Delaware
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1-33472
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04-3483216
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification
No.)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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TECHTARGET, INC. | |||
Date:
August 7, 2009
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By:
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/s/ ERIC SOCKOL | |
Eric
Sockol
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Chief
Financial Officer and Treasurer
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1.1.
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Introduction
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1.2.
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Basic
Data
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1.3.
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Additional
Definitions
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ARTICLE
II PREMISES AND APPURTENANT
RIGHTS
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2.1.
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Lease
of Premises
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2.2.
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Appurtenant
Rights and Reservations
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2.3.
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Rooftop
Equipment
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2.4.
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Fitness
Center
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2.5.
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Cafeteria
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ARTICLE
III RENT
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3.1.
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Basic
Rent
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ARTICLE
IV TERM OF LEASE
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4.1.
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Commencement
Date
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4.2.
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Preparation
of the Premises
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4.3.
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Conclusiveness
of Landlord’s Performance; Warranties
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4.4
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Relocation
Expense
Reimbursement……………………………………………….
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ARTICLE
V USE OF PREMISES
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5.1.
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Permitted
Use; Compliance with Laws
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5.2.
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Installations
and Alterations by Tenant
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ARTICLE
VI ASSIGNMENT AND
SUBLETTING
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6.1.
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Prohibition
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6.2.
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Excess
Payments
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ARTICLE
VII RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF
PREMISES
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7.1.
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Landlord
Repairs
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7.2.
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Tenant’s
Agreement
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7.3.
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Floor
Load - Heavy Machinery
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7.4.
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Building
Services
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7.5.
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Electricity
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7.6.
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Interruption
of Services
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ARTICLE
VIII OMITTED
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ARTICLE
IX OMITTED
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ARTICLE
X INDEMNITY AND PUBLIC LIABILITY
INSURANCE
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10.1.Tenant’s
Indemnity
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10.2.Tenant's
Insurance
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10.3.Tenant’s
Risk
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10.4.Injury
Caused by Third Parties
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10.5.Landlord’s
Insurance
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10.6.Waiver
of Subrogation
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ARTICLE
XI LANDLORD’S ACCESS TO
PREMISES
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11.1.Landlord’s
Rights
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ARTICLE
XII FIRE, EMINENT DOMAIN,
ETC.
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12.1.Abatement
of Rent
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12.2.Right
of Termination
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12.3.Restoration
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12.4.Award
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12.5.Temporary
Taking
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ARTICLE
XIII DEFAULT
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13.1.Default
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13.2.Remedies
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ARTICLE
XIV MISCELLANEOUS PROVISIONS
AND
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14.1.Extra
Hazardous Use
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14.2.Waiver
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14.3.Covenant
of Quiet Enjoyment
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14.4.Landlord’s
Liability
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14.5.Notice
to Mortgagee
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14.6.Assignment
of Rents and Transfer of Titles
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14.7.Rules
and Regulations
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14.8.Additional
Charges
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14.9.Invalidity
of Particular Provisions
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14.10.Provisions
Binding, Etc.
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14.11.Recording
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14.12.Notices
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14.13.When
Lease Becomes Binding
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14.14.Paragraph
Headings
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14.15.Rights
of Mortgagee
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14.16.Status
Report
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14.17.Security
Deposit
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14.18.Remedying
Defaults; Late Payments
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14.19.Holding
Over
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14.20.Surrender
of Premises
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14.21.Brokerage
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14.22.Environmental
Compliance
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14.23.Exhibits
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14.24.Governing
Law
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14.25.Evidence
of Authority.
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14.26.Representations
and Warranties of Tenant.
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14.27.Landlord’s
Representations and Warranties
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14.29.Force
Majeure Event
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ARTICLE
XV TENANT OPTION TO
EXTEND
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15.1.Fair
Market Rent
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15.2.Option
to Extend
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ARTICLE
XVI RIGHT OF FIRST OFFER TO
LEASE
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1.1.
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Introduction
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1.2.
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Basic
Data
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1.3.
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Additional
Definitions
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2.1.
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Lease
of Premises
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2.2.
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Appurtenant
Rights and Reservations
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2.3.
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Rooftop
Equipment
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2.4.
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Fitness
Center
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2.5.
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Cafeteria
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3.1.
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Basic
Rent
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3.2.
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Taxes
and Expenses
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3.3.
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Independent
Covenants
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4.1.
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Commencement
Date
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a.
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The
Scheduled Completion Date; or
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b.
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The
day following the date on which the Premises are ready for occupancy as
provided in Section 4.2.
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4.2.
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Preparation
of the Premises
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a.
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Landlord
and Tenant have approved the plans and specifications attached hereto as
Exhibit B
and
Exhibit
C
(the “Plans”). It is expressly understood that
Tenant’s approval of the Plans is for the benefit of Landlord and Tenant,
without representation or warranty by Tenant or any party claiming by,
through or under Tenant with respect to the compliance thereof with
applicable Laws. Landlord shall use Visnick & Caulfield to
provide architectural services for the planning and construction of
Landlord’s Work. Landlord shall exercise all reasonable efforts
to complete the work (“Landlord’s Work”) as specified in the Plans,
including the work in the Premises, the Fitness Center (if Landlord elects
the Landlord Fitness Center Option) and the Cafeteria, as set forth in
Exhibit
C
. If Landlord's Work has not been substantially
completed by the Scheduled Completion Date, this Lease shall nevertheless
continue in full force and effect and Landlord shall continue to use
diligent efforts to substantially complete Landlord's
Work. Landlord shall perform Landlord's Work at its sole cost
and expense, and in a lien free manner; provided that Landlord shall have
the right to bond over any liens filed against the Premises or the
Building. Landlord shall make such changes to the Plans as may
be reasonably requested by Tenant, provided that Tenant shall pay for all
costs associated therewith, and any delay occasioned thereby shall be a
Tenant Delay. Any such increase shall be paid to Landlord 50%
upon the date of Tenant’s authorization to Landlord to proceed with such
change, and 50% upon substantial completion thereof as certified by
Landlord's architect. Tenant shall, if requested by Landlord,
execute a written confirmation of such excess costs and Tenant’s agreement
to any Tenant Delay occasioned thereby before the time Landlord shall be
required to commence work. Tenant shall not be responsible for
any increase in the cost of Landlord’s Work or any delay thereof caused by
Landlord’s failure to perform Landlord’s Work in accordance with the
Plans. Landlord shall, at its expense, procure a certificate of
occupancy or an equivalent use or occupancy permit or approval issued by
the local building inspector in connection with its construction
obligations hereunder as a condition to the occurrence of the Commencement
Date. Tenant shall have the right to inspect the progress of
Landlord’s Work from time to time upon reasonable prior verbal notice to
Landlord. Landlord shall also respond to Tenant’s reasonable
requests for verbal updates as to the progress of Landlord’s
Work.
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b.
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The
Premises shall be deemed ready for occupancy, and “substantial completion”
shall be deemed to have occurred on the first day as of
which:
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i.
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Each
of the following shall have occurred: (A) Landlord’s Work has been
completed in accordance with the Plans, except for items of work (and, if
applicable, adjustment of equipment and fixtures) which can be completed
after occupancy has been taken without causing undue interference with
Tenant’s use and occupancy of the Premises for the conduct of business
(i.e., so-called “punch list” items); (B) a certificate of occupancy or an
equivalent use or occupancy permit or approval has been issued by the
local building inspector permitting the use of the Premises for the
Permitted Uses; and (C) a certificate of substantial completion has been
issued to Landlord and Tenant by Landlord’s architect in connection with
Landlord’s construction obligations hereunder (which determination shall
be made by Landlord’s architect and shall be conclusive and binding upon
Landlord and Tenant); and
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ii.
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Tenant
has been given notice of the date that Landlord’s Work was or will be
completed, such notice to be given by Landlord to Tenant at least ten (10)
days before the anticipated date of substantial
completion. Landlord shall complete within sixty (60) days of
substantial completion or as soon any as conditions imposed by Tenant
permit all “punch list” items and Tenant shall afford Landlord access to
the Premises for such purposes. All telephone installation in
the Premises shall be the responsibility of the Tenant, except as set
forth in
Exhibit
C
. Failure or delay of such installation shall not delay
the above completion date.
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c.
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Twenty-one
(21) days prior to each Scheduled Access Date (as defined below) Landlord
shall notify Tenant (which notice may be verbal to Tenant’s representative
in respect of Landlord’s Work) that Tenant may access the Premises for the
purpose of allowing Tenant or its contractors, without the requirement for
payment of Rent, to prepare the Premises for occupancy and use, including
to install furniture and similar set up work required to prepare the
Premises for occupancy when such access may be provided without material
interference with the remaining Landlord Work provided that any such work
to be performed by Tenant or its contractor’s during such period shall (i)
not interfere with the remaining Landlord Work, (ii) be coordinated with
the remaining Landlord Work in such a manner as to maintain harmonious
labor relations and not cause any work stoppage or damage to the Premises
or the Building and (iii) not interfere with Building construction or
operation. Tenant agrees not to employ or permit the use of any
labor or otherwise take any action which might result in a labor dispute
involving personnel providing services in the Building pursuant to
arrangements with Landlord. The respective dates on which
Landlord shall provide Tenant with access to the following floors of the
Premises (each, a “Scheduled Access Date”) are as follows: (w)
Third Floor, February 1, 2010; (x) Server Room on Second Floor, February
8, 2010; (y) Second Floor (other than Server Room), February 12, 2010, and
(z) First Floor, February 15, 2010. Each one (1) day delay in
either the provision of notice hereunder or in a Scheduled Access Delay
shall be deemed to be one (1) day of Landlord’s Delay, in the event that
Tenant is actually delayed by any of the above. In addition, in
the event that access to any floor is delayed beyond a Scheduled Access
Date, and Tenant incurs overtime furniture installation costs in order to
achieve its targeted move in date, Landlord shall reimburse Tenant for the
overtime component of such installation costs, provided that Tenant has
discussed the situation with Landlord in
advance.
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d.
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If
a delay shall occur in the date the Premises are ready for occupancy
pursuant to paragraph (b) as the result of any of the following (a
“Tenant’s Delay”):
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i.
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Any
documented request by Tenant that Landlord delay in the commencement or
completion of Landlord’s Work for any
reason;
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ii.
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Any
change by Tenant in any of the Landlord's Work that, in Landlord's
reasonable judgment, causes a delay in Landlord's completion of Landlord's
Work;
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iii.
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Any
failure by Tenant to adhere timely to the schedule set forth in
Exhibit C
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except for schedule delays mutually and expressly agreed upon by Landlord
and Tenant;
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iv.
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Any
other act or omission of Tenant or its officers, agents, servants or
contractors;
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v.
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Any
reasonably necessary displacement of any of Landlord’s Work from its place
in Landlord’s construction schedule resulting from any of the causes for
delay referred to in clauses i., ii., iii., or iv of this paragraph and
the fitting of Landlord’s Work back into such schedule (which fitting
Landlord shall use reasonable efforts to do and give Tenant notice of the
proposed revised schedule); or
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vi.
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Any
act or omission of Tenant in violation of paragraph (d)
above;
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e.
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If,
as a result of Tenant’s Delay(s), Landlord’s Work is delayed in the
aggregate for more than ninety (90) successive days, Landlord may (but
shall not be required to) at any time thereafter terminate this Lease by
giving written notice of such termination to Tenant and thereupon this
Lease shall terminate without further liability or obligation on the part
of either party except that Tenant shall pay to Landlord the cost
theretofore incurred by Landlord in performing Landlord’s
Work.
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f.
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If
the Premises are not “ready for occupancy” by January 1, 2010 other than
as the result of a Tenant’s Delay or a Force Majeure Event (a “Landlord
Delay”), then for each day after such date that Landlord’s Work is not
“ready for occupancy” Tenant shall receive a credit against the Basic Rent
hereunder in an amount equal to the actual holdover rent and legal
expenses, in excess of its current rent (the “Holdover Costs”), actually
incurred by Tenant (as evidenced by rental invoices received by Tenant),
not to exceed the 150% of Tenant’s current base rent (“Holdover Costs
Cap”) under Tenant’s lease with Intercontinental Fund III as
successor to Wellsford/Whitehall Holdings, L.L.C. dated November 25, 2003
(as amended to date, “Tenant Prior Lease”), a correct and complete copy of
which Tenant has delivered to
Landlord.
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g.
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If
the Premises are not “ready for occupancy” (as determined pursuant to the
procedure set forth in Section 4.2(c), to the extent
applicable):
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i.
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(i)
by the Scheduled Completion Date as the result of a Landlord Delay, then
for each day thereafter until the thirtieth (30th) day that the Premises
are not “ready for occupancy”, the Basic Rent Commencement Date shall be
delayed one-half (1/2) day for each day of such delay (in addition to the
Holdover Costs described above);
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ii.
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(ii)
by the date that is thirty-one (31) days after the Scheduled Completion
Date as a result of a Landlord Delay, then for each day from and after
such thirty-first (31st) day until the forty-fifth (45
th
)
day after the Scheduled Completion Date as a result of a Landlord Delay,
the Basic Rent Commencement Date shall be delayed one (1) for each day of
such delay (in addition to the delay in the Basic Rent Commencement Date
set forth in subclause (i) above and the Holdover Costs described above);
and
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iii.
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(iii)
by the date that is forty-six (46) days after the Scheduled Completion
Date as a result of a Landlord Delay until the Premises are ready for
occupancy, the Basic Rent Commencement Date shall be delayed two (2) days
for each day of such delay (in addition to the delay in the Basic Rent
Commencement Date set forth in subclauses (i) and (ii) above and the
Holdover Costs described above).
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h.
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If
Landlord’s Work in the Premises has not been substantially completed
by
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September
1, 2010 as the result of a Landlord Delay, then Tenant may (but shall not
be required to) terminate this Lease by delivery of written notice of such
termination by September 30, 2010, and this Lease shall thereupon
terminate without further liability or obligation on the part of either
party, unless Landlord’s Work in the Premises is substantially completed
within thirty (30) days after the delivery of such notice, in which event
such notice shall be null and void, and this Lease shall remain
in full force and effect.
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4.3.
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Conclusiveness
of Landlord’s Performance;
Warranties
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4.4.
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Relocation
Expense Reimbursement
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5.1.
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Permitted
Use; Compliance with Laws
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a.
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The
Premises shall be used and occupied by Tenant only for Permitted Uses and
for no other purpose. Tenant shall comply with all statutes,
codes, ordinances, orders, rules and regulations of any municipal or
governmental entity whether in effect now or later, including the
Americans with Disabilities Act (“Law(s)”), regarding the operation of
Tenant’s business and the use, condition, configuration and occupancy of
the Premises, except that Landlord shall be responsible for the compliance
with Law of Landlord’s Work. In addition, Tenant shall, at its
sole cost and expense, promptly comply with any Laws that relate to the
“Base Building” (defined below), but only to the extent such obligations
are triggered by Tenant’s use of the Premises, other than for general
office use, or Alterations or improvements in the Premises performed or
requested by Tenant (other than Landlord’s Work). Landlord shall be
responsible for the correction of any violations of Title III of the
Americans with Disabilities Act. Except as otherwise
provided herein, Landlord shall be responsible for the compliance
with Law of the Building from and after the Commencement Date,
provided that the cost thereof shall constitute an Expense in accordance
with the terms of
Exhibit F
.
“Base Building” shall include the structural portions of the Building, the
public restrooms and the Building mechanical, electrical and plumbing
systems and equipment located in the internal core of the Building on the
floor or floors on which the Premises are located. Tenant shall promptly
provide Landlord with copies of any notices it receives regarding an
alleged violation of Law. Tenant shall not exceed the standard
density limit for the Building. Tenant shall comply with the rules and
regulations of the Building attached as
Exhibit G
and such other reasonable rules and regulations adopted by Landlord from
time to time, including rules and regulations for the performance of
alterations to the Premises under the provisions of Section 5.2
below.
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b.
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Tenant
shall conform to the following provisions during the Term of this
Lease:
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i.
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Tenant
shall cause all freight to be delivered to or removed from the Building
and the Premises in accordance with reasonable rules and regulations
established by Landlord therefor;
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ii.
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Tenant
will not place on the exterior of the Premises (including both interior
and exterior surfaces of windows and doors) or on any part of the Building
outside the Premises, any sign, symbol, advertisement or the like visible
to public view outside of the Premises without the prior consent of
Landlord. Landlord, as part of Landlord’s Work, shall install
the Tenant’s Building One interior lobby sign between the second and third
floors of Building One, centered above Tenant’s lobby entrance, the size
and placement of which are depicted on the schematic attached hereto as
Exhibit
B-2
. It is understood that the lobby entrance
shall be centered with the existing stairs that lead from the ground floor
to the first floor (left of the elevator from the private
garage). Landlord shall have the right to grant to another
tenant or tenants the right to signage of the same size, height on lobby
wall and finish in the Building One interior lobby as the foregoing
signage right given to Tenant, so long as such other tenants lease at
least 90,000 rentable square feet in Building One. In addition,
Landlord shall have the right to grant signage rights to any tenant which
leases 199,999 rentable square feet or more in the Building without any
restriction or limitation. Tenant’s sign shall not be
obstructed by the trees in the lobby of the Building, and Landlord, at its
expense, shall trim or move such trees to the extent that the trees
obstruct Tenant’s sign.
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iii.
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Tenant
shall not perform any act or carry on any practice which may injure the
Premises, or any other part of the Building, or cause any offensive odors
or loud noise or constitute a nuisance or a menace to any other tenant or
tenants or other persons in the Building;
and
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iv.
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Tenant
shall not operate any cooking apparatus (except for coffee making
equipment, a microwave oven, a standard size refrigerator and a sink) in
the Premises. Tenant may have vending machines in the
Premises.
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5.2.
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Installations
and Alterations by Tenant
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a.
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Tenant
shall make no alterations, additions or improvements (collectively,
“Improvements”) in or to the Premises without Landlord’s prior written
consent provided that subsequent to the completion of the Landlord’s Work,
Landlord’s consent shall not be required if such Improvements (i) are
non-structural, do not affect any Building systems, are not visible from
the exterior of the Building, do not require work to be performed inside
the walls or above the ceiling of the Premises, and do not exceed in the
aggregate a cost of Fifty Thousand ($50,000.00)
Dollars,
or (ii) are of a
decorating nature (i.e., carpeting, painting, wallpaper) irrespective of
the cost. With respect to Improvements requiring Landlord’s
consent, Landlord shall not unreasonably withhold, condition or delay its
consent for non-structural Improvements to the Premises. All
Improvements shall:
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i.
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Be
performed in a good and workmanlike manner and in compliance with all
applicable laws;
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ii.
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Be
made only by contractors or mechanics approved by
Landlord;
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iii.
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Be
made at Tenant’s sole expense and at such times and in such manner as
Landlord may from time to time reasonably designate;
and
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iv.
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Become
part of the Premises and the property of
Landlord.
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b.
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All
articles of personal property and all business fixtures, machinery and
equipment and furniture owned or installed by Tenant solely at its expense
in the Premises (“Tenant’s Removable Property”) shall remain the Property
of Tenant and shall be removed by Tenant at any time before the expiration
of this Lease, provided that Tenant, at its expense, shall repair any
damage to the Premises and the Building caused by such
removal.
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c.
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Notice
is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic’s or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to
the Premises. Whenever and as often as any mechanic’s lien
shall have been filed against the Property based upon any act or interest
of Tenant or of anyone claiming through Tenant, Tenant shall forthwith
take such action by bonding, deposit or payment as will remove or satisfy
the lien. Landlord shall have the option, but not the
obligation, of removing, bonding over or paying such lien if Tenant has
not done so within ten (10) days following Landlord’s notice to Tenant of
the filing of the same, and any amounts paid by Landlord therefor shall be
paid to Landlord within fifteen (15) days after invoice therefor as
additional rent hereunder.
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d.
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Tenant
shall not be obligated to remove at the end of the Term of this Lease (i)
any Improvement unless Landlord specifies an Improvement for removal at
the time Landlord consents to such Improvement (Landlord hereby agreeing
that alterations consistent with a general office build out and the
initial improvements in the Premises shall not require removal by Tenant),
or (ii) any improvements built by Landlord as part of the initial fit-up
of the Premises which would customarily be considered standard tenant
improvement (collectively referred to herein as “Building Standard Office
Improvements”).
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6.1.
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Prohibition
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a.
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Tenant
covenants and agrees that neither this Lease nor the term and estate
hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred and that neither
the Premises nor any part thereof will be encumbered in any manner by
reason of any act or omission on the part of Tenant, or used or occupied
or permitted to be used or occupied, by anyone other than Tenant, or for
any use or purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions, licenses and
the like) in whole or in part, without, in each instance, having first
received the express written consent of Landlord which, in the case of any
subletting, will not be unreasonably withheld subject to the following
conditions: (i) Tenant is not then in default under this Lease,
(ii) the proposed sublease is not to any party then occupying any space in
the Building, or, until the first (1
st
)
anniversary of the Commencement Date, to any party with whom Landlord has
a written proposal to lease space in the Building outstanding for sixty
(60) days or less, (iii) the prospective subtenant or assignee is of the
type and quality suitable for a first-class office building, and (iv) any
such sublease shall be subject to all the other provisions of this Article
VI. Tenant’s request for Landlord’s consent shall be in writing
and shall contain the name and address of the proposed sublessee, the rent
and other sums to be paid thereunder, the effective date of the proposed
sublease and the other major business terms thereof, and the term and area
of any proposed sublease. In all other cases, Landlord’s
consent may be withheld in its sole discretion. Landlord shall
respond to any request for consent as to which Landlord’s consent is not
be unreasonably withheld within ten (10) business days of request
therefor, and to other such requests within twenty (20) business days of
request therefor. The foregoing restrictions shall not be
applicable to the following transactions, each of which shall constitute a
“Permitted Transaction” hereunder: (i) an assignment of this Lease or a
subletting of the Premises by Tenant to an entity controlling, controlled
by or under common control with Tenant or (ii) an assignment of this Lease
to an entity that succeeds to Tenant’s interest in this Lease by reason of
merger, acquisition, consolidation or reorganization (collectively such
entities are referred to herein as, “Affiliates”), provided that Tenant
shall, at least ten (10) business days (to the extent permitted by Law)
before the effective date of such assignment to an entity described in the
foregoing clause (ii), provide to Landlord evidence reasonably
satisfactory to Landlord that, as of the date of such assignment, the
assignee shall have a net worth equal to the net worth of Tenant as of the
date of this Lease. It shall be a condition of the validity of
any assignment, whether with the consent of Landlord or as part of a
Permitted Transaction, that the assignee agrees directly with Landlord, by
written instrument in form satisfactory to Landlord, to be bound by all
the obligations of Tenant hereunder including, without limitation, the
covenant against further assignment and subletting. No
assignment or subletting shall relieve Tenant from its obligations
hereunder and Tenant shall remain fully and primarily liable
therefor. Notwithstanding the foregoing, Tenant shall be
entitled to sublease portions of the Premises, without Landlord’s consent
(but Tenant shall deliver Landlord written notice of such subleases), to
vendors or other third parties having a substantial business relationship
with Tenant (any such subletting also being deemed a Permitted
Transaction); provided that such subleasing (xx) does not involve any
improvements or modifications to the Premises, including, without
limitation, the installation of demising walls, (yy) does not result in
Tenant earning a profit from the sublease of such space, and (zz) does not
exceed more than 10,000 rentable square feet of the Premises in the
aggregate.
|
b.
|
If
this Lease be assigned, or if the Premises or any part thereof be sublet
or occupied by anyone other than Tenant, Landlord may, at any time and
from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as a tenant or a release
of Tenant from the further performance by Tenant of its obligations
hereunder. The consent by Landlord to an assignment or
subletting shall in no way be construed to relieve Tenant or any successor
from obtaining the express consent in writing of Landlord to any further
assignment or subletting. No assignment or subletting and no
use of the Premises by a subsidiary wholly-owned by Tenant or controlling
corporation of Tenant shall affect Permitted
Uses.
|
c.
|
Landlord
Option.
|
i.
|
Right
to Cancel. Notwithstanding any contrary provision of this
Section 6.1, in connection with either (x) a proposed assignment
(other than pursuant to a Permitted Transaction) at any time during the
Term, or (y) a proposed subletting (other than pursuant to a Permitted
Transaction) during the final twenty-four (24) months of the Term, if the
request is to sublet more than fifty (50%) percent of the Premises,
Landlord shall have an option to cancel and terminate this Lease by notice
to Tenant in the case of assignment, or in the case of subletting, with
respect to such portion of the Premises which is the subject of the
proposed sublease. Landlord may exercise said option in writing
within twenty (20) business days after Landlord’s receipt from Tenant of
(I) a request to so assign or sublet, or (II) a term sheet setting forth
all material business terms upon which Tenant intends to so assign or
sublease the Premises, and such cancellation or termination shall occur as
of the date set forth in Landlord’s notice of exercise of such option,
which shall not be less than thirty (30) days nor more than ninety (90)
days following the giving of such
notice.
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ii.
|
Cancellation. If
Landlord exercises Landlord’s option to cancel hereunder, Tenant shall
surrender possession of the portion of the Premises which is the subject
of the option on the date set forth in such notice in accordance with the
provisions of this Lease relating to surrender of the Premises at the
expiration of the Term. In such event, (i) Basic Rent,
Escalation Charges and any other sums due hereunder with respect to the
surrendered portion of the Premises after the date of cancellation shall
be abated on a pro rata basis, and (ii) in the case of subletting,
Landlord shall have the right to construct a demising wall and perform
such other space reconfiguration measures as are necessary between
Tenant’s remaining Premises and the premises for which the Lease was
cancelled.
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iii.
|
No
Deemed Consent. The acceptance by the Landlord of the payment
of Basic Rent, Additional Rent or other charges following an assignment,
subletting or assignment prohibited by this Section 6.1 shall not be
deemed to be a consent by the Landlord to any such subletting or
assignment, nor shall the same constitute a waiver of any right or remedy
of Landlord.
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6.2.
|
Excess
Payments
|
i.
|
The
rent and other sums received by Tenant on account of a sublease of all or
any portion of the Premises exceeds the Basic Rent and Escalation Charges
allocable to the space subject to the sublease (in the proportion of the
area of such space to the entire Premises) plus actual out-of-pocket
expenses incurred by Tenant in connection with Tenant’s subleasing of such
space, including brokerage commissions to a licensed broker and the cost
of preparing such space for occupancy by the subtenant (the “Tenant
Costs”), Tenant shall pay to Landlord, as an additional charge, 50% of
such excess, monthly as received by Tenant;
or
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ii.
|
Any
payment received by Tenant on account of any assignment of this Lease
exceeds the actual out-of-pocket expenses incurred by Tenant in connection
with such assignment, including brokerage commissions to a licensed broker
and the cost of preparing space for the assignee (the “Tenant Costs”),
Tenant shall pay to Landlord, as an additional charge, 50% of such excess
when received by Tenant.
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7.1.
|
Landlord
Repairs
|
a.
|
Except
as otherwise provided in this Lease, Landlord shall keep in good order,
condition and repair and in accordance with the requirements of applicable
law the roof, public areas (including common areas), exterior walls,
exterior glass, floor slabs, the Building HVAC system (but not any special
tenant HVAC system) and structure of the Building (including plumbing,
mechanical and electrical systems), all insofar as they affect the
Premises, except that Landlord shall in no event be responsible to Tenant
for the condition of glass in and about the Premises or for the doors
leading to the Premises, or for any condition in the Premises or the
Building caused by any act or neglect of Tenant, its invitees or
contractors (in which case Tenant shall promptly effect such repairs or,
at Landlord’s option, Landlord may effect such repairs and charge the
entire cost thereof to Tenant as additional rent provided, however, that
if, after Tenant pays the cost of such repair, Landlord receives from its
insurance carrier proceeds with respect to the cost of such repairs,
Landlord shall reimburse Tenant for the cost of such repairs up to the
amount actually received by Landlord with respect to the same). Landlord
shall not be responsible to make any improvements or repairs to the
Building other than as expressly in this Section 7.1 provided, unless
expressly provided otherwise in this
Lease.
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b.
|
Landlord
shall never be liable for any failure to make repairs which, under the
provisions of this Section 7.1 or elsewhere in this Lease, Landlord has
undertaken to make unless Tenant has given notice to Landlord of the need
to make such repairs, and Landlord has failed to commence to make such
repairs within a reasonable time after receipt of such notice, or fails to
proceed with reasonable diligence to complete such
repairs. Landlord shall make repairs in emergency situations as
quickly as possible in the
circumstances.
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7.2.
|
Tenant’s
Agreement
|
a.
|
Tenant
shall keep neat and clean and maintain in good order, condition and repair
the Premises and every part thereof, excepting only those repairs for
which Landlord is responsible under the terms of this Lease, reasonable
wear and tear of the Premises, and damage by fire or other casualty and as
a consequence of the exercise of the power of eminent domain; and shall
surrender the Premises, at the end of the Term, in such
condition. Without limitation, Tenant shall maintain and use
the Premises in accordance with all directions, rules and regulations of
the proper officers of governmental agencies having jurisdiction, and
shall, at Tenant’s own expense, obtain all permits, licenses and the like
required by applicable law. Tenant shall be responsible for the
cost of repairs that may be made necessary by reason of damage to common
areas in the Building by Tenant, Tenant's independent contractors or
Tenant's invitees. Tenant shall be responsible for the
maintenance and repair of all plumbing and electrical facilities within
the Premises other than to the extent provided in Section 4.3
hereof..
|
b.
|
If
repairs are required to be made by Tenant pursuant to the terms hereof,
Landlord may demand that Tenant make the same forthwith, and if Tenant
refuses or neglects to commence such repairs and complete the same with
reasonable dispatch, after such demand, Landlord may (but shall not be
required to do so) make or cause such repairs to be made and shall not be
responsible to Tenant for any loss or damage that may accrue to Tenant’s
stock or business by reason thereof. If Landlord makes or
causes such repairs to be made, Tenant agrees that Tenant shall forthwith,
on demand, pay to Landlord the cost thereof as an additional charge
hereunder.
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7.3.
|
Floor
Load - Heavy Machinery
|
a.
|
Tenant
shall not place a load upon any floor in the Premises exceeding 80
pounds live load per square foot and 20 pounds partition load
per square foot. Landlord reserves the right to prescribe
the weight and position of all business machines and mechanical equipment,
including safes, which shall be placed so as to distribute the
weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant’s expense in settings
sufficient, in Landlord’s judgment, to absorb and prevent vibration, noise
and annoyance. Tenant shall not move any safe, heavy machinery,
heavy equipment, freight, bulky matter or fixtures into or out of the
Building without Landlord’s prior consent, which consent may include a
requirement to provide insurance in such amounts as Landlord may deem
reasonable.
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b.
|
If
any such safe, machinery, equipment, freight, bulky matter or fixtures
requires special handling, Tenant agrees to employ only persons holding a
Master Rigger’s License to do such work, and that all work in connection
therewith shall comply with applicable laws and
regulations. Any such moving shall be at the sole risk and
hazard of Tenant, and Tenant will exonerate, indemnify and save Landlord
harmless against and from any liability, loss, injury, claim or suit
resulting directly or indirectly from such
moving.
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7.4.
|
Building
Services
|
a.
|
Landlord
shall, on Business Days from 8:00 a.m. to 6:00 p.m. (and on Saturdays only
from 9:00 a.m. to 1:00 p.m.) (“Normal Business Hours”), furnish heating
and cooling as normal seasonal changes and the Massachusetts State
Building Code may require to provide reasonably comfortable space
temperature and ventilation for occupants of the Premises under normal
business operation at an occupancy of not more than one person physically
located in the Premises at any time per 175 square feet of Premises
Rentable Area and an electrical load not exceeding approximately ten (10)
watts per square foot of Premises Rentable Area, comprised of 1.5 watts
for lighting, 2.5 watts for outlets/miscellaneous, and 6 watts for
HVAC. If Tenant shall require air conditioning, heating or
ventilation outside Normal Business Hours, Landlord shall furnish such
service and Tenant shall pay therefor such charges as may from time to
time be in effect (currently $35.00 per hour, subject to adjustment based
solely upon actual increases in utility costs). In the event
Tenant introduces into the Premises personnel or equipment which exceeds
the standards set forth above or in any other way interferes with the
Building system’s ability to perform adequately its proper functions,
supplementary systems may, if and as needed, at Landlord’s option, be
provided by Landlord, at Tenant’s expense. Except in the case
of emergency or a scheduled closing of the Building, Landlord shall
provide to Tenant (subject to reasonable security procedures which may be
imposed by Landlord) access to the Building, an elevator and the loading
dock twenty-four hours per day, seven (7) days per week. In
addition, Landlord shall provide four hundred ninety-one (491) square
feet
of dock
storage (“Dock Storage Space”) at the Building One dock in the location
shown on
Exhibit
B-3
for the exclusive use of Tenant at a cost of $10 per square
foot per year, commencing on the Commencement Date of this
Lease. Landlord shall provide Tenant with thirty (30) days
prior notice (to the extent feasible in the circumstances) in the event of
any required shutdown of the Building’s HVAC system (including the
condenser water loop), electrical service or emergency generator, and
shall work with Tenant to minimize the impact of the same on Tenant’s
operations in the Premises.
|
b.
|
Landlord
shall also provide:
|
i.
|
Hot
water for lavatory purposes and cold water (at temperatures supplied by
the Town of Newton) for drinking, lavatory, and toilet
purposes. If Tenant uses water for any purpose other than as
set forth in the preceding sentence, Landlord may assess a reasonable
charge for the additional water so used. All piping and other
equipment and facilities required for use of water outside the Building
core will be installed and maintained by Landlord at Tenant’s sole cost
and expense.
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ii.
|
Cleaning
and janitorial services to the Premises on Business Days, including those
services listed on
Exhibit E
attached hereto, in a manner customarily performed within the janitorial
industry in office buildings of similar age, size, class and composition
of the Building in the area, or such other reasonably comparable
janitorial services designated by Landlord from time to time, provided the
same are kept in order by Tenant,.
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iii.
|
Except
in the case of scheduled maintenance, emergencies and scheduled Building
closings, passenger elevator service from the existing passenger elevator
system in common with Landlord and other tenants of the Building shall be
available twenty-four (24) hours a day, seven (7) days a
week.
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iv.
|
The
Building security protocols and services are described in
Exhibit K
attached hereto. In no event shall Landlord have any liability
for the inadequacy or failure of any security or protective services,
personnel or equipment.
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v.
|
Tenant
shall have the right to connect its supplemental HVAC units (the
"Units")to the Building’s condenser water loop on the terms set forth
herein. To the extent of available capacity as determined
by Landlord’s engineers, and subject to the rights of existing tenants in
the Building, Tenant may connect up to 100 tons of supplemental cooling to
the Building’s condenser water loop. Tenant shall be responsible for all
repairs and maintenance to the HVAC units. Landlord shall be
responsible for all repairs and maintenance to the condenser water loop.
Tenant shall pay Landlord an annual usage fee of $365.00 per ton of
supplemental HVAC equipment to be connected to Landlord's condenser water
loop. For example, if Tenant connects two tons of
equipment to Landlord's condenser water loop, Tenant shall be required to
pay Landlord a usage charge $60.83 per month (2 tons x
$30.4166). All such fees shall be payable by Tenant to Landlord
as Additional Rent hereunder within fifteen (15) days of invoice
therefor. In no event shall Tenant be entitled to use more than
its proportionate share of the Building's excess water condenser
capacity. The size, make, type and design of the Units, the
manner in which the Units will be vented and access outside air, if
applicable, and the manner in which the Units connect to Landlord's
condenser water loop, including, without limitation the routing of any
water lines, shall be subject to Landlord's prior review and
approval. Tenant shall be responsible, at its cost, for
maintaining the Units to the reasonable satisfaction of Landlord and the
cost of purchasing and installing a submeter for the Units to measure
electricity consumed in connection with the Units, as well as for the cost
of all such electricity that is consumed in the operation of the
Units.
|
7.5.
|
Electricity
|
a.
|
Landlord
shall supply electricity to the Premises in accordance with the electrical
capacity set forth in Section 7.4(a) above. Tenant agrees in
its use of the Premises not to exceed such capacity, and further agrees
that its total connected lighting load will not exceed the maximum from
time to time permitted under applicable governmental
regulations. Except as set forth in
Exhibit C
,
Landlord shall purchase and install all lamps, tubes, bulbs, starters and
ballasts for all original fluorescent tubes within the
Premises. All other bulbs, tubes and lighting fixtures for the
Premises shall be provided and installed by Landlord at Tenant’s cost and
expense. In order to assure that the foregoing requirements are
not exceeded and to avert possible adverse affect on the Building’s
electric system, Tenant shall not, without Landlord’s prior consent,
connect any fixtures, appliances or equipment to the Building’s electric
distribution system other than standard office equipment including,
without limitation, personal computers, printers, photocopiers and fax
machines.
|
b.
|
Landlord
shall install at Landlord’s expense as part of Landlord’s Work a submeter
which shall measure electric consumption (including electricity consumed
in connection with the operation of the variable-air-volume (VAV) boxes
used to heat and cool the Premises) in the Premises, to be charged in
accordance with Section 7.4.a above; provided, that Tenant shall not be
charged a separate administrative fee with respect to the
submetering. Tenant shall pay as additional rent all amounts
billed by the applicable utility company when due directly to the utility
company. If, for any reason, such utility charges are not
separately metered or submetered at any time during the Term, Tenant shall
pay as additional rent all reasonably allocated charges attributable to
the furnishing of electricity to the
Premises.
|
c.
|
In
the computation of Operating Costs, only the cost of electricity supplied
to those portions of the Building other than those intended to be leased
to tenants for their exclusive use and occupancy, or used by the Building
for its own offices, i.e., only those areas which are so-called common
areas, shall be included.
|
7.6.
|
Interruption
of Services
|
a.
|
Subject
to the last paragraph of this Section 7.6, Landlord reserves the right to
stop the service of heating, air-conditioning, ventilating, elevator,
plumbing, electricity or other mechanical systems or facilities in the
Building, if necessary by reason of accident or emergency , or for
repairs, alterations, replacements, additions or improvements which, in
the reasonable judgment of Landlord, are desirable or necessary until said
repairs, alterations, replacements, additions or improvements shall have
been completed. The exercise of such right by Landlord shall
not constitute an actual or constructive eviction, in whole or in part, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to, or interruption of, Tenant’s business,
or otherwise, or entitle Tenant to any abatement or diminution of
rent. Except in case of emergency repairs, Landlord
will give Tenant reasonable advance notice of any contemplated stoppage of
any such systems or facilities pursuant to the foregoing and will use
diligence to complete any such repairs, alterations, replacements,
additions or improvements promptly. Landlord shall also perform
any such work in a manner designated to minimize interference with
Tenant’s normal business
operations.
|
b.
|
If
Landlord shall fail to supply, or be delayed in supplying any service
expressly or impliedly to be supplied under this Lease, or shall be unable
to make, or be delayed in making, any repairs, alterations, additions,
improvements or decorations, or shall be unable to supply, or be delayed
in supplying, any equipment or fixtures, and if such failure, delay or
inability shall not constitute an actual or constructive eviction, in
whole or in part, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to, or interruption of,
Tenant’s business, or otherwise, or entitle Tenant to any abatement or
diminution of rent.
|
|
Notwithstanding
the foregoing, if for any reason, other than the actions of
Tenant or a Force Majeure Event, Landlord does not provide any
or all of the following services, or does not provide them in the manner
described herein (by temporary service or otherwise): (i) HVAC, (ii)
electric current, and (iii) water, which services are deemed essential to
the conduct of Tenant’s business (hereafter, the “Critical Service(s)”),
and in the manner provided for therein, for more than ten (10) consecutive
business days, then following notice from Tenant to Landlord of such
failure, interruption or reduction, Tenant may abate the monthly
installments of Basic Rent, Escalation Charges and any other sums due
hereunder, on a per diem basis, for the period of interruption,
beginning on the eleventh (11th) business day after such notice and ending
when the Critical Service(s) is/are fully
restored.
|
10.1.
|
Tenant’s
Indemnity
|
10.2.
|
Tenant’s
Insurance
|
10.3.
|
Tenant’s
Risk
|
10.4.
|
Injury
Caused by Third Parties
|
10.5.
|
Landlord’s
Insurance
|
10.6.
|
Waiver
of Subrogation
|
11.1.
|
Landlord’s
Rights
|
12.1.
|
Abatement
of Rent
|
12.2.
|
Right
of Termination
|
12.3.
|
Restoration
|
12.4.
|
Award
|
12.5.
|
Temporary
Taking
|
13.1.
|
Default
|
a.
|
Tenant
shall fail to pay the Basic Rent, Escalation Charges or other charges
hereunder when due and such failure shall continue for five (5) Business
Days after notice to Tenant from Landlord;
or
|
b.
|
Tenant
shall neglect or fail to perform or observe any other covenant herein
contained on Tenant’s part to be performed or observed and Tenant shall
fail to remedy the same within thirty (30) days after notice to Tenant
specifying such neglect or failure, or if such failure is of such a nature
that Tenant cannot reasonably remedy the same within such thirty (30) day
period, Tenant shall fail to commence promptly to remedy the same and to
prosecute such remedy to completion with diligence and continuity but in
no event shall such period exceed ninety (90) days;
or
|
c.
|
Tenant’s
leasehold interest in the Premises shall be taken on execution or by other
process of law directed against Tenant;
or
|
d.
|
Tenant
shall make an assignment for the benefit of creditors or shall file a
voluntary petition in bankruptcy or shall be adjudicated bankrupt or
insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the relief of
debtors, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or any substantial
part of its properties, or shall admit in writing its inability to pay its
debts generally as they become due;
or
|
e.
|
A
petition shall be filed against Tenant in bankruptcy or under any other
law seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
Federal, State or other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of sixty (60) days (whether or
not consecutive), or if any debtor in possession (whether or not Tenant)
trustee, receiver or liquidator of Tenant or of all or any substantial
part of its properties or of the Premises shall be appointed without the
consent or acquiescence of Tenant and such appointment shall remain
unvacated or unstayed for an aggregate of sixty (60) days (whether or not
consecutive);
|
f.
|
Or
if Tenant dissolves or is dissolved or liquidated or adopts any plan or
commences any proceeding, the result of which is intended to include
dissolution or liquidation;
|
g.
|
Then
in any such case:
|
i.
|
If
such Default of Tenant shall occur before the Commencement Date, this
Lease shall
ipso
facto
, and
without further act on the part of Landlord, terminate;
and
|
ii.
|
If
such Default of Tenant shall occur after the Commencement Date, Landlord
may terminate this Lease by notice to Tenant, specifying a date not less
than ten (10) days after the giving of such notice on which this Lease
shall terminate and this Lease shall come to an end on the date specified
therein as fully and completely as if such date were the date herein
originally fixed for the expiration of the Term of this Lease (Tenant
hereby waiving any rights of redemption under M.G.L. c. 186, or
otherwise), and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter
provided.
|
13.2.
|
Remedies
|
a.
|
If
this Lease shall have been terminated as provided in this Article, or if
any execution or attachment shall be issued against Tenant or any of
Tenant’s property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, without notice, re-enter the
Premises, either by summary proceedings or otherwise, and remove and
dispossess Tenant and all other persons and any and all property from the
same, as if this Lease had not been made, and Tenant hereby waives the
service of notice of institution of legal proceedings to that end in the
event that Tenant has vacated the
Premises.
|
b.
|
In
the event of any termination, Tenant shall pay the Basic Rent, Escalation
Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been
the Term of this Lease in the absence of such termination, and whether or
not the Premises shall have been re-let, shall be liable to Landlord for,
and shall pay to Landlord, as current damages, the Basic Rent, Escalation
Charges and other sums which would be payable hereunder if such
termination had not occurred, less the net proceeds, if any, of any
re-letting of the Premises, after deducting all expenses in connection
with such re-letting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, attorneys’ fees,
advertising, expenses of employees, alteration costs and expenses of
preparation for such re-letting. Tenant shall pay such current
damages to Landlord monthly on the days which the Basic Rent would have
been payable hereunder if this Lease had not been
terminated.
|
c.
|
At
any time after such termination, whether or not Landlord shall have
collected any such current damages, Landlord may demand, as liquidated
final damages and in lieu of all such current damages beyond the date of
such demand, and Tenant shall pay to Landlord an amount equal to the
excess, if any, of the Basic Rent, Escalation Charges and other sums as
hereinbefore provided which would be payable hereunder from the date of
such demand (assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of Taxes and Operating Expenses would be the
same as the payments required for the immediately preceding Operating or
Tax Year) for what remained, over the Term of this Lease if the same
remained in effect, over the then fair net rental value of the Premises
for the same period.
|
d.
|
In
case of any Default by Tenant, re-entry, expiration and dispossession by
summary proceedings or otherwise, Landlord
may:
|
i.
|
Re-let
the Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms which may at Landlord’s option be equal
to or less than or exceed the period which would otherwise have
constituted the balance of the Term of this Lease and may grant
concessions or free rent to the extent that Landlord considers advisable
and necessary to re-let the same;
and
|
ii.
|
May
make such reasonable alterations, repairs and decorations in the Premises
as Landlord in its sole judgment considers advisable and necessary for the
purpose of re-letting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in
no event be liable in any way whatsoever for failure to re-let the
Premises, or, in the event that the Premises are re-let, for failure to
collect the rent under such re-letting. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed, or in
the event of Landlord obtaining possession of the Premises, by reason of
the violation by Tenant of any of the covenants and conditions of this
Lease.
|
e.
|
If
a Guarantor of this Lease is named in Section 1.2, the happening of any of
the events described in of this Section 13.1(d) or (e) with respect to the
Guarantor shall constitute a Default of Tenant
hereunder.
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f.
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The
specified remedies to which Landlord may resort hereunder are not intended
to be exclusive of any remedies or means of redress to which Landlord may
at any time be entitled lawfully, and Landlord may invoke any remedy
(including the remedy of specific performance) allowed at law or in equity
as if specific remedies were not herein provided
for.
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g.
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All
costs and expenses incurred by or on behalf of Landlord (including,
without limitation, attorneys’ fees and expenses) in enforcing its rights
hereunder or occasioned by any Default of Tenant shall be paid by
Tenant.
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h.
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Nothing
contained in this Lease shall 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, equal to or less than the amount of the loss or damages
referred to above.
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14.1.
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Extra
Hazardous Use
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14.2.
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Waiver
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a.
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Failure
on the part of Landlord or Tenant to complain of any action or non-action
on the part of the other, no matter how long the same may continue, shall
never be a waiver by Tenant or Landlord, respectively, of any of the
other’s rights hereunder. Further, no waiver at any time of any
of the provisions hereof by Landlord or Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any time of
any of the provisions hereof shall not be construed as a waiver at any
subsequent time of the same provisions. The consent or approval
of Landlord or Tenant to or of any action by the other requiring such
consent or approval shall not be construed to waive or render unnecessary
Landlord’s or Tenant’s consent or approval to or of any subsequent similar
act by the other.
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b.
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No
payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a
lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such a check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without
prejudice to any other rights or remedies which Landlord may have against
Tenant.
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14.3.
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Covenant
of Quiet Enjoyment
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14.4.
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Landlord’s
Liability
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a.
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No
owner of the Property shall be liable under this Lease except for breaches
of Landlord’s obligations occurring while owner of the
Property. The obligations of Landlord shall be binding upon the
assets of Landlord which comprise the Property but not upon other assets
of Landlord. No individual partner, trustee, stockholder,
officer, director, employee, member or beneficiary of Landlord shall be
personally liable under this Lease and Tenant shall look solely to
Landlord’s interest in the Property in pursuit of its remedies upon an
event of default hereunder, and the general assets of Landlord and of the
individual partners, trustees, stockholders, officers, employees, members
or beneficiaries of Landlord shall not be subject to levy, execution or
other enforcement procedure for the satisfaction of the remedies of
Tenant.
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b.
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Except
as otherwise expressly provided in Section 7.6(b), with respect to any
services or utilities to be furnished by Landlord to Tenant, Landlord
shall in no event be liable for failure to furnish the same when prevented
from doing so by strike, lockout, breakdown, accident, order or regulation
of or by any governmental authority, or failure of supply, or inability by
the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord’s reasonable control, or for
cause due to any act or neglect of Tenant or Tenant’s servants, agents,
employees, licensees or any person claiming by, through or under
Tenant.
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c.
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In
no event shall Landlord ever be liable to Tenant for any indirect or
consequential damages suffered by Tenant from whatever
cause.
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14.5.
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Notice
to Mortgagee
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14.6.
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Assignment
of Rents and Transfer of Titles
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a.
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With
reference to any assignment by Landlord of Landlord’s interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage shall
never be treated as an assumption by such holder of any of the obligations
of Landlord hereunder unless such holder shall, by notice sent to Tenant,
specifically otherwise elect and that, except as aforesaid, such holder
shall be treated as having assumed Landlord’s obligations hereunder only
upon foreclosure of such holder’s mortgage and the taking of possession of
the Premises.
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b.
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In
no event shall the acquisition of title to the Property by a purchaser
which, simultaneously therewith, leases the entire Property back to the
seller thereof be treated as an assumption by operation of law or
otherwise, of Landlord’s obligations hereunder, but Tenant shall look
solely to such seller-lessee, and its successors from time to time in
title, for performance of Landlord’s obligations hereunder. In
any event, this Lease shall be subject and subordinate to the lease
between such purchaser-lessor and seller-lessee; provided that Landlord
shall obtain a commercially reasonable subordination, non-disturbance and
attornment agreement with respect to any purchaser-lessor of the
Property. For all purposes, such seller-lessee, and its
successors in title, shall be the Landlord hereunder unless and until
Landlord’s position shall have been assumed by such
purchaser-lessor.
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c.
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Tenant
hereby agrees that, except as provided in paragraph b. of this Section, in
the event of any transfer of title to the Property by Landlord, Landlord
shall thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations
hereunder.
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d.
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Tenant
hereby agrees not to look to the mortgagee, as mortgagee, mortgagee in
possession, or successor in title to the property, for accountability for
any security deposit required by the Landlord hereunder, unless said sums
have actually been received by said mortgagee as security for the tenant’s
performance of this Lease.
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e.
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Tenant
shall not pay rent more than one month in
advance.
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14.7.
|
Rules
and Regulations
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14.8.
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Additional
Charges
|
14.9.
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Invalidity
of Particular Provisions
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14.10.
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Provisions
Binding, Etc.
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14.11.
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Recording
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14.12.
|
Notices
|
14.13.
|
When
Lease Becomes Binding
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14.14.
|
Paragraph
Headings
|
14.15.
|
Rights
of Mortgagee
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14.16.
|
Status
Report
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14.17.
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Security
Deposit
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a.
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Form of Security
Deposit
. Tenant shall deliver to Landlord, concurrent
with Tenant’s execution of this Lease, the Security Deposit amount
identified in Section 1.2 above, in the form of (i) cash, or (ii) an
unconditional, clean, irrevocable, fully assignable standby letter of
credit (the “LOC”), in the form attached hereto as
Exhibit H
((i)
or (ii) shall be referred to herein as the “Security
Deposit”). If the Security Deposit is in the form of a letter
of credit, the LOC shall be issued by a commercial bank having assets in
excess of $100,000,000.00, and which LOC may be presented for payment in a
location in Boston, Massachusetts. On thirty (30) days notice,
Landlord may require that the LOC be replaced with an LOC issued by a
different institution if the then issuing bank’s assets fall below
$100,000,000.00 in value, and failing such replacement, Landlord may draw
upon the LOC and hold the proceeds as described below. The LOC
shall have a term of not less than one (1) year, shall provide for
automatic renewals, and at the end of the Term shall have an expiration
date not earlier than sixty (60) days after the scheduled expiration date
of the Term. Tenant shall pay all expenses, points and/or fees
associated with obtaining the LOC and with any transfer thereof, and any
such expenses or fees shall constitute additional rent payable by Tenant
hereunder. At Landlord’s election from time to time, the LOC shall name
Landlord and its mortgagee as
co-beneficiaries.
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b.
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Landlord’s Holding of
the Security Deposit
. Landlord shall hold the Security
Deposit throughout the term of this Lease as security for the performance
by Tenant of all obligations on the part of Tenant
hereunder. In the event that the Security Deposit is in the
form of cash (or in the event Landlord draws upon the LOC and holds the
amount in lieu of applying said amount drawn), Landlord shall hold the
same, in a separate interest bearing account (provided that Landlord shall
not be obligated to deposit the Security Deposit in anything other than a
standard money market account and shall have no liability to Tenant with
respect to the terms or interest rate for such account), and any interest
earned thereon shall be deemed to be a part of the Security
Deposit. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account
thereof, to apply such deposit, or any part thereof (or draw upon all or
any part of the LOC), to Landlord’s damages arising from any Default on
the part of Tenant. If there is then existing no Default of
Tenant, Landlord shall return the Security Deposit, less so much thereof
as shall have theretofore been applied in accordance with the terms of
this Section 14.17 (and less such amount as may have been returned to
Tenant in accordance with the provisions of subparagraphs (d) and (e)
below), to Tenant on the expiration or earlier termination of the Term of
this Lease and surrender of possession of the Premises by Tenant to
Landlord at such time. The use, application or retention of the
Security Deposit, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease
or by law. The parties agree that Landlord shall not first be
required to proceed against the Security Deposit and the Security Deposit
shall not operate as a limitation on any recovery to which Landlord may
otherwise be entitled. If any portion of the Security Deposit
is applied (or drawn upon in the case of the LOC), Tenant shall, within
ten (10) days after written demand therefor, reinstate the Security
Deposit to the amount then required under this Lease, and Tenant’s failure
to do so shall be a Default under this
Lease.
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c.
|
Transfer of the
Security Deposit
. If Landlord conveys Landlord’s
interest under this Lease, the Security Deposit, or any part thereof not
previously applied, shall be turned over by Landlord to Landlord’s
grantee, and, if so turned over, Tenant agrees to look solely to such
grantee for proper application of the deposit in accordance with the terms
of this Section 14.17, and the return thereof in accordance
herewith. This provision shall also apply to subsequent
grantees and transferees. Tenant shall execute any documents
reasonably necessary to effectuate such a transfer. The holder of a
mortgage shall not be responsible to Tenant for the return or application
of any such deposit, whether or not it succeeds to the position of
Landlord hereunder, unless such deposit shall have been received in hand
by such holder.
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d.
|
Reduction of Security
Deposit
. On each of the second, third, fourth and
fifth anniversaries of the Commencement Date, the Security Deposit shall
be reduced on each such date by the sum of Two Hundred Forty-Seven
Thousand Five Hundred and 00/100 ($247,500.00) Dollars, until the Security
Deposit has been reduced to Four Hundred Ninety-Five Thousand and 00/100
($495,000.00) Dollars, which amount shall then remain as the Security
Deposit hereunder for the balance of the Term, provided that on the date
of each such reduction, the Lease is in full force and effect and there is
no Default of Tenant then uncured. If on any reduction date,
the Security Deposit shall not be reduced because the foregoing condition
is not satisfied as of such date, Tenant shall not be entitled to any
further reduction in the Security Deposit, provided that if a
non-material, non-monetary Default of Tenant is then uncured, Tenant shall
be entitled to such reduction of the Security Deposit upon the cure of
such Default. If the Security Deposit is reduced pursuant to
the foregoing provisions, Landlord shall (x) if the Security Deposit is in
the form of cash, return the amount of such reduction to Tenant on or
before the date that is thirty (30) days after Tenant’s written demand for
such sums, or (y) if the Security Deposit is in the form of the LOC,
cooperate with Tenant to have the LOC amended or reissued to reflect such
reduction.
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14.18.
|
Remedying
Defaults; Late Payments
|
14.19.
|
Holding
Over
|
14.20.
|
Surrender
of Premises
|
14.21.
|
Brokerage
|
14.22.
|
Environmental
Compliance
|
14.23.
|
Exhibits
|
14.24.
|
Governing
Law
|
14.26.
|
Representations
and Warranties of Tenant.
|
a.
|
If
Tenant is an entity, Tenant is duly organized, validly existing and in
good standing under the laws of the state of its organization, and is
qualified to do business in the state in which the Premises is located,
and the persons executing this Lease on behalf of Tenant have the full
right and authority to execute this Lease on behalf of Tenant and to bind
Tenant without the consent or approval of any other person or
entity. Tenant has full power, capacity, authority and legal right
to execute and deliver this Lease and to perform all of its obligations
hereunder. This Lease is a legal, valid and binding obligation of
Tenant, enforceable in accordance with its
terms.
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b.
|
Tenant
has not (1) made a general assignment for the benefit of creditors, (2)
filed any voluntary petition in bankruptcy or suffered the filing of an
involuntary petition by any creditors, (3) suffered the appointment of a
receiver to take possession of all or substantially all of its assets, (4)
suffered the attachment or other judicial seizure of all or substantially
all of its assets, (5) admitted in writing its inability to pay its debts
as they come due, or (6) made an offer of settlement, extension or
composition to its creditors
generally.
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c.
|
Tenant
is not in violation of any Anti-Terrorism Law (hereinafter
defined).
|
d.
|
Tenant
is not, as of the date hereof:
|
i.
|
conducting
any business or engaging in any transaction or dealing with any Prohibited
Person (hereinafter defined), including the governments of Cuba, Iran,
North Korea, Myanmar and Syria and, including the making or receiving of
any contribution of funds, goods or services to or for the benefit of any
Prohibited Person;
|
ii.
|
dealing
in, or otherwise engaging in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224;
or
|
iii.
|
engaging
in or conspiring to engage in any transaction that evades or avoids, or
has the purpose of evading or avoiding, or attempts to violate any of the
prohibitions set forth in, any Anti-Terrorism
Law.
|
e.
|
Neither
Tenant nor any of its affiliates, officers, directors, shareholders,
members or lease guarantor, as applicable, is a Prohibited
Person.
|
14.27.
|
Landlord’s
Representations and Warranties
|
a.
|
Landlord
is duly organized, validly existing and in good standing under the laws of
the state of its organization, and is qualified to do business in the
state in which the Premises is located, and the persons executing this
Lease on behalf of Landlord have the full right and authority to execute
this Lease on behalf of Landlord and to bind Landlord without the consent
or approval of any other person or entity. Landlord has full
power, capacity, authority and legal right to execute and deliver this
Lease and to perform all of its obligations hereunder. This
Lease is a legal, valid and binding obligation of Landlord, enforceable in
accordance with its terms.
|
b.
|
To
Landlord’s knowledge, the status of the title of the Property is as set
forth in the title policy attached hereto as
Exhibit
I
.
|
c.
|
Landlord's
Work in the Premises, shall be constructed in accordance with all
applicable federal, state, and local laws, ordinances and regulations,
free of all mechanics and materialmen's liens (subject to Landlord’s right
to bond over the same in accordance with Section 4.2(a)
above).
|
d.
|
Landlord
has no knowledge of any matters related to the environmental condition of
the Property, other than as set forth in the following environmental site
assessment: Air Quality/ Microbial Investigation report dated on or about
October 10, 2003 and Notice of Activity and Use Limitation Fuel Oil
Release dated on or about May 20,
1998.
|
14.28.
|
Force
Majeure Event
|
15.1.
|
Fair
Market Rent
|
15.2.
|
Option
to Extend
|