LEASE AGREEMENT BY AND BETWEEN MA-RIVERSIDE PROJECT, L.L.C., AS LANDLORD AND TECHTARGET, INC., AS TENANT DATED JULY ____, 2009 ONE RIVERSIDE CENTER, NEWTON, MASSACHUSETTS
BY
AND BETWEEN
MA-RIVERSIDE
PROJECT, L.L.C., AS LANDLORD
AND
TECHTARGET,
INC., AS TENANT
DATED
JULY
____, 0000
XXX
XXXXXXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX
Table of
Contents
Page
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1.1.
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Introduction
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1.2.
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Basic
Data
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1.3.
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Additional
Definitions
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ARTICLE
II PREMISES AND APPURTENANT
RIGHTS
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2.1.
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Lease
of Premises
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2.2.
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Appurtenant
Rights and Reservations
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2.3.
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Rooftop
Equipment
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2.4.
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Fitness
Center
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2.5.
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Cafeteria
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2.6 Adjustment
to Premises Rentable Area
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ARTICLE
III RENT
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3.1.
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Basic
Rent
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3.2 Expenses
and Taxes
3.3 Independent
Covenants
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ARTICLE
IV TERM OF LEASE
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4.1.
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Commencement
Date
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4.2.
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Preparation
of the Premises
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4.3.
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Conclusiveness
of Landlord’s Performance; Warranties
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4.4
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Relocation
Expense
Reimbursement……………………………………………….
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ARTICLE
V USE OF PREMISES
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5.1.
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Permitted
Use; Compliance with Laws
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5.2.
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Installations
and Alterations by Tenant
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ARTICLE
VI ASSIGNMENT AND
SUBLETTING
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6.1.
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Prohibition
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6.2.
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Excess
Payments
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ARTICLE
VII RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF
PREMISES
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7.1.
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Landlord
Repairs
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7.2.
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Tenant’s
Agreement
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7.3.
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Floor
Load - Heavy Machinery
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7.4.
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Building
Services
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7.5.
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Electricity
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7.6.
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Interruption
of Services
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ARTICLE
VIII OMITTED
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ARTICLE
IX OMITTED
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ARTICLE
X INDEMNITY AND PUBLIC LIABILITY
INSURANCE
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10.1.Tenant’s
Indemnity
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10.2.Tenant's
Insurance
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10.3.Tenant’s
Risk
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10.4.Injury
Caused by Third Parties
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10.5.Landlord’s
Insurance
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10.6.Waiver
of Subrogation
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ARTICLE
XI LANDLORD’S ACCESS TO
PREMISES
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11.1.Landlord’s
Rights
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ARTICLE
XII FIRE, EMINENT DOMAIN,
ETC.
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12.1.Abatement
of Rent
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12.2.Right
of Termination
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12.3.Restoration
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12.4.Award
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12.5.Temporary
Taking
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ARTICLE
XIII DEFAULT
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13.1.Default
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13.2.Remedies
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ARTICLE
XIV MISCELLANEOUS PROVISIONS
AND
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14.1.Extra
Hazardous Use
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14.2.Waiver
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14.3.Covenant
of Quiet Enjoyment
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14.4.Landlord’s
Liability
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14.5.Notice
to Mortgagee
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14.6.Assignment
of Rents and Transfer of Titles
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14.7.Rules
and Regulations
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14.8.Additional
Charges
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14.9.Invalidity
of Particular Provisions
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14.10.Provisions
Binding, Etc.
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14.11.Recording
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14.12.Notices
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14.13.When
Lease Becomes Binding
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14.14.Paragraph
Headings
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14.15.Rights
of Mortgagee
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14.16.Status
Report
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00.00.Xxxxxxxx
Deposit
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14.18.Remedying
Defaults; Late Payments
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14.19.Holding
Over
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14.20.Surrender
of Premises
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14.21.Brokerage
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14.22.Environmental
Compliance
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14.23.Exhibits
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14.24.Governing
Law
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14.25.Evidence
of Authority.
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14.26.Representations
and Warranties of Tenant.
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14.27.Landlord’s
Representations and Warranties
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14.29.Force
Majeure Event
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ARTICLE
XV TENANT OPTION TO
EXTEND
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15.1.Fair
Market Rent
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15.2.Option
to Extend
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ARTICLE
XVI RIGHT OF FIRST OFFER TO
LEASE
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EXHIBIT
LIST
Exhibit
A: The
Land
Exhibit
B: Floor
Plan
Exhibit
B-1: Omitted
Exhibit
B-2 Signage
Exhibit
B-3: Dock
Storage Space Plan
Exhibit
C: Landlord's
Work
Exhibit
D: Omitted
Exhibit
E: Cleaning
Specifications
Exhibit
F: Expenses
and Taxes
Exhibit
G: Rules
and Regulations
Exhibit
G-1: Parking
Rules and Regulations
Exhibit
H: Form
of Letter of Credit
Exhibit
I: Property
Title Policy
Exhibit
J: Commencement
Date Letter
Exhibit
K: Security
Protocols and Services
Exhibit
L: SNDA
Form
THIS INSTRUMENT IS A LEASE,
dated as of July ___, 2009, in which the Landlord and the Tenant are the parties
hereinafter named, and which relates to space in a building (the “Building”)
located at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. The parties
to this instrument hereby agree with each other as follows:
BASIC
LEASE PROVISIONS
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1.1.
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Introduction
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The
following sets forth basic data and, where appropriate, constitutes definitions
of the terms hereinafter listed.
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1.2.
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Basic
Data
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Landlord: MA-Riverside
Project, L.L.C., a Delaware limited liability company
Landlord’s Original Address:
000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx, XX 00000
Tenant: Tech
Target, Inc., a Delaware corporation
Tenant’s
Original Address:
Before the Commencement
Date: 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
From and After the Commencement
Date: The Premises.
Building: The
improvements known as Building One, Building Two and Building Three, located at
000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, comprised of approximately 508,368
rentable square feet.
Basic Rent per square foot of the Premises
Rentable Area per annum:
Year 1
through Year
2: $31.00
Year 3 through Year
4: $32.00
Year 5 through Year
6: $33.00
Year 7 through Year
8 $34.00
Year 9 through Year
10 $35.50
Basic
Rent may be adjusted and/or abated pursuant to Section 4.2 and
12.1.
Tenant
shall also pay additional rent at the rate of $10.00 per rentable square foot
per year for Tenant’s Dock Storage Space under the provisions of Section 7.4(a)
below, commencing on the Commencement Date.
Basic Rent Commencement
Date: The date which is ten (10) full calendar months after
the Commencement Date.
Premises Rentable
Area: Approximately eighty-seven thousand eight hundred
seventy-five (87,875) square feet in Building One, of which approximately
fourteen thousand five hundred twenty-seven (14,527) square feet are located on
the first floor (known as Suite No. 150), approximately forty-four thousand nine
hundred sixty-two (44,962) square feet are located on the second floor (known as
Suite No. 200), and approximately twenty-eight thousand three hundred eighty-six
(28,386) square feet are located on the third floor of the
Building.
Permitted
Uses: General office use and uses ancillary to general office,
use such as data centers and training rooms.
Parking Space: 270
parking spaces, subject to the terms of Section 2.2 below.
Tenant’s Pro Rata
Share: 17.29%
Scheduled Completion
Date: January 1, 2010.
Initial Term: A
term which commences on the Commencement Date and expires on the last day of the
calendar month in which occurs the tenth (10th )
anniversary of the Commencement Date.
Security Deposit: $1,485,000.00,
subject to adjustment pursuant to Section 14.17.
Base Year for Expenses: The
Base Year for Expenses shall be calendar year 2010.
Base Year for Taxes: The Base Year for Taxes
shall be calendar year 2010.
Commercial General Liability
Insurance: $1,000,000 per occurrence and $2,000,000 annual
aggregate (and not more than $25,000 self-insured retention) and a minimum
excess/umbrella limit of $2,000,000.
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1.3.
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Additional
Definitions
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Audit Confidentiality
Agreement: As defined in Section 4 of Exhibit F attached
hereto.
Building Rentable
Area: Approximately 508,368 square feet.
Business
Days: Monday through Friday of each week, exclusive of New
Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, and Christmas Day (“Holidays”). Landlord may
designate additional Holidays that are commonly recognized by other office
buildings in the area in which the Building is located for the purpose only of
cancellation of the cleaning and janitorial services to be provided by Landlord
under the provisions of Section 7.4(b)(ii) on such additional days.
Commencement
Date: As defined in Section 4.1.
Default of
Tenant: As defined in Section 13.1.
Landlord’s
Work: As defined in Section 4.2.
Normal Business
Hours: As defined in Section 7.4.a.
Expenses: As
determined in accordance with Section 2.01 of Exhibit F attached
hereto.
Expense Excess: As
defined in Section 1.01 of Exhibit F attached
hereto.
Objection
Notice: As defined in Section 4 of Exhibit F attached
hereto.
Objection
Period: As defined in Section 4 of Exhibit F attached
hereto.
Payback Period: As
defined in Section 2.02 of Exhibit F attached
hereto.
Premises: The portion of the
Building as shown on Exhibit B attached
hereto (excluding the portion of Exhibit B associated
with the Building’s roof)
Property: The land
parcel as described in Exhibit A and the
Building thereon (including adjacent sidewalks).
Rent: Annual
Basic Rent, Expense Excess, Tax Excess, and all other amounts payable by Tenant
hereunder.
Request for
Information: As defined in Section 4 of Exhibit F attached
hereto.
Review Notice: As
defined in Section 4 of Exhibit F attached
hereto.
Review Notice
Period: As defined in Section 4 of Exhibit F attached
hereto.
Tax Excess: As
defined in Section 1.01 of Exhibit F attached hereto.
Taxes: As defined
in Section 3 of Exhibit F attached
hereto.
Tenant’s
Auditors: As defined in Section 4 of Exhibit F attached
hereto.
Tenant’s Delay: As
defined in Section 4.2.
Tenant’s Plans: As
defined in Section 4.2.
Tenant’s Removable
Property: As defined in Section 5.2.
Term of this
Lease: The Initial Term and any extension thereof in
accordance with the provisions hereof.
ARTICLE
II
PREMISES
AND APPURTENANT RIGHTS
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2.1.
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Lease
of Premises
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Landlord
hereby demises and leases the Premises to Tenant for the Term of this Lease and
upon the terms and conditions hereinafter set forth, and Tenant hereby accepts
the Premises from Landlord.
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2.2.
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Appurtenant
Rights and Reservations
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Tenant
shall have, as appurtenant to the Premises, (i) the non-exclusive right to use,
and permit its invitees to use, in common with others, public or common lobbies,
hallways, stairways, and elevators and common walkways, driveways and drive
aisles necessary for access to the Building, and if the portion of the Premises
on any floor includes less than the entire floor, the common toilets, corridors
and elevator lobby of such floor; but such rights shall always be subject to
reasonable rules and regulations from time to time established by Landlord
pursuant to Section 14.7 and to the right of Landlord to designate and change
from time to time areas and facilities so to be used; provided the same does not
adversely effect Tenant’s access to the Premises or use of the Premises for the
Permitted Uses; and (ii) two hundred seventy (270) parking spaces, of which
twenty-two (22) parking spaces shall be within the executive parking area under
Building One, one hundred ninety-one (191) parking spaces shall be in the
exterior parking garage, and fifty-seven (57) parking spaces shall be located on
the surface lot, on a non-exclusive, first-come, first-served basis, and in
accordance with the provisions of Exhibit
G-1. Throughout the Term, Landlord shall provide a parking
access card or other monitoring device to each employee of Tenant upon Tenant’s
request, if such parking access cards or other monitoring devices are required
for access to these parking facilities. The Building shall be designated a
non-smoking area and Tenant will comply, and will use diligent efforts to cause
its employees and invitees to comply, with Building regulations regarding
non-smoking areas.
Excepted
and excluded from the Premises are the ceiling, floor and all perimeter walls of
the Premises, except the inner surfaces thereof, but the entry doors to the
Premises are a part thereof; and Tenant agrees that Landlord shall have the
right to place in the Premises (but in such manner as to reduce to a minimum
interference with Tenant’s use of the Premises) utility lines, pipes and the
like, in, over and upon the Premises, provided that Landlord shall, if it is
reasonably feasible, place such utility lines, pipes and the like behind the
walls, above the ceilings and below the floor of the Premises. Tenant shall
install and maintain, as Landlord may require, proper access panels in any hung
ceilings or walls as may be installed by Tenant following completion of the
initial improvements to afford access to any facilities above the ceiling or
within or behind the walls of the Premises. Notwithstanding the
foregoing, subject to availability, Tenant, at no additional charge, shall have
the non-exclusive right to use the Building shafts, risers or conduits between
the Premises and the main point of entry (MPOE) for the installation and
maintenance of conduits, cables and other similar devices for communications,
data processing devices, and other facilities consistent with Tenant’s use of
the Premises and other uses in the Building, provided that Tenant does not
utilize a larger portion of the shafts, risers or conduits than Landlord deems
to be standard for the Building. Landlord shall provide access to
Tenant to those portions of the Building necessary for the foregoing
installation and maintenance activities by Tenant.
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2.3.
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Rooftop
Equipment
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Landlord
hereby grants to Tenant a license to use, at Tenant’s sole cost and expense (and
upon payment of Landlord’s monthly fee of $200 per item of equipment therefor,
payable as additional rent with monthly payments of Basic Rent hereunder) an
eight (8) foot by eight (8) foot portion of the roof of the Building in a
location to be designated by Landlord for the installation of a satellite dish
or dishes (or other communications equipment) and for supplemental cooling
equipment, to be used exclusively in the conduct of Tenant’s business in the
Premises and not for lease or license to third parties, and for the installation
of HVAC equipment exclusively servicing the Premises, with conduits connecting
such equipment to the Premises in a vertical chase to be designated by Landlord
(collectively, the “Rooftop Equipment”). The Rooftop Equipment
shall be subject to Landlord’s reasonable approval with respect to size, method
of installation, and visibility. Tenant shall install the
Rooftop Equipment at its sole cost and expense, in accordance with the
provisions of this Section 2.3 and Section 5.2 of this Lease. Tenant
shall repair any damage to the roof caused by the installation, operation, or
removal of the Rooftop Equipment, compensate Landlord for any impairment of
Landlord’s roof warranty resulting therefrom, and remove all Rooftop Equipment
at the end of the Term of this Lease unless Landlord expressly waives in writing
the requirement of such removal. Landlord assumes no responsibility
for interference in the operation of Tenant’s Rooftop Equipment caused by other
equipment installed elsewhere in or on the Building or elsewhere on the
Property. If the operation of the Rooftop Equipment of Tenant
conflicts with the operation of the Rooftop Equipment of any other tenant of the
Building, Landlord shall mediate the resolution of such conflict to accommodate
the mutual needs of the parties to the extent feasible. The
obligations of Tenant hereunder shall survive the expiration or termination of
this Lease.
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2.4.
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Fitness
Center
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During
the entire Term, Landlord shall provide a fitness center in the Building at no
additional cost to Tenant for use in common by Tenant and other Building
occupants. Landlord shall upgrade the existing fitness center as part
of Landlord’s Work in accordance with the specifications set forth in Exhibit
C. Landlord shall have no obligation to provide
staffing, laundry or other services for the fitness center, other than routine
maintenance, repair and cleaning (in accordance with Exhibit E), and
replacement of equipment as needed from time to time. The Fitness
Center shall be fully operational by no later than June 1, 2010.
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2.5.
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Cafeteria
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Landlord
shall provide a cafeteria in the Building for use in common by Tenants and other
Building occupants (the “Cafeteria”). The Cafeteria will be staffed
by a food service operator, which shall be consistent with food service
operators used in other suburban office buildings in the Boston area, the cost
of which shall constitute an Operating Expense hereunder to the extent incurred
by Landlord. The Cafeteria is leased to such an operator, with
whom Tenant may make arrangements for Tenant meetings and gatherings for its
employees during non-service hours at no cost to Tenant other than the cost of
restoring the Cafeteria to its condition prior to such use.
ARTICLE
III
RENT
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3.1.
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Basic
Rent
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Tenant
agrees to pay to Landlord, or as directed by Landlord, commencing on the Basic
Rent Commencement Date, without offset, abatement (except as provided in Article
12.1), deduction or demand, the Basic Rent. Such Basic Rent shall be
payable in equal monthly installments, in advance, on the first day of each and
every calendar month during the Term of this Lease, at Landlord’s Original
Address, or at such other place as Landlord shall from time to time designate by
notice. Until notice of some other designation is given, Basic Rent
and all other charges for which provision is herein made shall be paid by
remittance payable to Landlord, at Landlord’s Original Address, or at such other
place as Landlord shall from time to time designate by notice. Basic
Rent for any partial month shall be prorated on a daily basis. If the
Basic Rent Commencement Date is a day other than the first day of a calendar
month, the first payment which Tenant shall make to Landlord shall be equal to a
proportionate part of the monthly installment of Basic Rent for such partial
month from such date to the last day of the month in which such date
occurs. In addition to any charges pursuant to Section 14.18, Tenant
shall pay a late charge equal to 5% of the amount of any Basic Rent payment not
paid within seven (7) days of the due date thereof more than once in
any twelve (12) month period.
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3.2.
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Taxes
and Expenses
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Tenant
shall pay Tenant’s Pro Rata Share of Taxes and Expenses as additional rent
hereunder in accordance with Exhibit F of this
Lease.
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3.3.
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Independent
Covenants
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The
foregoing covenants of Tenant are independent covenants and Tenant shall have no
right to withhold or xxxxx any payment of Basic Rent, additional rent or other
payment, or to set off any amount against the Basic Rent, additional rent or
other payment then due and payable, except as expressly set forth in this Lease,
or to terminate this Lease, because of any breach or alleged breach by Landlord
of this Lease; Tenant hereby acknowledges and agrees that it has been
represented by counsel of its choice and has participated fully in the
negotiation of this Lease, that Tenant understands that the remedies available
to Tenant in the event of a default by Landlord may be more limited than those
that would otherwise be unavailable to Tenant under the common law in the
absence of certain provisions of this Lease, and that the so-called “dependent
covenants” rule as developed under the common law (including, without
limitation, the statement of such rule as set forth in the Restatement (Second)
of Property, Section 7.1) shall not apply to this Lease or to the relationship
of landlord and tenant created hereunder.
ARTICLE
IV
TERM OF
LEASE
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4.1.
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Commencement
Date
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The term
“Commencement Date” shall mean the date which is the later to occur
of:
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a.
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The
Scheduled Completion Date; or
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b.
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The
day following the date on which the Premises are ready for occupancy as
provided in Section 4.2.
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Notwithstanding
the foregoing, if Tenant’s personnel shall occupy all or any part of the
Premises for the conduct of its business (which shall not include Tenant’s (or
its agents) activities related to the preparation of the Premises for occupancy
and use, including Tenant’s access to the Premises pursuant to Section 4.2(c)
hereof) before the Commencement Date as determined pursuant to the preceding
sentence, such date of occupancy shall, for all purposes of this Lease, be the
Commencement Date. Promptly after the determination of the
Commencement Date, Landlord and Tenant shall executed and deliver a commencement
letter substantially in the form attached hereto as Exhibit
J.
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4.2.
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Preparation
of the Premises
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a.
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Landlord
and Tenant have approved the plans and specifications attached hereto as
Exhibit B
and Exhibit
C (the “Plans”). It is expressly understood that
Tenant’s approval of the Plans is for the benefit of Landlord and Tenant,
without representation or warranty by Tenant or any party claiming by,
through or under Tenant with respect to the compliance thereof with
applicable Laws. Landlord shall use Xxxxxxx & Caulfield to
provide architectural services for the planning and construction of
Landlord’s Work. Landlord shall exercise all reasonable efforts
to complete the work (“Landlord’s Work”) as specified in the Plans,
including the work in the Premises, the Fitness Center (if Landlord elects
the Landlord Fitness Center Option) and the Cafeteria, as set forth in
Exhibit
C. If Landlord's Work has not been substantially
completed by the Scheduled Completion Date, this Lease shall nevertheless
continue in full force and effect and Landlord shall continue to use
diligent efforts to substantially complete Landlord's
Work. Landlord shall perform Landlord's Work at its sole cost
and expense, and in a lien free manner; provided that Landlord shall have
the right to bond over any liens filed against the Premises or the
Building. Landlord shall make such changes to the Plans as may
be reasonably requested by Tenant, provided that Tenant shall pay for all
costs associated therewith, and any delay occasioned thereby shall be a
Tenant Delay. Any such increase shall be paid to Landlord 50%
upon the date of Tenant’s authorization to Landlord to proceed with such
change, and 50% upon substantial completion thereof as certified by
Landlord's architect. Tenant shall, if requested by Landlord,
execute a written confirmation of such excess costs and Tenant’s agreement
to any Tenant Delay occasioned thereby before the time Landlord shall be
required to commence work. Tenant shall not be responsible for
any increase in the cost of Landlord’s Work or any delay thereof caused by
Landlord’s failure to perform Landlord’s Work in accordance with the
Plans. Landlord shall, at its expense, procure a certificate of
occupancy or an equivalent use or occupancy permit or approval issued by
the local building inspector in connection with its construction
obligations hereunder as a condition to the occurrence of the Commencement
Date. Tenant shall have the right to inspect the progress of
Landlord’s Work from time to time upon reasonable prior verbal notice to
Landlord. Landlord shall also respond to Tenant’s reasonable
requests for verbal updates as to the progress of Landlord’s
Work.
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b.
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The
Premises shall be deemed ready for occupancy, and “substantial completion”
shall be deemed to have occurred on the first day as of
which:
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i.
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Each
of the following shall have occurred: (A) Landlord’s Work has been
completed in accordance with the Plans, except for items of work (and, if
applicable, adjustment of equipment and fixtures) which can be completed
after occupancy has been taken without causing undue interference with
Tenant’s use and occupancy of the Premises for the conduct of business
(i.e., so-called “punch list” items); (B) a certificate of occupancy or an
equivalent use or occupancy permit or approval has been issued by the
local building inspector permitting the use of the Premises for the
Permitted Uses; and (C) a certificate of substantial completion has been
issued to Landlord and Tenant by Landlord’s architect in connection with
Landlord’s construction obligations hereunder (which determination shall
be made by Landlord’s architect and shall be conclusive and binding upon
Landlord and Tenant); and
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ii.
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Tenant
has been given notice of the date that Landlord’s Work was or will be
completed, such notice to be given by Landlord to Tenant at least ten (10)
days before the anticipated date of substantial
completion. Landlord shall complete within sixty (60) days of
substantial completion or as soon any as conditions imposed by Tenant
permit all “punch list” items and Tenant shall afford Landlord access to
the Premises for such purposes. All telephone installation in
the Premises shall be the responsibility of the Tenant, except as set
forth in Exhibit
C. Failure or delay of such installation shall not delay
the above completion date.
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c.
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Twenty-one
(21) days prior to each Scheduled Access Date (as defined below) Landlord
shall notify Tenant (which notice may be verbal to Tenant’s representative
in respect of Landlord’s Work) that Tenant may access the Premises for the
purpose of allowing Tenant or its contractors, without the requirement for
payment of Rent, to prepare the Premises for occupancy and use, including
to install furniture and similar set up work required to prepare the
Premises for occupancy when such access may be provided without material
interference with the remaining Landlord Work provided that any such work
to be performed by Tenant or its contractor’s during such period shall (i)
not interfere with the remaining Landlord Work, (ii) be coordinated with
the remaining Landlord Work in such a manner as to maintain harmonious
labor relations and not cause any work stoppage or damage to the Premises
or the Building and (iii) not interfere with Building construction or
operation. Tenant agrees not to employ or permit the use of any
labor or otherwise take any action which might result in a labor dispute
involving personnel providing services in the Building pursuant to
arrangements with Landlord. The respective dates on which
Landlord shall provide Tenant with access to the following floors of the
Premises (each, a “Scheduled Access Date”) are as follows: (w)
Third Floor, February 1, 2010; (x) Server Room on Second Floor, February
8, 2010; (y) Second Floor (other than Server Room), February 12, 2010, and
(z) First Floor, February 15, 2010. Each one (1) day delay in
either the provision of notice hereunder or in a Scheduled Access Delay
shall be deemed to be one (1) day of Landlord’s Delay, in the event that
Tenant is actually delayed by any of the above. In addition, in
the event that access to any floor is delayed beyond a Scheduled Access
Date, and Tenant incurs overtime furniture installation costs in order to
achieve its targeted move in date, Landlord shall reimburse Tenant for the
overtime component of such installation costs, provided that Tenant has
discussed the situation with Landlord in
advance.
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d.
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If
a delay shall occur in the date the Premises are ready for occupancy
pursuant to paragraph (b) as the result of any of the following (a
“Tenant’s Delay”):
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i.
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Any
documented request by Tenant that Landlord delay in the commencement or
completion of Landlord’s Work for any
reason;
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ii.
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Any
change by Tenant in any of the Landlord's Work that, in Landlord's
reasonable judgment, causes a delay in Landlord's completion of Landlord's
Work;
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iii.
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Any
failure by Tenant to adhere timely to the schedule set forth in Exhibit C,
except for schedule delays mutually and expressly agreed upon by Landlord
and Tenant;
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iv.
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Any
other act or omission of Tenant or its officers, agents, servants or
contractors;
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v.
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Any
reasonably necessary displacement of any of Landlord’s Work from its place
in Landlord’s construction schedule resulting from any of the causes for
delay referred to in clauses i., ii., iii., or iv of this paragraph and
the fitting of Landlord’s Work back into such schedule (which fitting
Landlord shall use reasonable efforts to do and give Tenant notice of the
proposed revised schedule); or
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vi.
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Any
act or omission of Tenant in violation of paragraph (d)
above;
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Then, in
the event that Landlord is actually delayed by any of the above, Tenant shall,
prior to the Commencement Date, pay the Landlord as an additional charge for
each day of such delay equal to the amount of Basic Rent, Escalation Charges and
other charges that would have been payable hereunder had the Commencement Date
occurred before such Tenant’s Delay. Tenant also shall pay to
Landlord within ten (10) days of invoice therefor, any additional
costs incurred by Landlord in completing the work to the extent that such costs
are reasonably attributable to such Tenant’s Delay. Landlord will use
reasonable efforts to deliver notice to Tenant, if circumstances permit, of any
of the foregoing if Landlord has knowledge that such event may give rise to a
Tenant’s Delay. It is expressly agreed that a delay by Tenant as
described in this clause (d) shall not constitute a Tenant’s Delay to the extent
the delay is caused by a Force Majeure Event”, or by a change or delay caused by
Landlord’s failure to perform Landlord’s Work in accordance with the
Plans.
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e.
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If,
as a result of Tenant’s Delay(s), Landlord’s Work is delayed in the
aggregate for more than ninety (90) successive days, Landlord may (but
shall not be required to) at any time thereafter terminate this Lease by
giving written notice of such termination to Tenant and thereupon this
Lease shall terminate without further liability or obligation on the part
of either party except that Tenant shall pay to Landlord the cost
theretofore incurred by Landlord in performing Landlord’s
Work.
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f.
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If
the Premises are not “ready for occupancy” by January 1, 2010 other than
as the result of a Tenant’s Delay or a Force Majeure Event (a “Landlord
Delay”), then for each day after such date that Landlord’s Work is not
“ready for occupancy” Tenant shall receive a credit against the Basic Rent
hereunder in an amount equal to the actual holdover rent and legal
expenses, in excess of its current rent (the “Holdover Costs”), actually
incurred by Tenant (as evidenced by rental invoices received by Tenant),
not to exceed the 150% of Tenant’s current base rent (“Holdover Costs
Cap”) under Tenant’s lease with Intercontinental Fund III as
successor to Wellsford/Whitehall Holdings, L.L.C. dated November 25, 2003
(as amended to date, “Tenant Prior Lease”), a correct and complete copy of
which Tenant has delivered to
Landlord.
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For the
avoidance of doubt, the parties agree that “Holdover Costs” shall only include
the payment of holdover rent and legal fees, in excess of its current rent,
actually incurred by Tenant in negotiating the holdover rent pursuant to the
terms of Tenant’s Prior Lease (up to the aforementioned Holdover Costs Cap) and
shall expressly exclude any operating cost payments, real estate tax payments,
or any other costs associated with Tenant’s operating within its premises under
Tenant’s Prior Lease.
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g.
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If
the Premises are not “ready for occupancy” (as determined pursuant to the
procedure set forth in Section 4.2(c), to the extent
applicable):
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i.
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(i)
by the Scheduled Completion Date as the result of a Landlord Delay, then
for each day thereafter until the thirtieth (30th) day that the Premises
are not “ready for occupancy”, the Basic Rent Commencement Date shall be
delayed one-half (1/2) day for each day of such delay (in addition to the
Holdover Costs described above);
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ii.
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(ii)
by the date that is thirty-one (31) days after the Scheduled Completion
Date as a result of a Landlord Delay, then for each day from and after
such thirty-first (31st) day until the forty-fifth (45th)
day after the Scheduled Completion Date as a result of a Landlord Delay,
the Basic Rent Commencement Date shall be delayed one (1) for each day of
such delay (in addition to the delay in the Basic Rent Commencement Date
set forth in subclause (i) above and the Holdover Costs described above);
and
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iii.
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(iii)
by the date that is forty-six (46) days after the Scheduled Completion
Date as a result of a Landlord Delay until the Premises are ready for
occupancy, the Basic Rent Commencement Date shall be delayed two (2) days
for each day of such delay (in addition to the delay in the Basic Rent
Commencement Date set forth in subclauses (i) and (ii) above and the
Holdover Costs described above).
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h.
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If
Landlord’s Work in the Premises has not been substantially completed
by
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|
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September
1, 2010 as the result of a Landlord Delay, then Tenant may (but shall not
be required to) terminate this Lease by delivery of written notice of such
termination by September 30, 2010, and this Lease shall thereupon
terminate without further liability or obligation on the part of either
party, unless Landlord’s Work in the Premises is substantially completed
within thirty (30) days after the delivery of such notice, in which event
such notice shall be null and void, and this Lease shall remain
in full force and effect.
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4.3.
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Conclusiveness
of Landlord’s Performance;
Warranties
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Tenant
shall have the right to give Landlord written notice, not later than one hundred
twenty (120) days after the Commencement Date (and not later than the expiration
of twelve (12) months after the Commencement Date as to latent defects), of
respects in which Landlord has not performed Landlord’s
Work. Landlord, at its cost and expense, shall be obligated to repair
or complete those items of Landlord’s Work identified in any such
notice. Landlord shall use diligent efforts to complete any punchlist
items as quickly as possible but in any event within sixty (60) days after the
Commencement Date, to the extent feasible. Landlord shall correct any
defects due to faulty workmanship or materials in Landlord’s Work, provided
Tenant shall have given written notice of such defects to Landlord before the
first anniversary of the Commencement Date. To the extent that Tenant
has not timely delivered any such notices to Landlord on or prior to the
applicable foregoing deadlines, Tenant shall be deemed to have acknowledged that
all Landlord’s Work has been completed to Tenant’s satisfaction and that Tenant
has waived any claim that Landlord has failed to perform any of Landlord’s
Work. From and after the expiration of such twelve (12) month
period, Tenant shall be entitled to the benefit of any applicable warranties
obtained by Landlord from third parties with respect to Landlord’s Work provided
that Tenant shall be solely responsible for enforcing such warranties directly
against the party providing the same. Landlord shall assign, to the
extent permissible, all warranties to Tenant for the Premises following said
twelve (12) month period.
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4.4.
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Relocation
Expense Reimbursement
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In
addition to the performance of Landlord’s Work, following the Basic Rent
Commencement Date and the commencement of payment of Rent hereunder, Landlord
shall reimburse Tenant for its actual third party relocation expenses and data
center consulting fees in an amount up to One Hundred Eighty Thousand Dollars
($180,000.00) within thirty (30) days after receipt of paid invoices therefor;
for purposes hereof, “relocation expenses” shall include all costs associated
with the moving or disposing of Tenant’s current furniture, as well as all
installation costs associated with new furniture purchased by Tenant for the
Premises.
ARTICLE
V
USE OF
PREMISES
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5.1.
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Permitted
Use; Compliance with Laws
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a.
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The
Premises shall be used and occupied by Tenant only for Permitted Uses and
for no other purpose. Tenant shall comply with all statutes,
codes, ordinances, orders, rules and regulations of any municipal or
governmental entity whether in effect now or later, including the
Americans with Disabilities Act (“Law(s)”), regarding the operation of
Tenant’s business and the use, condition, configuration and occupancy of
the Premises, except that Landlord shall be responsible for the compliance
with Law of Landlord’s Work. In addition, Tenant shall, at its
sole cost and expense, promptly comply with any Laws that relate to the
“Base Building” (defined below), but only to the extent such obligations
are triggered by Tenant’s use of the Premises, other than for general
office use, or Alterations or improvements in the Premises performed or
requested by Tenant (other than Landlord’s Work). Landlord shall be
responsible for the correction of any violations of Title III of the
Americans with Disabilities Act. Except as otherwise
provided herein, Landlord shall be responsible for the compliance
with Law of the Building from and after the Commencement Date,
provided that the cost thereof shall constitute an Expense in accordance
with the terms of Exhibit F.
“Base Building” shall include the structural portions of the Building, the
public restrooms and the Building mechanical, electrical and plumbing
systems and equipment located in the internal core of the Building on the
floor or floors on which the Premises are located. Tenant shall promptly
provide Landlord with copies of any notices it receives regarding an
alleged violation of Law. Tenant shall not exceed the standard
density limit for the Building. Tenant shall comply with the rules and
regulations of the Building attached as Exhibit G
and such other reasonable rules and regulations adopted by Landlord from
time to time, including rules and regulations for the performance of
alterations to the Premises under the provisions of Section 5.2
below.
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b.
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Tenant
shall conform to the following provisions during the Term of this
Lease:
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i.
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Tenant
shall cause all freight to be delivered to or removed from the Building
and the Premises in accordance with reasonable rules and regulations
established by Landlord therefor;
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ii.
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Tenant
will not place on the exterior of the Premises (including both interior
and exterior surfaces of windows and doors) or on any part of the Building
outside the Premises, any sign, symbol, advertisement or the like visible
to public view outside of the Premises without the prior consent of
Landlord. Landlord, as part of Landlord’s Work, shall install
the Tenant’s Building One interior lobby sign between the second and third
floors of Building One, centered above Tenant’s lobby entrance, the size
and placement of which are depicted on the schematic attached hereto as
Exhibit
B-2. It is understood that the lobby entrance
shall be centered with the existing stairs that lead from the ground floor
to the first floor (left of the elevator from the private
garage). Landlord shall have the right to grant to another
tenant or tenants the right to signage of the same size, height on lobby
wall and finish in the Building One interior lobby as the foregoing
signage right given to Tenant, so long as such other tenants lease at
least 90,000 rentable square feet in Building One. In addition,
Landlord shall have the right to grant signage rights to any tenant which
leases 199,999 rentable square feet or more in the Building without any
restriction or limitation. Tenant’s sign shall not be
obstructed by the trees in the lobby of the Building, and Landlord, at its
expense, shall trim or move such trees to the extent that the trees
obstruct Tenant’s sign.
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iii.
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Tenant
shall not perform any act or carry on any practice which may injure the
Premises, or any other part of the Building, or cause any offensive odors
or loud noise or constitute a nuisance or a menace to any other tenant or
tenants or other persons in the Building;
and
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iv.
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Tenant
shall not operate any cooking apparatus (except for coffee making
equipment, a microwave oven, a standard size refrigerator and a sink) in
the Premises. Tenant may have vending machines in the
Premises.
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5.2.
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Installations
and Alterations by Tenant
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a.
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Tenant
shall make no alterations, additions or improvements (collectively,
“Improvements”) in or to the Premises without Landlord’s prior written
consent provided that subsequent to the completion of the Landlord’s Work,
Landlord’s consent shall not be required if such Improvements (i) are
non-structural, do not affect any Building systems, are not visible from
the exterior of the Building, do not require work to be performed inside
the walls or above the ceiling of the Premises, and do not exceed in the
aggregate a cost of Fifty Thousand ($50,000.00) Dollars, or (ii) are of a
decorating nature (i.e., carpeting, painting, wallpaper) irrespective of
the cost. With respect to Improvements requiring Landlord’s
consent, Landlord shall not unreasonably withhold, condition or delay its
consent for non-structural Improvements to the Premises. All
Improvements shall:
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i.
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Be
performed in a good and workmanlike manner and in compliance with all
applicable laws;
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ii.
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Be
made only by contractors or mechanics approved by
Landlord;
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iii.
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Be
made at Tenant’s sole expense and at such times and in such manner as
Landlord may from time to time reasonably designate;
and
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iv.
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Become
part of the Premises and the property of
Landlord.
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b.
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All
articles of personal property and all business fixtures, machinery and
equipment and furniture owned or installed by Tenant solely at its expense
in the Premises (“Tenant’s Removable Property”) shall remain the Property
of Tenant and shall be removed by Tenant at any time before the expiration
of this Lease, provided that Tenant, at its expense, shall repair any
damage to the Premises and the Building caused by such
removal.
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c.
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Notice
is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic’s or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to
the Premises. Whenever and as often as any mechanic’s lien
shall have been filed against the Property based upon any act or interest
of Tenant or of anyone claiming through Tenant, Tenant shall forthwith
take such action by bonding, deposit or payment as will remove or satisfy
the lien. Landlord shall have the option, but not the
obligation, of removing, bonding over or paying such lien if Tenant has
not done so within ten (10) days following Landlord’s notice to Tenant of
the filing of the same, and any amounts paid by Landlord therefor shall be
paid to Landlord within fifteen (15) days after invoice therefor as
additional rent hereunder.
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d.
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Tenant
shall not be obligated to remove at the end of the Term of this Lease (i)
any Improvement unless Landlord specifies an Improvement for removal at
the time Landlord consents to such Improvement (Landlord hereby agreeing
that alterations consistent with a general office build out and the
initial improvements in the Premises shall not require removal by Tenant),
or (ii) any improvements built by Landlord as part of the initial fit-up
of the Premises which would customarily be considered standard tenant
improvement (collectively referred to herein as “Building Standard Office
Improvements”).
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ARTICLE
VI
ASSIGNMENT
AND SUBLETTING
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6.1.
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Prohibition
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a.
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Tenant
covenants and agrees that neither this Lease nor the term and estate
hereby granted, nor any interest herein or therein, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred and that neither
the Premises nor any part thereof will be encumbered in any manner by
reason of any act or omission on the part of Tenant, or used or occupied
or permitted to be used or occupied, by anyone other than Tenant, or for
any use or purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions, licenses and
the like) in whole or in part, without, in each instance, having first
received the express written consent of Landlord which, in the case of any
subletting, will not be unreasonably withheld subject to the following
conditions: (i) Tenant is not then in default under this Lease,
(ii) the proposed sublease is not to any party then occupying any space in
the Building, or, until the first (1st)
anniversary of the Commencement Date, to any party with whom Landlord has
a written proposal to lease space in the Building outstanding for sixty
(60) days or less, (iii) the prospective subtenant or assignee is of the
type and quality suitable for a first-class office building, and (iv) any
such sublease shall be subject to all the other provisions of this Article
VI. Tenant’s request for Landlord’s consent shall be in writing
and shall contain the name and address of the proposed sublessee, the rent
and other sums to be paid thereunder, the effective date of the proposed
sublease and the other major business terms thereof, and the term and area
of any proposed sublease. In all other cases, Landlord’s
consent may be withheld in its sole discretion. Landlord shall
respond to any request for consent as to which Landlord’s consent is not
be unreasonably withheld within ten (10) business days of request
therefor, and to other such requests within twenty (20) business days of
request therefor. The foregoing restrictions shall not be
applicable to the following transactions, each of which shall constitute a
“Permitted Transaction” hereunder: (i) an assignment of this Lease or a
subletting of the Premises by Tenant to an entity controlling, controlled
by or under common control with Tenant or (ii) an assignment of this Lease
to an entity that succeeds to Tenant’s interest in this Lease by reason of
merger, acquisition, consolidation or reorganization (collectively such
entities are referred to herein as, “Affiliates”), provided that Tenant
shall, at least ten (10) business days (to the extent permitted by Law)
before the effective date of such assignment to an entity described in the
foregoing clause (ii), provide to Landlord evidence reasonably
satisfactory to Landlord that, as of the date of such assignment, the
assignee shall have a net worth equal to the net worth of Tenant as of the
date of this Lease. It shall be a condition of the validity of
any assignment, whether with the consent of Landlord or as part of a
Permitted Transaction, that the assignee agrees directly with Landlord, by
written instrument in form satisfactory to Landlord, to be bound by all
the obligations of Tenant hereunder including, without limitation, the
covenant against further assignment and subletting. No
assignment or subletting shall relieve Tenant from its obligations
hereunder and Tenant shall remain fully and primarily liable
therefor. Notwithstanding the foregoing, Tenant shall be
entitled to sublease portions of the Premises, without Landlord’s consent
(but Tenant shall deliver Landlord written notice of such subleases), to
vendors or other third parties having a substantial business relationship
with Tenant (any such subletting also being deemed a Permitted
Transaction); provided that such subleasing (xx) does not involve any
improvements or modifications to the Premises, including, without
limitation, the installation of demising walls, (yy) does not result in
Tenant earning a profit from the sublease of such space, and (zz) does not
exceed more than 10,000 rentable square feet of the Premises in the
aggregate.
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b.
|
If
this Lease be assigned, or if the Premises or any part thereof be sublet
or occupied by anyone other than Tenant, Landlord may, at any time and
from time to time, collect rent and other charges from the assignee,
subtenant or occupant, and apply the net amount collected to the rent and
other charges herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as a tenant or a release
of Tenant from the further performance by Tenant of its obligations
hereunder. The consent by Landlord to an assignment or
subletting shall in no way be construed to relieve Tenant or any successor
from obtaining the express consent in writing of Landlord to any further
assignment or subletting. No assignment or subletting and no
use of the Premises by a subsidiary wholly-owned by Tenant or controlling
corporation of Tenant shall affect Permitted
Uses.
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c.
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Landlord
Option.
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i.
|
Right
to Cancel. Notwithstanding any contrary provision of this
Section 6.1, in connection with either (x) a proposed assignment
(other than pursuant to a Permitted Transaction) at any time during the
Term, or (y) a proposed subletting (other than pursuant to a Permitted
Transaction) during the final twenty-four (24) months of the Term, if the
request is to sublet more than fifty (50%) percent of the Premises,
Landlord shall have an option to cancel and terminate this Lease by notice
to Tenant in the case of assignment, or in the case of subletting, with
respect to such portion of the Premises which is the subject of the
proposed sublease. Landlord may exercise said option in writing
within twenty (20) business days after Landlord’s receipt from Tenant of
(I) a request to so assign or sublet, or (II) a term sheet setting forth
all material business terms upon which Tenant intends to so assign or
sublease the Premises, and such cancellation or termination shall occur as
of the date set forth in Landlord’s notice of exercise of such option,
which shall not be less than thirty (30) days nor more than ninety (90)
days following the giving of such
notice.
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ii.
|
Cancellation. If
Landlord exercises Landlord’s option to cancel hereunder, Tenant shall
surrender possession of the portion of the Premises which is the subject
of the option on the date set forth in such notice in accordance with the
provisions of this Lease relating to surrender of the Premises at the
expiration of the Term. In such event, (i) Basic Rent,
Escalation Charges and any other sums due hereunder with respect to the
surrendered portion of the Premises after the date of cancellation shall
be abated on a pro rata basis, and (ii) in the case of subletting,
Landlord shall have the right to construct a demising wall and perform
such other space reconfiguration measures as are necessary between
Tenant’s remaining Premises and the premises for which the Lease was
cancelled.
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iii.
|
No
Deemed Consent. The acceptance by the Landlord of the payment
of Basic Rent, Additional Rent or other charges following an assignment,
subletting or assignment prohibited by this Section 6.1 shall not be
deemed to be a consent by the Landlord to any such subletting or
assignment, nor shall the same constitute a waiver of any right or remedy
of Landlord.
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|
6.2.
|
Excess
Payments
|
If:
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i.
|
The
rent and other sums received by Tenant on account of a sublease of all or
any portion of the Premises exceeds the Basic Rent and Escalation Charges
allocable to the space subject to the sublease (in the proportion of the
area of such space to the entire Premises) plus actual out-of-pocket
expenses incurred by Tenant in connection with Tenant’s subleasing of such
space, including brokerage commissions to a licensed broker and the cost
of preparing such space for occupancy by the subtenant (the “Tenant
Costs”), Tenant shall pay to Landlord, as an additional charge, 50% of
such excess, monthly as received by Tenant;
or
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|
ii.
|
Any
payment received by Tenant on account of any assignment of this Lease
exceeds the actual out-of-pocket expenses incurred by Tenant in connection
with such assignment, including brokerage commissions to a licensed broker
and the cost of preparing space for the assignee (the “Tenant Costs”),
Tenant shall pay to Landlord, as an additional charge, 50% of such excess
when received by Tenant.
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ARTICLE
VII
RESPONSIBILITY
FOR REPAIRS AND CONDITIONS OF PREMISES;
SERVICES
TO BE FURNISHED BY LANDLORD
|
7.1.
|
Landlord
Repairs
|
|
a.
|
Except
as otherwise provided in this Lease, Landlord shall keep in good order,
condition and repair and in accordance with the requirements of applicable
law the roof, public areas (including common areas), exterior walls,
exterior glass, floor slabs, the Building HVAC system (but not any special
tenant HVAC system) and structure of the Building (including plumbing,
mechanical and electrical systems), all insofar as they affect the
Premises, except that Landlord shall in no event be responsible to Tenant
for the condition of glass in and about the Premises or for the doors
leading to the Premises, or for any condition in the Premises or the
Building caused by any act or neglect of Tenant, its invitees or
contractors (in which case Tenant shall promptly effect such repairs or,
at Landlord’s option, Landlord may effect such repairs and charge the
entire cost thereof to Tenant as additional rent provided, however, that
if, after Tenant pays the cost of such repair, Landlord receives from its
insurance carrier proceeds with respect to the cost of such repairs,
Landlord shall reimburse Tenant for the cost of such repairs up to the
amount actually received by Landlord with respect to the same). Landlord
shall not be responsible to make any improvements or repairs to the
Building other than as expressly in this Section 7.1 provided, unless
expressly provided otherwise in this
Lease.
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b.
|
Landlord
shall never be liable for any failure to make repairs which, under the
provisions of this Section 7.1 or elsewhere in this Lease, Landlord has
undertaken to make unless Tenant has given notice to Landlord of the need
to make such repairs, and Landlord has failed to commence to make such
repairs within a reasonable time after receipt of such notice, or fails to
proceed with reasonable diligence to complete such
repairs. Landlord shall make repairs in emergency situations as
quickly as possible in the
circumstances.
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7.2.
|
Tenant’s
Agreement
|
|
a.
|
Tenant
shall keep neat and clean and maintain in good order, condition and repair
the Premises and every part thereof, excepting only those repairs for
which Landlord is responsible under the terms of this Lease, reasonable
wear and tear of the Premises, and damage by fire or other casualty and as
a consequence of the exercise of the power of eminent domain; and shall
surrender the Premises, at the end of the Term, in such
condition. Without limitation, Tenant shall maintain and use
the Premises in accordance with all directions, rules and regulations of
the proper officers of governmental agencies having jurisdiction, and
shall, at Tenant’s own expense, obtain all permits, licenses and the like
required by applicable law. Tenant shall be responsible for the
cost of repairs that may be made necessary by reason of damage to common
areas in the Building by Tenant, Tenant's independent contractors or
Tenant's invitees. Tenant shall be responsible for the
maintenance and repair of all plumbing and electrical facilities within
the Premises other than to the extent provided in Section 4.3
hereof..
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b.
|
If
repairs are required to be made by Tenant pursuant to the terms hereof,
Landlord may demand that Tenant make the same forthwith, and if Tenant
refuses or neglects to commence such repairs and complete the same with
reasonable dispatch, after such demand, Landlord may (but shall not be
required to do so) make or cause such repairs to be made and shall not be
responsible to Tenant for any loss or damage that may accrue to Tenant’s
stock or business by reason thereof. If Landlord makes or
causes such repairs to be made, Tenant agrees that Tenant shall forthwith,
on demand, pay to Landlord the cost thereof as an additional charge
hereunder.
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7.3.
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Floor
Load - Heavy Machinery
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a.
|
Tenant
shall not place a load upon any floor in the Premises exceeding 80
pounds live load per square foot and 20 pounds partition load
per square foot. Landlord reserves the right to prescribe
the weight and position of all business machines and mechanical equipment,
including safes, which shall be placed so as to distribute the
weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant’s expense in settings
sufficient, in Landlord’s judgment, to absorb and prevent vibration, noise
and annoyance. Tenant shall not move any safe, heavy machinery,
heavy equipment, freight, bulky matter or fixtures into or out of the
Building without Landlord’s prior consent, which consent may include a
requirement to provide insurance in such amounts as Landlord may deem
reasonable.
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b.
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If
any such safe, machinery, equipment, freight, bulky matter or fixtures
requires special handling, Tenant agrees to employ only persons holding a
Master Rigger’s License to do such work, and that all work in connection
therewith shall comply with applicable laws and
regulations. Any such moving shall be at the sole risk and
hazard of Tenant, and Tenant will exonerate, indemnify and save Landlord
harmless against and from any liability, loss, injury, claim or suit
resulting directly or indirectly from such
moving.
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7.4.
|
Building
Services
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a.
|
Landlord
shall, on Business Days from 8:00 a.m. to 6:00 p.m. (and on Saturdays only
from 9:00 a.m. to 1:00 p.m.) (“Normal Business Hours”), furnish heating
and cooling as normal seasonal changes and the Massachusetts State
Building Code may require to provide reasonably comfortable space
temperature and ventilation for occupants of the Premises under normal
business operation at an occupancy of not more than one person physically
located in the Premises at any time per 175 square feet of Premises
Rentable Area and an electrical load not exceeding approximately ten (10)
xxxxx per square foot of Premises Rentable Area, comprised of 1.5 xxxxx
for lighting, 2.5 xxxxx for outlets/miscellaneous, and 6 xxxxx for
HVAC. If Tenant shall require air conditioning, heating or
ventilation outside Normal Business Hours, Landlord shall furnish such
service and Tenant shall pay therefor such charges as may from time to
time be in effect (currently $35.00 per hour, subject to adjustment based
solely upon actual increases in utility costs). In the event
Tenant introduces into the Premises personnel or equipment which exceeds
the standards set forth above or in any other way interferes with the
Building system’s ability to perform adequately its proper functions,
supplementary systems may, if and as needed, at Landlord’s option, be
provided by Landlord, at Tenant’s expense. Except in the case
of emergency or a scheduled closing of the Building, Landlord shall
provide to Tenant (subject to reasonable security procedures which may be
imposed by Landlord) access to the Building, an elevator and the loading
dock twenty-four hours per day, seven (7) days per week. In
addition, Landlord shall provide four hundred ninety-one (491) square
feet of dock
storage (“Dock Storage Space”) at the Building One dock in the location
shown on Exhibit
B-3 for the exclusive use of Tenant at a cost of $10 per square
foot per year, commencing on the Commencement Date of this
Lease. Landlord shall provide Tenant with thirty (30) days
prior notice (to the extent feasible in the circumstances) in the event of
any required shutdown of the Building’s HVAC system (including the
condenser water loop), electrical service or emergency generator, and
shall work with Tenant to minimize the impact of the same on Tenant’s
operations in the Premises.
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b.
|
Landlord
shall also provide:
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i.
|
Hot
water for lavatory purposes and cold water (at temperatures supplied by
the Town of Xxxxxx) for drinking, lavatory, and toilet
purposes. If Tenant uses water for any purpose other than as
set forth in the preceding sentence, Landlord may assess a reasonable
charge for the additional water so used. All piping and other
equipment and facilities required for use of water outside the Building
core will be installed and maintained by Landlord at Tenant’s sole cost
and expense.
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ii.
|
Cleaning
and janitorial services to the Premises on Business Days, including those
services listed on Exhibit E
attached hereto, in a manner customarily performed within the janitorial
industry in office buildings of similar age, size, class and composition
of the Building in the area, or such other reasonably comparable
janitorial services designated by Landlord from time to time, provided the
same are kept in order by Tenant,.
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iii.
|
Except
in the case of scheduled maintenance, emergencies and scheduled Building
closings, passenger elevator service from the existing passenger elevator
system in common with Landlord and other tenants of the Building shall be
available twenty-four (24) hours a day, seven (7) days a
week.
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iv.
|
The
Building security protocols and services are described in Exhibit K
attached hereto. In no event shall Landlord have any liability
for the inadequacy or failure of any security or protective services,
personnel or equipment.
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v.
|
Tenant
shall have the right to connect its supplemental HVAC units (the
"Units")to the Building’s condenser water loop on the terms set forth
herein. To the extent of available capacity as determined
by Landlord’s engineers, and subject to the rights of existing tenants in
the Building, Tenant may connect up to 100 tons of supplemental cooling to
the Building’s condenser water loop. Tenant shall be responsible for all
repairs and maintenance to the HVAC units. Landlord shall be
responsible for all repairs and maintenance to the condenser water loop.
Tenant shall pay Landlord an annual usage fee of $365.00 per ton of
supplemental HVAC equipment to be connected to Landlord's condenser water
loop. For example, if Tenant connects two tons of
equipment to Landlord's condenser water loop, Tenant shall be required to
pay Landlord a usage charge $60.83 per month (2 tons x
$30.4166). All such fees shall be payable by Tenant to Landlord
as Additional Rent hereunder within fifteen (15) days of invoice
therefor. In no event shall Tenant be entitled to use more than
its proportionate share of the Building's excess water condenser
capacity. The size, make, type and design of the Units, the
manner in which the Units will be vented and access outside air, if
applicable, and the manner in which the Units connect to Landlord's
condenser water loop, including, without limitation the routing of any
water lines, shall be subject to Landlord's prior review and
approval. Tenant shall be responsible, at its cost, for
maintaining the Units to the reasonable satisfaction of Landlord and the
cost of purchasing and installing a submeter for the Units to measure
electricity consumed in connection with the Units, as well as for the cost
of all such electricity that is consumed in the operation of the
Units.
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7.5.
|
Electricity
|
|
a.
|
Landlord
shall supply electricity to the Premises in accordance with the electrical
capacity set forth in Section 7.4(a) above. Tenant agrees in
its use of the Premises not to exceed such capacity, and further agrees
that its total connected lighting load will not exceed the maximum from
time to time permitted under applicable governmental
regulations. Except as set forth in Exhibit C,
Landlord shall purchase and install all lamps, tubes, bulbs, starters and
ballasts for all original fluorescent tubes within the
Premises. All other bulbs, tubes and lighting fixtures for the
Premises shall be provided and installed by Landlord at Tenant’s cost and
expense. In order to assure that the foregoing requirements are
not exceeded and to avert possible adverse affect on the Building’s
electric system, Tenant shall not, without Landlord’s prior consent,
connect any fixtures, appliances or equipment to the Building’s electric
distribution system other than standard office equipment including,
without limitation, personal computers, printers, photocopiers and fax
machines.
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b.
|
Landlord
shall install at Landlord’s expense as part of Landlord’s Work a submeter
which shall measure electric consumption (including electricity consumed
in connection with the operation of the variable-air-volume (VAV) boxes
used to heat and cool the Premises) in the Premises, to be charged in
accordance with Section 7.4.a above; provided, that Tenant shall not be
charged a separate administrative fee with respect to the
submetering. Tenant shall pay as additional rent all amounts
billed by the applicable utility company when due directly to the utility
company. If, for any reason, such utility charges are not
separately metered or submetered at any time during the Term, Tenant shall
pay as additional rent all reasonably allocated charges attributable to
the furnishing of electricity to the
Premises.
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c.
|
In
the computation of Operating Costs, only the cost of electricity supplied
to those portions of the Building other than those intended to be leased
to tenants for their exclusive use and occupancy, or used by the Building
for its own offices, i.e., only those areas which are so-called common
areas, shall be included.
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7.6.
|
Interruption
of Services
|
|
a.
|
Subject
to the last paragraph of this Section 7.6, Landlord reserves the right to
stop the service of heating, air-conditioning, ventilating, elevator,
plumbing, electricity or other mechanical systems or facilities in the
Building, if necessary by reason of accident or emergency , or for
repairs, alterations, replacements, additions or improvements which, in
the reasonable judgment of Landlord, are desirable or necessary until said
repairs, alterations, replacements, additions or improvements shall have
been completed. The exercise of such right by Landlord shall
not constitute an actual or constructive eviction, in whole or in part, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or
annoyance to Tenant, or injury to, or interruption of, Tenant’s business,
or otherwise, or entitle Tenant to any abatement or diminution of
rent. Except in case of emergency repairs, Landlord
will give Tenant reasonable advance notice of any contemplated stoppage of
any such systems or facilities pursuant to the foregoing and will use
diligence to complete any such repairs, alterations, replacements,
additions or improvements promptly. Landlord shall also perform
any such work in a manner designated to minimize interference with
Tenant’s normal business
operations.
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b.
|
If
Landlord shall fail to supply, or be delayed in supplying any service
expressly or impliedly to be supplied under this Lease, or shall be unable
to make, or be delayed in making, any repairs, alterations, additions,
improvements or decorations, or shall be unable to supply, or be delayed
in supplying, any equipment or fixtures, and if such failure, delay or
inability shall not constitute an actual or constructive eviction, in
whole or in part, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to, or interruption of,
Tenant’s business, or otherwise, or entitle Tenant to any abatement or
diminution of rent.
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|
|
Notwithstanding
the foregoing, if for any reason, other than the actions of
Tenant or a Force Majeure Event, Landlord does not provide any
or all of the following services, or does not provide them in the manner
described herein (by temporary service or otherwise): (i) HVAC, (ii)
electric current, and (iii) water, which services are deemed essential to
the conduct of Tenant’s business (hereafter, the “Critical Service(s)”),
and in the manner provided for therein, for more than ten (10) consecutive
business days, then following notice from Tenant to Landlord of such
failure, interruption or reduction, Tenant may xxxxx the monthly
installments of Basic Rent, Escalation Charges and any other sums due
hereunder, on a per diem basis, for the period of interruption,
beginning on the eleventh (11th) business day after such notice and ending
when the Critical Service(s) is/are fully
restored.
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ARTICLE
VIII
OMITTED
ARTICLE
IX
OMITTED
ARTICLE
X
INDEMNITY
AND PUBLIC LIABILITY INSURANCE
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10.1.
|
Tenant’s
Indemnity
|
Except to
the extent caused by the negligence or willful misconduct of Landlord or any
Landlord Related Parties (defined below), Tenant shall indemnify, defend and
hold Landlord and Landlord Related Parties harmless against and from all
liabilities, obligations, damages, penalties, claims, actions, costs, charges
and expenses, including, without limitation, reasonable attorneys’ fees and
other professional fees (if and to the extent permitted by Law) (collectively
referred to as “Losses”), which may be imposed upon, incurred by or asserted
against Landlord or any of the Landlord Related Parties by any third party and
arising out of or in connection with any damage or injury occurring in the
Premises or any acts or omissions (including violations of Law) of Tenant, its
trustees, managers, members, principals, beneficiaries, partners, officers,
directors, employees and agents (the “Tenant Related Parties”) or any of
Tenant’s transferees, contractors or licensees. Except to the extent
caused by the negligence or willful misconduct of Tenant or any Tenant Related
Parties, Landlord shall indemnify, defend and hold Tenant, its trustees,
members, principals, beneficiaries, partners, officers, directors, employees and
agents (“Tenant Related
Parties”) harmless against and from all Losses which may be imposed upon,
incurred by or asserted against Tenant or any of the Tenant Related Parties by
any third party and arising out of or in connection with the acts or omissions
(including violations of Law) of Landlord or the Landlord Related
Parties. Tenant hereby waives all claims against and releases
Landlord and its trustees, managers, members, principals, beneficiaries,
partners, officers, directors, employees, mortgagees and agents (the “Landlord
Related Parties”) from all claims for any injury to or death of persons, damage
to property or business loss in any manner related to (a) Force Majeure,
(b) acts of third parties, (c) the bursting or leaking of any tank,
water closet, drain or other pipe, (d) the inadequacy or failure of any
security or protective services, personnel or equipment, or (e) any matter
not within the reasonable control of Landlord, provided that the foregoing shall
not apply to any claims to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties.
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10.2.
|
Tenant’s
Insurance
|
(a) Coverages. Tenant
shall maintain the following coverages in the following amounts:
(i) Commercial
General Liability Insurance covering claims of bodily injury, personal injury
and property damage arising out of Tenant’s operations and contractual
liabilities, including coverage formerly known as broad form, on an occurrence
basis, with minimum primary limits of $1,000,000 each occurrence and $2,000,000
annual aggregate (and not more than $25,000 self-insured retention) and a
minimum excess/umbrella limit of $2,000,000.
(ii) Property
insurance covering (x) all office furniture, business and trade fixtures,
office equipment, free-standing cabinet work, movable partitions, merchandise
and all other items of Tenant’s property in the Premises installed by, for, or
at the expense of Tenant (“Tenant’s Property”), and
(y) any Leasehold Improvements installed by or for the benefit of Tenant,
whether pursuant to this Lease or pursuant to any prior lease or other agreement
to which Tenant was a party (“Tenant-Insured
Improvements”). Such insurance shall be written on an “all
risks” of physical loss or damage basis, for the full replacement cost value
(subject to reasonable deductible amounts) new without deduction for
depreciation of the covered items and in amounts that meet any co-insurance
clauses of the policies of insurance, and shall include coverage for damage or
other loss caused by fire or other peril, including vandalism and malicious
mischief, theft, water damage of any type, including sprinkler leakage, bursting
or stoppage of pipes, and explosion, and providing business interruption
coverage for a period of one year.
(iii) Worker’s
Compensation and Employer’s Liability or other similar insurance to the extent
required by Law.
(b) Form of
Policies. The minimum limits of insurance required to be
carried by Tenant shall not limit Tenant’s liability. Such insurance
shall (i) be issued by an insurance company that has an A.M. Best rating of
not less than A-VIII; (ii) be in form and content reasonably acceptable to
Landlord; and (iii) provide that it shall not be canceled or materially
changed without 30 days’ prior notice to Landlord, except that 10 days’ prior
notice may be given in the case of nonpayment of premiums. Tenant’s
Commercial General Liability Insurance shall (a) name Landlord, Landlord’s
managing agent, and any other party designated by Landlord (“Additional Insured
Parties”) as additional insureds; and (b) be primary insurance as to all
claims thereunder and provide that any insurance carried by Landlord is excess
and non-contributing with Tenant’s insurance. Landlord shall be
designated as a loss payee with respect to Tenant’s Property insurance on any
Tenant-Insured Improvements. Tenant shall deliver to Landlord, on or
before the Commencement Date and at least 15 days before the expiration dates
thereof, certificates from Tenant’s insurance company on the forms currently
designated “XXXXX 28”
(Evidence of Commercial Property Insurance) and “XXXXX 25-S” (Certificate of
Liability Insurance) or the equivalent. Attached to the XXXXX 25-S
there shall be an endorsement naming the Additional Insured Parties as
additional insureds which shall be binding on Tenant’s insurance company and
shall expressly require the insurance company to notify each Additional Insured
Party in writing at least 30 days before any termination or material change to
the policies, except that 10 days’ prior notice may be given in the case of
nonpayment of premiums. Upon Landlord’s request, Tenant shall deliver
to Landlord, in lieu of such certificates, copies of the required policies of
insurance showing that the Additional Insured Parties are named as additional
insureds.
(c) Additional
Insurance. Tenant shall maintain such increased amounts of the
insurance required to be carried by Tenant under this Section 10.2, and
such other types and amounts of insurance covering the Premises and Tenant’s
operations therein, as may be reasonably requested by Landlord, but not in
excess of the amounts and types of insurance then being required by landlords of
buildings comparable to and in the vicinity of the Building.
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10.3.
|
Tenant’s
Risk
|
To the
maximum extent this Agreement may be made effective according to law, Tenant
agrees to use and occupy the Premises and to use such other portions of the
Building as Tenant is herein given the right to use at Tenant’s own risk; and
Landlord shall have no responsibility or liability for any loss of or damage to
Tenant’s Removable Property. The provisions of this Section shall be
applicable from and after the execution of this Lease and until the end of the
Term of this Lease, and during such further period as Tenant may use or be in
occupancy of any part of the Premises or of the Building.
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10.4.
|
Injury
Caused by Third Parties
|
To the
maximum extent this Agreement may be made effective according to law, Tenant
agrees that Landlord shall not be responsible or liable to Tenant, or to those
claiming by, through or under Tenant, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the Premises adjacent to or connecting with the Premises
or any part of the Property or otherwise.
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10.5.
|
Landlord’s
Insurance
|
Landlord
shall maintain the following insurance, together with such other insurance
coverage as Landlord in its reasonable judgment may elect to maintain
(collectively, “Landlord Insurance”), the premiums of which will be included in
Expenses: (1) Commercial General Liability Insurance applicable to the Property,
Building and common areas, providing on an occurrence basis, a minimum combined
single limit of at least $2,000,000; and (2) All Risk Property Insurance on the
Building at replacement cost value as reasonably estimated by
Landlord.
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10.6.
|
Waiver
of Subrogation
|
Any
insurance carried by either party with respect to the Property or property
therein or occurrences thereon shall include a clause or endorsement denying to
the insurer rights of subrogation against the other party to the extent rights
have been waived by the insured before occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the
contrary, hereby waives any rights of recovery against the other for injury or
loss due to hazards covered by such insurance to the extent of the
indemnification received thereunder.
ARTICLE
XI
LANDLORD’S
ACCESS TO PREMISES
|
11.1.
|
Landlord’s
Rights
|
Landlord
shall have the right to enter the Premises upon twelve (12) hours prior notice
(except in case of emergency) at all reasonable hours for the purpose of
inspecting or making repairs to the same, and Landlord shall also have the
right, upon at least six (6) hours prior notice to Tenant, to make access
available at all reasonable hours to prospective or existing mortgagees or
purchasers of any part of the Property. Landlord shall have access to
the Premises to show the same to prospective tenants only during the last twelve
(12) months of the Term upon six (6) hours prior notice to Tenant.
ARTICLE
XII
FIRE,
EMINENT DOMAIN, ETC.
|
12.1.
|
Abatement
of Rent
|
If the
Premises are damaged by fire or other casualty in the Building, Basic Rent and
Escalation Charges payable by Tenant shall xxxxx proportionately for the period
in which, by reason of such damage, there is substantial interference with
Tenant’s use of the Premises, having regard to the extent to which Tenant may be
required to discontinue Tenant’s use of all or a portion of the Premises, but
such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises to the condition in which they were before
such damage pursuant to Section 12.3 hereof. If the Premises are
affected by any exercise of the power of eminent domain, Basic Rent and
Escalation Charges payable by Tenant shall be justly and equitably abated and
reduced according to the nature and extent of the loss of use thereof suffered
by Tenant.
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12.2.
|
Right
of Termination
|
If the
Premises or the Property are substantially damaged by fire or casualty (the term
“substantially damaged” meaning damage of such a character that the same cannot,
in ordinary course, reasonably be expected to be repaired within twelve (12)
months from the time that repair work would commence, as evidenced by an
estimate prepared by a reputable, independent contractor), or, if as a result of
any exercise of the right of eminent domain more than thirty percent (30%) of
the Building or the Property is taken or a material portion of the parking is
taken or there is a material, adverse impact on access to the Property
(collectively, a “Taking”), then either party shall have the right to terminate
this Lease (even if Landlord’s entire interest in the Premises may have been
divested) by giving to the other party notice of such party’s election so to do
within sixty (60) days after the occurrence of such casualty or the effective
date of such Taking, whereupon this Lease shall terminate thirty (30) days after
the date of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof. It shall
be a condition to Landlord’s exercise of its termination right under this
Section 12.2 that Landlord terminate the leases of all tenants of the Building
which are similarly affected by such fire, casualty or taking.
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12.3.
|
Restoration
|
If this
Lease shall not be terminated pursuant to Section 12.2, Landlord shall
thereafter use due diligence to restore the Premises to proper condition for
Tenant’s use and occupation, provided that Landlord’s obligation shall be
limited to the amount of insurance proceeds available therefor (including the
applicable deductible, which shall constitute an Operating Expense
hereunder). If, for any reason (including, without limitation,
insufficiency or unavailability of insurance proceeds), such restoration shall
not be substantially completed within twelve (12) months from the time that
repair work would commence in the case of damage by fire or casualty or from the
effective date of the Taking, as applicable (which twelve (12) month period may
be extended for such periods of time as Landlord is prevented from proceeding
with or completing such restoration for any cause beyond Landlord's reasonable
control, but in no event for more than an additional three (3) months), Tenant
shall have the right to terminate this Lease by giving notice to Landlord
thereof within thirty (30) days after the expiration of such period (as so
extended). Upon the giving of such notice, this Lease shall cease and
come to an end without further liability or obligation on the part of either
party unless, within such thirty (30) day period, Landlord substantially
completes such restoration. Such right of termination shall be
Tenant’s sole and exclusive remedy at law or in equity for Landlord’s failure so
to complete such restoration.
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12.4.
|
Award
|
Landlord
shall have and hereby reserves and excepts, and Tenant hereby grants and assigns
to Landlord, all rights to recover for damage to the Property and the leasehold
interest hereby created, and to compensation accrued or hereafter to accrue by
reason of such taking, damage or destruction, and by way of confirming the
foregoing, Tenant hereby grants and assigns, and covenants with Landlord to
grant and assign to Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent
Tenant from prosecuting in any condemnation proceedings a claim for the value of
any of Tenant’s Removable Property installed in the Premises by Tenant at
Tenant’s expense and for relocation expenses, provided that such action shall
not affect the amount of compensation otherwise recoverable by Landlord from the
taking authority.
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12.5.
|
Temporary
Taking
|
In the
event of a taking of the Premises or any part thereof for temporary use, (i)
this Lease shall be and remain unaffected thereby and Basic Rent shall not
xxxxx, and (ii) Tenant shall be entitled to receive for itself such portion or
portions of any award made for such use with respect to the period of the taking
which is within the Term; provided that if such taking shall remain in force at
the expiration or earlier termination of this Lease, Tenant shall then pay to
Landlord a sum equal to the reasonable cost of performing Tenant’s obligations
under Section 14.20 with respect to the surrender of the Premises and, upon such
payment, shall be excused from such obligations.
ARTICLE
XIII
DEFAULT
|
13.1.
|
Default
|
If at any
time subsequent to the date of this Lease any one or more of the following
events (each of which being agreed to constitute substantial defaults hereunder
and being referred to herein as a “Default of Tenant”) shall
happen:
|
a.
|
Tenant
shall fail to pay the Basic Rent, Escalation Charges or other charges
hereunder when due and such failure shall continue for five (5) Business
Days after notice to Tenant from Landlord;
or
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|
b.
|
Tenant
shall neglect or fail to perform or observe any other covenant herein
contained on Tenant’s part to be performed or observed and Tenant shall
fail to remedy the same within thirty (30) days after notice to Tenant
specifying such neglect or failure, or if such failure is of such a nature
that Tenant cannot reasonably remedy the same within such thirty (30) day
period, Tenant shall fail to commence promptly to remedy the same and to
prosecute such remedy to completion with diligence and continuity but in
no event shall such period exceed ninety (90) days;
or
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|
c.
|
Tenant’s
leasehold interest in the Premises shall be taken on execution or by other
process of law directed against Tenant;
or
|
|
d.
|
Tenant
shall make an assignment for the benefit of creditors or shall file a
voluntary petition in bankruptcy or shall be adjudicated bankrupt or
insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
Federal, State or other statute, law or regulation for the relief of
debtors, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or any substantial
part of its properties, or shall admit in writing its inability to pay its
debts generally as they become due;
or
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|
e.
|
A
petition shall be filed against Tenant in bankruptcy or under any other
law seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
Federal, State or other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of sixty (60) days (whether or
not consecutive), or if any debtor in possession (whether or not Tenant)
trustee, receiver or liquidator of Tenant or of all or any substantial
part of its properties or of the Premises shall be appointed without the
consent or acquiescence of Tenant and such appointment shall remain
unvacated or unstayed for an aggregate of sixty (60) days (whether or not
consecutive);
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f.
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Or
if Tenant dissolves or is dissolved or liquidated or adopts any plan or
commences any proceeding, the result of which is intended to include
dissolution or liquidation;
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g.
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Then
in any such case:
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i.
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If
such Default of Tenant shall occur before the Commencement Date, this
Lease shall ipso facto, and
without further act on the part of Landlord, terminate;
and
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ii.
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If
such Default of Tenant shall occur after the Commencement Date, Landlord
may terminate this Lease by notice to Tenant, specifying a date not less
than ten (10) days after the giving of such notice on which this Lease
shall terminate and this Lease shall come to an end on the date specified
therein as fully and completely as if such date were the date herein
originally fixed for the expiration of the Term of this Lease (Tenant
hereby waiving any rights of redemption under M.G.L. c. 186, or
otherwise), and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter
provided.
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Nothing
contained in this Lease shall, however, limit or prejudice the right of Landlord
to prove for and obtain in proceedings under any federal or state law relating
to bankruptcy or insolvency or reorganization or arrangement, 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 the amount of the loss or damages referred to
above.
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13.2.
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Remedies
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a.
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If
this Lease shall have been terminated as provided in this Article, or if
any execution or attachment shall be issued against Tenant or any of
Tenant’s property whereupon the Premises shall be taken or occupied by
someone other than Tenant, then Landlord may, without notice, re-enter the
Premises, either by summary proceedings or otherwise, and remove and
dispossess Tenant and all other persons and any and all property from the
same, as if this Lease had not been made, and Tenant hereby waives the
service of notice of institution of legal proceedings to that end in the
event that Tenant has vacated the
Premises.
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b.
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In
the event of any termination, Tenant shall pay the Basic Rent, Escalation
Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been
the Term of this Lease in the absence of such termination, and whether or
not the Premises shall have been re-let, shall be liable to Landlord for,
and shall pay to Landlord, as current damages, the Basic Rent, Escalation
Charges and other sums which would be payable hereunder if such
termination had not occurred, less the net proceeds, if any, of any
re-letting of the Premises, after deducting all expenses in connection
with such re-letting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, attorneys’ fees,
advertising, expenses of employees, alteration costs and expenses of
preparation for such re-letting. Tenant shall pay such current
damages to Landlord monthly on the days which the Basic Rent would have
been payable hereunder if this Lease had not been
terminated.
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c.
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At
any time after such termination, whether or not Landlord shall have
collected any such current damages, Landlord may demand, as liquidated
final damages and in lieu of all such current damages beyond the date of
such demand, and Tenant shall pay to Landlord an amount equal to the
excess, if any, of the Basic Rent, Escalation Charges and other sums as
hereinbefore provided which would be payable hereunder from the date of
such demand (assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of Taxes and Operating Expenses would be the
same as the payments required for the immediately preceding Operating or
Tax Year) for what remained, over the Term of this Lease if the same
remained in effect, over the then fair net rental value of the Premises
for the same period.
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d.
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In
case of any Default by Tenant, re-entry, expiration and dispossession by
summary proceedings or otherwise, Landlord
may:
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i.
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Re-let
the Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms which may at Landlord’s option be equal
to or less than or exceed the period which would otherwise have
constituted the balance of the Term of this Lease and may grant
concessions or free rent to the extent that Landlord considers advisable
and necessary to re-let the same;
and
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ii.
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May
make such reasonable alterations, repairs and decorations in the Premises
as Landlord in its sole judgment considers advisable and necessary for the
purpose of re-letting the Premises; and the making of such alterations,
repairs and decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in
no event be liable in any way whatsoever for failure to re-let the
Premises, or, in the event that the Premises are re-let, for failure to
collect the rent under such re-letting. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed, or in
the event of Landlord obtaining possession of the Premises, by reason of
the violation by Tenant of any of the covenants and conditions of this
Lease.
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e.
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If
a Guarantor of this Lease is named in Section 1.2, the happening of any of
the events described in of this Section 13.1(d) or (e) with respect to the
Guarantor shall constitute a Default of Tenant
hereunder.
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f.
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The
specified remedies to which Landlord may resort hereunder are not intended
to be exclusive of any remedies or means of redress to which Landlord may
at any time be entitled lawfully, and Landlord may invoke any remedy
(including the remedy of specific performance) allowed at law or in equity
as if specific remedies were not herein provided
for.
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g.
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All
costs and expenses incurred by or on behalf of Landlord (including,
without limitation, attorneys’ fees and expenses) in enforcing its rights
hereunder or occasioned by any Default of Tenant shall be paid by
Tenant.
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h.
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Nothing
contained in this Lease shall limit or prejudice the right of Landlord to
prove for and obtain in proceedings for bankruptcy or insolvency by reason
of the termination of this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing
the proceedings in which, the damages are to be proved, whether or not the
amount be greater, equal to or less than the amount of the loss or damages
referred to above.
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ARTICLE
XIV
MISCELLANEOUS
PROVISIONS AND
TENANT’S
ADDITIONAL COVENANTS
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14.1.
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Extra
Hazardous Use
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Tenant
covenants and agrees that Tenant will not do or permit anything to be done in or
upon the Premises, or bring in anything or keep anything therein, which shall
increase the rate of property or liability insurance on the Premises or of the
Building above the standard rate applicable to premises occupied for Permitted
Uses; and Tenant further agrees that, in the event that Tenant shall do any of
the foregoing, Tenant will promptly pay to Landlord, on demand, any such
increase resulting therefrom, which shall be due and payable as an additional
charge hereunder.
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14.2.
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Waiver
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a.
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Failure
on the part of Landlord or Tenant to complain of any action or non-action
on the part of the other, no matter how long the same may continue, shall
never be a waiver by Tenant or Landlord, respectively, of any of the
other’s rights hereunder. Further, no waiver at any time of any
of the provisions hereof by Landlord or Tenant shall be construed as a
waiver of any of the other provisions hereof, and a waiver at any time of
any of the provisions hereof shall not be construed as a waiver at any
subsequent time of the same provisions. The consent or approval
of Landlord or Tenant to or of any action by the other requiring such
consent or approval shall not be construed to waive or render unnecessary
Landlord’s or Tenant’s consent or approval to or of any subsequent similar
act by the other.
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b.
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No
payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a
lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such a check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without
prejudice to any other rights or remedies which Landlord may have against
Tenant.
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14.3.
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Covenant
of Quiet Enjoyment
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Tenant,
subject to the terms and provisions of this Lease, on payment of the Basic Rent
and Escalation Charges and other charges hereunder and observing, keeping and
performing all of the other terms and provisions of this Lease on Tenant’s part
to be observed, kept and performed, shall lawfully, peaceably and quietly have,
hold, occupy and enjoy the Premises during the term hereof, without hindrance or
ejection by any persons lawfully claiming under Landlord to have title to the
Premises superior to Tenant; the foregoing covenant of quiet enjoyment is in
lieu of any other covenant, express or implied.
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14.4.
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Landlord’s
Liability
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a.
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No
owner of the Property shall be liable under this Lease except for breaches
of Landlord’s obligations occurring while owner of the
Property. The obligations of Landlord shall be binding upon the
assets of Landlord which comprise the Property but not upon other assets
of Landlord. No individual partner, trustee, stockholder,
officer, director, employee, member or beneficiary of Landlord shall be
personally liable under this Lease and Tenant shall look solely to
Landlord’s interest in the Property in pursuit of its remedies upon an
event of default hereunder, and the general assets of Landlord and of the
individual partners, trustees, stockholders, officers, employees, members
or beneficiaries of Landlord shall not be subject to levy, execution or
other enforcement procedure for the satisfaction of the remedies of
Tenant.
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b.
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Except
as otherwise expressly provided in Section 7.6(b), with respect to any
services or utilities to be furnished by Landlord to Tenant, Landlord
shall in no event be liable for failure to furnish the same when prevented
from doing so by strike, lockout, breakdown, accident, order or regulation
of or by any governmental authority, or failure of supply, or inability by
the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord’s reasonable control, or for
cause due to any act or neglect of Tenant or Tenant’s servants, agents,
employees, licensees or any person claiming by, through or under
Tenant.
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c.
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In
no event shall Landlord ever be liable to Tenant for any indirect or
consequential damages suffered by Tenant from whatever
cause.
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14.5.
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Notice
to Mortgagee
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After
receiving notice from any person, firm or other entity that it holds a mortgage
which includes the Premises as part of the mortgaged premises, no notice from
Tenant to Landlord shall be effective unless and until a copy of the same is
given to such holder (provided Tenant shall have been furnished with the name
and address of such holder), and the curing of any of Landlord’s defaults by
such holder shall be treated as performance by Landlord.
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14.6.
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Assignment
of Rents and Transfer of Titles
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a.
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With
reference to any assignment by Landlord of Landlord’s interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage on property which
includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage shall
never be treated as an assumption by such holder of any of the obligations
of Landlord hereunder unless such holder shall, by notice sent to Tenant,
specifically otherwise elect and that, except as aforesaid, such holder
shall be treated as having assumed Landlord’s obligations hereunder only
upon foreclosure of such holder’s mortgage and the taking of possession of
the Premises.
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b.
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In
no event shall the acquisition of title to the Property by a purchaser
which, simultaneously therewith, leases the entire Property back to the
seller thereof be treated as an assumption by operation of law or
otherwise, of Landlord’s obligations hereunder, but Tenant shall look
solely to such seller-lessee, and its successors from time to time in
title, for performance of Landlord’s obligations hereunder. In
any event, this Lease shall be subject and subordinate to the lease
between such purchaser-lessor and seller-lessee; provided that Landlord
shall obtain a commercially reasonable subordination, non-disturbance and
attornment agreement with respect to any purchaser-lessor of the
Property. For all purposes, such seller-lessee, and its
successors in title, shall be the Landlord hereunder unless and until
Landlord’s position shall have been assumed by such
purchaser-lessor.
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c.
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Tenant
hereby agrees that, except as provided in paragraph b. of this Section, in
the event of any transfer of title to the Property by Landlord, Landlord
shall thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations
hereunder.
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d.
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Tenant
hereby agrees not to look to the mortgagee, as mortgagee, mortgagee in
possession, or successor in title to the property, for accountability for
any security deposit required by the Landlord hereunder, unless said sums
have actually been received by said mortgagee as security for the tenant’s
performance of this Lease.
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e.
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Tenant
shall not pay rent more than one month in
advance.
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14.7.
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Rules
and Regulations
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Tenant
shall abide by rules and regulations set forth on Exhibit G hereto and
any other rules and regulations established by Landlord from time to time, it
being agreed that such rules and regulations will be established and applied by
Landlord in a non-discriminatory fashion, such that all rules and regulations
shall be generally applicable to other tenants, of similar nature to the Tenant
named herein, of the Building. Landlord agrees to use reasonable
efforts to insure that any such rules and regulations are uniformly enforced,
but Landlord shall not be liable to Tenant for violation of the same by any
other tenant or occupant of the Building, or persons having business with
them.
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14.8.
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Additional
Charges
|
If Tenant
shall fail to pay when due any sums under this Lease designated as an additional
charge, Landlord shall have the same rights and remedies as Landlord has
hereunder for failure to pay Basic Rent.
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14.9.
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Invalidity
of Particular Provisions
|
If any
term or provision of this Lease, or the application thereof to any person or
circumstance shall, to the extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
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14.10.
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Provisions
Binding, Etc.
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Except as
herein otherwise provided, the terms hereof shall be binding upon and shall
inure to the benefit of the successors and assigns, respectively, of Landlord
and Tenant and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and assigns. Each term and each
provision of this Lease to be performed by Tenant shall be construed to be both
a covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment by
Tenant, but has reference only to those instances in which Landlord may later
give consent to a particular assignment as required by those provisions of
Article VI hereof.
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14.11.
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Recording
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Tenant
agrees not to record this Lease, but each party hereto agrees, on the request of
the other, to execute a so-called Notice of Lease in form recordable and
complying with applicable law and reasonably satisfactory to Landlord’s
attorneys. In no event shall such document set forth the rent or
other charges payable by Tenant under this Lease; and any such document shall
expressly state that it is executed pursuant to the provisions contained in this
Lease, and is not intended to vary the terms and conditions of this
Lease. Upon termination of this Lease, Tenant shall execute an
instrument in recordable form acknowledging the date of
termination.
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14.12.
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Notices
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Whenever,
by the terms of this Lease, notices shall or may be given either to Landlord or
to Tenant, such notice shall be in writing and addressed as
follows:
If
Intended for Landlord:
Address
to Landlord at Landlord’s Original Address (or to such other address or
addresses as may from time to time hereafter be designated by Landlord by like
notice).
If
Intended for Tenant:
Address
to Tenant at Tenant’s Original Address (or to such other address or addresses as
may from time to time hereafter be designated by Landlord by like
notice).
All such
notices so addressed shall be effective (i) when delivered, if hand delivered,
or (ii) one (1) day after deposit with a recognized overnight delivery service
or (iii) three (3) days after deposit with the U.S. Postal Service if mailed by
registered or certified mail, postage prepaid, return receipt
requested.
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14.13.
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When
Lease Becomes Binding
|
The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and delivery
hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and this Lease expressly supersedes any proposals or other written
documents relating hereto. This Lease may be modified or altered only
by written agreement between Landlord and Tenant, and no act or omission of any
employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
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14.14.
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Paragraph
Headings
|
The
paragraph headings throughout this instrument are for convenience and reference
only, and the words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or meaning of the
provisions of this Lease.
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14.15.
|
Rights
of Mortgagee
|
This
Lease shall be subject and subordinate to any mortgage from time to time
encumbering the Property, whether executed and delivered before or subsequent to
the date of this Lease, in accordance with the provisions of this clause
(a). Landlord shall obtain and deliver to Tenant a commercially
reasonable subordination, non-disturbance and attornment agreement with respect
to this Lease from any mortgagee or superior lessor of the Property, subject to
commercially reasonable changes which may be requested by
Tenant. Tenant shall execute such instruments of subordination in
confirmation of the foregoing agreement as a holder may request, subject to
Tenant’s obtaining the aforesaid subordination, non-disturbance and attornment
agreement with respect to this Lease. Without limitation of the
foregoing, Tenant hereby approves the form attached hereto as Exhibit
L. In the event that any mortgagee or its respective successor
in title shall succeed to the interest of Landlord, then this Lease shall
continue in full force and effect and Tenant shall and does hereby agree to
attorn to such mortgagee or successor and to recognize such mortgagee or
successor as its Landlord.
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14.16.
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Status
Report
|
Tenant
shall from time to time, upon not less than fifteen (15) days prior written
request by Landlord, execute, acknowledge and deliver to the Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect and that there are no uncured defaults of Landlord or Tenant under
this Lease, that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Base Rent, Escalation Charges and other charges hereunder
and to perform its other covenants under this Lease and that there are no
uncured defaults of the Landlord or Tenant under this Lease (or, if there have
been any modifications that the same is in full force and effect as modified and
stating the modifications and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable detail), and the
dates to which the Base Rent, Escalation Charges and other charges hereunder
have been paid. Any such statement delivered pursuant to this Section
14.16 may be relied upon by a prospective purchaser or mortgagee of the Premises
or any prospective assignee of any mortgagee of the Premises. Failure
of Tenant to respond to such request within such time shall be deemed an
acknowledgment by Tenant that the facts recited in such request are
correct. Landlord shall provide to Tenant such statements from
Landlord upon request of Tenant in accordance with the terms of this Section
14.16.
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14.17.
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Security
Deposit
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a.
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Form of Security
Deposit. Tenant shall deliver to Landlord, concurrent
with Tenant’s execution of this Lease, the Security Deposit amount
identified in Section 1.2 above, in the form of (i) cash, or (ii) an
unconditional, clean, irrevocable, fully assignable standby letter of
credit (the “LOC”), in the form attached hereto as Exhibit H ((i)
or (ii) shall be referred to herein as the “Security
Deposit”). If the Security Deposit is in the form of a letter
of credit, the LOC shall be issued by a commercial bank having assets in
excess of $100,000,000.00, and which LOC may be presented for payment in a
location in Boston, Massachusetts. On thirty (30) days notice,
Landlord may require that the LOC be replaced with an LOC issued by a
different institution if the then issuing bank’s assets fall below
$100,000,000.00 in value, and failing such replacement, Landlord may draw
upon the LOC and hold the proceeds as described below. The LOC
shall have a term of not less than one (1) year, shall provide for
automatic renewals, and at the end of the Term shall have an expiration
date not earlier than sixty (60) days after the scheduled expiration date
of the Term. Tenant shall pay all expenses, points and/or fees
associated with obtaining the LOC and with any transfer thereof, and any
such expenses or fees shall constitute additional rent payable by Tenant
hereunder. At Landlord’s election from time to time, the LOC shall name
Landlord and its mortgagee as
co-beneficiaries.
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b.
|
Landlord’s Holding of
the Security Deposit. Landlord shall hold the Security
Deposit throughout the term of this Lease as security for the performance
by Tenant of all obligations on the part of Tenant
hereunder. In the event that the Security Deposit is in the
form of cash (or in the event Landlord draws upon the LOC and holds the
amount in lieu of applying said amount drawn), Landlord shall hold the
same, in a separate interest bearing account (provided that Landlord shall
not be obligated to deposit the Security Deposit in anything other than a
standard money market account and shall have no liability to Tenant with
respect to the terms or interest rate for such account), and any interest
earned thereon shall be deemed to be a part of the Security
Deposit. Landlord shall have the right from time to time
without prejudice to any other remedy Landlord may have on account
thereof, to apply such deposit, or any part thereof (or draw upon all or
any part of the LOC), to Landlord’s damages arising from any Default on
the part of Tenant. If there is then existing no Default of
Tenant, Landlord shall return the Security Deposit, less so much thereof
as shall have theretofore been applied in accordance with the terms of
this Section 14.17 (and less such amount as may have been returned to
Tenant in accordance with the provisions of subparagraphs (d) and (e)
below), to Tenant on the expiration or earlier termination of the Term of
this Lease and surrender of possession of the Premises by Tenant to
Landlord at such time. The use, application or retention of the
Security Deposit, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this Lease
or by law. The parties agree that Landlord shall not first be
required to proceed against the Security Deposit and the Security Deposit
shall not operate as a limitation on any recovery to which Landlord may
otherwise be entitled. If any portion of the Security Deposit
is applied (or drawn upon in the case of the LOC), Tenant shall, within
ten (10) days after written demand therefor, reinstate the Security
Deposit to the amount then required under this Lease, and Tenant’s failure
to do so shall be a Default under this
Lease.
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c.
|
Transfer of the
Security Deposit. If Landlord conveys Landlord’s
interest under this Lease, the Security Deposit, or any part thereof not
previously applied, shall be turned over by Landlord to Landlord’s
grantee, and, if so turned over, Tenant agrees to look solely to such
grantee for proper application of the deposit in accordance with the terms
of this Section 14.17, and the return thereof in accordance
herewith. This provision shall also apply to subsequent
grantees and transferees. Tenant shall execute any documents
reasonably necessary to effectuate such a transfer. The holder of a
mortgage shall not be responsible to Tenant for the return or application
of any such deposit, whether or not it succeeds to the position of
Landlord hereunder, unless such deposit shall have been received in hand
by such holder.
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d.
|
Reduction of Security
Deposit. On each of the second, third, fourth and
fifth anniversaries of the Commencement Date, the Security Deposit shall
be reduced on each such date by the sum of Two Hundred Forty-Seven
Thousand Five Hundred and 00/100 ($247,500.00) Dollars, until the Security
Deposit has been reduced to Four Hundred Ninety-Five Thousand and 00/100
($495,000.00) Dollars, which amount shall then remain as the Security
Deposit hereunder for the balance of the Term, provided that on the date
of each such reduction, the Lease is in full force and effect and there is
no Default of Tenant then uncured. If on any reduction date,
the Security Deposit shall not be reduced because the foregoing condition
is not satisfied as of such date, Tenant shall not be entitled to any
further reduction in the Security Deposit, provided that if a
non-material, non-monetary Default of Tenant is then uncured, Tenant shall
be entitled to such reduction of the Security Deposit upon the cure of
such Default. If the Security Deposit is reduced pursuant to
the foregoing provisions, Landlord shall (x) if the Security Deposit is in
the form of cash, return the amount of such reduction to Tenant on or
before the date that is thirty (30) days after Tenant’s written demand for
such sums, or (y) if the Security Deposit is in the form of the LOC,
cooperate with Tenant to have the LOC amended or reissued to reflect such
reduction.
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14.18.
|
Remedying
Defaults; Late Payments
|
If Tenant
shall at any time default in the performance of any obligation under this Lease,
Landlord shall have the right, but not the obligation, to enter upon the
Premises and to perform such obligation notwithstanding the fact that no
specific provision for such substituted performance is made in the Lease with
respect to such default. In performing such obligation, Landlord may
make any payment of money or perform any other act. In the event of
the exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at a rate
equal to 3% over the prime rate in effect from time to time, as published in the
Wall Street Journal (but in no event less than 18% per annum or more than the
maximum rate allowed by law), as an additional charge. Any payment of
Basic Rent, Escalation Charges or other charges payable hereunder not paid
within seven (7) days of the date when due shall bear interest at a rate equal
to 3% over the prime rate in effect from time to time, as published in the Wall
Street Journal (but in no event less than 18% per annum or more than the maximum
rate allowed by law) from the due date thereof, as an additional
charge.
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14.19.
|
Holding
Over
|
Any
holding over by Tenant after the expiration of the term of this Lease shall be
treated as a daily tenancy at sufferance at a rate equal to 150% of the Rent
provided herein (prorated on a daily basis) and shall otherwise be on the terms
and conditions set forth in this Lease as far as applicable.
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14.20.
|
Surrender
of Premises
|
Upon the
expiration or earlier termination of the Term of this Lease, Tenant shall
peaceably quit and surrender to Landlord the Premises in neat and clean
condition and in good order, condition and repair, together with all
alterations, additions and improvements which may have been made or installed
in, on or to the Premises before or during the Term of this Lease, excepting
only ordinary wear and use and damage by fire or other casualty for which, under
other provisions of this Lease, Tenant has no responsibility of repair or
restoration. Tenant shall remove all of Tenant’s Removable Property
and (i) to the extent specified by Landlord pursuant to Paragraph 5.2, all
Improvements made by Tenant and (ii) with respect to improvements made by Tenant
not requiring Landlord’s consent; and Tenant shall repair any damages to the
Premises or the Building caused by such removal. Notwithstanding
anything in this Lease to the contrary, Tenant shall have no obligation to
remove Building Standard Office Improvements from the Premises. Any
of Tenant’s Removable Property which shall remain in the Building or on the
Premises after the expiration or termination of the Term of this Lease shall be
deemed conclusively to have been abandoned, and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may
see fit, at Tenant’s sole cost and expense.
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14.21.
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Brokerage
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Landlord
has delivered a copy of this Lease to Tenant for Tenant’s review only and the
delivery of it does not constitute an offer to Tenant or an option. Tenant
represents that it has dealt directly with and only with Colliers Xxxxxxxx &
Grew and Xxxxx Lang LaSalle (collectively, the “Broker”) as a broker, agent or
finder in connection with this Lease. Tenant shall indemnify and hold
Landlord and the Landlord Related Parties harmless from all claims of any other
brokers, agents or finders claiming to have represented Tenant in connection
with this Lease. Landlord shall indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers, agents or finders claiming to
have represented Landlord in connection with this Lease. Equity
Office Properties Management Corp., or such other entity affiliated with Equity
Office Properties Management Corp. that is involved in the negotiation of this
Lease (each referred to as “EOPMC”), represents only the
Landlord in this transaction. Any assistance rendered by any agent or
employee of EOPMC in connection with this Lease or any subsequent amendment or
modification or any other document related hereto has been or will be made as an
accommodation to Tenant solely in furtherance of consummating the transaction on
behalf of Landlord, and not as agent for Tenant.
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14.22.
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Environmental
Compliance
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Tenant
shall not cause any hazardous or toxic wastes, hazardous or toxic substances or
hazardous or toxic materials (collectively, “Hazardous Materials”) to be used,
generated, stored or disposed of on, under or about, or transported to or from,
the Premises (collectively, “Hazardous Materials Activities”) without first
receiving Landlord’s written consent, which may be withheld for any reason and
revoked at any time. If Landlord consents to any such Hazardous
Materials Activities, Tenant shall conduct them in strict compliance (at
Tenant’s expense) with all applicable Regulations, as hereinafter defined, and
using all necessary and appropriate precautions. Landlord shall not
be liable to Tenant for any Hazardous Materials Activities by Tenant, Tenant’s
employees, agents, contractors, licensees or invitees, whether or not consented
to by Landlord. Tenant shall indemnify, defend with counsel
acceptable to Landlord and hold Landlord harmless from and against any claims,
damages, costs and liabilities, arising out of Tenant’s Hazardous Materials
Activities. For purposes hereof, Hazardous Materials shall include
but not be limited to substances defined as “hazardous substances,” “toxic
substances,” or “hazardous wastes” in the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; the federal
Hazardous Materials Transportation Act, as amended; and the federal Resource
Conservation and Recovery Act, as amended (“RCRA”); those substances defined as
“hazardous wastes” in the Massachusetts Hazardous Waste Facility Siting Act, as
amended (Massachusetts General Laws Chapter 21D); those substances defined as
“hazardous materials” or “oil” in Massachusetts General Laws Chapter 21E, as
amended; and as such substances are defined in any regulations adopted and
publications promulgated pursuant to said laws (collectively,
“Regulations”). Before using, storing or maintaining any Hazardous
Materials on or about the Premises, Tenant shall provide Landlord with a list of
the types and quantities thereof, and shall update such list as necessary for
continued accuracy. Tenant shall also provide Landlord with a copy of
any Hazardous Materials inventory statement required by any applicable
Regulations, and any update filed in accordance with any applicable
Regulations. If Tenant’s activities violate or create a risk of
violation of any Regulations, Tenant shall cease such activities immediately
upon notice from Landlord. Tenant shall immediately notify Landlord
both by telephone and in writing of any spill or unauthorized discharge of
Hazardous Materials or of any condition constituting an imminent hazard under
any Regulations. Landlord, Landlord’s representatives and employees
may enter the Premises at any time during the Term to inspect Tenant’s
compliance herewith, and may disclose any violation of any Regulations to any
governmental agency with jurisdiction. Nothing herein shall prohibit
Tenant form using minimal quantities of cleaning fluid and office supplies which
may constitute Hazardous Materials but which are customarily present in premises
devoted to office use, provided that such use is in compliance with all
applicable laws and subject to all of the other provisions of this Section 14.23.
Landlord hereby confirms and agrees that Tenant shall have no liability
for the environmental condition of the Premises, the Building or the Property
prior to the Commencement Date (except as may arise from any entry by Tenant
prior to that date).
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14.23.
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Xxxxxxxx
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Xxxxxxxx
X, X, X-0, X-0, and X-0, X, X-0, X, X, X, X, X-0, H, I, J, K, and L attached
hereto are hereby incorporated by reference as fully as if set forth herein in
full.
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14.24.
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Governing
Law
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This
Lease shall be governed exclusively by the provisions hereof and by the Laws of
the Commonwealth of Massachusetts, as the same may from time to time
exist.
If Tenant
is an entity, Tenant shall, simultaneously with the delivery to Landlord of this
Lease, deliver to Landlord a Secretary’s Certificate or similar instrument
evidencing that the execution of this Lease by Tenant has been properly
authorized and that the individual executing this Lease on behalf of Tenant is
authorized to do so.
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14.26.
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Representations
and Warranties of Tenant.
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Tenant
(and, if Tenant is a corporation, partnership, limited liability company or
other legal entity, such corporation, partnership, limited liability company or
entity) hereby makes the following representations and warranties, each of which
is material and being relied upon by Landlord, is true in all respects as of the
date of this Lease, and shall survive the expiration or termination of the
Lease. Tenant shall re-certify such representations to Landlord
periodically, upon Landlord’s reasonable request.
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a.
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If
Tenant is an entity, Tenant is duly organized, validly existing and in
good standing under the laws of the state of its organization, and is
qualified to do business in the state in which the Premises is located,
and the persons executing this Lease on behalf of Tenant have the full
right and authority to execute this Lease on behalf of Tenant and to bind
Tenant without the consent or approval of any other person or
entity. Tenant has full power, capacity, authority and legal right
to execute and deliver this Lease and to perform all of its obligations
hereunder. This Lease is a legal, valid and binding obligation of
Tenant, enforceable in accordance with its
terms.
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b.
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Tenant
has not (1) made a general assignment for the benefit of creditors, (2)
filed any voluntary petition in bankruptcy or suffered the filing of an
involuntary petition by any creditors, (3) suffered the appointment of a
receiver to take possession of all or substantially all of its assets, (4)
suffered the attachment or other judicial seizure of all or substantially
all of its assets, (5) admitted in writing its inability to pay its debts
as they come due, or (6) made an offer of settlement, extension or
composition to its creditors
generally.
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c.
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Tenant
is not in violation of any Anti-Terrorism Law (hereinafter
defined).
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d.
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Tenant
is not, as of the date hereof:
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i.
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conducting
any business or engaging in any transaction or dealing with any Prohibited
Person (hereinafter defined), including the governments of Cuba, Iran,
North Korea, Myanmar and Syria and, including the making or receiving of
any contribution of funds, goods or services to or for the benefit of any
Prohibited Person;
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ii.
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dealing
in, or otherwise engaging in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224;
or
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iii.
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engaging
in or conspiring to engage in any transaction that evades or avoids, or
has the purpose of evading or avoiding, or attempts to violate any of the
prohibitions set forth in, any Anti-Terrorism
Law.
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e.
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Neither
Tenant nor any of its affiliates, officers, directors, shareholders,
members or lease guarantor, as applicable, is a Prohibited
Person.
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If at any
time any of these representations becomes false, then it shall be considered a
material default under this Lease.
As used
herein, "Anti-Terrorism Law"
is defined as any law relating to terrorism, anti-terrorism,
money-laundering or anti-money laundering activities, including without
limitation the United States Bank Secrecy Act, the United States Money
Laundering Control Act of 1986, Executive Order No. 13224, Title 3 of the USA
Patriot Act, and any regulations promulgated under any of them. As used
herein "Executive Order No.
13224" is defined as Executive Order No. 13224 on Terrorist Financing
effective September 24, 2001, and relating to “Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism",
as may be amended from time to time. "Prohibited Person" is defined
as (i) a person or entity that is listed in the Annex to Executive Order No.
13224, or a person or entity owned or controlled by an entity that is listed in
the Annex to Executive Order No. 13224; (ii) a person or entity with whom
Landlord is prohibited from dealing or otherwise engaging in any transaction by
any Anti-Terrorism Law; or (iii) a person or entity that is named as a
"specially designated national and blocked person" on the most current list
published by the U.S. Treasury Department Office of Foreign Assets Control at
its official website, xxxx://xxx.xxxxx.xxx/xxxx/x00xxx.xxx
or at any replacement website or other official publication of such list. "USA Patriot Act" is defined
as the "Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001" (Public Law 107-56),
as may be amended from time to time.
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14.27.
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Landlord’s
Representations and Warranties
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a.
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Landlord
is duly organized, validly existing and in good standing under the laws of
the state of its organization, and is qualified to do business in the
state in which the Premises is located, and the persons executing this
Lease on behalf of Landlord have the full right and authority to execute
this Lease on behalf of Landlord and to bind Landlord without the consent
or approval of any other person or entity. Landlord has full
power, capacity, authority and legal right to execute and deliver this
Lease and to perform all of its obligations hereunder. This
Lease is a legal, valid and binding obligation of Landlord, enforceable in
accordance with its terms.
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b.
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To
Landlord’s knowledge, the status of the title of the Property is as set
forth in the title policy attached hereto as Exhibit
I.
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c.
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Landlord's
Work in the Premises, shall be constructed in accordance with all
applicable federal, state, and local laws, ordinances and regulations,
free of all mechanics and materialmen's liens (subject to Landlord’s right
to bond over the same in accordance with Section 4.2(a)
above).
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d.
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Landlord
has no knowledge of any matters related to the environmental condition of
the Property, other than as set forth in the following environmental site
assessment: Air Quality/ Microbial Investigation report dated on or about
October 10, 2003 and Notice of Activity and Use Limitation Fuel Oil
Release dated on or about May 20,
1998.
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14.28.
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Force
Majeure Event
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For
purposes of this Lease, a Force Majeure Event” shall include: 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 similar causes beyond a party’s reasonable control, but shall not
include the financial incapacity of a party.
ARTICLE
XV
TENANT
OPTION TO EXTEND
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15.1.
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Fair
Market Rent
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Whenever
any provision of this Lease provides that the Fair Market Rent shall be
calculated, it shall mean the fair rent for the Premises as of the commencement
of the period in question under market conditions for comparable office space in
the Xxxxxx/Wellesley/Waltham market, as well as such annual increases in rent
for the period in question as are reasonably consistent with then current market
conditions. Fair Market Rent shall be determined by agreement between Landlord
and Tenant, but if Landlord and Tenant are unable to agree upon the Fair Market
Rent within thirty (30) days after the date on which Tenant delivers notice of
its exercise of its option to extend under Section 15.2 below, then Tenant shall
have the right to withdraw its exercise of the option to extend by written
notice delivered to Landlord (“Withdrawal Notice”) within such thirty-day
period. If Tenant does not deliver a Withdrawal Notice within such
thirty-day period, or if Landlord and Tenant mutually agree to proceed with the
process described herein, the Fair Market Rent shall be determined by appraisal
made as hereinafter provided by a board of three (3) reputable independent
commercial real estate brokers, each of whom shall have at least ten (10) years
of experience in the eastern Massachusetts rental market for comparable
properties and each of whom is hereinafter referred to as "appraiser". Tenant
and Landlord shall each appoint one such appraiser and the two appraisers so
appointed shall appoint the third appraiser. The cost and expenses of each
appraiser appointed separately by Tenant and Landlord shall be borne by the
party who appointed the appraiser. The cost and expenses of the third appraiser
shall be shared equally by Tenant and Landlord. Landlord and Tenant shall
appoint their respective appraisers within fifteen (15) days after the
expiration of such twenty (20) day period, and shall designate the appraisers so
appointed by notice to the other party. The two appraisers so appointed and
designated shall appoint the third appraiser within fifteen (15) days after
their appointment, and shall designate such appraiser by notice to Landlord and
Tenant. The board of three appraisers shall determine the Fair Market Rent of
the space in question as of the commencement of the period to which the Fair
Market Rent shall apply and shall notify Landlord and Tenant of their
determinations within thirty (30) days of their appointment. If the
determinations of the Fair Market Rent of any two or all three of the appraisers
shall be identical in amount, said amount shall be deemed to be the Fair Market
Rent of the Premises. If the determinations of all three appraisers shall be
different in amount, the average of the two values nearest in amount shall be
deemed the Fair Market Rent. Notwithstanding the foregoing, if either party
shall fail to appoint its appraiser within the period specified above (such
party referred to hereinafter as the "failing party"), the other party may serve
notice on the failing party requiring the failing party to appoint its appraiser
within five (5) days of the giving of such notice and if the failing party shall
not respond by appointment of its appraiser within said five (5) day period,
then the appraiser appointed by the other party shall be the sole appraiser
hereunder. The determination of Fair Market Rent by the appraisers
hereunder shall be final and binding upon the parties.
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15.2.
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Option
to Extend
|
Tenant
shall have the right and option to extend the Term for one (1) additional period
of five (5) years (“Extension Term”), commencing the day after the expiration of
the Initial Term, and ending on the fifth (5th)
anniversary thereof, provided that (a) Tenant shall give Landlord notice of
Tenant’s exercise of such option no more than fifteen (15) months and no less
than twelve (12) months prior to the expiration of the Initial Term, (b) Tenant
has not assigned this Lease or sublet more than 25% of the Premises (in either
case other than as part of a Permitted Transaction), and (c) Tenant shall not be
in default beyond any applicable notice or cure periods at the time of giving
such notice or at the commencement of the Extension Term in the performance or
observance of any of the terms and provisions of this Lease on the part of the
Tenant to be performed or observed. Prior to the exercise by Tenant
of such option, the expression “Term” shall mean the Initial Term, and after the
exercise by Tenant of such option, the expression “Term” shall mean the Term as
it has been then extended. All of the terms, covenants, conditions,
provisions and agreements in this Lease contained shall be applicable to the
then extended Term, except as hereinafter set forth. If Tenant shall
give notice of its exercise of this option to extend in the manner and within
the time period provided aforesaid, the Term shall be extended upon the giving
of such notice without the requirement of any further action on the part of
either Landlord or Tenant. If Tenant shall fail to give timely notice
of the exercise of such option as aforesaid, Tenant shall have no right to
extend the Term of this Lease, time being of the essence of the foregoing
provisions. The Basic Rent payable during each Extension Term shall
be the greater of (a) 100% of the Basic Rent for the last year of the Initial
Term, or (b) the Fair Market Rent determined in accordance with Section 15.1
above. This option shall be personal to Tenant and its Affiliates or
to any party that acquired the interest of Tenant under this Lease as part of a
Permitted Transaction, and shall not be exercisable by any other
party.
ARTICLE
XVI
RIGHT OF
FIRST OFFER TO LEASE
Tenant
shall have a right of first offer as to any space contiguous to the Premises in
Building One which becomes available from time to time on the terms set forth
herein, provided that (a) this Lease is in full force and effect, (b)
Tenant has not assigned this Lease or sublet more than 25% of the Premises (in
either case other than as part of a Permitted Transaction), (c) Tenant is
not in default, beyond any applicable notice and cure periods, in the
performance or observance of any of the terms and provisions of this Lease on
the part of the Tenant to be performed or observed, (d) Landlord shall have no
obligation to make any offer to Tenant hereunder if, at such time as an offer
would otherwise be required to be made hereunder, there are 364 or fewer days
remaining in the Term, as the same may have been extended at such time, and (e)
any such space shall be offered for a term co-terminous with the Term of this
Lease, except during the last three (3) years of the Term. Such offer
shall be on such terms and conditions as Landlord shall elect in its sole
discretion. Landlord shall provide written notice of the availability
of the space to Tenant. If Tenant fails to accept Landlord’s offer on
the terms set forth therein within fifteen (15) days from delivery of Landlord’s
notice, Landlord shall have the free right to lease such space to any third
party on such terms as it may elect in its sole discretion, provided, however,
that if the rent and other economic consideration in any contemplated lease for
such space to a third party is less than ninety percent (90%) of the rent and
other economic consideration under which such space was offered to Tenant,
Landlord must again present an offer to Tenant with respect to such space on
such lower terms in accordance with the provision hereof, for the same length of
term as offered to the third party (provided that the same shall not
vest in Tenant any right to extend the Term of this
Lease). In addition, (a) Landlord shall reoffer any space
to Tenant which has not been leased by Landlord to a third party within twelve
(12) months after the date Landlord has offered such space to Tenant hereunder,
and (b) if a third party has leased a portion of space declined by Tenant
hereunder, Landlord shall reoffer the remaining space to Tenant
in accordance with this Article XVI within thirty (30) days after
Landlord has executed a lease with such third party.
Time is
of the essence of the foregoing provisions. Tenant shall be entitled
only to accept Landlord’s offer as to the space set forth in the offer and no
lesser portion thereof. In the event that Tenant provides timely
written acceptance of Landlord’s offer, the parties shall enter into an
amendment to this Lease which incorporates the offered space into the Premises
on the terms set forth herein. This right shall be personal to Tenant
and its Affiliates or to any party that acquired the interest of Tenant under
this Lease as part of a Permitted Transaction, and shall not be exercisable by
any other party.
[End of
text on page]
IN WITNESS WHEREOF, Landlord
and Tenant have caused this Lease to be duly executed, under seal, by persons
hereunto duly authorized, in multiple copies, each to be considered an original
hereof, as of the date first set forth above.
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LANDLORD:
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TENANT:
|
|
MA-RIVERSIDE
PROJECT, L.L.C., a Delaware limited liability company
By:__________________________
Name:
Title:
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TECH
TARGET, INC., a Delaware corporation
|
|
By:__________________________________
Name:
Title:
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