage, deed of trust, ground lease, vendor’s lien or similar instrument shall have the right to subordinate or cause to be subordinated any such mortgage, deed of trust, ground lease, vendor’s lien or similar instrument to this Lease or to execute a non-disturbance agreement in favor of Tenant on the standard form utilized by such lender or ground lessor.  At the request of Landlord, the holder of such mortgage or deed of trust or any ground lessor, Tenant shall execute, acknowledge and deliver promptly in recordable form any instrument or subordination agreement that Landlord or such holder may request.  Tenant further covenants and agrees that if the lender or ground lessor acquires the Premises as a purchaser at any foreclosure sale or otherwise, Tenant shall recognize and attorn to such party as landlord under this Lease, and shall make all payments required hereunder to such new landlord without deduction or set-off and, upon the request of such purchaser or other successor, execute, deliver and acknowledge documents confirming such attornment.  Tenant waives the provisions of any law or regulation, now or hereafter in effect, which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease or the obligations of Tenant hereunder in the event that any such foreclosure or termination or other proceeding is prosecuted or completed.

4.24.2     If at any time during the Lease Term the Building is encumbered by a mortgage, then, upon Tenant’s written request, Landlord shall use commercially reasonable efforts to obtain for Tenant, at no cost to Landlord, a subordination, non-disturbance and attornment agreement from the holder of such mortgage, in the standard form customarily employed by such holder, provided that Landlord shall have no liability to Tenant, and the effectiveness of this Lease and the subordination of this Lease to any mortgage shall not be affected, in the event that it is unable to obtain any such agreement. Tenant shall reimburse Landlord, within ten (10) Business Days after demand therefor, for Landlord’s out-of-pocket costs, including fees charged by the holder(s) of any mortgage(s) and its or their counsel and other reasonable attorney’s fees and disbursements, incurred in connection with such efforts.

4.24.3     As of the date of this Lease, there are no mortgages encumbering the Building.  If at any time during the Lease Term the Building is encumbered by a mortgage, then upon Tenant’s written request, Landlord shall use commercially reasonable efforts to obtain for Tenant, at no cost to Landlord, a subordination, non-disturbance and attornment agreement from the holder of such mortgage, in the standard form customarily employed by such holder, provided that Landlord shall have no liability to Tenant, and the effectiveness of this Lease and the subordination of this Lease to any mortgage shall not be affected, in the event that it is unable to obtain any such agreement. Tenant shall reimburse Landlord, within ten (10) days after demand therefor, for Landlord’s reasonable out-of-pocket costs, including fees charged by the holder(s) of any mortgage(s) and its or their counsel and other reasonable attorney’s fees and disbursements, incurred in connection with such efforts.