Northwest Park Office Lease by and between the registrant and NWP Building 32 LLC, dated as of November 4, 2016
BY AND BETWEEN
NWP BUILDING 32 LLC
FOR PREMISES AT
30 NORTH AVENUE
TABLE OF CONTENTS
ARTICLE 1 REFERENCE DATA
SUBJECT REFERRED TO
ARTICLE 2 PREMISES AND TERM
ARTICLE 3 IMPROVEMENTS
PERFORMANCE OF WORK AND APPROVAL OF LANDLORDS WORK
ACCEPTANCE OF THE PREMISES
ARTICLE 4 RENT
|THE FIXED RENT||8|
Real Estate Taxes
Personal Property Taxes
|LATE PAYMENT OF RENT||13|
|LETTER OF CREDIT||13|
Amount of Security
Renewal of Letter of Credit
Draws to Cure Defaults
Draws to Pay Damages
Draws for Failure to Deliver Substitute Letter of Credit
Return of Letter of Credit at End of Term
ARTICLE 5 LANDLORDS COVENANTS
Heat and Air-Conditioning
Elevator; Fire Alarm
ARTICLE 6 TENANTS ADDITIONAL COVENANTS
Repair and Maintenance; Cleaning
Compliance with Law
Landlords Right to Enter
Personal Property at Tenants Risk
Payment of Landlords Cost of Enforcement
Rules and Regulations
Landlords Expenses Re Consents
Assignment and Subletting
Hazardous Wastes and Materials
Floor Load; Heavy Equipment
Installation, Alterations or Additions
Parking and Storage
ARTICLE 7 CASUALTY OR TAKING
ARTICLE 8 DEFAULTS
EVENTS OF DEFAULT
LANDLORDS RIGHT TO CURE DEFAULTS
EFFECT OF WAIVERS OF DEFAULT
NO WAIVER, ETC
NO ACCORD AND SATISFACTION
ARTICLE 9 RIGHTS OF MORTGAGE HOLDERS
RIGHTS OF MORTGAGE HOLDERS
LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES
ARTICLE 10 MISCELLANEOUS PROVISIONS
NOTICES FROM ONE PARTY TO THE OTHER
LEASE NOT TO BE RECORDED
LIMITATION OF LANDLORDS LIABILITY
APPLICABLE LAW AND CONSTRUCTION; MERGER; JURY TRIAL
USA PATRIOT ACT
EXECUTION AND DELIVERY
Subject Referred To.
Each reference in this Lease to any of the following subjects shall be construed to incorporate the data stated for that subject in this Section 1.1.
Date of this Lease:
|November 4, 2016|
|The two-story building in Northwest Park in Burlington, Massachusetts (hereinafter referred to as the Park) on a parcel of land described in a deed recorded in Middlesex County South Registry of Deeds in Book11696, Page328, and known as 30 North Avenue (the Building and such parcel of land hereinafter being collectively referred to as the Property).|
|A portion of the second (2nd) floor of the Building, substantially as shown on Exhibit A attached hereto.|
Rentable Floor Area of Premises:
|Approximately 7,239 rentable square feet (subject to Section 2.1)|
|NWP Building 32 LLC, a Massachusetts limited liability company|
Original Notice Address of Landlord:
c/o Nordblom Management Company, Inc.
71 Third Avenue
Burlington, Massachusetts 01803
|Avedro, Inc., a Delaware corporation|
Original Notice Address of Tenant:
30 North Avenue
Burlington, MA 01803
Attn: Brian Roberts, CFO
with a copy to:
500 Boylston Street, 14th Floor
Boston, MA 02116
Attn: Marc Recht, Esq.
|See Section 2.2|
Rent Commencement Date:
|The date that is sixty (60) days after the Commencement Date.|
|The last day of the Partial Lease Year (as defined in Section 2.2)|
Target Delivery Date:
|January 1, 2017|
Annual Fixed Rent Rate:
Commencement Date Rent
Commencement Date: $0.00
Rent Commencement Date end of Lease
Year 1: $86,868.00
Lease Year 2: $90,492.00
Lease Year 3: $94,104.00
Lease Year 4: $97,728.00
Lease Year 5: $101,352.00
Lease Year 6: $104,964.00
Partial Lease Year: $104,964.001
Monthly Fixed Rent Rate:
Commencement Date Rent
Commencement Date: $0.00
Rent Commencement Date end of Lease
Year 1: $7,239.00
Lease Year 2: $7,541.00
Lease Year 3: $7,842.00
Lease Year 4: $8,144.00
Lease Year 5: $8,446.00
Lease Year 6: $8,747.00
Partial Lease Year: $8,747.00
Letter of Credit Amount:
|$50,652.00 (subject to reduction as set forth in Section 4.4)|
|The ratio of the Rentable Floor Area of the Premises to the total rentable area of the Building, which shall initially be deemed to be 12.06%.|
Initial Estimate of Tenants Percentage of Taxes for the Tax Year:
Initial Estimate of Tenants Percentage of Operating Costs for the Calendar Year:
|Light manufacturing and administrative offices|
Public Liability Insurance Limits:
Commercial General Liability:
$1,000,000 per occurrence
$2,000,000 general aggregate
Commercial Excess Liability and/or Umbrella:
$5,000,000 general aggregate
$5,000,000 per occurrence
The Exhibits listed below in this section are incorporated in this Lease by reference and are to be construed as a part of this Lease.
This an annualized rate based on the rate in effect for the Partial Lease Year.
|Plan showing the Premises.|
|Commencement Date Notification|
|Work Change Order|
|Form Letter of Credit|
|Rules and Regulations|
|Construction Rules and Regulations|
|Form Tenant Estoppel Certificate|
|Landlords Consent and Waiver|
Premises and Term
Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, subject to and with the benefit of the terms, covenants, conditions and provisions of this Lease, the Premises, excluding the roof, exterior faces of exterior walls, the common stairways, stairwells, elevators and elevator shafts, and pipes, ducts, conduits, wires, and appurtenant fixtures serving exclusively or in common other parts of the Building (and any areas, such as the space above the ceiling or in the walls, that may contain such pipes, ducts, conduits, wires or appurtenant fixtures), and if Tenants space includes less than entire rentable area of any floor, excluding the central core area of such floor.
Tenant shall have, as appurtenant to the Premises, rights to use in common, subject to reasonable rules of general applicability to tenants of the Building from time to time made by Landlord of which Tenant is given notice: (a) the common lobbies, hallways, stairways, loading docks and elevators of the Building, (b) common walkways and driveways necessary for access to the Building, (c) the common parking areas serving the Building, and (d) if the Premises include less than the entire rentable area of any floor, the common toilets and other common facilities in the central core area of such floor.
Tenant shall be permitted to use twenty-five (25) parking spaces in the parking area serving the Building.
Landlord reserves the right from time to time, without unreasonable interference with use of the Premises: (a) to install, use, maintain, repair, replace and relocate for service to the Premises and other parts of the Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the Premises or Building (provided the same, to the extent within the Premises, shall be located, to the extent reasonably practicable, in the central core area of the Building, within the ceiling plenum, behind the walls or below the floors, or within the chases, risers, ducts, conduits, lines, shafts or similar concealed areas), (b) to alter or relocate any other common facility and/or common areas of the Building, (c) to make any repairs and replacements to the Premises which Landlord may deem necessary, and (d) in connection with any excavation made upon adjacent land of Landlord or others, to enter, and to license others to enter, upon the Premises to do such work as the person causing such excavation deems necessary to preserve the wall of the Building from injury or damage and to support the same. Except in the case of emergency, Landlord shall provide Tenant with reasonable prior notice (which notice may be given verbally) of any such access to the Premises for any of the foregoing.
Notwithstanding anything to the contrary contained in this Lease, Tenant acknowledges that Landlord is planning on altering portions of the common areas of the Building (such alterations the Common Area Work), and that as part of the Common Area Work the demising walls of the Premises may need to be relocated (it being agreed any such relocation of demising walls will occur prior to the Commencement Date). Tenant acknowledges that, to perform certain portions of the Common Area Work, Landlord may need access to, and perform work within, the Premises. Tenant agrees that Landlord shall be permitted to enter the Premises and perform the Common Area Work during normal business hours, and Tenant shall cooperate with Landlords reasonable requirements to facilitate such Common Area Work. Landlord shall use reasonable efforts while conducting such activities to minimize any interference with Tenants use of the Premises. To the extent that the demising walls of the Premises were relocated as part of the Common Area Work then, within sixty (60) days of completion of the Common Area Work, Landlord shall verify the new measurement of the Premises, and the pertinent economic terms (including parking rights) set forth under this Lease affected by the size of the Premises shall be adjusted to account for such new measurement (it being agreed that in no event shall the measurement of the Premises vary by more than five hundred (500) rentable square feet from what is listed in Section 1.1). Landlord and Tenant agree to enter into a letter agreement or amendment to this Lease memorializing such adjustments, if applicable, but failure of the parties to execute such a document shall have no effect on the effectiveness of the adjustment of the Premises pursuant to this paragraph and the economic terms associated therewith.
Term. TO HAVE AND TO HOLD for an original term (the Original Term) beginning on the Commencement Date, which shall be the earlier of (a) the date on which the work to be performed by Landlord pursuant to Exhibit C (Landlords Work) has been substantially completed or (b) the opening by Tenant of its business in the Premises (as distinct from working in the Premises to install its furniture, fixtures, wiring and equipment), and ending on the Expiration Date, unless sooner terminated as hereinafter provided. The term substantially completed as used herein shall mean that the work to be performed by Landlord pursuant to Exhibit C has been completed with the exception of minor items which can be fully completed without material interference with Tenant and other items which because of the season or weather or the nature of the item are not practicable to do at the time, provided that none of said items is necessary to make the Premises tenantable for the Permitted Uses. However, if Landlord is delayed from Substantially Completing Landlords Work on or before the Target Delivery Date because of a Tenant Delay (defined below), then Landlords Work shall be deemed to be Substantially Completed on the date that such work would have been Substantially Completed but for such Tenant Delay (but Landlord shall not be relieved of the obligation to actually complete Landlords Work).
The phrase, Tenant Delay, shall be defined as any delay in the completion of Landlords Work caused by (i) special work, upgrades or long lead-time items for which Landlord identifies a specified period of delay (it being agreed that Tenant shall not select any item that Landlord identifies as long lead-time items), and in either instance Tenant does not withdraw or alter such special work, upgrade, long lead-time item which avoids such delay, (ii) any changes to any plans made by Tenant, or any Work Change Order requested by Tenant, in any case for which Landlord identifies a specified period of delay at the time of its approval and for which Tenant does not withdraw such change to avoid delay, (iii) the delay of Tenant or its architects and engineers in providing or approving any plans, specifications, pricing or estimates or giving authorizations or supplying information reasonably required by Landlord or its general contractor within three (3) business days after request therefor, (v) any failure by any contractors employed by Tenant including, without limitation, contractors furnishing telecommunications, data processing or other service or equipment directly to Tenant (and not via Landlords contractors) to comply with the agreed upon timetables for coordination of the parties respective components of work, as established at on-site progress meetings between Landlords representative and Tenants representative, (vi) any failure by Tenant to comply with the terms of the Lease, including but not limited to Article 3, or any material interference with the performance of Landlords Work by Tenant or any of its agents, employees, architects, engineers or contractors (including but not limited to delays caused by the acts or omissions of Tenant or such parties), (vii) Tenants delay in delivering the initial Cash Deposit and/or Original Letter of Credit required pursuant to Section 4.4 or (viii) Tenants failure to sign and deliver this Lease to Landlord on before October 5, 2016.
When the dates of the Commencement Date and Rent Commencement Date have been determined, such dates shall be evidenced by a document, in the form attached hereto as Exhibit B, which Landlord shall complete and deliver to Tenant, and which shall be deemed conclusive unless Tenant shall notify Landlord of any disagreement therewith within ten (10) days of receipt.
The term Lease Year as used herein shall mean a period of twelve (12) consecutive full calendar months. The first Lease Year shall begin on the Commencement Date if the Commencement Date is the first day of a calendar month; if not, then the first Lease Year shall commence upon the first day of the calendar month next following the Commencement Date. Each succeeding Lease Year shall commence upon the anniversary date of the first Lease Year. The term Partial Lease Year shall mean the time period comprised of the first two (2) full calendar months of the seventh (7th) Lease Year.. The Partial Lease Year shall begin on the first day following the end of the sixth (6th) Lease Year.
Extension Option. A. Tenant shall have the option (the Extension Option) to extend the Term of this Lease for one additional period of five (5) years, to begin immediately upon the expiration of the Original Term of this Lease (the Extended Term), provided that each of the following conditions has been satisfied:
(i) As of the date of the Extension Notice (defined below) and as of the commencement of the Extended Term, Tenant shall not be in default and shall not have previously been in default of its obligations under this Lease beyond any applicable grace period;
(ii) Tenant shall have had a net income for the 12-month period immediately preceding the date of the Extension Notice and for the 12-month period immediately preceding the commencement of the Extended Term; and
(iii) Simultaneously with the delivery of the Extension Notice and also at the commencement of the Extended Term, Tenant shall have delivered to Landlord an audited statement (or, if such audited statement is not available, then an unaudited statement signed and certified by Tenants Chief Financial Officer), prepared by Tenants accountant using generally accepted accounting principles, evidencing such net income during each of the periods specified in clause (ii) hereinabove.
B. All of the terms, covenants and provisions of this Lease shall apply to the Extended Term except that the Annual Fixed Rent Rate for such extension period shall be the market rate at the commencement of the Extended Term (Market Rate), as designated by Landlord (subject to Tenants right to dispute the same and the dispute resolution mechanism set forth below). If Tenant shall elect to exercise this Extension Option, it shall do so by giving Landlord written notice (the Extension Notice) of its intention to do so no earlier than twelve (12) months and no later than nine (9) months prior to the expiration of the Original Term of this Lease, time being of the essence thereof. If timely and properly Tenant gives such notice and satisfies the conditions specified above, the extension of this Lease shall be automatically effected without the execution of any additional documents. The Original Term and the Extended Term are hereinafter collectively called the Term or the term.
C. Not later than thirty (30) days following the giving of Tenants Extension Notice, Landlord shall notify Tenant of Landlords determination of the Market Rate for the Extended Term. Within fifteen (15) days after Landlord gives Tenant Landlords determination of the Market Rate, Tenant shall notify Landlord whether Tenant accepts or disputes such rate. If Tenant disagrees with Landlords determination, then Landlord and Tenant shall commence negotiations to agree upon the Market Rate. In any event, the Annual Fixed Rent Rate for the Extended Term shall not be less than the Annual Fixed Rent Rate in effect immediately prior to the Extended Term. If Landlord and Tenant are unable to reach agreement on the Market Rate within thirty (30) days after the date on which Landlord first gave Tenant Landlords proposal for the Market Rate, then the Market Rate shall be determined as provided below.
D. If Landlord and Tenant are unable to agree on the Market Rate by the end of said thirty (30)-day period, then within ten (10) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Market Rate. If the higher of such estimates is not more than one hundred five percent (105%) of the other estimate, then the Market Rate shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Market Rate shall be determined by an independent arbitrator as set forth below.
E. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable commercial real estate broker or appraiser licensed in the Commonwealth of Massachusetts specializing in the field of commercial office leasing in the Burlington area, having no less than ten (10) years experience (an Approved Arbitrator). If the parties cannot agree on such person, then within a second period of seven (7) business days, each shall select one Approved Arbitrator and the two appointed Arbitrators shall, within five (5) business days, select a third Approved Arbitrator who shall be the final decision-maker (the Final Arbitrator). If one party shall fail to timely make such appointment, then the person chosen by the other party shall be the sole arbitrator. Once the Final Arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Market Rate by selecting either the Landlords estimate of Market Rate or the Tenants estimate of Market Rate. Such arbitrator must choose the
proposed Market Rate that he/she determines is closest to the actual market rental rate for the Premises. There shall be no discovery or similar proceedings. The arbitrators decision as to which estimate shall be the Market Rate for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Annual Fixed Rent for the Extended Term. The costs of the Final Arbitrator will be equally divided between Landlord and Tenant. Any fees of any Approved Arbitrator or counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such Approved Arbitrator or counsel. If the dispute between the parties as to a market rate has not been resolved before the commencement of the Extended Term, then Tenant shall pay Fixed Rent under the Lease based upon the market rate designated by Landlord until either the agreement of the parties as to the market rate, or the decision of the Final Arbitrator, as the case may be, at which time Tenant shall pay any underpayment of Fixed Rent to Landlord, or Landlord shall refund any overpayment of Fixed Rent to Tenant.
F. Once the Market Rate has been determined, the parties shall promptly execute an amendment to this Lease setting forth the Fixed Rent for the Premises during the Extended Term.
G. Tenants rights to extend pursuant to this Section 2.3 are personal to the initial named Tenant, Avedro, Inc., and, except to a Permitted Transferee (as defined in Section 6.2.1), may not be assigned under any circumstances.
H. With respect to any assignment or subletting during the Original Term of this Lease, such assignment shall not include the right granted to Tenant under this Section 2.3 hereinabove to extend the Term, and such sublease shall be for a term expiring no later than the Expiration Date.
Performance of Work and Approval of Landlords Work. Landlord shall cause to be performed the work required by Exhibit C, the Work Letter, and consistent with the space plan attached hereto as Exhibit C-1. All such work shall be done in a good and workmanlike manner employing Building-standard materials and finishes and so as to conform to all applicable building laws and codes (as such laws and codes, including but not limited to all Federal and State laws and codes, are enforced by the Town of Burlington, Massachusetts). Tenant agrees that Landlord may make any changes in such work which may become reasonably necessary or advisable, other than substantial changes, without approval of Tenant, provided written notice is promptly given to Tenant, and provided such changes do not result in a quality or finish below Building-standard materials and finishes. Provided the Lease is fully executed on or before October 5, 2016, then Landlord shall use diligence to cause Landlords work to be substantially completed by the Target Delivery Date, subject to the provisions of Section 10.5 hereof and any Tenant Delay. Landlord agrees that Tenant may make changes in such work with the approval of Landlord and the execution by Landlord and Tenant of a Work Change Order, in the form attached hereto as Exhibit D.
If, for any reason other than a Tenant Delay or a delay attributable to Force Majeure, Landlords Work has not been Substantially Completed on or before February 1, 2017 (the Outside Delivery Date), then Tenant shall accrue one (1) day of free Fixed Rent for each day of delay after the Outside Delivery Date until the date Landlord has done so. Further, if, for any reason other than a Tenant Delay or a delay attributable to Force Majeure, Landlords Work has not been Substantially Completed on or before April 1, 2017, then Tenant shall have the right to terminate this Lease by giving written notice of such termination to Landlord, with such written notice to be given by Tenant no later than April 6, 2017 and such termination to be effective at the expiration of thirty (30) days from the giving of such notice; provided however, that such termination will be rendered ineffective if, prior to the expiration of said 30-day period, Landlord shall have Substantially Completed Landlords Work. The foregoing shall be Tenants sole remedies at law or in equity for Landlords failure to Substantially Complete Landlords Work.
Acceptance of the Premises. Tenant or its representatives may, at reasonable times, enter upon the Premises during the progress of the work to inspect the progress thereof and to determine if the work is being performed in accordance with the requirements of Section 3.1. Tenant shall promptly give to Landlord notices of any alleged failure by Landlord to comply with those requirements. Landlords Work shall be deemed approved by Tenant when Tenant occupies the Premises for the conduct of its business, except for items of Landlords Work which are uncompleted or do not conform to Exhibit C and as to which Tenant shall, in either case, have given written notice to Landlord prior to, or within five (5) days following, such occupancy. A certificate of completion by a licensed architect or registered engineer shall be conclusive evidence that Landlords Work has been completed except for items stated in such certificate to be incomplete or not in conformity with Exhibit C.
Early Access. Upon full execution of the Lease, Tenant may, prior to the Commencement Date (but following coordination with Landlord as to the timing), enter the Premises and without payment of rent, but otherwise subject to all the terms and conditions of this Lease, for the purpose of installing Tenants furniture, fixtures, wiring and equipment, provided that (i) Tenant shall not interfere with any work then being performed by or for Landlord in the Premises or Building, (ii) Tenant shall immediately cease its activities in the Premises in the event that Landlord notifies Tenant (which notice may be given orally) that Tenant is interfering with Landlord, and (iii) provided Tenant shall reimburse Landlord for Landlords actual costs incurred in connection with Tenants pre-commencement entry. All such work shall be done in accordance with, and Tenant shall comply with, the provisions of Section 6.2.5 hereof.
The Fixed Rent. (a) Commencing on the Rent Commencement Date, Tenant covenants and agrees to pay rent to Landlord, by electronic fund transfer (or by such other method, as set forth below, or to such other person or entity as Landlord may by notice in writing to Tenant from time to time direct), at the Annual Fixed Rent Rate, in equal installments at the Monthly Fixed Rent Rate (which is 1/12th of the Annual Fixed Rent Rate), in advance, without notice or demand, and without setoff, abatement, suspension, deferment, reduction or deduction, except as otherwise expressly provided herein, on the first day of each calendar month included in the term; and for any portion of a calendar month at beginning of the term, at the rate for the first lease year payable in advance for such portion. The term Additional Rent shall mean all sums other than Fixed Rent that are payable to Landlord under this Lease, including, without limitation all Operating Costs, Taxes, late charges, and interest.
(b) It is the intention of the parties hereto that the obligations of Tenant hereunder shall be separate and independent covenants and agreements, that the Annual Fixed Rent, the Additional Rent and all other sums payable by Tenant to Landlord shall continue to be payable in all events and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been abated or terminated pursuant to an express provision of this Lease.
(c) If Landlord shall give notice to Tenant that all rent and/or other payments due hereunder are to be made to Landlord by check, or by any other commercially reasonable means, Tenant shall make all such payments as shall be due after receipt of said notice by means as designated by Landlord, with such payments to be made to such address and to such person or entity as is specified by Landlord.
Additional Rent. Commencing on the Commencement Date, Tenant covenants and agrees to pay, as Additional Rent, insurance costs, utility charges, personal property taxes and its pro rata share of taxes and operating costs with respect to the Premises as provided in this Section 4.2 as follows:
Real Estate Taxes. Tenant covenants to pay to Landlord, as Additional Rent, for each tax period partially or wholly included in the term, Tenants Percentage of Taxes (as hereinafter defined). Tenant shall remit to Landlord, on the first day of
|each calendar month, estimated payments on account of Taxes, such monthly amounts to be sufficient to provide Landlord, by the time real estate tax payments are due and payable to any governmental authority responsible for collection of same, a sum equal to the Tenants Percentage of Taxes, as reasonably estimated by Landlord from time to time on the basis of the most recent tax data available. The initial calculation of the monthly estimated payments shall be based upon the Initial Estimate of Tenants Percentage of Taxes for the Tax Year and upon quarterly payments being due to the governmental authority on August 1, November 1, February 1 and May 1, and shall be made when the Commencement Date has been determined. If the total of such monthly remittances for any Tax Year is greater than the Tenants Percentage of Taxes for such Tax year, Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.1, the difference; if the total of such remittances is less than the Tenants Percentage of Taxes for such Tax Year, Tenant shall pay the difference to Landlord at least ten (10) days prior to the date or dates within such Tax Year that any Taxes become due and payable to the governmental authority (but in any event no earlier than twenty (20) days following a written notice to Tenant, which notice shall set forth the manner of computation of Tenants Percentage of Taxes). This section shall survive the expiration or earlier termination of the Lease.|
If, after Tenant shall have made reimbursement to Landlord pursuant to this subsection 4.2.1, Landlord shall receive a refund of any portion of Taxes paid by Tenant with respect to any Tax Year during the term hereof as a result of an abatement of such Taxes by legal proceedings, settlement or otherwise (without either party having any obligation to undertake any such proceedings), Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.1, the Tenants Percentage of the refund (less the proportional, pro rata expenses, including attorneys fees and appraisers fees, incurred in connection with obtaining any such refund), as relates to Taxes paid by Tenant to Landlord with respect to any Tax Year for which such refund is obtained.
In the event this Lease shall commence, or shall end (by reason of expiration of the term or earlier termination pursuant to the provisions hereof), on any date other than the first or last day of the Tax Year, or should the Tax Year or period of assessment of real estate taxes be changed or be more or less than one (1) year, as the case may be, then the amount of Taxes which may be payable by Tenant as provided in this subsection 4.2.1 shall be appropriately apportioned and adjusted.
The term Taxes shall mean all taxes, assessments, betterments and other charges and impositions (including, but not limited to, fire protection service fees and similar charges) levied, assessed or imposed at any time during the term by any governmental authority upon or against the Property, or taxes in lieu thereof, and additional types of taxes to supplement real estate taxes due to legal limits imposed thereon. If, at any time during the term of this Lease, any tax or excise on rents or other taxes, however described, are levied or assessed against Landlord with respect to the rent reserved hereunder, either wholly or partially in substitution for, or in addition to, real estate taxes assessed or levied on the Property, such tax or excise on rents shall be included in Taxes; however, Taxes shall not include franchise, estate, inheritance, succession, capital levy, transfer, income or excess profits taxes assessed on Landlord. Taxes shall include any estimated payment made by Landlord on account of a fiscal tax period for which the actual and final amount of taxes for such period has not been determined by the governmental authority as of the date of any such estimated payment. Any special assessments from any governmental authority which are not specifically charged to Tenant and which can be paid by Landlord in installments over a period in excess of one year, shall be paid by Landlord in the maximum number of installments permitted by law and not included as Taxes except in the year in which the installment is actually paid.
Personal Property Taxes. Tenant shall pay all taxes charged, assessed or imposed upon the personal property of Tenant in or upon the Premises.
Operating Costs. Tenant covenants to pay to Landlord the Tenants Percentage of Operating Costs (as hereinafter defined) incurred by Landlord in any calendar year. Tenant shall remit to Landlord, on the first day of each calendar month, estimated payments on account of Operating Costs, such monthly amounts to be sufficient to provide Landlord, by the end of the calendar year, a sum equal to the Operating Costs, as reasonably estimated by Landlord from time to time. The initial monthly estimated payments shall be in an amount equal to 1/12th of the Initial Estimate of Tenants Percentage of Operating Costs for the Calendar Year. If, at the expiration of the year in respect of which monthly installments of Operating Costs shall have been made as aforesaid, the total of such monthly remittances is greater than the actual Operating Costs for such year, Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.3, the difference; if the total of such remittances is less than the Operating Costs for such year, Tenant shall pay the difference to Landlord within twenty (20) days from the date Landlord shall furnish to Tenant an itemized statement of the Operating Costs, prepared, allocated and computed in accordance with generally accepted accounting principles. Any reimbursement for Operating Costs due and payable by Tenant with respect to periods of less than twelve (12) months shall be equitably prorated. This section shall survive the expiration or earlier termination of the Lease.
The term Operating Costs shall mean all costs and expenses incurred for the operation, cleaning, maintenance, repair and upkeep of the Property, and the portion of such costs and expenses with regard to the common areas, facilities, services and amenities of the Park which is equitably allocable to the Property, including, without limitation, all costs of maintaining and repairing the Property and the Park (including snow removal, landscaping and grounds maintenance, operation, repair and maintenance of parking lots (including lighting), sidewalks, walking paths, access roads and driveways, Property signage, repair and maintenance of the roof; security, operation and repair of heating and air-conditioning equipment, elevators, lighting and any other Building equipment or systems) and of all repairs and replacements (other than repairs or replacements for which Landlord has received full reimbursement from contractors, other tenants of the Building or from others) necessary to keep the Property and the Park in good working order, repair, appearance and condition; all costs, including material and equipment costs, for cleaning and janitorial services to the Building (including window cleaning of the Building); all costs of any reasonable insurance carried by Landlord relating to the Property; all costs related to provision of heat (including oil, electric, and/or gas), cooling, and water (including sewer charges), refuse disposal and other utilities to the Building (exclusive of reimbursement to Landlord for any of same received as a result of direct billing to any tenant of the Building); payments under all service contracts relating to the foregoing; all compensation, fringe benefits, payroll taxes and workmens compensation insurance premiums related thereto with respect to any employees of Landlord or its affiliates engaged in the operation, security and maintenance of the Property and the Park; attorneys fees and disbursements (exclusive of any such fees and disbursements incurred in tax abatement proceedings or the preparation of leases) and auditing and other professional fees and expenses; and a management fee in line with market rates for comparable properties providing comparable services and amenities in the Burlington, Massachusetts geographic market area..
There shall not be included in such Operating Costs:
(a) brokerage fees (including rental fees) related to the operation of the Building;
(b) interest and depreciation charges incurred on the Property;
(c) expenditures made by Tenant with respect to (i) cleaning, maintenance and upkeep of the Premises, and (ii) the provision of electricity to the Premises;
(d) leasing commissions, fees and costs, advertising and promotional expenses and other costs incurred in procuring tenants or in selling the Building, the Property or the Park;
(e) interest on indebtedness, debt amortization, ground rent and refinancing costs for any mortgage or ground lease of the Property or the Park;
(f) legal, auditing, consulting and professional fees and other costs paid or incurred in connection with financings, refinancings or sales of any of Landlords interest in the Property or the Park;
(g) cost of any work or service performed on an extra cost basis for any tenant in the Building or the Property to a materially greater extent or in a materially more favorable manner than furnished generally to the tenants and other occupants;
(h) costs of any items for which Landlord is actually paid or reimbursed by insurance, any tenant, or any third party;
(i) advertising, marketing and promotional expenditures other than for advertising for employees;
(j) any cost representing an amount paid to a person, firm, corporation or other entity related to Landlord that is in excess of the amount which would have been paid in the absence of such relationship;
(k) late fees or charges incurred by Landlord due to late payment of expenses, except to the extent attributable to Tenants actions or inactions;
(l) reserve funds;
(m) salaries or other compensation of employees above the grade of Senior Property Manager;
(n) costs of any cleanup, containment, abatement, removal or remediation of Hazardous Materials (as defined in Section 6.2.3) to the extent such were either (i) on the Property on the Date of this Lease or (ii) introduced onto the Property by Landlord;
(o) costs incurred in connection with bringing the Building into compliance with any laws and/or codes in effect and enforced prior to the Commencement Date; and
(p) capital expenditures, except as specifically provided for below.
If, during the term of this Lease, Landlord shall replace any capital items or make any capital expenditures which (a) are intended to reduce Operating Costs or (b) are required to comply with laws enacted after the date of this Lease, or (c) following the expiration of the first (1st) Lease Year, are required to replace worn-out items as may be necessary to maintain the Building in good working order, repair and condition and not to enhance the Building over and above its current appearance and condition (collectively called capital expenditures) the total amount of which is not properly included in Operating Costs for the calendar year in which they were made, there shall nevertheless be included in Operating Costs for each calendar year in which and after such capital expenditure is made the annual charge-off of such capital expenditure. (Annual charge-off shall be determined by (i) dividing the original cost of the capital expenditure by the number of years of useful life thereof [The useful life shall be reasonably determined by Landlord in accordance with generally accepted accounting principles and practices in effect at the time of acquisition of the capital item.]; and (ii) adding to such quotient an interest factor computed on the unamortized balance of such capital expenditure based upon an interest rate reasonably determined by Landlord as being the interest rate then being charged for long-term mortgages by institutional lenders on like properties within the locality in which the Building is located.) Provided, further, that if Landlord reasonably concludes on the basis of engineering estimates
that a particular capital expenditure will effect savings in Operating Costs and that such annual projected savings will exceed the annual charge-off of capital expenditure computed as aforesaid, then and in such events, the annual charge-off shall be determined by dividing the amount of such capital expenditure by the number of years over which the projected amount of such savings shall fully amortize the cost of such capital item or the amount of such capital expenditure; and by adding the interest factor, as aforesaid.
If during any portion of any year for which Operating Costs are being computed, the Building was not fully occupied by tenants or if not all of such tenants were paying fixed rent or if Landlord was not supplying all tenants with the services, amenities or benefits being supplied hereunder, actual Operating Costs incurred that vary due to occupancy shall be reasonably extrapolated by Landlord to the estimated Operating Costs that would have been incurred if the Building were fully occupied by tenants and all such tenants were then paying fixed rent or if such services were being supplied to all tenants, and such extrapolated amount shall, for the purposes of this Section 4.2.3, be deemed to be the Operating Costs for such year. Notwithstanding the foregoing, Landlord shall not recover in any given year more that 100% of the Operating Costs actually incurred by Landlord in such year.
Insurance. Tenant shall, at its expense, as Additional Rent, take out and maintain from the time Tenant first occupies the Premises for any purpose and throughout the Term the following insurance protecting Landlord:
Commercial general liability insurance and commercial excess liability insurance on follow form basis and/or umbrella naming Landlord, Tenant, and Landlords managing agent and any mortgagee of which Tenant has been given notice as insureds or additional insureds on a primary and non-contributory basis, in amounts which shall, at the beginning of the term, be at least equal to the limits set forth in Section 1.1; and, which, from time to time during the term, shall be for such higher limits, if any, as are customarily carried in the area in which the Premises are located on property similar to the Premises and used for similar purposes; and workmens compensation insurance with statutory limits covering all of Tenants employees working on the Premises, coverning the state in which the employee was hired, works and resides; and Employers liability insurance with minimum limits of Five Hundred Thousand Dollars ($500,000.00) each accident, bodily injury by accident; Five Hundred Thousand Dollars ($500,000.00) each employee, bodily injury by disease; and Five Hundred Thousand Dollars ($500,000.00) policy limit, bodily injury by disease.
Special Risk property insurance with the usual extended coverage endorsements covering all Tenants furniture, furnishings, fixtures and equipment, and business interruption insurance with limits not less than the equivalent of 12 months of rent, with extra expense coverage, and shall list Landlord as loss payee as their interests may appear.
Automobile liability insurance for all owned, leased, non-owned and hired vehicles. The minimum limit of liability shall be One Million Dollars ($1,000,000.00) each accident, combined single limit for bodily injury and property damage, naming Landlord as an additional insured on a primary and non-contributory basis.
All such policies shall be obtained from responsible companies having a policy rating of A-; X or better, as set forth in the most current issue of the Bests Key Rating Guide and which are qualified to do business and in good standing in Massachusetts. Tenant agrees to furnish Landlord with certificates evidencing all such insurance prior to the beginning of the term hereof and evidencing renewal thereof at least thirty (30) days prior to the expiration of any such policy. Tenant shall provide at least thirty (30) days prior written notice to Landlord should any of the policies required herein be cancelled. In the event provision for any such insurance is to be by a blanket insurance policy, the policy shall allocate a specific and sufficient amount of coverage to the Premises.
All insurance which is carried by either party with respect to the Building, Premises or to furniture, furnishings, fixtures, or equipment therein or alterations or improvements thereto, workmens compensation insurance, and all liability insurance, whether or not required, shall include provisions which either designate the other party as one of the insured or deny to the insurer acquisition by subrogation of rights of recovery against the other party to the extent such rights have been waived by the insured party prior to occurrence of loss or injury, insofar as, and to the extent that, such provisions may be effective without making it impossible to obtain insurance coverage from responsible companies qualified to do business in the state in which the Premises are located. Each party shall be entitled to have certificates of any policies containing such provisions. Each party hereby waives all rights of recovery against the other for loss or injury against which the waiving party is protected by insurance containing said provisions, reserving, however, any rights with respect to any excess of loss or injury over the amount recovered by such insurance. Tenant shall not acquire as insured under any insurance carried on the Premises.
Utilities. Commencing as of the Commencement Date, Tenant shall contract for and pay directly to the applicable public utility company all costs and charges for telephone service and for separately metered electricity and gas furnished or consumed on the Premises (Landlord hereby confirming such meters currently exist and are in good working order). Tenant shall reimburse Landlord through Operating Costs for all charges for water (including sewer charges) supplied by Landlord pursuant to Subsections 5.1.3. Tenant shall pay directly all charges for other utilities or services not supplied by Landlord, whether designated as a charge, tax, assessment, fee or otherwise, all such charges to be paid as the same from time to time become due. Except as otherwise provided in Article 5, it is understood and agreed that Tenant shall make its own arrangements for the installation or provision of all such utilities and that Landlord shall be under no obligation to furnish any utilities to the Premises and shall not be liable for any interruption or failure in the supply of any such utilities to the Premises.
Late Payment of Rent. If any installment of Fixed Rent or other sum due Landlord is paid after the date the same was due, and if on a prior occasion in the twelve (12) month period prior to the date such installment was due an installment of rent was paid after the same was due, then Tenant shall pay Landlord a late payment fee equal to five (5%) percent of the overdue payment. In addition, if any installment of rent or other sum due Landlord is not paid when due, such installment shall bear interest from the date due until paid, at the rate of 12% per year not to exceed the highest rate permitted by law.
Letter of Credit. The performance of Tenants obligations under this Lease shall be secured by a letter of credit throughout the term hereof in accordance with and subject to the following terms and conditions:
Amount of Security. (a) Concurrently with Tenants execution and delivery of this Lease, Tenant shall deposit with Landlord cash in the amount of the Letter of Credit Amount set forth in Section 1.1 (the Cash Deposit). The Cash Deposit paid by Tenant to Landlord shall be held by Landlord and be withdrawn and applied by Landlord under the same circumstances and for the same purposes as if it were a Letter of Credit (in accordance with the terms of Section 4.4). Upon any such application of all or part of the Cash Deposit by Landlord, Tenant shall, within five (5) days of written demand therefor, deliver to Landlord cash in the amount of the Cash Deposit so applied.
(b) Within fifteen (15) days of the Date of this Lease, Tenant shall deliver to Landlord an irrevocable standby letter of credit (the Original Letter of Credit) which shall be (i) in the form of Exhibit E attached to this Lease (the Form LC), (ii) issued by a commercial bank reasonably satisfactory to Landlord upon which
presentment may be made in Boston, Massachusetts, (iii) in the amount equal to the Letter of Credit Amount, and (iv) for a term of at least 1 year, subject to the provisions of Section 4.4.2 below. Within five (5) days of Tenants delivery of the Original Letter of Credit to Landlord, Landlord shall return the Cash Deposit (or so much of the same as remains following any withdrawal against the same pursuant to the terms above) to Tenant. The Original Letter of Credit, any Additional Letters(s) of Credit and Substitute Letter(s) of Credit are referred to herein as the Letter of Credit. Time is of the essence with regard to the delivery of the Original Letter of Credit.
(b) The Letter of Credit Amount may be reduced one (1) time during the Term (as set forth below) provided Tenant is not in default under this Lease at the time of the reduction, and has not previously been in default under this Lease. Provided Tenant satisfies the above conditions, the Letter of Credit Amount shall be reduced following the expiration of the thirty-eighth (38th) full calendar month following the Commencement Date (such date the Reduction Date) to an amount equal to $25,326.00 pursuant to the following procedures. Tenant shall provide Landlord with written notice of Tenants intent to reduce the Letter of Credit Amount pursuant to the terms hereof on or following the Reduction Date. Within thirty (30) days after Tenant receives written confirmation from Landlord that the conditions for reduction of the Letter of Credit Amount have been satisfied, Tenant shall provide Landlord with an amendment to the Letter of Credit or a Substitute Letter of Credit meeting all of the requirements of this Section 4.4 to accomplish such authorized reduction of the Letter of Credit, and Landlord will have no obligation to surrender the Letter of Credit unless and until receipt of the Substitute Letter of Credit or amended Letter of Credit in compliance with such requirements. In no event shall the Letter of Credit have an automatic reduction provision. In no event will the Letter of Credit at any time be reduced below $25,326.00. Tenant shall be responsible, at its sole expense, for taking all necessary steps to effect the reduction pursuant to the terms hereof, provided however that Landlord shall reasonably cooperate with Tenant to amend the Letter of Credit or obtain a Substitute Letter of Credit, as applicable, at no cost to Landlord.
Renewal of Letter of Credit. Each Letter of Credit shall be automatically renewable in accordance with the second to last paragraph of the Form LC; provided however, that Tenant shall be required to deliver to Landlord a new letter of credit (a Substitute Letter of Credit) satisfying the requirements for the Original Letter of Credit under Section 4.4.1 on or before the date 30 days prior to the expiration of the term of the Letter of Credit then in effect, if the issuer of such Letter of Credit (the Issuing Bank) gives notice of its election not to renew such Letter of Credit for any additional period pursuant thereto. Should any Letter of Credit contain a final expiration date, in addition to a current expiration date, such final expiration date shall be no earlier than 45 days following the Expiration Date of this Lease.
Draws to Cure Defaults. If the Fixed Rent, Additional Rent or any other sum payable to Landlord hereunder shall be overdue and unpaid or should Landlord make payments on behalf of the Tenant, or Tenant shall fail to perform any of the terms of this Lease in all cases beyond the expiration of all applicable notice and cure periods, then Landlord shall have the right, at any time thereafter to draw down from the Letter of Credit the amount necessary to cure such default. In the event of any such draw by the Landlord, Tenant shall, within 30 days of written demand therefor, deliver to Landlord an additional Letter of Credit (Additional Letter of Credit) satisfying the requirements for the Original Letter of Credit, except that the amount of such Additional Letter of Credit shall be the amount of such draw.
Draws to Pay Damages. In addition, if (i) this Lease shall have been terminated as a result of Tenants default under this Lease beyond the expiration of the applicable cure period, and/or (ii) this Lease shall have been rejected in a bankruptcy or other creditor-debtor proceeding, then Landlord shall have the right at any time thereafter to draw down from the Letter of Credit an amount sufficient to pay any and all damages payable by Tenant on account of such termination or rejection, as the case may be, pursuant to Article 8 hereof. In the event of bankruptcy or other creditor-
|debtor proceeding against Tenant, all proceeds of the Letter of Credit shall be deemed to be applied first to the payment of rent and other charges due Landlord for all periods prior to the filing of such proceedings.|
Issuing Bank. In the event the Issuing Bank becomes insolvent, or if Landlord reasonably believes the Issuing Bank is financially troubled or at risk of becoming insolvent, or if the Issuing Bank is placed into receivership or conservatorship by the Federal Deposit Insurance Corporation (or any successor or similar entity), or if a trustee, receiver or liquidator is appointed for the Issuing Bank, then, effective as of the date of such occurrence, the Letter of Credit shall be deemed to not meet the requirements of this Section 4.4 and Tenant shall, within ten (10) business days of written notice from Landlord, deliver to Landlord a Substitute Letter of Credit which otherwise meets the requirements of this Section, or, alternatively at Landlords discretion, Tenant shall, within such five-day period deliver cash to Landlord in the Letter of Credit Amount, which Landlord shall hold as Security Proceeds which shall be governed by subject to the provisions of Section 4.4.6 below.
Draws for Failure to Deliver Substitute Letter of Credit. If Tenant fails timely to deliver to Landlord a Substitute Letter of Credit, then Landlord shall have the right, at any time thereafter, without giving any notice to Tenant, to draw down the Letter of Credit and to hold the proceeds thereof (Security Proceeds) in a bank account in the name of Landlord, which may be withdrawn and applied by Landlord under the same circumstances and for the same purposes as if the Security Proceeds were a Letter of Credit. Upon any such application of Security Proceeds by Landlord, Tenant shall, within 30 days of written demand therefor, deliver to Landlord an Additional Letter of Credit in the amount of Security Proceeds so applied.
Transferability. Landlord shall be entitled to transfer its beneficial interest under the Letter of Credit or any Security Proceeds in connection with (i) Landlords sale or transfer of the Building, or (ii) the addition, deletion or modification of any beneficiaries under the Letter of Credit, and the Letter of Credit shall specifically state on its face that it is transferable by Landlord, its successors and assigns. Tenant agrees to pay Landlord upon demand, as Additional Rent, all costs and fees charged to effect such transfer.
Return of Letter of Credit at End of Term. Within 45 days after the expiration of the term, to the extent Landlord has not previously drawn upon any Letter of Credit or Security Proceeds held by Landlord, Landlord shall return the same to Tenant provided that there is not at such time any continuing default of any of Tenants obligations under this Lease.
Affirmative Covenants. Landlord covenants with Tenant:
Heat and Air-Conditioning. To furnish to the Premises heat and air-conditioning (reserving the right, at any time, to change energy or heat sources), separately metered for gas and at the direct expense of Tenant as provided in Section 4.2.5 above, sufficient to maintain the Premises at comfortable temperatures (subject to all federal, state, and local regulations relating to the provision of heat). The heat and air-conditioning temperatures will be controlled by Tenant pursuant to the thermostat in the Premises.
Electricity. To furnish to the Premises, separately metered and at the direct expense of Tenant as hereinabove provided, reasonable electricity for Tenants Permitted Uses. If Tenant shall require electricity in excess of reasonable quantities for Tenants Permitted Uses and if (i) in Landlords reasonable judgment, Landlords facilities are inadequate for such excess requirements, or (ii) such excess use shall result in an additional burden on the Building utilities systems and additional cost to Landlord on account thereof, as the case may be, (a) Tenant shall, upon demand,
|reimburse Landlord for such additional cost, as aforesaid, or (b) Landlord, upon written request, and at the sole cost and expense of Tenant, will furnish and install such additional wire, conduits, feeders, switchboards and appurtenances as reasonably may be required to supply such additional requirements of Tenant (if electricity therefor is then available to Landlord), provided that the same shall be permitted by applicable laws and insurance regulations and shall not cause permanent damage or injury to the Building or cause or create a dangerous or hazardous condition or entail excessive or unreasonable alterations or repairs.|
Cleaning; Water. To provide cleaning to the common areas on business days in accordance with cleaning and janitorial standards generally prevailing throughout the term hereof in comparable office buildings within the municipality in which the Building is located (it being agreed cleaning of the Premises is Tenants obligation pursuant to subsection 6.1.3 below); and to furnish water for ordinary cleaning, lavatory and toilet facilities..
Elevator; Fire Alarm. To furnish elevator service (once constructed); and to maintain fire alarm systems within the Building.
Repairs. Except as otherwise expressly provided herein, to make such repairs and replacements to the roof, exterior walls, floor slabs and other structural components of the Building, and to the common areas, facilities and plumbing, electrical, heating, ventilating and air-conditioning systems of the Building as may be necessary to keep them in good repair and condition (exclusive of equipment installed by Tenant and except for those repairs required to be made by Tenant pursuant to Section 6.1.3 hereof and repairs or replacements occasioned by any act or negligence of Tenant, its servants, agents, customers, contractors, employees, invitees, or licensees).
Indemnification. Landlord shall save harmless, exonerate and indemnify Tenant, its agents and employees (such agents and employees being referred to collectively as the Tenant Related Parties) from and against any and all claims, liabilities or penalties asserted by or on behalf of any person, firm, corporation or public authority on account of injury, death, damage or loss to person or property in or upon the common area of the Property arising out of the gross negligence or intentional misconduct of Landlord, except if the same was caused by the negligence, fault or misconduct of Tenant or the Tenant Related Parties. In respect of all of the foregoing, Landlord shall indemnify Tenant and the Tenant Related Parties from and against all costs, expenses (including reasonable attorneys fees), and liabilities incurred in or in connection with any such claim, action or proceeding brought thereon; and, in case of any action or proceeding brought against Tenant or the Tenant Related Parties by reason of any such claim, Landlord, upon notice from Tenant and at Landlords expense, shall resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Tenant provided that Tenant shall be deemed to have approved counsel provided by Landlords liability insurer. The preceding indemnification shall expressly survive the expiration or earlier termination of this Lease.
Interruption. A. Landlord shall be under no responsibility or liability for failure or interruption of any of the above-described utility services, or conditions arising in or about the Property caused by breakage, accident, strikes, repairs, inability to obtain supplies, labor or materials, or for any other causes beyond the control of the Landlord, and in no event for any indirect or consequential damages to Tenant; and failure or omission on the part of the Landlord to furnish any of same for any of the reasons set forth in this paragraph shall not be construed as an eviction of Tenant, actual or constructive, nor entitle Tenant to an abatement of rent, nor render the Landlord liable in damages, nor release Tenant from prompt fulfillment of any of its covenants under this Lease. However in each instance of failure or interruption Landlord shall use reasonable efforts to restore the unavailable service or remedy the condition following written notice from Tenant.
B. Notwithstanding the foregoing, if an event or circumstance (an Abatement Event) shall occur that causes an interruption or curtailment, suspension or stoppage of an
Essential Service that reasonably prevents Tenant from using the entire Premises, or any material portion thereof, as a result of Landlords failure to provide any Essential Service (defined below) required to be provided by Landlord under this Lease, provided that such failure or Landlords inability to remedy such event or circumstance is not due to Force Majeure or a cause beyond Landlords reasonable control generally affecting other buildings in the vicinity (such as a neighborhood power outage or other off-site occurrence) or the act or negligence of Tenant, its employees, vendors, or contractors, or any party claiming by, through or under Tenant then Tenant shall give Landlord notice (an Abatement Notice) of any such Abatement Event. If such Abatement Event continues beyond the Eligibility Period (defined below), then the Monthly Fixed Rent and monthly charges on account of Operating Costs and Taxes shall be abated entirely or proportionately, as the case may be, after the expiration of the Eligibility Period for such time that Tenant continues to be so prevented from using, and does not use, the Premises or a portion thereof, in the proportion that the rentable area of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total rentable area of the Premises. Tenant shall not be entitled to any abatement of Rent if Tenant is then in default of any of its obligations under this Lease. The term Eligibility Period shall mean a period of five (5) consecutive business days after Landlords receipt of any Abatement Notice(s). For purposes hereof, the term Essential Services shall mean the following services required to be provided by Landlord under this Lease: water and sewer service, HVAC, gas and electricity. The provisions of this paragraph shall not apply to any Abatement Event caused by fire or other damage or destruction to the Building, which shall be covered by Article 7 of this Lease.
Outside Services. In the event Tenant wishes to provide outside services for the Premises over and above those services to be provided by Landlord as set forth herein, Tenant shall first obtain the prior written approval of Landlord (which shall not be unreasonably withheld, delayed or conditioned) for the installation and/or utilization of such services (Outside services shall include, but shall not be limited to, cleaning services, television, so-called canned music services, security services, catering services and the like.) In the event Landlord approves the installation and/or utilization of such services, such installation and utilization shall be at Tenants sole cost, risk and expense.
Access. Subject to Landlords security requirements, if any, Tenant shall have access to the Premises, Building and parking area 24 hours per day, 7 days per week (provided Landlord shall have no obligations to ensure such access).
Tenants Additional Covenants
Affirmative Covenants. Tenant covenants at all times during the term and for such further time (prior or subsequent thereto) as Tenant occupies the Premises or any part thereof:
Perform Obligations. To perform promptly all of the obligations of Tenant set forth in this Lease; and to pay when due the Fixed Rent and Additional Rent and all charges, rates and other sums which by the terms of this Lease are to be paid by Tenant.
Use. To use the Premises only for the Permitted Uses, and from time to time to procure all licenses and permits necessary therefor (other than the initial Certificate of Occupancy), at Tenants sole expense. With respect to any licenses or permits for which Tenant may apply, pursuant to this subsection 6.1.2 or any other provision hereof, Tenant shall furnish Landlord copies of applications therefor on or before their submission to the governmental authority.
Repair and Maintenance; Cleaning. To maintain the Premises in neat order and condition and to perform all routine and ordinary repairs to the Premises and to any plumbing, heating, electrical, ventilating and air-conditioning systems located within the Premises and installed by Tenant such as are necessary to keep them in good working order, appearance and condition, as the case may require, reasonable use and wear thereof and damage by fire or by unavoidable casualty only excepted; to keep all glass in windows and doors of the Premises (except glass in the exterior
|walls of the Building) whole and in good condition with glass of the same quality as that injured or broken; and to make as and when needed as a result of misuse by, or neglect or improper conduct of Tenant or Tenants servants, employees, agents, invitees or licensees or otherwise, all repairs necessary, which repairs and replacements shall be in quality and class equal to the original work. (Landlord, upon default of Tenant hereunder beyond applicable notice and cure periods and upon prior notice to Tenant, may elect, at the expense of Tenant, to perform all such cleaning and maintenance and to make any such repairs or to repair any damage or injury to the Building or the Premises caused by moving property of Tenant in or out of the Building, or by installation or removal of furniture or other property, or by misuse by, or neglect, or improper conduct of, Tenant or Tenants servants, employees, agents, contractors, customers, patrons, invitees, or licensees.). Tenant shall also be responsible for cleaning to the Premises in accordance with cleaning and janitorial standards of the Building, so as to keep the same neat and clean at all times.|
Compliance with Law. To make all repairs, alterations, additions or replacements to the Premises required by any law or ordinance or any order or regulation of any public authority; to keep the Premises equipped with all safety appliances so required; and to comply with the orders and regulations of all governmental authorities with respect to zoning, building, fire, health and other codes, regulations, ordinances or laws applicable to the Premises, except that Tenant may defer compliance so long as the validity of any such law, ordinance, order or regulations shall be contested by Tenant in good faith and by appropriate legal proceedings, if Tenant first gives Landlord appropriate assurance or security against any loss, cost or expense on account thereof. Notwithstanding the foregoing, however, Tenant shall not be responsible for compliance with any such laws, regulations, or the like requiring (a) structural repairs or modifications; or (b) repairs or modifications to the utility or building service equipment; or (c) installation of new building service equipment, such as fire detection or suppression equipment, unless such repairs, modifications, or installations shall be due to Tenants particular manner of use of the Premises (as opposed to office use generally) or required on account of any work done by or on behalf of Tenant.
Indemnification. To indemnify, defend and hold harmless Landlord, its agents (including, without limitation, Landlords managing agent), partners, officers, directors, members, trustees, beneficiaries, shareholders, and employees (such parties being referred to collectively as the Landlord Related Parties) from and against any and all claims, demands, liabilities, penalties, fines, settlements, damages, loss, costs or expenses resulting from, arising out of, or in any way related to injury, death, damage or loss to person or property in or upon the Premises and the Property arising out of the use or occupancy of the Premises by Tenant or by any person claiming by, through or under Tenant (including, without limitation, all patrons, employees and customers of Tenant), the negligent acts or omissions or intentional misconduct of Tenant or any person claiming by, through or under Tenant, or on account of any breach by Tenant of its obligations under this Lease. or on account of or based upon anything whatsoever done on the Premises, except if the same was caused by the willful negligence, fault or misconduct of Landlord or the Landlord Related Parties. In respect of all of the foregoing, Tenant shall indemnify Landlord and the Landlord Related Parties from and against all costs and expenses (including reasonable attorneys fees), of whatever kind or nature incurred in or in connection with any such claim, action or proceeding brought thereon; and, in case of any action or proceeding brought against Landlord or the Landlord Related Parties by reason of any such claim, Tenant, upon notice from Landlord and at Tenants expense, shall resist or defend such action or proceeding and employ counsel therefor reasonably satisfactory to Landlord. The preceding indemnification shall expressly survive the expiration or earlier termination of this Lease.
Landlords Right to Enter. To permit Landlord and its agents to enter into and examine the Premises at reasonable times and upon no less than twenty-four (24)
|hours prior notice, (which notice may be given verbally, and except in the case of emergency, where no prior notice is required) and to show the Premises, and to make repairs to the Premises, and, during the last six (6) months prior to the expiration of this Lease, to keep affixed in suitable places notices of availability of the Premises. Landlord shall reasonably cooperate with Tenant so that, except in the case of emergencies, Tenants representative may accompany such persons who enter the Premises (it being agreed that Tenants failure or inability to have a representative present shall not inhibit Landlords right to enter as set forth herein).|
Personal Property at Tenants Risk. All of the furnishings, fixtures, equipment, effects and property of every kind, nature and description of Tenant and of all persons claiming by, through or under Tenant which, during the continuance of this Lease or any occupancy of the Premises by Tenant or anyone claiming under Tenant, may be on the Premises, shall be at the sole risk and hazard of Tenant and if the whole or any part thereof shall be destroyed or damaged by fire, water, rain or by the leakage or bursting or other defect of water pipes, steam pipes, or other pipes, sprinklers, lighting fixtures or other cause by theft, any acts or omissions of any other tenant of the Property, or from any other cause, no part of said loss or damage is to be charged to or to be borne by Landlord, except that Landlord shall in no event be indemnified or held harmless or exonerated from any liability to Tenant or to any other person, for any injury, loss, damage or liability to the extent prohibited by law.
Payment of Landlords Cost of Enforcement. To pay on demand Landlords expenses, including reasonable attorneys fees, incurred in enforcing any obligation of Tenant under this Lease which continues after the expiration of any notice and cure period or in curing any default by Tenant under this Lease which continues after the expiration of any notice and cure period as provided in Section 8.4.
Yield Up. At the expiration of the term or earlier termination of this Lease: to surrender all keys to the Premises; to remove all of its trade fixtures and personal property in the Premises; to deliver to Landlord stamped architectural plans showing the Premises at yield up (which may be the initial plans if Tenant has made no installations after the Commencement Date); to remove such installations made by it as Landlord may request (including computer and telecommunications wiring and cabling, it being understood that if Tenant leaves such wiring and cabling in a useable condition, Landlord, although having the right to request removal thereof, is less likely to so request) and all Tenants signs wherever located; to repair all damage caused by such removal and to yield up the Premises (including all installations and improvements made by Tenant except for trade fixtures and such of said installations or improvements as Landlord shall request Tenant to remove), broom-clean and in the same good order and repair in which Tenant is obliged to keep and maintain the Premises by the provisions of this Lease, normal wear and tear and casualty excepted. Tenant, at the time of making any installation, alteration, or improvement, may request in writing Landlords written permission to leave the same in the Premises at the expiration of earlier termination of this Lease. Landlord shall, after receipt of Tenants request, notify Tenant in writing as to whether such installation, alteration or improvement may or may not remain in the Premises at the expiration or earlier termination of this Lease. If Landlord so notifies Tenant that such installation, alteration, or improvement may remain in the Premises at the expiration or earlier termination of this Lease, Landlord shall thereafter not be permitted to request or require that the same be removed at the expiration or earlier termination of the Lease. Notwithstanding anything to the contrary contained herein, Tenant shall have no obligation to remove any of Landlords Work. Any property not so removed shall be deemed abandoned and, if Landlord so elects, deemed to be Landlords property, and may be retained or removed and disposed of by Landlord in such manner as Landlord shall determine and Tenant shall pay Landlord the entire cost and expense incurred by it in effecting such removal and disposition and in making any incidental repairs and replacements to the Premises and for use and occupancy during the period after the expiration of the term and prior to its performance of its obligations under this subsection 6.1.9. Tenant shall further indemnify Landlord against all loss, cost and damage resulting from Tenants failure and delay in surrendering the Premises as above provided.
If the Tenant remains in the Premises beyond the expiration or earlier termination of this Lease, such holding over shall be without right and shall not be deemed to create any tenancy, but the Tenant shall be a tenant at sufferance only at a daily holdover rate of rent during the first thirty (30) days of such holding over equal to one and one-half (1 1⁄2) times the Monthly Fixed Rent Rate and Additional Rent on account of Operating Costs and Taxes in effect as of the day prior to the expiration or termination of this Lease; and after the expiration of such 30-day period, at a rate equal to two (2) times the Monthly Fixed Rent Rate and Additional Rent on account of Operating Costs and Taxes last due as of the day prior to the date of expiration or earlier termination of this Lease, and shall otherwise be on the terms and conditions of this Lease as applicable, except that in no event shall any extension option, right of first offer or right of first refusal, or similar right or option be deemed applicable to such tenancy at sufferance.
Rules and Regulations. To comply with the Rules and Regulations set forth in Exhibit F, and with all reasonable Rules and Regulations of general applicability to all tenants of the Building hereafter made by Landlord, of which Tenant has been given notice; Landlord shall not be liable to Tenant for the failure of other tenants of the Building to conform to such Rules and Regulations, but Landlord shall not enforce any Rules and Regulations against Tenant in a discriminatory manner. Tenant shall cause all parties performing work on behalf of Tenant in or about the Premises and Building to comply with the Construction Rules and Regulations attached hereto as Exhibit F-1.
Estoppel Certificate. Upon not less than ten (10) business days prior written request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing, which may be in the form attached hereto as Exhibit G or in another form reasonably similar thereto, or such other form as Landlord may provide from time to time, certifying all or any of the following: (i) that this Lease is unmodified and in full force and effect, (ii) whether the term has commenced and Fixed Rent and Additional Rent have become payable hereunder and, if so, the dates to which they have been paid, (iii) whether or not Landlord is in default in performance of any of the terms of this Lease, (iv) whether Tenant has accepted possession of the Premises, (v) whether Tenant has made any claim against Landlord under this Lease and, if so, the nature thereof and the dollar amount, if any, of such claim, (vi) whether there exist any offsets or defenses against enforcement of any of the terms of this Lease upon the part of Tenant to be performed, and (vii) such further information with respect to the Lease or the Premises as Landlord may reasonably request. Any such statement delivered pursuant to this subsection 6.1.11 may be relied upon by any prospective purchaser or mortgagee of the Premises, or any prospective assignee of such mortgage. Tenant shall also deliver to Landlord such financial information as may be reasonably required by Landlord to be provided to any mortgagee or prospective purchaser of the Premises. If Tenant fails to deliver the estoppel certificate within the required time period, and such failure continues for an additional five (5) days following a second written request from Landlord, then Tenant shall be obligated to pay to Landlord, as Additional Rent within twenty (20) days of demand, a fee in the amount of $500.00 per day for each day that Tenant fails to deliver the requested estoppel in the period beginning on the day after the expiration of the initial 10-day period, and ending on the day Tenant actually delivers the estoppel.
Landlords Expenses Re Consents. To reimburse Landlord promptly on demand for all reasonable, out-of-pocket legal expenses incurred by Landlord in connection with all requests by Tenant for consent or approval hereunder.
Negative Covenants. Tenant covenants at all times during the term and such further time (prior or subsequent thereto) as Tenant occupies the Premises or any part thereof:
Assignment and Subletting. A. Not to assign, transfer, mortgage or pledge this Lease or to sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any part of the Premises or permit this Lease or the leasehold estate hereby created or any other rights arising under this Lease to be assigned, transferred, pledged or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the occupancy of the Premises by anyone other than Tenant without the prior written consent of Landlord, or as otherwise permitted hereunder for Permitted Transfers without Landlords consent. In the event Tenant desires to assign this Lease or sublet any portion or all of the Premises other than to a Permitted Transferee, Tenant shall notify Landlord in writing of Tenants intent to so assign this Lease or sublet the Premises and the proposed effective date of such subletting or assignment, and shall request in such notification that Landlord consent thereto. Except with respect to Permitted Transfers, Landlord may terminate this Lease in the case of a proposed assignment, or suspend this Lease pro tanto for the period and with respect to the space involved in the case of a proposed subletting, by giving written notice of termination or suspension to Tenant, with such termination or suspension to be effective as of the effective date of such assignment or subletting. If Landlord does not so terminate or suspend, Landlords consent shall not be unreasonably withheld, delayed or conditioned to an assignment or to a subletting, provided that the following conditions are met:
the assignee or subtenant shall use the Premises only for the Permitted Uses;
the Premises shall not be subject to more than one (1) sublease at any time, it being understood that multiple sublets of the Premises are not permitted;
the proposed assignee or subtenant has a net worth and creditworthiness reasonably acceptable to Landlord;
the amount of the aggregate rent to be paid by the proposed subtenant is not less than the then current sublease market rate for the Premises; and
the proposed assignee or subtenant is not then a tenant in the Building or the Park, or an entity with which Landlord is dealing or has dealt within the preceding six months regarding the possibility of leasing space in the Building or the Park, and Landlord actually has (or reasonably expects to have) available reasonably comparable space in the Park.
the proposed assignee or subtenant provides a representation and warranty regarding the Patriot Act provisions set forth in this Lease.
Tenant shall furnish Landlord with any information reasonably requested by Landlord to enable Landlord to determine whether the proposed assignment or subletting complies with the foregoing requirements, including without limitation, financial statements relating to the proposed assignee or subtenant. With respect to any assignment or subletting during the Original Term of this Lease other than to a Permitted Transferee, such assignment shall not include the right granted to Tenant under Section 2.3 to extend the Term, and such sublease shall be for a term expiring no later than the Expiration Date.
B. Tenant shall, as Additional Rent, reimburse Landlord promptly for Landlords reasonable out-of-pocket legal expenses incurred in connection with any request by Tenant for such consent. If Landlord consents thereto, no such subletting or assignment shall in any way impair the continuing primary liability of Tenant hereunder, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain the Landlords written approval in the case of any other subletting or assignment.
C. Except for Permitted Transfers, if for any assignment or sublease consented to by Landlord hereunder Tenant receives rent or other consideration, either initially or over the term of the assignment or sublease, in excess of the rent called for
hereunder, or in case of sublease of part, in excess of such rent fairly allocable to the part, after appropriate adjustments to assure that all other payments called for hereunder are appropriately taken into account and after deduction for reasonable marketing, legal and brokerage expenses of Tenant in connection with the assignment or sublease, to pay to Landlord as additional rent fifty (50%) percent of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt.
D. If at any time during the term of this Lease, there is a name change, Tenant shall so notify Landlord and deliver evidence reasonably satisfactory to Landlord documenting such name change. If, at any time during the Term of this Lease, there is a transfer of a Controlling Interest (as defined below) in the shares or stock of Tenant which are not publicly traded upon a stock exchange, or the membership or general partnership or other ownership interests of Tenant (any of the foregoing, an Equity Sale), or a restructuring or reorganization of the Tenant entity, including any spin-off, Tenant shall so notify Landlord and (whether or not Tenant so notifies Landlord) such Equity Sale, restructuring or reorganization shall be deemed an assignment of this Lease requiring Landlords consent as provided in this Section 6.2.1; provided however, Landlords consent shall not be required with respect to any Equity Sale, and any Equity Sale will not be deemed an assignment, if Tenant delivers to Landlord proof reasonably satisfactory to Landlord at least ten (10) days prior to the effective date of any such transaction (except to the extent prohibited by applicable securities laws or regulations, in which case notice shall be given as soon as permissible under such laws or regulations) that Tenants net worth immediately after such Equity Sale will be no less than Tenants net worth immediately before such Equity Sale. Controlling Interest shall mean having ownership of fifty percent (50%) or more of the outstanding voting stock of a corporation or other majority equity and control interest if not a corporation and the possession of power to direct or cause the direction of the management of such corporation or other entity.
E. The following terms and conditions shall apply to any subletting by Tenant of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:
Tenant hereby assigns and transfers to Landlord all of Tenants interest in all rentals and income arising from any sublease of all or a portion of the Premises heretofore or hereafter made by Tenant, and Landlord may collect such rent and income and apply same toward Tenants obligations under this Lease; provided, however, that until a default by Tenant hereunder shall occur under this Lease, Tenant may, except as otherwise provided in this Lease, receive, collect and enjoy the rents accruing under such sublease. Landlord shall not, by reason of this or any other assignment of such sublease to Landlord, nor by reason of the collection of the rents from a subtenant, be deemed liable to the subtenant for any failure of Tenant to perform and comply with any of Tenants obligations to such subtenant under such sublease. Tenant hereby irrevocably authorizes and directs any such subtenant, upon receipt of a written notice from Landlord stating that a default hereunder exists under this Lease, to pay to Landlord the rents and other charges due and to become due under the sublease. The subtenant shall rely upon any such statement and request from Landlord and shall pay such rents and other charges to Landlord without any obligation or right to inquire as to whether such breach exists and notwithstanding any notice from or claim from Tenant to the contrary. Tenant shall have no right or claim against said subtenant, or, until the breach has been cured, against Landlord, for any such rents and other charges so paid by said subtenant to Landlord.
In the event of a default by Tenant in the performance of its obligations under this Lease that results in a termination of this Lease, Landlord, at its option and without any obligation to do so, may require any subtenant to attorn to Landlord, in which event Landlord shall undertake the obligations
|of the sublandlord under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Landlord shall not be liable for any prepaid rents or security deposit paid by such subtenant to Tenant or for any other prior defaults or breaches of Tenant as sublandlord under such sublease.|
F. Any other provision of this Section 6.2.1 notwithstanding, Tenant shall have the right, without Landlords prior written consent and without any right of Landlord to terminate this Lease (i) to assign this Lease to an entity into or with which Tenant is merged or consolidated, whether or not Tenant is the surviving entity, or to an entity to which all or substantially all of Tenants stock or assets are transferred provided that in any of such events the successor entity (the Successor Entity) has a net worth (computed in accordance with generally accepted accounting principles) immediately after the transfer at least equal to the net worth of Tenant immediately prior to such merger, consolidation or transfer, and proof reasonably satisfactory to Landlord of such net worth shall have been delivered to Landlord at least ten (10) days prior to the effective date of any such transaction (except to the extent prohibited by applicable securities laws or regulations, in which case notice shall be given as soon as permissible under such laws or regulations); and (ii) to assign this Lease or sublease the Premises (in whole or in part) to an entity which is either a parent of Tenant, controlled by Tenant or under common control with Tenant (collectively, a Related Entity), provided Tenant remains primarily liable under this Lease and so long as Tenant notifies Landlord of the assignment or subletting and delivers reasonable proof of the affiliation to Landlord. Control for the purposes hereof shall mean ownership of 50% or more of all financial interest and 50% or more of the voting interest of a corporation, and any other majority equity interest and control interest if not a corporation. A transaction for which consent from the Landlord is not required pursuant to this subparagraph F shall be referred to in this Lease as a Permitted Transfer. In the event of any Permitted Transfer, Tenant shall remain primarily liable under this Lease and any assignee shall agree directly with Landlord, by written instrument in form satisfactory to Landlord, to assume and perform all the obligations of Tenant under this Lease. As used herein, the term Permitted Transferee to apply collectively to a Successor Entity or a Related Entity.
Nuisance. Not to injure, deface or otherwise harm the Premises; nor commit any nuisance; nor permit in the Premises any vending machine (except such as is used for the sale of merchandise to employees and invitees of Tenant) or inflammable fluids or chemicals (except such as are customarily used in connection with standard office equipment); nor permit any cooking to such extent as requires special exhaust venting; nor permit the emission of any reasonably objectionable noise or odor; nor make, allow or suffer any waste; nor make any use of the Premises which is improper, offensive or contrary to any law or ordinance or which will invalidate any of Landlords insurance; nor conduct any auction, fire, going out of business or bankruptcy sales.
Hazardous Wastes and Materials. Not to cause or permit any Hazardous Materials to be used, handled, generated, stored or disposed of by Tenant, or persons or entities acting by, through, or on behalf of Tenant, on, under or above, or transported to or from, the Premises and/or the Property (collectively, Hazardous Materials Activities). Nothing contained herein shall be deemed to prevent Tenant from using de minimus quantities of (a) commercially available cleaners and office supplies which are customarily used in the ordinary course of first-class business office operations which cleaners and/or office supplies contain Hazardous Materials and/or (b) methanol, acetone, and isopropyl alcohol (the items in [b] collectively the Tenant Specific Cleaning Items) it being agreed Tenant may add items to the Tenant Specific Cleaning Items provided the same (i) are customarily used for cleaning optics, (ii) do not require any permit, consent, license, approval or other action from any governmental, quasi-governmental or regulatory body or agency (or similar entity), and (iii) Tenant gives Landlord reasonable prior notice of such new item; provided that, Tenant shall use such cleaners and/or office
|supplies and Tenant Specific Cleaning Items in strict compliance (at Tenants sole cost and expense) with all applicable laws, and shall use all necessary and appropriate precautions to prevent any spill, discharge, release or exposure to persons or property. Landlord shall not be liable to Tenant for any loss, cost, expense, claim, damage or liability arising out of any Hazardous Materials Activities by Tenant, or by Tenants employees, agents, contractors, licensees, customers or invitees, whether or not consented to by Landlord. Tenant shall indemnify, defend with counsel acceptable to and approved by Landlord, and hold Landlord and all Landlord Affiliates harmless from and against any and all losses, costs, expenses (including, without limitation, all reasonable attorneys fees), claims, damages, obligations and liabilities arising out of: (i) any Hazardous Materials Activities on the Premises (including but not limited to the use of the Tenant Specific Cleaning Items), whether or not consented to by Landlord; (ii) any Hazardous Materials Activities by Tenant, Tenants employees, agents, contractors, licensees, customers or invitees or anyone claiming by, through or under Tenant, wherever occurring; and (iii) any contamination, claim of contamination, loss or damage, or the like arising out of or resulting from the foregoing. For purposes hereof, Hazardous Materials shall include but not be limited to substances defined as hazardous substances, toxic substances or hazardous wastes or oil in any local, state or federal law, rule, regulation or ordinance (collectively, Environmental Law(s)). If Landlord consents to any Hazardous Materials Activities, prior to using, storing or maintaining any Hazardous Materials on or about the Premises, Tenant shall provide Landlord with a list of the types and quantities thereof, and shall update such list from time-to-time as necessary for continued accuracy. Tenant shall also provide Landlord with a copy of any Hazardous Materials inventory statement and any updates thereof required by any applicable Environmental Laws. If Tenants activities violate or create a risk of violation of any Environmental Law or cause a spill, discharge, release or exposure to any persons or property, Tenant shall cease such activities immediately. Tenant shall immediately notify Landlord both by telephone and in writing of any spill, discharge, release or exposure of Hazardous Materials in or about the Premises, or of any condition in or about the Premises constituting an imminent hazard under any Environmental Laws. Landlord, Landlords representatives and employees may enter the Premises during the Term to inspect Tenants compliance herewith, and may disclose any spill, discharge, release, or exposure or any violation of any Environmental Laws to any applicable governmental agencies or authorities. Notwithstanding the foregoing, Tenant shall not be responsible for the cost of remediation of any Hazardous Materials existing on the Property on or prior to the Commencement Date (provided the same were not introduced by Tenant or any party acting through or engaged by Tenant).|
Floor Load; Heavy Equipment. Not to place a load upon any floor of the Premises exceeding the floor load per square foot area which such floor was designed to carry and which is allowed by law. Landlord reserves the right to prescribe the weight and position of all heavy business machines and equipment, including safes, which shall be placed so as to distribute the weight. Business machines and mechanical equipment which cause vibration or noise shall be placed and maintained by Tenant at Tenants expense in settings sufficient to absorb and prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy machinery, heavy equipment, freight or fixtures into or out of the Premises except in such manner and at such time as Landlord shall in each instance authorize.
Installation, Alterations or Additions. Not to make any installations, alterations or additions in, to or on the Premises nor to permit the making of any holes (other than in connection with hanging pictures or securing furniture and fixtures) in the walls, partitions, ceilings or floors nor the installation or modification of any locks or security devices without on each occasion obtaining the prior written consent of Landlord, and then only pursuant to plans and specifications approved by Landlord in advance in each instance, which approval shall not be unreasonably withheld, delayed or conditioned. Landlord shall give Tenant notice, in reasonable detail, of any objections or concerns Landlord may have with respect to any proposed
|installation, alteration or addition. Landlord shall not be deemed unreasonable for withholding approval of any proposed installation, alteration or addition that (i) involves or might affect the Building structure or exterior element of the Building or any portion thereof, and/or (ii) might, in Landlords reasonable opinion, materially adversely affect the value of the Building or any portion thereof, and/or (iii) might materially adversely affect the proper functioning of the Building systems and/or (iv) is visible from outside of the Premises and/or is not within the interior of the Premises and/or (v) involves penetration of the roof or exterior walls. Tenant agrees to employ for any work one or more responsible contractors of whom Landlord has given prior approval (which approval shall not be unreasonably withheld), and whose labor will work without interference with other labor working on the Property, and to cause such contractors employed by Tenant to carry workers compensation insurance in accordance with statutory requirements, Employers Liability Insurance at least equal to the limits set forth in Section 126.96.36.199, and commercial general liability insurance covering such contractors on or about the Premises in amounts at least equal to the limits set forth in Section 1.1. All contractors insurance shall name Landlord and its managing agent and any mortgagee as additional insureds on a primary and non-contributory basis, and indemnifying the parties so named against claims for death or injury to persons or damage to property claimed to have occurred in the Premises or on the property. Tenant shall cause its contractors to submit certificates evidencing such coverage to Landlord prior to the commencement of any such work. Tenant shall pay promptly when due the entire cost of any work to the Premises undertaken by Tenant so that the Premises shall at all times be free of liens for labor and materials, and at Landlords request Tenant shall furnish to Landlord a bond or other security acceptable to Landlord assuring that any work commenced by Tenant will be completed in accordance with the plans and specifications theretofore approved by Landlord and assuring that the Premises will remain free of any mechanics lien or other encumbrance arising out of such work. In any event, Tenant shall within ten (10) days of notice from Landlord bond against or discharge any mechanics liens or other encumbrances that may arise out of such work. If Tenant shall fail to cause any such lien to be discharged within such ten (10) day period, then in addition to any other available right or remedy, Landlord may discharge the same, either by paying the amount claimed to be due, or by bonding or otherwise. Any amount so paid, and all costs and expenses so incurred by Landlord in connection therewith, shall constitute Additional Rent hereunder. Tenant shall procure all necessary licenses and permits at Tenants sole expense before undertaking such work. All such work shall be done in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable zoning, building, fire, health and other codes, regulations, ordinances and laws. Tenant shall save Landlord harmless and indemnified from all injury, loss, claims or damage to any person or property occasioned by or growing out of such work, and any liability, loss, cost, damage and expense of every kind and nature incurred by reason of, or arising out of any and all mechanics and other liens filed in connection with any alterations or improvements.|
Not to grant a security interest in, or to lease, any personal property or equipment being installed in the Premises, including, without limitation, demountable partitions (the Collateral) without first obtaining an agreement for the benefit of Landlord in the form attached hereto as Exhibit H, from the secured party or lessor (Secured Party) that stipulates in the event either the Lease is terminated or Tenant defaults in its obligations to Secured Party, then (i) Secured Party will remove the Collateral within ten (10) business days after notice from Landlord of the expiration or earlier termination of this Lease, or within ten (10) business days after Secured Party notifies Landlord that Secured Party has the right to remove the Collateral on account of Tenants default in its obligations to Secured Party, (ii) Secured Party will restore the area affected by such removal, and (iii) that a failure to so remove the Collateral will subject such property to the provisions of subsection 6.1.9 of the Lease.
Abandonment. Not to abandon the Premises during the term, it being understood and agreed that vacancy of the Premises shall not be construed as abandonment so long as all of Tenants other obligations under this Lease, including payment of rent and all other sums owing to Landlord, continue to be timely performed and reasonable and diligent measures are taken by Tenant to manage the vacant space.
Signs. Not without Landlords prior written approval to paint or place any signs or place any curtains, blinds, shades, awnings, aerials, or the like, visible from outside the Premises. Landlord shall, at Landlords expense, provide Tenant with Building-standard signage on the tenant directory in the Building lobby.
Parking and Storage. Not to permit any storage of materials outside of the Premises; nor to permit the use of the parking areas for either temporary or permanent storage of trucks; nor permit the use of the Premises for any use for which heavy trucking would be customary.
Casualty or Taking
Termination. In the event that the Premises or the Building, or any material part thereof, shall be taken by any public authority or for any public use, or shall be destroyed or damaged by fire or casualty, or by the action of any public authority, then this Lease may be terminated at the election of Landlord. Such election, which may be made notwithstanding the fact that Landlords entire interest may have been divested, shall be made by the giving of notice by Landlord to Tenant within sixty (60) days after the date of the taking or casualty. In the event that the Premises are substantially destroyed or damaged by fire or casualty, or by the action of public authority during the original term, and, in the reasonable opinion of an independent architect or engineer selected by Landlord, cannot be repaired or restored within two hundred and seventy (270) days from the date the repair or restoration work would commence, then this Lease may be terminated at the election of Tenant, which election shall be made by the giving of notice to Landlord within thirty (30) days after the date the opinion of the architect or engineer is made available to the parties, which notice shall specify the effective date of termination, which shall not be less than thirty (30) nor more than sixty (60) days after the date of Tenants termination notice.
Restoration. If Landlord does not elect to so terminate, this Lease shall continue in force and a just proportion of the rent reserved, according to the nature and extent of the damages sustained by the Premises, shall be suspended or abated until the Premises, or what may remain thereof, shall be put by Landlord in proper condition for use, which Landlord covenants to do with reasonable diligence to the extent permitted by the net proceeds of insurance recovered or damages awarded for such taking, destruction or damage and subject to zoning and building laws or ordinances then in existence. Net proceeds of insurance recovered or damages awarded refers to the gross amount of such insurance or damages less the reasonable expenses of Landlord incurred in connection with the collection of the same, including without limitation, fees and expenses for legal and appraisal services. Notwithstanding anything herein to the contrary, if Landlord shall not have restored the Premises within two hundred and seventy (270) days from the date such restoration work commenced (subject to Section 10.5 hereof), and such failure is not a result of delays caused by Tenant, Tenant shall have the right to terminate this Lease by giving notice of such termination to Landlord, effective at the expiration of thirty (30) days from the giving of such notice; provided however, that such termination will be rendered ineffective if, prior to the expiration of said 30-day period, Landlord shall have completed such restoration.
Award. Irrespective of the form in which recovery may be had by law, all rights to damages or compensation shall belong to Landlord in all cases. Tenant hereby grants to Landlord all of Tenants rights to such damages and covenants to deliver such further assignments thereof as Landlord may from time to time request. Nothing contained herein shall be construed to prevent Tenant from prosecuting in any condemnation proceedings a claim for relocation expenses, provided that such action shall not affect the amount of compensation otherwise recoverable by Landlord from the taking authority.
Events of Default. (a) If Tenant shall default in the performance of any of its obligations to pay the Fixed Rent, Additional Rent or any other sum due Landlord hereunder and if such default shall continue for ten (10) days after written notice from Landlord designating such default or if within thirty (30) days after written notice from Landlord to Tenant specifying any other default or defaults Tenant has not commenced diligently to correct the default or defaults so specified or has not thereafter diligently pursued such correction to completion, or (b) if any assignment shall be made by Tenant in violation of the provisions of Section 6.2.1 of this Lease, or (c) if any assignment shall be made by Tenant or any guarantor of Tenant for the benefit of creditors, or (d) if Tenants leasehold interest shall be taken on execution, or (e) if a lien or other involuntary encumbrance is filed against Tenants leasehold interest or Tenants other property, including said leasehold interest, and is not discharged or bonded over within twenty (20) days thereafter, or (f) if a petition is filed by Tenant or any guarantor of Tenant for liquidation, or for reorganization or an arrangement under any provision of any bankruptcy law or code as then in force and effect, or (g) if an involuntary petition under any of the provisions of any bankruptcy law or code is filed against Tenant or any guarantor of Tenant and such involuntary petition is not dismissed within sixty (60) days thereafter, then, and in any of such cases, Landlord and the agents and servants of Landlord lawfully may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter without demand or notice and with process of law enter into and upon the Premises or any part thereof in the name of the whole and repossess the same as of landlords former estate and expel Tenant and those claiming through or under Tenant and remove its and their effects without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenants, and/or Landlord may terminate this Lease by sending written notice of termination to Tenant and this Lease shall terminate and come to an end on the date of entry as aforesaid, or on the third (3rd) day following the giving of such notice as fully and completely as if such date were the date originally fixed for expiration of the Term of this Lease. Tenant will quit and surrender the Premises to Landlord, but shall remain liable as herein provided. Tenant hereby waives all statutory rights to the Premises (including without limitation rights of redemption, if any, granted under any present or future laws to the extent such rights may be lawfully waived). Landlord, without notice to Tenant, may store Tenants effects, and those of any person claiming through or under Tenant, at the expense and risk of Tenant, and, if Landlord so elects, may sell such effects at public auction or private sale and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. No termination or repossession provided for in this Section 8.1 shall relieve Tenant or any guarantor of Tenant of the liabilities and obligations of Tenant under this Lease, all of which shall survive any such termination or repossession.
Remedies. A. In the event of termination or repossession, Tenant covenants to pay punctually to Landlord Fixed Rent, Additional Rent and all other sums for which Tenant is obligated in this Lease to pay and in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence, Tenant shall be credited with any amount paid to Landlord as compensation as set forth below in this Section 8.2 and also with the net proceeds of any rent obtained by Landlord by reletting the Premises, after deducting all Landlords expense in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys fees, and expenses of preparing the Premises for such reletting.
B. Landlord may elect to (i) relet the Premises or any part or parts thereof, for a term or terms which may be equal to or less than or exceed the period which would otherwise have constituted the balance of the term and may grant such concessions and free rent as Landlord in its sole judgment considers advisable or necessary to relet the same and/or (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary to relet the same and no action of Landlord in accordance with the foregoing or failure to relet or to collect rent under reletting shall
operate or be construed to release or reduce Tenants liability as aforesaid. However, Landlord shall use reasonable efforts to re-let the Premises after Tenant vacates the Premises once this Lease is terminated on account of a default by Tenant. For the purposes of this paragraph, marketing of the Premises in a manner similar to the way Landlord markets its other premises in the suburban market shall be deemed to satisfy Landlords obligation to use such reasonable efforts. In no event shall Landlord be required (i) to solicit or entertain negotiations with any other prospective tenants for the Premises until Landlord obtains full and complete possession of the Premises including, without limitation, the undisputed right to re-let the Premises free of any claim of Tenant, (ii) to lease the Premises to a tenant whose proposed use, in Landlords bona fide judgment, would violate any restrictions by which Landlord is bound, (iii) to re-let the Premises before leasing other comparable vacant space in the Building, (iv) to lease the Premises for a rental less than the current fair market rental then prevailing for similar office space in the Building, or (v) to enter into a lease with any proposed tenant that does not have, in Landlords reasonable opinion, sufficient financial resources or operating experience to operate the Premises in a manner comparable to other tenants in the Building. In no event, however, shall Tenants liability hereunder be diminished or reduced if or to the extent such reasonable efforts of Landlord to re-let are not successful.
C. If this Lease is terminated under any of the provisions contained in Section 8.1, at the election of Landlord, and in lieu of full recovery by Landlord of the sums payable under the foregoing provisions of this Section 8.2 (except for the amount of any rent of any kind accrued and unpaid at the time of termination), Landlord may by written notice to Tenant, elect to recover, and Tenant shall thereupon pay forthwith to Landlord, as compensation, an amount equal to the present value of the amount by which the payments of Fixed Rent and Additional Rent payable for balance of the Term would exceed the fair rental value of the Premises for the balance of the Term. In calculating the rent reserved there shall be included, in addition to the Fixed Rent and Additional Rent, the value of all other considerations agreed to be paid by Tenant for the balance of the Term.
D. INTENTIONALLY OMITTED.
E. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater than, equal to, or less than the amount of the loss or damages referred to above.
Remedies Cumulative. Any and all rights and remedies which Landlord may have under this Lease, and at law and equity, shall be cumulative and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law.
Landlords Right to Cure Defaults. Landlord may, but shall not be obligated to, cure, at any time, without notice, any default by Tenant under this Lease; and whenever Landlord so elects, all costs and expenses incurred by Landlord, including reasonable attorneys fees, in curing a default shall be paid, as Additional Rent, by Tenant to Landlord on demand, together with lawful interest thereon from the date of payment by Landlord to the date of payment by Tenant.
Effect of Waivers of Default. Any consent or permission by Landlord to any act or omission which otherwise would be a breach of any covenant or condition herein, shall not in any way be held or construed (unless expressly so declared) to operate so as to impair the continuing obligation of any covenant or condition herein, or otherwise, except as to the specific instance, operate to permit similar acts or omissions.
No Waiver, etc. The failure of Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease
|shall not be deemed to have been a waiver of such breach by Landlord. No consent or waiver, express or implied, by Landlord to or of any breach of any agreement or duty shall be construed as a waiver or consent to or of any other breach of the same or any other agreement or duty.|
No Accord and Satisfaction. No acceptance by Landlord of a lesser sum than the Fixed Rent, Additional Rent or any other charge then due shall be deemed to be other than on account of the earliest installment of such rent or charge due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent or other charge be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlords right to recover the balance of such installment or pursue any other remedy in this Lease provided.
Rights of Mortgage Holders
Rights of Mortgage Holders. The word mortgage as used herein includes mortgages, deeds of trust or other similar instruments evidencing other voluntary liens or encumbrances, and modifications, consolidations, extensions, renewals, replacements and substitutes thereof. The word holder shall mean a mortgagee, and any subsequent holder or holders of a mortgage. Until the holder of a mortgage shall enter and take possession of the Property for the purpose of foreclosure, such holder shall have only such rights of Landlord as are necessary to preserve the integrity of this Lease as security. Upon entry and taking possession of the Property for the purpose of foreclosure, such holder shall have all the rights of Landlord. No such holder of a mortgage shall be liable either as mortgagee or as assignee, to perform, or be liable in damages for failure to perform, any of the obligations of Landlord unless and until such holder shall enter and take possession of the Property for the purpose of foreclosure. Upon entry for the purpose of foreclosure, such holder shall be liable to perform all of the obligations of Landlord, subject to and with the benefit of the provisions of Section 10.4, provided that a discontinuance of any foreclosure proceeding shall be deemed a conveyance under said provisions to the owner of the equity of the Property.
The covenants and agreements contained in this Lease with respect to the rights, powers and benefits of a holder of a mortgage (particularly, without limitation thereby, the covenants and agreements contained in this Section 9.1) constitute a continuing offer to any person, corporation or other entity, which by accepting a mortgage subject to this Lease, assumes the obligations herein set forth with respect to such holder; such holder is hereby constituted a party of this Lease as an obligee hereunder to the same extent as though its name were written hereon as such; and such holder shall be entitled to enforce such provisions in its own name. Tenant agrees on request of Landlord to execute and deliver from time to time any agreement which may be necessary to implement the provisions of this Section 9.1.
Lease Superior or Subordinate to Mortgages. It is agreed that the rights and interest of Tenant under this Lease shall be (i) subject or subordinate to any present or future mortgage or mortgages and to any and all advances to be made thereunder, and to the interest of the holder thereof in the Premises or any property of which the Premises are a part if Landlord shall elect by notice to Tenant to subject or subordinate the rights and interest of Tenant under this Lease to such mortgage or (ii) prior to any present or future mortgage or mortgages, if Landlord shall elect, by notice to Tenant, to give the rights and interest of Tenant under this Lease priority to such mortgage; in the event of either of such elections and upon notification by Landlord to that effect, the rights and interest of Tenant under this Lease should be deemed to be subordinate to, or have priority over, as the case may be, said mortgage or mortgages, irrespective of the time of execution or time of recording of any such mortgage or mortgages (provided that, in the case of subordination of this Lease to any future mortgages, the holder thereof agrees not to disturb the possession of Tenant so long as Tenant is not in default hereunder). Tenant agrees it will, upon not less than ten (10) business days prior written request by Landlord, execute, acknowledge and deliver any and all commercially reasonable instruments deemed by Landlord necessary or desirable to give effect to or notice of such subordination or priority. Any Mortgage to which this Lease shall be subordinated may contain such terms, provisions and conditions as the holder deems usual or customary.
Notices from One Party to the Other. All notices required or permitted hereunder shall be in writing and addressed, if to the Tenant, at the Original Notice Address of Tenant or such other address as Tenant shall have last designated by notice in writing to Landlord and, if to Landlord, at the Original Notice Address of Landlord or such other address as Landlord shall have last designated by notice in writing to Tenant. Any notice shall be deemed duly given upon receipt or rejection when mailed to such address postage prepaid, by registered or certified mail, return receipt requested, or on the next business day when delivered to such address by hand or when delivered to such address by hand.
Quiet Enjoyment. Landlord agrees that upon Tenants paying the rent and performing and observing the agreements, conditions and other provisions on its part to be performed and observed, Tenant shall and may peaceably and quietly have, hold and enjoy the Premises during the term hereof without any manner of hindrance or molestation from Landlord or anyone claiming under Landlord, subject, however, to the terms of this Lease.
Lease not to be Recorded. Both Landlord and Tenant agree that it will not record this Lease.
Limitation of Landlords Liability. The term Landlord as used in this Lease, so far as covenants or obligations to be performed by Landlord are concerned, shall be limited to mean and include only the owner or owners at the time in question of the Property, and in the event of any transfer or transfers of title to said property, the Landlord (and in case of any subsequent transfers or conveyances, the then grantor) shall be concurrently freed and relieved from and after the date of such transfer or conveyance, without any further instrument or agreement of all liability as respects the performance of any covenants or obligations on the part of the Landlord contained in this Lease thereafter to be performed, it being intended hereby that the covenants and obligations contained in this Lease on the part of Landlord, shall, subject as aforesaid, be binding on the Landlord, its successors and assigns, only during and in respect of their respective successive periods of ownership of said leasehold interest or fee, as the case may be. Tenant, its successors and assigns, shall not assert nor seek to enforce any claim for breach of this Lease against any of Landlords assets other than Landlords interest in the Property and in the rents, issues and profits thereof, and Tenant agrees to look solely to such interest for the satisfaction of any liability or claim against Landlord under this Lease, it being specifically agreed that in no event whatsoever shall Landlord (which term shall include, without limitation, any general or limited partner, trustees, beneficiaries, officers, directors, managers, members or stockholders of Landlord) ever be personally liable for any such liability.
Force Majeure. In any case where either party hereto is required to do any act, delays caused by or resulting from Acts of God, war, civil commotion, fire, flood or other casualty, labor difficulties, shortages of labor, materials or equipment, government regulations, unusually severe weather, or other causes beyond such partys reasonable control (any of the foregoing causes being referred to herein as Force Majeure) shall not be counted in determining the time during which work shall be completed, whether such time be designated by a fixed date, a fixed time or a reasonable time, and such time shall be deemed to be extended by the period of such delay. Tenants inability to pay any sums due Landlord hereunder shall in no way be affected or excused by any of the foregoing causes and shall in no event be deemed a Force Majeure event.
Landlords Default. Landlord shall not be deemed to be in default in the performance of any of its obligations hereunder unless it shall fail to perform such obligations and such failure shall continue for a period of thirty (30) days or such additional time as is reasonably required to correct any such default after written notice has been given by Tenant to Landlord (and to all mortgagees of which Tenant has notice) specifying the nature of Landlords alleged default. Notwithstanding any provision contained herein, in no event
|shall Landlord ever be liable to Tenant, or any person claiming by, through or under Tenant, for any special, indirect, incidental or consequential damages, or for any lost profits. Tenant shall have no right to terminate this Lease for any default by Landlord hereunder and no right, for any such default, to offset or counterclaim against any rent due hereunder.|
Brokerage. Landlord and Tenant warrant and represent to the other that it has dealt with no broker in connection with the consummation of this Lease, other than Transwestern RBJ (the Broker), and in the event of any brokerage claims, other than by the Broker, against the other party predicated upon prior dealings with the warranting party, the warranting party agrees to defend the same and indemnify and hold the other party harmless against any such claim. Landlord shall pay the Broker a commission in connection with this Lease pursuant to a separate agreement.
Applicable Law and Construction; Merger; Jury Trial. This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and, if any provisions of this Lease shall to any extent be invalid, the remainder of this Lease shall not be affected thereby. This Lease and the Exhibits attached hereto and forming a part hereof constitute all the covenants, promises, agreements, and understandings between Landlord and Tenant concerning the Premises and the Building and there are no covenants, promises, agreements or understandings, either oral or written, between them other than as are set forth in this Lease. Neither Landlord nor Landlords agents shall be bound to any representations with respect to the Premises, the Building or the Property except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be merged into this Lease. The titles of the several Articles and Sections contained herein are for convenience only and shall not be considered in construing this Lease. Each of Landlord and Tenant shall and does hereby waive trial by jury in any action, proceeding, or claim brought by or against such party regarding any matter arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant or Tenants use or occupancy of the Premises. Unless repugnant to the context, the words Landlord and Tenant appearing in this Lease shall be construed to mean those named above and their respective heirs, executors, administrators, successors and assigns, and those claiming through or under them respectively. If there be more than one person or entity named as tenant, the obligations imposed by this Lease upon Tenant shall be joint and several.
Consents. With respect to any provision of this Lease which either provides or is held to provide that Landlord shall not unreasonably withhold or unreasonably delay any consent or approval, Tenant shall not be entitled to make any claim for, and Tenant hereby expressly waives, any claim for damages, it being understood and agreed that Tenants sole remedy therefor shall be an action for specific performance.
Authority. In the event the Tenant is a corporation, partnership or limited liability company, Tenant hereby represents and warrants that: the Tenant is a duly constituted corporation, partnership or limited liability company, as the case may be, qualified to do business in the Commonwealth of Massachusetts; that the person executing this Lease is duly authorized to execute and deliver this Lease on behalf of said corporation(s), partnership(s) or limited liability company(ies); and that the by-laws of Tenant authorize to enter into this Lease.
Counterparts. This Lease shall not be valid and binding until executed and delivered by Landlord and may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Any facsimile or other electronic transmittal of original signature versions of this Lease shall be considered to have the same legal effect as execution and delivery of the original document and shall be treated in all manner and respects as the original document.
USA Patriot Act. Tenant represents, warrants, and covenants that neither Tenant nor any of its partners, officers, directors, members or shareholders, assignees, or subtenants (i) is listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, Department of the Treasury (OFAC) pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (Order) and all applicable provisions of Title III of the USA Patriot Act (Public Law No. 107-56 (October 26, 2001)); (ii) is listed on the Denied Persons List and Entity List maintained by the United
|States Department of Commerce; (iii) is listed on the List of Terrorists and List of Disbarred Parties maintained by the United States Department of State, (iv) is listed on any list or qualification of Designated Nationals as defined in the Cuban Assets Control Regulations 31 C.F.R. Part 515; (v) is listed on any other publicly available list of terrorists, terrorist organizations or narcotics traffickers maintained by the United States Department of State, the United States Department of Commerce or any other governmental authority or pursuant to the Order, the rules and regulations of OFAC (including without limitation the Trading with the Enemy Act, 50 U.S.C. App. 1-44; the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06; the unrepealed provision of the Iraq Sanctions Act, Publ. L. No. 101-513; the United Nations Participation Act, 22 U.S.C. § 2349 as-9; The Cuban Democracy Act, 22 U.S.C. §§ 6001-10; The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 233; and The Foreign Narcotic Kingpin Designation Act, Publ. L. No. 106-120 and 107-108, all as may be amended from time to time); or any other applicable requirements contained in any enabling legislation or other Executive Orders in respect of the Order (the Order and such other rules, regulations, legislation or orders are collectively called the Orders); (vi) is engaged in activities prohibited in the Orders; or (vii) has been convicted, pleaded nolo contendere, indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes or in connection with the Bank Secrecy Act (31 U.S.C. §§ 5311 et. seq.).|
Execution and Delivery. This Lease shall only become effective and binding upon full execution hereof by Landlord and Tenant, and delivery of a signed copy to Tenant.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
WITNESS the execution hereof under seal on the day and year first above written:
NWP BUILDING 32 LLC
a Massachusetts limited liability company
By: MTP Limited Partnership, a Massachusetts limited partnership, its Manager
By: Middlesex Turnpike Corp., a Massachusetts corporation, its General Partner
|By:||/s/ Peter C. Nordblom|
|Peter C. Nordblom, President|
|By:||/s/ John D. Macomber|
|John D. Macomber, Assistant Treasurer|
a Delaware corporation
|By:||/s/ Stephen Blinn|
Print Name: Stephen Blinn
Print Title: Chief Commercial Officer
PLAN SHOWING THE PREMISES
COMMENCEMENT DATE NOTIFICATION
(Landlord) and (Tenant) are parties to a lease (Lease) dated , 201 , of premises in a building known as , Massachusetts. Landlord hereby notifies Tenant that the Commencement Date is ; the Expiration Date is ; the first Lease Year commenced on and will end on ; and the Rent Commencement Date is . Although not required for this notification to be effective, we would appreciate you confirming the foregoing by signing the enclosed copy of this letter and returning it to us.
Landlord shall furnish and install, in accordance with Exhibit C-1, the following materials and work in the preparation of the Premises for Tenants occupancy.
Partitions: Installation of two (2) private offices, one (1) conference room, one (1) kitchen, and a half wall, as shown on Exhibit C-1. Partitions within premises will be 3 5/8 metal studs with one layer of 5/8 gypsum board on each side. Partitions will extend from floor to the acoustic tile ceiling.
Caging: Existing caging to be reconfigured to create an approximately 30 x 60 foot area, noted as caged area on Exhibit C-1. Remaining caging to be removed.
Doors and Frames: Double doors will be installed in the caged area leading to the loading dock. Doors will also be installed in the two (2) offices, conference room and break area. Door frames will be pressed metal with 22 sidelights.
Ceiling: Existing ceiling to remain, and modified to accommodate new offices/conference room/kitchen as needed.
Painting: All wall surfaces shall receive two coats of latex paint with an eggshell finish using not more than three (3) readily available colors. Any doors shall receive one coat of clear polyurethane. All frames shall receive two coats of semi-gloss enamel to match room color.
Flooring: Tenant will receive a carpet allowance of $30 per square yard (installed cost) for offices, conference room, and open cube area. Buff and wax existing VCT in the caged area, kitchen, and manufacturing area, repair/replace tiles as needed.
Millwork: New millwork will be installed in the kitchen comprising of 8 foot upper and lower cabinets as shown on Exhibit C-1.
Existing lighting to remain. Reconfigure to accommodate new offices/conference room/kitchen (only)
One duplex wall receptacle per 500 square feet of open area and two duplex wall receptacles per office.
Adequate devices for typical open office layout.
Install up to five (5) electrical drops in caged area/manufacturing area
Note: Furniture and equipment, telephone and data wiring, signage (interior and exterior) and an access control system are not included in Landlords work.
WORK CHANGE ORDER
|Landlord:||Work Change Order No.:|
Tenant directs Landlord to make the following additions to Landlords work:
Description of additional work:
Work Change Order Amount:
Period of delay due to Work Change Order:
Amount of Previous Work Change Orders:
This Work Change Order:
Total Amount of Work Change Orders:
Landlord approves this Work Change Order and Tenant agrees to pay to Landlord the Total Amount of Work Change Orders within thirty (30) days following receipt of an invoice from Landlord.
FORM OF LETTER OF CREDIT
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
ISSUANCE DATE: ,
MAXIMUM/AGGREGATE CREDIT AMOUNT:
LADIES AND GENTLEMEN:
We hereby establish our irrevocable letter of credit in your favor for account of the Applicant up to an aggregate amount not to exceed ___________ ________________________________ US Dollars ($__________) available by your draft(s) drawn on ourselves at sight accompanied by:
The original Letter of Credit and all amendment(s), if any.
Your statement, purportedly signed by an authorized officer or signatory of the Beneficiary certifying that the Beneficiary is entitled to draw upon this Letter of Credit (in the amount of the draft submitted herewith) pursuant to Section 4.4 of the lease (the Lease) dated ___________, _____ by and between ______________________, as Landlord, and ____________________, as Tenant, relating to the premises at ____________________________.
Draft(s) must indicate name and issuing bank and credit number and must be presented at this office. Drawings may also be presented via facsimile transmission at facsimile number [______________].
You shall have the right to make multiple and partial draws against this Letter of Credit, from time to time.
This Letter of Credit is transferrable by Beneficiary from time to time in accordance with the provisions of Section 4.4 of the Lease.
This Letter of Credit shall expire at our office on _________________, _____ (the Stated Expiration Date).
It is a condition of this Letter of Credit that the Stated Expiration Date shall be deemed automatically extended without amendment for successive one (1) year periods from such Stated Expiration Date, unless at least forty-five (45) days prior to such Stated Expiration Date) or any anniversary thereof) we shall notify the Beneficiary and the Applicant in writing by certified mail (return receipt) that we elect not to consider this Letter of Credit extended for any such additional one (1) year period.
We engage with you that all drafts drawn under and in compliance with the terms of this letter of credit will be duly honored within two (2) business days after presentation to us as described above.
Except as otherwise expressly stated herein, this Letter of Credit is subject to the International Standby Practice 1998 International Chamber of Commerce Publication 590 (ISP98).
Very truly yours,
RULES AND REGULATIONS
The sidewalks, entrances, passages, corridors, vestibules, halls, elevators, or stairways in or about the Building shall not be obstructed by Tenant.
Tenant shall not place objects against glass partitions, doors or windows which would be unsightly from the Building corridor or from the exterior of the Building.
Tenant shall not waste electricity or water in the Building premises and shall cooperate fully with Landlord to assure the most effective operation of the Building heating and air conditioning systems. All regulating and adjusting of heating and air-conditioning apparatus shall be done by the Landlords agents or employees.
Tenant shall not use the Premises so as to cause any increase above normal insurance premiums on the Building.
No vehicles (other than non-motorized bicycles) or animals of any kind (other than service animals) shall be brought into or kept in or about the Premises. Tenant may bring non-motorized bicycles into the Premises via the back door to the Building only, provided Tenant shall be solely responsible for any damage caused by such items. In no event shall any bicycle be ridden into or inside the Premises (it being agreed the same shall be carried or walked into the Premises). No space in the Building shall be used for the sale of merchandise of any kind at auction or for storage thereof preliminary to such sale.
Tenant shall cooperate with Landlord in minimizing loss and risk thereof from fire and associated perils.
The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were designed and constructed and no sweepings, rubbish, rags, acid or like substance shall be deposited therein. All damages resulting from any misuse of the fixtures shall be borne by the Tenant.
Landlord reserves the right to establish, modify, and enforce reasonable parking rules and regulations, provided such rules and obligations do not diminish Tenants rights under the Lease or result in charges or fees for parking (other than potential fines for violation of rules).
Landlord reserves the right at any time to rescind, alter or waive any rule or regulation at any time prescribed for the Building and to impose additional reasonable rules and regulations when in its judgment deems it necessary, desirable or proper for its best interest and for the best interest of the tenants and no alteration or waiver of any rule or regulation in favor of one tenant shall operate as an alteration or waiver in favor of any other tenant, provided such rules and regulations do not diminish Tenants rights under the Lease. Landlord shall not be responsible to any tenant for the nonobservance or violation by any other tenant however resulting of any rules or regulations at any time prescribed for the Building.
Tenant acknowledges that the Building has been designated a non-smoking building. At no time shall Tenant permit its agents, employees, contractors, guests or invitees to smoke in the Building or, except in specified locations, directly outside the Building.
The normal business hours for the Building are 7:00 A.M. to 6:00 P.M. on Mondays through Fridays, excluding holidays on which the Building is closed.
CONSTRUCTION RULES AND REGULATIONS
1. All work shall be performed in accordance with all applicable state laws and in accordance with all requirements and codes of the Town of Burlington and guidelines of the Landlords managing agent (Building Management). The Building is operational and extra care and precautions must be taken to avoid interruption of services.
2. Certificates of Insurance from Tenants general contractor (Contractor) and its subcontractors must be submitted seven (7) days prior to the commencement of any work and must comply with the contractor insurance requirements under Section 6.2.5 of the Lease.
3. At least three (3) weeks before construction, Contractor must schedule a pre-construction meeting with the Landlords project management team. Meeting materials should include detailed schedules; addresses and telephone numbers of supervisors, contractors and subcontractors: copies of permits; proof of current insurance (including all subcontractors); and notice of any contractors involvement in a labor dispute.
4. Contractor personnel are only permitted within the Building during normal trade working hours plus 30 minutes time before and after normal trade hours for set up and pick up of tools, etc.
5. Testing of sprinkler system, fire protection system, demolition, coring, and any other similar type work must be coordinated through Building Management with at least five (5) days prior notice. Normal business hours are 8:00 am to 6:00 pm Monday through Friday; 8:00 am to 1:00 pm Saturdays. Work on any system within the Building shall be coordinated with Building Management.
6. Deliveries through the main lobby must be done in a professional manner. Floor protection is required. No storage of any items allowed in main lobby or any common area. The Contractor is responsible for leaving the main lobby and any other common area in broom clean condition. The Contractor will incur costs for the clean-up for areas left dirty. Rubbish cannot be stored in any common area.
7. Contractor shall provide heavy plastic screening for dust protection and/or temporary walls of suitable appearance as required by Building Management.
8. Walk-off mats are to be provided at entrance doors.
9. No utilities (electricity, water, and plumbing) or services to the tenants are to be cutoff or interrupted without first having requested, in writing, and secured, in writing, the permission of Building Management.
10. If taking the Building fire alarm points offline is required in connection with any work, the cost of such service will be billable to the Contractor and will require prior notice to and approval from Building Management.
11. Should any scope of work require entry to another tenants space, Tenant and/or Contractor must notify Landlord. If approved by Landlord, the activity shall be under the supervision of Landlords representative. The cost of said supervision will be billable to the Contractor.
12. Admittance to the roof of the Building is allowed only upon the prior written consent of Landlord.
13. There is a No Smoking Policy in effect for all areas of the Building.
14. Contractor will be responsible for daily removal of waste foods, milk and soft drink containers, etc. Building trash receptacles are not to be used.
15. Construction personnel are not to eat in the lobby or in front of the Building, nor are they to congregate in the lobby or in front of the Building.
16. Construction personnel are not to utilize any vacant space within the Building other than that space which is designated by the Landlord to the Contractor.
17. There will be no radios on the job site.
18. All workers are required to wear a shirt, shoes, and full length trousers.
19. Protection of hallway carpets, wall coverings, granite and marble from damage with masonite board, carpet, plastic runners or pads is required.
20. Public spaces, corridors, bathrooms, lobby, etc., must be cleaned immediately after use. Restrooms for contractor use will be designated to the Contractor. No other restrooms are to be utilized by Contractor personnel.
21. There will be no smoking, eating, or open food containers in the carpeted areas, or public lobbies. There will be no yelling or boisterous activities; nor is alcohol or controlled substances allowed or tolerated. Individuals under the influence or in possession of such will be prosecuted.
22. Contractor shall post no signs without expressed prior approval from Building Management, which may be withheld for any reason.
23. Contractor shall supply Building Management with a copy of all permits prior to start of any work.
24. Contractor shall complete work without disruption from labor disputes and in harmony with other trades.
25. The Construction Rules and Regulations are subject to change in Landlords sole discretion.
26. Landlord reserves the right to prohibit access to the Building by any contractors who fail to comply with these Construction Rules and Regulations.
TENANT ESTOPPEL CERTIFICATE
TO: __________________ (Mortgagee or Purchaser)
THIS IS TO CERTIFY THAT:
The undersigned is the tenant (the Tenant) under that certain lease (the Lease) dated _________, 20_, by and between ______________ as landlord (the Landlord), and the undersigned, as Tenant, covering those certain premises commonly known and designated as _______________________ (the Premises) in the building located at _________________, _______________ Massachusetts.
The Lease is attached hereto as Exhibit A and (i) constitutes the entire agreement between the undersigned and the Landlord with respect to the Premises, (ii) is the only Lease between the undersigned and the Landlord affecting the Premises and (iii) has not been modified, changed, altered or amended in any respect, except (if none, so state):
The undersigned has accepted and now occupies the Premises as of the date hereof, and all improvements, if any, required by the terms of the Lease to be made by the Landlord have been completed and all construction allowances to be paid by Landlord have been paid. In addition, the undersigned has made no agreement with Landlord or any agent, representative or employee of Landlord concerning free rent, partial rent, rebate of rental payments or any other type of rental or other economic inducement or concession except (if none, so state):
The term of the Lease began (or is scheduled to begin) on _______, 20___ and will expire on ____________, 20___;
The fixed rent for the Premises has been paid to and including _______________, 20__;
The fixed rent being paid pursuant to the Lease is at the annual rate of $______________; and
The escalations payable by Tenant under the Lease are currently $_______, based on a pro rata share of _______%, and have been reconciled through __________, 20__.
(i) No party to the Lease is in default, (ii) the Lease is in full force and effect, (iii) the rental payable under the Lease is accruing to the extent therein provided thereunder, (iv) as of the date hereof the undersigned has no charge, lien or claim of off-set (and no claim for any credit or deduction) under the Lease or otherwise, against rents or other charges due or to become due thereunder or on account of any prepayment of rent more than one (1) month in advance of its due date, and (v) Tenant has no claim against Landlord for any security, rental, cleaning or other deposits, except (if none, so state):
Since the date of the Lease there are no actions, whether voluntary or otherwise, pending against the undersigned under the bankruptcy, reorganization, arrangement, moratorium or similar laws of the United States, any state thereof of any other jurisdiction.
Tenant has not sublet, assigned or hypothecated or otherwise transferred all or any portion of Tenants leasehold interest.
Neither Tenant nor Landlord has commenced any action or given or received any notice for the purpose of terminating the Lease, nor does Tenant have any right to terminate the Lease, except (if none, so state):
Tenant has no option or preferential right to purchase all or any part of the Premises (or the real property of which the Premises are a part) nor any right or interest with respect to the Premises or the real property of which the Premises are a part. Tenant has no right to renew or extend the term of the Lease or expand the Premises except (if none, so state):
The undersigned acknowledges that the parties named herein are relying upon this estoppel certificate and the accuracy of the information contained herein in making a loan secured by the Landlords interest in the Premises, or in connection with the acquisition of the Property of which the Premises is a part.
EXECUTED UNDER SEAL AS OF ___________, 20___.
LANDLORDS CONSENT AND WAIVER
WHEREAS, _______________________ (the Tenant) has or is about to enter into certain financing agreements with __________________________________ (the Bank) pursuant to which the Bank has been or may be granted a security interest in certain property of the Tenant; and
WHEREAS, Tenant is the tenant, pursuant to a lease agreement by and between Tenant and the undersigned (the Landlord) dated as of _________________ (the Lease), of certain demised premises contained in the building located at the following address:
and more particularly described in the Lease (the Premises);
NOW, THEREFORE, for valuable consideration, the Landlord agrees, for as long as Tenant remains indebted to the Bank, as follows:
(a) Landlord acknowledges and agrees that the personal property of Tenant (which for purposes hereof shall not include computer wiring, telephone wiring and systems, and demountable partitions) in which the Bank has been granted a security interest (the Bank Collateral) may from time to time be located on the Premises;
(b) Landlord subordinates, waives, releases and relinquishes unto the Bank, its successors or assigns, all right, title and interest, if any, which the Landlord may otherwise claim in and to the Bank Collateral, except as provided in subparagraph (d) hereinbelow;
(c) Upon providing the Landlord with at least five (5) business days prior written notice that Tenant is in default of its obligations to the Bank, the Bank shall then have the right to enter the Premises during business hours for the purpose of removing said Bank Collateral, provided (i) the Bank completes the removal of said Bank Collateral within ten (10) business days following said first written notice of default, and (ii) the Bank restores any part of the Premises which may be damaged by such removal to its condition prior to such removal in an expeditious manner not to exceed ten (10) business days following said first written notice of default;
(d) Upon receipt of written notice from Landlord of the expiration or earlier termination of the Lease, the Bank shall have ten (10) business days to enter the Premises during business hours, remove said Bank Collateral, and restore any part of the Premises which may be damaged by such removal to its condition prior to such removal. If the Bank fails to so remove the Bank Collateral, the Bank agrees that the Bank Collateral shall thereupon be deemed subject to the yield up provisions of the Lease, so the Landlord may treat the Bank Collateral as abandoned, deem it Landlords property, if Landlord so elects, and retain or remove and dispose of it, all as provided in the Lease;
(e) All notices and other communications under this Landlords Consent and Waiver shall be in writing, and shall be delivered by hand, by a nationally recognized commercial next day delivery service, or by certified or registered mail, return receipt requested, and sent to the following addresses:
if to the Bank:
with a copy to:
if to the Landlord:
c/o Nordblom Management Company, Inc.
71 Third Avenue
Burlington, MA 01803
Such notices shall be effective (a) in the case of hand deliveries, when received, (b) in the case of a next day delivery service, on the next business day after being placed in the possession of such delivery service with next day delivery charges prepaid, and (c) in the case of mail, five (5) days after deposit in the postal system, certified or registered mail, return receipt requested and postage prepaid. Either party may change its address and telecopy number by written notice to the other as provided above; and
(f) The Bank shall indemnify and hold harmless the Landlord for any and all damage caused as a result of the exercise of the Banks rights hereunder.
This Landlords Consent and Waiver may not be changed or terminated orally and inures to the benefit of and is binding upon the Landlord and its successors and assigns, and inures to the benefit of and is binding upon the Bank and its successors and assigns.
IN WITNESS WHEREOF, Landlord and Bank have each executed this Landlords Consent and Waiver or caused it to be executed by an officer thereunto duly authorized, and the appropriate seal to be hereunto affixed, this _____ day of _________, 20_.
COMMONWEALTH OF MASSACHUSETTS
___________ County, ss.
On this _____ day of ___________, 20_, before me, the undersigned Notary Public, personally appeared the above-named _____________________________, proved to me by satisfactory evidence of identification, being (check whichever applies): ☐ drivers license or other state or federal governmental document bearing a photographic image, ☐ oath or affirmation of a credible witness known to me who knows the above signatories, or ☐ my own personal knowledge of the identity of the signatory, to be the person whose name is signed above, and acknowledged the foregoing to be signed by her/him voluntarily for its stated purpose.
|My commission expires:|
____________ County, ss.
On this ______ day of _______________, 20_, before me, the undersigned Notary Public, personally appeared the above-named ________________________________, proved to me by satisfactory evidence of identification, being (check whichever applies): ☐ drivers license or other state or federal governmental document bearing a photographic image, ☐ oath or affirmation of a credible witness known to me who knows the above signatories, or ☐ my own personal knowledge of the identity of the signatory, to be the person whose name is signed above, that he/she signed it as ___________________ for ________________________, and acknowledged the foregoing to be signed by her/him voluntarily for its stated purpose.
|My commission expires:|