LEASE
77 CITYPOINT WALTHAM, MASSACHUSETTS
Lease Dated July 28, 2014
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant are the parties hereinafter named, and which relates to space in a certain building (the "Building") known as, and with an address at, 77 CityPoint, Waltham, Massachusetts 02451.
The parties to this Indenture of Lease hereby agree with each other as follows:
ARTICLE I
Reference Data
1.1
Subjects 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 Article:
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Landlord:
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BP FOURTH AVENUE, LLC, a Delaware limited liability company
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Landlord's Original Address c/o Boston Properties Limited Partnership
Prudential Center
800 Boylston Street, Suite 1900
Boston, Massachusetts 02199-8103
Landlord's Construction
Representative: Jon Randall
Tenant: Care.com, Inc., a Delaware corporation
Tenant's Original Address: 201 Jones Road, Waltham, Massachusetts 02451 Tenant's Email Address for
Information Regarding Billings
and Statements: accounting@ care.com
Tenant's Construction
Representative: Nathan Brown
Premises A Commencement Date:
The later to occur of (i) August 1, 2014, and
(ii)
the date on which Landlord delivers possession of
Premises B Commencement Date: Premises C Commencement Date:
Premises A Rent Commencement Date:
Premises B Rent Commencement Date:
Premises C Rent Commencement Date:
Term or Lease Term (sometimes called the "Original Term"):
Extension Option:
The Site:
The Building:
The Complex:
Premises A to Tenant in the Delivery Condition. For purposes hereof, the term "Delivery Condition" means that Premises A is vacant and free of personal property and furniture of any prior occupant.
April 1, 2019, subject to Section 9.25 below.
March 1, 2019, subject to Section 9.25 below.
The earlier of (i) substantial completion of the Tenant's Work (as defined in Section 1.4 of Exhibit B-1 below) in Premises A and commencement of any business operations by Tenant in Premises A, and (ii) January 1, 2015.
The Premises B Commencement Date.
The Premises C Commencement Date.
Commencing on the Premises A Commencement Date and continuing for one hundred and twenty ( 120) calendar months from the Premises A Rent Commencement Date (plus the remainder of the calendar month in which the date of expiration would occur if such date of expiration would not have fallen on the final day of a calendar month), unless extended or sooner terminated as provided in this Lease.
One
(1)
period of ten ( 10) years as provided in and on the terms set forth in Section 9.18 hereof.
That certain parcel of land known as and numbered 77 Fourth Avenue, Waltham, Middlesex County, Massachusetts, being more particularly described in
Exhibit A
attached hereto, together with any adjacent parcels owned by Landlord that may be subsequently incorporated into the Site.
The Building known as and numbered 77 CityPoint, Waltham, Massachusetts.
The Building together with all common areas, parking
areas, decks and structures and the Site.
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Premises A:
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The portion of the sixth (6th) floor of the Building labeled as the "Premises A" on the floor plan annexed hereto as
Exhibit D-1
and incorporated herein by reference, being all of the rentable area on the sixth floor.
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Premises B:
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The portion of the fifth (5th) floor of the Building labeled as the "Premises B" on the floor plan annexed hereto as Exhibit D-2 and incorporated herein by reference, being all of the rentable area on the fifth floor.
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Premises C:
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The portion of the fourth (4th) floor of the Building labeled as the "Premises C" on the floor plan annexed hereto as
Exhibit D-3
and incorporated herein by reference, being all of the rentable area on the fourth floor.
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Tenant's Premises:
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Collectively, Premises A, Premises B, and Premises C (commencing as to each on the dates each such space is demised hereunder).
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Number of Parking Spaces: Initially, one hundred and twenty-three (123) spaces.
Upon the Premises B Commencement Date, the number of parking spaces shall increase by one hundred and twenty-three (123) spaces. Upon the Premises C Commencement Date, the number of parking spaces shall increase by one hundred and twenty-four (124) spaces.
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Annual Fixed Rent:
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(a)(i) During the period from the Premises A Commencement Date through the day prior to the first anniversary of the Premises A Rent Commencement Date (and thereafter through the end of the calendar month in which the day prior to the first anniversary of the Premises A Rent Commencement Date occurs) at the annual rate of $1,392,699 (being the product of (i)
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$38.50 and
(ii)
the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and
(c) below; provided, however, that Annual Fixed Rent shall not commence until the Premises A Rent Commencement Date (hereinabove defined in this Section
1.1).
(ii)
During the period from the first anniversary of the
Premises A Rent Commencement Date through the day prior to the second anniversary of the Premises A Rent Commencement Date at the annual rate of $1,428,873 (being the product of (i) $39.50 and
(ii)
the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(iii)
During the period from the second anniversary of the Premises A Rent Commencement Date through the day prior to the third anniversary of the Premises A Rent Commencement Date at the annual rate of
$1,465,047 (being the product of (i) $40.50 and (ii) the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(iv)
During the period from the third anniversary of the Premises A Rent Commencement Date through the day prior to the fourth anniversary of the Premises A Rent Commencement Date at the annual rate of $1,501,221 (being the product of (i) $41.50 and (ii) the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(v)
During the period from the fourth anniversary of the Premises A Rent Commencement Date through the day prior to the fifth anniversary of the Premises A Rent Commencement Date at the annual rate of
$1,537,395 (being the product of (i) $42.50 and (ii) the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(vi)
During the period from the fifth anniversary of the Premises A Rent Commencement Date through the day prior to the sixth anniversary of the Premises A Rent Commencement Date at the annual rate of $1,573,569 (being the product of (i) $43.50 and (ii) the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(vii)
During the period from the sixth anniversary of the Premises A Rent Commencement Date through the day prior to the seventh anniversary of the Premises A Rent Commencement Date at the annual rate of
$1,609,743 (being the product of
(i)
$44.50 and (ii) the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(viii)
During the period from the seventh anniversary of the Premises A Rent Commencement Date through the day prior to the eighth anniversary of the Premises A Rent Commencement Date at the annual rate of
$1,645,917 (being the product of (i) $45.50 and (ii) the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(ix)
During the period from the eighth anniversary of the Premises A Rent Commencement Date through the day prior to the ninth anniversary of the Premises A Rent Commencement Date at the annual rate of
$1,682,091 (being the product of (i) $46.50 and
(ii)
the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(x)
During the period from the ninth anniversary of the Premises A Rent Commencement Date through expiration of the Original Term at the annual rate of
$1,718,265 (being the product of (i) $47.50 and
(ii)
the "Rentable Floor Area of the Premises" (hereinafter defined in this Section 1.1)), subject to increase as provided in subsections (b) and (c) below.
(b)
Upon the occurrence of the Premises B Rent Commencement Date, the entire schedule of Annual Rent set forth in subsection (a) above shall be increased such that the "Rentable Floor Area of the Premises" referenced therein shall be increased by
36, 174 at the applicable rates for the remainder of the Original Term, subject to the application of Section 9.25(a) below (if applicable).
(c)
Upon the occurrence of the Premises C Rent Commencement Date, the entire schedule of Annual Rent set forth in subsection (a) above shall be increased such that the "Rentable Floor Area of the Premises" referenced therein shall be increased by 36,395 at the applicable rates set forth above for the remainder of the Original Term, subject to the application of Section 9.25(b) below (if applicable).
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(d) During the extension option period (if exercised), as determined pursuant to Section 9.18.
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Base Operating Expenses:
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Landlord's Operating Expenses (as hereinafter defined
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in Section 2.6) for calendar year 2014, being January 1, 2014 through December 31, 2014.
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Base Taxes:
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Landlord's Tax Expenses (as hereinafter defined in
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Section 2.7) for fiscal tax year 2015, being July 1, 2014
through June 30, 2015.
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Tenant Electricity:
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Initially as provided in Section 2.5, subject to adjustment as provided in Section 2.8.
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Additional Rent:
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All charges and other sums payable by Tenant as set forth in this Lease, in addition to Annual Fixed Rent.
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Rentable Floor Area of the
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Premises:
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Initially, 36,174 square feet, increasing by 36,174
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square feet upon the Premises B Commencement Date and increasing by 36,395 square feet upon the Premises
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C Commencement Date.
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Total Rentable Floor Area of the Building:
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209,707 square feet.
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Permitted Use:
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General office purposes and such accessory uses
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thereto as may from time to time be permitted as of right by the Zoning Ordinance for the City of Waltham
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and which are customarily ancillary to general office
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use.
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Broker:
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Transwestern RBJ
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Security Deposit:
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$2,093,000, subject to and in accordance with the
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provisions of Section 9.19 below.
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Guarantor:
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NIA
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1.2
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Table of Articles and Sections
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ARTICLE I ...................................................................................................................................... l
Reference Data 1
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1.1
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Subjects Referred To 1
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1.2
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Table of Articles and Sections 6
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ARTICLE Il 10
Building, Premises, Term and Rent 10
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2.2
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Rights to Use Common Facilities 10
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2.3
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Landlord's Reservations 12
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2.5
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Fixed Rent Payments 13
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2.6
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Operating Expenses 14
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2.6.1 Tenant's Escalation Payments 18
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2.8
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Tenant Electricity 23
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ARTICLE III 25
Condition of Premises 25
3.1 Preparation of Premises 25
ARTICLE IV 25
Landlord's Covenants; Interruptions and Delays 25
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4.1
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Landlord Covenants 25
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4.2
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Interruptions and Delays in Services and Repairs, Etc 28
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ARTICLE V 30
Tenant's Covenants 30
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5.2
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Repair and Yield Up 30
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5.4
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Obstructions; Items Visible From Exterior; Rules and Regulations 33
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5.6
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Assignment; Sublease 33
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5.8
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Floor Load; Prevention of Vibration and Noise 40
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5.9
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Personal Property Taxes 40
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5.10
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Compliance with Laws 40
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5.11
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Payment of Litigation Expenses 41
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5.15
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Landlord Representations 45
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ARTICLE VI 45
Casualty and Taking 45
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6.1
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Damage Resulting from Casualty 45
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6.2
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Uninsured Casualty 47
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6.3
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Rights of Termination for Taking 47
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ARTICLE VII 49
Default49
7.1
7.2
Tenant's Default 49
Landlord's Default and Tenant Remedies 52
ARTICLE VII 53
Insurance and Indernnity 53
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8.3
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Tenant's Commercial General Liability Insurance 56
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8.4
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Tenant's Property Insurance 56
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8.5
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Tenant's Other Insurance 57
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8.6
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Requirements for Tenant's Insurance 57
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8.7
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Additional Insureds 58
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8.8
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Certificates of Insurance 58
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8.9
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Subtenants and Other Occupants 58
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8.10
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No Violation of Building Policies 59
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8.11
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Tenant to Pay Premium Increases 59
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8.12
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Landlord's Insurance 59
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8.13
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Waiver of Subrogation 60
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ARTICLE IX 61
Miscellaneous Provisions 61
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9.2
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Cumulative Remedies 62
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9.4
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Notice to Mortgagee and Ground Lessor. 63
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9.5
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Assignment of Rents 63
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9.8
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Invalidity of Particular Provisions 64
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9.9
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Provisions Binding, Etc 64
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9.10
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Recording; Confidentiality 65
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9.12
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When Lease Becomes Binding and Authority 66
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9.14
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Rights of Mortgagee 66
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9.15
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Status Reports and Financial Statements 67
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9.19
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Security Deposit. 71
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9.21
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Tenant's Payments 75
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9.22
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Waiver of Trial By Jury 75
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9.23
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Electronic Signatures 76
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9.25
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Existing Subleases 76
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9.27
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Building Amenities 79
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1.3 Exhibits
There are incorporated as part of this Lease: Exhibit A Description of Site
Exhibit B-1 Work Agreement
Exhibit B-2 Tenant Plan and Working Drawing Requirements Exhibit B-3 Tenant's Fit Plan
Exhibit C Landlord's Services
Exhibit D-1 Sixth Floor Premises Plan
Exhibit D-2 Fifth Floor Premises Plan
Exhibit D-3 Fourth Floor Premises Plan
Exhibit E Form of Declaration Affixing the Commencement Date of Lease Exhibit F Form of Lien Waivers
Exhibit G Form of Letter of Credit
Exhibit H Form of Certificate of Insurance
Exhibit I Notice of Lease
Exhibit J Broker Determination
Exhibit K Plan of Designated Spaces
Exhibit L Intentionally Deleted
Exhibit M Tenant's Lobby Signage
Exhibit N Building Sign and Tenant's Exclusive Signage Area Exhibit 0 Monument Sign
ARTICLE II
Building, Premises, Term and Rent
Landlord hereby demises and leases to Tenant, and Tenant hereby leases from Landlord, the Premises in the Building excluding exterior walls (other than the inner surface thereof), roof and roof system, foundation and structural components, the common stairways and stairwells, elevators and elevator wells, fan rooms, electric and telephone closets, janitor closets, freight elevator vestibules, common utility systems, and pipes, ducts, conduits, wires and appurtenant fixtures serving exclusively or in common other parts of the Building and if Tenant's Premises includes less than the entire rentable area of any floor, excluding the common corridors, elevator lobbies and toilets located on such floor.
Tenant's Premises with such exclusions is hereinafter referred to as the "Premises." The term
"Building"
means the Building identified on the first page, and which is the subject of this Lease; the term "Site" means all, and also any part of the Land described in
Exhibit A
, plus any additions or reductions thereto resulting from the acquisition of adjacent property by Landlord or from the change of any abutting street line and all parking areas and structures.
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2.2
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Rights to Use Common Facilities
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Subject to Landlord's right to change or alter any of the following in Landlord's discretion as herein provided, Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use in common with others, 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, corridors, stairways, elevators and loading platform of the Building, and the pipes, ducts, conduits, wires and appurtenant meters and equipment serving the Premises in common with others, (b) common walkways and driveways necessary for access to the Building, (c) the cafeteria, conference center and fitness center (including lockers and showers) provided by Landlord for the use and enjoyment of tenants of the Building, and (d) if the Premises include less than the entire rentable floor area of any floor, the common toilets, corridors and elevator lobby of such floor (the "Common Areas"). Landlord reserves the right to operate, or have a third-party operate, a valet parking program in the parking areas of the Complex, but Tenant
shall have no obligation to participate in the same, and Tenant shall not be required to pay any fee cost or charge in respect of such valet parking system. Notwithstanding anything to the contrary herein, Landlord has no obligation to allow any particular telecommunication service provider to have access to the Building or to the Premises except as may be required by applicable law or as provided in Section 2.2.3 below.
If
Landlord permits such access, Landlord may condition such access upon the payment to Landlord by the service provider of commercially reasonable fees assessed by Landlord in its sole discretion.
In
addition, Tenant shall have the right to use in the parking area the Number of Parking Spaces (referred to in Section 1.1) for the parking of automobiles, motorcycles and motor scooters, in common with use by other tenants from time to time of the Complex, provided, however, that
Landlord shall not be obligated to furnish stalls or spaces on the Site specifically designated for Tenant's use; however fifteen (15) of such spaces shall be designated exclusively for Tenant's use shown as the "Designated Spaces" on Exhibit K attached hereto (the
"Designated Spaces").
Landlord shall have no responsibility for policing the use of, or enforcing Tenant's right to exclusively use, the Designated Spaces. Tenant, at Tenant's expense, may install signs indicating that the Designed Spaces are for the exclusive use of Tenant, subject to compliance with applicable Legal Requirements. Landlord may relocate the Designated Spaces elsewhere on the Site to a location which is not materially further from the main entry to the Building than the location of Designated Spaces shown on Exhibit K upon not less than thirty (30) days advance notice to Tenant. In the event that the Rentable Floor Area of the Premises decreases at any time during the Lease Term, the Number of Parking Spaces provided to Tenant hereunder shall be reduced proportionately. Tenant will use reasonable efforts to ensure that all persons claiming by, through and under it, shall at all times abide by all reasonable rules and regulations promulgated by Landlord with respect to the use of the parking areas on the Site. The parking privileges granted herein are non-transferable except to a permitted assignee or subtenant as provided in Section 5.6. Further, and except for matters arising from the negligent or willful and wrongful act or omission of Landlord or its agents, employees or contractors, but subject to Section 8.13 below, Landlord assumes no responsibility whatsoever for loss or damage due to fire, theft or otherwise to any automobile(s) parked on the Site or to any personal property therein, and Tenant covenants and agrees, upon request from Landlord from time to time, to notify its officers, employees, agents and invitees of such limitation of liability. Tenant acknowledges and agrees that a license only is hereby granted, and no bailment is intended or shall be created.
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2.2.2
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Use of Common Stairwells
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Tenant shall have a non-exclusive right to use the fire stairwells in the Building (the "Fire Stairs") for the purpose of access between the floors of the Building on which the Premises are located, at no additional rental charge to Tenant, provided that (i) such use shall be permitted by, and at all times be in accordance with, all applicable Legal Requirements; and (2) Tenant shall comply with all of Landlord's reasonable rules and regulations adopted from time to time with respect thereto. Tenant may, at its sole cost and expense, install a key card locking system reasonably satisfactory to Landlord on all doors between the Fire Stairs and the floors of the Premises and tie Tenant's security system into the Building security system, provided that in any event such locking system must be configured in such a way so as to automatically disengage in the event of an emergency. Tenant shall provide Landlord with a "master" card key so that Landlord shall have access through each entry door. Tenant may paint the Fire Stairs and install light fixtures therein and make such other Alterations as Landlord shall approve, which approval shall be granted or withheld in accordance with the terms of this Lease (provided, however, that under no circumstances shall Tenant be entitled to install (x) carpeting on the Fire Stairs or (y) lighting which does not meet the standards for emergency lighting).
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2.2.3
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Telecommunications Installations
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Landlord shall permit Tenant reasonable use of, and access to, the telephone and telecommunications closets of Building serving the Premises, as well as the plenum areas above the finished or hung ceiling in the Premises for the purpose of running wiring, cabling, conduit and similar items, as may be convenient for Tenant's use and installation of communications
systems in the Premises, subject to Tenant's compliance with all applicable provisions of this Lease, including, without limitation, Section 5.12 below, and with all reasonable requirements of Landlord in connection with the use of, and access to, the same. Notwithstanding Section 2.2 above, Landlord agrees to permit Verizon, Comcast, XO and Light Tower to have access to the Premises and the Building at no additional charge for the purposes of providing telecommunications service to Tenant. Further, Landlord will not unreasonably withheld, condition or delay its approval of any other telecommunications provided designated by Tenant to service the Premises, so long as such provider is not utilizing the Site to provide service to third parties other than Tenant.
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2.3
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Landlord's Reservations
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Landlord reserves the right from time to time, without unreasonable interference with Tenant's use: (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, and (b) to alter or relocate any other common facility, provided that substitutions are substantially equivalent or better. Installations, replacements and relocations referred to in clause (a) above shall be located so far as practicable in the central core area of the Building, above ceiling surfaces, below floor surfaces or within perimeter walls of the Premises. Any installations, alterations, replacements or relocations that (despite reasonable
effort by Landlord) cannot be so located and which must be located within the Premises shall be suitably boxed or enclosed and decorated in a manner similar to adjacent areas, all at Landlord's expense, and if there is more than a de minimus reduction in the usable area of the Premises as a result thereof, an equitable adjustment shall be made to Annual Fixed Rent. Except in the case of emergencies or for normal cleaning and maintenance work, Landlord agrees to use its best efforts to give Tenant reasonable advance notice of any of the foregoing activities which require work in the Premises. In all cases, Landlord shall use commercially reasonable efforts to minimize or avoid inconvenience to Tenant in connection with its exercise of the rights granted
herein (consistent with the nature of the rights being exercised). No such change in the Common Areas shall materially and adversely affect access to, or use of, the Premises for the Permitted Uses subject to Section 9.27 below with respect to the Amenities (as defined in Section 9.27).
Tenant shall have and hold (i) Premises A for a period commencing on the Premises A Commencement Date, (ii) Premises B for a period commencing on the Premises B Commencement Date, and (iii) Premises C for a period commencing on the Premises C Commencement Date, and continuing as to each for the Term unless sooner terminated as provided in Article VI or Article VII or unless extended as provided in Section 9.18.
As soon as may be convenient after the date has been determined on which the Term commences as to any portion of the Premises as aforesaid, Landlord and Tenant agree to join with each other in the execution of a written Declaration, in the form of
Exhibit E
, in which the applicable dates on which the Term commences as aforesaid and the Term of this Lease shall be stated. Failure by either party to enter into such a Declaration will have no effect on the applicable dates.
Tenant agrees to pay to Landlord, ( l )(a) on the Premises A Rent Commencement Date (defined in Section 1.1 hereof) and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Term, a sum equal to one twelfth
(1/l zth)
of the Annual Fixed Rent (sometimes hereinafter referred to as "fixed rent") and (l)(b) on the Premises A Commencement Date and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Term, an amount reasonably estimated by Landlord from time to time to cover Tenant's monthly payments for electricity under Section 2.8 hereinbelow, and (2) on the first day of each and every calendar month during the extension option period (if exercised), a sum equal to (a) one twelfth
(1/12
1
h)
of the annual fixed rent as determined in Section 9.18 for the extension option period plus (b) then applicable monthly electricity charges
(subject to escalation for electricity as provided in Section 2.8 hereof). Until notice of some other designation is given, fixed rent and all other charges for which provision is herein made shall be paid by remittance to or for the order of Boston Properties Limited Partnership either (i) by mail to P.O. Box 3557, Boston, Massachusetts 02241-3557, (ii) by wire transfer to Bank of America
in Dallas, Texas, Bank Routing Number 0260-0959-3 or (iii) by ACH transfer to Bank of America in Dallas, Texas, Bank Routing Number 111 000 012, and in the case of (ii) or (iii) referencing Account Number 3756454460, Account Name of Boston Properties, LP, Tenant's name and the Property address. All remittances received by Boston Properties Limited Partnership, as Agents as aforesaid, or by any subsequently designated recipient, shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at such rate on a pro rata basis, and, if (i) the Premises A Rent Commencement Date is a day other than the first day of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to Landlord with respect to Premises A shall be a payment equal to a proportionate part of such monthly Annual Fixed Rent for the partial month from the Premises A Rent Commencement Date to the first day of the succeeding calendar month, (ii) the Premises B Rent Commencement
Date is a day other than the first day of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to Landlord with respect to Premises B shall be a payment equal to a proportionate part of such monthly Annual Fixed Rent for the partial month from the Premises B Rent Commencement Date to the first day of the succeeding calendar month, and/or (iii) the Premises C Rent Commencement Date is a day other than the first day of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to Landlord with respect to Premises C shall be a payment equal to a proportionate part of such monthly Annual Fixed Rent for the partial month from the Premises C Rent Commencement Date to the first day of the succeeding calendar month.
Additional Rent payable by Tenant on a monthly basis commencing on the Premises A Commencement Date, as hereinafter provided, likewise shall be prorated, and the first payment on account thereof shall be determined in similar fashion but shall commence on the date(s) provided herein; and other provisions of this Lease calling for monthly payments shall be read as incorporating this undertaking by Tenant.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence until the Premises A Rent Commencement Date, Tenant shall be subject to, and shall comply with, all other provisions of this Lease as and at the times provided in this Lease.
The Annual Fixed Rent and all other charges for which provision is herein made shall be paid by Tenant to Landlord, without offset, deduction or abatement except as otherwise specifically set forth in this Lease.
"Operating Expenses Allocable to the Premises"
means the same proportion of Landlord's Operating Expenses (as hereinafter defined) as the Rentable Floor Area of the Premises bears to the Total Rentable Floor Area of the Building.
"Base Operating Expenses"
means Landlord's Operating Expenses for calendar year 2014 (that is, the period beginning on January 1, 2014 and ending on December 31, 2014) (the
"Base Year").
Base Operating Expenses shall not include market-wide cost increases due to extraordinary circumstances, including but not limited to, Force Majeure (as defined in Section 9.26 below), boycotts, strikes, conservation surcharges, embargoes or shortages which apply only to the Base Year but no other year, other than the year immediately prior to the Base Year or the year immediately following the Base Year.
"Base Operating Expenses Allocable to the Premises"
means the same proportion of Base Operating Expenses as the Rentable Floor Area of the Premises bears to 95% of the Total Rentable Floor Area of the Building.
"Landlord's Operating Expenses"
means the cost of operation of the Building and the Site incurred by Landlord, including, without limitation, those incurred in discharging Landlord's obligations under Sections 4.1.2 and 4.1.3. Such costs shall exclude payments of debt service and any other mortgage or ground lease charges, brokerage commissions, real estate taxes (to the extent paid pursuant to Section 2.7 hereof) and costs of special services rendered to tenants (including Tenant) for which a separate charge is made, but shall include, without limitation:
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(a)
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compensation, wages and all fringe benefits, worker's compensation insurance premiums and payroll taxes paid to, for or with respect to all persons for their services in the operating, maintaining or cleaning of the Building or the Site (and in the event such persons are also employed on other properties of Landlord or its affiliates, such compensation shall be equitable prorated among the Building and such other properties);
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(b)
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payments under service contracts with independent contractors for operating, maintaining or cleaning of the Building or the Site (and in such service contracts include other properties of Landlord or its affiliates, such payments shall be equitably prorated among the Building and such other properties);
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(c)
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steam, water, sewer, gas, oil, electricity and telephone charges (excluding such utility charges separately chargeable to tenants for additional or separate services and electricity charges payable by Tenant pursuant to Section 2.8 above) and costs of maintaining letters of credit or other security as may be required by utility companies as a condition of providing such services;
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(d)
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cost of maintenance, cleaning and repairs (other than repairs not properly chargeable against income or reimbursable from contractors under guarantees);
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(e)
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cost of operating and maintaining a fitness center, conference center and food service facility in the Building, less any rent or other amounts received by Landlord from any third-party operators of such facilities;
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(f)
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cost of snow removal and care of landscaping;
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(g)
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cost of building and cleaning supplies and equipment;
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(h)
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premiums for insurance carried with respect to the Building and the Site (including, without limitation, liability insurance, insurance against loss in case of fire or casualty and of monthly installments of Annual Fixed Rent and any Additional Rent which may be due under this Lease and other leases of space in the Building for not more than twelve (12) months in the case of both Annual Fixed Rent and Additional Rent and, if there be any first mortgage on the Complex, including such insurance as may be required by the unrelated institutional holder of such first mortgage);
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(i)
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management fees at reasonable rates for self-managed buildings in the Central Suburban 128 Market consistent with the type of occupancy and the services rendered, which such management fees shall not exceed three percent (3.0%) of the total Gross Rents for the Building ("Gross Rents for the Building" for the purposes hereof being defined as all annual fixed rent, Landlord's Operating Expenses (other than management fees), and Landlord's Tax Expenses for the Complex for the relevant calendar year (but not including the aforesaid management fees));
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U)
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depreciation for capital expenditures made by Landlord during the Lease Term (x) to reduce Landlord's Operating Expenses if Landlord reasonably shall have determined that the annual reduction in Landlord's Operating Expenses shall exceed depreciation therefor or (y) to comply with Legal Requirements that first become applicable to the Building or the Complex after the Premises A Commencement Date (the capital expenditures described in subsections (x) and (y) being hereinafter referred to as "Permitted Capital Expenditures") plus, in the case of (x) and (y), an interest factor, reasonably determined by Landlord, as being the interest rate then charged for long term mortgages by institutional lenders on like properties in the Central Suburban 128 Market, and depreciation in the case of (x) and (y) shall be determined by dividing the original cost of
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such capital expenditure by the number of years of useful life of the capital item acquired, which useful life shall be determined reasonably by Landlord in accordance with generally accepted accounting principles and practices in effect at the time of acquisition of the capital item (taking into account any salvage value); provided, however, if
Landlord reasonably concludes on the basis of engineering estimates that a particular capital expenditure will effect savings in other Landlord's Operating Expenses, including, without limitation, energy related costs, and that such projected savings will, on an
annual basis ("Projected Annual Savings"), exceed the annual depreciation therefor, then and in such event the amount of depreciation for such capital expenditure shall be increased to an amount equal to the Projected Annual Savings; and in such circumstance, the increased depreciation (in the amount of the Projected Annual Savings) shall be made for such period of time as it would take to fully amortize the cost of the item in question, together with interest thereon at the interest rate as aforesaid in equal monthly payments,
each in the amount of 1/12th of the Projected Annual Savings, with such payment to be applied first to interest and the balance to principal;
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(k)
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the pro rata share allocable to the Building of imputed rental costs of maintaining a regional property management office of a reasonable size given the number and square footage of properties managed (and the fact that as of the date hereof, Landlord is a self administered and self-managed real estate investment trust), which pro rata share shall be equal to a fraction, the numerator of which is the Total Rentable Floor Area of the Building and the denominator of which is the total rentable floor area of all buildings managed by the staff of such regional property management office; and
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(1)
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all other reasonable and necessary expenses paid in connection with the operating, cleaning and maintenance of the Building, the Site and said common areas and facilities and properly chargeable against income.
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Notwithstanding the foregoing, the following shall be excluded from Landlord's Operating Expenses:
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(i)
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All capital expenditures and depreciation, except as otherwise explicitly provided in this Section 2.6;
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(ii)
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Interest on indebtedness, debt amortization, ground rent, and refinancing costs for any mortgage, conveyance or ground lease of the Building or the Site, including without limitation closing costs, transfer taxes, and recording or title examination charges;
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(iii)
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Legal, auditing, consulting and professional fees and other costs (other than those legal, auditing, consulting and professional fees and other costs incurred in connection with the normal and routine maintenance and operation of the Complex), including, without limitation, those: (i) paid or incurred in connection with financings, refinancings or sales or other transfers of any of Landlord's interest in the Building or the Site, (ii) relating to any reporting required by securities laws, (iii) relating to negotiations, disputes or settlements with existing, former or prospective tenants or other occupants of the Building (iv) relating to arbitration, mediation or litigation, (v) relating to the enforcement of any lease or occupancy agreement; or (vi) relating to the collection of any amounts due under any insurance policy, warranty or guaranty;
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(iv)
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The cost of any item or service to the extent reimbursed or reimbursable to Landlord by insurance required to be maintained under this Lease or by any third party, or by any warranty or guaranty or similar arrangement;
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(v)
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The cost of repairs or replacements incurred by reason of fire or other casualty or condemnation other than costs not in excess of a commercially reasonable deductible on any property insurance maintained by Landlord which provides a recovery for such repair or replacement;
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(vi)
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Any advertising, promotional or marketing expenses for the Buildings, including, without limitation, leasing commissions and brokerage fees, attorneys' fees, space planning costs and other costs and expenses incurred in connection with the lease, sublease and/or assignment negotiations and transactions with present or prospective tenants or other occupants of the Building;
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(vii)
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The cost of any service or materials provided by any party related to Landlord (other than the management fee, which shall be subject to the terms and provisions of Section 2.6(i) above), to the extent such costs exceed the reasonable cost for such service or materials absent such relationship in buildings similar to the Building in the Central Suburban 128 Market;
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(viii)
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Payments for rented equipment, the cost of which equipment would constitute a capital expenditure if the equipment were purchased to the extent that such payments exceed the amount which could have been included in Landlord's Operating Expenses had Landlord purchased such equipment rather than leasing such equipment;
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(ix)
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Penalties, damages, and interest for late payment or violations of any obligations of Landlord, including, without limitation, taxes, insurance, equipment leases and other past due amounts;
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(x)
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Costs arising from Landlord's political or charitable contributions;
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(xi)
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The cost of testing, remediation or removal of "Hazardous Materials" (as defined in Section 5.3) in the Building or on the Site required by "Hazardous Materials Laws" (as defined in Section 5.3), provided however, that with respect to the testing, remediation or removal of any material or substance which, as of the Premises A Commencement Date was not considered, as a matter of law, to be a Hazardous Material, but which is subsequently determined to be a Hazardous Material as a matter of law, the costs thereof shall be included in Landlord's Operating Expenses;
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(xii)
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Wages, salaries, or other compensation paid to any executive employees above the grade of Regional Property Manager;
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(xiii)
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The cost of the initial construction of the Building or any addition thereto or expansion or reduction in the size of the Building, and of correcting defects (latent or otherwise) in the construction of the Building or in the Building equipment;
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(xiv)
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The cost of acquisition, maintenance, repair, insurance and replacement of any objects of fine art;
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(xv)
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The cost of any work or service (including, without limitation above-standard cleaning services, HVAC or other utility service and the like) performed for any tenant in the Building (other than Tenant) to a materially greater extent or in a materially more favorable manner than that furnished generally to tenants (including Tenant) in the Building;
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(xvi)
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The net (i.e. net of the reasonable costs of collection) amount recovered by Landlord under any warranty or service agreement from any contractor or service provider shall be credited against Landlord's Operating Expenses; and
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(xiv)
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Landlord's general corporate overhead and administrative services (except for property management services related to the operation of the Complex, including, without limitation, risk management, accounting, security and energy management services).
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Notwithstanding the foregoing, in determining the amount of Landlord's Operating Expenses for any calendar year or portion thereof falling within the Lease Term (including, without limitation, the Base Year), if less than ninety-five percent (95%) of the Total Rentable Floor Area of the Building shall have been occupied by tenants at any time during the period in question, then those components of Landlord's Operating Expenses that vary based on occupancy for such period shall be adjusted to equal the amount such components of Landlord's Operating Expenses would have been for such period had occupancy been ninety-five percent (95%) throughout such period. The foregoing calculations shall not entitle Landlord to collect, collectively from all of the tenants in the Complex, an amount exceeding one hundred percent (100%) of the Landlord's Operating Expenses incurred by Landlord with respect to the pertinent calendar year.
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2.6.1
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Tenant's Escalation Payments
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(A)
If
with respect to any calendar year starting on or after January 1, 2015 and falling within the Lease Term, or fraction of a calendar year falling within the Lease Term at the beginning or end thereof, the Operating Expenses Allocable to the Premises (as defined in Section 2.6) for a full calendar year exceed Base Operating Expenses Allocable to the Premises (as defined in Section 2.6) or for any such fraction of a calendar year exceed the corresponding fraction of Base Operating Expenses Allocable to the Premises (such amount being hereinafter referred to as the
"Operating
Cost Excess"), then Tenant shall pay to Landlord, as Additional Rent, on or before the thirtieth (30
1
h)
day following receipt by Tenant of the statement referred to below in this Section 2.6.1, the amount of such excess. Operating Expenses (as defined in Section 2.6)
do not
include the tenant electricity to be paid by Tenant as part of the Annual Fixed Rent.
(B)
Commencing on the Premises A Commencement Date, payments by Tenant on account of the Operating Cost Excess shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. The amount so to be paid to Landlord shall be an amount from time to time reasonably estimated by Landlord to be sufficient to cover, in the aggregate, a sum equal to the Operating Cost Excess for each calendar year during the Lease Term.
(C)
No later than one hundred and twenty (120) days after the end of the first calendar year or fraction thereof ending December 31 and of each succeeding calendar year during the Lease Term or fraction thereof at the end of the Lease Term, Landlord shall render Tenant a statement in reasonable detail and according to usual accounting practices certified by a representative of Landlord, showing for the preceding calendar year or fraction thereof, as the case may be, the Landlord's Operating Expenses, the Base Operating Expenses and the Operating Expenses Allocable to the Premises. Said statement to be rendered to Tenant also shall show for the
preceding year or fraction thereof, as the case may be, the amounts already paid by Tenant on account of the Operating Cost Excess and the amount of the Operating Cost Excess remaining due from, or overpaid by, Tenant for the year or other period covered by the statement.
If
such statement shows a balance remaining due to Landlord, Tenant shall pay same to Landlord on or before the thirtieth (30th) day following receipt by Tenant of said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or refunded to Tenant if the Lease Term has then expired and Tenant has no further obligation to Landlord. The foregoing obligation shall survive the expiration or sooner termination of this Lease.
Any payment by Tenant for the Operating Cost Excess shall not be deemed to waive any rights of Tenant to claim that the amount thereof was not determined in accordance with the provisions of this Lease.
(D)
Subject to the provisions of this paragraph and provided no uncured monetary Event of Default of Tenant exists, Tenant shall have the right, at Tenant's cost and expense, to examine all documentation and calculations prepared in the determination of the Tax Excess (as defined in Section 2.7 below), Operating Cost Excess, and Tenant's Electricity Payment (as defined in Section 2.8 below):
(1)
Such documentation and calculations shall be made available to Tenant at the offices in the greater Boston area where Landlord keeps such records during normal business hours within a reasonable time after Landlord receives a written request from Tenant to make such examination.
(2)
Tenant shall have the right to make such examination no more than once in respect of any period for which Landlord has given Tenant a statement of the actual amount of Landlord's Tax Expenses, Landlord's Operating Expenses or the Electricity Excess, as applicable.
(3)
Except as provided by the last sentence of this Section 2.6. l (D), any request for examination in respect of any Tax Year or calendar year, as applicable, may be made no more than one ( 1) year after Landlord advises Tenant in writing of the actual amount of Landlord's Tax Expenses, Landlord's Operating Expenses or the Electricity Excess, as applicable in respect of such period and Tenant receives the appropriate year-end statement required under Section 2.6, Section 2.7 or Section 2.8, as applicable (provided, however, that if after any audit is performed hereunder, it is finally determined that Tenant has been overcharged on account of Landlord's Tax Expenses Allocable to the Premises, Operating Expenses Allocable to the Premises and/or the Electricity Excess by more than three percent (3%) for the Tax Year or calendar year in question, Tenant may request to examine the documentation and calculations for the overcharged item for the immediately preceding Tax Year or calendar year, as applicable).
(4)
In
no event shall Tenant utilize the services of any examiner who is being paid by Tenant on a contingent fee basis, unless such examiner is being retained by Tenant on a national basis to examine payments under Tenant's other leases of space.
(5)
As a condition to performing any such examination, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement, in form reasonably acceptable to Tenant and Landlord, agreeing to keep confidential any information which it discovers about Operating Expenses or Tax Expenses (to the extent not otherwise available from other sources who are not under any obligation of confidentiality with respect to the same) in connection with such examination, provided however, that Tenant shall be permitted to share such information with each of its consultants, attorneys, accountants and permitted subtenants and assignees (existing or proposed) so long as such subtenants or assignees execute and deliver to Landlord similar confidentiality agreements. Nothing shall prevent Tenant from disclosing such information if required by any court or governmental agency or authority, or in connection with any dispute arising under this Lease.
(6)
If,
after the audit by Tenant of Landlord's books and records pursuant to this Section 2.6.1 with respect to any calendar year, it is finally determined that: (i) Tenant has made an overpayment on account of Landlord's Tax Expenses Allocable to the Premises, Operating Expenses Allocable to the Premises and/or the Electricity Excess, as applicable, Landlord shall credit any such overpayment against the next installment(s) of Annual Fixed Rent thereafter payable by Tenant, except that if such overpayment is determined after the termination or expiration of the term of this Lease, Landlord shall promptly refund to Tenant the amount of any such overpayment less any amounts then due from Tenant to Landlord; and (ii) Tenant has made an underpayment on account of
Landlord's Tax Expenses Allocable to the Premises, Operating Expenses Allocable to the Premises and/or the Electricity Excess, as applicable, Tenant shall, within forty-five (45) days of such determination, pay any such underpayment to Landlord.
(7)
If,
after any such audit is performed, it is finally determined that Tenant has been overcharged on account of Landlord's Tax Expenses Allocable to the Premises,
Operating Expenses Allocable to the Premises and/or the Electricity Excess by more than three percent (3%) for the Tax Year or calendar year in question, Landlord shall reimburse Tenant for the reasonable third-party costs incurred by Tenant in performing such audit. The foregoing obligation shall survive the expiration or sooner termination of this Lease.
Landlord shall have no right to correct any year end statement with respect to any Tax Year or calendar year after the date which is the later of (x) one
(1)
year after the end of the period in question, or (y) one
(1)
year after Landlord receives a bill from the applicable utility company or governmental authority for the expense at issue. Notwithstanding any provision hereof to the contrary, if Landlord provides Tenant with any such corrected statement, then Tenant shall have one hundred eighty ( 180) days from the receipt of any such corrected statement to request an examination as set forth in Section 2.6.1(D)(3) hereof (subject to the proviso set forth at the end of subsection (3) above regarding Tenant's ability to request examinations for prior years).
Commencing on July 1, 2015, if with respect to any full Tax Year or fraction of a Tax Year falling within the Term, Landlord's Tax Expenses Allocable to the Premises as hereinafter defined for a full Tax Year exceed Base Taxes Allocable to the Premises, or for any such fraction
of a Tax Year exceed the corresponding fraction of Base Taxes Allocable to the Premises (such amount being hereinafter referred to as the
"Tax Excess")
then, on or before the thirtieth (30th) day following receipt by Tenant of the certified statement referred to below in this Section 2.7, then Tenant shall pay to Landlord, as Additional Rent, the amount of such Tax Excess. Not later than ninety (90) days after Landlord's Tax Expenses Allocable to the Premises are determined for the first such Tax Year or fraction thereof and for each succeeding Tax Year or fraction thereof during the Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord (Landlord shall provide a copy of any relevant tax bill(s) if requested by Tenant within thirty (30) days of Tenant's receipt of a statement) showing for the preceding year or fraction thereof, as the case may be, real estate taxes on the Building and the
Site, abatements and refunds of any taxes and assessments, expenditures incurred in seeking such abatement or refund, the amount of the Tax Excess, the amount thereof already paid by Tenant, the amount thereof overpaid by Tenant (if any) for the period covered by such statement, and the amount thereof remaining due from Tenant (if any) for the period covered by such statement.
Expenditures for legal fees and for other expenses incurred in seeking the tax refund or abatement may be charged against the tax refund or abatement before the adjustments are made for the Tax Year. Within thirty (30) days after the date of delivery of the foregoing statement, Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.7 with respect to the preceding Tax Year or fraction thereof. Any balance shown as due to Tenant shall be credited against (i) monthly installments
of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under this Lease (or refunded to Tenant if the Term has ended and Tenant has no further obligation to Landlord). The foregoing obligation shall survive the expiration or sooner termination of this Lease.
In
addition, payments by Tenant on account of increases in real estate taxes anticipated for the then current year shall be made monthly at the time and in the fashion herein provided for the payment of fixed rent. The amount so to be paid to Landlord shall be an amount reasonably estimated by Landlord to be sufficient to provide Landlord, in the aggregate, a sum equal to Tenant's share of such increases, at least ten (10) days before the day on which such payments by Landlord would become delinquent.
To the extent that real estate taxes shall be payable to the taxing authority in installments with respect to periods less than a Tax Year, the foregoing statement shall be rendered and payments made on account of such installments.
Terms used herein are defined as follows:
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(i)
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"Tax Year"
means the twelve-month period beginning July 1 each year during the Term or if the appropriate governmental tax fiscal period shall begin on any date other than July 1, such other date.
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(ii)
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"Landlord's Tax Expenses Allocable to the Premises"
shall mean the same proportion of Landlord's Tax Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of the Premises bears to the Total Rentable Floor Area of the Building.
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(iii)
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"Landlord's Tax Expenses"
with respect to any Tax Year means the aggregate real estate taxes on the Building and Site with respect to that Tax Year, reduced by any abatement receipts with respect to that Tax Year.
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(iv)
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"Base Taxes"
is hereinbefore defined in Section 1.1.
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(v)
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"Base Taxes Allocable to the Premises"
means the same proportion of Base Taxes for and pertaining to the Building and the Site as the Rentable Floor Area of the Premises bears to the Total Rentable Floor Area of the Building.
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(vi)
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"Real estate taxes"
means all taxes and special assessments of every kind and nature and user fees and other like fees assessed by any governmental authority
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on the Building or Site which the Landlord shall become obligated to pay because of or in connection with the ownership, leasing and operation of the Site, the Building and the Complex (including without limitation, if applicable, the excise prescribed by Massachusetts General Laws (Ter Ed) Chapter 121A, Section 10 and amounts in excess thereof paid to the City of Waltham pursuant to agreement between Landlord and the City) and reasonable expenses of and fees for any formal or informal proceedings for negotiation or abatement of taxes
(collectively,
"Abatement Expenses"),
which Abatement Expenses shall be excluded from Base Taxes. The amount of special taxes or special assessments to be included shall be limited to the amount of the installment (plus any interest, other than penalty interest, payable thereon) of such special tax or special assessment required to be paid during the year in respect of which such taxes are being determined. There shall be excluded from such taxes all income, estate, succession, inheritance and transfer taxes; provided, however, that if at any time during the Term the present system of ad valorem taxation of real property shall be changed so that in lieu of the whole or any part (but only to the extent of such part) of the ad valorem tax on real property there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Site or Building or Complex, federal, state, county, municipal, or other local income, franchise, excise or similar tax, assessment, levy or charge (distinct from any now in effect in the jurisdiction in which the Complex is located) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the term "real estate taxes" but only to the extent
that the same would be payable if the Site and Buildings were the only property of Landlord.
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(vii)
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If
during the Lease Term the Tax Year is changed by applicable law to less than a full 12-month period, the Base Taxes and Base Taxes Allocable to the Premises shall each be proportionately reduced.
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(viii)
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If
Landlord shall receive any tax refund or reimbursement of Taxes to which Tenant has made payment hereunder and such refund or reimbursement is not reflected in the statement delivered by Landlord above with respect to the applicable tax year, then after deducting Landlord's actual expenses incurred in obtaining such refund (unless such expenses were previously recovered as part of
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Taxes), Landlord shall refund to Tenant an amount equal to Tenant's contributed share of such refund or reimbursement.
Nothing contained in this Section 2.7 shall entitle Landlord to collect, collectively from all of the tenants of the Complex, an amount exceeding 100% of Landlord's Tax Expenses with respect to the pertinent Tax Year.
Landlord will, upon the written request of Tenant, who together with other tenants lease at least fifty (50%) of the Rentable Floor Area of the Building, either apply for abatements, or allow such tenants to apply for abatements in their own name, or in Landlord's name, at their own cost (subject to such tenants' right to recover such reasonable costs on a first dollar basis from the abatement proceeds, if any).
If
such tenants apply for an abatement of real estate taxes, then Landlord shall have the right to be involved in each step of the abatement process, including, without limitation, Landlord's right to approve all filings in connection with such abatement proceedings (such approval not to be unreasonably withheld) and the right to attend all meetings between Tenant and its representatives and the representatives of the City of Waltham.
(A)
Landlord has installed check meters
("Main Check Meters")
to measure tenant electric usage for the Premises as provided in this Section 2.8.
If
a Main Check Meter serves only the Premises or an entire floor leased to a tenant, it is herein referred to as a "dedicated" Main Check Meter; if it serves all or a portion of the Premises in common with other premises, it is herein referred to as a "shared" Main Check Meter. Such Main Check Meter(s) shall primarily measure electricity used for lights and electrical equipment utilized in the Premises, perimeter electric heat, existing supplemental HVAC equipment, and fan-powered and variable air volume boxes which are part of the HVAC system serving the Premises. Any further equipment (including supplemental HVAC equipment) installed by or at the request of Tenant, or in accordance with Exhibit C, shall have separate check meter(s)
("Supplemental Check Meters")
installed at Tenant's expense. On each floor there shall be one or more Main Check Meter(s) serving all of the floor such that the portions of the Premises located on full floors shall be served by dedicated Main Check Meters. With respect to any portion of the Premises that may in the future not be separately check metered on a dedicated Main Check Meter, Landlord will not unreasonably withhold its consent to Tenant to install dedicated Main Check Meter(s) serving solely such portion of the Premises at Tenant's sole cost and expense.
(B)
Tenant's share of the costs of electricity shall be determined by Landlord on the following basis:
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(i)
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Landlord will cause the check meters serving the Premises to be read periodically (but in no event less than quarterly).
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(ii)
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For portions of the Premises served by dedicated Main Check Meter(s), and for all Supplemental Check Meter(s) serving the Premises, Tenant's allocable share of electricity costs for the period
("Tenant's Electricity Payment")
shall be determined by multiplying the actual average cost actually paid by Landlord per kilowatt hour by the number of kilowatt hours utilized by Tenant for such period
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as indicated by the dedicated Main Check Meter(s) and Supplemental Check Meter(s) for Tenant's Premises.
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(iii)
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For portions of the Premises served by shared Main Check Meter(s), if any, the Tenant's Electricity Payment shall be determined by multiplying the cost actually paid by Landlord per kilowatt hour by the number of kilowatt hours utilized as indicated by such shared Main Check Meter(s), and multiplying such total cost by a fraction, the numerator of which is the rentable area leased to Tenant and the denominator of which is the total rentable area under lease to tenants (inclusive of any vacant spaces where electricity is being used on a regular basis) served by such shared Main Check Meter(s); provided, however, that if Landlord shall reasonably determine that the cost of electricity furnished to the Tenant at such portion of the Premises exceeds the amount being paid by Tenant, then Landlord shall deliver to Tenant written documentation establishing Landlord's basis for such determination and Landlord may charge Tenant for such excess and Tenant shall promptly pay the same upon billing therefor as Additional Rent under the Lease, subject to Tenant's right to challenge such determination pursuant to Section 2.6. l(D).
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(iv)
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Where part or all of the rentable area on a floor has been occupied for less than all of the period for which adjustments are being made, appropriate and equitable modifications shall be made to the allocation formula so that each tenant's allocable share of costs equitably reflects its period of occupancy, provided that in no event shall the total of all costs as allocated to tenants (or to unoccupied space) be less than the total cost of electricity for such floor for said period.
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(C)
Tenant shall make estimated payments on account of Tenant's Electricity Payment, as reasonably estimated by Landlord, on a monthly basis. No later than one hundred twenty (120) days after the end of each calendar year falling within the Lease Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord, showing for the preceding calendar year the Tenant's Electricity Payment. Said statement to be rendered to Tenant also shall show for such period the amounts already paid by Tenant on account of Tenant's Electricity Payment and the amount of Tenant's Electricity Payment remaining due from, or overpaid by, Tenant for the period covered by the statement.
If
such statement shows a
balance remaining due to Landlord, Tenant shall pay same to Landlord on or before the thirtieth (30
1
h)
day following receipt by Tenant of said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or refunded to Tenant if the Lease Term has then expired and Tenant has no further obligation to Landlord, which obligation shall survive
the expiration or sooner termination of this Lease. All payments by Tenant on account of Tenant's Electricity Payment shall be deemed Additional Rent and shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. Tenant shall have the right to examine Landlord's records relating to Tenant's Electricity Payment and to dispute the amounts claimed to be owed by Landlord in accordance with the provisions of Section 2.6.1(D) of this Lease.
(D)
All costs of electricity billed to Landlord, other than the costs of tenant electricity allocated pursuant to the procedures established herein, shall be treated as part of Landlord's Operating Expenses for purposes of determining the allocation of those costs. Taxes imposed
upon the electricity furnished to the Building and paid by Landlord shall be included in the calculation of electricity charges payable under this Lease, however, there shall not be included in such electricity charges any tax imposed upon Landlord on account of Landlord's sale, use or resale of electrical energy to Tenant or other tenants in the Building (i.e., no double taxation due to the fact that Landlord is not a licensed reseller of electricity).]
(E)
Landlord shall be responsible for the maintenance, repair and replacement of the Main Check Meter(s) and Tenant shall be responsible for the maintenance, repair and replacement of the Supplemental Check Meter(s).
(F)
Also, in the event that there is located in the Premises a data center containing high density computing equipment, as defined in the U.S. EPA's Energy Star® rating system
("Energy Star"),
Landlord may, at any time during the Term, require the installation in accordance with Energy Star of separate metering or check metering equipment (Tenant being responsible for the costs of any such meter or check meter and the installation and connectivity thereof). Tenant shall directly pay to the utility all electric consumption on any meter and shall pay to Landlord, as Additional Rent, all electric consumption on any check meter within thirty
(30) days after being billed thereof by Landlord, in addition to other electric charges payable by Tenant under this Lease.
ARTICLE III
Condition of Premises
3
.1
Preparation of Premises
The condition of the Premises upon Landlord's delivery along with any work to be performed by Tenant shall be as set forth in the Work Agreement attached hereto as
Exhibit B-1
and made a part hereof. Without in any way derogating from Landlord's ongoing repair and maintenance obligations under this Lease, Tenant acknowledges that Tenant is leasing the Premises A in "AS IS, WHERE IS" condition, and Landlord shall have no obligation to perform any alterations, additions or improvements to prepare the same for Tenant's initial use and occupancy. Tenant acknowledges that without in any way derogating from Landlord's ongoing repair and maintenance obligations under this Lease, Tenant will accept the Premises A in the Delivery Condition, (but otherwise "AS IS, WHERE IS"), and any desired alterations, additions or improvements to the same shall be the sole responsibility of Tenant.
ARTICLE IV
Landlord's Covenants; Interruptions and Delays
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4.1.1
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Services Furnished by Landlord
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To furnish services, utilities, facilities and supplies set forth in Exhibit C equal to those customarily provided by landlords in high quality buildings in the Central Suburban 128 Market
subject to escalation reimbursement in accordance with Section 2.6 (except as may otherwise be expressly provided in said Exhibit C).
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4.1.2
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Additional Services Available to Tenant
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To furnish, at Tenant's expense, reasonable additional building operation services which are usual and customary in similar office buildings in the Central Suburban 128 Market, and such additional special services as may be mutually agreed upon by Landlord and Tenant, upon reasonable advance request of Tenant at reasonable and equitable rates from time to time established by Landlord. Tenant agrees to pay to Landlord, as Additional Rent, the reasonable cost of any such additional building services requested by Tenant and for the cost of any additions, alterations, improvements or other work performed by Landlord in the Premises at the request of Tenant within thirty (30) days after being billed therefor.
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4.1.3
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Roof, Exterior Wall, Floor Slab and Common Facility Repairs
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Except for (a) normal and reasonable wear and use and (b) damage caused by fire and casualty and by eminent domain, and except as otherwise expressly provided in Article VI and subject to the escalation provisions of Section 2.6, (i), to make such repairs to the roof, exterior walls, floor slabs and common areas and facilities as may be necessary to keep them in first class condition and (ii) to maintain the Common Areas of the Building (exclusive of Tenant's responsibilities under this Lease) in a first class manner comparable to the maintenance of similar properties in the Central Suburban 128 Market.
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(a)
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Premises S
ignage. Tenant may install, at Tenant's expense, letters or numerals on exterior doors in the Premises to identify Tenant's official name and Building address; all such letters and numerals shall be in the building standard graphics and no others shall be used or permitted on the Premises without Landlord's prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
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(b)
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Lobby S
ignage. For so long as (i) Tenant leases from Landlord a minimum of fifty four thousand three hundred and seventy-two (54,372) square feet of floor area in the Building, and (ii) Tenant has not assigned this Lease or sublet more than fifty percent (50%) of the Premises (except for an assignment or subletting permitted pursuant to Section 5.6.4), Tenant shall be permitted, at Tenant's expense, to erect a sign in the main lobby of the Building containing Tenant's name and logo in the location shown on
Exhibit M
(the "Lobby Sign"). The design, lighting, method of installation, proportions and color of such Lobby Sign shall be subject to the prior approval of Landlord (which shall not be unreasonably withheld, delayed or conditioned) and any applicable laws. Tenant acknowledges and agrees that Tenant's right to the Lobby Sign pursuant to this Section 4. l .4(b) is not on an exclusive basis and that Landlord may grant other tenants in the Building the right to signage in the main lobby of the Building, provided that no such signage will materially impair the visibility of Tenant's Lobby Sign. Tenant acknowledges and agrees that it shall be Tenant's responsibility to repair, at Tenant's expense, any damage caused to the wall and the wall system by the installation, modification, or removal of the Lobby Sign (it being
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agreed that Landlord shall have the right to require Tenant to remove the same at the expiration or earlier termination of the Term), which may include replacement of the entire wall system, so that such areas are restored to like new condition. In the event Tenant erects the Lobby Sign pursuant to this Section 4. l.4(b) and Tenant subsequently reduces the size of its Premises to less than fifty-four thousand three hundred and seventy-two (54,372) square feet of floor area in the Building, or assigns this Lease or subleases more than fifty percent (50%) of the Premises (except for an assignment or subletting permitted pursuant to Section 5.6.4) so that Tenant no longer leases and occupies at least fifty-four thousand three hundred and seventy two (54,372) square feet of square floor area in the Building, Tenant agrees that it shall promptly remove such Lobby Sign at Tenant's expense in accordance with the foregoing requirements, and in the alternative and at the election of Landlord, Landlord shall have the right remove Tenant such signage and restore the areas disturbed by the same at Tenant's expense. The right to the Lobby Sign granted pursuant to this Section 4.1.4(b) is personal to Care.com, Inc., and may not be transferred to any third party (other than to a Permitted Transferee under Section
5.6.4 below). To the extent the Lobby Sign granted to Tenant pursuant to this Section
4. l .4(b) is no longer available to Tenant pursuant to the terms of this Section 4.1.4(b), then Landlord shall provide customary directory signage in the lobby as it then generally available to tenants of the Building at Tenant's expense (if it is customary that such signage is at the expense of tenants).
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(c)
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Exterior Building S
ignage. For so long as (i) Tenant leases from Landlord a minimum of fifty-four thousand three hundred and seventy-two (54,372) square feet of floor area in the Building, (ii) no monetary or material non-monetary Event of Default exists, and (iii) Tenant has not assigned this Lease or sublet more than fifty percent (50%) of the Premises (except for an assignment or subletting permitted pursuant to Section 5.6.4), Tenant shall be permitted, at Tenant's expense, to erect an exterior sign facing Route 95 on the northwest-facing corner of the Building containing Tenant's name and logo within the "Tenant's Exclusive Signage Area" as
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shown on
Exhibit N
(the
"Building Sign").
The design, lighting, proportions, method of installation and color of such Building Sign shall be subject to the prior approval of Landlord (which shall not be unreasonably withheld, delayed or conditioned) and
shall be further subject to the requirements of the Zoning By-Law of the City of Waltham and any other applicable laws and to Tenant obtaining all necessary permits and approvals therefor prior to installation of the same. Tenant acknowledges and agrees that it shall be Tenant's responsibility to repair, at Tenant's expense, any damage caused to the Building by the installation, modification, or removal of the Building Sign (it being agreed that Landlord shall have the right to require Tenant to remove the same at the expiration or earlier termination of the Term) and to restore any areas of the Building impacted by installation or removal of the Building Sign.
Tenant acknowledges and agrees that Tenant's right to signage on the Building pursuant to this Section 4.1.4(c) is not on an exclusive basis and that Landlord may grant other tenants in the Complex the right to signage on the Site and/or Building; provided, however, that for so long as Tenant meets the foregoing requirements for installing the Building Sign, Landlord shall not grant another tenant rights to exterior signage on the Building in the area shown as "Tenant's Exclusive Signage Area" on
Exhibit N
.
In
the event Tenant erects a sign pursuant to this Section 4.l.4(c) and
Tenant subsequently reduces the size of its Premises to less than fifty-four thousand three hundred and seventy-two (54,372), assigns this Lease or subleases more than fifty percent (50%) of the Premises (except for an assignment or subletting permitted pursuant to Section 5.6.4) so that Tenant no longer leases from Landlord and occupies at least fifty-four thousand three hundred and seventy-two (54,372) square feet of square floor area in the Building, Tenant agrees that it shall promptly remove such signage at Tenant's expense (in the alternative at the election of Landlord, Landlord shall have the right remove Tenant such signage at Tenant's expense), and Tenant's right to exclusive signage in the "Tenant Exclusive Signage Area" shall no longer be applicable. The right to the Building Sign granted pursuant to this Section 4. l.4(c) is personal to Care.com, Inc., and may not be transferred to any third party (other than
to a Permitted Transferee under Section 5.6.4 below). Subject to Tenant's (i) compliance with the foregoing requirements and all other applicable provisions of this Lease, (ii) delivery of evidence of all insurance required under this Lease, and
(iii) delivery of the letter of credit to Landlord in compliance with the requirements of Section 9.19 below, Landlord agrees that Tenant shall have the right to install the Building Sign at any time after the date of this Lease.
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(d)
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Monument S
ignage. For so long as (i) Tenant leases from Landlord a minimum of fifty-four thousand three hundred and seventy-two (54,372) square feet of floor area in the Building, and (ii) Tenant has not assigned this Lease or sublet more than fifty percent (50%) of the Premises (except for an assignment or subletting permitted pursuant to Section 5.6.4), Tenant shall be permitted, at Tenant's expense, to install
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Tenant's name on the monument sign at the entry to the Complex as shown on Exhibit
0
(the
"Monument Sign")
subject to the requirements of the Zoning By-Law of the City of Waltham and any other applicable laws and to Tenant obtaining all necessary permits and approvals therefor prior to installation of the same. Tenant acknowledges and agrees that Tenant's right to signage on the monument pursuant to this Section
4. l .4(d) is not on an exclusive basis and that Landlord may grant other tenants in the Complex the right to signage on such monument and to install other monuments for signage of other tenants without identifying Tenant on the same. In the event Tenant is identified on the Monument Sign pursuant to this Section 4.l.4(d) and Tenant subsequently reduces the size of its Premises to less than fifty-four thousand three
hundred and seventy-two (54,372), assigns this Lease or subleases more than fifty percent (50%) of the Premises (except for an assignment or subletting permitted pursuant to Section 5.6.4) so that Tenant no longer leases from Landlord and occupies at least fifty-four thousand three hundred and seventy-two (54,372) square feet of square floor area in the Building, Tenant agrees that Landlord shall have the right remove Tenant such signage at Tenant's expense. The right to the Monument Sign granted pursuant to this Section 4.l.4(d) is personal to Care.com, Inc., and may not be transferred to any third party (other than to a Permitted Transferee under Section
5.6.4 below).
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4.2
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Interruptions and Delays in Services and Repairs, Etc.
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(a)
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Except as otherwise provided in this Lease, Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance or for loss of business arising from the necessity of Landlord or its agents entering the Premises for any
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of the purposes in this Lease authorized, or for repairing the Premises or any portion of the Building however the necessity may occur. In case Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any services or performing any other covenant or duty to be performed on Landlord's part, by reason of any cause reasonably beyond Landlord's control, including without limitation by reason of Force Majeure (as defined in Section 9.26 hereof), Landlord shall not be liable to Tenant therefor, nor, except as expressly otherwise provided in Article VI, shall Tenant be entitled to any abatement or reduction of rent by reason thereof, or right to terminate this Lease, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises, but Landlord shall nonetheless use commercially reasonably efforts to mitigate the adverse impact of any such event on Tenant's use and enjoyment of the Premises to the extent it is within Landlord's reasonable ability to do so under the circumstances.
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(b)
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Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
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(c)
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Notwithstanding anything to the contrary in this Lease contained, if due to (i) any repairs, alterations, replacements, or improvements made by Landlord, (ii) Landlord's failure to make any repairs, alterations, or improvements required to be made by Landlord hereunder, or to provide any service required to be provided by Landlord hereunder, or
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(iii)
failure of electric, water, sewer, natural gas or elevator service, any portion of the Premises becomes untenantable so that for the Premises Untenantability Cure Period, as hereinafter defined, the continued operation in the ordinary course of Tenant's business is materially adversely affected, then, provided that Tenant ceases to use the affected
portion of the Premises during the entirety of the Premises Untenantability Cure Period by reason of such untenantability, and that such untenantability and Landlord's inability to cure such condition is not caused by the fault or neglect of Tenant or Tenant's agents,
employees or contractors, Annual Fixed Rent, Tax Excess and Operating Cost Excess and the Electricity Payment shall thereafter be abated in proportion to such untenantability
and its impact on the continued operation in the ordinary course of Tenant's business until the day such condition no longer has the material adverse effect referred to above. For the purposes hereof, the
"Premises Untenantability Cure Period"
shall be defined as five (5) consecutive business days after Landlord's receipt of written notice from Tenant of the condition causing untenantability in the Premises, provided however, that the Premises Untenantability Cure Period shall be ten (10) consecutive business days after Landlord's receipt of written notice from Tenant of such condition causing untenantability in the Premises if either the condition was caused by causes beyond Landlord's control or Landlord is unable to cure such condition as the result of causes beyond Landlord's control.
In
addition, if due to (i) any repairs, alterations, replacements, or improvements made by Landlord, (ii) Landlord's failure to make any repairs, alterations, or improvements required to be made by Landlord hereunder, or to provide any service required to be provided by Landlord
hereunder, or (iii) failure of electric, water, sewer, natural gas or elevator service, the operation of Tenant's business in the Premises in the normal course is materially adversely affected for a period of five (5) consecutive months after Landlord's receipt of written notice of such condition
from Tenant, then, provided that Tenant ceases to use the affected portion of the Premises for the period of such untenantability and such untenantability and Landlord's inability to cure such condition is not caused by the fault or neglect of Tenant, or Tenant's agents, employees or contractors, then Tenant may terminate this Lease by giving Landlord written notice as follows:
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(i)
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Said notice shall be given after said five (5) month period.
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(ii)
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Said notice shall set forth an effective date which is not earlier than thirty (30) days after Landlord receives said notice.
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(iii)
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If
said condition is remedied on or before the date thirty (30) days after the receipt of such notice, said notice shall have no further force and effect.
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(iv)
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Subject to subsection (iii), the Lease shall terminate as of said effective date, and the Annual Fixed Rent and Additional Rent due under the Lease shall be apportioned as of said effective date.
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The remedies set forth in this Section 4.2 shall be Tenant's sole remedies for the events described herein. The provisions of this subsection (c) shall not apply in the event of
untenantability caused by fire or other casualty, or taking (which shall be subject to the terms and conditions of Article VI below).
ARTICLE V
Tenant's Covenants
Tenant covenants and agrees to the following during the Term and such further time as Tenant occupies any part of the Premises:
To pay when due all fixed rent and Additional Rent and all charges for utility services rendered to the Premises (except as otherwise provided in Exhibit C) and, as further Additional Rent, all charges for additional services rendered pursuant to Section 4.1.2.
In
the event Tenant pays any utilities for the Premises directly to the utility company or provider, Tenant shall provide Landlord copies of the utility bills relating to the Premises upon request of Landlord.
Except as otherwise provided in Article VI and Section 4.1.3, to keep the Premises in good order, repair and condition, reasonable wear and tear only excepted, and all glass in windows (except glass in exterior walls unless the damage thereto is attributable to Tenant's negligence or misuse) and doors within, or exclusively serving, the Premises whole and in good condition with glass of the same type and quality as that injured or broken, damage by fire or taking under the power of eminent domain only excepted, and at the expiration or termination of this Lease peaceably to
yield up the Premises all construction, work, improvements, and all alterations and additions thereto in good order, repair and condition, reasonable wear and tear only excepted, first removing all goods and effects of Tenant and, to the extent specified by Landlord by notice to Tenant given at least sixty (60) days before such expiration or termination (unless otherwise specified by Landlord as set forth in Section 5.12), the wiring for Tenant's computer, telephone and other communication systems and equipment whether located in the Premises or in any other portion of the Building, including all risers, and all alterations and additions made by Tenant and all partitions, and repairing any damage caused by such removal and restoring the Premises and leaving them clean and neat. Tenant shall not permit or commit any waste, and Tenant shall (subject to Section 8.13 below) be responsible for the cost of repairs which may be made necessary by reason of damage to common areas in the Building, to the Site or to the other buildings caused by Tenant, Tenant's agents, contractors, employees, sublessees, licensees, concessionaires or invitees. Landlord agrees that Tenant shall have the right to use any supplemental air conditioning system serving each portion of the Premises, including, without limitation, those serving the IT closets in Premises A and Premises C (the
"IT AC Units"),
as of the applicable Commencement Date. Tenant shall be solely responsible, at its cost, for the maintenance, repair and replacement of all elements of the supplemental air conditioning
systems serving the Premises, including, without limitation, the IT AC Units, the supply and return isolation valves located adjacent to the units and the piping located between these valves and the units, throughout the Lease Term, including all electricity consumption costs related thereto except that Landlord shall be responsible for performing the maintenance, repair and replacement of the glycol loop, associated pumps, and dry coolers and related supplies (e.g. glycol) on the roof of the Building, serving the IT AC Units, and Tenant shall be responsible for reimbursing Landlord for Tenant's proportionate share of the cost of the same (including electricity-consumption costs) within thirty (30) days of billing, it being agreed that Tenant's proportionate share of such costs shall be based on the percentage of Tenant's connected load (tonnage) of the applicable IT AC Units bears to the total connected load (tonnage) of the total of all tenant IT AC Units supported by the glycol loop.
To use and occupy the Premises for the Permitted Use only, and not to injure or deface the Premises, Building, the Site or any other part of the Complex nor to permit in the Premises or on the Site any auction sale, vending machine (other than vending machines within the Premises for use by Tenant's employees and business invitees), or flammable fluids or chemicals, or nuisance, or the emission from the Premises of any reasonably objectionable noise or odor, nor to permit in the Premises anything which would in any way result in the leakage of fluid or the growth of mold, and not to use or devote the Premises or any part thereof for any purpose other than the Permitted Use, nor any use thereof which is inconsistent with the maintenance of the Building as an office building of the first class in the quality of its maintenance, use and occupancy, or which is improper, offensive, contrary to law or ordinance or liable to invalidate or increase the premiums for any insurance on the Building or its contents or liable to render necessary any alteration or addition to the Building. Further, (i) Tenant shall not, nor shall Tenant permit its employees, invitees, agents, independent contractors, contractors, assignees or subtenants to unlawfully keep, maintain, store or dispose of (into the sewage or waste disposal system or otherwise) or engage in any activity which is reasonably likely to produce or generate any substance which is at the time in question be classified as a hazardous material, waste or substance (collectively
"Hazardous Materials"),
under federal, state or local laws, rules and
regulations, including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General Laws, Chapter 2 lE and the rules and regulations promulgated under any of the foregoing, as such laws, rules and regulations may be amended from time to time (collectively
"Hazardous Materials Laws"),
(ii) Tenant shall promptly upon receipt of actual knowledge
thereof, notify Landlord of any incident in, on or about the Premises, the Building or the Site that would require the filing of a notice under any Hazardous Materials Laws, (iii) Tenant shall comply and shall cause its employees, invitees, agents, independent contractors, contractors, assignees and subtenants to comply with each of the foregoing and (iv) Landlord shall have the right (at its sole expense and at reasonable intervals and upon reasonable advance notice) to
make such inspections (including testing) as Landlord shall elect from time to time to determine that Tenant is complying with the foregoing (provided that, except in cases of emergency, Landlord provides Tenant at least two (2) business days' prior written notice of any such inspection). Notwithstanding the foregoing, Tenant may use normal amounts and types of substances typically used for Tenant's business operations, provided that Tenant uses such substances in the manner which they are normally used, and in compliance with all Hazardous Materials Laws and other applicable laws, ordinances, bylaws, rules and regulations, and Tenant obtains and complies with all permits required by Hazardous Materials Laws or any other laws, ordinances, bylaws, rules or regulations prior to the use or presence of any such substances in the Premises.
Landlord represents and warrants to Tenant that, except as set forth in that certain MCP Environmental Summary Letter dated November 5, 2007 from Sanborn, Head
&
Associates, Inc. (a copy of which has been provided to Tenant), to the best of Landlord's actual knowledge as of the date of this Lease there are no Hazardous Materials in the Building or on the Site which are or would be required to be removed or otherwise abated in accordance with applicable
Hazardous Materials Laws. Subject to the limitations of Section 8.4 hereof, Landlord shall use reasonable efforts to remove or abate, as required by applicable Hazardous Materials Laws and without inclusion in Operating Expenses (except as set forth in Section 2.6(xi)), (x) Hazardous Materials on the Site or in the Common Areas, the structural elements or the base building systems of the Building and (y) Hazardous Materials that are present in other areas of the Building as the result of the actions of Landlord, its employees, agents or contractors.
Notwithstanding the foregoing but without limitation of Tenant's rights under Section 4.2 of this Lease, Landlord's obligation to remove or abate Hazardous Materials pursuant to this Section 5.3 shall not apply to (i) requirements of Hazardous Materials Laws resulting from the use of Hazardous Materials, or additions, alterations or improvements in the Premises, by Tenant or anyone claiming by, through or under Tenant, or (ii) Hazardous Materials which are in the Building or on the Site because of the action or inaction of any tenant or occupant in the
Building, including Tenant or any employee, agent or contractor thereof, or (iii) any tenant space in the Building, including the Premises, and any additions, alterations and improvements therein, unless in the case of this clause (iii) such Hazardous Materials
(1)
existed in, at or on the Premises, the Building or the Site prior to the Premises A Commencement Date (unless caused by Tenant in connection with its occupancy prior to such date) or migrated to the Premises, the Building or the Site from another property or (2) are present as the result of the action or inaction of Landlord, its affiliate, employees, agents or contractors. In connection with the foregoing, Landlord hereby agrees to use best efforts to enforce the terms of its leases with other tenants of the Building in the event of a violation of Hazardous Materials Laws resulting from the action or inaction of any tenant or occupant of the Building or any employee, agent or contractor thereof;
provided, however, that, subject to Section 4.2, in no event shall Landlord be liable to Tenant for any violation of Hazardous Materials Laws by any tenant or occupant of the Building.
Subject to the limitations of Section 8.13 and 9.3 hereof, Landlord agrees to defend with counsel first approved by Tenant (counsel appointed by Landlord's insurance carrier shall be deemed approved by Tenant and for any other circumstances such approval shall not be unreasonably withheld or delayed), indemnify and save Tenant harmless from liability, loss and damage to persons or property and from any claims, actions, proceedings and expenses in connection therewith resulting from the failure of Landlord to fulfill its obligations under this Section 5.3 or any breach of Landlord's representations and warranties under this Section 5.3; provided, however, that in no event shall the foregoing indemnity render Landlord liable for any loss or damage to Tenant's Property and Landlord shall in no event be liable for indirect or consequential damages.
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5.4
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Obstructions; Items Visible From Exterior; Rules and Regulations
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Not to obstruct in any manner any portion of the Building not hereby leased or any portion thereof or of the Site used by Tenant in common with others; not without prior consent of Landlord (or as otherwise provided in this Lease) to permit the painting or placing of any signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like, visible from outside the Premises; and to comply with all reasonable rules and regulations or the requirements of any customer handbook currently in existence or hereafter implemented, of which Tenant has been given notice, for the care and use of the Building and Site and their facilities and approaches; Landlord shall not be liable to Tenant for the failure of other occupants of the Buildings to conform to such rules and regulations. Landlord shall not enforce such rules and regulations other than in a non-discriminatory manner.
In
the event that there shall be a conflict between such rules and regulations and this Lease, the provisions of this Lease shall prevail.
To keep the Premises equipped with all safety appliances required by law or ordinances or any other regulation of any public authority because of any use made by Tenant other than normal office use, and to procure all licenses and permits so required because of such use and, if requested by Landlord, to do any work so required because of such use, it being understood that the foregoing provisions shall not be construed to broaden in any way Tenant's Permitted Use.
Except as otherwise expressly provided herein, Tenant covenants and agrees that it shall not assign, mortgage, pledge, hypothecate or otherwise transfer this Lease and/or Tenant's interest in this Lease or sublet (which term, without limitation, shall include granting of concessions, licenses or the like) the whole or any part of the Premises without having obtained the prior written consent of Landlord if and to the extent required below. Any assignment, mortgage, pledge, hypothecation, transfer or subletting not expressly permitted in or consented to by Landlord under Sections 5.6.1-5.6.6 shall, at Landlord's election, be void; shall be of no force and effect; and shall confer no rights on or in favor of third parties. In addition, Landlord shall be entitled to seek specific performance of or other equitable relief with respect to the provisions hereof.
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5.6.1
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Notwithstanding the provisions of Section 5.6 above, in the event Tenant desires to assign this Lease or to sublet the whole or any part of the Premises, Tenant shall give Landlord notice (the
"Proposed Transfer Notice")
of any proposed sublease or assignment, and said notice shall specify the provisions of the proposed assignment or subletting, including (a) the name and address of the proposed assignee or subtenant, (b) in the case of a proposed assignment or subletting pursuant to Section 5.6.3 below, such
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information as to the proposed assignee's or proposed subtenant's net worth and financial capability and standing as may reasonably be required for Landlord to make the determination referred to in said Section 5.6.3 (provided, however, that Landlord shall hold such information confidential having the right to release same to its officers, accountants, attorneys and mortgage lenders on a confidential basis), (c) all of the terms and provisions upon which the proposed assignment or subletting is to be made, (d) in the case of a proposed assignment or subletting pursuant to Section 5.6.3 below, all other information necessary to make the determination referred to in said Section 5.6.3 and (e) in the case of a proposed assignment or subletting pursuant to Section 5.6.4 below, such information as may be reasonably required by Landlord to determine that such proposed assignment or subletting complies with the requirements of said Section 5.6.4.
If
Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such assignment or sublease shall not be executed and delivered to Landlord within one hundred eighty (180) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 5.6 shall be applicable.
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5.6.2
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Notwithstanding the provisions of Section 5.6 above, in the event Tenant desires:
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(a)
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to assign this Lease other than to a Permitted Transferee; or
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(b)
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to sublet such portion (the
"Sublease Portion")
of the Premises as (x) contains by itself at least fifty percent (50%) of the Rentable Floor Area of the Premises or (y) with other subleases then in effect, would bring the total amount of the Premises then subleased to fifty percent (50%) or more of the Rentable Floor Area of the Premises, in either case for a term equal to all or substantially all of the remaining Lease Term hereof; or
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(c)
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to sublet any Sublease Portion consisting of 25,000 square feet of rentable floor area or more for a term equal to all or substantially all of the remaining Lease Term hereof (any such sublease under this subparagraph (c) or subparagraph (b) above being hereinafter referred to as a
"Major Sublease");
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then Tenant shall notif y Landlord thereof in writing and Landlord shall have the right at its sole option, to be exercised within ten (10) business days after receipt of Tenant's Proposed Transfer Notice (the
"Acceptance Period"),
to terminate this Lease effective as of what would have been the effective date of such sublease or assignment; provided, however, that upon the termination date, all obligations relating to the period after such termination date (but not those relating to the period before such termination date) shall cease and promptly upon being billed therefor by Landlord, Tenant shall make final payment of all Annual Fixed Rent and Additional Rent due from Tenant through the termination date; provided further, that such notice of termination shall
be null and void and of no force and effect and this Lease shall remain in full force and effect, if within five (5) days after Landlord's notice to terminate this Lease, Tenant notifies Landlord that Tenant withdraws Tenant's request to assign the Lease or sublet the Premises (a "Rescission Notice"), but Tenant shall have the right to submit a Rescission Notice only if it has not submitted a Rescission Notice during the prior 12-month period.
Notwithstanding the foregoing, in the event of a Major Sublease:
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(i)
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Landlord shall only have the right to so terminate this Lease with respect to the Sublease Portion and from and after the termination date the Rentable Floor Area of the Premises shall be reduced to the rentable floor area of the remainder of the Premises and the definition of Rentable Floor Area of the Premises shall be so amended and after such termination all references in this Lease to the "Premises" or the "Rentable Floor Area of the Premises" shall be deemed to be references to the remainder of the Premises and accordingly Tenant's payments for Annual Fixed Rent, Additional Rent, operating costs, real estate taxes and electricity shall be reduced on a pro rata basis to reflect the size of the remainder of the Premises;
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(ii)
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in the case of Major Sublease for less than all or substantially all of the then-remaining Lease Term, Landlord shall only have the right to suspend the term of this Lease with respect to the Sublease Portion pro tanto for the term of the proposed sublease (i.e. the Term of the Lease in respect of the Sublease Portion shall be terminated for the term of the proposed sublease and then reinstated upon the expiration or earlier termination of such sublease term); and
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(iii)
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in the case of a proposed Major Sublease which, when combined with other subleases of the Premises then in effect reaches the fifty percent (50%) of the Premises threshold set forth above for Landlord to recapture, Landlord may only exercise its recapture rights with respect to the proposed Major Sublease, but may not exercise its recapture rights or terminate this Lease as to any subleases of the Premises previously entered into by Tenant.
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In
the event that Landlord shall not exercise its termination rights as aforesaid, or shall fail to
give any or timely notice pursuant to this Section the provisions of Sections 5.6.3, 5.6.5 and 5.6.6 shall be applicable. In the case of a Major Sublease where Landlord has exercised its termination right pursuant to this Section 5.6.2, Landlord shall be responsible, at its sole cost and expense,
for all work necessary to separately physically demise that portion of the Premises which are being terminated from the remainder of the Premises. This Section 5.6.2 shall not be applicable to an assignment or sublease pursuant to Section 5.6.4.
In
the event of a suspension of this Lease in respect of a Major Sublease, Tenant shall have no liability for any act or omission by Landlord (as sublessee of the Sublease Portion) or any assignee or sub-sublessee of Landlord, and Landlord's indemnity set forth in Section 8.1.1 below will be applicable with respect to the foregoing actions. Upon the end of such suspension, Landlord will return the Sublease Portion
in substantially the same in the same condition as existed on the effective date of such suspension, reasonable wear and tear excepted subject to Article VI below.
5.6.3
Notwithstanding the provisions of Section 5.6 above, but subject to the provisions of this Section 5.6.3 and the provisions of Sections 5.6.5 and 5.6.6 below, in the event that Landlord
shall not have exercised the termination right as set forth in Section 5.6.2, or shall have failed to give any or timely notice under Section 5.6.2, then for a period of one hundred eighty (180) days
(i)
after the receipt of Landlord's notice stating that Landlord does not elect the termination right, or (ii) after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 5.6.2 as the case may be, Tenant shall have the right to assign this Lease or sublet the Premises substantially in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or delayed.
Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonabl y withholding its consent to such a proposed assignment or subleasing if:
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(a)
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the proposed assignee or subtenant is an occupant of the Building or elsewhere on the Site or is in active negotiation (as evidenced by submission of written term sheets or similar communications within the prior ninety (90) days) with Landlord and Landlord has existing space in the Building that satisfies such party's needs, or
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(b)
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the proposed assignee or subtenant is not of a character consistent with the operation of a first class office building in the Route 128/Metrowest rental market (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi-governmental agency), or
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(c)
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given appropriate weight, if applicable, to the fact that Tenant will nevertheless remain liable under this Lease, the proposed assignee or
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subtenant does not possess adequate financial capability to perform the Tenant obligations as and when due or required, or
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(d)
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the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section 1.1 hereof, or
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(e)
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the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden generated
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by normal and customary office usage; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises, or
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(f)
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there shall be existing a monetary or material non-monetary Event of Default (defined in Section 7.1), or
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(g)
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any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any
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adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates, or
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(h)
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the holder of any mortgage or ground lease on property which includes the Premises does not approve of the proposed assignment or sublease if such holder has approval rights under applicable agreements between the holder and Landlord, or
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(i)
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due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Building which covenant or restriction is in effect as of the date of this Lease.
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5.6.4
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Notwithstanding the provisions of Sections 5.6, 5.6.2, 5.6.3 and 5.6.5, but subject to the provisions of Sections 5.6.1 and 5.6.6, Tenant shall have the right to assign this Lease or to sublet the Premises (in whole or in part) to any other entity (the
"Successor Entity")
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(i)
which controls or is controlled by Tenant or by Tenant's parent corporation or entity or which is under common control with Tenant, provided that such transfer or transaction is for a legitimate regular business purpose of Tenant other than the principal purpose of a transfer of Tenant's interest in this Lease, or (ii) which purchases all or substantially all of the assets of Tenant, or (iii) which purchases all or substantially all of the stock of (or other ownership or membership interests in) Tenant or (iv) which merges or combines with Tenant, provided that in any of the foregoing events, the entity (A) to which this Lease is assigned has a credit worthiness (e.g. net assets on a pro forma basis using generally accepted accounting principles consistently applied and using the most recent financial statements) which is the same or better than the Tenant as of the date of this Lease, or (B) which sublets the Premises has a credit worthiness sufficient to perform its obligations under such sublease (the foregoing transferees referred to, individually or
collectively, as a
"Permitted Transferee").
Except in cases of statutory merger, in which case the surviving entity in the merger shall be liable as the Tenant under this Lease, Tenant shall continue to remain fully liable under this Lease, on a joint and several basis with the Permitted Transferee.
If
any parent, affiliate or subsidiary of Tenant to which
this Lease is assigned or the Premises sublet (in whole or in part) shall cease to be such a parent, affiliate or subsidiary within two (2) years following such assignment or sublet, such cessation shall be considered an assignment or subletting requiring Landlord's consent.
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5.6.5
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In
addition, in the case of any assignment or subleasing as to which Landlord may consent (other than an assignment or subletting permitted under Section 5.6.4 above) such consent shall be upon the express and further condition, covenant and agreement, and Tenant hereby covenants and agrees that, in addition to the Annual Fixed Rent, Additional Rent and other charges to be paid pursuant to this Lease, fifty percent (50%) of the "Assignment/Sublease Profits" (hereinafter defined), if any, shall be paid to Landlord.
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The
"Assignment/Sublease Profits"
shall be the excess, if any, of (a) the "Assignment/Sublease Net Revenues" as hereinafter defined over (b) the Annual Fixed Rent, Additional Rent and other charges provided in this Lease (provided, however, that
for the purpose of calculating the Assignment/Sublease Profits in the case of a sublease, appropriate prorations in the applicable Annual Fixed Rent, Additional Rent and other charges under this Lease shall be made based on the percentage of the Premises subleased and on the terms of the sublease). The
"AssignmenUSublease Net Revenues"
shall be
the fixed rent, Additional Rent and all other charges and sums payable either initially or over the term of the sublease or assignment, less the reasonable costs of Tenant incurred in such subleasing or assignment (the definition of which shall be limited to brokerage commissions, advertising and marketing costs, rent concessions, attorneys' fees, architect and construction management fees, and alteration allowances, in each case actually paid), as set forth in a statement certified by an appropriate officer of Tenant and delivered to Landlord within thirty (30) days of the full execution of the sublease or assignment document, amortized over the term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be made within thirty (30) days of receipt of same by Tenant.
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5.6.6
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(A)
It
shall be a condition of the validity of any assignment or subletting of right under Section 5.6.4 above, or consented to under Section 5.6.3 above, that both Tenant and the assignee or sublessee enter into a separate written instrument directly with Landlord in a commercially reasonable form and containing terms and provisions reasonably acceptable to Tenant and Landlord, including, without limitation, the agreement of the assignee or sublessee to be bound by all the obligations of the Tenant hereunder, including, without limitation, the obligation (a) to pay the Annual Fixed Rent,
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Additional Rent, and other amounts provided for under this Lease (but in the case of a partial subletting, such subtenant shall agree on a pro rata basis to be so bound) and (b) to comply with the provisions of Sections 5.6 through 5.6.6 hereof. Such assignment or subletting shall not relieve the Tenant named herein of any of the obligations of the Tenant hereunder and Tenant shall remain fully and primarily liable therefor and the liability of Tenant and such assignee (or subtenant, as the case may be) shall be joint and several. Further, and notwithstanding the foregoing, unless otherwise provided in such consent agreement (it being understood and agreed that the foregoing shall not be construed so as to require Landlord to recognize any subtenant), the provisions hereof shall not constitute a recognition of the sublease or the subtenant thereunder, and at Landlord's option, upon the termination or expiration of the Lease (whether such termination is based upon a cause beyond Tenant's control, a default of Tenant, the agreement of Tenant and Landlord or any other reason), the sublease shall be terminated.
(B)
As Additional Rent, Tenant shall pay to Landlord as a fee for Landlord's review of any proposed assignment or sublease requested by Tenant and the preparation of any associated documentation in connection therewith, within thirty (30) days after receipt of an invoice from Landlord, an amount equal to the either (i) $1,000.00 for time spent by Landlord's in-house personnel or (ii) the actual and reasonable out of pocket legal fees or other expenses incurred by Landlord in connection with such request.
(C)
If
this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may upon prior notice to Tenant, at any time and from time to time while an Event of Default exists and continues uncured hereunder, collect Annual Fixed Rent, Additional Rent, and other charges from the
assignee, sublessee or occupant and apply the net amount collected to the Annual Fixed Rent, Additional Rent and other charges herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver of this covenant, or a waiver of the provisions of Sections 5.6 through 5.6.6 hereof, or the acceptance of the assignee, sublessee or occupant as a tenant or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained, the Tenant herein named to remain primarily liable under this Lease.
(D)
The consent by Landlord to an assignment or subletting under any of the provisions of Sections 5.6.3 above or the consummation of an assignment or subletting of right under Section 5.6.4 above, shall in no way be construed to relieve Tenant from obtaining the express consent in writing of Landlord (if and to the extent required under this Lease) to any further assignment or subletting.
(E)
Without limiting Tenant's obligations under Section 5.12, and except with respect to costs following a recapture by Landlord as provided above, Tenant shall be responsible, at Tenant's sole cost and expense, for performing all work necessary to comply with Legal Requirements and Insurance Requirements in connection with any assignment or subletting hereunder including, without limitation, any work in connection with such assignment or subletting.
(F)
In
addition to the other requirements set forth in this Lease and notwithstanding any other provision of this Lease, partial sublettings of the Premises shall only be permitted under the following terms and conditions: (i) the layout of both the subleased premises and the remainder of the Premises must comply with applicable laws, ordinances, rules and/or regulations and be reasonably approved by Landlord, including, without limitation, all requirements concerning access and egress (ii) in the event the subleased premises are separately physically demised from the remainder of the
Premises, and except as provided in Section 5.6.2, Tenant shall pay all costs of separately physically demising the subleased premises; and (iii) at any given time, there shall be no more than three (3) subleases in effect.
(G)
Notwithstanding anything to the contrary provided in Section 5.6.5 above, Landlord shall be entitled to one hundred percent (100%) of any Assignment/Sublease Profits reasonably allocable (in Landlord's reasonable determination consistent with Section 5.6
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5) to any calendar month of the Term during which there is or was existing, at any time during said calendar month, a monetary or material non-monetary Event of Default (as defined in Section 7.1).
To permit Landlord and its agents to examine the Premises at (i) reasonable times and upon reasonable prior notice, (ii) accompanied by a representative of Tenant if Tenant so elects, and
(iii) in compliance with Tenant's reasonable security requirements (established from time to time and of which Landlord has prior written notice) (clauses (i) through (iii) collectively, the "Entry Requirements") and, if Landlord shall so elects, in compliance the Entry Requirements, (x) to make any repairs or replacements required of Landlord under this Lease or which Landlord may deem reasonably necessary, (y) to remove, at Tenant's expense, to the extent any such item
requires the consent of Landlord under this Lease, any alterations, addition, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like not consented to in writing, or (z) to show the Premises (A) to prospective tenants during the eleven (11) months preceding expiration of the Term and (B) to prospective purchasers. Notwithstanding the foregoing, the building superintendent and those individuals involved in the cleaning and regular daily maintenance of
the Building shall not be subject to the Entry Requirements. Further notwithstanding anything in the foregoing to the contrary, in the event of an emergency that could cause damage to health, safety or property, Landlord shall use good faith efforts to follow Tenant's Entry Requirements and in such event Landlord will be required to give only such notice that it in good faith believes is feasible under the circumstances and need not wait to be accompanied by Tenant or its employees or representatives (although these parties may still accompany Landlord if they are available and wish to do so).
In the event Tenant sends a notice alleging the existence of a dangerous or unsafe condition, any requirements for prior notice or limitations on Landlord's access to the Premises contained in this Lease shall be deemed waived by Tenant so that Landlord may immediately exercise its rights under this Section 5.7 and Section 9.16 in such manner as Landlord deems necessary in its
sole discretion to remedy such dangerous or unsafe condition.
In
connection with the exercise of
its rights under this paragraph, Landlord shall use commercially reasonable efforts to minimize or avoid inconvenience to Tenant in connection with its exercise of the rights granted herein (consistent with the nature of the rights being exercised).
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5.8
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Floor Load; Prevention of Vibration and Noise
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Not to place a load upon the Premises exceeding an average rate of 70 pounds of live load per square foot of floor area (partitions shall be considered as part of the live load); and not to move any safe, vault or other heavy equipment in, about or out of the Premises except in such manner and at such time as Landlord shall in each instance authorize; Tenant's business machines and mechanical equipment which cause vibration or noise that may be transmitted to the Building structure or to any other space in the Building shall be so installed, maintained and used by Tenant so as to minimize such vibration or noise so that there shall be no interference with other tenants in the Building.
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5.9
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Personal Property Taxes
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To pay promptly when due all taxes which may be imposed upon "Tenant's Property" (as defined in Section 8.4 hereof) in the Premises to whomever assessed.
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5.10
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Compliance with Laws
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To comply with all applicable Legal Requirements now or hereafter in force regarding the operation of Tenant's business and the use, condition, configuration and occupancy of the Premises.
In
addition, Tenant shall, at its sole cost and expense, promptly comply with any Legal Requirements that relate to the Base Building (as hereinafter defined), but only to the extent such obligations are triggered by Tenant's use of the Premises, other than for general office use, or alterations, additions or improvements in the Premises performed or requested by Tenant. "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 pay all fines, penalties and damages that may arise out of or be imposed because of its failure to comply with the provisions of this Section 5.10.
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5.11
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Payment of Litigation Expenses
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As Additional Rent, to pay all reasonable out-of-pocket costs, counsel and other fees incurred by Landlord in connection with the successful enforcement by Landlord of any obligations of Tenant under this Lease or in connection with any bankruptcy case involving Tenant or any guarantor (Landlord hereby similarly agreeing to reimburse Tenant for all reasonable out-of pocket costs, counsel and other fees incurred by Tenant in connection with the successful enforcement by Tenant of any obligations of Landlord under this Lease or in connection with
any bankruptcy case involving a bankruptcy proceeding of Landlord).
Except as provided herein, Tenant shall not make alterations and additions to Tenant's Premises except in accordance with plans and specifications therefor first approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. However, Landlord's determination of matters relating to aesthetic issues relating to alterations, additions or improvements which are visible from outside of the Premises shall be in Landlord's sole discretion. Without limiting such standard Landlord shall not be deemed unreasonable for withholding approval of any alterations or additions (including, without limitation, any alterations or additions to be performed by Tenant under Article III) which (a) in Landlord's opinion would reasonably be expected to adversely affect any structural or exterior element of the Building, any area or element outside of the Premises, or any facility or base building mechanical system serving any area of the Building outside of the Premises, or (b) involve or affect the exterior design, size, height, or other exterior dimensions of the Building or (c) will require unusual expense to readapt the Premises to normal office use on Lease termination or expiration or materially increase the cost of construction or of insurance or taxes on the Building or of the services called for by Section 4.1 unless Tenant first gives assurance reasonably acceptable to Landlord for payment of such increased cost and that such readaptation will be made prior to such termination or expiration without expense to Landlord, (d) enlarge the Rentable Floor Area of the Premises, or (e) are inconsistent in any material respect, in
Landlord's reasonable judgment, with alterations satisfying Landlord's then applicable standards for new alterations which are uniformly applied to all tenants of the Building. Landlord's review and approval of any such plans and specifications and consent to perform work described therein shall not be deemed an agreement by Landlord that such plans, specifications and work conform with applicable Legal Requirements and requirements of insurers of the Building and the other requirements of this Lease with respect to Tenant's insurance obligations (herein called
"Insurance Requirements")
nor deemed a waiver of Tenant's obligations under this Lease with respect to applicable Legal Requirements and Insurance Requirements nor impose any liability or obligation upon Landlord with respect to the completeness, design sufficiency or compliance of such plans, specifications and work with applicable Legal Requirements and Insurance Requirements nor give right to any other parties. Further, Tenant acknowledges that Tenant is acting for its own benefit and account, and that Tenant shall not be acting as Landlord's agent in performing any work in the Premises, accordingly, no contractor, subcontractor or supplier shall
have a right to lien Landlord's interest in the Complex in connection with any such work. Within
thirty (30) days after receipt of an invoice from Landlord (together with reasonable supporting back up documentation), Tenant shall pay to Landlord as a fee for Landlord's review of any work or plans (excluding any review respecting initial improvements performed pursuant to Article III hereof but including any review of plans or work relating to any assignment or subletting), as Additional Rent, an amount equal to the sum of: (i) $150.00 per hour for time spent by senior staff, and $100 per hour for time spent by junior staff (not to exceed $1,500 in the aggregate with respect to a proposed alteration or addition provided the proposed alteration
or addition will not impact Building structure or base building systems), plus
(ii)
reasonable third party expenses paid by Landlord to review Tenant's plans and Tenant's work. Except for any additions or alterations which Tenant requests to remain in the Premises in Tenant's notice seeking Landlord's consent for the installation thereof (which notice shall specifically refer to this Section 5.12) and for which Landlord specifically agrees in writing may remain, all alterations and additions shall be part of the Building unless and until Landlord shall specify the same for removal pursuant to Section 5.2. All of Tenant's alterations and additions and installation of furnishings shall be coordinated with any work being performed by Landlord and in such manner as to maintain harmonious labor relations and not to damage the Buildings or
Site or unreasonably interfere with construction or operation of the Buildings and other improvements to the Site and, except for installation of furnishings, shall be performed by contractors or workers first approved by Landlord, such approval not to be unreasonably withheld, delayed or conditioned. Nothing herein shall be construed to permit Landlord to require Tenant to use union labor for any alterations or improvements. Tenant, before its work is started, shall secure all licenses and permits necessary therefor; deliver to Landlord a statement of the names of all its contractors and subcontractors and the estimated cost of all labor and material to be furnished by them, and to the extent the proposed alterations or improvements are of such a magnitude that a bond or other security would customarily be required, security satisfactory to Landlord protecting Landlord against liens arising out of the furnishing of such labor and material; and cause each contractor to carry insurance in accordance with Section 8.14 herein and to deliver to Landlord certificates of all such insurance. With respect to alterations or
improvements that are of a nature such that as-built plans would customarily be prepared, Tenant shall also prepare and submit to Landlord a set of as-built plans, in both print and electronic forms, showing such work performed by Tenant to the Premises promptly after any such alterations, improvements or installations are substantially complete and promptly after any wiring or cabling for Tenant's computer, telephone and other communications systems is installed by Tenant or Tenant's contractor. Without limiting any of Tenant's obligations hereunder, Tenant shall be responsible, as Additional Rent, for the costs of any alterations, additions or improvements in or to the Building that are required in order to comply with Legal Requirements as a result of any work performed by Tenant. Landlord shall have the right to provide such reasonable rules and regulations relative to the performance of any alterations, additions, improvements and installations hereunder (which shall be applied in a non discriminatory manner) and Tenant shall abide by all such reasonable rules and regulations and shall cause all of its contractors to so abide including, without limitation, payment for the costs
of using Building services. Tenant agrees to pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees, or independent contractors, and not to cause or permit any liens for labor or materials performed or furnished in connection therewith to attach to the Premises or the Buildings or the Site and immediately to discharge any such liens which may so attach. Tenant shall pay, as Additional Rent, 100% of any incremental real estate taxes on the Complex which shall, at any time after commencement of the Term, be
demonstrated to directly and solely result from any alteration, addition or improvement to the
Premises made by Tenant. Tenant acknowledges and agrees that Landlord shall be the owner of any additions, alterations and improvements in the Premises or the Building to the extent paid for by Landlord.
Notwithstanding the terms of this Section 5.12, Tenant shall have the right, without obtaining the prior consent of Landlord, but upon notice to Landlord given ten (10) days prior to the commencement of any work (which notice shall specify the nature of the work in reasonable detail), to make alterations, additions or improvements to the Premises where:
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(a)
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the same are within the interior of the Premises within the Building, and do not affect the exterior of the Premises and the Building (including no signs on windows);
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(b)
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the same do not affect the roof or any structural element of the Building, or adversely affect the mechanical, electrical, plumbing, heating, ventilating, air-conditioning and fire protection systems of the Building; and
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(c)
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with the exception of installation or replacement of cabinetry, painting and carpeting (which shall not be subject to the dollar limits set forth in this subsection (c)), the cost of any individual alteration, addition or improvement shall not exceed $75,000.00 and the aggregate cost of said alterations, additions or improvements made by Tenant during the Lease Term shall not exceed $450,000.00 in cost to each floor of the Premises; and
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(d)
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Tenant shall comply with the provisions of this Lease and if such work increases the cost of insurance or taxes or of services, Tenant shall pay for any such increase in cost to the extent demonstrated to be directly and solely resulting from such work;
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provided, however, that Tenant shall, within thirty (30) days after the making of such changes, send to Landlord plans and specifications describing the same in reasonable detail and provided further that Landlord, by notice to Tenant given at least thirty (30) days prior to the expiration or earlier termination of the Lease Term, may require Tenant to restore the Premises to its condition prior to construction of such improvements (reasonable wear and tear excepted) at the expiration or earlier termination of the Lease Term. To the extent Tenant delivers such plans and specifications and clearly requests in writing the additions or alterations shown thereon which Tenant desires to remain in the Premises (which notice shall specifically refer to this Section 5.12) at the expiration or earlier termination of the Lease Term, Landlord agrees to notify Tenant within thirty (30) days thereafter of which of such items may remain at the expiration or earlier termination of the Lease Term.
Any vendors engaged by Tenant to perform services in or to the Premises including, without limitation, janitorial contractors and moving contractors shall be coordinated with any work being performed by or for Landlord and in such manner as to maintain harmonious labor relations and not to damage the Building or the Complex or unreasonably interfere with Building construction or operation and shall be performed by vendors first approved by Landlord.
Notwithstanding the foregoing, the following vendors do not require Landlord's approval: brokerage, legal, employment staffing, accounting, consulting, professional service, office and
other supplies, furniture providers (but not installers), construction consultants not performing any physical work in the Building (but not architects) and food catering.
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(a)
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As an inducement to Landlord to enter into this Lease, Tenant hereby represents and warrants that: (i) Tenant is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury
("OFAC")
pursuant to
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Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, "Specially Designated National and Blocked Person" or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a "Prohibited Person"); (ii) Tenant is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; and (iii) neither Tenant (nor any person, group, entity or nation which owns or controls Tenant, directly or indirectly) knowingly has conducted or knowingly will conduct business or knowingly has engaged or knowingly will engage in any transaction or dealing with any Prohibited Person, including without limitation any assignment of this
Lease or any subletting of all or any portion of the Premises or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person.
In
connection with the foregoing, is expressly understood and agreed that (x) any breach by Tenant of the foregoing representations and warranties shall be deemed a default by Tenant under Section 7. l(a)(iv) of this Lease and shall be covered by the indemnity provisions of Section 8.1 below, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Lease. Notwithstanding anything contained herein to the contrary, for the purposes of this subsection (a) the phrase "owned or controlled directly or indirectly by any person, group, entity or nation" and all similar such phrases shall not include any holder of a direct or indirect interest in a publicly traded company whose shares are listed and traded on a United States national stock exchange.
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(b)
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As an inducement to Tenant to enter into this Lease, Landlord hereby represents and warrants that: (i) Landlord is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the OFAC pursuant to Executive Order 13224 or any similar list or by any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, "Specially Designated National and Blocked Person" or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a "Prohibited Person"); (ii)
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Landlord is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; and (iii) neither Landlord (nor any person, group, entity or nation which owns or controls Landlord, directly or indirectly) knowingly has conducted or knowingly will conduct business or knowingly has engaged or knowingly will engage in any transaction or dealing with any Prohibited Person, including without limitation the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person.
In
connection with the foregoing, is expressly understood and agreed that the representations and warranties contained in this subsection shall be continuing in
nature and shall survive the expiration or earlier termination of this Lease. Notwithstanding anything contained herein to the contrary, for the purposes of this subsection (b) the phrase "owned or controlled directly or indirectly by any person, group, entity or nation" and all similar such phrases shall not include (x) any shareholder of Boston Properties, Inc., (y) any holder of a direct or indirect interest in a publicly traded company whose shares are listed and traded on a United States national stock exchange or (z) any limited partner, u nit holder or shareholder owning an interest of five percent (5%) or less in Boston Properties Limited Partnership or the holder of any direct or indirect interest in Boston Properties Limited Partnership.
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5.15
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Landlord Representations
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Landlord represents to the Tenant that (a) the Permitted Use is permitted as of right at the Site under the Zoning Ordinance for the City of Waltham (and/or pursuant to special permit granted by the City of Waltham) and complies with the requirements of all easement and encumbrance documents; (b) Landlord holds fee simple title to the Site subject to title matters of record but the Site is not subject to any mortgage; (c) Landlord has full power and authority to enter into this Lease and has obtained all consents and taken all actions necessary in connection therewith; (d) no other party has any possessory right to the Premises or has claimed the same; and (e) to the best of Landlord's actual knowledge the base building core, shell, and surrounding site work comply with all laws, regulations, and building codes, including without limitation, all laws governing nondiscrimination in public accommodations and commercial facilities, including without limitation, the requirements of the Americans with Disabilities Act (ADA) and all regulations thereu nder, applicable to the Building and the Site at the time of construction and Landlord covenants to keep the same in compliance throughout the Term (provided, however, that notwithstanding the foregoing, in no event shall Landlord be liable to Tenant to the extent such non-compliance is caused by parties other than Landlord, its agents, employees or contractors, Landlord hereby agreeing to use reasonable efforts to enforce lease provisions regarding compliance with laws against tenants of the Building as applicable).
ARTICLE VI
Casualty and Taking
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6.1
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Damage Resulting from Casualty
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In
case during the Lease Term the Building or the Site are damaged by fire or casualty and such fire or casualty, Landlord shall within sixty (60) days after the occurrence thereof notif y Tenant in writing of Landlord's reasonable estimate of the length of time necessary to repair or restore such fire or casualty damage from the time that repair work would commence ("Landlord's Restoration Estimate").
If
Landlord's Restoration Estimate exceeds two hundred and seventy
(270) days from the time that repair work would commence, Landlord may, at its election, terminate this Lease by notice given to Tenant within ten (10) business days after the date of Landlord's Restoration Estimate, specifying the effective date of termination. The effective date of termination specified by Landlord shall not be less than thirty (30) days nor more than forty five (45) days after the date of notice of such termination.
If
the Premises is materially damaged and Landlord's Restoration Estimate exceeds two hundred and seventy (270) days from the time that repair work would commence, Tenant may, at its election, terminate this Lease by written notice to Landlord within ten ( 10) business days after receipt of Landlord's Restoration Estimate, specifying the effective date of termination. The effective date of termination specified by Tenant shall not be less than thirty (30) days nor more than forty-five (45) days after the date of notice of such termination.
In case during the last eighteen (18) months of the Lease Term (as the same may be extended), the Premises is damaged by fire or casualty and such fire or casualty damage cannot, in the ordinary course, reasonably be expected to be repaired within one hundred fifty (150) days from the date of such fire or casualty, Tenant may, at its election, terminate this Lease by notice given to Landlord within sixty (60) days after the date of such fire or other casualty, specifying the effective date of termination. The effective date of termination specified by Tenant shall be not less than thirty (30) days nor more than forty-five (45) days after the date of notice of such termination.
Unless terminated pursuant to the foregoing provisions, this Lease shall remain in full force and effect following any such damage subject, however, to the following provisions.
If
the Building or the Site or any part thereof are damaged by fire or other casualty and this Lease is not so terminated, or Landlord or Tenant have no right to terminate this Lease, and in any such case the holder of any mortgage which includes the Building as a part of the mortgaged premises or any ground lessor of any ground lease which includes the Site as part of the demised premises allows the net insurance proceeds to be applied to the restoration of the Building (and/or the Site), Landlord promptly after such damage and the determination of the net amount of insurance proceeds available shall use due diligence to restore the Premises and the Building in the event of damage thereto (excluding Tenant's Property (as defined in Section 8.4 hereof), except as expressly provided in the immediately following paragraph of this Section 6.1) into
proper condition for use and occupation and a just proportion of the Annual Fixed Rent, Tenant's share of Operating Costs and Tenant's share of real estate taxes and electricity payments according to the nature and extent of the injury to the Premises shall be abated from the date of such casualty until the Premises (and the Common Areas reasonably necessary for Tenant's use and enjoyment of the Premises) shall have been put by Landlord substantially into such condition except for punch list items and long lead items (the lack or incomplete status of which does not materially interfere with Tenant's ability to operate. Notwithstanding anything herein contained
to the contrary, so long as Landlord was carrying property insurance required under Section 8.12, Landlord shall not be obligated to expend for such repair and restoration any amount in excess of the net insurance proceeds, plus the amount of any deductible under such policy(ies).
If
Landlord was carrying property insurance required under Section 8.12 and such net insurance proceeds are not allowed by such mortgagee or ground lessor to be applied to, or are otherwise insufficient for, the restoration of the Building (and/or the Site) and if Landlord does not otherwise elect to spend the additional funds necessary to fully restore the Building (and/or the Site), then Landlord shall give notice ("Landlord's Insufficient Insurance Proceeds Notice") to Tenant that Landlord does not elect to fund the amount of the insufficiency and Tenant shall thereafter have the right to terminate this Lease by providing Landlord with a notice of termination within thirty (30) days after Tenant's receipt of Landlord's Insufficient Insurance Proceeds Notice (the effective date of which termination shall not be less than sixty (60) days after the date of such notice of such termination).
Unless such restoration is completed within one (1) year from the date of the casualty or taking, such period to be subject, however, to extension where the delay in completion of such work is due to Force Majeure, as defined in Section 9.26, (but in no event beyond sixteen (16) months from the date of the casualty or taking), Tenant, as its sole and exclusive remedy, shall have the right to terminate this Lease at any time after the expiration of such one-year (as extended) period until the restoration is substantially completed, such termination to take effect as of the thirtieth (30th) day after the date of receipt by Landlord of Tenant's notice, with the same force
and effect as if such date were the date originally established as the expiration date hereof unless, within thirty (30) days after Landlord's receipt of Tenant's notice, such restoration is substantially completed, in which case Tenant's notice of termination shall be of no force and effect and this Lease and the Lease Term shall continue in full force and effect.
Notwithstanding anything to the contrary contained in this Lease, if the Building or the Premises shall be substantially damaged by fire or casualty as the result of a risk not covered by the forms of casualty insurance at the time required to be maintained by Landlord pursuant to this Lease (or actually carried by Landlord, whichever is broader) and such fire or casualty damage cannot, in the ordinary course, reasonably be expected to be repaired within one hundred fifty (150) days from the date of such fire or casualty, Landlord shall promptly notify Tenant and, unless
Landlord elects to use its own resources to pay for the restoration, either party may, at its election, terminate the Term of this Lease by notice to the other party given within sixty (60)
days after such loss.
If
either party shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof.
If
this Lease is not terminated as provided in this
Article VI, Landlord shall restore the damage in accordance with the provisions of Section 6.1 hereof.
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6.3
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Rights of Termination for Taking
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If
the entire Building, or such portion thereof as to render the balance (if reconstructed to the maximum extent practicable in the circumstances) unsuitable for Tenant's purposes, shall be taken by condemnation or right of eminent domain, Landlord or Tenant shall have the right to terminate this Lease by notice to the other of its desire to do so, provided that such notice is given not later than thirty (30) days after Tenant has been deprived of possession.
If
either party shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued operation of the Building would be uneconomic, as determined by Landlord in its reasonable discretion, as a result of the taking, and provided that the leases of all other tenants in the Building similarly affected by the taking at issue are concurrently terminated (to the extent permitted under the terms of Landlord's leases with such tenants), Landlord shall have the right to terminate this Lease by giving notice
to Tenant of Landlord's desire to do so not later than thirty (30) days after Tenant has been deprived of possession of the Premises (or such portion thereof as may be taken). Landlord agrees not to exercise such termination right in a discriminatory manner insofar as any election Landlord makes, or refrains from making, pursuant to any termination right Landlord may have
with respect to other tenants of the Building whose premises are similarly affected.
If
Landlord shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease Term hereof, and should this Lease not be terminated in accordance with the foregoing provisions, and the holder of any mortgage which includes the Premises as part of the mortgaged premises or any ground lessor of any ground lease which includes the Site as part of the demised premises allows the net condemnation proceeds to be applied to the restoration of the Building, Landlord agrees that after the determination of the net amount of condemnation proceeds available to Landlord, Landlord shall use due diligence to put what may remain of the Premises into proper condition for use and occupation as nearly like the condition of the Premises prior to such taking as shall
be practicable (excluding Tenant's Property).
If
such net condemnation proceeds are not allowed by such mortgagee or ground lessor to be applied to, or are otherwise insufficient for, the restoration of the Building (and/or the Site) and if Landlord does not otherwise elect to spend the additional funds necessary to fully restore the Building (and/or the Site), then Landlord shall give notice
("Landlord's Insufficient Condemnation Proceeds Notice")
to Tenant that Landlord does not elect to fund the amount of the insufficiency and Tenant shall thereafter have the right
to terminate this Lease by providing Landlord with a notice of termination within thirty (30) days after Tenant's receipt of Landlord's Insufficient Condemnation Proceeds Notice (the effective date of which termination shall not be less than sixty (60) days after the date of such notice of such termination).
If
the Premises shall be affected by any exercise of the power of eminent domain and neither Landlord nor Tenant shall terminate this Lease as provided above, then the Annual Fixed Rent, Tenant's share of operating costs and Tenant's share of real estate taxes and electricity payment shall be justly and equitably abated and reduced from the date of such taking according to the nature and extent of the loss of use thereof suffered by Tenant; and in case of a taking which permanently reduces the Rentable Floor Area of the Premises, a just proportion of the Annual Fixed Rent, Tenant's share of operating costs and Tenant's share of real estate taxes and the electricity payment shall be abated for the remainder of the Lease Term.
Landlord shall have and hereby reserves to itself any and all rights to receive awards made for damages to the Premises, the Buildings, the Complex and the Site and the leasehold hereby created, or any one or more of them, accruing by reason of exercise of eminent domain or by reason of anything lawfully done in pursuance of public or other authority. Tenant hereby grants, releases and assigns to Landlord all Tenant's rights to such awards, and covenants to execute and deliver such further commercially reasonable assignments and assurances thereof as Landlord may from time to time reasonably request.
Nothing contained herein shall be construed to prevent Tenant from prosecuting in any condemnation proceeding a claim for the value of then-unamortized cost of any Alterations or improvements made by Tenant at its expense after the date hereof and any of Tenant's usual trade fixtures installed in the Premises by Tenant at Tenant's expense and so taken, relocation and moving expenses and any tangible property so taken which Tenant has a right to claim pursuant
to applicable statues, provided that such action and any resulting award shall not affect or
diminish the amount of compensation otherwise recoverable by Landlord's mortgagee, if any, from the taking authority.
ARTICLE VII
Default
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(a)
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If
at any time subsequent to the date of this Lease any one or more of the following events (herein sometimes called an
"Event of Default")
shall occur:
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(i)
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Tenant shall fail to pay the fixed rent, Additional Rent or other charges for which provision is made herein on or before the date on which the same become due and payable, and the same continues for five (5) business days after notice from Landlord thereof; or
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(ii)
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Landlord having rightfully given the notice specified in subdivision (i) above twice in any calendar year, Tenant shall thereafter in the same calendar year fail to pay the fixed rent, Additional Rent or other charges on or before the date on which the same become due and payable; or
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(iii)
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Tenant shall assign its interest in this Lease or sublet any portion of the Premises in violation of the requirements of Sections 5.6 through 5.6.5 of this Lease, and shall fail to cancel such assignment or sublease within five (5) business days after receipt of written notice from Landlord thereof; or
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(iv)
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Tenant shall fail to perform or observe some term or condition of this Lease which, because of its character, would immediately and materially jeopardize Landlord's interest (such as, but without limitation, failure to maintain general liability insurance, and such failure continues for three (3) business days after written notice from Landlord to Tenant thereof; or
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(v)
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Tenant shall 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 in reasonable detail the nature of such neglect or failure (and endeavoring to specify, where possible, the measures which Landlord reasonably believes will cure the same, but the failure to so specify shall not render any such notice of default deficient or ineffective or relieve Tenant from the obligation to cure the same), 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 within thirty (30) days after written notice thereof to remedy the same and to prosecute such remedy to completion with diligence and continuity; or
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(vi)
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Tenant's leasehold interest in the Premises shall be taken on execution or by other process of law directed against Tenant; or
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(vii)
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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
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(viii)
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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) then, and in any of said cases (notwithstanding any license of a former breach of covenant or waiver of the benefit hereof or consent in a former instance).
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Landlord lawfully may, immediately or at any time thereafter, and without demand or further notice 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 Lease Term (Tenant hereby waiving any rights of redemption), and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
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(b)
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If
this Lease shall have been terminated as provided in this Article, then Landlord may, without notice and with appropriate legal process, 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.
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(c)
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In the event that this Lease is terminated under any of the provisions contained in Section
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7.1
(a) or shall be otherwise terminated by breach of any obligation of Tenant, Tenant covenants and agrees forthwith to pay and be liable for, on the days originally fixed herein for the payment thereof, amounts equal to the several installments of rent and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated or if Landlord had not entered or re-entered, as aforesaid, and whether the Premises be relet or remain vacant, in whole or in part, or for a period less than the remainder of the Term, and for the whole thereof, but in the event the Premises be relet by Landlord, Tenant shall be entitled to a credit in the net amount of rent and other charges received by Landlord in reletting, after deduction of all actual and reasonable out-of-pocket expenses incurred in reletting the Premises (including, without
limitation, remodeling costs, brokerage fees and the like), and in collecting the rent in connection therewith, in the following manner:
Amounts received by Landlord after reletting shall first be applied against such Landlord's reasonable expenses, until the same are recovered, and until such recovery, Tenant shall pay, as of each day when a payment would fall due under this Lease, the amount which Tenant is obligated to pay under the terms of this Lease (Tenant's liability prior to any such reletting and such recovery not in any way to be diminished as a result of the fact that such reletting might be for a rent higher than the rent provided for in this Lease, except that Tenant shall be credited with the entire amount so received (after the foregoing expense recovery); when and if such expenses have been completely recovered, the amounts received from reletting by Landlord as have not previously been applied shall be credited against Tenant's obligations as of each day when a payment would fall due under this Lease, and only the net amount thereof shall be payable by Tenant. Further, amounts received by Landlord from such reletting for any period shall be credited only against obligations of Tenant allocable to such period, and shall not be credited against obligations of Tenant hereu nder
accruing subsequent or prior to such period; nor shall any credit of any kind be due for any period after the date when the term of this Lease is scheduled to expire according to its terms.
Landlord agrees to use reasonable efforts to relet the Premises after Tenant vacates the same in the event this Lease is terminated based upon an Event of Default by Tenant hereunder. The marketing of the Premises in a manner similar to the manner in which Landlord markets other premises within Landlord's control within the Building shall be deemed to have satisfied Landlord's obligation to use "reasonable efforts" hereunder.
In
no event shall Landlord be required to (i) solicit or entertain negotiations with any other prospective tenant for the Premises until Landlord obtains full and complete possession of the Premises (including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant),
(ii)
relet the Premises before leasing other vacant space in the Building, or (iii) lease the Premises for a rental less than the current fair market rent then prevailing for similar office space in the Building and other similar buildings in the Route 128/Waltham rental market.
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(d)
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(i) Landlord may elect, as an alternative, to have Tenant pay liquidated damages, which election may be made by notice given to Tenant at any time after such termination and whether or not Landlord shall have collected any damages (including without limitation, those described in paragraph (c) above) as aforesaid, as liquidated final damages and in lieu of all other damages beyond the date of such notice. Upon such notice, Tenant shall promptly pay to Landlord, as liquidated damages, in addition to any damages collected or due from Tenant for any period prior to such notice, such a sum as at the time of the giving of such notice represents the amount of the excess, if any, of (a) the discounted present value, at a discount rate of eight percent (8%) of the Annual Fixed Rent, Additional Rent and other charges which would have been payable by Tenant under this Lease from the date of such notice for what would be the then unexpired Lease Term if the Lease had not been so terminated over and above, (b) the discounted present value, at a discount rate of eight percent (8%), of the Annual Fixed Rent, Additional Rent and other charges that would be received by Landlord if the Premises were re- leased at the
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time of such notice for the remainder of the Lease Term at the fair market value (including provisions regarding periodic increases in Annual Fixed Rent if such are applicable) prevailing at the time of such notice.
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(ii)
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For the purposes of this Article, if Landlord elects to require Tenant to pay damages in accordance with the immediately preceding paragraph, the total rent shall be computed by assuming that Tenant's share of excess taxes, Tenant's share of excess operating costs would be, for the balance of the unexpired Term from the date of such notice, the amount thereof (if any) for the immediately preceding annual period payable by Tenant to Landlord.
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(e)
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In
case of any Event of Default, re-entry, 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, abatements or free rent to the extent that Landlord considers advisable or necessary to re-let the same and (ii) may make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary for the purpose of reletting 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
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Premises are re-let, for failure to collect the rent under 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.
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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. Further, 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
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of the loss or damages referred to above.
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7.2
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Landlord's Default and Tenant Remedies
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Landlord shall in no event be in default in the performance of any of Landlord's obligations hereunder unless and until Landlord shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct any such default, after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation (except in the case of an emergency which poses threat of injury to person or property, such 30-day period shall be shortened to that period that is reasonable under the circumstances). Except as otherwise expressly provided in this Lease, Tenant shall not assert
any right to deduct the cost of repairs or any monetary claim against the Landlord from rent thereafter due and payable, but shall look solely to the Landlord for satisfaction of such claim. The specified remedies to which Tenant may resort hereunder are not intended to be exclusive of any remedies or means of redress to which Tenant may at any time be entitled lawfully, and Tenant 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 except to the extent expressly limited in this Lease.
ARTICLE VIII
Insurance and Indemnity
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(a)
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Tenant's I
ndemnity. To the fullest extent permitted by law, but subject to the limitations in Section 9.3 hereof, and to the extent not resulting from any act, omission, negligence or willful misconduct of the Landlord Parties (as hereinafter defined), Tenant agrees to indemnify and save harmless the Landlord Parties from and against all claims by third parties of whatever nature to the extent arising from or claimed to have arisen from (i) any negligent or willful and wrongful act, omission or negligence of the Tenant Parties (as hereinafter defined) occurring in the Premises, the Building or Complex; or (ii) any accident, injury or damage whatsoever caused to any person, or to the property of any person, occurring in the Premises from the earlier of (A) the date on which any Tenant Party first enters the Premises in accordance with the provisions of
Exhibit B-1
attached hereto or (B) the Premises A Commencement Date, and thereafter throughout and until the end of the Lease Term, and after the end of the Lease Term for so long after the end of the Lease Term as Tenant or anyone acting by, through or under Tenant is in occupancy of the Premises or any portion thereof; or (iii) any breach of this Lease by
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Tenant (but only to the extent a specific remedy for such breach is not otherwise provided for pursuant to the terms of this Lease). Landlord will reasonably cooperate at the Tenant's expense with Tenant in the defense of any third-party claim. With respect to such third party claim, Tenant shall indemnify and hold harmless the Landlord Parties against any damages, expenses, and costs awarded by a court of competent jurisdiction or that are paid as part of a settlement. Tenant shall have the right to control the defense and settlement of any such third party claim, provided, however, that Tenant shall not settle such claim without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Landlord shall give Tenant prompt notice of any third party
claim after Landlord's receives notice of the same. For the avoidance of doubt, the Landlord shall at all times have the right to consult with its own counsel at its own expense. In no event shall Tenant be liable for any indirect, punitive or consequential damages except as provided in Section 9.17 below. Tenant shall pay such indemnified amounts as they are incurred by the Landlord Parties. This indemnification shall not be construed to deny or reduce any other rights or obligations of indemnity that any of the Landlord Parties may have under this Lease or the common law.
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(b)
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Intentionally Omitted.
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(c)
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No limitation. The indemnification obligations under this Section 8.1 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Tenant or any subtenant or other occupant of the Premises under workers' compensation acts, disability benefit acts, or other employee benefit acts.
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Tenant waives any immunity from or limitation on its indemnity or contribution liability to the Landlord Parties based upon such acts.
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(d)
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Subtenants and other occupants. Tenant shall require its subtenants and other occupants of the Premises to provide similar indemnities to the Landlord Parties in a form acceptable to Landlord.
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(e)
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Survival. The terms of this Section 8.1 and of Section 8.1.1. below shall survive any termination or expiration of this Lease.
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(f)
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Costs. The foregoing indemnity and hold harmless agreement shall include indemnity for all costs, expenses and liabilities (including, without limitation, attorneys' fees and disbursements) incurred by the Landlord Parties in connection with any such claim or any action or proceeding brought thereon, and the defense thereof. In addition, in the event that any action or proceeding shall be brought against one or more Landlord Parties by reason of any such claim, Tenant, upon request from the Landlord Party, shall resist and defend such action or proceeding on behalf of the Landlord Party by counsel appointed
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by Tenant's insurer (if such claim is covered by insurance without reservation) or otherwise by counsel reasonably satisfactory to the Landlord Party. The Landlord Parties shall not be bound by any compromise or settlement of any such claim, action or proceeding without the prior written consent of such Landlord Parties.
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(g)
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Landlord Parties and Tenant Parties. The term "Landlord Party" or "Landlord Parties" shall mean Landlord, any affiliate of Landlord, Landlord's managing agents for the Building, each mortgagee (if any), each ground lessor (if any), and each of their respective direct or indirect partners, officers, shareholders, directors, members, trustees, beneficiaries, servants, employees, principals, contractors, licensees, agents or representatives. For the purposes of this Lease, the term "Tenant Party" or "Tenant Parties" shall mean Tenant, any affiliate of Tenant, any permitted subtenant or any other permitted occupant of the Premises, and each of their respective direct or indirect partners, officers, shareholders, directors, members, trustees, beneficiaries, servants, employees, principals, contractors, licensees, agents, invitees or representatives.
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8.1.1
Landlord's I
ndemnity.
To the maximum extent permitted by law, but subject to the limitations in Section 9.3 and in Sections 8.2 and 8.13 of this Article, and to the extent not resulting from any act, omission, fault, negligence or willful misconduct of Tenant or its contractors, licensees, invitees, agents, servants or employees, Landlord agrees to indemnify and save harmless Tenant from and against any claim by a third party arising from any injury to any person occurring in the Premises, the Building or the Complex after the date that possession of the Premises is first delivered to Tenant and until the expiration or earlier termination of the Lease Term, to the extent such injury results from the negligent act or omission or willful misconduct of Landlord or Landlord's contractors, agents or employees, or from any breach or default by Landlord in the performance or
observance of its covenants or obligations under this Lease (but only to the extent a specific remedy for such breach or default is not otherwise provided for pursuant to the terms of this Lease); provided, however, that in no event shall the aforesaid indemnity render Landlord responsible or liable for any loss or damage to fixtures, personal property or other property of Tenant, and Landlord shall in no event be liable for any indirect or consequential damages.
Tenant shall provide notice of any such third party claim to Landlord as soon as practicable. Landlord shall have the right, but not the duty, to defend the claim.
The foregoing indemnity and hold harmless agreement shall include indemnity for all costs, expenses and liabilities (including, without limitation, attorneys' fees and disbursements) incurred by the Tenant Parties in connection with any such claim or any action or proceeding brought thereon, and the defense thereof.
In
addition, in the event that any action or proceeding shall be brought against one or more Tenant Parties by reason of any such claim, Landlord, upon request from the Tenant Party, shall resist and defend such action or proceeding on behalf of the Tenant Party by counsel appointed by Landlord's insurer (if such claim is covered by insurance without reservation) or otherwise by counsel reasonably satisfactory to the Tenant Party. The Tenant Parties shall not be bound by any compromise or settlement of any such claim, action or proceeding without the prior written consent of such Tenant Parties.
Except for claims arising from the negligent or willful and wrongful act or omission of Landlord or its agents, employees or contractors, and without in any way limiting Landlord's repair and maintenance obligations under this Lease, Tenant agrees to use and occupy the Premises, and to use such other portions of the Building and the Complex as Tenant is given the right to use by this Lease at Tenant's own risk. The Landlord Parties shall not be liable to the Tenant Parties for any damage, injury, loss, compensation, or claim (including, but not limited to, claims for the interruption of or loss to a Tenant Party's business) based on, arising out of or resulting from any cause whatsoever, including, but not limited to, repairs to any portion of the Premises or the Building or the Complex, any fire, robbery, theft, mysterious disappearance, or any other crime or casualty, the actions of any other tenants of the Building or of any other person or persons, or any leakage in any part or portion of the Premises or the Building or the Complex, or from water, rain or snow that may leak into, or flow from any part of the Premises or the Building or the Complex, or from drains, pipes or plumbing fixtures in the Building or the Complex. Any goods, property or personal effects stored or placed in or about the Premises shall be at the sole risk of the Tenant Party, and neither the Landlord Parties nor their insurers shall in any manner be held responsible therefor. The Landlord Parties shall not be responsible or liable to a Tenant Party, or to those claiming by, through or under a Tenant Party, for any loss or damage that may be occasioned by or through the acts or omissions of persons (other than any Landlord Party) occupying adjoining premises or any part of the premises adjacent to or connecting with the Premises or any part of the Building or otherwise. The provisions of this Section 8.2 shall be applicable to the fullest extent permitted by law, and until the expiration or earlier termination of
the Lease Term, and during such further period as Tenant may use or be in occupancy of any part of the Premises or of the Building.
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8.3
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Tenant's Commercial General Liability Insurance
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Tenant agrees to maintain in full force on or before the earlier of (i) the date on which any
Tenant Party first enters the Premises for any reason or (ii) the Premises A Commencement Date, and thereafter throughout and until the end of the Lease Term, and after the end of the Lease Term for so long as Tenant or anyone acting by, through or under Tenant is in occupancy of the Premises or any portion thereafter, a policy of commercial general liability insurance, on an occurrence basis, issued on a form at least as broad as Insurance Services Office ("ISO") Commercial General Liability Coverage "occurrence" form CG 00 01 10 01 or another Commercial General Liability "occurrence" form providing equivalent coverage. Such insurance shall include contractual liability coverage. The minimum limits of liability of such insurance shall be Five Million Dollars ($5,000,000) per occurrence, which insurance limits may be satisfied through a combination of primary and excess/umbrella insurance. In addition, in the event Tenant hosts a function in the Premises, in the Building or on the Complex, Tenant agrees to obtain, and cause any persons or parties providing services for such function to obtain, the appropriate insurance coverages as may be reasonably determined by Landlord (including liquor liability coverage, if applicable) and provide Landlord with evidence of the same upon request.
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8.4
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Tenant's Property Insurance
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Tenant shall maintain at all times during the Term of the Lease, and during such earlier time as Tenant may be performing work in or to the Premises or have property, fixtures, furniture, equipment, machinery, goods, supplies, wares or merchandise on the Premises, and continuing thereafter so long as Tenant is in occupancy of any part of the Premises, business interruption insurance and insurance against loss or damage covered by the so-called "all risk" type insurance coverage with respect to Tenant's property, fixtures, furniture, equipment, machinery, goods, supplies, wares and merchandise, and all alterations, improvements and other modifications
made by or on behalf of the Tenant in the Premises (except to the extent paid for by Landlord in connection with this Lease, in which case Landlord shall be responsible for insuring the same) or existing in the Premises as of the date of this Lease, and other property of Tenant located at the Premises, which are permitted to be removed by Tenant at the expiration or earlier termination of the Lease Term except to the extent paid for by Landlord (collectively
"Tenant's Property").
The business interruption insurance required by this Section 8.4 shall be in minimum amounts typically carried by prudent tenants engaged in similar operations, but in no event shall be in an amount less than the Annual Fixed Rent then in effect during any three-month period during the Term. The "all risk" insurance required by this Section 8.4 shall be in an amount at least equal to the full replacement cost of Tenant's Property. In addition, during such time as Tenant is performing work in or to the Premises, Tenant, at Tenant's expense, shall also maintain, or shall cause its contractor(s) to maintain, builder's risk insurance for the full insurable value of such work. Landlord and such additional persons or entities as Landlord may reasonably request shall be named as loss payees, as their interests may appear, on the policy or policies required by this Lease. In the event of loss or damage covered by the "all risk" insurance required by this Lease, the responsibilities for repairing or restoring the loss or damage shall be determined in accordance with Article VI. To the extent that Landlord is obligated to pay for the repair or restoration of the loss or damage covered by the policy, Landlord shall be paid the proceeds of the "all risk" insurance covering the loss or damage. To the extent Tenant is obligated to pay for the repair or restoration of the loss or damage, covered by the policy, Tenant shall be paid the
proceeds of the "all risk" insurance covering the loss or damage.
If
both Landlord and Tenant are
obligated to pay for the repair or restoration of the loss or damage covered by the policy, the insurance proceeds shall be paid to each of them in the pro rata proportion of their obligations to repair or restore the loss or damage.
If
the loss or damage is not repaired or restored (for example, if the Lease is terminated pursuant to Article VI), the insurance proceeds shall be paid to Landlord and Tenant in the pro rata proportion of their relative contributions to the cost of the leasehold improvements covered by the policy.
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8.5
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Tenant's Other Insurance
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Tenant agrees to maintain in full force on or before the earlier of (i) the date on which any
Tenant Party first enters the Premises for any reason or (ii) the Premises A Commencement Date, and thereafter throughout the end of the Term, and after the end of the Term for so long after the end of the Term as Tenant or anyone acting by, through or under Tenant is in occupancy of the Premises or any portion thereafter, (1) comprehensive automobile liability insurance (covering any automobiles owned or operated by Tenant at the Site) issued on a form at least as broad as ISO Business Auto Coverage form CA 00 01 07 97 or other form providing equivalent coverage;
(2) worker's compensation insurance; and (3) employer's liability insurance. Such automobile liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident. Such worker's compensation insurance shall carry minimum limits as defined by the law of the jurisdiction in which the Premises are located (as the same may be amended from time to time). Such employer's liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) disease-policy limit, and One Million Dollars ($1,000,000) disease-each employee.
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8.6
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Requirements for Tenant's Insurance
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All insurance required to be maintained by Tenant pursuant to this Lease shall be maintained with responsible companies that are admitted to do business, and are in good standing in the Commonwealth of Massachusetts and that have a rating of at least "A-" and are within a financial size category of not less than "Class IX" in the most current Best's Key Rating Guide
or such similar rating as may be reasonably selected by Landlord. All such insurance shall: (1) be reasonably acceptable in form and content to Landlord; and (2) be primary and noncontributory (including all primary and excess/umbrella policies). Tenant or its insurer or insurance
consultant shall provide Landlord at least thirty (30) days' prior written notice (by certified or registered mail, return receipt requested, or by fax or email) of any cancellation, failure to renew, reduction of amount of insurance or material change in coverage. No such policy shall contain any self-insured retention greater than (i) Twenty-Five Thousand Dollars ($25,000.00) in the
case of Tenant's liability insurance, and
(ii)
One Hundred Thousand Dollars ($100,000.00) in the case of Tenant's property insurance (which limits may increase by five percent (5%) after the fifth anniversary of the Premises A Commencement Date). Such self-insured retentions shall be deemed to be "insurance" for purposes of the waiver in Section 8.13 below. Landlord reserves
the right from time to time (but not more than once in any five-year period) to require Tenant to obtain higher minimum amounts of insurance based on such limits as are customarily carried by tenants of similar size and financial standing with respect to similar properties in the area in which the Premises are located. The minimum amounts of insurance required by this Lease shall not be reduced by the payment of claims or for any other reason. In the event Tenant shall fail to obtain or maintain any insurance meeting the requirements of this Article, or to deliver such policies or certificates as required by this Article, Landlord may, at its option, on five (5)
business days' notice to Tenant, procure such policies for the account of Tenant, and the cost thereof shall be paid to Landlord within five (5) days after delivery to Tenant of bills therefor.
To the fullest extent permitted by law, the commercial general liability carried by Tenant pursuant to this Lease, and any additional liability insurance carried by Tenant pursuant to Section 8.5 of this Lease (other than worker's compensation, employer's liability and D&O insurance), shall name Landlord, Landlord's managing agent, and such other persons as Landlord may reasonably request from time to time as additional insureds with respect to liability arising out of or related to this Lease or the operations of Tenant (collectively
"Additional Insureds").
Such insurance shall provide primary coverage without contribution from any other insurance carried by or for the benefit of Landlord, Landlord's managing agent, or other Additional Insureds, but subject to Sections 8.1 and 8.13, it is agreed that no such coverage carried by Tenant will provide coverage or protection against claims arising (or claimed to have arisen) from the negligence or willful misconduct of any Additional Insured. Such insurance shall also waive any right of subrogation against each Additional Insured. For the avoidance of doubt, each primary policy and each excess/umbrella policy through which Tenant satisfies its obligations under this Section 8.7 must provide coverage to the Additional Insureds that is primary and non contributory.
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8.8
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Certificates of Insurance
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On or before the earlier of (i) the date on which any Tenant Party first enters the Premises for any reason or (ii) the Premises A Commencement Date, Tenant shall furnish Landlord with
certificates evidencing the insurance coverage required by this Lease, and renewal certificates shall be furnished to Landlord at least annually thereafter, and at least fifteen (15) days prior to the expiration date of each policy for which a certificate was furnished (acceptable forms of such certificates for liability and property insurance, respectively, as of the date hereof, are attached as
Exhibit H
, however, other forms of certificates may satisfy the requirements of this Section 8.8). Failure by the Tenant to provide the certificates or letters required by this Section 8.8 shall not be deemed to be a waiver of the requirements in this Section 8.8. Upon request by Landlord at reasonable intervals, a true and complete copy of any insurance policy required by this Lease shall be delivered to Landlord within ten (10) days following Landlord's request.
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8.9
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Subtenants and Other Occupants
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Tenant shall require its subtenants and other occupants of the Premises to provide written documentation evidencing the obligation of such subtenant or other occupant to indemnify the Landlord Parties to the same extent that Tenant is required to indemnify the Landlord Parties pursuant to Section 8.1 above, and to maintain insurance that meets the requirements of this Article, and otherwise to comply with the requirements of this Article. Tenant shall require all such subtenants and occupants to supply certificates of insurance evidencing that the insurance requirements of this Article have been met and shall forward such certificates to Landlord on or before the earlier of (i) the date on which the subtenant or other occupant or any of their respective direct or indirect partners, officers, shareholders, directors, members, trustees, beneficiaries, servants, employees, principals, contractors, licensees, agents, invitees or representatives first enters the Premises or (ii) the commencement of the sublease. Tenant shall
be responsible for identifying and remedying any deficiencies in such certificates or policy provisions.
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8.10
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No Violation of Building Policies
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To the extent Tenant has received written notice of any such requirements, Tenant shall not commit or permit any violation of the usual and customary form of policies of fire, boiler, sprinkler, water damage or other insurance covering the Complex and/or the fixtures, equipment and property therein carried by Landlord, or do or permit anything to be done, or keep or permit anything to be kept, in the Premises, which in case of any of the foregoing (i) would result in termination of any such policies, (ii) would adversely affect Landlord's right of recovery under any of such policies, or (iii) would result in reputable and independent insurance companies refusing to insure the Complex or the property of Landlord in amounts reasonably satisfactory to Landlord.
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8.11
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Tenant to Pay Premium Increases
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If
and solely to the extent that, because of anything done, caused or permitted to be done, or omitted by Tenant (or its subtenant or other occupants of the Premises), the rates for liability, fire, boiler, sprinkler, water damage or other insurance on the Complex or on the Building and equipment of Landlord or any other tenant or subtenant in the Building shall be higher than they otherwise would be, and Tenant does not (i) cease such activity done, caused or permitted, or (ii) perform the omission, as applicable, within five (5) days of notice, Tenant shall reimburse Landlord and/or the other tenants and subtenants in the Building for the additional insurance premiums thereafter paid by Landlord or by any of the other tenants and subtenants in the Building which shall have been charged because of the aforesaid reasons, such reimbursement to be made from time to time on Landlord's demand.
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8.12
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Landlord's Insurance
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(a)
Required i
nsurance. Landlord shall maintain (i) insurance against loss or damage with respect to the Building on an "all risk" type insurance form, with customary exceptions, subject to such deductibles and self-insured retentions as Landlord may reasonably determine, in an amount equal to at least the replacement value of the Building; (ii) insurance with respect to any improvements, alterations, and fixtures of Tenant located at the Premises to the extent paid for by Landlord; and (iii) commercial general liability insurance with respect to the Building in an amount not less than $5,000,000 per occurrence, with deductibles and self-insured retentions as determined by Landlord. The cost of such insurance shall be treated as a part of Landlord's Operating Expenses. Such insurance shall be maintained with an insurance company or companies selected by Landlord. Payment for losses thereunder shall be made solely to Landlord.
(b)
Optional i
nsurance. Landlord may maintain such additional insurance with respect to the Building and the Complex, including, without limitation, earthquake insurance, terrorism insurance, flood insurance, liability insurance and/or rent insurance, as Landlord may in its sole discretion elect. Landlord may also maintain such other insurance as may from time to time be required by the holder of any mortgage on the Building or Complex. Payment for losses
thereunder shall be made solely to Landlord. The cost of all such additional insurance shall also be part of the Landlord's Operating Expenses.
(c)
Blanket and s
elf-insurance. For so long as Boston Properties Limited Partnership or any affiliate or subsidiary thereof is the Landlord under this Lease, any or all of Landlord's insurance may be provided by blanket coverage maintained by Landlord or any affiliate of Landlord under its insurance program for its portfolio of properties, or by Landlord or any affiliate of Landlord under a program of self-insurance, and in such event Landlord's Operating Expenses shall include the portion of the reasonable costs of blanket insurance that is allocated to the Building.
For all purposes of this Lease, including without limitation 8.13, with respect to any amounts that Landlord does self-insure, Landlord shall be deemed to have purchased third-party casualty insurance coverage to the extent required under Section 8.12(a) above, and if Landlord elects to self-insure, (x) Landlord, as the insurer and insured, agrees to waive any and all rights of
recovery against Tenant for loss of, or damage to, the Building, or any of Landlord's property or the property of others claiming by, through or under Landlord (even if caused by the negligent act or omission of any Tenant Party) to the extent such loss or damage would have been covered
by insurance required under Section 8.12(a) above, and (y) Landlord shall within thirty (30) days after demand from Tenant from time to time pay to or on behalf of Tenant all losses, costs, claims, expenses, and damages self-insured by Landlord to the extent (A) Landlord would have been responsible for the same under this Lease and (B) the same would have been covered by Landlord's insurance required under Section 8.12(a) above, subject to the limitations and waivers contained in Section 8.13 and 9.3 below. Landlord's obligations as a self-insurer shall survive the expiration or earlier termination of this Lease.
(d)
No obligation. Landlord shall not be obligated to insure, and shall not assume any liability of risk of loss for, Tenant's Property, including any such property or work of Tenant's subtenants or occupants. Landlord will also have no obligation to carry insurance against, nor be responsible for, any loss suffered by Tenant, subtenants or other occupants due to interruption of Tenant's or any subtenant's or occupant's business.
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8.13
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Waiver of Subrogation
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To the fullest extent permitted by law, the parties hereto waive and release any and all rights of recovery against the other, and agree not to seek to recover from the other or to make any claim against the other, and in the case of Landlord, against all Tenant Parties, and in the case of Tenant, against all Landlord Parties, for any loss or damage incurred by the waiving/releasing party to the extent such loss or damage is insured under any property insurance policy required by this Lease or which would have been so insured had the party carried the insurance it was required to carry hereunder. Tenant shall obtain from its subtenants and other occupants of the Premises a similar waiver and release of claims against any or all of Tenant or Landlord. Any subtenant or assignee of Tenant shall have the benefit of Landlord's waiver contained herein.
In
addition, the parties hereto (and in the case of Tenant, its subtenants and other occupants of the Premises) shall procure an appropriate clause in, or endorsement on, any insurance policy required by this Lease pursuant to which the insurance company waives subrogation. The insurance policies required by this Lease shall contain no provision that would invalidate or restrict the parties' waiver and release of the rights of recovery in this Section 8.13. The parties hereto covenant that no insurer shall hold any right of subrogation against the parties hereto by virtue of such insurance policy.
During such times as Tenant is performing work or having work or services performed in or to the Premises, Tenant shall require its contractors, and their subcontractors of all tiers, to obtain and maintain commercial general liability, automobile, workers compensation, employer's liability, builder's risk, and equipment/property insurance in such amounts and on such terms as are customarily required of such contractors and subcontractors on similar projects. The amounts and terms of all such insurance are subject to Landlord's written approval, which approval shall not be unreasonably withheld. The commercial general liability and auto insurance carried by Tenant's contractors and their subcontractors of all tiers pursuant to this Section 8.14 shall name Landlord, Landlord's managing agent, and such other persons as Landlord may reasonably request from time to time as additional insureds with respect to liability arising out of or related to their work or services. Such insurance shall provide primary coverage without contribution from any other insurance carried by or for the benefit of Landlord, Landlord's managing agent, or other Additional Insureds. Such insurance shall also waive any right of subrogation against
each Additional Insured. Tenant shall obtain and submit to Landlord, prior to the earlier of (i) the entry onto the Premises by such contractors or subcontractors or (ii) commencement of the work or services, certificates of insurance evidencing compliance with the requirements of this Section 8.14.
ARTICLE IX
Miscellaneous Provisions
No waiver by Landlord of any condition of this Lease, nor any failure by Tenant to deliver any security deposit, letter of credit, pre-paid rent, financial information, guaranty or other item required upon the execution and delivery of this Lease, shall be construed as excusing satisfaction of any such condition or the delivery of any such item by Tenant, and Landlord reserves the right (subject to Section 7.l (a)) to declare the failure of Tenant to satisfy any such condition or deliver any such item an Event of Default under this Lease. No waiver by Tenant of any condition of this Lease shall be construed as excusing satisfaction of any such condition by Landlord, and Tenant reserves the right to declare the failure of Landlord to satisfy any such condition a default of Landlord under this Lease. 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.
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 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.
Except as expressly provided in this Lease, the specific remedies to which Landlord and Tenant may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress which they may be lawfully entitled to seek in case of
any breach or threatened breach of any provisions of this Lease.
In
addition to the other remedies provided in this Lease, Landlord shall be entitled to seek an injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions, provided, however, that the foregoing shall not be construed as a confession of judgment by Tenant.
This Lease is subject and subordinate to all matters of record. So long as no Event of Default exists on the part of Tenant hereunder, Tenant shall and may lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises during the Term (exclusive of any period during which Tenant is holding over after the expiration or termination of this Lease without the consent of Landlord), without interruption, disturbance, hindrance or ejection by Landlord or any persons claiming through or under Landlord, subject, however, to the terms of this Lease; the foregoing covenant of quiet enjoyment is in lieu of any other covenant, express or implied; and it is understood and agreed that this covenant and any and all other covenants of Landlord contained in this Lease shall be binding upon Landlord and Landlord's successors, including ground or master lessees, only with respect to breaches occurring during Landlord's or Landlord's successors' respective ownership of Landlord's interest hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then equity interest in the Building, together with the rents, issues, profits and proceeds thereof, at the time owned, or in which Landlord holds an interest as ground lessee, for recovery of any judgment from Landlord; it being specifically agreed that neither Landlord (original or successor), nor any beneficiary of any trust of which any person holding Landlord's interest is trustee, nor any member, manager, partner, director or stockholder, nor Landlord's managing agent, shall ever be personally liable for any such judgment, or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlord's successors in interest, or any action not involving the personal liability of Landlord (original or successor), any successor trustee to the persons named herein as Landlord, or any beneficiary of any trust of which any person holding Landlord's interest is trustee, or of any manager, member, partner, director or stockholder of Landlord or of Landlord's managing agent to respond in monetary damages from Landlord's assets other than Landlord's equity interest aforesaid in the Building, but in no event shall Tenant have the right to terminate or cancel this Lease or to withhold rent or to set-off any claim or damages against rent except as expressly set forth herein, as a result of
any default by Landlord or breach by Landlord of its covenants or any warranties or promises hereunder, except in the case of a wrongful eviction of Tenant from the demised premises (constructive or actual) by Landlord continuing after notice to Landlord thereof and a reasonable
opportunity for Landlord to cure the same.
In
no event shall either party hereto ever be liable for any indirect or consequential damages or loss of profits or the like, provided that the foregoing limitation of liability shall be inapplicable to Tenant's obligations pursuant to Section 9.17 hereof (subject to the limitations set forth in Section 9.17(B) thereof).
It
is specifically agreed that no officer, employee, director or stockholder of Tenant shall ever be personally liable for any judgment against Tenant, or for the payment of any monetary obligation of Tenant.
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9.4
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Notice to Mortgagee and Ground Lessor
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After receiving written notice from any person, firm or other entity that it holds a mortgage which includes the Premises as part of the mortgaged premises, or that it is the ground lessor under a lease with Landlord, as ground lessee, which includes the Premises as a part of the demised premises, no notice from Tenant to Landlord shall be effective unless and until a copy
of the same is given to such holder or ground lessor, and the curing of any of Landlord's defaults by such holder or ground lessor within a reasonable time thereafter (including a reasonable time to obtain possession of the premises if the mortgagee or ground lessor elects to do so) shall be treated as performance by Landlord. For the purposes of this Section 9.4 or Section 9.14, the term "mortgage" includes a mortgage on a leasehold interest of Landlord (but not one on Tenant's leasehold interest). The foregoing shall not diminish any rights Tenant may have to a rent abatement or other remedy expressly provided for herein (other than termination of this Lease).
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 or ground lease on property which includes the Premises, Tenant agrees:
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(a)
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That the execution thereof by Landlord, and the acceptance thereof by the holder of such mortgage or the ground lessor, shall never be treated as an assumption by such holder or ground lessor of any of the obligations of Landlord hereunder, unless such holder, or ground lessor, shall, by notice sent to Tenant, specifically otherwise elect; and
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(b)
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That, except as aforesaid, such holder or ground lessor shall be treated as having assumed Landlord's obligations hereunder only upon foreclosure of such holder's mortgage or the taking of possession of the Premises, or, in the case of a ground lessor, the assumption of Landlord's position hereunder by such ground lessor.
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In
no event shall the acquisition of title to the Building and the land on which the same is located by a purchaser which, simultaneously therewith, leases the entire Building or such land back to the seller thereof be treated as an assumption by such purchaser-lessor, 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 hereu nder subject to the provisions of Section 9.3 hereof. In any such event, this Lease shall be subject and subordinate to the lease to such purchaser provided that such purchaser agrees to recognize the right of Tenant to use and occupy the Premises upon the payment of rent and other charges payable by Tenant under this Lease and the performance by Tenant of Tenant's obligations hereunder and provided that Tenant agrees to attorn to such purchaser. 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.
No act or thing done by Landlord during the Lease Term shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender shall be valid, unless in writing signed by Landlord. No employee of Landlord or of Landlord's agents shall have any power to accept the keys of the Premises prior to the termination of this Lease. The delivery of keys to any employee of Landlord or of Landlord's agents shall not operate as a termination of the Lease or a surrender of the Premises.
(A)
Tenant warrants and represents that Tenant has not dealt with any broker in connection with the consummation of this Lease other than the broker, person or firm, if any, designated in Section 1.1 hereof; and in the event any claim is made against the Landlord relative to dealings by Tenant with brokers other than the Broker, if any, designated in Section 1.1 hereof, Tenant shall defend the claim against Landlord with counsel of Tenant's selection first approved by Landlord (which approval will not be unreasonably withheld) and save harmless and indemnify Landlord on account of loss, cost or damage which may arise by reason of such claim.
(B)
Landlord warrants and represents that Landlord has not dealt with any broker in connection with the consummation of this Lease other than the broker, person or firm, if any, designated in Section 1.1 hereof; and in the event any claim is made against the Tenant relative to dealings by Landlord with brokers other than the Broker, if any, designated in Section 1.1 hereof, Landlord shall defend the claim against Tenant with counsel of Landlord's selection first approved by Tenant (which approval will not be unreasonably withheld) and save harmless and indemnify Tenant on account of loss, cost or damage which may arise by reason of such claim. Landlord agrees that it shall be solely responsible for the payment of brokerage commissions to the Broker for the Original Term of this Lease, if any, designated in Section 1.1 hereof.
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9.8
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Invalidity of Particular Provisions
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If
any term or provision of this Lease, including but not limited to any waiver of contribution or claims, indemnity, obligation, or limitation of liability or of damages, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law.
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9.9
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Provisions Binding, Etc
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The obligations of this Lease shall run with the land, and except as herein otherwise provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant and, if Tenant shall be an individual, upon and to his heirs, executors, administrators, successors and assigns. Each term and each provision of this Lease to be performed by Tenant shall be construed to be both a covenant and a condition. The
reference contained to successors and assigns of Tenant is not intended to constitute a consent to subletting or assignment by Tenant.
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9.10
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Recording; Confidentiality
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Each of Landlord and Tenant agree not to record the within Lease, but each party hereto agrees, on the request of the other, to execute a so-called Notice of Lease in the form attached hereto as Exhibit
I.
Tenant agrees that the terms and conditions of this Lease will be treated as confidential and, except as required by law (or except with the written consent of Landlord), Tenant shall not disclose the same to any third party for Tenant's partners, lenders, actual or potential investors or purchasers, accountants and attorneys who have been advised of the confidentiality provisions contained herein and agree to be bound by the same.
In
the event Tenant is required by subpoena or other process of law to provide this Lease or disclose any of its terms, Tenant shall give Landlord prompt notice of such requirement prior to making disclosure so that Landlord may seek an appropriate protective order.
If
failing the entry of a protective order Tenant is compelled to make disclosure, Tenant shall only disclose portions of the Lease which Tenant is required to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to the information so disclosed. The foregoing shall not apply to any information
that is otherwise generally available or a matter of record.
In
connection with the foregoing, it is acknowledged and agreed that Tenant will be required by applicable governmental regulations to disclose this Lease in its public filings with the United States Securities and Exchange Commission.
Whenever, by the terms of this Lease, notice shall or may be given either to Landlord or to Tenant, such notice shall be in writing and shall be sent by overnight commercial courier or by registered or certified mail postage or delivery charges prepaid, as the case may be:
If
intended for Landlord, addressed to Landlord at the address set forth in Article I of this Lease (or to such other address or addresses as may from time to time hereafter be designated by Landlord by like notice) with a copy to Landlord, Attention: Regional General Counsel.
If
intended for Tenant, addressed to Tenant at the address set forth in Article I of this Lease except that from and after the Premises A Commencement Date the address of Tenant shall be the Premises, and marked "Attention: General Counsel" (or to such other address or addresses as may from time to time hereafter be designated by Tenant by like notice). Copies of any notices of default shall simultaneously be sent to Stephen T.
Langer, Esq., Langer
&
McLaughlin,
LLP,
855 Boylston Street, 6
th
Floor, Boston, MA 02116.
Any notice claiming the existence of a breach or default by Tenant shall be sent only by nationally recognized, reputable overnight delivery or courier service (such as Federal Express or UPS) and shall state at the top of such notice in prominent type: "THIS IS A NOTICE OF DEFAULT UNDER A LEASE, AND FAILURE TO
CURE THIS DEFAULT WITHIN THE TIME PROVIDED MAY RESULT IN A
TERMINATION OF THE LEASE."
Except as otherwise provided herein, all such notices shall be effective when received; provided, that (i) if receipt is refused, notice shall be effective upon the first occasion that such receipt is refused, (ii) if the notice is unable to be delivered due to a change of address of which no notice was given, notice
shall be effective upon the date such delivery was attempted, (iii) if the notice address is a post office box number, notice shall be effective the day after such notice is sent as provided hereinabove or (iv) if the notice is to a foreign address, notice shall be effective two (2) days after such notice is sent as provided hereinabove.
Where provision is made for the attention of an individual or department, the notice shall be effective only if the wrapper in which such notice is sent is addressed to the attention of such individual or department.
Any notice given by an attorney on behalf of Landlord or by Landlord's managing agent shall be considered as given by Landlord and shall be fully effective. Any notice given by an attorney on behalf of Tenant shall be considered as given by Tenant and shall be fully effective.
Time is of the essence with respect to any and all notices and periods for giving notice or taking any action thereto under this Lease.
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9.12
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When Lease Becomes Binding and Authority
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Employees or agents of Landlord have no authority to make or agree to make a lease or any other agreement or undertaking in connection herewith. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant. All negotiations, considerations, representations and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change or modif y any of the provisions hereof. Each of Landlord and Tenant hereby represents and warrants to the other that all necessary action has been taken to enter this Lease and that the person signing this Lease on behalf of each of Landlord and Tenant has been duly authorized to do so.
The titles of the Articles throughout this Lease are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease.
This Lease shall be subject and subordinate to the priority of the lien of any mortgage now or hereafter placed on the Site or the Building, or both, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions therefor, provided that the holder of such mortgage agrees to recognize the right of Tenant to use and occupy the
Premises and all other rights of Tenant under this Lease, so long as no Event of Default exists and continues uncured hereunder. In confirmation of such subordination and recognition, Tenant shall execute and deliver promptly such instruments of subordination as such mortgagee may reasonably request, subject to receipt of such commercially reasonable instruments of non disturbance from such mortgagee, in form and substance reasonably acceptable to Tenant, as Tenant may reasonably request (Landlord hereby agreeing (a) to obtain such subordination instruments from such mortgagee and (b) to pay any legal or other fees charged by the mortgagee, in connection with providing the same). In the event that any mortgagee or its respective successor in title shall succeed to the interest of Landlord, then this Lease shall nevertheless continue in full force and effect and Tenant shall and does hereby agree to attorn to such mortgagee or successor and to recognize such mortgagee or successor as its landlord.
Landlord hereby represents and warrants that there is no mortgage currently encumbering the Building or the Site.
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9.15
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Status Reports and Financial Statements
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Recognizing that the parties hereto may find it necessary to establish to third parties, such as accountants, banks, potential or existing mortgagees, potential purchasers or the like, the then current status of performance hereunder, each party (the
"Non Requesting Party")
on the request of the other party (the
"Requesting Party")
made from time to time, will promptly furnish to the Requesting Party within twenty (20) days after request, addressed to any existing or potential holder of any mortgage encumbering the Premises, the Buildings, the Site and/or the Complex or any potential purchaser of the Premises, the Buildings, the Site and/or the Complex (each an "Interested Party") a statement of the status of any reasonable matter pertaining to this Lease, including, without limitation, acknowledgments that (or the extent to which) each party is in compliance with its obligations under the terms of this Lease; provided, however, that in the event that either party is requested to provide more than one (1) such statement in any twelve
(12) month period, the Requesting Party shall be responsible for the payment of all reasonable costs incurred by the Non-Requesting Party in providing such statements, including, without limitation, attorneys' fees. No such statement by either party shall subject such party to any liability, nor shall such a statement constitute an amendment to this Lease, but such statement shall have the effect of estopping the certif ying party from taking a position against the recipients thereof that is inconsistent with such statement.
In addition, unless and for so long as Tenant is not a publicly traded entity with financial statements that are freely available to the public which are certified to the governmental regulatory authorities, Tenant shall deliver to Landlord, or any Interested Party designated by Landlord, financial statements of Tenant, as reasonably requested by Landlord including, but not limited to, financial statements for the past three (3) years, provided, however, that Landlord, or such Interested Party, as the case may be, executes and delivers to Tenant a confidentiality agreement in form and substance satisfactory to Tenant.
Any such status statement or non-publicly available financial statement delivered by Tenant pursuant to this Section 9.15 may be relied upon by any Interested Party.
(A)
If
Tenant shall at any time fail to make any payment or perform any act which Tenant is obligated to make or perform under this Lease and (except in the case of emergency) if the same continues unpaid or unperformed beyond applicable grace periods, then Landlord may, but shall not be obligated so to do, after ten (10) business days' written notice to and demand upon Tenant, or without notice to or demand upon Tenant in the case of any emergency, and without waiving, or releasing Tenant from, any obligations of Tenant in this Lease contained, make such payment or perform such act which Tenant is obligated to perform under this Lease in such manner and to such extent as may be reasonably necessary, and, in exercising any such rights, pay any costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all reasonable and necessary costs and expenses of Landlord incidental thereto, together with interest thereon at the annual rate equal to the sum of (a) the Base Rate from time
to time announced by Bank of America, N.A (or its successor) as its Base Rate and (b) two percent (2%) (but in no event greater than the maximum rate permitted by applicable law), from the date of the making of such expenditures by Landlord, shall be deemed to be Additional Rent and, except as otherwise in this Lease expressly provided, shall be payable to the Landlord on demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this Lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid.
If
Tenant fails to pay Landlord for the sums paid by Landlord within thirty (30) days of after
receipt of Landlord's invoice (together with supporting documentation), and Tenant has not, within ten (10) business days of its receipt of such invoice, given written notice to Landlord objecting to such demand and stating that Tenant has filed suit in a court of competent jurisdiction to determine whether or not Landlord had validly exercised its self-help right hereunder (or if Tenant has timely disputed Landlord's invoice, has filed suit and has thereafter failed to pay Landlord the amount of any final, unappealable award against Tenant within thirty
(30) days after the issuance thereof) then Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by Tenant in the payment of Annual Fixed Rent. Tenant's obligation to reimburse Landlord all such costs and expenses will survive the expiration or sooner termination of this Lease for a period of one hundred and twenty (120) days.
(B)
If
Landlord shall at any time be in default pursuant to the terms and conditions of this Lease attributable to its failure to perform any act which Landlord is obligated to perform under this Lease, and (except in the case of emergency) should such failure continue beyond applicable grace periods, then provided such default of Landlord (i) relates solely to a condition impacting only the Premises, and (ii) may be cured without (A) access to, or impact upon, areas or systems outside the Premises, and (B) interfering the with use and occupancy of, or systems serving, other tenants of the Building, Tenant may, but shall not be obligated so to do, after ten (10) business days' written notice to and demand upon Landlord explicitly setting forth the basis for Tenant's claim of default and specifying that Tenant intends to invoke Tenant's rights under this Section 9.16(B) (or without notice to or demand upon Landlord in the case of any emergency)
("Tenant's Self Help Notice"),
and without waiving, or releasing Landlord from, any
obligations of Landlord in this Lease contained, perform such act which Landlord is obligated to perform under this Lease in such manner and to such extent as may be reasonably necessary. All sums reasonably so incurred and paid by Tenant and all reasonable and necessary costs and expenses of Tenant incidental to Tenant's proper exercise of self-help rights pursuant to this Section 9.16(B), together with interest thereon at the annual rate equal to the sum of (a) the Base
Rate from time to time announced by Bank of America, N.A (or its successor) as its Base Rate and (b) two percent (2%) (but in no event greater than the maximum rate permitted by applicable law), from the date of the making of such expenditures by Tenant, shall be payable to the Tenant within thirty (30) days of Tenant's furnishing Landlord an invoice therefor, accompanied by reasonable substantiation, and Landlord covenants to pay any such sum or sums with interest as aforesaid if not timely paid.
If
Landlord fails to reimburse Tenant for the sums paid by Tenant within thirty (30) days of Tenant's invoice (together with supporting documentation), and Landlord has not, within ten (10) business days of its receipt of such invoice, given written
notice to Tenant objecting to such demand and stating that Landlord has filed suit in a court of competent jurisdiction to determine whether or not Tenant had validly exercised its self-help right hereunder (or if Landlord has timely disputed Tenant's invoice, has filed suit and has thereafter failed to pay Tenant the amount of any final, unappealable award against Landlord within thirty (30) days after the issuance thereof) then subject to the last sentence of this paragraph, Tenant shall have the right to offset the amount of such sums demanded by Tenant against the Annual Fixed Rent and Additional Rent payable under this Lease until offset in full. Notwithstanding the foregoing, Tenant shall have no right to reduce any monthly installment of Annual Fixed Rent by more than fifteen percent (15%) of the amount of Annual Fixed Rent which would otherwise have been due and payable by Tenant to Landlord, unless the aggregate amount of such deductions over the remainder of the Lease Term (as the same may have been extended) will be insufficient to fully reimburse Tenant for the amount demanded by Tenant, in which event Tenant may affect such offset by making deductions from each monthly installment of Annual Fixed Rent in equal monthly amounts over the balance of the remainder of the Lease Term. Landlord's obligation to reimburse Tenant all such costs and expenses will survive the
expiration or sooner termination of this Lease for a period of one hundred and twenty (120) days.
(A)
Any holding over by Tenant after the expiration of the term of this Lease shall be treated as a tenancy at sufferance and shall be on the terms and conditions as set forth in this Lease, as far as applicable except that Tenant shall pay as a use and occupancy charge an amount equal to the greater of (x) 200% of the Annual Fixed Rent and Additional Rent calculated (on a daily basis) at the rate payable under the terms of this Lease immediately prior to the commencement of such holding over, or (y) the fair market rental value of the Premises, in each case for the period measured from the day on which Tenant's hold-over commences and terminating on the day on which Tenant vacates the Premises. Notwithstanding the foregoing, for the first sixty (60) days of any holding over, the percentage figure set forth above shall instead be 150%.
(B)
In
addition, Tenant shall save Landlord, its agents and employees harmless and will exonerate, defend and indemnify Landlord, its agents and employees from and against any and all damages which Landlord may suffer on account of Tenant's hold-over in the Premises after the expiration or prior termination of the term of this Lease. Notwithstanding the foregoing, however, Tenant shall not be liable for indirect or consequential damages incurred by Landlord during the first forty-five (45) days of any holding over by Tenant.
(C)
Nothing in the foregoing nor any other term or provision of this Lease shall be deemed to permit Tenant to retain possession of the Premises or hold over in the Premises after the expiration or earlier termination of the Lease Term. All property which remains in the Building or the Premises after the expiration or termination of this Lease and Tenant's vacation of the
Premises shall be conclusively deemed to be abandoned and may either be retained by Landlord as its property or sold or otherwise disposed of in such manner as Landlord may see fit.
If
any part thereof shall be sold, then Landlord may receive the proceeds of such sale and apply the same, at its option against the expenses of the sale, the cost of moving and storage, any arrears of rent or other charges payable hereunder by Tenant to Landlord and any damages to which Landlord may be entitled under this Lease and at law and in equity.
(A)
On the conditions (which conditions Landlord may waive by written notice to Tenant) that both at the time of exercise of the option to extend and as of the commencement of the Extended Term (i) there exists no Event of Default (defined in Section 7.1), (ii) this Lease is still in full force and effect, and (iii) Tenant has neither assigned this Lease nor sublet more than thirty-three percent (33%) of the Rentable Floor Area of the Premises (except for an assignment or subletting permitted without Landlord's consent under Section 5.6.4 hereof), Tenant shall have the right to extend the Term hereof upon all the same terms, conditions, covenants and agreements herein contained (except for the Annual Fixed Rent which shall be adjusted during the option period as hereinbelow set forth and there shall be no further right to extend the Term)
for one ( 1) period of ten ( 10) years as hereinafter set forth. The option period is sometimes herein referred to as the "Extended Term." Notwithstanding any implication to the contrary Landlord has no obligation to make any additional payment to Tenant in respect of any construction allowance or the like or to perform any work to the Premises as a result of the exercise by Tenant of any such option.
(B)
If
Tenant desires to exercise the option to extend the Term, then Tenant shall give notice to Landlord (the "Extension Term Exercise Notice") not earlier than twenty-seven (27) months nor later than eighteen (18) months prior to the expiration of the Original Term, exercising such option to extend. Within sixty (60) days after Landlord's receipt of the Extension Term Exercise Notice, Landlord shall provide Landlord's good faith designation of the fair market rental value of the Premises for the Extended Term ("Landlord's Extension Term Rent Quotation").
If
at the expiration of thirty (30) days after Tenant's receipt of Landlord's Extension Term Rent Quotation (the "Extension Term Negotiation Period"), Landlord and Tenant have not reached agreement on a determination of an annual rental for the Extended Term and executed a written instrument extending the Term of this Lease pursuant to such agreement, then Tenant shall have the right, for thirty (30) days following the expiration of the Extension Term Negotiation Period, to either (i) to rescind its delivery of the Extension Term Exercise Notice (in which event, the Lease Term shall expire at the end of the then-current Term as though such notice were not sent by Tenant), or (ii) make a request to Landlord for a broker determination (the "Broker Determination") of the Prevailing Market Rent (as defined in Exhibit
J)
for the Extended Term, which Broker Determination shall be made in the manner set forth in Exhibit
J.
If
Tenant timely shall have requested the Broker Determination, then the Annual Fixed Rent for the Extended Term shall be an amount equal to the Prevailing Market Rent as determined by the Broker Determination.
If
Tenant does not timely request the Broker Determination or rescind its Extension Term Exercise Notice in accordance with the prior sentence, then Tenant shall be
deemed to have elected to have accepted Landlord's Extension Term Rent Quotation ("Tenant's Deemed Acceptance of Landlord's Quotation").
(C)
Upon the first to occur of (i) the agreement by Landlord and Tenant during the Extension Term Negotiation Period on an Annual Fixed Rent for the Extended Term, (ii) the timely request by Tenant for a Broker Determination in accordance with the provisions of subsection (B) above or (iii) the occurrence of Tenant's Deemed Acceptance of Landlord's Quotation in accordance with the provisions of subsection (B) above, then this Lease and the Lease Term hereof shall automatically be deemed extended, for the Extended Term, without the necessity for the execution of any additional documents, except that Landlord and Tenant agree to enter into an instrument in writing setting forth the Annual Fixed Rent for the Extended Term as determined
in the relevant manner set forth in this Section 9.18; and in such event all references herein to the Lease Term or the term of this Lease shall be construed as referring to the Lease Term, as so extended, unless the context clearly otherwise requires, and except that there shall be no further option to extend the Lease Term. Notwithstanding anything contained herein to the contrary, in no event shall the Lease Term hereof be extended for more than ten ( 10) years after the
expiration of the Original Term hereof.
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(D)
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Time is of the essence with respect to the provisions of this Section 9.18.
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(a)
Concurrently with the execution of this Lease, Tenant shall pay to Landlord a security deposit in the amount of Two Million and Ninety-Three Thousand Dollars ($2,093,000) and Landlord shall hold the same, throughout the Term of this Lease (including the Extended Term, if applicable), unless sooner returned to Tenant as provided in this Section 9.19, as security for the performance by Tenant of all obligations on the part of Tenant to be performed under this Lease. Such deposit shall be in the form of an irrevocable, unconditional, negotiable letter of credit (the
"Letter of Credit").
The Letter of Credit shall (i) be issued by and drawn on a bank reasonably approved by Landlord and at a minimum having a long term issuer credit rating from Standard and Poor's Professional Rating Service of A or a comparable rating from Moody's Professional Rating Service, (ii) be substantially in the form attached hereto as Exhibit G, (iii) permit one or more draws thereunder to be made accompanied only by certification by Landlord or Landlord's managing agent that a default of Tenant exists pursuant to the terms of this Lease, Landlord is entitled to draw upon such Letter of Credit, (iv) permit transfers at any time without charge, (v) permit presentment in Boston, Massachusetts and (vi) provide that any notices to Landlord be sent to the notice address provided for Landlord in this Lease. Landlord hereby approves Bank of America, N.A. as the issuer of the Letter of Credit.
If
the credit rating for the issuer of such Letter of Credit falls below the standard set forth in (i) above or if the financial condition of such issuer changes in any other material adverse way, or if any trustee, receiver or liquidator shall be appointed for the issuer, Landlord shall have the right to require that Tenant provide a substitute letter of credit that complies in all respects with the requirements of this Section, and Tenant's failure to provide the same within thirty (30) days following Landlord's written demand therefor shall entitle Landlord to immediately draw upon the Letter of Credit. Any such Letter of Credit shall be for a term of two (2) years (or for one (1) year if the issuer thereof regularly and customarily only issues letters of credit for a maximum term of one ( 1) year) and shall in either case provide for automatic renewals through the date which is sixty (60) days subsequent to the scheduled expiration of this Lease (as the same may be extended). Any failure or refusal to honor the Letter of Credit shall be at Tenant's sole risk and shall not relieve Tenant of its obligation hereunder with regard to the security deposit. Upon the occurrence of any default of Tenant, Landlord shall have the right from time to time without prejudice to any
other remedy Landlord may have on account thereof, to draw on such portion of such deposit held as a Letter of Credit as may be necessary to cure the same and to Landlord's damages arising from such default on the part of Tenant under the terms of this Lease.
If
Landlord so
applies all or any portion of such deposit, Tenant shall within seven (7) business days after notice from Landlord deposit cash with Landlord in an amount sufficient to restore such deposit to the full amount stated in this Section 9.19. While Landlord holds any cash deposit Landlord shall have no obligation to pay interest on the same and shall have the right to commingle the same with Landlord's other funds. Neither the holder of a mortgage nor the Landlord in a ground lease on property which includes the Premises shall ever 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 or ground Landlord.
(b)
Landlord shall return a Three Hundred and Forty-Eight Thousand Eight Hundred and Thirty-Three and 00/100 Dollar ($348,833.00) (the
"First Reduction")
portion of such deposit to Tenant so that the remainder of such deposit shall be One Million Seven Hundred and Forty Four Thousand One Hundred and Sixty-Seven and 00/100 Dollars ($1,744,167.00) (or if such deposit is in the form of a Letter of Credit, Landlord shall exchange the Letter of Credit for a
Letter of Credit delivered by Tenant which reduces the amount secured by the Letter of Credit by the amount stated hereinabove and otherwise in strict conformity with the requirements herein)
at such time after the two-year anniversary of the Premises A Commencement Date (the
"First Scheduled Adjustment Date"),
if ever, that all of the following conditions are satisfied: (i) no notice of default previously sent under the terms of this Lease by Landlord remains uncured, (ii) Landlord has not applied such deposit or any portion thereof to Landlord's damages arising from any default on the part of Tenant, whether or not Tenant has restored the amount so applied by Landlord, (iii) there have been no more than two (2) Event of Default occurrences during the Term, and (iv) Tenant satisfies each of the Revenue Test, the First Adjusted EBITDA Test and the Leverage Test (as such terms are defined in subsection (d) below). In the event that Tenant does not meet all of the foregoing conditions set forth in clauses (i) through (iv) of the immediately preceding sentence at the beginning of the two-year anniversary of the Premises A Commencement Date, then the First Scheduled Adjustment Date shall be deferred until such date as Tenant has met such conditions.
(c)
Landlord shall return a Three Hundred and Forty-Eight Thousand Eight Hundred and Thirty-Three and 00/100 Dollar ($348,833.00) (the
"Second Reduction")
portion of such deposit to Tenant so that the remainder of such deposit (assuming the Initial Reduction under subsection (b) above has been previously effectuated) shall be One Million Three Hundred and
Ninety-Five Thousand Three Hundred and Thirty-Four and 00/100 Dollars ($1,395,334.00) (or if such deposit is in the form of a Letter of Credit, Landlord shall exchange the Letter of Credit for a Letter of Credit delivered by Tenant which reduces the amount secured by the Letter of Credit by the amount stated hereinabove and otherwise in strict conformity with the requirements herein) at such time after the four-year anniversary of the Premises A Commencement Date (the
"Second Scheduled Adjustment Date"),
if ever, that all of the following conditions are satisfied: (i) no notice of default previously sent under the terms of this Lease by Landlord remains uncured, (ii) Landlord has not applied such deposit or any portion thereof to Landlord's damages arising from any default on the part of Tenant, whether or not Tenant has restored the amount so applied by Landlord, (iii) there have been no more than two (2) Event of Default occurrences during the Term, and (iv) Tenant satisfies each of the Revenue Test, the Second Adjusted EBITDA Test and the Leverage Test (as such terms are defined in subsection (d)
below) ).
In
the event that Tenant does not meet all of the foregoing conditions set forth in clauses (i) through (iv) of the immediately preceding sentence at the beginning of the four-year anniversary of the Premises A Commencement Date, then the Second Scheduled Adjustment Date shall be deferred until such date as Tenant has met such conditions.
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(d)
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For purposes of this Section 9.19:
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(i)
The
"Revenue Test"
shall be considered to have been satisfied if, taking into account the last four (4) full fiscal quarters immediately preceding (x) the First Scheduled Adjustment Date as to the First Reduction, and (y) the Second Scheduled Adjustment Date as to the Second Reduction, based on the information contained in the unaudited financial statements set forth in the most recent Form 10-Q and/or Form 10-K, as applicable, filed by Tenant with the Securities and Exchange Commission (the
"SEC")
for each such fiscal quarter, Tenant's total revenue (as determined in accordance with generally accepted accounting principles in the U.S.
("GAAP"))
equals or exceeds One Hundred and Fifty Million and 00/100 Dollars ($150,000,000.00).
In
the event that, at any time, Tenant is an entity other than a publicly held company whose shares are traded on a national stock exchange, Tenant shall provide Landlord with a certified copy of its most recent audited financial statements within fifteen (15) business days after written demand from Landlord, and a reasonably equivalent criteria acceptable to Landlord shall be used to determine Tenant's total revenue in a similar fashion, based on such audited annual financial statements.
(ii)
The
"First Adjusted EBITDA Test"
shall be deemed satisfied if, taking into account the last four (4) full fiscal quarters immediately preceding the First Scheduled Adjustment Date, based on the information contained in the unaudited financial statements set forth in the most recent Form 10-Q and/or Form 10-K, as applicable, filed by Tenant with the SEC for each such fiscal quarter, Tenant's "Adjusted EBITDA" (as defined below) is greater than zero (0).
(iii)
The
"Second Adjusted EBITDA Test"
shall be deemed satisfied if, taking into account the last four (4) full fiscal quarters immediately preceding the Second Scheduled Adjustment Date, based on the information contained in the unaudited financial statements set forth in the most recent Form 10-Q and/or Form 10-K, as applicable, filed by Tenant with the SEC for each such fiscal quarter, Tenant's Adjusted EBITDA divided by total revenue (as determined in accordance with GAAP) is equal to or greater than 0.10.
(iv)
"Adjusted EBITDA"
shall mean the following as determined in accordance with GAAP: Tenant's net income (or net loss, as applicable) plus: provision for income taxes, other expense, net depreciation and amortization, stock-based compensation, accretion of contingent consideration, merger and acquisition related costs and other unusual or non-cash significant adjustments.
In
the event that, at any time, Tenant is an entity other than a publicly held company whose shares are traded on a national stock exchange, Tenant shall provide Landlord with a certified copy of its most recent audited financial statements within fifteen (15) business days after written demand from Landlord, and a reasonably equivalent criteria acceptable to Landlord shall be used to determine Tenant's Adjusted EBITDA and total revenue in a similar fashion, based on such audited annual financial statements
(v)
The
"Leverage Test"
shall be deemed satisfied if, taking into account the last full fiscal quarter immediately preceding (x) the First Scheduled Adjustment Date as to the First Reduction,
and (y) the Second Scheduled Adjustment Date as to the Second Reduction, based on the information contained in the unaudited financial statements set forth in the most recent Form 10-
Q
and/or Form 10-K, as applicable, filed by Tenant with the SEC for such fiscal quarter, Tenant shall have a ratio of "Net Debt" (as defined below) to Adjusted EBITDA (as defined above) that is no greater than 3.0.
"Net Debt"
shall mean total debt less cash and cash equivalents, each as determined in accordance with GAAP.
(e)
If
Tenant believes that it has satisfied all the conditions precedent to the First Reduction and/or Second Reduction, then it shall request such reduction in writing to Landlord, which request shall certify to Landlord that all such conditions have been satisfied and delivering evidence of the satisfaction of the Revenue Test, Adjusted EBITDA Test and Leverage Test.
If
Landlord determines that all of the aforesaid conditions are met, the security deposit shall be so reduced in accordance with this Section 9.19. No Letter of Credit shall automatically reduce, but any reduction in the amount thereof shall require Landlord's prior written notice to the issuer of the Letter of Credit of the reduced amount. Promptly after Landlord's receipt of Tenant's request for a reduction as described above, Landlord shall determine whether such a reduction is permitted in accordance with this Section, and if it is, Landlord shall notify the issuer of the Letter of Credit of the amount to which the Letter of Credit shall be reduced. In no event shall the security deposit be reduced to less than One Million Three Hundred and Ninety-Five Thousand Three Hundred and Thirty-Four and 00/100 Dollars ($1,395,334.00).
(f)
Tenant not then being in default, Landlord shall return the deposit, or so much thereof as shall not have theretofore been applied in accordance with the terms of this Section 9.19, to Tenant on the expiration or earlier termination of the term of this Lease (as the same may have been extended) and surrender possession of the Premises by Tenant to Landlord in the condition required in the Lease at such time.
If
Landlord shall not have received any payment or installment of Annual Fixed Rent or Additional Rent (the
"Outstanding Amount")
on or before the date on which the same first becomes payable under this Lease (the
"Due Date"),
the amount of such payment or installment shall incur a late charge equal to the sum of: (a) five percent (5%) of the Outstanding Amount for administration and bookkeeping costs associated with the late payment and (b) interest on the Outstanding Amount from the Due Date through and including the date such payment or installment is received by Landlord, at a rate equal to the lesser of (i) the rate announced by Bank of America, N.A. (or its successor) from time to time as its prime or base rate (or if such rate is no longer available, a comparable rate reasonably selected by Landlord), plus two percent (2%), or
(ii)
the maximum applicable legal rate, if any. Such interest shall be deemed Additional Rent and shall be paid by Tenant to Landlord upon demand. Landlord agrees to waive the late charge due hereunder for the first late payment by Tenant under this Lease per calendar year, provided that Landlord receives such payment from Tenant within five (5) business days of the Due Date (provided further that if such payment is not received with the aforesaid five (5) business day period, interest on the Outstanding Amount will accrue as of the original Due Date).
Each and every payment and expenditure, other than Annual Fixed Rent, shall be deemed to be Additional Rent or additional rent hereunder, whether or not the provisions requiring payment of such amounts specifically so state, and shall be payable, unless otherwise provided in this Lease, within thirty (30) days after written demand by Landlord, and in the case of the non-payment of any such amount, Landlord shall have, in addition to all of its other rights and remedies, all the rights and remedies available to Landlord hereunder or by law in the case of non-payment of Annual Fixed Rent. Unless expressly otherwise provided in this Lease, the performance and observance by Tenant of all the terms, covenants and conditions of this Lease to be performed and observed by Tenant shall be at Tenant's sole cost and expense. Except as otherwise
expressly provided in Section 2.6, if Tenant has not objected to any statement of Additional Rent which is rendered by Landlord to Tenant within one hundred and fifty (150) days after Landlord has rendered the same to Tenant, then the same shall be deemed to be a final account between Landlord and Tenant not subject to any further dispute.
In
the event that Tenant shall seek Landlord's consent or approval under this Lease, then Tenant shall reimburse Landlord, upon demand (accompanied by reasonable supporting documentation), as Additional Rent, for all actual and reasonable out-of-pocket costs and expenses, including legal and architectural costs and expenses, reasonably incurred by Landlord in processing such request, whether or not such consent or approval shall be given. Notwithstanding anything in this Lease to the contrary, if Landlord or any affiliate of Landlord has elected to qualify as a real estate investment trust
("REIT"),
any service required or permitted to be performed by Landlord pursuant to this Lease, the charge or cost of which may be treated as impermissible tenant service income under the
laws governing a REIT, may be performed by a taxable REIT subsidiary that is affiliated with either Landlord or Landlord's property manager, an independent contractor of Landlord or Landlord's property manager (the "Service Provider").
If
Tenant is subject to a charge under this Lease for any such service, then, at Landlord's direction, Tenant will pay such charge either to Landlord for further payment to the Service Provider or directly to the Service Provider, and, in either case, (i) Landlord will credit such payment against Additional Rent due from Tenant under this Lease for such service, and
(ii)
such payment to the Service Provider will not relieve Landlord from any obligation under the Lease concerning the provisions of such service.
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9.22
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Waiver of Trial By Jury
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To induce Landlord to enter into this Lease, Tenant hereby waives any right to trial by jury in any action, proceeding or counterclaim brought by either Landlord or Tenant on any matters whatsoever arising out of or any way connected with this Lease, the relationship of the Landlord and the Tenant, the Tenant's use or occupancy of the Premises and/or any claim of injury or damage, including but not limited to, any summary process eviction action. To induce Tenant to enter into this Lease, Landlord hereby waives any right to trial by jury in any action, proceeding or counterclaim brought by either Landlord or Tenant on any matters whatsoever arising out of or any way connected with this Lease, the relationship of the Landlord and the Tenant, the Tenant's use or occupancy of the Premises and/or any claim of injury or damage, including but not limited to, any summary process eviction action.
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9.23
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Electronic Signatures
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The parties acknowledge and agree that this Lease may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. Without limitation, "electronic signature" shall include faxed versions of an original signature or electronically scanned and transmitted versions (e.g., via pdf) of an original signature.
This Lease shall be governed exclusively by the provisions hereof and by the law of the Commonwealth of Massachusetts, as the same may from time to time exist.
(a)
(i) The parties acknowledge and agree that as of the date hereof Tenant has subleased Premises B under a sublease dated as of July 28, 2014 (the "PWC Sublease") between Tenant and PricewaterhouseCoopers PRTM ("PWC") for a term scheduled to expire on March 31, 2019 (the "PWC Expiration Date"). Landlord and Tenant agree that in the event the PWC Sublease is terminated due to a termination of the master lease between Landlord and PWC (the "PWC Lease") resulting from a default of PWC thereunder, then immediately upon such termination, the Premises B Commencement Date shall occur and thereafter Premises B shall be directly leased by Landlord to Tenant on the terms and conditions of this Lease for the remainder of the Term except that from such date of termination through the PWC Expiration Date (as defined above), the Annual Fixed Rent and Additional Rent and other costs and charges for Premises B shall be as set forth in the PWC Lease. In no event shall Landlord be (i) deemed to have
assumed any obligations as sublandlord under the PWC Sublease,
(ii)
liable for the failure of PWC to perform its obligations under the PWC Sublease or under the PWC Lease, or (iii) liable for any security deposit paid by Tenant to PWC. Nothing herein shall be deemed to constitute a waiver by Tenant of any claim against PWC as a result of such a default by PWC.
(ii)
In
addition, to the extent that there is a fire or casualty while the PWC Sublease is in effect, and as a result of such fire or casualty, PWC exercises any termination rights it may have under the PWC Lease, Premises B shall be added to the "Premises" as of the effective date of such termination on the terms and conditions of this Lease (except as expressly provided below), and in such event, Article VI of this Lease shall control as though Premises B were part of the Premises as of the date of such fire or casualty, including any abatement and termination rights; provided, however, with respect to Premises B, any period for notices due from Landlord under Article VI which is measured from the date of the casualty, and any period under Article VI which is measured from the date of the casualty, shall be instead measured from the date of addition of Premises B to the Premises hereunder; and provided further, that for the period from the addition of Premises B to the Premises pursuant to this Section 9.25(a) through the Premises B Commencement Date (as defined in Section 1.1 above), subject to any applicable abatement rights under Article VI, the Annual Fixed Rent and Additional Rent and other costs and charges due to Landlord from Tenant for Premises B shall be as set forth in the PWC Lease as to Premises B (without regard to the termination of the PWC Lease).
(b)
(i) The parties acknowledge and agree that as of the date hereof Tenant has subleased Premises C under a sublease dated as of July 28, 2014 (the
"Oracle Sublease")
between Tenant and Oracle
("Oracle")
for a term scheduled to expire on February 28, 2019 (the
"Oracle Expiration Date").
Landlord and Tenant agree that in the event the Oracle Sublease is terminated due to a termination of the master lease between Landlord and Oracle (the
"Oracle Lease")
resulting from a default of Oracle thereunder, then immediately upon such termination, the Premises C Commencement Date shall occur and thereafter Premises C shall be directly leased by Landlord to Tenant on the terms and conditions of this Lease except that from such date through the Oracle Expiration Date (as defined above), the Annual Fixed Rent and Additional Rent and other costs and charges for Premises C shall be as set forth in the Oracle Lease. In no event shall Landlord be (i) deemed to have assumed any obligations as sublandlord under the Oracle Sublease, (ii) liable for the failure of Oracle to perform its obligations under the Oracle Sublease or under the Oracle Lease, or (iii) liable for any security deposit paid by Tenant to Oracle. Nothing herein shall be deemed to constitute a waiver by Tenant of any claim against Oracle as a result of such a default by Oracle.
(ii)
In
addition, to the extent that there is a fire or casualty while the Oracle Sublease is in effect, and as a result of such fire or casualty, Oracle exercises any termination rights it may have under the Oracle Lease, Premises C shall be added to the "Premises" as of the effective date of such termination on the terms and conditions of this Lease (except as expressly provided below), and in such event, Article VI of this Lease shall control as though Premises C were part of the Premises as of the date of such fire or casualty, including any abatement and termination rights; provided, however, with respect to Premises C, any period for notices due from Landlord under Article VI which is measured from the date of the casualty, and any period under Article VI which is measured from the date of the casualty, shall be instead measured from the date of addition of Premises C to the Premises hereunder; and provided further, that for the period from the addition of Premises C to the Premises pursuant to this Section 9.25(b) through the Premises C Commencement Date (as defined in Section 1.1 above), subject to any applicable abatement rights under Article VI, the Annual Fixed Rent and Additional Rent and other costs and charges due to Landlord from Tenant for Premises C shall be as set forth in the Oracle Lease as to Premises C (without regard to the termination of the Oracle Lease).
(iii)
In
the event of any other termination (other than by reason of an Event of Default caused by Tenant) or rejection (pursuant to 11 U.S.C. §365) of the Oracle Lease (and Oracle and no party claiming by, through or under Oracle has any further legal rights to Premises
C),
then unless the provisions of subsections (i) or
(ii)
of this Section 9.25(b) are applicable, Tenant shall attom to and recognize Landlord as Tenant's landlord, and Landlord shall recognize Tenant as Landlord's tenant under the Oracle Lease as would be applicable to Premises C (or, upon Landlord's request, Landlord and Subtenant shall enter into a new direct lease with respect to Premises C upon the then executory terms of the Oracle Lease, provided that, in any such event, Landlord shall not be (i) liable for any previous act or omission of Oracle; (ii) subject to any offset or defense which theretofore accrued to Tenant (including, without limitation, any rights under 11 U.S.C. §365(h)); (iii) bound by any rent or other sums paid by Tenant more than one month in advance; (iv) liable for any security deposit not actually received by Landlord; (v) liable for any work or payments on account of improvements to Premises C; or (vi) bound by
any amendment of the Oracle Sublease not consented to in writing by Landlord. Tenant shall promptly execute and deliver any instrument Landlord may reasonably request to evidence such attomment or direct lease. Tenant shall reimburse Landlord for any actual and reasonable out-
of-pocket costs and expenses that may be incurred by Landlord in connection with such attornment or direct lease including, without limitation, reasonable attorneys' fees. In the event of a termination or rejection of the Oracle Lease where subsections (i) and (ii) of this Section 9.25(b), as well as the foregoing provisions of this subsection (iii), are not applicable, the Oracle Sublease and all rights of Tenant to Premises C under the Oracle Sublease shall terminate upon the date of termination of the Oracle Lease or Tenant's right to possession thereunder.
(iv)
Tenant acknowledges and agrees that the Oracle Lease contains a right of Oracle to extend the term of the Oracle Lease. As a result, the parties acknowledge and agree that the demised and lease of Premises C to Tenant as provided herein is contingent upon Oracle not exercising such right. In the event Oracle properly exercises such right and notwithstanding any provision of this Lease to the contrary, Premises C shall not be demised or leased to Tenant as provided herein, and Tenant shall be obligated to immediately pay, as Additional Rent, the portion of the Tenant Allowance attributable to Premises C in the amount of $782,492.50 to the extent disbursed by Landlord in accordance with the terms of this Lease.
(c)
Notwithstanding any provision of this Lease to the contrary, in the event that the PWC Sublease or PWC Lease is terminated as a result of a default by the Tenant herein (as subtenant
under the PWC Sublease), then, at the written election of Landlord, Premises B (and Premises C to the extent the same was not previously incorporated as part of the Premises hereunder) shall not be demised or leased to Tenant as provided herein, but the foregoing election by Landlord shall not prohibit or limit Landlord from recovering any portion of the Tenant Allowance utilized by Tenant hereunder with respect to such spaces prior to the incorporation of such spaces as part of the Premises as provided in this Lease. Notwithstanding any provision of this Lease to the contrary, in the event the Oracle Sublease or Oracle Lease is terminated as a result of a default
by the Tenant herein (as subtenant under the Oracle Sublease), then, at the written election of Landlord, Premises C (and Premises B to the extent the same was not previously incorporated as part of the Premises hereunder) shall not be demised or leased to Tenant as provided herein, but the foregoing election by Landlord shall not prohibit or limit Landlord from recovering any portion of the Tenant Allowance utilized by Tenant hereunder with respect to such spaces prior
to the incorporation of such spaces as part of the Premises as provided in this Lease. Tenant shall be obligated to immediately pay, as Additional Rent, the entire portion of the Tenant Allowance utilized towards Premises B and Premises C, and such amount shall accrue interest at the rate specified in Section 9.20 above from the date due until the date the same is paid by Tenant.
When used in this Lease,
"Force Majeure"
shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorists acts, civil commotions, unusual scarcity of or inability to obtain labor or materials, labor difficulties, fire or other casualty (including time necessary to repair any damage caused thereby) or other causes reasonably beyond such party's control or attributable to the other party's action or inaction. A party shall have the right to invoke the benefit of the Force Majeure provisions of this Section
9.26
only if (a) it advises the other party of the occurrence of the Force Majeure event within three (3) business days after it becomes aware thereof and (b) such party uses commercially reasonable efforts to mitigate the impact of such Force Majeure event to the extent it within such party's reasonable ability to do so under the circumstances). Insufficient financial resources or other financial inability shall in event constitute Force Majeure.
Provided Tenant leases and occupies at least fifty-four thousand three hundred and seventy-two (54,372) rentable square feet in the Building, Landlord agrees to maintain a cafeteria, a conference center, and a fitness room with showers (collectively, the "Amenities") of substantially the same quality as presently existing in the Building. Further and provided Tenant (or a Permitted Transferee) leases and occupies at least fifty-four thousand three hundred and seventy-two (54,372) rentable square feet in the Building, Landlord agrees to arrange for the operation of a coffee shop in the Building (the "Coffee Shop") offering "Starbucks" or, if "Starbucks" is not reasonably available, a comparably branded coffee selected by Landlord (and reasonably approved by Tenant) commencing not later than March 1, 2015, and upon commencement of operations such Coffee Shop shall be included in the definition of Amenities. Such Amenities to be available to Tenant in common with others entitled to the use thereof, throughout the Initial Term hereof, and so long thereafter as the same may be available to tenants of the Building generally, subject to closures as necessitated by emergency, casualty or taking or as necessary for performance of maintenance, repairs or alterations, and with respect to the cafeteria and Coffee Shop, subject to closure in the event the contract of the then operator of the cafeteria and/or Coffee Shop either expires or is terminated so as to permit Landlord time to locate and contract with a replacement operator. Further, the use of the conference center shall be subject to availability and prior scheduling with Landlord. Landlord may condition the use of the fitness room on the execution of a reasonable waiver form for the benefit of Landlord by persons desiring to use the same and Tenant acknowledges and agrees that Landlord shall have no obligation to provide any personnel to monitor the use of the fitness room. Landlord may
relocate the Amenities to other locations of the Building at any time provided there is no material and adverse diminution in the quality or capacity of such Amenities.
[signatures on next page]
EXECUTED in two or more counterpm1s each of which shall be deemed to be an original.
Page 80
77 CityPoint
EXHIBIT A DESCRIPTION OF SITE
77 Fourth Avenue fParcel 20)
LEGAL DESCRIPTION
A certain parcel ofland located in the City of Waltham, in the County of Middlesex and the Commonwealth of Massachusetts bounded and described as follows:
Beginning at a point on the westerly line of Fourth Avenue markeii by a stone bound and being the northeastern comer of the parcel described; thence
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S 23° 46'59" W
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a distance of three hundred thirty-eight and twenty-three hundredths feet (338.23') by the westerly line of Fourth Avenue to a point; thence
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Southwesterly
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and curving to the right along the arc of a curve having a radius of sixteen and no hundredths feet ( 16.00'), a length of sixteen and sixty threc hundredths feet (16.63') by the westerly line of Fourth Avenue to a point; thence
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Southwesterly
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and curving to the left along the arc of a curve having a radius of sixty and no hundredths feet (60.00'), a length of seventy-eight and fifty-six hundredths feet (78.56') by the westerly line ofFourth Avenue to a point; thence
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S 40° 11'12" W
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a distance of fifty-eight and forty-three hundredths feet (58.43') to a point; thence
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Southwesterly and curving to the left along the arc of a curve having a radius of two hundred ten and no hundredths feet (210.00'), a length of one hundred fifty and seventy-nine hundredths feel (150.79') to a point; thence
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S I 0°01'24" W
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a distance of three hundred thirty-eight and thirty hundredths feet (338.30') to a point; thence
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N 79° 58'36" W
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a distance of thirty-five and ninety-four hundredths feet (35.94') to a point; thence
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N 05° 49'4
J "
E
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a distance of three hundred seventy and eighty-four hundredths feet (370.84') to a point; thence
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Northeasterly
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and curving lo the left along the arc of a curve having a radius of seven hundred twenty-five and no hundredths feet (725.00'), a length of one hundred and eighty-seven hundredths feet (100.87') to a point; thence
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77 Fourth Avenue (Parcel 20)
Page 2 of2
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N 02° 08'36" W
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a distance of one hundred thirty-nine and forty
-
four hundredths feet (139
.
44')
lo
a point; thence
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Northeasterly
Northeasterly
N 00° 53'22" E
Northeasterly
S 63°09'49" E
Southeasterly
and curving to the right along the
arc:
of a curve having a radius of seven hundred twenty-five and no hundredths feet (725.00'), a length of one hundred forty-four and fifty-two hundredths feel (144.52') lo e point; thence
and curving to the left along the arc of a curve having a radius of seven hundred seventy five and no hundredths feet
(77S:oo•),
n length of one hundred thirteen and forty six hundredths feet (113
.
46') lo a point ; thence
a distance of two hundred eight and eighty-four hundredths feet (208.84') to a point; thence
and curving to the right along the arc of a curve having a radius of fifteen and no hundredths feet (15.00'), a length of thirty and thirty five hundredths feet (30
.
35') to a point; thence
a distance of three hundred forty-two and sixty-nine hundredths feet (342
.
69') by the southerly line of Fourth Avenue to a point; thence
and curving to the right along the arc of a curve having a radius of fifty and no hundredths feet (50
.
00')
,
a length of seventy-five and eighty-eight hundredths feel (75.88') by the southerly line ofFourth Avenue to the point of beginning.
Shown as Parcel 20 on a plan entitled "Plan of Land in Waltham, Massachusetts" dated February 28, 2000, prepared by Vanasse Hangcn Brustlin, Inc
.
, recorded with Middlesex South Registry of Deeds as Plan No
.
628 of 2000, and containing 186,733 square feet or
4.287 acres ofland according to said Plan
.
71FOURTHLLC BP lcpldcscrip1ton;iorcel20c•hA
IV\2/00
EXHIBIT B-1 WORK AGREEMENT
(A)
Subject to the terms and conditions of this Lease, Tenant shall accept each portion of the Premises in their as-is condition without any obligation on the Landlord's part to perform any additions, alterations, improvements, demolition or other work therein or pertaining thereto. Tenant, at its sole cost and expense, shall perform all work necessary to prepare the Premises for Tenant's occupancy in accordance with plans and specifications prepared by an architect, licensed by the Commonwealth of Massachusetts and reasonably approved by Landlord, such plans and specifications to be subject to the reasonable approval of the Landlord. Landlord hereby approves the conceptual lay-out of the Premises as identified in Exhibit B-3 attached hereto (the
"Fit Plan").
Tenant shall submit to Landlord a detailed floor plan layout together with working drawings (the
"Tenant's Submission")
for work to be performed by Tenant to prepare the Premises for Tenant's occupancy
("Tenant's Work").
Such floor plan layout and working drawings (the
"Plans")
shall contain at least the information required by, and shall
conform to the requirements of, Exhibit B-2 and be consistent with the Fit Plan. Provided that the Plans contain at least the information required by, and conform to the requirements of, said Exhibit B-2 and is consistent with the Fit Plan, Landlord's approval of the Plans shall not be unreasonably withheld, conditioned or delayed; however, Landlord's determination of matters relating to aesthetic issues relating to alterations or changes which are plainly visible outside the Premises shall be in Landlord's sole discretion.
If
Landlord disapproves of any Plans, any such disapproval will set forth in reasonable detail the bases therefor, Tenant shall promptly have the Plans revised by its architect to incorporate all objections and conditions presented by Landlord and shall resubmit such plans to Landlord no later than ten (10) business days after Landlord has submitted to Tenant its objections and conditions. Such process shall be followed until the Plans shall have been approved by the Landlord without objection or condition
.
(B)
Once the Plans have been approved by Landlord, Tenant, at its sole cost and expense, shall promptly, and with all due diligence, perform Tenant's Work as set forth on the Plans, and, in connection therewith, the Tenant shall obtain all necessary governmental permits and approvals for Tenant's Work. All of Tenant's Work shall be performed strictly in accordance with the Plans and in accordance with applicable Legal Requirements (as defined in Section 1.2 hereof) and Insurance Requirements (as defined in Section 5.12 of the Lease). Tenant shall have Tenant's Work performed by contractors, reasonably approved by Landlord, which contractors
shall provide to Landlord such insurance as required by Section 8.14 of the Lease. Landlord shall have the right to provide such reasonable rules and regulations relative to the performance of Tenant's Work and any other work which the Tenant may perform under the Lease and Tenant shall abide by all such reasonable rules and regulations and shall cause all of its contractors to so abide including, without limitation, payment for the costs of using Building services.
It
shall be Tenant's obligation to obtain a certificate of occupancy or other like governmental approval (which may be temporary if a final certificate is not available on account of matters that are not the responsibility of Tenant) for the use and occupancy of the Premises to the extent required by law, and Tenant shall not occupy the Premises for the conduct of business until and unless it has obtained such approval and has submitted to Landlord a copy of the same together with waivers of lien from all of Tenant's contractors and subcontractors in form adequate for recording
purposes. Tenant shall also prepare and submit to Landlord promptly after Tenant's Work is substantially complete a set of as-bu ilt plans in both print and electronic forms showing the work performed by Tenant to the Premises including, without limitation, any wiring or cabling installed by Tenant or Tenant's contractor for Tenant's computer, telephone and other
commu nication systems. Tenant shall not be responsible to Landlord for any review or oversight fees or charges in connection with Tenant's Work.
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1.2
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Quality and Performance of Work
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All construction work required or permitted by the Lease shall be done in a good and workmanlike manner and in compliance with all applicable laws, ordinances, rules, regulations, statutes, by-laws, generally applicable court decisions, and orders and requirements of all public authorities
("Legal Requirements")
and all Insurance Requirements (as defined in Section 5.12 of the Lease). All of Tenant's work shall be coordinated with any work being performed by or for Landlord and in such manner as to maintain harmonious labor relations, provided that Landlord shall not require Tenant to use union labor. Landlord may inspect the work of Tenant or its contractors at reasonable times and give notice of observed defects. Each party authorizes the other to rely in connection with design and construction upon approval and other actions on the party's behalf by any Construction Representative of the party named in Section 1.1 of the
Lease or any person hereafter designated in substitution or addition by notice to the party relying. Tenant acknowledges that Tenant is acting for its own benefit and account and that Tenant will not be acting as Landlord's agent in performing any Tenant Work, accordingly, no contractor, subcontractor or supplier shall have a right to lien Landlord's interest in the Complex in connection with any work.
(A)
Landlord shall provide to Tenant a special allowance equal to the product of (i) $21.50 and (ii) the Rentable Floor Area of the Premises (the
"Tenant Allowance"),
subject to subsection 1.3(B) below. The Tenant Allowance shall be used and applied by Tenant solely on account of the cost of Tenant's Work, including, without limitation, costs of architecture and engineering, plans, permitting and so-called "hard" construction costs, but subject to the Cap
Amount with respect to Special Costs as provided below. Provided that the Tenant (i) has opened for business in the Premises A and delivered a certificate of occupancy for the same to Landlord (which may be temporary if a final certificate of occupancy is not available on account of matters that are not the responsibility of Tenant), (ii) has substantially completed all of such Tenant's Work in accordance with the terms of the Lease, (iii) has paid for all of such Tenant's Work in full and has delivered to Landlord lien waivers from all persons who might have a lien as a result of such work, in the recordable forms attached to the Lease as
Exhibit F
, (iv) has executed the Declaration in the form annexed to the Lease as Exhibit E, (v) has delivered to Landlord its certificate specifying the cost of such Tenant's Work, which certificate shall allocate the costs between Premises A, Premises B, and Premises C, and identifying all contractors, subcontractors and suppliers involved with Tenant's Work, together with reasonable evidence of such cost in
the form of paid invoices, receipts and the like, (vi) has delivered to Landlord a final set of record drawings for Tenant's Work, (vii) has satisfied the requirements of (i) through (vi) above and made request for such payment on or before the date that is eighteen (18) months after the Premises A Commencement Date, (viii) is not otherwise in monetary default or default under
any obligations contained in this Exhibit B-1 under the Lease, and (viii) there are no liens (unless
bonded to the reasonable satisfaction of Landlord) against Tenant's interest in the Lease or against the Building or the Site arising out of Tenant's Work or any litigation in which Tenant is a party, then within thirty (30) days after the satisfaction of the foregoing conditions, the Landlord shall pay to the Tenant the lesser of the amount of such costs so certified or the amount of the Tenant Allowance. For the purposes hereof, the cost to be so reimbursed by Landlord shall include the cost of design, engineering (the
"Special Costs")
and construction of the leasehold improvements, but not the cost of any of Tenant's personal property, trade fixtures, trade equipment or any so-called soft costs (other than the Special Costs). Notwithstanding the foregoing, it is understood and agreed that Tenant may not utilize more than the product of (i)
$4.00 and
(ii)
the Rentable Floor Area of the Premises (the
"Cap Amount")
of the Tenant Allowance towards the Special Costs; provided, further, that, with respect to any Special Costs for which Tenant has directly contracted, Tenant (A) has paid for all of such Special Costs in full and has delivered to Landlord lien waivers from all persons who might have a lien as a result thereof in the recordable forms attached to the Lease as Exhibit F and (B) has delivered to Landlord its certificate specifying the cost of such Special Costs, together with evidence of such cost in the form of paid invoices, receipts and the like. Landlord shall pay to Tenant the lesser of the amount of such Special Costs so certified or the Cap Amount within thirty (30) days after the satisfaction of the foregoing conditions. Notwithstanding the foregoing, Landlord shall be under no obligation to apply any portion of the Tenant Allowance for any purposes other than as provided in this Section 1.3, nor shall Landlord be deemed to have assumed any obligations, in whole or in part, of Tenant to any contractors, subcontractors, suppliers, workers or materialmen. Further, the Tenant Allowance shall only be applied towards the cost of designing, engineering and constructing the leasehold improvements and in no event shall Landlord be required to make application of any portion of the Tenant Allowance towards Tenant's personal property, trade fixtures or moving expenses or on account of any supervisory fees, overhead, management fees or other payments to Tenant, or any partner or affiliate of Tenant. In the event that such cost of Tenant's Work is less than the Tenant Allowance, Tenant shall not be entitled to any payment or credit nor shall there be any application of the same toward Annual Fixed Rent or Additional Rent owed by Tenant under the Lease.
If
Landlord fails timely to pay any portion of Tenant Allowance when properly due, and Landlord does not cure such failure on or before the date ten (10) business days after Landlord receives written notice entitled "Notice of Intent to Offset Tenant Allowance" from Tenant of such default, then Tenant shall have the right to offset the portion of the Tenant Allowance properly due to Tenant, together with interest at the rate under Section 9.16(B) of the Lease on the delinquent amount from the due date of such disbursement u ntil the date paid, against the next installment(s) of Annual Fixed Rent due under the Lease, provided however, that the amount so offset by Tenant in any calendar month shall not exceed twenty percent (20%) of the amount of the monthly installment of Annual Fixed Rent payable by Tenant to Landlord with respect to such calendar month.
(B)
Notwithstanding any provision of Section 3. l(A) of this Work Letter to the contrary, Tenant agrees that no less than (i) the product of (A) $10.00 and (ii) the Rentable Floor Area of the Premises B, shall be used by Tenant towards leasehold improvements to Premises B (exclusive of Soft Costs) (the
"Premises
B
Minimum"),
and (ii) the product of (A) $10.00 and
(B) the Rentable Floor Area of the Premises C, shall be used by Tenant towards leasehold improvements to Premises C (exclusive of Soft Costs) (the
"Premises C Minimum").
Landlord shall not be obligated to disburse more than (i) $1,612,284.50 of the Tenant's Allowance towards
Page
3
Tenant's Work in Premises A at any time, or
(ii)
the product of (A) $21.50 and (ii) the Rentable Floor Area of the Premises A with respect to Tenant's Work in Premises A until Tenant evidences to Landlord's reasonable satisfaction that the Premises B Minimum and the Premises C Minimum have been satisfied. Tenant further acknowledges and agrees that (i) notwithstanding that Tenant's Work in Premises B and Premises C may occur prior to the commencement of the Term of this Lease as to such spaces, all terms and conditions of this Work Agreement and all other applicable provisions of this Lease shall apply with respect to Tenant's Work in Premises B and Premises C, and
(ii)
Tenant shall comply with the terms and conditions of the (A) the Oracle Sublease with respect to the Tenant's Work
in
Premises C, and
(B) the PWC Sublease with respect to the Tenant's Work
in
Premises
B.
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1.4
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Substantial Completion
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Premises A shall be treated as having been substantially completed on the earlier of: (i) the date on which Tenant's Work related to Premises A has been completed except for items of work and adjustment of equipment and fixtures which can be completed after occupancy has been taken without causing substantial interference with Tenant's use of Premises A
(i.e.
so-called "punch list" items) and a certificate of occupancy (temporary or permanent) has been obtained for Premises A, or (ii) the date on which Tenant commences business operations
in
any portion of Premises A.
Page 4
EXHIBIT B-2
TENANT PLAN AND WORKING DRAWING REQUIREMENTS
1.
Floor plan indicating location of partitions and doors (details required of partition and door types).
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2.
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Location of standard electrical convenience outlets and telephone outlets.
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3.
Location and details of special electrical outlets; (e.g. Xerox), including voltage, amperage, phase and NEMA configuration of outlets.
4.
Reflected ceiling plan showing layout of standard ceiling and lighting fixtures. Partitions to be shown lightly with switches located indicating fixtures to be controlled.
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5.
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Locations and details of special ceiling conditions, lighting fixtures, speakers, etc.
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6.
Location and heat load in BTU/Hr. of all special air conditioning and ventilating requirements and all necessary HVAC mechanical drawings.
7.
Location and details of special structural requirements, e.g., slab penetrations and areas with floor loadings exceeding a live load of 70 lbs./s.f.
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8.
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Locations and details of all plumbing fixtures; sinks, drinking fountains, etc.
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9.
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Location and specifications of floor coverings, e.g., vinyl tile, carpet, ceramic tile, etc.
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10.
Finish schedule plan indicating wall covering, paint or paneling with paint colors referenced to standard color system.
11.
Details and specifications of special millwork, glass partitions, rolling doors and grilles, blackboards, shelves, etc.
12.
Hardware schedule indicating door nu mber keyed to plan, size, hardware required including butts, latchsets or locksets, closures, stops, and any special items such as thresholds, soundproofing, etc. Keying schedule is required.
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13.
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Verified dimensions of all built-in equipment (file cabinets, lockers, plan files, etc.).
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14.
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Location of any special soundproofing requirements.
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15.
All drawings to be uniform size (30" X 42") and shall incorporate the standard project electrical and plumbing symbols and be at a scale of 1/8"
=
1' or larger.
16.
Drawing submittal shall include the appropriate quantity required for Landlord to file for permit along with four half size sets and one full size set for Landlord's review and use.
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17.
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Provide all other information necessary to obtain all permits and approvals for Landlord's Work.
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18.
Upon completion of the work, Tenant shall provide Landlord with two hard copies and one electronic CAD file of updated architectural and mechanical drawings to reflect all project sketches and changes.
EXHIBIT B-3 TENANT'S FIT PLAN
(See Attached)
Page
1
Exhibit B-3
EXHIBIT C LANDLORD SERVICES
I.
CLEANING
Cleaning and janitorial services shall be provided as needed on Monday through Friday, exclusive of holidays observed by the cleaning company and Saturdays and Sundays.
Cleaning and janitorial services to be provided in the office areas shall include:
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1.
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Vacu uming, damp mopping of resilient floors and trash removal.
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2.
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Dusting of horizontal surfaces within normal reach (tenant equipment to remain in place).
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3.
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High dusting and dusting of vertical blinds to be rendered as needed.
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Cleaning and janitorial services to be provided in the common area lavatories of the building shall include:
1.
Dusting, damp mopping of resilient floors, trash removal, sanitizing of basins, bowls and urinals as well as cleaning of mirrors and bright work.
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2.
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Refilling of soap, towel, tissue and sanitary dispensers to be rendered as necessary.
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3.
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High dusting to be rendered as needed.
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C.
MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS Cleaning and janitorial services to be provided in the common areas of the bu ilding shall include:
1.
Trash removal, vacuuming, dusting and damp mopping of resilient floors and cleaning and sanitizing of water fountains.
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2.
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High dusting to be rendered as needed.
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D. WINDOW CLEANING
All exterior windows shall be washed on the inside and outside surfaces at frequency necessary to maintain a first class appearance.
II. HVAC
A.
Heating, ventilating and air conditioning equipment will be provided with sufficient capacity to accommodate a maximum population density of one
(1)
person per one hundred fifty (150) square feet of useable floor area served, and a combined lighting and standard electrical load of 3.0 watts per square foot of useable floor area.
In
the event Tenant introduces into the Premises personnel or equipment which overloads the system's ability to adequately perform its proper functions, Landlord shall so notify Tenant in writing and supplementary system(s) may be required and installed by Landlord at Tenant's expense, if within fifteen (15) days Tenant has not modified its use so as not to cause such overload.
Operating criteria of the basic system was designed in accordance with the then applicable Massachusetts Energy Code and shall not be less than the following:
(i)
Cooling season indoor temperatures of not in excess of 73 - 79 degrees Fahrenheit when outdoor temperatures are 91 degrees Fahrenheit ambient.
(ii)
Heating season minimum room temperature of 68 - 75 degrees Fahrenheit when outdoor temperatures are 6 degrees Fahrenheit ambient.
B.
Landlord shall provide heating, ventilating and air conditioning as normal seasonal changes may require during the hours of 8:00 a.m. to 6:00 p.m. Monday throu gh Friday (legal holidays in all cases excepted). Landlord notifies Tenant that as of the date of this Lease legal holidays include New Year's Day, Martin
L.
King Day, President's Day, Patriot's Day, Memorial Day,
4th
of July, Labor Day,
Columbus Day, Veteran's Day, Thanksgiving Day and Christmas Day, but Landlord reserves the right to reduce, add, and modify such holidays.
If
Tenant shall require air conditioning (during the air conditioning season) or heating or ventilating during any other time period, Landlord shall use Landlord's best efforts to furnish such services for the area or areas specified by written request of Tenant delivered to the Building Superintendent or the Landlord before 3:00 p.m. of the business day preceding the extra usage. Landlord shall charge Tenant for such extra-hours usage at reasonable rates customary for first-class office buildings in the Central Suburban 128 Market, and Tenant shall pay Landlord, as Additional Rent, upon receipt of billing therefor.
A.
Landlord shall provide electric power for a combined load of 3.0 watts per square foot of useable area for lighting and for office machines through standard receptacles for the typical office space.
B.
In
the event that Tenant has special equipment (such as computers and reproduction equipment) that requires either 3-phase electric power or any voltage other than 120 volts, or for any other usage in excess of 3.0 watts per square foot, Landlord may at its option require the installation of separate metering (Tenant being solely responsible for the costs of any such separate meter and the installation thereof) and direct billing to Tenant for the electric power required for any such special equipment.
C.
Landlord will furnish and install, at Tenant's expense, all replacement lighting tubes, lamps and ballasts required by Tenant. Landlord will clean lighting fixtures on a regularly scheduled basis at Tenant's expense.
Page
2
Provide passenger elevator service.
Provide hot water for lavatory pu rposes and cold water for drinking, lavatory and toilet purposes.
Landlord will provide a card access system at one entry door of the building.
Page J
EXHIBIT D-1 PREMISES A FLOOR PLAN
Page
I
EXHIBIT D-2 PREMISES B FLOOR PLAN
I
EXHIBIT E
FORM OF DECLARATION AFFIXING THE COMMENCEMENT DATES OF LEASE
THIS AGREEMENT made this day of , 200_, by and between
[LANDLORD]
(hereinafter "Landlord") and
[TENANT]
(hereinafter "Tenant").
W I T N E S S E T H T H A T:
1.
This Agreement is made pursuant to Section
[2.4]
of that certain Lease dated
[date],
between Landlord and Tenant (the
"
Lease").
2.
It
is hereby stipulated that the Lease Term commenced on
[commencement date],
(being the "Premises A Commencement Date" under the Lease), and shall end and expire on
[expiration date]
,
unless sooner terminated or extended, as provided for in the Lease
.
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3.
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It
is hereby further stipulated that the "Premises A Rent Commencement Date" occurred on
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4.
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It is hereby further stipulated that the
"
Premises B Commencement Date
"
occurred on
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, and the "Premises C Commencement Date
"
occurred on
_ WITNESS the execution hereof by persons hereunto duly authorized, the date first above written
.
LANDLORD:
[INSERT LL SIGNATURE BLOCK]
By:
Name:
Title:
TENANT:
ATTEST: [TENANT]
Title: Title:
Hereunto duly authorized
EXHIBIT F
FORMS OF LIEN WAIVERS
CONTRACTOR'S PARTIAL WAIVER AND SUBORDINATION OF LIEN
STATE OF
Date:
COUNTY Application for Payment No.:
OWNER: CONTRACTOR:
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1.
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Original Contract
Amount:
$
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2.
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Approved Change Orders:
$
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3.
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Adjusted Contract Amount:
$
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(line 1 plus line 2)
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6.
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Total Payable to Date:
$
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(line 4 less line 5)
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7.
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Less Previous Payments: $
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8.
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Current Amount Due: $
(line 6 less line 7)
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9.
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Pending Change Orders: $
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10.
Disputed Claims: $
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The undersigned who has a contract with
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for furnishing labor or materials or both labor and materials or rental equipment, appliances or tools for the erection, alteration, repair or removal of a building or structure or other improvement of real property known and identified as located in
(city or town), County,
and
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owned by , upon receipt of
($
)
in payment of an invoice/requisition/application for payment dated does hereby:
(a)
waive any and all liens and right of lien on such real property for labor or materials, or both labor and materials, or rental equipment, appliances or tools, performed or furnished through the following date (payment period), except for retainage, unpaid agreed or pending change orders, and disputed claims as stated above;
(b)
subordinate any and all liens and right of lien to secure payment for such unpaid, agreed or pending change orders and disputed claims, and such further labor or materials, or both labor and materials, or rental equipment, appliances or tools, except for retainage, performed or furnished at any time through the twenty-fifth day after the end of the above payment period, to the extent of the amount actually advanced by the above lender/mortgagee through such twenty-fifth day.
Signed under the penalties of perjury this
day of
, 20_.
WITNESS: CONTRACTOR:
Name: Title:
Name: Title:
SUBCONTRACTOR'S LIEN WAIVER
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General Contractor:
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Subcontractor:
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Owner: Project:
Total Amount Previously Paid:
$
Amount Paid This Date:
$
Retainage (Including This Payment) Held to Date:
$
In consideration of the receipt of the amount of payment set forth above and any and all past payments received from the Contractor in connection with the Project, the undersigned acknowledges and agrees that it has been paid all sums due for all labor, materials and/or equipment furnished by the undersigned to or in connection with the Project and the undersigned hereby releases, discharges, relinquishes and waives any and all claims, suits, liens and rights under any Notice of Identification, Notice of Contract or statement of account with respect to the Owner, the Project and/or against the Contractor on account of any labor, materials and/or equipment furnished through the date hereof.
The undersigned individual represents and warrants that he is the duly authorized representative of the undersigned, empowered and authorized to execute and deliver this document on behalf of the undersigned and that this document binds the undersigned to the extent that the payment referred to herein is received.
The undersigned represents and warrants that it has paid in full each and every sub-subcontractor, laborer and labor and/or material supplier with whom undersigned has dealt in connection with the Project and the undersigned agrees at its sole cost and expense to defend, indemnify and hold harmless the Contractor against any claims, demands, suits, disputes, damages, costs, expenses (including attorneys' fees), liens and/or claims of lien made by such sub-subcontractors, laborers and labor and/or material suppliers arising out of or in any way related to the Project.
Page J
Signed under the penalties
of
perjury as
of
this
day
of
,
20_.
SUBCONTRACTOR: Signature and Printed Name
of
Individual
Signing this Lien Waiver
WITNESS:
Name: Title:
Dated:
CONTRACTOR'S WAIVER OF CLAIMS AGAINST OWNER AND ACKNOWLEDGMENT OF FINAL PAYMENT
Commonwealth of Massachusetts Date: COUNTY OF
Invoice No.:
OWNER: CONTRACTOR: PROJECT:
I.
Original Contract Amou nt: $
2.
Approved Change Orders: $
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3.
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Adjusted Contract Amount: $
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4.
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Sums Paid on Account of Contract Amount: $
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5.
Less Final Payment Due: $
The undersigned being duly sworn hereby attests that when the Final Payment
Due as set forth above is paid in full by Owner, such payment shall constitute payment in full for all labor, materials, equipment and work in place furnished by the undersigned in connection with the aforesaid contract and that no further payment is or will be due to the undersigned.
The undersigned hereby attests that it has satisfied all claims against it for items, including by way of illustration but not by way of limitation, items of: labor, materials, insurance, taxes, union benefits, equipment, etc. employed in the prosecution of the work of said contract, and acknowledges that satisfaction of such claims serves as an inducement for the Owner to release the Final Payment Due.
The undersigned hereby agrees to indemnify and hold harmless the Owner from and against all claims arising in connection with its Contract with respect to claims for the furnishing of labor, materials and equipment by others. Said indemnification and hold harmless shall include the reimbursement of all actual attorney's fees and all costs and expenses of every nature, and shall be to the fullest extent permitted by law.
The undersigned hereby irrevocably waives and releases any and all liens and right of lien on such real property and other property of the Owner for labor or materials, or both labor and materials, or rental equipment, appliances or tools, performed or furnished by the undersigned, and anyone claiming by, through, or under the undersigned, in connection with the Project.
The undersigned hereby releases, remises and discharges the Owner, any agent of the Owner and their respective predecessors, successors, assigns, employees, officers, shareholders, directors, and principals, whether disclosed or undisclosed (collectively "Releasees") from and against any and all claims, losses, damages, actions and causes of action (collectively "Claims") which the undersigned and anyone claiming by, through or under the undersigned has or may have against the Releasees, including, without limitation, any claims arising in connection with the Contract and the work performed thereunder.
Notwithstanding anything to the contrary herein, payment to the undersigned of the Final Payment Due sum as set forth above, shall not constitute a waiver by the Owner of any of its rights under the contract including by way of illustration but not by way of limitation guarantees and/or warranties. Payment will not be made until a signed waiver is returned to Owner.
The undersigned individual represents and warrants that he/she is the duly authorized representative of the undersigned, empowered and authorized to execute and deliver this document on behalf of the undersigned.
Signed under the penalties of perjury as of this _ day of
,
.
----------
Corporation
By:
Name:
Title:
Hereunto duly authorized
COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK
On this _ day of , 20_, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it as for , a corporation/partnership voluntarily for its stated purpose.
NOTARY PUBLIC
My Commission Expires:
EXHIBIT G
FORM OF LETTER OF CREDIT
BANK OF Al-JERICA - CONFIDENTIAL PAGE: 1 DATE: •
IRRBVOCABLE STANDBY LBTTER OF CRBDIT NUMBER: ........
BENEFICIARY
BP FOURTH
AVENUE,
L.L.C. C/O BOSTON PROPERTIES LP
800 BOYLESTON STRBBT, SUITB 1900
BOSTON,
MA
02199-8103
ISSUI1"'G
BANK
BANK OF AMERICA,
N.A.
ONB FLEET WAY PA6-580-02-30
SCRANTON, PA 18507-1999
APPLICANT
CARE. COM, INC
201 JONES STREET.
SUITE
500 WALTHAM, MA 02451
AMOUNT
NOT BXCEEDING USO 2,093,000.00
NOT BXCEEPING TWO MILLION NINETY THREB THOUSAND
AND
00/lOO'S US DOLLA.RS
EXPIRATION
Ml\.Y 31, 2015
AT
OUR COUNTERS
GBNTLEMEN:
WE HEREBY ISSUB
THIS
IRREVOCABLE LRT'TF.R OF CREDIT NO. IN YOUR FAVOR, FOR ntE ACCOUNT OF APPLICANr, FOR UP TO AN AGGREGATE AMOUNT OF USO 'IBO MILLION NINBTY THRBE THOUSAND AND 00/100 (USD2,0,3,000.00) AVAILABLE BY YOUR DRAFT(S) DRAWN ON US AT SIGHT, ACCOMPANIED BY THE FOLLOWING:
l.
BENEFICIARY'S WRITI'RN, DATED STATEMENT ON BENEFICIARY' l.ETTERHEAD SIGNED BY
AN
At1THORIZED SIGNATORY READING:
QUOTE
BENEFICIARY IS PERMITTED TO DRAI ON THIS LBTTER OF CREDIT UNDER THE EXPRESS TBRMS OF THE LEASE, BY AND BETWEEN CARE.COM AND BP FOURTH
AVENUE, l..
L.C.
UNQUOTE
2. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT (S), IF
ANY.
PARTIAL DRAWINGS ARE PERMITTED.
IT IS A CONDITION OP THIS LETTER OF CREDIT THAT IT IS DEEMED TO BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR PERIOD(S) OF ONE YEAR RACH FROM THE CURRRNT EXPIRY DATE HEREOF, OR ANY FUTURE EXPIRATION DATE, UNLBSS AT LEAST SIXTY (60) DAYS PRIOR TO
l\.NY
EXPIRATION Dl\.TE, WE
NOTJ FY
YOU BY REGISTERED
MAH,
OR OVERNIGHT COURIER AT THE ABOVE
DRAFT
Bl\NK OF AMBRICA - CONFIDENTIAL
PAGE:
2
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THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER:
|
•
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LISTED ADDRF.SS THAT lB ELECT
NOT
TO CONSIDER THIS LETTER OF CREDIT EXTENDED
FOR
ANY SUCH ADDITIONAL PERIOD .
ANY SUCH NOTICE SHALL
BE
EFFECTIVB WHBN SENT BY US AND UPON SUCH NOTICE TO YOU,
YOU
MAY DRAW AT
ANY
TIME PRIOR TO
THE
THEN CURRENT EXPIRATION DATE.
UP
TO
THE
J'ULL AMOUNT THEN AVAILABLE HEREUI-<"DER, AGAINST YOUR DRAFT (S) DRAWN ON US ATSIGHT AND THE ORIGINAL OF THIS LETI'ER OF CREDIT
AND
ALL AMENDMENTS THERETO, ACCOMPANIBD BY YOUR STATEMENT, SIGNBD BY AN AUTHORIZED SIGNATORY, ON YOUR LETTERHEAD STATING THAT YOU ARE IN RECEIPT OF BANK OF AMERICA, N.A.'S NOTICE OF NONEXTHNSION UNDER LETTER OF CREDIT NO. AND THE APPLICANT 'S OBLIGATION TO YOU REMAINS .
THIS LfTER OF CREDIT IS TRANSFERABLE IN FULL AND NOT IN PART. ANY TRANSFER MADE HEREUNDER MUST CONFORM STRICTLY
TO
THE TBRMS HBRBOF
AND
TO
THE CONDITIONS OF RULE
6
OF THE INTERNATIONAL STANDBY PRACTICES (ISP98) FIXED BY THE INTERNATIONAi.CHAMBER OF COMMERCE, PUBLICATION NO.
590 .
SHOULD YOU WISH
TO
EFFECT
A
TRANSFER UNDER THIS CREDIT, SUCH TRANSFER WILL BE SUBJECT
TO
THE
RETURN
TO US OF THE ORIGINAL CREDIT
INSTRUMENT,
ACCOMPANIED
BY
OUR FORM OF TRANSFER, PROPERLY COMPLETED
FIND
SIGNED BY
AN
AUTHORIZED SIGNATORY OF YOUR FIRM. BEARING YOUR BANKERS STAMP AND SIGNATURE AUTHENTICAT ION. SUCH TRANSFER FORM IS AVAILABLE UPON REQUEST.
ALL
TRANSFER FEES ARE FOR THE ACCOUNT OF APPLICANT .
DRAFT (S) MUST STATE: "DRAWN UNDER BANK OF AMERICA, N.A. STA. BY L/C
DATED
DRAFTS AND DOCUMENTS MUST BB PRESENTED AT OUR OFPICB ADDRBSSBD: BANK OF AMERICA, N.A., l PLEBT WAY, SCRANTON, PA 18507-1999, ATTN: GTO · STANDBY DEPT.
NB HEREBY AGREE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTBR OF CRBDIT SHALL BB DULY HONORBD UPON DUE PRESENTATION TO US.
THIS LETTER OF CREDIT IS SUBJBC'l'TO THE INTERNATIONAL STA.'.n>BY PRACTICES (ISP98), THE INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590
Fu'n>
THE LAWS OF 'IHE COMMONWEALTH OF MASSACHUSETTS. IN THE EVENT OF A CONFLICT, THE LAllS OF THE COMMONWEJ\LTH OF MASSACHUSETTS WILL PREVAIL.
IF YOU REQUIRE ANY ASSIS'IANCE OR HAVE ANY QUESTIONS REGARDING THIS
Page
2
BANK OF AMERICA - CONFIDBNTIAL
Page J
PACE : l
---
---
.
DRAFT (S) MUST STATE: "DRAWN UNDER BANK OF AMERICA, N.A. STA. BY L/C
DATED
DRAFTS AND DOCUMENTS MUST BB PRESENTED AT OUR OFPICB ADDRBSSBD: BANK OF AMERICA, N.A., l PLEBT WAY, SCRANTON, PA 18507-1999, ATTN: GTO · STANDBY DEPT.
NB HEREBY AGREE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTBR OF CRBDIT SHALL BB DULY HONORBD UPON DUE PRESENTATION TO US.
THIS LETTER OF CREDIT IS SUBJBC'l'TO THE INTERNATIONAL STA.'.n>BY PRACTICES (ISP98), THE INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590
Fu'n>
THE LAWS OF 'IHE COMMONWEALTH OF MASSACHUSETTS. IN THE EVENT OF A CONFLICT, THE LAllS OF THE COMMONWEJ\LTH OF MASSACHUSETTS WILL PREVAIL.
IF YOU REQUIRE ANY ASSIS'IANCE OR HAVE ANY QUESTIONS REGARDING THIS
Page
2
EXHIBIT I
NOTICE OF LEASE
Pursuant to Massachusetts General Laws, Chapter 183, Section 4, notice is hereby given of the following described Lease
:
Landlord: BP Fourth Avenue, LLC, a Delaware limited liability company Tenant: Care.com, Inc., a Delaware corporation
Date of Lease:
_
Landlord's Property: The Building known and numbered 77 CityPoint
,
Waltham, Middlesex County, Massachusetts, located on land more particularly described in Exhibit A attached hereto.
Lessor's Title Reference: Middlesex South District Registry of Deeds, Book
Page _.
Leased Premises: A portion of the fourth, fifth and sixth floors of the Building in accordance with the floor plans annexed to the Lease as Exhibit D-1, D-2 and D-3.
Term: One hundred and twenty (120) months from the Premises A Rent Commencement Date (plus the period from the Premises A Commencement Date through the Premises A Rent Commencement Date), unless extended or sooner terminated as provided in this Lease, plus one extension option of one period of ten years.
This Notice may be executed in counterparts which shall together constitute a single instrument. In the event of any conflict between the terms of the Lease and the terms of this Notice, the terms of the Lease shall control.
EXECUTED as a sealed instrument as of
----
, 2014.
[Signatures begin on the following page.]
LESSOR:
BP Fourth Avenue, LLC, a Delaware limited liability company By: Boston Properties Limited Partnership,
its sole member
By:Boston Properties, Inc., its general partner
By:
_ David C. Provost
Senior Vice President
Commonwealth of Massachusetts
County of Suffolk
On this _ day of
, 2014, before me, the undersigned notary public, personally appeared David
C. Provost, proved to me through satisfactory evidence of identification, which was personal knowledge, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose as Senior Vice President of Boston Properties, Inc., the general partner of Boston Properties Limited Partnership, the sole member of BP Fourth Avenue LLC, a Delaware limited liability company.
Notary Public
My Commission Expires:
_
LESSEE:
CARE, COM, INC.,
a Delaware corporation
By:
_
Name:
-------
Title: President
By:
_ Name:
Title: Treasurer
Commonwealth of Massachusetts
County of
On this day of
, 2014, before me, the undersigned notary public, personally appeared Sheila Marcelo, proved to me through satisfactory evidence of identification, which was
, to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose as President of Care.com, Inc., a Delaware corporation.
Notary Public
My Commission Expires:
_
EXHIBIT
J
BROKER DETERMINATION
BROKER DETERMINATION OF PREVAILING MARKET RENT
Where in the Lease to which this Exhibit
J
is attached provision is made for a Broker Determination of Prevailing Market Rent, the following procedures and requirements shall apply:
1.
Tenant's Request. Tenant shall send a notice to Landlord by the time set for such notice in the applicable section of the Lease, requesting a Broker Determination of the Prevailing Market Rent, which notice to be effective must (i) make explicit reference to the Lease and to the specific section of the Lease pursuant to which said request is being made, (ii) include the name of a broker selected by Tenant to act for Tenant, which broker shall be affiliated with a major Boston commercial real estate brokerage firm selected by Tenant and which broker shall have at least ten (10) years' experience dealing in properties of a nature and type generally similar to the Building located in the Central Suburban 128 Market, and (iii) explicitly state that Landlord is required to notify Tenant within thirty (30) days of an additional broker selected by Landlord.
2.
Landlord's Response. Within thirty (30) days after Landlord's receipt of Tenant's notice requesting the Broker Determination and stating the name of the broker selected by Tenant, Landlord shall give written notice to Tenant of Landlord's selection of a broker having at least the affiliation and experience referred to above
.
3.
Selection of Third Broker. Within ten (10) days thereafter the two (2) brokers so selected shall select a third such broker also having at least the affiliation and experience referred to above.
4.
Rental Value Determination. Within thirty (30) days after the selection of the third broker, the initial two brokers shall submit their respective positions with respect to the calculation of the fair market rental for the Extended Term to the third broker. Within fourteen (14) days after receipt of such submissions, the third broker shall select which of the two submissions most closely reflects the annual fair market rental value of the Premises for the Extended Term and shall give notice of such selection to Landlord and Tenant and the annual fair market rental value as so determined shall be referred to as the Prevailing Market Rent. The third arbitrator's determination shall be binding upon Landlord and Tenant. Such annual fair market rental value determination shall take into account all relevant factors and (x) may include provision for annual increases in rent during said term if so determined, (y) shall take into account the as-is condition of the Premises and (z) shall take account of, and be expressed in relation to, the tax and operating cost bases and provisions for paying for so-called tenant electricity as contained in the Lease.
5.
Costs. Each party shall pay the costs and expenses of the broker selected by it and each shall pay one half ( 112) of the costs and expenses of the Third Broker.
6.
Failure to Select Broker or Failure of Broker to Serve.
If
Tenant shall have requested a Broker Determination and Landlord shall not have designated a broker within the time period provided therefor above, then Tenant's Broker shall alone make the determination of Prevailing Market Rent in writing to
Landlord and Tenant within thirty (30) days after the expiration of Landlord's right to designate a broker hereunder.
If
Tenant and Landlord have both designated brokers, but the two brokers so designated do not, within a period of ten (10) days after the appointment of the second broker, agree upon and designate the Third Broker willing so to act, the Tenant, the Landlord or either broker previously designated may request the Boston Bar Association (or such organization as may succeed to the Boston Bar Association) to designate the Third Broker willing so to act and a broker so appointed shall, for all purposes, have the same standing and powers as though he had been seasonably appointed by the brokers first appointed. In case of the inability or refusal to serve of any person designated as a broker, or in case any broker for any reason ceases to be such, a broker to fill such vacancy shall be appointed by the Tenant, the Landlord, the brokers first appointed or the Boston Bar Association as the case may be, whichever made the original appointment, or if the person who made the original appointment fails to fill such vacancy, upon application of any broker who continues to act or by the Landlord or Tenant such vacancy may be filled by the Boston Bar Association and any broker so appointed to fill such vacancy shall have the same standing and powers as though originally appointed.
EXHIBIT K
EXHIBIT L INTENTIONALLY OMITTED
EXHIBIT M
LOBBY SIGN
EXHIBIT N BUILDING SIGN
EXHIBIT O
MONUMENT SIGN
SUBLEASE BETWEEN
ORACLE AMERICA, INC. AND
CARE.COM, INC.
77 City Point Waltham, Massachusetts
Fourth (4th) Floor
SUBLEASE
THIS SUBLEASE
("Sublease")
is entered into as of July
_2.L,
2014 (the
"Effective Date"),
by and between ORACLE AMERICA, INC., a Delaware corporation
("Sublandlord")
and CARE.COM, INC., a Delaware corporation
("Subtenant"),
with reference to the following facts:
A. Pursuant to that certain Lease dated February 13, 2008 (the
"Master Lease"),
A.P. Fourth Avenue, L.L.C.
("Landlord"),
as Landlord, leases to Sublandlord (successor in interest to Phase Forward, Inc.), as Tenant, certain space (the
"Master Lease Premises")
consisting of 165,129 rentable square feet on the first (1st), second (2nd), third (3rd), fourth (4th) and sixth (6th) floors of the Building located at 77 City Point, Waltham, Massachusetts (the
"Building").
B.
Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes to sublease to Subtenant, that portion of the Master Lease Premises consisting of the entire fourth (4th) floor and containing approximately 36,395 rentable square feet, said space being more particularly identified and described on the floor plan attached hereto as
Exhibit
A and incorporated herein by reference (the
"Subleased Premises").
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows:
1.
S
ublease. Sublandlord hereby subleases to Subtenant and Subtenant hereby subleases from Sublandlord for the term, at the rental, and upon all of the conditions set forth herein, the Subleased Premises.
(a)
G
enerally. The term of this Sublease (the
"Term")
shall commence on the date (the
"Commencement Date")
that is the earlier to occur of (i) January 1, 2015 (but in no event prior to the date on which Subtenant has received possession of the Premises in the Delivery Condition), and (ii) the date upon which Subtenant commences business operations in the Subleased Premises; provided, however, that Sublandlord must procure Landlord's consent to this Sublease (the
"Consent'',
and the date upon which Sublandlord procures the Consent being the
"Consent Date")
and, without limitation of paragraph (d) below, if Landlord has not issued the Consent prior to January 1, 2015, the Term shall not commence until the Consent Date has occurred. The Term shall end on February 15, 2019 (the
"Expiration Date"),
unless sooner terminated or extended pursuant to any provision hereof (i.e., pursuant to Section 2(b) below in the case that Subtenant enters into a Direct Occupancy Agreement with Landlord). Upon the determination of the Commencement Date, Sublandlord and Subtenant will enter into a letter agreement in the form of
Exhibit B
attached hereto.
(b)
Automatic E
xtension. Notwithstanding the Expiration Date set forth in Section 2(a) above, the Term shall be automatically extended through February 28, 2019, the scheduled date of expiration of the Master Lease, which shall be deemed to be the Expiration Date for all purposes of this Sublease if (i) there then exists no Event of Default by
Subtenant, and (ii) Subtenant has entered into an agreement with Landlord providing for Subtenant to occupy the Subleased Premises on a "direct" basis beyond the Expiration Date (a "Direct Occupancy Agreement") and (iii) has notified Sublandlord of the existence of such Direct Occupancy Agreement at least three (3) months prior to the initially scheduled Expiration Date, and (iv) if required by Sublandlord, has delivered to Sublandlord, prior to the initially scheduled Expiration Date, a release executed by Landlord, in form and substance reasonably satisfactory to Sublandlord, pursuant to which Sublandlord is released from any obligation to remove installations, alterations, additions, partitions or fixtures from the Subleased Premises upon the expiration of the Master Lease. Further, in the event that Subtenant enters into a Direct Occupancy Agreement with Landlord pursuant to this Section 2(b), Sublandlord hereby agrees that Sublandlord shall not exercise the extension option granted to Sublandlord pursuant to Section 8.20 of the Master Lease in any way that would interfere with Subtenant's ability to remain in the Subleased Premises pursuant to the Direct Occupancy Agreement after the expiration of the Term.
(c)
Early Access. Subtenant and Subtenant's representatives shall have the right to enter the Subleased Premises during all Building Hours from and after the later to occur of (i) August 1, 2014, (ii) the Consent Date and (iii) the date upon which Subtenant delivers to Landlord (A) the pre-paid Base Rent required pursuant to Section 3.l (a) below, (B) the Security Deposit and (C) evidence of Subtenant's procurement of all insurance coverage required hereunder (the date upon which Subtenant first has such access to the Subleased Premises being referred to herein as the "Early Access Date") for the sole purposes of constructing Subtenant's improvements and installing Subtenant's personal property and equipment, furniture, fixtures and voice and data cabling, all subject to the terms, conditions and requirements of the Master Lease. All of the rights and obligations of the parties under this Sublease (other than Subtenant's obligation to pay Base Rent, but expressly including without limitation Subtenant's obligation to pay excess utility charges, carry insurance, and indemnification obligations) shall commence upon the Early Access Date. Subtenant shall coordinate such entry with Sublandlord, and such entry shall be made in compliance with all terms and conditions of this Sublease, the Master Lease and the rules and regulations attached to the Master Lease.
(d)
Consent of L
andlord. Promptly following the execution and delivery hereof, Sublandlord shall submit this Sublease to Landlord and use its commercially reasonable efforts to obtain the Consent. Subtenant hereby agrees that it shall cooperate in good faith with Sublandlord (at no cost or expense to Subtenant) in the procurement of the Consent. The Consent shall be in form and substance reasonably acceptable to Subtenant.
If
Landlord shall not have executed and delivered the Consent on or before forty-five (45) days from the date of this Sublease, either party shall have the right to cancel this Sublease on fifteen (15) days' written notice to the other party (the "Cancellation Notice") and on the date which is fifteen (15) days after the giving of such Cancellation Notice, this Sublease shall be deemed canceled and of no further force or effect and neither party shall have any liability or obligation to the other in respect thereof. Notwithstanding the foregoing, if within fifteen (15) days after the giving of the Cancellation Notice, the Consent is received, then the Cancellation Notice shall be deemed null and void and this Sublease shall continue in full force and effect.
3.1
Rent P
ayments. Subtenant shall pay to Sublandlord as base rent for the Subleased Premises during the Term
("Base Rent")
the following:
|
|
|
|
|
|
|
Months of Term
|
Rate Per Rentable Square Foot Per Annum
|
Monthly Base Rent
|
|
Month 1 - Month 12
|
$25.50
|
$77,339.38
|
|
Month 13 - Month 24
|
$26.50
|
$80,372.29
|
|
Month 25 - Month 36
|
$27.50
|
$83,405.21
|
|
Month 36 - Month 48
|
$28.50
|
$86,438.13
|
|
Month 48 - Expiration Date
|
$29.50
|
$89,471.04
|
Base Rent shall be paid on the first day of each month of the Term, except that Subtenant shall pay one
(1)
month's Base Rent to Sublandlord upon execution of this Sublease and delivery of this Sublease to Sublandlord; said pre-paid Base Rent will be applied to the first (1st) month's Base Rent due and payable hereunder.
If
the Term does not begin on the first day of a calendar month or end on the last day of a month, the Base Rent and Additional Rent (hereinafter defined) for any partial month shall be prorated by multiplying the monthly Base Rent and Additional Rent by a fraction, the numerator of which is the number of days of the partial month included in the Term and the denominator of which is the total number of days in the full calendar month.
All Rent (hereinafter defined) shall be payable in lawful money of the United States, by regular bank check of Subtenant, to Sublandlord at the following address:
1001 Sunset Boulevard
Rocklin, CA 95765
Attn: Lease Administration
or to such other persons or at such other places as Sublandlord may designate in writing. At Subtenant's election, all Rent and other sums payable under this Sublease may be paid by electronic funds transfer, direct deposit or wire transfer to Sublandlord's account. Sublandlord will provide any reasonably necessary information and cooperation to effect such payment method.
(a)
Definitions. For purposes of this Sublease and in addition to the terms defined elsewhere in this Sublease, the following terms shall have the meanings set forth below:
pursuant to Section 3.2(b) below.
(1)
"Additional Rent"
shall mean the sums payable
(2)
"Operating Costs"
shall mean Landlord's Operating Expenses (as defined in Section 2.6 of the Master Lease) payable by Sublandlord to Landlord pursuant to the Master Lease.
(3)
"Taxes"
shall mean Landlord's Tax Expenses (as defined in Section 2.7 of the Master Lease) payable by Sublandlord to Landlord pursuant to the Master Lease.
(4)
"Base Year"
shall mean: (x) with respect to Operating Expenses, the calendar year 2015 and (y) with respect to Landlord's Tax Expenses, the fiscal year ending June 30, 2015.
(5)
"Base Operating Costs"
shall mean Operating Costs payable by Sublandlord to Landlord for the Master Lease Premises with respect to the Base Year.
(6)
"Base Taxes"
shall mean Taxes payable by Sublandlord to Landlord for the Master Lease Premises with respect to the Base Year.
(7)
"Rent"
shall mean, collectively, Base Rent, Additional Rent, and all other sums payable by Subtenant to Sublandlord under this Sublease, whether or not expressly designated as "rent", all of which are deemed and designated as rent pursuant to the terms of this Sublease.
(8)
"Subtenant's Percentage Share"
shall mean 22.04%, which is the quotient obtained by dividing the area of the Subleased Premises by the area of the Master Lease Premises.
(b)
Payment of Additional R
ent. In addition to the Base Rent payable pursuant to Section 3.1 above, from and after the Commencement Date and for each year of the Term, at the expiration of the Base Year, Subtenant, as Additional Rent, shall pay Subtenant's Percentage Share of the amount by which Operating Costs or Taxes payable by Sublandlord for the then current year exceed Base Operating Costs or Base Taxes, as applicable. Sublandlord shall give Subtenant written notice of Sublandlord's estimate of the amount of Additional Rent (which shall be based on the estimated payments then being required by Landlord for the year in question under the Master Lease) per month payable pursuant to this Section 3.2(b) for each year after the applicable Base Year promptly following Sublandlord's receipt of Landlord's estimate of the Operating Costs and Taxes payable under the Master Lease. Thereafter, the Additional Rent payable pursuant to this Section 3.2(b) shall be determined and adjusted in accordance with the provisions of Section 3.2(c) below.
(c)
P
rocedure. The determination and adjustment of Additional Rent payable hereunder shall be made in accordance with the following procedures:
( l )
Delivery of Estimate; P
ayment. Upon receipt of a statement from Landlord specifying the estimated Operating Costs to be charged to Sublandlord under the Master Lease with respect to each calendar year, or as soon after receipt of such statement as practicable, Sublandlord shall give Subtenant written notice of its estimate of Additional Rent payable under Section 3.2(b) for the ensuing calendar year, which estimate shall be prepared based on the estimate received from Landlord (as Landlord's estimate may change from time to time), together with a copy of the statement received from Landlord. On or before the first day of each month during each calendar year, Subtenant shall pay to Sublandlord as Additional Rent one-twelfth (I/12th) of such estimated amount together with the Base Rent.
(2) Sublandlord's Failure to Deliver Estimate. In the event Sublandlord's notice set forth in Subsection 3.2(c)(l ) is not given on or before December of the calendar year preceding the calendar year for which Sublandlord's notice is applicable, as the case may be, then until the calendar month after such notice is delivered by Sublandlord, Subtenant shall continue to pay to Sublandlord monthly, during the ensuing calendar year, estimated payments equal to the amounts payable hereunder during the calendar year just ended. Upon receipt of any such post-December notice Subtenant shall (i) commence as of the immediately following calendar month, and continue for the remainder of the calendar year, to pay to Sublandlord monthly such new estimated payments and (ii) if the monthly installment of the new estimate of such Additional Rent is greater than the monthly installment of the estimate for the previous calendar year, pay to Sublandlord within thirty (30) days of the receipt of such notice an amount equal to the difference of such monthly installment multiplied by the number of full and partial calendar months of such year preceding the delivery of such notice.
(d)
Year End R
econciliation. Following the receipt by Sublandlord of an Operating Expense Statement (as defined in Section 2.6 of the Master Lease) from Landlord with respect to each calendar year, Sublandlord shall deliver to Subtenant a statement of the adjustment to be made pursuant to Section 3.2 above for the calendar year just ended, together with a copy of any Operating Expense Statement received by Sublandlord from Landlord.
If
on the basis of such statement Subtenant owes an amount that is less than the estimated payments actually made by Subtenant for the calendar year just ended, Sublandlord shall credit such excess to the next payments of Rent coming due or, if the term of this Sublease is about to expire, promptly refund such excess to Subtenant.
If
on the basis of such statement Subtenant owes an amount that is more than the estimated payments for the calendar year just ended previously made by Subtenant, Subtenant shall pay the deficiency to Sublandlord within thirty (30) days after delivery of the statement from Sublandlord to Subtenant.
(e)
Audit. Section 2.6.1 of the Master Lease is hereby incorporated in this Sublease, as amended by this Section 3.2(e). Pursuant to Section 2.6.1 of the Master Lease, Sublandlord has the right to examine Landlord's books and records for any period for which Landlord has given Sublandlord a statement of operating and tax expenses.
If,
within thirty (30) days after receipt of an Operating Expense Statement from Sublandlord, Subtenant notifies Sublandlord that Subtenant desires to review Landlord's records and identifies for Sublandlord those items Subtenant wishes to challenge, Sublandlord shall forward to Landlord within the time period set forth in Section 2.6. l Subtenant's challenge, and Sublandlord further agrees to exercise the review rights granted to Sublandlord under Section 2.6.1 with respect thereto; provided, that the following terms and conditions are met: (i) Subtenant has not received notice from Sublandlord of a default under this Sublease which has occurred and is continuing at the time of making such request, and (ii) Subtenant shall be responsible for all of the out-of pocket costs and expenses paid by Sublandlord to perform such review and to comply with the results of such review, which costs and expenses shall be paid by Subtenant no later than thirty
(30) days after receipt of written demand therefor. Notwithstanding the foregoing, Sublandlord shall have no obligation or liability to Subtenant if Landlord disputes the result of Subtenant's challenge, other than pursuing arbitration as provided in Section 2.6.1(7) of the Master Lease if so elected by Sublandlord in its sole but reasonable discretion; provided, however, if Sublandlord so elects to arbitrate, Sublandlord and Subtenant shall each bear the cost of such arbitration in proportion to their respective interests in the Subleased Premises and Master Lease Premises, as applicable. Further, Sublandlord shall have the right to require Subtenant to deposit with
Sublandlord an amount equal to Subtenant's share of the arbitration costs before such arbitration commences. Sublandlord and Subtenant shall share in any reduction, refund or credit obtained or realized in connection with any such examination or arbitration based on their respective interests in the Subleased Premises and Master Lease Premises, as applicable.
(t)
S
urvival. The expiration or earlier termination of this Sublease shall not affect the obligations of Sublandlord and Subtenant pursuant to Subsection 3.2(d), and such obligations shall survive, remain to be performed after, any expiration or earlier termination of this Sublease.
3.3
Electricity C
osts. The Subleased Premises are served by a "Main Check Meter," as provided in Section 2.8 of the Master Lease. In addition to the Base Rent, Subtenant shall also pay, as additional Rent, the portion of Tenant's Electricity Payment (defined in Section 2.8(B)(ii) of the Master Lease) allocable to the Subleased Premises, as determined by the results of Landlord's reading of the Supplemental Check Meter(s) and any "dedicated" Main Check Meter serving the Subleased Premises. Any such amounts shall be due within thirty (30) days following Sublandlord's delivery of an invoice therefore to Subtenant (such invoice to include reasonable back-up documentation supporting the invoice, including Landlord's invoice to Sublandlord).
4.1
G
enerally. Concurrently with Subtenant's execution of this Sublease, Subtenant shall deposit with Sublandlord the sum of $357,884.16 (the
"Security Deposit").
The Security Deposit shall be held by Sublandlord as security for the faithful performance by Subtenant of all the provisions of this Sublease to be performed or observed by Subtenant.
If
Subtenant fails to pay rent or other sums due hereunder, or otherwise defaults with respect to any provisions of this Sublease, and such failure or default continues uncured beyond the expiration of any applicable notice, cure and/or grace periods
(i.e.,
an Event of Default exists pursuant to Section 8 below), Sublandlord may use, apply or retain all or any portion of the Security Deposit for the payment of any rent or other sum in default or for the payment of any other sum to which Sublandlord may become obligated by reason of Subtenant's default, or to compensate Sublandlord for any loss or damage which Sublandlord may suffer thereby.
If
Sublandlord so uses or applies all or any portion of the Security Deposit, Subtenant shall within ten (10) days after demand therefor deposit cash with Sublandlord in an amount sufficient to restore the Security Deposit to the full amount thereof and Subtenant's failure to do so shall be a material breach of this Sublease.
If
no Event of Default by Subtenant then exists (nor any failure to timely pay any rent or other sum due hereunder, nor any default or breach by Subtenant hereunder, of which failure, breach or default Subtenant has received written notice) the Security Deposit, or so much thereof as has not theretofore been applied by Sublandlord, shall be returned, without interest, to Subtenant (or, at Sublandlord's option, to the last assignee, if any, of Subtenant's interest hereunder) within forty five (45) days following the expiration of the Term, and, provided that Subtenant has not entered into a Direct Occupancy Agreement with Landlord, after Subtenant has vacated the Subleased Premises, in addition to any other deductions Sublandlord is entitled to make pursuant to the terms hereof, Sublandlord shall have the right to make a good faith estimate of any unreconciled Operating Costs for which Subtenant would be responsible as of the date of expiration, and to withhold any anticipated shortfall from the Security Deposit pending final reconciliation (at which point the parties shall make a final
adjustment). No trust relationship is created herein between Sublandlord and Subtenant with respect to the Security Deposit.
4.2
Letter of C
redit. Notwithstanding the foregoing, the Security Deposit may be provided by Subtenant in the form of an unconditional, irrevocable, transferable standby letter of credit (the
"Initial Letter of Credit")
substantially in the form attached hereto as
Exhibit
C (or such other form as may be reasonably acceptable to Sublandlord) and issued by a financial institution (the
"Issuing Bank")
acceptable to Sublandlord in its good faith discretion (Sublandlord hereby approving Bank of America). Sublandlord hereby approves Bank of America N.A. as the initial Issuing Bank. Subtenant shall cause the Letter of Credit to be continuously maintained in effect (whether through a Replacement Letter of Credit (defined below), amendment, renewal or extension) through the date (the
"Final Letter of Credit Expiration Date")
that is the later to occur of (i) the date that is forty-five (45) days after the scheduled Expiration Date of the Term and (ii) provided that Subtenant has not entered into a Direct Occupancy Agreement with Landlord, the date that is forty-five (45) days after Subtenant vacates the Subleased Premises and completes any restoration or repair obligations.
(a)
Without prejudice to any other remedy available to Sublandlord under this Sublease or at law, Sublandlord may draw upon the Initial Letter of Credit or any Replacement Letter of Credit on or after the occurrence of either: (i) an uncured Event of Default under this Sublease; (ii) any failure by Subtenant to deliver to Sublandlord a Replacement Letter of Credit as and when required pursuant to the provisions of Section 4.2(b);
(iii)
an uncured failure by Subtenant to perform one or more of its obligations under this Sublease and the existence of circumstances in which Sublandlord is enjoined or otherwise prevented by operation of law from giving to Subtenant a written notice which would be necessary for such failure of performance to constitute an Event of Default, or (iv) the appointment of a receiver to take possession of all or substantially all of the assets of Subtenant, or an assignment of Subtenant for the benefit of creditors, or any action taken by Subtenant under any insolvency, bankruptcy, reorganization or other debtor relief proceedings, whether now existing or hereafter amended or enacted.
(b)
Subtenant shall deliver to Sublandlord a new letter of credit (a
"Replacement Letter of Credit")
(the Initial Letter of Credit and/or any Replacement Letter of Credit being referred to herein as a
"Letter of Credit")
at least thirty (30) days prior to the expiry date of the Initial Letter of Credit or of any Replacement Letter of Credit held by Sublandlord. Each Replacement Letter of Credit delivered by Subtenant to Sublandlord shall: (i) be issued by a banking institution acceptable to Sublandlord in its good faith discretion; (ii) be in substantially the same form as the letter of credit attached to this Sublease as Exhibit C; (iii) bear an expiry date not earlier than one ( 1) year from the date when such Replacement Letter of Credit is delivered to Sublandlord (or, if earlier, 45 days after the expiration date hereof); and
(iv)
be in the required amount of the Security Deposit. Upon the delivery to Sublandlord of a Replacement Letter of Credit as described in this Section 4.2(b), Sublandlord shall promptly return to Subtenant the Initial Letter of Credit or any previous Replacement Letter of Credit then held by Sublandlord.
(c)
All proceeds of a draw upon any Letter of Credit rightfully made by Sublandlord shall constitute Sublandlord's sole and separate property (and not Subtenant's property or the property of Subtenant's bankruptcy estate) and Sublandlord may
immediately upon any draw permitted hereunder (and without notice to Subtenant except as may be expressly provided in this Sublease) apply or offset the proceeds of the Letter of Credit:
(i) against any Rent payable by Subtenant under this Sublease that is not paid when due following any applicable notice and cure periods; (ii) against all losses and damages that Sublandlord has suffered as a result of Subtenant's failure to comply with one or more provisions of this Sublease, including any post-termination defaults; provided, however, that prior to the termination of this Sublease, Sublandlord shall provide notice of any such failure if required under this Sublease and if Sublandlord is not legally prohibited from doing so; (iii) against any costs actually incurred by Sublandlord for which Sublandlord is permitted to be reimbursed pursuant to this Sublease (including attorneys' fees) as a result of such failure; and (iv) against any other amount that Sublandlord may spend or become obligated to spend by reason of Subtenant's default for which Sublandlord shall be entitled to seek reimbursement in accordance with this Sublease; provided, however, that prior to the termination of this Sublease, Sublandlord shall provide notice of any such default if required under this Sublease and if Sublandlord is not legally prohibited from doing so.
{d)
If
Sublandlord conveys or transfers its interest in the Subleased Premises, Sublandlord shall assign its interest in this Sublease and: (i) any Letter of Credit shall be transferred to Sublandlord's successor; (ii) Sublandlord shall be released and discharged from any further liability to Subtenant with respect to such Letter of Credit; and (iii) any Replacement Letter of Credit thereafter delivered by Subtenant shall state the name of the successor to Sublandlord as the beneficiary of such Replacement Letter of Credit and shall contain such modifications in the text of the Replacement Letter of Credit as are required to appropriately reflect the transfer of the interest of Sublandlord in the Premises.
(e)
If,
as result of any application or use by Sublandlord of all or any part of the Letter of Credit, the amount of the Letter of Credit plus any cash proceeds previously drawn by Sublandlord and not applied pursuant to this Section 4.2 shall be less than the required amount of the Security Deposit, Subtenant shall, within ten (10) days after written notice thereof from Sublandlord, provide Sublandlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement or amended letter of credit), and any such additional (or replacement or amended) letter of credit shall comply with all of the provisions of this Section 4.2; if Subtenant fails to timely comply with the foregoing, then notwithstanding anything to the contrary contained in this Sublease, the same shall constitute a default by Subtenant without the necessity of additional notice or the passage of additional grace periods. Subtenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or any part thereof and that neither Sublandlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.
4.3
Security Deposit R
eductions. Notwithstanding any contrary provision of this Sublease, provided that the Reduction Conditions Precedent (defined below) have all been satisfied as of the applicable Security Reduction Date (defined below), the amount of Security Deposit required under this Sublease shall be reduced by the Security Reduction Amount (defined below), and thereafter the Security Reduction Amount shall be credited against Base Rent next due or, at Sublandlord's election, shall be refunded to Subtenant. The remaining Security Deposit shall continue to be held by Sublandlord in accordance with this Sublease and from and all references in this Sublease to Security Deposit shall mean such remaining amount of the Security Deposit only (the
"Remaining Security").
Amount"
shall mean:
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(1)
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"Security Reduction Date" and "Security Reduction
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(A)
The date that is the first (1st) day of the twenty-fourth (24th) month of the Term, and provided the Reduction Conditions Precedent are then satisfied, the amount of the Security Deposit under this Sublease shall be reduced by Eighty-Nine Thousand Four Hundred Seventy-One and 04/100 Dollars ($89,471.04) (the
"Security Reduction Amount");
and
(B)
The date that is the first (1st) day of the thirty-sixth (36th) month of the Term, and provided the Reduction Conditions Precedent are then satisfied, the amount of Security Deposit under this Sublease shall be reduced by Eighty-Nine Thousand Four Hundred Seventy-One and 04/100 Dollars ($89,471.04) (the
"Security Reduction Amount").
Notwithstanding the foregoing, in no event shall the Security be reduced to a sum which is less than $178,942.08 .
(2)
The
"Reduction Conditions Precedent"
are that:
(i) as of the applicable Security Reduction Date there exists no act or omission on the part of Subtenant, of which Subtenant has been given notice and which, with the passage of time or the giving of notice, or both, would constitute an Event of Default, and if such exists, then the right to the Security Reduction is waived unless and until the Event of Default is timely cured, and (ii) there has not been more than one
(1)
Event of Default by Subtenant under the Sublease at any time on or before the applicable Security Reduction Date; provided, however, that if Subtenant shall thereafter cure such default within the applicable cure period, then the Reduction Condition Precedent shall be deemed to have been met.
(3)
If
the Security Deposit is in the form of a Letter of Credit, reductions in the amount of the Security Deposit will be evidenced by Subtenant delivering to Sublandlord a Replacement Letter of Credit or an amendment to the existing Letter of Credit in the Remaining Security after giving effect to the then applicable Security Reduction Amount in accordance with the terms of this Section 4.3. In the event (x) the Reduction Conditions Precedent have each been satisfied, and (y) Subtenant timely tenders the Replacement Letter of Credit or amended Letter of Credit to Sublandlord in the form required herein, then and in such event, Sublandlord shall exchange the Letter of Credit then held by Sublandlord for the Replacement Letter of Credit or amended Letter of Credit tendered by Subtenant.
5.1
U
se. The Subleased Premises shall be used and occupied only for the Permitted Use set forth in Section 1.1 of the Master Lease, and for no other use or purpose.
5.2
Compliance with Master L
ease. Subtenant will occupy the Subleased Premises in accordance with the terms of the Master Lease (to the extent applicable to
the Subleased Premises) and will not suffer to be done, or omit to do, any act which is reasonably likely to result in a violation of or a default under the Master Lease, or render Sublandlord liable for any damage, or out-of-pocket charge or expense thereunder unless reimbursed by Subtenant
hereunder. Subject to applicable waivers of claims and rights of subrogation set forth herein and in Section 8.19 of the Master Lease, Subtenant will indemnify, defend protect and hold Sublandlord harmless from and against any loss, cost, damage or liability (including attorneys' fees) of any kind or nature suffered or incurred by Sublandlord arising out of, by reason of, or resulting from, Subtenant's failure to perform or observe any of the terms and conditions of the Master Lease or this Sublease. Any other provision in this Sublease to the contrary notwithstanding, Subtenant shall pay to Sublandlord as Rent hereunder any and all sums which Sublandlord may be required to pay the Landlord arising out of a request by Subtenant for, or the use by Subtenant of, additional or over-standard Building services from Landlord (for example, but not by way of limitation, charges associated with after-hour HVAC usage and over standard electrical charges).
5.3
Landlord's O
bligations. Subtenant agrees that Sublandlord shall not be required to perform any of the covenants, agreements and/or obligations of Landlord regarding services to be provided or other obligations to be performed by Landlord under the Master Lease as distinct from obligations of Sublandlord under this Sublease, and, insofar as any of the covenants, agreements and obligations of Sublandlord hereunder are required to be performed under the Master Lease by Landlord thereunder, Subtenant acknowledges and agrees that Sublandlord shall be entitled to look to Landlord for such performance. In addition, Sublandlord shall have no obligation to perform any repairs that are the obligation of Landlord under the Master Lease. Except as and to the extent that Landlord provides a rent abatement credit to Sublandlord (with respect to the Subleased Premises) pursuant to Section 4.2(C) of the Master Lease, and except for matters arising from the gross negligence or willful misconduct of Sublandlord or its agents, employees or contractors, or from Sublandlord's breach or default under the Master Lease (such breach or default continuing beyond the expiration of applicable notice or grace periods), Sublandlord shall not be responsible for any failure or interruption, for any reason whatsoever, of the services or facilities that may be appurtenant to or supplied at the Building by Landlord or otherwise, including, without limitation, heat, air conditioning, ventilation, life-safety, water, electricity, elevator service and cleaning service, if any; and no failure to furnish, or interruption of, any such services or facilities shall give rise to any (i) abatement, diminution or reduction of Subtenant's obligations under this Sublease, or (ii) liability on the part of Sublandlord. Notwithstanding the foregoing, Sublandlord shall promptly take such action as may reasonably be indicated, under the circumstances, to secure such performance upon Subtenant's request to Sublandlord to do so and shall thereafter diligently prosecute such performance on the part of Landlord. Notwithstanding anything herein to the contrary, (x) to the extent Sublandlord has expressly agreed hereunder to enforce for the benefit of Subtenant any of Landlord's obligations to Sublandlord under the Master Lease and Landlord has failed or refused to perform such obligations or (y) Landlord has failed to perform its obligations under the Master Lease and such failure materially and adversely affects Subtenant's use and occupancy of the Premises, and Sublandlord has been unable, within a reasonable time after notice from Subtenant, to cause Landlord to perform such obligations, and (a) Sublandlord reasonably determines that commencing a legal proceeding is the only reasonable alternative to cause Landlord to perform such obligations and (b) Subtenant is not then in default hereunder beyond any applicable cure period, Sublandlord shall, at Subtenant's request, commence an appropriate legal proceeding against Landlord using attorneys and experts selected by Sublandlord, or, in Sublandlord's sole discretion, permit Subtenant to commence such legal proceeding on Subtenant's own behalf if Subtenant demonstrates to Sublandlord's reasonable satisfaction that Subtenant is reasonably likely to be barred from commencing such legal
proceeding by reason of lack of privity. In such event, Subtenant may commence such legal proceedings in the name of Sublandlord, using attorneys and experts selected by Sublandlord with the approval of Subtenant (such approval not to be unreasonably withheld or delayed) provided that, in either event (i) the commencement of such legal proceeding does not cause a default under the Master Lease, (ii) Subtenant shall pay to Sublandlord upon demand therefor any and all the costs and expenses, including actual attorneys' fees and costs, incurred by Sublandlord in connection therewith, and (iii) Subtenant indemnifies and holds Sublandlord, its officers, directors, shareholders, affiliates, subsidiaries, agents and employees harmless from any loss, suit, damage, claim or cost, including actual attorneys' fees and costs, incurred by Sublandlord in connection therewith.
6.
Master Lease and Sublease T
erms.
6.1
Subject to Master L
ease. This Sublease is and shall be at all times subject and subordinate to the Master Lease. Subtenant acknowledges that Subtenant has reviewed and is familiar with all of the terms, agreements, covenants and conditions of the Master Lease. Additionally, the rights and obligations of Subtenant and Sublandlord under this Sublease shall be subject to the terms of the Consent. During the Term and for all periods subsequent thereto with respect to obligations which have arisen prior to the termination of this Sublease, Subtenant agrees to perform and comply with, for the benefit of Sublandlord and Landlord, the obligations of Sublandlord under the Master Lease which pertain to the Subleased Premises and/or this Sublease, except for those provisions of the Master Lease which are directly contradicted by this Sublease, in which event the terms of this Sublease document shall control over the Master Lease.
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6.2
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Incorporation of Terms of Master Lease.
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(a)
The terms, conditions and respective obligations of Sublandlord and Subtenant to each other under this Sublease shall be the terms and conditions of the Master Lease, except for those provisions of the Master Lease which are directly contradicted by this Sublease, in which event the terms of this Sublease shall control over the Master Lease. Therefore, for the purposes of this Sublease, wherever in the Master Lease the word "Landlord" is used it shall be deemed to mean Sublandlord and wherever in the Master Lease the word "Tenant" is used it shall be deemed to mean Subtenant. Any non-liability, release, indemnity or hold harmless provision in the Master Lease for the benefit of Landlord that is incorporated herein by reference, shall be deemed to inure to the benefit of Sublandlord, Landlord, and any other person intended to be benefited by said provision, for the purpose of incorporation by reference in this Sublease. Any right of Landlord under the Master Lease (a) of access or inspection, (b) to do work in the Master Lease Premises or in the Building, (c) in respect of rules and regulations, which is incorporated herein by reference, shall be deemed to inure to the benefit of Sublandlord, Landlord, and any other person intended to be benefited by said provision, for the purpose of incorporation by reference in this Sublease.
(b)
For purposes of clarity, with respect to the casualty and condemnation provisions of the Master Lease, which are incorporated herein by reference, if and to the extent that Sublandlord has any right to terminate the Master Lease as a result of any casualty or condemnation affecting the Master Premises, then Subtenant shall have the same rights (whether or not the Master Lease is so terminated) with respect to this Sublease. Further,
all rent and other sums payable hereunder shall abate during any period of time that the Subleased Premises are not reasonably usable by Subtenant for its business as a result of any casualty or condemnation in accordance with the terms of the Master Lease.
6.3
M
odifications. For the purposes of incorporation herein, the terms of the Master Lease are subject to the following additional modifications:
(a)
A
pprovals. In all provisions of the Master Lease (under the terms thereof and without regard to modifications thereof for purposes of incorporation into this Sublease) requiring the approval or consent of Landlord, Subtenant shall be required to obtain the approval or consent of both Sublandlord and Landlord. The approval or consent of Sublandlord shall not be unreasonably withheld, delayed or conditioned.
(b)
D
eliveries. In all provisions of the Master Lease requiring Tenant to submit, exhibit to, supply or provide Landlord with evidence, certificates, or any other matter or thing, Subtenant shall be required to submit, exhibit to, supply or provide, as the case may be, the same to both Landlord and Sublandlord.
(c)
Damage; Condemnation. Except as to those items Sublandlord has agreed to continue to insure under Section 12.1 below, Sublandlord shall have no obligation to restore or rebuild any portion of the Subleased Premises after any destruction or taking by eminent domain.
(d)
I
nsurance. In all provisions of the Master Lease requiring Tenant to designate Landlord as an additional or named insured on its insurance policy, Subtenant shall be required to so designate Landlord and Sublandlord on its insurance policy. The Subtenant shall have the benefit of the waivers set forth in Section 8.19 of the Master Lease as between Sublandlord and Subtenant.
6.4
E
xclusions. Notwithstanding the terms of Section 6.2 above, Subtenant shall have no rights or obligations under the following parts, Sections and Exhibits of the Master Lease: Reference Data, Section 2.1 (except with respect to the first two paragraphs), the second grammatical paragraph of Section 2.2, Sections 2.2.1 (except to the extent referenced by Section 16 below), 2.4, 2.5, 2.6 through 2.8, inclusive (except to the extent referenced and incorporated pursuant to the provisions of Section 3 above), Article III, Sections 4.l.4(B) (except with respect to the first sentence), 4.l .4(C) through 4. l .4(E), inclusive, Section 4.2(D) (provided, however, that if and to the extent that Sublandlord is entitled to an abatement of Rent under the Master Lease pursuant to the provisions of said Section 4.2(D) as a result of an event described therein which similarly affects the Subleased Premises, Subtenant shall be entitled to a parallel abatement of Rent hereunder), 4.3, 4.5, 5.6.6, 5.6.7, 8.8, 8.11 (first paragraph only, provided, however, that in no event will either party record this Sublease, and second paragraph but only with respect to the financial terms set forth in this Sublease), 8.12, 8.15, 8.17, 8.18, 8.20, 8.21, 8.26, 8.28 and 8.29, Exhibits B-1, B-2, B-3, B-4, B-5, D-1, D-2, D-3, E, F, G, H, I-1, I-2, I-3,
J
and
L.
6.5
As a material inducement to Subtenant entering into this Sublease, Sublandlord represents and warrants to Subtenant that (i) Sublandlord has a valid and subsisting leasehold estate under the Master Lease, (ii) the Master Lease is in full force and effect, and (iii)
Sublandlord has previously delivered to Subtenant a true and complete copy of the Master Lease (which is attached hereto as
Exhibit D),
(iv) Sublandlord has the power, right and authority to make this Sublease and to perform its obligations hereunder, (v) no petition in bankruptcy or similar proceeding under the United States Bankruptcy Code is pending or to Sublandlord's best knowledge, threatened against, or contemplated by, Sublandlord; (vi) Sublandlord has not received notice of any default, breach or other violation on the part of Sublandlord under the Master Lease, nor other event or circumstance which, with the giving of notice or the passage of time, or both, would constitute such a default, breach or violation, and to Sublandlord's current actual knowledge, without inquiry or investigation, the Subleased Premises comply with all applicable laws, codes and ordinances; (vii) Sublandlord has not given notice to Landlord of any violation of any of Landlord's obligations under the Master Lease, and to Sublandlord's current actual knowledge, without inquiry or investigation, Landlord is not in violation of any of its obligations under the Master Lease; (viii) the term of the Master Lease commenced on or about December 1, 2008, and, by its terms, will expire not sooner than February 28, 2019 (subject to the terms and provisions of the Master Lease); (ix) Sublandlord will not enter into any (1) amendment or modification of the Master Lease which will adversely affect (in more than a de minimis way) Subtenant's interest in the Sublease, or (2) agreement terminating the Master Lease other than a termination permitted pursuant to the terms of the Master Lease, without in each case obtaining the prior written consent of Subtenant; (x) to Sublandlord's current actual knowledge, without inquiry or investigation, neither Sublandlord nor any of its agents, employees or contractors has conducted any activity at the Subleased Premises that produced or used Hazardous Materials, and neither Sublandlord nor any of its agents, employees or contractors has stored, released, brought into or introduced to the Subleased Premises any Hazardous Materials during the term of the Master Lease; and (xi) Sublandlord shall promptly deliver to Subtenant a copy of any written notice received by Sublandlord from Landlord (or its managing agent) or any governmental agency that affects or relates to the Sublease or the Subleased Premises. In addition, Sublandlord will be responsible to pay any amounts due to contractors, suppliers or materialmen to whom any amount is owed in respect of any work undertaken by Sublandlord in the Subleased Premises prior to the Effective Date.
7.
Assignment and Subletting. Subtenant shall not assign this Sublease or further sublet all or any part of the Subleased Premises except subject to and in compliance with all of the terms and conditions of the Master Lease, and Sublandlord (in addition to Landlord) shall have the same rights with respect to assignment and subleasing as Landlord has under the Master Lease. Subtenant shall pay all fees and costs payable to Landlord pursuant to the Master Lease in connection with any proposed assignment, sublease or transfer of the Subleased Premises, together with all of Sublandlord's actual out-of-pocket costs relating to Subtenant's request for such consent, regardless of whether such consent is granted, and the effectiveness of any such consent shall be conditioned upon Landlord's and Sublandlord's receipt of all such fees and costs.
8.
D
efault. Except as expressly set forth herein, Subtenant shall perform all obligations in respect of the Subleased Premises that Sublandlord would be required to perform pursuant to the Master Lease.
It
shall constitute an "Event of Default" hereunder if Subtenant fails to perform any obligation hereunder (including, without limitation, the obligation to pay Rent), or any obligation under the Master Lease which has been incorporated herein by reference, and, in each instance, Subtenant has not remedied such failure (i) in the case of any monetary default, within three (3) business days after written notice from Sublandlord thereof
and (ii) in the case of any other default, fifteen (15) calendar days after receipt of written notice from Sublandlord thereof, or if such failure is of such a nature that the same cannot reasonably be remedied within such fifteen (15) calendar day period, Subtenant shall not be deemed to be in default if it diligently commences such cure within such 15-day period and thereafter diligently proceeds to cure such default, and in any event, actually cures such default within ninety (90) days after the expiration of such 15-day period.
9.
R
emedies. In the event of any default hereunder by Subtenant, Sublandlord shall have all remedies provided to the "Landlord" in the Master Lease as if an Event of Default had occurred thereunder. Sublandlord may resort to its remedies cumulatively or in the alternative.
10.
Right to Cure Defaults.
If
Subtenant fails to perform any of its obligations under this Sublease after expiration of applicable grace or cure periods, then Sublandlord may, but shall not be obligated to, perform any such obligations for Subtenant's account. All actual out-of-pocket costs and expenses paid by Sublandlord in performing any such act for the account of Subtenant shall be deemed Rent payable by Subtenant to Sublandlord upon demand, together with interest thereon at the Default Interest Rate (as defined in Section 8.22 of the Master Lease) from the date of the expenditure until repaid.
If
Sublandlord undertakes to perform any of Subtenant's obligations for the account of Subtenant pursuant hereto, the taking of such action shall not constitute a waiver of any of Sublandlord's remedies. Subtenant hereby expressly waives its rights under any statute to make repairs at the expense of Sublandlord.
11.
Consents and Approvals. (a) In any instance when Sublandlord's consent or approval is required under this Sublease, Sublandlord's refusal to consent to or approve any matter or thing shall be deemed reasonable if, among other matters, such consent or approval is required under the provisions of the Master Lease incorporated herein by reference but has not been obtained from Landlord. Except as otherwise expressly provided herein, Sublandlord shall not unreasonably withhold, condition or delay its consent to or approval of a matter if such consent or approval is required under the provisions of the Master Lease and Landlord has consented to or approved of such matter.
(b) Sublandlord acknowledges that Subtenant intends to perform certain alterations and improvements (the
"Subtenant Work")
to the Subleased Premises to make the same more suitable for Subtenant's occupancy. Attached to this Sublease as
Exhibit A-1
is a space plan (the
"Space Plan")
prepared by Subtenant and indicating the Subtenant Work. Sublandlord hereby approves the Subtenant Work in concept, subject however to (i) approval by Landlord if and as required under the Master Lease, and (ii) preparation and submission by Subtenant of final plans and specifications, and obtaining necessary permits and approvals.
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12.
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Insurance; Limitation of L
iability.
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12.1
Insurance. Sublandlord covenants and agrees to maintain the insurance required to be maintained by Sublandlord (as Tenant) under the Master Lease (including without limitation Sections 5.7 and 5.8 thereof) for the Term of the Sublease.
12.2
Limitation of Liability. Notwithstanding any other term or provision of this Sublease, the liability of each party hereto for any default in such party's
obligations under this Sublease shall be limited to actual, direct damages, and under no circumstances shall the non-defaulting party, its partners, members, shareholders, directors, agents, officers, employees, contractors, sublessees, successors and/or assigns be entitled to recover from the defaulting party (or otherwise be indemnified by the defaulting party for) (a) any losses, costs, claims, causes of action, damages or other liability incurred in connection with a failure of Landlord, its partners, members, shareholders, directors, agents, officers, employees, contractors, successors and /or assigns to perform or cause to be performed Landlord's obligations under the Master Lease (provided that the foregoing shall not limit the obligations of Sublandlord as expressly set forth in Section 5.3 above), (b) lost revenues, lost profit or other consequential, special or punitive damages arising in connection with this Sublease for any reason, or (c) any damages or other liability arising from or incurred in connection with the condition of the Subleased Premises or suitability of the Subleased Premises for its intended uses; provided, however, the limitations of liability set forth in this Section 12.1 shall not apply to Subtenant's holdover in the Premises or to any acts or omissions of either party with respect to Hazardous Materials (as defined in the Master Lease), which acts or omissions are contrary to Hazardous Materials provisions set forth in the Master Lease. Each party shall, however, have the right to seek any injunctive or other equitable remedies as may be available to it under applicable law. Notwithstanding any other term or provision of this Sublease, no personal liability shall at any time be asserted or enforceable against either party's shareholders, directors, officers, or partners on account of any of such party's obligations or actions under this Sublease. As used in this Sublease, the term "Sublandlord" means the holder of the tenant's interest under the Master Lease and "Sublandlord" means the holder of sublandlord's interest under this Sublease. In the event of any assignment or transfer of Sublandlord's interest under this Sublease, which assignment or transfer may occur at any time during the Term in Sublandlord's sole discretion, Sublandlord shall give Subtenant notice thereof and, upon the written assumption by the assignee or transferee of all such covenants and obligations, Sublandlord shall be entirely relieved of all covenants and obligations of Sublandlord hereunder accruing subsequent to the date of the transfer and it shall be deemed and construed that any transferee has assumed and shall carry out all covenants and obligations thereafter to be performed by Sublandlord hereunder. Sublandlord may transfer and deliver any then-existing Security Deposit to the transferee of Sublandlord's interest under this Sublease, and thereupon Sublandlord shall be discharged from any further liability with respect thereto.
13.
Attorneys' F
ees.
If
Sublandlord or Subtenant brings an action to enforce the terms hereof or to declare rights hereunder, the prevailing party who recovers substantially all of the damages, equitable relief or other remedy sought in any such action on trial and appeal shall be entitled to receive from the other party its costs associated therewith, including, without limitation, reasonable attorney's fees and costs from the other party. Without limiting the generality of the foregoing, if Sublandlord utilizes the services of an attorney for the purpose of collecting any Rent due and unpaid by Subtenant (which collection effort is successful) or in connection with any other breach of this Sublease by Subtenant, Subtenant agrees to pay Sublandlord actual out-of-pocket attorneys' fees as determined by Sublandlord for such services, irrespective of whether any legal action may be commenced or filed by Sublandlord.
If
any such work is performed by in-house counsel for Sublandlord, the value of such work shall be determined at a reasonable hourly rate for comparable outside counsel.
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14.
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Delivery of P
ossession.
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14.1
G
enerally. Sublandlord shall deliver, and Subtenant shall accept, possession of the Subleased Premises in their "AS IS" condition as the Subleased Premises exists on the date hereof, with all equipment and fixtures in good working order and condition, and free of Hazardous Materials that are Sublandlord's responsibility under the Master Lease (the
"Delivery Condition").
Otherwise, Sublandlord shall have no obligation to furnish, render or supply any work, labor, services, materials, furniture, fixtures, equipment, decorations or other items to make the Subleased Premises ready or suitable for Subtenant's occupancy. In making and executing this Sublease, Subtenant has relied solely on such investigations, examinations and inspections as Subtenant has chosen to make or has made and has not relied on any representation or warranty concerning the Subleased Premises or the Building, except as expressly set forth in this Sublease. Subtenant acknowledges that Sublandlord has afforded Subtenant the opportunity for full and complete investigations, examinations and inspections of the Subleased Premises and the common areas of the Building. Subtenant acknowledges that it is not authorized to make or do any alterations or improvements in or to the Subleased Premises except as permitted by the provisions of this Sublease and the Master Lease and that upon termination or expiration of this Sublease, provided that Subtenant has not entered into a Direct Occupancy Agreement, Subtenant shall deliver the Subleased Premises to Sublandlord in the condition required by Landlord under the Master Lease. Subtenant acknowledges that Subtenant shall, at either Sublandlord's or Landlord's election remove from the Subleased Premises some or all of the Subtenant Improvements constructed (defined below) therein by Subtenant; additionally, at Subtenant's cost, Subtenant will remove all telecommunications and data cabling installed by or for the benefit of Subtenant.
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14.2
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Subtenant's I
mprovements.
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(a)
Generally.
If
Subtenant desires to construct improvements within the Subleased Premises
("Subtenant Improvements"),
all Subtenant Improvements shall be carried out in accordance with the applicable provisions of the Master Lease. To the extent that Landlord has approval rights with respect to the same under the Master Lease, Sublandlord will have the right to approve the plans and specifications for any proposed Subtenant Improvements, as well as any contractors whom Subtenant proposes to retain to perform such work, which approval shall not be unreasonably withheld, conditioned or delayed. Subtenant will submit all such information for Sublandlord's review and written approval prior to commencement of any such work. Subtenant expressly acknowledges that Landlord or Sublandlord may require Subtenant to remove some or all of the Subtenant Improvements designated as "Required Removables" (as defined in Section 5.14 of the Master Lease) or as may otherwise be required under the Master Lease at the expiration or sooner termination of the Term in accordance with the provisions of Section 5.14 of the Master Lease (provided, however, that Sublandlord shall have the right to require such removal only if and to the extent such removal is required by Landlord pursuant to the Master Lease and only if Subtenant has not entered into a Direct Occupancy Agreement). Promptly following the completion of any Subtenant Improvements or subsequent alterations or additions by or on behalf of Subtenant, Subtenant will deliver to Sublandlord a reproducible copy of "as built" drawings of such work together with a CAD file of the "as-built" drawings in the then-current version of AutoCad.
(b)
Code-Required W
ork.
If
the performance of any Subtenant Improvements or other work by Subtenant within the Subleased Premises "triggers" a requirement for code-related upgrades to or improvements of any portion of the Building, Subtenant shall be responsible for the cost of such code-required upgrade or improvements.
14.3
S
urrender. Notwithstanding anything in this Sublease to the contrary, upon the expiration or earlier termination of this Sublease, Subtenant shall deliver the Subleased Premises to Sublandlord in the condition that the "tenant" is required to deliver the same under the terms of the Master Lease upon the expiration or earlier termination of the Master Lease. Subtenant acknowledges and agrees that the foregoing provision requires Subtenant to, at Subtenant's sole cost and expense, remove from the Subleased Premises any and all improvements constructed therein pursuant to the terms of the Master Lease, and to repair and restore the Subleased Premises to the condition required under the terms of the Master Lease; provided, however, Subtenant shall not be responsible for any removal of Sublandlord's Monument Signage, Impact Signage or Building Signage (as such terms are defined in the Master Lease), which removal obligations shall be carried out by Sublandlord, at its sole cost and expense.
15.
Holding O
ver. Unless Subtenant has entered into a Direct Occupancy Agreement, if Subtenant fails to surrender the Subleased Premises at the expiration or earlier termination of this Sublease, occupancy of the Subleased Premises after the termination or expiration shall be that of a tenancy at sufferance. Subtenant's occupancy of the Subleased Premises during the holdover shall be subject to all the terms and provisions of this Sublease and Subtenant shall pay an amount (on a per month basis without reduction for partial months during the holdover) equal to 150% of the sum of the Base Rent and Additional Rent due for the period immediately preceding the holdover. No holdover by Subtenant or payment by Subtenant after the expiration or early termination of this Sublease shall be construed to extend the Term or prevent Sublandlord from immediate recovery of possession of the Subleased Premises by summary proceedings or otherwise. In addition to the payment of the amounts provided above, if Sublandlord is unable to deliver possession of the Subleased Premises to a new subtenant or to Landlord, as the case may be, or to perform improvements for a new subtenant, as a result of Subtenant's holdover, Subtenant shall be liable to Sublandlord for all damages, including, without limitation, consequential damages, that Sublandlord suffers from the holdover; Subtenant expressly acknowledges that such damages may include all of the holdover rent charged by Landlord under the Master Lease as a result of Subtenant's holdover, which Master Lease holdover rent may apply to the entire Master Lease Premises.
16.l
G
enerally. During the Term, Subtenant shall be permitted to use
3.4 parking spaces on the Site (as defined in the Master Lease) per each 1,000 rentable square feet in the Subleased Premises (i.e., one hundred twenty- four (124) spaces), subject to, and in accordance with, the terms of the Master Lease. Subtenant's use of the parking spaces shall be free of charge; provided, however, in the event that Landlord charges Sublandlord for its use of the parking spaces on the Site (Sublandlord acknowledging that Section 2.2.l(A) of the Master Lease provides that the same will be without charge throughout the term of the Master Lease, except as otherwise provided in the Master Lease), Sublandlord reserves the right to charge
Subtenant the amount so charged by Landlord, which charge shall be adjusted based on the number of parking spaces allocated to Subtenant hereunder.
16.2 Additional Parking. Pursuant to Section 2.2.1 of the Master Lease, in the event that Landlord implements a Managed Parking Program and/or provide Off-Site Parking (as such terms are defined in the Master Lease) for Tenant or other tenants in the Project, so long as Subtenant is not using the Managed Parking Program and/or Off-Site Parking, Subtenant shall not be responsible for any costs or expenses associated with the Managed Parking Program and/or Off-Site Parking ("Off Site Parking Costs"), except to the extent that Landlord includes Off Site Parking Costs as an Operating Expense for all tenants regardless of whether or not such tenants are using the Managed Parking Program and/or Off-Site Parking.
If
Landlord does include such costs as Operating Expenses, Subtenant shall be required to pay its pro rata share of such costs allocated to the Subleased Premises as an Operating Expense pursuant to Section 3.2 hereof.
17.
Notices: Any notice by either party to the other required, permitted or provided for herein shall be valid only if in writing and shall be deemed to be duly given only if
(a)
delivered personally, or (b) sent by means of Federal Express, UPS Next Day Air or another reputable express mail delivery service guaranteeing next day delivery, or (c) sent by United States certified or registered mail, return receipt requested, addressed: (i) if to Sublandlord, at the following addresses:
Oracle America, Inc. c/o Oracle Corporation 1001 Sunset Boulevard
Rocklin, California 95765 Attn: Lease Administration
with a copy to:
Oracle America, Inc. c/o Oracle Corporation 500 Oracle Parkway Box 50P7
Redwood Shores, California 94065 Attn: Legal Department
and (ii) if to Subtenant, at the following address:
Prior to Commencement Date: Care.com
201 Jones Road
Waltham, MA 02451 Attn: Diane Musi, Esq.
After the Commencement Date: Care.com
77 Citypoint, Suite 500 Waltham, MA
Attn: Diane Musi, Esq.
or at such other address for either party as that party may designate by notice to the other. A notice shall be deemed given and effective, if delivered personally, upon hand delivery thereof (unless such delivery takes place after hours or on a holiday or weekend, in which event the notice shall be deemed given on the next succeeding business day), if sent via overnight courier, on the business day next succeeding delivery to the courier, and if mailed by United States certified or registered mail, three (3) business days following such mailing in accordance with this Section.
18.
S
ignage. Subject to the terms and conditions of the Master Lease, Subtenant, at Subtenant's sole cost and expense, upon procurement of the Landlord's consent, shall have the right to install signage identifying Subtenant at the entrance to the Subleased Premises and in the Building's lobby directory. For the avoidance of doubt, Subtenant shall have no rights to install Impact Signage, Monument Signage or Building Signage as such terms as defined in Sections 4.1.4(B), 4. l.4(C) and 4. l.4(D) of the Master Lease, respectively.
19.
B
rokers. Subtenant represents that it has dealt directly with and only with Transwestem/RBJ
("Subtenant's Broker"),
as a broker in connection with this Sublease. Sublandlord represents that it has dealt directly with and only with CRESA Partners
("Sublandlord's Broker"),
as a broker in connection with this Sublease. Sublandlord and Subtenant shall indemnify and hold each other harmless from all claims of any brokers other than Subtenant's Broker and Sublandlord's Broker claiming to have represented the indemnifying party in connection with this Sublease. Subtenant and Sublandlord agree that Subtenant's Broker and Sublandlord's Broker shall be paid commissions by Sublandlord in connection with this Sublease pursuant to a separate agreement, and Subtenant shall have no obligation or liability therefor.
20.
Complete A
greement. There are no representations, warranties, agreements, arrangements or understandings, oral or written, between the parties or their representatives relating to the subject matter of this Sublease which are not fully expressed in this Sublease. This Sublease cannot be changed or terminated nor may any of its provisions be waived orally or in any manner other than by a written agreement executed by both parties.
21.
I
nterpretation. Irrespective of the place of execution or performance, this Sublease shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
If
any provision of this Sublease or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Sublease and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. The table of contents, captions, headings and titles, if any, in this Sublease are solely for convenience of reference and shall not affect its interpretation. This Sublease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Sublease or any part thereof to be drafted.
If
any words or phrases in this Sublease shall have been stricken out
or otherwise eliminated, whether or not any other words or phrases have been added, this Sublease shall be construed as if the words or phrases so stricken out or otherwise eliminated were never included in this Sublease and no implication or inference shall be drawn from the fact that said words or phrases were so stricken out or otherwise eliminated. Each covenant, agreement, obligation or other provision of this Sublease shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making same, not dependent on any other provision of this Sublease unless otherwise expressly provided. All terms and words used in this Sublease, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. The word "person" as used in this Sublease shall mean a natural person or persons, a partnership, a corporation or any other form of business or legal association or entity.
22.
USA Patriot Act D
isclosures. Each party hereto is currently in compliance with and shall at all times during the Term remain in compliance with the regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
23.
Counterparts. This Sublease may be executed in multiple counterparts, each of which is deemed an original but which together constitute one and the same instrument. This Sublease shall be fully executed when each party whose signature is required has signed and delivered to each of the parties at least one counterpart, even though no single counterpart contains the signatures of all of the parties hereto. This Sublease may be executed in so-called "pdf ' format and each party has the right to rely upon a pdf counterpart of this Sublease signed by the other party to the same extent as if such party had received an original counterpart.
[Signatures appear on thefollowing page ]
WITNESS WHEREOF, the parties hereto hereby execute this Sublease as of the Effective Date.
EXHIBIT B
Commencement Agreement
Date
Address
Re: Commencement Letter with respect to that certain Sublease dated as of May _, 2014, by and between
ORACLE AMERICA, INC.,
a Delaware corporation, as Sublandlord, and
CARE.COM, INC.,
a Delaware corporation, as Subtenant, for 36,395 rentable square feet on the fourth (4th) floor of the Building located at 77 City Point, Waltham, Massachusetts.
Dear
In accordance with the terms and conditions of the above referenced Sublease, Subtenant accepts possession of the Subleased Premises and agrees:
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1.
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The Commencement Date is
_
, 20 l_;
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2. The Expiration Date is February 15, 2019, subject to possible extension pursuant to Section 2(b) of the Sublease.
Please acknowledge your acceptance of possession and agreement to the terms set forth above by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully executed counterparts to my attention.
Sincerely,
Sublandlord Authorized Signatory Agreed and Accepted:
Subtenant:
By:
[EXHIBIT - - DO NOT SIGN]
Name:
Title:
Date:
EXHIBIT C
Letter of Credit
ISSUING BANK
ADDRESS OF ISSUING BANK
DATE:
---
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER:
---
BENEFICIARY: APPLICANT:
AMOUNT: USO
$
-----
EXPIRATION:
----
AT OUR COUNTERS
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER WHICH IS AVAILABLE WITH [ISSUING BANK] BY PAYMENT AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND YOUR DRAFTS AT SIGHT DRAWN ON [ISSUING BANK] AT THE ADDRESS ABOVE, ACCOMPANIED BY THE DOCUMENTS DETAILED BELOW:
A LETTER SIGNED BY A PURPORTED AUTHORIZED REPRESENTATIVE OF THE BENEFICIARY STATING THAT BENEFICIARY IS ENTITLED TO DRAW ON THIS
LETTER OF CREDIT PURSUANT TO THAT SUBLEASE BETWEEN
-------
AND
, AS IT MAY BE AMENDED.
THIS LETTER OF CREDIT CANNOT BE MODIFIED OR REVOKED WITHOUT YOUR WRITTEN CONSENT OF BENEFICIARY.
SPECIAL CONDITIONS:
THIS LETTER OF CREDIT SHALL AUTOMATICALLY RENEW WITHOUT AMENDMENT FOR AN ADDITIONAL ONE YEAR PERIOD FROM THE CURRENT OR FOR ANY FUTURE EXPIRATION DATE, UNLESS WE SHALL NOTIFY YOU IN WRITING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR OVERNIGHT COURIER AT LEAST 60 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE THAT THIS LETTER OF CREDIT WILL NOT BE RENEWED. FOLLOWING SUCH NOTIFICATION AND PRIOR TO THE EXPIRATION OF THIS LETTER OF CREDIT, YOU MAY ORAW UPON THIS LETTER OF CREDIT BY PRESENTATION
OF THE SIGHT DRAFT(S) MENTIONED ABOVE, ACCOMPANIED BY A LETTER SIGNED BY A PURPORTED AUTHORIZED REPRESENTATIVE OF BENEFICIARY STATING THAT
BENEFICIARY HAS NOT BEEN PRESENTED WITH A SUBSTITUTE LETTER OF CREDIT IN THE SAME PRINCIPAL AMOUNT, AND ON THE SAME TERMS AS THIS LETTER OF CREDIT FROM AN ISSUER REASONABLY SATISFACTORY TO YOU.
THIS LETTER OF CREDIT IS TRANSFERABLE AND MAY BE TRANSFERRED ONE OR MORE TIMES BY THE NAMED BENEFICIARY HEREUNDER OR BY ANY TRANSFEREE HEREUNDER TO A SUCCESSOR TRANSFEREE. TRANSFER OF THIS LETTER OF CREDIT IS SUBJECT TO OUR RECEIPT OF BENEFICIARY'S INSTRUCTIONS IN THE FORM ATTACHED AS EXHIBIT A, ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND AMENDMENT(S), IF ANY. ALL TRANSFER FEES SHALL BE FOR THE ACCOUNT OF APPLICANT.
PARTIAL DRAWS ARE ALLOWED UNDER THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590 AND ENGAGES US PURSUANT TO THE TERMS THEREIN.
[ISSUING BANK]
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
-----
Dated:
, 20_
EXHIBIT A to LETTER OF CREDIT
DATE:
TO: [ISSUING BANK]
Re: Irrevocable Standby Letter of Credit No.
-----
Gentlemen:
For value received, the undersigned Beneficiary hereby irrevocably transfers to:
(Name of Transferee) (Address)
All rights of the undersigned beneficiary to draw under the above Letter of Credit up to its available amount as shown above as of the date of this transfer.
By this transfer, all rights of the undersigned Beneficiary in such Letter of Credit are transferred to the Transferee. transferee shall have the sole rights as Beneficiary thereof, including sole rights relating to any amendments, whether increases or extensions or other amendments, and whether now existing or hereafter made. All amendments are to be advised direct to the Transferee without necessity of any consent of or notice to the undersigned Beneficiary.
The original of such Letter of Credit is returned herewith, and we ask you to endorse the transfer on the reverse thereof, and forward it directly to the Transferee with your customary Notice of Transfer.
Sincerely,
(Signature of Beneficiary) (Beneficiary
'
s Name) (Beneficiary's Name and Title)
EXHIBIT D
Master Lease
(See attached)
SECOND AMENDMENT TO LEASE
Approved as to Legal
#4886928.v 1
THIS SECOND AMENDMENT TO LEASE dated as of this ?7Jvv-day of July, 2014 by and between BP FOURTH AVENUE, LLC, a Delaware limited liability company
("Landlord")
and ORACLE AMERICA, INC., a Delaware corporation, as successor-in-interest to Phase Forward, Inc.
("Tenant")
RECITALS
By Lease dated as of February 13, 2008 (the
"Lease")
as amended by First Amendment to Lease dated July 22, 2013, Landlord did lease to Tenant, and Tenant did hire and lease from Landlord, certain premises containing approximately 128,955 rentable square feet located on the first, second, third and fourth floors of the building (the
"Building")
located at 77 Fourth Avenue, Waltham, MA 02451 (hereinafter the
"Premises"),
which Premises are more particularly described in the Lease.
Landlord and Tenant are entering into this Second Amendment to modify certain provisions of the Lease relating to the ownership and maintenance of certain elements of the HVAC system serving the Premises, and to amend certain other terms of the Lease, all as more pai1icularly set forth below.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration in hand this date paid by each of the parties to the other, the receipt and sufficiency of which are hereby severally acknowledged, and in further consideration of the mutual promises herein contained, Landlord and Tenant hereby agree to and with each other as follows:
1.
Defini t
ions. For purposes of this Second Amendment, the following terms shall have the meanings ascribed below:
a.
"Premises Air Conditioning System"
shall be defined as the Tenant's Air Conditioning System (as defined below) and the Glycol System (as defined below).
b.
"Tenant's Air Conditioning System"
shall be defined as the seven (7) air conditioning systems and components owned by Tenant located on floors l , 2, 3, and 4 of the Building, including, without limitation, directly-associated components and operating controls (e.g. condensing unit, air handling unil, duct work, thermostats, computer boai·ds, pumps ,wiring, and piping between the isolation valves and the other components of the Tenant's Air Conditioning System), as well as the supply and retum isolation valves on the copper loop
serving the condensing units.
c.
"Glycol System"
shall be defined as (i) the two (2) dry coolers and associated pumps, controls and wiring located on the roof of the building as further described on Exhibit B. and pa1tially shown on Exhibits B-1. B-2 and B-3, attached hereto, and
(ii)
the two (2) separately-piped copper loops which carry the glycol between the respective north or south dry coolers up to the supply and return isolation valves, as shown on
Exhibit A
-1, adjacent to
portions of Tenant's Air Conditioning System, all of which supports Tenant's Air Conditioning System.
2.
Transfer of Ownership of Glycol S
ystem. Effective on November 1, 2014 (the
"Transfer Date"),
Tenant hereby transfers to Landlord all right, title and interest in, and Landlord hereby accepts ownership of, the Glycol System. Tenant agrees to maintain the Glycol System in good and operational condition through the Transfer Date.
3.
Obligations with Respect to Glycol S
ystem. Effective on the Transfer Date, Landlord shall assume responsibility for the mai ntenance, repair and replacement of the Glycol System. For purposes of clarity, the Glycol System shall not include the supply and return isolation valves, and Tenant shall remain owner of the same and responsible for the maintenance, repair and replacement of the isolation valves.
4.
Allocation of Costs Related to Glycol S
ystem. From and after the Transfer Date, Tenant shall be responsi ble for paying Landlord the Tenant's Glycol Proportionate Share (as defined below) of (i) all expenses related to the maintenance and repair of the Glycol System, and (ii) all expenses related to the replacement of the Glycol System provided Land lord obtains Tenant's prior approval of such replacement.
"Tenant's Glycol Proportionate Share"
shall be the proportion that the total connected tonnage of Tenant's Air Conditioning System during each billing period (to be determined by Landlord but not less than once per year) bears to the total connected tonnage of the air conditioning equipment of all tenants connected to the Glycol System during such time period. In addition, Tenant shall pay for the electricity consumed by
the operation of Tenant's Air Conditioning System (and all related components) which must either have a separate electric meter or be captured on the electric meter serving the Premises. All amounts due under this Section 4 shall be deemed additional rent under the Lease.
5.
Tenant's Air Conditioning System. Tenant shall continue to own, and be responsible for, the maintenance, repair and replacement of the Tenant's Air Conditioning System.
6.
Premises Air Conditioning System. Notwithstanding any provision of the Lease to the contrary, Tenant shall have no obligation, or right, to remove the Premises Air Conditioning System (as exists on the date of this Second Amendment) at the expiration of the Term.
(a)
Except as otherwise expressly provided herein, all capitalized terms used herein without definition shall have the same meanings as are set forth
in
the Lease.
(b)
Except as herein amended, the Lease shall remain unchanged and in full force and effect. All references to the "Lease" shall
be
deemed to be references to the Lease as herein amended.
(c)
This Second Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements
.
(d)
Each signatory of this Second Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting.
(e)
This Second Amendment may be executed in multiple counterparts each of which is deemed an original but together constitute one and the same instru ment. This Second Amendment may be executed in so-called "pdf ' format and each party has the right to rely upon a pdf counterpart of this Second Amendment signed by the other party to the same extent as if such party had received an original counterpart
(f)
This Second Amendment shall be construed and governed by the laws of the Commonwealth of Massachusetts.
[REMAINDER OF PAGE BLANK; SIGNATURE PAGE FOLLOWS]
EXECUTED under seal as of the date and year first above written.
.
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EXHIBIT A-I
Exhibit
A-1
Isolation Valve
EXHIBIT B
Description of Glycol System
The Glycol System Consists of:
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Two (2) separate copper piping loops installed between the first floor and the roof level. One loop is located on the n011h side of the building and connects the north drycoolers to the Tenant Air Conditioning Systems on the north side and other loop is located on the south side of the building and connects the south drycoolers and the Tenant Air Conditioning Systems on the south side.
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Two(2) drycoolers and their associated pumps, control s & wiring located on the north & south sides of the roof.
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Two (2) electrical meters each measuring the consumption of the respective equipment (north and south). These meters are located
in
the electrical closets on the sixth floor.
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The Glycol System excludes the supply and return isolation valves located adjacent to the Tenant Owned Air Cond itioning Systems within the Tenant premises.
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The Two Drycoolers are further identified as follows:
South Side: Leibert Drycooler
&
Associated components, Model # DD0419A, Serial # 0827C1 2951
North Side: Leibert Drycooler
&
Associated components, Model
#
DD0466A, Serial
#
0826C l 2791
·- -
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EXHIBIT B-1
EXHIBIT B-2
Exhibit 8·2
Drycooler North
EXHJBIT B-3
R E C I T A L S
By Lease dated Febnmry 13, 2008 (the "Lease"), Landlord did lease to Tenant and Tenant did hi re and lease from Landlord certain premises containing 165, 129 square feet located on the first (1
51 ,
second (2"''), third (3
1
d),
fotuth (4
1
h)
and sixth (6
1
h)
floors of the building (the "Building") known as nnd numbered 77 City Point, Wal tham, Massachusetts (hereinafter
)
sometimes referred to as the "Original Premises") and as more i1mticularly described in the Lease.
Tenant has elected, by notice to Land lord in accordance with
·
Section 2.1 .2 of the Lease, to surrender a portion of the Premises demised to Tenant under the Leuse consisting of t he
entirety of the sixth (6
111
)
floor (e.g., a portion of Premises A) of the Bu il ding (the "Reduction
Premises") as provided in this First Amendment to Lease (this "Fi rst Amendment")
.
Landlord imd Tenant are entering into t h is
First
Amendment to set fo11h said agreeme11t to so red uce the size of the Original Prem ises and to amend the Lease.
NOW, THEREFORE, i n considernt ion
of
One Dollar ($1 .00) and other good and
valuable consideration i n hand t his dale paid by each of the pa rties to t he other, the receipt <md sufficiency of which are hereby severally acknowl edged. and in fu11her consideration
or
t he
m ut ual prom ises herei n contai ned, Land lord and Tenant hereby agree lo and with e<1eh other as follows:
1.
Termination of Lease With Respect
lo
Reduction P
remises. Effective on February
28,
2014 (the "Surrender Date"), tbe Reduction Premises shall be deleted from the space demised from Landlord to Tenant under the Lease, and the Lease shall terminate with respect to the Reduction Premises, and Temmt shall have no further obligation or liability under the Lease with respect to t he Jeduction P1·emises. The Prem ises A Floor Plan set forth on
Exhibi t D-1
'
to the Lease shall be replaced wi th the Prem ises A Floor Pla11 attached hereto.
2.
Surrender Obligntion. On or prior to the Surrender Date, Tenant shall qu it nnd vacate the Reduction Premises and surrnder t he snmc i n the condition as req uired
by
Section 5.2 of the Lease upon the expiration or earlier ti:rm ination of the Lease Term. Landlord and Tenant hereby acknowledge that the Reduction Premises do· not contain any Req uired Remova bles (as defined in Section 5.14 of the Leas) that Tenant shall
be
required to remove on or prior
Lo
the
Surrender Dute.
3.
Modifications lo Defined Te11ns. Effective as of !he Surrender Date, the following defined terms shall replace the corresponding definitions con\ainecl in Section \ .1 of the Lease:
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Premises A:
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The entire second (2
1111 .
and third
(3
111)
lloors of the Buildi ng and cerlai n portions ol' the first
(l s
1 )
and fou rth (4
1 )
floors of t he Bu i l ding, all as shown on the floor plans annexed hereto as Exhibit D-1 and
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)
h
incorporated herein
by
reference.
Premises A Annual Fixed Ren!: (a) For Lease
Y
cars one ( 1) through
ti
vc
(5), at t he annual rate of $5,921,800.50
(being
the prod uct of (x) $39.50 and
(y)
the "Rentablc Floor Area of Premises
A"
(as
hereinafter defined in this Section 1 .1)}, provided, bowevcr, that
Premises
A Annual Fixed Rent shall not commence until the Rent Commencement
Date
(as hercina bovc defined in this Section
1.1).
(h) For
Lease Years six
(6)
through ten
( I
0), at t he annual rate of $4,947,907.50 (being Lhe prod uct
of (x} $43.50
and
(y)
the Rentablc Floor
A rea of
Premises A).
(c) During
t he ex tension option peri ods
(if
exc.:rcised),
as
determi ned
pursuant to Section 8.20.
Rcntablc Floor Area of Premises A: 113,745 square feet, subject to t he
pi-ovisions of Section 2.1 hereof.
Rentable Floor Area of the Premises: 128,955 square feet (being the
S\1m
of the
Rentable
Floor Area of Premises A,
the
Rentable Floor Area of Premises 13 and t he Rentable Floor A rea of Premises C},
-2-
subject to the provisions of Section 2.1 hereof (i t being 11nders1ood and agreed t hat wherever i n this Least: the term "Renlahle Floor Arca of the Premises" is used, it shall
be
deemed to refer to
the
Rentable Floor Area of Premises A, the Rentable Floor Arca of Premises 13 and the Rentable Floor
Area
of Premises
C
collectively and not to nny of the foregoing rentable. floor areas independently, unless the applicable language specificall y nnd expressly
ind icules
lhnt
t he reference is intended
t n
be
made
to one
0
r
the
foregoing
independently).
4.
Operal ing Expenses
rtnd
Tax Ex penscs; P r
king.
(a) From
11nd after
the
Slm·cndcr
Date,
the
"Rcntablc Floor
Ar of the
Premises"
shall
be
128,955
squa re
feel.
Tenant's percentage share for purposes
of
computing Land lord's Operating Expenses (pursuant to Section 2.6 of the Lease) and Landlord's Tax Expenses (pursuant to Section
2.7
of the Lease) shall be reduced to
61 .5
percent.
All
other computat ions made pu rsua nt
lo
the Lease (e.g., Tenant's El ectricity Payments)
shall
be modified to reflect the reduction in the Rentablc Floor Area of the Premises as set f011h herein.
(b) From and after the Sun·ender Date, the Number of Park ing Spaces availa bl e for Tenant's use pursuant to Section
1.1
of the Lease shall be reduced to four hundred thirty-eight (438).
(c)
For the portion of the Lease Term prior to the Surrender Date, the Rentabl e Floor
Arca
of the Premises shall con tinue to be
165,129
square feet
for
such purposes.
5.
Contraction F
ee. Pursua nt to Section
2.1.2
of the Lease, on or before the Su1Tender
Date,
Tenant
shall
deliver to Landl ord good funds equal to t he Contraction Fee, which Contraction Fee Land lcml
and
Tenant acknowledge is in the amount of One Million Three
Hund red Ni nety-Si x Thousand rive H undred Sixty-Nine
and 00/1 00
Dolla rs
($1 ,396,569.00).
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6.
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Addit ional Lease Amcnd men r
s. Effective as of the Surrender Date, Section
2.1 .2
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.of
the Lense shall be deleted in its enti rety
and
shall
be
null
and void and
of
110
further
force and effect.
-3-
(a)
Except as otherwise expressl y provided herei n, all capi tal ized terms used herei n without
definition
shall have the
same
meanings
as are set
forth in the Lease.
(b)
Except as herein amended the Lease shal I remai n uncha nged and in full force and effect. All
references
to the "Lease'' sball be deemed to be rcf'erences
10
the Lease as herein
amended.
(c) Thi s First Amendment sets forth the entire agreement between the pa11ies with respect lo the 1iiatters set
forll1herein. There have been no
add i tional
oral or
written
representat ions
or agreements.
(d)
Each signatory of this First Amendment
represents hereby
that he
or
she has
the
authori ty to execute
and deliver the
same
on
behul f
of
the pa11y
hereto for
which such signatory i s acting.
(e)
11\is
First Amendment may be
e>:ecnted
in
mul ti ple
i..:ounterpa1ts
each of
which
is deemed
an original
but
toget her consti tute one end lht: some instrumen t. Thi s Fi rst Aml.!nd mcnt
may be executed in so-c;illed "pd f ' fommt and
each purty has the righ t to rel y u pon u pel f
counterpart
of
thi s
First Amendment
signed by
the
other
par\y
tn the snme extent as i i' such party
had
recei ved an
original
cotmlcrpart.
[page ends here
]
EXECUTED as a sealed instrument as of the date and year fi rst above wrtten.
Exhi bit A
EXHJBlT D-1
PREMISES A FLOOR PLAN
(see attached)
77 CITYPOINT WALTHAM, MASSACHUSETTS
LEASE DATED AS OF February 13 , 2008
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant are the parties hereinafter named, and which relates to space in a certain building (the "Building") known as, and with an address at, 77 CityPoint, Waltham, Massachusetts.
The parties to this Indenture of Lease hereby agree with each other as follows:
ARTICLE I
REFERENCE DATA
1.1
Subjects Referred To
Each reference in this Lease to any of the following subjects shall be construed to incorporate the data stated for that subject i n this Article:
Landlord: BP Fourth Avenue, L.L.C.,
a Delaware limited liability company
Landlord's Original Address c/o Boston Properties Limited Partnership
Prudential Tower
800 Boylston Street, Suite 1900
Boston, MA 02199-8103
Landlord's Construction Representative:
Jon Randall or Ben Lavery
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Tenant:
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Phase Forward, Inc., a Delaware corporation
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Tenant's Original Address:
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880 Winter Street Waltham, MA
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Tenant's Construction Representative:
John
Pilkington at NE/C Solutions Interim Plans Date: March 14, 2008
Tenant Plans Date:
Long Lead Item Release Date: Authorization to Proceed Date: Estimated Commencement Date: Commencement Date:
Outside Completion Date: Rent Commencement Date:
Estimated Rent Commencement Date:
Term (Sometimes Called the "Original Term"):
Extension Options:
The Site:
The Building:
Premises A:
April 18, 2008
May 2, 2008
May 16, 2008
December 1, 2008
As defined in Section 2.4. June
1,
2009
Three (3) months after the Commencement Date.
March 1, 2009
The period commencing on the
Commencement Date and expiring on the last day of the one hundred twentieth
( 1201h) calendar month after the Rent
Commencement Date {plus the partial month, if any, immediately following the Commencement Date) ("Expiration Date"), unless extended or sooner terminated as provided in this Lease.
Two (2) periods of five (5) years each as provided in and on the terms set forth in Section 8.20 hereof.
That certain parcel of land known as and numbered 77 Fourth Avenue, Waltham, Middlesex County, Massachusetts, being more particularly described in Exhibit A attached hereto.
The Building known as and numbered 77 CityPoint, Waltham, Massachusetts.
The entire second (2"d), third (3rd) and sixth
(6
1
h)
floors of the Building and certain portions of the first {1
5 )
and fourth (4
1 )
' h
floors of the Building, all as shown on the floor plans annexed hereto as Exhibit D-1 and incorporated herein by reference.
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Premises B:
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A portion of the first (1st) floor of the Building, as shown on the floor plan annexed hereto as Exhibit D-2 and incorporated herein by reference.
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Premises C:
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A portion of the fourth (4th) floor of the Building, as shown on the floor plan annexed hereto as Exhibit D-3 and incorporated herein by reference.
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Premises:
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Premises A, Premises B and Premises C, collectively (it being understood and agreed that wherever in this Lease the term "Premises" is used, it shall be deemed to refer to Premises A, Premises B and Premises C collectively and not to any of the foregoing spaces independently, unless the applicable language specifically and expressly indicates that the reference is
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intended to be made to one of the foregoing independently).
Number of Parking Spaces: To be provided at the rate of 3.4 spaces per
1,000 of Rentable Floor Area of the Premises, subject to the terms and conditions of Section 2.2.1 below.
Premises A Annual Fixed Rent: (a) For Lease Years one (1) through five
(5), at the annual rate of $5,921,800.50 (being the product of (x) $39.50 and (y) the "Rentable Floor Area of Premises A" (as hereinafter defined in this Section 1.1)), provided, however, that Premises A Annual Fixed Rent shall not commence until the Rent Commencement Date (as hereinabove defined in this Section 1.1).
(b)
For Lease Years six (6) through ten (10), at the annual rate of $6,521,476.50 (being the product of (x) $43.50 and (y) the Rentable Floor Area of Premises A).
(c)
During the extension option periods (if exercised), as determined pursuant to Section 8.20.
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Premises B Annual Fixed Rent: (a) For Lease Years one ( 1) through five
(5), at the annual rate of $180,400.50
(being the product of (x) $41.50 and
(y)
the "Rentable Floor Area of Premises B" (as hereinafter defined in this Section 1.1)), provided, however, that Premises B Annual Fixed Rent shall not commence until the Rent Commencement Date (as hereinabove defined in this Section 1.1).
(b)
For Lease Years six (6) through ten (10), at the annual rate of $197,788.50 (being the product of (x) $45.50 and
(y)
the Rentable Floor Area of Premises B).
(c)
During the extension option periods (if exercised), as determined pursuant to Section 8.20.
Premises C Annual Fixed Rent: (a) For Lease Years one (1) through five, at
the annual rate of $477,972.00 (being the product of (x) $44.00 and
(y)
the "Rentable Floor Area of Premises C" (as hereinafter defined in this Section 1.1)), provided, however, that Premises C Annual Fixed Rent shall not commence until the Rent Commencement Date (as hereinabove defined in this Section 1.1).
(b)
For Lease Years six (6) through ten ( 10), at the annual rate of $521,424.00
(being the product of (x) $48.00 and
(y)
the Rentable Floor Area of Premises C).
(c)
During the extension option periods (if exercised), as determined pursuant to Section 8.20.
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Annual Fixed Rent:
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The sum of Premises A Annual Fixed Rent, Premises B Annual Fixed Rent and Premises C Annual Fixed Rent (it being
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understood and agreed that wherever in this Lease the term "Annual Fixed Rent" is used, it shall be deemed to refer to
Premises A Annual Fixed Rent, Premises B
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Annual Fixed Rent and Premises C Annual Fixed Rent collectively and not to any of the foregoing rental amounts independently, unless the applicable language specifically and expressly indicates that the reference is intended to be made to one of the foregoing independently).
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Lease Year:
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For purposes hereof, "Lease Year" shall mean a twelve-(12)-month period beginning on the Rent Commencement Date or an anniversary of the Rent Commencement Date, provided, however, that
(i)
the first Lease Year shall include the period from the Commencement Date through the Rent Commencement Date (notwithstanding that this will result in a Lease Year containing more than twelve
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(12) months) and
(ii)
if the Rent Commencement Date does not fall on the first day of a calendar month, then the first Lease Year shall begin on the Commencement Date and end on the last day of the month containing the first anniversary of the Rent Commencement Date, and each succeeding Lease Year shall begin on the day following the last day of the prior Lease Year.
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Base Operating Expenses:
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Landlord's Operating Expenses (as hereinafter defined in Section 2.6) for calendar year 2009 (being January 1, 2009
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through December 31, 2009).
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Base Taxes:
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Landlord's Tax Expenses (as hereinafter defined in Section 2.7), representing a fully-assessed building (which will be determined in conjunction with the
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Waltham Tax Assessor's Office), for fiscal tax year 2010 (being July 1, 2009 through June 30, 2010); provided that in the event that certificates of occupancy have not been authorized for issuance for both the Base Building Work and the Tenant
Improvement Work by December 31, 2008
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(unless either of the same have not been so authorized as the result of a Tenant Delay, as defined in Section 3.2(B) below), or the tax assessment for fiscal tax year 2010 is otherwise discounted by the Waltham tax assessor due to Tenant not having been in occupancy of the Premises (provided Tenant moves in within thirty (30) days following the Substantial Completion Date), then Base Taxes shall be Landlord's Tax Expenses, representing a fully assessed building, for the fiscal tax year
next following the first January 1 after such certificate of occupancy is issued. By way of example only, if the applicable
certificate of occupancy is issued on February 15, 2009, then Base Taxes shall be based upon fiscal tax year 2011, which
begins on July 1, 2010, and which therefore is the first fiscal tax year next following the first January 1 after the certificate of occupancy is issued (being January I , 2010). Notwithstanding the foregoing, in no event shall the Base Taxes be less than the average taxes, on a per square foot basis, for the fiscal year on which the Base
Taxes are computed for the following properties in Waltham, Massachusetts: 201 Jones Road, 230 CityPoint, and 200 West Street.
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Tenant Electricity:
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Initially as provided in Section 2.5 subject to adjustment as provided in Section 2.8.
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Additional Rent:
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All charges and other sums payable by Tenant as set forth in this Lease, in addition to Annual Fixed Rent.
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Rentable Floor Area of Premises A: 149,919 square feet, subject to the
provisions of Section 2.1 hereof.
Rentable Floor Area of Premises B: 4,347 square feet, subject to the provisions
of Section 2.1 hereof.
Rentable Floor Area of Premises C: 10,863 square feet, subject to the
provisions of Section 2.1 hereof.
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Rentable Floor Area of the Premises:
Total Rentable Floor Area of the Building:
Permitted Use:
Initial Minimum Limits of Tenant's Commercial General Liability:
Broker(s):
Security Deposit:
Guarantor:
There are incorporated as part of this Lease:
165,129 square feet (being the sum of the Rentable Floor Area of Premises A, the Rentable Floor Area of Premises B and the Rentable Floor Area of Premises C), subject to the provisions of Section 2.1 hereof (it being understood and agreed that wherever in this Lease the term "Rentable Floor Area of the Premises" is used, it shall be deemed to refer to the Rentable Floor
Area of Premises A, the Rentable Floor Area of Premises B and the Rentable Floor Area of Premises C collectively and not to any of the foregoing rentable floor areas independently, unless the applicable language specifically and expressly indicates that the reference is intended to be made to one of the foregoing independently).
Agreed to contain 209,707 square feet.
General office purposes and uses ancillary thereto (such as kitchenettes, executive bathrooms, server rooms, etc.) as from time to time permitted under the Zoning By Law for the City of Waltham
.
$10,000,000.00 combined single limit per occurrence on a per location basis, which can be achieved through a combination of primary and umbrella liability coverage.
DTZ FHO Partners
One International Place Boston, MA 021 10
$961,980.25 subject to and in accordance with the provisions of Section 8.21 below.
None.
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Exhibit A Description of Site
Exhibit B-1 Base Building Plans and Specifications Exhibit B-2 Base Building Enhancements
Exhibit B-3 Interim Plan Requirements
Exhibit B-4 Tenant Plan and Working Drawing Requirements Exhibit B-5 Pre-Approved General Contractors
Exhibit C Landlord's Services
Exhibit D-1 Premises A Floor Plan
Exhibit D-2 Premises B Floor Plan
Exhibit D-3 Premises C Floor Plan
Exhibit E Form of Declaration Fixing Specific Dates
Exhibit F Form of Lien Waivers
Exhibit G Form of Letter of Credit
Exhibit H Broker Detennination of Annual Market Rent
Exhibit 1-1 Impact Signage Conceptual Plan
Exhibit 1-2 Monument Sign Conceptual Plan
Exhibit 1-3 Building Signage Conceptual Plan
Exhibit
J
-Roof Location for Emergency Generator
Exhibit K CityPoint Project
Exhibit L Form of Notice of Lease
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1.3
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Table of Articles and Sections
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ARTICLE 1 1
Reference Data 1
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1.1
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Subjects Referred To 1
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1.3 Table of Articles and Sections ....................... .' 8
ARTICLE
11.......................................................................................................................
l
1
Building, Premises, Term and Rent. 1 1
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2.2
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Rights to Use Common Facilities
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2.3
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Landlord's Reservations 23
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2.5
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Fixed Rent and Electricity Payments 23
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2.6
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Operating Expenses 24
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2.8
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Tenant Electricity 37
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ARTICLE III 40
Construction 40
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3.1
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Base Building Work; Base Building Enhancements 40
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3.2
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Tenant Improvement Work 40
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3.3
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Substantial Completion 49
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3.4
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Tenant's Remedies Based on Delays in Landlord's Work 52
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3.5
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Quality and Performance of Work 53
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3.6
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Landlord's Contribution; Tenant Plan Excess Costs 55
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ARTICLE IV 57
Landlord's Covenants; Interruptions and Delays 57
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4.1
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Landlord Covenants 57
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4.2
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Interruptions and Delays in Services and Repairs, Etc 61
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4.3
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Landlord's Insurance 63
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4.4
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Landlord's Indemnity 64
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4.5
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Leasing Restriction 64
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ARTICLE V 65
Tenant's Covenants 65
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5.2
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Repair and Yield .!:JP 65
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5.3 Use ....
..
..........- 66
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5.4
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Obstructions; Items Visible From Exterior; Rules and Regulations 68
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5.6
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Assignment; Sublease 68
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5.7
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Indemnity; Insurance 77
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5.8
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Personal Property at Tenant's Risk 78
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5.10
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Floor Load; Prevention of Vibration and Noise 79
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5.l l Personal Property Taxes 79
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5.12
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Compliance with Laws 80
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5.13
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Payment of Litigation Expenses 80
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ARTICLE VI 85
Casualty and Taking 85
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6.1
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Damage Resulting from Casualty 85
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6.2
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Uninsured Casualty 87
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6.3
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Rights of Termination for Taking 88
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6.5
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Allocation of Proceed Following Termination 90
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ARTICLE VII 91
Default. 91
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7.2
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Landlord's Default 95
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ARTICLE VIII 95
Miscellaneous Provisions 95
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8.1
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Extra Hazardous Use 95
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8.3
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Cumulative Remedies 96
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8.5
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Notice to Mortgagee and Ground Lessor 97
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8.6
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Assigrunent of Rents 97
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8.9
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Invalidity of Particular Provisions 98
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8.10
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Provisions Binding, Etc 99
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8.11
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Recording; Confidentiality 99
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8.13
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When Lease Becomes Binding 100
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8.14
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Section Headings 101
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8.15
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Rights of Mortgagee 101
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8.16 Status Reports and Financial Statements ................................................. I 02 8.17 Self-Help ...............
=
102
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8.20
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Extension Option 105
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8.21
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Security Deposit 107
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8.23 Tenant's Payments .................................................... ............................... l 09
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8.24
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Waiver of Trial By Jury 109
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8.26
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Tenant's Equipment 109
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8.27
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Building Amenities 1 13
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8.28
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Emergency Generator 113
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8.29
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Neighborhood Utilities and Telecommunications Lines 116
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8.30
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Waiver of Landlord's Lien 117
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ARTICLE II
BUILDING. PREMISES. TERM AND RENT
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and accepts from Landlord, the Premises in the Building excluding exterior faces of exterior walls, the common stairways and stairwells, elevators and elevator wells, fan rooms, electric and telephone closets, janitor closets, elevator vestibules, and pipes, ducts, conduits, wires and appurtenant fixtures serving exclusively or in common other parts of the Building and if the Premises includes less than the entire rentable area of any floor, excluding the common corridors, elevator lobbies and toilets located on such floor. Tenant shall have the non-exclusive right to use the loading areas, fan rooms, janitorial, electrical, telephone and telecommunications closets, conduits, risers, shafts, plenum spaces and elevators serving such Building, subject, however, to the extent Tenant is given prior written notice thereof, Landlord's reasonable rules and regulations relative to the access to and use of such spaces.
The term "Building" means the Building identified on the first page, and which is the subject of this Lease; the term "Site" means all, and also any part of the land described in Exhibit A, plus any additions or reductions thereto resulting from the change of any abutting street line and all parking areas and structures from time to time located on the Site
.
The term "Property" means the Building and the Site.
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2.1.l
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Tenant's Continuing Right of First Offer
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(A)
For the period commencing on the first day of the nineteenth (19
1
h)
full calendar month immediately following the date of this Lease and continuing throughout the Lease Term, on the conditions (which conditions Landlord may waive by written notice to Tenant at any time), that as of both the time that any portion of the RFO Premises (as hereinafter defined) becomes available for reletting (as hereinafter defined) and as of the commencement date of Tenant's leasing of such portion of the RFO Premises: (i) Tenant directly leases from Landlord at least 113,000 square feet of rentable floor area, (ii) no monetary or other material Event of Default of Tenant exists and there have been no more than two (2) monetary or other material Event of Default occurrences during the Lease Term, (iii) this Lease is still in full force and effect, and (iv) Tenant has neither assigned this Lease nor sublet more than twenty-five percent (25%) of the
rentable floor area then leased by Tenant (except for an assignment or sublease under Section 5.6. l below and except for the Initial Second Floor Subleases, as that term is defined in Section 5.6.6 below), Tenant shall have a right of first offer
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("Right of First Offer") to lease the RFO Premises, as hereinafter defined.
For the purposes hereof, the "RFO Premises" shall be defined as any and all space in the Building as and when such space becomes available for reletting (as hereinafter defined).
(B)
When any portion of the RFO Premises becomes available for reletting, as hereinafter defined, Landlord shall notify Tenant ("Landlord's RFO Premises Notice") of the availability of such space, which notice shall contain the size, configuration, location and date of availability of such RFO Premises (which such date of availability shall be (x) the day immediately following the date on which the lease term of the then-current tenant of the RFO Premises expires, in the event the RFO Premises becomes available as the result of a lease expiration, or (y) ninety (90) days following the date of Landlord's RFO Premises Notice, in the event the RFO Premises becomes available as the result of a termination of the existing lease prior to its scheduled expiration date), the Annual Market Rent, and the other business terms upon which Landlord is willing to so lease such space. The net effective rental rate set forth in Landlord's RFO Premises Notice expressed by the (i) Annual Market Rent for the RFO Premises quoted by Landlord, (ii) amount of Base Taxes and Base Operating Expenses, (iii) free rent or "build-out" period, if any, after the commencement of the lease term, (iv)
tenant improvement allowance, if any, and (v) length of the lease term, shall hereinafter be referred to as "Landlord's Offered Rental Terms."
For the purposes hereof:
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(1)
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The "Annual Market Rent" shall be the annual fair market rent for such space as of the date when the same becomes available for reletting, based upon the use of such space as first class office space utilizing properties of similar class and character within the Market Area (which for the purposes of this Lease shall be defined as Waltham, South Lexington, Needham, Newton and Wellesley).
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(2)
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Subject to the provisions of the immediately following paragraph, RFO Premises shall be deemed "available for reletting" when Landlord reasonably determines, subject to the provisions of the next paragraph of this subsection (B), that the then current tenant or occupant of the RFO Premises will vacate the RFO Premises at the expiration or earlier termination of such tenant's lease.
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In connection with the foregoing, Tenant acknowledges and agrees that Tenant's Right of First Offer shall be subject and subordinate to the existing extension rights of Administaff Client Services, L.P. and Pittiglio, Rabin, Todd & McGrath, Inc. ("PRTM") (the "Existing Tenants") under the terms of their existing leases with Landlord in effect as of the date of this Lease (the "Existing Leases").
Landlord agrees that it shall not have the right to amend either of the Existing
12
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Leases to provide the Existing Tenants with additional extension or expansion rights unless such rights are subordinate to Tenant's Right of First Offer; provided, however, that notwithstanding the foregoing, if either of the Existing Tenants shall fail to exercise any extension option within the applicable time period for exercise set forth in its Existing Lease, Landlord shall nonetheless have an additional period of seven (7) business days beyond the extension exercise deadline in its lease as aforesaid within which to receive and honor an extension exercise by such Existing Tenant of its Existing Lease before the portion of the ROFO Premises leased by such Existing Tenant shall be deemed available for reletting hereunder (it being expressly understood and agreed that (x) Landlord shall have no right to provide either of the Existing Tenants with extension or renewal rights beyond those provided to such Existing Tenants in their Existing Leases prior to the date hereof, without first providing Tenant with an opportunity to exercise its Right of First Offer hereunder and (y).the foregoing shall not preclude Landlord from providing additional extension options to either the Existing Tenants or any future tenant of RFO Premises in the event that Tenant has either declined or failed to timely exercise its Right of First Offer with respect to the portion of the RFO Premises at issue, whether or not such extension options are granted in the original lease documents executed by such tenants after Tenant has passed on such RFO Premises or in documents executed at a later date).
(C)
If
Tenant wishes to exercise Tenant's Right of First Offer, Tenant shall do so, if at all, by giving Landlord notice ("Tenant's RFO Exercise Notice") within ten ( 10) business days after receipt of Landlord's RFO Premises Notice. Tenant's RFO Exercise Notice shall specify:
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(i)
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whether or not Tenant disputes that the Annual Fixed Rent set forth in Landlord's RFO Premises Notice is the Annual Market Rent; and
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(ii)
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whether it shall be leasing the RFO Premises for ( 1) the lease tenn specified in Landlord's RFO Premises Notice or (2) a lease tenn that is cotenninous with the Term of this Lease with respect to the original Premises
(it
being understood and agreed that if less than thirty-six (36) months then remain in the Lease Term at the time Tenant delivers the Tenant's RFO Exercise Notice and Tenant desires that the lease term with respect to the RFO Premises be coterminous with the Lease Tenn with respect to the original Premises and if such period is shorter than the lease term offered in Landlord's RFO Premises Notice, Tenant must simultaneously exercise its extension option under Section 8.20 with its exercise of its rights under this Section 2.1 . l and that if no such extension option is then available to Tenant then the term with respect to the RFO Premises shall automatically be as specified in Landlord's RFO Premises Notice) (the lease term as determined under
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subsection (1) or (2) being hereinafter referred to as the "Designated RFO Lease Term").
(D)
(1)
If
Tenant shall give Tenant's RFO Exercise Notice that does not indicate a Rent Dispute, the same shall constitute an agreement to lease the RFO Premises upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.1, (ii) to the extent inconsistent with Landlord's Offered Rental Terms and (iii) that the Annual Fixed Rent shall be the amount specified in Landlord's RFO Premises Notice. Although such agreement to lease the RFO Premises shall be self-executing and binding on Tenant upon delivery of Tenant's RFO Exercise Notice, Landlord and Tenant shall exercise commercially reasonable good faith efforts to enter into an instrument in writing memorializing such leasing of the RFO Premises within sixty (60) days after Landlord's submission to Tenant of an amendment therefor and provided such amendment is limited in scope to modifications of the Lease necessary to memorialize Tenant's lease of the RFO Premises.
(2)
If
Tenant shall give Tenant's RFO Exercise Notice that does indicate a Rent Dispute, the parties shall negotiate in good faith for a period of twenty (20) days ("Negotiation Period") to reach agreement on the Annual Fixed Rent.
If
the parties reach such agreement within the Negotiation Period, then the same shall constitute an agreement to lease the RFO Premises upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1 .1, (ii) to the extent inconsistent with the Landlord's Offered Rental Terms and (iii) that the Annual Fixed Rent shall be the amount so agreed to by the parties pursuant to paragraph (3) below or by broker determination pursuant to paragraph (4) below, as applicable. Although such agreement to lease the RFO Premises shall be self-executing and binding on Tenant upon the agreement of the parties during the Negotiation Period upon the Annual Fixed Rent, Landlord and Tenant shall exercise commercially reasonable good faith efforts to enter into an instrument in writing memorializing such
leasing of the RFO Premises within sixty (60) days after Landlord's submission to Tenant of an amendment therefor and provided such amendment is limited in scope to modifications of the Lease necessary to memorialize Tenant's lease of
the RFO Premises.
(3)
If
Tenant shall give Tenant's RFO Exercise Notice that does indicate a Rent Dispute, and the parties do not reach agreement on the Annual Fixed Rent during the Negotiation Period, then Tenant shall have the right, for a period of five (5) business days after the expiration of the Negotiation Period, (i) to deliver to Landlord a notice ("Tenant's Rescission Notice") rescinding Tenant's RFO Exercise Notice, or (ii) to deliver to Landlord a request ("Broker Determination Request") for a broker determination of Annual Market Rent in accordance with the provisions of Section 8.20 and Exhibit H hereof.
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(4)
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If
Tenant shall timely deliver the Broker Determination Request,
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then the same shall constitute an agreement to lease the RFO Premises upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1. l ,
(ii)
to the extent inconsistent with the Landlord's Offered Rental Terms and (iii) that the Annual Fixed Rent shall be the Annual Market Rent as determined by the broker determination; and although such agreement shall be self-executing and binding on Tenant upon delivery of
the Broker Determination Request, Landlord and Tenant shall exercise commercially reasonable good faith efforts to enter into an instrument in writing memorializing such leasing of the RFO Premises within sixty (60) days after Landlord's submission to Tenant of an amendment therefor and provided such amendment is limited in scope to modifications of the Lease necessary to memorialize Tenant's lease of the RFO Premises.
(5)
lf Tenant timely gives Tenant's Rescission Notice, then Tenant's RFO Exercise Notice shall be of no further force and effect, and the provisions of subsection (E) below shall apply.
(6)
If Tenant fails to timely give either a Tenant's Rescission Notice or a Broker Determination Request, Tenant shall be deemed to have given a
Tenant's Rescission Notice.
(E)
If
Tenant shall not timely exercise its rights under this Section 2.1. l with respect to the RFO Premises designated in Landlord's RFO Premises Notice, Landlord shall be free to lease such RFO Premises to any party.
If
during the Term said RFO Premises again becomes available for reletting, Landlord shall again offer to lease such RFO Premises to Tenant pursuant to the provisions of this Section 2.1. l and the terms of this Section shall continue to apply to such RFO Premises.
If,
prior to the time that Landlord leases any portion of the RFO Premises which had previously been offered to Tenant pursuant to this Section 2.1. l but with respect to which Tenant had declined or otherwise failed to timely exercise its Right of First Offer (such portion of the RFO Premises being hereinafter referred to as the "Declined RFO Premises"), Landlord and Tenant shall subsequently agree that such Declined RFO Premises shall be leased to Tenant (it being understood and agreed that Landloro shall be under no obligation to re-offer such space to Tenant and Tenant shall be under no obligation to lease such space from Landlord), Tenant shall be entitled to require that the Annual Fixed Rent for such Declined RFO Premises be determined by the broker determination process in the same manner as if Tenant had elected to exercise its Right of First Offer when the Declined RFO Premises was initially offered to Tenant by Landlord.
(F)
If
Tenant shall timely exercise its rights under this Section 2.1.1 with respect to the RFO Premises designated in Landlord's RFO Premises Notice and if, thereafter, the then occupant of the RFO Premises with respect to which Tenant shall have so exercised such right wrongfully fails to deliver possession of such
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premises at the time when its tenancy is scheduled to expire, Landlord shall use reasonable efforts and due diligence (which shall be limited to the commencement and prosecution of an eviction proceeding within sixty (60) days after the date on which the hold-over commences, but shall not require the taking of any appeal) to evict such occupant from such space and to recover from such occupant any
Hold-Over Premium (as defined below) payable by such occupant. In such event, the commencement of the term of Tenant's occupancy and lease of such additional space shall, in the event of such holding over by such occupant, be deferred until possession of the additional space is delivered to Tenant. The failure of the then occupant of such premises to so vacate shall not constitute a
default or breach by Landlord and shall not give Tenant any right to terminate this Lease or to deduct from, offset against or withhold Annual Fixed Rent or Additional Rent (or any portions thereof); except that
(i)
if such hold-over
exceeds sixty (60) days, then Tenant may, within ten ( I O) business days after such date, cancel the exercise of its option to lease such portion of the RFO Premises
by giving to Landlord a written cancellation notice (the "Initial Cancellation Option") and (ii) if Tenant does not exercise the Initial Cancellation Option and such hold-over exceeds three hundred (300) days, then Tenant may, within ten (I 0) business days after such date, cancel the exercise of its option to lease such portion of the RFO Premises by giving to Landlord a written cancellation notice (the "Subsequent Cancellation Option") (provided, however, that in the case of both the Initial Cancellation Option and the Subsequent Cancellation Option, if
Landlord delivers such RFO Premises to Tenant on or before the date thirty (30) days after Landlord recei ves such cancellation notice, such cancellation notice shall be void and without further force or effect).
Alternatively, in lieu of exercising the Initial Cancellation Option but without limitation of Tenant's right to exercise the Subsequent Cancellation Option, Tenant shall have the right to require Landlord to pay to Tenant the net (i.e. net of the costs and expenses, including, attorneys' fees, incurred by Landlord in obtaining such Hold-Over Premium) amount of any Hold-Over Premium received by Landlord from such hold-over occupant relative to periods from and after the
sixty-first (61
51
)
day of any hold-over, when and if Landlord receives any such
payment; provided, however, that if Tenant does exercise the Subsequent Cancellation Option, it shall, as a condition precedent to the effectiveness of such Subsequent Cancellation Option, paYto Landlord as Additional Rent an amount equal to fifty percent (50%) of the net Hold-Over Premium paid by Landlord to Tenant through the date of exercise of the Subsequent Cancellation Option. For the purposes hereof, the term "Hold-Over Premium" shall be defined as the amount (if any) which a hold-over occupant of any portion of the RFO Premises is required to pay to Landlord in respect of its hold-over in the premises (whether characterized as rent, damages, or use and occupation) in excess of the amount of fixed rent and other charges which the tenant under whom such occupant claims would have been required to pay to Landlord had the term of such tenant's lease been extended throughout the period of such hold-over at the same rental rate as such tenant was required to pay during the last month of its tenancy.
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In the event that Tenant elects to cancel its exercise of its option hereunder as the result of a holding over by the existing occupant of the applicable portion of the RFO Premises, such portion of the RFO Premises will not be deemed available for reletting until the space has thereafter initially been leased to a third party,
unless Landlord failed to comply with its obligations to use reasonable efforts and due diligence to evict the existing occupant as set forth in and limited by this Section 2.1.1 (F) (in which event Landlord shall be required to re-offer the RFO Premises to Tenant prior to leasing the same to a third party).
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(G)
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Time is of the essence of this Section 2.1.1 and the rights granted to
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Tenant under this Section 2.1. l are continuous to be effective from time to time as and when Landlord shall determine that any RFO Premises will become available for reletting and said rights may become effective more than once during the Term.
(H)
Upon Tenant's written request made no more than twice in any calendar year during the Lease Term, Landlord shall provide Tenant with written updates of the expected availability of the leaseable areas in the Building and any buildings within the CityPoint Project then owned by Landlord or its affiliates; provided, however, that Landlord's failure to provide such updates shall in no
way be deemed to be a default of Landlord under this Lease or otherwise give rise to any liability on Landlord's part unless such failure was in bad faith.
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2.1.2
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Tenant's Contraction O
ption.
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Tenant shall have the one-time option of surrendering a portion of the Premises consisting of the entirety of the sixth (6
1
h)
floor of the Building (the "Reduction Premises") and containing 36,174 square feet of Rentable Floor Area (the "Rentable Floor Area of the Reduction Premises").
If
Tenant shall desire to surrender the Reduction Premises, Tenant shall provide notice to Landlord its election to reduce the size of the Premises no later than the end of the fourth (4
1
h)
Lease Year and such red uction shall be effective as of the end of the fifth (5th) Lease Year (the "Surrender Date"). As of the Surrender Date, (i) Tenant shall vacate the Reduction Premises leaving the-same in the condition required by this Lease upon the expiration or earlier termination of the Lease Term, (ii) the Reduction Premises shall be removed from the Premises demised to Tenant under the Lease, (iii) the "Rentable Floor Area of the Premises" shall be reduced by the Rentable Floor Area of the Reduction Premises and such reduced Rentable Floor Area of the Premises shall be used for purposes of calculating Annual Fixed Rent, Tenant's Operating Expenses Payment, Tenant's Tax Payment, and Tenant's Electricity Payment from and after the Surrender Date.
Prior to the Surrender Date Landlord and Tenant agree to execute an appropriate amendment to this Lease to reflect the removal of the Reduction Premises from the space demised from Landlord to Tenant under this Lease. In addition, and as a
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condition prerequisite to the reduction of the Premises, Tenant shall deliver to Landlord on or before the Surrender Date an amount (the "Contraction Fee")
equal to the Unamortized Part (as defined below) of Landlord's Transaction Costs (as defined below) in respect of the Reduction Premises. For the purposes hereof:
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(i)
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The "Unamortized Part" shall mean the amount which would remain unpaid as of the Surrender Date with respect to a loan in an original amount equal to Landlord's Transaction Costs incurred by Landlord with respect to the Reduction Premises and which is amortized over the Original Term at an interest rate of ten percent (10%) per annum and repaid over the ten {10) year period commencing as of the Rent Commencement Date.
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(ii)
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"Landlord's Transaction Costs" for the Reduction Premises·shall
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be equal to the sum of: (i) Landlord's Contribution in respect of the Reduction Premises, plus (ii) all brokerage commissions incurred by Landlord in connection with the demise of the Reduction Premises to Tenant (to be determined based upon a per square foot allocation of Landlord's overall brokerage commissions in connection with the execution of this Lease). Landlord shall, upon request of Tenant, promptly after the amount of the Landlord's Transaction Costs has been determined, provide to Tenant a certified statement setting forth such costs.
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2.2
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Rights to Use Common Facilities
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Subject to Landlord's right to change or alter any of the following in Landlord's discretion as herein provided, Tenant shall have, as appurtenant to the Premises, the non exclusive right to use in common with others, 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, corridors, stairways, elevators, trash areas, parking areas, loading areas, and other similar areas and facilities of the Building, and the pipes, ducts, conduits, wires and appurtenant meters and equipment serving the Premises in common with others, (b) common walkways and driveways necessary for access to the Building, (c) if the Premises include less than the entire rentable floor area of any floor, the common toilets, corridors and elevator lobby of such floor, and (d) the Amenities set forth in Section 8.27 of this Lease (collectively, the "Common Areas"). No changes shall be made to the Common Areas that would unreasonably interfere with Tenant's access to or use of the Premises for the purposes of this Lease or that would adversely affect the quality of the Common Areas (including without limitation the
Amenities) serving the Building as of the Rent Commencement Date (subject to the provisions of Section 8.27 below). Notwithstanding anything to the contrary herein, Landlord has no obligation to allow any particular telecommunication service provider to have access to the Building or to the Premises except as may be required by applicable law and except that Landlord agrees to permit Verizon to have telecommunications
access to the Premises and the Building at no additional charge for the purpose of providing telecommunications service to Tenant. Except as otherwise expressly provided
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above, if Landlord permits such access, Landlord may condition such access upon the payment to Landlord by the service provider of fees assessed by Landlord in its reasonable discretion. Notwithstanding the foregoing, Landlord will not unreasonably withhold, condition or delay its approval of any telecommunications provider designated by Tenant to service the Premises, so long as such provider is not utilizing the Site to provide service to third parties other than Tenant.
Tenant shall have a non-exclusive right to use the fire stairwells in the Building (the "Fire Stairs") for the purpose of access between the floors of the Building on which the Premises are located, at no additional rental charge to Tenant, provided that
(I )
such use shall be permitted by, and at all times be in accordance with, all applicable Legal Requirements (as that term is defined in Section 3.4 below); and (2) Tenant shall comply with all of Landlord's reasonable rules and regulations adopted from time to time with respect thereto. Tenant may, at its sole cost and expense, install a key card locking system reasonably satisfactory to Landlord on all doors between the Fire Stairs and the floors of the Premises and tie Tenant's security system into the Building security system, provided that in any event such locking system must be configured in such a way so as to automatically disengage in the event of an emergency. Tenant shall provide Landlord
with a "master" card key so that Landlord shall have access through each entry door. Tenant may paint the Fire Stairs and install light fixtures therein and make such other Alterations as Landlord shall approve, which approval shall be granted or withheld in accordance with the terms of this Lease (provided, however, that under no circumstances shall Tenant be entitled to install (x) carpeting on the Fire Stairs or (y) lighting which does not meet the standards for emergency lighting).
(A)
Tenant shall have the right, free of charge for the Term of this Lease, to use in the parking areas on the Site throughout the Term the Number of Parking Spaces (referred to in Section 1.1) for the parking of automobiles, in common with use by other tenants from time to time of the Building, provided, however, that Landlord shall not be obligated to furnish stalls or spaces on the Site specifically designated for Tenant's use (provided further that if Landlord shall provide any other tenant in the Building with reserved parking spaces on the Site, Landlord shall (i) offer Tenant reserved spaces-on the same basis as was provided to the other tenant, in proportion to the respective rentable floor areas leased by Tenant and such other tenant, and (ii) so long as Tenant occupies more rentable floor area in the Building that any other tenant, give Tenant the first opportunity
to select the location of its reserved parking spaces within the area(s) designated by Landlord for reserved parking). In the event that the Rentable Floor Area of the Premises increases or decreases at any time during the Lease Term, the Number of Parking Spaces provided to Tenant hereunder shall be increased or reduced proportionately (subject to the provisions of subsection (B) below) in accordance with the parking ratio set forth in Section 1.1
.
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(B)
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Tenant has informed Landlord that Tenant may require parking at a ratio
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greater than the Number of Parking Spaces set forth in Section 1.1 (the "Original Parking Ratio"), and Landlord has estimated, based on projected parking usage patterns, that the existing parking areas on the Site can accommodate parking for up to 4.0 passenger vehicles per 1,000 square feet of the Rentable Floor Area of the Premises initially demised to Tenant (the "Higher Parking Ratio"). In connection with the foregoing, Tenant acknowledges that the total number of actual parking spaces on the Site is sufficient to satisfy parking at the Original Parking Ratio but not at the Higher Parking Ratio, and that the availability of additional parking in an amount up to the Higher Parking Ratio is dependent on the actual usage of the existing parking spaces by the tenants of the Building.
Landlord represents that Landlord has not granted any other tenant or occupant of the Site the right to use parking spaces in excess of the Original Parking Ratio, and that it will use commercially reasonable efforts to enforce the terms and provisions of its leases with other tenants of the Building in the event of any use
by such tenants of parking spaces in excess of the parking ratios provided to them. In addition, Landlord shall not
(i)
grant any tenant or occupant at the Site the right to use parking spaces serving the Building at a ratio in excess of the Original Parking Ratio, (ii) voluntarily reduce the number of available parking spaces at
the Site unless expressly permitted in this Lease or (iii) grant any other owners, occupants or users of the CityPoint Project or other neighboring properties the right to park in the parking areas on the Site (such as, by way of example only, using a portion of the parking areas at the Site to satisfy any off-site parking obligations set forth in another lease at the City Point Project or other development by Landlord or any entity affiliated with Landlord), except to the extent that any of the foregoing can be done without adversely impacting Tenant's ability to utilize the Higher Parking Ratio or causing a Parking Shortage (e.g., Landlord might be permitted to provide a third party with the right to park on the Site
during off-peak hours or for a limited period ohime, etc.)
Notwithstanding anything contained herein to the contrary (but subject to provisions of the last sentence of the next paragraph of this subsection (B)), Tenant shall not be deemed to be in default of its obligations under this Lease if it shall utilize more than the Original Parking Ratio, so long as Tenant does not exceed the Higher Parking Ratio; provided, however, that (x) the right to utilize the Higher Parking Ratio shall be personal to Phase Forward, Inc. (and any permitted assignee pursuant to Section 5.6. l ) and shall not be transferable to any assignee or subtenant and (y) in the event that the size of the Premises shall increase at any time during the Term, Tenant shall only be entitled to additional parking rights for such additional premises at the Original Parking Ratio.
In the event that Tenant uses parking spaces in excess of the Original Parking Ratio and such excess usage results in the existence of a Parking Shortage (as defined in subsection (C) below), Landlord shall use commercially reasonable efforts to (x) implement a managed parking program for the parking areas on the Site (the "Managed Parking Program") and/or (y) locate additional parking areas in the vicinity of the Site and within the CityPoint Project for use as satellite
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parking for the Building (the "Off-Site Parking") (Landlord hereby further agreeing to use commercially reasonable efforts to obtain Off-Site Parking within such CityPoint Project as close to the Site as possible). All costs associated with the Managed Parking Program shall be payable by the tenants of the Building as part of Landlord's Operating Expenses under Section 2.6 below. To the extent that Tenant is the sole user of the Off-Site Parking and the sole cause of the Parking Shortage, all costs associated therewith shall be payable by Tenant as Additional Rent within thirty (30) days after receipt by Tenant of an invoice from Landlord therefore (provided, however, that if Tenant is not the sole user of the Off-Site Parking, or is not the sole cause of the Parking Shortage, then Tenant shall only be required to pay its pro rata share of such costs as part of Landlord's Operating Expenses under Section 2.6 below). Notwithstanding the foregoing, under no circumstances shall Landlord be required to endeavor to obtain the Off Site Parking in the event of a Parking Shortage that occurs during the last three ·
(3) years of the Lease Term unless and until Tenant shall validly exercise its then current extension option under Section 8.20 below (it being understood and
agreed in connection with the foregoing that (x) Landlord shall have no obligation to endeavor to obtain the Off-Site Parking in the event that Tenant shall have no further rights to extend the Lease Term and (y) Landlord shall nonetheless be required to use commercially reasonable efforts to implement the Managed Parking Program to address the Parking Shortage irrespective of the amount of time remaining in the Lease Term).
Tenant acknowledges and agrees that there may be a temporary disruption in parking in connection with the conversion to a Managed Parking Program and/or Off-Site Parking, and Tenant shall reasonably cooperate with Landlord during such conversion (Landlord hereby agreeing to use commercially reasonable efforts to minimize such disruption). Tenant further acknowledges and agrees that Landlord shall in no event be deemed to be in default of its obligations under this Lease if it cannot provide Tenant with parking in excess of the Original Parking Ratio, provided that Landlord has used commercially reasonable efforts
to implement the Managed Parking Program and/or obtain the Off-Site Parking as set forth herein. In addition, in the event there is a Parking Shortage and Landlord has been unable to implement a Managed Parking Program and/or provide Off Site Parking despite the use of commercially reasonable efforts as aforesaid, Landlord shall have the right to modify the configuration of or access to the parking areas on the Site (e.g., by creating or designating separate "pods" within the parking areas for parking by specific tenants) as Landlord deems appropriate
in its reasonable discretion to insure that Landlord is able to fulfill its obligations under leases with other Building tenants and Tenant to provide parking to such tenants and Tenant at the Original Parking Ratio. In the event that Landlord does create separate "pods" as aforesaid, Landlord shall meet with Tenant beforehand to discuss the proposed location(s) of such pods (Landlord hereby agreeing to consult with Tenant in good faith regarding the location(s) of such pods, provided that the final determination shall be made by Landlord in its reasonable discretion).
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(C)
For the purposes hereof, a "Parking Shortage" shall be defined as a lack of available parking spaces on the Site, as determined in accordance
with
the following procedure:
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(i)
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In the event that Landlord receives four (4) written complaints from tenants of the Building (which shall include complaints by Tenant) over a period of two (2) weeks indicating that they are unable to find parking spaces at the Building, Landlord shall perform and complete a parking survey of the Site within four (4) weeks of its receipt of the last such complaint.
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(ii)
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If
the parking survey indicates that fewer than seven (7) parking spaces on the Site are available for tenant and visitor parking on more than four (4) Business Days over a period of two (2) weeks, then Landlord shall attempt to ascertain whether the cause of the problem is a particular tenant's overuse of the number of parking spaces provided to such tenant under the terms of its lease and shall take reasonable measures to enforce the terms of such lease and rectify the situation.
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(iii)
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In the event that the overuse cannot be readily addressed by Landlord or is caused by Tenant's use of parking spaces in excess of the Original Parking Ratio, then a Parking Shortage shall be deemed to exist and shall trigger Landlord's obligations under this Section 2.2.1 to use commercially reasonable efforts to implement the Managed Parking Program and/or obtain the Off-Site Parking.
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(D)
Tenant covenants and agrees that it and all persons claiming by, through and under it, shall at all times abide by all reasonable rules and regulations promulgated by Landlord with respect to the use of the parking areas on the Site (which may include vehicle stickers and/or access card programs), provided such rules and regulations are not inconsistent with Tenant's rights under this Lease and are of general applicability to the occupants of the Site. The parking privileges granted herein are non-transferable except-to a permitted assignee or subtenant as provided in Section 5.6 through SecfiOn 5.6.5 or to a Permitted Occupant under Section 5.6.7 below (with the exception of the right to use parking spaces in excess of the Original Parking Ratio, which may not be transferred other than in connection with a transfer permitted under Section 5.6.1
of this Lease). Further, Landlord assumes no responsibility whatsoever for loss or damage due to fire, theft or otherwise to any automobile(s) parked on the Site or to any personal property therein, however caused, and Tenant covenants and agrees, upon request from Landlord from time to time, to notify its officers, employees, agents and invitees of such limitation of liability. Tenant acknowledges and agrees that a license only is hereby granted, and no bailment is intended or shall be created.
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2.3
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Landlord's Reservations
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Landlord reserves the right from time to time, without unreasonable interference with Tenant's use and upon reasonable prior notice to Tenant (except in the event of an emergency): (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, and (b) to alter or relocate any other common facility, provided that substitutions are substantially equivalent or better. Installations, replacements and relocations referred to in clause (a) above shall be located so far as practicable in the central core area of the Building, above ceiling surfaces, below floor surfaces or within perimeter walls of the Premises. In exercising its rights hereunder, Landlord shall use reasonable efforts to minimize interference with Tenant's use of the Premises for the Permitted Use, consistent with the nature of the rights being exercised.
Tenant shall have and hold the Premises for a period commencing on the date (the "Commencement Date") that is the earlier of (a) the Substantial Completion Date (as that term is defined in Section 3.3 below) (but in no event prior to December 1, 2008), and (b) that date on which Tenant commences occupancy of any portion of the Premises for the Permitted Use and continuing for the Term unless sooner terminated as provided in Article VI or Article VII or unless extended as provided in Section 8.20.
As soon as may be convenient after the determination of the Commencement Date, Rent Commencement Date and Expiration Date, Landlord and Tenant agree to joi n with each other in the execution of a written Declaration, in the form of Exhibit E, in which said dates shall be stated. If Tenant fails to execute or correct such Declaration within thirty
(30)
days after such Declaration is submitted by Landlord to Tenant, the Commencement Date, Rent Commencement Date and Expiration Date shall be as originally set forth in the Declaration delivered by Landlord.
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2.5
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Fixed Rent and Electricity Payments
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Tenant agrees to pay to Landlord, or as directed by Landlord; at Landlord's Original Address specified in Section 1.1 hereof, or at such other place as Landlord shall from time to time designate by at least thirty (30) days prior written notice to Tenant,
(1)
(a) on the Rent Commencement Date (defined in Section 1.1 hereof) and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Term, a sum equal to one twelfth
(1112'h)
of the Annual Fixed Rent (sometimes hereinafter referred to as "fixed rent") and (b) on the Commencement Date and thereafter monthly,
in advance, on the first day of each and every calendar month during the Original Term, an amount estimated by Landlord from time to time to cover Tenant's monthly payments for electricity under Section 2.8 hereinbelow, and (2) on the first day of each and every calendar month during each extension option period (if exercised), a sum equal to (a) one twelfth
(1/12'h)
of the Annual Fixed Rent as determined in Section 8.20 for the applicable
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extension option period plus (b) then applicable monthly electricity charges (subject to escalation for electricity as provided in Section 2.8 hereof). Until notice of some other designation is given, fixed rent and all other charges for which provision is herein made shall be paid by remittance to or for the order of Boston Properties Limited Partnership either (i) by mail to P.O. Box 3557, Boston, Massachusetts 02241-3557, (ii) by wire transfer to Bank of America in Dallas, Texas, Bank Routing Number 0260-0959-3 or (iii) by ACH transfer to Bank of America in Dallas, Texas, Bank Routing Number 111 000 012, and in the case of (ii) or (iii) referencing Account Number 3756454460, Account Name of Boston Properties, LP, Tenant's name and the Property address. All remittances received by Boston Properties Limited Partnership, as Agents as aforesaid, or by any subsequently designated recipient, shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at such rate on a pro rata basis, and, if the Rent Commencement Date is a day other than the first day of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to Landlord shall be a payment equal to a proportionate part of such Annual Fixed Rent for the partial month from the Rent Commencement Date to the first day of the succeeding . calendar month
.
Additional Rent payable by Tenant on a monthly basis, as hereinafter provided, likewise shall be prorated, and the first payment on account thereof shall be determined in similar fashion but shall commence on the Rent Commencement Date (with the exception of payments on account of electricity, which shall commence on the Commencement Date as set forth in the first paragraph of this Section 2.5 and Tenant's Operating Expenses Payment and Tenant's Tax Payment which shall be commence as set forth in Sections 2.6 and 2.7, respectively); and other provisions of this Lease calling for monthly payments shall be read as incorporating this undertaking by Tenant.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence until the Rent Commencement Date, Tenant shall be subject to, and shall comply with, all other provisions of this Lease as and at the times provided in this Lease
.
The Annual Fixed Rent and all other charges for which provision is herein made shall be paid by Tenant to Landlord, without offset, deduction or abatement except as otherwise specifically set forth in this Lease. -
"Landlord's Operating Expenses" means the cost ofoperation of the Building and the Site which shall exclude costs of special services rendered to tenants (including Tenant) for which a separate charge is made, but shall include, without limitation, the following: premiums for insurance carried with respect to the Building and the Site (including, without limitation, liability insurance, insurance against loss in case of fire or casualty and insurance of monthly installments of fixed rent and any Additional Rent which may
be
due under this Lease and other leases of space in the Building for not more than twelve (12) months in the case of both fixed rent and Additional Rent and if there be any
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first mortgage of the Property, including such insurance as may be required by the holder of such first mortgage, provided, however, with respect to insurance coverages required to be carried by a holder of a mortgage, such coverages are of the type and amounts customarily required to be carried by lenders of comparable class A, multi-tenant office buildings in the Market Area); compensation and all fringe benefits, worker's compensation insurance premiums and payroll taxes paid to, for or with respect to all persons engaged exclusively in the operating, maintaining or cleaning of the Building or Site (and in the event such persons are also employed on other properties of Landlord or its affiliates, such compensation shall
be
equitably prorated among the Building and such other properties), water, sewer, electric, gas, oil and telephone charges (excluding utility charges separately chargeable to tenants for additional or special services and excluding costs to supply electricity to leaseable areas of the Building, with the exception of any
building management offices); cost of buildi ng and cleaning supplies and equipment; cost of maintenance, cleaning and repairs (other than repairs not properly chargeable against income or reimbursable from contractors under guarantees); cost of snow removal and care of landscaping; cost of operating, maintaining, cleaning and providing utilities to any conference center, cafeteria, fitness center or other amenity serving the Building (and excluding any costs to construct and initially furnish such amenities or any subsidy for cafeteria operations unless specifically agreed to by Tenant in writing); payments under service contracts with independent contractors; management fees at reasonable rates for self managed buildings consistent with the type of occupancy and the service rendered, which management fees shall not exceed three percent (3%) of the total Gross Rents for the Building ("Gross Rents for the Building" for the purposes hereof being defined as annual fixed rent, Landlord's Operating Expenses, with the exception of the aforesaid management fee, and Landlord's Tax Expenses for the Building for the relevant calendar year); costs of maintaining a regional property management office (allocated pro rata among all properties owned by Landlord or its affiliates served by such regional property management office) in connection with the operation, management and maintenance of the Building; and all other reasonable and necessary expenses paid in connection with the operation, cleaning and maintenance of the Building and the Site and properly chargeable against income, provided, however, there shall be included (a) depreciation for capital expenditures made by Landlord during the Lease Term (i) to reduce Landlord's
Operating Expenses if Landlord shall have reasonably determined that the annual reduction in Landlord's Operating Expenses shall exceed the annual depreciation therefor or (ii) to comply with applicable laws, rules, regulations, requirements, statutes, ordinances, by-laws and court decisions of all public authoritieswhich first become applicable to the Property after the Base Building Completion Date (the capital expenditures described in subsections (i) and
(ii)
being hereinafter referred to as "Permitted Capital Expenditures"); plus (b) in the case of both (i) and (ii) an interest factor, reasonably determined by Landlord, as being the interest rate then charged for
long-term mortgages by institutional lenders on like properties within the locality in which the Building is located; depreciation in the case of both (i) and (ii) shall
be
determined by dividing the original cost of such capital expenditure by the number of years of useful life of the capital item acquired and 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.
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Notwithstanding the generality of the preceding text, the following items shall be excluded or deducted, as the case may be, from the calculation of Tenant's share of Landlord's Operating Expenses:
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(i)
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All capital expenditures and depreciation, including all costs that under generally accepted accounting principles are properly classified as capital expenses, capital improvements or capital repairs, except as otherwise explicitly provided in this Section 2.6;
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(ii)
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Interest on indebtedness, debt amortization, ground rent, financing and
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refinancing costs for any mortgage or ground lease or overlease of the Building or the Site and transfer taxes, recording costs and taxes, title insurance premiums, title closer's fees and gratuities and other similar costs incurred in connection with the sale or transfer of an interest in Landlord or the Building;
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(iii)
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Legal, auditing, consulting and professional fees and other costs (other than those legal, auditing, consulting and professional fees and other costs incurred in connection with the normal and routine maintenance and operation of the Building and/or the Site), including, without limitation, those: (i) paid or incurred in connection with financings, refinancings or sales of any Landlord's interest in the Building and/or the Site; (ii) relating to any special reporting required by
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securities laws; (iii) relating to negotiations or disputes with, or leasing to, tenants or prospective tenants; (iv) relating to litigation (including costs of settlement judgments and payments in lieu thereof); (v) the interpretation of leases or other occupancy agreements; (vi) the enforcement of the provisions of any lease or other occupancy agreement affecting the Building including without limitation this Lease; (vii) the initial construction of the improvements on the Site; (viii) the
review, approval or other actions in connection with the sublease or assignment of tenant leases (provided, however, that Tenant shall nonetheless be responsible under Section 5.6.5(b) for any such costs relative to its own requests for consent
to a sublease or assignment); (ix) any action against a present or former tenant or occupant under a lease or other occupancy agreement, including, without limitation, eviction, distraint, levy and collection actions; and (x) costs incurred as a result of the violation by Landlord or any tenant of the terms and conditions of any lease;
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(iv)
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The cost of any item or service to the extent reimbursed or reimbursable to Landlord by insurance required to be maintained under the Lease or by any third party;
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(v)
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The cost of repairs or replacements incurred by reason of fire or other casualty or condemnation other than costs not in excess of a commercially reasonable deductible (currently $25,000.00) on any insurance maintained by Landlord which provides a recovery for such repair or replacement;
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(vi)
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Any advertising, promotional or marketing expenses for the Buildings;
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(vii)
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The cost of any service or materials provided by any party related to Landlord (other than the management fee), to the extent such costs exceed the reasonable cost for such service or materials absent such relationship in buildings similar to the Building in the vicinity of the Building;
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(viii)
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Payments for rented equipment, the cost of which equipment would constitute a capital expenditure if the equipment were purchased to the extent that such payments exceed the amount which could have been included in Landlord's Operating Expenses had Landlord purchased such equipment rather than leasing such equipment;
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(ix)
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Penalties, damages, and interest for late payment or violations of any obligations of Landlord, including, without limitation, taxes, Legal Requirements, insurance, equipment leases and other past due amounts;
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(x)
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Contributions to charitable or political organizations or trade associations such as BOMA or NAIOP, and any entertainment, dining or travel expenses of Landlord's employees for any purpose;
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(xi)
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The costs incurred to monitor, test, survey, clean-up, contain, encapsulate, abate, remove or remediate any "Hazardous Materials" (as defined in Section 5.3), including asbestos and mold, in the Buildings or on the Site required by "Hazardous Materials Laws" (as defined in Section 5.3) and including costs to defend against claims in regard to the existence or release of Hazardous Materials at the Bui lding or the Site;
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(xii)
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Any and all costs incurred to install, repair, operate, maintain and replace the subslab venting system installed in the Building as part of the Base Building Work under Section 3.1 below (or any costs associated with modifying the original subslab venting system or installing supplemental systems should it be determined that the original system installed as part of the Base Building Work was insufficient to mitigate air quality issues associated with conditions existing at the Property as of the date of this Lease);
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(xiii)
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Wages, salaries, or other compensation (including benefits and benefit plans) paid to any executive employees above the grade of Regional Property Manager;
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(xiv)
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Amounts payable by Landlord for withdrawal liability to a multi-employer pension plan (under Title IV of the Employment Retirement Income Security Act of 1974, as amended) due to complete or partial withdrawal that occurs during the term of this Lease due to events within the control of Landlord (e.g., the sale of Landlord's interest in the Building);
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(xv)
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Costs in connection with leasing space in the Building or to retain existing tenants, including brokerage commissions, lease concessions, lease assumptions, rental abatements, construction allowances granted to specific tenants and
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alteration work performed by Landlord to prepare space for tenants, includi ng any utilities or services incurred in connection with performing such work;
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(xvi)
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The cost of any work or service performed or rendered exclusively for any tenant of the Building, including Tenant, and costs incurred in connection with the making of repairs which are the obligations of another tenant of the Building;
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(xvii)
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The cost of acquisition of any sculpture, paintings or other objects of art;
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(xviii)
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Any amounts billed or billable to Tenant or any other tenant for any services furnished to Tenant or any other tenant by Landlord or Landlord's agents or contractors for which a separate charge is made, including, without limitation, the supply of overtime air-conditioning, ventilation and heating, and above-standard cleaning services, or for services or work furnished to any tenant to the extent such services or work are furnished in a more favorable manner to such tenant
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than furnished generally to tenants of the Building as part of Landlord's Operating Expenses;
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(xix)
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Any costs of maintenance, repairs or replacements required because of the negligent or willful act or omission of Landlord, its officers, directors, servants, agents, employees or contractors;
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(xx)
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Any expenses to design and construct (including permitting fees, costs of insurance and bonds, and costs of equipment and materials) the Base Building Work and the Base Building Enhancements and any costs to correct any defects, latent or patent, in any of the equipment or improvements which are a part of the Base Building Work and/or the Base Building Enhancements (except to the extent caused by Tenant's use of the Premises for other than general office use);
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(xxi)
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Reserves for bad debts or for future improvements, repairs or additions;
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(xxii)
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Any above-standard cleaning (which shall include trash collectioo and removal), including, but not limited to construction cleanup or special cleanings associated with parties/events and specific tenant requirements in excess of service provided to Tenant, and including the costs of initial cleaning and rubbish removal performed for final completion of the Building, the Site or any tenant space;
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(xxiii)
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The costs of new services or substantial increases in existing services (such as a substantial increase in security services) to the extent such new or increased level of services are required solely as the result of the presence of a particular occupant of the Building, such as for example, the costs of providing additional security services due to threats against a particular occupant of the Building;
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(xxiv)
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Costs in connection with acquiring additional land or development rights or of constructing any additional buildings within the Site (provided, however, that the foregoing shall not be construed so as to limit or modify Tenant's obligation to pay the costs associated with the Off-Site Parking under Section 2.2.1 above);
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(xxv)
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Without limitation of any other exclusions from Landlord's Operating Expenses, costs and expenses incurred by Landlord in curing, repairing or replacing any structural portion of the Building (including the roof) within five (5) years of the Actual Base Building Completion Date (as the term is defined in Section 3. l (B) below) to the extent such cure, repair or replacement was made necessary as a result of defects in the design, workmanship or materials of the Base Building Work);
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(xxvi)
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Costs of initial landscapi ng of the Building or the Site;
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(xxvii)
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Costs of the initial stock of tools and equipment for operation, repair and maintenance of the Building and Site and all furniture, equipment and fixtures for the Amenities;
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(xxviii)
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Costs of mitigation or impact fees or subsidies imposed or incurred in connection with the initial construction of the Building, or imposed or incurred solely as a result of any tenant's use ofor occupancy of the Building or the Site;
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(xxix)
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Costs incurred in connection with the operation of any retail or restaurant operations for the Building, including without limitation, any operating subsidy for the cafeteria (provided that the costs of operating, maintaining, cleaning and providing utilities to the cafeteria may be included in Landlord's Operating Expenses);
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(xxx)
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Costs incurred in connection with upgrading the Property to comply with laws, rules, regulations or codes first applicable to the Property prior to the Commencement Date; and
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(xxxi)
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Except as expressly provided in this Lease with respect to the Managed Parking Program and the Off-Site Parking and for so long as Tenant directly leases and occupies seventy percent (70%) or more of the Total Rentable Ffoor Area of the Building, costs of adding any new services or new building amenities not in place as of the Commencement Date which are not either (1) consented to by Tenant in writing or (2) actually utilized by Tenant's employees irrespective of whether Tenant has not consented to the same (e.g., if Landlord initiates a shuttle bus service to public transportation and Tenant does not consent to the same but Tenant's employees use the shuttle bus on a regular basis) or (3) required by applicable laws, rules, regulations or codes first applicable to the Property after the Commencement Date, and further subject to the gross up of Base Operating Expenses as hereinafter set forth. Services or building amenities will not be deemed to be "utilized by Tenant's employees" unless either (i) Tenant notifies
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Landlord in writing that Tenant's employees will utilize the service or amenity, or
(ii) Landlord provides Tenant with written notice that Tenant's employees have been found to be regularly or consistently using such service or amenity and, thereafter, such use by Tenant's employees continues on or after the date that is two (2) weeks following Tenant's recei pt of Landlord's notice.
Notwithstanding anything in this Lease to the contrary, to the extent that Landlord provides or procures services for the Building together with other buildings in the CityPoint Project or otherwise operated by Landlord or any affiliate thereof, then the costs of such services shall be allocated between the Building and such other buildings in a manner reasonably determined by Landlord. In no event shall Landlord be entitled to retain more than one hundred percent (100%) of the Landlord's Operating Expenses actually paid or incurred by Landlord in any particular calendar year.
"Operating Expenses Allocable to the Premises" shall mean the same proportion of Landlord's Operating Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor Area of the Building.
"Base Operating Expenses" is hereinbefore defined in Section 1.1. Base Operating Expenses shall not include (i) market-wide cost increases due to extraordinary circumstances (as hereinafter defined), including but not limited to Landlord's Force Majeure (as hereinafter defined), conservation surcharges, boycotts, strikes, or embargoes or shortages and (ii) the cost of any Permitted Capital Expenditures required in order to comply with applicable laws, rules, regulations or codes first applicable to the Property after the Base Building Completion Date; provided, however, that if there are elements of Building repair and maintenance which would have been included in Base Operating Expenses except that they were covered under construction or installation warranties at
no additional cost to Landlord, the cost of such repair and maintenance items shall be imputed into Base Operating Expenses. When used in this Section 2.6, "Landlord's Force Majeure" shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorist acts, civil commotions, unusual scarcity of or inability to obtain labor or materials, labor difficulties, casualty or other causes reasonably beyond Landlord's control or attributable to Tenant's action or inaction. For purposes of this Section 2.6, "market-wide cost increases due-to extraordinary circumstances" shall mean an actual, material increase in acategory of Landlord's Operating Expenses under this Lease in excess of the amount reasonably budgeted by Landlord for such expense category in the Base Operating Expenses which is attributable to some unanticipated event or circumstance occurring during the Base Year and that affects the Market Area in general for a temporary period of time and
where the costs for such category(ies) subsequently returns, within not more than nine (9) months after the calendar year used for calculating Base Operating Expenses, to amounts that would otherwise have been consistent with the projected and normal level of increases in such category(ies) of costs during subsequent years of the Term. In the event that the costs of any new service, substantial increase in existing services or new building amenity (other than the Managed Parking Program or the Off-Site Parking) is added to
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Landlord's Operating Expenses (subject to the limitations of clause (xxxi) above) after calendar year 2009, the amount of Base Operating Expenses shall be equitably adjusted by adding an amount equal to the annual costs of such new services or amenities or substantial increase in existing services incurred during the first twelve (12) months following which such new service or amenity or substantial increase in service is instituted or first effected (in any event, discounted to reflect what such costs would have been in 2009).
"Base Operating Expenses Allocable to the Premises" means the same proportion of Base Operating Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant's Space bears to Total Rentable Floor Area of the Building.
If
with respect to any calendar year falling within the Term, or fraction of a calendar year falling within the Term at the beginning or end thereof, the Operating Expenses Allocable to the Premises for a full calendar year exceed Base Operating Expenses Allocable to the Premises, or for any such fraction of a calendar year exceed the corresponding fraction of Base Operating Expenses Allocable to the Premises then, Tenant shall pay to Landlord,
as Additional Rent, the amount of such excess ("Tenant's Operating Expenses Payment"). Such payments shall be made at the times and in the manner hereinafter provided in this Section 2.6. (The Base Operating Expenses Allocable to the Premises do not include the tenant electricity to be paid by Tenant at the time of payment of Annual Fixed Rent and for which provision is made in Section 2.5 hereof, separate provision being made in Section 2.8 of this Lease for Tenant's share of increases in electricity costs.) In no event will Tenant be obligated to make any payments of Tenant's Operating Expenses Payment prior to January 1, 2010.
Not later than one hundred and twenty (120) days after the end of the first calendar year or fraction thereof ending December 31 and of each succeeding calendar year during the Term or fraction thereof at the end of the Term, Landlord shall render Tenant a statement in reasonable detail and according to usual accounting practices certified by a representative of Landlord (an "Operating Expense Statement"), showing for the preceding calendar year or fraction thereof, as the case may be, Landlord's Operating Expenses and Operating Expenses Allocable to the Premises. The first such Operating Expense Statement from Landlord under this Lease shall also set forth the Base
Operating Expenses and the Base Operating Expenses Allocable to the Premises. Such Operating Expense Statement to be rendered to Tenant shall also show for the preceding year or fraction thereof as the case may be the amounts of operating expenses already paid by Tenant as Additional Rent, and the amount of operating expenses remaining due from, or overpaid by, Tenant for the year or other period covered by such statement.
Within thirty (30) days after the date of delivery of such Operating Expense Statement, Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.6 with respect to the preceding year or fraction thereof, or Landlord shall credit any amounts due from it to Tenant pursuant to the above provisions of this Section 2.6 against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under this Lease (or refund such portion of the overpayment as aforesaid if the Term has ended and Tenant
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has no further obligation to Landlord). Landlord's failure to render or delay in rendering an Operating Expense Statement with respect to any calendar year shall not prejudice Landlord's right thereafter to render the same with respect thereto nor shall the rendering of an Operating Expense Statement for any calendar year prejudice Landlord's right thereafter to render a corrected Operating Expense Statement for such calendar year, provided, however, that ( I ) if Landlord's delay in delivering an Operating Expense Statement or any subsequent corrections thereto would result in a materially adverse impact on Tenant's stated earnings or require Tenant to restate earnings (either such
event being hereinafter referred to as an "Earnings Impact"), Landlord must render the Operating Expense Statement in question (or any corrections thereto) within six (6) months after the end of the calendar year in question, or Landlord will not thereafter have any right to subsequently deliver an Operating Expense Statement (or any subsequent corrections thereto) which would increase the amounts owed by Tenant on account of Tenant's Operating Expenses Payment such that it would result in an Earnings Impact, and (2) Landlord shall in all events render the Operating Expense Statement in question or any corrections thereto within one
(I)
year after the end of the calendar year covered by such Operating Expense Statement.
In addition, Tenant shall make payments monthly on account of Tenant's Operating Expenses Payment anticipated for the then current year at the time and in the fashion herein provided for the payment of fixed rent. The amount to be paid to Landlord shall be an amount reasonably estimated annually by Landlord to be sufficient to cover, in the aggregate, a sum equal to Tenant's Operating Expenses Payment for each calendar year during the Term.
Notwithstanding the foregoing, in determining the amount of Landlord's Operating Expenses for the Base Year and any calendar year or portion thereof falling within the Lease Term, if Jess than ninety-five percent (95%) of the Total Rentable Floor Area of the Building shall have been occupied by tenants at any time during the period in question, then, at Landlord's election with respect to years after the Base Year, but on a mandatory basis for the Base Year, those components of Landlord's Operating Expenses that vary based on occupancy for such period shall be adjusted to equal the amount such components of Landlord's Operating Expenses would have been for such period had occupancy been ninety-five percent (95%) throughout such period (it being understood and agreed for the purposes hereof that, without limiting the generality of the foregoing, management fees shall be calculated as if the Building was ninety-five (95%) occupied for an entire year with all tenants paying full base rent (without reduction for free rent periods) and payments on account of operating expenses and real estate taxes (to the extent applicable for tenants who either do not have base years in their leases or who have leases with base years that have passed at the time of the calculation described herein)).
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2.6.
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I Examination of Landlord's Books and Records
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Subject to the provisions of this paragraph, and provided that Tenant is not in default of any of its monetary or other material obligations under this Lease and
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has failed to cure the same after notice thereof from Landlord, Tenant shall have the right, at Tenant's cost and expense, to examine or cause to be examined all of Landlord's books, documentation and calculations used in the determination of Landlord's Operating Expenses, Base Operating Expenses, Landlord's Tax Expenses and Base Taxes under Section 2.7 below, and Tenant's Electricity Payment under Section 2.8 below (the "Documentation").
1.
Such Documentation shall be made available to Tenant at the offices, in the continental United States, where Landlord keeps such records during normal business hours within a reasonable time after Landlord receives a written request from Tenant to make such examination.
2.
Tenant shall have the right to make such examination no more than once in respect of any period for which Landlord has given Tenant a statement of the actual amount of Landlord's Operating Expenses or Landlord's Tax Expenses, as applicable.
3.
Any request for examination in respect of any calendar year may be made no more than twelve (12) months after Landlord advises Tenant of the actual amount of Landlord's Operating Expenses or Landlord's Tax Expenses, as applicable, in respect of such calendar year and provides to Tenant the year-end statement required above; provided, however, that Tenant shall have the right to make an examination of Base Operating Expenses and/or Base Taxes at such time (if any) Tenant makes an examination of Landlord's Operati ng Expenses for calendar year 2010 or Landlord's Tax Expenses for fiscal tax year 2011, as applicable, notwithstanding that more than twelve ( 12) months have elapsed since the delivery of Landlord's year-end statement of Base Operating Expenses and/or Base Taxes.
4.
Such examination may be made only by Tenant's employees or by an independent certified public accounting firm approved by Landlord, or a qualified real estate professional approved by Landlord, which approval in either case shall not be unreasonably withheld, conditioned or delayed. In no event shall Tenant be permitted to utilize any examiner who is being paid by Tenant on a contingent fee basis.
5.
As a condition to performing any such examination, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement, in form reasonably acceptable to Landlord, agreeing to keep confidential any information which it discovers about Landlord or the Building in connection with such examination, provided however, that Tenant may disclose such information
(i)
to Tenant's employees, counsel and advisors who have the need to know such information in order to provide Tenant with advice in connection with such audit,
(ii)
actual or proposed successors, assigns, subtenants, lenders or purchasers of Tenant and (iii) to the extent required by applicable law or reporting requirements or by administrative, governmental or judicial proceeding.
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6.
If, after the audit by Tenant of Landlord's books and records pursuant to this Section 2.6.1 with respect to any calendar year, it is determined that: (i) Tenant has made an overpayment on account of Tenant's Operating Expenses Payment or Tenant's Tax Payment, as applicable, Landlord shall credit such overpayment against the next installment(s) of Annual Fixed Rent and Additional Rent thereafter payable by Tenant, except that if such overpayment is determined after the termination or expiration of the Term of this Lease, Landlord shall promptly refund to Tenant the amount of such overpayment, less any amounts then due from Tenant to Landlord; and (ii) Tenant has made an underpayment on account of Tenant's Operating Expenses Payment or Tenant's Tax Payment, as applicable, Tenant shall, within thirty (30) days of such determination, pay such underpayment to Landlord; and (iii) if the amount of Landlord's Operating Expenses or Landlord's Tax Expenses, as applicable, was overstated by more than five percent (5%) in the aggregate, Landlord shall pay Tenant's reasonable out-of pocket cost for such audit.
7.
Any disputes under this Section 2.6. l relating to amounts of Fifty Thousand and 00/100 Dollars ($50,000.00) or more may be resolved by arbitration under Section 8.31 below.
If
with respect to any full Tax Year or fraction of a Tax Year falling within the Term, Landlord 's Tax Expenses Allocable to the Premises as hereinafter defined for a full Tax Year exceed Base Taxes Allocable to the Premises, or for any such fraction of a Tax Year exceed the corresponding fraction of Base Taxes Allocable to the Premises then, on or before the thirtieth (30
1
h)
day following receipt by Tenant of the certified statement referred to below in this Section 2.7, then Tenant shall pay to Landlord, as Additional Rent, the amount of such excess ("Tenant's Tax Payment"). Not later than ninety (90) days after Landlord's Tax Expenses Allocable to the Premises are determined for the first such Tax Year or fraction thereof and for each succeeding Tax Year or fraction thereof during the Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord showing for the preceding year or fraction thereof, as the case may be, Real Estate Taxes (as hereinafter defined) on the Building and the Site and abatements and refunds of any taxes and assessments. Reasonable expendituresTor legal fees and for other expenses reasonably incurred in seeking the tax refund or abatement may be charged against the tax refund or abatement before the adjustments are made for the Tax Year to the extent such costs were not already included in the calculation of Real Estate Taxes. Said statement to be rendered to Tenant shall also show for the preceding Tax Year or fraction thereof as the case may be the amounts of Tenant's Tax Payment already paid by Tenant as Additional Rent, and the amount of Tenant's Tax Payment remaining due from, or overpaid by, Tenant for the year or other period covered by the statement. Within thirty (30) days after the date of delivery of the foregoing statement,
Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.7 with respect to the preceding Tax Year or fraction thereof, or Landlord shall credit any amounts due from it to Tenant
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pursuant to the provisions of this Section 2.7 against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under
this Lease (or refund such portion of the over-payment as aforesaid if the Term has ended and Tenant has no further obligation to Landlord).
In addition, payments by Tenant on account of Tenant's Tax Payment anticipated for the then current year shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent, provided, however, in no event will Tenant have any obligation to make any payment of Tenant's Tax Payment prior to July 1, 2010. The amount so to be paid to Landlord shall be an amount reasonably estimated by Landlord to be sufficient to provide Landlord, in the aggregate, a sum equal to Tenant's Tax Payment, at least ten ( 10) days, but not more than thirty (30) days, before the day on which such payments by Landlord would become delinquent. In no event shall Landlord be entitled to retain more than one hundred percent (100%) of the Landlord's Tax Expenses (as defined below) actually paid or incurred by Landlord in any particular fiscal tax year.
To the extent that Real Estate Taxes shall be payable to the taxing authority in installments with respect to periods less than a Tax Year, the foregoing statement shall be rendered and payments made on account of such installments.
Terms used herein are defined as follows:
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(i)
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"Tax Year" means the twelve-(12)-month period beginning July 1 each year during the Term or if the appropriate governmental tax fiscal period shall begin on any date other than July 1, such other date.
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(ii)
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"Landlord's Tax Expenses Allocable to the Premises" shall mean the same proportion of Landlord's Tax Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor Area of the Building.
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(iii)
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"Landlord's Tax Expenses" with respect to any Tax Year means the aggregate Real Estate Taxes on the Building and Site with respect to that Tax Year, reduced by any abatement receipts with respect to that Tax Year.
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(iv)
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"Base Taxes" is hereinbefore defined in Section
1.1.
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(v)
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"Base Taxes Allocable to the Premises" means the same proportion of Base Taxes for and pertai ning to the Building and the Site as the Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor Area of the Building.
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(vi)
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"Real Estate Taxes" means all taxes and special assessments of every kind and nature and user fees and other like fees assessed by any governmental authority on the Building or Site which the Landlord shall become
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obligated to pay because of or in connection with the ownership, leasing and operation of the Site, the Building and the Property (including without limitation, if applicable, the excise prescribed by Massachusetts General Laws (Ter Ed) Chapter 121A, Section 10 and amounts in excess thereof paid to the City of Waltham pursuant to agreement between Landlord and the City) and reasonable expenses of and fees for any fonnal or infonnal proceedings for negotiation or abatement of taxes (collectively, "Abatement Expenses"), which Abatement Expenses respecting Base Taxes shall be excluded from Base Taxes. The amount of special taxes or special assessments to be included shall be limited to the amount of the installment (plus any interest, other than penalty interest, payable thereon) of such special tax or special assessment required to be paid during the year in respect of which such taxes are being detennined. There shall be excluded from such taxes all mitigation or impact fees or subsidies associated with the initial construction of the Building and all income, inheritance, estate, succession, transfer, gift, franchise, or capital stock taxes; provided, however, that if at any time during the Tenn the present system of ad valorem taxation of real property shall be changed so that in lieu of the whole or any part of the ad valorem tax on real property there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Site or Building or Property, or a federal,
state, county, municipal, or other local income, franchise, excise or similar tax, assessment, levy or charge distinct from any now in effect in the jurisdiction in which the Property is located) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the tenn "Real Estate Taxes" but only to the extent that the same would be payable if the Site and Building were the only property of Landlord.
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(vii)
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If during the Lease Term the Tax Year is changed by applicable law to less than a full twelve-(12)-month period, the Base Taxes and Base Taxes Allocable to the Premises shall each be proportionately reduced.
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Landlord represents that
(i)
the Building and the Site constitutes one tax parcel which - does not currently include any real estate or improvements other than the Building and the parking areas located on the Site, and (ii) there are no tax exemption benefits contemplated or proposed for or affecting the Base Taxes that will phase out during the Term of this Lease (as the same may be extended).
2.7.1
Tenant's Right to Contest Real Estate Taxes
So long as (i) this Lease is in full force and effect, (ii) no monetary or other material Event of Default shall have occurred under this Lease, (iii) Tenant shall directly lease more than fifty percent (50%) of the Total Rentable Floor Area of
the Building and (iv) Tenant shall neither have assigned this Lease nor sublet more
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than twenty-five percent (25%) of the rentable floor area then leased by Tenant (except for an assignment or sublease under Section 5.6.1 below and except for the Initial Second Floor Subleases), after prior written notice to Landlord, Tenant shall have the right to request that Landlord contest the amount or validity of Real
Estate Taxes by appropriate application or proceedings.
If
Landlord notifies Tenant that Landlord does not elect or cause to undertake such an application and/or proceeding, Tenant may then undertake the same; provided, however, that as a continuing condition to such right, Tenant shall be required to make all of the payments respecting the real estate taxes as and at the times required by Section 2.7, notwithstanding any such contest.
Tenant further agrees that each such contest shall be promptly and diligently prosecuted in good faith to a final conclusion except only as provided herein. Landlord agrees to cooperate with Tenant in any such proceeding provided that the same shall be at the sole cost and expense of Tenant. Tenant will pay and save Landlord harmless against any and all losses, judgments, decrees and costs (including all reasonable attorneys' fees and expenses) in connection with any such contest and will, promptly after the final settlement, compromise or determination of such contest, fully pay and discharge Tenant's obligations under Section 2.7, as the case may be, together with all penalties, fines, interests, costs and expenses. Further, any such contest by Tenant shall not be discontinued unless and until Tenant has given to Landlord written notice of Tenant's intent to so discontinue and if Landlord shall not by notice to Tenant (the "Assumption Notice") within fifteen (15) days after receipt of Tenant's notice elect to assume, at Landlord's sole cost and expense, the continued prosecution and conduct of such contest. In the event Landlord shall give such Assumption Notice, Tenant shall cooperate with Landlord in all respects as may be necessary for Landlord's continuation of such contest, but Tenant shall have no other obligation for the prosecution and conduct of such contest.
Notwithstanding anything to the contrary set forth in this Section 2.7.1, Tenant shall have not right to initiate any contest respecting Real Estate Taxes if less than six (6) months of the tax period for which Tenant seeks to challenge Real Estate Taxes fall within the last twelve (12) calendar months of the Lease Term.
(A)
Landlord shall, as part of Base Building Work, cause check meters ("Main Check Meters") to be installed and rendered operational to measure tenant electric usage for the Premises. If a Main Check Meter serves only the Premises or the entire floor leased to a tenant, it is herein referred to as a "dedicated" Main Check Meter; if it serves the Premises in common with other premises, it is herein referred to as a "shared" Main Check Meter. Such Main Check Meter(s) shall only measure electricity used for lights and electrical equipment utilized in the Premises, and fan-powered and variable air volume boxes which are part of the HVAC system serving the Premises. Any further equipment (including supplemental HVAC equipment) installed by or for Tenant shall have separate check meter(s) ("Supplemental Check Meters") installed at Tenant's
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expense. On each floor there shall be one or more Main Check Meter(s) serving all of the floor such that the portions of the Premises located on full floors shall be served by dedicated Main Check Meters, and on multi-tenant floors Landlord may require that the tenants (at their sole cost and expense) install Main Check Meters relating to their premises (to the extent there are no Main Check Meters already installed serving only such premises) and Supplemental Check Meters to separately meter special usage within tenant premises such as computer rooms. With respect to any portion of the Premises that may in the future not be separately check metered on a dedicated Main Check Meter, Landlord will not unreasonably withhold its consent to Tenant to install dedicated Main Check Meter(s) serving solely such portion of the Premises at Tenant's sole cost and expense.
(B)
Tenant's share of the costs of electricity shall be determined by Landlord on the following basis:
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(i)
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Landlord will cause the check meters serving the Premises to be read periodically, but not less often than once every six (6) months during the first two (2) years of the Term and once every twelve
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(12) months thereafter. Tenant shall have reasonable access to such check meters to read the same.
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(ii)
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For portions of the Premises served by dedicated Main Check Meter(s), and for all Supplemental Check Meter(s) serving the Premises, Tenant's allocable share of electricity costs for the period ("Tenant's Electricity Payment") shall be determined by multiplying the actual average cost per kilowatt hour by the number of ki lowatt hours utilized by Tenant for such period as
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indicated by the dedicated Main Check Meter(s) and Supplemental Check Meter(s) for Tenant's Premises.
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(iii)
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For portions of the Premises served by shared Main Check Meter(s), if any, the Tenant's Electricity Payment shall be determined by multiplying the cost per kilowatt hour by the
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number of kilowatt hours utilized as indicated by such shared Main Check Meter(s), and multiplying such total cost by a fraction, the numerator of which is the rentable area leased to Tenant and the - denominator of which is the total rentable area under lease to
tenants (inclusive of any vacant spaces where electricity is being used on a regular basis) served by such shared Main Check Meter(s); provided, however, that if Landlord shall reasonably determine that the cost of electricity furnished to the Tenant at such portion of the Premises exceeds the amount being paid by Tenant, then Landlord shall deliver to Tenant written documentation establishing Landlord's basis for such determination and Landlord may charge Tenant for such excess and Tenant shall promptly pay the same upon billing therefor as
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Additional Rent under the Lease, subject to Tenant's right to challenge such determination pursuant to Section 2.6.1.
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(iv)
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Where part or all of the rentable area on a floor has been occupied for less than all of the period for which adjustments are being made, appropriate and equitable modifications shall be made to the allocation formula so that each tenant's allocable share of costs equitably reflects its period of occupancy, provided that in no
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event shall the total of all costs as allocated to tenants (or to unoccupied space) be less than the total cost of electricity for such floor for said period.
(C)
Tenant shall make estimated payments on account of Tenant's Electricity Payment, as reasonably estimated by Landlord, on a monthly basis. No later than one hundred twenty (120) days after the end of each calendar year falling within the Lease Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord, showing for the preceding calendar year the Tenant's Electricity Payment. Said statement to be rendered to Tenant also shall show for such period the amounts already paid by Tenant on account of Tenant's Electricity Payment and the amount of Tenant's Electricity Payment remaining due from, or overpaid by, Tenant for the period covered by the statement. If such statement shows a balance
remaining due to Landlord, Tenant shall pay same to Landlord on or before the thirtieth (30
1 )
day following receipt by Tenant of said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or refunded to Tenant if the
h
Lease Term has then expired and Tenant has no further obligation to Landlord. All payments by Tenant on account of Tenant's Electricity Payment shall be deemed Additional Rent and shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. Tenant shall have the right to examine Landlord's records relating to Tenant's Electricity Payment and to dispute the amounts claimed to be owed by Landlord in accordance with the provisions of Section 2.6. l of this Lease.
(D)
All costs of electricity billed to Landlord, other than the costs of tenant electricity allocated pursuant to the procedures established herein, shall be treated as part of Landlord's Operating Expenses for purposes of determining the allocation of those costs. Taxes imposed upon the electricity furnished to the Building shall be included in the calculation of electricity charges payable under this Lease, however, there shall not be included in such electricity charges any tax imposed upon Landlord on account of Landlord's sale, use or resale of electrical energy to Tenant or other tenants in the Building (i.e., no double taxation due to the fact that Landlord is not a licensed reseller of electricity).
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(E)
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Landlord shall be responsible for the maintenance of the Main Check Meter(s)
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and Tenant shall be responsible for the maintenance of the Supplemental Check Meter(s).
(F)
At any time following the completion of Base Building Work, Tenant shall have the right, subject to Landlord's approval (not to be unreasonably withheld), to increase
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and/or shift the amount of electric power being drawn from the buss duct on any full floor within the Premises, at Tenant's sole cost and expense, provided the total amount of power allotted to the Premises is not increased. At such time as Tenant shall surrender
any floor, or portion thereof to Landlord as provided hereunder (including in connection with any space recaptured by Landlord), Tenant, at its sole cost and expense, shall reinstate all electric capacity on such floor as may have been reallocated or otherwise decreased as a result of any Tenant's use thereof such that the electric capacity serving any such floor is not less than the electrical capacity for such floor on the date such floor was delivered to Tenant. In connection with the foregoing, it is acknowledged and agreed that electrical panels may need to be installed within the Premises itself (as opposed to within the electric closets or mechanical rooms outside of the Premises) in order to facilitate a shift in the amount of electric amount being provided to any given floor.
ARTICLE III
CONSTRUCTION
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3.1
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Base Building Work: Base Building Enhancements
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(A)
It
is acknowledged and agreed that Landlord has, prior to the date hereof, substantially completed the work (the "Base Building Work") as defined in the Base Building Specifications and list of Base Building Plans attached hereto as Exhibit B-1. Landlord agrees to diligently pursue the completion of any components of the Base Building Work that have not been completed as of the date of this Lease and any delay in the Substantial Completion of the Landlord's Work (as both of such terms are defined in Section 3.3 below) as a resul t of Landlord's failure to complete any outstanding item of Base Building Work shall constitute a "Landlord Delay."
(B)
In addition to the Base Buildi ng Work, Landlord, at Landlord's sole cost and expense, shall perform the modifications to the Base Building Specifications described on Exhibit B-2 attached hereto (the "Base Building Enhancements") in a good and workmanlike manner, using new and quality materials, in full compliance with all applicable Legal Requirements. In connection with the foregoing, it is expressly understood and agreed that Landlord's obligation to perform the Base Building Enhancements at its sole cost and expense shall apply solely to Premises A, and to the extent that Tenant requires Base Building Enhancements in connection with the build-out of Premises B and/or Premises C, such Base Building Enhancements shall be considered to be a part of the Tenant Improvement Work (as defined in Section 3.2 below).
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3.2
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Tenant Improvement Work
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( I )
Interim P
lans.
On or before February 29, 2008, Landlord shall deliver to Tenant and Tenant's architect a complete set of updated design drawings (with architects and/or contractors field notes, if any, thereon) for the
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Building reflecting the Base Building Work. On or before the Interim Plans Date, Tenant shall deliver to Landlord a full set of design development plans for the work to be performed by Landlord to prepare the Premises for Tenant's occupancy (the "Tenant Improvement Work"), such plans and specifications to be prepared by an architect, licensed by the Commonwealth of Massachusetts and reasonably approved by Landlord (the "Interim Plans"). Provided that the Interim Plans (x) contain at least the information required by, and shall conform to the requirements of, Exhibit B-3 and (y) comply with Landlord's requirements to avoid aesthetic or other material conflicts with or an adverse effect on the design and function of the balance of the base building, Landlord shall not unreasonably withhold, delay or condition its consent thereto; provided, however, that notwithstanding the foregoing, Landlord's determination of matters relating to any aesthetic design of alterations or changes visible outside the Premises shall be in Landlord's sole discretion.
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(2)
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Tenant P
lans.
On or before the Tenant Plans Date, Tenant shall deliver to Landlord a full set of construction drawings for the Tenant Improvement Work in suitable form for filing with an application for a building permit with the City of Waltham (the "Tenant Plans"). Provided that the Tenant Plans (x) contain at least the information required by, and shall conform to the requirements of, Exhibit B-4, (y) comply with Landlord's
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requirements to avoid aesthetic or other material conflicts with or adverse effect on the design and function of the balance of the base building and
(z) are consistent with the Interim Plans, Landlord shall not unreasonably withhold, delay or condition its consent thereto; provided, however, that notwithstanding the foregoing, Landlord's determination of matters
relating to any aesthetic design of alterations or changes visible outside the Premises shall be in Landlord's sole discretion.
In connection with the foregoing, it is understood and agreed that (i) Landlord must file for a building permit by April 21, 2008 (the "Building Permit Application Date") based on the Tenant Plans submitted by Tenant on or before the Tenant Plans Date in order to commence and complete construction of the Tenant Improvement Work within the time periods contemplated by this Article III, even though Landlord's review of the Tenant Plans and the pricing of the Tenant Improvement Work will not have been completed by such Building Permit Application Date, and (ii) any delay in the performance of the Tenant Improvement Work caused by the need to amend the application for a building permit as the result of modification to the Tenant Plans after the Tenant Plans Date shall be deemed to be a Tenant Delay (as that term is defined in subsection (B) below) for the purposes of this Article III
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(3)
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General M
ailers.
In connection with the foregoing, it is understood and agreed that Landlord's approval under this Section 3.2(A) is given solely
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for the benefit of Landlord, and neither Tenant nor any third party shall have the right to rely upon Landlord's approval of the Interim Plans and/or the Tenant Plans (hereinafter collectively referred to as the "Plans") for any other purpose whatsoever other than for satisfying the consent requirements under this Lease. Without limiting the foregoing, Tenant
shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant's furniture, appliances and equipment), and Landlord's approval of the Plans shall in no event relieve Tenant of the responsibility for such design. Landlord agrees to respond to all Plans within sixteen ( 16) days of receipt thereof. In its approval of the Tenant Plans, Landlord shall specify those alterations, additions and improvements that must be removed by Tenant at the expiration or earlier termination of the Term. Landlord's failure to so respond within said sixteen (16) day period shall be deemed to constitute Landlord's approval of the Tenant Plans and determination that the alterations, additions and improvements shown thereon do not need to be removed by Tenant at the expiration or earlier termination of the Term. If Landlord disapproves of any Plans, then Tenant shall have the Plans revised by its architect to incorporate all reasonable objections and conditions presented by
Landlord and resubmitted to Landlord. Such process shall be followed until the Plans shall have been approved by the Landlord without objection or condition. Landlord shall respond to the resubmission of any Plans by Tenant within five (5) days of Landlord's receipt thereof (or ten ( 10) days in the case of a major redesign). Landlord shall have no obligation to perform the Tenant Improvement Work until the Tenant
Plans shall have been presented to and approved (or deemed approved) by Landlord. In addition, Tenant shall, promptly execute and deliver to Landlord any affidavits and documentation submitted to Tenant by Landlord in order to obtain all permits and approvals necessary for Landlord to commence and complete the Tenant Improvement Work on a timely basis ("Permit Documentation").
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(B)
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Construction P
rocess.
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(a)
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Within seventeen (17) days after its receipt of the Interim Plans, Landlord shall furnish to Tenant a written estimate of all costs of the Tenant Improvement Work (the "Interim Plans Estimated Costs Notice"). In preparing the Interim Plans Estimated Costs Notice, Landlord shall obtain estimates from no less than two (2) of the general contractors listed on Exhibit B-5 attached hereto
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(it being understood and agreed that throughout the bidding process contemplated by this subsection (B)( 1), Landlord shall
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be
obtaining separate bids for the Tenant Improvement Work and the Base Building Enhancements). The Interim Plans Estimated Costs Notice shall include a copy of the estimates received from each of the general contractors. In all events, Landlord and Tenant shall cooperate with each other in good faith in order to expedite the estimate process.
If
the estimates submitted by Landlord are not consistent with the Tenant's budget (a copy of which has been submitted to Landlord), Tenant shall have ten
(10) days to review and to modify the Tenant Plans as Tenant deems reasonably necessary to achieve pricing that is consistent with Tenant's budget.
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(b)
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Within twenty-four (24) days after its receipt of the Tenant Plans,
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Landlord shall furnish to Tenant a written statement of all costs of the Tenant Improvement Work (the "Tenant Plans Costs Notice") for Tenant's approval. In connection with the foregoing, it is understood and agreed that Landlord shall, after consultation with Tenant and Tenant's Construction Representative, make the determination in its reasonable discretion as to whether to bid the Tenant Improvement Work project as a Guaranteed Maximum Price "GMP" contract or a lump-sum contract based on the level of completion of the
Tenant Plans (i.e. if such Tenant Plans are sufficiently detailed so that the project can be bid out at the subcontractor level).
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(c)
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In preparing the Tenant Plans Costs Notice in the case of a GMP contract, Landlord shall solicit bids from no less than three (3) of the general contractors listed on Exhibit B-5 attached hereto and shall require that all general contractor bids be based upon such general contractor having solicited and received bids from no
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Jess than two (2) licensed subcontractors with respect to all major sub-trades (defined as subcontracts in excess of $50,000.00) forming a part of the Tenant Improvement Work. When bids are solicited, upon the receipt of bids from each of the
subcontractors, Landlord or the general contractor selected to perform the Tenant Improvement Work (the "Contractor") shall prepare a bid format which compares each bid, and shall deliver such bid format, together with copies of the bids themselves to Tenant (together with Landlord's designation of the bid Landlord intends to accept).
In preparing the Tenant Plans Costs Notice in the case of a Jump sum contract, Landlord shall solicit bids from no less than three
(3) of the general contractors listed on Exhibit B-5. When bids are solicited, upon the receipt of bids, Landlord shall prepare a bid format which compares each bid, and shall deliver such bid
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format, together with copies of the bids themselves to Tenant (together with Landlord's designation of the bid Landlord intends to accept).
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(d)
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Landlord shall have the right to select the general contractor who will perform the Tenant Improvement Work, subject to Tenant's approval (not to be unreasonabl y withheld, conditioned or delayed); provided, however, that Tenant may not object to the selection of any general contractor who will be able to complete the Tenant Improvement Work on or prior to the Estimated Commencement Date and whose bid for the Tenant
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Improvement Work does not exceed the lowest received bid by more than ten percent (10%). In the event that Tenant does not approve of a general contractor selected by Landlord who can complete the Tenant Improvement Work on or prior to the Estimated Commencement Date but whose bid exceeds the lowest received bid by more than ten percent (10%), any delay in the completion of the Landlord's Work resulting from Tenant's failure to approve Landlord's selected general contractor shall be deemed to be a Tenant Delay hereunder. In all events, Landlord and Tenant shall cooperate with each other in good faith in order to expedite the bid process.
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(2)
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Construction C
ontract.
Promptly following Tenant's approval of the Contractor and the Tenant Plans Cost Notice, Landlord shall enter into a construction contract (the "Construction Contract") with the Contractor for the performance of the Tenant Improvement Work on the basis of a guaranteed maximum price or lump sum equal to the total amount set forth in the Tenant Plans Cost Notice approved by Tenant (the "Approved Tenant Plan Costs"). Any and all costs to perform the Tenant
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Improvement Work in excess of the Approved Tenant Plan Costs in such Construction Contract shall be paid for by Landlord and not included in
the Tenant Plan Excess Costs unless such excess costs are the result of any Change Order requested by Tenant or any Tenant Delay. Landlord and Tenant shall endeavor to use commercially reasonable value engineering practices whenever possible in performing the Tenant Improvement Work. Landlord agrees to copy Tenant (which copy may be via email to Tenant's general counsel) on the first draft of the proposed construction contract
and to deliver to Tenant a copy of the final Construction Contract executed between Landlord and the Contractor.
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(3)
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Tenant Plan Excess C
osts.
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To the extent the Approved Tenant Plan Costs exceed the Landlord's Contribution set forth in Section 3.6, or the cost of the Tenant
Improvement Work exceeds the Approved Tenant Plan Costs as a result of
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Change Orders requested by Tenant or any Tenant Delay, such excess costs are hereinafter referred to as "Tenant Plan Excess Costs" and shall be paid by Tenant as Additional Rent in accordance with said Section 3.6.
Tenant shall notify Landlord in writing, within three (3) days of receipt by Tenant of the Tenant Plans Cost Notice, of either its approval thereof and its authorization to Landlord to proceed with the Tenant Improvement Work in accordance with the Tenant Plans in the event Landlord had no objection to the Tenant Plans, or changes in the Tenant Plans prepared by Tenant's architect which shall be responsive to any objections raised by Landlord. In the event of the latter modification, Landlord shall, as soon as practicable after Landlord obtains price quotations for any changes in the Tenant Plans, quote to Tenant all changes in Tenant Plan Excess Costs resulting from said plan modifications and whether Landlord approves the revised Tenant Plans. Tenant shall, within five (5) days after receipt of Landlord's revised quotation of Tenant Plan Excess Costs submit to Landlord any revisions to the Tenant Plans required by Landlord.
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(4)
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Long Lead Item Release Date.· Authorization to Proceed D
ate.
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In connection with its review and approval of the Plans, Landlord shall identify and notify Tenant of any items contained in the Plans which Landlord then reasonably believes will constitute long lead items.
Landlord will give to Tenant Landlord's best, good faith estimate of the period(s) of any delay which would be caused by a long-lead item. On or before the Long Lead Item Release Date, Tenant shall have the right to either (a) revise the Tenant Plans to eliminate any such long-lead item or
(b) authorize Landlord to construct the Tenant Improvement Work in accordance with the approved Tenant Plans including any such long-lead items (any such approved long-lead items being hereinafter called "Tenant Approved Long Lead Items"). Tenant acknowledges that certain
Approved Long Lead Items may still delay completion of the Tenant Improvement Work and thus result in a Tenant Delay even if Tenant does authorize them on or before the Long Lead Item Release Date.
Tenant shall, on or before the later date to occur of (i) the Authorization to Proceed Date, and (ii) three (3) days following Tenant's receipt of the Tenant Plans Cost Notice, give Landlord written authorization to proceed with the Tenant Improvement Work in accordance with the approved Tenant Plans ("Notice to Proceed").
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(5)
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Change O
rders.
Tenant shall have the right, in accordance herewith, to submit for Landlord's approval change proposals subsequent to Landlord's approval of the Tenant Plans and Tenant's approval of the Tenant Plan Excess Costs, if any (each, a "Change Proposal"). Landlord agrees to respond to any such Change Proposal within such time as is reasonably necessary (taking into consideration the information contained
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in such Change Proposal) after the submission thereof by Tenant, advising Tenant of any anticipated increase in costs ("Change Order Costs") associated with such Change Proposal, as well as an estimate of any delay which would likely result in the completion of the Landlord's Work if a Change Proposal is made pursuant thereto ("Landlord's Change Order Response"). Tenant shall have the right to then approve or withdraw such Change Proposal within five (5) days after receipt of Landlord's Change Order Response. If Tenant fails to respond to Landlord's Change Order Response within such five (5) day period, such Change Proposal shall be deemed withdrawn.
If
Tenant approves such Change Proposal, then such Change Proposal shall be deemed a "Change Order" hereunder and if the Change Order is made and such Change Order increases the costs of the Tenant Improvement Work in excess of the Approved Tenant Plans Cost, then the Change Order Costs associated with the Change Order shall be deemed additions to the Tenant Plan Excess Costs and shall be paid in the same manner as Tenant Plan Excess Costs are paid as set forth in Section 3.6.
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(6)
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Tenant Res ponse to Requests for In formation and A p
provals.
Except to the extent that another time period is expressly herein set forth, Tenant shall respond to any request from Landlord, Landlord's architect, Landlord's contractor and/or Landlord's Construction Representative for approvals or information in connection with the Tenant Improvement Work, within
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four (4) business days of Tenant's receipt of such request.
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(7)
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Time o(the Essence
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Time is of the essence in connection with Landlord's and Tenant's obligations under this Section 3.2.
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(1)
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A
"
Tenant
Dela y
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shall be defined as the following to the extent it results in a delay in the Substantial Completion of the Landlord's Work:
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(a)
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Tenant's failure to deliver the Interim Plans to Landlord by the Interim Plans Date, or to deliver the Tenant Plans to Landlord on or before the Tenant Plans Date, or to provide to Landlord any Permit Documentation required to be submitted in connection with the application for a building permit for the Tenant Improvement Work within three (3) business days after submitted to Tenant by Landlord, or to give authorization to Landlord to proceed with the Tenant Improvement Work on or before the later to occur of (i) the Authorization to Proceed Date and (ii) three (3) days following Tenant's receipt of the Tenant Plans Cost Notice; or
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(b)
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Tenant's failure timel y to respond to any request from Landlord, Landlord's architect, Landlord's contractor and/or Landlord's Construction Representative within the time periods set forth in Section 3.2(B)(6) above;
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(c)
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Tenant's failure to pay the Tenant Plan Excess Costs in accordance with Section 3.6;
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(d)
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Any delay due to Tenant Approved Long Lead Items;
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(e)
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Any delay due to Change Orders or due to Tenant's failure to approve any change orders proposed by Landlord or the Contractor which would not (i) materially affect the scope or quality of the Tenant Improvement Work (it being acknowledged and agreed that for the purposes hereof, the substitution of items of comparable quality to those shown on the Tenant Plans shall not
be
deemed to materially affect the scope or quality of the Tenant Improvement Work), (ii) delay the completion of the Tenant Improvement Work beyond December 31, 2008 or (iii) materially increase the costs to complete the Tenant Improvement Work.
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(f)
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Any delay resulti ng from Tenant's failure to timely approve a general contractor (where Tenant was being unreasonable in withholding, conditioning or delaying its consent or where Tenant does not approve of the general contractor selected by Landlord who can complete the Tenant Improvement Work on or prior to the Estimated Commencement Date but whose bid exceeds the lowest received bid by more than ten percent (10%)); or
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(g)
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Any other delays caused by Tenant, Tenant's contractors, architects, engineers or anyone else engaged by Tenant in connection with the preparation of the Premises for Tenant's occupancy, including, without limitation, utility companies and other entities furnishing communications, data processing or other service, equipment, or furniture.
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In calculating the duration of any Tenant Delay, such duration shall be based upon the actual number of days of delay in Substantial Completion of the Landlord's Work attributable to the causes described above.
Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting
forth
Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant
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Delay is occurring; and (z) if readily ascertainable by Landlord, the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. Landlord shall deliver to Tenant a Tenant Delay Notice within five (5) business days after Landlord becomes aware of such Tenant Delay or the periods prior to delivery of a Tenant Delay Notice will not constitute a Tenant Delay hereunder and provided further that Landlord agrees to exercise commercially reasonable efforts to immediately notify Tenant of any act, omission or interference of Tenant, its agents, employees or contractors in the performance of the Landlord's Work which Landlord intends to claim as a Tenant Delay so as to permit Tenant a reasonable opportunity to promptly mitigate and/or eliminate such act, omission or interference. Except to the extent that a specific time period for action is expressl y set forth in this Article III, Tenant Delays shall not include the normal and ordinary process of communication between Landlord and Tenant during the design and construction process or the exercise by Tenant of its rights under this Article Ill to inspect the work and/or to dispute the achievement of Substantial Completion of the Landlord's Work. Notwithstanding anything herein or in this Lease to the contrary, Landlord may satisfy the Tenant Delay Notice req uirement by verbal notification to Tenant's
Construction Representative at a regularly scheduled construction meeting attended by Tenant's Construction Representative so Jong as such notification satisfies the requirements of clauses (x), (y) and (z) above and is subsequentl y reflected in the written minutes documenting such meeting and circulated to the attendees, including Tenant's Construction Representative.
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(2)
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Tenant Obligations with Res pect to Tenant Dela y
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(a)
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Tenant agrees that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent, regardless of the reason for such Tenant Delay or whether or not it is within the control of Tenant or any such employee. Landlord's Work shall be deemed substantially completed as of the date when Landlord's Work would have been substantially completed but for any Tenant Delays, as reasonably determined by Landlord in the exercise of its good faith business judgment and subject to the terms of this Article III.
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(b)
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Tenant shall reimburse Landlord, as Tenant Plan Excess Costs, the amount, if any, by which the Landlord's Work is increased as the result of any Tenant Delay.
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(c)
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Any amounts due from Tenant to Landlord under this Section 3.2(C)(2) shall be due and payable within thirty (30) days of billing therefor, and shall be considered to be Additional Rent. Nothing
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contained in this Section 3.2(C)(2) shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease.
(D)
Construction Management F
ee.
Landlord shall charge a construction management fee (the "Construction Management Fee") for its management of the Tenant Improvement Work in an amount equal to the sum of (x) $325,000.00 and (y) four percent (4%) of the so called "hard costs" of the Tenant Improvement Work in excess of $I 2,384,675.00 (being the product of (i) $75.00 and (ii) the Rentable Floor Area of the Premises). The Construction Management Fee shall be payable by Tenant as Additional Rent on the Commencement Date.
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3.3
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Substantial Completion
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(A)
Subject to any prevention, delay or stoppage due to Landlord's Force Majeure (as hereinafter defined) or attributable to any Tenant Delays, Landlord shall use reasonable speed and diligence in the construction of the Base Building Enhancements and the Tenant Improvement Work (hereinafter collectively referred to as the "Landlord's Work") so as to have the same Substantially Completed (as hereinafter defined) on or before the Estimated Commencement Date set forth in Section I . I , but Tenant shall have no claim against Landlord for failure to complete construction of the Landlord's Work except as expressly set forth in Section 3.4 below. Notwithstanding the foregoing, it is understood and agreed that Landlord shall have no responsibility for the installation or
connection of Tenant's computer, telephone, other communication equipment, systems or wiring (although Landlord will reasonably cooperate with Tenant in order to facilitate the completion by Tenant of this work).
(B)
Landlord will reasonably cooperate with Tenant and Tenant's Construction Representative in the performance of the Tenant Improvement Work to provide Tenant access to the Premises both prior to and during construction and the right to attend all job meetings between Landlord and Contractor for the Tenant Improvement Work and to review subcontractor submittals and shop drawings. Tenant shall have the right to have Tenant's Construction Representative or other qualified architect, engineer or contractor inspect the quality of construction of the Tenant Improvement Work and the compliance of the Tenant Improvement Work with the Tenant Plans, provided such inspection is performed at a time mutually agreeable to Landlord and Tenant and which will not cause any delay in the performance of the Landlord's Work. Landlord agrees to notify Tenant (which notice may be oral) of all job meetings held with the Contractor and related to the scheduling, design, modifications, change orders, or cost reporting or pricing of the Tenant Improvement Work. Tenant shall have the right to review and approve change orders to any portion of the Tenant Improvement Work proposed by Landlord or Contractor, which such approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that Tenant's approval of any change order which (i) materially affects the scope or quality of the Tenant Improvement Work (it being acknowledged and agreed that for the purposes hereof, the substitution of items of
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comparable quality to those shown on the Tenant Plans shall not be deemed to materially affect the scope or quality of the Tenant Improvement Work), (ii) delays the completion of the Tenant Improvement Work beyond December 31, 2008 or (iii) materially increases the costs to complete the Tenant Improvement Work shall be in Tenant's sole and unfettered discretion.
(C)
In addition to and not in limitation of the insurance required to be maintained by Landlord under Section 4.3 of this Lease, Landlord shall require the Contractor and all contractors and subcontractors performing Landlord's Work to maintain at all times during the construction of Landlord's Work commercially reasonable insurance coverages comparable to those being maintained by contractors on similar projects in the
Market Area. Landlord shall use commercially reasonable efforts to cause the Contractor to name Tenant as a certificate holder and additional insured on all insurance coverages required under the Construction Contract (provided, however, that the failure or refusal
by the Contractor to thus name Tenant shall not be considered to be a default by Landlord of any of its obligations under this Lease). The cost of such insurance documented as allocable to Tenant Improvement Work under this subsection (C) shall be a part of the Approved Tenant Plan Costs.
(D)
Landlord shall provide Tenant with at least thirty (30) days prior written notice of the date Landlord anticipates that the Landlord's Work will be Substantially Complete (the "Anticipated Delivery Date") and shall provide Tenant with written notice of any revisions or changes to such Anticipated Delivery Date, and if the Landlord's Work is not Substantially Complete as of the Anticipated Delivery Date set forth in Landlord's notice, then the Substantial Completion Date will not be deemed to have occurred unless Tenant has been provided with at least fifteen ( 15) days prior written notice of a revised Anticipated Delivery Date and the Landlord's Work is actually Substantially Completed as of such revised Anticipated Delivery Date. The "Substantial Completion Date" shall
be defined as the date on which the Landlord's Work has been Substantially Completed. "Substantial Completion" and "Substantially Completed" shall each mean the date on which (1) the Landlord's Work has been completed except for so-called "punch-list" items of work and adjustment of equipment and fixtures the incompleteness of which do not cause unreasonable interference with Tenant's use of the Premises for the Permitted Uses or Tenant's right to lawfully occupy the Premises, and (2) permission has been obtained from the applicable governrnental authority (which such permission may be evidenced by the signature(s) of the appropriate municipal official(s) on the building permit for the Tenant Improvement Work) to the extent required by law, for occupancy by Tenant of the Premises for the Permitted Uses. The above notwithstanding the parties shall schedule a joint inspection of the Premises at a mutually convenient time to confirm that the Landlord's Work has been Substantially Completed and to identify any minor details, adjustments or other items of the Landlord's Work which in accordance with good construction practice should be performed after Substantial Completion thereof (collectively, the "Punchlist Items"), if any, in writing; provided, however, such joint inspection shall take place at least five (5) business days prior to the date Landlord has notified Tenant (in accordance with the requirements of this Article III) will
be
the Substantial Completion Date. If after suchjoint inspection, Landlord and Tenant
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disagree as to whether the Landlord's Work is Substantially Complete or as to the existence or nature of any Punchlist Items, and such dispute has not been resolved within ten ( I O) days of the joint inspection, either party shall have the right to submit such dispute to expedited arbitration under Section 3.7 hereof (provided, however, the during the pendency of any such dispute and/or arbitration proceeding, the Substantial Completion Date shall be as determined by Landlord, subject to adjustment upon the resolution of the dispute by the parties or by arbitration). After Substantial Completion, Landlord shall proceed diligently to complete all Punch List Items at Landlord's expense within sixty (60) days after the occurrence of Substantial Completion (except for items which can only be performed during certain seasons or weather, which items shall be completed diligently as soon as the season and/or weather permits).
Notwithstanding anything contained herein to the contrary, in the event that Landlord is delayed in the performance of Landlord's Work or cannot obtain permission from the applicable governmental authority for the occupancy of the Premises by reason of any Tenant Delay, then the Substantial Completion Date shall be deemed to be the date that Landlord would have achieved Substantial Completion or obtained such governmental permission, but for such Tenant Delay. Tenant agrees that no Tenant Delay shall delay commencement of the Term or the obligation to pay rent, regardless of the reason for such delay or whether or not it is within the control of Tenant or any such employee.
Nothing contained in this paragraph shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease.
(E)
When used in this Lease "Landlord's Force Majeure" shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorist acts, civil commotions, unusual scarcity of or unusual inability to obtain labor or materials (to the extent that such scarcity or inability is the result of conditions not prevalent in the market, and otherwise unforeseen, as of the date of this Lease), labor difficulties, casualty or other causes reasonably beyond Landlord's control or attributable to Tenant's wrongful action or inaction; provided, however, that in no event shall Landlord's financial inability constitute a cause beyond Landlord's reasonable control. Landlord shall provide Tenant with written notice within forty-eight (48) hours after the occurrence of any Landlord's Force Majeure event hereunder (together with Landlord's good faith estimate of the projected duration of such Landlord's Force Majeure event), and shall also notify Tenant as soon as such Landlord's Force Majeure event has ended. In no event shall any Landlord's Force Majeure under this Section 3.3 (D) exceed a total of ninety (90) days in the aggregate. In addition, it is expressly understood and agreed that any casualty or Taking (as defined in Article VI below) that occurs prior to the Commencement Date of this Lease shall be deemed to be an event of Landlord's Force Majeure and shall be governed by the provisions of this Article III related thereto and not by the provisions of said Article VI.
(F)
Landlord shall permit Tenant access for installing Tenant's trade fixtures in portions of the Premises prior to Substantial Completion when it can
be
done without material interference with remaining work or with the maintenance of harmonious labor relations. Any such early access by Tenant hereunder shall not in and of itself constitute
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acceptance by Tenant of the Landlord's Work or achievement by Landlord of Substantial Completion of the Landlord's Work. Landlord agrees to exercise commercially reasonable efforts to provide Tenant with access to a clean and secure server room (not to exceed 1,400 square feet of rentable floor area) and related IDF closets, with electric power, lighting and heating, ventilating and air conditioning service supplied thereto and operational therein, at least forty-five (45) days prior to the Anticipated Delivery Date in order to allow for Tenant to access the same and install and test its IT equipment prior to the Substantial Completion Date. Any such access by Tenant shall be at upon all of the terms and conditions of the Lease (other than the payment of Annual Fixed Rent, Tenant's Electricity Payment, Operating Expenses Allocable to the Premises and Landlord's Tax Expenses Allocable to the Premises) and shall be at Tenant's sole risk, and Landlord shall not be responsible for any injury to persons or damage to property resulting from such early access by Tenant unless resulting from or caused by the negligence or willful misconduct of Landlord or Landlord's agents, employees, affiliates or contractors.
(G)
If, prior to the date that the Premises are in fact actually Substantially Complete, the Premises are deemed to be Substantially Complete pursuant to the provisions of this Section 3.3 (i.e. and the Commencement Date has therefore occurred), Tenant shall not (except with Landlord's consent and provided Landlord proceeds with reasonable diligence to complete Landlord's Work) be entitled to take possession of the Premises for the Permitted Uses until the Landlord's Work is in fact actually Substantially Complete.
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3.4
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Tenant's Remedies Based on Delays in Landlord's Work
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If
the Substantial Completion Date has not occurred by December 1, 2008 as a result of a Landlord Delay, then the Rent Commencement Date under this Lease shall be postponed day for day on account of such Landlord Delay.
If
the Substantial Completion Date has not occurred by February 1, 2009 (which date shall be extended automatically for such periods of time as Landlord is prevented in delivering the same by reason of Landlord's Force Majeure (subject to the limitations thereon set forth in Section 3.3(D)) or any Tenant Delay (without limiting Landlord 's other rights on account thereof), the Annual Fixed Rent and payments on account of Operating Expenses Allocable to the Premises and Landlord's Tax Expenses Allocable to the Premises shall be abated, from and after the Rent Commencement Date, by one (1) day for each day beyond February 1, 2009 (as so extended) that the Substantial Completion Date is delayed.
If
the Substantial Completion Date has not occurred on or before April 30, 2009 which date shall be extended automatically for such periods of time as Landlord is prevented in delivering the same by reason of Landlord's Force Majeure (subject to the limitations thereon set forth in Section 3.3(D)) or any Tenant Delay (without limiting Landlord's other rights on account thereof), the Annual Fixed Rent and payments on account of Operating Expenses Allocable to the Premises and Landlord's Tax Expenses Allocable to the Premises shall be abated, from and after the Rent Commencement Date, by two (2) days for each day beyond April 30, 2009 (as so extended) that the Substantial Completion Date is delayed.
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If the Substantial Completion Date shall not have occurred by the Outside Completion Date (which date shall be extended automatically for such periods of time as Landlord is prevented in delivering the same by reason of Landlord's Force Majeure (subject to the limitations thereon set forth in Section 3.3(D)) or any Tenant Delay (without limiting Landlord's other rights on account thereof), Tenant shall have the right to terminate this Lease effective as of the tenth ( I 0th) business day after receipt by Landlord of a notice from Tenant given on or after the Outside Completion Date (as so extended) indicating Tenant's desire to so terminate; and upon the giving of such notice, the Term of this Lease shall cease and come to an end without further liability or obligation on the part of either party as of the expiration of the aforesaid ten ( I 0) business day period, unless the Substantial Completion Date shall in fact have occurred on or before such expiration date.
The foregoing rent abatements and right of termination shall be Tenant's sole and exclusive remedies at law or in equity or otherwise for the failure of the Substantial Completion Date to have occurred within the time periods set forth above.
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3.5
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Quality and Performance of Work
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(A)
All construction work required or permitted by this Lease shall be done in a good and workmanlike manner and in compliance with all applicable laws, ordinances, rules, regulations, statutes, by-laws, court decisions, and orders and requirements of all public authorities e'Legal Requirements"), all Insurance Requirements (as defined in Section 5.7 hereof) and, with respect to the Tenant Improvement Work, with the Tenant Plans. Without limiting the generality of the foregoing, it is acknowledged and agreed that Landlord shall be responsible, at its sole cost, for ensuring that the construction of the Landlord's Work and the Base Building Work complies with all provisions of the Americans With Disabilities Act in effect and applicable to the Building and the Site as
of the date of the Substantial Completion Date (with respect to the Landlord's Work) and as of the date of this Lease (with respect to the Base Building Work). Any work performed by or on behalf of Tenant under this Lease shall be coordinated with any work being performed by or on behalf of Landlord and in such manner as to maintain harmonious labor relations.
(B)
Each party authorizes the other to rely in connection with design and construction upon the written approval or other written authorizations on such party's behalf by any Construction Representative of the party named in Section
I.
I or any person hereafter designated in substitution or addition by notice to the party relying. Each party may inspect the work of the other at reasonable times and shall promptly give notice of observed defects. Tenant acknowledges that Tenant is acting for its own benefit and account and that Tenant will not be acting as Landlord's agent in performing any work that may be undertaken by or on behalf of Tenant under this Lease, and accordingly, no contractor, subcontractor or supplier of Tenant shall have a right to lien Landlord's interest in the Property in connection with any such work.
(D)
Landlord warrants to Tenant that: (a) the materials and equipment furnished in the performance of the Landlord's Work and the Base Building Work will be of good
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quality; (b) the Landlord's Work and the Base Building Work will be free from defects not inherent in the quality described in the applicable plans and specifications therefor; and (c) the Landlord's Work and the Base Building Enhancements and all components thereof shall be weather-tight and otherwise in good working order and condition and shall comply with all Legal Requirements as of the Substantial Completion Date (with respect to the Landlord's Work) and as of the date of this Lease (with respect to the Base Building Work). Any portion of the Landlord's Work or the Base Building Work not conforming to the foregoing requirements will be considered defective. Landlord's warranty hereunder shall not apply to the extent of damage or defect caused by (1) the negligent acts or omissions or the willful misconduct of Tenant, its employees, agents, contractors, sublessees or permitted occupants under Section 5.6.7 below (hereinafter, the "Tenant Parties"), (2) improper operation by any of the Tenant Parties, or (3) normal
wear and tear and normal usage.
The foregoing warranty (x) with respect to the Landlord's Work shall commence on the date on the Substantial Completion Date and shall expire on the day immediately preceding the first anniversary of the Substantial Completion Date, and (y) with respect
to the Base Building Work shall commence on the date on which Landlord has completed the Base Building Work and expire on the date which is eleven (11) months after the commencement of the warranty on the Base Building Work (either such period, as applicable, being hereinafter referred to as the "Warranty Period"), provided that in any event Tenant is required to deliver notice to Landlord of any defects at least thirty (30) days prior to the expiration of the applicable Warranty Period (the "Warranty Notice Period") in order to permit Landlord to take action to enforce Landlord's warranty rights with respect to the Landlord's Work and/or the Base Building Work, as applicable, provided, however, that Landlord shall exercise commercially reasonable efforts to enforce Landlord's warranty rights with respect to any notice delivered by Tenant after the Warranty Notice Period. Landlord agrees that it shall, without cost to Tenant, correct any portion of the Landlord's Work and/or Base Building Work which during the applicable Warranty Period is found not to be in accordance with the warranties set forth in this subsection (D). All defective items shall, subject to Tenant Delays and provided that Tenant has afforded Landlord with reasonable access to the Premises subject to the terms and provisions of Section 5.9 below in order to undertake the work described herein, be completed by Landlord within a reasonable period of time to be mutually agreed upon by Landlord and Tenant given the nature of the defect at issue after Landlord's receipt of a written notice from Tenant setting forth in reasonable detail the nature of the defect and Tenant's assessment of why it believes such defect is covered by the warranties set forth herein (Landlord hereby agreeing to use reasonable efforts to minimize interference with Tenant's use and enjoyment of the Premises, consistent with the fact that Landlord is undertaking to remedy the defective work). The foregoing warranty and the expiration of the applicable Warranty Period shall not serve to limit Landlord's obligations under this Lease, including without limitation, Article IV and Exhibit C nor reduce or eliminate any of the limitations on or exclusions from Operating Expenses set forth in Section 2.6, and Landlord covenants that the Premises shall be delivered to the Tenant on the Commencement Date with all base building systems identified in Section 4.1 in good and proper working order for new, Class A buildings in
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the Market Area and with the Building (including the roof and faryade) weathertight.
(E)
Except to the extent to which Tenant shall have given Landlord notice of respects in which Landlord has not performed Landlord's construction obligations under this Article III within the applicable Warranty Notice Period, Tenant shall be deemed conclusively to have approved Landlord's construction and shall have no claim that Landlord has failed to perform any of Landlord's obligations under this Article Ill. Notwithstanding the foregoing, Landlord agrees that upon and after the expiration of the applicable Warranty Notice Period, Landlord shall, at Tenant's request and at Tenant's sole cost and expense, enforce and exercise on behalf of Tenant any and all construction and manufacturers' warranties and guaranties with respect to the Landlord's Work and/or the Base Building Work, as applicable, to the extent still in force and effect at the time of Tenant's request. The provisions of this subsection (E) shall not relieve Landlord of any obligation which Landlord has to make repairs or to perform maintenance pursuant to Article IV of the Lease nor limit any rights and remedies Tenant may have at law or in equity against the Contractor or any other party (other than Landlord) performing work or supplying materials in connection with the Landlord's Work and/or the Base Building Work.
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3.6
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Landlord's Contribution; Tenant Plan Excess Costs
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(A)
As an inducement to Tenant's entering into this Lease, Landlord shall provide to Tenant an allowance in an amount not to exceed Eight Million One Hundred Four Thousand Three Hundred Fifty and 00/100 Dollars ($8, I 04,350.00) ("Landlord's Contribution") to be used and applied by Landlord towards the cost of the Tenant Improvement Work. For the purposes hereof, the cost of the Tenant Improvement Work shall include the cost of leasehold improvements and architectural and engineering fees, mechanical, electrical and plumbing plans, telephone and computer systems and tel/data cabling installation (provided, however, that the amount of Landlord's Contribution that may be applied towards the reimbursement of architectural and engineering fees, mechanical, electrical and plumbing plans, telephone and computer systems and tel/data cabling installation shall
be
capped at an amount equal to the product of (i) $15.00 and
(y) the Rentable Floor Area of the Premises initially demised to Tenant), but shall not include any of Tenant's other personal property, trade fixtures or trade equipment. Tenant agrees that, as part of the Tenant Improvement Work, each floor of the Premises shall be improved to an average value of at least $40.00 per square foot of the Rentable Floor Area of the Premises located on such floor.
(B)
Landlord shall be under no obligation to apply any portion of the Landlord's Contribution for any purposes other than as provided in this Section 3.6. In addition, in the event that (i) Tenant has received notice from Landlord that it is in default of its obligations under this Lease and such default remains uncured, or (ii) there are any liens which are not bonded to the reasonable satisfaction of Landlord against Tenant's interest in the Lease or against the Building or the Site arising out of any work performed by Tenant or any litigation in which Tenant is a party, then, from and after the date of such event ("Event"), Landlord may suspend funding the remaining balance of the Tenant Allowance until the condition giving rise to the Event has been cured or otherwise
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rectified to Landlord 's reasonable satisfaction. Further, the Landlord's Contribution shall only be applied towards the cost of leasehold improvements, and, except as expressly provided in subsection (A) above, in no event shall Landlord be required to make application of any portion of the Landlord's Contribution towards Tenant's personal property, trade fixtures or moving expenses or on account of any supervisory fees, overhead, management fees or other payments to Tenant, or any partner or affiliate of Tenant. In the event that the costs of the Tenant Improvement Work are less than the Landlord's Contribution, Tenant shall not be entitled to any payment or credit nor shall there be any application of the same toward Annual Fixed Rent or Additional Rent owed by Tenant under this Lease.
(C)
To the extent, if any, that there are Tenant Plan Excess Costs, Tenant shall reimburse Landlord, as Additional Rent, within twenty-one (21) days after the receipt of a Funding Request (as hereinafter defined) from Landlord, the Tenant Plan Excess Costs in the proportion that the Tenant Plan Excess Costs bear to the total cost of the Tenant Improvement Work. Landlord shall submit disbursement requests (each, a "Funding Request") to Tenant not more than once during each calendar month along with, for each payment, a payment request, which shall be substantially in the form of an Application for Payment on AlA Document G702 and 0703 (it being acknowledged and agreed that individual contractors often make slight modifications to these AIA Documents) certified by the Contractor seeking that percentage of the Tenant Plan Excess Costs (less the applicable holdback amount specified in the Construction Contract for such work) which corresponds to the percentage of completion of the Tenant Improvement Work which has been achieved as of the date of such payment request. With respect to the first Funding Request, Landlord and/or the Contractor will submit to Tenant with such first Funding Request insurance certificate(s) or policy(ies) (or endorsement(s) to existing policy(ies)) evidencing that all coverages required under the Lease are in effect with respect to the Premises and the Tenant Improvement Work. With respect to the final Funding Request, Landlord and/or the Contractor shall submit Tenant with such final Funding Request (i) evidence of insurance as described in the immediately preceding sentence, (ii) a copy of the document evidencing the permission of the applicable governmental authority to the extent required by law for the occupancy of the Premises for the Permitted Uses (which such permission may be evidenced by the signature(s) of the appropriate municipal
official(s) on the building permit for the Tenant Improvement Work). With respect to all interim Funding Requests, Landlord and/or the Contractor shall submit to Tenant with such Funding Requests, (a) lien waivers or releases in anticipation of payment for the Tenant Improvement Work from the Contractor and all major subcontractors with respect to which payment is being requested, and (8) a certificate from the Contractor (if not already included in the AIA G702 or AIA 0703 documentation submitted to Tenant) specifying the percentage of completion of the Tenant Improvement Work which has been achieved as of the date of such certificate. Tenant shall have the right to have Tenant's Construction Representative or architect, if Tenant so elects, inspect the Tenant Improvement Work to confirm completion of the work represented by the Funding Request, provided that any such inspection occurs within five (5) business days after receipt of the applicable Funding Request, subject to delays caused by Landlord's failure to provide access to the Retained Premises at reasonable times to Tenant's Construction
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Representative or architect for such inspection (which such five (5) business day period shall be included within the twenty-one (21) day period within which Tenant has to fund the applicable portion of the Tenant Plan Excess Costs).
(D)
Landlord shall, upon request from Tenant or Tenant's Construction Representative, deliver to Tenant copies of any and all operation and maintenance manuals covering the fixtures, equipment and machinery constituting a part of the Landlord's Work.
Any disputes relating to provisions or obligations in this Article III or arising from the performance of the parties under this Article Ill shall be resolved by arbitration, under the Construction Industry Rules of the American Arbitration Association (the "AAA"), and subject to the provisions of Mass. General Laws, c. 251, with hearings conducted as expeditiously as practicable and with no undue delay, and in no event later than sixty (60) days after the date of demand, in Boston, Massachusetts. Prior written notice of application by either party for arbitration shall be given to the other at least ten (10) days before filing of any demand for arbitration hereunder. Any award of an arbitrator
rendered hereunder shall be subject to confirmation and entry of judgment thereon in any court of competent jurisdiction sitting in Suffolk or Middlesex Counties, Massachusetts, and the parties hereby consent to the jurisdiction of such court. The costs and administration expenses of each arbitration hereunder and their apportionment between the parties shall be borne equally by the parties, and each party shall be responsible for its own attorneys' fees and expert witness fees. In connection with the foregoing, it is expressly understood and agreed that the parties shall continue to perform their respective obligations under this Lease during the pending of any such arbitration proceeding hereunder (with any adjustments or reallocations to be made on account of such
continued performance as determined by the arbitrator in his or her award).
ARTICLE IV
LANDLORD'S COVENANTS: INTERRUPTIONS AND DELAYS
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4.1.1
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Services Furnished by Landlord
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Landlord shall furnish to the Premises and the Building the services, utilities, facilities and supplies set forth in Exhibit C in all events at least equal to those customarily provided by landlords in comparable Class A, high quality, multi tenant office buildings in the Market Area, subject to escalation reimbursement in accordance with, and as limited by, Section 2.6.
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4.1.2
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Additional Services Avai lable to Tenant
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Landlord shall furnish, at Tenant's expense, reasonable additional Building services which are usual and customary in similar office buildings in the Market Arca upon reasonable advance req uest of Tenant at reasonable and equitable rates from time to time established by Landlord, subject to the provisions of Exhibit C of this Lease. Tenant agrees to pay to Landlord, as Additional Rent, (i) the cost of any such additional Building services requested by Tenant and (ii) the cost of any additions, alterations, improvements or other work performed by Landlord in the Premises at the request of Tenant, within thirty (30) days after being billed therefor. Landlord agrees that Tenant may install, at Tenant's sole cost and expense (but subject to payment from Landlord's Contribution subject to and in accordance with Article III hereof but only to the extent such installation is part of Tenant's Work) in accordance with, and subject to, the applicable provisions of this Lease (including Article VI hereof) an additional or supplemental heating, ventilating and air-conditioning system (a "Supplemental HYAC System"). The costs of installation, maintenance and operation of the Supplemental HYAC System (including all costs associated with the installation, maintenance and operation of any equipment required in order to generate chilled water) shall be borne by Tenant. All facilities, equipment, machinery and ducts installed by Tenant in connection with the Supplemental HYAC System shall be subject to Landlord's prior approval, which approval shall be granted or withheld in accordance with the provisions of Article VI hereof. Tenant agrees to cooperate fully with Landlord and to abide by all reasonable regulations and requirements which Landlord may prescribe in accordance with this Lease for the proper connection, functioning and protection of the Supplemental HVAC System.
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4.1.3
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Repairs and Maintenance
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Except as otherwise provided in Article VI and subject to the escalation provisions of Section 2.6 (including the exclusions from Landlord's Operating Expenses set forth in said Section 2.6), Landlord shall (i) make such repairs and/or replacements (as appropriate) to all structural and non-structural portions and components of the roof systems (including roof membranes) and the mechanical, electrical, plumbing, sprinkler, fire/life safety, access control and the heating, ventilating and air conditioning ("HYAC") systems serving the Premises and the Building (but exclusive of any specialty installations installed or requested by Tenant that exclusively serve the Premises which shall be maintained at Tenant's sole cost and expense), the Common Areas and the Structural Elements (as hereafter defined), all as may be necessary to keep them in good and operable condition consistent with the level of maintenance and repair customary for comparable, first-class office properties in the Market Area, and (ii) maintain the Property (exclusive of Tenant's responsibilities under this Lease) in a first class manner comparable to the maintenance of similar first-class office properties in the Market Area. The term "Structural Elements" shall mean the structural components of the Building, including without limitation the roofs, foundations, exterior structural walls, floor/ceiling slabs, exterior glass and
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mullions, columns, beams, shafts, elevator cabs and other load-bearing elements of the Building.
(A)
Premises S
ignage. Landlord shall provide and install, at Landlord's expense, letters or numerals on the main entrance door to the Premises to identify Tenant's name and Building address; all such letters and numerals shall be in the building standard graphics and no others shall be used or permitted on the Premises. In addition, Tenant shall have the right, at its sole cost and expense and subject to Landlord's right to reasonably approve all graphics, to install letters or numerals on all other entrance doors to the Premises to identify Tenant's name and Bui lding address and that of its subtenants and Permitted Occupants.
(B)
Lobby S
ignage. Landlord shall, during the Tenn of this Lease, provide Tenant with a listing of Tenant's name on the Building Directory and, at Tenant's request, the name of Tenant's subtenants. The initial listing of Tenant's name shall be at Landlord's cost and expense. Any changes, replacements or additions by Tenant to such directory shall be at Tenant's sole cost and expense. In addition, Tenant shall have the non-exclusive right to include Tenant's name and logo on "Impact Signage" to be installed by Landlord at Landlord's cost and expense in the main lobby of the Building as shown on the conceptual plan attached hereto as Exhibit 1-1. At Tenant's request, Landlord will consider in its sole discretion permitting any subtenant of Tenant's subleasing a full floor or
more of the Premises to install, at Tenant's sole cost and expense, Impact Signage in the main lobby of the Building, provided that Landlord shall be under no obligation to permit the same unless Tenant leases the entirety of the Total Rentable Floor Area of the Building (in which event Tenant shall be entitled to utilize all available Impact Signage in the Building and to provide the same to its subtenants as it deems appropriate, subject to Landlord's reasonable approval of the design and location of such subtenant Impact Signage).
(C)
Monument Signage. Landlord shall use reasonable efforts to obtain all necessary permits to install monument signage (the ..Monument") at the entrance to the Building.
If
Landlord receives the required permits, Landlord shall install the Monument, and Tenant shall have the non-exclusive right to have its name and logo on said Monument ("Monument Signage") substantially in accordance with the conceptual plan attached hereto as Exhibit I-2; provided that if any material changes are made to the Monument from what is shown on Exhibit I-2, the location of Tenant's Monument Signage shall always be in a similar position of prominence as that shown on said exhibit. The initial listing of Tenant's name and logo, after reasonable approval by Tenant, on the Monument shall be at Landlord's cost and expense; provided, however, any changes, replacements or additions to the Monument Signage after initial installation requested by Tenant shall be done at Tenant's sole cost and expense and shall be subject to Landlord's approval in Landlord's reasonable discretion (so long as such changes,
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replacements or additions are consistent with Exhibit 1-2).
(D)
Building S
ignage. Tenant shall have the right, at its sole cost and expense, to design and install one
(I)
identification sign with Tenant's name and logo on the exterior fayade of the Buildi ng (the "Building Signage"), subject to applicable zoning requirements and other applicable laws and to Tenant obtaining all necessary permits and approvals therefor (Landlord hereby agreeing to cooperate with Tenant, at no cost or expense to Landlord, in Tenant's obtaining of such permits and approvals). To the extent permitted by applicable zoning laws, such Building Signage may be illuminated in the manner described on the conceptual plan attached hereto as Exhibit 1-3. Tenant's right to Building Signage shall be
exclusive so long as Tenant shall directly lease and occupy at least 100,000 square feet of rentable floor area in the Building and Landlord shall not grant or permit other tenants or third parties or Landlord (including any affiliates of Landlord) the right to maintain exterior signage on the fayade of the Building. The Buildi ng Signage shall be substantially in accordance with and in the location shown on Exhibit 1-3; provided, however, that the final design thereof shall be subject to Landlord's approval in Landlord's reasonable discretion so long as the final
design and location thereof is not materially different than that shown on the conceptual plan attached as Exhibit I-3. In the event that, at any time during the Term, Tenant ceases to directly lease and occupy less than 75,000 square feet of rentable floor area in the Building, Tenant shall, upon Landlord's written request and at Tenant's sole cost and expense, remove the Building Signage installed by Tenant pursuant to this Section 4.1.4 (D) in accordance with the provisions of subsection (E) below.
In the event that Landlord or any of its affiliates, parent companies or subsidiaries constructs a new building on property adjacent to the Site that materially obstructs or otherwise adversely impacts the visibility of the Building Signage, Tenant shall have the one-time right, at its sole cost and expense and subject to all terms and provisions of this Section 4.1. l as are applicable to the Building Signage (including, without limitation, Landlord's approval rights and all applicable occupancy thresholds), to relocate the Building Signage to another location on the exterior fayade of the Building.
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(E)
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C
onditions. Notwithstanding the foregoing provisions of this Section to
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the contrary, within thirty (30) days after the date on which the Term of this Lease is terminated due to a Tenant default, then Tenant shall, at its cost and expense, remove the Monument Signage, the Impact Signage and the Building Signage and restore all damage to the Monument and the Building caused by the installation and/or removal of such Monument Signage, Impact Signage or Building Signage. Such removal and restoration shall be performed in accordance with the terms and conditions governing alterations pursuant to Section 5.2 herein. The right to the Building Signage granted pursuant to this Section 4.1.4 is personal to Phase Forward, Inc. and any Permitted Transferee (as that term is defined in Section
5.6.1 below). The right to the Monument Signage and Tenant's Impact Signage
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may be transferred (x) to any Permitted Transferee and (y) subject to Landlord's reasonable approval, to any other approved assignee or subtenant, but no more than one
(1)
time during the Lease Term. So long as Tenant meets the occupancy requirements of subsection (D) above related to the right to maintain the Building Signage, Landlord shall not name the Building after or change the address of the Building to include the name of any corporate or business entity without Tenant's prior written consent in Tenant's sole discretion
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4.2
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Interruptions and Delays in Services and Repairs. Etc
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(A)
Except as may be expressly set forth in subsection (C) below Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance or for loss of business arising from the necessity of Landlord or its agents
entering the Premises for any of the purposes in this Lease authorized, or for repairing the Premises or any portion of the Building however the necessity may occur. In case Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any services or performing any other covenant or duty to be performed on Landlord's part, by reason of any cause reasonably beyond Landlord's control, including without limitation the causes set forth in Section 3.2 hereof as being reasonably beyond Landlord 's control, Landlord shall not be liable to Tenant therefor, nor, except as expressly otherwise provided in Article Vl, shall Tenant
be
entitled to any abatement or reduction of rent by reason thereof, or right to terminate this Lease, nor shall the same give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises.
(B)
Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
(C)
Notwithstanding anything to the contrary in this Lease contained, if due to (i) any repairs, alterations, replacements, or improvements made by Landlord, (ii) Landlord's failure to make any repairs, alterations, or improvements required to be made by
Landlord hereunder, or to provide any service required to be provided by Landlord hereunder, or to remediate any Hazardous Materials (as that term is defined in Section 5.3 below and provided such Hazardous Materials were not used, stored or disposed of at the Property by Tenant or its agents, employees, subtenants or contractors), or (iii) failure of electric supply, water and/or sewer service, all elevator service, HVAC service or all access to the Premises, any portion of the Premises becomes untenantable so that for the Premises Untenantability Cure Period, as hereinafter defined, the continued operation in the ordinary course of Tenant's business is materially adversely affected (including, without limitation, as the result of the Premises being rendered inaccessible as the result
of any of the circumstances described in subsections (i), (ii) or (iii) above), then, provided that Tenant ceases to use the affected portion of the Premises during the entirety of the Premises Untenantability Cure Period by reason of such untenantability, and that such
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untenantability and Landlord's inability to cure such condition is not caused by the fault or neglect of Tenant or Tenant's agents, employees or contractors, Annual Fixed Rent, Operating Expenses Allocable to the Premises and Landlord's Tax Expenses Allocable to the Premises shall thereafter be abated in proportion to the impact on the continued operation in the ordinary course of Tenant's business until the day such condition is completely corrected. For the purposes hereof, the "Premises Untenantability Cure Period" shall be defined as five (5) consecutive business days after Landlord's receipt of written notice from Tenant of the condition causing untenantability in the Premises, provided however, that the Premises Untenantability Cure Period shall be ten (10) consecutive business days after Landlord's receipt of written notice from Tenant of such condition causing untenantability in the Premises if either the condition was caused by causes beyond Landlord's control or Landlord is unable to cure such condition as the result of causes beyond Landlord's control.
(D)
Notwithstanding anything to the contrary herein contained, if due to (i) any repairs, alterations, replacements, or improvements made by Landlord, (ii) Landlord's failure to make any repairs, alterations, or improvements required to be made by Landlord hereunder, or to provide any service required to be provided by Landlord
hereunder, or to remediate any Hazardous Materials (as that term is defined in Section 5.3 below and provided such Hazardous Materials were not used, stored or disposed of at the Property by Tenant or its agents, employees, subtenants or contractors), or (iii) failure or inadequacy of electric supply, water and/or sewer service, all elevator service, HVAC service or all access to the Premises, any material portion of the Premises becomes untenantable for a period ("Untenantability Period") of five (5) consecutive months (which five (5) month period shall be extended by the period of time, which shall not exceed an additional one ( 1) month, that Landlord is delayed in curing such condition as the result Landlord's Force Majeure) after Landlord's receipt of written notice of such condition from Tenant, then, provided that Tenant ceases to use the affected portion of
the Premises during the entire period of such untenantability, and Landlord's inability to cure such condition is not caused the fault or neglect of Tenant, or Tenant's agents, employees or contractors, then Tenant may terminate this Lease by giving Landlord written notice as follows:
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(1)
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Said notice shall be given after the expiration of the Untenantability Period.
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(2)
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Said notice shall set forth an effective date which is not earlier than thirty
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(30) days after Landlord receives said notice.
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(3)
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If said condition is remedied on or before said effective date, said notice shall have no further force and effect.
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(4)
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If said condition is not remedied on or before said effective date for any reason other then Tenant's fault, as aforesaid, the Lease shall terminate as of said effective date, and the Annual Fixed Rent and Additional Rent due under the Lease shall be apportioned as of said effective date.
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(E)
The remedies set forth in this Section 4.2 shall be Tenant's sole remedies for the events described herein. The provisions of this subsection shall not apply in the event of untenantability caused by fire or other casualty, or taking (which shall be subject to the terms and conditions of Article VI below)
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4.3
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Landlord's I
nsurance.
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Landlord shall carry at all times from and after the commencement of construction of the Landlord's Work and continuing throughout the Term of this Lease, (i) commercial general liability insurance with respect to the Building in an amount not less than
$10,000,000.00 combined single limit per occurrence, and (ii) insurance against loss or damage to the Building covered by the so-called "all risk" type insurance coverage with customary exceptions, in an amount equal to one hundred percent ( I 00%) of the full replacement cost thereof (which such property insurance shall incl ude so-called "Builder's Risk" coverage). Further, Landlord may also maintain such insurance against loss of Annual Fixed Rent and Additional Rent for up to twelve (12) months (or such longer period of time as Landlord's mortgagee may require) and such other risks and perils as Landlord deems proper. Any and all such insurance (x) may be maintained
under a blanket policy affecting other properties of Landlord and/or its affiliated business organizations, (y) may be written with deductibles as reasonably determined by Landlord (which such deductible is currently $25,000.00 and which Landlord hereby covenants
and agrees shall not exceed $75,000.00 during the Original Term of this Lease) and (z) shall be subject to escalation reimbursement in accordance with Section 2.6.
Nothing contained herein shall be construed so as to require Landlord to maintain terrorism or environmental pollution liability insurance or insurance covering mold in the Building (it being acknowledged, however, that Landlord does in fact maintain such coverages as of the date of this Lease); provided, however, that in the event the Landlord originally named herein shall sell, transfer, assign, convey or ground lease its interest in the Property to an unaffiliated third party, such new owner and any subsequent party succeeding to the original Landlord's interest as Landlord under this Lease shall not be entitled to charge to Tenant at any time during the Term as part of Operating Expenses Allocable to the Premises any costs of terrorism or environmental pollution liability insurance in excess of one hundred ten percent (110%) of the costs being paid by Tenant on account of such coverages during the last full calendar year immediately prior to the conveyance by the original named Landlord.
In the event that Landlord does not carry terrorism and/or envirorunental pollution liability insurance during calendar year 2009 but subsequently does maintain the coverage(s) that was not so maintained in 2009 during any other Lease Year during the
Term, Base Operating Expenses shall be equitably adjusted by adding an amount equal to the amount that would reasonably have been payable by Landlord for such coverage(s) in 2009.
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4.4
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Landlord's I
ndemnity.
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Subject to the limitations of Section 8.4 below and to the provisions of Section 8.19 below, to the maximum extent this agreement is effective according to law and to the extent not resulting from any act, omission, fault, negligence or misconduct of Tenant or its contractors, agents, licensees, invitees, servants or employees, Landlord agrees to defend with counsel first approved by Tenant (counsel appointed by Landlord's insurance carrier shall be deemed approved by Tenant and for any other circumstances such approval shall not be unreasonably withheld or delayed) indemnify and save harmless Tenant and Tenant's beneficiaries, partners, subsidiaries, officers, directors, agents, trustees and employees (collectively, the "Tenant Parties") from and against any claim arising from any injury to any person occurring in the Premises, in the Buildings or on
the Site from and after the date that Landlord commences construction of the Landlord's Work and until the expiration or earlier termination of the Lease Term, to the extent such injury results from the negligence or willful misconduct of Landlord or Landlord's agents, employees or contractors provided, however that in no event shall the aforesaid
indemnity render Landlord responsible or liable for any loss or damage to fixtures or personal property of Tenant and Landlord shall in no event be liable for any indirect or consequential damages; and provided, further, that the provisions of this Section 4.4 shall not be applicable to the holder of any mortgage now or hereafter on the Site or the Buildings (whether or not such holder shall be a mortgagee in possession of or shall have exercised any rights under a conditional, collateral or other assignment of leases and/or rents respecti ng, the Site and/or Buildings) except to the extent otherwise agreed by such holder in any Subordination, Non-Disturbance and Attornment Agreement by and between Tenant and such holder.
Provided that, on the condition that and only so long as (i) the Tenant originally named herein (or its Permitted Transferee engaged in the same line of business as the Tenant originally named herein) directly leases from Landlord at least 100,000 square feet of rentable floor area in the Building, (ii) this Lease is still in full force and effect, and (iii) Tenant has neither assigned this Lease nor sublet more than twenty-five percent (25%) of the Premises then leased by Tenant (except for an assignment or sublease under Section
5.6. l below and except for the Initial Second Floor Subleases), (a) Landlord shall not hereafter directly enter into a lease of other space in the Building with Medidata Solutions Worldwide ("Medidata"), or any of Medidata's successors, parent or holding
companies, subsidiaries, divisions or affiliates (but only to the extent any of the foregoing are engaged in the same line of business as Medidata and are in direct competition with the Tenant originally named herein or any Successor Entity to which this Lease is assigned or the Premises sublet under Section 5
.
6. l below), and (b) Landlord agrees to include in all leases entered into after the date hereof (the "Future Leases") the same clause as is contained in Section 5.6.2(h) below (the "Assignment and Subletting Restriction Clause") which would allow Landlord to withhold its consent (and Landlord shall so withhold its consent) to a proposed assignment or sublease that would be in violation of the restrictions of this Section 4.5. Landlord further represents that the PRTM Lease and the lease between Landlord and Administaff Client Services, L.P. dated
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September 18, 2007 (the "Existing Leases") do contain the Assignment and Subletting Restriction Clause. Landlord shall use commercially reasonable efforts to enforce the terms of the Assignment and Subletting Restriction Clauses in the Existing Leases and the Future Leases, but in no event shall Landlord be liable to Tenant (x) for the failure of other occupants of the Building to comply with the Assignment and Subletting Restriction Clause so long as Landlord has withheld its consent and used commercially reasonable efforts to enforce the same as aforesaid or (y) to the extent that a court of competent jurisdiction determines that the Assignment and Subletting Restriction Clause is invalid and/or unenforceable.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants and agrees to the following during the Term and such further time as Tenant occupies any part of the Premises:
Tenant shall pay when due all fixed rent and Additional Rent and all charges for utility services rendered to the Premises (except as otherwise provided in Exhibit
C)
and, as further Additional Rent, all charges for additional services rendered pursuant to Section 4.1.2.
Except as otherwise provided in Article VI and Section 4.1.3 and excepting only reasonable wear and tear and damage by fire or taking under the power of eminent domain, Tenant shall keep the Premises in good order, repair and condition and with all glass in windows (except glass in exterior walls unless the damage thereto is attributable to Tenant's misuse) and doors of the Premises whole and in good condition with glass of the same type and quality as that injured or broken, and at the expiration or termination of this Lease peaceably yield up the Premises and all construction, work, improvements, and all alterations and additions thereto in good order, repair and condition, reasonable wear and tear and damage by fire or other casualty only excepted. Prior to such yielding up,
Tenant shall first remove
(i)
all goods and effects of Tenant, and (ii) to the extent specified by Landlord by notice to Tenant given at least sixty (60) days prior to such expiration or termination, the wiring for Tenant's computer, telephone and other communication systems and equipment whether located in the Premises or in any other portion of the Building, including all risers, and (iii) all Required Removables (as defined in Section 5.14 below) and, to the extent specified for removal by Landlord at the time Landlord approves of the same under Article III above or Section 5.14 below, all other alterations and additions made by Tenant, and in all events repairing any damage caused by such removal and restoring the Premises and other affected areas of the Building or the Site and leaving them clean and neat. Tenant shall not permit or commit any waste.
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Subject to the provisions of Section 8.19, Tenant shall be responsible for the cost of repairs which may be made necessary by reason of damage to common areas in the Building or to the Site caused by Tenant, Tenant's agents, contractors, employees, sublessees, licensees, concessionaires or invitees.
Tenant shall use and occupy the Premises for the Permitted Use only, and shall not injure or deface the Premises, Building or the Site nor permit in the Premises or on the Site any auction sale, vending machine, or inflammable fluids or chemicals, or nuisance, or the emission from the Premises of any objectionable noise or odor, nor to operate in the Premises in such a way as to result in the leakage of fluid, nor use or devote the Premises or any part thereof for any purpose other than the Permitted Use, nor permit any use thereof which is inconsistent with the maintenance of the Building as an office building of the first class in the quality of its maintenance, use and occupancy, or which is improper, offensive, contrary to law or ordinance or liable to invalidate or increase the premiums for any insurance on the Building or its contents or liable to render necessary any alteration or addition to the Building. Landlord represents that to the best of its actual knowledge as of the date of this Lease, the use of the Premises for office use will not invalidate Landlord's insurance or increase the premiums therefor.
If Tenant abandons or vacates the entire Premises for a period of in excess of one hundred eighty ( 180) days, Landlord shall have the right, on not less than ten ( 10) days'
prior written notice thereof to Tenant, to enter into the Premises in order to turn the lights on in the vacated portion(s) of the Premises during nighttime hours from dusk until 10:00
p.m. at the same level as if the Premises were fully occupied, and Tenant shall pay for all electricity charges related thereto. Vacancy or abandonment shall not be deemed to be an Event of Default by Tenant hereunder.
Further, (i) except as otherwise set forth herein, Tenant shall not, nor shall Tenant permit its employees, invitees, agents, independent contractors, contractors, assignees or subtenants to, keep, maintain, store or dispose of (into the sewage or waste disposal system or otherwise) or engage in any activity which might produce or generate any substance which is or may hereafter be classified as a hazardous material, waste or substance (collectively "Hazardous Materials"), under federal, state or local laws, rules and regulations, including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General Laws, Chapter 21 E and the rules and regulations promulgated under any of the foregoing, as such laws, rules and regulations may be amended from time to time (collectively "Hazardous Materials Laws"), (ii) Tenant shall promptly notify Landlord of any incident in, on or about the Premises, the Building or the Site that would require the filing of a notice under any Hazardous Materials Laws, (iii) Tenant shall comply and shall cause its employees, invitees, agents, independent contractors, contractors, assignees and subtenants to comply with each of the foregoing and (iv) Landlord shall have the right to make such inspections (including testing) as Landlord shall reasonably elect from time to time to determine that Tenant is complying with the foregoing. Notwithstanding the foregoing, Tenant may use Hazardous Materials and
other substances typically used by Tenant for the conduct of the Permitted Uses, provided that Tenant uses, stores and disposes of such Hazardous Materials and other substances in the manner which they are normally used, and in compliance with all Hazardous
Materials Laws and other applicable laws, ordinances, bylaws, rules and regulations, and Tenant obtains and complies with all permits required by Hazardous Materials Laws or any other laws, ordinances, bylaws, rules or regulations prior to the use or presence of any such substances in the Premises.
Landlord represents and warrants to Tenant that, except as set forth in that certain MCP Environmental Summary Letter dated November 5, 2007 from Sanborn, Head
&
Associates, Inc. (a copy of which has been provided to Tenant), to the best of Landlord's actual knowledge as of the date of this Lease there are no Hazardous Materials in the Building or on the Site which are or would be required to be removed or otherwise abated in accordance with applicable Hazardous Materials Laws. Subject to the limitations of Section 8.4 hereof, Landlord shall use reasonable efforts to remove or abate, as required by applicable Hazardous Materials Laws and without inclusion in Operating Expenses,
(x) Hazardous Materials on the Site or in the Common Areas, the Structural Elements or the base building systems of the Building and (y) Hazardous Materials that are present in other areas of the Building as the result of the actions of Landlord, its employees, agents or contractors. Notwithstanding the foregoing but without limitation of Tenant's rights under Section 4.2 of this Lease, Landlord's obligation to remove or abate Hazardous Materials pursuant to this Section 5.3 shall not apply to (i) requirements of Hazardous Materials Laws resulting from the use of Hazardous Materials, or additions, alterations or improvements in the Premises (other than the Landlord's Work and the Base Building Work), by Tenant or anyone claiming by, through or under Tenant, or (ii) Hazardous Materials which are in the Building or on the Site because of the action or inaction of any tenant or occupant in the Building, including Tenant, or any employee, agent or contractor thereof, or (iii) any tenant space in the Building, including the Premises, and any additions, alterations and improvements therei n, unless in the case of this clause (iii) such Hazardous Materials ( l ) existed in, at or on the Premises, the Building or the Site prior to the Commencement Date or migrated to the Premises, the Building or the Site from another property or (2) are present as the result of the action or inaction of
Landlord, its affiliates, employees, agents or contractors. In connection with the foregoing, Landlord hereby agrees to use best efforts to enforce the terms of its leases with other tenants of the Building in the event of a violation of Hazardous Materials Laws resulting from the action or inaction of any tenant or occupant of the Building or any employee, agent or contractor thereof; provided, however, that, subject to Section 4.2, in no event shall Landlord be liable to Tenant for any violation of Hazardous Materials Laws by any tenant or occupant of the Building.
Subject to the limitations of Section 8.4 hereof, Landlord agrees to defend with counsel first approved by Tenant (counsel appointed by Landlord's insurance carrier shall be deemed approved by Tenant and for any other circumstances such approval shall not be unreasonably withheld or delayed), indemnify and save Tenant harmless from liability, loss and damage to persons or property and from any claims, actions, proceedings and expenses in connection therewith resulting from the failure of Landlord to fulfill its
obligations under this Section 5.3 or any breach of Landlord's representations and warranties under this Section 5.3; provided, however, that in no event shall the foregoing indemnity render Landlord liable for any loss or damage to Tenant's Property and Landlord shall in no event be liable for indirect or consequential damages.
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5.4
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Obstructions: Items Visible From Exterior: Rules and Regulations
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Tenant shall not obstruct in any manner any portion of the Building not hereby leased or any portion thereof or of the Site used by Tenant in common with others; nor without the prior consent of Landlord and except as otherwise expressly set forth in this Lease, shall Tenant permit the painting or placing of any signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like, visible from outside the Premises; and Tenant shall comply with all reasonable Rules and Regulations of general applicability to tenants of the Building now or hereafter made by Landlord, of which Tenant has been given notice and which are not inconsistent with any of Tenant's rights under this Lease, for the care and use of the Building and Site and their facilities and approaches; Landlord shall not be liable to Tenant for the failure of other occupants of the Buildings to conform to such Rules and Regulations. All rules and regulations shall be applied and enforced on all tenants in a non-discriminatory manner, except where differing circumstances justify different treatment.
Tenant shall keep the Premises equipped with all safety appliances required by any public authority because of any use made by Tenant other than normal office use, and shall procure all licenses and permits so required because of such use and, if requested by Landlord, Tenant shall do any work so required because of such use, it being understood that the foregoing provisions shall not be construed to broaden in any way Tenant's Permitted Use.
Except as otherwise expressly provided herein, Tenant covenants and agrees that
it
shall not assign, mortgage, pledge, hypothecate or otherwise transfer this Lease and/or Tenant's interest in this Lease or sublet (which term, without limitation, shall include granting of concessions, licenses or the like) the whole or any part of the Premises. Any assignment, mortgage, pledge, hypothecation, transfer or subletting not expressly permitted in or consented to by Landlord under Sections 5.6.1-5.6.5 shall be void, ab initio; shall be of no force and effect; and shall confer no rights on or in favor of third parties. In addition, Landlord shall be entitled to seek specific performance of or other equitable relief with respect to the provisions hereof.
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5.6.1
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Notwithstanding the foregoing provisions of Section 5.6 above and the provisions of Section 5.6.2 and 5.6.4 below, but subject to the provisions of Sections 5.6.3 and 5.6.5 below, Tenant shall have the right to assign this Lease or to sublet the Premises (in whole or in part) to any other entity (the "Successor Entity") (i) which controls or is controlled by Tenant or Tenant's parent corporation, or (ii)
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which is under common control with Tenant, or (iii) which purchases all or substantially all of the assets of Tenant, or (iv) which purchases all or substantially all of the stock of (or other membership interests in) Tenant or (v) which merges or combines with Tenant,
provided,
that to the extent Tenant does not remain in existence after an assignment to or other transaction with a
Successor Entity, the Successor Entity has a net worth (on a pro forma basis using generally accepted accounting principles consistently applied after giving effect to the merger, consolidation or purchase of assets, stock or other membership interests) reasonably sufficient to perform the obligations of the tenant under this Lease (the foregoing transferees referred to, individually or collectively, as a "Permitted Transferee"). Except in cases of statutory merger, in which case the surviving entity in the merger shall be liable as the Tenant under this Lease,
Tenant shall continue to remain fully liable under this Lease, on a joint and several basis with the Permitted Transferee.
If
any parent or subsidiary of Tenant to which this Lease is assigned or the Premises sublet (in whole or in part) shall cease to be such a parent or subsidiary, such cessation shall be considered an assignment or subletting requiring Landlord's consent.
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5.6.1.1
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Notwithstanding the provisions of Section 5.6 above, in the event Tenant desires
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(a)
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to assign this Lease, or
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(b)
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to sublet (i) such portion (the "Sublease Portion") of the Premises as (x) contains by itself at least fifty percent (50%) of the total Rentable Floor Area of the Premises or (y) would bring the total amount of the Premises then being subleased (inclusive of the Initial Second Floor Subleases but exclusive of subleases permitted pursuant to Section 5.6. l above) to fifty percent (50%) or more, or
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(ii) any Sublease Portion for a term equal to all or substantially all of the remaining Term hereof (any such sublease satisfying clauses
(i)
or (ii) being hereinafter referred to as a "Major Sublease"),
Tenant shall give Landlord either (x) a Proposed Transfer Notice (as defined in Section 5.6.3 hereof) in the event Tenant already has a specific assignment or sublease transaction or (y) a notice stating that Tenant is contemplating entering into an assignment or Major Sublease (either such notice being hereinafter
referred to as a "Notice of Intent to Transfer") and Landlord shall have the right at its sole option, to be exercised (1) within thirty (30) days after receipt of Tenant's Notice of Intent to Transfer, or (2) within fifteen (15) business days after receipt
of Tenant's Proposed Transfer Notice (such response time period, as applicable to the type of notice received from Tenant, being referred to herein as the "Acceptance Period"), to terminate this Lease, in the case of a proposed assignment, or to terminate this lease with respect to the Sublease Portion in the case of a proposed Major Sublease, as of a date specified in a notice to Tenant, which date shall not be earlier than thirty (30) days nor later than ninety (90) days after Landlord's notice to Tenant. Notwithstanding the foregoing, in the event a
proposed sublease which, when combined with other subleases of the Premises then in effect (inclusive of the Initial Second Floor Subleases but exclusive of subleases permitted pursuant to Section 5.6.1), reaches the fifty percent (50%) of the Premises threshold set forth above for Landlord to recapture, Landlord may only recapture for the then proposed sublease and, to the extent not exempted from Landlord's rights under this Section 5.6.1.1, future proposed subleases but may not recapture or terminate this Lease as to any subleases of the Premises previously entered into by Tenant. In the case of an assignment, upon the termination date as set forth in Landlord's notice, all obligations relating to the
period after such termination date (but not those relating to the period before such termination date) shall cease and promptly upon being billed therefor by Landlord, Tenant shall make final payment of all Annual Fixed Rent and Additional Rent due from Tenant through the termination date. In the case of a Major Sublease, all obligations relating to the Sublease Portion for the period
after such termination date (but not those relating to (x) the period before such termination date or (y) portions of the Premises other than the Sublease Portion), shall cease and Landlord shall, at Landlord's sole cost and expense, remove or close off and secure, in compliance with applicable laws, any internal stairways, doors, or corridors which connect the terminated portion of the Premises from the remainder of the Premises and shall, if applicable, install any corridors and/or demisi ng walls required to separate and demise the terminated portion of the Premises from the remaining portion of the Premises. In the event that Landlord shall not exercise its termination rights as aforesaid, or shall fail to give any or timely notice pursuant to this Section, the provisions of Sections 5.6.2-5.6.5 shall be applicable. This Section 5.6.1.1 shall not be applicable to an assignment or sublease pursuant to Section 5.6.1 or to the Initial Second Floor Subleases. For purposes of this Section 5.6. l.1, a sublease shall be deemed to be for substantially all of the remaining Term of this Lease if such sublease would expire with less than six (6) months remaining prior to the expiration of the Term (taking into account any extension options previously exercised by Tenant and/or available to Tenant if Tenant notifies Landlord that Tenant expects to exercise an available extension option). Notwithstanding anything herein to the contrary, if Landlord fails to exercise its rights under this Lease with respect to a Notice of Intent to Transfer within the Acceptance Period, Landlord will not thereafter have the right to exercise its rights under this Section 5.6.1.1 with respect to a Proposed Transfer Notice for any portion of the space identified in Tenant's previous Notice of
Intent to Transfer provided Tenant's Proposed Transfer Notice is received within the one hundred fifty ( 150) day time period set forth in Section 5.6.2(2) below.
In the event Landlord exercises its option to terminate this Lease as to the portion or, if applicable, the entire Premises as and to the extent permitted under this Section 5.6.1. l , then Tenant may rescind its request for Landlord's consent to such transfer by notice to Landlord within ten (10) business days following receipt of Landlord's election to terminate whereupon Landlord's election to terminate this Lease as to the applicable portion of the Premises proposed to be transferred shall be null and void.
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5.6.2
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Notwithstanding the provisions of Section 5.6 above, but subject to the provisions of this Section 5.6.2 and the provisions of Sections 5.6.3, 5.6.4 and 5.6.5 below:
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(1)
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in the event that Tenant shall have provided Landlord with a Proposed Transfer Notice and Landlord shall have either (x) elected not to exercise the termination right as set forth in Section 5.6.1 .1 or (y) failed to give any or timely notice under Section 5.6.1.1, then {i) for a period of ninety (90) days after the receipt of Landlord's notice stating that Landlord does not elect the termination right, or (ii) for a period of ninety (90) days after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 5.6.1.1, as the case may be, Tenant
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shall have the right to assign this Lease or sublet the whole or any part of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned; or
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(2)
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in the event that Tenant shall have provided Landlord with a Notice of Intent to Transfer and Landlord shall have either {x) elected not to exercise the termination right as set forth in Section 5.6.1.1 or (y) failed to give any or timely notice under Section 5.6.1 .1, then so long as Tenant shall
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provide Landlord with a Proposed Transfer Notice meeting all of the requirements of Section 5.6.3 below (i) within one hundred fifty ( 150) days after the receipt of Landlord's notice stating that Landlord does not elect the termination right, or (ii) within one hundred fifty (150) days after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 5.6.1.1, as the case may be, Tenant shall have the right to assign this Lease or sublet the whole or any part of the Premises in accordance with such Proposed Transfer Notice provided
that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned; or
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(3)
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in the case of a proposed sublease that is not subject to the provisions of Section 5.6.1.1 (exclusive of subleases for which Landlord's consent is not required pursuant to Section 5.6. l ), Tenant shall have the right to assign this Lease or sublet the whole or any part of the Premises in accordance with a Proposed Transfer Notice meeting all of the requirements of
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Section 5.6.3 below, provided that, in each instance, Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned.
It
is understood and agreed that Landlord's consent shall be deemed given hereunder in the event that Landlord shall fail to respond to a Proposed Transfer Notice meeting all of the req uirements of Section 5.6.3 below within fifteen (15)
business days after receipt thereof from Tenant.
Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
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(a)
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the proposed assignee or subtenant is a tenant in the Building or elsewhere on the Site or is in active negotiation with Landlord or an affiliate of Landlord for premises in the Building or elsewhere on the Site or is not of a character consistent with the operation of a first-class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi govemmental agency or to a so-called "call center"). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the "Subleased Premises") to a tenant of the Building or elsewhere within the area delineated as the
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"CityPoint Project" on Exhibit K attached hereto (the "Subtenant") if such Subtenant's need, as to the size of premises and length of tenn, cannot then (i.e., at the time that Tenant requests Landlord's consent to such Subtenant) be satisfied by Landlord or its affiliates within the Building or the CityPoint Project; or
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(b)
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in the case of a proposed assignment, the proposed assignee does not possess adequate financial capability to perform the Tenant obligations as and when due or required; or
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(c)
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the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section I .I hereof; or
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(d)
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the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden prior to such proposed subletting or assignment; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 5.6.2(d), Tenant may overcome such objection by agreeing to pay the amount of such increase; or
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(e)
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there shall be existing an Event of Default (defined in Section 7. I );
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or
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(f)
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any part of the rent payable under the proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
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(g)
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the holder of any mortgage on property which includes the Premises having approval rights over such proposed assignment or sublease of a full floor or more (or equivalent square footage if the subleased premises is not all located on the same floor) does not approve of the same (where such holder has approval rights pursuant to the terms of the mortgage); or
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(h)
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due to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Building, provided, however, that the foregoing basis shall not apply unless Tenant is leasing less than 75,000 square feet of rentable floor area in the Building.
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Notwithstanding the foregoing, so long as Tenant remains fully and primarily liable to Landlord, Tenant's right to sublease the all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of
the subtenant or (y) by any rent hurdle or other rental threshold that Landlord may deem needed in order to consent to a proposed sublease.
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5.6.3
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Tenant shall give Landlord notice (the "Proposed Transfer Notice") of any proposed assignment or sublease, and said notice shall specify the provisions of the proposed assignment or subletting, including (a) the name and address of the proposed assignee or subtenant, (b) in the case of a proposed assignment pursuant to Section 5.6.2, such information as to the proposed assignee's net worth and financial capability and standing as may reasonably be required for Landlord to make the determination referred to in Section 5.6.2 above (provided, however, that Landlord shall hold such information confidential having the right to release same to its officers, accountants, attorneys and mortgage lenders on a confidential basis), (c) all of the terms and provisions upon which the proposed assignment or subletting is to be made (including, in the case of a sublease, the portion of the Premises proposed to be sublet and the term of such sublease), (d) in the case of a proposed assignment or subletting pursuant to Section 5.6.2, all other information necessary to make the determination referred to in Section 5.6
.
2 above and (e) in the case of a proposed assignment or subletting pursuant to Section 5.6.1 above, such information as may be reasonably required by Landlord to determine that such proposed assignment or subletting complies with the requirements of said
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Section 5.6.1.
If
Landlord shall consent to the proposed assignment or subletting, as the case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant's notice, as given hereunder; provided, however, that if such sublease or assignment shall not be executed and delivered to Landlord within ninety (90) days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 5.6.1.1 and 5.6.2 shall again be applicable.
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5.6.4
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In addition, in the case of any assignment or subleasing as to which Landlord may consent (other than an assignment or subletting permitted under Section 5.6.1 hereof), such consent shall be upon the express and further condition, covenant and agreement, and Tenant hereby covenants and agrees that, in addition to the Annual Fixed Rent, Additional Rent and other charges to be paid pursuant to this Lease, fifty percent (50%) of the "Assignment/Sublease Profits" (hereinafter defined), if any, actually received by Tenant shall be paid to Landlord. The "Assignment/Sublease Profits" shall be the excess, if any, of (a) the "Assignment/Sublease Net Revenues" as hereinafter defined over (b) the Annual Fixed Rent and Additional Rent and other charges provided in this Lease (provided, however, that for the purpose of calculating the Assignment/Sublease Profits in the case of a sublease, appropriate prorations in the applicable Annual Fixed Rent, Additional Rent and other charges under this Lease shall be made based on the percentage of the Premises subleased and on the terms of the sublease). The "Assignment/Sublease Net Revenues" shall be the fixed rent, additional rent and all other charges and sums actually received by Tenant either initially or over the term of the sublease or assignment plus all other profits and increases actually received by Tenant as a result of such subletting or assignment, exclusive of amounts paid to Tenant for the purchase or lease of personal property or equipment of Tenant (except to the extent such amounts exceed the fair market value or rental value of the same), after deducting the reasonable costs of Tenant incurred in such subleasing or assignment (the definition of which shall be limited to rent concessions, architectural fees, attorneys' fees, moving expenses,
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brokerage commissions and alteration allowances associated with the subleasing or assignment at issue, in each case actually paid, and in the case of an assignment only and only to the extent that the assignee has paid consideration specifically on account of the same, the unamortized costs of leasehold improvements paid for by Tenant in excess of Landlord's Contribution), as set forth in a statement certified by an appropriate officer of Tenant and delivered to Landlord within thirty (30) days of the full execution of the sublease or assignment document, amortized over the term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be made within thirty (30) days of receipt of same by Tenant.
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5.6.5
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(a) It shall be a condition of the validity of any assignment or subletting of right under Section 5.6.1 above, or consented to under Section 5.6.2 above, that
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both Tenant and the assignee or sublessee enter into a separate written instrument directly with Landlord in a form and containing terms and provisions reasonably required by Landlord, including, without limitation, the agreement of the assignee or sublessee to be bound directly to Landlord for all the obligations of the Tenant hereunder, including, without limitation, the obligation (a) to pay the rent and other amounts provided for under this Lease (but in the case of a partial subletting pursuant to Section 5.6.1, such subtenant shall agree on a pro rata basis to be so bound) and (b) to comply with the provisions of Sections 5.6 through 5.6.5
hereof. Such assignment or subletting shall not relieve the Tenant named herein of any of the obligations of the Tenant hereunder and Tenant shall remain fully and primaril y liable therefor and the liability of Tenant and such assignee (or subtenant, as the case may be) shall be joint and several. Further, and notwithstanding the foregoing, the provisions hereof shall not constitute a recognition of the sublease or the subtenant thereunder, as the case may be, and at Landlord's option, upon the termination or expiration of the Lease (whether such termination is based upon a cause beyond Tenant's control, a default of Tenant,
the agreement of Tenant and Landlord or any other reason), the sublease shall be terminated.
(b)
Tenant shall pay to Landlord as a fee for Landlord's review of any proposed assignment or sublease requested by Tenant and the preparation of any associated documentation (other than the Initial Second Floor Subleases, for which Landlord agrees to wai ve such fees), within thirty (30) days after receipt of an invoice from Landlord, as Additional Rent, an amount for each such request equal to the greater of (i) One Thousand and 00/l 00 Dollars ($1,000.00) and/or
(ii)
if Landlord reasonably determines that a third-party consultant is needed or expedient to review such request, then Tenant shall reimburse Landlord for the reasonable third-party out-of-pocket costs incurred by Landlord in hiring said
third party to review such request, up to a maximum of Five Thousand and 00/100 Dollars ($5,000.00) in connection with any single request for consent.
(c)
If
this Lease be assigned, or
if
the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may upon prior notice to Tenant, at any time and from time to time after the occurrence of an Event of Default hereunder, collect rent and other charges from the assignee, sublessee 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 a waiver of the provisions of Sections 5.6 through
5.6.5
hereof, or the acceptance of the assignee, sublessee or occupant as a tenant
or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained, the Tenant herein named to remain primarily liable under this Lease.
(d)
The consent by Landlord to an assignment or subletting under any of the provisions of Sections 5.6.l or 5.6.2 shall in no way be construed to relieve Tenant from obtaining the express consent in writing of Landlord to any further
assignment or subletting.
(e)
On or after the occurrence of an "Event of Default" (defined in Section 7.1), Landlord shall be entitled to one hundred percent (100%) of any Assignment/Sublease Profits.
(f)
In addition to the other requirements set forth in this Lease and notwithstanding any other provision of this Lease, partial sublettings of the Premises shall only be permitted under the following terms and conditions: (i) the layout of both the subleased premises and the remainder of the Premises must comply with applicable laws, ordinances, rules and/or regulations and be approved by Landlord, including without limitation all requirements concerning access and egress; and (ii) in the event the subleased premises are separately physically demised from the remainder of the Premises, Tenant shall pay all costs of separately physically demising the subleased premises.
(g)
At no time during the Lease Term shall there be more than ten (10) subleases outstanding.
(h)
Without limiting Tenant's obligations under Section 5.14 and except as provided in Section 5.6.1.l of this Lease, Tenant shall be responsible, at Tenant's sole cost and expense, for performing all work necessary to comply with Legal Requirements and Insurance Requirements in connection with any assignment or subletting hereunder, including, without limitation, any work in connection with such assignment or subletting.
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5.6.6
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It
is acknowledged and agreed that Tenant may initially sublease all or some portion of the Premises located on the second (2°d) floor of the Building for sublease terms expiring on or before the later date of (a) December 31, 201 1, and
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(b) three (3) years following the Commencement Date (any such subleases being hereinafter referred to as the "Initial Second Floor Subleases"). Notwithstanding anything contained in Sections 5.6-5.6.5 above to the contrary, it is understood and agreed that (i) the provisions of Section 5.6.1.1 and Section 5.6.4 above shall not apply to the Initial Second Floor Subleases and (ii) Landlord shall not be entitled to withhold its consent to any of the prospective Initial Second Floor Subleases on the grounds that Landlord or its affiliates may also be negotiating to lease space within the Building or the CityPoint Project to such proposed subtenant.
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5.6.7
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Tenant shall have the right, without the consent of Landlord (but upon reasonable prior notice to Landlord), to permit the use or occupancy of space in the Premises by any affiliate, subsidiary or other related entity of Tenant or, with respect to a portion of the Premises that is not separately demised and consists of not more than 25,000 rentable square feet of the Premises in the aggregate for periods of less than one ( 1) year at a time, by persons who have an ongoing contractual or other business relationship with Tenant providing for cooperative or collaborative
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research and development such that such occupants have a reasonable need to work in proximity with Tenant (such persons who shall be permitted to occupy portions of the Premises pursuant to this Section 5.6.7 being referred to individually as a "Permitted Occupant", or collectively as the "Permitted Occupants"); provided that (x) the Permitted Occupants shall use the Premises in conformity with all applicable provisions of this Lease, (y) such occupancy will terminate automatically upon the expiration or earlier termination of this Lease and (z) Tenant shall remain fully liable for the acts or omissions of the Permitted Occupants in the Premises and at the Property.
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5.6.8
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At the written request of Tenant, Landlord will approve or disapprove of a proposed transferee prior to receiving a final, executed copy of the proposed assignment, sublease and other contractual documents, provided that (i) Landlord has been provided with sufficient information to make such decision, and (ii) any approval by Landlord of a proposed transferee shall be conditioned upon Landlord's subsequent approval of the actual signed assignment, sublease or other contractual documents that are entered into to effectuate the proposed Transfer. Notwithstanding the foregoing, Landlord's approval shall be null and void and deemed withdrawn if Tenant does not, within ninety (90) days of Tenant's initial request for Landlord's approval, enter into an assignment or sublease upon substantially the same economic and other material terms as were set forth in the documentation previously delivered to Landlord.
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(A)
I
ndemnity. Subject to the limitations of Section 8.4 below and to the provisions of Section 8
.
19 below, to the maximum extent this agreement is effective according to law and to the extent not resulting from the negligence or willful misconduct of Landlord or its employees, agents or contractors, Tenant shall defend with counsel first approved by Landlord (counsel appointed by Tenant's insurance carrier shall be deemed approved by Landlord and for any other circumstances such approval shall not be unreasonably withheld or delayed), save harmless, and indemnify Landlord and Landlord's managing agent, beneficiaries, partners, subsidiaries, officers, directors, agents, trustees and employees ("Landlord Parties") from any liability for injury, loss, accident or damage to any person or property, and from any claims, actions, proceedings and expenses and costs in connection therewith (including without limitation reasonable counsel fees) (i) arising from or claimed to have arisen from (a) the omission, fault, willful act, negligence or other misconduct of Tenant or Tenant's contractors, licensees, invitees, agents, servants, independent contractors or employees or (b) any use made or thing done or occurring on the Premises not due to the omission, fault, willful act, negligence or other misconduct of Landlord or its employees, agents or contractors, or (ii) resulting from the failure of Tenant to perform and discharge its covenants and obligations under this Lease.
(B)
Insurance. Tenant shall maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Term of this Lease, and thereafter, so long as Tenant is in occupancy of any part of the Premises, commercial general
liability insurance or comprehensive general liability insurance written on an occurrence
basis with a broad form comprehensive liability endorsement under which Tenant is the named insured and Landlord and Landlord's managing agent (and such persons as are in privity of estate with Landlord and Landlord's managing agent as may be set out in notice from time to time) are named as additional insureds with limits which shall, at the
commencement of the Term, be at least equal to those stated in Section I .I and from time to time during the Term shall be for such higher limits, if any, as are customarily carried in the Market Area with respect to similar properties, and worker's compensation insurance with statutory limits covering all of Tenant's employees working in the Premises. Tenant shall deposit with Landlord on or before the earlier of the date Tenant enters the Premises or the Commencement Date and concurrent with all policy renewals, certificates for any insurance Tenant is required to maintain under this Lease, in a form reasonably acceptable to Landlord and bearing the endorsement that the insurer will endeavor to provide Landlord with thirty (30) days' written notice prior to cancellation of the policies. In addition, in the event Tenant hosts a function in the Premises, Tenant agrees to obtain and maintain, and cause any persons or parties providing services for such function to obtain, the appropriate insurance coverages as determined by Landlord (including liquor liability, ifapplicable) and provide Landlord with evidence of the same. All insurance required to be maintained by Tenant pursuant to this Lease shall be maintained with responsible companies qualified to do business, and in good standing, in the Commonwealth of Massachusetts and which have a rating of at least "A-" and are within a financial size category of not Jess than "Class VIII" in the most current Best's Key Rating Guide or such similar rating as may be reasonably selected by Landlord if such Guide is no longer published.
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5.8
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Personal Property at Tenant's Risk
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Tenant covenants that 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 or elsewhere in the Building or on the Site, 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 or otherwise, or by the leakage or bursting of water pipes, steam pipes, or other pipes, by theft or from any other cause, no part of said loss or damage is to be charged to or be borne by Landlord, except that Landlord shall in no event be indemnified, released, or held harmless or exonerated from any liability to Tenant or to any other person, for any injury, Joss, damage or liability to the extent of Landlord's negligence or willful
misconduct or to the extent such indemnity, hold harmless or exoneration is prohibited by law. Further, Tenant, at Tenant's expense, shall maintain at all times during the Term of this Lease business interruption insurance and insurance against loss or damage covered by so-called "all risk" type insurance coverage with respect to Tenant's fixtures, equipment, goods, wares and merchandise, tenant improvements made by or paid for by Tenant (if such tenant improvements are removable by Tenant at the end of the Term of this Lease) and other property of Tenant (collectively "Tenant's Property"). Such insurance shall be in an amount at least equal to the full replacement cost of Tenant's Property. Tenant shall maintain all of its equipment, furniture and furnishings in good order and repair. In addition, during such time as Tenant is performing work in or to the
Premises, Tenant, at Tenant's expense, shall also maintain builder's risk insurance for the full insurable value of such work.
To permit Landlord and its agents at reasonable times and upon reasonable prior notice (except in the event of an emergency) (i) to examine the Premises and if Landlord shall be entitled and shall so elect, to make any repairs or replacements Landlord may deem necessary; (ii) to remove, at Tenant's expense, any alterations, additions, signs, curtains,
blinds, shades, awnings, aerials, flagpoles, or the l ike not consented to in writing; and (iii) to show the Premises to prospective tenants during the fifteen (15) months preceding expiration of the Tenn (or twenty-four (24) months, if Tenant has no further extension options) and to prospective purchasers and mortgagees at all reasonable times. Landlord agrees to use commercially reasonable efforts to conduct any such entry under this
Section 5.9 in such a manner and at such times so as to minimize any unreasonable interference with Tenant's business operations in the Premises, consistent with the reasons for such entry (Landlord hereby agreeing to use commercially reasonable efforts to schedule any such access hereunder during Tenant's normal business hours and in the presence of a representative of Tenant when feasible, except in the event of an emergency).
Notwithstanding anything to the contrary set forth above, Tenant may designate certain areas of the Premises as "Secured Areas" should Tenant require for the purpose of securing certain valuable property or confidential information. Landlord may not enter
such Secured Areas except (i) in the case of an emergency, (ii) in the event of a Landlord inspection (it being understood and agreed that prior to commencing any non-emergency inspection of the Secured Areas, Landlord shall be required to demonstrate reasonable grounds therefor and provide Tenant with two (2) business days' prior written notice of the specific date and time of such Landlord inspection) or (iii) in connection with Landlord's provision of regularl y recurring services to the Premises required under this Lease (including, without limitation, cleaning services).
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5.10
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Floor Load: Prevention of Vibration and Noise
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Tenant shall not place a load upon the Premises (exclusive of Tenant's equipment installed on the roof of the Building pursuant to Sections 8.26 and 8.28 below) exceeding
an average rate of 100 pounds of live load per square foot of floor area (partitions shall be considered as part of the live load); and shall not move any safe, vault or other heavy equipment in, about or out of the Premises except in such manner and at such time as Landlord shall in each instance authorize; Tenant's business machines and mechanical equipment which cause vibration or noise that may be transmitted to the Building structure or to any other space in the Building shall be so installed, maintained and used by Tenant so as to eliminate such vibration or noise.
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5.11
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Personal Property Taxes
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Tenant shall pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
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5.12
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Compliance with Laws
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Tenant shall comply with all applicable Legal Requirements now or hereafter in force which shall impose a duty on Landlord or Tenant relating to or as a result of the use or occupancy of the Premises; provided that Tenant shall not be responsible for compliance with any Legal Requirements requiring (a) structural repairs or modifications to any element of the Building, including without limitation the roof, exterior and load bearing walls, foundation and structural floor slabs, or (b) repairs or modifications to any utility
or building service equipment, or (c) installation of new building service equipment, such as fire detection or suppression equipment, even if any of the foregoing items described
in clauses (a), (b) or (c) relate to areas located solely within the Premises, unless any of the same are required due to (i) Tenant's particular manner of use of the Premises (as opposed to office use generally) or (ii) any additions, alterations or improvements performed by or for Tenant. Tenant shall promptly pay all fines, penalties and damages that may arise out of or be imposed because of its failure to comply with the provisions of this Section 5.12.
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5.13
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Payment of Litigation Expenses
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In the event of litigation or other legal proceeding between Landlord and Tenant relating to the provisions of this Lease or Tenant's occupancy of the Premises, the losing party shall, upon demand, reimburse the prevai ling party for its reasonable costs of prosecuting and/or defending such proceeding (including, without limitation, reasonable attorneys' fees).
Except as may be expressly set forth herein, Tenant shall not make alterations and additions to the Premises except in accordance with plans and specifications therefor first approved by Landlord, which approval shall not be unreasonably withheld. However, Landlord's determination of matters relating to aesthetic issues relating to alterations, additions or improvements which are visible outside the Premises shall be in Landlord's sol discretion. Without limiting such standard Landlord shall not be deemed unreasonable for withholding approval of any alterations or additions (including, without limitation, any alterations or additions to be performed by Tenant under Article III) which
(a)
in Landlord's opinion might adversel y affect any structural or exterior element of the Building, any area or element outside of the Premises, or any facility or base building mechanical system serving any area of the Building outside of the Premises, or (b) involve or affect the exterior design, size, height, or other exterior dimensions of the Building, or (c) will require unusual expense to readapt the Premises to normal office use on Lease termination or expiration (Landlord hereby agreeing that it will not withhold its consent to the installation of internal staircases on the grounds that the same require unusual expense to readapt, provided that Landlord may nonetheless withhold such approval on other grounds or condition approval on the Premises being restored at the end of the Term to its condition prior to the installation of such internal staircases) or
increase the cost of construction or of insurance or taxes on the Building or of the services called for by Section 4.1 unless Tenant first gives assurance acceptable to Landlord for payment of such increased cost and that such readaptation will
be
made prior to such termination or expiration without expense to Landlord, or (d) enlarge the Rentable Floor Area of the Premises, or (e) except with respect to the Tenant Improvement Work, are inconsistent in Landlord's judgment with alterations satisfying Landlord's standards for new alterations in the Building.
Landlord's review and approval of any such plans and specifications and consent to perform work described therein shall not be deemed an agreement by Landlord that such plans, specifications and work conform with applicable Legal Requirements and
req uirements of insurers of the Building and the other requirements of this Lease with respect to Tenant's insurance obligations (herein called "Insurance Requirements") nor deemed a waiver of Tenant's obligations under this Lease with respect to applicable Legal Requirements and Insurance Requirements nor impose any liability or obligation upon Landlord with respect to the completeness, design sufficiency or compliance of such plans, specifications and work with applicable Legal Requirements and Insurance Requirements nor give right to any other parties. Further, Tenant acknowledges that Tenant is acting for its own benefit and account, and that Tenant shall not be acting as Landlord's agent in performing any work in the Premises, accordingly, no contractor, subcontractor or supplier shall have a right to lien Landlord's interest in the Property in connection with any such work.
Within thirty (30) days after receipt of an invoice from Landlord, Tenant shall pay to Landlord as a fee for Landlord's review of any work or plans (excluding any review respecting initial improvements performed pursuant to Article III hereof for which a fee has previously been paid but including any review of plans or work relating to any assignment or subletting), as Additional Rent, an amount equal to the sum of: (i) One Hundred Fifty and 00/l 00 Dollars ($150.00) per hour, plus (ii) if Landlord reasonably determines that a third-party consultant is needed to review such work or plans, then Tenant shall reimburse Landlord for the reasonable third-party out-of-pocket costs incurred by Landlord in hiring said third party to review Tenant's plans and Tenant's work.
In the case of all alterations, additions and improvements ("Alterations"), Tenant shall deliver reasonably detailed plans and specifications to Landlord at the time Tenant seeks Landlord's approval. All Alterations shall become a part of the Building upon the expiration or earlier termination of this Lease unless and until Landlord shall specify the same for removal as hereinafter set forth. If Tenant shall make any Alterations that are considered Required Removables (as hereinafter defined), then Landlord may elect, provided Landlord so elects at the time Tenant requests Landlord's consent to such Alterations, to require Tenant at the expiration or sooner termination of the Term of this Lease to remove the same and restore the Premises to substantially the same condition as existed prior to the installation of such Required Removables. For the purposes hereof, "Required Removables" shall mean all cabling and wiring, interconnecting/internal staircases, data centers in excess of 3,000 square feet of rentable floor area (either singly
or collectively), non-core restrooms (and any horizontal plumbing lines associated with such restrooms), locker rooms,.showers and cafeterias or full-service kitchens (but not the type of kitchenettes typically found in first-class office buildings) installed by or on
behalf of Tenant. Landlord hereby agrees to make such election at the time that Landlord approves Tenant's plans for such Alterations. All of Tenant's Alterations and installation of furnishings shall be coordinated with any work being performed by Landlord and in such manner as to maintain harmonious labor relations and not to damage the Building or Site or interfere with construction or operation of the Building and other improvements to the Site and, except for installation of furnishings, shall be performed by contractors or workers first reasonably approved by Landlord. Tenant, before its work is started, shall secure all licenses and permits necessary therefor; deliver to Landlord a statement of the names of all its contractors and subcontractors and the estimated cost of all labor and material to be furnished by them; and cause each contractor to carry worker's compensation insurance in statutory amounts covering all the contractor's and subcontractor's employees and commercial general liability insurance or comprehensive general liability insurance with a broad form comprehensive liability endorsement with such limits as Landlord may reasonably require, but in no event less than $2,000,000.00 combined single limit per occurrence on a per location basis (all such insurance to be written in companies approved by Landlord and naming and insuring Landlord and Landlord's managing agent as additional insureds and insuring Tenant as well as the contractors), and to deliver to Landlord certificates of all such insurance. Tenant shall
also prepare and submit to Landlord a set of as-built plans, in both print and electronic forms, showing such work performed by Tenant to the Premises promptly after any such alterations, additions or improvements or installations are substantially complete and a set of schematic plans, in both print and electronic forms, promptly after any wiring or cabling for Tenant's computer, telephone and other communications systems is installed by Tenant or Tenant's contractor; provided, however, that if the work is not of a nature where as-built plans would customarily be prepared, Tenant shall only be required to prepare and submit the type of plans that would customarily be prepared in connection with such work. Without limiting any of Tenant's obligations hereunder, Tenant shall be responsible, as Additional Rent, for the costs of any alterations, additions or improvements in or to the Building that are required in order to comply with Legal Requirements as a result of any work performed by Tenant. Landlord shall have the right to provide such rules and regulations relative to the performance of any Alterations and installations by Tenant hereunder and Tenant shall abide by all such reasonable rules and
regulations and shall cause all of its contractors to so abide including, without limitation, payment for the costs of using Building services. Tenant agrees to pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees, or independent contractors, and whether or not Tenant is contesting any such items or costs, not to cause or permit any liens for labor or materials performed or furnished in connection therewith to attach to the Premises or the Buildings or the Site and immediately to discharge any such liens which may so attach. Tenant acknowledges and
agrees that Landlord shall be the owner of any Alterations in the Premises or the Building to the extent paid for by Landlord.
Notwithstanding the provisions of the immediately preceding paragraph, Tenant shall have the right, without obtaining -the prior consent of Landlord but upon notice to Landlord given at least ten ( 10) days prior to the commencement of any work (which notice shall specify the nature of the work in reasonable detail), to make Alterations to the Premises where:
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(i)
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the same are within the interior of the Premises within the Building, and do not affect the exterior of the Premises and the Building;
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(ii)
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the same do not affect the roof or any structural element of the Building and do not materially, adversely affect the mechanical, electrical, plumbing, heating, ventilating, air-conditioning and/or fire protection systems of the Building;
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(iii)
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either (a) such Alterations do not require the issuance of a building permit by the appropriate municipal authority or (b) the cost of said Alterations does not exceed One Hundred Thousand and 00/100 Dollars ($100,000.00) for any given project; and
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(iv)
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Tenant shall comply with the other provisions of this Lease and if such work increases the cost of insurance or taxes or of services, Tenant shall pay for any such increase in cost;
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provided, however, that Tenant shall, no later than ten ( 10) days after the making of such changes, send to Landlord plans and specifications describing the same in reasonable detail and provided further that Landlord may, by notice to Tenant given no later than thirty (30) days subsequent to the date on which the plans and specifications are submitted to Landlord, require Tenant to restore the Premises to its condition prior to such alteration, addition or improvement upon the expiration or earlier termination of the Lease Term.
Upon and subject to the terms of this Article, Tenant may construct internal staircases between floors within the Premises and Tenant shall have the right to select the location of such internal staircases subject to Landlord's approval which shall not be unreasonably withheld so long as the same shall not adversely affect the structural integrity of the Building.
5.14.2
Tenant's Security System
Tenant may install a security system within the Premises, provided such system and its installation (i) shall be subject to Landlord's prior written approval, which shall not be unreasonably withheld, conditioned or delayed (provided Landlord may deny consent to any system which is not compatible with the Building's overall security and fire safety and life safety systems), (ii) shall be in accordance with all applicable Legal Requirements, and (iii) shall be performed at Tenant's sole expense, and shall otherwise
be
installed in accordance with the provisions
governing Alterations under this Lease. Landlord agrees to cooperate with Tenant and Tenant's security system vendor to tie-in and coordinate the Building's access control system with Tenant's security system such that card keys issued by Landlord or Landlord's contractor to Tenant or Tenant's employees will permit access both to the Premises and to the front entry door to the Building and the
back entry door in the loading dock area of the Building (it being understood and agreed that Landlord reserves the right to limit or prohibit access to the back entry door if Landlord determines in its reasonable discretion that such access is
causing a potentially unsafe condition), but will prohibit other parties from using Building access cards issued by Landlord or Landlord's contractor from accessing the Premises with such cards.
Any vendors engaged by Tenant to perform services in or to the Premises including, without limitation, janitorial contractors and moving contractors shall be coordinated with any work being performed by or for Landlord and in such manner as to maintain harmonious labor relations and not to damage the Building or the Property or interfere
with Building construction or operation and shall be performed by vendors first approved by Landlord
.
(A)
As an inducement to Landlord to enter into this Lease, Tenant hereby represents and warrants that: (i) Tenant is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC") pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, "Specially Designated National and Blocked Person" or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a "Prohibited Person"); (ii) Tenant is not (nor is it owned, controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; and (iii) from and after the effective date of the above-referenced Executive Order,
Tenant (and any person, group, or entity which Tenant controls, directly or indirectly) has not knowingly conducted nor will knowingly conduct business nor has knowingly engaged nor will knowingly engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Lease or any subletting of all or any portion of the Premises or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed
that (x) any breach by Tenant of the foregoing representations and warranties shall be deemed an immediate Event of Default by Tenant under Section 7.
l
of this Lease (without the benefit of notice or grace) and shall be covered by the indemnity provisions of Section 5.7 above, and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier
termination of this Lease.
(B)
As an inducement to Tenant to enter into this Lease, Landlord hereby represents and warrants that: (i) Landlord is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC") pursuant to Executive Order 13224 or any similar list or by any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, "Specially Designated National and Blocked Person" or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a "Prohibited Person"); (ii)
Landlord is not (nor is it owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; and (iii) from and after the effective date of the above-referenced Executive
Order, Landlord (and any person, group, or entity which Landlord controls, directly or indirectly) has not knowingly conducted nor will knowingly conduct business nor has knowingly engaged nor will knowingly engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation, the making or receiving of any contribution of funds, good or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, is expressly understood and agreed that (x) any breach by Landlord of the foregoing representatives
and warranties shall be covered by the indemnity provisions of Section 4.4 above and (y) the representations and warranties contained in this subsection shall be continuing in nature and shall survive the expiration or earlier termination of this Lease.
Notwithstanding anything contained herein to the contrary, for the purposes of this subsection (8) the phrase "owned or controlled directly or indirectly by any person, group, entity or nation" and all similar such phrases shall not include ( 1) any shareholder of Boston Properties, Inc., (2) any holder of a direct or indirect interest in a publicly traded company whose shares are listed and traded on a nationally recognized stock exchange or (3) any limited partner, unit holder or shareholder owning an interest of five percent (5%) or less in Boston Properties Limited Partnership or the holder of any direct or indirect interest in Boston Properties Limited Partnership.
ARTICLE VI
CASUALTY AND TAKING
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6.1
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Damage Resulting from Casualty
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In case during the Lease Term the Building or the Site are damaged by fire or other casualty, Landlord shall within sixty (60) days after the occurrence thereof notify Tenant in writing of Landlord's reasonable estimate of the length of time necessary to repair or restore such fire or casualty damage from the time that repair work would commence ("Landlord's Restoration Estimate").
If
Landlord's Restoration Estimate exceeds two hundred ten (210) days from the time that repair work would commence (and, so long as Tenant leases seventy percent (70%) or more of the Total Rentable Floor Area of the
Building, the Premises is materially damaged), Landlord may, at its election, terminate this Lease by notice given to Tenant within ten (10) business days after the date of Landlord's Restoration Estimate specifying the effective date of termination, provided, however, that Landlord shall only be permitted to terminate this Lease on account of such damage if Landlord terminates the leases of all other tenants in the Building similarly affected by the casualty (where Landlord has a termination right thereunder). The effective date of termination specified by Landlord shall not be less than thirty (30) days nor more than forty-five (45) days after the date of notice of such termination.
If
the Premises is materially damaged and Landlord's Restoration Estimate exceeds two hundred ten (210) days from the time that repair work would commence, Tenant may, at its election, terminate this Lease by notice given to Landlord within ten ( 10) business days after the receipt of Landlord's Restoration Estimate, specifying the effective date of termination. The effective date
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of termination specified by Tenant shall not be less than thirty (30) days nor more than forty-five (45) days after the date of notice of such termination
.
In addition, in case during the final eighteen ( 18) months of the Lease Term, the Premises are damaged by fire or casualty and if Landlord's Restoration Estimate exceeds one hundred fifty (150) days from the time that repair work would commence, Tenant may, at its election, terminate this Lease by notice given to Landlord within ten
(I
0) business
days after the receipt of Landlord's Restoration Estimate, specifying the effective date of termination. The effective date of termination specified by Tenant shall be not less than thirty (30) days nor more than forty-five (45) days after the date of notice of such termination.
Unless terminated pursuant to the foregoing provisions, this Lease shall remain in full force and effect following any such damage subject, however, to the following provisions.
If
the Building or the Site or any part thereof are damaged by fire or other casualty and this Lease is not so terminated, or Landlord or Tenant have no right to terminate this Lease, and in any such case the holder of any mortgage which includes the Building as a part of the mortgaged premises or any ground lessor of any ground lease which includes "the Site as part of the demised premises allows the net insurance proceeds to
be
applied to the restoration of the Building (and/or the Site), Landlord promptly after such damage
and the determination of the net amount of insurance proceeds available shall use due diligence to restore the Premises and the Building in the event of damage thereto (excluding Tenant's Property) into substantially the same condition as existed prior to the fire or other casualty and a just proportion of the Annual Fixed Rent, Tenant's estimated electricity charges (if applicable), Tenant's Operating Expenses Payment, Tenant's Tax Payment and Tenant's Electricity Payment according to the nature and extent of the
injury to the Premises shall be abated until the earlier to occur of (i) the date the Premises is substantially restored to the extent required under this Lease and Tenant has had a reasonable period of time (in no event to exceed thirty (30) days after Landlord has completed its restoration obligations as aforesaid) to perform its restoration obligations
hereunder and to install its furniture, fixtures and equipment, which Tenant agrees to undertake in a reasonably expeditious manner, and (ii) the date Tenant commences business operations in the Premises.
Notwithstanding anything herein contained to the contrary, Landlord shall not be obligated to expend for such repair and restoration any amount in excess of the net insurance proceeds.
If
such net insurance proceeds are not allowed by such mortgagee or
ground lessor to be applied to, or are insufficient for, the restoration of the Building and if Landlord does not otherwise elect to restore the Building, then Landlord shall give
prompt notice to Tenant terminating this Lease, the effective date of which termination shall not
be
less than sixty (60) days after the date of notice of such termination.
Unless such restoration is (x) commenced within six (6) months from the date of the casualty or taking (except to the extent such restoration work could
be
completed within the one ( 1) year period described in subsection (y) below, notwithstanding the fact that it did not commence within six (6) months from the date of the casualty or taking), such period to be subject, however, to extension where the delay in commencement of such work is due to Force Maje.ure (but in no event beyond ten (10) months from the date of the casualty or taking) and (y) is completed within one (1) year from the date of the casualty or taking, such one ( l ) year period to be subject, however, to extension where the delay in completion of such work is due to Force Majeure (but in no event beyond eighteen ( 18) months from the date of the casualty or taking), Tenant, as its sole and exclusive remedy, shall have the right to terminate this Lease at any time after the expiration of such six-month or one-year (as extended) period, as the case may be, until the restoration is substantially completed, such termination to take effect as of the thirtieth (30
1
h)
day after the date of receipt by Landlord of Tenant's notice, with the same force and effect as if such date were the date originally established as the expiration date hereof unless, within thirty (30) days after Landlord's receipt of Tenant's notice, such restoration is substantially completed, in which case Tenant's notice of termination shall
be
of no force and effect and this Lease and the Lease Term shall continue in full force and effect. When used in this Article VI, "Force Majeure" shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorists acts, civil commotions, unusual scarcity of or inability to obtain labor or materials, labor difficulties, casualty or other causes reasonably beyond Landlord's control or attributable to Tenant's action or inaction; provided, however, that (1) in no
event shall Landlord's financial inability constitute a cause beyond Landlord's reasonable control and (2) in order for Landlord to claim the benefit of any delay due to Force Majeure, Landlord shall be required to use reasonable efforts to minimize the extent and duration of such delay and to notify Tenant of the existence and nature of the cause of such delay within a reasonable time after the delay first commences.
Notwithstanding anything to the contrary contained in this Lease, if the Building or the Premises shall be substantially damaged by fire or casualty as the result of a risk not covered by the forms of casualty insurance at the time maintained by Landlord or required to be maintained by Landlord under this Lease and such fire or casualty damage
cannot, in the ordinary course, reasonably be expected to be repaired within ninety (90) days from the time that repair work would commence, either party may, at its election, terminate the Term of this Lease by notice to the other party given within sixty (60) days after such loss; provided, however that Landlord may not terminate this Lease on account of an uninsured casualty and shall restore the Premises, the Common Areas and the Site in accordance with the terms of this Lease, if and to the extent such damage would have been covered by the insurance coverages required to be carried by Landlord under this Lease.
If
either party shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof. Landlord agrees that if neither party elects to terminate the Lease pursuant to this Section 6.2, Landlord shall restore the damage in accordance with the provisions of Section 6
.
1 hereof (including, without limitation, Tenant's termination rights contained therein).
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6.3
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Rights of Termination for Taking
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If
the entire Building, or such portion of the Premises as to render the balance (if reconstructed to the maximum extent practicable in the circumstances) unsuitable for Tenant's purposes shall be taken by condemnation or right of eminent domain, Landlord or Tenant shall have the right to terminate this Lease by notice to the other of its desire to do so, provided that such notice is given not later than thirty (30) days after Tenant has been deprived of possession.
If
either party shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof
.
In addition, if twenty-five percent (25%) or more of the parking areas serving the Building shall be taken by condemnation or right of eminent domain and Landlord is unable to provide Tenant, within ninety (90) days after the effective date of such taking, with a substitute location for parking (at the Original Parking Ratio) within a reasonable proximity to the Building, then Tenant may terminate this Lease by notice to Landlord of its desire to do so, provided that such notice is given no earlier than ninety (90) nor later than one hundred twenty ( 120) days after the effective date of such taking.
Further, if so much of the Building shall be so taken that continued operation of the Building would be uneconomic as a result of the taking, Landlord shall have the right to terminate this Lease by giving notice to Tenant of Landlord 's desire to do so not later
tnan thirty (30) days after Tenant has been deprived of possession of the Premises (or such portion thereof as may be taken); provided that in the event of such termination, Landlord shall also terminate all other tenant leases in affected portions of the Building that contain similar termination rights.
If
Landlord shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof
.
Should any part of the Premises be so taken or condemned during the Lease Term hereof, and should this Lease not be terminated in accordance with the foregoing provisions, and the holder of any mortgage which includes the Premises as part of the mortgaged
premises or any ground lessor of any ground lease which includes the Site as part of the demised premises allows the net condemnation proceeds to be applied to the restoration
of the Building, Landlord agrees that after the determination of the net amount of condemnation proceeds available to Landlord, Landlord shall use due diligence to put what may remain of the Premises into proper condition for use and occupation as nearly like the condition of the Premises prior to such taking as shall be practicable (excluding Tenant's Property but including Tenant's Alterations to the extent compensation therefor has been considered in Landlord's award and has not been recovered by Tenant pursuant to'Section 6.4). Notwithstanding the foregoing, Landlord shall not be obligated to expend for such repair and restoration any amount in excess of the net condemnation proceeds made available to it.
If
such net condemnation proceeds are not allowed by such mortgagee or ground lessor to be applied to, or are insufficient for, the restoration of the Building and if Landlord does not otherwise elect to restore the Building, then Landlord shall give prompt notice to Tenant terminating this Lease, the effective date of which termination shall not be less than sixty (60) days after the date of notice of such termination; provided, however, that Landlord shall only be permitted to terminate this Lease on account of such taking if Landlord termi nates the leases of all other tenants in the Buildi ng similarl y affected by the taking (where Landlord has a termination right thereunder).
If
the Premises shall be affected by any exercise of the power of eminent domain, then the Annual Fixed Rent, Tenant's Operating Expenses Payment and Tenant's Tax Payment shall be justly and equitably abated and reduced according to the nature and extent of the loss of use thereof suffered by Tenant; and in case of a taking which permanently reduces the Rentable Floor Area of the Premises, a just proportion of the Annual Fixed Rent, Tenant's Operating Expenses Payment, Tenant's Tax Payment and Tenant's Electricity Payment shall be abated for the remainder of the Lease Term.
Landlord shall have and hereby reserves to itself any and all rights to receive awards made for damages to the Premises, the Building and the Site and the leasehold hereby created, or any one or more of them, accruing by reason of exercise of eminent domain or by reason of anything lawfully done in pursuance of public or other authority. Tenant hereby grants, releases and assigns to Landlord all Tenant's rights to such awards, and covenants to execute and deliver such further assignments and assurances thereof as Landlerd may from time to time request, and if Tenant shall fail to execute and deliver thesame within fifteen ( 15) days after notice from Landlord, Tenant hereby covenants
and agrees that Landlord shall be irrevocably designated and appointed as its attomey-in fact to execute and deliver in Tenant's name and behalf all such further assignments thereof which conform with the provisions hereof.
Notwithstanding the immediately preceding paragraph, if and to the extent that any improvements shall be taken pursuant to the power of eminent domain, shall have been separately paid for by Tenant when made, shall not be restored and for which a separate award shall not be made by the taking authority but the determination of the award takes into account such improvements, Tenant shall be entitled out of the award to an amount equal to Tenant's unamortized cost of such improvements. Tenant's unamortized cost of any of such improvements shall be determined from Tenant's federal income tax returns
and shall exclude any contributions to such cost by Landlord whether effected by deductions from rent, special allowances, payments for Annual Fixed Rent or Additional Rent or otherwise.
Nothing contained herein shall be construed to prevent Tenant from prosecuting in any condemnation proceeding a claim for the value of any of Tenant's usual trade fixtures installed in the Premises by Tenant at Tenant 's expense and for relocation and moving expenses, provided that such action and any resulting award shall not affect or diminish the amount of compensation otherwise recoverable by Landlord from the taking authority.
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6.5
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Allocation of Proceeds Following Termination
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In the event that this Lease is terminated (x) by Landlord under Section 6.1 or 6.3 above or (y) by Tenant under the provisions of the seventh
(7'h)
paragraph of Section 6.1 or the
first paragraph of Section 6.3 above, Tenant shall be entitled to receive out of the
Proceeds or Award Balance (as hereinafter defined) the Book Value of the Tenant Improvement Work (as hereinafter defined); provided, however, that if the sum of the Book Value of the Tenant Improvement Work and the Book Value of the Landlord's Contribution (as hereinafter defined) exceed the Proceeds or Award Balance, then the Book Value of the Tenant Improvement Work and the Book Value of the Landlord's Contribution shall be proportionately reduced to an amount which, when added together, shall equal the Proceeds or Award Balance and in such event Tenant shall be entitled to receive out of the Proceeds or Award Balance the amount of the Book Value of the Tenant Improvement Work as so reduced. To the extent that the sum of the Book Value of the Tenant Improvement Work and the Book Value of the Landlord's Contribution is less than the Proceeds or Award Balance, Landlord shall
be
entitled to the entire excess balance thereof.
For the purposes hereof:
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(i)
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The "Proceeds or Award Balance" shall be the amount, if any, by which the net insurance proceeds or net condemnation award (as applicable) exceeds the total of (a) the portion of the proceeds or award allocable to the Site (i.e. as if the land were unimproved), plus (b) the replacement cost of the Building (exclusive of the Tenant Improvement Work), plus (c) all amounts payable to Landlord's mortgagee or ground lessor on account of such casualty or taking, plus (d) in the event of a termination by Tenant under the provisions of the seventh
(7
1
h)
paragraph of Section 6.1 , all amounts expended by Landlord towards the restoration of the Tenant Improvement Work prior to the date of Tenant's notice of termination.
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(ii)
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The "Book Value of the Tenant Improvement Work" shall be the then unamortized portion of all Tenant Plan Excess Costs, calculated on a straight-line basis over the Original Term and determined as of the date of the casualty or taking.
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(iii)
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The "Book Value of the Landlord's Contribution" shall be the then unamortized portion of the Landlord's Contribution, calculated on a straight-line basis over the Original Term and determined as of the date of the casualty or taking.
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ARTICLE VII
DEFAULT
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(a)
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If
at any time subsequent to the date of this Lease any one or more of the following events (herein sometimes called an "Event of Default") shall occur:
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(i)
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Tenant shall fail to pay the fixed rent, Additional Rent or other charges for which provision is made herein on or before the date on which the same become due and payable, and the same continues for five (5) business days after written notice from Landlord thereof; or
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(ii)
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Landlord having rightfully given the written notice specified in subdivision (i) above twice in any calendar year, Tenant shall thereafter in the same calendar year fail to pay the fixed rent, Additional Rent or other charges on or before the date on which the same become due and payable; or
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(iii)
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Tenant shall assign its interest in this Lease or sublet any portion of the Premises in violation of the requirements of Sections 5.6 through 5.6.5 of this Lease and the same continues for fifteen (15) business days after written notice from Landlord thereof; or
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(iv)
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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
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(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; or
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(v)
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Tenant's leasehold interest in the Premises shall be taken on execution or by other process of law directed against Tenant; or
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(vi)
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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
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any reorganizatio·n, 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
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(vii)
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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
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(60) days (whether or not consecutive) (or if such petition is of such a nature that Tenant cannot reasonably dismiss or stay the same within such sixty (60) day period, Tenant shall fail to commence promptly to dismiss or stay the same and to prosecute such remedy to completion with diligence and continuity), 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) (or if such appointment is of such a nature that Tenant cannot reasonably vacate or stay the same within such sixty (60) day period, Tenant shall fail to commence promptly to vacate or stay the same and to prosecute such remedy to completion with diligence and continuity), then, and in any of said cases (notwithstanding any license of a former breach of covenant or waiver of the benefit hereof or consent in a former instance),
Landlord lawfully may, immediately or at any time thereafter, and without demand or further notice terminate this Lease by notice to Tenant, specifying a date-flot less than ten ( 10) days after the giving of such notice on which this Lease snall 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 Lease Term (Tenant hereby waiving any rights of redemption), and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
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(b)
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If
this Lease shall have been terminated as provided in this Article, then, to the extent permitted by applicable law, Landlord may, without notice, re- enter the Premises, either by force, summary proceedings, ejectment 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
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service of notice of intention to re-enter or to institute legal proceedings to that end.
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(c)
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I n the event that this Lease is terminated under any of the provisions contained in Section 7. I (a) or shall be otherwise terminated by breach of any obligation of Tenant, Tenant covenants and agrees forthwith to pay and be liable for, on the days originally fixed herein for the payment thereof, amounts equal to the several installments of rent and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated or if Landlord had not entered or re-entered, as aforesaid, and whether the Premises be relet or remain vacant, in whole or in part, or for a period less than the remainder of the Term, and for the whole thereof, but in the event the Premises be relet by Landlord, Tenant shall be entitled to a credit in the net amount of rent and other charges received by Landlord in reletting, after deduction of all expenses incurred in reletting the Premises (including, without limitation, remodeling costs, brokerage fees and the like), and in collecting the rent in connection therewith, in the following manner:
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Amounts received by Landlord after reletting shall first be applied against such Landlord's expenses, until the same are recovered, and until such recovery, Tenant shall pay, as of each day when a payment would fall due under this Lease, the amount which Tenant is obligated to pay under the terms of this Lease (Tenant's liability prior to any such reletting and such recovery not in any way to be diminished as a result of the fact that such reletting might be for a rent higher than the rent provided for in this Lease); when and if such expenses have been completely recovered, the amounts received from reletting by Landlord as have not previously been applied shall be credited against Tenant's obligations as of each day when a payment would fall due under this Lease, and only the net amount thereof shall be payable by Tenant. Further, amounts received by Landlord from such reletting for any period shall be credited only against
obligations of Tenant allocable to such period, and shall not be credited against obligations of Tenant hereunder accruing subsequent or prior to such period; nor shall any credit of any kind be due for any period after
-the date when the Term of this Lease is scheduled to expire according to
- its terms.
Landlord agrees to use reasonable efforts to relet the Premises after Tenant vacates the same in the event this Lease is terminated based upon an Event of Default by Tenant hereunder. The marketing of the Premises in a manner similar to the manner in which Landlord markets other premises within Landlord's control within the Building shall be deemed to have satisfied Landlord 's obligation to use "reasonable efforts" hereunder. In no event shall Landlord be required to (i) solicit or entertain negotiations with any other prospective tenant for the Premises until Landlord obtains full and complete possession of the Premises (including, without limitation, the final and unappealable legal right to
relet the Premises free of any claim of Tenant), (ii) relet the Premises before leasing other vacant space in the CityPoi nt Project, or (iii) lease the Premises for a rental less than the current fair market rent then prevailing for similar office space in the CityPoint Project.
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(d)
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(i) Landlord may elect, as an alternative, to have Tenant pay liquidated damages, which election may be made by notice given to Tenant at any time after such termination and whether or not Landlord shall have collected any damages as aforesaid, as liquidated final damages and in lieu of all other damages beyond the date of such notice. Upon such notice, Tenant shall promptly pay to Landlord, as liquidated damages, in addition to any damages collected or due from Tenant for any period prior to such notice and all expenses which Landlord may have incurred with respect to the collection of such damages, such a sum as at the time of the giving of such notice represents the amount of the excess, if any, of the total rent and other benefits which would have accrued to Landlord under this Lease from the date of such notice for what would be the then unexpired Lease Term if the Lease terms had been fully complied with by Tenant over and above the then fair market cash rental value (in advance) of the Premises for the balance of the Lease Term, both discounted to present value using six percent (6%) as the discount rate.
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(ii) For the purposes of this Article, i f Landlord elects to require Tenant to pay damages in accordance with the immediately preceding paragraph, the total rent shall be computed by assuming that Tenant's share of excess taxes, Tenant's
share of excess operating costs and Tenant's share of excess electrical costs would be, for the balance of the unexpired Term from the date of such notice, the
amount thereof (if any) for the immediately preceding annual period payable by Tenant to Landlord.
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(e)
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In case of any Event of Default, re-entry, 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 concessit>ns, abatements or free rent to the extent that Landlord reasonably conslcfers advisable or necessary to re-let the same and (ii) may make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary for the purpose of reletting 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 re-letting.
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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
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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. Further, 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.
Landlord shall in no event be in default in the performance of any of Landlord's obligations hereunder unless and until Landlord i;hall have failed to perform such obligations within thirty (30) days, or such additional time as is reasonably required to correct any such default, after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation. Except to the extent expressly provided in this Lease, Tenant shall not assert any right to deduct the cost of repairs or any monetary claim against the Landlord from rent thereafter due and payable, but shall look solely to the Landlord for satisfaction of such claim.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Tenant covenants and agrees that Tenant will not do or permit anything to be done in or upon the Premises, or bring in anything or keep anything therein, which shall increase the rate of insurance on the Premises or on the Building above the standard rate applicable to premises being occupied for the use to which Tenant has agreed to devote the Premises; and Tenant further agrees that, in the event that Tenant shall do any of the foregoing, Tenant will promptly pay to Landlord, on demand, any such increase resulting therefrom, which shall be due and payable as Additional Rent thereunder.
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 its 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 subsequent similar act by the other.
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 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.
Except as expressly provided in this Lease, the specific remedies to which Landlord may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled in case of any breach or threatened breach by Tenant.of any provisions of this Lease. In addition to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions.
This Lease is subject and subordinate to all matters of record. So long as an Event of Default by Tenant is not in existence under this Lease, Tenant shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises during the Term (exclusive of any period during which Tenant is holding over after the expiration or termination of this Lease without the consent of Landlord), without hindrance or ejection by any persons lawfully claiming to have title to the Premises superior to Tenant, subject, however, to the terms of this Lease; the foregoing covenant of quiet enjoyment is in lieu of any other covenant, express or implied; and it is understood and agreed that this covenant and any and all other covenants of Landlord contained in this Lease shall be binding upon Landlord and Landlord's successors, including ground or master lessees, only with respect to breaches occurring during Landlord's or Landlord's successors' respective ownership of Landlord's interest hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then equity interest in the Building at the time owned, or in which Landlord holds an interest as ground lessee, or the profits and proceeds thereof, for recovery of any judgment from Landlord; it being specifically agreed that neither Landlord (original or successor), nor any beneficiary of any trust of which any person holding Landlord's interest as trustee, nor any member, manager, partner, director or stockholder, nor Landlord's managing agent, shall ever be personally liable for any such judgment, or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlord's successors in interest, or any action not involving the personal liability of Landlord (original or successor), any successor trustee to the persons named herein as Landlord, or any beneficiary of any trust of which any person holding Landlord's interest is trustee, or of any manager, member, partner, director or stockholder
of Landlord or of Landlord's managing agent to respond in monetary damages from Landlord's assets other than Landlord's equity interest aforesaid in the Building, but in no event (except as otherwise expressly set forth herein) shall Tenant have the right to terminate or cancel this Lease or to withhold rent or to set-off any claim or damages against rent as a result of any default by Landlord or breach by Landlord of its covenants or any warranties or promises hereunder, except in the case of a wrongful eviction of Tenant from the Premises (constructive or actual) by Landlord continuing after notice to Landlord thereof and a reasonable opportunity for Landlord to cure the same. In no event shall Landlord or Tenant ever be liable to the other for any indirect or consequential damages or loss of profits or the like; provided that the foregoing shall not limit or alter any procedural right or remedy of Landlord under this Lease nor shall the same apply to the obligations of Tenant with respect to any hold-over by Tenant after the expiration or earlier termination of this Lease.
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8.5
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Notice to Mortgagee and Ground Lessor
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After receiving notice from any person, firm or other entity that it holds a mortgage which includes the Premises as part of the mortgaged premises, or that it is the ground lessor under a lease with Landlord, as ground lessee, which includes the Premises as a part of the demised premises, no notice of a default from Tenant to Landlord shall be
effective unless and until a copy of the same is given to such holder or ground lessor, and the curing of any of Landlord's defaults by such holderor ground lessor within a reasonable time thereafter (including a reasonable time to obtain possession of the premises if the mortgagee or ground lessor elects to do so) shall be treated as
performance by Landlord. For the purposes of this Section 8.5 or Section 8.15, the term "mortgage" includes a mortgage on a leasehold interest of Landlord (but not one on Tenant's leasehold interest).
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 or ground lease on property which includes the Premises, Tenant agrees:
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(a)
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Thanhe execution thereof by Landlord, and the acceptance thereof by the holder of such mortgage or the ground lessor, shall never
be
treated as an assumption by such holder or ground lessor of any of the obligations of Landlord hereunder, unless such holder, or ground lessor, shall, by notice sent to Tenant, specifically otherwise elect; or upon foreclosure of such holder's mortgage and the taking of possession of the Premises, or, in the case of a ground lessor, the assumption of Landlord's position hereunder by such ground lessor.
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In no event shall the acquisition of title to the Building and the land on which the same is located by a purchaser which, simultaneously therewith, leases the entire Building or such land back to the seller thereof be treated as an assumption by such purchaser-lessor,
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 subject to the provisions of Section 8.4 hereof. In any such event, this Lease shall be subject and subordinate to the lease to such purchaser provided that such purchaser agrees in a written non-disturbance agreement reasonably acceptable to Tenant to recognize the rights of Tenant under this Lease, including the right of Tenant to use and occupy the Premises upon the payment of rent and other charges payable by Tenant under this Lease and the performance by Tenant of Tenant's obligations hereunder and provided that Tenant agrees to attom to such purchaser. 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-I essor.
No act or thing done by Landlord during the Lease Term shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender shall be valid, unless in writing signed by Landlord
.
No employee of Landlord or of Landlord's agents shall have any power to accept the keys of the Premises prior to the expiration or earlier termination of this Lease. The delivery of keys to any employee of Landlord or of Landlord's agents shall not operate as a termination of the Lease or a surrender of the Premises.
(A)
Tenant warrants and represents that Tenant has not dealt with any broker in connection with the consummation of this Lease other than the broker, person or firm, if any, designated in Section 1.1 hereof (the "Broker"); and in the event any claim is made against the Landlord relative to dealings by Tenant with brokers other than the Broker, Tenant shall defend the claim against Landlord with counsel of Tenant's selection first approved by Landlord (which approval will not be unreasonably withheld) and save harmless and indemnify Landlord on account of loss, cost or damage which may arise by reason of such claim
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(B)
Landlord warrants and represents that Landlord has not dealt with any broker in connection with the consummation of this Lease other than the Broker; and in the event any claim is made against the Tenant relative to dealings by Landlord with brokers including the Broker, Landlord shall defend the claim against Tenant with counsel of Landlord's selection first approved by Tenant (which approval will not
be
unreasonably withheld) and save harmless and indemnify Tenant on account of loss, cost or damage which may arise by reason of such claim. Landlord agrees that it shall be solely responsible for the payment of brokerage commissions to the Broker for the Term of this Lease.
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8.9
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Invalidity of Particular Provisions
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If
any term or provision of this Lease, or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law.
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8.10
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Provisions Binding, Etc
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The obligations of this Lease shall run with the land, and except as herein otherwise provided, the terms hereof shall be bi nding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant and, if Tenant shall be an individual, upon and to his heirs, executors, administrators, successors and assigns. Each term and each provision of this Lease to be performed by Tenant shall
be
construed to
be
both a covenant and a condition. The reference contained to successors and assigns of Tenant is not intended to constitute a consent to subletting or assignment by Tenant.
8.1 1
Recording; Confidentiality
Landlord and Tenant agree not to record the within Lease, but simultaneously with their execution and delivery of this Lease to execute and deliver a Notice of Lease in the form attached hereto as Exhibit
L.
In no event shall such document set forth rent or other charges payable by Tenant under this Lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease.
Tenant agrees that this Lease and the terms contained herein will be treated as strictly confidential and except as required by law (or except with the written consent of Landlord) Tenant shall not disclose the same to any third party except for Tenant's employees, brokers, agents, partners, lenders, accountants and attorneys and like parties who have been advised of the confidentiality provisions contained herein and agree to be bound by the same. In the event Tenant is required by law to provide this Lease or disclose any of its terms, Tenant shall give Landlord prompt notice of such requirement prior to making disclosure so that Landlord may seek an appropriate protective order.
If
failing the entry of a protective order Tenant is compelled to make disclosure, Tenant shall only disclose portions of the Lease which Tenant is required to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to the information so disclosed. In connection with the foregoing, it is acknowledged and agreed that Tenant will be required by applicable governmental
regulations to disclose this Lease in its public filings with the United States Securities and Exchange Commission and, therefore, this Lease (and any amendments thereto) will be available to the public without the requirement of any further notice to Landlord under this Section 8.11.
Whenever, by the terms of this Lease, notice shall or may
be
given either to Landlord or to Tenant, such notice shall be in writing and shall be sent by
(i)
registered or certified
mail, postage prepaid or (ii) recognized overnight courier service providing evidence of delivery, charges prepaid or (iii) delivery by either of the foregoing methods or by hand in the case of any notices required to be given under Article III of this Lease:
If intended for Landlord, addressed to Landlord at the address set forth in Article I of this Lease (or to such other address or addresses as may from time to time hereafter be designated by Landlord by like notice) with a copy to Landlord, Attention: General Counsel.
If
intended for Tenant, addressed to Tenant at the address set forth in Article I of this Lease except that from and after the Commencement Date the address of Tenant shall be the Premises with a copy to Tenant, Attention: General Counsel at the same address (or to such other address or addresses as may from time to time hereafter be designated by Tenant by like notice).
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Except as otherwise provided herein, all such notices shall be effective when received; provided, that (i) if receipt is refused, notice shall be effective upon the first occasion that such receipt is refused, (ii) if the notice is unable to be delivered due to a change of address of which no notice was given, notice shall be effective upon the date such delivery was attempted, (iii) if the notice address is a post office box num ber, notice shall be effective the day after such notice is sent as provided hereinabove or (iv) if the notice is to a foreign address, notice shall be effective two (2) days after such notice is sent as provided hereinabove.
Where provision is made for the attention of an individual or department, the notice shall be effective only if the wrapper in which such notice is sent is addressed to the attention of such individual or department.
Any notice given by an attorney on behal f of Landlord or by Landlord's managing agent shall be considered as given by Landlord, and any notice given by an attorney on behalf of Tenant shall be considered as given by Tenant, and each such notice, as applicable, shall be fully effective. Any notice required to be given under Article III of this Lease shall be considered fully effective upon receipt of such notice by the parties' respective Construction Representatives as designated in Article I of this Lease (provided that copies of all such notices are simultaneously delivered to the parties as set forth in the first grammatical paragraph and the two immediately following subparagraphs of this Section 8.12).
Time is of the essence with respect to any and all notices and periods for giving notice or taking any action thereto under this Lease.
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8.13
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When Lease Becomes Binding
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Employees or agents of Landlord or Tenant have no authority to make or agree to make a lease or any other agreement or undertaking in connection herewith. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and
binding only upon the execution and delivery hereof by both Landlord and Tenant. All negotiations, considerations, representations and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord or Tenant shall alter, change or modify any of the provisions hereof.
The titles of the Articles throughout this Lease are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease.
This Lease shall be subject and subordinate to any mortgage now or hereafter on the Site or the Building, or both, and to each advance made or hereafter to be made under any mortgage, and to all renewals, modifications, consolidations, replacements and extensions thereof and all substitutions therefore, provided, however, that in consideration of and as a condition precedent to Tenant's agreement to subordinate this Lease with respect to mortgages hereafter placed on the Site shall be the receipt by Tenant of a commercially reasonable non-disturbance agreement from and wherein the applicable mortgagee expressly recognizes the rights of Tenant under this Lease
(including the right to use and occupy the Premises and to lease additional premises at the Building) upon the payment of rent and other charges payable by Tenant under this Lease and the performance by Tenant of Tenant's obligations hereunder. In confirmation of such subordination and recognition, Tenant shall execute and deliver promptly such instruments of subordination and recognition (an "SNDA") as such mortgagee may
reasonably request subject to receipt of such instruments of recognition from such mortgagee as Tenant may reasonably request. The SNDA shall be in the customary form required by such mortgagee as amended by such commercially reasonable changes as Tenant may reasonably req uire. In the event that any mortgagee or its respective successor in title shall succeed to the interest of Landlord, then, this Lease shall nevertheless continue in full force and effect and Tenant shall and does hereby agree to
attorn to such mortgagee or successor and to recognize such mortgagee or successor as its landlord.
If
any holder of a mortgage which includes the Premises, executed and recorded prior to the date of this Lease, shall so elect, this Lease and the rights of Tenant
hereunder, shall be superior in right to the rights of such holder, with the same force and effect as if this Lease had been executed, delivered and recorded, or a statutory notice hereof recorded, prior to the execution, delivery and recording of any such mortgage. The election of any such holder shall become effective upon either notice from such holder to Tenant in the same fashion as notices from Landlord to Tenant are to be given hereunder or by the recording in the appropriate registry or recorder's office of an instrument in which such holder subordinates its rights under such mortgage to this Lease.
Landlord hereby represents that as of the date of this Lease, there is no mortgage or ground lease currently encumbering the Building or the Site.
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8.16
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Status Reports and Financial Statements
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Recognizing that Landlord may find it necessary to establish to third parties, such as accountants, banks, potential or existing mortgagees, potential purchasers or the like, the then current status of performance hereunder, Tenant, on the request of Landlord made from time to time, will within fifteen (15) business days after such request furnish to Landlord, or any existing or potential holder of any mortgage encumbering the Premises, the Building, and/or the Site or any potential purchaser of the Premises, the Building, and/or the Site, (each an "Interested Party"), a statement of the status of any matter pertaining to this Lease, including, without limitation, acknowledgments (which may be limited to Tenant's actual knowledge), that (or the extent to which) each party is in compliance with its obligations under the terms of this Lease. Any such status statement delivered by Tenant pursuant to this Section 8.16 may be relied upon by any Interested Party.
In addition, within fifteen (15) business days after Landlord's request, Tenant shall deliver to Landlord or any Interested Party designated by Landlord, financial statements of Tenant and any guarantor of Tenant's obligations under this Lease, as reasonably requested by Landlord, including, but not limited to annual audited financial statements for the prior fiscal year to the extent available and maintained by Tenant, except that so long as Tenant's stock is publicly traded on a national exchange (or publicly listed in an equivalent manner, such as on NASDAQ) that requires its financial statements to be publicly disclosed, Tenant shall have no obligation to deliver any financial statements to Landlord. In the event that Tenant is not publicly traded or listed as aforesaid, any audited financial statements delivered by Tenant pursuant to this Section 8.16 may be relied upon (to the extent commercially reasonable to do so) by any Interested Party.
Landlord shall keep any non-public information provided by Tenant pursuant to this Section 8.16 confidential, and shall not disclose the same other than (i) to Landlord's officers, employees and consultants (or to any of the Interested Parties) or (ii) to the extent required by applicable law or by any administrative, governmental or judicial proceeding.
At Tenant's request, Landlord shall similarly within fifteen (15) business days after Tenant's request, furnish te Tenant a commercially reasonable statement with similar types of information asset forth above, which statement may be relied upon by any actual or prospective assignee, subtenant, lender or purchaser of Tenant.
(A)
If
Tenant shall at any time default in the performance of any obligation under this Lease beyond any applicable notice and cure period, Landlord shall have the right, but shall not be obligated, after five (5) business days' prior written notice of Landlord's intention to do so (except in the case of emergency in which case no notice shall be required) to enter upon the Premises and to perform such obligation notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in
this Lease with respect to such default. In performing such obligation, Landlord may make any payment of money or perform any other act. All sums so paid by Landlord (together with interest at the Default Rate (as defined in Section 8.22 below)) and all costs and expenses in connection with the performance of any such act by Landlord shall be deemed to be Additional Rent under this Lease and shall be payable to Landlord
immediately on demand. Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.
(B)
In the event that Landlord shall be in default in the performance of any of Landlord's obligations under this Lease (with the exception of Landlord's obligations to perform the Base Building Work and the Base Building Enhancements under Article III above) beyond the expiration of the applicable notice and cure periods provided in Section 7.2 above, then if Landlord or the holder of any such mortgage (at the option of such mortgagee) fails to (i) commence to cure such default within the time periods specified in said Section 7.2 and (ii) thereafter prosecute such cure to completion with due diligence given the nature thereof, then thereafter at any time prior to Landlord's or such mortgagee's commencing such cure or subsequent to Landlord or such mortgagee commencing such cure if Landlord or such mortgagee has not prosecuted such cure to completion with due diligence given the nature of such cure, Tenant may, but need not (and without limitation of any other rights and remedies to which Tenant may be entitled under this Lease, at law or in equity on account of such default of Landlord), perform such obligation and charge the reasonable cost thereof to Landlord; provided, however, that in the case of emergency repairs (i) such notice by Tenant to Landlord and such mortgagee need not be in writing, and
(ii)
Tenant may make such emergency repairs and charge the reasonable cost thereof to Landlord if either Landlord or such mortgagee has not made such emergency repairs within a reasonable time after such notice
.
All sums so paid by Tenant (together with interest at the Default Rate) and all costs and expenses in connection with the performance of any such act by Tenant shall be payable to Tenant immediately on demand. If Landlord fails to reimburse Tenant for the sums paid by Tenant within thirty (30) days of Tenant's demand therefor (such demand to include reasonable evidence of the costs so incurred by Tenant), and Landlord has not, within ten
(10) business days of its receipt of Tenant's demand, given written notice to Tenant objecting to such demand and submitting the same to arbitration under Section 8.31 below (or if Landlord has timely disputed Tenant's demand, has submitted such dispute to arbitration in accordance with said Section 8.31 and has thereafter failed to pay Tenant the amount of any final, unappealable arbitration award against Landlord within thirty
(30) days after the issuance thereof) then subject to the last sentence of this paragraph, Tenant shall have the right to offset the amount of such sums demanded by Tenant against the Annual Fixed Rent and Additional Rent payable under this Lease until offset in full. Notwithstanding the foregoing, Tenant shall have no right to reduce any monthly installment of Annual Fixed Rent by more than ten percent (10%) of the amount of Annual Fixed Rent which would otherwise have been due and payable by Tenant to Landlord, unless the aggregate amount of such deductions over the remainder of the Lease Tenn (as the same may have been extended) will be insufficient to fully reimburse Tenant for the amount demanded by Tenant, in which event Tenant may effect such offset by making deductions from each monthly installment of Annual Fixed Rent in
equal monthly amounts over the balance of the remainder of the Lease Term.
Any holding over by Tenant after the expiration of the Term of this Lease shall be treated as a tenancy at sufferance and shall be on the terms and conditions as set forth in this Lease, as far as applicable except that Tenant shall pay as a use and occupancy charge an amount equal to (A) for the first one hundred eighty ( 180) days Tenant holds over after the expiration of the Term, the greater of (x) 150% of the Annual Fixed Rent and Additional Rent (calculated on a daily basis) at the rate payable under the terms of this Lease during the previous twelve (12) months of the Term, and (y) the fair market rental value of the Premises and (B) thereafter, the greater of (x) 200% of the Annual Fixed Rent and Additional Rent (calculated on a daily basis) at the highest rate payable under the terms of this Lease and (y) the fair market rental value of .the Premises, in each case for the period measured from the day on which Tenant's hold-over commences and terminating on the day on which Tenant vacates the Premises. In addition, Tenant shall save Landlord, its agents and employees harmless and will exonerate, defend and indemnify Landlord, its agents and employees from arid against any and all damages which Landlord may suffer on account of Tenant's hold-over in the Premises after the expiration or prior termination of the Term of this Lease; provided, however, that the foregoing indemnity shall not apply to any indirect or consequential damages incurred by Landlord during the first sixty (60) days of any holding over in the Premises by Tenant. Nothing in the foregoing nor any other term or provision of this Lease shall be deemed to permit Tenant to retain possession of the Premises or hold over in the Premises after the expiration or earlier termination of the Lease Term. All property which remains in the Building or the Premises after the expiration or termination of this Lease shall be
concl usively deemed to be abandoned and may either
be
retained by Landlord as its property or sold or otherwise disposed of in such manner as Landlord may see fit.
If
any part thereof shall be sold, then Landlord may recei ve the proceeds of such sale and apply the same, at its option against the expenses of the sale, the cost of moving and storage, any arrears of rent or other charges payable hereunder by Tenant to Landlord and any damages to which Landlord may
be
entitled under this Lease and at law and in equity.
Any insurance carried by either party with respect to the Premises or property therein or occurrences thereon shall include a clause or endorsement denying to the insurer rights of subrogation against the other party to the extent rights have been waived by the insured prior to occurrence of injury or loss. Each party, notwithstanding any provisions of this Lease to the contrary, hereby waives any rights of recovery against the other for injury or loss due to hazards covered by such insurance (or which would have been covered had such party carried the insurance required to be carried by it under this Lease) to the extent of the indemnification received under such insurance policy (or which would have been received had such party carried the insurance required to
be
carried by
it
under this
Lease) and to the extent of any deductible maintained by such party in excess of
$25,000.00; provided, however, that the waiver and release set forth in this Section 8.19 shall not apply to the commercial general liability insurance required to be carried by the
parties under this Lease. In addition, this waiver of rights by the parties shall apply to, and be for the benefit of, the Landlord Parties and the Tenant Parties,. as applicable.
(A)
On the conditions (which conditions Landlord may waive by written notice to Tenant) that both at the time of exercise of the option to extend and as of the commencement of the Extended Term in question (i) there exists no monetary or other material Event of Default (defined in Section 7.1), (ii) this Lease is still in full force and effect, and (iii) Tenant has not then sublet more than fifty percent (50%) of the
Rentable Floor Area of the Premises (except for a subletting permitted without Landlord's consent under Section 5.6.1 hereof or any occupancy by Permitted Occupants), Tenant shall have the right to extend the Term hereof upon all the same terms, conditions, covenants and agreements herein contained (except for the Annual
Fixed Rent which shall be adjusted during the option periods as hereinbelow set forth) for two (2) periods of five (5) years as hereinafter set forth. Each option period is sometimes herein referred to as an "Extended Term." Notwithstanding any implication to the contrary, Landlord has no obligation to make any additional payment to Tenant in respect of any construction allowance or the like or to perform any work to the Premises as a result of the exercise by Tenant of any such option.
(B)
If
Tenant desires to exercise the applicable option to extend the Term, then Tenant shall give notice to Landlord (the "Extension Exercise Notice") not earlier than twenty four (24) months (except to the extent that delivery of an earlier Extension Exercise Notice is required in order for Tenant to lease additional space at the Building or at 230 CityPoint for a term co-terminous with this Lease) nor later than fifteen (15) months prior to the expiration of the Term (as it may have been previously extended) exercising such option to extend. Within thirty (30) days after Landlord's receipt of the Extension Exercise Notice, Landlord shall provide Landlord's quotation to Tenant of a proposed Annual Fixed Rent for the applicable Extended Term ("Landlord's Rent Quotation"); provided, however, that if Tenant delivers the Extension Exercise Notice to Landlord at any time prior to the date which is eighteen (18) months prior to the expiration of the
then-current Term, Landlord shall not be required to provide Landlord's Rent Quotation until that date which is seventeen (17) months prior to the expiration of the then-current Term.
If
at the expiration of thirty (30) days after the date when Landlord provides such quotation to Tenant (the "Negotiation Period"), Landlord and Tenant have not reached agreement on a determination of an Annual Fixed Rent for such Extended Term and executed a written instrument extending the Term of this Lease pursuant to such agreement, then Tenant shall have the right, for a period of ten (10) business days after the expiration of the Negotiation Period, (i) to deliver to Landlord a notice ("Tenant's Rescission Notice") rescinding Tenant's Extension Exercise Notice, or (ii) to deliver to Landlord a request ("Broker Determination Request") for a broker determination of Annual Market Rent (the "Broker Determination") for such Extended Term, which Broker Determination shall be made in the manner set forth in Exhibit H.
If
Tenant
timely gives Tenant's Rescission Notice, then Tenant's Extension Exercise Notice shall be of no further force and effect.
If
Tenant timely shall have requested the Broker Determination, then the same shall constitute an agreement to extend the Term upon all
of the same terms and conditions in this Lease, except the Annual Fixed Rent for such Extended Term shall be an amount equal to ninety-five percent (95%)- of the Annual Market Rent as determined by the Broker Determination. If Tenant fails to timely give either a Tenant's Rescission Notice or a Broker Determination Request, Tenant shall be deemed to have given a Tenant's Rescission Notice.
(C)
Upon the giving of the Extension Exercise Notice by Tenant to Landlord exercising Tenant's applicable option to extend the Lease Term in accordance with the provisions of Section 8.20(B) above, but subject to Tenant's right to give a Rescission Notice as set forth in Section 8.20(B) above, then this Lease and the Lease Term hereof shall automatically be deemed extended, for the applicable Extended Term, without the necessity for the execution of any additional documents, except that Landlord and Tenant agree to enter into an instrument in writing setting forth the Annual Fixed Rent for the applicable Extended Term as determined in the relevant manner set forth in this Section 8.20; and in such event all references herein to the Lease Term or the Term of this Lease shall be construed as referring to the Term, as so extended, unless the context clearly otherwise requires, and except that there shall
be
no further option to extend the Lease Term beyond the second Extended Term. Notwithstanding anything contained herein to the contrary, in no event shall Tenant have the right to exercise more than one extension option at a time and, further, Tenant shall not have the right to exercise its second extension option unless it has duly exercised its first extension option and in no event shall the Lease Term hereof be extended for more than ten (10) years after the expiration of the Original Lease Term hereof.
(D)
Notwithstanding anything contained herein to the contrary, Tenant shall have the right to exercise its then-applicable option to extend the Lease Term with respect to less than the entirety of the Premises then being leased by Tenant provided that (i) Tenant in its Extension Exercise Notice designates the portions of the Premises proposed to be surrendered by Tenant effective as of the commencement of the applicable Extended Term (the "Surrendered Premises"), which such Surrendered Premises must be
comprised of then leased contiguous space on floors 2, 3, 4 and/or 6 of the Building (e.g., Tenant must surrender an entire floor or the entire area on a floor partially leased by Tenant first, rather than the equivalent square footage over a series of floors) and be in a commercially rentable configuration (it being acknowledged and agreed that Tenant shall pay all costs and expenses associated with subdividing and separately physically
demising the Surrendered Premises from the remainder of the Premises, if necessary),
(ii)
Tenant must directly lease and occupy at least 75,000 square feet of rentable floor area both at the time it exercises its option to extend and as of the commencement of the applicable Extended Term, and (iii) the terms and provisions of this Section 8.20 shall remain unmodified and in full force and effect with respect to those portions of the Premises not thus surrendered by Tenant (the "Remaining Premises").
If
Tenant shall exercise its extension option with respect to less than the entirety of the Premises as set forth herein, (x) Tenant shall vacate the Surrendered Premises leaving the same in the condition required by this Lease upon the date which would have been the expiration date of the then-current Lease Term (had Tenant not exercised its option to extend with
respect to the Remaining Premises), (y) the Surrendered Premises shall be removed from
the Premises demised to Tenant under the Lease, (iii) the "Rentable Floor Area of the Premises" shall be reduced by the Rentable Floor Area of the Surrendered Premises and such reduced Rentable Floor Area of the Premises shall be used for purposes of calculating Tenant's payments for Annual Fixed Rent, electricity, real estate taxes and operating costs from and after the commencement of the applicable Extended Tenn. In addition, Landlord and Tenant agree to execute an appropriate amendment to this Lease to reflect the removal of the Surrendered Premises from the space demised from Landlord to Tenant under the Lease.
(A)
Concurrently with the execution of this Lease, Tenant shall pay to Landlord a security deposit (the "Security Deposit") in the amount of Nine Hundred Sixty-One Thousand Nine Hundred Eighty and 25/100 Dollars ($961,980.25), in the fonn of a Letter of Credit. Landlord shall hold the Security Deposit, throughout the Tenn of this Lease (including the Extended Tenn, if applicable), as security for the performance by Tenant
of all obligations on the part of Tenant to be perfonned under this Lease. Such deposit shall be in the form of an irrevocable, unconditional, negotiable letter of credit (the "Letter of Credit"). The Letter of Credit shall (i) be issued by and drawn on a bank reasonably approved by Landlord and at a minimum having a corporate credit rating from Standard and Poor's Professional Rating Service of BBB- or a comparable minimum rating from Moody's Professional Rating Service, (ii) be substantially in the form
attached hereto as Exhibit G, (iii) permit one or more draws thereunder to be made accompanied only by certification by Landlord or Landlord's managing agent that pursuant to the terms of this Lease, Landlord is entitled to draw upon such Letter of Credit, (iv) pennit transfers at any time without charge, and (v) provide that any notices to Landlord be sent to the notice address provided for Landlord in this Lease.
If
the credit rating for the issuer of such Letter of Credit falls below the standard set forth in (i) above or if the financial condition of such issuer changes in any other material adverse way, Landlord shall have the right to require that Tenant provide a substitute letter of credit that complies in all respects with the requirements of this Section, and Tenant's failure to
provide the same within ten (10) days following Landlord's written demand therefor shall entitle Landlord to immediately draw upon the Letter of Credit. Any such Letter of Credit shall be for a term of two (2) years (or for one (1) year if the issuer thereof regularly and customarily only issues letters of credit for a maximum tenn of one ( I ) year) and shall in either case provide for automatic renewals through the date which is sixty (60) days subsequent to the scheduled expiration of this Lease (as the same may be extended) (the "LC Expiration Date") or if the issuer will not grant automatic renewals or will not grant them through the LC Expiration Date, the Letter of Credit shall be renewed by Tenant each year or prior to the earlier expiration date, as the case may be, and each such
renewal shall be delivered to and received by Landlord not later than thirty (30) days before the expiration of the then current Letter of Credit (herein called a "Renewal Presentation Date"), so that Landlord is holding a valid Letter of Credit through the LC Expiration Date. In the event of a failure to so deliver any such renewal Letter of Credit on or before the applicable Renewal Presentation Date, Landlord shall
be
entitled to present the then existing Letter of Credit for payment and to receive the proceeds thereof, which proceeds shall be held as Tenant's security deposit, subject to the terms of this
Section 8.21. Any failure or refusal to honor the Letter of Credit shall be at Tenant's sole risk and shall not relieve Tenant of its obligation hereunder with regard to the security deposit. Upon the occurrence of any Event of Default, Landlord shall have the right from time to time without prejudice to any other remedy Landlord may have on account thereof, to draw on all or any portion of such deposit held as a Letter of Credit and to apply the proceeds of such Letter of Credit or any cash held as such deposit, or any part thereof, to Landlord's damages arising from such Event of Default on the part of Tenant under the terms of this Lease
.
If
Landlord so applies all or any portion of such deposit, Tenant shall within seven (7) days after notice from Landlord deposit cash with Landlord in an amount sufficient to restore such deposit to the full amount stated in this Section
8.21. While Landlord holds any cash deposit Landlord shall have no obligation to pay interest on the same and shall have the right to commingle the same with Landlord's other funds. Neither the holder of a mortgage nor the Landlord in a ground lease on
property which includes the Premises shall ever 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 or ground Landlord.
In the event of any sale, transfer or leasing of Landlord's interest in the Building, Landlord shall transfer the Letter of Credit (or shall either transfer, or otherwise take an adjustment at closing for, any cash security deposit then being held by Landlord) to the purchaser, transferee or lessee and, upon such transfer of the Letter of Credit (or transfer or closing adjustment for cash security deposit, if any), Landlord shall thereupon be released by Tenant from all liability for the return thereof and Tenant shall look solely to the new landlord for the return of the same.
(B)
Tenant not then being in default and having performed all of its obligations under this Lease, including the payment of all Annual Fixed Rent, Landlord shall return the deposit, or so much thereof as shall not have theretofore been applied in accordance with the terms of this Section 8.21, to Tenant on the expiration or earlier termination of the Term of this Lease (as the same may have been extended) and surrender possession of the Premises by Tenant to Landlord in the condition required in the Lease at such time.
If
Landlord shall not have received any payment or installment of Annual Fixed Rent or Additional Rent (the "Outstanding Amount") on or before the date the same first becomes payable under this Lease (the "Due Date"), the amount of such payment or installment shall incur a late charge equal to the sum of: (a) two percent (2%) of the Outstanding Amount for administration and bookkeeping costs associated with the late payment and (b) interest on the Outstanding Amount from the Due Date through and including the date such payment or installment is received by Landlord, at a rate (the "Default Interest Rate") equal to the lesser of (i) the rate announced by Bank of America,
N.A. (or its successor) from time to time as its prime or base rate (or if such rate is no longer available, a comparable rate reasonably selected by Landlord), plus two percent (2%), or (ii) the maximum applicable legal rate, if any. Such interest shall be deemed Additional Rent and shall be paid by Tenant to Landlord upon demand.
Landlord agrees to waive the late charge due hereunder for the first late payment by Tenant under this Lease per calendar year, provided that Landlord receives such payment from Tenant within five (5) business days from the Due Date.
Each and every payment and expenditure, other than Annual Fixed Rent, shall be deemed to be Additional Rent or additional rent hereunder, whether or not the provisions requiring payment of such amounts specifically so state, and shall be payable, unless otherwise provided in this Lease, within ten (I 0) days after written demand by Landlord, and in the case of the non-payment of any such amount, Landlord shall have, in addition
to all of its other rights and remedies, all the rights and remedies available to Landlord hereunder or by law in the case of non-payment of Annual Fixed Rent. Unless expressly otherwise provided in this Lease, the performance and observance by Tenant of all the terms, covenants and conditions of this Lease to be performed and observed by Tenant shall be at Tenant's sole cost and expense. Except as otherwise provided in Section 2.6. l above, if Tenant has not objected to any statement of Additional Rent which is rendered by Landlord to Tenant within one hundred twenty (120) days after Landlord has rendered the same to Tenant, then the same shall be deemed to be a final account between Landlord and Tenant not subject to any further dispute.
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8.24
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Waiver of Trial By
Jury
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To induce the other party to enter into this Lease, each party hereby waives any right to trial by jury in any action, proceeding or counterclaim brought by either Landlord or Tenant on any matters whatsoever arising out of or any way connected with this Lease, the relationship of the Landlord and the Tenant, the Tenant's use or occupancy of the Premises and/or any claim of injury or damage, including but not limited to, any summary process eviction action
.
This Lease shall be governed exclusively by the provisions hereof and by the law of the Commonwealth of Massachusetts, as the same may from time to time exist.
Tenant shall be permitted, at its sole cost and expense, to install (x) equipment for telecommunications, data transmission and other similar technologies (the "Telecommunications Equipment") and (y) equipment for the Premises' additional or supplementary HVAC system, fans, and other equipment reasonably necessary for Tenant's use and occupancy of the Premises (the "HVAC Equipment" and collectively with the Telecommunications Equipment, the "Tenant's Equipment") in a location or locations on the Site. The Telecommunications Equipment may be located on the rooftop of the Building in a location to be mutually agreed upon by Landlord and Tenant in good faith and in their reasonable discretion. Landlord will determine whether or not the
HYAC Equipment may also be located on the rooftop of the Building at such time as Landlord reviews the specifications therefor as contemplated by this Section 8.26. The exact specifications of the Tenant's Equipment, and the method of installing the Tenant's Equipment, shall be subject to Landlord's prior written approval, which shall not be unreasonably withheld or delayed. Tenant and Tenant's contractors shall have reasonable access to the roof in order to inspect, service, repair, maintain and replace any Tenant's Equipment located thereon, subject to Landlord's reasonable rules and regulations of which Tenant has been given prior notice relative to the access to and use of the rooftop. Tenant shall use Landlord's roof contractor for the installation of flashing for any rooftop penetrations necessary for the placement of the Tenant's Equipment on the rooftop of the Building.
Tenant's use of the Tenant's Equipment shall be upon all of the conditions of the Lease, except as modified below:
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(a)
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It
is understood and agreed that Tenant shall be responsible, at its sole cost and expense, for installing all necessary connections (the "Connections") between the Tenant's Equipment and the Premises. In addition to co.mplying with the applicable construction provisions of this Lease, Tenant shall not install or operate the Connections in any portion of the Building until (x) Tenant shall have
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obtained Landlord's prior written approval, which approval will not be unreasonably withheld or delayed, of Tenant's plans and specifications for the placement and installation of the Connections, and
(y)
Tenant shall have obtained and delivered to Landlord copies of all required governmental and quasi governmental permits, approvals, licenses and authorizations necessary for the lawful installation, operation and maintenance of the Connections. Landlord shall inform Tenant at the time of its review of the Connections whether Landlord will require the same to be removed by Tenant upon the expiration or earlier termination of this Lease.
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(b)
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Tenant shall have no obligation to pay Annual Fixed Rent, Tax Excess or Operating Expense Excess in respect of the Tenant's Equipment or the Connections provided that the same are used solely to provide service to Tenant's business operations in the Premises (as opposed to being utilized by the telecommunications carrier to provide service to other tenants of the Building and/or the CityPoint ProjectY.-
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(c)
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Except as otherwise set forth in this Lease, Landlord shall have no liability to Tenant for the installation and subsequent operation of the Tenant's Equipment. To the extent Landlord grants other third parties the right to install equipment on the roof of the Building, any agreement with a third party granting the right to install telecommunications equipment subsequent to the date of this Lease shall contain language prohibiting interference with Tenant's Equipment then existing and shall provide Landlord with a termination right if such interference is not remedied after a reasonable period of time.
If
measurable interference shall occur, Tenant shall provide notice thereof to Landlord and Landlord shall use reasonable
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efforts to cause the same to be remedied, however, if despite such efforts the same are not remedied within a period reasonably necessary to cure such interference, Landlord shall exercise the termination right set forth in its agreement with such interfering party.
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(d)
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Landlord shall have no obligation to provide any services to the Tenant's Equipment, provided, however, Tenant shall have the right to access telephone/data closets and shafts and conduits in the Building, plenum areas and other pathways in the Building, in order to connect the Tenant's Equipment to the Premises, and Tenant shall have the right to connect Tenant's Equipment to existing base building utility systems, subject to Landlord's right to reasonably approve such connections and to Landlord's reasonable rules and regulations of which Tenant has been given prior notice relative to the access to and the use of such areas within the Building. Tenant shall, at its sole cost and- expense and otherwise in accordance with the provisions of this Section 8.26, arrange for all utility services required for the operation of the Tenant's Equipment.
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(e)
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Tenant shall, at its sole cost and expense, be solely respo.nsible for all maintenance and repair to the Tenant's Equipment and the Connections.
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(f)
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Tenant shall have no right to make any changes, alterations, signs, or other improvements to the Tenant's Equipment or the Connections without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed.
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(g)
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Tenant shall be responsible for the cost of repairing any damage to the Building or the Property caused by its use of the Tenant's Equipment and the Connections or any work related thereto.
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(h)
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Except for assignees of this Lease or subtenants of all or a portion of the Premises, no other person, firm or entity (including, without limitation, other tenants, licensees or occupants of the Building) shall have the right to connect to the Tenant's Equipment other than Tenant.
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(i)
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To the maximum extent permitted by law, Tenant's use of the Tenant's Equipment and the Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that the Tenant's Equipment and the Connections are damaged for any reason, except to the extent arising from the negligence or willful misconduct of Landlord or its agents, employees or contractors.
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G)
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Tenant shall comply with all applicable laws, ordinances and regulations in Tenant's use of the Tenant's Equipment and the Connections.
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(k)
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The Tenant's Equipment and the Connections shall not interfere with the maintenance, use, occupancy or operation of the Building by Landlord or any
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other tenant, occupant or licensee of the Building, including, without limitation, interference with any communications equipment, telephones, radios, CATV, MATV, televisions, HVAC systems, elevators or computers currently in place or hereafter installed in connection with the Building. In the event any such interference is not cured by Tenant within thirty (30) days after written notice thereof from Landlord to Tenant, Landlord shall have the right to require Tenant to relocate or remove the Tenant's Equipment causing such disturbance.
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(I)
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Landlord shall have the right, upon no Jess than ninety (90) days' notice to Tenant and at Landlord's sole cost and expense, to relocate the Tenant's and the Connections to another location on the roof of the Building reasonably acceptable to Tenant provided that such relocation does not adversely affect Tenant's use of Tenant's Equipment and Land lord makes temporary arrangements for Tenant's Equipment to continue to operate during such relocation. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Tenant's business operations. Any such relocation by Landlord shall not independently (in the absence of another cause) be deemed to constitute a service interruption under Section 4.2 above.
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(m)
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In addition to the indemnification provisions set forth in this Lease which shall be applicable to the Tenant's Equipment and the Connections, Tenant shall, to the maximum extent permitted by Jaw, indemnify, defend, and hold Landlord, its agents, contractors and employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant's use of the Tenant's Equipment and the Connections.
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(n)
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Landlord shall have the right to designate or identify the Tenant's Equipment and any related components or conduits with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Tenant's Equipment.
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(o)
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It
is expressly understood and agreed that the Tenant's Equipment shall remain the property of Tenant and that Tenant shall be required to remove the same upon
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the expiration or earlier termination of this Lease and to repair any damage caused by the installation or removal of the Tenant's Equipment.
Landlord shall use commercially reasonable efforts to insure that the placement and operation of other telecommunications equipment on the rooftop of the Building does not interfere with the use and operation by Tenant of the Tenant's Equipment and the Connections and shall impose and enforce upon other tenants or occupants of the Building installing telecommunications equipment on the roof requirements similar to those contained in subsection (k) above; provided, however, that Landlord shall not be liable to Tenant if any such interference actually occurs, so long as Landlord is using commercially reasonable efforts as aforesaid.
(A)
Landlord shall, as part of the Base Building Work, initially construct, fixture and furnish a conference center, full-service cafeteria serving breakfast and lunch (to be operated by Rebecca's or an operator of similar quality) and a building fitness center with full men's and women's locker rooms, restrooms and showers (each an "Amenity" and collectively, the "Amenities"), and Tenant shall have the right to use such Amenities, free of charge, in common with other tenants of the Building entitled to use thereof
throughout the Term hereof. The finishes and equipment for the fitness facility will be of similar quality to other fitness centers built and managed by Boston Properties in its other suburban assets (i.e. 230 CityPoint, Waltham-Weston Corporate Center). Landlord shall institute and administer a scheduling procedure for use of the conference center by
tenants in the Building. During the Term, Landlord shall repair, maintain, insure and clean the Amenities consistent the level of repair, maintenance, insurance and cleaning of similar amenities in other first class multi-tenant office buildings in the Market Area.
(B)
So long as Tenant directly leases and occupies at least l 00,000 square feet of rentable floor area in the Building, Landlord shall consult with Tenant in good faith regarding the initial selection of, as well as the ongoing contract with, the cafeteria operator; provided, however, that the final decision as to all matters regardi ng the selection of and contract with such cafeteria operator shall be made by Landlord in its reasonable discretion.
(C)
So long as Tenant directly leases and occupies (together with its Permitted Occupants and approved and permitted subtenants) at least sixty percent (60%) of the Total Rentable Floor Area of the Building, Landlord shall not make any material changes to or discontinue operation of the Amenities without Tenant's prior written consent, which consent shall be in Tenant's reasonable discretion. Notwithstanding the foregoing, so long as Tenant directly leases and occupies (together with its Permitted Occupants and approved and permitted subtenants) at least 70,000 square feet of rentable floor area in the Building, Landlord shall not (i) change and/or discontinue the Building fitness center or (ii) modify the food service in the cafeteria so that it serves only pre-made foods, without Tenant's prior written consent, which consent shall be in Tenant's reasonable discretion.
(D)
Tenant shall have the right, at its sole cost and expense and subject to Landlord's reasonable approval as to location and decor clements, to install, decorate and maintain a holiday tree in the main lobby of the Building from the day after Thanksgiving through New Year's Day.
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8.28
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Emergency Generator.
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Tenant shall be permitted, at its sole cost and expense, to install a gas-fired emergency generator, not to exceed 154 inches long x 60 inches wide x 80 inches tall in dimension and 8,000 pounds (the "Emergency Generator") on the roof of the Building, in the location described on Exhibit
J
attached to this Lease and incorporated herein by
reference. The exact specifications of the Emergency Generator, and the method of installing the Emergency Generator on the roof, shall be subject to Landlord's prior written approval, which shall not be unreasonably withheld or delayed (it being understood and agreed that Landlord's approval of any Emergency Generator that exceeds the specifications set forth above shall be in Landlord's sole discretion). Tenant and Tenant's contractors shall have reasonable access to the roof in order to inspect, service, repair, maintain and replace the Emergency Generator, subject to Landlord's reasonable rules and regulations applicable to access to and use of the rooftop provided that Tenant has been given prior notice thereof. Tenant shall use Landlord's roof contractor for the installation of flashing for rooftop penetrations necessary for the placement of the Emergency Generator.
Tenant's use of the Emergency Generator shall be upon all of the conditions of the Lease, except as modified below:
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(a)
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It is understood and agreed that Tenant shall be responsible, at its sole cost and expense, for installing all necessary connections (the "Generator Connections") between the Emergency Generator and the Premises. In addition to complying with the applicable construction provisions of this Lease, Tenant shall not install or operate the Generator Connections in any portion of the Building until (x) Tenant shall have obtained Landlord's prior written approval, which approval will not be unreasonably withheld or delayed, of Tenant's plans and specifications for the placement and installation of the Generator Connections, and (y) Tenant shall have obtained and delivered to Landlord copies of all required governmental
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and quasi-governmental permits, approvals, licenses and authorizations necessary for the lawful installation, operation and maintenance of the Generator Connections. Landlord shall inform Tenant at the time of its review of the Generator Connections whether Landlord will require the same to be removed by Tenant upon the expiration or earlier termination of this Lease.
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(b)
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Tenant shall have no obligation to pay Annual Fixed Rent, Tax Excess or Operating Expense Excess in respect of the Emergency Generator or the Generator Connections.
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(c)
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The Emergency Generator shall be used solely to provide back-up power in the event of an outage for Tenant's lights and plugs and business equipment in the Premises and dedicated heating, ventilation and air conditioning systems serving the Premises, but not for the purposes of running any life-safety systems or equipment (it being understood and agreed that such dedicated HVAC systems may not function during such an outage, even if connected to the Emergency Generator, to the extent that the base building systems are not functioning).
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(d)
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Landlord shall have no liability to Tenant for the installation and
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subsequent operation of the Emergency Generator
.
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(e)
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Landlord shall have no obligation to provide any services to the Emergency Generator; provided, however, Tenant shall have the right to access shafts and conduits in the Building plenum areas, and other pathways in the Building, in order to connect
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the Emergency Generator to the Premises, subject to Landlord's right to reasonably approve such connections and subject to Landlord's reasonable rules and regulations applicable to access to and use of such areas provided that Tenant has
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been given prior notice thereof. Tenant shall, at its sole cost and expense and otherwise in accordance with the provisions of this Section 8.28, arrange for all utility services required for the operation of the Emergency Generator.
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(f)
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Tenant shall, at its sole cost and expense, be solely responsible for all maintenance and repair to the Emergency Generator and the Generator Connections. In connection therewith, Tenant shall provide Landlord with evidence on an annual basis of the existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to Landlord.
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(g)
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Tenant shall have no right to make any changes, alterations, signs, or other improvements to the Emergency Generator or the Generator Connections without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed.
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(h)
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Tenant shall be responsible for the cost of repairing any damage to the Building or the Property caused by its use of the Emergency Generator and the Generator Connections or any work related thereto.
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(i)
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Except for assignees of this Lease or subtenants of all or a portion of the Premises, no other person, firm or entity (including, without limitation, other tenants, licensees or occupants of the Building) shall have the right to connect to the Emergency Generator other than Tenant.
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G)
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To the maximum extent permitted by law, Tenant's use of the Emergency Generator and the Generator Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that the Emergency Generator or the Generator Connections are damaged for any reason, except to the extent arising from the negligence or willful misconduct of Landlord or its agents, employees or contractors.
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(k)
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Tenant shall comply with all applicable laws, ordinances and regulations in Tenant's use of the Emergency Generator and the Generator Connections.
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(I)
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Landlord shall have the right, upon no less than ninety (90) days' notice to Tenant and at Landlord's sole cost and expense, to relocate the Emergency Generator and the Generator Connections to another area within the Property reasonably acceptable to Tenant and provided such relocation does not adversely affect Tenant's use of the Emergency Generator and Landlord makes temporary arrangements for the Emergency Generator to continue to operate during such relocation. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Tenant's business operations. Any such relocation by Landlord shall not independently (in the absence of another cause) be deemed to constitute a service interruption under Section 4.2 above.
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(m)
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In addition to the indemnification provisions set forth in this Lease which shall be applicable to the Emergency Generator and the Generator Connections, Tenant shall, to the maximum extent permitted by law, indemnify, defend, and hold Landlord, its agents, contractors and employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant's use of the Emergency Generator and the Generator Connections.
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(n)
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Landlord shall have the right to designate or identify the Emergency Generator and any related components or conduits with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Emergency Generator.
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(o)
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It
is expressly understood and agreed that the Emergency Generator shall remain the property of Tenant and that Tenant shall be required to remove the same upon the expiration or earlier termination of this Lease and to repair any damage caused by the installation or removal of the Emergency Generator.
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8.29
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Neighborhood Utilities and Telecommunications Lines
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Landlord shall use commercially reasonable efforts to cause the existing overhead utility and telecommunications wires located on Fourth Avenue adjacent to the Site to be placed underground in a manner consistent with the image of the Building as a first-class office building. All costs related to design, obtaining necessary permits and approval and installation of the duct work below grade shall be borne by Landlord (or other third parties, as appropriate) and shall not be deemed to be part of Landlord's Operating Expenses under Section 2.6 above.
Notwithstanding the foregoing, it is understood and agreed that Landlord's inability to cause the overhead wires to be placed underground shall not constitute a default by Landlord under this Lease, provided that Landlord has used commercially reasonable
efforts as aforesaid
.
In connection with (but not in limitation of) the foregoing, Tenant acknowledges that the decision as to whether or not to place the overhead wires underground will be made largely by municipal authorities and third parties such as abutting landowners and utility and telecommunications companies, over whom Landlord has no control. Landlord shall not be deemed to have failed to use commercially reasonable efforts for the purposes of this Section 8.29 in the event that such municipal authorities and/or third parties refuse to grant the necessary permits and approvals or impose unreasonable conditions that make the relocation of the overhead wires commercially impractical or unfeasible.
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8.30
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Waiver of Landlord's Lien
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From time to time upon Tenant's reasonable written request, Landlord agrees to furnish Tenant or any vendor or other supplier under any conditional sale, chattel mortgage or other security arrangement, any consignor, any holder of reserved title or any holder of a security interest, with a waiver of Landlord's lien upon Tenant's trade fixtures, furnishings, signs, equipment, machinery, inventory and personal property in or on the Premises.
·
Any disputes (i) under Section 2.6.1 above as to whether Tenant has overpaid or underpaid Operating Expenses Allocable to the Premises, Landlord's Tax Expenses Allocable to the Premises, and/or Tenant's Electricity Payments relating to matters in excess of Fifty Thousand and 00/100 Dollars ($50,000.00) and/or (ii) under Section 8.17(B) above as to whether Landlord is required to reimburse Tenant for costs incurred by Tenant in connection with the exercise of its self-help rights and/or (iii) under Section
8.27 above as to whether or not Tenant was acting reasonably in withholding its consent to a proposed change in or discontinuance of any of the Amenities shall be submitted to arbitration in accordance with the provisions of applicable Massachusetts state law, as from time to time amended. Arbitration proceedings, including the selection of an arbitrator, shall be conducted pursuant to the rules, regulations and procedures from time to time in effect as promulgated by the American Arbitration Association. Prior written notice of application by either party for arbitration shall be given to the other at least ten ( 10) days before submission of the application to the.said Association's office in Boston, Massachusetts. Any award of an arbitrator rendered-hereunder shall be subject to confirmation and entry of judgment thereon in any court of competent jurisdiction sitting in Suffolk or Middlesex Counties, Massachusetts, and the parties hereby consent to the
jurisdiction of such court. The costs and administration expenses of each arbitration hereunder and their apportionment between the parties shall be borne equally by the parties, and each party shall be responsible for its own attorneys' fees and expert witness fees. In connection with the foregoing, it is expressly understood and agreed that the parties shall continue to perform their respective obligations under this Lease during the pending of any such arbitration proceeding hereunder (with any adjustments or reallocations to be made on account of such continued performance as determined by the arbitrator in his or her award).
EXECUTED as a sealed instrument in two or more counterparts each of which shall be deemed to be an original.
EXHIBIT A
DESCRIPTION OF SITE
77 Fourth Avenue (F_arcel 20)
A certain parcel ofland loc.ated in the City of Waltham, in the County of Middlesex and the Commonwealth of Massachusetts bound ed and described as follows:
Beginning
al
a point on the westerly line of Fourth Avenue markea by a stone bound and being the northeastern comer of the parcel described; thence
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S 23° 46'59" W
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a distance of three hundred thirty-eight and twenty-three hundredths feet (338.23') by the westerly line of Fourth Avenue lo a point; thence
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Southwesterly
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imd
curving to
the
right along the arc of a curve havi ng a radius of sixteen and no hundred ths feet (
J
6.00'), a length of sixteen and sixty thrce hundredths feel (16.63')
by
the westerly line of Fourth Avenue to a point; thence
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Southwesterly
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and curving to the left along the arc of
a
curve having a radius of sixty and no hundredths feet (60.00'), a length of seventy-eight and fifty-six hundredths feet (78.56'} by the westerly line of Fourth
A
venue to a point; thence
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S 40° 1 1'12" W
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a
distance
of
fifty-eight and
forty-three
hundredths feet (58.43') to a point; thence
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Southwesterl y and curving to the left along the arc of a curve having a radius of two hundred ten and no hundredths feet (210.00'), a length of one hundred fifty and seventy-nine hundredths feet (150.79') to a point; thence
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S I 0° 0l'24" W
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a distance of three hundred thirty-eight and
thirty
hundredths feet (338.30') to a point; thence
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N 79° 58'36" W
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a distance of thirty-five and ninety-four hundredths feet (35.94') to a point thence
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N 05° 49'41" E
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a distance of three hundred seventy and eighty-four hundredths feet (370.84') to a point; thence
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Northeasterly
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and curving
lo
the left along the arc of a curve having a radius of seven hundred twenty-five and no hundredths feel (725.00'), a length of one hundred and eighty-seven hundredths feet ( 100.87') to a point; thence
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N 02° 08'36" W
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a distance of one hundred thirty-ni ne and forty-four hundredths feet (139.44')
lo
a
point; thence
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Northeasterly
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and curving to the right along the arc of a curve having a rad ius of seven hundred twenty-five and no hu ndredths feet (725.00'), a length of one hundred
fo11y-four
and fifty-two hundredths feel (144.52')
to a
point; thence
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Northeasterly
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and curving to the left along the arc of a curve having a radius of seven hundred seventy five and no hundredths feet (77S:OO'), a length of one hundred thirteen and forty six hundredths feet (113.46') to a point ; thence
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N 00° 53'22" E
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a distance of two hundred eight and eighty-four hundredths feet (208.84') to a point; thence
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Northeasterly
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and curving to the right along the arc of a curve having a radius of fifteen and no hundredths feet
(1
S.00'}, a length oflhirty and thirty five hundredths feet (30.35') to a point; thence
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S 63° 09'49"
E
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a distance of three hundred forty-two and sixty-nine hundredths feet (342.69')
by
the southerly line of Fourth Avenue to a point; thence
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Southeasterly
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and curving to the right along the arc of a curve having a radius of fifly and no hundredths feet
(50.00'),
a length of seventy-five and eighty-eight hundredths feet (75.88') by the southerly line of Fourth Avenue to the point of beginning.
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Shown as Parcel 20 on a plan entitled
"Plan
of Land in Waltham, Massachusetts" dated February 28, 2000, prepared
by
Vanasse Hangen Bmstlin, Inc., recorded with Middlesex South Registry of Deeds as Plan No. 628 of 2000, and containing I 86,733 square feet or
4.287 acres of land according to said Plan.
EXHIBIT B-1
BASE BUILDING PLANS AND SPECIFICATIONS
l .
PROJ ECT DESCRIPTION
A seven (7) story first class office building with structured parking garage.
The structure will be supported on a foundation of concrete spread footings with concrete foundation walls.
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A.
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The structure will be designed in accordance with the following live loads: I . Wind and seismic load in accordance with State Building Code.
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2.
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Floor live load I 00 lbs. (including partitions).
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3.
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Mechanical equipment rooms -- actual weight of equipment.
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4.
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Roof -- 35 lbs. per square foot minimum and in accordance with governing building codes, plus allowances for specific drifting and equipment loads.
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B.
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The structure will consist of steel frame with a braced frame and composite steel and concrete floor; with substantially column free floors from core to perimeter wall. Floor to floor heights will allow for a typical suspended ceiling height in the office areas of 9'0" A.F.F.
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C.
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Structure will be fireproofed where required by the Building Code. Structural assemblies requiring fireproofing will be sprayed
with
a fireproofing system as provided by W. R. Grace
&
Co. or equal.
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D.
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Fire exit stairs will be standard steel pan stair assemblies with painted steel handrails and concrete fill.
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E.
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Miscellaneous iron items (canopy framing, elevator sill angles, ladders, railings, loose lintels, expansion plates, toilet partition support frames, etc.) will be provided as needed.
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4.
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ROOFING AND WATERPROOFING
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Exhibit B-1
Page I of 9
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A.
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The roofing system will be one of the following; a mechanically fastened, heat welded thermoplastic system such as manufactured by Samofil Roofing Systems, Inc., or an EPDM roof.
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B.
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Roof insulation will be rigid fiberglass board, applied with staggered joints conforming to requirements of the State Energy Code and acceptable for use with the system specified.
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C.
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Compatible roof walkway pads shall be provided for equipment access and servicing.
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A.
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The exterior wall system will consist of a combination of the following; aluminum curtain wall, metal panels, precast concrete and stone.
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B.
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Exterior entrance doors will be similar in construction to building window systems.
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C. Exterior wall system to be designed in accordance with the Building Code.
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A
.
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Main Lobby Floors:
Walls:
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Granite flooring as dictated by the design.
Feature walls will be a combination of stone and wood
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panels accented with veneer plaster.
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Ceilings:
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A combination of gypsum board and 4'x4' ceilings panels.
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B.
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Toilet Rooms
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Floors:
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Thin set ceramic tile. Carpetm vestibules, Granite thresholds at door openings.
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Walls:
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7'
high ceramic tile on wet walls. Painted drywall on other walls.
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Ceilings:
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Acoustical ceiling tile.
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Lavatory Counters:
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Granite or other solid surface material with under-mount china lavatories.
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C.
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Interior side of exterior walls below the finished ceiling will
be
finished with 5/8" drywall or exposed foil-faced insulation above 9'. Windowsills will be plastic laminate.
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D.
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Exit stair treads and landings will be sealed concrete. Stairwell walls will be painted drywall.
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E.
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Door frames will be 16 gage hollow metal. Doors will be 18 gauge, flush, 1-3/4" thick hollow metal at all areas. All doors and hardware shall comply with regulations of the Architectural Access Board
.
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F.
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Interior core drywall surfaces will be 5/8" drywall prepared to receive one coat of primer and one coat of latex satin eggshell paint. Interior hollow metal surfaces will receive one coat of primer and two coats of semi-gloss enamel. Architectural woodwork and wood doors will receive a sealer and clear polyurethane finish.
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7.
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SPECIALTIES AN D EQUIPMENT
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A.
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A uniform building graphics system, consisting of a building identification sign and a building directory will be provided.
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B.
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Metal toilet enclosures will be ceiling mounted and of steel panel construction with baked enamel finish. Toilet enclosures will be similar or equal to those manufactured by Accurate Partitions.
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C.
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Toilet room accessories will be similar or equal to those manufactured by Bobrick Company, all in accordance with regulations of Architectural Access Board.
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D.
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All exterior windows will be equipped with solid horizontal blinds.
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8.
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VERTICAL TRANSPORTATION
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Elevators in the office area will be geared, 3,500# cars with a speed of 350 fpm. Elevator Cab Finishes: Stone border and base with carpet inset, wood paneling with stainless steel trim to match elevator doors and control panel. Metal ceiling canopy with recessed accent lighting.
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A.
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Domestic water system will be supplied by metered service from a public water main, with operating pressure augmented by pressure boosting equipment,
if
required. Water piping will be Type L copper tubing; hot water piping will be insulated. Electric domestic water heaters serving 1 to 6 floors with a recirculation system will be provided for toilet room hot water.
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Water heaters shall be UL approved and have ASME approved storage tank
where required by local code.
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B.
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Sanitary system will drain to public sewer, and will serve all fixtures and equipment. Sanitary piping will be no hub cast iron or galvanized steel. Stubouts for tenant plumbing requirements will be provided on two opposite sides of the core area.
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C.
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Stonn water drainage system will serve all roofs, areaways and plazas, and will drain through concealed pipes into city stonn water system. Stonn water drainage piping will be service weight, no hub cast iron or galvanized steel; horizontal runs wi ll be insulated.
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D.
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Plumbing fixtures wi ll be as manufactured by American Standard, Kohler, Crane, or equal. Water closets to
be
wall-carrier mounted.
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E.
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The building will have one water cooler per floor, specified for lead-free fabrication, compliant with ADA accessibility guidelines (Hi lo fountain).
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F.
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Frost-free hose bibs will be provided as required for exterior maintenance.
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10.
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FIRE PROTECTION SYSTEM
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A.
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Fire standpipes will be supplied from a public water main with operating pressure augmented by pressure boosting equipment, if required. Standpipes will be cross connected with siamese connections and hose bibs for Fire Department use only. Piping larger than 2" dia will be Schedule 10 black steel pipe, piping 2" dia or less
will
be treaded schedule 40 black steel; riser piping shall be schedule 40 black steel pipe; all piping, valves and equipment will be Underwriters'
|
Laboratories approved and labeled. Temper switches will be provided on all main control valves. All hose outlet threads and connections will confonn to local Fire Department criteria.
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B.
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Automatic sprinkler system will be supplied from a public water main with operating pressure augmented by pressure boosting equipment, if required. The system will be designed so that all occupied space in the bailding will be fully sprinklered at a head density in accordance with light hazard occupancy in office space. The Base Building provides distribution piping and sprinkler heads for common areas such as mechanical rooms, toilets, etc. and general coverage (15' x 15' grid) with upturned heads in Tenant areas. Each floor's loop will be individually valved off the riser and drained. Provide concealed heads at lobby, elevator lobbies and toilet rooms. The location of base building grids will be coordinated to accommodate tenant's improvement work.
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C.
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Alann and detection system are described under Section 12, Electrical Systems.
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11.
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HEATING. VENTILATING AND AIR CONDITIONS
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A.
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HYAC systems will be designed in accordance with the following performance criteria and anticipated load.
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B.
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1.
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The HYAC systems will be capable of maintaining indoor conditions no higher than 78°, 50% RH when outdoor conditions are no higher than 88°F DB and 74°F WB, and no lower than 72°F DB when the outdoor
|
conditions are no lower than 9°F DB. No provision for humidification is provided.
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2.
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Outdoor air will be introduced to the building at a minimum rate of 20 cfm per person, assuming one person per 150 square feet floor area.
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3.
|
Internal heat gain will be calculated on the basis of sustained peak loading conditions of one person per 150 square feet of gross usable floor area and a combined lighting and power load of 5.0 watts per gross usable square foot area (for medium pressure duct design).
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4.
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Heated supply air temperature will be 95°F to 110°F.
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5.
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Cooled supply air temperature will be 55°F to 58°F.
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6.
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Measured sound levels in the building when unoccupied and the system is operating at full load will not exceed the levels given below:
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Lobbies and corridors: General offices:
All other offices:
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C.
|
The following describes the HYAC system:
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NC50 NC45 NC40
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1.
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The base building system will consist of a roof top air handler with gas fired morning warm-up.
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2.
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Yariable air volume controls with fan powered YAY boxes with electric coils at the perimeter and YAY fan powered boxes without coils for interior zones.
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3.
|
Heating shall be via fan boxes with electric coils at the perimeter.
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4.
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Toilet room and mechanical room exhaust systems and associated ductwork and fans. Electric rooms located on each office floor will be ventilated using general exhaust.
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5.
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Automatic temperature control system consisting of direct digital controls
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(DOC) and appurtenances. Connections of VAV units, fans and associated systems, and tie into the central control system.
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6.
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Stair pressurization supply air, smoke vestibule supply and exhaust systems and stair relief system.
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7.
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Acoustical duct lining for all return and transfer ductwork in mechanical equipment room and LP supply ductwork 1
O'
-0" downstream of VAV box. Supply ductwork beyond lined ductwork shall be insulated with 1- 1/2" duct insulation. Ductwork shall be fully lined or insulated.
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8.
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Air distribution system consisting of ductwork, volume dampers, fire dampers, registers, diffusers and linear diffusers for core areas only.
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9.
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Diesel fired emergency generator, diesel storage tank, exhaust pipe, ductwork, etc.
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10.
|
Cabinet unit heaters to heat stairways in some limited locations.
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11.
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Certified testing and balancing to insure proper system operation.
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A.
|
Electrical systems will be designed in accordance with the following anticipated loads:
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I.
|
Lighting power requirements will be calculated on the basis of 1.5 watts per square foot of building area.
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2.
|
Tenant convenience outlet power requirements will be calculated on the basis of 4.5 watts per square foot of building area.
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3.
|
Power requirements for HVAC and other fixed building equipment will be determined by the actual equipment installed.
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B.
|
The electrical power distribution system will receive low tension power at 480/277 volts, 3 phase, 4 wire from the transformers provided by the utility company, and will incorporate one or more main switchboards and all subsidiary panelboards (power, lighting, equipment) as required. The distribution system will supply power as follows:
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1.
|
480 volts, 3 phase to all motors Y2 horsepower and larger.
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2.
|
277 volts, single-phase to all fluorescent (and other discharge-type lamp) lighting fixtures.
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3.
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120 volts, single-phase to all incandescent lighting fixtures.
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4.
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120 volts, single-phase to all general convenience receptacle outlets.
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5.
|
120 volts single-phase; 208 volts, single-phase; 208 volts, 3-phase to specific use "solid connection" or receptacle outlets, as determined from the requirements of the appliances assigned to the outlets.
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C.
|
Metering will be accomplished in one of two ways.
|
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|
1.
|
Utility meters at main switchboards and Owner specified check meters on the floors to verify tenant consumption. These check meters to be solid state, 1
%
accuracy and networked to a central computer.
|
|
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|
|
D.
|
Three-phase, dry type transformers (480 volt delta to 208/120 volt wye) will be used to provide power of voltages not available from direct connection to the main service. Transformers will be the self-cooled indoor type with Class H insulation and steel enclosures.
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E.
|
The emergency electrical power system will consist of:
|
|
|
|
|
l .
|
Diesel powered emergency generator(s) sized to meet the power demands of all Base Building emergency equipment.
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2.
|
An emergency power distribution system supplying the fixtures illuminating egress passages and stairs, exit signs, elevators , fire alarm system, fire pump, (if required) and stairwell pressurization fans.
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|
3.
|
An automatic transfer switch, which will connect the emergency power distribution system to the standard building distribution system or the emergency generator, as required.
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F.
|
The automatic fire detection and alarm system will be electronically operated double-supervised, connected to the Fire Department, and provided with a battery backup. All components of the fire alarm system (fire command station, manual alarm stations, alarm indicators, automatic smoke and heat defectors, fan control relays, etc.) will be Underwriters' laboratories rated, and the system will comply with all requirements of the NFPA, ADA, governing building code and local authorities. Activation of a manual alarm station or an automatic detection device (waterflow switches, smoke detectors, etc.) will:
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1.
|
Sound the evacuation signals and flash the alarm lamps throughout the building.
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2.
|
Printout the device in alarm at the fire command center.
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3.
|
Summon the municipal fire department.
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|
4.
|
Activate smoke exhaust fans and/or shut down the HVAC system to prevent spread of smoke as appropriate.
|
Battery back-up failure or any disruption of the system wiring will sound an alarm at the system control panel.
|
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|
G.
|
The base building will provide an area in the basement for the tenant's telecommunications vendor. Three dedicated 4" sleeves will be provided for tenant's use. The sleeves will be located on each floor in the base building telecommunications closet.
|
|
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13.
|
To clarify the delineation from Base Building to tenant work, the following criteria apply:
|
|
|
|
|
A.
|
The Base Building sprinkler system will consist of general coverage ( 15' x 15' grid) with upturned heads to meet minimum code requirements for light hazard occupancy. All relocation and/or additional heads and associated piping shall be tenant work. (Sprinkler work in multi-tenant elevator lobbies and common corridors will be Base Building work).
|
|
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|
|
B.
|
Except as modified in Exhibit B-2, Base Bui lding HVAC system extends up to vertical riser in base building shaft. Tenant work includes medium pressure distribution ductwork, all downstream secondary ductwork, interior and exterior boxes, controls, registers, grilles and diffusers.
|
|
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|
|
C.
|
Except as modified in Exhibit B-2, Base Building electrical system extends up to the bus duct in tenant electric room sized to accommodate tenant electrical design load of 6.0 watts/SF for lighting and power.
|
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|
|
D.
|
Tenant Work, which is not included in Base Building, would normally cover the following:
|
|
|
|
|
a.
|
Ceiling high and , except on multi-tenant floors, demising partitions
|
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b.
|
Tenant entrance doors and interior doors
|
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|
d.
|
Carpet or other floor covering
|
|
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|
|
e.
|
Interior finish on exterior wall
|
f.
Light fixtures
|
|
|
|
h.
|
Wall-mounted duplex outlets
|
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|
|
|
1.
|
Wall-mounted telephone outlets
|
|
|
|
|
J.
|
Final sprinkler head layout, fixture upgrades, quantities above Base Building, and all piping associated with changes
|
|
|
|
|
k.
|
Except as modified in Exhibit B-2, Interior and exterior VAV boxes, all Registers, Diffusers and Grilles (RDG) with medium pressure and
|
distribution ductwork. Medium pressure supply ductwork shall have duct sound attenuators and external duct insulation throughout.
I.
All electrical work on Tenant's meter
|
|
|
|
m.
|
Fire alarm stations and exit signs required by code (but such items shall be included in Base Building to the extent located in core areas)
|
|
|
|
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n.
|
Elevator lobby finishes on single tenant floors (elevator frames and doors are brushed stainless steel)
|
EXHIBIT B-2
BASE BUILDING ENHANCEMENTS
|
|
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|
I
.
|
Landlord shall provide a level floor slab with variation no greater than
Yi''
within a 10' x 10' area.
|
|
|
|
|
2.
|
Landlord's core and perimeter shell walls and interior columns shall be provided finished and taped from deck to 6" above level of the finished ceiling.
|
|
|
|
|
3.
|
Landlord shall provide HVAC medium distribution means (via ring duct) which meets Tenant's requirements and which is coordinated with the Tenant's architects and engineers. Duct design and configuration to be based on a mutually approved plan prepared by the Tenant. Tenant shall reimburse Landlord for additional costs which are incurred above and beyond a typical ring.
|
|
|
|
|
4.
|
Landlord shall provide a comprehensive per floor electrical service within the Premises that includes step-down transformers, meters and distribution panels that support no less than six (6) watts per rentable square foot of floor area exclusive of base building loads. Equipment shall be located within common area electrical riser rooms and closets.
|
Exhibit 8-2
Page I of I
S:\Lcgal\Waltham\77 Founh Avenuc\Lcascs\Phasc Forward (HJ.doc
EXHIBIT B-3
INTERIM PLAN REQUIREMENTS
|
|
|
|
1.
|
Floor plan indicating location of partitions and doors (details required of partition and door types).
|
|
|
|
|
2.
|
All necessary electrical drawings, including drawings showing (i) location of standard electrical convenience outlets and telephone outlets and (ii) location and details of special electrical outlets (e.g. Xerox), including voltage, amperage, phase and NEMA configuration of outlets.
|
|
|
|
|
3.
|
All necessary plum bing and fire protection drawings.
|
|
|
|
|
4.
|
Reflected ceiling plan showing layout of standard ceiling and lighting fixtures. Partitions to be shown lightl y with switches located indicating fixtures to be controlled.
|
|
|
|
|
5.
|
Locations and details of special ceiling conditions, lighting fixtures, speakers, etc.
|
|
|
|
|
6.
|
Location and heat load in BTU/Hr. of all special air conditioning and ventilating requirements and all necessary HVAC mechanical drawings.
|
|
|
|
|
7.
|
Location and details of special structural requirements, e.g., slab penetrations and areas with floor loadings exceeding a live load of 100 lbs./s.f. (including partitions).
|
|
|
|
|
8.
|
Locations and details of all plumbing fixtures; sinks, drinking fountains, etc.
|
|
|
|
|
9.
|
Location and specifications of floor coverings, e.g., vinyl tile, carpet, ceramic tile, etc.
|
|
|
|
|
10.
|
Finish schedule plan indicating wall covering, paint or paneling.
|
|
|
|
|
1 1.
|
Details and specifications of special millwork, glass partitions, rolling doors and grilles, blackboards, shelves, etc.
|
|
|
|
|
12.
|
Hardware schedule indicating door number keyed to plan, size, hardware required including butts, latchsets or locksets, closures, stops, and any special items such as thresholds, soundproofing, etc.
|
|
|
|
|
13.
|
Verified dimensions of all built-in equipment (file cabinets, lockers, plan files, etc.).
|
|
|
|
|
14.
|
Location of any special soundproofing requirements.
|
|
|
|
|
15.
|
All drawings to be uniform size (30" X 42") and shall incorporate the standard project electrical and plumbing symbols and be at a scale of 1/8"
=
l ' or larger.
|
Exhibit B-3 Page 1 of l
EXHIBIT B-4
TENANT PLAN AND WORKING ORAWING REQUIREMENTS
|
|
|
|
1.
|
Floor plan indicating location of partitions and doors (details required of partition and door types).
|
|
|
|
|
2.
|
All necessary electrical drawings, including drawings showing (i) location of standard electrical convenience outlets and telephone outlets and
(ii)
location and details of special electrical outlets (e.g. Xerox), including voltage, amperage, phase and NEMA configuration of outlets.
|
|
|
|
|
3.
|
All necessary pl umbing and fire protection drawings.
|
|
|
|
|
4.
|
Reflected ceiling plan showing layout of standard ceiling and lighting fixtures. Partitions to be shown lightly with switches located indicating fixtures to be controlled.
|
|
|
|
|
5.
|
Locations and details of special ceiling conditions, lighting fixtures, speakers, etc.
|
|
|
|
|
6.
|
Location and heat load in BTU/Hr. of all special air conditioning and ventilating requirements and all necessary HVAC mechanical drawings.
|
|
|
|
|
7.
|
Location and details of special structural requirements, e.g., slab penetrations and areas with floor loadings exceeding a live load of 100 lbs./s.f. (including partitions).
|
|
|
|
|
8.
|
Locations and details of all plumbing fixtures; sinks, drinking fountains, etc.
|
|
|
|
|
9.
|
Location and specifications of floor coverings, e.g., vinyl tile, carpet, ceramic tile, etc.
|
|
|
|
|
10.
|
Finish schedule plan indicating wall covering, paint or paneling with paint colors referenced to standard color system.
|
|
|
|
|
1 1.
|
Details and specifications of special millwork, glass partitions, rolling doors and grilles, blackboards, shelves, etc.
|
|
|
|
|
12.
|
Hardware schedule indicating door number keyed to plan, size, hardware required including butts, latchsets or locksets, closures, stops, and any special items such as thresholds, soundproofing, etc. Keying schedule is required.
|
|
|
|
|
13.
|
Verified dimensions of all built-in equipment (file cabinets, lockers, plan files, etc.).
|
|
|
|
|
14.
|
Location of any special soundproofing requirements.
|
|
|
|
|
15.
|
All drawings to be uniform size (30" X 42") and shall incorporate the standard project electrical and plumbing symbols and be at a scale of 1/8"
=
1' or larger.
|
Exhibit B-4
Page I of 2
|
|
|
|
16.
|
Drawing submittal shall include the appropriate quantity required for Landlord to file for permit along with four half size sets and one full size set for Landlord's review and use.
|
|
|
|
|
17.
|
Upon completion of the work, Tenant shall provide Landlord with two hard copies and one electronic CAD file of updated architectural and mechanical drawings to reflect all project sketches and changes
.
|
Exhibit B-4
Page 2 of 2
S
:
\Lcgal\Waltham\77 Fourth Avcnuc\Lcascs\Phasc Forward (H)
.
doc
EXHIBIT B-5
PRE-APPROVED GENERAL CONTRACTORS
I .
J.
Calnan
&
Associates
|
|
|
|
4.
|
Shawmut Design and Construction
|
Exhibit B-5
EXHIBIT C
LANDLORD SERVICES
Cleaning and janitorial services shall be provided Monday through Friday (starting at or after 6:00 pm EST), exclusive of holidays observed by the cleaning company and Saturdays and Sundays.
Cleaning and janitorial services to be provided in the office areas shall include:
|
|
|
|
I .
|
Vacuuming, damp mopping of resilient floors and trash removal nightly.
|
|
|
|
|
2.
|
Dusting of horizontal surfaces within normal reach (tenant
|
equipment to remain in place), including but not limited to, tenant furniture systems (minimum once per week).
|
|
|
|
3.
|
High dusting and dusting of vertical blinds and light fixtures to be rendered as needed (minim um once per week).
|
B.
LAVATORIES
Cleaning and janitorial services to be provided in the common area lavatories of the buildi ng shall include:
|
|
|
|
I .
|
Dusting, damp mopping of resilient floors, trash removal, sanitizing of basins, bowls and urinals as well as cleaning of mirrors and bright work (nightly).
|
|
|
|
|
2.
|
Refilling of soap, towel, tissue and sanitary dispensers to be rendered as necessary.
|
3.
High dusting to be rendered as needed (minimum once per week). C
.
MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON
CORRIDORS
Cleaning and janitorial services to be provided in the common areas of the building shall include:
I . Trash removal, vacuuming, dusting and damp mopping of resilient
floors and cleaning and sanitizing of water fountains (nightly)
.
2. High dusting to be rendered as needed (minimum once per week).
D.
WINDOW CLEANING
All exterior windows shall be washed on the outside surfaces at least once per year, and on the inside surfaces at least once per year.
|
|
|
|
A.
|
Heating, ventilating and air conditioning equipment will be provided with sufficient capacity to accommodate a maximum population density of one ( l ) person per one hundred fifty (150) square feet of useable floor area served, and a combined lighting and standard electrical load of 3.0 watts per square foot of useable floor area. In the event Tenant introduces into the Premises personnel or equipment which overloads the system's ability
|
to adequately perform its proper functions, Landlord shall so notify Tenant in writing and supplementary system(s) may be required and installed by Landlord at Tenant's expense, if within fifteen (15) days Tenant has not modified its use so as not to cause such overload.
Operating criteria of the basic system shall not be less than the following:
|
|
|
|
(i)
|
Cooling season indoor temperatures of not in excess of 73 - 79 degrees Fahrenheit when outdoor temperatures are 91 degrees Fahrenheit ambient.
|
|
|
|
|
(ii)
|
Heating season minimum room temperature of 68 - 75 degrees Fahrenheit when outdoor temperatures are 6 degrees Fahrenheit ambient.
|
|
|
|
|
B.
|
Landlord shall provide heating, ventilating and air conditioning as normal seasonal changes may req uire during the hours (the "Building Hours") of 8:00 a.m. to 6:00 p.m
.
Monday through Friday and 9:00 a.m. to 1:00 p.m: on Saturdays (legal holidays in all cases excepted). Landlord and Tenant will cooperate with each other in good faith to operate the heating, ventilating and air conditioning systems on Saturdays only in those portions of the Premises that are actually occupied on such days.
|
If
Tenant shall require air conditioning (during the air conditioning season) or heating or ventilating during any other time period, Landlord shall use Landlord's best efforts to furnish such services for the area or areas specified by written request of Tenant delivered to the Building Superintendent or the
Landlord within a reasonable amount of time preceding the extra usage. Tenant may request such after hours service on
a zone-by-zone basis. Landlord shall charge Tenant for an amount equal to the sum of (x) the actual costs charged to Landlord by the utility company to provide such service and (y) a reasonable additional charge for depreciation of equipment, manpower and administrative fees, and Tenant shall pay the same to Landlord, as additional rent, upon receipt of billing therefor.
Ill.
ELECTRICAL SERVICES
|
|
|
|
A.
|
Landlord shall provide electric power for a combined load of 6.0 watts per square foot of useable area (exclusive of base building HYAC equipment load) for lighting and for office machines through standard receptacles for the typical office space.
|
|
|
|
|
B.
|
In the event that Tenant has special equipment (such as computers and reproduction equipment) that requires either 3-phase electric power or any voltage other than 120, or for any other usage in excess of 6.0 watts per square foot, Landlord may at its option require the installation of separate metering (Tenant being solely responsi ble for the costs of any such separate meter and the installation thereof) and direct billing to Tenant for the electric power required for any such special equipment.
|
|
|
|
|
C.
|
Landlord will furnish and install, at Tenant's expense, all replacement lighting tubes, lamps and ballasts required by Tenant. Landlord will clean lighting fixtures at Tenant's request and expense.
|
Landlord shall manage the operation of the passenger elevators in the Building so that there is sufficient elevator service at all times to meet the demands of the Building occupants in a manner consistent with other comparable first-class office buildings in the Market Area, provided that ( I ) there shall not be less than three (3) elevators serving the Premises during Building Hours, and (2) at least one ( I ) passenger elevator servicing the Premises shall be operational and available on a 24 hour, seven (7) day a week basis.
Only one ( I ) passenger elevator may be used as a freight elevator at any given time (and - if only one ( 1) passenger elevator is then in service, such elevator may nonetheless also be used as a freight elevator but only during non-Building Hours). There shall be no additional charge for use of any freight elevator in the Building (including any passenger elevator serving as a freight elevator).
Provide hot water for lavatory purposes and cold water for drinking, lavatory and toilet purposes.
Landlord will provide a Building perimeter access control system at least one ( 1) designated entry door of the Building, including loading areas and provide Tenant with access/key cards for Tenant's employees at no additional charge. Tenant shall have the right to integrate Tenant's access control system for the Premises with Landlord's access control for the Building to allow for single card use by Tenant's employees for both the Building and the Premises.
Tenant shall have access to the Premises on a twenty-four hour per day, seven (7) day a week basis, subject to Landlord's reasonable rules and regulations relative to such access and to events beyond Landlord's reasonable control.
Landlord will provide, through a third-party security services contactor, random security patrols of the building perimeter and parking areas during non-Building Hours, and, upon request from Tenant's employees, an escort for Tenant's employees to their vehicles in the parking areas during non-Building Hours (it being acknowledged and agreed that (x) this escort will be provided by the roving security guard assigned to patrol the Site and other properties owned by Landlord and its affiliates and accordingly that there may be a variable waiting period between the time that the call is placed and the time that the security guard arrives on the Site, and (y) the obligation to provide an escort service shall not apply to any mortgagee or subsequent third-party holder of the landlord's interest in this Lease).
Snow removal and treatment of ice will be performed by Landlord or its contractor in a manner that is comparable to such service provided at other Class A, high quality, multi tenant office buildings in the Market Area.
|
|
|
|
VIII.
|
BUILDING ILLUMINATION
|
Landlord will illuminate the Building at night in a manner that is consistent with the LEEDS certification of the Building.
EXHIBIT D-1
PREMISES A FLOOR PLAN
-------------------------------------------------.
PREMISES A
77 CityPoint
-:-:-·-
:
. = 1 ;
..
-··
-
.
r
A/E/C SOLUTIONS
rJI:,
Pr •nl
11
r ""•'··•an••
W•tthn"
v..-.
PREMISES A
77 CityPoint
f)
PREMISES A
77
Citypoint
EXHIBIT D-2
PREMISES B FLOOR PLAN
PREMISES H
77 Ci1yPoinl
EXHIBIT D-3
PREMISES C FLOOR PLAN
EXHIBIT E
FORM OF DECLARATION FIXING SPECIFIC DATES IN LEASE
THIS AGREEMENT made this _ day of 2007, by and between BP FOURTH AVENUE, L.L.C., a Delaware limited liability company, (hereinafter "Landlord") and PHASE FORWARD, INC., a
corporation (hereinafter "Tenant").
WITN ESSETH
THAT:
1. This Agreement is made pursuant to Section 2.4 of that certain Lease dated
, 2007 between the parties aforenamed as Landlord and Tenant (the "Lease")
.
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2.
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It
is hereby stipulated that the Commencement Date, Rent Commencement Date and Expiration Date of the Lease are as set forth below:
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b)
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Rent Commencement Date:
_
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WITNESS the execution hereof under seal by persons hereunto duly authorized, the date first above written.
WITNESS: LANDLORD:
BP FOURTH AVENUE, L.L.C.,
a Delaware limited liability company
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By:
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Boston Properties Limited Partnership, its sole member
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By:
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Boston Properties, Inc. its general partner
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By:
Name:
Title:
TENANT:
ATTEST: PHASE FORWARD, INC.,
By:
Name:
Title: Secretary or Assistant Secretary
a Delaware corporation
By:
Name:
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Title:
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President or Vice President
Hereto duly authorized
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By:
Name: Title:
Treasurer or Assistant Treasurer
Hereto duly authorized
(CORPORA
TE SEAL)
COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK
On this _ day of , 200_, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, which were , to be the person whose name is signed on the preceding or attached document in my presence.
NOTARY PUBLIC
My Commission Expires:
COMMONWEAL TH OF MASSACHUSETTS COUNTY OF
On this _ day of , 200_, before me, the undersigned notary public, personally
appeared , proved to me through satisfactory evidence of identification, which were , to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the documents are truthful and accurate to the best of [his] [her] knowledge and belief.
NOTARY PUBLIC
My Commission Expires:
EXHIBIT F
FORM OF LIEN WAIVERS
CONTRACTOR'S PARTIAL WAIVER AND SUBORDINATION OF LIEN
STATE OF
Date:
------------
OWNER: CONTRACTOR:
COUNTY Application for Payment No.:
LENDER
I
MORTGAGEE: None
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1.
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Original Contract Amount:
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$
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2.
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Approved Change Orders:
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$
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3.
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Adjusted Contract Amount:
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$
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4.
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(line 1 plus line 2)
Completed to Date:
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$
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5.
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Less Retainage:
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$
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6.
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Total Payable to Date:
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$
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7.
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(line 4 less line 5)
Less Previous Payments:
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$
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8.
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Current Amount Due:
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$
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9.
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(line 6 less line 7)
Pending Change Orders:
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$
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10.
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Disputed Claims:
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$
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The undersigned who has a contract with for furnishing labor or materials or both labor and materials or rental equipment, appliances or tools for the erection, alteration, repair or removal of a building or structure or other improvement of real property
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known and identified as located in
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(city or town),
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County,
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and owned by
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, upon receipt of
($
)
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in payment of an invoice/requisition/application for payment dated
does hereby:
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(a)
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waive any and all liens and right of lien on such real property for labor or materials, or both labor and materials, or rental equipment, appliances or tools, performed or furnished through the following date (payment period), except for rctainage, unpaid agreed or pending change orders, and disputed claims as stated above;
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(b)
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subordinate any and all liens and right of lien to secure payment for such unpaid, agreed or pending change orders and disputed claims, and such further labor or materials, or both labor and materials, or rental equipment, appliances or tools, except for retainage, performed or furnished at any time through the twenty-fifth day after the end of the above payment period, to the extent of the amount actually advanced by the above lender/mortgagee through such twenty-fifth day.
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Signed under the penalties of perjury this
day of
, 20_.
WITNESS: CONTRACTOR:
Name: Title:
Name: Title:
SUBCONTRACTOR'S LIEN WAIVER
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General Contractor:
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Subcontractor:
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Owner: Project:
Total Amount Previously Paid: $ Amount Paid This Date: $
Retainage (Including This Payment) Held to Date: $
In consideration of the receipt of the amount of payment set forth above and any and all past payments received from the Contractor in connection with the Project, the undersigned acknowledges and agrees that it has been paid all sums due for all labor, materials and/or equipment furnished by the undersigned to or in connection with the Project and the undersigned hereby releases, discharges, relinquishes and waives any and all claims, suits, liens and rights under any Notice of Identification, Notice of Contract or statement of account with respect to the Owner, the Project and/or against the Contractor on account of any labor, materials and/or equipment furnished through the date hereof.
The undersigned individual represents and warrants that he is the duly authorized representative of the undersigned, empowered and authorized to execute and deliver this document on behalf of the undersigned and that this document binds the undersigned to the extent that the payment referred to herein is received.
The undersigned represents and warrants that it has paid in full each and every sub subcontractor, laborer and labor and/or material supplier with whom undersigned has dealt in connection with the Project and the undersigned agrees at its sole cost and expense to defend, indemnify and hold harmless the Contractor against any claims, demands, suits, disputes, damages, costs, expenses (including attorneys' fees), liens and/or claims of lien made by such sub-subcontractors, laborers and labor and/or material suppliers arising out of or in any way related to the Project. This document is to take effect as a sealed instrument.
Signed under the penalties of perjury as of this
day of
,
20_.
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SUBCONTRACTOR:
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Signature and Printed Name of Individual
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Signing this Lien Waiver
WITNESS:
Name: Title:
Dated:
CONTRACTOR'S WAIVER OF CLAIMS AGAINST OWNER AND ACKNOWLEDGMENT OF FINAL PAYMENT
Commonwealth of Massachusetts Date: COUNTY OF
OWNER: CONTRACTOR: PROJECT:
1. Original Contract Amount: $
2.
Approved Change Orders: $
3.
Adjusted Contract Amount: $
4.
Sums Paid on Account of Contract Amount: $
5.
Less Final Payment Due: $
The undersigned being duly sworn hereby attests that when the Final Payment
Due as set forth above is paid in full by Owner, such payment shall constitute payment in full for all labor, materials, equipment and work in place furnished by the undersigned in connection
with the aforesaid contract and that no further payment is or will be due to the undersigned.
The undersigned hereby attests that it has satisfied all claims against it for items, including by way of illustration but not by way of limitation, items of: labor, materials, insurance, taxes, union benefits, equipment, etc. employed in the prosecution of the work of said contract, and acknowledges that satisfaction of such claims serves as an inducement for the Owner to release the Final Payment Due.
The undersigned hereby agrees to indemnify and hold harmless the Owner from and against all claims arising in connection with its Contract with respect to claims for the furnishing of labor, materials and equipment by others. Said indemnification and hold harmless shall include the reimbursement of all actual attorney's fees and all costs and expenses of every nature, and shall be to the fullest extent permitted by law.
The undersigned hereby irrevocably waives and releases any and all liens and right of lien on such real property and other property of the Owner for labor or materials, or both labor and materials, or rental equipment, appliances or tools, performed or furnished by the undersigned, and anyone claiming by, through, or under the undersigned, in connection with the Project.
The undersigned hereby releases, remises and discharges the Owner, any agent of the Owner and their respective predecessors, successors, assigns, employees, officers, shareholders, directors, and principals, whether disclosed or undisclosed (collectively "Releasees") from and against any and all claims, losses, damages, actions and causes of action (collectively "Claims") which the undersigned and anyone claiming by, through or under the undersigned has or may have against the Releasees, including, without limitation, any claims arising in connection with the Contract and the work performed thereunder.
Notwithstanding anything to the contrary herein, payment to the undersigned of the Final Payment Due sum as set forth above, shall not constitute a waiver by the Owner of any of its rights under the contract including by way of illustration but not by way of limitation guarantees and/or warranties. Payment will not be made until a signed waiver is returned to Owner.
The undersigned individual represents and warrants that he/she is the duly authorized representative of the undersigned, empowered and authorized to execute and deliver this document on behalf of the undersigned.
Signed under the penalties of perjury as a sealed instrument as of this _ day of
----------
Corporation By:
Name:
Hereunto duly authorized
COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK
On this _ day of , 20_, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it as for
, a corporation/partnership voluntarily for its stated purpose.
NOTARY PUBLIC
My Commission Expires:
EXHIBIT G
FORM OF LETTER OF CREDIT
BENEFICIARY: ISSUANCE DATE:
------
200
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
ACCOUNTEE/ APPLICANT: MAXIMUM/AGGREGATE
CREDIT AMOUNT: US$
_ USO:
--------
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 and
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_1100
US Dollars (US $
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available by your draft(s) drawn on ourselves at sight accompanied by:
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Your statement, signed by a purportedly authorized officer/official certifying that the Beneficiary is entitled to draw upon this Letter of Credit (in the amount of the draft submitted herewith) pursuant to the Lease (the "Lease") dated by and between , as Landlord, and , as Tenant,
together with the original copy of this Letter of Credit and any amendments thereto which have been accepted by you.
Draft(s) must indicate name and issuing bank and credit nwnber and must be presented at this office.
You shall have the right to make partial draws against this Letter of Credit, from time to time.
This Letter of Credit is transferable at any time and from time to time without cost to Beneficiary.
Except as otherwise expressly stated herein, this Letter of Credit is subject to the "Uniform Customs and practice for Documentary Credits, International Chamber of Commerce, Publication No. 500 (1993 Revision)."
This Letter of Credit shall expire at our office on , 200_ (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 period s 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 you at the address specified in this Letter of Credit (or at such other address of which you may have notified us in writing) and the Accountee/ Applicant in writing by registered mail (return receipt) that we elect not to consider this Letter of Credit extended for any such additional one (1) year period.
EXHIBIT H
BROKER DETERMINATION OF ANNUAL MARKET RENT
Where in the Lease to which this Exhibit is attached provision is made for a Broker Determination of Annual Market Rent, the following procedures and requirements shall apply:
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1.
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Defi nition of Annual Market Rent. "Annual Market Rent" shall mean the annual fair market rental value of (i) the RFO Premises in connection with Tenant's Right of First Offer under Section 2.1.2 of the Lease, or (ii) the Premises in connection Tenant's exercise of its extension options under Section 8.20 of the Lease, as applicable
.
Such annual fair market rental value determination (a) may include provision for annual increases in rent during said Extended Term if so
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determined, (b) shall take account of, and be expressed in relation to, the payment in respect of taxes and operating costs and provisions for paying for so-called tenant electricity as contained in the Lease, (c) shall be based on comparable office use within the Market Area and (d) shall take into account all relevant factors as determined by the brokers selected in accordance with the provisions hereof.
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2.
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Tenant's Reg uest. Tenant shall send a notice to Landlord in accordance with Sections 2.1.1, 2.1.2 or 8.20 of the Lease, as applicable, requesting a Broker Determination of the Annual Market Rent, which notice to be effective must (i) make explicit reference to the Lease and to the specific section of the Lease pursuant to which said request is being made, (ii) include the name of a broker selected by Tenant to act for Tenant, which broker shall be affiliated with a major metropolitan Boston commercial real estate brokerage firm selected by Tenant and which broker shall have at least ten ( l 0) years experience dealing in properties of a nature and type generally similar to the Building located in the Market Area, (iii) state Tenant's determination of Annual Market Rent, and (iv) explicitly state that Landlord is required to notify Tenant within thirty (30) days of an additional broker selected by Landlord, together with Landlord's determination of Annual Market Rent.
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3.
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Landlord's Response. Within thirty (30) days after Landlord's receipt of Tenant's notice requesting the Broker Determination and stating the name of the broker selected by Tenant, Landlord shall give written notice to Tenant of Landlord's selection of a broker having at least the affiliation and experience referred to above and Landlord's determination of Annual Market Rent.
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4.
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Determination by Landlord's Broker and Tenant's B
roker. Landlord's broker and Tenant's broker shall have thirty (30) days to agree in writing on whether Landlord's determination of Annual Market Rent or Tenant's determination of Annual Market Rent more closely reflects the actual Annual Market Rent. Upon
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such agreement, the determination so chosen shall be the Annual Market Rent.
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5.
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Selection of Third B
roker.
If
Landlord's broker and Tenant's broker are not able to agree within such thirty (30) day period, then within ten ( 10) days thereafter the two (2) brokers shall select a third such broker also having at least the affiliation and experience referred to above.
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6.
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Determination by Third B
roker. Within thirty (30) days after the selection of the third broker, the third broker shall decide in writing whether Landlord's determination of Annual Market Rent or Tenant's determination of Annual Market Rent more closely reflects the actual Annual Market Rent. Upon such decision, the determination so chosen shall be the Annual Market Rent.
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7.
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Costs. Each party shall pay the costs and expenses of the broker selected by it and each shall pay one half (1/2) of the costs and expenses of the third broker.
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;;::
EXHIBIT 1-3
BUILDING SIGNAGE CONCEPTUAL PLAN
EXHIBIT
J
ROOF LOCATION FOR EMERGENCY GENERATOR
EXHIBIT K
CITYPOINT PROJECT
EXHIBIT L
NOTICE OF LEASE
Notice is hereby given, pursuant to the provisions of Massachusetts General Laws Chapter 183, Section 4, of the following Lease:
LANDLORD: TENANT:
DATE OF EXECUTION:
ORIGINAL TERM COMMENCEMENT DATE:
DESCRIPTION OF LEASED PREMISES:
ORIGINAL TERM:
EXTENSION RIGHTS:
EXPANSION RIGHTS:
BP Fourth Avenue, L.L.C., a Delaware limited liability company Phase Forward, Inc., a Delaware corporation
February _, 2008
The earlier of (a) the Substantial Completion Date (as determined in accordance with Section 3.3(D) of the Lease) (but in no event prior to December 1, 2008), and (b) that date that Tenant commences occupancy of any portion of the Premises for the Permitted Use.
165,129 rentable square feet located on the first
(1st),
second (2"d), third (3rd), fourth
(4th)
and sixth (6th) floors of the building situated at 77 Fourth Avenue, Waltham, Massachusetts (the "Building")
and more particularly shown on Exhibit A to the Lease. For legal description of the property, see Exhibit A attached to this Notice of Lease.
One Hundred Twenty ( 120) calendar months plus the partial month, if any, immediately following the Rent Commencement Date (as that term is defined in Section 1.1 of the Lease).
Two (2) consecutive options to extend the Original Term for an additional five (5) years each.
Tenant has certain rights of first offer to lease any available space in the Building, all as more particularly described in Section 2.1.2 of the Lease.
The foregoing is a summary of certain terms of the Lease for purposes of giving notice thereof, and shall not be deemed to modify or amend the terms of the Lease. For Landlord's title to the Property, see deed recorded with the Middlesex South District Registry of Deeds in Book 32362, Page 171.
Executed as a sealed instrument on this
day of February, 2008.
WilNESS: LANDLORD:
BP FOURTH AVENUE, L.L.C.,
a Delaware limited liability company
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By:
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Boston Properties Limited Partnership, its sole member
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By:
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Boston Properties, Inc. its general partner
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By:
Name:
Title:
TENANT:
WllNESS: PHASE FORWARD, INC.,
a Delaware corporation
By:
Name:
-
Tit1e:
COMMON WEALTH OF MASSACHUSETTS )
)
COUNTY OF
)
On this _ day of February, 2008, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, which were , to
be the person whose name is signed on the preceding or attached document and acknowledged to me that (he)(she) signed it voluntarily for its stated purpose, as
------------for Boston Properties, Inc., the sole general partner of Boston Properties Limited Partnership, the sole member of BP Fourth Avenue, L.L.C.,
(Official Signature and Seal of Notary) My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS )
)
COUNTY OF
)
On this _ day of February, 2008, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, which were , to
be the person whose name is signed on the preceding or attached document and acknowledged to me that (he)(she) signed it voluntarily for its stated purpose, as
------------
for Phase Forward, Inc.,
(Official Signature and Seal of Notary) My Commission Expires:
1572495.1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
AGREEMENT OF SUBLEASE
between
PRICEWATERHOUSECOOPERS PRTM MANAGEMENT CONSULTANTS, LLC,
Sublandlord and
CARE.COM, INC.,
Subtenant
Premises:
Entire 5th Floor 77 Fourth Avenue
'
Waltham, MA 02451
WILK
AUSLANDER
LLP
1515 Broadway,
43rd
Floor New York, New York 10036
755310v6
E
XECLIT
I
ON
VERSIO
N
TABLE OF
C
ONTE TS
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1.
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Subleasing
of Premi
ses
2
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2.
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Term;
Use
of Premis
es
2
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5.
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Ope
ra
ti
ng
Expen
s
es 4
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6.
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E
l
ec
tricity
;
Additional Service
s
7
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7.
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Addit
ional Ren
t;
Late
C
h
arges;
P
ayme
nt
of
R
enta
l.
9
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8
.
Subordination
to and In
co
rp
oration
of th
e
Lease
.........................................................
..
.
.1
O
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9.
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Al
t
erations;
Subtenant
's
lni
t
ial
Alterations
11
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10.
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Covenants with
Resp
ect
to
th
e
Lease
14
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11.
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Services
and Repairs 15
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13.
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Termina
tion
of Lease
17
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14.
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Sub
l
eas
e
, Not
Assignment
1
7
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15.
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Dam
age,
De
struc
ti
o
n
,
Fire
an
d
o
th
e
r
Casualty;
Condemnation
1
7
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20.
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Delivery
of the Premi
ses
20
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21.
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Co
nsent of Landlord to th
is Su
bl
ease
21
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22.
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Assignment,
Subletting
and Mortgaging
22
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23.
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Personalty;
Per
sona
l
Prop
e
rty T
ax
es
24
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26.
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Surr
en
der
/Restora
tio
n 25
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i
i55310v6
EXECU
TI
ON
VERSION
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29.
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WAIYER OF JURY TRIAL
A};'D
COUNTERCLAIMS: 27
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30.
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Secu
rity Deposit.
28
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34.
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Building An1enities 31
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3S. Member
Limi
t
ation
of Liability 31
EXHIBIT A - COMMENCEMENT DATE
AGREEMENT 34
EXHIBIT B -PROPOSED
SPACE
PLAN
36
EXHIBIT
C
- REDACTED
LEASE 37
EXHIBIT D
-FORM
OF LETTER OF
CREDIT 38
11
7553
10v
6
E
xecu
t
i
on
VERSION
AGREEMENT OF SUBLEASE (this
"
S
ublease"),
made
as of
th
e
28
1
h
da
y
of July,
2014
,
between
PRICEWATERHOUSECOOPERS
PRTM MANAGEMENT CONSULTANTS,
LLC
,
a
Delaware limited liability
company,
having
an office
at
4040 West Boy Scout Boulevard, Tampa, FL 33607
("Sublandlord"),
and
CARE.COM,
INC.
,
a De
laware
corporation,
h
av
ing
an office and
place of business
at 201 Jones
Road
,
Waltham, MA 02451
("Subtenant").
WHEREAS, by that certain
Office Lease
dated as of June 1
,
2007 (the
"Lease"),
BP
Fourth Avenue,
L.L.C.
(
"
Owner")
leases
to
Sublandlord
,
successor-in-interest
to PRTM
Management Consultants,
Inc.,
f/k/a/
Pittiglio Rabin Todd
&
McGrath, Inc.
("Original Tenant"),
the
entire
5th
floor containing approxima
te
ly
36,174
rentable
square feet of space (the
"
Premises")
in the building
located at
77
Fourth
Avenue, Waltham, MA
02451
(the "Building"), as
the
Premises
i
s
more particularl
y
described in
the
Lease
and
shown on Exhibit
D
attached thereto;
WHEREAS
,
Sublandlord desires to
s
ublease to Subtenant
,
and Subtenant
desires
t
o
sublease from
Sublandlord, the
entire
Premise
s,
on
the terms and
conditions contained
herein.
NOW,
THEREFORE, in
consideration of
the mutual covenants herein
contained,
it is mutually
agreed
as follows:
1.
Subleasing of Premises.
Sublandlord hereby
su
bl
eases
to Subtenant, and Subtenant
hereby
subleases from Sublandlord,
the
entire
Premises,
upon
a
nd
subject
to
the terms
and conditions
hereinafter
set forth.
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2.
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Term;
Use
of
Premises.
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1.1.
The term of this Sublease
(the
"
T
erm")
s
hall
commence on
the
later to occur of (i)
the date upon
which the Consent
(hereinafter defined)
shall
be
executed
and delivered
to
Sublandlord;
(ii) Sublandlord shall
make exclusive pos
session
of
the Premises
available
to Subtenant; and
(iii)
Januar
y
1
, 2015
(the
later
of
s
uch three
(3)
date
s
being the
"Commencement Date").
The Term shall
expire
on
March
30, 2019 (the
"
Expiration
D
ate"),
at
12:00 noon, or on such
earlier date
upon
which
the Term
shall
expire
or be
canceled or terminated pursuant to any of the
conditions or
covenants of
this
Sublease
or
pursuant to law.
Promptly following
the
Commencement
Date
,
Sublandlord
and Subtenant shall enter
into
an agreement confirming the Commencement
Date in the form
attached hereto as
Exhibit
A
;
provided,
however, that
failure to execute and
deliver
such
agreem
e
nt
shall not affect
the
validity of the Commencement Date.
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1.2.
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The
Pr
e
mise
s
shall
b
e
u
se
d
for general office use and
for
no other
purpose
.
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2
755310v6 EXECUTION VERSION
3
.L Su
btenant
shall
pay
to Sub
1and
l
or
d, in
currency
v'v'l1ich
a
t the tim
e of
payment
i
s
legal tender
for
public
and
private
d
ebts i
n
the U
nited
States
of
America
,
as fixed rent (the "Fixed
Rent
")
during the
Tem1,
on
the
first
(
1
st
)
day of
eac
h
mont
h
du
rin
g
t
he
Tem1:
a)
for
the
period
commencing
on
the Comm
ence
ment Dat
e
and
endin
g
on December 31, 2015,
Nin
e
Hundred Fifty-Six
Thou
san
d
E
ight Hund
re
d Two
and 30/100
D
o
ll
a
r
s ($956,802.30)
per
annum
,
payable in
equal
mo
n
thl
y
i
nstall
men
ts
of
Se
ve
nt
y-Nine
Th
o
u
sand Seve
n Hundr
ed T
hirt
y
-
Three and
53
/
100
D
oll
ars
($79,733.53);
b)
for the
period
commencing on January
1,
2016 and
endin
g
on
Decembe
r 31,
2016,
N
ine
Hundred
Ninety-Two Thousand
Nin
e
Hundred
S
even
ty-Six and
30/100
D
o
ll
ars
($992
,
976.30) p
e
r
annum,
paya
ble
in
eq
ual monthl
y
in
sta
llment
s of Eig
hty-Tw
o
Thousand Seven Hundred
F
orty-E
i
ght
and
3
/
1
00
D
ollars
($82,748.03);
c) for
the period
comme
ncing
on January
1,
2017 and
en
d
i
ng
on
Dece
mber
31,
2017,
One
Million
Twenty-Nine Thousand
O
n
e
Hundred Fifty and
30/
100 Doll
ars
($1,029,150.30)
,
payable in equal
mon
t
h
ly
installm
ents o
f Eighty-
Five
Thou
sand
Seven
Hun
dred
Sixty-Two
and
53
/
10
0
D
o
ll
ars ($85,762.53);
d)
for the period commencing on January
1,
2018 and ending on
Dec
ember
31, 2018,
On
e
Million
Si},,1_ :y-Five
Thou
sand
Thre
e
Hundred
Tw
en
ty-Four and
30/
100 D
o
ll
ars
($1,065,324.30),
payable
e
in
equa
l
monthly
i
nsta
ll
ments
o
f Eig
ht
y
-
Eigh
t
Thousand
Seve
n
Hundred Seventy-Seven and
3
/
100 D
o
ll
ars
(
$88
,
777.03); and
e)
for
the period
comme
ncin
g
on January
1
,
2019 and
end
ing
on the
Exp
iration
Date, Two
Hundred
Seventy-Five
Thou
san
d
Three Hundred Seventy-Four and
58/
100 D
o
ll
ars
($275,374.58),
pay
ab
l
e
in
eq
ual
monthly installments
o
f
Ninety-One
Th
ousand Seve
n Hundr
ed Nine
t
y
-On
e an
d
53/100 Dollars ($91,791.53).
3.2. Notwithstanding
the
foregoing
,
upo
n i
ts exec
ut
io
n
of this Sublease, Subtenant has paid to Sublandlord
Seventy
-
Ni
n
e Thousa
nd Se
ven
Hundred Thirty-111fee
and 53/100
Doll
ars ($7
9
,
73
3.53),
by
check, subject to
co
lle
ct
ion
,
in
payment of the first
mo
nthly install
m
ent o
f
Fixed Rent due
he
reunde
r.
4.1.
For each
Tax
Year
(as
herein
afte
r defined)
or
porti
on
thereof after
the
S
ublea
se
Base
Tax
Year
(as
hereina
fter
defined) during
th
e
Term
,
Subtenant
sha
ll
pay to
S
ublandlord
, as add
iti
o
nal
rent,
t
he
amount (the
"
S
ubl
ease
Tax Pa
y
ment
") equa
l
to
Subtenant's Percentage
(as
hereinafter defined)
o
f
th
e
amount by
which
Landlord's
Tax Expenses
Allocable to
the Premi
ses
(as
su
ch t
erm
is defin
ed
in Section
2.7(ii) of
the
Lease)
pa
yab
l
e
by Sublandlord
for suc
h
Tax
Year,
as
detem
1ine
d
by
Owner
pursuant
t
o a state
me
nt ("
Owner's Tax
Statement") delivered
to Subla
nd
lord
in
accorda
n
ce
with
Sect
i
on
2.7 of
th
e Lease,
exceeds Landlord
'
s
Ta',<
Expenses
Allocable
to
the Premi
ses payable
b
y Sub
l
and
lor
d (
"
Sublease
Ba
se
Taxes") for
the
Ta'.{ Year
co
mm
e
n
c
in
g
on July
1,
201
4
and e
ndin
g on
June
30
,
2015 (hereinafter
refe
rred to
as
the
"
Sublease Base
Tax
Y
ear").
3
7553
l0v6 EXECUTION
VERSION
4.2.
Within a reasonable time after
rece
ipt
of Owner's
Tax
Statement, Sublandlord
sha
ll
provide to Subtenant a
wr
itten
statement (a
"
S
ublease Tax
Statement
"
),
which
shall
be
based on the
Owner
's
Tax
Statement
for
the current
or
next
suc
ceeding
Tax:
Year (if
theretofore
issued
by
Owner, a copy
of
which
shall
be
pro
vided
to Subtenant), estimating
t
he
Sublease
Tax
Paymen
t
for
s
uch
Ta'<
Year
.
Subtenant shall pay to Sublandlord on
the
first (1
5
1
day
of each month
during
su
ch
Tax
Year
after the Sublease Base
Ta-..;_
Year,
a
n
amount
equal
to
one-twelfth
(1/12th)
of the Sublease
Expense Payment shown on
the
Sublea
se
Tax
Statement.
If
)
Subl
and
lord
shall
be
required
to pa
y
any
installment
of
Land
lord's
Tax
Expe
ns
es
Allocable
to the
Premises on any date or
dates
other than as presently
required
by the
L
ease,
then
Sublandlord
shall
notify Subtenant and
the due
date
of the installments of
the Sublease Tax
Paym
ent
shall
be
corr
es
pondingly accelerated or
revised so
that the
Sublease Tax
Paym
ent (
or
the applicable installment
thereof) is
due on
the
date
the corresponding pa
yment
i
s
due
to Owner.
4.3.
If,
at
any time during
a
Tax Year, Sublandlord receives
a
revi
sed
Owner's
Tax
Statement,
Subland
lo
rd
shall
deliver
a revised Sublease
Tax Statemen
t
(and
pro
v
ide
a
copy of
s
uch
revised Owner's Tax Statement
to
Subtenant) to correspond vet such revised Owner's
Tax
Statement,
and
Subtenant
shall, no
later
than
fifteen (15)
days thereafter, pay to Sublandlord
an
amount
equal
to
the
amount of
any
underpayment
of
the
Sublease
Tax
Pay
men
t
•with
respect
to such
Tax
Year and,
in the event of
an overpayment,
pro
vided
Subtenant
i
s
not in default
hereunder following notice
and
the expiration
of
any applicable
cure peri
od,
Sublandlord
shall
credit against the next installment(s) of
Sublease Tax
Payment hereunder, th
e
amount of Subtenant's overpayment.
4.4.
Only
Owner
shall be
eligible to in
s
titute
tax
reduction or other
proceedings
to
reduce the
assessed valuation of
the
Building. Sh
oul
d Own
e
r be
successful in any
such
reduction proceedings
and obtain
a
rebate
for
any
Tax.
Year
for
which Subtenant
ha
s
paid
installments of
the
Sublease
Tax Paymen
t,
provided
Subtenant is
not
in
default hereunder
following
notice and
the
expiration of any
applicable
cure
period, Sublandlord shall
credit
against
the
next
installment(s)
of
Sublea
se
Tax
Payment(s
)
hereunder
a
n
amount equal
to
Subtenant's Percentage
of
any such rebate
for
which
Sublandlord shall receive
a
credit from
Owner.
4.5.
"Tax
Year
"
shall mean each
twelve
(12) month period or portion thereof
commencing
on
July
1
and ending on
June
30
during the Term
hereof,
or
suc
h
other
fiscal
period
as
the applicable
taxing
authority
may determine.
4.6.
For
purposes
of
computing the
Sublease
Ta
x
Paym
ent
under this
Article 1_,
the
Sublease Exp
ense
Payment
(as
hereinafter defined) under
Article S
hereof, and the
Sublease Electricity
Payment (as
hereinafter defined)
under
Article 6
he
reof,
the
t
e
1m
"Subtenant's
Percentage"
shall mean
100%
.
5.1.
For each calendar year or
p
ort
ion
thereof
during
the
Te1m
after the Sublease
Base
Expense Year (as
h
ere
ina
fter
defined), Subtenant shall pay
to
Sublandlord,
as
additional rent (the
"
Sublease
Expense P
ayment"),
the amount equal to Subtenant's Percentage
4
7553
!0v6
E:X'ECUTION
VERSJON
of
t
h
e a
mo
u
nt
by which
Op
erati
n
g Expenses
Allocable
to
the
Pr
em
i
ses (as
suc
h
te
1m
i
s
defined in Section 2.6 of
the Le
ase)
p
ayable
by Sublandl
o
rd for such calendar
year, as
d
ete
rmi
ned
b
y
Owner pursuant
to
a statement (
"
Owner’s
Expense
Statement
")
delivered to
Sub
l
andlor
d in
acco
rd
a
n
ce
with
Section
2
.6
of
th
e
Lease,
exceeds
the Operating
Expenses Alloca
b
l
e
to the
Premi
s
es
payable
by
Sublandlord
for
t
he
calendar year commencing
on
Janu
a
ry
1
,
20
1
4 and
e
n
d:iJ.
1
g
on December
31,
2014 (hereinafter referred to
as the "
Sublease Base Expense Year
").
5.2.
Within
a
r
easona
bl
e
tim
e
after
receipt of Own
er's
Expense Statement, Sublandlord shall
provid
e
to
Subtenant
a
written statement (a
"Sublease
Expense
Statement"),
·
which Sublease
Expense Stat
em
ent
shall
be ba
sed
upon Owner's
Expense Statement (and
a
copy ther
eo
f provided
t
o Subtenant)
,
e
st
imatin
g
th
e
Sublease
Expens
e
Paym
e
n
t
for such
calen
da
r
year (the
"
Estimated Sublease Expen
se
Payment
"). S
ubtenant
shall
p
ay
t
o
Sublandlord on
t
he
first
(1
s
t)
day of each
month
during
e
ac
h c
a
l
endar ye
ar
after the Sublease Base
Ex
p
ense
Year, an amoun
t
equal
to one-
t
welfth
(1/12th)
of the
Es
t
ima
ted
Sublease
Expen
s
e
Pa
y
ment for
suc
h
cale
nd
ar yea
r.
If
Sublandlord furnishes
a
Sublease
Expen
se
Sta
te
m
en
t
for a calendar year
fo
ll
owi
ng the
co
mme
ncemen
t
of
such
cal
e
nda
r year,
then
(x)
until the
fir
s
t day of
th
e
month
fo
llowing
the
month
in
which
s
uch
Sublease Expense
S
t
atement i
s furnis
h
e
d
to Subtenant, Subtenant shall
continue to
pay to Sublandlord an amount
equal to the
monthly amount of
the
Estima
t
ed
Sublease
Expen
se
Payment payable by Subtenant
to Sublandl
or
d
for
the p
ri
o
r
calendar year; (y) promptly
after the Sublea
se Expense
St
a
tement is furnished
to
Subtenant, Sublandlord
sha
ll
give notice
to Subtenant
stating whether
the amount of the Estimat
e
d
Sublease Expense Payment previously
paid by
Subtenant to Sublandlord
for the current calend
ar
year was greater or
l
ess
than
the
installments
o
f
the
Estimated
Sublease
Expense P
ayment
t
o
b
e
paid for
the
current
calendar
year, and
(a
) if th
ere
shall be
a
deficiency,
Subte
nan
t
s
hall
pay
th
e
amount
there
of
within fifteen (15) busin
ess
days
a
ft
e
r
Sublandlord
deli
vers such
Sublease
Ex
pense
Statement
to Subtenant
,
or
(b)
i
f
there sha
ll
have been an overpayment, pro
v
id
e
d
S
ubtenant i
s
not
in
d
efa
ult hereund
er
followi
ng
notice
an
d
the ex
piration of an
y
ap
pl
i
cable
cure period, Sublandlord
s
hall
c
redit
agains
t
t
he nex
t in
stallments
of
Sublea
se
Expense Payment the amount
of Su
bt
e
nant
's
o
v
erpa
y
ment. On
or
before
t
h
e
first
da
y
of
th
e
month following
th
e
m
on
th in
w
hich
t
h
e
Sub
l
e
ase
Expense Statement
is
furni
s
hed
to Sub
te
nan
t,
and
m
on
th
ly
thereaft
e
r
throughout
the
remainder of
th
e calendar yea
r,
Subtenant shall pay to Sublandlord an amount
e
qu
a
l
to one-twelfth (1/12th) of
th
e Estimate
d
Sublease
Expens
e
Paym
e
nt
s
h
own
on the
most
recent
Sublease
Expense S
ta
t
ement.
If
Sublandlord
receives
a revised Owner's Expense Statement,
Sublandlord shall
within a commercially
reasonable
time furnish to
Subt
e
nant a r
evise
d Sublease Expense Stat
eme
nt
(and provide a
copy of
such
revi
se
d
Owner's Expense Statement
to Subtenant, and th
e Es
timat
e
d
Sublease
Expense Payment
for
such
calendar year
shall
be adjusted
in the same
manner
as
provided in
the
preceding
sen
te
nce.
5.3.
At
any
ti
me
during
o
r
after
each
calendar
year,
includin
g,
without limitation,
the
Sublease
B
ase
Expens
e
Year,
Sublandlord shall
fu
rn
i
sh
t
o
S
ubt
e
nant an annual statement or statements (the
"
Annual
S
tatement
")
setting
forth th
e amo
u
n
t
of
Opera
t
ing
Ex
p
enses
Allocable
to
th
e
Premi
s
e
s
pa
ya
ble
by Sublandlord
to Owner
during such
ca
l
endar year, which
Annual Statement
s
hall be pr
epared
ba
se
d
upon Owner's annua
l s
tatem
ent
pursuant
to
Section 2.6 of the
Leas
e,
if
an
y,
r
eceived
by Sub
landlord from
Owner (a
copy
o
f
wh
ic
h
sha
ll
be
prov
id
ed
to
Subtenant)
relat
ing
to
annual
Opera
t
ing
Expenses Allocable
to the
Premises payable by Sub
landlord for
the
pr
ece
d
ing
calendar
year
.
If for
any calendar
year
following
t
he
Sublease
Base E
x
p
e
nse
Yea
r,
the
Annua
l
S
t
atem
e
nt
s
hows
that
the
Estimated Sublea
se
Exp
e
nse Payment (o
r
ot
he
r
paymen
t
s) for such calendar
y
ear exceeded the
Sublea
se
E
x
pen
s
e Pa
y
men
t
which
s
hould have been
pa
i
d
for s
u
ch calendar
y
ear
,
provided Subtenant
i
s
not in d
efa
ult
h
ere
under
following
notice
and
the expiratio
n
o
f
any applicable cure
period,
Sublan
d
lord
s
hall
credit against the next
installment(s)
of
t
h
e
S
u
blease Expense Payment
payable
hereunder
,
the amount of such excess.
If
the
Annual Statement for such
calendar
year shows
that the
Estimated Sublease Expense
Payment
for such
calendar
year
was less than the Sublea
s
e Exp
e
nse
Payment (or other
payments) which
should have been p
a
id for
such
calendar year,
Subtenant shall
pay to
Sublru1dlord the
amount of
such
d
e
ficiency within fifteen (15) days
after
Sublandlord deliv
e
rs the
Annual Statement.
5.4.
In the
eve
n
t
that
Subt
e
nant
reasonably believe
s
tha
t
an Annual Statement furni
s
hed
to Subtenant
her
e
und
er c
ont
a
ins an
e
rror in calculating
the
Subl
e
a
s
e Expense Payme
n
t, or
if
Subtenant reasonably
d
i
s
putes the amount of any Sublease Expense Pa
y
ment
due h
e
reunder
,
Subtenan
t s
hall notify
Sublandlord
in
writing (a "
Dispute Notice
.
") within one hu
n
dr
e
d
eighty
(180) days of
receipt
of s
u
ch Ann
u
al Stat
e
ment,
vvi
t
h
time
being of the essence
,
and pro
v
ide
a
reasonable
basis for
such alleged error or dispute. Upon
receipt
of such Dispute Notice, provid
e
d
(i) Subtenant
is not in
default
hereunder
beyond
any applicable
notice and cure period,
(ii)
Subtenant
has provided
Sublandlord with a reasonable basis for the alleged error or
dispute,
(iii)
Sublandlord
believes, in it
s
rea
s
on
a
ble judgment, that a basis
for the alleged error or dispute claimed by
Subtenant exists,
and (iv) Subtenant continues
to pay the disputed
Sublease Expense Payment(s)
to
Sub
landlord in
accord
a
nce with
the terms of this Sublease pendin
g
the resolution o
f
such dispute (which
payment
shall
be
without
prejudice to
Subtenant'
s
cla
i
m)
,
then
Sub
l
andlord agrees, within a reasonable time thereafter,
to attemp
t
to correct
t
he
alleged error
in
the Annual Statement, or if Sublandlord
i
s
unable to correct
the alleged
error, Sublandlo
r
d
agrees to not
i
fy Owner and attempt to
re
s
olve
th
e
dispute or if S
u
blandlord
is un
a
ble
t
o do so
,
exercise it
s
righ
t
to ex
a
mine Owner's
books and records with respect
to
the error
in
th
e
Annua
l
Statement or th
e
disputed Sublease Exp
e
nse Pa
y
m
e
nt
in
accor
d
ance with Sect
i
on 2.6
.
1
of the Lease.
5.5.
In
the event that Sublandlord's e
x
amination of Own
e
r's book
s
and records re
v
eal
s
an overpayment
by
Subtenant o
f
the Sublease
Expense Paymen
t
(s)
in
qu
es
tion
,
and pro
v
ided Sublandlord
actually
re
c
ei
v
e
s
a
refund
or
credit
of
payments
of Operating Expen
s
es Allocable to
the Premises
from Owner
a
ttributable to
such
Sublease Exp
e
nse Pa
y
ment(s), Sublandlord shall
credit against
the ne
x
t installment(s)
of Sublease
Expense Payment(s) and additional
rent due hereunder
following Sublandlord's
actual receipt of
such refund or credit from Owner
an amount
equal to
the
amoun
t
of such
refund or credit
attributabl
e
to
Sublease
E
xp
e
nse Payment(s)
made by Subt
e
nant for such calendar year
to
which the Annual Statement
in
que
s
tion relates,
after
deducting t
h
erefrom
the reasonable
costs and expens
es,
including r
easo
nable
attorney's and account
a
nt
'
s
f
ees
,
incurred by
Sublandlord in conn
e
ction with such
ex
amination
,
including
,
withou
t
limitation
,
if Sublandlord conducts su
c
h
ex
amination using partners or employees of Sublandl
o
rd
,
the r
e
gular fees and
disbursement
s
of Sublandlord's partners or
emp
l
o
y
ees
(whether on an
hourly
or fixed fee
basis) in
conduc
t
ing
s
uch
examination
In
th
e
event
that
Subland
l
ord's examinati
o
n
does
not result
in any
refund
or credit
,
then Subt
e
nant
shall bear all such co
s
t
s
and exp
e
nses
t
o the extent tha
t
Subtenant request
e
d that Sublandlord conduct such examinat
i
on
.
In
t
he event that
Sublandlord's
examin
a
tio
n
docs
r
e
sult
i
n a r
e
fund or
credit, Sublandlord
sh
a
ll
u
s
e commercially
reasonable
efforts to obt
a
in
such refund
6
75
53
tov
6
EXE
C
UTION VERSION
or credit
from
Owner, provid
ed
that,
subject
to
Article 11
hereo1:
Sublandlord shall
ha
ve
no
liabilit
y
to Subtenant for Owner's
failure
or
r
efusal
to provid
e
such
refund
or credi
t
to Sublandlord.
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6.
|
Electricity;
Additional
Services.
|
6.1.
Sublandlord
shall
not supply
or
provide any
electricity
or other utilities
or
services to the Premises.
Subtenant
acknowledg
es t
h
a
t electricit
y,
utiliti
es
, HVAC and
certain
other
serv
ices to the Premi
ses are
provided by
Owner
pursuant
to Sections 2.8
and
4.1 of
the Lease
(collectively,
"
S
ervices").
Subtenant shall
pay all
bills
for
Services used or consumed
in the Premi
ses
during
the
Term hereof as
and
when due,
including
,
without
limitation
,
pur
s
uant to Section
s
2.8 and
4.1
of
th
e
Lease. Subtenant shall also pay
any
and
a
ll
o
ther costs
,
charges or
expenses
including,
withou
t
limitation, any inter
es
t or late charges result
i
ng from Subtenant
's
failure to
pay
any such amount when the same are due and payable hereunder,
which are
attributable to, or incurred in
connection with, Subtenant's
use and
occupancy
of the Pr
e
mises and the p
rov
is
io
n of Services.
6.2.
For
each calendar year or portion
thereof during
t
he Term
,
Subtenant
shall
pay to
Sublandlord,
as additional rent
(x)
Subtenant
's
Percentage
of all
pay
ments requi
red
to be made by
Sub
l
andlord
for
Tenant's Electricity
Payment pursuant to
Section
2.8 of the Leas
e,
and
(y)
any
and all
other costs
,
charges or expenses including, without limitation, any interest
or
late charges incurred by Sublandlord a
s
a
result of
Subtenant
not paying
any
s
u
ch
sums
hereunder to Sublandlord
when
the
same are due and
payabl
e
her
eu
nder,
as determined
under the pro
vis
i
o
n
s
of the
Lease,
w
hich
are attributable to, or incurred
in connect
io
n
with,
Subtenant's
u
se
and occupancy of
th
e
Premis
es
and
th
e
provision of
serv
i
ces
and
electri
c
ener
g
y thereto (collectively, the
"
Sublease
Electricity
Payment
"
).
6.3.
Within
a reasonable time after receipt
of
a
sta
tement from
Owner
(
'
'Owner's
Electricity
Estimate S
tatement")
containing
Owner
's
estimate
of
Tenant's
Electricity
Payment for such
calendar
year pursuant
to
Section 2.8.4
of
the
Lease
(a copy of
wh
ic
h
sha
ll
be provided
to
Subtenant), Sublandlord shall
provide
to Subtenant a written statement (a
"
S
ublease
Electricity
Statement
"),
which Sublease Expense
Statem
ent sha
ll
be
based up
on a
nd
sh
all
not exceed
the amount
set forth in
the
Owner's Electricity Estimate
Statement
,
estimating
th
e
Sublease Electricity
Paym
en
t for
such calendar
year
(the "Estimated
Sublease
Electricity
Payment'
')
.
Subtenant shall pay
to Sublancllo
rd
on
the first
(1st)
day of
each month during such
calendar year
an amount
equal
to one-twelfth
(1/12th)
of the
Estimated
Sublease
E
lectricity Payment.
If
Sublandlord
furnishe
s
a
Sublea
se
Electricity
Stateme
n
t
for
a
calendar year following
the
commencement of
suc
h
calendar
year,
then
(x)
until the
first
da
y
of the
m
onth
following
the
month
in which
such Sublease
Electricit
y
Statement
is furni
s
hed to
Subtenant
,
Subtenant shall continue
to
pay
to
Sublandlord
an
amount equal
to th
e
monthly
amount
of the Estimated Sublease
El
ec
tricity
Payment payable
by
Subtenant
to Sublandl
or
d
for
the prior
calendar year; (y)
promptly after the
Sublease
Electricity
Statement
is
furnished
to Subtenant,
Sublandlord shall
g
ive notice to
Subtenant
stating
whether
the
amount of
the Estimated
Sublease
Electricit
y
Payment
previously
paid
by Subt
e
nant
for the
current
calendar year was
greater
or
less than the
installments of the
Est
imated
Sublease Electricity
P
ayment
to be paid
for the current calendar year, and
(a) i
f
there
sha
ll b
e
a
deficiency, Subtenant
sha
ll
pay
the
amount
thereof within
fi
fteen (
15
)
busine
ss
days
afte
r Sublandl
ord deliv
ers such
Sublease
Ele
ctricity Statemen
t to
Subtenant, or (b)
if
there
shall
h
ave been
an
overpayment,
provided Subtenant
i
s
not
i
n defau
l
t
hereun
d
er fo
llo
w
in
g
n
o
ti
ce
and
th
e ex
pi
ra
t
ion of
any applicabl
e
cure
p
e
rio
d, Sublandlor
d
shall credit
agains
t
the
ne
xt
i
nstall
m
en
t
s
o
f
Sub
l
ease
E
le
ctricity
Pa
y
m
e
nt
the
amoun
t of Su
bt
enan
t's
overpayment.
On or b
efore
the fir
st
day
of the
month following the
mont
h
in
w
h
ic
h the Subl
ease
Electricity Statement
is furnished t
o S
ubtenant, and
monthly
thereaft
er
throughout
the rem
ainder
of the cal
en
d
ar ye
ar
,
Subtenant
shall
pay to Sublan
dlor
d
an
amount
equa
l
to one-twelfth
(l/12
th) of the
Sublease Electricity
Pa
ymen
t
shown on the
most
recen
t
Sublease Electricity Statement.
If
Sublandlord
receive
s
a revised
E
lectricity
Es
tim
ate
Statement
,
Sublandlord
sha
ll
with
in a c
ommerc
i
ally
r
eason
able time
provide
to
Subtenant such
r
ev
i
se
d
Sub
le
ase
Electr
ic
it
y
Statement, and
t
h
e Es
tim
a
ted
Subl
ease E
l
ec
tr
ici
t
y
Payment for
suc
h
calendar
year s
hal
l
be adjusted in the
s
ame
manner
as
provided
in
the preceding sentence.
6.4.
Subtenant
shall
make no
alterations
to the el
ectric
or
other utility
system
serving the
Premises
of O
wner.
Notwithstanding
the
foregoing, subject
t
o
(i)
obtainin
g
Owner's
prior
consent, and
(ii)
th
e terms
of
Article 9
h
e
r
eof,
Sublandlord
shall
not unreasonably
w
i
thho
ld its
co
n
sent
to
minor Alterations (as
her
ei
naft
e
r
d
efi
n
e
d)
of the electric
syste
m
in
th
e
Premises which
d
o not a
d
ve
r
se
ly aff
ect
the
e
l
ect
ric o
r
other
utili
ty syste
m
s
in the
Pr
e
mi
ses
o
r
the Building, such as relocating electrical
outlets
in the
Premises.
6.5.
Exc
ept
to
the extent r
es
ultin
g
from
the negli
gence
or willful
misconduct
of
Subl
an
dl
ord, its ag
ents
,
employees or
contractor
s, Sublandlo
rd
shall
not
be
liable in
any
way
to Subtenant
fo
r
any
failu
re or
defect
in
the
s
u
pply or c
h
aracte
r
of any
Serv
i
ces
furn
is
h
ed
to
th
e
Premi
ses, incl
uding
, w
ith
o
ut limit
atio
n
,
electric
current furnis
hed
to
th
e
Premises
,
inc
luding
,
w
i
tho
u
t
limitati
on,
O
wne
r
's
ri
g
ht
to
discontinue
fu
rnis
hin
g
electric energy
or
other
S
e
r
vices to
t
he
Premise
s
pursuant
t
o Sec
ti
o
n 4.2(B
)
of th
e
Le
ase. S
ubtenant
cove
n
ants
and
a
g
ree
s
that at
a
ll time
s
i
ts connecte
d
electrical load shall
no
t ca
u
se a
default under the Lease
nor
exceed
the
electri
ca
l cap
acity
available
to
the Premises.
6.6.
Subtenant
shal
l
also
p
ay
t
o
Sublandlord
a
s
addit
io
n
al re
n
t
an
y Surcharges
.
"S
urcharge
s" sha
ll m
ea
n
any
and
all
amounts other
than
Fixed Rent
and Add
i
tiona
l
Rent
which,
b
y
th
e
term
s
of
th
e
Lea
se, become
du
e
and pa
yab
l
e
b
y
Su
b
landl
o
rd
to
Own
e
r
as
add
it
ion
a
l r
ent or
otherwi
se
a
nd
w
hich
wou
l
d
not
hav
e b
ecome
due
a
n
d
payable
but
for the acts, requests
for
se
r
vices, and/or
failures to
act of
Subtenant
,
its
agents,
officers, repre
s
entatives, employees,
servant
s, contrac
tors
,
in
v
i
tees,
licensees
or
visitors under
this
Sublease
,
incl
u
di
ng
,
but no
t
limit
ed
to
:
(i)
any in
cr
eases
in
O
wner's fire,
r
e
nt
or other
insurance
premiums,
result
ing from
any
act
o
r
omission
of
Subtenant, (ii)
any
charges
to
Sublandlord on
account
of any additional
se
r
v
ic
es
r
e
qu
es
t
ed
by
or
furnished to
Sub
t
e
nant
un
de
r
Sec
tio
n
4.1.2 of the
L
ease, (
iii
)
any
c
h
arges wh
i
ch
m
ay
be imp
osed o
n
Sublandlord,
t
o
the
extent that
such c
harge
s
are
attr
ibu
tab
le to
the Premi
ses
or the
u
se the
reof or
Service
s
or
uti
l
ities
provided thereto
durin
g
the
Term
hereof
,
and
(iv) a
n
y
additional
charges
to Subt
enant o
n
account
of Subtenant's
u
s
e
of additio
nal
cleaning
services,
heat and
air
conditionin
g
service
o
r
elevator
se
r
v
i
ces after
regular bu
siness
hours
or
in
excess of n01mal
usage
.
Sublandlord shall within a commercially
reas
o
na
ble
time provide Subtenant
with
a copy
of any
bill or
i
n
vo
ice regard
in
g
any Surcharge
at
tr
i
but
ab
le t
o
the Term hereof.
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7.
|
Additional Rent; Late
C
harges; Payment of R
e
ntal.
|
7.1.
Any
and.
all
sums
due and
payable
to Subl
an
dlord under this Sublea
se,
in
clud
ing
,
w
i
thout
limitati
on,
the
Subl
eas
e
Tax Pa
yme
nt
,
the
Sublease
Ex
pe
nse
Payment
an
d
the
Sublease Electricity Payment, shall be deemed to be, and
co
ll
ec
tib
l
e
as,
additional ren
t
("Additional
Rent
"
or
"a
dditional rent
"
),
wheth
er
or
not
d
esignate
d as
rent
a
n
d/or
add
i
ti
o
nal
r
e
nt.
If Sub
te
nant shall
fail
to
pay wh
e
n
due
any in
s
tallment
of
F
i
xe
d Rent
or additional
rent
payable
hereunder, within
a
period of
five (5)
busine
ss
days
after the due
date
of
the insta
llment
in
questio
n,
Subtenant
s
hall
also pay
to
Sublandlord, a
l
at
e
charg
e
equal to
five
(5%)
percent
of
the
o
ve
rdu
e
amount (the
"
Late Charge
"
)
,
such Late Charge
to be paya
b
l
e as ad
dit
io
nal
ren
t h
ere
under.
In
addition,
in
the event
th
at
any
installm
e
nt o
f
Fixed Rent
or
additional
rent
is
not
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•
|
paid
when due, the installment in question shall al
so
b
ea
r intere
s
t
at
a rate that is equal to the l
ess
er of (i)
eighteen
(18%)
percent
or (ii) the
hig
hes
t
rate
permitt
e
d
by law
,
s
uch interest
to be
p
aya
ble a
s ad
diti
ona
l rent h
e
r
eunde
r
(provided
ho
wever
that
the
amo
unt o
f
any
late
charge
p
a
id
by
Subtenant
for
any in
s
tal1ment
i
n
question shall
b
e
credited against
any
inte
r
es
t pa
y
abl
e
for
s
uch installm
en
t). The payment of such Late Char
ge an
d interest
shal
l be in addi
t
ion to all
other
rights and
remedies a
va
ilable to
Sublandlord
in
the ca
se
of
non-payment of re
nt. No
twithstandi
ng
the for
ego
ing
,
Sublandl
o
rd
shall not charge
a Lat
e C
harge
or
int
eres
t on
the first
|
(1
5
1
)
late paym
e
nt
in
an
y
calendar year
during the
Term.
In
the
eve
nt that
Sublandlord is entitled
to
an
abat
e
m
en
t or redu
ctio
n of rent
under
the Le
ase
which
is
attributable
to th
e
Term
her
eof,
then
,
provided Subtenant i
s
not in default hereunder
fo
llowing notice
and
the
expiration of any
app
licable
cure period
,
Subtenant shall b
e
entitled
t
o
a
prop
ortio
n
a
te reducti
o
n
in
the R
en
t
payable
und
er
thi
s
Suble
ase.
7.2.
All
F:L-.xe
d Rent
,
Additiona
l
Rent,
a
nd all
other costs, charges
and
s
um
s
payable
by
Subtenant hereunder
(collectively
,
"
R
ental''), sh
al
l
constitute
rent under thi
s Su
b
le
ase,
and
shall
b
e
payable
to
Sub
landlord a
t
the following addre
ss:
Pricew
a
t
e
rhou
s
eCoop
ers
PRTM Management
Con
su
ltant
s,
LL
C,
c
/
o
Pri
cewa
t
e
rhou
seCo
op
ers
LLP
,
4040
West
Bo
y
Scout Boulevard, Tampa,
FL
336
0
7,
Attn:
Na
ti
ona
l Re
a
l
E
stat
e
-
Le
ase
Admin., unle
ss
Sublandlord
s
h
a
ll otherwise
so
dire
ct
in
wri
ting
.
7.3.
Subt
e
nant
shall
promptl
y
p
ay
the
Rental
as
and when
th
e
same
s
hall
become
du
e
and pa
yab
l
e
w
i
thout
set
-o
ff, offs
et or d
eductio
n of
any
kind
whatsoever
(
ex
ce
pt
as
express
l
y
set
forth
i
n th
is S
ublea
se), and,
in
the
ev
e
nt
of Sub
t
enant
's
failure
to
p
ay
the
s
am
e
w
hen due (
subjec
t to any
required notice
and
grac
e
p
e
riods provid
ed
herein),
Sublandlord
s
hal
l
have all
of t
he
rights and remedies
pr
ov
id
e
d for herein
or at
l
a
w
o
r
in
equit
y,
in t
he
case of non
payme
nt
of ren
t.
7.4.
Sublandlord
's
failure
dur
i
n
g
t
he Term
to
prep
are and
deli
ve
r
any
sta
tement
s
or bills requir
ed
t
o
be delivered
to
Subten
an
t hereund
er,
including
,
without
limitation
, a
Sublease Tax Statemen
t
, Sublease
Expense
St
a
t
ement,
Su
b
l
ease E
lectricit
y S
t
ate
m
en
t
and/or
Annual Statement
,
or Sublandlord
'
s failur
e
to
make
a
demand
unde
r
any provisions
of
thi
s
Sublease
s
h
a
ll not in any
way
be
deeme
d
to
be
a
w
aiver
of
,
or
cause
Su
b
lan
d
lord
to forfeit or
s
urrender
it
s
rights
to
collect
any
addi
t
ional
rent w
hich ma
y
ha
v
e
bec
ome
due
und
er
this
S
ubl
e
ase hereo
f
durin
g
th
e Te
m1.
Subt
ena
nt
's
liabi
l
ity
for
Rent
a
l
due
under thi
s
Sublease
here
o
f
accruing during
t
he T
erm, sha
ll
survive
th
e
expirat
io
n or sooner termination of this
Su
b
l
ease
.
Notw
ithstanding the foregoing, Subtenant shall
ha
ve
no oblig
at
ion
for any charge or
cost inc
urred
by
Sub
landlord
under the Lease which
is th
e
obligation o
f
Subtenant hereunder unless
Sub
landlord
delivers
to
Subtenant an invoice
or
bill for
such
amounts within
eig
hteen
(18)
mont
hs
after Subland
lord
's
re
ce
ipt
from Owner of a corresponding
bill or
in
vo
i
ce
therefor.
7.5.
Sub
te
nant shall be liable for
th
e
payment
of a
ll char
ges,
fees
and
other costs
impo
sed
on
or incurr
ed
by
Sublandlord under
the
Lease r
e
lat
ed
to or
in connection with Subtenant's occupancy of the Premises or as
a result
of
Subtenant's actions or omissions under this Sublea
s
e
,
including, without
limitation
,
all special requests of Subtenant which are payable by Sub1and
l
ord to Owner under the Lea
s
e. Notwith
st
anding
th
e foregoing,
Subtenant shall
h
ave
no liability for any
charge
or cost
und
er
the
Lease
arising from Sublandlord's failure
to perform
any
obligation
or
make
any
payment
to
Owner under the
Lease, except to the
extent
that
Sublandlord's failure is att1ibutable, in whole
or
in
part, from a failure by Subtenant
to
perform
any
obliga
t
ion or make
any
payment to
Sublan
dlord r
equire
d
under this Sublease.
7.6.
If
the Commencement
Date
does not
occur
on the
first
day of
a
calendar month,
the
Fixed
Rent
and additional rent payable hereunder shall be
prorate
d
for such partial month
o
n
the basis of the actual
number
of days of
such
month.
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8.
|
Subordination
to
and Incorporation of the
Lease.
|
8.1.
This Sublease
is
in all respects
subjec
t
and subordinate to the terms and conditions of the Lease and
to
all
in
s
truments,
la
ws,
rules,
regulation
s a
nd
private
re
str
ictio
ns to which
the
Lease is
subject and su
bordin
ate.
Subtenant shall
in
demnify
Sublandlord for,
and
s
hall hold
it
ham1less from and a
g
ainst,
any
and all losse
s,
damages, penalties, liabilities, costs
and expe
nses
,
including, without
lim
itation,
reasonable
attorneys'
fees and disbursements, which may be sustained or incurred by Sublandlord
by
reason of Subtenant's failure to
keep,
observe or
perfo
rm
any of the term
s,
pro
v
ision
s,
covenants, conditions and
ob
ligati
o
n
s
on Sublandlord's part to be kept, observed or perf01med under
the
Lease
to the extent
same
s
hall have be
en
incorporated herein, or otherwi
s
e arising out of or with re
s
pect to Subtenant's use and occupancy of the
Premi
ses
from and after
the
Commencement Date.
8.2.
Exce
p
t as otherwi
s
e expres
s
ly provided
in,
or
otherwise
inconsistent with, thi
s
Sublea
se
,
or
to the extent
not
applicable
to the
Premises
,
the terms,
provi
s
ion
s
, covenan
ts,
st
ipulation
s,
conditions, rights, obligations, remedies
and
agreements
contained
in the
Lea
se
are incorporated
in
this
Suble
ase
by
reference,
and are made a
part
hereof as
if
herein set forth
at
len
gt
h
,
and (i) as
i
f
the word "Lease" or
"lease"
or words of
simila
r
import
,
whe
r
ever
the
same appea
r
in
the Lease, were construed to mean this
"
Sublease
",
(ii) Sublandlord is hereby entitled to all the right
s
, privileges and benefits
of
the
Landl
ord
under the Lease and may
enforc
e
th
e
tem1s
and
conditio
ns
of the Lease against the
Subtenant
as
if the
Subtenant were the "Tenant" thereunder, (iii) Subtenant
s
hall
be substituted for the "Tenant" under the Lease, and
(iv)
Pr
e
mises
shal
l
be
s
ub
s
tituted
for "dem
i
sed
premises
"
under the Lease, except th
a
t
the
following pro
v
ision
s
of the Lease and any references to such pro
v
isions
shall
be deemed d
e
leted
ther
efrom
and
sh
all
ha
v
e no force and
effe
ct
as between Sub
landlord
and Subtenant:
A
rticles/Sections:
1.1
,
1.
2,
1.
3
,
2.
1.1
,
2.1
.
2
,
2
.
3, 2.4
,
2
.
5
,
2.6.
1
,
2
.
8
.
2 (fir
s
t
, s
ixth and
s
ev
e
n
t
h
s
ent
e
n
c
e
s),
2.8
.
6
,
3.
1,
3.2
,
3.3
,
3
.
5
,
3
.6,
3.
7,
4.1
,
4.2(C),
4
.2(
0), 4.3
,
4.4
,
5.1
, 5
.6.1
,
5.6.5(g), 5.14
(
fir
st
sent
e
n
ce
a
nd s
i
x
th gramm
a
tical p
ara
graph
, s
ubparagraph
s (
i
)
-
(
i
v
))
, 6
.1
,
6
.3
(r
e
garding any right of Subtenant to
tem1inate
th
e
Subl
ease
), 6.3 (third grammatical
paragraph),
6.4(second
gramm
a
tical
para
g
raph),
8.8. 8.11, 8.12, 8.
1
5 (regarding
any right
of Subtenant
to
r
e
ceive
an
SNDA), 8.20
,
8.21, 8.24,
8.26A, 8.26C,
8.27, 8.29, 8
.
30
,
8.31.
E
xhibits: B-2, C, E, F
,
G
,
H
,
I,
J, K, L, M.
8.3.
If
any of
th
e
expr
ess
pro
vi
si
o
ns of this Sublease shall conflic
t w
ith
an
y
of the pro
v
i
s
ions
of
the Lease incorpo
ra
ted b
y
r
e
fer
e
nce
,
such conflict shall
be
re
s
ol
ve
d in
ev
e
r
y ins
ta
nce
in
favor of
the expr
ess
provi
s
ions
o
f
t
he
Sublease
.
8.4.
Subtenant
ma
y
pe
a
ceably and
quietly
enjo
y
th
e
P
r
emises
s
ubjec
t
and sub
o
rdinate to the terms of
this
Suble
a
se and to th
e t
erms of
the Lea
s
e
,
to
the
extent incorporated
h
erein
.
|
|
|
|
9.
|
Alterations; Subtenant's
Initial
Alterations
|
9.1.
Subject to
the
term
s
of
this
Section
9.1
,
Subtenant
s
hall not make any alt
e
rations,
installations, improvement
s,
additions
or
other
physical
chang
e
s in
or
about
the
Premi
s
es ("
Subtenant
Alterations
"
or a
"
Subtenant A
lteration") without fir
s
t o
b
taining the wri
tt
en con
s
ent of
(1)
Sublandlord
,
which shall not
be unreasonably
w
i
thh
e
ld,
and (2)
Owner
,
if
and to the e
x
tent
Owner
'
s
consent
i
s required under
th
e
Lease.
Notwithst
a
nding the for
e
going,
if
and to
th
e
extent Owner's consent is not required under
the Lease
,
Subtenan
t
shall
have t
h
e
right,
without Sublandlord's
c
o
n
s
ent
,
on
n
o
t l
ess
than
fifteen
(15)
day
s'
pr
i
or not
i
c
e a
nd
s
ubject
to all
o
f
the
o
ther term
s
and conditio
n
s of this
Article 9
,
to
perform Subtenant Alterati
o
ns
th.a
t
(i) do no
t r
equire the issuance of a
building
pem1it or other governmental approv
al
as a
condition
to the
pe
r
fom1ance thereof,
(ii)
d
o
no
t
affect an
y
of the electrical,
fire,
life
/
safety
,
plumbi
ng
or other mechanical or
utilities
systems in the Pr
e
mi
s
e
s
and
the
Building
,
(iii
)
do not affect t
h
e roof or any of the structural
component
s
of the Premises and
the Building,
and
(
iv) either separately or
in
the aggregate,
do not
cost in excess of Seventy-Five
Thousand
and 00
/
100 Dollars ($75,000
.
00) ("1Vlinor
Subtenant
Alterations").
Any
Subtenant
Alterations
,
including
,
without
limitation,
Subtenant's
Initial
Alterations (as
hereinafter defined),
if any,
a
nd Minor Subtenant Alt
e
rations, shall be performed
by Subtenant, at
Subtenant's
sole c
os
t and expense,
in
acc
o
rdance with
all applicable
federa
l, s
tate and lo
c
al
laws
,
regulations
, o
rdinance
s
and codes (collectively,
"Legal
Requirements
"
) and all app
l
icable provisions of
th
is
Subl
ea
s
e
and the Lea
s
e,
including,
without
limitat
i
on
,
the provi
s
ions
o
f
Section 5.14 of the Lease. All Subtenan
t
Alt
e
rati
o
ns, incl
u
ding
, w
ithout limit
a
ti
o
n
,
Subt
e
nant's
Initial
Alterations and M
i
n
o
r
Subtenant Alterations
,
shall be
performed
only b
y
c
o
ntractor
s,
subcon
t
ractors and/or mechanics re
a
sonabl
y a
pprov
e
d b
y
Subland
l
ord and Owner, to
th
e e
xtent Owner’s con
s
ent
i
s
required
under
the Le
as
e. Anything contained in this
Section
9.1
t
o
the contrary notwithstandin
g
, Sublandl
o
rd
ma
y
withh
o
ld its con
s
ent
in
it
s
sole and ab
so
lute discretion
to
any Subtenant Alterat
i
ons which affect
(i) the roof, (ii)
any
of the structural components of
the Premises
or
the
Building, or (iii) an
y
of
the
electrica
l
,
fire, life
/
safety,
plumbing
or other
mechanical or
util
i
ties
sy
s
tems of the
Premi
s
e
s
or the Building
(collectiv
e
ly,
"
Major
Subtenant
Alteration(s)
"
). Notwi
t
hstanding
the foregoing,
Sublandlord shall not unreasonably
withhold
its
consent to a Major Subt
e
nant
Alteration if Owner provides Sublandlord
with an
agreement in form
and substance acceptable
to
Sublandlord
in its sole and
absolute di
s
cretion
releasing
Sublandlord from
any and all
liability under
the
Lease in connection
with such
Major Subtenant
Alteration,
including,
without
limitation, failure to comply with Legal Requirements, liability for
liens filed against
the
Building or
the Premises, removal
and/or
restoration of such Major
Subtenant Alteration
,
and
any
claim,
loss
,
expense, action
or
damage
in
connection
·with
such
Major
Subtenant
Alteration. In the event that Owner withholds
consent
to any
Subtenant Alterations,
Sublandlord's consent
s
hall automatically be deemed denied.
9.2.
Subtenant
shall
promptly reimburse Sublandlord upon demand
for
all
actual
.
third party
out-of-pocket
costs and expenses reasonably incurred
by
Sublandlord i
n
connection with
Sublandlord's
re
v
iew of
any Plans and Specifications (as hereinafter defined)
submitted to Sublandlord
hereunder
,
including without
limitation,
archite
c
ts
and engineers
fees and
any and
all costs incurred
by
Sublandlord under the Lease
in
connection with
Ownerr
'
s
review
of such
Plans and Specifications. Sublandlord
shall
have no liability
to
Sub
t
enant
for
Owner
'
s
failure or refusal to
approve Subtenant's Plans
and Specifications to
any
Subtenant
Alterations,
including, without limitation, Subtenant's Initial Alterations
or Minor
Subtenant Alterations, provided, however, that Sublandlord shall reasonably cooperate with Subtenant at
Subtenant's sole
cost and expense
in
requesting
Owner’s
consent to Subtenant Alterations.
9.3.
Prior to commencing any Subtenant Alterations,
including,
without limitation, Subtenant's Initial
Alterat
i
on
s
and
Minor Subtenant Alterations
,
Subtenan
t
shall
(i) to
the extent
required in
order
to
obt
a
in
a
building permit and other required
governmental appro
v
als for
t
he Subtenant
Alterations
in
question,
or as
otherwise required
by
the Lease
,
submit
to Owner and Sublandlord d
e
tailed
plans
and
specifications
(including
la
y
ou
t
, architectural,
mechanical and
structural
drawings)
(
"
Plans and Specifications
"
) for
the proposed
Subtenant
A
l
terations and
shall
not
commence
any
such
Sub
t
enan
t
Alt
e
ra
t
ions without
firs
t
obtaining
Sublandlord's and Owner's
prior
writt
e
n
approval of
such
Plans
and
Sp
e
cifications,
(ii
)
at Subtenant's sole
cost and expense
,
to
the
extent
required in order to obtain
a
building permit
and other
required governmental
appro
v
als
for
the Subtenant Alterations in question, or as
otherwise
required by the Lease,
obtain all permits
,
approvals and certificates required by any
governmental
authorities having jurisdiction
over
the Premises, and (iii) furnish to
Sublandlord
certificates of worker's compensation (covering
all
persons to be employed
by
Subtenant,
and
Subtenant's contractors and subcontractors in connection with such work)
and commercial
public
liability
(including property damage
coverage)
insurance in such form,
with such companies,
for
such
periods
and
in
such
amounts as are required under the Lease, naming
Sublandlord
and
Own
e
r,
and
their
respective
officers
,
dir
e
ctors and employees, and any mortgage
e,
a
s
additional insureds. Subtenant's Plans
and Specific
a
tions
once
approved by
Owner and Sublandlord, shall be
deemed the
"
Approved
Plans
"
.
9.4.
Subtenant proposes
to
perform, at its
sole cost and expens
e
, certain alterations and work
to prepare
the
Premises for Subtenant's initial
occupancy
("Subtenant' s
Initial
A
lterations")
in accordance
wi
t
h
tha
t
certain
space plan dated May
12,
2014
prepared
by
ADD
Inc.
(the
"
Proposed
Space
Plan
"
)
and attached hereto as Exhibit
B.
Subject
to
(i)
Sublandlord's and Owner's approval o
f
Plans and Specifications for the Alterations in accordance with this
Article 9
,
which
Plans
and
Specifications
s
hall not
deviate in
any
material way from the Proposed Space Plan,
and
(ii) Subtenant's compliance with
all of the
terms and conditions of this
Article 9
and the Lease with
respect
to Subtenant's Initial Alterations, Subtenant
hereby preliminarily
approves, in concept only,
Subtenant's
Initial Alterations
in
accordance with
the Proposed
Space Plan.
9.5.
Upon completion of any Subtenant
Alterati
ons,
including Subtenant's Initial Alterations
and
Minor Subtenant Alterations, Subtenant shall deliver
to
Sublandlord
general
releases and
final
waivers
of lien from all contractors, subcontractors performing work costing in excess of $10,000, and materials
suppl
ier
s
involved in the performance
of
such Subtenant Alterations, and a certificate from Subtenant's independent licensed architect certifying to Subland
l
ord and Owner that (i) in
s
uch
architect's opinion such Subtenant Alterations have been perfom1ed in a
good
and workmanlike manner and completed in accordance with the Approved Plans for
suc
h
Subtenant Alterations and (ii) all contractors, subcontractors and materialmen have been paid for such Subtenant
Alterations
and materials furnished through such date. In
addition,
upon completion of any Subtenant Alterations, including, without
limitation,
Subtenant's Initial Alterations and Minor Subtenant Alterations, Subtenant, at Subtenant's sole cost and expense, shall obtain
certificate
s
of final approval of such work required by
any governmental
authority and shall
furnish Sublandlord
with copies
thereof,
together with "as-built"
plans
and
specificat
ions
for such
Subtenant
Alterations,
it
being agreed that all filings with governmental authorities to obtain such
permits,
approvals and certificates shall be made, at
Subtenant
's
sole cost
and
expense. All materials and equipment to be incorporated
in the
Premises
as
a result of any Subtenant Alterations,
includin
g,
without limitation, Subtenant's Initial A
l
terations
and
Minor Subtenant Alterations,
shall
be first class quality and no such materials or equipment
shall
be subject
to
any
lie
n
,
encumbrance, chattel mortgage or title retention or
security
agreement.
No
Subtenant Alterations, including
,
without
limita
tion
Subtenant's Initial Altera
t
ions,
shall
be undertaken prior to Subtenant delivering
to
Sublandlord
e
i
ther
(i)
a
performance bond and
l
abor
and materials payment bond (issued by a
surety
company and in form reasonably
satisfactory
to
Sublandlord), each in an amount equal
t
o
120% of the cost of such Subtenant Alterations (as reasonably estimated by Subtenant's architect,
engineer,
or contractor), or (ii) such other security as shall
be
reasonably satisfactory
to
Sublandlord or
required
by Owner
or any m011gagee, ground
lessor
or holder of any super interest ("
Construction
S
ecurity"
),
provided that no Construction Security shall be
required for
Subtenant's
Initial Alterations
or any other Subtenant
Alterations
costing less than One Hundred Thousand and 00/l
00 Dollar
s
($100,000.00), unless, in
either
event, Construction Security is
required
from Subtenant
by
Owner or Owner's mortgagee
or
any ground
lessor.
All Subtenant Alterations, including, without limitation, Subtenant's Initial Alterations
and
Minor Subtenant Alterations
(othe
r than
strictly cosmetic alterations such as painting or carpeting),
s
hall
be performed only under
the
supervision of
a
n
independent licensed architect approved by Sublandlord, which approval
s
hall
not be unreasonably withheld or delayed provided that Owner has previously approved such architect.
|
|
|
|
10.
|
Covenants with
Respect
to the
L
ease.
|
10.1.
Subtenant shall
not
do any
t
hing
t
hat would
constitute a default under
t
h
e
Lease or omit to do anything
t
ha
t
Subtenant
is ob
l
ig
a
t
ed to
do
under the terms of this Sublease
so as
to
cause a default under
the
Lease.
10.2.
Subt
enan
t shall
not
request
Owner's
con
sen
t or approval directly
or request any Services directly
from
Owner,
including, without limitation
,
heating or air conditioning
se
r
vices
after regular
bu
siness
hours, and no efforts by Subtenant
to
obtain Owner's consent or approval or
suc
h
Services from
Owner
s
hall con
stitute
Subland1ord's
con
sent or
approval or prejudice Sublandlord's right to withhold
i
ts
consent
or approval, or
to
direct Owner
not
to provide
such
Service
s
to
Subtenant.
10.3.
Th
e
time
limit
s set
forth
in
the
Lease
for
t
he
giving of notices,
makin
g
demands, perforn1auce of any act, condition or
co
venan
t,
or
the exercise
of
an
y
right,
remed
y
or option, are changed for
th
e
purpose of this
Sublea
se,
by lengthening or
shortening the
same
in
each
instance
,
as
appropri
ate,
so
that notices may
be given,
demands made, or
any
act,
conditi
on
or covenant
pe
rformed,
or any
right,
remedy or option
hereunder
exercised, by Sublandlord. or Subtenant,
as
the
case may
b
e, (a
nd
each party covenants that
it
will do so) within three (3) days prior to the expiration of
th
e
time
limit
(unless such time period is
ten
(10)
day
s
or
le
ss
, in
which case
such three
(3)
day
time period shall be
reduced
to
two
(2) days),
taking
into
account the
maximum grace period,
if
any, relating thereto contained
in the
Lease. Each party
s
hall promptl
y
deliver
to th
e other
party
copies
of
all
n
ot
ice
s,
requests or demands which relate
to the Premi
ses
or
the u
se
or
occ
upan
cy
thereof after receipt of same from Owner.
10.4.
Sublandlord
repre
sents
and
warrants
to
Subtenant
that (i)
Sublandlord has a
val
id
and
subsisting
lea
seho
ld
estate under
the
Lease, (ii) Sublandlord
has the
power,
right
and
aut
horit
y
to make
this
Sublease and
to
perform
it
s
obligations
hereund
er
(iii) the Lease
is
in full
force
and
effect, (iv) attached
her
eto
as
Exhibit C
i
s
a true and
com
p
lete
copy of the
Le
ase,
except as indicated
thereon
for the rental amount and other
financi
al
portions thereof which
hav
e
been
redac
ted,
(v)
the
Expiration
Date
of the
Lease is
March 31, 2019, (vi)
the Le
ase
constitu
tes
th
e
entire agreement between Owner and Sublandlord regarding the
Premi
ses and
there are
no o
ther
amendments or
m
odificat
ions th
ereto,
(vii) Sublandlord
ha
s
not
assigned,
transfe1Ted or encumbered
any
of
it
s
ri
ghts
under the Lease
to
any third parties, (viii)
to
Sublandlord's
actual
knowledge, without
inquiry
or
investig
a
tion
,
(I)
Sublandlord
has
not
recei
ved
written
notice
of any violation of Legal Requirements by Sublandlord with respect to
the
Premises, (2) neither
Subla
ndl
ord
n
or
Owner are
in
default
of
it
s
respective obligations under
the
Lease;
and
(3) no petition or bankruptcy or similar proceeding under the United States Bankruptcy Code
is
pending or threatened against, or contemplated by, Sublandlord. For purposes of this
Section 1 0.4
, "S
ublandlord"
shall be deemed to mean PricewaterhouseCoopers
PRTM
Management Consultants, LLC only (and
not
any predecessor of Sublandlord, including, without
limita
tion,
Original Tenant) and
th
e forego
ing
representations
a
nd
warranties by Subland
l
o
rd
shall
only
apply
to
periods from and after August 22, 2011.
10.5.
Subtenant
represent
s
and wan-ants
to
Sublandlord
tha
t
(i) Subtenant has the power, right
and
authority to make this
Suble
ase
and
to
perform
its
obligations
her
eunder,
and (ii) no
p
etition
in bank
ru
p
t
cy or
s
imil
ar
proce
e
din
g
under
t
h
e Unite
d
Sta
t
es Bankruptcy
Code
is pending or to Subtenant's best
know
ledge,
threaten
ed ag
ainst,
or con
t
e
mplat
ed
by,
Subten
an
t.
10
.6.
Subl
a
n
dlor
d
covenan
ts
that duri
ng
the T
e
rm
hereof,
pro
v
id
e
d
S
u
b
t
ena
n
t
is
no
t
in
d
efa
ult
hereunder following not
i
ce and the
expira
tio
n of a
n
y app
li
cable
cure
period Sublan
d
l
ord
wi
ll
(i)
pa
y
all amounts payable
by
Sublandlord
u
nder the
L
ease (s
u
b
ject to
any abat
ements
or offsets
wh
ich
Sublandlord
may
be
entitled
to und
e
r
the
Lease),
(ii) not
amend
o
r
mo
dify the
Lea
s
e
in
a manner which adversely
affects
Subtenant'
s
ri
g
hts und
e
r
th
i
s
Subl
ease or
i
n
c
rea
ses
it
s obliga
ti
ons
h
e
r
eun
der
beyond a de
minimi
s
degree
(unless
permitte
d
b
y
th
e
term
s of
the
Lease),
(iii)
u
se
comme
rc
i
a
lly re
asonabl
e eff
orts to
provide
Subte
nant
wi
th
a
ll
notices from Owner and any governmental
autho
r
iti
es
received by Sublandlord with
resp
ect
t
o
t
he Premi
ses (pro
vided, however, that
it
s
hall not be
a breach
or
default
by Subl
a
ndlord und
e
r thi
s
Sublea
se
if
Sublandlord
fai
l
s
to pro
v
id
e
any
such
notice
to
Subtena
nt)
,
and (iv) not
c
an
cel,
s
urrend
e
r
or te
rminate the
Lease (except
as
permitt
e
d
u
nd
e
r
Article 15
hereof)
,
except
as
expressly
permitt
ed
unde
r
the
Lea
se,
w
ithout
Subte
nant'
s prior
wri
tten conse
nt in
each
ins
t
a
n
ce. whic
h
consent
shal
l
not
be unr
easo
nably withh
el
d
,
conditio
ned
or
delayed
.
11.
Services and R
epairs.
11.1.
No
twit
hs
tandin
g
anything to the contrary contained
in
thi
s
Sublease or in the
Lease,
Subtenant shall
b
e
required to maintain and repair
the
Premises
in acc
o
rdance with
the tenns
of the
Lease and
to
fulfill
Subl
a
ndl
o
rd'
s
obligations as Tenant under the
Lease
with re
ga
Jd to th
e
P
re
mi
ses
and
Sublandlord
s
hall
no
t b
e
r
e
quir
ed
t
o
p
rov
id
e any
of the
serv
i
ces
tha
t
Own
e
r
has
agreed
to
provide,
whet
he
r o
r
not
specified
in the Lease (or
r
eq
uir
ed
by
law),
or
furni
sh the e
l
ectr
icity
to th
e
Premise
s
th
at
Owner ha
s
agreed
to
furnish
pur
suant
to
the
Lease
(or
required
by
law
),
or t
o
otherwise
r
epair or
maintain the Premises
,
or make any of the
rep
airs
or
restorati
ons that
O'.vner
ha
s
agreed
t
o
make
pur
suant
to the
Le
ase
(or
requ
ired
by
la
w),
or
comp
l
y
with
any
Legal
R
e
quir
eme
nts
,
or
take a
n
y
other
ac
t
ion
t
hat
Owner
h
as
agr
e
ed
to p
rovi
d
e,
furnish,
m
ake,
comply
w
ith
, o
r
take,
or cause to be
p
rov
ided,
furni
sh
ed, made
,
compli
e
d
w
i
t
h
or
take
n und
e
r th
e
Le
ase
.
Not;v
ith
sta
ndin
g
the foreg
o
i
ng,
Subtenant
shall
have the
ben
e
fit
of al
l
services
,
elect
ri
c
ity
,
repairs,
r
estora
ti
ons,
or actions
to
be provided or taken
by Owner
therelllder,
inclu
d
i
n
g,
th
e serv
ice
s
provided
b
y
Own
e
r under
Exh
i
b
it
C
of
th
e Lease
. Pro
vided Su
bten
an
t
i
s
not
in
default of
thi
s
Sublease
foll
owing any
applicable
noti
ce and
cure
per
i
o
d
, S
ubland
lo
rd
ag
r
ees
to
u
se
commercially re
as
onable
efforts
,
at Subtenant's
sole cost
and expen
se
,
to
obtain the
same
from
Owner
(provid
ed,
however
,
t
ha
t
Sublandlord
s
hall
not b
e
ob
ligated t
o take
any
action
\Vhich
mi
ght,
in
Sublandlord'
s
sole
di
s
cretion,
g
i
ve
ri
se
to
a
default under
th
e
Lea
se
or
co
mmen
ce any
li
t
ig
a
tion
o
r
other
le
gal
pr
ocee
dings
agains
t O
wne
r
excep
t
as express
l
y
set
fo
rth
in
S
ection
11.2 hereof)
,
and
Subtenant
s
hall
r
ely
u
p
on
,
and
look
so
lel
y
t
o,
Owner
for
th
e
provision,
furnis
hin
g
or making
the
reof
or
co
mplian
ce
th
erew
ith
. A
d
efault
by
Ow
n
e
r
under the
Lease
shall not excuse
Subte
nant
's
p
erf01
mance
under
this
Sub
le
ase
ex
cep
t to the
ext
en
t
Subland
l
ord
i
s
exc
u
sed
from perfom1ance
under
the
Lease.
Subt
ena
nt
shall not
m
ake
any
claim
aga
inst
Sublandlord for
any
damage
w
hi
c
h m
ay
ari
s
e
,
nor
s
h
a
ll
Subtenant's obligation
s
her
e
under
b
e
diminished,
b
y
r
eason of (i)
th
e
failure
of
Owner
to
keep,
ob
s
erve or perform
a
n
y
of
its obligations
pursu
an
t t
o t
he Le
ase,
or
(ii)
the acts
or
omi
ss
ions of Owner
,
it
s
agents
,
contractors,
servan
ts
,
em
ployees,
invit
ees or
licens
ees
.
T
he
provisions of thi
s
Article
11
shall s
u
rviv
e th
e exp
iration
or
ea
r
lier
te
rmination of
th
e
Tenn hereof.
11.2.
Notwithstanding
Section
11.1
hereot:
provided
Subtenant
i
s
not in default hereunder beyond any
applicable
notice
and
cure period, Sublandlord agrees to
reaso
nably cooperate with Sub
t
enant, and
to
request
th
at
Owner perform
the obligations of
O\vner
to Sub
l
andlord under
the
Lease
in
sofar as
th
ey
relate t
o
the
Premise
s
or
to Subtenant's
ob
l
igations
under the
Sublease,
provided
th
at Sublandlord shall
have n
o
obligation
to
commence any lawsuit,
litigati
o
n, arbitration or other legal proceeding
(collectively,
a
"Lega
l
Proceeding")
agains
t
Owner
or
take any
actio
n on
Subtenant's behalf
which
would
result in
a
default
und
er
the
Lease
or to
make
any payment
to
Owner or any third party or to
othe
rwi
se incur
any co
st
or expense
in
connection
theJ
e
with unl
ess
reimburs
e
d
by
Subtenant.
Subtenant
s
hall reimbur
se
Subland
l
ord within
fifteen (15) busine
ss
days as
additional
rent
for
any
and a
ll
costs
and expenses,
including reasonable attorney
's
fees and
costs,
incuITed by Sublandlord in
conn
ection
with any action
taken
on
Subtenant's
behalf at Subtenant's reque
s
t,
and
shall
indemnify and hold
harmless Sublandlord,
it
s
officers,
directors, members, affiliates
,
sha
r
eholders,
agent
s
and
employees, from
any los
s,
suit,
claim
or
damage resulting therefrom. Anything herein to the
contrary
notwithstanding,
(x)
to the extent Sublandlord has
express
l
y
agreed hereunder to u
s
e commercially reasonable efforts to enforce
for
the benefit of Subtenant any
of
Owner's
obligations
to Sublandlord under the
Lease
and Owner has failed or refused to perfonn
such obligations
or
(y)
Owner has failed to perform its
ob
li
gations
under the Lea
se
and suc
h
failure mate
riall
y
and adversely affects
Subtenan
t
's
u
se
and
occupancy of the Premises, and
Sublandlord has
been
unable
,
within
a
reasonabl
e
time after notice from Subtenant, to cause
Owner
to perfonn such
obligations,
and (a) Sublandlord reasonably determines that commencing
a
Legal Proce
ed
ing is the on
ly
reasonable
alternative
t
o
cause
Own
e
r
to
perform
such
obligation
s
and
(b)
Subtenant
is not then in
default
hereund
e
r beyond
any applicable cure
period
,
Sub
l
and
l
ord
s
h
a
ll, at Subtenant's request
,
commence
an
appropriate
Legal Proceeding against
Ovmer
using attorneys and
experts selected
by Sublandlord with
the
approval
of
Subtenant
(such approval not to
be
unreasonably withheld
or
delayed)
,
or,
in
Sublandlord's sole discretion, permit
Subtenant
to
commence
such
Legal
Proceeding
on
Subtenant's own
behalf
,
provided tha
t
if
Subtenant notifies Sublandlord that
Subtenant
i
s
reasonably
likely
to b
e
barred
from commencing
s
uch Legal Proce
e
ding by reason
oflack of privity, Subtenant
may
commence such Legal
Proceedings
in
the name of Sublandlord, using
attorneys
and
experts selected
by Subtenant with
the
approval
of
Sublandlord (such
approval
not
to be
unreasonably withheld
or
dela
ye
d)
provided
that
,
in
either event
(i) the
commencement of such Legal Proceeding does
not
cause a
default under the Lease
,
(ii) Subtenant
s
hall p
ay
to Sublandlord upon
demand
t
herefor as additiona
l
rent any
and all the costs
and expenses,
including reasonable
a
ttorn
ey's
f
ees
and
costs, incurred
by Sublandlord in connection therewith
,
and
(iii) Subtenant
indemnifi
es
and hold
s
Sub
land
lord,
its
officers, directors, shareho
l
de
r
s, affiliates, subsidiaries,
agents
and
employ
ees
harmless
from
any
lo
ss,
suit,
damage,
claim
or co
s
t, i
ncl
uding re
aso
nable
attorney's
fees
and
co
sts,
in
curred
b
y
Sub
l
andlord
in
connection
the
rewith.
12.1.
Whenever Sublandlord
ha
s
expressly
agreed under the term of this
Sub
l
ease not
to
unreasonably '\Vithhold
its
consent or approva
l
hereunder
and the
consent
or approval
of Ovvner,
the l
essor
under
a supe
rior
lease,
or
the mortgagee under
a
mortgage
,
as
the ca
se
may be
,
is also required to consent
pursuant
to the tenns o
f
the Lease, if Owner, the lessor
u
nder a
superior
lease
,
or the
mortgag
ee
under a mortgage
shall withhold
its
consent or
approval
16
for any
rea
so
n
whatsoever,
Sub
landlord
s
h
a
ll not
be deemed to be
act
ing unrea
so
nably
if i
t sha
ll
also
withh
o
ld
its
consent
or
approval. Sublandlord agrees
that
it
s
hall promptly
after
rec
eip
t thereof from
Subtenant, convey
all
requests
for
the
consent
or
app
rova
l
of Owner
to
Ov.11er
and
Sub
landl
on
1
s
hall use
rea
so
nable
efforts
th
e
reafter t
o secure
such
co
n
se
n
ts
or approvals provided
sa
me is
at
Su
bt
en
ant's
sole
cost
and
expe
n
se
and furth
e
r pro
v
id
ed
th
at S
ub
l
andl
or
d
sh
all ha
ve no
obligation to commence
litig
a
tion or
other
legal
proc
ee
dings a
gains
t
o,vi.1er
,
exce
pt
as
expr
ess
l
y se
t forth in Section 11.2 h
ere
of.
12.2.
If
Subtenant
s
hall
reque
s
t
Sub
landlord
's
consent
a
nd
Sublandlord
has
expressly agreed
,
under th
e
t
e
rms
of
this
Sublease, that
neith
e
r i
ts
consent
nor it
s
appro
v
al
shal
l
be
unreasonably withheld
,
and
Sublandlord
shall
fail
or
refuse to
give such
con
sent
or approval,
and
Subtenant
shall
dispute the reasonableness of Sublandlord'
s
refusal to
give
its consent
or approval,
such dispute
shall be
finally determined
b
y
a
court
of
competent
juri
s
d
ic
tion.
If
the
d
e
termination
shall
be adv
er
se
to
Sublandlord, Sublandlord,
n
eve
1th
el
ess
,
shall
not be liabl
e
to Subtenant for a
breach
of Sublandlord's covenant
not to umeason
ab
l
y
withhold such
con
sen
t
or approval, and
Subtenant's
s
ole remedy in
such
event
s
hall be the
granting
o
f
consent
or approval
by
Sublandlo
r
d with respect to such reque
st
under thi
s
Sublease.
13.
Termination of
Lease. If th
e
Lease
i
s t
erminated pursuant
t
o th
e
tenn
s
th
e
r
eo
f
with
resp
ect to
all
or
an
y
port
io
n
of
th
e
Premise
s
prior
to
th
e
Expiration
D
ate
for
any rea
so
n
whatsoever,
including,
without
limitation,
by
reason
of
casualty
or condemnation,
this Sublea
se s
h
a
ll thereup
on
terminate \Vi.th
resp
ec
t t
o
any
cone
s
ponclin
g
portion of
the
.
Premises
,
and
Sub
landlord
s
hall not b
e liable to
Subtenant
by
reas
o
n
thereof.
In
t
he
ev
ent of
s
u
c
h termi
nat
i
o
n
,
Sub
landlo
r
d
s
hall return t
o
S
ubte
nant
that
portion
of
th
e
Fixed
Re
nt, a
nd/or
additional
rent
paid
i
n advance
b
y
Subtenant
w
ith
respect
to s
uch port
io
n
of
the Premi
ses,
if
any
,
prorated
as o
f
th
e
date of
such
termination, and
the Letter
of Credit
or
any
unappli
e
d
proceeds
ther
eof.
14.
Sublease, Not A
ssignment.
Notwithstanding anything contained
he
r
ein
,
thi
s Su
bl
eas
e
s
h
a
ll
b
e
deemed
t
o
be
a
sublea
s
e
of
the
Prem
ises
and
not
an
ass
i
gnment,
in
whole or in part,
of Sublandlord's inte
res
t
in
the
Lea
s
e.
15.
Damae:e. Destruction, Fire
and
other Casualtv; Condemnation.
Notwi
thstandin
g
any contrar
y
pro
v
i
sion of
this
Suble
ase
or
th
e p
ro
v
i
s
ions of
the
Lease herein incorporated by reference
,
Subtenant
s
hall not b
e e
ntit
l
ed t
o
an
abatement of Fixed
R
ent
or
a
dditional
rent or
any
ot
h
er
item
of R
enta
l
,
by
reas
on of
a casualty
or
c
on
demn
a
tion
affecting
the
Premises
unl
ess
Sublandl
or
d
receives an
abat
ement
wit
h respect to its
corresponding
obligat
io
under
the Le
ase.
No
twith
standi
n
g
anythin
g
con
tai
n
ed
he
r
ein
or
in the Le
ase
to
the contrary
,
Sublandlord
s
hall ha
v
e n
o
obligation to repair,
r
eco
n
st
ruct or
re
sto
re
the Buildin
g
or
any
portion
o
f
th
e
Pr
e
m
ises
.
Thi
s
Sublease
s
hall not termin
ate
by
re
a
so
n
of a
casualty
or
c
o
ndemnati
o
n
affecting
th
e
Premises
except
as
follo
ws
:
(i)
if the Le
ase
is terminated
by
Own
e
r
or Sublandlord
pursuant to th
e
terms
thereo
f,
or (ii
)
(1)
if
Subl
andlord
has
the
ri
g
ht to
term
in
a
t
e
the
Lease pur
s
uant
to th
e
t
er
m
s
of S
e
ction 6.1 of
t
he
Lease,
and Sublandlor
d
notifie
s
Subt
en
ant that
it
will
not
exerc
ise s
u
c
h
tem1i
natio
n right
,
and (2)
Landlord's
R
es
torat
ion
E
st
ima
t
e
deliv
ere
d
by
Ov
v
n
e
r pursuant t
o Sect
ion
6.1 of the
Lea
se
provides
that th
e
time
to
complete
the re
s
toration
of
th
e
Building
and/or
the
Prem
ises
shall exce
e
d one hund
red e
i
g
hty (
18
0) days
from
the
time th
a
t
the repair work
wo
uld
commence,
th
en,
provided Subtenant
i
s
not
th
en
in default
h
e
r
e
und
e
r
17
following
no
t
ice
and
the
expiration of any applicab
l
e
cure period,
Subtenant
ma
y
elect,
no later
than
fifte
e
n (15) busines
s
day
s
aft
e
r Sublandlord gives Subtenan
t
notice
pursuant
to th
is s
ub
sec
ti
on
(ii)
,
to
tenninate
this
Sublea
se
by n
o
tice to
Sublandlord
subject
to
the tenns
of
Section
6.1
of
the Lease. Sublandlord
ac
knowledg
es
that
simultaneously with
t
h
e
execution
of
this Sub
l
ease
,
Subtenant is entering into
a
su
ble
ase
with
Oracle America Inc.
for
th
e e
ntire rcntable
area of the
4
111
floor of the Building
(the
"
Oracle
S
ublease"), and a
lease
with
Ov\.ner
for
the
entire
rentable area
of
the
6
1
h
floor of the Building
(the
"
BP
L
ease").
Notwithstanding the
foregoing,
in the event of a casualty
or
condemnation which results in the
Oracle
Sublease being
terminated
and the BP Le
ase
being tenninated, then provided (A)
Subtenant
furnishes Sublandlord
with
reasonably
sa
ti
sfactory
evidence
that the Oracle Sublea
se
and
the BP
Lease
ha
ve
been terminated as
a
result o
f
such
ca
s
ualty or condemna
t
ion (the
"
BP/Oracle
Termination N
otice"), and
(ii)
Subtenant
i
s
not
then
in
defa
u
lt hereunder
following notice
and the expiration of any applicable
cure period
,
te11nin
a
te this Sublease within
fifteen
(15)
bu
s
iness da
ys
after Subtenant
provide
s
the
BP
/Ora
cle
Tennination Notice
to Sublandl
or
d
.
16.
No
W
aivers.
Fa
il
ure
by either
part
y
h
e
reto
in
any instance to insist
upon
the
strict
perfom1ance of any
one or
more
of
the obligations of the
other
under this
Sublease, or
to
e
xercise
any
election herein
contained, shall
in
no manner
be
or be d
ee
me
d
to be
a
waiver
by
such
party of any of such other party
'
s defaults or breaches hereunde
r
or
of
any of
the first
party's
rights and remedies by reason
of such
defaults or breaches, or a waiver or
relinquishment for
the future of the requirement
of
strict performance of any and all
of such other
party's
obligations
hereunder. Further, no payment by Subtenant or receipt by Sublandlord
of
a
lesser
amom1t
than the conect amount
or manner of payment
of Rental due
hereunder shall
be deemed to be
other
than a payment on
account
,
nor
s
hall
any
endorsement
or
statement on any
check or
any
l
ett
er
accompanying
any
check
or
payment be deemed to effect
or
evidenc
e
an
accord
and
s
atisfaction, and
Sublandl
o
rd may
accept
an
y
checks or
payments
as
mad
e
without
prejud
i
ce
to
Sublaudlord's
right to recove
.
r the
balance or pursue
an
y
other remedy in thi
s
Sublease
or
o
therwise provided at law
or
equity.
17.
N
otices.
Any noti
ce,
statement,
demand, con
se
nt, appro
va
l
,
advice or
other
communication
required
or
permitted to be
given,
rend
e
red or made by
either party
to the
other,
pur
su
ant to this Sublease or pur
suan
t to
any
applicable law or requirement of
public authority
(co
ll
ect
ively,
"
Notices"
)
s
hall
be in writing and shall
be deemed to have
.
been
properly
given,
r
e
ndered
or
made only if sent
by
(i) personal delivery, receipted by the paiiy
to
whom
addressed. or (ii)
registered
or
certified
mail
,
return
receipt requested
or
(iii)
by
recognized
overnight
courier,
posted
in
a
United States post
office
station
in
the continental United S
ta
tes
,
addressed
(i)
to
Subtenant
(A) prior to the
Commencement
Date, at its address first
above
written
,
Attn: D
ia
ne Mu
si,
Esq., and (B) from and
after
the
Commencement
Date, at th
e
Premi
ses,
Attn:
Diane Musi, Esq., and (ii) to Subland
lo
rd at 4040 West Boy Scout Boulevard
,
Tampa, FL 33607,
Attn:
National
Real Estate - Leas
e
Ad.min.,
with
a
copy
to
(in case of default notices
only)
:
Pric
ewater
ho
us
eCoopers LLP
,
300
Madison Avenue, New
York
,
NY
10017,
Attn: General Counsel. Notices shall
be d
ee
med t
o
h
av
e
been given,
rendered or mad
e
when delivered and
receipted
by
the party to
whom addressed,
in the case of
personal
deli
ve
ry
,
or
upon receipt, as
evi
denced
by
the date of rece
ip
t
noted
on
the
return
receipt,
or
upon the rej
e
ction ther
eof
, in the
case of
mailing
,
or on the
next
busine
ss
day
following
deli
v
ery to a reco
g
niz
ed
overnight
courier.
Either
pa
rt
y
may,
b
y
noti
ce
as
aforesaid act
u
a
ll
y
r
eceiv
ed,
designate a
d i
ffe
r
e
nt
address or addresses for communications
int
e
nd
e
d
for
it.
18.1.
Subtenant
shall not do or
pe1mit any
act
or thing
to be done
upon the
Pre
mi
ses
which is reasonably likely to
subject
Sublandlord to any liability
or
r
es
ponsibility for
injury,
damage to persons or
property or
t
o a
ny liability by reason
of any violation of
any r
e
quiremen
t
of law, and
shall exercise
su
ch
control
over the Premises t
o
th
e
extent of its
o
bligation
s
under th
is
Sublease
an
d t
h
e
Lease, as to protect Subl
an
dlord
against
any
such
liability
.
Subject
to mutual
waiver of
subrog
ation
set
forth in th
e
parti
es'
in
s
uranc
e
policie
s
maintained
o
r required to be
ma
int
ained
under
this
Sublease,
and
except to
th
e exte
nt cau
sed by
the
negligence or
willful
mi
s
condu
c
t
of
Sub
landlor
d
,
i
ts
agents
,
employees
or
contractors
,
Subtenant shall
indemnify
and
s
a
ve
harmless Sublandlord,
the
Sublandlord Parties (hereinafter defined)
an
d
t
he
employees
,
agents and contractors
of
an
y
o
f
th
e
foregoing (collectively,
the
"
Sublandlord
I
ndemnitees")
from
and
aga
inst
(i)
all
claims o
f
whatever nature
ag
ain
st
the
Sublandlord
Indemnitees a
r
ising
from any
neglig
en
t
act
or o
m
i
ss
ion,
or willful misconduct,
of
Subtenant,
its contractors, license
es,
agents, servants,
employees, in
v
it
ees
or visitors,
including
,
without
limitation, all claim
s
against
th
e
Sublandlord
Indemnitees
arising from any
accident,
injury or
damage occurring outsid
e
of the Premises
but an)TVl-here V1-rithin or
about
the
Building, where such accident,
injury or dam
age
results from or is claimed to have resulted
from
an act,
omission or
negligence of Subtenant
or
Subtenant's
contractors, licen
sees,
agents,
s
e
rvants,
em
pl
oyees
, invitees or visitor
s,
(ii)
a
ll
claims against
the Sublandlord
Indemnitees
ar
ising from
any
accide
nt
,
injury or damag
e
whatsoever caused
to any person
or
t
o
the
property of any
p
e
rson and
occurring
in the Premi
s
e
s
durin
g
t
he Ea
rl
y Ac
c
ess
Period and t
he
Term
and
an
y
p
er
io
d
prior
to
Subtenant's surrender of possession of
th
e
P
re
mises to Sublandl
o
rd
,
and (iii)
a
defau
l
t b
y
Subtenant of the
tenns
,
pro
v
i
sio
n
s,
covenants, conditions
and
obligations of
thi
s
Sublease.
Thi
s
i
n
d
e
mnit
y an
d hold harmles
s
agreeme
-
nt shall
in
cl
ude i
n
demnit
y
from and against
any
and all
li
a
bili
ty,
fines
,
suits, demands, costs
and ex
p
e
n
ses
of an
y
kind
or
na
t
ur
e
(including
,
wit
h
out l
imi
tation,
att
orne
ys'
fee
s
and
disbur
sements)
incurred
in
or
in conne
c
tion
vvi.th any
such
claim or
proceeding
brought the
r
eon
,
and th
e
defense
t
h
e
re
of.
In
no e
ve
nt
shall Subtenant
b
e
l
iabl
e
for any consequential,
indirect or
punitive
da
mages
,
except
to the
extent
Subl
a
ndl
o
rd is
liable for
any such
damages under the Lea
se
re
sulti
n
g
from any act
or omi
ssion
of Subtenant,
its
agents, employees
or contractors
,
or
any
person or
ent
ity
claiming
by
,
through
or under Subtenant.
The
foregoi
ng indemnification obli
gations sha
ll
survive
the expiration
or
t
e
rm
i
n
at
ion of this
Sublease.
18.2.
Subject to
mutual
waiver
of subrogation
provisions
set
forth
i
n
th
e
parties'
insurance
policies m
ain
tained
or required
to
be
maintained
under
this Sublease
and
th
e
Lease,
Sublandlord
s
hall indemnify and hold
Subtenant
and the Subt
enan
t
Parties (collectively,
th
e "
Subtenant
Indemnitees
")
hannless from
a
n
y
liabilit
y
or damage
s
(
o
th
er
than
conseq
u
enti
al
,
incidental
or punitive dama
ges)
arising from (i)
an
y
accident,
injury
or
dama
ge occurring
in th
e
Premises
to th
e
extent such accident,
injur
y
or
dam
age
results
from the negl
i
gence
or wi
llful mi
sco
nduc
t o
f Sublandlord,
its contractors
,
agents or employees, (ii) a termination o
f
the Su
b
l
ease
caused
by
a
default
b
y
S
ubl
andlor
d
under
the Lease, unle
s
s
such default is attributable, in
w
hole or in part
,
to any act
or omission of Subtenant
or any Su
bten
ant Indemnite
es,
or
(iii) a
defau
l
t
by
Sub
la
n
dlord
of
the
ten
ns,
p
rov
i
s
ion
s, coven
ants
,
c
o
n
ditions a
nd
obligations
o
f
t
his S
ublease requir
e
d
to
be p
e
rformed
by
Sub
landlord
,
unless such
default
attributa
b
l
e,
in whole
or in
part, to
any
ac
t or
omission
of Subt
enan
t or
an
y
of
the
Subt
e
na
nt
Indemni
tees
.
Except
as
s
et fort
h
in
th
e
preceding
se
n
ten
ce
,
this indemnit
y
and
h
o
ld han
nle
s
s
agreemen
t
s
hall includ
e
indemnity
from
and against any
a
nd
all
li
a
bilit
y,
fin
es
,
su
i
ts
,
d
emands
,
costs and
expe
n
ses of any k
in
d
a
nd
nature whatsoe
v
e
r (inclu
ding
,
w
ith
o
ut limi
ta
tion
,
r
easo
nable
attorney's
fe
es
and disbmsements)
incurred in
connection with
such cl
a
im or proc
eeding
brought thereon, and
the
d
efe
nse th
ereof.
In no
ev
ent
shall Sublandlmd
be
li
a
ble
for
any
conseq
uent
i
a
l
,
indire
c
t
o
r
punitive
damages
her
eunder.
Th
e foregoing
indemnification
ob
lig
at
i
ons s
hall
survive the
ex
piration
or
t
erm
i
nation of
thi
s
S
ub
l
ea
s
e.
18.3.
If any
claim,
ac
t
io
n or pr
ocee
ding is m
ade
or brou
gh
t again
s
t
a
n indemni
fied
party,
whi
ch
claim
,
action
or
proceedin
g
the
indemni
fyi
ng party
shal
l be
obligated to indemnify
the
indemnified
part
y agains
t p
ur
s
uant to
the term
s
of
thi
s
Lease,
the
n
,
up
on
demand
by
the indemnified party, the indemnifying party at
it
s so
l
e
cost and expense, shall resist
or
defend
suc
h claim,
action or
proce
eding
in the ind
em
nified par
ty's
name,
if
necessary,
b
y
such
atto
rneys
as the
indemnifi
e
d party
s
hall approve
, w
h
ic
h approv
a
l
shall
not
be unreasonably
wi
thheld.
Atto
rney
s
for the
ind
emn
i
fied
pai1
y's
in
surer
are
h
e
reby dee
med ap
prov
e
d
for
purpose
s
of
1
his
Article 1 8
.
No
t
wi
t
hs
tan
d
ing the
foregoing, the
indemnified
party may
r
etain
its
o"vn
attorn
eys
to defend
or
assi
st
in d
efe
ndin
g any
claim,
act
i
on
or
pro
cee
ding at
its own
expe
nse.
The
provisions of
this
Article
1 8
shall
s
u
r
vive
the exp
ira
ti
o
n or e
ar
l
ie
r terminati
on
of the Term.
19.
B
roker.
Ea
c
h party hereto
covenant
s,
warr
ant
s and
represents
t
o
the
ot
he
r
party
t
h
at
it
has
ha
d no
dealings, conver
s
atio
n
s
or negotiat
i
ons wi
t
h
a
n
y
bro
ker
concerning
the
execution
and
delivery of this
Suble
ase
except for
CBRE,
Inc.,
on be
half
of Sublandlord,
an
d
Transwestern/RBJ,
o
n b
e
h
a
l
f
of
Subtenant (collectively
,
the
"
B
rokers"
).
Each party
hereto
agrees
to i
ndemnify
and hold
harml
es
s
the
o
ther
party
aga
i
nst and
from
any cla
im
s
for
any
brok
e
ra
ge
co
m
missions
an
d
a
ll
cos
t
s
,
expenses
and
li
ab
ilitie
s
in
con
n
ect
i
on
th
erew
ith
,
in
c
lu
ding, w
i
t
h
ou
t limi
tat
ion, rea
sonable
attorneys'
fees and disbursements
,
arising out of
i
ts
re
spec
ti
ve
repr
ese
nt
ations
and
warranti
es co
ntaine
d
i
n
this
Article
1 9
bein
g untrne
. S
ub
l
andlor
d
s
hall
pay a
n
y fees
and
comm
i
ss
i
ons
due
th
e
Brokers
in
connect
i
o
n
wi
th
th
e
execution
of
thi
s
Suble
as
e
pursuant
to
a
separate
agreement.
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20.
|
Deliverv
of
th
e
P
remises.
|
20
.
l
. S
ub
jec
t
to
the
Subland
lord
'
s
receipt of
(i)
t
he Consent pursuant
to Article
21 hereof,
(
ii
)
t
he Letter
of C
r
ed
it
pursuant to
Articl
e
30
h
e
r
eof,
and
(
iii)
Subtenant's
In
s
ur
ance (as
defin
ed
i
n
A
rticl
e
24
he
reof) i
n acco
rdan
ce w
i
th
Article 24
her
eof (collec
tiv
e
l
y,
the
"D
eliverv Requiremen t
s"),
Sublandl
ord sha
ll m
ake
the Premises
avail
able
to
Subten
ant
on the
Co
mmen
cemen
t
Date
in
its curren
t
"AS
IS"
con
diti
on, subjec
t
to
c
h
a
n
g
e
s
made
by Su
bte
nant
to the
Prem
ises in
c
o
nne
c
ti
on w
ith
Subtenant's Initial
Altera
t
i
ons
,
reasonable
wear and
tear and
any
damage
resulti
n
g
fr
om
the
ac
t
s
or omissions of
Subtenan
t
o
r it
s agent
s,
con
trac
tor and/or employees
between the da
t
e
of this
S
ublea
se
and the
Conune
ncem
en
t
Date
e
xcepte
d.
Sub
landlord
has
not ma
de
and does not make
any
representations
or war
ranti
es as
to
the
physical condition
of
the Premises
,
th
e
use to
whic
h
the
Premi
ses may
b
e
put, or
any
other matter or thing
affec
ting
or
re
l
ating
to
the Premises, and Sub
l
andlord
sha
ll ha
ve
n
o
obligation whatsoever to
a
lt
er,
impro
ve,
decorate or otherwise prepare
the
Premises for
Subt
enant'
s occup
ancy
.
20.2. Notwithstanding
anything
contained in
Section 20.1
hereof, provided
(i)
that
t
he
D
elivery
Requirements
ha
ve
been satisfied to Owner's
re
asona
bl
e satisfac
tion
,
and
(ii)
Subtenant
is not in
de
fa
ul
t
of any of tem1s, covenants
or
conditions
of
thi
s
Sublease
beyond
any
app
l icable
notice
and
cure periods, and fmther
subj
ect
to
all of
the
terms and
condition
of thi
s
Sublease, including, without
limitati
on,
Article
9
hereof:
Subt
enant
may have access
t
o
th
e
Premises, solely
during
the
r
eg
ular
business
hour
s of
the
Bu
ildi
n
g set
forth
in
the Lease
,
during the
peri
od comme
ncin
g
on August
1
,
2014 through the day immediately prior
t
o the Co
mmencement Date
(the
"
E
arlv Access
P
eriod")
for
the
sole
purpose of Subtenant
performing
Subtenant's Initial
Alteration
s
. Subtenant
shall
be
bound
by and
comply
with
all of
the
terms, covenants and conditions
of
this
Suble
ase
and
the
Lease
during
the Early Access Period, other than the obligation
t
o
pay Fixed Rent, including
,
without limitation, obtaining any
an
d
all required approvals
from
Sub
landlord
and Owner under
th
is
Sublease and the Lease
in
connection with Subtenant's Initial Alterations. Sublandlord's granting of access
to
the Premi
ses
pursuant
to
till
s
A
rticle 20
during the Early
Acce
ss
Period may not
be construed as
Sublandlord's and/or Owner's consent
to the
performance by Subtenant o
f
Subtenant's Initial Alterations. Subtenant's
access
to th
e
Premises dming the Early
Access
Period
s
hall
be
limi
t
ed
solely
to
the performance of Subtenant's
Initial
Alterations and in no
event
may Subtenant use
or
occupy the
Prem
ises
during
the
Early Access Period
for
the conduct of any business,
and
in
the
event that
Subten
ant
uses or occupies
the
Premises
for
the conduct
of
any business,
th
e
Commencement Date shall be deemed to be the
da
te
that Subtenant
commences
business operations
in th
e
Premises
fo
r
a
ll
purposes under this Sublease. In
the
event tha
t
Sub
landlord
dete1m
ine
s,
in its reasonable discretion, that Subtenant and
/
or its contractors or employees are
viola
ting
any
of the
t
erms
or conditions of
thi
s
Sublease
or
the
Lease, then Sub
landl
ord
may
revoke any further access to the Premises during the Early Access Period
upon
notice
to
Subtenant
u
nt
il
such vio
l
a
t
io
n
is
resolved to Sublandlord'
s
reasonable satisfaction.
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21.
|
Consent of
Landlord
to
this Suble
ase
.
|
21.1.
Subtenant
hereb
y
acknowledges and agrees
t
hat
this Sublease is subject
to and
condi
t
ioned upon Sublandlord obtaining
the
\VTitten consent
(the
"
Consent")
of
Owner
as
provided in the Lease, wh
i
ch
Consent
shall
include Owner's consent to the Parking Rights
,
the Signage Rights, the Conference Center Rights and the Building Amenities Rights (each
as
hereinafter defined). Promptly following
th
e
execution and delivery
hereof
,
Sublandlord
shall subm
i
t
t
his Sub
l
ease
to Owner. Subtenant hereby
agrees
that i
t
shall cooperate in
good
faith
with Subland
l
ord and
s
hall
comply with any reasonable
requests made
of
Subtenant
by Sublandlord
or
Owner in the procurement
of
the Consent.
In no
event shall Sublandlord
be
obligated to
m
ake
any payment
to
O•vner in order
to
obtain the Consent or
the
consent
to any
provision hereof
,
other
than
as expressly
set
fo1ih
in the Lease, and Subtenant shall not be obligated to
make
any payment to
Sublandlord or Owne
r in
order
to
obta
in
the Consent.
21.2.
If
Ovv11er shall not have executed and delivered the Consent on or before
fo1ty-five
(45) days from the date of this Sublease, either party shall have the right to
can
cel
this
Sub
l
ease
on fifteen (15) days written notice
to the
othe
r
(the
"
Cancellation
N
otice") and on
th
e
date ·which
i
s
fifteen (15) days after
th
e
giving of
suc
h notice,
this Sublease
sha
ll be
deemed canceled and
no further
force
or effect
and neither
party
shall
hav
e
any
liability
or
obligation
to the
other
in respect thereof.
No
twithst
anding
the
foregoing,
if
within
fifteen
(15) days
aft
e
r
the
giv
ing
of
t
he
Cancellation
No
tice
,
the Consent
by
Owner is received,
then th
e
Cancellation Notice shall be deemed null and void and
the
Sublea
se s
hall cont
i
nue
in
full force and
effect.
22.
Assignment
,
Subletting and
M
ortgaging.
22.1.
Subtenant shall not assign, sell, transfer (whether
b
y
operation or
law
or
otherw
i
se),
pledge,
mort
gage
or
o
the
rw
ise
encumber this Sublease or
any
porti
on
of its interest
in
the
Premises, nor sub-sublet
all
or any portion of the
Premises
or permit any
ot
her person
or entity
to use
or occupy
all
or any
portion
of
the Premises, without
the
prior
written
cons
ent
of Sublandlord, which consent may be wi
t
hheld
in
Sublandlord's sole discretion, and
Ovvner
,
in
accordance
with
all
of
th
e
terms and conditions of this Sublease and the
Lea
se. No
twithstanding
the
foregoing, provided Subtenant is
not
in default of any of
the
te1ms,
coven
ants
or conditions of
this Suble
ase,
and
subject
to (i)
Owner's
rights
pursuant
to
Section
5.6.1. l
of
the Lease,
(ii)
ob
taining the
·w
ritten con
sent
of
Ov.ne
r,
if
and to the
exte
nt Own
e
r's consent
is
required under
the
Lease
,
and (ii) all of the terms and conditions of this Sublease and
the
Lease, including
,
\.vithout
limit
ation,
this
Article
22
a
nd
Section 5.6 of
t
he Lease, Sublandlord shall not unreasonably \Vithhold
it
s
consent
to
(A) one or more sub-subleases affecting
a
ll
or any portion of
the Premi
ses
(provided
that
in
no
event shall more than
hvo
(2)
sub-s
ublea
ses of
the
Premises be
in effe
ct
any given time)
,
and
(B)
one
(1) assignment of Subtenant's
interest in
this Sublea
s
e; provided,
that
Sublandlord sh
all
not be deemed to be unreasonably 'v\.i.thholding its consent (x) to a proposed
sub-subletting
or assignment
if
any of the factors set
forth
in
Section 5.6.2(a)-(h)
sha
ll
apply to the
prop
osed su
b-subt
enant
or assignee, or (y)
i
f,
with
resp
ect
to a proposed
assignment,
the proposed assignee does not satisfy the
Minimmn
Net Worth Threshold (as
defined
below).
22.2.
If
this Sublease be assigned,
or
if the Pr
em
i
ses
or any part
thereof
be
suble
t,
in
v
i
olation
of
this
Sublease,
Sub
landlord
,
after default by Subtenant
in
it
s
obligations hereunder beyond any applicable notice and
cure
periods, may collect rent
from
the assignee or
s
ubtenant
and
ap
p
ly
t
he
net amount collected
to the
Rental herein reserved, but no such
assignment or s
ublettin
g shall
be deemed a waiver of the covenant
set
forth
in
thi
s
Section 22.2,
or
the accep
tanc
e
of
the
assignee
or
sub
ten
a
nt
as a tenant, or a release of Subtenant from the further performance and observance by Subtenant of the covenants, obligations
and
agreements
on
the part of Subtenant to be
performed
or observed herein. The consent by Sublandlord
or
Owner to an a
ss
i
gnment, sa
l
e,
p
ledge,
transfer, mortgage or subletting shall not
in
any
way
be construed to re
l
ie
ve
Subtenant from obtaining the express con
se
nt
in
·
writing,
to
the
extent re
quired
by this Sublease
or
the Lease, of Sublandlord and 0\\11er to any further assignmen
sale,
pledge,
transfer,
mort
gage
or
subletting.
22.3.
Either
a
transfer (including the
i
ss
u
ance
of treasury
stock
or
the
creation and issuance of new
stock)
of a
c
o
ntrolling intere
st
in the shares of Subtenant
(if
Subtenant is a corporation, other than a professional
corpora
tion
,
or trnst) or a transfer of a majority of the total interest
in
Subtenant (if Subtenant is a partnership, including a
limited liabilit
y
partnership, or
a
limited liability company) at
any
one
time
or over a period of time through a series of transfers,
shall
be deemed an assignm
e
nt of
thi
s
Sublease
and shall
be subject to all
of
the
prov
i
sions
of
th.is
Sublease
,
including,
without
limitation
,
the requirements tha
t
Subtenant obtain
Sublandlord's and Ovmer
'
s
prior
con
s
ent thereto.
The transfer of
shares of Subtenant
(if
Subtenant
is
a
corporation
or
trust)
for
purpo
s
e
s
of this
Section 22.3
shall not include
the
sale
of
s
hare
s
by
officers or directors
of
Subtenant,
or
by persons O\vning
out
s
tanding shares
of
Subtenant's stock
which sales
are effected through
the "over-the-c0tmter market"
or
through any
recognized stock
exchange.
22.4.
Subject to
Owner's
right pursuant to Section 5.6.4
of the
Lease, if Sublandlord
shall
approve any assignment
of
this Sublease or sublet of
all or any
portion of the Premises, then (i)
if
an assignment is involved, Subtenant shall pay to Sublandlord,
as and w
hen
rec
e
ived,
fifty (50%)
percent of any con
s
ideration received by Subtenant
for
the Premises
i
n connection with such
assignment
in
excess of the
Rental payable by
St1btenant
hereunder, after deducting
"
Su
btenant
' s
C
osts"
,
which are
defined
as
and expressl
y
limited to the
reasonab
le
legal
f
ee
s
,
marketing costs
,
brokerage commissions, rent conce
s
sions,
build-ou
t
expenses
and
a
l
terations
allowances, if any, incurred by
Subtenant
in
connection
wi
t
h such assignment,
and
(ii)
if a subletting
is involved,
and
the
rents
received by Subtenant under
such sublease, after deducting
Subtenant's Costs incurred by
Subtenant
in connection with
such sublease, shall exceed
the Rental reserved hereunder that
are
allocable to the portion of the
Premises sub-sublet by
Subtenant (calculated on the basis of the Rental set forth
herein),
fifty
(50%)
percent of
such excess
shall be paid
by
Subtenant
to
Sublandlord as and when
receiv
ed.
22.5.
Notwithstanding anytb.ing contained
in
this Article 22 to the
contrary, but subject
to
obtai
ning
O•vner's consent to the
extent required
under the Le
as
e, Subtenan
t
shall have the right, without
obtaining
Sublandlor
d
's prior consent, to assign this
Sublea
se
or
to
sub
sublet
the Premises or any
portion thereof
(
i) to
any
e
ntity
(hereinafter
called an "Affiliate") which
directly or indirectly
contro
l
s
,
is controlled by
,
or
is under common
control with
Subtenant
(provided
,
however
any
change in control
of such
Affiliate
whether
by
sale
of
asset
s,
transfer of
capital stock
or partnership interests
(except for admissio
n
of new
shareholders or
withdrawal of shareholders
i
n
the
ordinary course
of Subtenant's
business)
,
merger
or conso
l
idation or otherwise
,
and whether
effected directly
or
indirectly,
s
h
a
ll
constitute an assignment of
this
Subleas
e
for
v.foch the consent
of Sublandlord
and Owner
sha
ll
be requ
i
red and
to
which
the
provisions of
this
Article 22
shall apply, or
(ii)
any
entity resulting
from a
merger
or consolidation
with Subtenant, or
which acquires
all or substantially all of Subtenant's
stock
or
assets
in
connection with the business being conducted
in the
Premises
(hereafter
called a
"
Suni " ing
E
ntity"), provided that
such
transaction (merger, consolidation
or acquisition
of
stock or assets)
shall not be primarily intended to effect a
transfer
of the
sublea
s
ehold
created hereby in whole or in part and shall be
for
a
good
faith business
purpose and (x) any such
Surviving
Entity
shall
have
a
Tangib
l
e Net
Worth (as defined hereinafter)
equal
to
or greater
th.an the
greater
of (A) One Hundr
e
d
Million
Dollars
($100,000,000)
(the "
Minimum
Net
\ Vorth Th r
eshold"),and (B) the
Tangible Net
Worth of any
successor
to the business
conducted
by
Subtenant,
on the
date
occurring immedia
t
ely sixty
(60) days prior
to
the
effective date of
an
y
suc
h
transaction ,
and
(y)
Subtenant
shall
have delivered to Sublandlord
at
least fifteen (15) days
prior
to the effective date
of any such
tran
s
action, a certificate
of
an independent certified public accountan
t
of Subtenant, certifying the Tangible
Net
Worth shall be in
compliance
with clause
(x)
of
this
sentence (all
such entities
set
forth
in
this Section are hereinafter called
"
Permitted
23
7553!0v6 EXECUTION
VERSION
Transferees
").
Nothing contained
i
n
thi
s
Section
22.5
shall
excuse
Subtenant from
obta
in
ing
the
prior consent of
O\vner
to
an
assignment
or su
b-
sublease
under this
Section
22.5
if
and to
the extent required under the Lease.
22.6.
For purposes of this
Article 22
,
(i)
the
term
"
con trol
"
and
like
variations
thereof
sh
all
mean
th
e
right to vote at
leas
t
fifty percent (50%) of
the
equity or beneficial interest
in
the entity involved, and
(ii)
the term "
Tangible
Net \V
orth"
shall
m
ean
the tangible assets
that remain
after
deducting liabilities (such
assets shall
no
t
incl
ude
intangibles such as non
comp
ete
covenants, goodwill and rights
to
patents or royalties), as
d
etermined
in
accordance
with
U
nited
States
gen
erally
accepted
accounting
princi
ples,
consistently applied.
23.
Personalty: Personal Property Taxes. Comme
nc
ing
on
the
Commencement Date and throughout
th
e
Term, Subtenant shall pay when
due
any
personal
prop
ert
y
taxes
d
ue
on
Subt
ena
nt's
personal property or trade
fixtures located at the Premi
ses,
including,
without limi
ta
tion, th
e
Furniture (as
hereinaft
e
r defined) (the
"
Personalty
T
ax").
If
t
he ta'\in
g
authority
bills
Sublandlord or
Ow11er for
t
he
P
e
r
so
nalty
Tax,
Subtenant
shal
l pa
y
Sublandlord
fo
r
same
as
additional
rent
due hereunder
within fifteen (15)
day
s
following Sublandlord's
dem
and
therefor.
24.
I
nsurance.
During
the Tenn,
Subtenant,
at
its
so
le
cost and
ex
p
ense
,
shall
provid
e
and maintain commercial
ge
neral
public
liab
ility
and
property
damage insurance with
a
broad
form contractual
liability
endorsement
and
other
in
surance
req
u
ired
to be carried
by Subl
a
ndlord
in conformity
with the
provisions of
th
e
Lease applicable
t
o the
Premises,
including
,
but
not limited
to,
those set forth
in
the provisions of Sections 5.7
and
5.8 of the Lease (collectively, "
Subtenant's
I
nsurance").
Subtenant
shall
cause
Su
b
l
andl
ord,
Ov..n
e
r,
any other
party which
O"'ner
or
Sublandlord
may
request
und
er
the
Lease to be included as
additi
onal
insureds in
said
polic
y or
policie
s
which
shall
contain
provisions
,
that
the
in
surer e
ndeavor
to give the
insu
reds
not
l
ess
than thirty (30) days' prior
written notice
of
any
cancellation and that
the
act
or omission
of one
insured
will
not
invalidate the
policy as
to
the
other
insureds
.
Subtenant
shall
furnish
t
o Sublandlord
a certificate
or c
ertific
ates
of
insurance or other
r
easonably
satisfactory evidence
co
nfirming
that Subtenant's Insurance
is
in
effect
a
t
or before the Commencement
Dat
e
and, on request, at reasonable
inter
va
l
s
thereafter.
If
and to the extent
Owner
agrees
to
waive
the
requirement under Section 1.1 of
the Lease
th
a
t
Subtenant maintain
commercial
general
li
ab
ility in
surance
on a
"
per
location" basis, Sublandlord agrees that Subtenant's commercial general
li
ability
insurance required to be
ma
in
tained
under this Sublease
shall not be required to
be maintained
on a
"per location"
basis.
25.
D
efault.
In
the
event
Subtenant
default
s
in t
he
perfo1mance of any
of
the terms, covenants and conditions of this Sublease beyond any applicable notice and cure period
set
forth
herein or in the
Lease, Sublandlord
shall
be entitled to
exerci
se
any and all of the rights
and
remedies to
which
it
is
entitled
by
law
,
and also any and
all
of
the rights and
remedi
es
specifically provided for
in
the Lease, which are
h
ereby
incorporated herein and made a part hereof
with
the same force
and
effect
as
if
herein specifically
set
forth
in
full,
and tha
t
where
ver
in the Leas
e
rights and
remedie
s
are given
to Own
er,
th
e same
shall be deemed given
t
o
Sublandlord.
24
755310v6 EXECUTION VERSION
26.
S
urrender/Restoration.
On the Expiration
D
ate, or upo
n
a
n
y
earlier termination
of
thi
s
Sublease, or
u
po
n
a
n
y
r
e
-entry
by
Sub
l
a
ndlo
r
d or the
O\.vner
u
po
n
the
Pr
e
mi
ses, S
ubt
e
n
an
t
shall
,
at
it
s
own expense
,
quit and
s
urr
e
nder the Premi
ses
(and
a
ll
keys
t
h
e
r
e
t
o)
to
Sub
l
a
ndlord broom clean
,
in
goo
d
order,
co
nditi
o
n and repair
except for ordinary
wea
r
and
tear
and
damage
by fire
or
other
cas
ualty
,
condemnation or other
dama
ge
which Subtenant
i
s
not r
es
pon
si
ble for under thi
s
Sublease,
t
oge
ther with all
impro
vements, alterations
and
modifica
tions
which have been made upon the Premises
(except
as otherwi
se
required
by this
Sublease
or the
Lease). Subt
ena
nt
shall
r
emove
from the
Pr
emises and
the
Building all
of
Subtenant's
trade fixtures.
equipment, furniture
an
d
all
personal prop
erty
of all persons
or
e
ntiti
es
claiming through
or
under Su
b
tenant (including, without limit
a
ti
on,
th
e
F
'
umi
tu
re
,
and all
o
r
other
item
s
tha
t
may b
e
required
to be
removed
by Ovmer and
shal
l
pay
Sublandlord on
d
e
mand the co
s
t of
re
pairing
all
damage
t
o
th
e
Pr
em
i
ses
and th
e
Bui
ld
ing
c
a
u
se
d b
y
such
remov
al. Subtenant
sha
ll
also comply
with S
ec
tion
s
5.2
and
5
.l
4 of the L
ease
and
sha
ll
remove
any
Subtenant
Al
tera
t
io
ns,
in
cludi
n
g,
without
limitat
i
on,
all
cabling
and
-.v. iri
ng in
s
t
a
lled
by
or
on
be
hal
f
of Subtenant, which Owner has
r
e
quired
Sub
l
andlord
to
remove
pu
rs
u
ant
to
Sections 5.2 and
5
.
14
of
the Lease,
and
r
es
tor
e
all
d
a
m
age
to
the
Premises and the B
uilding cause
d
by
such
remo
v
al
,
unless Owner
provides Sublandlord with
a
n
agreement in
fon
n
and
su
bstance
acce
ptable
t
o
Sublandlord in
its
sole
an
d
abso
lute discretion relea
s
ing Subl
an
dlord from all r
estorat
ion
,
removal and repair
obligations with respect to
Subtenant
Alterations, including
,
without lim
itation
,
cabling and vvi
r
in
g
in
stal
led by Subtenant. Notwith
s
t
a
nding
the forego
ing,
Subtenant shall
have no obligation
to
remove
any al
terations
or
improv
eme
nt
s
installed in
th
e Premises
by or on
behalf
of
Sublandl
o
rd
.
27.1.
.
A
s of
the date that
th
at
OV\
r
ner
deli
v
ers
th
e
Consent, Sub
l
andlord
her
e
by
conveys all
right, title and int
erest of
Sublandlord in and
to the
furninue and equipment
in th
e
Prem
ises
as
o
f
the dat
e
of
thi
s
Sublease
(the
"
F
urniture"),
vvithout
any
in
s
trum
en
t
of
conveyance,
and
w
ithout re
co
u
rse,
warranty or
re
pre
se
ntat
i
on of an
y
kind or n
at
ure
whatsoever, express
or
implied
,
incl
u
ding
any warranty of fitness
for
any
parti
cula
r pur
pose.
Subtenant
sha
ll
be liab
le
for
a
n
y
sales
or u
se
ta'i:es assessed
b
y
any governmenta
l
authority
i
n co
rm
ec
ti
o
n
with
t
h
e
u
se
and
conveyance
of
the
Furniture to
Su
b
t
e
nant hereunder.
Notw
iths
t
anding
the
forego
i
ng, Sublandlord representi;
that as
of
th
e
d
ate of
this Sub
l
ease,
it
has titl
e
to the Furniture,
free
and
cl
ear
of a
ll
s
e
curity interests,
liens and encumbrances
.
27.2.
Subtenant
acknowledges
that it has inspected the Furn
i
tur
e,
i
s
fami
liar
with its cond
ition
and shall
accept
the
same
in
its
current
"AS
-I
S, WHERE
IS" phys
ic
al
condition,
w
ith all faults and d
efec
t
s
(lat
ent,
pa
t
e
nt or otherwise)
,
re
aso
n
a
bl
e
wear
a
nd
tear from
th
e
date
o
f
thi
s
Sublea
s
e throu
g
h the
day
immed
iately
preceding the
Commencement
Da
te excep
ted
.
Sub
t
en
ant ackn
ow
l
e
dg
es
that
no
represent
a
tion
s
,
warranties, agreements
of
any
kind
whatsoever,
eith
e
r
express
o
r
implie
d
,
h
ave
been mad
e
by
th
e Brokers
,
Sublandlord
,
Sublandlord's
a
g
en
ts
or
employees or
age
n
ts
or
an
yo
ne el
se
acting
o
r
purporting
t
o
act
on
Sublanq.Iord's
behalf and
Sub
l
andlord
s
hall h
ave
no
liability to
Sub
tenant
its agents or employees in regard
to
the
p
h
ys
i
c
al
or
op
eratin
g
condition
of the Furniture
,
any freed.om from
defects
(latent, patent or
othen
v
ise
),
any inc
o
me
or profit
to be deri
ve
d ther
efrom, any
expenses in cormection
'>
vith
the
operation,
m
a
int
enance
, r
epa
ir or repla
cement
thereof,
th
e
ability
to
25
755310v6 EXECUTION
VERSlON
m
a
int
a
in
,
operate
or use
the Furniture
,
it
s
merchantability
or fitn
ess
for any
paiiicul
ar
pw-pose
or u
se, o
r
any
other matte
r
or thing
affecting
o
r
re
l
a
tin
g
to
th
e
whole of any
p
a.ii
ther
eof.
27.3.
Except to
the
exte
nt
res
ulting from the negli
g
ence
or willful misconduct
o
f
Sublandlord,
its agents, empl
o
yee
s
or contractors,
Subtenant agree
s
t
o
i
nderruuJy
and
save Sublandlord harmless from and
against any and all
bills for labor per
for
med
and
materials
furnished
to Subtenant and any applicable
sales and
use taxes arising out
of or
in conn
e
ction with
the use
and conveyance of the
Furniture
to
Subtenan
t,
and from and against
a
ny
and all
liens, bill
s
or
claim
s
therefor or against the Furniture and from and against all lo
sses,
dam
a
ges
,
cos
ts
,
e
x
pen
ses
,
suits
and claim
s
what
soe
v
e
r in connection
therewith.
28.1.
This Sublea
se
conta
ins
th
e e
ntire agreem
e
nt bet
w
een th
e
part
ies
and all
prior neg
o
ti
a
tions and agreem
e
nts
are
merg
ed
in
th
is
Sublea
s
e.
Any
a
greeme
n
t
here
afte
r made
shall
be ineffective to change
,
modify
or
di
s
charge this Sublease in
whole
o
r in
part unless
s
uch
agreement
i
s
in
VvTiting
and
signed
by
the
parties
hereto.
No
provision
of this
Suble
ase s
hall be deemed to have been
·
waived by Sublandl
o
rd
or
Subtenant unless
s
uch
waiver
be in
VvTiting and signed
by Sublandlord or Subtenant,
as
th
e
case may be. The coven
ants
and agreements contained
in this Sublease shall bind and inure to the
benefit
of Sublandl
or
d
a
nd Subtenant and their
respect
iv
e
permitted
successors and assigns.
28.2.
In
t
he
event that
any
provision of this Sublease shall be
held
to be invalid
or
m
1e
nforceable in any re
s
pect
,
the
vali
dity,
l
egali
t
y
or enforceabilit
y of
the
remammg
provisions
of
thi
s
Sublea
se
sh
all b
e
un
affected
th
e
r
e
by.
28.3.
The
paragraph
h
eadings
a
pp
ea
ring herein
are
for
purpo
ses
of
con
v
enience
only and
ar
e
n
ot
deemed to be a part
of
this
Sublease.
28.4.
Capit
a
li
ze
d t
e
nn
s use
d h
e
rein
shall have
the
same
m
eani
ng
s
a
s
are ascribed
to them in the Leas
e,
unles
s
otherwise expressly
de
fi
ned herein.
28.5.
This Subl
ease
i
s
offered
to Su
b
tenant for sign
a
tur
e
with
the
express understanding an
d
agreement that thi
s
Sub
le
ase
shall
not be binding upon either party unless and
until
both parties
shall
have
executed and
Sublandlord has delivered a fully
executed
copy of this Sublease
to
Subtenant.
28.6.
If
any governmental lic
e
nse
or
permit shall be
r
equired for the proper
and
lawful conduct
of Subtenant's busine
ss
in
th
e
Premises or any part
thereof, including, withou
t
l
imitation,
an amendment to th
e
certificate of occupancy,
Subtenant
,
at
i
t
s
sole cost and
ex
pense
,
shall
duly
procure,
and th
e
r
eafter
maintain,
s
uc
h
license or p
erm
it
and
subm
it th
e
same for
insp
e
ction
by
Sublandlord.
28.7.
Neither
th
e
partn
e
r
s
compnsmg
Sublan
d
l
ord
(if
Subland
l
ord
is a
partnership), nor
the
shareholders, partners,
directors
or
office
rs
of
S
ub
l
an
d
lor
d
or
any
of
th
e
fo
re
going
(collec
t
ively,
the
"
Sub
landlord
P
arties")
shall be liable
fo
r
the
performance o
f
Sublandlord's
obligations und
e
r this Sublea
se.
Subtenant shall
lo
ok
sole
ly
to Sub
l
andlord
to
26
7
553
1
0v6
EXECUTION
VERSION
enforce
Subl
a
ndlord
'
s o
b
l
igation
s
her
eun
der and sh
a
ll not
seek damages against
any of
the
Sublandlord
Parties.
Subtenant
shall
look only to th
e
assets
of Sublandlord for the
satisfaction of Subtenant's
reme
.
dies for th
e
collection of
a judgmen
t
(or other jud
ici
al proce
ss)
requiring th
e
payment
o
f
mon
ey
by
Sublandlord
in
t
he e
v
ent of
any
default by
S
ublandlord hereunde
r,
and
no
prope1i
y
or assets
of th
e
Sublandlord
Parties
shall
be subject
to
levy
,
execution
or
other enforcement
procedure
for
the satisfaction
of
Subtenant'
s
remedie
s
under
or
with
respect
to
this Sublease,
th
e
relationship of Sublandlord and Subtenant her
e
under or Subtenant's use or
occupancy
of
the
Premise
s.
28.8.
Nei
t
h
er
the partn
e
rs comprising Subtenant (if Subte
nan
t i
s
a
partnership), nor
the shar
eh
olders, partners, directors or officer
s
of
Subten
a
nt or any
of the
foregoing
(collectively, the
"
Subtenant
Pa r
ties")
shall
be liable for the performance of Subtenant's
obligations under
this
Sublease.
Sublandlord
shall
look
solely
to Subten
a
nt to enforce
Subtenant
's
obligation
s
her
e
under
and
s
hall not
seek
damage
s
against any of
the Subt
e
nant
Parties.
Sublandlord
s
hall look onl
y
to the a
ssets
of Subtenant for the
satisfaction of Sublandlord's remedies for
the collection of a judgment (or other judicial proc
ess)
requiring the payment of
money
by
Subtenant in the event of
any
default by
Subtenant
hereunder, and no
property
or
assets
of
the
Subtenant Parties shall be subject to levy, execution o
r
other
e
n
fo
rcement
procedure
for the
satisfaction
of
Sublandlord's
remed
ies
under or
w
i
th respect
to
this Sublea
se,
the relation
s
hip of Subt
enan
t and Sub
l
andlord hereunder.
28.9.
This Sublease
sha11
b
e
governed b
y,
and
construed
in
accordance
wi
t
h
,
the
law
s
o
f
the Commonwealth
of Ma
ssach
u
setts.
28.l 0. Thi
s
Sub
l
ease m
ay
b
e
execut
ed
in
multipl
e co
unterparts,
each
of which
shall
be dee
m
ed and origin
a
l
and
all
of which
tog
ethe
r shall constitute
a single
instrument. Delivery of
a copy
of thi
s S
ublease bearing a
signature by
fac
s
imil
e
transmission or by electronic
mail in "pd
f '
fonnat"
s
h
all
h
ave
the
same effect
a
s
ph
ys
ical
deliver
y
of this Sublea
se
bearing
th
e
original
s
ignature.
29.
"
WAIVER OF JURY TRIAL AND COUNTERCLAIMS:
29.1.
THE RESPECTIVE PARTIES HERETO SHALL
At D
THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROlJGHT BY
EITHER
OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS
"
WHATSOEVER ARISING OUT OF OR IN ANY
\VAY CO'ECTED \VITH THIS SUBLEASE, THE RELATIONSHIP OF SUBLANDLORD
AND
SUBTENANT,
SUBTENANT'S USE OR OCCUPANCY OF THE PREMISES, OR FOR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE,
EMERGENCY
OR OTHERWISE. IF SUBLANDLORD COMMENCES ANY SUMMARY PROCEEDING AGAINST SUBTENANT, SUBTENANT VILL NOT lNTERPOSE ANY COUNTERCLAIM OF \VHATEVER NATURE OR DESCRIPTION IN ANY
SUCH
PROCEEDING (UNLESS FAILURE TO IMPOSE SUCH COUl ff ERCLAIM WOULD PRECLUDE SUBTENANT FROM ASSERTING IN A
SEPARA.TE
ACTION
THE
CLAIM
WHICH
IS THE SUBJECT OF SUCH
COUNTERCLAil\'1),
AND WILL
NOT
SEEK TO
CONSOLIDATE SUCH
27
7553
1
Cv6
E
XECUTION
V
ERSt
ON
PROCEEDING
WITH
Al\Y
OTHER ACTION
':VHICH
MAY
HAVE
BEEN OR WILL
BE
BROUGHT IN ANY
OTHER COURT
BY
SL"BTENANT.
29.2
. Tlill
PARTIES
HERETO
AGREE
AND
CONSENT
Tllr\T
ANY PARTY TO THIS SUBLEASE
MAY FILE A
COPY
OF
THIS
SECTION
'
WITH
ANY COURT
AS WRITTEN
EVIDENCE
OF THE CONSENT OF THE PARTIES TO Tllli
\:V
AIVER OF THEIR RIGHT TO TRIAL
BY JURY
AS PROVIDED IN THIS SECTION.
30.1.
Simultaneou
s
ly
'\.vith
Subtenant's execution
of
this
Sublease,
Subtenant has delivered to Sublandlord an irrevocable Lett
er
of
Credit
(the
"
Letter of C
redit")
(as hereinafter
defined) in th
e
form
attach
e
d
hereto as
Exhibit D
,
in
the amount
of Two
Hundred
Thirty-Nine Thousand Two Hundred and
58
/
100 D
olla
rs
($239,200.58),
as
security for
the
full and faithful performance and observance by
Subt
e
nant
of
the t
e
rm
s,
covenant
s
and
cond
it
ion
s
of
this Sublea
se
.
30.2.
The
Letter of
Credit
shall be
issued
by and
drawable
upon
any
commercial
bank,
trust
company, national
bankin
g asso
ciation
or sa
v
ings
and loa
n
association acceptable to Subland
l
ord
in
it
s
sole di
s
cretion with offices
for
banking
purpo
ses
in
either
New
York
,
NY or Tampa,
FL
(the
"
Issuing
B
ank"),
which
h
as
outstandin
g
unsecur
ed,
uninsured
and
unguarant
eed
indebtedness
,
or
shall have
issued
a
l
ette
r of credit
or other credit facility
that constitut
es
the
primary security for any
outstandin
g
indebtedn
ess
(which
is otherwise
uninsured
and Wlguaranteed)
,
that
is then
rated, without
regard
to
qua
l
ification
of
such
rating
by
sym
bo
ls
such
as
"+"
or
"
-
"
or
num
e
ri
c.a
l
notation,
"Aa"
or better
by
Moody'
s
In
vest
ors
Service and
"AA" or
better
by
Standard
&
Poor
's
Rating Service,
and
has total
asset
s
of
not less
than Two
Hundred
Billion
($200
,0
00
,
000,000)
Dollars.
If
upon
any
transfer
of
the
Letter of
Credit, any
fees
or charges shall be so
impos
ed,
then
such fees or
char
g
es
sha
ll be
payable solely
b
y
Subtenant
,
and the
Letter
of Credit shall specify that
i
t
is
tran
sfe
rable
withou
t
charge
to Su
b
landlord
.
If
Sublandlord
p
ay
s
any
such
fees
or char
ges,
Subtenant shall
reim
b
ur
se
Sublandlord therefor upon demand. The
Letter o
f
Credit shall provide
that
it
s
hall be
automatically
renewed,
without amendment or need for any other action, for
con
secu
ti
v
e perio
ds
of one year each
there
afte
r du
r
in
g
the
Term,
as
the
same
ma
y
b
e
extended
(an
d in no e
vent sha
ll
the
Let
t
er of Credit expire prior to
t
he
sixtieth
(60th)
day
following the
Expiration
Date)
,
u
n
l
ess
the I
ss
uin
g
Bank notifies
(the
"
Non
Renewal
Notice
")
Sublandlord
by certified
mail,
re
tu
rn r
ec
eipt
req
uested, not l
ess
than
forty
five (45)
days
next preceding
the then
expiration
date
of
the Letter
of Credit stating that
the Issuin
g
Bank
ha
s e
l
ec
t
e
d not to r
enew
the
Letter of Credit. The
Issuin
g
Bank shall
agree
w
ith all
beneficiaries, drawers,
endor
sers,
tr
ansferees and
bona
fide
holder
s
tha
t
drafts
drawn
under
and in
compliance with
the t
erms
of
the
Letter
of
Cred
i
t
will
be
duly honored
up
o
n
presentation
to
the
Issuing
Bank
at
an office
location
in
New
York, NY or Tampa, FL. The Letter
of
Credit shall be
su
bject
in all
respects to
the
International
Standby Practices 1998
,
Int
ern
ational
Chamber of
Comme
rce
Publication No
.
590.
30.3.
If
(a)
Subtenant defaults
in
the payment or perfo1mance of
any
of
the terms,
covenants or conditions
of
this
Sublease,
including
without
limitation,
the
payment
of Rental,
following notice
and the expiration
of
any applicable cure period
,
or (b) Sublandlord
r
ece
ives
a Non-Rene\val Notice, Subland
l
ord shall have
the ri
ght
by sight draft to
draw
,
at its
28
75
531Ov6
EX
"EC
UT10N VERSION
election, all
or
a
portion
of the
proceeds of
th
e
L
e
tter
of Credit
and th
e
r
e
aft
e
r hold
,
use, apply, or retain the whole
or any par
t
of
s
uch
proceed
s,
(x)
to the extent required
for the
pa
y
ment
of
a
ny
Rental or any other sum as
to
w
hich
Subtemmt is
in default includin
g
(i) an
y s
um
which Sublandlord
may expend
or may be
requir
e
d
to
e
xpend by reason
of Subtenant's default,
and
/
or
(
ii)
any
d
a
mages to which
Sublandlord
i
s
entitled
pursuant to this Suble
ase,
whether such
damages accrue before or after
summary
proceedings or other reentry by Sublandlord
and/or
(y)
pursuant to
Section 30.3(b)
hereof, as cash security to guaranty Subtenant's obligations
hereunder,
unless and until Subtenant deliver
s
to Sublandlord a substitute
Leiter
of
Credit
which
meets
the requirements of this
Article 3
0, provided at such time no default by
Subtenant
has
occurred
and is continuing b
eyond
any applicable
notice and cure periods
,
in
\Vhich
event Sublandlord shall
have no
obligation
to
accept such substitute
Letter
of Credit
and
shall
have the
right to
r
e
tain the cash proceed
s.
If
Subtenant shall comply
wi
t
h all of the t
e
rms,
covenants
and
conditions
of
this
Sublease, th
e
Letter of Credit or
the proceeds thereof
,
as the
case
ma
y
be,
shall
be returned to Subtenant no later
than sixty (60)
days after
the
Expiration D
a
te and
after
delive
ry
of possession
of the Premise
s
to
Sublandlord
in
the manne
r
required by this
Sublease and
the Sublease.
30.4.
Upon an a
ss
ignment of
Subland
l
ord's interest in thi
s
Sublease, provided Subtenant is not in default hereund
er,
Sublandlord shall
transfer the Letter
of Credit (or proceeds thereof) to
the transferee of Sublandlord
(the "
T
ransferee").
Within five
(5) days after
notice to Subt
e
nant that Sublandlord has a
ssigned
its
interest in this Sublease, Subtenant,
at
its
sole
cost, shall (if required by Sublandlord)
anange for
the transfer of the Letter
of Credit
to the
Transferee, as
designated by Subl
an
dlord
in
the
foregoing notice,
or
have the
Letter
of Credit
reissued
in the name of the
Transferee. Upon such
transfer
of
the
Letter of
Credit
,
Subtenant shall
look solely to the
Transferee for
the r
e
turn of the Letter of
Credit
,
a
nd thereupon
,
Sublandlord
shall
without any further agreement
b
e
tween the
parties
be
released
b
y
Subtenant
from all liability
therefor
,
and it is
agreed
that the
provis
ions hereof
shall
apply to
every
tran
s
fer or assignment
made of the Letter
of Credit to
a Transferee. Sub
te
nant
shall
n
ot
ass
ign
or encumber
or attempt to
assign or encumber the
Lett
er
of Credit (or proceed
s
thereof)
and neither Subland
l
ord
nor its
successors or assigns shall
be bound by
any
such
action or attempted a
ssi
gnment,
or
encumbrance.
30.5.
If
Subtenant defa
u
lts in the payment or performan
ce
of
any
of the
terms,
covenants or
conditions of
this
Sublea
se
following
notice and the expirati
on
of
any
applicable
notice
and
cure period, including the payment
of
Rental, Sublandlord may,
at
its
sole
option, r
e
tain, use, or apply such portion
of
th
e
Lett
e
r
of
Credit (or proceeds thereof) to
the
extent required
for
payment of any
(i)
Fixed R
e
nt
;
(ii)
additional
rent; (iii)
other swns as
to which
Subtenant
is obligated to pay under thi
s
Sublease; (iv)
sums
that Sublandl
ord
may
e
x
pend or may be requir
e
d to expend by rea
s
on
of
Subtenant'
s
default
of this Sublease
;
(v)
l
oss
or
damage that
Sublandlord
ma
y
suffer b
y
reas
o
n
of Subtenant's
default, including,
without
li
m
it
a
tion
,
any
damages incurred by
Sublandlord or
deficiency resulting from the re
l
etting of
the
Premises,
whether such
damage
s
or de
fic
i
ency acc
ru
es
before or
after summary
pro
cee
dings
or other
r
ee
ntry
by
Sublandlord;
or
(vi) costs
incurred by Sub
l
andlord in
connection with the
cl
e
anin
g
or
rep
a
ir
of
th
e
Premises upon expiration
or earlier
termination of thi
s
Sub
l
ease
.
29
755
3
1Dv6
EXEC
UTJON VERSION
30.6.
In no
even
t
s
h
a
ll
S
ublandlord
be obligated
to
apply
t
he
L
etter
o
f
Credit,
and
Sublancllord's
right to bring
a
n
ac
tion
or special
p
ro
ceeding to r
ec
o
ver
d
amages o
r
o
t
h
e
r
w
i
s
e to
ob
t
a
in p
ossess
i
o
n
of
the Premi
ses
before
o
r
after Sublandlord's
de
cl
arat
i
o
n
of
the t
er
min
a
ti
o
n
of this Sublease
for
nonpayment
ofrent
or
for
any othe
r reason
shall
n
o
t b
e
affected
by r
eason
of
the fact that Sublandlord
hold
s
the
Le
tt
e
r
of
Credit.
30.7.
The Letter
of
Cre
dit
s
hall not be a limitation on Sublandlord'
s
damages or
other
rights and remedies availabl
e
und
er
this Sublease, or at law or
equity;
nor
s
hall the Letter
of Credit be
a payment
of
liquidat
e
d
damages.
30.8.
If
Subl
a
nd
lo
rd u
ses
,
applies,
or retains all
or
any
portion of the Letter of Cred
i
t
(or
proceeds
thereof), Subtenant will
re
sto
r
e
t
he
Letter of
Credit to
it
s
o
r
iginal amount
(or
th
e amo
unt as
s
o
reduced
pursu
an
t t
o
Section 30.11
her
eo
f
,
if appl
ica
bl
e)
within fi
ve
(5)
bu
s
iness
days after written
demand
from
Su
b
landl
or
d
.
30.9.
Subland
l
ord
sha
ll
not
be
re
quired
to keep
the p
roceeds
of
the Letter
of
C
redit
i
u an interest-bearing
a
ccount.
Subtenant shall promptly
ex
ec
ute
any
forms which
may be n
ecessary
or
required by Subl
a
ndlord's
depository
holding such proceed
s.
Su
bte
nant
shall
be r
e
quir
ed
to provide to Sublandlord it
s
Federal
ta.
'
.
C
id
e
ntification number
which shall be
required
to be
updated
in
the event of
any
ass
ignment of this Sublease as may be
perm
itte
d pursuant
to
Article 22
hereof.
30.10. In the
event
any
bankruptcy,
insolvency, reorgani
za
tion or
o
th
er
creditor
debtor
proceedings
shall be institu
ted
by
or against
Subtenant,
or
its
succe
sso
rs or
ass
ign
s
, or any
surety of
this Sublease, the proceed
s
of the
Lette
r of Credit shall be deemed
to
be
applied
first
to
t
h
e
payment of
any Fix
e
d
Ren
t
and any
i
tem of
additional
rent du
e
Sublandlord for
a
ll p
eriods p
ri
o
r t
o
the
in
s
titution
of such
proceeding
s, and
th
e
balance
,
if any
,
of
suc
h Letter
of Credit
ma
y be
retained
by Sublandlord i
n
p
art
ial liquid
atio
n
of
Sublandlord's
damage
s.
30.11 Notwithstanding anything
co
nta
ined in this
Article 30,
o
n
or
about Jan
uary 1,
2016, provided
Subtenant i
s
n
o
t th
e
n
,
and
has
never
been,
i
n d
efa
u
l
t
under thi
s
Sublease
fo
llo
w
ing notic
e
and the expira
tion
of
any
applicable
cure period,
then Subland
l
o
rd shall,
at Sub
t
enant's
so
le cost and
expense, agree to amend
the Letter of
Credit to reduce the amount thereof
to One Hundred Fifty-Nine
Thou
s
and
Four Hundred Sixty-S
even an
d
05
/
100 Dollars
($
159,467.05), which reduced Lette
r
of Credit shall
remain in place and b
e
held by
Sublandlord for
the remainder of the Term hereof pur
sua
nt to
the
tenns of this Article 30
.
31.
P
arking. Subject to
(i)
th
e
terms and
conditions
of
th
e
Le
ase an
d
this
Sublea
se,
and
(ii) Owner's
consent to the
use
b
y
Subtenant of
the parking
s
pace
s
allocated to Sublandlord pursuant
to
in the Building parkin
g
fac
i
li
ty
allocated to
Sublandlord und
e
r Section
2.2.1 of
the
Lease (the
"
Parking S
paces")
,
Sub
t
enant
ma
y
use
the Parking Spa
ces (
t
he
"
Pa rking Rights
").
Su
b
t
ena
nt
shall use
the Parki
n
g
Sp
a
ces for
its
em
ployees at
its sole risk. Subtenant
sh
all pay to
Sub
l
andlord,
within
ten (10) day
s
of
receipt of demand
therefor, any and
a
ll
costs and
ex
penses
incurred by Sublandlord for
t
h
e
u
se
b
y
Subtenant o
f
the
Parking Sp
aces,
incl
ud
in
g,
without
limita
t
ion
,
all
parking
charges, fees and taxes charged
by
Owner for
th
e
Parkin
g
Spaces
from
t
ime
to
time
during the
Term
hei-e
of,
i
f
any.
30
755310v
6
EXECU
TION VERSION
32.
S
ignage.
Subjec
t t
o (i)
t
he
t
e
1m
s
and
cond
ition
s of
t
he
Lea
se and this
Subl
ease,
and
(ii)
Owner's
con
sent
to install one (A)
direct
ory
listing on the
Buildi
ng's
main lobby
directory ("Directory
Li
s
ting")
,
(B) building standard suite
s
i
gnage
on
the exter
ior
of
th
e
Pr
e
mises
(the "S
uite
Signage"), and
(C)
Subtenant's
n
ame and
lo
go on
th
e
Bui
lding's Monument Sign,
if
any (the
"M
onument
Sign
") (collec
tiv
ely,
"
Signage
Rights
"),
Subtenant
may
have the
Sig
nage
Rights
to
the extent
of
Subl
and
l
ord's
Sign
age
Rights under the
Lea
se.
33.
Conference Center. Subject
to
(i)
th
e
terms
and
cond
i
t
ions
of the Leas
e
and
this
Sub
le
ase, including all
rul
es
and
regul
at
i
ons
p
romulgated by
O
wne
r
from time
t
o
time
d
ur
i
n
g
the Tem1,
and (ii
)
Owner
's
co
n
se
nt t
o S
u
b
t
e
nan
t'
s use
of
the
Conference
Center (as
defin
ed
in
Section
8
.26A of
the Le
ase), S
ubten
ant
may
use th
e Confe
rence
Center
to the
extent
Sublandl
or
d
is
permitted
to
u
s
e the
Conference Center
under th
e Lease,
on
a
first
-come, fir
st
-
serv
ed ba
sis
in common with other tenants and occupants of
the
Building
(th
e
"
Co
nference
Center
Right
s
"). Sub
tenan
t sha
ll
pay to Sub
lan
d
l
ord
,
within
fifteen (15) days
of
receipt of demand
the
r
efor,
any
and
all costs and
expen
ses
in
c
urred
by
Sub
landlord
for
the
u
se
by
S
ubtenant
of the
Confer
e
nce
Cente
r, includi
ng
, with
out
limitation, charges
bill
ed
by
Owner
to Sublandlord
under S
ection
8.26B
of th
e
Lease,
from
time
to time during the
Term
h
ere
of.
34.
Building
A
menities.
Subject
to
(i)
the
t
erms
and
condit
i
ons
of the
L
ease
and thi
s
Sub
l
eas
e
, and (ii)
O
wner's
consent
to
the
use
by
Sub
t
e
nant
of
the
Am
enit
i
es (as
defin
e
d
in
Sec
tion
8.28
of
the
Lea
se),
Subtenant may use the Building Amenities
for
its
e
mployees
at its
so
l
e
risk
t
o t
h
e exte
nt
Sublandlord
i
s
permitted to use
th
e
Building Ameniti
es under
the
Lease (the
"
Building
Amenities
Rights
").
Subt
enan
t
s
h
all
pa
y
to
Sublandlord,
w
ith.in
fifteen
(15) days
of receipt of
demand
therefo
r
, any and a
ll
costs
and
expenses
in
curred
by Sub
landlord fo
r th
e
u
se
by Subtenant
of
th
e
Ameniti
es,
if
any
,
charged
by Owner
fro
m
tim
e
t
o t
im
e
duri
ng
Term.
|
|
|
|
35.
|
M
e
mber Limitation of Liabilitv.
|
35.1.
Subte
n
ant
acknowledges
th
a
t
Su
blandl
o
r
d
i
s
a
limited liability company
(the "
Company
")
.
Subtenant
ag
ree
s
that
admissions of
addition
al
members
to the Company,
the death
o
f
members,
and
the retirement,
withdrawa
l
o
r
dismissal o
f
me
mber
s from
the
Company
s
hall not constitute event
s
or con
d
i
ti
o
n
s
of
bre
ac
h
or default
und
e
r this Sublease nor
shall
t
he sa
m
e
constitute
an ass
i
gnment
of
this Sublease. Subtenant
agree
s
that
S
ubt
e
n
ant sha
ll n
ot seek
personal
jud
gment
against
,
or
l
evy upon t
h
e assets
of, any
then c
urrentl
y act
i
ve,
retired,
wit
h
drawn,
deceased or dismissed member
of
Su
b
l
andlord,
nor
against
or upon
the asse
t
s
of
any
suc
h
member's
s
p
ouse, family
or estate
,
nor
against
or upon
th
e assets
of any
membe
rs
who
are
thereafter admitted to
t
he Co
mp
any (a
ll
of the foregoing being
co
ll
ec
ti
v
el
y
referred
to
h
erein as the
"Pai-ties
"),
for
an
y
amo
un
ts
due
or w
hich
may
become due under
o
r
by reason
of th
is
S
ub
le
a
se,
or
for
the
performance
of
any of
the
obligations of
Sub
l
an
dlord
under this Sublease.
S
ubtenan
t agrees
that it
sha
ll b
e
entitl
ed
t
o
proce
ed only ag
ain
s
t
the
Compan
y
and t
he a
ssets of
the
Company for
any
such amou
nt
s or for
the
pe
r
formance
of
any such obl
i
gat
i
ons.
Subte
nant agrees
th
a
t
for the
p
urposes of
the
foregoing
,
the a
sse
t
s
of the
Company
shall no
t
include
(i)
any
n
egativ
e
capita
l
accounts which
may
from
t
ime
to t
ime
exis
t
in
th
e
Co
mp
any,
(ii
)
any obligation
of a
ny of th
e
Parties
to
contribute capital
t
o the Company,
pursuant to
the
operating atJ,ieement of
the
Co
mp
any or
otherwise
,
or (iii) any right which the
Co
mpan
y
or any
tru
s
t
ee or sim
ilar
person ma
y
otherwi
se
have on behalf of
th
e Company
t
o
r
equire
contribution from any
of
the
Parti
es
to
31
755310v6
EXEC
U
TION
VERSJON
satisfy debts of the Company in any bankruptcy, reorganization, or similar proceeding involving
the
Company. Nothing contained herein
shall
constitute a waiver or release
of
any
of
Sublandlord's obligations under this Sublease or of any of the Subtenant's remedies against Sublandlord under this Sublease or limit the right of Subtenant to name any partner, fmmer member, or future member of the Company as a party in any action or suit by Subtenant against Sublandlord to the extent that applicable state law or court rules or procedures require Subtenant to name the members (rather than the Company entity) as parties in order to obtain judgment against, or proceed against, the Company or the assets of the Company; provided, however, that no judgment resulting from any such suit or action shall be enforced against any such member personally or against any assets of such member
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
32
755310v6
EXECUTION VERSION
IN WITNESS
WHEREOF
,
the
parties hereto
have
duly executed
this Agreement of
Subleas
e
as of the
day
and
year
first above
wTitten.
SUBLANDLORD:
PRICEWATERHOUSECOOPERS PRTM
MANAGEMENT
CONSULTANTS, LLC
Title:
SUBTENANT: CARE.COM, INC.
33
755310v6 EXECUTION
VERSION
EXHIBIT
A
FORM OF COMMENCEMENT DATE AGREEMENT COMMENCEMENT DATE AGREEMENT
TlllS COi\!IMENCEIVlENT DATE AGREEMENT
(this
"
Ag
r
e
ement")
is
dated a
s
of
day of
,
2014, by
and
between PRICEWAT
E
RHOUSECOOPERS PRTM
MANAGEMENT
CONSULTANTS, LLC (
"
Sublandlord"), and CARE.COM, INC.
(
"Subtenant").
WITNESSETH:
WHEREAS
,
Subl
a
ndlord and
Subtenant are
parties to that certain
Agreement
of
Sublease
dated as of JW1
e
_
,
2014
(the
"
S
ub
l
ea
s
e"),
pur
sua
nt t
o
which
Sublandl
o
rd
subleases
to
Subtenant, and
Subtenant
s
ubleases from Sublandlord
,
the entir
e
fifth
(5th)
floor of the buil
d
ing l
o
ca
t
ed at
77 Fourth
Avenue, Waltham
,
MA
02451
(the
"
Premises")
on
the
terms
a
nd conditions
set forth
in the Sublease
;
WHEREAS
,
Sublandlo
r
d,
Sub
te
nant
and BP Fourth
Avenue,
L.L.C.
(
"
0-wner")
hav
e
executed and delivered
that
certain Consent
to Subl
ease
dated
as
of
(the "0\'\-11er
Con
se
nt"),
pursuant
to which
Owner
has
consented
to
the
Sublease on
the terms
and
conditions set
fo
rth
in
the Own
e
r Con
se
nt
;
and
·
wHEREAS
,
pur
suan
t to Se
c
tion
2.1
of
the Subl
e
a
se,
the
parties
d
es
ire
to enter
into
this Agreement
to
confirm
th
e
del
i
very of
the Premis
es
by Sub
landlord, the
Commencement
Date
and
the date that
the
payment of Fixed
Rent
commences
under
the
Sublease.
NO\V THEREFORE
,
in
consideration
of the mutual promis
es
and
undertakings of
the parties a
s
set forth
herein
,
the partie
s
hereby
agree as
follows:
1.
Capitalized
T
erms.
All
capitalized terms used
in
this Agreement and
not
ot
h
erw
ise d
e
fined
shall
have
the
meanin
gs
ascribed
to
such
terms
in
the Sub
lease.
|
|
|
|
2.
|
Commencement Date
.
The
Commencement
Date
of
the
Sublease
is
|
3.
Delivery
of
P
remises.
Subtenant acknowledges
th
a
t
Sublandlord delivered
the Premises t
o
Subtenant on
in
accordance with
th
e
t
er
ms
of
the
Sublease and Subtenant has accepted the Premises.
4.
Ratification
of
S
ublease. All of the terms and
conditions of
the
Sublease ore
hereby ratifi
ed
and
confirmed, and rem
ai
n in full forc
e an
d effect
5.
Inconsistent T
erms.
Except
to
the extent
expr
essly
stated
in thi
s
Agreement,
if
any
tenns
of this
Agree
ment
conflict
with any
of
the terms of the Sublease, the
terms
of
the
Sublease
shall
control.
6.
C
ounterparts.
This
Agreement may be
execut
e
d in multip
le
counterpaiis, each of which
s
hall
be deemed
and
original and all of which
together
shall constitute a single instrument. Delivery
of
a copy
of
this Agreement bearing
a signature
by
facsimile transmi
ssio
n
or
by electronic mail in "pdf ' format"
shall
have
the same
effect
as
physical delivery of this
Agreement
bearing the
original
signature.
IN WITNESS WHEREOF
thi
s
Commencement
Da
te
Agreement
h
as
been dul
y
executed
by
the parties
as of
the dat
e
first
written
above.
PRICE'WATERHOUSECOOPERS PRTM l'v1ANAGEMEKT CONSULTANTS, LLC
Title
:
CARE.COM, INC.
By:
-
-----
-
---
--
Name:
Ti
t
le:
EXHIBIT B
PROPOSED SPACE PLAN
[ATTACHED]
EXHIBIT C
REDACTED
LEASE
[ATTACHED]
37
755310v6
EXECU
TION VERSION
77 FOURTH AVENUE WALTHAM, MASSACHUSETTS
LEASE DATED AS OF JUNE I, 2007
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant are the parties hereinafter named, and which relates to space in a certain building (the "Building") known as, and with an address at, 77 Fourth Avenue, Waltham, Massachusetts.
The parties to this Indenture of Lease hereby agree with each other as follows:
ARTICLE I
REFERENCE DATA
Each reference in this Lease to any of the following subjects shall be construed to incorporate the data stated for that subject
in
this Article:
Landlord: BP Fonrth Avenue, L.L.C.,
a Delaware limited liability company
Landlord's Original Address c/o Boston Properties Limited Partnership
Prudential Tower
800 Boylston Street, Suite 1900
Boston, MA 02199-8103
Landlord's Construction
· Representative:
Richard Monopoli, or such other party as Landlord may designate to Tenant by written notice
|
|
|
|
Tenant:
|
Pittiglio, Rabin, Todd
&
McGrath, Inc., a Massachusetts corporation
|
Tenant's Original Address: I 050 Winter Street,
Waltham, Massachusetts 02451
Tenant's Construction Representative: Susan Kantor, or such other party as
Tenant may designate to Landlord by written notice
GSDOCS\1689479.11 5/25/2007
Estimated Base Building Completion Date:
Estimated Commencement Date: Commencement Date:
First Outside Completion Date: Second Outside Completion Date: Occupancy Date:
Rent Commencement Date:
Estimated Rerit Commencement Date:
Term (Sometimes Called the "Original Term"):
Extension Options:
The Site:
The Building:
February 1, 2008
May
1,
2008
As defined in Section 2.4 As defined in Section 3.2 As dermed in Section 3.2
Subject to the provisions of Section 3.2, the earlier of (i) March I, 2009, provided that for each day that the Commencement Date is later than May 1, 2008, the foregoing
date of March 1, 2009 shall be extended day-for-day; or (b) the date Tenant occupies all or any portion of the Premises for the conduct of business.
Thirty (30) days after the Occupancy Date April I, 2009
The period commencing on the Commencement Date and expiring on the last day of the one hundred twentieth (!20th) calendar month after the Rent Commencement Date (plus the partial month, if any, immediately following the
Commencement Date) ("Expiration Date"), unless extended or sooner terminated as provided in this Lease.
Two (2) periods of five (5) years each as provided in and on the terms set forth in Section 8.20 hereof.
That certain parcel ofland known as and numbered 77 Fourth Avenue, Waltham, Middlesex County, Massachusetts, being more particularly described in Exhibit A attached hereto.
The Building known as and numbered 77
Fourth Avenue, Waltham, Massachusetts.
Tenant's Space:
Number of Parking Spaces:
Annual Fixed Rent:
The entire fifth
(5'h)
floor of the Building in accordance with the floor plan annexed hereto as Exhibit D and incorporated herein by reference.
To be provided at the rate of 3.4 spaces per 1,000 of Rentable Floor Area of the Premises.
Per Rentable Square Annual Fixed Rent
Monthly Fixed Rent
Square Foot Rent
Commencement Date through the day before the Rent
-
Commencement Date:
Rent Commencement Date through Lease
Year 3:
Lease Years 4
through 6:
Lease Year 7:
Lease Year 8 through
Expiration Date:
(b)
Extended Term(s): During the extension option periods (if exercised), as determined pursuant to Section 8.20.
Lease Year:
For purposes hereof, "Lease Year" shall mean a twelve-(12)-month period beginning on the Occupancy Date or an anniversary of the Occupancy Date, except that if the Occupancy Date does not fall on the first day of a calendar month, then the first Lease Year shall begin on the Occupancy Date and end on the last day of the month containing the first anniversary
of the Occupancy Date, and each succeeding Lease Year shall begin on the day following the last day of the prior Lease Year.
Base Operating Expenses:
Base Taxes:
Tenant Electricity:
Additional Rent:
Landlord's Operating Expenses (as hereinafter defined in Section 2.6) for calendar year 2009, being January 1, 2009
through December 31, 2009.
Landlord's Tax Expenses (as hereinafter defined in Section
2.7),
representing a fully-assessed building (which will be determined in conjunction with the Waltham Tax Assessor's Office), for fiscal tax year 2010, being July
1,
2009 through June 30, 2010, provided that in the event the base building certificate of occupancy for the Building shall not have been issued by December 31, 2008, then Base Taxes shall be Landlord's Tax Expenses, representing a fully-assessed building, for the fiscal tax year next following the first January
I
after such certificate of occupancy is issued. By way of example only, if the certificate of occupancy is issued on February 15, 2009, then Base Taxes shall be based upon fiscal
tax
year 2011, which begins on July
1,
2010, and which therefore is the first fiscal tax year next following the first January
1
after the certificate of occupancy is issued (being January
I,
2010). Notwithstanding the
foregoing, in no event shall the Base Taxes be less than the average taxes, on a psf basis, for the fiscal year on which the Base Taxes are computed for the following properties in Waltham, Massachusetts: 201 Jones Road, 230 CityPoint, and 200 West Street.
Initially as provided in Section 2.5 subject to adjustment as provided in Section 2.8.
All charges and other sums payable by Tenant as set forth in this Lease, in
addition to Annual Fixed Rent.
Rentable Floor Area of Tenant's Space (Sometimes Also Called
Rentable Floor Area of the Premises): 36,174 square feet, subject to the
provisions of Section 2.1 hereof.
Total Rentable Floor Area of the
Building: 209,707 square feet.
Permitted Use: General office purposes.
Initial Minimum Limits of Tenant's Corumercial General Liability:
$5,000,000.00 combined single limit per occurrence on a per location basis.
Security Deposit:
-in
form ofa Letter of
Broker(s): CB Richard Ellis Group, Inc.
the
bject to reduction as set forth in Section 8.21 of the Lease.
Guarantor: None.
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There are incorporated as part of this Lease: Exhibit A
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Description of Site
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Exhibit B-1 Base Building Specifications
Exhibit B-2 Tenant Plan and Working Drawing Requirements Exhibit C Landlord's Services
Exhibit D Floor Plan
Exhibit E Form of Declaration Fixing Specific Dates
Exhibit F Form of Lien Waivers
Exhibit G Form of Letter of Credit
Exhibit G-1 Alternate Approved Form of Letter of Credit Exhibit H Form of Notice of Lease
Exhibit I Form of Confidentiality Agreement
Exhibit J Broker Determination of Annual Market Rent
Exhibit K Conference Center
Exhibit L Monument Sign Conceptual Plan
Exhibit M Infrastructure Improvements Conceptual Plan Exhibit N Roof Location for Emergency Generator
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1.3
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Table of Articles and Sections
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ARTICLE I REFERENCE DATA 1
1.1
Subjects Referred To 1
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1.3
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Table of Articles and Sections 6
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ARTICLE II BUILDING, PREMISES, TERM AND RENT 8
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2.2
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Rights to Use Common Facilities 15
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2.3
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Landlord's Reservations 16
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2.5
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Fixed Rent Payments 16
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2.6
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Operating Expenses 18
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2.8
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Tenant Electricity 27
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ARTICLE III CONSTRUCTION 29
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3.2
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Tenant's Remedies Based on Delays in Landlord's Work 30
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3.4
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Quality and Performance of Work 33
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3.5
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Landlord's Contribution 34
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3.6
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Landlord's Test Fit Allowance 35
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3.7
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Landlord' s Special Allowance 35
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ARTICLE
N
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS 35
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4.1
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Landlord Covenants 35
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4.2
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Interruptions and Delays in Services and Repairs, Etc 37
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4.3
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Landlord's Insurance 39
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4.4
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Landlord's Indemnity 39
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ARTICLE V TENANT'S COVENANTS 40
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5.2
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Repair and Yield Up 40
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5.4
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Obstructions; Items Visible From Exterior; Rules and Regulations
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.................................. ..................................................................... 41
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5.6
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Assigmnent; Sublease 42
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5.7
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Indemnity; Insurance
48
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5.8
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Personal Property at Tenant's Risk 49
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5.10
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Floor Load; Prevention of Vibration and Noise 49
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5.11
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Personal Property Taxes 50
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5.12
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Compliance with Laws 50
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5.13
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Payment of Litigation Expenses 50
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ARTICLE VI CASUALTY AND TAKING 54
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6.1
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Damage Resulting from Casualty 54
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6.2
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Uninsured Casualty 55
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6.3
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Rights of Termination for Taking 56
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ARTICLE VII DEFAULT 58
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7.2
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Landlord's Default 62
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ARTICLE VIII MISCELLANEOUS PROVISIONS 62
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8.1
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Extra Hazardous Use ............' 62
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8..3 Cumulative Remedies 63
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8.5
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Notice to Mortgagee and Ground Lessor. 64
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8.6
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Assignment of Rents 64
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8.9
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Invalidity of Particular Provisions 65
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8.10
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Provisions Binding, Etc 66
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8.11 Recording; Confidentiality ........................................................,.. 66
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8.13
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When Lease Becomes Binding 67
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8.15
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Rights of Mortgagee 67
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8.16
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Status Reports and Financial Statements 68
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8.18 Holding Over ··-·····-··-·-···-··········-··-·············-····- 69
8.21 Security Deposit ...............·-·-··················----····--··- 72
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8.23
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Tenant's Payments 75
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8.24
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Waiver of Trial By Jury 75
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8.26
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Conference Center 75
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8.28 Building Amenities.·························-···-·--···-- 76
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8.29
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Infrastructure Improvements 77
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8.30
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Emergency Generator. 77
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ARTICLE II
BUILDING. PREMISES. TERM AND RENT
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and accepts from Landlord, Tenant's Space in the Building excluding exterior faces of exterior walls, the common stairways and stfilrwells, elevators and elevator wells, fan rooms, electric and telephone closets, janitor closets, freight elevator vestibules, and pipes, ducts, conduits, wires and appurtenant fixtures serving exclusively or in common other parts of the Building and if Tenant's Space includes less than the entire rentable area of any floor, excluding the common corridors, elevator lobbies and toilets located on such floor.
Tenant's Space with such exclusions is hereinafter referred to as the "Premises". The term "Building" means the Building identified on the first-page, and which is the subject of this Lease (it being understood and agreed that if any other buildings are ever constructed on the Site, the calculation of Operating Expenses Allocable to the Premises (as defined in Section 2.6 below) and Landlord's Tax Expenses Allocable to the Premises (as defined in Section 2.7 below) shall be equitably adjusted to reflect such other buildings' share of common expenses for the Site); the term "Site" means all, and also any part of the land described in Exhibit A, plus any additions or reductions thereto resulting from the change of any abutting street line and all parking areas and structures from time to time located on the Site. The term "Property" means the Building and the Site.
In
the event Landlord elects to construct additional buildings on the Site or make changes to the current configuration of the Site (collectively, "Site Changes"), Landlord shall not be permitted to make any Site Changes which materially and adversely affect Tenant's current views from the Premises or otherwise materially and adversely affect Tenant's use and enjoyment of the Premises.
Subject to Landlord's reasonable security procedures, Tenant shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week, three hundred sixty five
(365)
days per year, except
as
may otherwise be expressly provided herein.
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2.1.1
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Tenant's Initial Right of First Offer
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(A)
Conditions to Exercise of Tenant's Rights.
On the conditions (which conditions Landlord may waive by written notice to Tenant at any time) that (i) as of both the time that any portion of the Initial First Offer Space first becomes available and as of the Commencement Date in respect of such portion of the Initial First Offer Space, that no "Event of Default" (as defined in Section
7.1
of the Lease) of Tenant exists, (ii) as of the Commencement Date in respect of the Initial First Offer Space, Tenant has not assigned Tenant's interest in the Lease or subleased more than fifty percent (50%) of the Premises, except in either case to a Permitted Transferee (as defined in Section
5.6.l
of the Lease), and (iii) as of both the time that any portion of the Initial First Offer Space first becomes available and as of the Commencement Date in respect of said portion of the Initial First
Offer Space, the Lease is still in full force and effect, Tenant shall have the Initial Right of First Offer to lease the Initial First Offer Space, as hereinafter set forth.
(B)
Definition of Initial First Offer Space.
For the purposes hereof, the "Initial First Offer Space" shall be defined as any separately demised space
(meaning thereby any space which has been separately demised imniediately prior to the date of Landlord's Initial First Notice (defined below) or which Landlord decides it desires to separately demise), (i) which is located on either Floor
4
or Floor 6 of the Building, (ii) which becomes available for lease (as hereinafter defined) during the initial lease-up of Floor
4
and
6,
and (iii) which if leased to a third party would leave less than 20,000 contiguous rentable square feet on Floor
4
and Floor
6
in the aggregate remaining unleased (i.e., this condition (iii) would not be fulfilled by a lease of the last remaining space on either Floor
4 or
Floor
6,
so long as at least 20,000 contiguous rentable square feet remained unleased on the other floor).
(C)
Definition of Available for Lease; Landlord's Initial First Notice.
When the Initial First Offer Space becomes available for lease, as hereinafter defined, Landlord shall notify Tenant ("Landlord's Initial First Notice") of the availability of such space, which notice shall contain the size, location and date of availability of such Initial First Offer Space. For the purposes hereof, the Initial First Offer Space shall be deemed "available for lease" when Landlord has received a bona fide request for a proposal from a third party to lease said space.
In
the event that said request for a proposal is for premises containing less than 15,000 rentable square feet, Landlord. shall nonetheless designate to Tenant an Initial First Offer Space containing not less than 15,000 rentable square feet.
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(D)
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Procedures for Exercising Initial Right of First Offer.
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(1)
Within ten (IO) business days after Tenant's receipt of Landlord's Initial First Notice, Tenant shall notify Landlord ("Tenant's Initial Response") that either it may be interested in leasing such space and would like Landlord to advise it of the terms upon which Landlord is willing to so lease such space or that Tenant is not interested in leasing such space.
If
Tenant fails timely to give Tenant's Initial Response, then Tenant shall have no further right to lease the Initial First Offer Space except as set forth in Section 2.1.2 below, if applicable.
If
Tenant notifies Landlord in Tenant's Initial Response that it may be interested in leasing the Initial First Offer Space so offered, Landlord shall provide the terms to Tenant ("Landlord's Initial Offer") within ten (10) business days of Tenant's Initial Response. Landlord's Initial Offer shall be based upon the Annual Fixed Rent, hereinafter set forth, and other business terms upon which Landlord is willing to lease such space, provided, however, that the term for which such
Initial First Offer Space shall he leased to Tenant shall be coterminous with the Term of this Lease.
(2)
If Tenant leases the Initial First Offer Space during Lease Year I, Tenant shall pay Annual Fixed Rent therefor at the same per-rentable-square-foot amounts payable for the Premises during the Term of this Lease, and Base Taxes and Base Operating Expenses shall be as set forth in Section 1.1 hereof. If Tenant leases the Initial First Offer Space at any time after Lease Year 1, the Annual Fixed Rent, Base Taxes and Base Operating Expenses for the Initial First Offer Space shall be as set forth in Landlord's Initial Offer, provided that the Annual Fixed Rent in Landlord's Initial Offer shall be based npon Annual Market Rent,
as defined in Section 8.20 hereof, and except as set forth below in this Section 2.1.1.
(3)
If
Tenant wishes to exercise Tenant's Initial Right First Offer, Tenant shall do so, if at all, by giving Landlord a notice ("Tenant's Initial RFO Exercise Notice") within fifteen (15) days after receipt of Landlord's Initial Offer. Tenant's Initial RFO Notice shall specify the Required Portion (as hereinafter defined) of such space, and
(in
the case of a lease of Initial First Offer Space after Lease Year 1) whether or not Tenant disputes that the Annual Fixed Rent
specified in Landlord's Initial Offer is the Annual Market Rent ("Rent Dispute"). For purposes hereof, the "Required Portion" shall be between 5,000 and 15,000 rentable square feet, as designated by Tenant in Tenant's Initial RFO Exercise Notice.
If
Tenant specifies a Required Portion that is less than the entire amount of such space, the location and layout of such Required Portion shall be determined by Landlord, in the exercise of its commercially reasonable judgment.
(4)
If Tenant shall give Tenant's Initial RFO Exercise Notice that does not indicate a Rent Dispute, the same shall constitute an agreement to lease the Required Portion upon all of the same terms and conditions in this Lease, except
(i)
to the extent inconsistent with the provisions of this Section 2.1.1, and (ii) to the extent inconsistent with snch other business terms set forth in Landlord's Initial Offer, and (iii) that the Annual Fixed Rent shall be the amount specified in
Landlord's Initial Offer, and although such agreement shall be self-executing, Tenant shall enter into an instrument in writing memorializing such leasing within thirty (30) days after submission thereof by Landlord.
(5)
If Tenant shall give Tenant's Initial RFO Exercise Notice that does indicate a Rent Dispute, the parties shall negotiate in good faith for a period of twenty (20) days ("Negotiation Period") to reach agreement on the Annual Fixed Rent.
If
the parties reach such agreement within the Negotiation Period, then the same shall constitute an agreement to lease the Required Portion upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.l, and (ii) to the extent inconsistent with the business terms set forth in Landlord's Initial Offer, and (iii) that the Annual Fixed Rent shall be the amount so agreed to by the parties; and although such agreement shall be self-executing, Tenant shall enter into an instrument in writing memorializing such leasing within thirty (30) days after submission thereof by Landlord.
(6)
If
Tenant shall give Tenant's Initial RFO Exercise Notice that does indicate a Rent Dispute, and the parties do not reach agreement on the Annual Fixed Rent during the Negotiation Period, then Tenant shall have the right, for a period of five (5) business days after the expiration of the Negotiation Period, (i) to deliver to Landlord a notice ("Tenant's Rescission Notice") rescinding Tenant's Initial RFO Exercise Notice, or (ii) to deliver to Landlord a request ("Broker Detennination Request") for a broker determination of Annual Market Rent in accordance with the provisions of Section 8.20 and Exhibit
J
hereof.
(7)
If
Tenant timely gives Tenant's Rescission Notice, then Tenant's Initial RFO Exercise Notice shall be ofno further force and effect, and the provisions of Section 2.1.l(D)(IO) shall apply.
(8)
If
Tenant timely gives a Broker Determination Request, then the same shall constitute an agreement to lease the Required Portion upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.
1
.1, and (ii) to the extent inconsistent with the business terms set forth in Landlord's Initial Offer, and (iii) that the Annual Fixed Rent shall be the Annual Market Rent as determined by the broker detennination; and although such agreement shall be self-executing, Tenanf shall enter into an instmment in writing memorializing such leasing within thirty (30) days after submission thereof by Landlord. ·
(9)
If
Tenant fails to timely give either a Tenant's Rescission Notice or a Broker Determination Request, Tenant shall be deemed to have given a
Tenant's Rescission Notice.
(JO)
If
Tenant shall not lease the Initial First Offer Space pursnant to Sections 2.1.l(D) (4), (5), (8) or (9), Landlord shall be free for two hundred ten
(210) days after the date of Landlord's Initial Offer to lease the Initial First Offer Space to any party, provided that (i) if Landlord desires to lease the Initial First Offer Space at a net effective rent less than ninety percent (90%) of that contained in Landlord's Initial Offer, or (ii) if Landlord does not so lease such space during such two-hundred-ten-(210)-day period, Landlord shall again offer to lease such Initial First Offer Space to Tenant pursuant to the provisions of this Section 2.1.1, and the terms of this Section 2.1.1 shall continue to apply to such Initial First Offer Space. After Landlord has leased the Initial First Offer Space to a third party in accordance with the provisions of this Section 2.1.1, Tenant shall have no further right to lease any space pursuant to this Section 2.1.1 (the parties
intending that Tenant's rights under this Section 2.1.1 shall be a one-time right), but the provisions of Section 2.1.2 below shall continue to apply.
(11) Time is of the essence of this Section 2.1.1.
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2.1.2
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Tenant's Continuing Right of First Offer
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(A)
On the conditions (which conditions Landlord may waive by written notice to Tenant at any time) that (i) as of both the time that any portion of the First Offer Space first becomes available and as of the Commencement Date in respect of such portion of the First Offer Space, no Event of Default of Tenant exists, (ii) as of the Commencement Date in respect of the First Offer Space, Tenant has not assigned Tenant's interest in the Lease or subleased more than sixty-seven percent (67%) of the Premises, except in either case to
a
Permitted Transferee, and (iii) as of both the time that any portion of the First Offer Space first becomes available and as of the Commencement Date in respect of said portion of the First Offer Space, the Lease is still in full force and effect, Tenant shall have the Right of First Offer to lease the First Offer Space, as hereinafter set forth.
(B)
Definition of First Offer Space.
For the pnrposes hereof, the "First Offer Space" shall be defined as any separately demised space on Floor
4
of the Building, which becomes available for reletting (as hereinafter defined) after the initial lease-up of Floor 4.
(C)
Definition of Available for Reletting; Landlord's First Notice.
When the First Offer Space becomes available for reletting, as hereinafter defined, Landlord shall notify Tenant ("Landlord's First Notice") of the availability of such space. For the purposes hereof, First Offer Space shall be deemed "available for reletting" when Landlord, in its sole judgment, determines that the then-current tenant of such First Offer Space will vacate the First Offer Space. Tenant acknowledges that Landlord's grant of extension, expansion or first offer rights to the first tenant other than Tenant occupying particular premises on the fourth (
4'h)
floor of the Building
(a
"First Generation Tenant") is and shall be superior to Tenant's right under this Section 2.1.2, and that Landlord's grant of extension rights to any tenant other than a First Generation Tenant occupying premises on
the fourth (41h) floor of the Building is and shall be superior to Tenant's rights under this Section 2.1.2. Tenant acknowledges that as of the date hereof, the First Offer Space is presently vacant and that (except as set forth in Section 2.1.1) the First Offer Space will not be deemed available for reletting until after the space has been initially leased to a third party.
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(D)
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Procedures for Exercising Continuing Right of First Offer.
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(I)
Within ten (10) business days after Tenant's receipt of Landlord's First Notice, Tenant shall notify Landlord ("Tenant's Response") that either it may be interested in leasing such space and would like Landlord to advise it of the terms upon which Landlord is willing to so lease snch space or that Tenant is not interested in leasing such space. If Tenant fails timely to give Tenant's Response, then Tenant shall have no further right to lease the First Offer Space except as set forth in Section 2.1.2(D)(10) below.
If
Tenant notifies Landlord in Tenant's Response that it may be interested in leasing the First Offer Space so offered, Landlord shall provide the terms to Tenant ("Landlord's Offer") within ten (10) business days of Tenant's Response. Landlord's Offer shall be based upon the Annual Fixed Rent, hereinafter set forth, and
othet
business terms upon which Landlord is willing to lease such space, provided, however, that the term for which such First Offer Space shall be leased to Tenant shall be coterminous with the Term of this Lease.
(2)
The Annual Fixed Rent, Base Taxes and Base Operating Expenses for the First Offer Space shall be as set forth in Landlord's Offer, provided that the Annual Fixed Rent in Landlord's Offer shall be based upon Annual Market Rent, as defined in Section 8.20 hereof, and except as set forth below in this Section 2.1.2.
(3)
If
Tenant wishes to exercise Tenant's Right First Offer, Tenant shall do so, if at all, by giving Landlord a notice ("Tenant's RPO Exercise Notice") within fifteen (15) days after receipt of Landlord's Offer. Tenant's RPO Notice shall specify whether or not Tenant disputes that the Annual Fixed Rent specified in Landlord's Offer is the Ammal Market Rent ("Rent Dispute").
(4)
If
Tenant shall give Tenant's RPO Exercise Notice that does not indicate a Rent Dispute, the same shall constitute an agreement to lease the First Offer Space upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.2, and (ii) to the extent inconsistent with such other business terms set forth in Landlord's Offer, and (iii) that the Annual Fixed Rent shall be the amount specified in Landlord's Offer, and although such agreement shall be self-executing, Tenant shall enter into an instrument in writing memorializing such leasing within thirty (30) days after submission thereof by Landlord.
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(5)
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If
Tenant shall give Tenant's RPO Exercise Notice that does
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indicate a Rent Dispute, the parties shall negotiate in good faith for a period of twenty (20) days ("Negotiation Period") to reach agreement ou the Annual Fixed Rent.
If
the parties reach such agreement within the Negotiation Period, then the same shall constitute an agreement to lease the First Offer Space upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.2, and (ii) to the extent inconsistent with the business terms set forth in Landlord's Offer, and (iii) that the Annual Fixed Rent shall be the amount so agreed to by the parties; and although such agreement shall be self-executing, Tenant shall enter into an instrument in writing memorializing such leasing within thirty (30) days after submission thereof by Landlord.
(6)
If
Tenant shall give Tenant's RFO Exercise Notice that does indicate a Rent Dispute, and the parties do not reach agreement on the Annual Fixed Rent during the Negotiation Period, then Tenant shall have the right, for a period of five (5) business days after the expiration of the Negotiation Period, (i) to deliver to Landlord a notice ("Tenant's Rescission Notice") rescinding Tenant's RFO Exercise Notice, or (ii) to deliver to Landlord a request ("Broker Determination Request'') for a broker determination of Annual Market Rent in accordance with the provisions of Section 8.20 and Exhibit J hereof.
(7)
If
Tenant timely gives Tenant's Rescission Notice, then Tenant's RFO Exercise Notice shall be of no further force and effect, and the provisions of Section 2. l.2(D)(10) shall apply.
(8)
If
Tenant timely gives a Broker Determination Request, then the same shall constitute an agreement to lease the First Offer Space upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.2, and (ii) to the extent inconsistent with the business terms set forth in Landlord's Offer, and (iii) that the Annual Fixed Rent shall be the Annual Market Rent as determined by the broker determination; and although such agreement shall be self-executing, Tenant shall enter into an instrument in writing memorializing such leai;ing within thirty (30) days after submission thereof by Landlord.
(9)
If
Tenant fails to timely give either a Tenant's Rescission Notice or a Broker Determination Request, Tenant shall be deemed to have given a
Tenant's Rescission Notice.
(10)
If
Tenant shall not lease the First Offer Space pursuant to Sections 2.1.2(D) (4), (5), (8) or (9), Landlord shall be free to lease the First Offer Space to any party.
If
during the Term said First Offer Space again becomes available for reletting, Landlord shall again offer to lease such First Offer Space to Tenant pursuant to the provisions of this Section 2.1.2 and the terms of this Section shall continue to apply to such First Offer Space.
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(11)
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Landlord shall have no obligation to offer space to Tenant which
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becomes available for reletting during the last three (3) years of the then-current Term of the Lease unless there is an unexercised Extension Option remaining.
In
such case, Landlord shall offer said space to Tenant in accordance with this Section 2.1.2, but Tenant shall only be pe1mitted to lease such space if, simultaneously with the delivery of Tenant's RFO Exercise Notice, it also
delivers Tenant's Extension Exercise Notice, as defined in Section 8.20 hereof, in accordance with the terms of Section 8.20(D) hereof.
(12) Time is of the essence of this Section 2.1.2.
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2.2
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Rights to Use Common Facilities
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Subject to Landlord's right to change or alter any of the following in Landlord's discretion as herein provided, Tenant shall have, as appurtenant to the Premises, the non exclusive right to use in common with others, 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, corridors, stairways, elevators, trash areas, parking areas, loading platforms, and other similar areas and facilities of the Building, and the pipes, ducts, conduits, wires and appurtenant meters and equipment serving the Premises in common with others, (b) common walkways and driveways necessary for access to the Building, and (c) if the Premises include less than the entire rentable floor area of any floor, the common toilets, corridors and elevator lobby of such floor (collectively, the "Common Areas"). No changes shall be made to the Common Areas that would materially interfere with Tenant's access to or use of the Premises for the purposes of this Lease. Notwithstanding anything to the contrary herein, Landlord has no obligation to allow any particular telecommunication service provider to have access to the Building or to the Premises except as may be required by applicable law. If Landlord permits such access, Landlord may condition such access upon the payment to Landlord by the service provider of fees assessed by Landlord in its sole discretion.
Provided that and so long as Tenant's telecommunications service provider ("Provider") does not provide telecommunications service to any other tenant of the Building, Landlord shall not require such Provider to pay any fees for such access.
In
addition, Tenant shall have the right to use in the parking area, and subject to Landlord's Force Majeure (as defmed in Section 2.6 hereof), Landlord agrees to provide for use by Tenant throughout the Term the Number of Parking Spaces (referred to in Section 1.1) for the parking of automobiles, in common with use by other tenants from time to time of the Building, provided, however, that Landlord shall not be obligated to furnish stalls or spaces on the Site specifically designated for Tenant's use.
In
the event that the Rentable Floor Area of the Premises increases or decreases at any time during the Lease Term, the Number of Parking Spaces provided to Tenant hereunder shall be increased or reduced proportionately. Tenant covenants and agrees that it and all persons claiming by, through
and under it, shall at all times abide by all reasonable rules and regulations promulgated by Landlord with respect to the use of the parking areas on the
Site. The parking privileges granted herein are non-transferable except to a permitted assignee or subtenant as provided in Section 5.6 through Section 5.6.5. Further, Landlord assumes no responsibility whatsoever for loss or damage due to fire, theft or otherwise to any automobile(s) parked on the Site or to any personal property therein, however
caused, and Tenant covenants and agrees, upon request from Landlord from time to time, to notify its officers, employees, agents and invitees of such limitation ofliability.
Tenant acknowledges and agrees that a license only is hereby granted, and no bailment is intended or shall be created. Tenant's right to use the Parking Spaces shall be free of charge during the Term.
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2.3
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Landlord's Reservations
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Landlord reserves the right from time to time, without unreasonable interference with Tenant's use: (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, and (b) to alter or relocate any other common facility, provided that substitutions are substantially equivalent or better. Installations, replacements and relocations referred to in clause (a) above shall be located so far as practicable in the central core area of the Building, above ceiling surfaces, below floor surfaces or within perimeter walls of the Premises. In exercising its rights hereunder, Landlord shall use reasonable efforts to minimize interference with Tenant's use of the Premises for the conduct of business.
Tenant shall have and hold the Premises for a period commencing on the date (the "Commencement Date") that is the earlier of (a) the Substantial Completion Date as defined in Section 3
.1
or (b)
if
the Substantial Completion Date has not occurred, but Landlord gives Tenant access to commence Tenant's Work, the date such access is given, and continuing for the Tenn unless sooner tenninated as provided in Article VI or A11icle VII or unless extended as provided in Section 8.20.
As soon as may be convenient after the determination of the Commencement Date, Occupancy Date, Rent Commencement Date, and Expiration Date, Landlord and Tenant agree to join with each other in the execution of a written Declaration, in the form of Exhibit E, in which said dates shall be stated.
If
Tenant fails to execute such Declaration, unless Tenant delivers to Landlord a written notice stating that the determination of any such date is the subject of a good-faith dispute between Landlord and Tenant, the Commencement Date, Occupancy Date, Rent Commencement Date, and Expiration Date shall be as reasonably determined by Landlord in accordance with the terms of this
Lease.
Tenant agrees to pay to Landlord, or as directed by Landlord, at Landlord's Original Address specified in Section
1.1
hereof, or at such other place as Landlord shall from
time to time designate by notice,
(1)
(a) on the Rent Commencement Date (defined in Section
1.1
hereof) and thereafter monthly, in advance, on the first day of each and every calendar month dnring the Original Tenn, a sum eqnal to one twelfth
(I/12th)
of the Annnal Fixed Rent (sometimes hereinafter referred to as "fixed rent") and (b) on the Rent Commencement Date and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Te1m, an amount estimated by Landlord from time to time to cover Tenant's monthly payments for electricity under Section 2.8 hereinbelow and (2) on the first day of each and every calendar month during each extension option period (if exercised), a sum equal to (a) one twelfth
(I/12th)
of the Annual Fixed Rent as determined in Section 8.20 for the applicable extension option period plus (b) then applicable monthly electricity charges (subject to escalation for electricity as provided in Section 2.8 hereof). Notwithstanding the foregoing, provided that, and so long as, there is no mortgage on the Building, Tenant shall have the option of prepaying Annual Fixed Rent for np to one
(1)
year in advance for each calendar year.
Until notice of some other designation is given, fixed rent and all other charges for which provision is herein made shall be paid by remittance to or for the order of Boston Properties Limited Partnership either (i) by mail to P.O. Box 3557, Boston,
Massachusetts 02241-3557, (ii) by wire transfer to Bank of America in Dallas, Texas, Bank Routing Number 0260-0959-3 or (iii) by ACH transfer to Bank of America in Dallas, Texas, Bank Routing Number 111 000 012, and in the case of (ii) or (iii) referencing Account Number 3756454460, Account Name of Boston Properties, LP, Tenant's name and the Property address. All remittances received by Boston Properties Limited Partnership, as Agents as aforesaid, or by any subsequently designated recipient, shall be treated as payment to Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at such rate on a pro rata basis, and, if the Rent Conunencement Date is a day other than the first day of a calendar month, the first paymeut of Annual Fixed Rent which Tenant shall make to Landlord shall be a payment equal to a proportionate part of such Annual Fixed Rent (based upon a three hundred sixty-five (365) day Lease Year) for the partial month from the Rent Commencement Date to the first day of the succeeding calendar month.
Additional Rent payable by Tenant on a monthly basis, as hereinafter provided, likewise shall be prorated, and the first payment on account thereof shall be determined in similar fashion but shall commence on the Rent Commencement Date; and other provisions of this Lease calling for monthly payments shall be read as incorporating this undertaking by Tenant.
Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence .until the Rent Commencement Date, Tenant shall be subject to, and shall comply with, all other provisions of this Lease as and at the times provided in this Lease.
The Annual Fixed Rent and all other. charges for which provision is herein made shall be paid by Tenant to Landlord, without offset, deduction or abatement except as otherwise specifically set forth in this Lease.
"Landlord's Operating Expenses" means the cost of operation of the Building and the Site which shall exclude costs of special services rendered to tenants (including Tenant) for which a separate charge is made, but shall include, without limitation, the following: premiums for insurance carried with respect to the Building and the Site (including, without limitation, liability insurance, insurance against loss in case of fire or casualty and insurance of monthly instalhnents of fixed rent and any Additional Rent which may be due under this Lease and other leases of space in the Building for not more than twelve (12) months in the case of both fixed rent and Additional Rent and if there be any first mortgage of the Property, including such insurance as may be required by the holder of such first mortgage); compensation and all fringe benefits, worker's compensation insurance premiums and payroll taxes paid to, for or with respect to all persons engaged exclusively in the operating, maintaining or cleaning of the Building or Site (and in the event such persons are also employed on other properties of Landlord or its affiliates, such compensation shall be equitably prorated among the Building and such other propertie ), water, sewer, electric, gas, oil and telephone charges (excluding utility charges separately chargeable to tenants for additional or special services); cost of building and cleaning supplies and equipment; cost of maintenance, cleaning and repairs (other than repairs not properly chargeable against income or reimbursed from contractors under guarantees); cost of snow removal and care of landscaping; cost of operating, maintaining, cleaning and providing utilities to any conference center or other amenities serving the Building; payments under service contracts with independent contractors; management fees at reasonable rates for self managed buildings consistent with the type of occupancy and the service rendered, which management fees shall not exceed three percent (3%) of gross revenues; costs of maintaining a regional property management office (allocated pro rata among all properties within the region) in connection with the operation, management and maintenance of the Building; and all other reasonable and necessary expenses paid in connection with the operation, cleaning and maintenance of the Building and the Site and properly chargeable against income,
provided, however, there shall be included (a) depreciation for capital expenditures made by Landlord during the Lease Term (i) to reduce Landlord's Operating Expenses if Landlord shall have reasonably determined that the annual reduction in Landlord's Operating Expenses shall exceed depreciation therefor or (ii) to comply with applicable laws, rules, regulations, requirements, statutes, ordinances, by-laws and court decisions of all public authorities which are first applicable to the Property after the Commencement Date (the capital expenditures described in subsections (i) and (ii) being hereinafter referred to as ''Permitted Capital Expenditures"); plus (b) in the case of both
(i)
and (ii) an interest factor, reasonably detem1ined by Landlord, as being the interest rate then charged for long-term mortgages by institutional lenders on like properties within the locality in which the Building is located; depreciation in the case of both (i) and (ii) shall be detennined by dividing the original cost of such capital expenditure by the number of years of useful
life
of the capital item acquired and 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. In the case
of any item of Landlord's Operating Expenses which is incurred in connection with the Property together with other property or properties, Landlord shall reasonably allocate the amount of such expense attributable to the Property.
Notwithstanding the generality of the preceding text, the following items shall be excluded or deducted, as the case may be, from the calculation of Tenant's share of Landlord's Operating Expenses:
(1)
leasing commissions, space planning costs, legal costs and other fees and costs, advertising and promotional expenses and other costs incurred in procuring tenants or in selling the Building or the Site;
(2)
legal fees or other expenses incurred in connection with enforcing leases with tenants in the Building;
(3)
costs of installing, renovating or otherwise improving or decorating space for any tenant or other occupant of the Building or the Site, including Tenant, or relocating any tenant;
(4)
financing costs including interest and principal amortization of debts and the costs of providing the same;
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(5)
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except as otherwise expressly provided above, depreciation;
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(6)
rental on ground leases or other underlying leases and the costs of providing the same;
(7)
wages, bonuses and other compensation of employees above the grade of Building Manager, except that if any such employee above the grade of Building Manager performs a service which would normally have been performed by an outside consultant (e.g., accounting or engineering services), the compensation paid to such employee for performing such service shall be included in Operating Expenses, to the extent only that the cost of such service does not exceed competitive cost of such service had such service been rendered by an outside consultant;
(8)
increased insurance or Real Estate Taxes assessed specifically to any tenant of the Building or the Site or for which Landlord is entitled to reimbursement from any other tenant;
(9)
cost of any HVAC, janitorial or other services provided to tenants on an extra cost basis after regular business hours;
(I
0) with the exception of the management fee (which shall be governed by the first paragraph of this Section 2.6), amounts paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Building to the
extent the same exceeds the cost of such goods and/or services rendered by unaffiliated third parties on a competitive basis;
(11)
cost of initial cleaning and rubbish removal from the Building or the Site to be performed before final completion of the Building or tenant space;
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(12)
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cost of initial landscaping of the Building or Site;
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(13)
except for Permitted Capital Expenditures, the cost of any items that, nuder generally accepted accounting principles, are properly classified as capital expenses, capital improvements, or capital repairs;
(14)
lease payments for rental equipment (other than equipment for which depreciation is properly charged as an expense) that would constitute a capital expenditure if the equipment were purchased;
(15)
late fees or charges incurred by Landlord due to late payment of expenses, except to the extent attributable to Tenant's actions or inactions;
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(16)
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cost of acquiring sculptures, paintings and other works of art;
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(17)
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charitable or political contributions;
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(18)
costs incurred by Landlord due to the violation by Landlord or any tenant of the terms and conditions of any lease of space in the Building;
(19)
Landlord's general overhead or general administrative expenses not specifically incurred in the operation of the Premises, except for allocated overhead costs to cover accounting, audit, management, and related costs as set forth in this Section 2.6;
(20)
services provided, taxes attributable to, and costs incurred in connection with the operation of any retail or restaurant operations for the Building (including, without limitation, any operating subsidy for the cafeteria, but the costs for operating, maintaining, cleaning and providing utilities to the cafeteria shall be included in Landlord's Operating Expenses);
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(21)
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costs incurred in connection with upgrading the Building to
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comply with laws, rules, regulations and codes first applicable to the Property prior to the Commencement Date;
(22)
the cos!"of testing, remediation or removal of "Hazardous Materials" (as defmed in Section 5.3) in the Building or on the Site required by "Hazardous Materials Laws" (as defined in Section 5.3), provided however, that with
respect to the testing, remediation or removal of any material or substance which, as of the Commencement Date was not considered, as a matter of law, to be a Hazardous
Material, but which is subsequently determined to be a Hazardous Material as a matter of law, the costs thereof shall be included in Operating Expenses, subject, however, to the limitations set forth above to the extent that such cost is treated as a capital expenditure
(23)
charges (including applicable taxes) for electricity, water and other utilities for which Landlord is entitled to reimbursement from any tenant;
(24)
cost of correcting defects in the design, construction or mechanical systems of, or latent defects in, the Building or the Site, which are incurred by Landlord prior to the fifth
(5th)
anniversary of the Commencement Date;
(25)
costs incurred in performing work or furnishing services for any tenant (inclnding Tenant), whether at such tenant's or Landlord's expense, to the extent that snch work or services is in excess of any work or service that Landlord is obligated to furnish to Tenant at Landlord's expense (e.g., if Landlord agrees to provide extra cleaning to another tenant, the cost thereof would be excluded since Landlord is not obligated to furnish extra cleaning to Tenant);
(26)
cost of any work or services performed for any facility other than the Building or Site;
(27)
cost of the initial stock of tools and equipment for operation, repair, and maintenance of the Building or Site;
(28)
all other items for which another party (including, without limitation, an insurance carrier) reimburses, compensates or pays Landlord, so that Landlord shall not recover any item of cost more than once;
(29)
costs arising from the negligence or willful misconduct of Landlord or its agents, employees or contractors; and
(30)
costs of installing and providing operating subsidies to any specialty service, snch as a cafeteria, broadcasting facilities, or daycare, but the foregoing shall not preclude the inclusion of operating expenses attributable to such facilities, such as utilities, cleaning, repair, maintenance and the like.
"Operating Expenses Allocable to the Premises" shall mean the same proportion of Landlord's Operating Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor Area of the Building.
"Base Operating Expenses" is hereinbefore defined in Section L L Base Operating Expenses shall not include (i) market-wide cost increases due to extraordinary circumstances, including but not limited to Landlord's Force Majeure (as defined below),
conservation surcharges, boycotts, strikes, embargoes or shortages and (ii) the cost of any Permitted Capital Expenditures; provided, however, that if there are elements of Building
repair and maintenance which wonld have been inclnded in Base Operating Expenses except that they were covered under twclvc-(12)-month construction installation warranties at no cost to Landlord, the cost of snch items shall be imputed into Base Operating Expenses. When used herein, "Landlord's Force Majeure" shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorist acts, civil commotions, unusual scarcity of or inability to obtain labor or materials, labor difficulties, casualty or other causes reasonably beyond Landlord's control or attributable to Tenant's action or inaction.
"Base Operating Expenses Allocable to the Premises" means the same proportion of Base Operating Expenses for and pertaining to the Bnilding and the Site as the Rentable Floor Area of Tenant's Space bears to Total Rentable Floor Area of the Building.
If
with respect to any calendar year falling within the Tem1, or fraction of a calendar year falling within the Term at the beginning or end thereof, the Operating Expenses
Allocable to the Premises for a full calendar year exceed Base Operating Expenses Allocable to the Premises, or for any snch fraction of a calendar year exceed the corresponding fraction of Base Operating Expenses Allocable to the Premises then, Tenant shall pay to Landlord, as Additional Rent, the amount of such excess ("Tenant's Operating Expenses Payment"). Such payments shall be made at the times and in the manner hereinafter provided in this Section 2.6. (The Base Operating Expenses Allocable to the Premises do not include the tenant electricity to be paid by Tenant at the time of payment of Annual Fixed Rent and for which provision is made in Section 2.5 hereof, separate provision being made in Section 2.8 of this Lease for Tenant's share of increases in electricity costs.)
Not later than one hundred and twenty (120) days after the end of the first calendar year or fraction thereof ending December 31 and of each succeeding calendar year during the Term or fraction thereof at the end of the Term, Landlord shall render Tenant a statement in reasonable detail and according to usual accounting practices certified by a representative of Landlord, showing for the preceding calendar year or fraction thereof,
as the case may be, Landlord's Operating Expenses and Operating Expenses Allocable to the Premises. Said statement to be rendered to Tenant shall also show for the preceding year or fraction thereof as the case may be the amounts of operating expenses already paid by Tenant as Additional Rent, and the amount of operating expenses remaining due from, or overpaid by, Tenant for the year or other period covered by the statement.
Within thirty (30) days after the date of delivery of such statement, Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.6 with respect to the preceding year or fraction thereof, or Landlord shall credit any amounts due from it to Tenant pursuant to the above provisions of this Section 2.6 against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under this Lease (or refund such. portion of the overpayment as aforesaid if the Term has ended and Tenant has no further obligation to Landlord).
In
addition, Tenant shall make payments monthly on account of Tenant's Operating
Expenses Payment anticipated for the then current year at the time and in the fashion herein provided for the payment of fixed rent. The amount to be paid to Landlord shall be an amount reasonably estimated annually by Landlord to be sufficient to cover, in the aggregate, a sum equal to Tenant's Operating Expenses Payment for each calendar year during the Term.
Notwithstanding the foregoing, in determining the amount of Landlord's Operating Expenses for the Base Year and any calendar year or portion thereof falling within the Lease Term, ifless than ninety-five percent (95%) of the Total Rentable Floor Area of the Building shall have been occupied by tenants at any time during the period in question, then, at Landlord's election with respect to years after the Base Year, but on a mandatory basis for the Base Year, those components of Landlord's Operating Expenses that vary based on occupancy for such period shall be adjusted to equal the amount such components of Landlord's Operating Expenses would have been for such period had occupancy been ninety-five percent (95%) throughout such period.
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2.6.1
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Examination of Landlord's Books and R
ecords. Subject to the provisions of this paragraph, and provided that Tenant is not in default in the payment of any Annual Fixed Rent or Additional Rent hereunder
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continuing beyond written notice from Landlord, if such notice is required prior to such default becoming an Event of Default, Tenant shall have the right, at Tenant's cost and expense, to examine or cause to be examined all of Landlord's books, documentation and calculations used in the determination of Landlord's Operating Expenses (the "Documentation").
1.
Such Documentation shall be made available to Tenant at the offices, in the continental United States, where Landlord keeps such records during normal business hours within a reasonable time after Landlord receives a written request from Tenant to make such examination. Such Documentation shall be retained by Landlord for at least two (2) years.
2.
Tenant shall have the right to make such examination no more than once in respect of any period for which Landlord has given Tenant a statement of the actual amouut of Operating Expenses.
3.
Any request for examination
in
respect of any calendar year may be made no more than twelve (12) months after Landlord advises Tenant of the actual amount of Operating Expenses in respect of such calendar year and provides to Tenant the year-end statement required above.
4.
Such examination may be made only by Tenant's employees or by an independent certified public accounting firm approved by Landlord, or a qualified real estate.professional approved by Landlord, which approval in
either case shall not be unreasonably withheld, conditioned or delayed. However, Landlord's approval shall not be required for a nationally-
recognized or regionally-recognized independent certified public accounting firm.
In
no event shall Tenant be permitted to utilize any examiner who is being paid by Tenant on a contingent fee basis.
5.
As a condition to perfom1ing any such examination, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement, in form reasonably acceptable to Landlord, agreeing to keep confidential any information which it discovers about Landlord or the Building in connection with such examination, provided however, that Tenant shall be permitted to share such information with each of its permitted subtenants so long as such subtenants execute and deliver to Landlord similar confidentiality agreements. Without limiting the foregoing, if Tenant uses any examiner which is other than a nationally recognized or regionally-recognized accounting firm or a nationally recognized or regionally recognized real estate firm, Tenant's examiner shall be required to agree that it will not represent any other tenant in the Building in reviewing operating expenses for such tenant.
6.
If, after the audit by Tenant of Landlord's books and records pursuant to this Section 2.6.1 with respect to any calendar year, it is finally detemrined that:
(i)
Tenant has made an overpayment on account of Tenant's Operating Expenses Payment, Landlord shall credit such overpayment against the next installment(s) of Annual Fixed Rent and Additional Rent thereafter payable by Tenant, together with interest thereon at the Default Interest Rate, except that if such overpayment is determined after the termination or expiration of the Term of this Lease,
Landlord shall promptly refund to Tenant the amount of such overpayment, together with interest thereon at the Default Interest Rate, Jess any amounts then due from Tenant to Landlord; and (ii) Tenant has · made an underpayment on account of Tenant's Operating Expenses Payment, Tenant shall, within thirty (30) days of such determination, pay such underpayment to Landlord, together with interest thereon at the Default Interest Rate; and (iii) if the amount of Landlord's Operating Expenses was overstated by more than three percent (3%), Landlord shall pay Tenant's reasonable ant-of-pocket cost for such audit.
2.7
Real Estate Taxes
If
with respect to any full Tax Year or fraction of a Tax Year falling within the Term, Landlord's Tax Expenses Allocable to the Premises as hereinafter defined for a full Tax Year exceed Base Taxes Allocable to the Premises, or for any such fraction of a Tax Year exceed the corresponding fraction of Base Taxes Allocable to the Premises then, on or before the thirtieth
(30'h)
day following receipt by Tenant of the certified statement referred to below in this Section 2.7, then Tenant shall pay to Landlord, as Additional Rent,
the amount of such excess ("Tenant's Tax Payment"). Not later than ninety (90) days after Landlord'.s Tax Expenses Allocable to the Premises are determined for the first
such Tax Year or fraction thereof and for each succeeding Tax Year or fraction thereof during the Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord showing for the preceding year or fraction thereof, as the case may be, Real Estate Taxes (as hereinafter defined) on the Building and the Site and abatements and refunds of any taxes and assessments. If an abatement of taxes or assessments results in Tenant having overpaid Tenant's Tax Payment for a prior period, Landlord shall credit such overpayment against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under this Lease, except that if such overpayment is detem1ined after the termination or expiration of the Term of this Lease, Landlord shall promptly refund to Tenant the amount of such overpayment. Reasonable expenditures for legal fees and for other expenses reasonably incurred in seeking the
tax
refund or abatement may be charged against the tax refund or abatement before the adjustments are made for the Tax Year. Said statement to be rendered to Tenant shall also show for the preceding Tax Year or fraction thereof as the case may be the amounts of Tenant's Tax Payment already paid by Tenant as Additional Rent, and the amount of Tenant's Tax Payment remaining due from, or overpaid by, Tenant for the year or other period covered by the statement. Within thirty (30) days after the date of delivery of the foregoing statement, Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.7 with respect to the preceding Tax Year or fraction thereof, or Landlord shall credit any amoilllts due from it to Tenant pursuant to the provisions of this Section
2.7
against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord illlder this Lease, except that if such overpayment is detennined after the termination or expiration of the Term of this Lease, Landlord shall promptly refund to Tenant the amount of such overpayment.
In
addition, payments by Tenant on account of Tenant's Tax Payment anticipated for the then current year shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. The amount so to be paid to Landlord shall be an ammmt reasonably estimated by Landlord to be sufficient to provide Landlord, in the aggregate, a sum equal to Tenant's Tax Payment, at least ten (10) days, but not more than thirty (30) days, before the day on which such payments by Landlord would become delinquent.
To the extent that Real Estate Taxes shall be payable to the taxing authority in installments with respect to periods less than a Tax Year, the foregoing statement shall be rendered and payments made on acconnt of such installments.
Terms used herein are defined as follows:
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(i)
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"Tax Year" means the twelve-(12)-month period beginning July
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each year during the Term or if the appropriate governmental tax fiscal period shall begin on any date other than July I, such other date.
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(ii)
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"Landlord's Tax Expenses Allocable to the Premises" shall mean the same proportion of Landlord's Tax Expenses for and pertaining to the Building
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and the Site as the Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor Area of the Building.
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(iii)
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"Landlord's Tax Expenses" with respect to any Tax Year means the aggregate Real Estate Taxes on the Building and Site with respect to that Tax Year, reduced by any abatement receipts with respect to that Tax Year.
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(iv)
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"Base Taxes" is hereinbefore defined in Section
1.1.
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(v)
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"Base Taxes Allocable to the Premises" means the same proportion of Base Taxes for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor Area of the Building.
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(vi)
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"Real Estate Taxes" means all taxes and special assessments of every kind and nature and user fees and other like fees assessed by any govermnental authority on the Building or Site which the Landlord shall become obligated to pay because of or in connection with the ownership, leasing and operation of the Site, the Building and the Property (including without limitation, if applicable, the excise prescribed by Massachusetts General Laws (Ter Ed) Chapter 121A, Section 10 and amounts in excess thereof paid to the City of Waltham pursuant to agreement between Landlord and the City) and reasonable expenses of and fees for any formal or informal proceedings for negotiation or abatement of taxes (collectively, "Abatement Expenses"), which Abatement Expenses shall be excluded from Base Taxes. TI1e amount of special taxes or special assessments to be included shall be limited to the amount of the instalhnent (plus any
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interest, other than penalty interest, payable thereon) of such special tax or special assessment required to be paid during the year in respect of which such taxes are being determined. There shall be excluded from such taxes inheritance, estate, succession, transfer, gift, franchise, or capital stock tax, or any income taxes arising out of or related to the ownership and
operation of income-producing real estate, or any increase in taxes and assessments resulting from Landlord's construction of any other structure or building located on the Site; provided, however, that if at any time during the Term the present system of ad valorem taxation of real property shall be changed so that in lieu of the whole or any part of the ad valorem tax 'on real property there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Site or Building or Property, or a federal, state, county, municipal, or other local income, franchise, excise or similar tax, assessment, levy or charge distinct from any now in effect in the jurisdiction in which the Property is located) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the term "Real
Estate Taxes" but only to the extent that the same would be payable if the Site and Buildings were the only property of Landlord.
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(vii)
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If
during the Lease Term the Tax Year is changed by applicable law to less than a full twelve-(12)-month period, the Base Taxes and Base Taxes Allocable to the Premises shall each be proportionately reduced.
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1.
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Main electric service will be provided by the local utility company and billed to and paid by Landlord at rates established by the utility company.
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2.
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Landlord shall cause check meters ("Main Check Meters") to be installed to monitor tenant electric usage.
If
a Main Check Meter serves only the Premises, it is herein referred to as a "dedicated" Main Check Meter; if it serves the Premises in common with other premises, it is herein referred to as a "shared" Main Check Meter. Such Main Check Meter(s) shall only measure electricity used for lights and electrical equipment utilized in the Premises, and fans which are part of the HVAC system serving the Premises. Any further equipment (including supplemental HVAC equipment) installed by or for Tenant shall have separate check meter(s) ("Supplemental Check Meters") installed at Tenant's expense. On each floor there shall be one or more Main Check Meter(s) serving all of the
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floor, and on multi-tenant floors Landlord may require that the tenants (at their sole cost and expense) install Main Check Meters relating to their premises (to the extent there are no Main Check Meters already serving only such premises) and Supplemental Check Meters to separately meter special usage within tenant premises such as computer rooms. Landlord shall install a Main Check Meter serving the fifth (5th) floor of the Building at its cost and expense. With respect to any portion of the Premises that may in the future not he separately check metered on a dedicated Main Check Meter, Landlord will not unreasonably withhold its consent to Tenant to install dedicated Main Check Meter(s) serving solely such portion of the Premises at Tenant's sole cost and expense.
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3.
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Tenant's share of the costs of electricity shall be determined by Landlord on the following basis:
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a.
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Landlord will cause the check meters serving the Premises to be read periodically, but not less often than once every six (6) months during the first two (2) years of the Term and once every twelve
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(12) months thereafter.
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b.
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For portions of the Premises served by dedicated Main Check Meter(s), and for all Supplemental Check Meter(s) serving the Premises, Ten.ant's allocable share of electricity costs for the period ("Tenant's
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Electricity Payment") shall be determined by multiplying the cost per kilowatt hour charged by the utility(ies) to
Landlord by the number of kilowatt hours utilized by Tenant for such period as indicated by the dedicated Main Check Meter(s) and Supplemental Check Meter(s) for Tenant's Premises.
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c.
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For portions of the Premises served by shared Main Check Meter(s), the Tenant's Electricity Payment shall be determined by multiplying the cost per kilowatt hour charged by the utility(ies) to Landlord by the number of kilowatt hours utilized as indicated by such shared Main Check Meter(s), and multiplying such total cost by a fraction, the numerator of which is the rentable area leased to Tenant and the denominator of which is the total rentable area under lease to tenants served by such shared Main Check Meter(s); provided, however, that if Landlord shall reasonably determine
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that the cost of electricity furnished to the Tenant at such portion of the Premises exceeds the amount being paid by Tenant, then Landlord shall charge Tenant for such excess and Tenant shall promptly pay the same upon billing therefor as Additional Rent lmder the Lease.
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d.
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Where part or all of the rentable area on a floor bas been occupied for less than all of the period for which adjustments are being made, appropriate and equitable modifications shall be made to the allocation formula so that each tenant's allocable share of costs equitably reflects its period of occupancy, provided that in no
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event shall the total of all costs as allocated to tenants (or to unoccupied space) be less than the total cost of electricity for snch floor for said period.
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4.
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Tenant shall make estimated payments on account of Tenant's Electricity Payment, as reasonably estimated by Landlord, on a monthly basis at the same time and in the same mantier as Tenant's monthly installments of Annual Fixed Rent. No later than one hundred twenty (120) days after each reading of the Main Check Meter(s) and Supplemental Check Meter(s) serving the Premises, as set forth in Section 2.8 3.a, Landlord shall render Tenant a statement in reasonable detail certified by an officer of Landlord, showing for the preceding period the Tenant's Electricity Payment. Said statement to be rendered to Tenant also shall show for such period the amounts already paid by Tenant on account of Tenant's Electricity Payment and the amount of Tenant's Electricity Payment remaining due from, or overpaid by, Tenant for the period covered by the statement.
If
such statement shows a balance remaining due to Landlord, Tenant shall pay same to Landlord on
or
before the thirtieth (30"') day following receipt by Tenant of said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or refunded to Tenant if the Lease Term has then expired and Tenant has no further obligation to Landlord. Payments by Tenant on
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account of Tenant's Electricity Payment shall be deemed Additional Rent and shall be made monthly at the time and in the fashion herein provided for the
payment of Annual Fixed Rent.
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5.
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All costs of electricity billed to Landlord through the central utility metering center other than the costs of tenant electricity allocated pursuant to the procedures established herein, shall be treated as part of the Operating Expenses for the Building for purposes of determining the allocation of those costs.
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6.
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Landlord shall be responsible for the maintenance of the Main Check Meter(s) and Tenant shall be responsible for the maintenance of the Supplemental Check Meter(s).
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ARTICLE III
CONSTRUCTION
(A)
Landlord, at Landlord's sole cost and expense, shall perform the. base building work ("Landlord's Work") as defined in the Base Building Specifications attached hereto as Exhibit B-1. Subject to any prevention, delay or stoppage due to Landlord's Force Majeure or attributable to Tenant Delays (as hereinafter defined), Landlord shall use reasonable speed and diligence in the construction of Landlord's Work so as to have the same Substantially Completed (as hereinafter defined) on or before the Estimated Commencement Date set forth in Section I .I , but Tenant shall have no claim against Landlord for failure to complete construction of Landlord's Work, except as expressly set forth in Section 3.2.
(B)
The "Actual Substantial Completion Date" shall be defined as the date on which the Landlord's Work has been Substantially Completed. "Substantial Completion" and "Substantially Completed" shall each mean the date on which an architect designated by Landlord shall have executed a certificate or statement representing that Landlord's Work has been completed in accordance with the plans and specifications therefor, but for those items of work and adjustment of equipment and fixtures in the Premises (the "Punch List Items"), the incompleteness of which do not cause material interference with the performance of Tenant's Work, and which can be completed after Tenant connnences Tenant's Work without causing material interference with the performance of Tenant's Work. After Substantial Completion, Landlord shall proceed diligently to complete all Punch List Items at Landlord's expense within three (3) months after the occun-ence of Substantial Completion (except for items which can only be performed during certain seasons or weather, which items shall be completed diligently as soon as the season and/or weather permits).
(C)
The "Substantial Completion Date" shall be defined as the Actual Substantial Completion Date, provided however, that if Landlord is delayed in the performance of
Landlord's Work by reason of any Tenant Delay, as hereinafter defined, then the Substantial Completion Date shall be deemed to be the date that Landlord would have
achieved the Actual Substantial Completion Date, but for such Tenant Delay. Tenant agrees that no delay by Tenant, or anyone employed by Tenant, in perfom1ing Tenant's Work or any delay caused by any default by Tenant under the Lease (collectively a "Tenant Delay") shall delay commencement of the Term or the obligation to pay rent, regardless of the reason for such delay or whether or not it is within the control of Tenant or any such employee. Nothing contained in this paragraph shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease. ·
(D)
Except to the extent to which Tenant shall have given Landlord notice ofrespects in which Landlord has not performed Landlord's construction obligations under this Article III (i) not later than the date eleven
(11)
months and three (3) weeks after the commencement of the warranty on Landlord's Work issued hy Landlord's general contractor, Tenant shall be deemed conclusively to have approved Landlord's construction and shall have no claim that Landlord has failed to perform any of Landlord's obligations under this Article III. Landlord agrees to notify Tenant, from time to time upon written request, whether the warranty on Landlord's Work issued by Landlord's general contractor has commenced, and if so, the date of such commencement. Landlord agrees to correct or repair at its expense items which are then incomplete or do not conform to the work contemplated under the Base Building
Specifications and as to which, in either case, Tenant shall have given notice to Landlord, as aforesaid. The provisions of this Paragraph D shall not relieve Landlord of any obligation which Landlord has to make repairs or to perform maintenance pursuant to Article IV of the Lease.
(E)
As part of Landlord's Work, Landlord will be designing and installing the restrooms on Floor 5 of the Building in accordance with the Base Building Specifications. Tenant has requested Landlord to make changes in the finish selection (excluding the layout) of the restrooms on Floor 5 as follows: install stainless steel partitions and floor tile as specified in Tenant's April 5, 2007 snbmission to Landlord. Landlord has snbmitted to Tenant the cost of such finishes over and above the cost of the Base Building Specifications ("Cost Excess"), and Tenant has indicated that it will pay the Cost Excess and directed Landlord to proceed with Tenant's requested fmishes. The Cost Excess will be deducted from Landlord's Contribution. Tenant shall not be required to pay for the cost of removing/replacing the stainless steel partitions or the floor tile described
in
Tenant's April 5, 2007 submission to Landlord at the expiration of the Term hereof. ·
(F)
As part of Landlord's Work; at Landlord's expense, Landlord shall install a check meter on Floor 5 to measure the electrical consumption of the Premises.
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3.2
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Tenant's Remedies Based on Delays in Landlord's Work
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(A)
Tenant's Termination Right.
If
the Substantial Completion Date shall not have occurred on or before June 30, 2008; which date shall be extended for delays due to Landlord's Force Majeure (as so extended, the "First Outside Completion Date"), Tenant
shall have the right to terminate this Lease by giving notice to Landlord of Tenant's desire to do so before such completion and within the time period from the First Outside Completion Date until the date which is sixty (60) days subsequent to the First Outside Completion Date; and, upon the giving of such notice, the Term of this Lease shall cease and come to an end without further liability or obligation on the part of either party
unless, within forty-five (45) days after receipt of such notice, the Substantial Completion Date occurs. Each day of Tenant Delay shall be deemed conclusively to cause an equivalent day of delay by Landlord in substantially completing Landlord's Work, and tbereby automatically extend for each such equivalent day of delay the date of the First Outside Completion Date.
(B)
Monetary Relief.
If
the Substantial Completion Date shall not have occurred on or before August 31, 2008 (the "Second Outside Completion Date"), then the following provisions shall take effect:
(1)
The Occupancy Date shall be redefined as the earlier of (i) six (6) months after the Substantial Completion Date; or
(b)
the date Tenant occupies all or any portion of the Premises for the conduct of business.
(2)
Tenant and Landlord shall cooperate with each other to shorten the time necessary to complete the performance of Tenant's Work (including, without limitation, performing certain elements of Tenant's Work and Landlord's Work simultaneously), though sucb cooperation shall not require Tenant to expend any material amounts in excess of what it would have otherwise spent in the performance of Tenant's Work, unless Landlord agrees to reimburse such costs.
(3)
Landlord shall reimburse Tenant for the Holdover Penalty, as hereinafter defined, under Tenant's existing lease at Bay Colony Corporate Center ("Existing Lease") for the Holdover Penalty Period, as-hereinafter defined. For purposes hereof, the "Holdover Penalty" shall be defined as the excess of rent and other occupancy charges charged to Tenant by the landlord under the Existing Lease, on a per diem basis, from and after April
1,
2009 over the rent and other occupancy charges charged to Tenant by the landlord under the Existing Lease, on a per diem basis, for the month of March, 2009. The Holdover Penalty shall not include any damages (direct, indirect or consequential) which Tenant may be obligated to pay the landlord under the Existing Lease as a result of Tenant's holding over nnder the Existing Lease beyond March 31, 2009. The "Holdover Penalty Period" shall be the period from April l, 2009 to the Occupancy Date.
(4)
If
the Substantial Completion Date has not occurred by January 1, 2009, then Tenant shall again have the right to terminate this Lease by giving notice to Landlord of Tenant's desire to do so before such completion and on or before January 31, 2009; and, upon the giving of such notice, the Term of this Lease shall cease and come to an end without further liability or obligation on.the part of either party nnless, within thirty (30) days after receipt of such notice, the Substantial Completion Date occurs.
If
Tenant does not so tenninate this Lease
pursuant to this Section 3.2(B)(4), then the Holdover Penalty Period shall end on the earlier of the Occupancy Date or September 30, 2009.
Each day of Tenant Delay shall be deemed conclusively to cause an equivalent day of delay by Landlord in substantially completing Landlord's Work, and thereby automatically extend for each such equivalent day of delay the date of the Second Outside Completion Date.
(C)
Tenant represents and warrants to Landlord that (i) Tenant bas provided Landlord with true and complete copies of the provisions of the Existing Lease dealing with Tenant's holding over in the premises demised thereunder after March 31, 2009 (the "Existing Lease Holdover Provisions"), and (ii) Tenant will not modify, or agree to a modification of, the Existing Lease Holdover Provisions in any way that would increase the Holdover Penalty.
(D)
The remedies set forth in this Section 3.2 are Tenant's sole and exclusive rights and remedies based upon any delay in the performance of Landlord's Work.
Tenant shall, as of the Actual Substantial Completion Date, commence the performance of the work ("Tenant's Work") necessary to prepare the Premises for Tenant's occupancy, and Tenant shall thereafter diligently prosecute the Tenant's Work to completion. Except for Landlord's Contribution, as set forth in Section 3.5, all of the Tenant's Work shall be performed at Tenant's sole cost and expense, and shall be performed in accordance with the provisions of this Lease (including, without limitation, Section 5.14). Tenant shall take necessary reasonable measures to the end that Tenant's contractors shall cooperate in all reasonable ways with Landlord's contractors to avoid any delay in any work being performed by Landlord. In performing Tenant's Work, Tenant shall take all precautions necessary to protect the Building elevators (including, without limitation, installing padding on the walls and covering on the floor of said elevators) and the common areas of the Property, and shall be responsible for repairing any damage thereto resulting from Tenant's Work.
In co11I1ection with the performance of Tenant's Work, Tenant shall submit
to
Landlord for Landlord's approval an initial set of plans ("Initial Plans"), progress plans from time to time ("Interim Plans") and a full set of constrnction drawings ("Final Plans") for Tenant's Work (collectively "the Plans"). The Plans shall contain at least the information required by, and shall conform to the requirements of, Exhibit B-2. Landlord's approval of the Initial Plans and the Interim Plans (and the Final Plans, provided that the Final Plans (i) are consistent with the Initial Plans and the Interim Plans, (ii) contain at least the information required by, and conform to the requirements of, said Exhibit B-2, and (iii) comply with Landlord's requirements to avoid aesthetic or other conflicts with the design and function of the balance of the Building) shall not be umeasonably withheld, conditioned or delayed. Landlord's approval is solely given for the benefit of Landlord under this Section
33,
and neither Tenant nor any third party shall have the right to rely
upon Landlord's approval of Tenant's plans for any other purpose whatsoever. Without limiting the foregoing, Tenant shall be responsible for all elements of the design of Tenant's plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant's furniture, appliances and equipment), and Landlord's approval of Tenant's plans shall in no event relieve Tenant of the responsibility for such design.
Landlord agrees to respond to any Initial Plans within twenty-one (21) days ofreceipt thereof, to Interim Plans within ten (10) days of receipt thereof, and to Final Plans within fourteen (14) days of receipt thereof.
If
Landlord disapproves of any Plans, then Tenant shall have the Plans revised by its architect to incorporate all reasonable objections and conditions presented by Landlord and resubmitted to Landlord. Such process shall be followed until the Plans shall have been approved by the Landlord without objection or condition. Landlord shall respond to the resubmission of any Plans by Tenant within five
(5) days of Landlord's receipt thereof (or fourteen (14) days in the case of a major redesign).
If
no time period is specified in this Article Ill for any action which must be taken by Tenant in connection with the approval of the Plans or the performance of the Tenant's Work, Tenant shall be required to take such action within ten (IO) business days after Tenant receives a written request to take such action. There shall be no charge by Landlord for Landlord's internal review and approval of Tenant's Plans; provided, however, that if Landlord reasonably determines that a third-party consultant is needed to review Tenant's Plans, then Tenant shall reimburse Landlord for the reasonable third party out-of-pocket costs incurred by Landlord in hiring said third party to review Tenant's Plans.
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3.4
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Qualitv and Performance of Work
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All construction work required or permitted by this Lease shall be done in a good and workmanlike manner and in compliance with all applicable laws, ordinances, rules, regulations, statutes, by-laws, court decisions, and orders and requirements of all public authorities ("Legal Requirements") and all Insurance Requirements (as defined in Section 5.7 hereof). Tenant shall have Tenant's Work performed by contractors, reasonably approved by Landlord, which contractors shall provide to Landlord such insurance as the Landlord may reasonably require. All of Tenant's Work shall be coordinated with any work being performed by, or for, Landlord, and in such manner
as
to maintain harmonious labor relations. Each party authorizes the other to rely in connection with design and construction upon the written approval or other written authorizations on the party's behalf by any Construction Representative of the party named in Section I.I or any person hereafter designated in substitution or addition by notice to the party relying. Each party may inspect the work of the other at reasonable times and shall promptly give notice of observed defects. Tenant acknowledges that.
Tenant is acting for its own benefit and account and that Tenant will not be acting as Landlord's agent in performing any Tenant Work, accordingly, no contractor, subcontractor or supplier shall have a right to lien Landlord's interest in the Property in connection with any such work.
3.5
Landlord's Contribution
'Landlord's Contribution") to be used by Tenant to pay for the cost of t e enant's Work. For the purposes hereof, the cost to be so reimbursed by Landlord shall
include the cost of leasehold improvements and architectural and engineering fees (reimbursement for such fees being capped at ten percent (10%) of Landlord's Contribntion), but shall not include any of Tenant's personal property, trade fixtures or trade equipment.
(B)
Landlord shall pay Landlord's Proportion (as hereinafter defined) of the cost shown on each requisition (as hereinafter defined) submitted by Tenant to Landlord within thirty (30) days of submission thereof by Tenant to Landlord until the entirety of Landlord's Contribution has been exhausted. For the purposes hereof, "Landlord's Proportion" shall be a fraction, the numerator of which is Landlord's Contribution and the denominator of which is the total contract price for Tenant's Work. A "requisition"
. shall mean written documentation (including, without limitation, invoices from Tenant's
contractors, vendors, service providers and consultants, lien waivers in the form of
Exhibit F attached hereto, and such other documentation as Landlord or Landlord's mortgagee may reasonably request) showing in reasonable detail the costs of the item in question or of the improvements installed to date in the Premises, accompanied by
. certifications from Tenant that the amount of the requisition in question does not exceed the cost of the items, services and work covered by such requisition. Each requisition shall indicate whether Tenant wants it paid to Tenant or to Tenant's contractor, and shall be accompanied by evidence reasonably satisfactory to Landlord that items, services and work covered by such requisition has been fully paid by Tenant (if the requisition is to be paid to Tenant, rather th.an to Tenant's contractor) and that the work has heen performed. Landlord shall have the right, upon reasonable advance notice to Tenant, to inspect Tenant's books and records relating to each requisition in order to verify the amount thereof. Tenant shall submit requisition(s) no more often than monthly. Landlord shall be entitled to deduct from Landlord's Contribution a construction management fee for Landlord's oversight of Tenant's Work in an amount equal to 0.75% of the hard costs of Tenant's Work.
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(C)
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Notwithstanding anything to the contrary herein contained:
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(i)
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Landlord shall have no obligation to advance funds on account of Landlord's Contribution unless and until Landlord has received the requisition in question.
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(ii)
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Except with respect to work and/or materials previously paid for by Tenant, as evidenced by paid invoices and written lien waivers provided to Landlord, Landlord shall have the right to have Landlord's Contribution
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paid to directly to Tenant's contractor(s), consnltants, service providers, and vendor(s), if Landlord reasonably determines that such action is necessary to protect it.s interest in the Bnilding.
In
no event shall either Landlord's Contribution be applied to any fees paid to Tenant or any affiliate of Tenant.
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(iii)
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Tenant shall not be entitled to any portion of Landlord's Contribution, and Landlord shall have no obligation to pay Landlord's Contribntion in respect of any requisition submitted after the date which is one (1) year after the Occupancy Date.
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(iv)
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Tenant shall not be entitled to any unused portion of Landlord's Contribution nor shall any nnused portion be nsed as a credit against A111lual Fixed Rent or Additional Rent.
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(v)
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Landlord's obligation to pay any portion of Landlord's Contribution shall be conditioned upon there existing no default by Tenant in its obligations under the Lease of which Landlord has given Tenant written notice (even if the grace period therefor, if any, has not yet expired) which remains uncured at the time that Landlord would otherwise be required to make such payment, provided that Landlord shall pay any such portion of Landlord's Contribution once the default is cured.
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3.6
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Landlord's Test Fit Allowance
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In
addition to Landlord's Contribution, Landlord has
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3.7
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Landlord's Special Allowance
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ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1
Landlord Covenants
4.1.1
Services Furnished by Landlord
Landlord shall furnish services, utilities, facilities and supplies set
forth
in Exhibit C equal to those customarily provided by landlords in comparable Class A, high quality buildings in the Waltham/Central 128 area ("Class A Central 128
Area Market") subject to escalation reimbursement in accordance with Section 2.6.
4.1.2
Additional Services Available to Tenant
Landlord shall furnish, at Tenant's expense, reasonable additional Building services which are usual and customary in similar office buildings in the Class A Central 128 Area Market upon reasonable advance request of Tenant at reasonable and equitable rates from time to time established by Landlord. Tenant agrees to pay to Landlord, as Additional Rent, (i) the cost of any such additional Building services requested by Tenant and (ii) tbe cost of any additions, alterations, improvements or other work performed by Landlord in the Premises
at the request of Tenant, within thirty (30) days after being billed therefor.
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4.l
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.3
Roof, Exterior Wall, Floor Slab and Common Facility Repairs
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Except for (a) normal and reasonable wear and use and (b) damage caused by fire and casualty and by eminent domain, and except as otherwise provided in Article VI and subject to the escalation provisions of Section 2.6, Landlord shall repair, replace and maintain in good condition in a manner comparable to the maintenance of similar high-quality properties in the Class A Central 128 Market
(i)
the foundations, roof, exterior walls, structural floors, elevators and all other structural elements of the Building, Common Areas and Premises, (ii) all nonstructural elements of the Building which relate to the Common Areas or another tenant's premises in addition to the Premises, (iii) the electrical, mechanical, plumbing, lighting, life safety, fire, sprinkler, heating, ventilating and air conditioning ("HVAC") and security systems, fixtures and equipment located outside of the Premises but which serve the Premises (except for any such item or system installed by or for Tenant), and (iv) the exterior walkways, sidewalks, driveways and parking areas on the Site. Landlord shall maintain the Building (exclusive .of Tenant's responsibilities under this Lease) in a first class marmer comparable to the maintenance of similar properties in the Class A Central 128 Area Market. ·
(A)
Premises S
ima2e. Landlord shall provide and install, at Landlord's expense, letters or numerals on exterior doors
in
the Premises to identify Tenant's official name and Building address; all such letters and numerals shall be in the building standard graphics and no others shall be used or permitted on the Premises.
(B)
Lobby Signage. Tenant shall have the right, during the Term of the Lease, to list Tenant's name on the Building Directory. The initial listing of Tenant's · name shall be at Landlord's cost and expense. Any changes, replacements or additions by Tenant to such directory shall be at Tenant's sole cost and expense.
In addition, Tenant shall have the non-exclusive right to impact signage similar in size to the individual tenant signs in the lobby of 201 Jones Road, Waltham as of the date hereof ("Impact Signage"). All such Impact Signage shall be installed by Landlord at Landlord's sole cost and expense, as part of Landlord's general
impact signage program for the Building, and the final design thereof shall be in Landlord's sole discretion.
(C) Monument Sirnage. Landlord shall use reasonable efforts to obtain all necessary permits to install monument signage ("Monument") at the entrance to the Building.
If
Landlord receives the required permits, Landlord shall install the Monument, and Tenant shall have the non-exclusive right to have its name and logo on said Monument ("Monument Sign"). The initial listing of Tenant's name and logo on the Monument shall be at Landlord's cost and expense; any changes, replacements or additions to the Monument Sign requested by Tenant shall be done at Tenant's sole cost and expense. The Monument Sign shall be substantially in accordance with the conceptual plan attached hereto as Exhibit
L.
(D)
Notwithstanding the foregoing provisions of this Section to the contrary, within thirty (30) days after the date on which (i) there occurs, and remains uncured, an Event of Default of Tenant, (ii) the premises demised under this Lease contain less than 28,940 square feet (or, if less, the square footage demised to any other tenant having rights to Impact Signage in the Building), or (iii) the Term of the Lease is terminated dne to a Tenant default, then Tenant shall, at its
cost and expense, remove the Monument Sign and the Impact Signage and restore all damage to the Monument and the Building caused by the installation and!or removal of such Monument Sign or Impact Signage. Such removal and restoration shall be performed in accordance with the terms and conditions governing alterations pursuant to Section 5.2 herein. The right to the Monument Sign and the Impact Signage granted pursuant to this Section
4.1.4
is personal to Pittiglio, Rabin, Todd
&
McGrath, Inc. and any Pennitted Transferee.
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4.2
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Interruptions and Delays in Services and Repairs, Etc
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(A)
Except as may be expressly set forth in this Lease, Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance or for loss of business arising from the necessity of Landlord or its agents entering the Premises for any of the purposes in this Lease authorized, or for repairing the Premises or any portion of the Building however the necessity may occur. In case Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any services or performing any other covenant or duty to be performed on Landlord's part, by reason of any cause reasonably beyond Landlord's control, including without limitation the causes set forth in Section 3.2 hereof as being reasonably beyond Landlord's control, Landlord shall not be liable to Tenant therefor, nor, except as expressly otherwise provided in Article VI, shall Tenant be entitled to any abatement or reduction of rent by reason thereof, or right to terminate this Lease, nor shall the same
give rise to a claim in Tenant's favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises.
(B)
Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs, Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof.
(C)
Notwithstanding anything to the contrary in this Lease contained, if due to (a) Landlord's failure to provide any service required to be provided by Landlord hereunder (a "Service Interruption"), or (b) (i) any repairs made by Landlord (including, without limitation, pursuant to Section 2.3 or Section 4.1.3 hereof) or (ii) Landlord's failure to maintain the Building or make any repairs required to be made by Landlord herennder (either, a "Repair Interruption"), any portion of the Premises becomes nntenantable so that for the Premises Untenantability Cure Period, as hereinafter defined, the continued operation in the ordinary course of Tenant's business is materially adversely affected, then, provided that Tenant ceases to use the affected portion of the Premises during the entirety of the Premises Untenantability Cure Period by reason of such untenantability, and that such untenantability and Landlord's inability to cure such condition is not caused by the fault or neglect of Tenant or Tenant's agents, employees or contractors, Annual Fixed Rent and Operating Expenses Allocable to the Premises shall thereafter be abated in proportion to the impact on the continued operation in the ordinary course of Tenant's business nntil the day such condition is completely corrected. For the purposes hereof, the "Premises Untenantability Cure Period" shall be defined as five (5) consecutive business days after Landlord's receipt of written notice from Tenant of the condition causing untenantability in the Premises, provided however, that the Premises Untenantability Cure Period shall be ten (10) consecutive business days'after Landlord's receipt of written notice from Tenant of such condition causing nntenantability in the Premises if either the condition was caused by causes beyond Landlord's control or Landlord is nnable to cure such condition as the result of causes beyond Landlord's control. The provisions of this paragraph shall not apply in the event of nntenantability caused by fire or other casualty, or taking (see Article VI).
(D)
Notwithstanding anything to the contrary herein contained, if due to a Service Interruption or a Repair Interruption, any materia!'portion of the Premises becomes untenantable for a period ("Untenantability Period") of five (5) consecutive months (which five (5) month period shall be extended by the period of time, which shall not exceed an additional one (I) month, that Landlord is delayed in curing such condition as the result Landlord's Force Majeure) after Landlord's receipt of written notice of such condition from Tenant, then, provided that Tenant ceases
to
use the affected portion of the Premises during the entire period of such untenantability, and Landlord's inability to cure such condition is not caused by a cause beyond Landlord's reasonable control or the fault or neglect of Tenant, or Tenant's agents, employees or contractors, then Tenant may terminate this Lease. by giving Landlord written notice as follows:
(!)
Said notice shall be given after the expiration of the Untenantability Period.
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(2)
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Said notice shall set forth an effective date which is not earlier than thirty (30) days after Landlord receives said notice.
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(3)
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If
said condition is remedied on or before said effective date, said notice shall have no further force and effect.
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(4)
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If said condition is not remedied on or before said effective date for any reason other then Tenant's fault, as aforesaid, the Lease shall terminate as of said effective date, and the Annual Fixed Rent and Additional Rent due under the Lease shall be apportioned as of said effective date.
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(E)
The provision of this Section 4.2 shall be Tenant's sole remedy in the event of a Service Interruption or a Repair Interruption.
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4.3
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Landlord's I
nsurance.
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Landlord shall carry at all times during the Term of this Lease, (i) commercial general liability insurance with respect to the Building in an amount not less than $5,000,000.00 combined single limit per occurrence, and (ii) insurance against loss or damage to the Building caused by any peril covered under fire, extended coverage and all.risk insurance with coverage against vandalism, malicious mischief and such other insurable hazards and contingencies as are from time to time normally insured against by owners of Class
A Boston Market office buildings or which are required by Landlord's mortgagee, in an amount equal to one hundred percent (100%) of the full replacement cost thereofabove foundation walls. Further, Landlord may also maintain such insurance against loss of Annual Fixed Rent and Additional Rent for up to twelve (12) months (or such longer period of time as Landlord's mortgagee may require) and such other risks and perils as Landlord deems proper, consistent with other Class A Boston Market office buildings. Any and all such insurance (i) may be maintained under a blanket policy affecting other properties of Landlord and/or its affiliated business organizations, (ii) may be written with deductibles as reasonably determined by Landlord and (iii) shall be subject to escalation reimbursement in accordance with Section 2.6.
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4.4
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Landlord's Indemnity.
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Subject to the limitations on Landlord's liability set forth in this Lease, Landlord agrees to indemnify, defend and save harmless Tenant from and against any claim arising from any accident, injury or damage occurring in the Premises, in the Building or on the Site after the date that possession of the Premises is first delivered to Tenant and until the expiration or earlier termination of the Lease Term, to the extent that such accident, injury or damage results from the negligence of Landlord or Landlord's agents, employees, servants, or contractors.
Subject to the limitations on Landlord's liability set forth in this Lease, this indemnity and hold harmless agreement shall include indemnity against all costs, expenses and liabilities incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants and agrees to the following during the Term and such further time as Tenant occupies any part of the Premises:
Tenant shall pay when due all fixed rent and Additional Rent and all charges for utility services rendered to the Premises (except as otherwise provided in Exhibit
C)
and, as further Additional Rent, all charges for additional services rendered pursuant to Section 4.1.2.
Except as otherwise provided in Article VI and Section 4.1.3, Tenant shall keep the Premises in good order, repair and condition, reasonable wear and tear and damage by fire or other casualty only excepted, and all glass in windows (except glass in exterior walls unless the damage thereto is attributable to Tenant's misuse) and doors of the Premises whole and in good condition with glass of the same type and quality as that injured or broken, damage by fire or taking under the power of eminent domain only · excepted, and at the expiration or termination of this Lease peaceably yield np the Premises and all construction, work, improvements, and all alterations and additions thereto in good order, repair and condition, reasonable wear and tear and damage by fire or other casualty only excepted. Prior to such yielding up, Tenant shall first remove (i) all goods and effects of Tenant, and (ii) unless Landlord otherwise notifies Tenant by notice given at least ten (10) days before such expiration or termination, the wiring for Tenant's computer, telephone and other communication systems and equipment whether located in the Premises or in any other portion of the Building, including all risers, and
(iii) any equipment installed on the roof pursuant to Section 8.27 hereof, and (iv) all · Required Removeables, as defined in Section 5.14 hereof.. Tenant shall repair any damage caused by all such removal (whether such damage is caused to the Premises or to other portions of the Property) and restore the Premises and leave them clean and neat. Tenant shall not pennit or commit any waste. Tenant shall be responsible for the cost of repairs which may be made necessary by reason of damage to common areas in the Building or to the Site caused by Tenant, Tenant's agents, contractors, employees, sublessees, licensees, concessfonaires or invitees.
. 5.3 Use
Tenant shall use and occupy the Premises for the Permitted Use only, and shall not injure
or deface the Premises, Building or the Site nor permit in the Premises or on the Site any auction sale, vending machine, or inflammable fluids or chemicals, or nuisance, or the emission from the Premises of any objectionable noise or odor, nor permit in the Premises anything which would in any way result in the leakage of fluid or the growth mold, nor use or devote the Premises or any part thereof for any purpose other than the
Pem1itted Uses, nor permit any use thereof which is inconsistent with the maintenance of the Building as an office building of the first class in the quality of its maintenance, use and occupancy, or which is improper, offensive, contrary to law or ordinance or liable to invalidate or increase the premiums for any insurance on the Building or its contents or liable to render necessary any alteration or addition to the Building.
If
Tenant abandons or vacates all or any portion of the Premises for a period of in excess ofone hundred eighty
(180)
days, Landlord shall have the right, on not less than ten
(IO)
days' prior written notice thereof to Tenant, to enter into the Premises
in
order to tum the lights on in the vacated portion(s) of the Premises at the same level as if the Premises were fully occupied, and Tenant shall pay for all electricity charges related thereto.
Vacancy or abandonment shall not he deemed to be an Everit of Default by Tenant hereunder.
Further, (i) Tenant shall not, nor shall Tenant permit its employees, invitees, agents, independent contractors, contractors, assignees or subtenants to, keep, maintain, store or dispose of (into the sewage or waste disposal system or otherwise) or engage in any activity which might produce or generate any substance which is or may hereafter be classified as a hazardous material, waste or substance (collectively "Hazardous Materials"), under federal, state or local laws, rules and regulations, including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts General Laws, Chapter 21E and the rules and regulations promulgated under any of the foregoing, as such laws, rules and regulations may be amended from time to time (collectively "Hazardous Materials Laws") (other than de minimus amounts of office supplies and cleaning supplies used in the normal course of Tenant's Permitted Use of the Premises, and in any event used and stored and disposed of in accordance with all applicable laws),
(ii) Tenant shall inunediately notify Landlord of any incident in, on or about the Premises, the Building or the Site that would require the filing of a notice under any Hazardous Materials Laws, (iii) Tenant shall comply and shall cause its employees,
invitees, agents, independent contractors, contractors, assignees and subtenants to comply with each of the foregoing and (iv) Landlord shall have the right to make such
inspections (including testing) as Landlord shall elect from time to time to determine that Tenant is complying with the foregoing. ·
5.4
Obstructions; Items Visible From Exterior; Rules and Regulations
Tenant shall not obstruct in any manner any portion of the Building not hereby leased or any portion thereof or of the Site used by Tenant in common with others; nor Without the· prior consent of Landlord, shall Tenant permit the painting or placing of any signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like, visible from outside the
Premises; and Tenant shall comply with all reasonable Rules and Regulations now or hereafter made by Landlord, of which Tenant has been given notice, for the care and nse of the Building and Site and their facilities and approaches; Landlord shall not be liable
to Tenant for the failure of other occupants of the Buildings to conform to such Rules and Regulations. All rules and regulations shall be applied and enforced on all tenants in a non-discriminatory ma!Uler, except where differing circumstances jnstify different treatment.
Tenant shall keep the Premises equipped with all safety appliances required by any public authority because of any use made by Tenant other than normal office use, and
shall procure all licenses and permits so required because of such use and, if requested by
Landlord, Tenant shall do any work so required because of such use, it being understood that the foregoing provisions shall not be construed to broaden in any way Tenant's Permitted Use.
Except as otherwise expressly provided herein, Tenant covenants and agrees that it shall not assign, mortgage, pledge, hypothecate or otherwise transfer this Lease and/or Tenant's interest in this Lease or sublet (which term, without limitation, shall include granting of concessions, licenses or the like) the whole or any part of the Premises. Any assignment, mortgage, pledge, hypothecation, transfer or subletting not expressly permitted in or consented to by Landlord under Sections 5.6.1-5.6.5 shall be void, ab initio; shall be of no force and effect; and shall confer no rights on or in favor of third parties. In addition, Landlord shall be entitled to seek specific performance of or other equitable relief with respect to the provisions hereof.
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5.6.1
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Notwithstanding the foregoing provisions of Section 5.6 above and the provisions of Section 5.6.2 below, but snbject to the provisions of Sections 5.6.3, 5.6.4 and 5.6.5, below Tenant shall have the right to assign this Lease or to sublet the Premises (in whole or in part) to any parent or subsidiary corporation of Tenant or to any corporation into which Tenant may be converted or wit11which it may merge, or to any successor entity which acquires substantially all of the assets or stock of Tenant, provided that the entity to which this Lease is so assigned or which so sublets the Premises has a creditworthiness (e.g., assets on a pro forma basis using generally accepted accounting principles consistently applied and using the most recent financial statements) which is the same or better than the Tenant as of the date of this Lease (a "Permitted Transferee").
If
any parent or subsidiary corporation of Tenant to which this Lease is assigned or the Premises sublet (in whole or in part) shall cease to be such a parent or subsidiary corporation, such cessation shall be considered an assignment or subletting requiring Landlord's consent.
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5.6.J
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.I Notwithstanding the provisions of Section 5.6 above, in the event Tenant desires
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(a)
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to assign this Lease, or
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(b)
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to sublet (i) such portion (the "Sublease Portion") of the Premises as
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(x) contains by itself at least ten thousand (10,000) square feet of rentable floor area and (y) would bring the total amount of the Premises then being subleased to 50% or more, (ii) for a term equal to all or substantially all of the remaining Term hereof (any such sublease satisfying clauses (i) and (ii) being hereinafter referred to as a "Major Sublease"),
Tenant shall give Landlord a Proposed Transfer Notice (as defined in Section
5.6.3 hereof) and Landlord shall have the right at its sole option, to be exercised within thirty (30) days after receipt of Tenant's Proposed Transfer Notice (the "Acceptance Period"), to terminate this Lease, in the case of a proposed assignment, or to terminate this lease with respect to the Sublease Portion in the case of a proposed Major Sublease, as of a date specified in a notice to Tenant, which date shall not be earlier than sixty (60) days nor later than one hundred and twenty (120) days after Landlord's notice to Tenant.
In
the case of an assignment, upon the termination date as set forth in Landlord's notice, all obligations relating to the period after such termination date (but not those
relating to the period before such tem1ination date) shall cease and promptly upon being billed therefor by Landlord, Tenant shall make final payment of all Annual Fixed Rent and Additional Rent due from Tenant through the termination date.
In
the case of a Major Sublease, all obligations relating to the Sublease Portion for the period after such termination date (but not those relating to a period before such termination date, or to portions of the Premises other than the Sublease Portion) shall cease. In the event that Landlord shall not exercise its termination rights as aforesaid, or shall fail to give any or tinlely notice pursuant to this Section, the provisions of Sections 5.6.2-5.6.5 shall be applicable. This Section
5.6.1.1 shall not be applicable to an assignment or sublease pursuant to Section 5.6.1.
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5.6.2
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Notwithstanding the provisions of Section 5.6 above, but subject to the provisions of this Section 5.6.2 and the provisions of Sections 5.6.3, 5.6.4 and 5.6.5 below,
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in the event that (x) Landlord shall not have exercised the termination right as set forth in Section 5.6. I .!, or (y) shall have failed to give any or timely notice under Section 5.6.1.1, or (z) in the case of a proposed sublease that is not subject to the provisions of Section 5.6. I .1, then (i) for a period of ninety (90) days after the receipt of Landlord's notice stating that Landlord does not elect the termination right, or (ii) for a period of ninety (90) days after the expiration of the Acceptance Period, in the event Landlord shall not give any or timely notice under Section 5.6.1.1, or (iii) in the case of a proposed sublease that is not subject to the provisions of Section 5.6.1.1, as the case may be, Tenant shall have the right to assign this Leas.e or sublet the whole or any part of the Premises in accordance with the Proposed Transfer Notice provided that, in each instance, Tenant first
43
GSDOCS\1689479.J 1 5125f2007
obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed assignment or subleasing if:
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(a)
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the proposed assignee or subtenant is a tenant in the Building or elsewhere on the Site or is in active negotiation with Landlord or an affiliate of Landlord for premises in the Building or elsewhere ou the Site or is not of a character consistent with the operation of a first-class office building (by way of example Landlord shall not be deemed to be unreasonably withholding its consent to an assignment or subleasing to any governmental or quasi govemmental agency). Notwithstanding the foregoing, Tenant may sublease all or a portion of the Premises (the "Subleased
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Premises") to a tenant of the Building or elsewhere on the Site (the "Subtenant") if said Subtenant satisfies the following criteria:
such Subtenant's need, as to the size of premises and length of term, ca1mot then (i.e., at the time that Tenant requests Landlord's consent to such Subtenant) be satisfied by Landlord; or
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(b)
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in the case of a proposed assignment, the proposed assignee does not"possess adequate financial capability to perform the Tenant obligations as and when due or required; or
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(c)
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the assignee or subtenant proposes to use the Premises (or part thereof) for a purpose other than the purpose for which the Premises may be used as stated in Section
I.I
hereof; or
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(d)
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the character of the business to be conducted or the proposed use of the Premises by the proposed subtenant or assignee shall (i) be likely to materially increase Landlord's Operating Expenses beyond that which Landlord now incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden prior to such proposed subletting or assignment ("material" for the purpose of these subsections (i) and (ii) being defined as a 7% increase to any one line item or a 5% increase to the total); or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises. Notwithstanding the foregoing, if Landlord objects to a proposed assignee or subtenant on the grounds of subsection (i) or (ii) of this Section 5.6.2(d); Tenant may overcome such objection by agreeing to pay the amount of such increase; or
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(e)
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there shall be existing an Event of Default (defined in Section
7.1);
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or
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(f)
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any part of the rent payable under tbe proposed assignment or sublease shall be based in whole or in part on the income or profits derived from the Premises or if any proposed assignment or sublease shall potentially have any adverse effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates; or
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(g)
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the holder of any mortgage or ground lease on property which includes the Premises having approval rights over su.ch proposed assignment or sublease does not approve of tbe same; or
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(h)
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dne to the identity or business of a proposed assignee or subtenant, such approval would cause Landlord to be in violation of any covenant or restriction contained in another lease or other agreement affecting space in the Building.
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Notwithstanding the foregoing, so Jong as Tenant remains fully and primarily liable to Landlord, Tenant's right to sublease the all or any portion of the Premises shall not be restricted by Landlord (x) due to the financial condition of
the subtenant or (y) by any rent hurdle that Landlord may deem needed in order to consent to a proposed sublease.
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5.6.3
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Tenant shall give Landlord notice (tbe "Proposed Transfer Notice") of any proposed assignment or sublease, and said notice shall specify tbe provisions of the proposed assigmnent or subletting, including (a) the name and address_of the proposed assignee or subtenant,
(b)
in the case of a proposed assignment pursuant to Section 5.6.2, such information as to the proposed assignee's net worth and financial capability and standing as may reasonably be required for Landlord to make the determination referred to in Section 5.6.2 above (provided, however, that Landlord shall hold such information confidential having tbe right to release
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same to its officers, accountants, attorneys and mortgage lenders on a confidential basis), (c) all of the terms and provisions upon which the proposed assignment or subletting is to be made (including, in tbe case of a sublease, tbe portion of the Premises proposed to be sublet and the term of snch sublease), (d) in the case of a proposed assignment or subletting pursuant to Section 5.6.2, all other information necessary to make the determination referred to in Section 5.6.2 above and (e) in tbe case of a proposed assignment or subletting pursuant to Section 5.6.1 above, such information as may be reasonably required by Landlord to determine that such proposed assigmnent or subletting complies with the requirements of said Section 5.6.1.
If
Landlord shall consent to the proposed assignment or subletting, as tbe case may be, then, in such event, Tenant may thereafter sublease or assign pursuant to
Tenant's notice, as given hereunder; provided, however, !bat if such sublease or assignment shall not be executed and delivered to .Landlord within ninety (90)
days after the date of Landlord's consent, the consent shall be deemed null and void and the provisions of Section 5.6.1.1 and 5.6.2 shall again be applicable.
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5.6.4
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In addition, in the case of any assignment or subleasing as to which Landlord may consent (other than an assignment or subletting permitted under Section 5.6.1 hereof), such conseut sball be upon the express aud further condition, covenant and agreement, and Tenant hereby covenants and agrees that, in addition to the Annual Fixed Rent, Additional Rent and other charges to be paid pursuant to this Lease, fifty percent (50%) of the "Assignment/Sublease Profits" (hereinafter defined), if any, shall be paid to Landlord. The "Assignment/Sublease Profits" shall be the excess, if any, of (a) the "Assignment/Sublease Net Revenues" as hereinafter defined over (b) the Annual Fixed Rent and Additional Rent and other charges provided in this Lease (provided, however, that for the purpose of calculating the Assignment/Sublease Profits in the case of a sublease, appropriate prorations in the applicable Annual Fixed Rent, Additional Rent and other
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charges under this Lease shall be made based on the percentage of the Premises subleased and on the terms of the sublease). The "Assignment/Sublease Net Revenues" shall be the fixed rent, additional rent and all other charges and sums payable either initially or over the term of the sublease or assignment plus all other profits and income to be derived by Tenant as a result of such subletting or assignment, less the reasonable costs of Tenant incurred in such subleasing or assignment (the definition of which shall be limited to reasonable legal fees, marketing costs, brokerage commissions, rent concessions, build-out expenses, and alteration allowances, in each case actually paid or granted), as set forth in a statement certified by an appropriate officer of Tenant and delivered to Landlord within thirty (30) days of the full execution of the sublease or assignment document, amortized over the term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be made within thirty (30) days of receipt of same by Tenant.
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5.6.5
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(a)
It
shall be a condition of the validity of any assignment or subletting of right under Section 5.6.1 above, or consented to under Section 5.6.2 above, that both Tenant and the assignee or sublessee enter into a separate written instrument directly with Landlord in a form and containing terms and provision.s reasonably required by Landlord, including, without limitation, the agreement of the assignee or sublessee to be bound directly to Landlord for all the obligations of the Tenant hereunder, including, withont limitation, the obligation (a) to pay the rent and other amonnts provided for under this Lease (but in the case of a partial subletting pursuant to Section 5.6.1, such subtenant shall agree on a pro rata basis to be so bound) and (b) to comply with the provisions of Sections 5.6 throngh 5.6.5
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hereof Such assignment or"subletting shall not relieve the Tenant named herein of any of the obligations of the Tenant hereunder and Tenant shall remain fully and primarily liable therefor and the liability of Tenant and such assignee (or subtenant,
as the case may be) shall be joint and several. Further, and notwithstanding the foregoing, the provisions hereof shall not constitute a
recognition of the assignment or the assignee thereunder or the sublease or the subtenant thereunder, as the case may be, and at Landlord's option, upon the termination or expiration of the Lease (whether such termination is based upon a cause beyond Tenant's control, a default of Tenant, the agreement of Tenant and Landlord or any other reason), the assignment or sublease shall be terminated.
(b)
Tenant shall pay to Landlord as a fee for Landlord's review of any proposed assignment or sublease requested by Tenant and the preparation of any associated documentation, within thirty (30) days after receipt of an invoice from Landlord, as Additional Rent, an amount for each snch reqnest equal to the greater of (i) One Thousand and 00/100 Dollars ($1,000.00) and (ii) if Landlord reasonably determines that a third-party consultant is needed or expedient to review such request, then Tenant shall reimburse Landlord for the reasonable third-party out-of-pocket costs incurred by Landlord in hiring said third party to review such request, up to a maximum of Three Thousand and 00/100 Dollars ($3,000.09).
(c)
If
this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may upon prior notice to Tenant, at any time and from time to time after the occurrence of an Event of Default hereunder, collect rent and other charges from the assignee, sublessee 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 a waiver of the provisions of Sections 5.6 through
5.6.5 hereof, or the acceptance of the assignee, sublessee or occupant as a tenant
or a release of Tenant from the further performance·by Tenant of covenants on the part of Tenant herein contained, the Tenant herein named to remain primarily liable under this Lease.
(d)
The consent by Landlord to an assignment or subletting under any of the provisions of Sections 5.6.1 or 5.6.2 shall in no way be construed to relieve Tenant from obtaining the express consent
in
writing of Landlord to any further assignment or subletting.
(e)
On or after the occurrence of an "Event of Default" (defmed in Section 7.1), Landlord shall be entitled to one hundred percent (I 00%) of any Assignment/Sublease Profits.
(f)
In addition to the other requirements set forth in this Lease and notwithstanding any other provision of this Lease, partial sublettings of the Premises shall only be permitted under the following terms and conditions:
(i)
the layout of both the subleased premises and the remainder of the Premises must comply with applicable laws, ordinances, rules and/or regulations and be
approved by Landlord, including without limitation all requirements concerning access and egress; and (ii) in the event the subleased premises are separately physically demised from the remainder of the Premises, Tenant shall pay all costs
of separately physically demising the subleased premises.
(g) At no time during the Lease Term shall there be more than seven (7) subleases outstanding.
(A)
Indemnitv. Tenant shall defend with counsel first approved by Landlord (which approval shall not be unreasonably withheld or delayed), save harmless, and indemnify Landlord and Landlord's managing agent, beneficiaries, partners, subsidiaries, officers, directors, agents, trustees and employees ("Landlord Parties") from any liability for injury, loss, accident or damage to any person or property, and from any claims, actions, proceedings and expenses and costs in connection therewith (including without limitation reasonable counsel fees) (i) arising from or claimed to have arisen from (a) the omission, fault, willful act, negligence or other misconduct of Tenant or Tenant's contractors, licensees, invitees, agents, servants, independent contractors or employees or
(h)
any use made or thing done or occurring on the Premises not due to the omission, fault, willful act, negligence or other misconduct of Landlord, or (ii) resulting from the failure of Tenant to perform and discharge its covenants and obligations under this Lease.
(B)
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nsurance. Tenant shall maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Term of this Lease, and thereafter, so long as Tenant is in occupancy of any part of the Premises, commercial general
liability insurance or comprehensive general liability insurance written on an occurrence basis with a broad form comprehensive liability endorsement under which Tenant is the named insured and Landlord and Landlord's managing agent (and such persons as are in privily of estate with Landlord and Landlord's managing agent as may be set out in notice from time to time) are named as additional insureds with limits which shall, at the
commencement of the Term, be at least equal to those stated in Section 1.1 and from time to time during the Term shall be for such higher limits, if any, as are customarily carried in Greater Boston _with respect to similar properties, and worker's compensation
insurance with statutory limits covering all of Tenant's emp_loyees working in the Premises. Tenant shall deposit with Landlord on or before the earlier of the date Tenant enters the Premises or the Commencement Date and concurrent with all policy renewals, certificates for any insurance Tenant is required to maintain under this Lease; in a form reasonably acceptable to Landlord and bearing the endorsement that the policies will not be canceled until after thirty (30) days' written notice to Landlord. In addition, in the event Tenant hosts a function in the Premises, Tenant agrees to obtain and maintain, and canse any persons or parties providing services for such function to obtain, the appropriate insurance coverages as determined by Landlord (including liqnor liability, if applicable) and provide Landlord with evidence of the same. All insurance required to be maintained by Tenant pursuant to this Lease shall be maintained with responsible companies qualified to do business, and in good standing, in the Commonwealth of Massachusetts and which have a rating of at least "A-" and are within a financial size category of not less than
"Class VIII" in the most current Best's Key Rating Guide or snch similar rating as may be reasonably selected by Landlord if such Guide is no longer
published.
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5.8
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Personal Property at Tenant's Risk
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Tenant covenants that 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 or elsewhere in the Building or on the Site, 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 or otherwise, or by the leakage or bursting of water pipes, steam pipes, or other pipes, by theft or from any other cause, no part of said loss or damage is to be charged to or be borne by Landlord, except that Landlord shall in no event be indemnified, released, 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 of Landlord's negligence or willful
misconduct or to the extent such indemnity, hold harmless or exoneration is prohibited by law. Further, Tenant, at Tenant's expense, shall maintain at all times during the Term of this Lease business interruption insurance and insurance against loss or .damage covered by so-called "all risk" type insurance coverage with respect to Tenant's fixtures, equipment, goods, wares and merchandise, tenant improvements made by or paid for by Tenant, and other property of Tenant (collectively "Tenant's Property"). Such insurance shall be in an amount at least equal to the full replacement cost of Tenant's Property.
Tenant shall maintain all of its equipment, furniture and furnishings in good order and repair.
In
addition, during such time as Tenant is perfonning work in or to the Premises, Tenant, at Tenant's expense, shall also maintain builder's risk insurance for the full insurable value of such work.
Tenant shall permit Landlord and its agents to examine the Premises at reasonable times and, if Landlord shall so elect, to make any repairs or replacements Landlord may deem necessary; to remove, at Tenant's expense, any alterations, addition, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or the like not consented to in writing; and to show the Premises to prospective tenants during the eleven (11) months preceding expiration of the Term and to prospective purchasers and mortgagees at all reasonable times.
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5.10
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Floor Load; Prevention of Vibration and Noise
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Tenant shall not place a load upon the Premises exceeding an average rate of 70 pounds
of live load per square foot of floor area (partitions shall be considered as part of the live · load); and shall not move any safe, vault or other heavy equipment in, about or out of the Premises except in such manner and at such time as Landlord shall in each instance anthorize; Tenant's bnsiness machines and mechanical equipment which cause. unreasonable vibration or noise that may be transmitted to the Building structure or to
any other space in the Building shall be so installed, maintained and used by Tenant so as
to reasonably minimize such vibration or noise.
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5.11
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Personal Propertv Taxes
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Tenant shall pay promptly when due all taxes which may be imposed npon Tenant's Property in the Premises to whomever assessed.
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5.12
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Compliance with Laws
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Tenant shall comply with all applicable Legal Requirements now or hereafter in force which shall impose a duty on Landlord or Tenant relating to or as a result of the use or occupancy of the Premises; provided that Tenant shall not be responsible for compliance with any Legal Requirements requiring (a) structural repairs or modifications to any element of the Building, including without limitation the roof, exterior and load bearing walls, fonndation, and structural floor slabs, or (b) repairs or modifications to any utility or building service equipment, or (c) installation of new building service equipment, such as fire detection or suppression equipment, nnless any of the same are required due to (i) Tenant's particular manner of use of the Premises (as opposed to office use generally) cir
(ii) any additions, alterations or improvements performed by or for Tenant. Tenant shall promptly pay all fines, penalties and damages that may arise out of or be imposed because of its failure to comply with the provisions of this Section 5.12.
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5.13
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Payment of Litigation Expenses
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.In
the event oflitigation or other legal proceeding between Landlord and Tenant relating to the provisions of this Lease or Tenant's occupancy of the Premises, the losing party shall, upon demand, reimburse the prevailing party for its reasonable costs of prosecuting and/or defending such proceeding (including, without limitation, reasonable·attorneys' fees).
Except as may he expressly set forth herein, Tenant shall not make alterations and additions to Tenant's space except in accordance with plans and specifications therefor first approved by Landlord, which approval shall not be umeasonably withheld.
However, Landlord's determination of matters relating to aesthetic issues relating to alterations, additions or improvements which are visible outside the Premises shall be in Landlord's sole discretion. Without limiting such standard Landlord shall not be deemed umeasonable for withholding approval of any alterations or additions (including, without limitation, any alterations or additions to be performed by Tenant nnder Article III) which (a) in Landlord's opinion might adversely affect any structural or exterior element of the Bnilding, any area or element outside of the Premises, or any facility or base building mechanical system serving any area of the Building outside of the Premises, or
(b)
involve or affect the exterior design, size, height, or other exterior dimensions of the Building or (c) will require nnusual expense to readapt the Premises to normal office use on Lease termination or expiration or increase the cost of construction or of insurance or
Lease tem1ination or expiration. All of Tenant's Alterations and installation of furnishings (including, subject to the provisions of Section 3.2 above, the Tenant Improvement Work) shall be coordinated with any work being performed by Landlord and in such manner as to maintain harmonious labor relations and not to damage the Buildings or Site or interfere with construction or operation of the Buildings and other improvements to the Site and, except for installation of furnishings, shall be performed
by contractors or workers first reasonably approved by Landlord. Tenant, before its work is started, shall secure all licenses and permits necessary therefor; deliver to Landlord a statement of the names of all its contractors and subcontractors and the estimated cost of all labor and material to be furnished by them; and cause each contractor to carry
worker's compensation insurance in statutory amounts covering all the contractor's and subcontractor's employees and commercial general liability insurance or comprehensive general liability insurance with a broad form comprehensive liability endorsement with such limits as Landlord may reasonably require, but in no event less than $2,000,000.00 combined single limit per occurrence on a per location basis (all such insurance to be written in companies approved by Landlord and naming and insuring Landlord and Landlord's managing agent as additional insureds and insuring Tenant as well as the contractors), and to deliver to Landlord certificates of all such insurance. Tenant shall also prepare and submit to Landlord a set of as-built plans, in both print and electronic forms, showing snch work performed by Tenant to the Premises promptly after any such alterations, additions or improvements or installations are substantially complete and promptly after any wiring or cabling for Tenant's computer, telephone and other communications systems is it),stalled by Tenant or Tenant's contractor. Without limiting any of Tenant's obligations hereunder, Tenant shall be responsible, as Additional Rent, for the costs of any alterations, additions or improvements in or to the Building that are" required in order to comply with Legal Requirements as a result of any work performed by Tenant. Tenant shall have Tenant's Work performed by contractors, reasonably approved by Landlord, which contractors shall provide to Landlord such insurance as the
Landlord may reasonably require. Landlord shall have the right to provide such rules and regulations relative to the performance of any Alterations and installations by Tenant hereunder and Tenant shall abide by all such reasonable rules and regulations and shall cause all of its contractors
to
so abide including, without limitation, payment for the costs ofusing Building services. Subject to Tenant's right to contest in good faith any disputed items or costs, Tenant agrees to pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees, or independent contractors, and
whether or not Tenant is contesting any such items or costs, not to cause or permit any liens for labor or materials performed or furnished in connection therewith to attach to the Premises or the Buildings or the Site and immediately to discharge any such liens which may so attach. Tenant acknowledges and agrees that Landlord shall be the owner of any Alterations in the Premises or the Building to the extent paid for by Landlord.
Notwithstanding the provisions of the immediately preceding paragraph, Tenant shall have the right, without obtaining the prior consent of Landlord, to make Alterations to the Premises where:
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(i)
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the same are within the interior of the Premises within the Building, and do not affect the exterior of the Premises and the Building;
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(ii)
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the same do not affect the roof or any structural element of the Building and do not materially, adversely affect the mechanical, electrical, plumbing, heating, ventilating, air-conditioning and/or fire protection systems of the Building;
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(iii)
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either (a) such Alterations do not require the issuance of a building permit by the appropriate municipal authori · ·
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does not exceed ..
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(iv)
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Tenant shall comply with the other provisions of this Lease and if such work increases the cost of insurance or taxes or of services, Tenant shall pay for any such increase in cost;
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provided, however, that Tenant shall, no later than ten (10) days after the making of such changes, send to Landlord plans and specifications describing the same in reasonable detail and provided further that Landlord may, by notice to Tenant given no later than ten
(I
0) days subsequent to the date on which the plans and specifications are submitted to Landlord, require Tenant to restore the Premises to its condition prior to such alteration, addition or improvement upon the expiration or earlier tem1ination of the Lease Term (it being understood and agreed that Landlord's failure to respond with such ten (lO) day period shall be deemed notice that Landlord does not require such removal).
Any vendors engaged by Tenant to perform services in or to the Premises including, without limitation, janitorial contractors and moving contractors shall be coordinated with any work being performed by or for Landlord and in such manner as to maintain harmonious labor relations and not to damage the Building or the Property or interfere
with Building construction or operation and shall be performed by vendors first approved by Landlord.
As an inducement to Landlord to enter into this Lease, Tenant hereby represents and warrants that: (i) Tenant is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC") pursuant to
Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of ilie United States as a terrorist, "Specially Designated National and Blocked Person" or other banned or blocked person (any such person,
group, entity or nation being hereinafter referred to as a "Prohibited Person"); (ii) Tenant is not (nor is it owned, controlled, directly or indirectly, by any person, group, entity or
nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; and (iii) from and after the effective date of the above-referenced Executive Order,
Tenant (and any person, group, or entity which Tenant controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Lease
or any subletting of all or any portion of the Premises or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Tenant of the foregoing representations and warranties shall be deemed an immediate Event of Defanlt by Tenant under Section 7.1 of this Lease (withont the benefit of notice or grace) and shall be covered by the indemnity provisions of Section 5.7 above, and (y) the representations and warranties contained in this subsection shall be continuing in nature
and shall survive the expiration or earlier termination of this Lease.
,f:.
ARTICLE VI
CASUALTY AND TAKING
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6.1
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Damage Resulting from Casualtv
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In case during the Lease Term the Building or the Site are damaged by fire or other casualty, Landlord shall within forty-five (45) days after the occurrence thereof notify Tenant in writing of Landlord's reasonable estimate of the length of time necessary to repair or restore such fire or casualty damage from the time that repair work would commence ("Landlord's Restoration Estimate"). If Landlord's Restoration Estimate exceeds one hundred fifty (150) days from the time that repair work would commence, Landlord may, at its election, tenninate this Lease by notice given to Tenant within sixty
(60) days after the date of such fire or other casualty, specifying the effective date of terminatioIL The effective date of termination specified by Landlord shall not be less than thirty (30) days nor more than forty-five (45) days after the date of notice of such termination.
If
Laudlord's Restoration Estimate exceeds one hundred fifty (150) days from the time that repair work would commence, Tenant may, at its election, tenninate this Lease by notice given to Landlord within fifteen (15) business days after the receipt of Landlord's Restoration Estimate, specifying the effective date of termination. The effective date of tennination specified by Tenant shall not be less than thirty (30) days nor more than forty-five (45) days after the date ofnotice of such termination.
Unless terminated pursuant to the foregoing provisions, this Lease shall remain in full force and effect following any such damage subject, however, to the following provisions.
If
the Building or the Site or any part thereof are damaged by fire or other casualty and
this Lease is not so terminated, or Landlord or Tenant have no right to terminate this Lease, and in any such case the holder of any mortgage which includes the Building as a part of the mortgaged premises or any ground lessor of any ground lease which includes the Site as part of the demised premises allows the net insurance proceeds to be applied to the restoration of the Building (and/or the Site), Landlord promptly after such damage and the detem1ination of the net amount of insurance proceeds available shall use due diligence to restore the Premises and the Building in the event of damage thereto (excluding Tenant's Property) into proper condition for use and occupation and ajust . proportion of the Annual Fixed Rent, Tenant's estimated electricity charges (if applicable), Tenant's Operating Expenses Payment and Tenant's Tax Payment according to the nature and extent of the injury to the Premises shall be abated until the Premises shall have been put by Landlord substantially into such condition except for punch list items and long lead items. Notwithstanding anything herein contained to the contrary, Landlord shall not be obligated to expend for such repair and restoration any amount in excess of the net insurance proceeds.
If
such net insurance proceeds are not allowed by
such mortgagee or ground lessor to be applied to, or are insnfficient for, the restoration of the Building and if Landlord does not otherwise elect to restore the Bnilding, then Landlord shall give prompt notice to Tenant terminating this Lease, the effective date of which termination shall not be less than sixty (60) days after the date of notice of such termination.
Unless snch restoration is completed within one
(1)
year from the date of the casualty or taking, Tenant, as its sole and exclusive remedy, shall have the right to terminate this Lease at any time after the expiration of such one-year period until the restoration is substantially completed, such termination to take effect as of the thirtieth (30th) day after the date of receipt by Landlord of Tenant's notice, with the same force and effect as if such date were the date originally established as the expiration date hereof unless, within thirty (30) days after Landlord's receipt of Tenant's notice, such restoration is substantially completed, in which case Tenant's notice of termination shall be of no force and effect and this Lease and the Lease Tenn shall continue in full force and effect.
If
addition, if any damage by fire or other casualty during the last six (6) months of the Lease Term renders, or in Landlord's reasonable judgment is likely to render, the Premises untenantable for more than fifteen (15) consecutive business days, Tenant may, at its election, terminate this Lease by notice given to Landlord within thirty (30) business days after the date of such casualty, specifying the effective date of termination.
Notwithstanding anything to the contrary contained in this Lease, if the Building or the Premises shall be substantially damaged by fire or casualty as the result of a risk not coveted by the forms of casualty insurance at the time maintained by Landlord or required to be maintained by Landlord and such fire or casualty damage carmot, in the ordinary course, reasonably be expected to be repaired within ninety (90) days from the time that repair work would commence, Landlord may, at its election, tenninate the Term
of this Lease by notice to the Tenant given within sixty (60) days after such loss. If Landlord shall give such notice, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof. Landlord agrees that if it does not give such a termination notice, it shall restore the damage in accordance with the provisions of Section 6.1 hereof (including, without limitation, Tenant's tem1ination rights contained therein).
6.3 Rights of
T
ermination for Taking
If (i) the entire Building, or such portion of the Premises as to render the balance (if reconstructed to the maximum extent practicable in the circumstances) unsuitable for Tenant's purposes or (ii) access to the Site or more than fifteen percent (15%) of the parking spaces serving the Building as of the date of such taking (and such parking spaces are not replaced within 90 days of the taking in an area within a reasonable distance from the Building) shall be taken by condemnation or right of eminent domain, Landlord or Tenant shall have the right to tenninate this Lease by notice to the other of its desire to do so, provided that such notice is given not later than thirty (30) days after Tenant has been deprived of possession.
If
either party shall give such notice, then.tl1is Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued operation of the Building would be uneconomic as a result of the taking, Landlord shall have the right to terminate this Lease by giving notice to Tenant of Landlord's desire to do so not later than thirty (30) days after Tenant has been deprived of possession of the Premises (or such portion thereof as may be taken); provided that in the event of such termination, Landlord shall also terminate all oilier tenant leases in affected portions of the Building that contain similar termination rights. If Landlord shall give such notice, then this Lease shall terminate as of the date of snch.notice with the same force and effect as if such date were the date originally established as the expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease Term hereof, and should this Lease not be terminated in accordance with the foregoing provisions, and the bolder of any mortgage which includes the Premises as part of the mortgaged
premises or any ground lessor of any ground lease which includes ilie Site as part of the demised premises allows the net condemnation proceeds to be applied to the restoration of the Building, Landlord agrees that after ilie determination of the net amount of condemnation proceeds available to Landlord, Landlord shall use due diligence to put what may remain of the Premises into proper condition for use and occupation as nearly like the condition of the Premises prior to such taking as shall be practicable (excluding Tenant's Property). Notwithstanding the foregoing, Landlord shall not be obligated to expend for such repair and restoration any amount in excess of the net condemnation proceeds made available to it. If such net condemnation proceeds are not allowed by
such mortgagee or ground lessor to be applied to, or are insufficient for, the restoration of the Building and if Landlord does not oilierwise elect to restore the Building, then Landlord shall give prompt notice to Tenant terminating this Lease, the effective date of
which termination shall not be less than sixty (60) days after the date of notice of such termination.
If
the Premises shall be affected by any exercise of the power of eminent domain, then the Annual Fixed Rent, Tenant's Operating Expenses Payment and Tenant's Tax Payment shall be justly and equitably abated and reduced according to the nature and extent of the loss of use thereof suffered by Tenant; and in case of a taking which permanently reduces the Rentable Floor Area of the Premises, a just prop01tion of the Annual Fixed Rent, Tenant's Operating Expenses Payment and Tenant's Tax Payment shall be abated for the remainder of the Lease Tenn.
6.4 Award
Landlord shall have and hereby reserves to itself any and all rights to receive awards made for damages to the Premises, the Building and the Site and the leasehold hereby created, or any one or more of them, accruing by reason of exercise of eminent domain or by reason of anything lawfully done in pursuance of public br other authority. Tenant hereby grants, releases and assigns to Landlord all Tenant's rights to such awards, and covenants to execute and deliver such further assignments and assurances thereof as Landlord may from time to time request, and if Tenant shall fail to execute and deliver
the same within fifteen (15) days after notice from Landlord, Tenant hereby covenants and agrees that Landlord shall be irrevocably designated and appointed as its attomey-in fact to execute and deliver in Tenant's name and behalf all such further assignments thereof which conform with the provisions hereof.
Notwithstanding the immediately preceding paragraph, if and to the extent that any improvements shall be taken pursuant to the power of eminent domain, shall have been separately paid for by Tenant when made, shall not be restored and for which a separate award shall not be made by the taking authority but.the determination of the award takes into account such improvements, Tenant shall be entitled out of the award to an amount equal to Tenant's unamortized cost of such improvements. Tenant's nnarnortized cost of any of such improvements shall be determined from Tenant's federal income tax returns and shall exclude any contributions to such cost by Landlord whether effected by deductions from rent, special allowances, payments for Annual Fixed Rent or Additional Rent or otherwise.
Nothing contained herein shall be construed to prevent Tenant fromprosecuting in any condemnation proceeding a claim for the value of any of Tenant's usual trade fixtures installed in the Premises by Tenant at Tenant's expense and for relocation and moving expenses, provided that such action and auy resulting award shall not affect or diminish the amount of compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE VII
DEFAULT
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(a)
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If
at any time subsequent to the date of this Lease any one or more of the following events (herein sometimes called an "Event of Default") shall occur:
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(i)
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Tenant shall fail to pay the fixed rent, Additional Rent or other charges for which provision is made herein on or before the date on which the same become due and payable, and the same continues for five (5) business days after notice from Landlord thereof; or
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(ii)
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Landlord having rightfully given the notice specified in subdivision (i) above twice in any calendar year, Tenant shall thereafter in the same calendar year fail to pay the fixed rent, Additional Rent or other charges on or before the date on which the same become due and payable; or ·
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(iii)
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Tenant shall assign its interest in this Lease or sublet any portion of the Premises in violation of the requirements of Sections 5.6 through 5.6.5 of this Lease; or
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(iv)
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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
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(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; or
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(v)
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Tenant's leasehold interest
in
the Premises shall be taken on execution or hy other process oflaw directed against Tenant; or
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(vi)
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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
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(vii)
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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
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(60) days (whether or not consecutive) (or if such petition is of such a nature that Tenant cannot reasonably dismiss or stay the . same within such sixty (60) day period, Tenant shall fail to commence promptly to dismiss or stay the same and to prosecute such remedy to completion with diligence and continuity), 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) (or if such appointment is of such a nature that Tenant cannot reasonably vacate or stay the same within such sixty (60) day period, Tenant shall fail to commence promptly to vacate or stay the same and to prosecute such remedy to completion with diligence and continuity), then, and in any of said cases (notwithstanding any license of a former breach of
. covenant or waiver of the benefit hereof or consent
in
a former instance),
Landlord lawfully may, immediately or at any time thereafter, and without demand or further notice terminate this Lease by notice to Tenant, specifying a date not less than ten (I 0) 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 Lease Term (Tenant hereby waiving any rights of redemption), and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
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(b)
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this Lease shall have been terminated as provided in this Article, then, to the extent permitted by applicable law, Landlord may, without notice, re- enter the Premises, either by force, summary proceedings, ejectment 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.
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service of no.lice of intention to re-enter or to institute legal proceedings to that end. ·
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(c)
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· In the event that this Lease is terminated under any of the provisions contained in Section 7.1 (a) or shall be otherwise terminated by breach of any obligation of Tenant, Tenant .covenants and agrees forthwith to pay and be liable for, on the days originally fixed herein for the payment thereof, amounts equal to the several
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installments ofrent and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated or if Landlord had not entered or re-entered, as aforesaid, and whether the Premises be relet or remain vacant, in whole or in part, or for a period less than the remainder of the Term, and for the whole thereof, but in the event the Premises be relet by Landlord, Tenant shall be entitled to a credit in the net amount of rent and other charges received by Landlord in reletting, after deduction of all expenses incurred in reletting the Premises (including, without limitation, remodeling costs, brokerage fees and the like), and in collecting the rent in connection therewith, in the following ma1111er:
Amounts received by Landlord after reletting shall first be applied against such Landlord's expenses, until the same are recovered, and until such recovery, Tenant shall pay, as of each day when a payment would fall due under this Lease, the amount which Tenant is obligated to pay under the terms of this Lease (Tenant's liability prior to any such reletting and such recovery not in any way to be diminished as a result of the fact that such reletting might be for a rent higher than the rent provided for in this Lease); when and if such expenses have been completely recovered, the amounts received from reletting by Landlord as have not previously been applied shall be credited against Tenant's obligations as of each day when a payment would fall due under this Lease, and only the net amount
thereof shall be payable by Tenant. Further, amounts received by Landlord from such relettiug for any period shall be credited only against
obligations of Tenant allocable to such period, and shall not be credited against obligations of Tenant hereunder accruing subsequent or prior to such period; nor shall any credit of any kind be due for any period after the date when the Tenn of this Lease is scheduled to expire according to its terms.
Landlord agrees to use reasonable efforts to relet the Premises after Tenant vacates the same
in
the event this Lease is te1minated based upon an Event of Default by Tenant hereunder. The marketing of the Premises in a ma1111er similar to the manner in which Landlord markets other premises within Landlord's control within the Building shall be deemed to have satisfied Landlord's obligation to use "reasonable efforts" hereunder. In no event shall Landlord be required to (i) solicit or entertain negotiations with any other prospective tenant for the Premises until Landlord obtains full and complete possession of the Premises (including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant), (ii) relet the Premises before leasing other vacant space in the Building, or (iii) lease the Premises for a rental
less than the current fair market rent then prevailing for similar·office space in the Building.
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(d)
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(i) Landlord may elect, as an alternative, to have Tenant pay liquidated damages, which election may be made by notice given to Tenant at any time after
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such tennination and whether or not Landlord shall have collected any damages as aforesaid, as liquidated final damages and in lieu of all other damages beyond the date of such notice. Upon such notice, Tenant shall promptly pay to Landlord, as liquidated damages, in addition to any damages collected or due from Tenant for any period prior to such notice and all expenses which Landlord may have incurred with respect to the collection of such damages, such a sum as at the time of the giving of such notice represents the amount of the excess, if any, of the total rent and other benefits which would have accrued to Landlord under this Lease from the date of such notice for what would be the then unexpired Lease Term if the Lease terms had been fully complied with by Tenant over and above the then fair market cash rental value (in advance) of the Premises for the balance of the Lease Term, both discounted to present value using six percent (6%) as the discount rate.
(ii)
For the purposes of this Article, if Landlord elects to require Tenant to pay damages in accordance with the immediately preceding paragraph, the total rent shall be computed by assuming that Tenant's share of excess taxes, Tenant's
share of excess operating costs and Tenant's share of excess electrical costs would be, for the balance of the unexpired Term from the date of such notice, the amount thereof (if any) for the immediately preceding annual period payable by Tenant to Landlord.
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(e)
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In
case of any _Event of Default, re-entry, dispossession by sunnnary 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, abatements or free rent to the extent that Landlord reasonably considers advisable or necessary to re-let the same and (ii) may make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable or necessary for the purpose of reletting 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 re-letting.
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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
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remedies were not herein provided for. Further, 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 oflaw 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.
Landlord shall in no event be in default in the performance of any of Landlord's obligations hereunder unless and until Landlord shall have failed to perfom1such obligations within thirty (30) days, or such additional time as is reasonably required to correct any such default, after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation. The Tenant shall uot assert any right to deduct the cost ofrepairs or any monetary claim against the Landlord from rent thereafter due and payable, but shall look solely to the Landlord for satisfaction of such claim.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Tenant covenants and agrees that Tenant will not do or permit anything to be done in or upon the Premises, or bring in anything or keep anything therein, which shall increase the rate of insurance on the Premises or on the Building above the standard rate applicable to premises being occupied for the use to which Tenant has agreed to devote the Premises; and Tenant further agrees that, in the event that Tenant shall do any of the foregoing, Tenant will promptly pay to Landlord, on demand, any snch increase resulting therefrom, which shall be due and payable as Additional Rent thereunder.
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 its 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 subsequent similar act by the other.
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 clieckfor a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such 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.
Except as expressly provided in this Lease, the specific remedies to which Landlord may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means ofredress to which Laudlord may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions of this Lease.
In
addition to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific perfom1ance of any such covenants, conditions or provisions.
This Lease is subject and subordinate to all matters ofrecord. Tenant, subject to the terms and provisions of this Lease on payment of the rent aud observing, keeping and performing all of the terms and provisions of this Lease on Tenant's part to be observed, kept aud performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises during the Term (exclusive of any period during which Tenant is holding over after the expiration or termination of this Lease without the consent of Landlord), without hindrance or ejection by auy persons lawfully claiming under Laudlord to have title to the Premises superior to Tenant, subject, however, to the terms of this Lease; the foregoing covenant of quiet enjoyment is in lieu of any other covenant, express or implied; and it is understood and agreed that this covenant and any and all other
covenauts of Landlord contained in this Lease shall be binding upon Landlord aud Landlord's successors, including ground or master lessees, only with respect to breaches· occurring during Laudlord's or Landlord's successors' respective ownership of Landlord's interest hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then equity interest in the Building at the time owned, or in which Landlord holds an interest as ground lessee, or the profits aud proceeds th_ereof, for recovery of any judgment from Landlord; it being specifically agreed that neither Landlord (original or successor), nor auy beneficiary of any trust of which any person holding Landlord's interest is trustee, nor auy member, manager, partner, director or stockholder, nor Landlord's managing agent, shall ever be personally liable for auy suchjudgment, or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlord's successors
in
interest, or any action not involving 1he personal liability of Landlord (original or successor), any successor trustee to the persons named herein as Landlord, or any beneficiary of any trust of which any person hcilding Landlord's interest is trustee, or of any manager, member, partner, director or stockholder of Landlord or of Landlord's managing agent to respond in monetary damages from Landlord's assets other than Landlord's equity interest aforesaid in the Building. Tenaut hereby acknowledges and agrees that it has been repres.ented by connsel of its choice and has participated fully in the negotiation of this Lease, that Tenant understands that the remedies available to Tenant in the event of a default by Landlord may be more limited
than those that would otherwise be available to Tenant under the common law in the absence of certain provisions of this Lease, and that the so-called "dependent covenants" rule as developed under the common law (including, without limitation, the statement of such rule as set forth in the Restatement (Second) of Property, Section
7.1)
shall not apply to this Lease or to the relationship of landlord and tenant created hereunder.
In
no event shall Landlord or Tenant ever be liable to the other for any indirect or consequential damages or loss of profits or the like.
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8.5
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Notice to Mortgagee and Ground Lessor
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After receiving notice from any person, firm or other entity that it holds a mortgage which includes 1he Premises as part of the mortgaged premises, or that it is the ground lessor under a lease with Landlord, as ground lessee, which includes the Premises as a part of the demised premises, no notice from Tenant to Landlord shall be effective unless and until a copy of the same is given to such holder or ground lessor, and the curing of any of Landlord's defaults by such holder or ground lessor within a reasonable time thereafter (including a reasonable time to obtain possession of the premises
if
the mortgagee or ground lessor elects to do so) shall be treated as perfom1ance by Landlord.
For the purposes of this Section 8.5 or Section 8.15, the term "mortgage" includes a mortgage on a leasehold interest of Landlord (but not one on Tenant's leasehold interest).
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 or ground lease on property which includes the Premises,
Tenant agrees:
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(a)
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That the execution thereof by Landlord, and the acceptance thereof by the holder of such mortgage or the ground lessor, shall never be treated as an assumption by such holder or ground lessor of any of the obligations of Landlord hereunder, unless such holder, or ground lessor, shall, by notice sent to Tenant, specifically otherwise elect; and
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(b)
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That, except as aforesaid, such holder or ground lessor 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, or, in the case of a ground lessor, the assumption of Landlord's position hereunder by such ground lessor.
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In
no event shall the acquisition of title to the Building and the land on which the same is located by a purchaser which, simultaneously therewi1h, leases the entire Building or such land back to the seller thereof be treated as an assumption by such purchaser-lessor, by operation of!aw or otherwise, of Landlord's obligations hereunder, but Tenant shall look solely to such seller-lessee, aud its successors from time to time in title, for performance of Landlord's obligations hereunder subject to the provisions of Section 8.4
hereof. In any snch event, this Lease shall be subject and subordinate to the lease to such purchaser provided that such purchaser agrees to recognize the right of Tenant to use and occupy the Premises upon the payment ofrent and other charges payable by Tenant under this Lease and the performance by Tenant of Tenant's obligations hereunder and provided that Tenant agrees to attom to such purchaser. 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.
No act or thing done by Landlord during the Lease Term shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender shall be valid, unless in writing signed by Landlord. No employee of Landlord or of Landlord's agents shall have any power to accept the keys of the Premises prior to the expiration or earlier termination of this Lease. The delivery of keys to any employee of Landlord or of Landlord's agents shall not operate as a termination of the Lease or a surrender of the Premises.
(A)
Tenant warrants and represents that Tenant has not dealt with any broker iu connection with the consummation of this Lease other than the broker, person or firm, if any, designated in Section
1.1
hereof; and in the event any claim is made agaiust the Landlord relative to dealings by Tenant with brokers other than the Brokers, if any, designated iu Section I .1 hereof, Tenant shall defend the claim agaiust Landlord with counsel of Tenant's selection first approved by Landlord (which approval will not be unreasonably withheld) and save harmless and indemnify Landlord on account ofloss, cost or damage which may arise by reason of such claim.
(B)
Landlord warrants and represents that Landlord has not dealt with any broker iu connection with the consummation of this Lease other than the broker, person or firm, if any, designated in Section I.I hereof; and in the event any claim is made agaiust the Tenant relative to dealings by Landlord with brokers other than the Brokers, if any, designated in Section I.I hereof, Landlord shall defend the claim agaiust Tenant with counsel of Landlord's selection and save harmless and indemnify Tenant on account of loss, cost or damage which may arise by reason of such claim. Landlord agrees that it shall be solely responsible for the payment of brokerage commissions to the Broker for the Original Term of this Lease, if any, designated in Section
1.1
hereo[
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8.9
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Invalidity of Particular Provisions
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If
any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or circumstances other than· those as to which it is held iuvalid
oi
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent
65
GSDOCS\1689479.1 1 5/25/2007
permitted by law.
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8.10
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Provisions Binding, Etc
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The obligations of this Lease shall run with the land, and except as herein otherwise provided, the te1ms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant and, if Tenant shall be an individual, upon and to his heirs, executors, administrators, successors and assigns. Each term and each provision of this Lease to be performed by Tenant shall be construed to be both a covenant and a condition. The reference contained to successors and assigns of Tenant is not intended to constitute a consent to subletting or assignment by Tenant.
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8.11
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Recording; Confidentiality
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Tenant agrees not to record the within Lease, but each party hereto agrees,
simultaneously with the execution of this Lease, to execute a so-called Notice of Lease or short form lease in the form of Exhibit H attached hereto. In no event shall such document set forth rent or other charges payable by Tenant under this Lease; and any
such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease.
Tenant agrees that this Lease and the terms contained herein will be treated as strictly confidential and except as required by law (or except with the written consent of Landlord) Tenant shall not disclose the same to any third party except for Tenant's partners, lenders, accountants and attorneys who have been advised of the confidentiality provisions contained herein and agree to be bound by the same.
In
the event Tenant is required by law to provide this Lease or disclose any of its terms, Tenant shall give Landlord prompt notice of such requirement prior to making disclosure so that Landlord may seek an appropriate protective order.
If
failing the entry of a protective order Tenant is compelled to make disclosure, Tenant shall only disclose portions of the Lease which Tenant is required to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to the information sci disclosed,
Whenever, by the terms of this Lease, notice shall or may be given either to Landlord or to Tenant, such notice shall be in writing and shall be sent by (i) registered or certified mail, postage prepaid or (ii) recognized overnight courier service providing evidence of delivery, charges prepaid: ·
If
intended for Landlord, addressed to Landlord at the address set forth
in
Article I of this Lease (or to such other address or addresses as may from time to time hereafter be designated by Landlord by like notice) with copies to Landlord
(1)
Attention: General Counsel, (2) Attention: Regional Manager, (3) Attention: Property Manager for 77 Fourth Avenue, Waltham.
If
intended for Tenant, addressed to Tenant at the address set forth in Article I of this Lease except that from and after the Commencement Date the address of Tenant shall he the Premises (or to such other address or addresses as may from time to time hereafter be designated by Tenant by like notice).
Except as otherwise provided herein, all such notices shall be effective when received; provided, that (i) if receipt is refused, notice shall be effective upon the first occasion that such receipt is refused, (ii) if the notice is unable to be delivered due to a change of address of which no notice was given, notice shall be effective upon the date such delivery was attempted, (iii) if the notice address is a post office box number, notice shall be effective the day after such notice is sent as provided hereinabove or (iv) if the notice is to a foreign address, notice shall be effective two (2) days after such notice is sent as provided hereinabove.
Where provision is made for the attention of an individual or department, the notice shall be effective only if the wrapper in which such notice is sent is addressed to the attention of such individual or department.
Any notice given by an attorney on behalf of Landlord or by Landlord's managing agent shall be considered as given by Landlord and shall be fully effective.
Time is of the essence with respect to any and all notices and periods for giving notice or taking any action thereto under this Lease.
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8.13
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When Lease Becomes Binding
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Employees or agents of Landlord or Tenant have no authority to make or agree to make a lease or any other agreement or undertaking in connection herewith. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant. All negotiations, considerations, representations and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord or Tenant shall alter, change or modify any of the provisions hereof.
The titles of the Articles throughout this Lease are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease.
This Lease shall be subject and subordinate to any mortgage now or hereafter on the Site
or the Building, or both, and to each advance made or hereafter to be made under any mortgage, and to all renewals, modifications, consolidations, replacements and extensions thereof and all substitutions therefor provided that the holder of such
mortgage agrees to recognize the rights of Tenant under this Lease (including the right to use and occupy the Premises) upon the payment of rent and other charges payable by Tenant under this Lease and the performance by Tenant of Tenant's obligations hereunder. In confmnation of such subordination and recognition, Tenant shall execute and deliver promptly such instruments of subordiuation and recognition (an "SNDA") as such mortgagee may reasonably requ.est subject to receipt of such instruments of recognition from such mortgagee as Tenant may reasonably request. The SNDA shall be in the customary form required by such mortgagee as amended by such commercially reasonable changes as Tenant may reasonably require. In the event that any mortgagee
or its respective successor in title shall succeed to the iuterest of Landlord, then, this Lease shall nevertheless continue in full force and effect and Tenant shall and does hereby agree to attom to such mortgagee or successor and to recognize such mortgagee or successor as its landlord.
If
any holder of a mortgage which includes the Premises, executed and recorded prior to the date of this Lease, shall so elect, tl1is Lease and the rights of Tenant hereunder, shall be superior in right to the rights of such bolder, with the same force and effect as if this Lease had been executed, delivered and recorded, or a statutory notice hereof recorded, prior to the execution, delivery and recordiug of any
such mortgage. The election of any such bolder shall become effective upon either notice from such bolder to Tenant in the same fashion as notices from Landlord to Tenant are to be given hereunder or by the recording in the appropriate registry or recorder's office of an iustrument in which such holder subordinates its rights under such mortgage t<;> this Lease.
Landlord hereby represents that as of tbe date of this Lease, there is no mortgage or ground lease currently encumbering the Building or the Site.
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8.16
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Status Reports and Financial Statements
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Recognizing that Landlord may find it necessary to establish to third parties, such as accountants, banks, potential or existing mortgagees, potential purchasers or the like, the then current status of performance hereunder, Tenant, on the request of Landlord made
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from time to time, will promptly furnish to Landlord, or any existing or potential bolder of any mortgage encumbering the Premises, the Buildiug, and/or the Site or any potential purchaser of the Premises, the Building, and/or the Site, (each an "Interested Party"), a statement of the status of any matter pertaining to this Lease, including, without limitation, acknowledgments (which may be limited to Tenant's actual knowledge), that (or the extent to which) each party is in compliance with its obligations under the terms of this Lease. In addition, upon execution of a Confidentiality Agreement in the form of Exhibit I attached hereto, Tenant shall deliver to·Landlord, or any Interested Party designated by Landlord, financial statements of Tenant and any guarantor of Tenant's obligations under this Lease, as reasonably requested by Landlord, including, but not limited to financial statements for
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the past three (3) years. Any such status statement or financial statement delivered by Tenant pursuant to this Section 8.16 may be relied upon
by any Interested Party.
If
Tenant shall at any time default in the perfom1ance of any obligation under this Lease beyond any applicable notice and cure period, Landlord shall have the right, but shall not be obligated, after five (5) business days' prior written notice of Landlord's intention to do so (except in the case of emergency in which case no notice shall be required) to enter upon the Premises and to perform such obligation notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in this Lease with respect to such default.
In
performing such obligation, Landlord may make any payment of money or perfonn any other act. All sums so paid by Landlord (together with interest at the rate of two and one-half percentage points over the then prevailing prime rate in Boston as set by Bank of America, N.A., or its successor (but in no event greater than the maximum rate permitted by applicable law) and all costs and expenses in connection with the performance of any such act by Landlord, shall be deemed to be Additional Rent under this Lease and shall be payable to Landlord immediately on demand. Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.
Any holding over by Tenant after the expiration of the Term of this Lease shall be treated as a tenancy at sufferance and shall be on the terms and conditions as set forth in this Lease, as far as applicable except that Tenant shall pay as a use and occupancy charge an amount equal to (A) 120% of the Annual Fixed Rent and Additional Rent (calculated on a daily basis) for the first sixty (60) days Tenant holds over after the expiration of the Term and thereafter, (B) 150% of the Annual Fixed Rent and Additional Rent (calculated on a daily basis), in each case for the period measured from the day on which Tenant's hold-over commences and terminating on the day on which Tenant vacates the Premises.
In
addition, if Tenant holds over in the Premises for a period exceeding thirty (30) days after the expiration of the Term of the Lease, Tenant shall save Landlord, its agents and employees harmless and will exonerate, defend and indemnify Landlord, its agents and employees from and against any direct daniages which Landlord may suffer on account
of Tenant's hold-over in the Premises after the expiration or prior termination of the Term of this Lease, provided that in no event shall Tenant be liable for any consequential or punitive damages. Nothing in the foregoing nor any other term or provision of this Lease shall be deemed to permit Tenant to retain possession of the Premises or hold over
in the Premises after the expiration or earlier termination of the Lease Term. All property which remains in the Building or the Premises after the expiration or termination of this Lease shall be conclusively deemed to be abandoned and may either be retained by Landlord as its property or sold or otherwise disposed of in such manner as Landlord may see fit.
If
any part thereof shall be sold, then Landlord may receive the proceeds of such sale and apply the same, at its option against the expenses of the sate, the cost of moving· and storage, any arrears of rent or other charges payable hereunder by Tenant to Landlord and any damages to which Landlord may be entitled under this Lease and at law and in
equity.
Any insurance carried by either party with respect to the Premises or property therein or occurrences thereon shall, if it can be so written without additional premium or with an additional premium which the other party agrees to pay, include a clause or endorsement denying to the insurer rights of subrogation against the other party to the extent rights have been waived by the insured prior to occurrence of injury or loss. Each party, notwithstanding any provisions of this Lease to the contrary, hereby waives any rights of recovery against the other for injury or loss due to hazards covered by such insurance (or which would have been covered had such party carried the insurance required to be carried by it under the Lease) to the extent of the indemnification received under such insurance policy.
In
addition, this waiver of rights by Tenant shall apply to, and be for the benefit of, the Landlord Parties.
(A)
On the conditions (which conditions Landlord may waive by written notice to Tenant) that both at the time of exercise of the option to extend and as of the commencement of the Extended Term in question (i) there exists no Event of Default (defined iu Section 7.1), (ii) this Lease is still in full force and effect, and (iii) Tenant has not assigned Tenant's interest in the Lease or subleased
mote
than seventy-five percent (75%) of the Premises, except in either case to a Permitted Transferee, Tenant shall have the right to extend the Term hereof upon all the same terms, conditions, covenants and agreements herein contained (except for the Annual Fixed Rent which shall be adjusted during the option periods as hereinbelow set forth) for two (2) periods of five (5) years as hereinafter set
forth.
Each option period is sometimes herein referred to as an "Extended Term." Notwithstanding any implication to the contrary, Landlord has no obligation to make any additional payment to Tenant in respect of any construction allowance or the. like or to perform any work to the Premises as a result of the exercise by Tenant of any such option. ·
(B)
If
Tenant desires to exercise the applicable option to extend the Term, then Tenant shall give notice to Landlord, not earlier than nineteen (19) months (except as set forth in Section 8.20(D) below) nor later than thirteen (13) months prior to the expiration of the Term (as it may have been previously extended) exercising such option to extend. Promptly after Landlord's receipt of the Extension Exercise Notice, Landlord shall provide Landlord's quotation to Tenant of a proposed Annual Fixed Rent for the applicable Extended Term ("Landlord's Rent Quotation").
If
at the expiration of twenty
(20) days after the date when Landlord provides such quotation to Tenant (the "Negotiation Period"), Landlord and Tenant have not reached agreement on a determination of an Annual Fixed Rent for such Extended Tem1and executed a written instrument extending the Term of this Lease pursuant to such agreement, then Tenant shall have the right, for a period of five (5) business days after the expiration of the Negotiation Period, (i) to deliver to Landlord a notice ('Tenant's Rescission Notice")
rescinding Tenant's Extension Exercise Notice, or (ii) to deliver to Landlord a request ("Broker Determination Request") for a broker determination of Annual Market Rent for a broker determination (the "Broker Determination") of the Annual Market Rent (as defined in Exbibit J) for such Extended Term, which Broker Determination shall be made in the manner set forth in Exhibit J.
If
Tenant timely gives Tenant's Rescission Notice, then Tenanf s Extension Exercise Notice shall be of no further force and effect.
If
Tenant timely shall have requested the Broker Determination, then the same shall constitute an agreement to extend the Term upon all of the same terms and conditions in this Lease, except the Annual Fixed Rent for such Extended Tenn shall be the Annual Market Rent as determined by the Broker Determination.
If
Tenant fails to timely give either a Tenant's Rescission Notice or a Broker Determination Request, Tenant shall be deemed
to have given a Tenant's Rescission Notice.
(C)
Upon the giving of the Extension Exercise Notice by Tenant to Landlord exercising Tenant's applicable option to extend the Lease Term in accordance with the provisions of Section 8.20(B) above, and subject to Tenant's right to give a Rescission Notice as set forth in Section 8.20(B) above, then this Lease and the Lease Term hereof shall automatically be deemed extended, for the applicable Extended Term, without the necessity for the execution of any additional documents, except that Landlord and Tenant agree to enter into an instrument in writing setting forth the Annual Fixed Rent for the applicable Extended Term as determined in the relevant manner set forth in this Section 8.20; and in such event all references herein to the Lease Term or the Term of this Lease shall be construed as referring to the Term, as so extended, unless the context clearly otherwise requires, and except that there shall be no further option to extend the Lease Term beyond the Second Extended Term. Notwithstanding anything contained herein to the contrary, in no event shall Tenant have the right to exercise more than one extension option at a time and, further, Tenant shall not have the right to exercise its second extension option unless it has duly exercised its first extension option and in no event shall the Lease Tem1hereof be extended for more than ten (10) years after the expiration of the Original Lease Term hereof.
(D)
Notwithstanding the foregoing, in the event that Tenant delivers Tenant's Extension Exercise Notice pursuant to Section 2.1.2(D)(l
1)
hereof, Tenant shall have irrevocably exercised the extension option in question on such delivery, and in that instance only the Extension Exercise Notice defined in Section 8.20 may be given prior to the date nineteen (19) months prior to the expiration of the then Term of the Lease; provided, however, that in such case Landlord shall not be obligated to quote the Annual Mm·ket Rent until fourteen (14) months prior to the commencement of the applicable
Extension Term. Notwithstanding the foregoing, if Tenant delivers a Tenant's Rescission Notice in accordance with Section 2.l.2(D)(6) hereofrescinding its exercise of its Right of First Offer, Tenant shall also be entitled to give Landlord a Rescission Notice rescinding its exercise of its extension option, provided that both Rescission Notices are given at the same time.
The initial Security Deposit required under this Lease shall be
in
the amount of
e om1o a Letter of Credit, to an or on e ommencemen ate. and ord shall hold the Security Deposit,
throughout the Term of this Lease (including the Extended Term, if applicable), unless sooner returned to Tenant as provided in this Section 8.21, as security for the
. perfonnance by Tenant of all obligations on the part of Tenant to be performed under this Lease. Such deposit shall be in the form of an irrevocable, unconditional, negotiable letter of credit (the "Letter of Credit"). The Letter of Credit shall (i) be issued by and drawn on a bank reasonably approved by Landlord (Landlord hereby approving Brown Brothers
&
Harriman
&
Co.) and at a minimum having a corporate credit rating from Standard and Poor's Professional Rating Service of BBB- or a comparable minimmn rating from Moody's Professional Rating Service, (ii) be substantially in the form attached hereto as Exhibit G or Exhibit G-1, (iii) permit one or more draws thereunder to be made accompanied only by certification by Landlord or Landlord's managing agent that pursuant to the terms of this Lease, Landlord is entitled to draw upon such Letter of Credit, (iv) permit transfers at any time without charge, and (v) provide that any notices
to Landlord be sent to the notice address provided for Landlord in this Lease.
If
the credit rating for the issuer of such Letter of Credit falls below the standard set forth in (i) above or if the financial condition of such issuer changes in any other material adverse way, Landlord shall have the right to require that Tenant provide a substitute letter of credit that complies in all respects with the requirements of this Section, and Tenant's failure to provide the same within ten (10) days following Landlord's written demand therefor shall entitle Landlord to immediately draw upon the Letter of Credit. Any such Letter of Credit shall be for a term of two (2) years (or for one
(1)
year if the issuer thereof regularly and customarily only issues letters of credit for a maximum term of one
(1)
year) and shall in either case provide for automatic renewals ilirough the date which is ninety (90) days subsequent to the scheduled expiration of this Lease (as the same may
be extended) (the "LC Expiration Date") or if the issuer will not grant automatic renewals or will not grant them through the LC Expiration Date, the Letter of Credit shall be renewed
by Tenant each year or prior to the earlier expiration date, as the case may be, and each such renewal shall be delivered to and received by Landlord not later than thirty
(30) days before the expiration of the then current Letter of Credit (herein called a "Renewal Presentation Date"), so that Landlord is holding a valid Letter of Credit through the LC Expiration Date.
In
the event of a failure to so deliver any such renewal
Letter of Credit on or before the applicable Renewal Presentation Date, Landlord shall be entitled to present fue then existing Letter of Credit for payment and to receive the proceeds thereof, which proceeds shall be held as Tenant's security deposit, subject to the terms of this Section. 8.21. Any failure or refusal to honor the Letter of Credit shall be at
Tenant's sole risk and shall not relieve Tenant of its obligation hereunder with regard to the security deposit. Upon the occurrence of any Event of Default, Landlord shall have the right from time to time without prejudice to any other remedy Landlord may have on account thereof, to draw on all or any.portion of such deposit held as a Letter of Credit and to apply the proceeds of such Letter of Credit or any cash held as such deposit, or
any part thereof, to Landlord's damages arising from such Event of Default on the part of Tenant under the terms of this Lease. If Landlord so applies all or any portion of such deposit, Tenant shall within seven (7) days after notice from Landlord deposit cash with Landlord in an amount sufficient to restore such deposit to the full amount stated in this Section 8.21. While Landlord holds any cash deposit Landlord shall have no obligation to pay interest on the same and shall have the right to commingle the same with Landlord's other funds. Neither the holder of a mortgage nor the Landlord in a ground lease on property which includes the Premises shall ever be responsibfo 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 or ground Landlord.
os1 1s 1n e orm o a o re
,
an ord s a exchange the Letter of Credit for a Letter of Credit delivered by Tenant which reduces the amount secured by the Letter of Credit by the amount stated hereinabove and otherwise in strict conformity with the requirements herein) on the third (3n1) anniversary of the Rent Commencement Date if Tenant (x) has not been in monetary or material non-monetary default under this Lease beyond any applicable notice and cure periods, and (y) is not then in default under this Lease.
form of a Letter of Credit, Lan or s a exc an e
Credit delivered by Tenant which reduces the amount secured by the Letter of Credit by the amount stated hereinabove and otherwise in strict conformity with the requirements herein)
on the fifth (5'h) anniversary of the Rent Commencement Date if Tenant (x) has not been in mohetary or material non-monetary default under this Lease beyond any applicable notice and cure periods, and (y) is not then in default under this Lease.
(iii)
.
Iu
the event that the Security Deposit is not eligible to be reduced on one . or more of the foregoing reduction dates solely due to Tenant's being
in
default on such date, the Security Deposit shall be eligible to be reduced, in accordance with this Section 8.21, on the first day following snch reduction date that Tenant is not in default, by the amount it would have been eligible to be reduced by on such reduction date buffor such default.
In no event shall the Security Deposit ever be reduced
(v) Such reduction shall be accomplished by having Tenant provide Landlord with a substitute letter of credit in the reduced amount, or an amendment, in form reasonably satisfactory to Landlord, to the letter of credit then being held by Landlord reducing the amount thereof to the reduced amount. In the event that the Security Deposit is not reduced on a Reduction Date solely due to Tenant's being in default on such date, the Security Deposit shall be reduced on the first day following the Reduction Date that Tenant is not in default by the amount it would have reduced on the Reduction Date but for such default. In the event that the Security Deposit is not eligible to be reduced on one or more of the foregoing reduction dates solely due to Tenant's being in default on such date, the Security Deposit shall be eligible to be reduced, in accordance with this Section 8.21, on the first day following such reduction date that Tenant is not in default, by the amount it would have reduced on such reduction date but for such default.
(C) Tenant not then being in default and having performed all of its obligations under this Lease, including the payment of all Annual Fixed Rent, Landlord shall return the deposit, or so mnch thereof as shall not have theretofore been applied in accordance with the terms of this Section 8.21, to Tenant on the expiration or earlier termination of the Term of this Lease (as the same may have been extended) and surrender possession of the Premises by Tenant to Landlord in the condition required in the Lease at such time.
If
Landlord shall not have received any payment or installment of Annual Fixed Rent or Additional Rent (the "Outstanding Amount") on or before the date the same first
becomes payable under this Lease (the "Due Date"), then Tenant shall be charged interest on tbe Outstanding Amount from the Due Date through and including the date such payment or installment is received by Landlord, at a rate (the "Default Interest Rate") equal to the lesser of (i) the rate announced by Bank of America, N.A. (or its successor) from time to time as its prime or base rate (or if such rate is no longer available, a comparable rate reasonably selected by Landlord), plus two percent (2%), or (ii) the maximum applicable legal rate, if any. Such interest shall be deemed Additional Rent
and shall be paid by Tenant to Landlord upon demand.
In addition to paying interest on the Outstanding Amount, if the Outstanding Amount is not received by Landlord on or before the date five (5) business days after the Due Date, Tenant shall also be charged a late fee equal to the sum of five percent (5%) of the Outstanding Amount for administration and bookkeeping costs associated with the late payment, which late charge shall be deemed Additional Rent and shall be paid by Tenant to Landlord upon demand. Notwithstanding the foregoing, such late fee shall be waived for the first such late payment in any twelve (12)-month period.
Each and every payment and expenditure, other than Annual Fixed Rent, shall be deemed to be Additional Rent or additional rent hereunder, whether or not the provisions requiring payment of such amounts specifically so state, and shall be payable, unless otherwise provided in this Lease, within ten
(10)
days after written demand by Landlord, and in the case of the non-payment of any such amount, Landlord shall have, in addition to all of its other rights and remedies, all the rights and remedies available to Landlord hereunder or by law in the case of non-payment of Annnal Fixed Rent. Unless expressly otherwise provided in this Lease, the performance and observance by Tenant of all the terms, covenants and conditions of this Lease to be perfo1med and observed by Tenant shall be at Tenant's sole cost and expense.
If
Tenant has not objected to any statement of
Additional Rent which is rendered by Landlord to Tenant within twelve (12) months after Landlord has rendered the same to Tenant, then the same shall be deemed to be a fmal account between Landlord and Tenant not subject to any further dispute. Tenant shall have no obligation to pay any amount of Additional Rent for which Landlord's statement is rendered more than twelve (12) months after the accrual thereof or, in the case of Landlord's Operating Expenses or Landlord's Tax Expenses, more than twelve (12) months after the delivery by Landlord of the annual statements referred to in Sections 2.6 and 2.7 hereof.
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8.24
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Waiver of Trial By Jury
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To induce the other party to enter into this Lease, each party hereby waives any right to trial by jury in any action, proceeding or counterclaiin brought by either Landlord or Tenant on any matters whatsoever arising out of or any way conoected with this Lease, the relationship of the Landlord and the Tenant, the Tenant's use or occupancy of the Premises and/or any claim of injury or damage, including but not limited to, any summary process eviction action.
This Lease shall be governed exclusively by the provisions hereof and by the law of the Commonwealth of Massachusetts, as the same may from time to time exist.
A.
Construction.
Tenant acknowledges that Landlord intends to construct and operate a conference center (the "Conference Center") in the Building for use by the Building tenants. Landlord shall be solely responsible for the initial capital costs of constructing such facility.
B.
Operation of Conference Center.
The costs of operating and maintaining the Conference Center shall be considered part of Landlord's Operating Expenses under Section 2.6 above. The Conference Center shall be constructed substantially in accordance with Exhibit K attached hereto and shall have internet access, a drop-down
75
GSDOCS\1689479.t 1 5/25/2007
screen, and drop-down projection equipment (or reasonable substitutions therefor to accommodate changing technology). So long as the Conference Center in the Building exists, Tenant and its subtenants shall have the right to use the same on a first-come, first served basis. For the initial three (3) Lease Years, Tenant shall not be charged for the use of the Conference Center, except that Tenant shall reimburse Landlord for Landlord's reasonable costs in the cleaning and preparation of the Conference Center in connection with Tenant's use. Thereafter, for the balance of the Lease Term, Tenant shall pay Landlord's standard fee for use of the Conference Center; provided, however, that such fee shall not exceed Two Hundred and 00/100 Dollars ($200.00) per day.
If
Tenant exercises its extension option(s) and provided the Conference Center exists, Tenant shall pay market rates for the use of said Conference Center, which rates shall be subject to change from time to time in Landlord's sole discretion. The use of the Conference
Center shall be subject to reasonable rules and regulations as Landlord may impose from time to time.
C.
Delav in C
onstruction. If the Conference Center is not completed substantially in accordance with the provisions of this Section 8.26 on or before the Occupancy Date, then until such substantial completion, Landlord shall reimburse Tenant for the cost incurred by Tenant in conducting meetings at outside locations, up to a maximum of Three Thousand Five Hundred and 00/100 Dollars ($3,500.00) per meeting, with a maximum of two (2) meetings per month and four (4) meetings per calendar quarter.
In
the event Tenant desires access to the roof of the Building to install and maintain a satellite antenna dish or supplemental HVAC equipment, Tenant shall notify Landlord, and Landlord and Tenant shall enter into Landlord's standard license agreement for Tenant's use of the rooftop for said purpose, but Tenant shall not be obligated to pay any rent for such rooftop space. If Tenant so notifies Landlord after the date that is eighteen
(I
8) months after the Commencement Date, then Landlord shall provide such rooftop space to Tenant provided there is available space on the rooftop. Any such equipment, the location and means of installation thereof shall be subject to Landlord's prior written consent, which consent shall not be unreasonably withheld.
Landlord shall initially construct a full-service cafeteria, to be operated by Rebecca's or an operator of similar quality, and a building fitness center with full lockers and showers (collectively, the "Amenities"), such Amenities to be available to Tenant
in
common with others entitled to use thereof throughout the Initial Term hereof (except as otherwise consented to by Tenant in writing, such consent not to be unreasonably withheld, conditioned or delayed) and as long thereafter as the same may be available to tenants of the Building generally. Except as set forth in the preceding sentence, (i) if at the end of the Initial Term or any time thereafter, there exist at least two (2) restaurant facilities available for the nse .of Tenant's employees within no more than four hundred (400) yards
of the Premises, Landlord reserves the right at any time and from time to time thereafter to change and/or discontinue the cafeteria in its reasonable discretion, and (ii) Landlord reserves the right at any time after the Initial Term and from time to time thereafter to change and/or discontinue the building fitness center in its reasonable discretion.
Notwithstanding the foregoing, Landlord reserves the right to serve prepared foods in the cafeteria commensurate with the use of the cafeteria and the occupancy of the Bnilding.
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8.29
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Infrastructure Improvements.
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Landlord agrees to use commercially reasonable efforts to complete, at Landlord's expense, sidewalk, landscaping and lighting improvements and burying of utility lines substantially in accordance with the conceptual plan attached hereto as Exhibit M ("Infrastructure Conceptual Plans") along 111ird Avenue beginning south of the intersection with Totten Pond Road to the intersection with Fourth Avenue, and along Fourth Avenue beginning with the intersection with Third Avenue and continuing to the cul-de-sac at the South end of Fourth Avenue ("Infrastructure Improvements"), subject to Landlord's Force Majeure, including without limitation the requirements of permitting authorities and the ability or inability to obtain necessary approvals from abutters and the relevant utility and telecommunication companies. If, due to any of the foregoing reasons, Landlord is unable to undertake the Infrastructure Improvements in accordance with the Infrastmcture Conceptual Plans, Landlord agrees to use continuing diligent efforts to modify the Infrastructure Conceptual Plans, and to keep Tenant informed as to progress, and to resubmit the modified plans for the Infrastructure Improvements in order to obtain all necessary permits and approvals to permit Landlord to construct the Infrastructure Improvements as so modified. The coordination of such submittals and/or re-submittals to permitting authorities, abutters, and utility and telecommunication companies and the negotiations of any modifications to the Infrastructure Conceptual Plans with snch entities shall be at Landlord's sole discretion. All costs related to the design, the obtaining of permits and approvals and the construction of the Infrastructurn hnprovements shall be paid by Landlord and shall not constitute Operating Expenses.
Notwithstanding the foreg0ing, Landlord's failure to complete the Infrastructure Improvements shall not constitute a default under this Lease.
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8.30
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Emergency Generator.
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Tenant shall be permitted, at its sole cost and expense, to install an emergency generator powered by natural gas, not to exceed .49 inches x 123 inches x 64 inches in dimension and 4,000 pounds (the "Emergency Generator") on the roof of the Building, in the location described on Exhibit N attached to this Lease and incorporated herein by reference. The exact specifications of the Emergency Generator, and the method of installing the Emergency Generator on the roof, shall be subject to Landlord's prior written approval, which shall not be unreasonably withheld or delayed. Tenant shall use Landlord's roof contractor for the installation of the Emergency Generator.
Tenant's use of the Emergency Generator shall be upon all of the conditions of the Lease, except as modified below:
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(a)
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It
is understood and agreed that Tenant shall be responsible, at its sole cost and expense, for installing all necessary connections (the "Generator Connections") between the Emergency Generator and the Premises. In addition to complying with the applicable construction provisions of this Lease, Tenant shall not install or operate the Generator Connections in any portion of the Building until (x) Tenant shall have obtained Landlord's prior written approval, which approval will not be unreasonably withheld or delayed, of Tenant's plans and specifications for the placement and installation of the Generator Com1ections, and (y) Tenant shall have obtained and delivered to Landlord copies of all required govenunental and quasi-govennnental permits, approvals, licenses and authorizations necessary for the lawful installation, operation and maintenance of the Generator Connections. Upon written request of Tenant, Landlord shall inform Tenant at the time of its review of the Generator Connections whether Landlord will require the same to
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be removed by Tenant upon the expiration or earlier termination of this Lease.
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(b)
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Tenant shall have no obligation to pay Annual Fixed Rent, Tax Excess or Operatil,lg Expense Excess in respect of the Emergency Generator or the Generator Connections.
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(c)
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The Emergency Generator shall be used solely to provide back-up power in the event of an outage for Tenant's lights and pings and business equipment in the Premises and dedicated heating, ventilation and air conditioning systems serving the Premises, but not for the purposes of running any life-safety systems or equipment (it being understood and agreed that such dedicated HVAC systems may not function during such an outage, even if connected to the Emergency Generator, to the extent that the base building systems are not functioning).
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(d)
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Landlord shall have no liability to Tenant for the installation and subsequent operation of the Emergency Generator.
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(e)
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Landlord shall have no obligation to provide any sezyices to the Emergency Generator. Tenant shall, at its sole cost and expense and otherwise in accordance with the provisions of this Section 8.30, arrange for all utility services required for the operation of the Emergency Generator.
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(f)
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Tenant shall, at its sole cost and expense, be solely responsible for all · maintenance and repair to the Emergency Generator and the Generator Connections.
In
connection therewith, Tenant shall provide Landlord with evidence on an annual basis of the existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to Landlord.
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(g)
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Tenant shall have no right to make any changes, alterations, signs, or other improvements to the Emergency Generator or the Generator Connections without Landlord's prior written consent, which consent shall not be unreasonably
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withheld or delayed.
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(h)
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Tenant shall be responsible for the cost ofrepairing any damage to the Bnilding or the Property cansed by its use of the Emergency Generator and the Generator Connections.
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(i)
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Except for assignees of this Lease or subtenants of all or a portion of the Premises, no other person, firm or entity (including, without limitation, other tenants, licensees or occupants of the Building) shall have the right to connect to the Emergency Generator other than Tenant.
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G)
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To the maximum extent permitted by law, Tenant's use of the Emergency Generator and the Generator Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that the Emergency Generator or the Generator Collllections are damaged for any reason, except to the extent arising from the negligence or willful misconduct of Landlord or its agents, employees or contractors.
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(k)
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Tenant shall comply with all applicable laws, ordinances and regulations in Tenant's use of the Emergency Generator and the Generator Connections.
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(I)
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Landlord shall have the right, upon no less than ninety (90) days' notice to Tenant and at Landlord's sole cost and expense, to relocate the Emergency Generator and the Generator Connections to another area within the Property. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Tenant's business operations. Any such relocation by Landlord shall not independently (i.e., in the absence of another cause) be deemed to constitute a failure of electric supply under Section 4.2 above.
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(m)
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In
addition to the indemnification provisions set forth in this Lease which shall be applicable to the Emergency Generator and the Generator Connections, Tenant shall, to the maximum extent pem1itted by law, indemnify, defend, and hold Landlord, its agents, contractors and employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant's use of the Emergency Generator and the Generator Connections.
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(n)
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Landlord shall have the right to designate or identify the Emergency Generator with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Emergency Generator.
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(o)
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It
is expressly understood and agreed that the Emergency Generator shall remain the property of Tenant upon the expiration or earlier termination of this Lease and
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that Tenant shall have the right to remove the same. Furthermore, Tenant shall be obligated to remove the same if so requested by Landlord, and to repair any
damage caused by the installation or removal of the Emergency Generator.
Except as otherwise specifically provided herein, any time the consent of Landlord or Tenant is required, such consent shall not be unreasonably withheld, conditioned, or delayed. Whenever this Lease grants Landlord or Tenant the right to take action, exercise discretion, establish rules and regulations or make allocations of other determinations, except as otherwise specifically provided herein, Landlord and Tenant shall act reasonably and in good faith.
(signatures on next page)
80
GSDOCS\1689479.11 512512007
EXECUTED as a sealed instrument in two or more counterparts each of which shall be deemed
t
w
o
r
b
f
e an o
l
rigi
-
nal.
Z/
LANDLORD:
BP FOURTH AVENUE, LL.C.,
a Delaware limited liability company
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By:
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Boston Properties Limited Partnership, its sole member
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By:
TENANT:
By:
Name:
Title:
Secretary
By:
Name:
-""''[':!c --J.'-1---- -
Title: President
Hereto duly authorized
e: //J
Title:
-,T:=re=as=u"r'e-" =='-----------
Hereto duly authorized (CORPORATE SEAL)
EXHIBIT A
DESCRJPTION OF SITE
GSDOCS\1689479.11 sns/20-07
Exhibit A Page I of I
EXHIBIT
"A" Page I of 2
LEGAL DESCRIPTION
77 Fourth Avenue (Parcel 20)
A certain parcel ofland located in the City of Waltham, in the County of Middlesex and the Commonwealth of Massachusetts bounded and described as follows:
Beginning at a point on the westerly line of Fourth Avenue marked by a stone bound and being the northeastern corner of the parcel described; thence
s
23° 46'59"
w
Southwesterly
Southwesterly
s
40°11'12"
w
Southwesterly
s
10° 01'24"
w
N 79° 58'36" W
N 05° 49'41" E
Northeasterly
a distance of three hundred thirty-eight and twenty-three hundredths feet (338.23') by the westerly line of Fourth Avenue to a point; thence
and curving to the right along the arc of a curve having a radius of sixteen and no hundredths feet (16.00'), a length of sixteen and sixty-· three hundredths feet (16.63') by the westerly line of Fourth Avenue
to a point; thence
and curving to the left along the arc of a curve having a radius of sixty and no hundredths feet (60.00'), a length of seventy-eight and fifty-six hundredths feet (78.56') by the westerly line of Fourth Avenue to a point; thence
a distance of fifty-eight and forty-three hundredths feet (58.43') to a point; thence
and curving to the left along the arc of a curve having a radius of two hundred ten and no hundredths feet (210.00'), a length of one hundred fifty and seventy-nine hundredths feet (150.79') to a point; thence
a distance of three hundred thirty-eight and thirty hundredths feet (338.30') to a point; thence
a distance of thirty-five·and ninety-four hundredths feet (35.94') to a point; thence ·
a distance of three hundred seventy and eighty-four hundredths feet (370.84') to a point; thence
and curving to the left along the arc of a curve having a radius of seven hundred twenty-five and no hundredths feet (725.00'), a length of one hundred and eighty-seven hundredths feet
(I
00.87') to a point; thence
77 Fourth
A
venue (Parcel 20)
Page 2 of 2
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·N 02° 08'36" W
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a distance of one hundred thirty-nine and forty-four hundredths feet (139.44 to a point; thence
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Northeasterly
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and curving to the right along the arc of a curve having a radius of seven hundred twenty-five and no hundredths feet (725.00'), a length ofone hundred forty-four and fifty-two hundredths feet {144.52') to a point; thence
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Northeasterly
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and curving to the left along the aic of a curve having a radius of seven hundred seventy five and no hundredths feet {775:00'), a length of one hundred thirteen and forty six hundredths feet {113.46') to a point ; thence
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·N 00° 53'22" E
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a distance of two hundred eight and eighty-four hundredths feet (208.84') to a point; thence
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Northeasterly
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and curving to the right along the arc of a curve having a radius of fifteen and no hundredths feet (15.00'), a length of thirty and thirty five hundredths feet {30.35') to a point; thence
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S 63° 09'49" E a distance of three hundred forty-two and sixty-nine hundredths feet
{342.69') by the southerly line of Fourth Avenue to a point; thence
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Southeasterly
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and curving to the right along the arc of a curve having a radius of fifty and no hundredths feet {50.00'), a length of seventy-five and eighty-eight hundredths feet (75.88') by the southerly line of Fourth Avenue to the point of beginning.
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Shown as Parcel 20 on a plan entitled "Plan of Land in Waltham, Massachusetts" dated February 28, 2000, prepared by Vanasse Hangen Brustlin, Inc., recorded with Middlesex South Registry of Deeds as Plan No. 628 of 2000, and containing 186,733 square feet or
4.287 acres ofland according to said Plan. .
77FOURTHLLC BP.legaldescrip tionparce 120c:xhA.
12112100
EXHIBIT B-1
BASE BUILDING SPECIFICATIONS
GSDOCS\1689479.11 5/25/2007
Exhibit B-1 Page I of I
77
4•h
Avenue Waltham, Massachusetts
A seven (7) story first class office building wi1h structured parking garage.
The structure will be supported on a foundation of concrete spread footings with concrete foundation walls.
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A.
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The structure will be designed in accordance with the following live loads:
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I.
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Wind and seismic load in accordance with State Building Code.
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2.
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Floor live load I 00 lbs. (including partitions).
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3.
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Mechanical equipment rooms -- actual weight of equipment.
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4.
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Roof -- 35 lbs. per square foot minimum and in accordance with governing building codes, plus allowances for specific drifting and equipment loads.
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B.
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The structure will consist of steel frame with a braced frame and composite steel and concrete floor; with substantially column free floors from core to perimeter wall. Floor to floor heights will allow for a typical suspended ceiling height
in
the office areas of 9'0" AF.F.
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C.
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Structure will be fireproofed where required by the Building Code. Structural assemblies requiring fireproofing will be sprayed with a fireproofing system as provided by W. R. Grace
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Co. or equal.
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D.
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Fire exit stairs will be standard steel pan stair assemblies with painted steel handrails and concrete fill. ·
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E.
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Miscellaneous iron items (canopy framing, elevator sill angles, ladders, railings, loose lintels, expansion plates, toilet partition support frames, etc.) will be provided as needed.
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4.
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ROOFING AND WATERPROOFING
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Exhibit B-1 - 77 CityPoint Base Building Specification
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A.
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The roofing system will be one of the following; a mechanically fastened, heat welded thermoplastic system such as manufactured by Samofil Roofing Systems, Inc., or an EPDM roof.
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B.
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Roof insulation will be rigid fiberglass board, applied with staggered joints conforming to requirements of the State Energy Code and acceptable for use with the system specified.
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C.
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Compatible roof walkway pads shall be provided for equipment access and servicing.
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A.
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The exterior wall system will consist of a combination of the following; aluminum curtain wall, metal panels, precast concrete and stone.
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B.
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Exterior entrance doors will be similar in construction to building window systems.
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C.
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Exterior wall system to be designed in accordance with the State Building Code.
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Floors: Granite flooring as dictated by the design.
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Walls:
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Feature walls will be a combination of stone and wood panels accented with veneer plaster.
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Ceilings:. A combination of gypsum board and 4'x4' ceilings panels.
B.
Toilet Rooms
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Floors:
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Thin set ceramic tile. Carpet in vestibules, Marble thresholds at door openings.
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Walls:
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7'
high ceramic tile on wet walls. Painted drywall on other walls.
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Ceilings: Acoustical ceiling tile.
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Lavatory Counters:
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Granite or other solid surface material with under- mount china lavatories.
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C.
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Interior side of exterior walls below the finished ceiling will be finished with 5/8" drywall. Windowsills will be plastic laminate.
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D.
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Exit stair treads and landings will be sealed concrete. Stairwell walls will be painted drywall.
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E.
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Door frames will be 16 gage hollow metal. Doors will be 18 gauge, flush,
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1-3/4" thick hollow metal at all areas. All doors and hardware shall comply with regulations of the Architectural Access Board.
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F.
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Interior core drywall surfaces will be 5/8" drywall prepared to receive one coat of primer and one coat of latex satin eggshell paint. Interior hollow metal surfaces will receive one coat of primer and two coats of semi-gloss enamel. Architectural woodwork and wood doors will receive a sealer and clear polyurethane finish.
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7.
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SPECIALTIES AND EQUIPMENT
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A.
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A uniform building graphics system, consisting of a building identification sign and a building directory will be provided.
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B.
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Metal toilet enclosures will be ceiling mounted and of steel panel construction with baked enamel finish. Toilet enclosures will be similar or equal to those manufactured by Accurate Partitions.
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C.
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Toilet room accessories will be similar or equal to those manufactured by Bobrick Company, all in accordance with regulations of Architectural Access Board.
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D.
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All exterior windows will be equipped with solid horizontal blinds.
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8.
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VERTICAL TRANSPORTATION
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Elevators in the office area will be geared, 3,500# cars with a speed of 350
!pm. Elevator Cab Finishes: Stone border and base with catpet inset, wood paneling with stainless steel trim to match elevator doors and control panel. Metal ceiling canopy with recessed accent lighting.
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A.
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Domestic water system will.be supplied by metered service from a public water main, with operating pressure augmented by pressure boosting equipment, ifrequired. Water piping will be Type L copper tubing; hot water piping will be insulated. Electric domestic water heaters serving I to 6 floors with a recirculation system will be provided for toilet room hot water.
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Water heaters shall be UL approved and have ASME approved storage tank where required by local code.
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B.
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Sanitary system will drain to public sewer, and will serve all fixtures and equipment. Sanitary piping will be no hub cast iron or galvanized steel. Stubouts for tenant plumbing requirements will be provided on two opposite sides of the core area.
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C.
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Storm water drainage system will serve all roofs, areaways and plazas, and will drain through concealed pipes into city stonn water system. Storm water drainage piping will be service weight, no hub cast iron or galvanized steel; horizontal runs will be insulated.
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D.
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Plumbing fixtures will be as manufactured by American Standard, Kohler, Crane, or equal. Water closets to be wall-carrier mounted.
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E.
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The building will have one water cooler per floor, specified for lead-free fabrication, compliant with ADA accessibility guidelines
(Hi
lo fountain).
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F.
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Frost-free hose bibs will be provided as required for exterior maintenance.
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10.
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FIRE PROTECTION SYSTEM
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A.
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Fire standpipes will be supplied from a public water main with operating pressure augmented by pressure boosting equipment, if required.
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Standpipes will be cross connected with siamese connections and hose bibs for Fire Department use only. Piping larger than 2" dia will be Sched11le IO black steel pipe, piping 2" dia or less will be treaded schedule 40 black steel; riser piping shall be schedµle 40 black steel pipe; all piping, valves and equipment will be Underwriters' Laboratories approved and labeled.
Temper switches will be provided on all main control valves. All hose outlet threads and connections
will
conform to local Fire Department . criteria.
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|
|
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B.
|
Automatic sprinkler system will be supplied from a public water main with operating pressure augmented by pressure boosting equipment, if requirecl. The system will be designed so that all occupied space in the building will be fully sprinklered at a head density in accordance with light hazard occupancy in office space. The Base Building provides distribution piping and sprinkler heads for common areas such as mechanical rooms, toilets, etc. and general coverage (15' x 15' grid) with upturned heads in Tenant areas. Each floor's loop will be individually valved off the riser and drained. Provide concealed heads at lobby, elevator lobbies and toilet rooms. The location of base building grids will be coordinated to accommodate tenant's improvement work.
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C.
|
Alarm and detection system are described under Section 12, Electrical Systems.
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11.
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HEATING, VENTILATING AND AlR CONDITIONS
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A.
|
HVAC systems will be designed in accordance with the following performance criteria and anticipated load.
|
B.
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|
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1.
|
The HVAC systems will be capable of maintaining indoor conditions no higher than 78°, 50% RH when outdoor conditions are no higher than 88°F DB and 74°F WB, and no lower than 72°F DB when the outdoor conditions are no lower than 9°F DB. No provision for humidification is provided.
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2.
|
Outdoor air will be introduced to the building at a minimum rate of 20 cfin per person, assuming one person per 150 square feet floor
area.
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|
|
3.
|
Internal heat gain will be calculated on the basis of sustained peak loading conditions of one person per 150 square feet of gross usable floor area and a combined lighting and power load of 5.0 watts per gross usable square foot area (for medium pressure duct design).
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4.
|
Heated supply air temperature will be 95°F to l 10°F.
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5.
|
Cooled supply air temperature will be 55°F to 58°F.
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6.
|
Measured sound levels
in
the building when unoccupied and the system is operating at full load will not exceed the levels given below:
|
Lobbies and corridors: General offices:
All other offices:
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|
|
|
C.
|
The following describes the HVAC system:
|
NC50 NC45 NC40
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|
|
1.
|
The base building system will consist of a roof top air handle_r with gas fired morning warm-up.
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2.
|
Variable air volume controls with fan powered VAV boxes with electric coils at the perimeter·and VAV fan powered boxes without coils for interior zones.
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3.
|
Heating shall be via fan boxes with electric coils at the perimeter.
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4.
|
Toilet room and mechanical room exhaust systems and associated ductwork and fans. Electric rooms located on each office floor will be ventilated using general exhaust.
|
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5.
|
Automatic temperature control system consisting of direct digital
|
Exhibit B1 - 77 CityPoint Base Building Specification
controls (DDC) and appurtenances. Connections of VAV units, fans and associated systems, and tie into the central control system.
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6.
|
Stair pressurization supply air, smoke vestibule supply and exhaust systems and stair relief system.
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7.
|
Acoustical duct lining for all return and transfer ductwork in mechanical equipment room and LP supply dnctwork 10'-0" downstream of VAV box. Supply ductwork beyond lined ductwork shall be insulated with 1-1/2" duct insulation. Ductwork shall be fully lined or insulated.
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8.
|
Air distribution system consisting of ductwork, volume dampers, fire dampers, registers, diffusers and linear diffusers for core areas only.
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9.
|
Diesel fired emergency generator, diesel storage tank, exhaust pipe, ductwork, etc.
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10.
|
Testing and balancing to insure proper system operation.
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A.
|
Electrical systems will be designed in accordance with the following anticipated loads:
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I.
|
Lighting power requirements will be calculated on the basis of 1.5 watts per square foot of building area.
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2.
|
Tenant convenience outlet power requirements will be calculated on the basis of 4.5 watts per square foot of building area.
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3.
|
Power requirements for HVAC and other fixed building equipment will be detemiined by the actual equipment installed.
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B.
|
The electrical power distribution system will receive low tension power at 480/277 volts, 3 phase, 4 wire from the transformers provided by the utility company, and will incorporate one or more main switchboards and all subsidiary panelboai:ds (power, lighting, equipment) as required. The distribution system will supply power as follows:
|
I.
480 volts, 3 phase to all motors
Y,
horsepower and larger.
|
|
|
|
2.
|
277 volts, single-phase to all fluorescent (and other discharge-type lamp) lighting fixtures.
|
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3.
|
120 volts, single-phase to all incandescent lighting fixtures.
|
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|
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4.
|
120 volts, single-phase to all general convenience receptacle
|
Exhibit B-1 - 77 CityPoint Base Building Sj;ecification
outlets.
|
|
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|
5.
|
120 volts single-phase; 208 volts, single-phase; 208 volts, 3-phase
to
specific use "solid connection" or receptacle outlets, as determined from the requirements of the appliances assigned to the outlets.
|
|
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C.
|
Metering will be accomplished in one of two ways.
|
|
|
|
|
1.
|
Utility meters at main switchboards and Owner specified check meters on the floors to verify tenant consumption. These check meters to be solid-state, 1
%
accuracy and networked to a central computer.
|
|
|
|
|
D.
|
Three-phase, dry type transfonners (480 volt delta to 208/120 volt wye) will be used to provide power of voltages not available from direct
|
connection to the main service. Transformers will be the self-cooled indoor type with Class H insulation and steel enclosures.
|
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|
E.
|
The emergency electrical power system will consist of:
|
|
|
|
|
!.
|
Diesel powered emergency generator(s) sized to meet the power demands of all Base Building emergency equipment.
|
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|
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2.
|
An
emergency power distribution system supplying the fixtures illuminating egress passages and stairs, exit signs, elevators , frre alarm system, fire pump, (if required) and stairwell pressurization fans.
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3.
|
An
automatic transfer switch, which will connect the emergency power distribution system to the standard building distribution system or the emergency generator, as required.
|
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F.
|
The automatic fire detection and alann system will be electronically operated double-supervised, connected to the Fire Department, and provided with a battery backup. All components of the fire alarm system (fire command station, manual alarm stations, alarm indicators, automatic smoke and heat detectors, fan control relays, etc.) will be Underwriters' laboratories rated, and the system will comply with all requirements of the NFPA, ADA, governing building code and local authorities. Activation of a manual alarm station or an automatic detectiou device (waterflow switches, smoke detectors, etc.) will:
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|
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|
!.
|
Sound the evacuation signals and flash the alarm lamps throughout the building.
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2.
|
Printout the device in alarm at the fire command center.
|
|
|
|
|
3.
|
Summon the municipal fire department.
|
Exhibit B-1 - 77 CityPoint Base Building Specification
|
|
|
|
4.
|
Activate smoke exhaust fans and/or shut down the HVAC system to prevent spread of smoke as appropriate.
|
Battery back-up failure or any disruption of the system wiring will sound an alarm at the system control panel.
|
|
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G.
|
The base building will prnvide an area in the basement for the tenant's telecommunications vendor. A 4" sleeve will be provided for tenant's use. The sleeve will be located on each floor in the base building telecommunications closet.
|
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13.
|
To clarify the delineation from Base Building to tenant work, the following criteria apply:
|
|
|
|
|
A.
|
The Base Building sprinkler system will consist of general coverage (15' x 15' grid) with upturned heads to meet minimum code requirements for light hazard occupancy. All relocation and/or additional heads and associated piping shall be tenant work. (Sprinkler work in multi-tenant elevator lobbies and common corridors will be Base Building work).
|
|
|
|
|
B.
|
Base Building HVAC system extends up to vertical riser in base building shaft. Tenant work includes medium pressure distribution ductwork, all downstream secondary ductwork, interior and exterior boxes, controls, registers, grilles and diffusers.
|
|
|
|
|
C.
|
Base Building electrical system extends up to the bus duct in tenant electric room sized to accommodate tenant electrical design load of 6.0 waits/SF
|
for lighting and power.
|
|
|
|
D.
|
Tenant Work, which is not included in Base Building, wonld normally cover the following:
|
|
|
|
|
a.
|
Ceiling high and , except on multi-tenant floors, demising partitions
|
|
|
|
|
b.
|
Tenant entrance doors and interior doors
|
|
|
|
|
d.
|
Carpet or other floor covering
|
|
|
|
|
e.
|
Interior finish on exterior wall
|
|
|
|
|
h.
|
Wall-mounted duplex outlets
|
1.
Wall-mounted telephone outlets
|
|
|
|
J.
|
Final sprinkler head layout; fixture upgrades, quantities above Base Building, and all piping associated with changes
|
|
|
|
|
k.
|
Interior and exterior VAV boxes, all Registers, Diffusers and Grilles (RDG) with medium pressure and distribution ductwork. Medium pressure supply ductwork shall have duct sound attenuators and external duct insulation throughout.
|
|
|
|
|
I.
|
All electrical work on Tenant's meter
|
Exhibit B-1
77
CityPoint Base Building S{lecification
|
|
|
|
m.
|
Fire alarm stations and exit signs required by code (but such items shall be included in Base Building to the extent located in core areas)
|
|
|
|
|
n.
|
Elevator lobby finishes on single tenant floors (elevator frames and doors are brushed stainless steel)
|
Exhibit Bl
77
CityPoint Base Building Sification
EXHIBIT B-2
TENANT PLAN AND
WORKING DRAWING
REQUIREMENTS
|
|
|
|
1.
|
Floor plan indicating location of partitions and doors (details required of partition and door types).
|
|
|
|
|
2.
|
Location of standard electrical convenience outlets and telephone outlets.
|
|
|
|
|
3.
|
Location and details of special electrical outlets; (e.g. Xerox), including voltage, amperage, phase and NEMA configuration of outlets.
|
|
|
|
|
4.
|
Reflected ceiling plan showing layout of standard ceiling and lighting fixtures. Partitions to be shown lightly with switches located indicating fixtures to be controlled.
|
|
|
|
|
5.
|
Locations and details of special ceiling conditions, lighting fixtures, speakers, etc.
|
|
|
|
|
6.
|
Location and heat load in BTU/Hr. of all special air conditioning and ventilating requirements and all necessary HVAC mechanical drawings.
|
|
|
|
|
7.
|
Location and details of special structural requirements, e.g., slab penetrations and areas with floor loadings exceeding a live load of70 lbs./s.f.
|
|
|
|
|
8.
|
Locations and details of all plumbing fixtures; sinks, drinking fountains, etc.
|
|
|
|
|
9.
|
Location and specifications of floor coverings, e.g., vinyl tile, carpet, ceramic tile, etc.
|
|
|
|
|
10.
|
Finish schedule plan indicating wall covering, paint or paneling with paint colors referenced to standard color system.
|
|
|
|
|
11.
|
Details and specifications of special millwork, glass partitions, rolling doors and grilles, blackboards, shelves, etc.
|
|
|
|
|
12.
|
Hardware schedule indicating door number keyed to plan, size, hardware required including butts, latchsets or locksets, closures, stops, and any special items such as thresholds, soundproofing, etc. Keying schedule is required.
|
|
|
|
|
13.
|
Verified dimensions of all built-in equipment (file cabinets, lockers, plan files, etc.).
|
|
|
|
|
14.
|
Location of any special soundproofing requirements.
|
|
|
|
|
15.
|
All drawings to be uniform size (30" X 42") and shall incorporate the standard project electrical and plumbing symbols and be at a scale of 1/8"
=
l' or larger.
|
|
|
|
|
16.
|
Drawing submittal shall include the appropriate quantity required for Landlord to file for
|
GSDOCS\1689479.11 5/25/2007
Exhibit B-2 Page 1of 2
permit along with four half size sets and one full size set for Landlord's review and use.
|
|
|
|
17.
|
Provide all other information necessary to obtain all permits and approvals for Landlord's Work.
|
18.
Upon completion of the work, Tenant shall provide Landlord with two hard copies and one electronic CAD file of updated architectural and mechanical drawings to reflect all project
sketches and changes.
GSDOCS\1689479.1 1 5/2512007
Exhibit B-2 Page 2 of 2
EXHIBIT C LANDLORD SERVICES
Cleaning and janitorial services shall be provided as needed Monday through Friday, exclusive of holidays observed by the cleaning company and Saturdays and Sundays.
Cleaning and janitorial services to be provided in the office areas shall include:
|
|
|
|
I.
|
Vacuuming, damp mopping of resilient floors and trash removal.
|
|
|
|
|
2.
|
Dusting of horizontal surfaces within normal reach (tenant equipment to remain in place).
|
|
|
|
|
3.
|
High dusting and dusting of vertical blinds to be rendered as needed.
|
Cleaning and janitorial services to be provided in the common area lavatories of the building shall include:
|
|
|
|
I.
|
Dusting, damp mopping of resilient floors, trash removal, sanitizing of basins, bowls and urinals as well as cleaning of mirrors and bright work.
|
|
|
|
|
2.
|
Refilling of soap, towel, tissue and sanitary dispensers to be rendered as necessary.
|
|
|
|
|
3.
|
High dusting to be rendered as needed.
|
|
|
|
|
C.
|
MAIN LOBBIES. ELEVATORS, STAIRWELLS AND COMMON
CORRIDORS
|
Cleaning and janitorial services to be provided in the common areas of the building shall include:
|
|
|
|
II.
|
Trash removal, vacuuming, dusting and damp mopping ofresilient floors and cleaning and sanitizing of water fountains.
|
GSDOCS\1689479.11 5!2512007
Exhibit C Page I of 3
2. High dusting to be rendered as needed.
All exterior windows shall be washed on the outside surfaces at least twice per year, and on the inside surfaces at least once per year.
|
|
|
|
A.
|
Heating, ventilating and air conditioning equipment will be provided with sufficient capacity to accommodate a maximum population density of one
|
(1)
person per one hundred fifty (150) square feet of useable floor area served, and a combined lighting and standard electrical load of 3.0 watts per square foot of useable floor area. In the event Tenant introduces into the Premises personnel or equipment which overloads the system's ability to adequately perform its proper functions, Landlord shall so notify Tenant in writing and supplementary system(s) may be required and installed by Landlord at Tenant's expense, if within fifteen (15) days Tenant has not modified its use so as not to cause such overload.
Operating criteria of the basic system shall not be less than the following:
|
|
|
|
(i)
|
Cooling season indoor temperatures of not in excess of 73 - 79 degrees Fahrenheit when outdoor temperatures are 91 degrees Fahrenheit ambient.
|
|
|
|
|
(ii)
|
Heating season minimum room temperature of 68 - 75 degrees Fahrenheit when outdoor temperatures are 6 degrees Fahrenheit ambient.
|
|
|
|
|
B.
|
Landlord shall provide heating, ventilating ai:id air conditioning as normal seasonal changes may require during the honrs of 8:00 a.m. to 6:00 p.m. Monday through Friday (legal holidays in all cases excepted).
|
If
Tenant shall require
air
conditioning (dnring the air conditioning season) or heating or ventilating dnring any. other time period, Landlord shall use landlord's best efforts to furnish snch services for the area or areas specified by written request of Tenant delivered to the Building Superintendent or the Landlord before 3:00 p.m. of the business day preceding the extra usage. Landlord shall charge Tenant for such extra
honrs usage at reasonable rates customary for first-class office buildings in the Class A Central 128 Area Market, except that there shall be no charge for such extra-honrs usage on Satiirdays between the honrs of 9:00 a.m.
and 1:00 p.m. (legal holidays excepted), and Tenant shall pay Landlord, as additional rent, upon receipt of billing therefor.
GSDOCS\1689479.11 5/25f2007
Exhibit C
Page 2 of3
|
|
|
|
A.
|
Landlord shall provide electric power for a combined load of 3.0 watts per square foot of useable area for lighting and for office machines through standard receptacles for the typical office space.
|
|
|
|
|
B.
|
In the event that Tenant bas special equipment (such as computers and reproduction equipment) that requires either 3-phase electric power or any voltage other than 120, or for any other usage in excess of 3.0 watts per square foot, Landlord may at its option require the installation of separate metering (Tenant being solely responsible for the costs of any such separate meter and the installation thereof) and direct billing to Tenant for the electric power required for any such special equipment.
|
|
|
|
|
C.
|
Landlord will furnish and install, at Tenant's expense, all replacement lighting tubes, lamps and ballasts required by Tenant. Landlord will clean lighting fixtures on a regularly scheduled basis at Tenant's expense.
|
Provide passenger elevator service. Subject to Landlord's Force Majeure, Landlord shall have at least one elevator in operation and available for Tenant's use, twenty-four (24) hours per day, seven (7) days per week, three hundred sixty-five (365) days
pet
year, on a non-exclusive basis, together with others having business in the Building.
Provide hot water for lavatory purposes and cold water for drinking, lavatory and. toilet purposes.
Landlord will provide a card access system at one entry door of the building.
VIL
SNOW AND ICE REMOVAL
Snow removal will be performed by Landlord or its contractor in a manner that is
in
keeping with other first-class properties in the Class A .Central 128 Area Market.
VIII. LANDSCAPING
GSDOCS\1689479.11 5/2512007
Exhibit C Page 3 of 3
Landlord will provide professional, routine seasonal care oflawns
&
plantings in a manner consistent with other first-class properties in the Class A Central 128 Area Market.
GSDOCS\1689479.11 5/25/2007
Exhibit C
Page 4 of3
EXHIBIT D
FLOOR PLAN
GSDOCS\1689479. l l 5/25t2D07
Exhibit D
Page I of 1
EXHIBIT E
FORM OF DECLARATION FIXING SPECIFIC DATES IN LEASE
THIS AGREEMENT made this _ day of 2007, by and between BP FOURTH AVENUE, L.L.C., a Delaware limited liability company, (hereinafter "Landlord") and PITTIGLIO, RABIN, TODD
&
MCGRATH, INC., a Massachusetts corporation (hereinafter
''Tenant'').
WITNESSETH THAT:
l.
This Agreement is made pursuant to Section 2.4 of that certain Lease dated
, 2007 between the parties aforenamed as Landlord and Tenant (the
"Lease").
|
|
|
|
2.
|
It
is hereby stipulated that the Commencement Date, Rent Commencement Date and Expiration Date of the Lease are as set
forth
below:
|
|
|
|
|
b)
|
Rent Commencement Date:.
_
|
WITNESS the execution hereof under seal by persons hereunto duly authorized, the date first above written.
LANDLORD:
BP Fourth Avenue, L.L.C.,
a Delaware limited liability company
B
TENANT:
ATTEST:
PITTIGLIO, RABIN, TODD
&
GSDOCS\1689479.1 l 5/25!2007
Exhibit E
Page l of 2
MCGRATH, INC., a Massachusetts
corporation
By:
Name:
Title:
By:
Name:
Title:
Hereunto duly authorized
(CORPORATE SEAL)
COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK
On this _ day of , 200_, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, which were , to be the person whose name is signed on the preceding or attached document in my presence.
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS COUNTY OF
On this _ day of 200_, before me, the undersigned notary public, personally
appeared· , proved to me through satisfactory evidence of identification, which were , to be the person whose name is signed on the preceding or attached document, and who swore or affnmed to me that the contents of the documents are truthful and accurate to the best of [his] [her] knowledge and belief.
NOTARY PUBLIC
My Commission Expires:
GSDOCS\1689,479.11 5/25/2007
Exhibit E
Page 2 of 2
EXHIBIT F
FORM OF LIEN WAIVERS
CONTRACTOR'S PARTIAL WAIVER AND SUBORDINATION OF LIEN
STATE OF
-------------
Date:
------------
COUNTY Application for Payment No.:
-
OWNER: CONTRACTOR:
LENDER
I
MORTGAGEE: None
|
|
|
|
|
|
|
1.
|
Original Contract Amount:
|
$
|
|
2.
|
Approved Change Orders:
|
$
|
|
3.
|
Adjusted Contract Amount: (line I plus line 2)
|
$
|
|
4.
|
Completed to Date:
|
$
|
|
5.
|
Less Retainage:
|
$
|
|
6.
|
Total Payable to Date:
|
$
|
|
|
(line 4 less line 5)
|
|
|
7.
|
Less Previous Payments:
|
$
|
|
8.
|
Current Amount Due: (line 6 less line 7)
|
$
|
|
9.
|
Pending Change Orders:
|
$
|
|
10.
|
Disputed Claims:
|
$
|
The undersigned who has a contract.with for furnishing labor or materials or both labor and materials or rental equipment, appliances or tools for the erection,
|
|
|
|
.a
|
lteration, repair or removal of a building or structure or other improvement of real property
|
|
|
|
|
|
|
|
known and identified as located in
|
(cify or town),
|
Counfy,
|
|
and owned by
|
|
upon receipt of
_
|
GSDOCS\1689479.11 5/2512007
Exhibit F Page 1 of 7
($
in payment of an invoice/requisition/application for payment dated
---------
does hereby:
|
|
|
|
(a)
|
waive any and all liens and right of lien on such real property for labor or materials, or both labor and materials, or rental equipment, appliances or tools, performed or furnished throngh the followiog date (payment period), except for retainage, unpaid agreed or pending change orders, and disputed claims as stated above;
|
|
|
|
|
(b)
|
subordinate any and all liens and right of lien to secure payment for such unpaid, agreed or pending change orders and disputed claims, and such further labor or materials, or both labor and materials, or rental equipment, appliances or tools, except for retainage, performed or furnished at any time through the twenty-fifth day after the end of the above payment period, to the extent of the amount actually advanced by the above lender/mortgagee through such twenty-fifth day.
|
Signed under the penalties of perjury this
day of
·· 20_.
WITNESS: CONTRACTOR:
GSDOCS\1689.479.Il 5/2512007
Name: Title:
Exhibit F
Page 2 of 7
SUBCONTRACTOR'S LIEN WAIVER
General Contractor:
Subcontractor:
Owner: Project:
Total Amount Previously Paid: $ Amount Paid This Date: $
Retainage (Including This Payment) Held to $ Date:
In
consideration of the receipt of the amount of payment set forth above and any and all past payments received from the Contractor in connection with the Project, the ·undersigned acknowledges and agrees that it has been paid all sums due for all labor, materials and/or equipment furnished by the undersigned to or in connection with the Project and the undersigned hereby releases, discharges, relinquishes and waives any and all claims, suits, liens and rights under any Notice ofidentification, Notice of Contract or statement of account with respect to the Owner, the Project and/or against the Coutractor on account of any labor, materials and/or equipment furnished through the date hereof.
The undersigned individual represents and warrants that he is the duly authorized representative of the undersigned, empowered and authorized to execute and deliver this document on behalf of the undersigned and that this document binds the undersigned to the extent that the payment referred to herein is received.
The undersigned represents and warrants that it has paid in full each and every snb snbcontractor, laborer and labor and/or material supplier with whom undersigned has dealt in connection with the Project and the undersigned agrees at its sole cost and expense to defend, indemnify and hold harmless the Contractor against any claims, demands, suits, disputes, damages, costs, expenses (including attorneys' fees), liens and/or claims of!ien made by such sub-subcontractors, laborers and labor and/or material suppliers arising out of or in any way related to the Project. This document is to take effect as a sealed instrument.
Signed under the penalties of perjury as of this
day of
, 20_.
SUBCONTRACTOR:
WITNESS:
Name: Title:
Dated:
Signature and Printed Name of Individual
Signing this Lien Waiver
CONTRACTOR'S WAIVER OF CLAIMS AGAINST OWNER AND ACKNOWLEDGMENT OF FINAL PAYMENT
Commonwealth of Massachusetts Date:
OWNER: CONTRACTOR: PROJECT:
|
|
|
|
|
|
|
I .
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Original Contract Amount:
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$
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2.
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Approved Change Orders:
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$
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3.
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Adjusted Contract Amount:
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$
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4.
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Sums Paid on Account of Contract Amount:
$
,.----
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5.
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Less Final Payment Due:
$
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The undersigned being duly sworn hereby attests that when the Final Payment
Due as set forth above is paid in full by Owner, such payment shall constitute payment in full for all labor, materials, equipment and work in place furnished by the undersigned in connection with the aforesaid contract and that no further payment is or will be due to the undersigned.
The undersigned hereby attests that it has satisfied all claims against it for items, including by way of illustration but not by way oflimitation, items of: labor, materials, insurance, taxes, union benefits, equipment, etc. employed in the prosecution of the work of said contract, and acknowledges that satisfaction of such claims serves as an inducement for the Owner to release the Final Payment Due.
The undersigned hereby agrees to indemnify and hold harmless the Owner from and against all claims arising in connection with its Contract with respect to claims for the furnishing of labor, materials and
equipment by others. Said indemnification and hold harmless shall include the reimbursement of all actuaI attorney's fees and all costs and expenses of every nature, and shall be to the fullest extent permitted by law.
The undersigned hereby irrevocably waives and releases any and all liens and right oflien on such real property and other property of the Owner for labor or materials, or both labor and materials, or rental equipment; appliances or tools, performed or furnished by the undersigned, and anyone claiming by, through, or under the undersigned, in connection with the Project.
The uudersigned hereby releases, remises and discharges the Owner, any agent of the Owner and their respective predecessors, successors, assigns, employees, officers, shareholders, directors, and principals, whether disclosed or undisclosed (collectively "Release es") from and against any and all claims, losses, damages, actions and causes of action (collectively "Claims") which the undersigned and anyone claiming by, through or under the undersigned has or may have against the Releasees, including, without limitation, any claims arising in connection with the Contract and the work performed thereunder.
Notwithstanding anything to the contrary herein, payment to the undersigned of the Final Payment Due sum as set forth above, shall not constitute a waiver by the Owner of any of its rights nuder the contract including by way of illustration but not by way of limitation guarantees and/or warranties. Payment
will
not be made until a signed waiver is returned to Owner.
The undersigned individual represents and warrants that he/she is the duly authorized representative of the undersigned, empowered and authmized to execute and deliver this document on behalf of the undersigned.
Signed under the penalties of perjury as a sealed instrument as of this _ day of
By: Name: Title:
Hereunto duly authorized
COMMONWEALTH OF MASSACHUSETTS COUNTY OF SUFFOLK
On this _ day of , 20_, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it as for
, a corporation/partnership voluntarily for its stated purpose.
NOTARY PUBLIC
My Commission Expires:
EXHIBIT G
FORM OF LETTER OF CREDIT
BENEFICIARY: ISSUANCE DATE:
------
200
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
ACCOUNTEE/APPLICANT: MAXIMUM/AGGREGATE
CREDIT AMOUNT: US$
-----
USD:
LADIES AND GENTLEMEN:
We hereby establish our irrevocable letter of credit
in
your favor for account of the applicant up to.an aggregate an1ount not to exceed and
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_)100 US Dollars (US $
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available by your draft(s) drawn on ourselves at sight accompanied by:
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Your statement, signed by a purportedly authorized officer/official certifying that the Beneficiary is entitled to draw upon this Letter of Credit (in the amount of the draft submitted herewith) pursuant to the Lease (the "Lease") dated by and between , as Landlord, and , as Tenant, together with the original copy of this Letter of Credit and any amendments thereto which have been accepted by you.
Draft(s) must indicate name and issuing bank and credit number and must be presented at this office.
Yon shall have the right to make partial draws against this Letter of Credit, from time to time.
This Letter of Credit is transferable at any time and from time to time without cost to Beneficiary.
Except as otherwise expressly stated herein, this Letter of Credit is subject to the "Uniform Customs and practice for Documentary Credits, International Chamber of Commerce, Publication No. 500 (1993 Revision)."
GSDOCS\1689479.1 1 5/25/2007
Exhibit G
Page I of 2
This Letter of Credit shall expire at our office on , 200_ (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 period s 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 you at the address specified in this Letter of Credit (or at such other address of which you may have notified us in writing) and the Accouutee/Applicant in writing by registered mail (return receipt) that we elect not to consider this Letter of Credit extended for any such additional one (1) year period.
GSDOCS\1689479,11 5125/2007
Exhibit G Page 2 of 2
EXHIBIT G-1
ALTERNATE APPROVED FORM OF LETTER OF CREDIT
See attached
GSDOCS\1689479.1 1 5125/2007
Exhibit G Page 3 of 2
EXHIBIT H
FORM OF NOTICE OF LEASE
Notice is hereby given, pursuant to the provisions of Chapter 183, Section 4 of the General Laws of Massachusetts, of the following Lease:
LANDLORD:
TENANT:
DATE OF
EXECUTION OF LEASE:
DESCRIPTION OF
DEMISED P
REMISES:
TERM OF
L
EASE:
BP Fourth Avenue, L.L.C.,
a Delaware limited liability company
Pittiglio, Rabin, Todd
&
McGrath, Inc., a Massachusetts corporation
---- 2007
The entire fifth (5'h ) floor of the building, known as and numbered
77
Fourth Avenue, Waltham, Massachusetts (the "Building"), being situated on a parcel of land more particularly described in Exhibit A attached hereto and made a part hereof.
The Term of the Lease shall commence on the Commencement Date and expire on the last day of tbe one hundred twentieth
(120'h)
calendar month after the Rent Commencement Date (plus the partial month, if any, immediately following the Commencement Date).
COMMENCEMENT
DAT
E
:
The Commencement Date shall be he earlier of (a) the
Substantial Completion Date as defined in Section 3.1 of the Lease or (b) if the Substantial Completion Date has not occurred, but Landlord.gives Tenant access to commence
Tenant's Work, the date snch access is given. The Commencement Date has not yet been determined
RENT COMMENCEMENT DATE:
RIGHTS OF EXTENSION
OR R
ENEWAL:
As defined in Section 1.1 of the Lease. The Rent Connnencement Date has not yet been determined.
Tenant shall have the right to extend the Term of the Lease for two (2) periods of five (5) years each, subject to fue provisions set forth in said Lease.
Exhibit H
Page 1of 4
RIGHTS OF FIRST O
FFER: Tenant has certain Rights of First Offer to lease space on
the fourth (
4'h)
and sixth
(6tl')
floors of the Building as more fully set forth in the Lease.
OTHER P
ROVISIONS: Said lease contains additional rights, tenns and conditions
not enumerated in this instrument. This instrument is executed pursuant to the provisions of said lease and is not intended to vary said rights, terms and conditions.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this _ day of
2007.
LANDLORD: TENANT:
BP FOURTH AVENUE,
L.L.C.,
a Delaware limited liability company
PITTIGLIO, RABIN, TODD
&
MCGRATH, INC., a Massachusetts corporation
By: Boston Properties Limited Partnership, its sole member
By:._
N
ame: -------
Title:
_
By: ---------
Name:
_
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Title:.
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_ Hereunto duly authorized
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COMMONWEALTH OF MASSACHUSETTS
County of Suffolk, ss.
On this _ day of , 2007, before me, the undersigned Notary Public, personally appeared , proved to me through satisfactory evidence of identification, namely a driver's license issued by the Commonwealth of Massachusetts, to be the person whose name is signed on the preceding document, and acknowledged to me that he/she signed it voluntarily for its stated purpose as of Boston Properties, Inc.
Notary Public
My Commission Expires:
COMMONWEAL TH OF MASSACHUSETTS
County of Suffolk, ss.
On this _ day of , 2007, before me, the undersigned Notary Public, personally appeared , proved to me through satisfactory evidence of identification, namely a , to be the person whose name is signed on the preceding document, and acknowledged to me that he/she signed it voluntarily for its stated purpose as of Pittiglio, Rabin, Todd
&
McGrath, Inc.
Notary Public
My Commission Expires:
Exhibit H
Page 3 of 4
Exhibit A to Notice of Lease
Legal Description
Exilibit H Page 4 of 4
EXHIBIT I
FORM OF CONFIDENTIALITY AGREEMENT
_, 200_
Tenant Address
City, State, Zip
Re: Lease dated (as amended from time to time, the "Lease")
between
as Tenant and as Landlord for premises at
(the "Property")
Ladies and Gentlemen:
Section _ of the Lease requires Tenant to provide certain financial information to
Landlord for the purpose of establishing Tenant's financial status (the "Purpose"). Tenant shall provide such information to Landlord for its review subject to and in consideration of the terms and conditions set forth below:
I.
All information provided by Tenant to Landlord pursuant to this letter, whether oral or written, shall be hereinafter referred to as the "Evaluation Material.
11
The Evaluation Material shall be handled by Landlord in a confidential manner. Landlord shall establish procedures that assure that such Evaluation Material shall remain confidential while in its possession.
2.
The Evaluation Material shall be used by Landlord only for the Purpose. To this end, Landlord may disclose the same to
its
affiliates, partners,·officers, directors, outsde advisors and employees, provided, however, that each such party who has access to the Evaluation Material is infom1ed of Landlord's obligations under this agreement. Except to the extent required by applicable law or by any administrative, governmental orjudicial proceeding, the Evaluation Material may not be disclosed to any other third party without the prior written consent of Tenant.
3.
Landlord acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this agreement and that Tenant shall be entitled to seek specific performance as a remedy for any such breach. However, such remedy of specific performance and/or injunction relief shall not be exclusive, but shall
be
in addition to all other remedies available to Tenant at law, in equity or otherwise. Notwithstanding the foregoing, in no event shall Landlord be liable for indirect or consequential damages under this agreement.
4.
Landlord agrees to indemnify, defend and hold Tenant harmless, from and against any and all claims, causes of action, expenses, fees (including attorney's fees) arising out of Landlord's actual breach of the provisions of this agreement as determined in appropriate legal proceedings.
Exhibit I Page I
of 2
5.
This letter sets fo1th the entire agree1nent of the parties with respect to the subject matter hereof and supersedes all prior understandings
(v.
1
hether written, verbal, i111plied or otherwise) \vith respect thereto. No ten11or condition of this agree1nent 1nay be waived or otherwise modified except by a writing executed by both parties.
6.
This agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. This agreement shall terminate one
(I)
year from the date hereof.
Very truly yours, [Landlord]
(Insert Company Name Here)
By:
Name:
_
Its:
_
AGREED TO AND ACCEPTED:
[Tenant]
(Insert
Company Narne Here)
By:
_
Name:------------
Its:
_
Date:
_
Exhibit
I
Page 2 of 2
EXHIBIT
J
BROKER DETERMINATION OF ANNUAL MARKET RENT
Where in the Lease to which this Exhibit is attached provision is made for a Broker Determination of Annual Market Rent, the following procedures and requirements shall apply:
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1.
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Definition of Annual Market R
ent. "Annual Market Rent" shall mean the annual fair market rental value of the Initial First Offer Space or the First Offer Space for the Initial Tenn or of the Premises for the Extended Term, as applicable. Such annual fair market rental value detennination shall be the annual amount per rentable square foot that a willing, comparable, new, non-renewal, non-equity,
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non-expansion tenant of credit quality similar to Tenant would pay, and a willing, comparable landlord of the Building or a comparahle office building in the Class A Central 128 Area Market would accept, at arms' length and (a) may include provision for annual increases iu rent during said Extended Term if so
determined, (b) shall take account of, and be expressed in relation to, the payment in respect of taxes and operating costs and provisions for paying for so-called tenant electricity as contained
in
the Lease, and (c) shall take into account all relevant factors.
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2.
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Tenant's R
eguest. Tenant shall send a notice to Landlord in accordance with Sections 2.1.1, 2.1.2 or 8.20 of the Lease, as applicable, requesting a Broker Determination of the Annual Market Rent, which notice to be effective must (i) make explicit reference to the Lease and to the specific section of the Lease pursuant to which said request is being made, (ii) include the name of a broker selected by Tenant to act for Tenant, which broker shall be affiliated with a major metropolitan Boston commercial real estate brokerage finn selected by Tenant and which broker shall have at least ten
(I
0) years experience dealing in properties of a nature and type generally similar to the Building located in the Waltham!Central 128 Market Area,
(iii)
state Tenant's determination of Annual Market Rent, and (iv) explicitly state that Landlord is required to notify Tenant
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within thirty (30) days of an additional broker selected by Landlord, together with Landlord's determination of Annual Market Rent.
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2.
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Landlord's R
esponse. Within thirty (30) days after Landlord's receipt of Tenant's notice requesting the Broker Determination and stating the name of the broker selected by Tenant, Landlord shall give written notice to Tenant of Landlord's selection of a broker having at least the affiliation and experience referred to above and Landlord's determination of Annual Market Rent.
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3.
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Determination by Landlord's Broker and Tenant's B
roker. Landlord's broker and Tenant's broker shall have thirty (30) days to agree in writing on whether Landlord's determination of Annual Market Rent or Tenant's determination of
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GSDOCS\1689479.1 I 5/25/2007
Annual Market Rent more closely reflects the actual Annual Market Rent. Upon such agreement, the determination so chosen shall be the Annual Market Rent.
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4.
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Selection of Third B
roker.
If
Landlord's broker and Tenant's broker are not able to agree within such thirty (30) day period, then within ten
(I
0) days thereafter the two (2) brokers shall select a third such broker also having at least the affiliation and experience refened to above.
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5.
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Determination by Third Broker. Within thirty (30) days after the selection of the third broker, the third broker shall decide in writing whether Landlord's detem1ination of Annual Market Rent or Tenant's determination of Annual Market Rent more closely reflects the actual Annual Market Rent. Upon such decision, the detem1ination so chosen shall be the Annual Market Rent.
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6.
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Costs. Each party shall pay the costs and expenses of the broker selected by it and each shall pay one half
(l
/2) of the costs and expenses of the third broker.
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EXHIBIT K
CONFERENCE CENTER
TSOI/KOBUS
&
ASSOCIATES
Construction Change
Authorization
One Brnttle Square
P.O. Box 9114
Cambridge, MA 02238-9ll4 Tel. 617 475-4000
Fax 617 475-4245
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Project:
Boston Properties
77 Fourth Avenue Prospect Hill
\Valtham, MA 02451
Owner:
Boston Properties
111
Hm1tington
Avenue
Boston, MA 02119
|
Construction
Change Authorization No.:
35
(2]
Owner: Boston Properties
lZJ
Architect: Tsoi
I
Kobus
&
Associates
(2]
Contrd' ctor: William A. Berry
&
Son
0
Consultant: TMP, CDA
0fald:
0
Otliero
|
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Construction Manager:
William A. Berry
&
Son, rnc.
Date:
May 22, 2007
Project No.:
26003.00
Description:
Furnish and Install four (4) floor boxes and connecting raceways as indicated. Provide the SLP finish for the carpet edging
Attaclutrents:
ASK-17,AV I.OB
and cut sheet for the FL-600P Floor Box
D
No Change in Cost or Time
The Work shall be carried out in accordance
with
the described supplemental instructions issued in accordance
with
the Contract Documents without change in Contract Sum or Contract T'rme. Prior to proceeding in accordance with these instructions, indicate your acceptance of these instructions for minor change to the Work as consistent with the Contract Documents and return a copy to the Architect within
10
working days,
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0
Estimate of Change in Cost/Time, Proceed with Work
In order to
expedite the
Work and avoid or minimize
delays in
the Work
which
may affect Contract Sum or Contract Time,
the
Contract Documents are hereby amended as described above. Proceed with this Work promptly. Submit final costs for Work involved and change in Contract Time
(if
any), for inclusion in a subsequent Change Order.
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l2J
Estimate of Change in Cost/Time, Do Not Proceed
with
Work
Please submit
a
proposal showing itemized cost breakdown of labor and materlal for the proposed change, showing either credit or extra cost to the Contract time, prior to proceeding
with
this work. Do not proceed with this work unless authorized by the Owner in writing.
|
Issued:
Tsai/Kobus
&
Associates
Confirmed:
William A, Berry & Son
Authorized:
Boston Properties
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By:
|
David
R
DeFi!ioqo
|
By.
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By:
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Date:
|
5/2 1/
0
7
_
|
Date:
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Dote:
|
I _ ,
The FL-600P floor box is designed for conference roams,
auditoriums, courtrooms, churches and all general meeeting
space
with carpeted floors over concrete. This floor box handles power, audio, video, tefecommunications
and data in one elegant and practical box.
The FL-600P is not only UL and CUL Listed but has also passed the latest UL test for scrub water. Because of FSR's unique engineering and manufacturing ability, FSR boxes passed for carpeted floors
as we// as
tile and wood!
The lift-off section of the cover allows full access to internal connector plates and stored cables, and the smaller hinged cable
access
door flips back to create the cable exit.
When the box is not in
use,
the box is completely closed
allowing unencumbered travel in the area with only the hand-mitered, elegant carpet edge visible. The low profile edging is 114" high and
is
available in brass or aluminum.
Inside the box are two angled brackets which handle stan dard size plates
-
2
single, 1 triple, 1 six gang opening. All are isolated for maximum safety. The FL-600P
is
designed to handle the rigors of a floor environment and
still maintains flexibility and elegance.
Note: This box is not applicable for contact with grade (soil or gravel).
s;ze:
Box: 13.5"
x 12"
x depth
Cover:
14" x
12.5"
x
.125"
Edging: Height:
.25"
Material: Brass or Aluminum
Weight: Box:
20.5
lbs. Cover: 10 lbs. Knockouts:
Fourteen: either 1" or 1.25"
Four: either .75" or
.5"
FL-600P-X -Y
X
=
Cover Details
BLP Brass
.25"
carpet flanges
SLP Aluminum
.25"
carpet flanges Y= Floor box depth
-
4 or 6 inches
Example: FL-600P-BLP is an FL-600P floor box with an brass
.25"
carpet flange.
FSR Inc.
244 Bergen Boulevard, West Paterson, NJ 07424
Phone: 973.785.4347
· Fax:
973.785.4207
Web: www.fsrfnc.com
. E-mail: safes@fsrinc.com
Order Desk: 1-800-332-FSRi
CONFERENCE CENTER OCCUPANCY: 60 PEOPLE
EXHIBIT L
MONUMENT SIGN CONCEPTUAL PLAN
1'' brushed stai nless steel logo attached to
Painted alumi num panel
pai nted tenant logo panel attached to pai nted alumi num panel
pai nted panels are attached to stone wall
SIGN TYPES
bui ld i ng
i d en t i ty 4 . 2 5 . 87
s
EXHIBIT M
INFRASTRUCTURE IMPROVEMENTS CONCEPTUAL PLAN
EXHIBIT D
FORM OF
LETTER
OF CREDIT
[ATTACHED]
38
7553
1
0
\'
6 EXECUT
I
ON
VERSION
Bankof America
BAN
K
OF
AM
ERICA
-
C
ON
FIDENTI
AL P
A
G
E
:
1 DATE
:
JULY 18, 2014
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER
:
68103891
ISSUING BAN
K
BANK OF AMERICA
,
N
.
A
.
ONE FLEET WAY
PA6-580-02-30
SCRANTON, PA 18507
-
1999
BENEFICIARY PRICEWATERHOUSECOOPERS PRTM MANAGEMENT CONSULTANTS, LLC
4
0
4
0 WES
T
BOY SCOUT BOULEVARD TAMPA, FL 33607
APPLICANT CARE
.
COM
,
INC
201 JONES STREET, SUITE 500
WALTHAM, MA 02451
ATTN
:
NATIO
N
AL REAL ESTATE
-
LEASE ADMIN
AMOUNT
NOT EXCEEDING USD 239
,
200.58
NOT EXCEEDING TWO HUNDRED THIRT
Y
NINE THOUSAND TWO HUNDRED
AND
5
8/
l
OO'S US DOLLARS
EXPIRATIO
N
JUL
Y
17,
2
015 A
T
OUR COUNTERS
GENTLE
M
EN
:
WE HEREBY ISSUE THIS IRREVOCABLE LETTER OF CREDIT NO. 68103891 IN YOUR FAVOR, FOR THE ACCOUNT OF APPL
I
CANT, FOR UP TO AN AGGREGATE
AMOUNT OF USD TWO HUNDRED THIRT
Y
NINE THOUSAND TWO HUNDRED AND 58/100 (USD239,
2
00
.
58) AVAILABLE BY YOUR DRAFT(S) DRAWN ON US
A
T SIGHT, ACCOMPANIED BY THE FOL
.
LOWING:
l
.
BENEFICIARY
'
S WRITTEN, DATED STATEMENT ON BENEF
I
CIARY LETTERHEAD SIGNED BY AN AUTHORIZED SIG
N
ATORY READING
:
QUOTE
SIGNATOR IS
AN
AUTHOR
IZ
E
D
SIGNA
T
OR
Y
OF THE BENEFICIARY
;
SUCH MONIES ARE DUE AND OWING TO BENEFICIARY UNDER THE TERMS
O
F THAT CERTAIN SUBLEASE BETWEEN CARE.COM
,
INC
.
AND PR
I
CE
W
ATERHOUSECOOPERS PRT
M
MANAGEMENT CONSULTANTS
,
LLC FOR OFFICE SPACE LOCA
T
ED AT 77 CITYPOINT
, W
ALTHAM
,
MASS
A
CHUSETTS
.
2
.
THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT (S)
,
IF ANY.
O
R
IGINAL
Bankof America
BANK OF AMERICA - CONFIDENTIAL PAGE: 2
THIS IS
AN
INTEGRAL PART OF LETTER OF CREDIT NUMBER: 68103891 PARTIAL DRAWINGS AND MULTIPLE DRAWINGS ARE PERMITTED.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT IS DEEMED TO BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR PERIOD(S) OF ONE YEAR EACH FROM THE CURRENT EXPIRY DATE HEREOF, OR ANY FUTURE EXPIRATION DATE, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO
ANY
EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT COURIER AT THE ABOVE LISTED ADDRESS THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT EXTENDED FOR ANY SUCH ADDITIONAL PERIOD
.
ANY SUCH NOTICE SHALL BE EFFECTIVE WHEN SENT BY US AND UPON SUCH NOTICE TO YOU
,
YOU MAY DRAW AT ANY TIME PRIOR
TO
THE THEN CURRENT EXPIRAT
I
ON DATE
,
UP TO THE FULL AMOUNT
THEN
AVAILABLE HEREUNDER, AGAINST YOUR DRAFT (S) DRAWN ON US ATSIGHT AND THE ORIGINAL OF THIS LETTER OF CREDIT
AND
ALL AMENDMENTS THERETO, ACCOMPANIED BY YOUR STATEMENT, SIGNED BY AN AUTHORIZED SIGNATORY, ON YOUR LETTERHEAD STATING THAT YOU ARE IN RECEIPT OF BANK OF AMERICA, N.A.
'S
NOTICE OF NONEXTENSION UNDER LETTER OF CREDIT NO
.
68103
8
91 AND THE APPLICANT'S OBLIGATION TO YOU REMAINS
.
THIS LETTER OF CREDIT IS TRANSFERABLE IN FULL AND NOT IN
PART
.
ANY TRANSFER MADE HEREUNDER MUST CONFORM STRICTLY
·ro
THE TERMS HEREOF
AND
TO THE CONDITIONS OF RULE 6 OF THE INTERNATIONAL STANDBY PRACTICES
(ISP98) FIXED BY THE INTERNATIONAL CHAMBER OF COMMERCE
,
PUBLICATION NO. 590
.
SHOULD YOU WISH TO EFFECT A TRANSFER UNDER THIS CREDIT, SUCH TRANSFER WILL BE SUBJECT TO THE RETURN TO US OF THE ORIGINAL CREDIT INSTRUMENT, ACCOMPANIED BY OUR FORM OF TRANSFER, PROPERLY COMPLETED AND SIGNED BY AN AUTHORIZED SIGNATORY OF YOUR FIRM
,
BEARING YOUR BANKERS STAMP AND SIGNATURE AUTHENTICATION
.
SUCH TRANSFER FORM IS ATTACHED AS EXHIBIT A
.
ALL TRANSFER FEES ARE FOR THE ACCOUNT OF APPLICANT.
DRAFT (S) MUST STATE "DRAWN UNDER BANK OF AMERICA, N
.
A
.
STANDBY
L/C NO
.
68103891 DATED JULY 18, 2014.
II
DRAFTS AND DOCUMENTS
MUST
BE PRESENTED AT OUR OFFICE IN PERSON, OR VIA OVERNIGHT COURIER, OR VIA EXPRESS MAIL TO
:
BANK OF AMERICA,
N.A.,
1 FLEET WAY, SCRANTON, PA 18507
-
1999,
ATTN: GTO - STANDBY DEPT
.
WE HEREBY AGREE
WITH YOU
THAT DRAFT (S) DRAWN UNDER AND IN COMPLIANCE WITH
THE
TERMS OF THIS
LETTER
OF
CREDIT
SHALL BE DULY HONORED UPON DUE PRESENTATION TO US
.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (ISP98), THE INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590 AND THE
LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS
.
IN THE EVENT OF A CONFLICT, THE LAWS OF
THE
COMMONWEALTH OF MASSACHUSETTS
BANK OF AMERICA
-
CONFIDENTIAL PAGE
:
3
THIS
IS
AN INTEGRAL
PART
OF
LETTER
OF CREDIT NUMBER: 68103891 WILL
PREVAIL.
IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY
QUESTIONS
REGARDING THIS
TRANSACTION,
PLEASE CALL
800-370-7519
OPT
1
.
AUTHO ZED
SIGNATURE
THIS
DOCUMENT CONSISTS
OF
3 PAGE(S).
Bank of America
N.A. 1
Fleet Way,
Scranton
,
PA
18507
Mail Code PA6-580-02-30
Attn
:
Trade
Services - Standby Unit
T
RANS
FER
FORM
EXHIBIT A
Re
:
I
rrevocable Standby
Letter
of Credit No
.
_
We request you
t
o
transfer all of
our
rights as beneficiary under the Letter
of
Credit referenced above to the transferee
,
named below
:
Name of Transferee
Address
By this transfer all our rights
as
the transferor, including all
r
ig
hts
to make drawings under
the
Letter
of
Credit
,
go to the transferee
.
The
transferee shall have sole rights as beneficiary, whether existing now or
in the future,
including
sole rights
to
agree to any amendments, including
increases or
extensions
or
other changes
.
All amendments will be sent directly to the transferee without
the
necessity
of
consent by or notice to us
.
We enclose the
original
letter of credit and any amendments. Please
in
dicate
your acceptance of our request for the transfer
by
endorsing
the
letter of credit and sending it to the transferee with your
customary
notice
of
transfer
.
NAME OF
TRAN
SFEROR
|
|
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The signature
and
title at
the
right
conform
with
those
shown
in our
files as authorized to sign for the beneficiary
.
Policies governing s
i
gnature
authorization
as
required for withdrawals from customer accounts
shall
also
be
applied to
the
authorization
of
signatures on this fonn.
The
authorization
o
f
the Beneficiary's signature and
tl1le
on this fonn also acts
to
certify that the
authorizing
financial
Institut on
(I)
I
s
regulated
by
a U
.
S. federal banking agency;
(ii)
has
Implemented
antHnoney laundering
policies
and
procedures that
comply
with applicable requirements
of
law,
Including
a Customer Identification Program
(CIP)
n
accordance with Section 326 of the USA PATRIOT Act
;
(ill) has approved the Beneficiary underlts anti-money laundering
compliance
program; and (Iv) acknowledges that Bank of America, N.A
.
ts
relying on the
f
oregoing certifications pursuant to 3
1
C
.
F.R. Section
103.121
(b)(6).'
'
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NAME OF BANK
|
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AUTHORIZED SIGNATURE AND TITLE
|
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PHONE NUMBER
|
NAME OF AUTHOR
I
ZED SIGNER AND TITLE
AUTHORIZED SIGNATURE
