EXHIBIT 10.2
NORTHWEST PARK
LEASE
BY AND BETWEEN
MTP LIMITED PARTNERSHIP
(LANDLORD)
AND
ACME PACKET, INC.
(TENANT)
AT 00 XXXXX XXXXXX
XXXXXXXXXX, XXXXXXXXXXXXX
TABLE OF CONTENTS
TABLE OF CONTENTS 2
ARTICLE 1 REFERENCE DATA 4
1.1 SUBJECT REFERRED TO 4
1.2 EXHIBITS 5
ARTICLE 2 PREMISES AND TERM 6
2.1 PREMISES 6
2.2 TERM 6
ARTICLE 3 IMPROVEMENTS 6
3.1 PERFORMANCE OF WORK AND APPROVAL OF LANDLORD'S WORK 6
3.2 ACCEPTANCE OF THE PREMISES 7
3.3 TENANT'S WORK 7
3.4 ALLOWANCE 7
ARTICLE 4 RENT 7
4.1 THE FIXED RENT 7
4.2 ADDITIONAL RENT 8
4.2.1 REAL ESTATE TAXES 8
4.2.2 PERSONAL PROPERTY TAXES 8
4.2.3 OPERATING COSTS 8
4.2.4 INSURANCE 10
4.2.5 UTILITIES 11
4.3 LATE PAYMENT OF RENT 11
4.4 LETTER OF CREDIT 11
4.4.1 AMOUNT OF LETTER OF CREDIT 11
4.4.2 RENEWAL OF LETTER OF CREDIT 11
4.4.3 DRAWS TO CURE DEFAULTS 11
4.4.4 DRAWS TO PAY DAMAGES 11
4.4.5 DRAWS FOR FAILURE TO DELIVER SUBSTITUTE LETTER OF CREDIT 12
4.4.6 TRANSFERABILITY 12
4.4.7 RETURN OF LETTER OF CREDIT AT END OF TERM 12
ARTICLE 5 LANDLORD'S COVENANTS 12
5.1 AFFIRMATIVE COVENANTS 12
5.1.1 HEAT AND AIR-CONDITIONING 12
5.1.2 ELECTRICITY 12
5.1.3 WATER 12
5.1.4 FIRE ALARM 12
5.1.5 REPAIRS 12
5.1.6 LANDLORD'S INSURANCE 12
5.1.7 LANDLORD'S INDEMNIFICATION 12
5.2 INTERRUPTION 13
ARTICLE 6 TENANT'S ADDITIONAL COVENANTS 13
6.1 AFFIRMATIVE COVENANTS 13
6.1.1 PERFORM OBLIGATIONS 13
6.1.2 USE 13
6.1.3 REPAIR AND MAINTENANCE 13
6.1.4 COMPLIANCE WITH LAW 13
6.1.5 INDEMNIFICATION 14
6.1.6 LANDLORD'S RIGHT TO ENTER 14
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK 14
6.1.8 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT 14
6.1.9 YIELD UP 14
6.1.10 RULES AND REGULATIONS 15
6.1.11 ESTOPPEL CERTIFICATE 15
6.1.12 LANDLORD'S EXPENSES RE CONSENTS 15
6.2 NEGATIVE COVENANTS 15
6.2.1 ASSIGNMENT AND SUBLETTING 15
6.2.2 NUISANCE 16
6.2.3 HAZORDOUS WASTES AND MATERIALS 16
6.2.4 FLOOR LOAD; HEAVY EQUIPMENT 16
6.2.5 INSTALLATION, ALTERATIONS OR ADDITIONS 16
6.2.6 ABANDONMENT 17
6.2.7 SIGNS 17
6.2.8 PARKING AND STORAGE 17
ARTICLE 7 CASUALTY OR TAKING 17
7.1 TERMINATION 17
7.2 RESTORATION 17
7.3 AWARD 18
ARTICLE 8 DEFAULTS 18
8.1 EVENTS OF DEFAULT 18
8.2 REMEDIES 18
8.3 REMEDIES CUMULATIVE 19
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS 19
8.5 EFFECT OF WAIVERS OF DEFAULT 19
8.6 NO WAIVER, ETC. 19
8.7 NO ACCORD AND SATISFACTION 19
ARTICLE 9 RIGHTS OF MORTGAGE HOLDERS 19
9.1 RIGHTS OF MORTGAGE HOLDERS 19
9.2
LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES 19
ARTICLE 10 MISCELLANEOUS PROVISIONS 20
10.1 NOTICES FROM ONE PARTY TO THE OTHER 20
10.2 QUIET ENJOYMENT 20
10.3
LEASE NOT TO BE RECORDED 20
10.4 LIMITATION OF LANDLORD'S LIABILITY 20
10.5 ACTS OF GOD 20
10.6 LANDLORD'S DEFAULT 20
10.7 BROKERAGE 20
10.8 APPLICABLE LAW AND CONSTRUCTION 20
3
NORTHWEST PARK
LEASE
ARTICLE 1
REFERENCE DATA
1.1 SUBJECT REFERRED TO.
Each reference in this
Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section
1.1.
DATE OF THIS
LEASE: July 10, 2006
BUILDING: The single story Building containing
approximately 29,227 rentable square
feet located in Northwest Park in
Burlington,
Massachusetts (hereinafter
referred to as the "Park") located at
and known as 00 Xxxxx Xxxxxx (the
Building and such parcel of land
hereinafter being collectively referred
to as the "Property").
PREMISES: The entire Building, substantially as
shown on Exhibit A attached hereto.
RENTABLE FLOOR
AREA OF PREMISES: Approximately 29,227 rentable square
feet
LANDLORD: MTP Limited Partnership
ORIGINAL NOTICE
ADDRESS OF LANDLORD: c/x Xxxxxxxx Management Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Acme Packet, Inc., a Delaware Corporation
ORIGINAL NOTICE 00 Xxxxx Xxxxxx
XXXXXXX XX XXXXXX: Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
EXPIRATION DATE: June 30, 2010
COMMENCEMENT DATE: The date of this
Lease.
DELIVERY DATE: The date which is the latest to occur of
(i) ninety (90) days from full execution
of this
Lease, (ii) Landlord's final
approval of the plans for Tenant's Work
(defined in Section 3.3) and (iii)
issuance of a building permit from the
Town of Burlington.
RENT COMMENCEMENT DATE: September 1, 2006
ANNUAL FIXED RENT RATE: September 1, 2006 - August 31, 2007 $321,492.00
September 1, 2007 - August 31, 2008 $350,724.00
September 1, 2008 - June 30, 2010 $379,944.00
MONTHLY FIXED RENT RATE: September 1, 2006 - August 31, 2007 $26,791.00
September 1, 2007 - August 31, 2008 $29,227.00
September 1, 2008 - June 30, 2010 $31,662.00
LETTER OF CREDIT AMOUNT: $100,000.00, subject to reduction
pursuant to Section 4.4.
ALLOWANCE: $50,000.00
TENANT'S PERCENTAGE: The ratio of the Rentable Floor Area of
the Premises to the total rentable area
of the Building, which shall initially
be deemed to be 100%.
INITIAL ESTIMATE OF
TENANT'S PERCENTAGE OF
TAXES FOR THE TAX YEAR: $46,560.00
4
INITIAL ESTIMATE OF
TENANT'S PERCENTAGE OF
OPERATING COSTS FOR THE
CALENDAR YEAR: $62,640.00
PERMITTED USES: General offices, research and
development and light manufacturing, and
shipping and receiving ancillary
thereto.
PUBLIC LIABILITY INSURANCE LIMITS:
COMMERCIAL GENERAL LIABILITY:
$3,000,000 per occurrence
$5,000,000 general aggregate
1.2 EXHIBITS
The Exhibits listed below in this section are incorporated in this
Lease
by reference and are to be construed as a part of this
Lease.
EXHIBIT A Plan showing the Premises
EXHIBIT B Description of Landlord's Work
EXHIBIT B-1 Space Plan Showing Tenant's Work
EXHIBIT C Work Change Order
EXHIBIT D Rules and Regulations
EXHIBIT E Form Tenant Estoppel Certificate
EXHIBIT F Form of Letter of Credit
5
ARTICLE 2
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, subject to and with the benefit of the terms, covenants,
conditions and provisions of this Lease, the Premises, excluding the use
of the roof of the Building for telecommunications equipment, Landlord
reserving the right, from time to time, without unreasonable interference
with Tenant's use of the Premises, to install, use and repair
telecommunications equipment on the roof of the Building. Except in the
case of an emergency, Landlord shall use reasonable efforts to provide
Tenant with notice prior to Landlord installation, use or repair of
telecom equipment on the roof of the Building. Tenant shall have, as
appurtenant to the Premises, rights to use in common, subject to
reasonable rules from time to time made by Landlord of which Tenant is
given notice: (a) the common walkways and driveways necessary for access
to the Building and (b) the common parking areas serving the Building. As
of the date of this Lease, the Premises are in compliance with the
Massachusetts building code.
Tenant shall be permitted to use up to 102 parking spaces in the parking
area serving the Building.
Landlord reserves the right from time to time, without unreasonable
interference with use of the Premises: (a) to install, use, maintain,
repair, replace and relocate for service to the Premises and other parts
of the Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, (b) to alter or
relocate any other common facility, (c) to make any repairs and
replacements to the Premises which Landlord may deem necessary, and (d) in
connection with any excavation made upon adjacent land of Landlord or
others, to enter, and to license others to enter, upon the Premises to do
such work as the person causing such excavation deems necessary to
preserve the wall of the Building from injury or damage and to support the
same. Except in an emergency, Landlord shall use reasonable efforts to
provide Tenant with notice prior to entering the Premises in connection
with Landlord's exercise of its rights under this paragraph.
2.2 TERM. TO HAVE AND TO HOLD for a term beginning on the Commencement Date
and ending on the Expiration Date, unless sooner terminated as hereinafter
provided.
ARTICLE 3
IMPROVEMENTS
3.1 PERFORMANCE OF WORK AND APPROVAL OF LANDLORD'S WORK. A. Landlord shall
cause to be performed the work described in Exhibit B, the "Landlord's
Work". All such work shall be done in a good and workmanlike manner
employing good materials and so as to conform to all applicable building
laws. Tenant agrees that Landlord may make any changes in such work which
may become reasonably necessary or advisable, other than substantial
changes, without approval of Tenant, provided written notice is promptly
given to Tenant; and Landlord may make substantial changes in such work,
with the written approval of Tenant, which shall not be unreasonably
withheld or delayed. Landlord agrees that Tenant may make changes in such
work with the approval of Landlord and the execution by Landlord and
Tenant of a Work Change Order, in the form attached hereto as Exhibit C.
Landlord shall use diligence to cause Landlord's Work to be Substantially
Completed (as defined in subparagraph B below) no later than the Delivery
Date, subject to the provisions of Section 10.5 hereof, and any Tenant
Delay (defined in Subparagraph C below). If Landlord fails to
Substantially Complete the Landlord's Work by the Delivery Date, and such
failure is not due to a Tenant Delay or a delay contemplated by Section
10.5 hereof, then the Fixed Rent shall be abated on a day-for-day basis
for each day during the period commencing on the Rent Commencement Date
and ending on the date on which the Landlord's Work is Substantially
Completed.
B. The term "Substantially Completed" or "Substantially Complete" as used
herein shall mean that the Landlord's Work has been completed, or is
complete, with the exception of minor items which can be fully completed
without material interference with Tenant's Work or Tenant's use of the
Premises and other items which because of the season or weather or the
nature of the item are not practicable to do at the time, provided that
none of said items is necessary to make the Premises tenantable for the
Permitted Uses; provided, however, if at the time Landlord's Work would
have been substantially completed, such work cannot be completed because
of a Tenant Delay (hereinafter defined), then, notwithstanding Landlord's
inability to actually complete Landlord's Work, such work shall be deemed
to be "Substantially Completed" on the date that such work would have been
substantially completed but for such Tenant Delay, but Landlord shall not
be relieved from the obligation to actually complete Landlord's Work.
C. For the purposes hereof, "Tenant Delay" shall be defined as any
material delay in the completion of Landlord's Work actually caused by (i)
special work or long lead-time items for which Landlord identifies a
specified period of Tenant Delay at the time of its approval of any change
orders requested by Tenant under Section 3.1 hereof for which Landlord
identifies a specified period of Tenant Delay at the time of its approval
(and Tenant does not withdraw or after such special work, long lead-time
item or change order which avoids such delay), (ii) the delay of Tenant in
preparing or submitting plans to Landlord for the Tenant's Work, or
supplying, submitting or approving any other plans, specifications or
giving
6
authorizations or supplying information reasonably required by Landlord or
its contractors in any instance to perform the Landlord's Work within such
time as shall be reasonably required for the expeditious prosecution of
the work to be performed by Landlord, (iii) any contractors employed by
Tenant including, without limitation, entities furnishing communications,
data processing or other service or equipment directly to Tenant (and not
under Landlord's contractor(s)), (iv) any failure to comply with this
Article 3 or (v) any material interference with the performance of
Landlord's Work by Tenant or any of its agents, employees, engineers or
contractors. Tenant shall pay to Landlord, within thirty days of demand,
all increased costs to Landlord for Landlord's Work that are caused by any
Tenant Delay.
3.2 ACCEPTANCE OF THE PREMISES. Tenant or its representatives may, at
reasonable times, enter upon the Premises during the progress of the work
to inspect the progress thereof and to determine if the work is being
performed in accordance with the requirements of Section 3.1. Tenant shall
promptly give to Landlord notices of any alleged failure by Landlord to
comply with those requirements. Landlord's Work shall be deemed approved
by Tenant when Tenant occupies the Premises for the conduct of its
business, except for items of Landlord's Work which are uncompleted or do
not conform to Exhibit B and as to which Tenant shall, in either case,
have given written notice to Landlord prior to such occupancy. A
certificate of completion by a licensed architect or registered engineer
shall be conclusive evidence that Landlord's Work has been completed
except for items stated in such certificate to be incomplete or not in
conformity with Exhibit B.
3.3 TENANT'S WORK. Tenant shall perform all tenant improvement work
substantially as shown on the space plan attached hereto as Exhibit B-1
(the "Tenant's Work"). During the performance of the Tenant's Work, Tenant
shall not be obligated to pay Fixed Rent to Landlord unless the Rent
Commencement Date has occurred. Tenant acknowledges that Landlord's Work
may be performed concurrently with all or any portion of Tenant's Work,
and agrees to cooperate with Landlord in scheduling Tenant's Work with
Landlord to minimize interference with Landlord's Work. All Tenant's Work
shall be performed by and at the expense of Tenant in accordance with all
applicable laws and in accordance with and subject to the applicable
provisions of this Lease, including, without limitation, Section 6.2.5.
The architectural, electrical and mechanical construction drawings, plans
and specifications (called "plans") necessary to perform the Tenant's Work
shall be Tenant's sole responsibility and at its expense, and shall be
submitted to Landlord for its approval. Landlord shall approve or
disapprove in writing the initial submission of any plans within ten (10)
business days of receipt thereof. If any of such plans are disapproved by
Landlord, Landlord shall provide Tenant with specific reasons for such
disapproval and the foregoing submission process shall be repeated until
all plans have been approved by Landlord. With Landlord's prior written
consent, which shall not be unreasonably withheld or delayed, Tenant shall
have the right to enter the Premises during the performance of Landlord's
Work, during normal business hours and without payment of rent, but
otherwise subject to all the terms and conditions of this Lease, including
Sections 4.2.4 and 6.2.5, to perform the Tenant's Work, so long as such
work does not interfere with the performance of Landlord's Work.
3.4 ALLOWANCE. Landlord shall make a contribution toward the cost of Tenant's
Work equal to the Allowance specified in Section 1.1. When Tenant has
completed the Tenant's Work, Tenant shall submit to Landlord requisition
for payment, in a form reasonably acceptable to Landlord, setting forth
the costs incurred for Tenant's Work. The costs of Tenant's Work shall
include all costs incurred by Tenant for labor and materials, contractor's
fees, and fees of designers, architects and engineers. Landlord shall not
be required to pay the Allowance directly to Tenant but hereby agrees that
Tenant shall be entitled to a rental abatement in the amount of the
Allowance in accordance with the provisions Section 4.1 of this Lease, on
the express condition that all of the following criteria have been
satisfied as of the date of such rental abatement:
(a) Tenant's Work has been completed to Landlord's reasonable
satisfaction and in accordance with the plans approved by Landlord;
(b) Landlord has received sworn statements and waivers of lien from all
contractors, subcontractors, materialmen and suppliers;
(c) Tenant is not then in default under this Lease; and
Any costs of Tenant's Work in excess of the Allowance shall be paid for
solely by Tenant.
ARTICLE 4
RENT
4.1 THE FIXED RENT. Commencing on the Rent Commencement Date, Tenant covenants
and agrees to pay rent to Landlord at the Original Address of Landlord or
at such other place or to such other person or entity as Landlord may by
notice in writing to Tenant from time to time direct, at the Annual Fixed
Rent Rate, in equal installments at the Monthly Fixed Rent Rate (which is
1/12th of the Annual Fixed Rent Rate), in advance, without notice or
demand, and without setoff, abatement (except as set forth below),
suspension, deferment, reduction or deduction, except as otherwise
expressly provided herein, on the first day of each calendar month
included in the term; and for any portion of a calendar month following
the Rent Commencement Date, at the rate for the first Lease Year payable
in advance for such portion. It is the intention of the parties hereto
that the obligations of Tenant hereunder shall be separate and independent
covenants and agreements, that the Annual Fixed Rent, the Additional Rent
and all other sums payable by Tenant to Landlord shall continue to be
payable in all events and that the obligations of Tenant hereunder shall
continue unaffected, unless the requirement to pay or perform the same
shall have been terminated
7
pursuant to an express provision of this Lease. Notwithstanding anything
to the contrary contained in this paragraph, the monthly installments of
Fixed Rent coming the under this Lease shall be abated upon full
satisfaction of the conditions set forth in Section 3.4 above and
continuing until Tenant has received a rent abatement in an amount equal
to the Allowance.
If Landlord shall give notice to Tenant that all rent and other payments
due hereunder are to be made to Landlord by electronic funds transfers, so
called, or by similar means, Tenant shall make all such payments as shall
be due after receipt of said notice by means of said electronic funds
transfers (or such similar means as designated by Landlord).
4.2 ADDITIONAL RENT. Commencing on the earlier to occur of (i) the Rent
Commencement Date and (ii) the date Tenant first occupies the Premises for
the conduct of its business, Tenant covenants and agrees to pay, as
Additional Rent, insurance costs, utility charges, personal property taxes
and its pro rata share of taxes and operating costs with respect to the
Premises as provided in this Section 4.2 as follows:
4.2.1 REAL ESTATE TAXES. Tenant shall pay to Landlord, as additional
rent, for each tax period partially or wholly included in the term,
Tenant's Percentage (as defined in Article 1, hereof of taxes (as
hereafter defined). Tenant shall remit to Landlord, on the first
day of each calendar month, estimated payments on account of Taxes,
such monthly amounts to be sufficient to provide Landlord, by the
time real estate tax payments are due and payable to any
governmental authority responsible for collection of same, a sum
equal to the Tenant's Percentage of Taxes, as such taxes are
reasonably estimated by Landlord from time to time on the basis of
the most recent tax data available. The initial calculation of the
monthly estimated payments shall be based upon the initial Estimate
of Tenant's Percentage of Taxes for the Tax Year and upon quarterly
payments being due to the governmental authority on August 1,
November 1, February 1 and May 1, and shall be made when the
Commencement Date has been determined. Upon written request from
Tenant to Landlord, Tenant shall have the right, within sixty (60)
days following the end of each fiscal year, to review a copy of the
tax xxxx for the preceding fiscal year at Landlord's offices. If
the total of such monthly remittances for any Tax Year is greater
than the Tenant's Percentage of Taxes for such Tax Year, Landlord
shall promptly pay to Tenant, or credit against the next accruing
payments to be made by Tenant pursuant to this subsection 4.2.1,
the difference; if the total of such remittances is less than the
Tenant's Percentage of Taxes for such Tax Year, Tenant shall pay
the difference to Landlord at least ten (10) days prior to the date
or dates within such Tax Year that any Taxes become due and payable
to the governmental authority (but in any event no earlier than ten
(10) days following a written notice to Tenant, which notice shall
set forth the manner of computation of Tenant's Percentage of
Taxes).
If, after Tenant shall have made reimbursement to Landlord pursuant
to this subsection 4.2.1, Landlord shall receive a refund of any
portion of Taxes paid by Tenant with respect to any Tax Year during
the term hereof as a result of an abatement of such Taxes by legal
proceedings, settlement or otherwise (without either party having
any obligation to undertake any such proceedings), Landlord shall
promptly pay to Tenant, or credit against the next accruing
payments to be made by Tenant pursuant to this subsection 4.2.1,
the Tenant's Percentage of the refund (less the proportional, pro
rata expenses, including attorneys' fees and appraisers, fees,
incurred in connection with obtaining any such refund), as relates
to Taxes paid by Tenant to Landlord with respect to any Tax Year
for which such refund is obtained, unless Tenant requests in
writing that Landlord pay any such refund to Tenant.
In the event this Lease shall commence, or shall end (by reason of
expiration of the term or earlier termination pursuant to the
provisions hereof), on any date other than the first or last day of
the Tax Year, or should the Tax Year or period of assessment of
real estate taxes be changed or be more or less than one (1) year,
as the case may be, then the amount of Taxes which may be payable
by Tenant as provided in this subsection 4.2.1 shall be
appropriately apportioned and adjusted.
The term "Taxes" shall mean all taxes, assessments, betterments and
other charges and impositions (including, but not limited to, fire
protection service fees and similar charges) levied, assessed or
imposed at any time during the term by any governmental authority
upon or against the Property, or taxes in lieu thereof, and
additional types of taxes to supplement real estate taxes due to
legal limits imposed thereon. If, at any time during the term of
this Lease, any tax or excise on rents or other taxes, however
described, are levied or assessed against Landlord with respect to
the rent reserved hereunder, either wholly or partially in
substitution for, or in addition to, real estate taxes assessed or
levied on the Property, such tax or excise on rents shall be
included in Taxes; however, Taxes shall got include franchise,
estate, inheritance, succession, capital levy, transfer, income or
excess profits taxes assessed on Landlord. Taxes shall include any
estimated payment made by Landlord on discount of a fiscal tax
period for which the actual and final amount of taxes for such
period has not been determined by the governmental authority as of
the date of any such estimated payment.
4.2.2 PERSONAL PROPERTY TAXES. Tenant shall pay all taxes charged,
assessed or imposed upon the personal property of Tenant in or upon
the Premises.
4.2.3 OPERATING COSTS. Tenant shall pay to Landlord the Tenant's
Percentage (as defined in Article 1 hereof) of Operating Costs (as
hereinafter defined) incurred by Landlord in any calendar year.
8
Tenant shall remit to Landlord, on the first day of each calendar
month, estimated payments on account of Operating Costs, such
monthly amounts to be sufficient to provide Landlord, by the end of
the calendar year, a sum equal to the Operating Costs, as
reasonably estimated by Landlord from time to time. The initial
monthly estimated payments shall be in an amount equal to 1/12th of
the Initial Estimate of Tenant's Percentage of Operating Costs for
the calendar year. Following the end of each calendar year,
including the first calendar year, Landlord shall deliver to Tenant
a reasonably detailed statement of the Operating Costs payable
under this Section 4.2.3 for such calendar year, prepared,
allocated and computed in accordance with generally accepted
accounting principles (the "Annual Operating Statement"). If, at
the expiration of the calendar year in respect of which monthly
installments of Operating Costs shall have been made as aforesaid,
the total of such monthly remittances is greater than the actual
Operating Costs for such calendar year, Landlord shall credit
against the next accruing payments to be made by Tenant pursuant to
this subsection 4.2.3, the difference, unless Tenant requests in
writing that Landlord pay any such difference to Tenant; if the
total of such remittances is less than the Operating Costs for such
calendar year, Tenant shall pay the difference to Landlord within
twenty (20) days from the date Landlord furnishes to Tenant the
Annual Operating Statement. Any reimbursement for Operating Costs
due and payable by Tenant with respect to periods of less than
twelve (12) months shall be equitably prorated.
The term "Operating Costs" shall mean all costs and expenses
incurred for the operation, cleaning, maintenance, repair and
upkeep of the Property, and the portion of such costs and expenses
with regard to the common areas, facilities and amenities of the
Park which is equitably allocable to the Property, including,
without limitation, all costs of maintaining and repairing the
Property and the Park (including snow removal, landscaping and
grounds maintenance, operation and maintenance of parking lots,
sidewalks, walking paths, access roads and driveways, security,
operation and repair of heating and air-conditioning equipment,
elevators, lighting and any other Building equipment or systems)
and of all repairs and replacements (other than repairs or
replacements for which Landlord has received full reimbursement
from contractors or from others) necessary to keep the Property and
the Park in good working order, repair, appearance and condition;
all costs of any reasonable insurance carried by Landlord relating
to the Property; all costs related to provision of heat (including
oil, electric, steam and/or gas), air-conditioning, and water
(including sewer charges) and other utilities to the Building;
payments under all service contracts relating to the foregoing; all
compensation, fringe benefits, payroll taxes and workmen's
compensation insurance premiums related thereto with respect to any
employees of Landlord or its affiliates engaged in security and
maintenance of the Property and the Park; attorneys' fees and
disbursements (exclusive of any such fees and disbursements
incurred in tax abatement proceedings) and auditing and other
professional fees and expenses incurred in connection with the
Park; and a reasonable management fee consistent with management
fees charged by landlord's of comparable buildings in the
Burlington area.
There shall not be included in such Operating Costs (i) brokerage
fees (including rental fees) related to the operation of the
Building; (ii) interest and depreciation charges incurred on the
Property; (iii) expenditures made by Tenant with respect to a)
cleaning, maintenance and upkeep of the Premises, except to the
extent provided by Landlord at Tenant's request or pursuant to the
terms and conditions of this Lease, and (b) the provision of
electricity to the Premises; (iv) mortgage charges (including
principal and interest); (v) the cost of work done or services
supplied by Landlord for a particular tenant in the Park for which
Landlord has the right to be reimbursed by such tenant; (vi) any
cost incurred by the gross negligence or willful misconduct of the
Landlord, its agents and employees; (vii) except to the extent
caused by or attributable to Tenant, penalties, fines and other
costs incurred due to violation by the Landlord of any lease or any
laws, rules, regulations or ordinances applicable to the Building
and any interest or penalties due for late payment by Landlord of
any of the expenses; (viii) expenses to prepare, renovate, repaint,
redecorate or perform any other work in any space leased to an
existing or prospective tenant or other occupant of the Park other
than Tenant (except as otherwise agreed to); (ix) expenses incurred
by Landlord to resolve disputes, enforce or negotiate lease terms
with prospective or existing tenants other than Tenant or in
connection with any financing, sale or syndication of the Building;
(x) fees paid to affiliates of Landlord to the extent that such
fees exceed the customary amount charged for the services provided
by unaffiliated persons or entities of similar skill, competence
and experience; (xi) to the extent that insurance proceeds are
unavailable due to Landlord's failure to maintain replacement cost
insurance, costs and expenses incurred by Landlord in connection
with the repair of damage to the Building caused by fire or other
casualty, insured or required to be insured against hereunder;
(xii) reserves for Operating Costs; (xiii) amortization and
depreciation of the Building (except as set forth below with
respect to capital items); (xiv)costs to repair any items related
to the Building or the Property covered by warranty; and (xv) costs
that are capital in nature, except for an annual amortization for
capital expenditures specified in the next paragraph below.
If, during the term of this Lease, Landlord shall replace any
capital items or make any capital expenditures in order to comply
with laws in effect after the Commencement Date, or to effect
savings in Operating Costs, or to replace worn-out items
(collectively the "capital expenditures") the total amount of which
is not properly included in Operating Costs for the calendar year
in which they were made, there shall nevertheless be included in
Operating Costs for each calendar year in which and after such
capital expenditure is made the annual charge-off of such capital
expenditure. (Annual charge-off shall be determined by (i) dividing
the original cost of the capital expenditure by the number of years
of useful life thereof [The useful life shall be
9
reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time
of acquisition of the capital item.]; and (ii) adding to such
quotient an interest factor computed on the unamortized balance of
such capital expenditure based upon an interest rate reasonably
determined by Landlord as being the interest rate then being
charged for long-term mortgages by institutional lenders on like
properties within the locality in which the Building is located.)
Provided, further, that if Landlord reasonably concludes on the
basis of engineering estimates that a particular capital
expenditure will effect savings in Operating Costs and that such
annual projected savings will exceed the annual charge-off of
capital expenditure computed as aforesaid, then and in such events,
the annual charge-off shall be determined by dividing the amount of
such capital expenditure by the number of years over which the
projected amount of such savings shall fully amortize the cost of
such capital item or the amount of such capital expenditure; and by
adding the interest factor, as aforesaid.
Upon Tenant's written request (the "Tenant's Audit Notice"), which
request must be made by Tenant within sixty (60) days after
Landlord delivers to Tenant the Annual Operating Statement, Tenant
shall have the right to inspect or audit Landlord's books of
account with respect to matters set forth in the Annual Operating
Statement. Tenant's audit or inspection shall commence no later
than thirty (30) days after Tenant's Audit Notice and shall be
conducted only at Landlord's offices where said books of account
are kept during business hours reasonably designated by Landlord.
Tenant shall pay all costs of such audit or inspection. Tenant may
not conduct an inspection or have an audit performed under this
Section 4.2.3 more than once with respect to any period covered by
any Annual Operating Statement from Landlord. Landlord shall keep
full and accurate books of account covering the Operating Costs and
the Annual Operating Statement shall accurately reflect the same
and Tenant's share thereof. Such audit or inspection may only be
made by Tenant or a nationally, recognized certified public
accounting firm or a reputable auditing company which is not
compensated on a contingency fee basis. All non-public information
about Landlord and/or the Property discovered during the course of
such examination shall be kept confidential.
4.2.4 INSURANCE. Tenant shall, at its expense, as Additional Rent, take
out and maintain throughout the term the following insurance
protecting Landlord:
4.2.4.1 Commercial general liability insurance naming Landlord,
Tenant, and Landlord's managing agent and any mortgagee of
which Tenant has been given notice as insureds or
additional insureds and indemnifying the parties so named
against all claims and demands for death or any injury to
person or damage to property which may be claimed to have
occurred on the Premises (or the Property, insofar as used
by customers, employees, servants or invitees of the
Tenant), in amounts which shall, at the beginning of the
term, be at least equal to the limits set forth in Section
1.1, and, which, from time to time during the term, shall
be for such higher limits, if any, as are customarily
carried in the area in which the Premises are located on
property similar to the Premises and used for similar
purposes, $5,000,000.00 umbrella liability for bodily
injury, personal injury and property damage, naming
Landlord, and its managing agent and mortgagee, as
additional insureds; and workmen's compensation insurance
with statutory limits covering all of Tenant's employees
working on the Premises.
4.2.4.2 Fire insurance with the usual extended coverage
endorsements covering all Tenant's furniture, furnishings,
fixtures and equipment, the Tenant's Work and any other
contents or improvements in the Premises installed at
Tenant's expense by or on behalf of Tenant during the term.
4.2.4.3 All such policies shall be obtained from responsible
companies qualified to do business and in good standing in
Massachusetts, which companies and the amount of insurance
allocated thereto shall be subject to Landlord's reasonable
approval. Tenant agrees to furnish Landlord with
certificates evidencing all such insurance prior to the
beginning of the term hereof and evidencing renewal just
prior to the expiration of any such policy. Each such
policy shall be non-cancelable with respect to the interest
of Landlord without at least ten (10) days, prior written
notice thereto. In the event provision for any such
insurance is to be by a blanket insurance policy, the
policy shall allocate a specific and sufficient amount of
coverage to the Premises.
4.2.4.4 All insurance which is carried by either party with respect
to the Building, Premises or to furniture, furnishings,
fixtures, or equipment therein or alterations or
improvements thereto, whether or not required, shall
include provisions which either designate the other party
as one of the insured or deny to the insurer acquisition by
subrogation of rights of recovery against the other party
to the extent such rights have been waived by the insured
party prior to occurrence of loss or injury, insofar as,
and to the extent that, such provisions may be effective
without making it impossible to obtain insurance coverage
from responsible companies qualified to do business in the
state in which the Premises are located (even though extra
premium may result therefrom). In the event that extra
premium is payable by either party as a result of this
provision, the other party shall reimburse the party paying
such premium the amount of such extra premium. If at the
request of one party, this non-subrogation provision is
waived, then the obligation of reimbursement shall cease
for such period of time as such waiver shall be effective,
but
10
nothing contained in this subsection shall derogate from or
otherwise affect releases elsewhere herein contained of
either party for claims. Each party shall be entitled to
have certificates of any policies containing such
provisions. Each party hereby waives all rights of recovery
against the other for loss or injury against which the
waiving party is protected by insurance containing said
provisions, reserving, however, any rights with respect to
any excess of loss or injury over the amount recovered by
such insurance. Tenant shall not acquire as insured under
any insurance carried on the Premises any right to
participate in the adjustment of loss or to receive
insurance proceeds and agrees upon request promptly to
endorse and deliver to Landlord any check or other
instruments in payment of loss in which Tenant is named as
payee.
4.2.5 UTILITIES. Tenant shall pay directly to the respective utility
providers all charges for the cost of electricity and gas furnished
or consumed on the Premises, and all charges for telephone and
other utilities or services not supplied by Landlord, whether
designated as a charge, tax, assessments, fee or otherwise, all
such charges to be paid as the same from time to time become due.
Tenant shall pay to Landlord, upon demand, all charges, including
sewer charges, for Tenant's water usage at the Premises. It is
understood that water is supplied by Landlord pursuant to
Subsection 5.1.3, but the Premises are separately metered to
Landlord and not Tenant. Except as otherwise provided in Article 5,
it is understood and agreed that Tenant shall make its own
arrangements for the installation or provision of all such
utilities and that Landlord shall be under no obligation to furnish
any utilities to the Premises and shall not be liable for any
interruption or failure in the supply of any such utilities to the
Premises.
4.3 LATE PAYMENT OF RENT. If any installment of rent is paid after the date
the same was due, and if on prior occasion in the twelve (12) month period
prior to the date such installment was due an installment of rent was paid
after the same was due, then Tenant shall pay Landlord a late payment fee
equal to five (5%) percent of the overdue payment.
4.4 LETTER OF CREDIT. The performance of Tenant's obligations under this Lease
shall be secured by a letter of credit throughout the term hereof in
accordance with and subject to the following terms and conditions:
4.4.1 AMOUNT OF LETTER OF CREDIT. (a) Concurrently with Tenant's
execution and delivery of this Lease. Tenant shall deliver to
Landlord an irrevocable standby letter of credit (the "Original
Letter of Credit") which shall be (i) in the form of Exhibit F
attached to this Lease or in a form reasonably acceptable to both
Landlord and Tenant (the "Form LC"), (ii) issued by a bank
reasonably satisfactory to Landlord upon which presentment may be
made in Boston,
Massachusetts, (iii) in the amount equal to the
Letter of Credit Amount, and (iv) for a term of at least 1 year,
subject to the provisions of Section 4.4.2 below. The original
Letter of Credit, any Additional Letter(s) of Credit and Substitute
Letter(s) of Credit are referred to herein as the "Letter of
Credit."
(b) On the conditions that (i) Tenant is not in default under this
Lease at the time of the reduction, and (ii) either (x) Tenant has
achieved a profitable calendar year and Tenant provides Landlord
with an audited statement reporting such profitable calendar year,
which statement shall be prepared by Tenant's accountant using
generally accepted accounting principles, or (y) Tenant has a
minimum of $10,000,000.00 of unrestricted cash and securities at
any time after the end of the 3rd lease year and provides Landlord
with reasonable evidence of the same, then the Letter of Credit
Amount shall be reduced to $75,000.00. This reduction shall only be
affected one time during the term of this Lease.
4.4.2 RENEWAL OF LETTER OF CREDIT. Each Letter of Credit shall be
automatically renewable in accordance with the second to last
paragraph of the Form LC; provided however, that Tenant shall be
required to deliver to Landlord a new letter of credit (a
"Substitute Letter of Credit") satisfying the requirements for the
Original Letter of Credit under Section 4.4.1 on or before the date
30 days prior to the expiration of the term of the Letter of Credit
then in effect, if the issuer of such Letter of Credit gives notice
of its election not to renew such Letter of Credit for any
additional period pursuant thereto. Should any letter of Credit
contain a final expiration date, in addition to a current
expiration date, such final expiration date shall be no earlier
than 45 days following the Expiration Date of this Lease.
4.4.3 DRAWS TO CURE DEFAULTS. If the Fixed Rent, Additional Rent or any
other sum payable to Landlord hereunder shall be overdue and unpaid
or should Landlord make payments on behalf of the Tenant, or Tenant
shall fail to perform any of the terms of this Lease in all cases
beyond the expiration of all applicable notice and cure periods,
then Landlord shall have the right, at any time thereafter to draw
down from the Letter of Credit the amount necessary to cure such
default. In the event of any such draw by the Landlord, Tenant
shall, within 30 days of written demand therefor, deliver to
Landlord an additional Letter of Credit ("Additional Letter of
Credit") satisfying the requirements for the Original Letter of
Credit, except that the amount of such Additional Letter of Credit
shall be the amount of such draw.
4.4.4 DRAWS TO PAY DAMAGES. In addition, if (i) this Lease shall have
been terminated as a result of Tenant's default under this Lease
beyond the expiration of the applicable cure period, and/or (ii)
this Lease shall have been rejected in a bankruptcy or other
creditor-debtor proceeding, then Landlord shall have the right at
any time thereafter to draw down from the Letter of Credit an
amount sufficient to pay any and all damages payable by Tenants on
account of such termination or rejection, as the case may be,
pursuant to Article 8 hereof. In the event of bankruptcy or other
11
creditor-debtor proceeding against Tenant, all proceeds of the
Letter of Credit shall be deemed to be applied first to the payment
of rent and other charges due Landlord for all periods prior to the
filing of such proceedings.
4.4.5 DRAWS FOR FAILURE TO DELIVER SUBSTITUTE LETTER OF CREDIT. If Tenant
fails timely to deliver to Landlord a Substitute Letter of Credit,
then Landlord shall have the right, at any time thereafter, without
giving any notice to Tenant, to draw down the Letter of Credit and
to hold the proceeds thereof ("Security Proceeds") in a bank
account in the name of Landlord, which may be withdrawn and applied
by Landlord under the same circumstances and for the same purposes
as if the Security Proceeds were a Letter of Credit. Upon any such
application of Security Proceeds by Landlord, Tenant shall, within
30 days of written demand therefor, deliver to Landlord an
Additional Letter of Credit in the amounts of Security Proceeds so
applied.
4.4.6 TRANSFERABILITY. Landlord shall (i) transfer its beneficial
interest under the Letter of Credit or any Security Proceeds in
connection with Landlord's sale or transfer of the Building, or
(ii) be entitled to transfer its beneficial interest under the
Letter of Credit or any Security proceeds in connection with the
addition, deletion or modification of any beneficiaries under the
Letter of Credit, and the Letter of Credit shall specifically state
on its face that it is transferable by Landlord, its successors and
assigns. Tenant agrees to pay Landlord upon demand, as Additional
Rent, all costs and fees charged to effect such transfer.
4.4.7 RETURN OF LETTER OF CREDIT AT END OF TERM. Within 30 days after the
expiration of the term, to the extent Landlord has not previously
drawn upon any Letter of Credit or Security Proceeds held by
Landlord, Landlord shall return the same to Tenant provided that
there is not at such time any continuing default of any of Tenant's
obligations under this Lease.
ARTICLE 5
LANDLORD'S COVENANTS
5.1 AFFIRMATIVE COVENANTS. Landlord covenants with Tenant:
5.1.1 HEAT AND AIR-CONDITIONING. To furnish to the Premises, separately
metered and at the direct expense of Tenant as hereinabove
provided, heat and air-conditioning (reserving the right, at any
time, to change energy or heat sources) sufficient to maintain the
Premises at comfortable temperatures (subject to all federal,
state, and local regulations relating to the provision of heat),
during such hours of the day and days of the year that the Building
is normally open.
5.1.2 ELECTRICITY. To furnish to the Premises, separately metered and at
the direct expense of Tenant as hereinabove provided, reasonable
electricity for Tenant's Permitted Uses. If Tenant Shall require
electricity in excess of reasonable quantities for Tenant's
Permitted Uses and if (i) in Landlord's reasonable judgment,
Landlord's facilities are inadequate for such excess requirements,
or (ii) such excess use shall result in an additional burden on the
Building utilities systems and additional cost to Landlord on
account thereof, as the case may be, (a) Tenant shall, upon demand,
reimburse Landlord for such additional cost, as aforesaid, or (b)
Landlord, upon written request, and at the sole cost and expense of
Tenant, will furnish and install such additional wire, conduits,
feeders, switchboards and appurtenances as reasonably may be
required to supply such additional requirements of Tenant (if
electricity therefor is then available to Landlord), provided that
the same shall be permitted by applicable laws and insurance
regulations and shall not cause permanent damage or injury to the
Building or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations or repairs.
5.1.3 WATER. To furnish water for ordinary cleaning, lavatory, toilet and
shower facilities and for all kitchen appliances and sinks.
5.1.4 FIRE ALARM. To maintain fire alarm systems within the Building.
5.1.5 REPAIRS. Except as otherwise expressly provided herein, to make
such repairs and replacements to the roof, exterior walls, floor
slabs and other structural components of the Building, and to the
plumbing, electrical, heating, ventilating and air-conditioning
systems of the Building as may be necessary to keep them in good
repair and condition (exclusive of equipment installed by Tenant
and except for those repairs required to be made by Tenant pursuant
to Section 6.1.3 hereof and repairs or replacements occasioned by
any act or negligence of Tenant, its servants, agents, customers,
contractors, employees, invitees, or licensees).
5.1.6 LANDLORD'S INSURANCE. To take out and maintain throughout the term
all-risk casualty insurance in an amount equal to 100% of the
replacement cost of the Building but specifically excluding the
Tenant's Work and any improvements installed by Tenant during the
term.
5.1.7 LANDLORD'S INDEMNIFICATION. To save Tenant harmless, and to
exonerate and indemnify Tenant from and against any and all claims,
liabilities or penalties asserted by or on behalf of any person,
firm, corporation or public authority on account of injury, death,
damage or loss to the person or property in or upon the common
areas of the Property arising out of the negligence, fault or
misconduct of Landlord, its agents, servants, employees or
contractors. In respect of all of the
12
foregoing, Landlord shall indemnify Tenant from and against all
costs, expenses (including reasonable attorney's fees), and
liabilities incurred in or in connection with any such claim,
action or proceeding brought thereon; and, in case of any action or
proceeding brought against Tenant by reason of any such claim,
Landlord, upon notice from Tenant and at Landlord's expense, shall
resist or defend such action or proceeding and employ counsel
therefor reasonably satisfactory to Tenant.
5.2 INTERRUPTION. Landlord shall be under no responsibility or liability for
failure or interruption of any of the above-described services, repairs or
replacements caused by breakage, accident, strikes, repairs, inability to
obtain supplies, labor or materials, or for any other causes beyond the
control of the Landlord, and in no event for any indirect or consequential
damages to Tenant; and failure or omission on the part of the Landlord to
furnish any of same for any of the reasons set forth in this paragraph
shall not be construed as an eviction of Tenant, actual or constructive,
nor entitle Tenant to an abatement of rent, nor render the Landlord liable
in damages, nor release Tenant from prompt fulfillment of any of its
covenants under this Lease.
Notwithstanding the foregoing, if Landlord fails to provide any service
that it is required to provide above so that Tenant's ability to conduct
business at the Premises is materially adversely affected for a period of
five (5) consecutive business days after written notice thereof from
Tenant to Landlord, then, provided that such failure or Landlord's
inability to cure such condition is not (i) due to a cause beyond
Landlord's reasonable control and/or (ii) generally affecting other
buildings in the vicinity of the Premises (such as a neighborhood power
outage or a water main break) or a fire or other casualty or taking (which
shall be governed by Article 7 below) or the fault or negligence of Tenant
or any of its agents, employees or contractors, the Fixed Rent and
Additional Rent shall be equitably abated based upon the impact thereof on
Tenant's ability to conduct business in the Premises until such service(s)
is restored to their level prior to the interruption.
ARTICLE 6
TENANT'S ADDITIONAL COVENANTS
6.1 AFFIRMATIVE COVENANTS. Tenant covenants at all times during the term and
for such further time (prior or subsequent thereto) as Tenant occupies the
Premises or any part thereof:
6.1.1 PERFORM OBLIGATIONS. To perform promptly all of the obligations of
Tenant set forth in this Lease; and to pay when due the Fixed Rent
and Additional Rent and all charges, rates and other sums which by
the terms of this Lease are to be paid by Tenant.
6.1.2 USE. To use the Premises only for the Permitted Uses, and from time
to time to procure all licenses and permits necessary therefor, at
Tenant's sole expense. As of the Date of this Lease, Landlord
represents and warrants that the Permitted Uses are in compliance
with all applicable zoning codes. With respect to any licenses or
permits for which Tenant may apply, pursuant to this subsection
6.1.2 or any other provision hereof, Tenant shall furnish Landlord
copies of applications therefor on or before their submission to
the governmental authority.
6.1.3 REPAIR AND MAINTENANCE. To maintain the Premises in neat order and
condition, to contract for cleaning and janitorial services, in
accordance with cleaning and janitorial standards generally
prevailing throughout the term in comparable buildings in the area,
and to perform all routine and ordinary repairs to the Premises and
to any plumbing, heating, electrical, ventilating and
air-conditioning systems located within the Premises and installed
by Tenant such as are necessary to keep them in good working order,
appearance and condition, as the case may require, reasonable use
and wear thereof and damage by fire or by unavoidable casualty only
excepted; to keep all glass in windows and doors of the Premises
(except glass in the exterior walls of the Building) whole and in
good condition with glass of the same quality as that injured or
broken; and to make as and when needed as a result of misuse by, or
neglect or improper conduct of Tenant or Tenant's servants,
employees, agents, invitees or licensees or otherwise, all repairs
necessary, which repairs and replacements shall be in quality and
class equal to the original work. (Landlord, upon default of Tenant
hereunder and upon prior notice to Tenant, may elect, at the
expense of Tenant, to perform all such cleaning and maintenance and
to make any such repairs or to repair any damage or injury to the
Building or the Premises caused by moving property of Tenant in or
out of the Building, or by installation or removal of furniture or
other property, or by misuse by, or neglect, or improper conduct
of, Tenant or Tenant's servants, employees, agents, contractors,
customers, patrons, invitees, or licensees.)
6.1.4 COMPLIANCE WITH LAW. To make all repairs, alterations, additions or
replacements to the Premises required by any law or ordinance or
any order or regulation of any public authority to the extent the
same are Tenant's responsibility under this Lease; to keep the
Premises equipped with all safety appliances so required; and to
comply with the orders and regulations of all governmental
authorities with respect to zoning, building, fire, health and
other codes, regulations, ordinances or laws applicable to Tenant's
particular use of the Premises, except that Tenant may defer
compliance so long as the validity of any such law, ordinance,
order or regulations shall be contested by Tenant in good faith and
by appropriate legal proceedings, if Tenant first gives Landlord
appropriate assurance or security against any loss, cost or expense
on account thereof.
13
6.1.5 INDEMNIFICATION. To save harmless, exonerate and indemnify
Landlord, its agents (including, without limitation, Landlord's
managing agent) and employees (such agents and employees being
referred to collectively as the "Landlord Related Parties") from
and against any and all claims, liabilities or penalties asserted
by or on behalf of any person, firm, corporation or public
authority on account of injury, death, damage or loss to person or
property in or upon the Premises and the Property arising out of
the use or occupancy of the Premises by Tenant or by any person
claiming by, through or under Tenant (including, without
limitation, all patrons, employees and customers of Tenant), or
arising out of any delivery to or service supplied to the Premises,
or on account of or based upon anything whatsoever done on the
Premises, except if the same was caused by the willful negligence,
fault or misconduct of Landlord or the Landlord Related Parties. In
respect of all of the foregoing, Tenant shall indemnify Landlord
and the Landlord Related Parties from and against all costs,
expenses (including reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim, action or
proceeding brought thereon; and, in case of any action or
proceeding brought against Landlord or the Landlord Related Parties
by reason of any such claim, Tenant, upon notice from Landlord and
at Tenant's expense, shall resist or defend such action or
proceeding and employ counsel therefor reasonably satisfactory to
Landlord.
6.1.6 LANDLORD'S RIGHT TO ENTER. To permit Landlord and its agents to
enter into and examine the Premises at reasonable times and to show
the Premises, and to make repairs to the Premises and to install,
use and repair telecommunications equipment on the roof of the
Building, provided that Landlord agrees not to unreasonably
interfere with Tenant's use of the Premises while exercising its
right to enter pursuant to this subsection 6.1.6, and, during the
last six (6) months prior to the expiration of this Lease, to keep
affixed in suitable places notices of availability of the Premises.
Except in the case of an emergency, Landlord shall use reasonable
efforts to provide Tenant with notice prior to Landlord exercising
its right to enter the Premises pursuant to this subsection 6.1.6.
However, notwithstanding the foregoing, Landlord shall give Tenant
reasonable prior notice whenever Landlord requires access to the
Premises to show the Premises.
6.1.7 PERSONAL PROPERTY AT TENANT'S RISK. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or
under Tenant which, during the continuance of this Lease or any
occupancy of the premises by Tenant or anyone claiming under
Tenant, may be on the Premises, shall be at the sole risk and
hazard of Tenant and if the whole or any part thereof shall be
destroyed or damaged by fire, water 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 to be borne by Landlord, except that Landlord shall
in no event be indemnified or held harmless or exonerated from any
liability to Tenant or to any other person, for any injury, loss,
damage or liability to the extent prohibited by law.
6.1.8 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. To pay on demand
Landlord's expenses, including reasonable attorneys' fees, incurred
in enforcing any obligation of Tenant under this Lease or in curing
any default by Tenant under this Lease as provided in Section 8.4.
6.1.9 YIELD UP. At the expiration of the term or earlier termination of
this Lease; to surrender all keys to the Premises; to remove all of
its trade fixtures, personal property and signs in or on the
Premises; to deliver to Landlord stamped architectural plans
showing the Premises at yield up (which may be the initial plans if
Tenant has made no installations after the Commencement Date); to
remove such installations made by it as Landlord may request
(including computer and telecommunications wiring and cabling, it
being understood that if Tenant leaves such wiring and cabling in a
useable condition, Landlord, although having the right to request
removal thereof, is less likely to so request) and all Tenant's
signs wherever located; to repair all damage caused by such removal
and, if requested by Landlord, to restore the Premises, or any
portion thereof, to open office or R&D configuration if Tenant had
previously made alterations to such area other than those typical
of office or R&D space, and to yield up the Premises (including all
installations and improvements not designated by Landlord for
removal, except for trade fixtures and such of said installations
or improvements as Landlord shall request Tenant to remove),
broom-clean and in the same good order and repair in which Tenant
is obliged to keep and maintain the Premises by the provisions of
this Lease, reasonable wear and tear, and damage by casualty and
condemnation excepted. Any property not so removed shall be deemed
abandoned and, if Landlord so elects, deemed to be Landlord's
property, and may be retained or removed and disposed of by
Landlord in such manner as Landlord shall determine and Tenant
shall pay Landlord the entire cost and expense incurred by it in
effecting such removal and disposition and in making any incidental
repairs and replacements to the Premises and for use and occupancy
during the period after the expiration of the term and prior to its
performance of its obligations under this subsection 6.1.9. Tenant
shall further indemnify Landlord against all loss, cost and damage
resulting from Tenant's failure and delay in surrendering the
Premises as above provided. Landlord hereby confirms that the
Landlord's Work (as defined in Article 3) shall not be required to
be removed by Tenant at the end of the term.
If the Tenant remains in the Premises beyond the expiration or
earlier termination of this Lease, such holding over shall be
without right and shall not be deemed to create any tenancy, but
the Tenant shall be a tenant at sufferance only at a daily rate of
rent equal to two (2) times the rent and other charges in effect
under this Lease as of the day prior to the date of expiration of
this Lease.
14
6.1.10 RULES AND REGULATIONS. To comply with the Rules and Regulations set
forth in Exhibit D, and with all reasonable Rules and Regulations
hereafter made by Landlord, of which Tenant has been given notice.
6.1.11 ESTOPPEL CERTIFICATE. Upon not less than ten (10) days' prior
written request by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing, which may be in the form attached
hereto as Exhibit E or in another form reasonably similar thereto,
or such other form as Landlord may provide from time to time,
certifying all or any of the following: (i) that this Lease is
unmodified and in full force and effect, (ii) whether the term has
commenced and Fixed Rent and Additional Rent have become payable
hereunder and, if so, the dates to which they have been paid, (iii)
whether or not Landlord is in default in performance of any of the
terms of this Lease, (iv) whether Tenant has accepted possession of
the Premises, (v) whether Tenant has made any claim against
Landlord under this Lease and, if so, the nature thereof and the
dollar amount, if any, of such claim, (vi) whether there exist any
offsets or defenses against enforcement of any of the terms of this
Lease upon the part of Tenant to be performed, and (vii) such
further information with respect to the Lease or the Premises as
Landlord may reasonably request. Any such statement delivered
pursuant to this subsection 6.1.11 may be relied upon by any
prospective purchaser or mortgagee of the Premises, or any
prospective assignee of such mortgage. Tenant shall also deliver to
Landlord such financial information as may be reasonably required
by Landlord to be provided to any mortgagee or prospective
purchaser of the Premises, provided, further that the party
provided with such financial information agrees in a written
document reasonably acceptable to such party to keep the financial
information confidential.
6.1.12 LANDLORD'S EXPENSES RE CONSENTS. To reimburse Landlord promptly on
demand for all reasonable legal expenses incurred by Landlord in
connection with all requests by Tenant for consent or approval
hereunder.
6.2 NEGATIVE COVENANTS. Tenant covenants at all times during the term and such
further time (prior or subsequent thereto) as Tenant occupies the Premises
or any part thereof:
6.2.1 ASSIGNMENT AND SUBLETTING. Not to assign, transfer, mortgage or
pledge this Lease or to sublease (which term shall be deemed to
include the granting of concessions and licenses and the like) all
or any part of the Premises or suffer or permit this Lease or the
leasehold estate hereby created or any other rights arising under
this Lease to be assigned, transferred or encumbered, in whole or
in part, whether voluntarily, involuntarily or by operation of law,
or permit the occupancy of the Premises by anyone other than Tenant
without the prior written consent of Landlord, except for Permitted
Transfers (hereinafter defined). In the event Tenant desires to
assign this Lease or sublet any portion or all of the Premises,
Tenant shall notify Landlord in writing of Tenant's intent to so
assign this Lease or sublet the Premises and the proposed effective
date of such subletting or assignment, and shall request in such
notification that Landlord consent thereto. Except in the case of a
Permitted Transfer, Landlord may terminate this Lease in the case
of a proposed assignment, or suspend this Lease pro tanto for the
period and with respect to the space involved in the case of a
proposed subletting, by giving written notice of termination or
suspension to Tenant within thirty (30) days of Tenant's
notification to Landlord of Tenant's intent to sublease or assign
as aforesaid, with such termination or suspension to be effective
as of the effective date of such assignment or subletting. If
Tenant then notifies Landlord that Tenant chooses not to assign or
sublet, then such termination or suspension shall not be effective
as to that particular transaction for which Tenant delivered notice
of its intent to sublease or assign. If Landlord does not so
terminate or suspend, Landlord's consent shall not be unreasonably
withheld, conditioned or delayed to an assignment or to a
subletting, provided that the following conditions are met:
(i) the assignee or subtenant shall use the Premises only for
the Permitted Uses or for any one of the non-ancillary
Permitted Uses individually;
(ii) the proposed assignee or subtenant has a net worth and
creditworthiness reasonably acceptable to Landlord;
(iii) the amount of the aggregate rent to be paid by the proposed
subtenant is not less than the then current market rate for
comparable subleases of premises substantially similar to
the Premises; and
(iv) the proposed assignee or subtenant is not then a tenant in
the Building or the Park, or an entity with which Landlord
is currently in negotiations or with which Landlord has
negotiated during the preceding six months regarding the
possibility of leasing space in the Building or the Park.
Tenant shall furnish Landlord with any information reasonably
requested by Landlord to enable Landlord to determine whether the
proposed assignment or subletting complies with the foregoing
requirements, including without limitation, financial statements
relating to the proposed assignee or subtenant.
Tenant shall, as Additional Rent, reimburse Landlord promptly for
Landlord's reasonable legal expenses incurred in connection with
any request by Tenant for such consent. If Landlord consents
thereto, or in the case of a Permitted Transfer, no such subletting
or assignment shall in
15
any way impair the continuing primary liability of Tenant hereunder
(unless otherwise explicitly agreed to by Landlord in its consent),
and no consent to any subletting or assignment in a particular
instance shall be deemed to be a waiver of the obligation to obtain
the Landlord's written approval in the case of any other subletting
or assignment.
If for any assignment or sublease consented to by Landlord
hereunder Tenant receives rent or other consideration, either
initially or over the term of the assignment or sublease, in excess
of the rent called for hereunder, or in case of sublease of part,
in excess of such rent fairly allocable to the part, after
appropriate adjustments to assure that all other payments called
for hereunder are appropriately taken into account and after
deduction for reasonable expenses of Tenant in connection with the
assignment or sublease (provided, however, all such costs shall be
amortized over the term of the sublease in question), including
brokerage commissions, marketing expenses, tenant inducements
consistent with inducements being made by other similar tenants
subletting or assigning its lease for comparable premises in the
Burlington area, reasonable attorney's fees, and advertsing fees,
to pay to Landlord as additional rent fifty (50%) percent of the
excess of each such payment of rent or other consideration received
by Tenant promptly after its receipt.
Whenever Tenant lists with a broker or brokers or otherwise
advertises, holds out or markets the Premises or any part thereof
for sublease or assignment, Tenant shall give Xxxxxxxx Company, as
brokers, a non-exclusive listing with respect to such sublease or
assignment.
If at any time during the term of this Lease, there is a name
change, reformation or reorganization of the Tenant entity, Tenant
shall so notify Landlord and deliver evidence reasonably
satisfactory to Landlord documenting such name change, reformation
or reorganization. If, at any time during the term of this Lease,
there is a transfer of a controlling interest in the stock,
membership or general partnership interests of Tenant, Tenant shall
so notify Landlord and any such transfer shall be deemed an
assignment of this Lease. The provisions of the preceding sentence
shall not apply if Tenant is a publicly traded company.
Notwithstanding the foregoing provisions of this Subsection 6.2.1,
Tenant may assign this Lease or sublet the Premises, without
Landlord's consent, to any entity (a) which controls or is
controlled by or is under common control with Tenant; or (b) which
purchases all or substantially all of Tenant's stock or assets; or
(c) with or into which Tenant is merged or consolidated, provided
that (i) the assignee or sublessee agrees to assume and perform, in
full, the obligations of Tenant under this Lease by written
instrument in form satisfactory to Landlord, which instrument shall
be delivered to Landlord at least fifteen (15) days prior to the
effective date of any such transaction, (ii) Tenant remains fully
and primarily liable under this Lease (unless otherwise agreed to
at the time), (iii) the use of the Premises remains unchanged, (iv)
the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to or
greater than the net worth of Tenant immediately prior to such
merger, consolidation, transfer or transaction permitted herein,
and further provided that proof reasonably satisfactory to Landlord
of such net worth shall have been delivered to Landlord at least
fifteen (15) days prior to the effective date of any such
transaction (the "Permitted Transfer").
6.2.2 NUISANCE. Not to injure, deface or otherwise harm the Premises; nor
commit any nuisance; nor permit in the Premises any vending machine
(except such as is used for the sale of merchandise to employees of
Tenant) or inflammable fluids or chemicals (except such as are
customarily used in connection with standard office equipment); nor
permit any cooking to such extent as requires special exhaust
venting; nor permit the emission of any objectionable noise or
odor; nor make, allow or suffer any waste; nor make any use of the
Premises which is improper, offensive or contrary to any law or
ordinance or which will invalidate any of Landlord's insurance; nor
conduct any auction, fire, "going out of business" or bankruptcy
sales.
6.2.3 HAZARDOUS WASTES AND MATERIALS. Not to dispose of any hazardous
wastes, hazardous materials or oil on the Premises or the Property,
or into any of the plumbing, sewage, or drainage systems thereon,
and to indemnify and save Landlord harmless from all claims,
liability, loss or damage arising on account of the use or disposal
of hazardous wastes, hazardous materials or oil, including, without
limitation, liability under any federal, state, or local laws,
requirements and regulations, or damage to any of the aforesaid
systems. Tenant shall comply with all governmental reporting
requirements with respect to hazardous wastes, hazardous materials
and oil, and shall deliver to Landlord copies of all reports filed
with governmental authorities.
6.2.4 FLOOR LOAD; HEAVY EQUIPMENT. Not to place a load upon any floor of
the Premises exceeding the floor load per square foot area which
such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of
all heavy business machines and equipment, including safes, which
shall be placed so as to distribute the weight. Business machines
and mechanical equipment which cause vibration or noise shall be
placed and maintained by Tenant at Tenant's expense in settings
sufficient to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery, heavy equipment,
freight or fixtures into or out of the Premises except in such
manner and at such time as Landlord shall in each instance
authorize.
6.2.5 INSTALLATION, ALTERATIONS OR ADDITIONS. Not to make any
installations, alterations or additions in, to or on the Premises
nor to permit the making of any holes in the walls (except for
normal office
16
wall hangings, pictures, and the like), partitions, ceilings or
floors nor the installation or modification of any locks or
security devices without on each occasion obtaining the prior
written consent of Landlord, and then only pursuant to plans and
specifications approved by Landlord in advance in each instance
(which consent and approval shall not be required for alterations
(i) that cost less than $5,000,00 and which do not alter the
Premises floor plan or impact the systems or structure of the
Building, or (ii) which are decorative or cosmetic in nature, such
as painting and carpeting); Tenant shall pay promptly when due the
entire cost of any work to the Premises undertaken by Tenant so
that the Premises shall at all times be free of liens for labor and
materials, and at Landlord's request Tenant shall furnish to
Landlord a board or other security acceptable to Landlord assuring
that any work in excess of $5,000.00 commenced by Tenant will be
completed in accordance with the plans and specifications therefore
approved by Landlord and assuring that the Premises will remain
free of any mechanics' lien or other encumbrance arising out of
such work. In any event, Tenant shall forthwith bond against or
discharge any mechanics' liens or other encumbrances that may arise
out of such work. Tenant shall procure all necessary licenses and
permits at Tenant's sole expense before undertaking such work. All
such work shall be done in a good and workmanlike manner employing
materials of good quality and so as to conform with all applicable
zoning, building, fire, health and other codes, regulations,
ordinances and laws. Tenant shall save Landlord harmless and
indemnified from all injury. loss, claims or damage to any person
or property occasioned by or growing out of such work.
Except for security interests granted prior to the Date of this
Lease, not to grant a security interest in, or to lease, any
personal property being installed in the Premises (including,
without limitation, demountable partitions) without first obtaining
an agreement, for the benefit or Landlord, from the secured party
or lessor that such property will be removed within ten (10)
business days after notice from Landlord of the expiration or
earlier termination of this Lease and that a failure to so remove
will subject such property to the provisions of subsection 6.1.9 of
the Lease.
6.2.6 ABANDONMENT. Not to vacate the Premises during the term.
6.2.7 SIGNS. Not without Landlord's prior written approval, which
approval shall not be unreasonably withheld, to paint or place any
signs or place any curtains, blinds, shades, awnings, aerials, or
the like, visible from outside the Premises. Tenant may, at is sole
expense, install its identifying sign on the exterior of the
Building in a location approved by Landlord. Such sign shall comply
with all local regulations and shall conform with the sign policy
for the Park and shall be maintained by Tenant, at its expense, in
good condition and repair.
6.2.8 PARKING AND STORAGE. Not to permit any storage of materials outside
of the Premises; not to permit the use of the parking areas for
either temporary or permanent storage of trucks; nor permit the use
of the Premises for any use for which heavy tracking would be
customary.
ARTICLE 7
CASUALTY OR TAKING
7.1 TERMINATION. A In the event that the Premises, or any material part
thereof, shall be taken by any public authority or for any public use, or
shall be destroyed or damaged by fire or casualty, or by the action of any
public authority, then this Lease may be terminated at the election of
Landlord. Such election, which may be made notwithstanding the fact that
Landlord's entire interest may have been divested, shall be made by the
giving of notice by Landlord to Tenant within sixty (60) days after the
date of the taking or casualty.
B. In the event that the Premises are destroyed or damaged by fire or
casualty, or by the action of public authority, and, in the reasonable
opinion of an independent architect or engineer selected by Landlord,
cannot be repaired or restored within two hundred seventy (270) days from
the date of the casualty or taking, then this Lease may be terminated at
the election of Landlord or Tenant, which election shall be made by the
giving of notice to the other party within thirty (30) days after the date
the opinion of the architect or engineer is made available to the parties.
Landlord shall use reasonable efforts to obtain the estimate of the time
for restoration within thirty (30) days after the casualty or taking, but
in any event shall provide such estimate within sixty (60) days after the
taking or casualty.
7.2 RESTORATION. If neither party elects to so terminate as provided in this
Article 7, this Lease shall continue in force and a just proportion of the
rent reserved, according to the nature and extent of the damages sustained
by the Premises, shall be suspended or abated until the Premises, or what
may remain thereof, shall be put by Landlord in proper condition for use,
which Landlord covenants to do with reasonable diligence to the extent
permitted by the net proceeds of insurance recovered or damages awarded
for such taking, destruction or damage and subject to zoning and building
laws or ordinances then in existence. "Landlord's restoration work shall
exclude the Tenant's Work and any other improvements or installations made
by or on behalf of Tenant. "Net proceeds of insurance recovered or damages
awarded" refers to the gross amount of such insurance or damages less the
reasonable expenses of Landlord incurred in connection with the
collections of the same, including without limitation, fees and expenses
for legal and appraisal services. If Landlord shall not have restored the
Premises within two hundred seventy (270) days from the date of the taking
or casualty, Tenant shall have the right to terminate this Lease by
giving notice of such termination to Landlord, to be effective at the
expiration of thirty (30) days from the giving of such notice; provided
however, that such termination will be rendered ineffective if, prior to
the expiration of said 30-day period, Landlord shall have completed such
restoration.
17
7.3 AWARD. Irrespective of the form in which recovery may be had by law, all
rights to damages or compensation shall belong to Landlord in all cases,
except in the case of a taking by a public authority, awards made to
Tenant for its personal property, fixtures and relocation expenses. Except
for such awards, Tenant hereby grants to Landlord all of Tenant's rights
to such damages and covenants to deliver such further assignments thereof
as Landlord may from time to time request.
ARTICLE 8
DEFAULTS
8.1 EVENTS OF DEFAULT. (a) If Tenant shall default in the performance of any
of its obligations to pay the Fixed Rent, Additional Rent or any other sum
due Landlord hereunder and if such default shall continue for ten (10)
days after written notice from Landlord designating such default or if
within thirty (30) days after written notice from Landlord to Tenant
specifying any other default or defaults Tenant has not commenced
diligently to correct the default or defaults so specified or has not
thereafter diligently pursued such correction to completion, or (b) if any
assignment shall be made by Tenant or any guarantor of Tenant for the
benefit of creditors, or (c) if Tenant's leasehold interest shall be taken
on execution, or (d) if a lien or other involuntary encumbrance is filed
against Tenant's leasehold interest or Tenant's other property (other than
a landlord's lien), including said leasehold interest, and is not
discharged within ten (10) days thereafter or otherwise dealt with to the
satisfaction of Landlord, or (e) if a petition is filed by Tenant or any
guarantor of Tenant for liquidation, or for reorganization or an
arrangement under any provision of any bankruptcy law or code as then in
force and effect, or (f) if an involuntary petition under any of the
provisions of any bankruptcy law or code is filed against Tenant or any
guarantor of Tenant and such involuntary petition is not dismissed within
sixty (60) days thereafter, then, and in any of such cases, Landlord and
the agents and servants of Landlord lawfully may, in addition to and not
in derogation of any remedies for any preceding breach of covenant,
immediately or at any time thereafter without demand or notice and with
process of law enter into and upon the Premises or any part thereof in the
name of the whole or mail a notice of termination addressed to Tenant, and
repossess the same as of landlord's former estate and expel Tenant and
those claiming through or under Tenant and remove its and their effects
(forcibly, if necessary) without being deemed guilty of any manner of
trespass and without prejudice to any remedies which might otherwise be
used for arrears of rent or prior breach of covenants, and upon such entry
or mailing as aforesaid this Lease shall terminate. Tenant hereby waiving
all statutory rights to the Premises (including without limitation rights
of redemption, if any, to the extent such rights may be lawfully waived)
and Landlord, without notice to Tenant, may store Tenant's effects, and
those of any person claiming through or under Tenant, at the expense and
risk of Tenant, and, if Landlord so elects, may sell such effects at
public auction or private sale and apply the net proceeds to the payment
of all sums due to Landlord from Tenant, if any, and pay over the balance,
if any, to Tenant.
8.2 REMEDIES. In the event that this Lease is terminated under any of the
provisions contained in Section 8.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, the excess of the total rent reserved for the
residue of the term over the rental value of the Premises for said residue
of the term. In calculating the rent reserved there shall be included, in
addition to the Fixed Rent and Additional Rent, the value of all other
considerations agreed to be paid or performed by Tenant for said residue.
Tenant further covenants as additional and cumulative obligations after
any such termination, to pay punctually to Landlord all the sums and to
perform all the obligations which Tenant covenants in this Lease to pay
and to perform in the same manner and to the same extent and at the same
time as if this Lease had not been terminated. In calculating the amounts
to be paid by Tenant pursuant to the next preceding sentence Tenant shall
be credited with any amount paid to Landlord as compensation as in this
Section 8.2 provided and also with the net proceeds of any rent obtained
by Landlord by reletting the Premises, after deducting all Landlord's
expense in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, reasonable fees for legal
services and expenses of preparing the Premises for such reletting, it
being agreed by Tenant that Landlord shall (i) use reasonable efforts to
relet the Premises or any part or parts thereof, 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 and may
grant such concessions and free rent as Landlord in its sole judgement
considers advisable or necessary to relet the same and (ii) make such
alterations, repairs and decorations in the Premises as Landlord in its
sole judgment considers advisable or necessary to relet the same, and no
action of Landlord in accordance with the foregoing or failure to relet
or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid. For the purposes of
this paragraph, marketing of the Premises in a manner similar to the
way Landlord markets its other premises in the suburban market shall be
deemed to satisfy Landlord's obligation to use such "reasonable efforts."
In no event shall Landlord be required (i) to solicit or entertain
negotiations with any other prospective tenants for the Premises until
Landlord obtains full and complete possession of the Premises including,
without limitation, the undisputed right to re-let the Premises fee of
any claim of Tenant, (ii) to lease the Premises to a tenant whose
proposed use, in Landlord's sole but bona fide judgment, would violate
any restrictions by which Landlord is bound, (iii) to re-let the Premises
before leasing other comparable vacant space in the Building, (iv) to
lease the Premises for a rental less than the current fair market rental
then prevailing for similar office space in the Building, or (v) to enter
into a lease with any proposed tenant that does not have, in Landlord's
reasonable opinion, sufficient financial resources or operating experience
to operate the Premises in a manner comparable to other tenants in the
Building. In no event, however, shall Tenant's liability hereunder be
diminished or reduced if or to the extent such reasonable efforts of
Landlord to re-let are not successful.
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
18
Maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, the damages are to be proved,
whether or not the amount be greater than, equal to, or less than the
amount of the loss or damages referred to above.
8.3 REMEDIES CUMULATIVE. Any and all rights and remedies which Landlord may
have under this Lease, and at law and equity, shall be cumulative and
shall not be deemed inconsistent with each other, and any two or more of
all such rights and remedies may be exercised at the same time insofar as
permitted by law.
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not be
obligated to, cure, at any time in emergency situations and after the
expiration of all applicable grace periods hereunder in all other cases,
without notice, any default by Tenant under this Lease; and whenever
Landlord so elects, all costs and expenses incurred by Landlord, including
reasonable attorneys' fees, in curing a default shall be paid, as
Additional Rent, by Tenant to Landlord on demand, together with lawful
interest thereon from the date of payment by Landlord to the date of
payment by Tenant.
8.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord to any
act or omission which otherwise would be a breach of any covenant or
condition herein, shall not in any way be held or construed (unless
expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as to
the specific instance, operate to permit similar acts or omissions.
8.6 NO WAIVER, ETC. The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of
this Lease shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant of this
Lease shall not be deemed to have been a waiver of such breach by
Landlord. No consent or waiver, express or implied, by Landlord to or of
any breach of any agreement or duty shall be construed as a waiver or
consent to or of any other breach of the same or any other agreement or
duty.
8.7 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum than
the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such
rent or charge due, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent or other charge be
deemed an accord and satisfaction, and Landlord my accept such check or
payment without prejudice to Landlord's right to recover the balance of
such installment or pursue any other remedy in this Lease provided.
ARTICLE 9
RIGHTS OF MORTGAGE HOLDERS
9.1 RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof. The word
"holder" shall mean a mortgagee, and any subsequent holder or holders of a
mortgage. Until the holder of a mortgage shall enter and take possession
of the Property for the purpose of foreclosure, such holder shall have
only such rights of Landlord as are necessary to preserve the integrity of
this Lease as security. Upon entry and taking possession of the Property
for the purpose of foreclosure, such holder shall have all the rights of
Landlord. No such holder of a mortgage shall be liable either as mortgagee
or as assignee, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder
shall enter and take possession of the Property for the purpose of
foreclosure. Upon entry for the purpose of foreclosure, such holder shall
be liable to perform all of the obligations of Landlord, subject to and
with the benefit of the provisions of Section 10.4, provided that a
discontinuance of any foreclosure proceeding shall be deemed a conveyance
under said provisions to the owner of the equity of the Property.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a holder of a mortgage (particularly,
without limitation thereby, the covenants and agreements contained in this
Section 9.1) constitute a continuing offer to any person, corporation or
other entity, which by accepting a mortgage subject to this Lease, assumes
the obligations herein set forth with respect to such holder, such holder
is hereby constituted a party of this Lease as an obligee hereunder to the
same extent as though its name were written hereon as such: and such
holder shall be entitled to enforce such provisions in its own name.
Tenant agrees on request of Landlord to execute and deliver from time to
time any agreement which may be necessary to implement the provisions of
this Section 9.1.
9.2 LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES. It is agreed that the
rights and interest of Tenant under this Lease shall be (i) subject or
subordinate to any present or future mortgage or mortgages and to any
and all advances to be made thereunder, and to the interest of the
holder thereof in the Premises or any property of which the Premises
are a part if Landlord shall elect by notice to Tenant to subject or
subordinate the rights and interest of Tenant under this Lease to such
mortgage or (ii) prior to any present or future mortgage or mortgages,
if Landlord shall elect, by notice to Tenant, to give the rights and
interest of Tenant under this Lease priority to such mortgage; in the
event of either of such elections and upon notification by Landlord to
that effect, the rights and interest of Tenant under this Lease should
be deemed to be subordinate to, or have priority over, as the case may
be, said mortgage or mortgages, irrespective of the time of execution
or time of recording of any such mortgage or mortgages (provided that,
in the case of subordination of this Lease to any future mortgages, the
holder thereof agrees not to disturb the possession of Tenant so long as
19
Tenant is not in default hereunder and Tenant and the holder execute a
so-called subordination, non-disturbance and attornment agreement in
the holder's usual and customary form, with such commercially
reasonable changes that are acceptable to the parties). Tenant agrees
it will, upon not less than ten (10) days' prior written request by
Landlord, execute, acknowledge and deliver any and all instruments
deemed by Landlord necessary or desirable to give effect to or notice
of such subordination or priority. Any mortgage to which this Lease
shall be subordinated may contain such terms, provisions and conditions
as the holder deems usual or customary.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required or permitted
hereunder shall be in writing and addressed, if to the Tenant, at the
Original Notice Address of Tenant or such other address as Tenant shall
have last designated by notice in writing to Landlord and, if to Landlord,
at the Original Notice Address of Landlord or such other address as
Landlord shall have last designated by notice in writing to Tenant. Any
notice shall be deemed duly given when mailed to such address postage
prepaid, by registered or certified mail, return receipt requested, or
when delivered to such address by hand.
10.2 QUIET ENJOYMENT. Landlord agrees that upon Tenant's paying the rent and
performing and observing the agreements, conditions and other provisions
on its part to be performed and observed, Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises during the term hereof
without any manner of hindrance or molestation from Landlord or anyone
claiming under Landlord, subject, however, to the terms of this Lease.
10.3 LEASE NOT TO BE RECORDED. Tenant agrees that it will not record this
Lease.
10.4 LIMITATION OF LANDLORD'S LIABILITY. The term "Landlord" as used in this
Lease, so far as covenants or obligations to be performed by Landlord
are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Property, and in the event of any
transfer or transfers of title to said property, the Landlord (and in
case of any subsequent transfers or conveyances, the then grantor)
shall be concurrently freed and relieved from and after the date of
such transfer or conveyance, without any further instrument or
agreement of all liability as respects the performance of any covenants
or obligations on the part of the Landlord contained in this Lease
thereafter to be performed, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord, shall,
subject as aforesaid, be binding on the Landlord, its successors and
assigns, only during and in respect of their respective successive
periods of ownership of said leasehold interest or fee, as the case may
be. Tenant, its successors and assigns, shall not assert nor seek to
enforce any claim for breach of this Lease against any of Landlord's
assets other than Landlord's interest in the Property and in the rents,
issues and profits thereof, and Tenant agrees to look solely to such
interest for the satisfaction of any liability or claim against
Landlord under this Lease, it being specifically agreed that in no
event whatsoever shall Landlord (which term shall include, without
limitation, any general or limited partner, trustees, beneficiaries,
officers, directors, or stockholders of Landlord) ever be personally
liable for any such liability.
10.5 ACTS OF GOD. In any case where either party hereto is required to do any
act, delays caused by or resulting from Acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor,
materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control shall not be
counted in determining the time during which work shall be completed,
whether such time be designated by a fixed date, a fixed time or a
"reasonable time," and such time shall be deemed to be extended by the
period of such delay.
10.6 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default in the
performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of
thirty (30) days or such additional time as is reasonably required to
correct any such default after written notice has been given by Tenant to
Landlord specifying the nature of Landlord's alleged default. Landlord
shall not be liable in any event for incidental or consequential damages
to Tenant by reason of Landlord's default, whether or not notice is given.
Except as otherwise set forth herein, Tenant shall have no right to
terminate this Lease for any default by Landlord hereunder and no right,
for any such default, to offset or counterclaim against any rent due
hereunder.
10.7 BROKERAGE. Landlord and Tenant warrant and represent to the other that it
has dealt with no broker in connection with the consummation of this
Lease, other than Xxxxxxxx Company or Xxxxx & Xxxxx, and in the event of
any brokerage claims, other than by Xxxxxxxx Company or Xxxxx & Xxxxx,
against either party predicated upon prior dealings with the other party,
Landlord and Tenant, each agree to defend the same and indemnify and hold
the other party harmless against any such claim. Tenant shall not be
responsible for the payment of the broker's fee due to Xxxxxxxx Company or
Xxxxx & Xxxxx.
10.8 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts
and, if any provisions of this Lease shall to any extent be invalid, the
remainder of this Lease shall not be affected thereby. There are no oral
or written agreements between Landlord and Tenant affecting this Lease.
This Lease may be amended, and the provisions hereof may be waived or
modified, only by instruments in writing executed by Landlord and Tenant.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in
20
this Lease shall be construed to mean those named above and their respective
heirs, executors, administrators, successors and assigns, and those claiming
through or under them respectively. If there be more than one tenant, the
obligations imposed by this Lease upon Tenant shall be joint and several.
WITNESS the execution hereof under seal on the day and year first above written:
Landlord:
MTP LIMITED PARTNERSHIP
By: Middlesex Turnpike Corp., general partner
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
President
Tenant:
ACME PACKET, INC.
/s/ Xxxxx Xxxxxxx
-----------------------------------
By: Xxxxx Xxxxxxx
Its: Chief Financial Officer
Hereunto duly authorized
21
EXHIBIT A
PLAN SHOWING THE PREMISES
[GRAPHIC]
22
EXHIBIT B
PLAN SHOWING LANDLORD'S WORK
[GRAPHIC]
Landlord, at its expense will perform the following work:
Demolish the walls highlighted in yellow on the above plan.
Complete the exterior construction of the main entrance and front corner of
the building.
Carpet the existing offices on the North Avenue Side with the same new
carpet as the open office area on the North Avenue Side. Remove and dispose
of the remaining "old" carpeting on the Route 3 Side and replace with a
combination of the same new carpet as the North Avenue Side or vinyl floor
tile depending on the Tenant's requirement. Any upgrades to the carpet or
vinyl tile will be accommodated through the execution by Landlord and
Tenant of a Work Change Order in the form attached hereto as Exhibit C.
Remove and dispose of the "old", 2' x 4' fluorescent light fixtures on the
Route 3 Side and replace with new energy-efficient, 2' x 4', paracube
fixtures subject to the Tenant's requirement. Any upgrades to the lighting
fixtures will be accommodated through the execution by Landlord and Tenant
of a Work Change Order in the form attached hereto as Exhibit C.
23
EXHIBIT B-1
SPACE PLAN SHOWING TENANT'S WORK
[GRAPHIC]
24
EXHIBIT C
WORK CHANGE ORDER
Lease Date: Date:
-------------------- ----------------------------------
Landlord: Work Change Order No.:
-------------------- -----------------
Tenant: Building Address:
-------------------- ----------------------
Premises: -----------------------------------------------------------------
Tenant directs Landlord to make the following additions to Landlord's work:
Description of additional work:
Work Change Order Amount:
Amount of Previous Work Change Orders:
This Work Change Order:
Total Amount of Work Change Orders:
Landlord approves this Work Change Order and Tenant agrees to pay to Landlord
the Total Amount of Work Change Orders at the earlier of ten days following
receipt of the Certificate of Occupancy of the premises or occupancy of the
premises by Tenant.
Tenant: Landlord:
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
25
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, corridors, vestibules, halls, or
stairways in or about the Building shall not be obstructed by Tenant.
2. Tenant shall not place objects against glass partitions, doors or windows
which would be unsightly from the Building corridor or from the exterior
of the Building.
3. Tenant shall not waste electricity or water in the Building premises and
shall cooperate fully with Landlord to assure the most effective
operation of the Building heating and air conditioning systems. All
regulating and adjusting of heating and air-conditioning apparatus shall
be done by the Landlord's agents or employees.
4. Tenant shall not use the Premises so as to cause any increase above
normal insurance premiums on the Building.
5. No bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the Premises. No space in the Building shall be used for
the sale of merchandise of any kind at auction or for storage thereof
preliminary to such sale.
6. Tenant shall cooperate with Landlord in minimizing loss and risk thereof
from fire and associated perils.
7. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were designed and
constructed and no sweepings, rubbish, rags, acid or like substance shall
be deposited therein. All damages resulting from any misuse of the
fixtures shall be borne by the Tenant.
8. Landlord reserves the right to establish, modify, and enforce reasonable
parking rules and regulations, provided such rules and obligations do not
diminish Tenant's rights under the Lease.
9. Landlord reserves the right at any time to rescind, alter or waive any
rule or regulation at any time prescribed for the Building and to impose
additional reasonable rules and regulations when in its judgment deems it
necessary, desirable or proper for its best interest and for the best
interest, provided such rules and regulations do not diminish Tenant's
rights under the Lease.
10. Tenant acknowledges that the Building has been designated a non-smoking
building. At no time shall Tenant permit its agents, employees,
contractors, guests or invitees to smoke in the Building or, except in
specified locations, directly outside the Building.
11. Tenant shall furnish a chair mat for each desk chair located on carpet in
the Premises.
26
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
TO: _______________________ ("Mortgagee" or "Purchaser")
THIS IS TO CERTIFY THAT:
1. The undersigned is the tenant (the "Tenant") under that certain lease
(the "Lease") dated _______, 20__, by and between ________ as landlord
(the "Landlord"), and the undersigned, as Tenant, covering those certain
premises commonly known and designated as __________ (the "Premises") in
the building located at ____________, _____________,
Massachusetts.
2. The Lease is attached hereto as Exhibit A and (i) constitutes the entire
agreement between the undersigned and the Landlord with respect to the
Premises, (ii) is the only Lease between the undersigned and the Landlord
affecting the Premises and (iii) has not been modified, changed, altered
or amended in any respect, except (if none, so state):
________________________________________
________________________________________
________________________________________
3. The undersigned has accepted and now occupies the Premises as of the date
hereof, and all improvements, if any, required by the terms of the Lease
to be made by the Landlord have been completed and all construction
allowances to be paid by Landlord have been paid. In addition, the
undersigned has made no agreement with Landlord or any agent,
representative or employee of Landlord concerning free rent, partial
rent, rebate of rental payments or any other type of rental or other
economic inducement or concession except (if none, so state):
________________________________________
________________________________________
________________________________________
4.
(1) The term of the Lease began (or is scheduled to begin) on ________,
20__ and will expire on ________, 20__;
(2) The fixed rent for the Premises has been paid to and including
________________, 20__;
(3) The fixed rent being paid pursuant to the Lease is at the annual
rate of $____________; and
(4) The escalations payable by Tenant under the Lease are currently
$______, based on a pro rata share of ______%, and have been
reconciled through ________, 20__.
5. (i) No party to the Lease is in default, (ii) the Lease is in full force
and effect, (iii) the rental payable under the Lease is accruing to the
extent therein provided thereunder, (iv) as of the date hereof the
undersigned has no charge, lien or claim of off-set (and no claim for any
credit or deduction) under the Lease or otherwise, against rents or other
charges due or to become due thereunder or on account of any prepayment
of rent more than one (1) month in advance of its due date, and (v)
Tenant has no claim against Landlord for any security, rental, cleaning
or other deposits, except (if none, so state):
________________________________________
________________________________________
________________________________________
6. Since the date of the Lease there are no actions, whether voluntary or
otherwise, pending against the undersigned under the bankruptcy,
reorganization, arrangement, moratorium or similar laws of the United
States, any state thereof of any other jurisdiction.
7. Tenant has not sublet, assigned or hypothecated or otherwise transferred
all or any portion of Tenant's leasehold interest.
8. Neither Tenant nor Landlord has commenced any action or given or received
any notice for the purpose of terminating the Lease, nor does Tenant have
any right to terminate the Lease, except (if none, so state):
9. Tenant has no option or preferential right to purchase all or any part of
the Premises (or the real property of which the Premises are a part) nor
any right or interest with respect to the Premises or the real property
of which the Premises are a part. Tenant has no right to renew or extend
the term of the Lease or expand the Premises except (if none, so state):
10. The undersigned acknowledges that the parties named herein are relying
upon this estoppel certificate and the accuracy of the information
contained herein in making a loan secured by the Landlord's interest in
the Premises, or in connection with the acquisition of the Property of
which the Premises is a part.
27
EXECUTED UNDER SEAL AS OF _______________, 20__.
TENANT:
------------------------------
By:
------------------------
Name:
Title:
Duly Authorized
28
EXHIBIT F
FORM OF LETTER OF CREDIT
BENEFICIARY: ISSUANCE DATE: ___________, _______
____________________ IRREVOCABLE STANDBY
LETTER OF CREDIT NO. _____________
ACCOUNTEE/APPLICANT: MAXIMUM/AGGREGATE
CREDIT AMOUNT:
____________________ USD $_____________
____________________
____________________
GENTLEMEN:
We hereby establish our irrevocable letter of credit in your favor for account
of the applicant up to an aggregate amount not to exceed __________________ US
Dollars ($ ______) available by your draft(s) drawn on ourselves at sight
accompanied by:
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 Section 4.4 of the lease
(the "Lease") dated ______________, ______ by and between ___________________,
as Landlord, and _______________, as Tenant, relating to the premises at
________________________.
Draft(s) must indicate name and issuing bank and credit number and must be
presented at this office.
You shall have the right to make partial draws against this Letter of Credit,
from time to time.
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 _______________, ______ (the
"Stated Expiration Date"). It is a condition of this Letter of Credit that the
Stated Expiration Date shall be deemed automatically extended without amendment
for successive one (1) year periods from such Stated Expiration Date, unless at
least forty-five (45) days prior to such Stated Expiration Date) or any
anniversary thereof) we shall notify the Beneficiary and the 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.
We engage with you that all drafts drawn under and in compliance with the terms
of this letter of credit will be duly honored on presentation to us.
Very truly yours,
Authorized Signatory
29
