Exhibit 10.1
8/6/04
NWPLSMT.N
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.l.
DATE OF THIS LEASE: August 9, 2004
BUILDING: The two-story building in Northwest
Park in Burlington, Massachusetts
(hereinafter referred to as the "Park")
located on that certain parcel of land
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 43,061 square feet
LANDLORD: Seventy One Limited Liability Company
ORIGINAL NOTICE
ADDRESS OF LANDLORD: c/x Xxxxxxxx Management Company, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
TENANT: Acme Packet, Inc., a Delaware
corporation
NOTICE
ADDRESS OF TENANT
PRIOR TO TAKING
POSSESSION OF
THE PREMISES: 000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
NOTICE ADDRESS OF
TENANT AFTER TAKING
POSSESSION OF THE
PREMISES: 00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
COMMENCEMENT DATE: See Section 2.2
EXPIRATION DATE: June 30, 2010
RENT COMMENCEMENT
DATE: The later of (i) July 1, 2005 or (ii)
the date on which Landlord's Work (as
defined below) has been "substantially
completed".
DELIVERY DATE: On or about January 15, 2005.
ANNUAL FIXED RENT
RATE: $516,732.00 during the first lease
year; $559,788.00 during the second
lease year; $602,844.00 during the
third lease year; $645,912.00 during
the fourth lease year; and $688,968.00
during the fifth lease year.
MONTHLY FIXED RENT
RATE: $43,061.00 during the first lease year;
$46,649.00 during the second lease
year; $50,237.00 during the third lease
year; $53,826.00 during the fourth
lease year; and $57,414.00 during the
fifth lease year.
LETTER OF CREDIT
AMOUNT: $300,000.00 (subject to reduction
pursuant to Section 4.4)
INITIAL ESTIMATE OF
TAXES FOR THE TAX
YEAR: $81,804.00
INITIAL ESTIMATE OF
OPERATING COSTS FOR
THE CALENDAR YEAR: $70,200.00
PERMITTED USES: General offices, research and
development, and light manufacturing,
and shipping and receiving ancillary
thereto.
PUBLIC LIABILITY INSURANCE LIMITS:
COMMERCIAL GENERAL LIABILITY: $1,000,000 per occurrence
$2,000,000 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.
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EXHIBIT A Plan showing the Premises.
EXHIBIT B Commencement Date Notification
EXHIBIT C Plans and Specifications
EXHIBIT D Work Change Order
EXHIBIT E Form of Letter of Credit
EXHIBIT F Rules and Regulations
EXHIBIT G Form Tenant Estoppel Certificate
EXHIBIT H Initial Tenant's Work
1.3 TABLE OF ARTICLES AND SECTIONS.
ARTICLE 1 -- REFERENCE DATA
1.1 Subjects Referred To
1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE 2 -- PREMISES AND TERM
2.1 Premises
2.2 Term
2.3 Extension Option
ARTICLE 3 -- IMPROVEMENTS
3.1 Performance of Work and Approval of Landlord's Work
3.2 Acceptance of the Premises
3.3 Pre-Commencement Entry by Xxxxxx
ARTICLE 4 -- RENT
4.1 The Fixed Rent
4.2 Additional Rent
4.2.1 Real Estate Taxes
4.2.2 Personal Property Taxes
4.2.3 Operating Costs
4.2.4 Insurance
4.2.5 Utilities
4.3 Late Payment of Rent
4.4 Letter of Credit
4.4.1 Amount of Letter of Credit
4.4.2 Renewal of Letter of Credit
4.4.3 Draws to Cure Defaults
4.4.4 Draws to Pay Damages
4.4.5 Draws for Failure to Deliver Substitute Letter of
Credit
4.4.6 Transferability
4.4.7 Return of Letter of Credit at End of Term
ARTICLE 5 -- LANDLORD'S COVENANTS
5.1 Affirmative Covenants
5.1.1 Heat and Air Conditioning
5.1.2 Electricity
5.1.3 Cleaning; Water
5.1.4 Fire Alarm
5.1.5 Repairs
5.1.6 Landlord's Insurance
5.1.7 Landlord's Indemnification
5.2 Interruption
5.3 Outside Services
ARTICLE 6 -- TENANT'S ADDITIONAL COVENANTS
6.1 Affirmative Covenants
6.1.1 Perform Obligations
6.1.2 Use
6.1.3 Repair and Maintenance
6.1.4 Compliance with Law
6.1.5 Indemnification
6.1.6 Landlord's Right to Enter
6.1.7 Personal Property at Tenant's Risk
6.1.8 Payment of Landlord's Cost of Enforcement
6.1.9 Yield Up
6.1.10 Rules and Regulations
6.1.11 Estoppel Certificate
6.1.12 Landlord's Expenses Re: Consents
6.2 Negative Covenants
6.2.1 Assignment and Subletting
6.2.2 Nuisance
6.2.3 Hazardous Wastes and Materials
6.2.4 Floor Load; Heavy Equipment
6.2.5 Installation, Alterations or Additions
6.2.6 Abandonment
6.2.7 Signs
6.2.8 Parking and Storage
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ARTICLE 7 -- CASUALTY OR TAKING
7.1 Termination
7.2 Restoration.
7.3 Award
7.4 Disbursement of Insurance Proceed
ARTICLE 8 -- DEFAULTS
8.1 Events of Default
8.2 Remedies
8.3 Remedies Cumulative
8.4 Landlord's Right to Cure Defaults
8.5 Effect of Waivers of Default
8.6 No Waiver, etc.
8.7 No Accord and Satisfaction
ARTICLE 9 -- RIGHTS OF MORTGAGE HOLDERS
9.1 Rights of Mortgage Holders
9.2 Lease Superior or Subordinate to Mortgages
ARTICLE 10 -- MISCELLANEOUS PROVISIONS
10.1 Notices From One Party to the Other
10.2 Quiet Enjoyment
10.3 Lease Not to be Recorded
10.4 Limitation of Landlord's Liability
10.5 Acts of God
10.6 Landlord's Default
10.7 Brokerage
10.8 Applicable Law and Construction
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, however, the use of the roof of the Building for
telecommunications equipment, Landlord reserving the right from time
to time, without unreasonable interference with Xxxxxx'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's installation, use or repair of telecommunication equipment
on the roof of the Building.
Tenant shall be permitted to use up to 150 parking spaces in the
parking area serving the Building subject to reduction as may occur on
account of Tenant's utilization of the shipping and receiving area.
Landlord reserves the right from time to time, without unreasonable
interference with Xxxxxx's 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 make any repairs and replacements to the Premises
which Landlord may deem necessary, and (c) in connection with any
excavation made upon adjacent land of Landlord or others, to enter,
and to license others to enter, upon the Premises to do such work as
the person causing such excavation deems necessary to preserve the
wall of the Building from injury or damage and to support the same.
Except in the case of an emergency, Landlord shall use reasonable
efforts to provide Tenant with notice prior to entering the Building
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 date (the
"Commencement Date") on which Tenant first occupies all or any portion
of the Premises for the conduct of its business, provided Xxxxxxxx's
Work has been substantially completed (defined below), and ending on
the Expiration Date, unless sooner terminated as hereinafter provided.
The Commencement Date is estimated to occur 100 days after the
issuance of the building permit for Landlord's Work. When the
Commencement Date has been determined, such date shall be evidenced by
a document, in the form attached hereto as Exhibit B, which Landlord
shall complete and deliver to Tenant, and which shall be deemed
conclusive unless Tenant shall notify Landlord of any disagreement
therewith within ten (10) days of receipt. The term "substantially
completed" as used herein shall mean that (i) the work to be performed
by Landlord pursuant to Exhibit C has been completed with the
exception of minor items which can be fully completed without material
interference with Tenant and other items which because of the season
or weather or the nature of the item are not practicable to do at the
time, provided that none of said items is necessary to make the
Premises tenantable for the Permitted Uses, and (ii) a temporary or
permanent certificate of occupancy shall have been issued for the
Premises. However, the Landlord's Work shall be deemed to be
"substantially completed" on the date that such work would have been
substantially completed but for any delays caused by Tenant, but
Landlord shall not be relieved from the obligation to actually
complete Landlord's Work.
The term "lease year" as used herein shall mean a period of twelve
(12) consecutive full calendar months. The first lease year shall
begin on the Rent Commencement Date if the Rent Commencement Date is
the first day of a calendar month; if not, then the first lease year
shall commence upon the first day of the calendar month next following
the Rent Commencement Date. Each succeeding lease year shall commence
upon the anniversary date of the first lease year.
2.3 EXTENSION OPTION. Tenant shall have the right to extend the term of
this Lease for one additional period of five (5) years, to begin
immediately upon the expiration of the original term of this Lease
(the "extended term"), provided that each of the following conditions
has been satisfied:
(i) As of the date of the Extension Notice (defined below)
and as of the commencement of the extended term, Tenant shall
not be in default and shall not have previously been in
default of its obligations under this Lease beyond any
applicable grace period;
(ii) Tenant shall have had a net income for the 12-month
period immediately preceding the date of the Extension Notice
and for the 12-month period immediately preceding the
commencement of the extended term, or in the alternative,
Tenant shall have sufficient income or financial resources to
meet Tenant's obligations under this Lease during the
extended term; and
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(iii) simultaneously with the delivery of the Extension
Notice and also at the commencement of the extended term,
Tenant shall have delivered to Landlord an audited statement,
prepared by Xxxxxx's accountant using generally accepted
accounting principles either (x) evidencing such net income
during each of the periods specified above, or (y)
demonstrating to Landlord's reasonable satisfaction that
Tenant has sufficient income or financial resources to meet
Tenant's obligations under this Lease during the extended
term.
All of the terms, covenants and provisions of this Lease shall apply
to such extended term except that the Annual Fixed Rent Rate for such
extension period shall be the market rate for comparable buildings in
the Burlington area at the commencement of such extended term, as
designated by Landlord. If Tenant shall elect to exercise the
aforesaid option, it shall do so by giving Landlord written notice
(the "Extension Notice") of its intention to do so not later than one
(1) year prior to the expiration of the original term of this Lease.
If Tenant gives such notice and satisfies the conditions specified
above, the extension of this Lease shall be automatically effected
without the execution of any additional documents. The original term
and the extended term are hereinafter collectively called the "term".
If Tenant properly exercises the aforesaid option, then not later than
eleven (11) months prior to the expiration of the original term of
this Lease Landlord shall give written notice to Tenant of Landlord's
designation of the market rate. Within fifteen (15) days following
Xxxxxxxx's notice, Tenant shall either propose its designation of the
market rate by giving notice thereof to Landlord or shall accept
Landlord's designation. Failure on the part of Tenant to give such
notice of its designation shall bind Tenant to Landlord's designation.
If Tenant proposes its designation of the market rate, then Landlord
and Tenant shall attempt to agree upon a market rate. If the parties
have been unable to reach agreement within thirty (30) days following
Tenant's designation, then the market rate may be submitted to
arbitration by either party as follows: market rate shall he
determined by impartial arbitrators, one to be chosen by the Landlord,
one to be chosen by Xxxxxx, and a third to be selected, if necessary,
as below provided. The unanimous written decision of the two first
chosen, without selection and participation of a third arbitrator, or
otherwise, the written decision of a majority of three arbitrators
chosen and selected as aforesaid, shall be conclusive and binding upon
Landlord and Tenant. Landlord and Tenant shall each notify the other
of its chosen arbitrator within ten (10) days following the call for
arbitration and, unless such two arbitrators shall have reached a
unanimous decision within thirty (30) days after their designation,
they shall so notify the then President of the Boston Bar Association
and request him to select an impartial third arbitrator, who shall be
another office building owner, a real estate counsellor or a broker
dealing with like types of properties, to determine market rate as
herein defined. Such third arbitrator and the first two chosen shall
hear the parties and their evidence and render their decision within
thirty (30) days following the conclusion of such hearing and notify
Landlord and Tenant thereof. Landlord and Tenant shall share equally
the expense of the third arbitrator (if any). If the dispute between
the parties as to a market rate has not been resolved before the
commencement of Tenant's obligation to pay Fixed Rent based upon such
market rate, then Tenant shall pay Fixed Rent under the Lease based
upon the market rate designated by Landlord until either the agreement
of the parties as to the market rate, or the decision of the
arbitrators, as the case may be, at which time Tenant shall pay any
underpayment of Fixed Rent to Landlord, or Landlord shall refund any
overpayment of Fixed Rent to Tenant.
In any event, the Annual Fixed Rent Rate for the extended term shall
not be less than the Annual Fixed Rent Rate in effect immediately
prior to such extended term.
ARTICLE 3
IMPROVEMENTS
3.1 PERFORMANCE OF WORK AND APPROVAL OF XXXXXXXX'S WORK. Landlord shall
cause to be performed the work desired by Tenant to prepare the
Premises for Tenant's use and occupancy in accordance with the plans
and specifications attached hereto as Exhibit C (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. Xxxxxxxx agrees to deliver the Premises on the date
Landlord's Work is substantially completed in compliance with the
Massachusetts building code. All other work and installations which
are necessary or desirable to prepare the Premises for Tenant's use
and occupancy shall be performed by Tenant at Tenant's expense,
including without limitation the installation of furniture, fixtures
and equipment, all voice wiring, security systems, and any specialty
HVAC and plumbing (the "Tenant's Work"). Xxxxxx 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 shall use diligence to cause Xxxxxxxx's
work to be substantially completed by the Delivery Date, subject to
the provisions of Section 10.5 hereof and any delays caused by action
or inaction of Tenant. Xxxxxxxx agrees that Tenant may make changes in
such work with the approval of Landlord and the execution by Landlord
and Tenant of a Work Change Order, in the form attached hereto as
Exhibit D. Notwithstanding anything to the contrary contained herein,
if Xxxxxxxx's Work is not substantially completed by that date (the
"Outside Date") which is 60 days from the Delivery Date and such
failure is not the result of delays caused by Xxxxxx, Tenant shall
have the right to terminate this Lease by giving written notice to
Landlord within five (5) days following the Outside Date, such
termination to be effective at the expiration of thirty (30) days from
the giving of such notice, and if prior to the expiration of the
aforesaid thirty (30) day period the work has not been substantially
completed, this Lease shall thereupon terminate. If Tenant does not
exercise said termination right within said five (5) day period,
Tenant shall be deemed to have waived its right to terminate this
Lease and this Lease shall continue in full force and effect as
between the parties.
If Landlord has not obtained the applicable and necessary permits for
the performance of Landlord's Work by November 15, 2004, either party
shall have the right to terminate this Lease by giving written notice
to the other no later than November 20, 2004, whereupon this Lease
shall terminate. If neither party exercises its respective termination
right as set forth in the preceding sentence by November 20, 2004,
then the aforesaid termination right shall be void and this Lease
shall continue in full force and effect as between the parties.
Notwithstanding the foregoing, if Xxxxxx does not execute and deliver
an original of this Lease to Landlord and sign the plans and
specifications attached hereto as Exhibit C (which signature shall
evidence Tenant's agreement to the scope of Landlord's Work) by August
15, 2004, Tenant shall be deemed to have waived its right to terminate
this Lease as set forth in this paragraph.
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 upon the date Tenant takes occupancy of
the Premises for the conduct of its business, except for items of
Landlord's Work which are uncompleted or do not conform to Exhibit C
and as to which Tenant shall, in either case, have given written
notice to Landlord prior to such occupancy. A certificate of
completion by a licensed architect or registered engineer shall be
conclusive evidence that Xxxxxxxx's Work has been completed except for
items stated in such certificate to be incomplete or not in conformity
with Exhibit C.
3.3 PRE-COMMENCEMENT ENTRY BY TENANT. With Landlord's prior 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
Xxxxxxxx's Work.
ARTICLE 4
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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, 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 or
abated pursuant to an express provision of this Lease.
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 Commencement Date, but in no event
later than the Rent Commencement Date, Tenant covenants and agrees to
pay, as Additional Rent, insurance costs, utility charges, personal
property taxes and 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, payments on account of Taxes (as
hereinafter defined) assessed against the Property during
any fiscal tax year during the term (a "Tax Year"). 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 Taxes, as reasonably estimated by Landlord
from time to time on the basis of the most recent tax data
available. The initial calculation of the monthly estimated
payments shall be based upon the Initial Estimate of 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 bill for the preceding fiscal year at Landlord's
offices. If the total of such monthly remittances for any
Tax Year is greater than the actual Taxes for such Tax Year,
Landlord shall credit against the next accruing payments to
be made by Tenant pursuant to this subsection 4.2.1, 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 actual 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 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 Xxxxxx'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 credit
against the next accruing payments to be made by Tenant
pursuant to this subsection 4.2.1, such refund (less the
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 not include franchise, estate, inheritance,
succession, capital levy, transfer, income or excess profits
taxes assessed on Landlord. Taxes shall include any
estimated payment made by Landlord on account of a fiscal
tax period for which the actual and final amount of taxes
for such period has not been determined by the governmental
authority as of the date of any such estimated payment.
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 Operating
Costs (as hereinafter defined) incurred by Landlord in any
calendar year. Tenant shall remit to Landlord, on the first
day of each calendar month, estimated payments on account of
Operating Costs, such monthly amounts to be sufficient to
provide Landlord, by the end of the calendar year, a sum
equal to the Operating Costs, as reasonably estimated by
Xxxxxxxx from time to time. The initial monthly estimated
payments shall be in an amount equal to 1/12th of the
Initial Estimate 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
Xxxxxxxx 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
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costs, including material and equipment costs, for window
cleaning of the Building; all costs of any reasonable
insurance carried by Landlord relating to the Property; all
costs related to provision of heat (including oil, electric,
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
Xxxxxxxx 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)
except as stated below, capital expenditures.
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 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 Xxxxxx'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 Xxxxxx'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 Xxxxxx'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 Xxxxxx 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. Xxxxxx agrees to furnish Landlord with
certificates evidencing all such insurance prior
to the beginning of the term hereof and evidencing
renewal thereof 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
6
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 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 checks or other instruments in
payment of loss in which Tenant is named as payee.
4.2.5 UTILITIES. Tenant shall pay all charges made by public
authority or utility for the cost of electricity furnished
or consumed on the Premises, all charges for any utilities
supplied by Landlord pursuant to Subsections 5.1.1 and 5.1.3
which are separately metered, and all charges for telephone
and other utilities or services not supplied by Landlord
pursuant to Subsections 5.1.1 and 5.1.3, whether designated
as a charge, tax, assessment, fee or otherwise, all such
charges to be paid as the same from time to time become due.
4.3 LATE PAYMENT OF RENT. If any installment of rent is paid after the
date the same was due, and if on a prior occasion in the twelve (12)
month period prior to the date such installment was due an installment
of rent was paid after the same was due, then Tenant shall pay
Landlord a late payment fee equal to five (5%) percent of the overdue
payment.
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 Xxxxxx'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 Letters(s) of Credit and Substitute
Letter(s) of Credit are referred to herein as the "Letter of
Credit."
(b) On the condition 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 Xxxxxx'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 $150,000.00. This reduction shall only be
effected 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 Tenant on account of such
termination or rejection, as the case may be, pursuant to
Article 8 hereof. In the event of bankruptcy or other
creditor-debtor proceeding against Tenant, all proceeds of
the Letter of Credit shall be deemed to be applied first to
the payment of rent and other charges due Landlord for all
periods prior to the filing of such proceedings.
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 amount 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. Xxxxxx
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.
7
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
foregoing, Landlord shall indemnify Tenant from and against
all costs, expenses (including reasonable attorneys' fees),
and liabilities incurred in or in connection with any such
claim, action or proceeding brought thereon; and, in case of
any action or proceeding brought against Tenant 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.
5.3 OUTSIDE SERVICES. In the event Tenant wishes to provide outside
services for the Premises over and above those services to be provided
by Landlord as set forth herein, Tenant shall first obtain the prior
written approval of Landlord for the installation and/or utilization
of such services ("Outside services" shall include, but shall not be
limited to, cleaning services, television, so-called "canned music"
services, security services, catering services and the like.) In the
event Landlord approves the installation and/or utilization of such
services, such installation and utilization shall be at Tenant's sole
cost, risk and expense.
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 XXXXXXXXXXX.Xx 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 Xxxxxx.
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 and to perform all routine and ordinary
repairs to the Premises and to any plumbing, heating,
electrical, ventilating and air-conditioning systems
installed by Tenant such as are necessary to keep them in
good working order, appearance and condition, as the case
may require,
8
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.
6.1.5 INDEMNIFICATION. To save harmless, exonerate and indemnify
Landlord, its agents (including, without limitation,
Xxxxxxxx'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 Xxxxxx'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 and personal
property in the Premises; to deliver to Landlord stamped
architectural plans showing the Premises at yield up (which
may be the initial plans if Tenant has made no installations
after the Commencement Date); to remove such installations
made by it as Landlord may request (including computer and
telecommunications wiring and cabling, it being understood
that if Tenant leaves such wiring and cabling in a useable
condition, Landlord, although having the right to request
removal thereof, is less likely to so request) and all
Tenant's signs wherever located; to repair all damage caused
by such removal and to yield up the Premises (including all
installations and improvements made by Tenant except for
trade fixtures and such of said installations or
improvements as Landlord shall request Tenant to remove),
broom-clean and in the same good order and repair in which
Tenant is obliged to keep and maintain the Premises by the
provisions of this Lease, reasonable wear and tear, and
damage by casualty and condemnation excepted. Tenant, at the
time of making any installation, may request in writing
Landlord's written permission to leave such installation in
the Premises at the expiration or earlier termination of
this Lease, and if Landlord so notifies Tenant that such
installation may remain in the Premises at the expiration or
earlier termination of this Lease, then Landlord shall
thereafter not be permitted to request or require that such
installation be removed at the expiration or earlier
termination of the Lease. 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 Xxxxxx's failure and
delay in surrendering the Premises as above provided.
Landlord hereby confirms that the Landlord's Work (defined
in Article 3) shall not be required to be removed by Tenant
at the end of the term.
Once Tenant submits plans for Xxxxxx's Work to Landlord for
Landlord's approval, Landlord will identify those portions
of Tenant's Work which Tenant will be permitted to leave in
the Premises at the end of the term, which identified
portions of Tenant's Work will be itemized in an exhibit
entitled "Initial Tenant's Work" prepared by Landlord and
attached to this Lease as Exhibit H.
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.
6.1.10 RULES AND REGULATIONS. To comply with the Rules and
Regulations set forth in Exhibit F, and with all reasonable
Rules and Regulations hereafter made by Landlord, of which
Tenant has been given notice.
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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 G or in another form
reasonably similar thereto, or such other form as Landlord
may provide from time to time, certifying all or any of the
following: (i) that this Lease is unmodified and in full
force and effect, (ii) whether the term has commenced and
Fixed Rent and Additional Rent have become payable hereunder
and, if so, the dates to which they have been paid, (iii)
whether or not Landlord is in default in performance of any
of the terms of this Lease, (iv) whether Xxxxxx has accepted
possession of the Premises, (v) whether Xxxxxx 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 .I 1 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
Xxxxxx for consent or approval hereunder.
6.1.13 CLEANING. Tenant shall clean the Premises in accordance with
cleaning and janitorial standards generally prevailing
throughout the term hereof in comparable office buildings
within the municipality in which the Building is located.
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 (as 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 Xxxxxx'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 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, Xxxxxxxx's
consent shall not be unreasonably withheld, conditioned or
delayed to an assignment or to a subletting, provided that
the following conditions are met:
1) 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
with or has negotiated with within 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 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 Xxxxxx 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
Xxxxxx's reasonable expenses incurred 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 advertising 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.
With respect to any assignment or subletting during the
original term of this Lease, such assignment shall not
include the right granted to Tenant under Section 2.3
hereinabove to extend the term, and such sublease shall be
for a term expiring no later than the Expiration Date.
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
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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 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 bond
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
theretofore approved by Landlord and assuring that the
Premises will remain free of any mechanics' lien or other
encumbrance arising out of such work. In any event, Tenant
shall 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 of
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. In the event a security interest in
personal property has been granted by Tenant prior to the
Date of this Lease and Tenant has on or before the Date of
this Lease provided written notice to Landlord identifying
the Secured Party holding such security interest (which
notice shall contain such information reasonably requested
by Xxxxxxxx), Landlord shall notify said Secured Party of
the expiration or early termination of this Lease and shall
provide said Secured Party with ten (10) business days to
remove the personal property from the Premises after the
expiration or early termination of this Lease. If Tenant
fails to provide such notice to Landlord as aforesaid,
Landlord shall not be obligated to provide any notice to the
Secured Party as aforesaid and such property upon the
expiration or earlier termination of the Lease shall be
subject to the provisions of subsection 6.1.9.
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. Notwithstanding the foregoing, Tenant may erect
one (1) identifying sign on the Building facing the interior
of the Park and one (I) identifying sign on the Building
facing Route 3, provided any and all such signage complies
with the signage policy for Northwest Park and is in
compliance with all laws. All signage shall be at Tenant's
sole cost and expense and shall be maintained in good repair
by Tenant.
6.2.8 PARKING AND STORAGE. Not to permit any storage of materials
outside of the Premises; nor to permit the use of the
parking areas for either temporary or permanent storage of
trucks; nor permit the use of the Premises for any use for
which heavy trucking would be customary.
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
11
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. Xxxxxxxx'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
collection 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.
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 Xxxxxx'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 Xxxxxx 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 judgment 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 free 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 Xxxxxx'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 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 RIZHT 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
12
whenever Landlord so elects, all costs and expenses incurred by
Xxxxxxxx, 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 Xxxxxx.
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 may 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 bolder 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. Xxxxxx agrees on
request of Xxxxxxxx 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 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).
Xxxxxx agrees it will, upon not less than ten (10) days' prior written
request by Xxxxxxxx, 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 PARTV 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. Xxxxxxxx agrees that upon Xxxxxx'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. Xxxxxx agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute and
deliver a notice or short form of this Lease in such form, if any, as
may be permitted by applicable statute.
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. 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 Xxxxxx 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
13
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 Xxxxxxxx'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 and 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, as applicable, 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 Xxxxxx. 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 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
by Middlesex Turnpike Corp, Manager
------------------------------------
President
[ILLEGIBLE]
------------------------------------
V.P.
Tenant:
ACME PACKET, INC.
By: Xxxxx Xxxxxxx
-----------------------------------
Its: Chief Financial Officer.
----------------------------------
Hereunto Duly Authorized
14
EXHIBIT A
PLAN SHOWING THE PREMISES
[GRAPHIC]
[GRAPHIC]
EXHIBIT B
COMMENCEMENT DATE NOTIFICATION
To:
----------------------
(Tenant)
("Landlord") and ("Tenant") are parties to a lease ("Lease")
dated of premises in a building known as , Massachusetts.
Landlord hereby notifies Tenant that the term of the Lease commenced on and
will end on and that the first lease year commenced on and
will end on . Although not required for this notification to be effective,
we would appreciate your confirming the foregoing by signing the enclosed
copy of this letter and returning it to us.
--------------------
(Landlord)
By:
-----------------
Confirmed:
----------------------
(Tenant)
By:
----------------------
604048_4
EXHIBIT C
PLAN AND SPECIFICATIONS
FIRST FLOOR PLAN
[GRAPHIC]
EXHIBIT C
PLAN AND SPECIFICATIONS
SECOND FLOOR PLAN
[GRAPHIC]
EXHIBIT C
PLANS AND SPECIFICATIONS
With reference to Xxxxxx Architect, Inc.'s Schematic Design #4 dated 7.15.04
incorporated herein with this Exhibit C (Exhibit C Plans), the Landlord's Work
will be performed according to the following specifications:
DRYWALL: Tenant partitions to be 3 5/8" metal studs with one layer of
1/2" gypsum board on each side, and will be constructed in
accordance with the Exhibit C Plans. Except as is otherwise
indicated on the Exhibit C Plans, partitions will extend
from floor to underside of suspended ceiling. Those
partitions highlighted in yellow on Exhibit C Plans will be
constructed from floor to approximately 6" above the
suspended ceiling.
DOORS & FRAMES: Interior doors to be 3'-0" x 7'-0" solid-core with
maple veneer in hollow metal welded 30" sidelight frames
with SchlageTM or equal standard cylindrical lever hardware.
Hardware to include 1/2" pair of butts, one standard duty
brushed-aluminum lever passage set and one door stop.
MILLWORK: Maple veneer xxxxx at all exterior windows. Kitchen (lst
Floor) millwork and Coffee Station (2nd Floor) to each
include up to ten (10) linear feet of upper and lower
kitchen cabinets with P-XXX countertops. Millwork to be
ADA-compliant, and be comprised of standard-sized, white,
off-white, or gray laminate cabinets, with custom plastic
laminate tops (color by Architect). Reception desk and
furniture by Tenant. No other millwork included.
APPLIANCES: A dishwasher and a sink-mounted garbage disposal unit will
be installed in the first-floor kitchen.
CEILINGS: New 2'x4' suspended Second Look or equivalent revealed-edge
ceiling tiles to be installed throughout Premises with the
following exceptions: the Main Conference Room on the first
floor and the Board Room on the second floor will each have
a 2'x2' "fine-line" suspended ceiling.
ELECTRIC: LIGHTS: Standard will be 2' x 4' fluorescent light fixtures
with electronic ballasts (T8) and 18 cell parabolic lenses.
Typical density is one fixture per 80 square feet of usable
area. One of every 20 - 25 of these fixtures will be
provided with emergency battery backup, in accordance with
fire code requirements and final tenant partition layout. In
Board Room (2nd Floor) and Main Conference Room (1" Floor)
up to eight (8) each dimmable down lights ("cans") shall
also be provided on a separate wall switch.
WORKSTATIONS: Workstation wiring circuitry to be provided in
the ratio of one (1) 20 amp circuit for every three (3)
workstations. Tenant's partition furniture to be pre-wired
including whips. Xxxxxxxx's electrician will make final
connection. Workstations to be fed from walls or columns, or
by power poles if provided by Tenant.
SWITCHES: One single-pole wall-mounted light switch pkr
+/-4,000 square feet of open area and one per private
office, conference room, or otherwise demised area.
OUTLETS: One (1) duplex wall utility receptacle per 500+/-
square feet of open area and two per private office (larger
offices may have three duplex wall utility receptacles).
Lights, outlets, and VAV boxes within Premises to be wired
to Tenant electric meter. No power poles we included. Floor-
mounted electric/tel/data devices, one (1) each, will be
installed in Board Room (2nd Floor) and Main Conference Room
(lst Floor). At Tenant's election and cost, additional
floor-mounted electric/tel/data devices may be installed.
Electric panels and transformers requisite for Tenant
distribution to be located within Premises.
EXIT SIGNS
Per code.
FIRE ALARM
Per code.
TEL/DATA
Landlord to provide "rings & strings" from above-finished
ceiling to in-wall junction boxes at locations denoted by
Architect. All other telldata wiring and installation work
by Xxxxxx.
HVAC: New, TRANE gas-fired Variable-Air-Volume (VAV) HVAC rooftop
units (RTU's) on galvanized structural steel grillage. RTU's
employ electric cooling, and gas-fired early morning warm-up
cycles. HVAC distribution to meet Class-A suburban office
standards, and be engineered by Xxxxxxxx's mechanical
subcontractor. No other HVAC systems are included. Per
Tenant's request, TestingICustomer Service Lab to be zoned
with dedicated VAV boxes.
FLOORING: A carpet allowance of $20 per square yard installed will be
provided for office areas. Resilient flooring (VCT) to be
installed in the Kitchen. At Tenant's election VCT may be
substituted in other appropriate areas; i.e:, Communication
Room, Storage Room, etc. 24"x 24" Lan carpet tile Xxxxxx
(Black Forest) or equivalent, anti-static carpet will be
installed in the Manufacturinglstorage area and the
Testing/Customer Service Lab. Vinyl wall base shall be
installed throughout in a color specified by Architect and
approved by Tenant and Landlord.
WALL FINISHES: All wall surfaces shall receive two coats of latex
paint with an eggshell finish using not more than four (4)
readily available colors. Hardwood doors and windowsills
shall receive two coats of clear polyurethane. All door
frames shall receive two coats of semi-gloss enamel. All
colors will be specified by Architect and approved by Tenant
and Landlord. No wall coverings will be provided.
SPRINKLER: Entire building to have wet pipe system for Ordinary Hazard
Group 11.
WINDOWS: All exterior windows will have 3" perforated PVC vertical
blinds in type and color selected by architect. No interior
blinds provided.
NOTE: TELEPHONE WIRING, DATA WIRING, SECURITY SYSTEM, AND
DEDICATED HVAC SYSTEMS, ARE NOT INCLUDED IN THE PROPOSED
WORK.
EXHIBIT D
WORK CHANGE ORDER
Lease Date: __________________________ Date: ________________________________
Landlord: ____________________________ Work Change Order No.: _______________
Tenant: ______________________________ Building Address: ____________________
Premises: ____________________________
________________________________________________________________________________
Tenant directs Landlord to make the following additions to Xxxxxxxx'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 :
Xxxxxxxx approves this Work Change Order and Xxxxxx 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 Xxxxxx.
Tenant: Landlord:
By: _____________________________ By: ____________________________
Title: __________________________ Title: _________________________
EXHIBIT E
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
EXHIBIT F
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, corridors, vestibules, halls,
elevators, 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.
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.
EXHIBIT G
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.
EXECUTED UNDER SEAL AS OF ______________,20__.
TENANT:
______________________________
By: __________________________
Name:
Title:
Duly Authorized
EXHIBIT H
INITIAL TENANT'S WORK
EXHIBIT D
WORK CHANGE ORDER
Lease Date: AUGUST 9, 2004 _______ Date: _________________ NOVEMBER 30,2004
Landlord: SEVENTY ONE LIMITED LIABILITY COMPANY Work Change Order No.: _____________ 1
Tenant: ACME PACKET, INC.____________ Building Address: 00 XXXXX XXX., XXXXXXXXXX, XX
Premises: 43,061 SF_______
Tenant directs Landlord to make the following additions to Xxxxxxxx's work:
Description of additional work:
TENANT-REQUESTED ADDITIONAL WORK AS DETAILED ON ATTACHED SHEET FROM ERLAND
CONSTRUCTION.
Work Change Order Amount:
$225,671.43
________________________________________________________________________________
Amount of Previous Work Change Orders: .......................... $ 0
This Work Change Order: ......................................... $ 225,671.43
Total Amount of Work Change Orders: .............................. $ 225,671.43
Xxxxxxxx approves this Work Change Order and Xxxxxx 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 Xxxxxx.
Tenant: Landlord:
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
-------------------------- -----------------------------
[ILLEGIBLE]
Title: Chief Financial Officer Title:
----------------------- --------------------------
VP Development, Agent for N.W. 37 Trust
TENANT ESTOPPEL CERTIFICATE
To: Middlesex Savings Bank
0 Xxxx Xxxxxx
Xxxxxx, XX 00000 ("Lender")
Acme Packet, Inc., a Delaware corporation having an address 000 Xxx Xxxxxx
Xxxxxx, Xxxxxx, XX 00000, ("Tenant") hereby certifies as follows:
1. That the undersigned is the Tenant under that certain Lease dated August
9,2004 (the "Lease") executed by Seventy One LLC) ("Landlord") as Landlord
and the undersigned as Tenant, covering the property known as Building 37
and located at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx (the "Property").
2. A. That, pursuant to the Lease, Tenant has leased approximately 43,061
square feet of space at the Property) and, as security for Tenant's
performance of its obligations under the Lease, has delivered to Landlord
an Irrevocable Standby Letter of Credit No. SVBSF002998 dated August
19,2004 issued by Silicon Valley Bank in the amount of $300,000.00; that
the tern of the Lease is scheduled to commence on the "Commencement Date"
as said tern is defined in the Lease and a fixed monthly rental payment in
the amount of $43,061.00 is due on the later of (i) July 1,2005 or (ii) the
date on which "Landlord's Work" (as defined in the Lease) has been
substantially completed under the Lease; that Tenant is required to pay as
"Additional Rent" (as said term is defined in the Lease)all annual
operating expenses, real estate taxes for the building of which the demised
premises are a part and other charges, all as provided in the Lease, on an
estimated basis, on the first day of each month commencing on the later of
(i) and (ii) hereinabove, all as provided in the Lease.
B. That Tenant will not make any payment under the Lease more than one
(1) month in advance of the due date thereunder.
3. That the Lease is in full force and effect and there are no amendments,
modifications or supplements thereto, whether oral or written.
4. The Lease does not provide for an option to purchase the Property, or any
part thereof.
5. That true, correct and complete copies of the Lease and all amendments,
modifications and supplements thereto are attached hereto as Exhibit A; and
that the Lease, as so amended, modified and supplemented, is in full force
and effect and represents the entire agreement between Tenant and Landlord
with respect to the demised premises and the Property.
6. That, to Xxxxxx's knowledge, all conditions under the Lease to be performed
by Landlord as of the date hereof, except for the work or improvements
described in Exhibit C hereto, have been satisfied.
7. That, upon substantial completion of the Landlord's Work (as defined in the
Lease), Tenant is prepared to take occupancy of the demised premised under
the terms of the Lease.
8. That, to Xxxxxx's knowledge, Landlord is not in any respect in default in
the performance of the terms and provisions of the Lease, and no event has
occurred which with the giving of notice or the passage of time, or both,
will constitute a default by the Landlord under the Lease, nor does the
Tenant claim any such default.
9. That, to Tenant's knowledge, Tenant is not in any respect in default under
the Lease and no event has occurred which with the giving of notice or the
passage of time, or both, will constitute a default by Tenant under the
Lease, and Tenant has not assigned, transferred, encumbered or hypothecated
the Lease or any interest therein or subleased all or any portion of the
demised premises.
10. That, to Tenant's knowledge, there are no offsets or credits against
rentals payable under the Lease and no free rent periods or rental
concessions have been granted to Tenant except the following: that Tenant
does not commence paying rent for the Premises until the later of (i) July
1,2005 or (ii) the date that Landlord's Work (as defined in the Lease) has
been "substantially completed" (as defined in the Lease).
11. That except as expressly provided in the Lease, and other documents
attached hereto, Tenant does not have any right or option to renew or
extend the term of my Lease, to lease other space at the Property, nor any
preferential right to lease or purchase all or any part of the demised
premises or the Property.
12. That Tenant has no right to terminate the Lease except as set forth in the
Lease.
13. That neither Tenant nor any guarantor of Tenant's obligations under the
Lease is the subject of any bankruptcy, insolvency or creditors' rights
proceedings.
14. That, except as permitted under the Lease, Tenant has no actual or
knowledge of the unlawful presence, use, storage, disposal, release or
treatment of any hazardous or toxic materials or substances at, on or
beneath the demised premises or Property.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
2
This Certificate is given to Lender with the understanding that Lender or its
designee will rely hereon in connection with the financing of the Property
including, without limitation, in connection without a $4,200,000.00 mortgage
loan from Lender to Landlord. Following any such financing, the Lease shall
remain in full force and effect.
Executed under seal as of December 22, 2004.
WITNESS: TENANT
ACME PACKET, INC., a Delaware corporation
/s/ Xxxxx Xxxxxxxxx By:/s/ Xxxxx Xxxxxxx
---------------------------- ------------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
duly authorized
3
EXHIBIT A
[ATTACH LEASE AND AMENDMENTS TO THIS CERTIFICATE]
4
NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS AGREEMENT is made and entered into as of this day of
December, 2004, by and among MIDDLESEX SAVINGS BANK (hereinafter called the
"Lender"), and ACME PACKET, INC., a Delaware corporation having an address at
000 Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000 (hereinafter called the "Tenant"), and
SEVENTY ONE LLC, a
Massachusetts limited liability company having an address c/x
Xxxxxxxx Management Company, Inc., 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
(hereinafter called the "Landlord").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx owns certain real property located in Middlesex County,
Massachusetts, and more particularly described in EXHIBIT A attached hereto and
made a part hereof (said property being hereinafter called the "Property"); and
WHEREAS, Xxxxxxxx and Xxxxxx made and entered into that certain Xxxxx,
dated the 9th day of August, 2004, with respect to the Property (said Lease
being hereinafter called the "Lease" and said premises being hereinafter called
the "Leased Premises"); and
WHEREAS, on or about the date hereof, Landlord has entered into and
delivered that certain Mortgage and Security Agreement in favor of Lender to be
recorded in the Middlesex Registry of Deeds and filed in the Middlesex South
County Registry District of the Land Court prior to the recording of this
Agreement (said Mortgage and Security Agreement and all amendments, renewals,
increases, modifications, replacements, substitutions, extensions, spreaders,
restatements, and consolidations thereof and all re-advances and advances
thereunder and additions thereto being hereinafter called the "Security Deed"),
conveying the Property to secure the payment of the indebtedness described in
the Security Deed; and
WHEREAS, on or about the date hereof, Landlord has entered into and
delivered that certain Collateral Assignment of Leases and Rents in favor of
Lender to be recorded in the Middlesex Registry of Deeds and filed in the
Middlesex South County Registry District of the Land Court prior to the
recording of this Agreement (said Assignment of Leases and Rents being
hereinafter called the "Assignment of Leases"), assigning all of Landlord's
right, title and interest as lessor under the Lease to further secure the
Secured Debt, as described and defined in the Security Deed; and
WHEREAS, the parties hereto desire to enter into this Non-Disturbance,
Attornment and Subordination Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Tenant, and Landlord each
hereby covenants and agrees as follows:
1. NON-DISTURBANCE. So long as no default exists, nor any event has occurred
which has continued to exist for such period of time (after notice, if any,
required by the Lease) as would entitle the lessor under the Lease to
terminate the Lease or would cause, without any further action on the part
of such lessor, the termination of the Lease or would entitle such lessor
to dispossess the lessee thereunder, the Lease shall not be terminated, nor
shall such lessee's use, possession or enjoyment of the Leased Premises or
rights under the Lease be interfered with in any foreclosure or other
action or proceeding in the nature
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of foreclosure instituted under or in connection with the Security Deed or
in the event that Xxxxxx takes possession of the Property pursuant to any
provisions of the Security Deed or the Assignment of Leases, unless the
lessor under the Lease would have had such right if the Security Deed or
the Assignment of Leases had not been made, except that neither the person
or entity acquiring the interest of the lessor under the Lease as a result
of any such action or proceeding or deed in lieu of any such action or
proceeding (hereinafter called the "Purchaser") nor Lender if Xxxxxx takes
possession of the Property shall be (a) liable for any act or omission of
any prior lessor under the Lease other than defaults of a continuing nature
that (i) exist as of the date Purchaser or Lender takes possession or
becomes owner of the Property for which notice to Lender has been duly
given by either Landlord or Tenant and (ii) constitute a breach of
Landlord's obligations under Sections 2.1, Article 5 and Article 10, for
which Lender's or Purchaser's liability shall be limited to the period of
time after Lender or Purchaser acquire the interest of Landlord under the
Lease or Lender takes possession of the Property, and shall be limited _ as
is otherwise provided herein; or (b) liable for the return of any security
deposit or letter of credit which lessee under the Lease has paid or
delivered to any prior lessor under the Lease unless such is held by Lender
and, in addition, in the case of a letter of credit, has been issued in
Lender's name; or (c) subject to any offsets or defenses which the lessee
under the Lease might have against any prior lessor under the Lease; or (d)
bound by any base rent, percentage rent or any other payments which the
lessee under the Lease might have paid for more than the current month to
Landlord or any prior lessor under the Lease; or (e) bound by any amendment
or modification of any material term of the Lease made without Lender's
prior written consent; or (f) personally liable for any default under the
Lease or any covenant or obligation on its part to be performed thereunder
as lessor, it being acknowledged and agreed that (i) Tenant's sole remedy
in the event of such default shall be to proceed against Purchaser's or
Xxxxxx's interest in the Property and (ii) Lender's liability under the
Lease shall be limited to Xxxxxx's interest in the Property and in no event
shall Lender be liable for indirect or consequential damages.
Notwithstanding anything contained herein to be contrary, Lender shall have
absolutely no obligation to perform any of Landlord's construction
covenants under the Lease, provided that if Lender shall not perform such
covenants in the event of foreclosure or deed in lieu thereof and within a
reasonable time following taking of possession by Xxxxxx, then Tenant shall
have the right to terminate its obligations under the Lease and to pursue
any and all legal remedies it may have against Landlord and any third
parties other than Lender.
2. ATTORNMENT. Unless the Lease is terminated in accordance with Paragraph 1,
if the interests of the lessor under the Lease shall be transferred by
reason of the exercise of the power of sale contained in the Security Deed
(if applicable), or by any foreclosure or other proceeding for enforcement
of the Security Deed, or by deed in lieu of foreclosure or such other
proceeding, or if Lender takes possession of the Property pursuant to any
provisions of the Security Deed or the Assignment of Leases, the lessee
thereunder shall be bound to the Purchaser or Lender, as the case may be,
under all of the terms, covenants and conditions of the Lease for the
balance of the term thereof and any extensions or renewals thereof which
may be effected in accordance with any option therefor in the Lease, with
the same force and effect as if the Purchaser or Lender were
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the lessor under the Lease, and Tenant, as lessee under the Lease, does
hereby attorn to the Purchaser and Lender if it takes possession of the
Property, as its lessor under the Lease. Purchaser, and Lender if it takes
possession of the Property, hereby further agree that it will accept such
attornment and, subject to the provisions of this Agreement including,
without limitation, the provisions of paragraph 1 hereinabove, as of the
date of such purchase or possession and for any obligations of Landlord
that arise under the Lease from and after such date, it will assume and
perform (but only while the owner or in possession of the Property) all of
Landlord's obligations under the Lease and be bound to Tenant under the
provisions of the Lease for the balance of the term thereof and any
extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if the
Purchaser or Lender were the Landlord under the Lease, except as otherwise
provided in this Agreement. Such attornment shall be effective and
self-operative without the execution of any further instruments upon the
succession by Xxxxxxxxx to the interest of the lessor under the Lease or
the taking of possession of the Property by Xxxxxx. Nevertheless, Tenant
shall, from time to time, execute and deliver such instruments evidencing
such attornment as Purchaser or Lender may require in forms reasonably
acceptable to Lender and Tenant. The respective rights and obligations of
Purchaser, Lender and of the lessee under the Lease upon such attornment,
to the extent of the then remaining balance of the term of the Lease and
any such extensions and renewals, shall be and are the same as now set
forth in the Lease except as otherwise expressly provided in Paragraph 1.
3. SUBORDINATION. Tenant hereby subordinates all of its right, title and
interest as lessee under the Lease as the same may be modified, amended or
extended, to the right, title and interest of Lender under the Security
Deed and to each and every advance heretofore made or hereafter made under
the Security Deed, and Xxxxxx further agrees that the Lease now is and
shall at all times continue to be subject and subordinate in each and every
respect to the Security Deed and to any and all increases, renewals,
modifications, extensions, substitutions, replacements and/or
consolidations of the Security Deed.
4. ASSIGNMENT OF LEASES. Tenant hereby acknowledges that all of Landlord's
right, title and interest as lessor under the Lease is being duly assigned
to Lender pursuant to the terms of the Security Deed and the Assignment of
Leases, and that pursuant to the terms thereof all rental payments under
the Lease shall continue to be paid to Landlord in accordance with the
terms of the Lease unless and until Tenant is otherwise notified in writing
by Xxxxxx. Upon receipt of any such written notice from Lender, Tenant
covenants and agrees to make payment of all rental payments then due or to
become due under the Lease, including, without limitation, any and all
payments provided in Section 8.2 of the Lease, directly to Lender or to
Lender's agent designated in such notice and to continue to do so until
otherwise notified in writing by Xxxxxx. Landlord hereby irrevocably
directs and authorizes Tenant to make rental payments directly to Lender
following receipt of such notice, and Landlord covenants and agrees that
Tenant shall have the right to rely on such notice without any obligation
to inquire as to whether any default exists under the Security Deed or the
Assignment of Leases or the indebtedness secured thereby, and
notwithstanding any notice or claim of Landlord to the contrary, and that
Landlord shall have no right or claim against Tenant for or by reason of
any rental payments made by Tenant to Lender following receipt of such
notice. Lender and
-3-
Landlord further agree that Tenant shall be credited under the Lease for
any rental payment received by Lender pursuant to such written notice.
5. NOTICE OF DEFAULT BY LANDLORD. Tenant, as lessee under the Lease, hereby
covenants and agrees to give Xxxxxx written notice properly specifying
wherein the lessor under the Lease has failed to perform any of the
covenants or obligations of the lessor under the Lease, simultaneously with
the giving of any notice of such default to the lessor under the provisions
of the Lease. Tenant agrees that Lender shall have the right, but not the
obligation, within ten (10) days after the expiration of any cure period
provided to Landlord under the Lease for such cure (or for such additional
time as is reasonably required to cure such default provided that Lender
has given notice to Tenant of Lender's intent to cure such default and
Lender is diligently proceeding to cure such default) to correct or remedy,
or cause to be corrected or remedied, each such default before the lessee
under the Lease may take any action under the Lease by reason of such
default. In addition, Landlord shall provide to Lender, simultaneously with
its delivery of said document to the Tenant, a copy of any "Commitment Date
Notification" provided by Landlord under the Lease and a copy of any such
notification signed by Tenant Such notices to Lender shall be delivered in
duplicate to:
Middlesex Savings Bank
0 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxx
or to such other address as the Lender shall have designated to Tenant by
giving written notice to Tenant, prior to possession by Tenant under the
Lease at 000 Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, and, after possession by
Tenant under the Lease at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 Attention:
CFO, or to such other address as may be designated by written notice from
Tenant to Lender.
6. NO FURTHER SUBORDINATION. Except as expressly provided to the contrary in
Paragraph 4 hereof, Landlord and Tenant covenant and agree with Lender that
there shall be no further subordination of the interest of lessee under the
Lease to any lender or to any other party without first obtaining the prior
written consent of Xxxxxx. Any attempt to effect a further subordination of
xxxxxx's interest under the Lease without first obtaining the prior written
consent of Lender shall be null and void.
7. TITLE OF PARAGRAPHS. The titles of the paragraphs of this agreement are for
convenience and reference only, and the words contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this agreement.
8. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of
Massachusetts.
9. PROVISIONS BINDING. The terms and provisions hereof shall be binding upon
and shall inure to the benefit of the heirs, executors, administrators,
successors and permitted assigns, respectively, of Lender, Tenant and
Landlord. The reference contained to
-4-
successors and assigns of Tenant is not intended to constitute and does not
constitute a consent by Landlord or Lender to an assignment by Xxxxxx, but
has reference only to those instances in which the lessor under the Lease
and Xxxxxx shall have given written consent to a particular assignment by
Tenant thereunder.
10. CASUALTY INSURANCE PROCEEDS AND CONDEMNATION AWARDS. Notwithstanding
anything to the contrary contained in this Agreement or in the Lease, the
Tenant agrees that (i) the provisions of the Security Deed shall govern
with regard to casualty insurance proceeds and condemnation awards, and
(ii) in the event the casualty insurance proceeds or condemnation awards
are not made available for restoration of the Premises, such proceeds or
awards shall be paid to the Lender.
11. JURY TRIAL. Both the Tenant and the Lender hereby irrevocably waive all
right to trial by jury in any action, proceeding or counterclaim arising
out of or relating to the Lease or this Agreement.
-5-
IN WITNESS WHEREOF, the parties have hereunto set their respective hands
and seals as of the day, month and year first above written.
LENDER:
MIDDLESEX SAVINGS BANK
By:
-------------------------
Title:
TENANT:
ACME PACKET, INC., a Delaware
corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------
Title: Chief Financial Officer
-6-
LANDLORD:
SEVENTY ONE LLC, a Massachusetts limited
liability company
By: MTP Limited Partnership, a Massachusetts limited
partnership, its Manager
By: Middlesex Turnpike Corp., a Massachusetts
corporation, its General Partner
By:
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Its President
By:
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Its Duly Authorized Person
By: Middlesex Turnpike Corp., a Massachusetts
corporation, its Manager
By:
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Its President
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COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this ______ day of December, 2004, before me, the undersigned
notary public, personally appeared ________________, as _____________ of
Middlesex Savings Bank, proved to me through satisfactory evidence of
identification, which were ______________, to be the person whose name is signed
on the preceding or attached document and acknowledged to me that he signed it
voluntarily for its stated purpose.
---------------------------------
(official signature and seal
and stamp of notary public)
My Commission Expires: __________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this 22nd day of December, 2004, before me, the undersigned notary
public, personally appeared [ILLEGIBLE], as C.F.O of Acme Packet, Inc., proved
to me through satisfactory evidence of identification, which were [ILLEGIBLE] be
the person whose name is signed on the preceding or attached document and
acknowledged to me that he signed it voluntarily for its stated purpose.
/s/ Xxxx X. Xxxxxxx
---------------------------------
(official signature and seal
and stamp of notary public)
My Commission Expires: XXXX X. XXXXXXX
Notary Public
Commonwealth of Massachusetts
[SEAL] My Commission Expires
October 2, 2009
-8-
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this ______ day of December, 2004, before me, the undersigned
notary public, personally appeared ______________, as the President of Middlesex
Turnpike Corp., (i) the general partner of MTP Limited Partnership, the manager
of Seventy One LLC and (ii) the manager of Seventy One LLC, proved to me through
satisfactory evidence of identification, which were _______________,to be the
person whose name is signed on the preceding or attached document and
acknowledged to me that he signed it voluntarily for its stated purpose.
---------------------------------------
(official signature and seal
and stamp of notary public)
My Commission Expires: ________________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this _____ day of December, 2004, before me, the undersigned notary
public, personally appeared _______________, as duly authorized person of
Middlesex Turnpike Corp., the general partner of MTP Limited Partnership, the
manager of Seventy One LLC, proved to me through satisfactory evidence of
identification, which were _________________, to be the person whose name is
signed on the preceding or attached document and acknowledged to me that he
signed it voluntarily for its stated purpose.
---------------------------------------
(official signature and seal
and stamp of notary public)
My Commission Expires: ________________
-9-
EXHIBIT "A"
Two certain parcels of land with the buildings thereon in Burlington, Middlesex
County, Massachusetts, bounded and described as follows:
Parcel 1: (Registered Land)
Said parcel comprises Lot 88 on a plan drawn by Xxxxxxx X. Xxxxxxx Co., Inc.,
Surveyor dated April 1973, as approved by the Land Court, filed in the Land
Registration Office as No. 6728-9, a copy of a portion of which is filed in
Middlesex South Registry of Deeds District of the Land Court with Certificate
Number 12333 1, Book 746, Page 18 1.
Parcel 11: (Recorded Land)
A certain parcel of land, situated in said Burlington, shown as Lot K-4 on a
plan entitled "Land in Burlington, Mass. Surveyed for Middlesex Turnpike
Industrial Trust" prepared by Xxxxxxx X. Xxxxxxx Co. Inc., Engineers and
Surveyors, dated March 1973, the original linen tracing of which is recorded
with Middlesex South Registry of Deeds at the end of Book 12454, to which plan
reference is made for a more particular description, and containing 2 acres and
28,791 square feet, according to said plan.
Together with the benefits of that certain Access Easement Agreement dated
December 5,2000 by and between Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx
Xxxxxxxx and Xxxx X. Xxxxxxxx as Trustees of Middlesex Turnpike Industrial Trust
("Fee Owners") and Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx as
Trustees of N.W. Building 38 Associates ("Ground Lessees") and Seventy One LLC
("Grantees") recorded in Middlesex South District Registry of Deeds in Book 32
168, Page 584.
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