Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1 Logmein, Inc. HTML 1.36M
21: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 4K
2: EX-3.1 EX-3.1 Fifth Amended and Restated Certificate of HTML 122K
Incorporation
3: EX-3.3 EX-3.3 Bylaws of the Registrant HTML 67K
4: EX-10.1 EX-10.1 2004 Equity Incentive Plan HTML 75K
13: EX-10.10 EX-10.10 Indemnification Agreement, Dated December HTML 39K
5, 2005 (Steven Benson)
14: EX-10.11 EX-10.11 Indemnification Agreement, Dated October HTML 54K
15, 2004 (Michael Simon)
15: EX-10.13 EX-10.13 Second Amended and Restated Investor HTML 150K
Rights Agreement, Dated December 26,
2007
16: EX-10.14 EX-10.14 Lease, Dated July 14, 2004 (Acquiport HTML 219K Unicorn)
17: EX-10.15 EX-10.15 Connectivity Service and Marketing HTML 158K
Agreement, Dated December 26, 2007
5: EX-10.2 EX-10.2 Form of Incentive Stock Option Agreement HTML 20K
(2004 Plan)
6: EX-10.3 EX-10.3 Form of Nonstatutory Stock Option HTML 20K
Agreement (2004 Plan)
7: EX-10.4 EX-10.4 2007 Stock Incentive Plan HTML 51K
8: EX-10.5 EX-10.5 Form of Incentive Stock Option Agreement HTML 33K
(2007 Plan)
9: EX-10.6 EX-10.6 Form of Nonstatutory Stock Option HTML 32K
Agreement (2007 Plan)
10: EX-10.7 EX-10.7 Form of Restricted Stock Agreement (2007 HTML 61K
Plan)
11: EX-10.8 EX-10.8 Letter Agreement, Dated April 18, 2005 HTML 42K
(Richard Redding)
12: EX-10.9 EX-10.9 Indemnification Agreement, Dated December HTML 40K
5, 2005 (David Barrett)
18: EX-21.1 EX-21.1 Subsidiaries of the Registrant HTML 10K
19: EX-23.1 EX-23.1 Consent of Independent Registered Public HTML 10K
Accounting Firm
20: EX-23.3 EX-23.3 Consent of Shields & Company, Inc. HTML 12K
‘EX-10.14’ — EX-10.14 Lease, Dated July 14, 2004 (Acquiport Unicorn)
The Reference Pages information is incorporated into and made a part of the Lease. In the event of
any conflict between any Reference Pages information and the Lease, the Lease shall control. This
Lease includes Exhibits A through D, all of which are made a part of this Lease.
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the Premises in the
Building as set forth and described on the Reference Pages. The Premises are depicted on the floor
plan attached hereto as Exhibit A. The Reference Pages, including all terms defined
thereon, are incorporated as part of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for general office purposes. Tenant shall not do or
permit anything to be done in or about the Premises which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Building or injure, annoy, or disturb them, or
allow the Premises to be used for any improper, immoral, unlawful, or objectionable purpose, or
commit any waste. Tenant shall not do, permit or suffer in, on, or about the Premises the sale of
any alcoholic liquor without the written consent of Landlord first obtained. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of the Premises and
its occupancy and shall promptly comply with all governmental orders and directions for the
correction, prevention and abatement of any violations in the Building or appurtenant land, caused
or permitted by, or resulting from the specific use by, Tenant, or in or upon, or in connection
with, the Premises, all at Tenant’s sole expense. Tenant shall not do or permit anything to be
done on or about the Premises or bring or keep anything into the Premises which will in any way
increase the rate of, invalidate or prevent the procuring of any insurance protecting against loss
or damage to the Building or any of its contents by fire or other casualty or against liability for
damage to property or injury to persons in or about the Building or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its agents, contractors,
employees, licensees or invitees (collectively, the “Tenant Entities”) to at any time handle, use,
manufacture, store or dispose of in or about the Premises or the Building any (collectively
“Hazardous Materials”) flammables, explosives, radioactive materials, hazardous wastes or
materials, toxic wastes or materials, or other similar substances, petroleum products or
derivatives or any substance subject to regulation by or under any federal, state and local laws
and ordinances relating to the protection of the environment or the keeping, use or disposition of
environmentally hazardous materials, substances, or wastes, presently in effect or hereafter
adopted, all amendments to any of them, and all rules and regulations issued pursuant to any of
such laws or ordinances (collectively “Environmental Laws”), nor shall Tenant suffer or permit any
Hazardous Materials to be used in any manner not fully in compliance with all Environmental Laws,
in the Premises or the Building and appurtenant land or allow the environment to become
contaminated with any Hazardous Materials. Notwithstanding the foregoing, Tenant may handle,
store, use or dispose of products containing small quantities of Hazardous Materials (such as
aerosol cans containing insecticides, toner for copiers, paints, paint remover and the like) to the
extent customary and necessary for the use of the Premises for general office purposes; provided
that Tenant shall always handle, store, use, and dispose of any such Hazardous Materials in a safe
and lawful manner and never allow such Hazardous Materials to contaminate the Premises, Building
and appurtenant land or the environment. Tenant shall protect, defend, indemnify and hold each and
all of the Landlord Entities (as defined in Article 31) harmless from and against any and all loss,
claims, liability or costs (including court costs
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and attorney’s fees) incurred by reason of any actual failure of Tenant to fully comply with
all applicable Environmental Laws, or the presence, handling, use or disposition in or from the
Premises of any Hazardous Materials by Tenant or any Tenant Entity (even though permissible under
all applicable Environmental Laws or the provisions of this Lease), or by reason of any actual or
asserted failure of Tenant to keep, observe, or perform any provision of this Section 1.2.
1.3 The Tenant shall have, as appurtenant to the Premises, rights to use in common with others
entitled thereto:
1.3.1 the common facilities included in the Building or the Lot, including common walkways,
driveways, lobbies, hallways, ramps, stairways and elevators;
1.3.2 the common roadways and facilities in the Park, including common walkways, driveways,
and the jogging trail and other common amenities, if any;
1.3.3 the parking facility (including the visitor’s parking area and parking spaces reserved
for the disabled), at locations which may from time to time be designated by Landlord. Use of the
parking facility shall be subject to the right of the Landlord to restrict parking during
snowplowing operations, and during repair, maintenance and restriping work affecting the parking
area;
1.3.4 the pipes, ducts, conduits, wires and appurtenant equipment serving the Premises; and
1.3.5 if the Premises include less than the entire rentable area of any floor, the common
toilets in the central core area of such floor.
Such rights shall always be subject to the Rules and Regulations set forth in Exhibit D as the same
may be reasonably amended by the Landlord from time to time, and such other reasonable rules and
regulations from time to time established by Landlord by suitable notice, and to the right of
Landlord to designate and change from time to time areas and facilities so to be used, provided
such designations and changes do not deprive Tenant of the substantive benefits of such areas and
facilities.
Not included in the Premises are the ceiling, the floor and all perimeter walls of the space
identified in Exhibit A, except the inner surfaces thereof and the perimeter doors and windows.
Tenant agrees that Landlord shall have the right to place in the Premises (but in such manner as
not unreasonably to interfere with Tenant’s use of the Premises) utility lines, telecommunication
lines, shafts, pipes and the like, for the use and benefit of Landlord and other tenants in the
Building, and to replace and maintain and repair such lines, pipes and the like, in, over and upon
the Premises. Such utility lines, pipes and the like, shall not be deemed part of the Premises
under this Lease.
2. TERM.
2.1 The Term of this Lease shall begin on the date (“Commencement Date”) shall terminate on
the date as shown on the Reference Pages (“Termination Date”), unless sooner terminated by the
provisions of this Lease. Landlord shall use reasonable efforts to complete the
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work to be performed by Landlord pursuant to Exhibit B to this Lease (“Landlord’s
Work”) on or before the Commencement Date but Landlord’s failure to complete such work shall not
affect the Commencement Date or otherwise delay Tenant’s obligations hereunder. However, if Tenant
executes and delivers this Lease to Landlord on or before July 16, 2004, then Landlord shall
complete Landlord’s Work on or before the Commencement Date.
2.2 Tenant shall have the right, with Landlord’s consent, which shall not be unreasonably
withheld or delayed, to enter, use or occupy the Premises prior to the Commencement Date for the
purpose of installing furniture, telecomm/data equipment and an alarm system. Such entry, use or
occupancy shall be subject to all the provisions of this Lease other than the payment of rent,
including, without limitation, Tenant’s compliance with the insurance requirements of Article 11.
Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to time by paying the
Monthly Installment of Rent then in effect on or before the first day of each full calendar month
during the Term, except that the first full month’s rent shall be paid upon the execution of this
Lease. The Monthly Installment of Rent in effect at any time shall be one-twelfth (1/12) of the
Annual Rent in effect at such time. Rent for any period during the Term which is less than a full
month shall be a prorated portion of the Monthly Installment of Rent based upon the number of days
in such month. Said rent shall be paid to Landlord, without deduction or offset and without notice
or demand, at the Rent Payment Address, as set forth on the Reference Pages, or to such other
person or at such other place as Landlord may from time to time designate in writing. If an Event
of Default occurs, Landlord may require by notice to Tenant that all subsequent rent payments be
made by an automatic payment from Tenant’s bank account to Landlord’s account, without cost to
Landlord. Tenant must implement such automatic payment system prior to the next scheduled rent
payment or within ten (10) days after Landlord’s notice, whichever is later. Unless specified in
this Lease to the contrary, all amounts and sums payable by Tenant to Landlord pursuant to this
Lease shall be deemed additional rent
3.2 Tenant recognizes that late payment of any rent or other sum due under this Lease will
result in administrative expense to Landlord, the extent of which additional expense is extremely
difficult and economically impractical to ascertain. Tenant therefore agrees that if rent or any
other sum is not paid when due and payable pursuant to this Lease, a late charge shall be imposed
in an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) six percent (6%) of the
unpaid rent or other payment. The amount of the late charge to be paid by Tenant shall be
reassessed and added to Tenant’s obligation for each successive month until paid. The provisions
of this Section 3.2 in no way relieve Tenant of the obligation to pay rent or other payments on or
before the date on which they are due, nor do the terms of this Section 3.2 in any way affect
Landlord’s remedies pursuant to Article 19 of this Lease in the event said rent or other payment is
unpaid after date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as follows:
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4.1.1 Lease Year: Each fiscal year (as determined by Landlord from time to time) falling
partly or wholly within the Term.
4.1.2 Expenses: All costs of operation, maintenance, repair, replacement and management of
the Building (including the amount of any credits which Landlord may grant to particular tenants of
the Building in lieu of providing any standard services or paying any standard costs described in
this Section 4.1.2 for similar tenants), as determined in accordance with generally accepted
accounting principles, including the following costs by way of illustration, but not limitation:
water and sewer charges; utility costs, including, but not limited to, the cost of heat, light,
power, steam, gas; waste disposal; the cost of janitorial services; the cost of security and alarm
services (including any central station signaling system); costs of cleaning, repairing, replacing
and maintaining the common areas, including parking and landscaping, window cleaning costs; labor
costs; costs and expenses of managing the Building including management and/or administrative fees;
air conditioning maintenance costs; elevator maintenance fees and supplies; material costs;
equipment costs including the cost of maintenance, repair and service agreements and rental and
leasing costs; purchase costs of equipment; current rental and leasing costs of items which would
be capital items if purchased; tool costs; licenses, permits and inspection fees; wages and
salaries; employee benefits and payroll taxes; accounting and legal fees; any sales, use or service
taxes incurred in connection therewith; the amounts paid to subsidize the operation of any
cafeterias or restaurants in Unicorn Park. In addition, Landlord shall be entitled to recover, as
additional rent (which, along with any other capital expenditures constituting Expenses, Landlord
may either include in Expenses or cause to be billed to Tenant along with Expenses and Taxes but as
a separate item), Tenant’s Proportionate Share of: (i) an allocable portion of the cost of capital
improvement items which are reasonably calculated to reduce operating expenses; (ii) the cost of
fire sprinklers and suppression systems and other life safety systems; and (iii) other capital
expenses which are required under any governmental laws, regulations or ordinances which were not
applicable to the Building at the time it was constructed; but the costs described in this sentence
shall be amortized over the reasonable life of such expenditures in accordance with such reasonable
life and amortization schedules as shall be determined by Landlord in accordance with generally
accepted accounting principles, with interest on the unamortized amount at one percent (1%) in
excess of the Walt Street Journal prime lending rate announced from time to time. Expenses shall
not include Taxes, Insurance Costs, depreciation or amortization of the Building or equipment in
the Building except as provided herein, loan principal payments, costs of alterations of tenants’
premises, leasing commissions, interest expenses on long-term borrowings or advertising costs.
4.1.3 Taxes: Real estate taxes and any other taxes, charges and assessments which are levied
with respect to the Building or the land appurtenant to the Building, or with respect to any
improvements, fixtures and equipment or other property of Landlord, real or personal, located in
the Building and used in connection with the operation of the Building and said land, any payments
to any ground lessor in reimbursement of tax payments made by such lessor; and all fees, expenses
and costs incurred by Landlord in investigating, protesting, contesting or in any way seeking to
reduce or avoid increase in any assessments, levies or the tax rate pertaining to any Taxes to be
paid by Landlord in any Lease Year. Taxes shall not include any corporate franchise, or estate,
inheritance or net income tax, or tax imposed upon any
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transfer by Landlord of its interest in this Lease or the Building or any taxes to be paid by
Tenant pursuant to Article 28.
4.1.4 Insurance Costs: Any and all insurance charges of or relating to all insurance policies
and endorsements deemed by Landlord to be reasonably necessary or desirable and relating in any
manner to the protection, preservation, or operation of the Building or any part thereof.
4.2 If in any Lease Year, (i) Expenses paid or incurred shall exceed Expenses paid or incurred
in the Base Year (Expenses) and/or (ii) Taxes paid or incurred by Landlord in any Lease Year shall
exceed the amount of such Taxes which became due and payable in the Base Year (Taxes), and/or (iii)
Insurance Costs paid or incurred by Landlord in any Lease Year shall exceed the amount of such
Insurance Costs which became due and payable in the Base Year (Insurance), Tenant shall pay as
additional rent for such Lease Year Tenant’s Proportionate Share of each such excess amount.
4.3 The annual determination of Expenses and Insurance Costs shall be made by Landlord and
shall be binding upon Landlord and Tenant, subject to the provisions of this Section 4.3. During
the Term, Tenant may review, at Tenant’s sole cost and expense, the books and records supporting
such determination in an office of Landlord, or Landlord’s agent, during normal business hours,
upon giving Landlord five (5) days advance written notice within sixty (60) days after receipt of
such determination, but in no event more often than once in any one (1) year period, subject to
execution of a confidentiality agreement acceptable to Landlord, and provided that if Tenant
utilizes an independent accountant to perform such review it shall be one of national standing
which is reasonably acceptable to Landlord, is not compensated on a contingency basis and is also
subject to such confidentiality agreement. If Tenant fails to object to Landlord’s determination
of Expenses and Insurance Costs within ninety (90) days after receipt, or if any such objection
fails to state with specificity the reason for the objection, Tenant shall be deemed to have
approved such determination and shall have no further right to object to or contest such
determination. In the event that during all or any portion of any Lease Year or Base Year, the
Building is not fully rented and occupied Landlord shall make an appropriate adjustment in
occupancy-related Expenses for such year for the purpose of avoiding distortion of the amount of
such Expenses to be attributed to Tenant by reason of variation in total occupancy of the Building,
by employing consistent and sound accounting and management principles to determine Expenses that
would have been paid or incurred by Landlord had the Building been one hundred percent (100%)
rented and occupied, and the amount so determined shall be deemed to have been Expenses for such
Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord may from time to time
estimate Tenant’s liability for Expenses, Insurance Costs and/or Taxes under Section 4.1, Article 0
and Article 28 for the Lease Year or portion thereof. Landlord will give Tenant written
notification of the amount of such estimate and Tenant agrees that it will pay, by increase of its
Monthly Installments of Rent due in such Lease Year, additional rent in the amount of such
estimate. Any such increased rate of Monthly Installments of Rent pursuant to this Section 4.4
shall remain in effect until further written notification to Tenant pursuant hereto.
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4.5 When the above mentioned actual determination of Tenant’s liability for Expenses,
Insurance Costs and/or Taxes is made for any Lease Year and when Tenant is so notified in writing,
then:
4.5.1 If the total additional rent Tenant actually paid pursuant to Section 4.3 on account of
Expenses, Insurance Costs and/or Taxes for the Lease Year is less than Tenant’s liability for
Expenses, Insurance Costs and/or Taxes, then Tenant shall pay such deficiency to Landlord as
additional rent in one lump sum within thirty (30) days of receipt of Landlord’s bill therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to Section 4.3 on account of
Expenses, Insurance Costs and/or Taxes for the Lease Year is more than Tenant’s liability for
Expenses, Insurance Costs and/or Taxes, then Landlord shall credit the difference against the then
next due payments to be made by Tenant under this Article 4, or, if the Lease has terminated,
promptly refund the difference in cash. Tenant shall not be entitled to a credit by reason of
actual Expenses and/or Taxes and/or Insurance Costs in any Lease Year being less than Expenses
and/or Taxes and/or Insurance Costs in the Base Year (Expenses and/or Taxes and/or Insurance).
4.6 If the Commencement Date is other than January 1 or if the Termination Date is other than
December 31, Tenant’s liability for Expenses, Insurance Costs and Taxes for the Lease Year in which
said Date occurs shall be prorated based upon a three hundred sixty-five (365) day year.
5. SECURITY DEPOSIT.
5.1 Tenant shall deposit the Security Deposit with Landlord upon the execution of this Lease.
Said sum shall be held by Landlord as security for the faithful performance by Tenant of all the
terms, covenants and conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord’s damage in case of Tenant’s default. If Tenant
defaults with respect to any provision of this Lease, Landlord may use any part of the Security
Deposit for the payment of any rent or any other sum in default, or for the payment of any amount
which Landlord may spend or become obligated to spend by reason of Tenant’s default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant’s
default. If any portion is so used, Tenant shall within five (5) business days after written
demand therefor, deposit with Landlord an amount sufficient to restore the Security Deposit to its
original amount and Tenant’s failure to do so shall be a material breach of this Lease. Except to
such extent, if any, as shall be required by law, Landlord shall not be required to keep the
Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on
such deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall be returned to Tenant at such
time after termination of this Lease when Landlord shall have determined that all of Tenant’s
obligations under this Lease have been fulfilled.
5.2 The required Security Deposit shall be in the form of an Irrevocable Standby Letter of
Credit in favor of Landlord (the “letter of credit”). Under any circumstances under which Landlord
is entitled the use of all or a part of the Security Deposit, then, Landlord, in
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addition to all other rights and remedies provided under the Lease, shall have the right to
draw down the full balance of the letter of credit and retain the proceeds; provided, that any such
amounts which Landlord shall not be entitled to use shall be held in trust for Tenant and returned
to Tenant upon expiration of the Term. The following terms and conditions shall govern the letter
of credit:
5.2.1 Upon expiration of the Term, the letter of credit shall be returned to Tenant when
Tenant is entitled to return of its Security Deposit.
5.2.2 The letter of credit shall be in favor of Landlord, shall be issued by a commercial bank
reasonably acceptable to Landlord having a Standard & Poors rating of “A” or better, shall comply
with all of the terms and conditions of this Section 5.2 and shall otherwise be in form reasonably
acceptable to Landlord. The initial letter of credit shall have an expiration date not earlier
than fifteen (15) months after the Commencement Date. A draft of the form of letter of credit must
be submitted to Landlord for its approval prior to issuance.
5.2.3 The letter of credit or any replacement letter of credit shall be irrevocable for the
term thereof and shall automatically renew on a year to year basis until a period ending not
earlier than three (3) months after the Termination Date (“End Date”) without any action whatsoever
on the part of Landlord; provided that the issuing bank shall have the right not to renew the
letter of credit by giving written notice to Landlord not less than sixty (60) days prior to the
expiration of the then current term of the letter of credit that it does not intend to renew the
letter of credit. Tenant understands that the election by the issuing bank not to renew the letter
of credit shall not, in any event, diminish the obligation of Tenant to maintain such an
irrevocable letter of credit in favor of Landlord through such date.
5.2.4 Landlord, or its then managing agent, shall have the right from time to time to make one
or more draws on the letter of credit at any time that an Event of Default has occurred. The
letter of credit must state that it can be presented for payment at the office of the issuer or any
approved correspondent in the metropolitan Boston, Massachusetts area. Funds may be drawn down on
the letter of credit upon presentation to the issuing or corresponding bank of Landlord’s (or
Landlord’s then managing agent’s) certificate stating as follows:
“The Landlord is entitled to draw on this credit pursuant to that certain Lease
dated for reference _______________between ACQUIPORT UNICORN, INC., a Delaware
corporation, as Landlord and REMOTELYANYWHERE, INC., a Delaware corporation, as
Tenant, as amended from time to time.”
It is understood that if Landlord or its managing agent be a corporation, partnership or other
entity, then such statement shall be signed by an officer (if a corporation), a general partner (if
a partnership), or any authorized party (if another entity).
5.2.5 Tenant acknowledges and agrees (and the letter of credit shall so state) that the letter
of credit shall be honored by the issuing bank without inquiry as to the truth of the statements
set forth in such draw request and regardless of whether the Tenant disputes the content of such
statement.
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5.2.6 In the event of a transfer of Landlord’s interest in the Premises, Landlord shall
transfer the letter of credit to the transferee and thereupon the Landlord shall, without any
further agreement between the parties, be released by Tenant from all liability therefor, and it is
agreed that the provisions hereof shall apply to every transfer or assignment of said letter of
credit to a new landlord; and Tenant shall pay all fees to the issuer necessary to evidence such
transfer.
5.2.7 Without limiting the generality of the foregoing, if the letter of credit expires
earlier than the End Date, or the issuing bank notifies Landlord that it shall not renew the letter
of credit, Landlord shall accept a renewal thereof or substitute letter of credit (such renewal or
substitute letter of credit to be in effect not later than thirty (30) days prior to the expiration
thereof), irrevocable and automatically renewable as above provided to the End Date upon the same
terms as the expiring letter of credit or upon such other terms as may be acceptable to Landlord.
However, if (i) the letter of credit is not received, Landlord may present such letter of credit to
the issuing bank, and the entire sum so obtained shall be paid to Landlord, to be held by Landlord
until Tenant would otherwise be entitled to the return of the letter of credit, and to be retained
by Landlord if a default occurs.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to this Lease,
Tenant shall not make or suffer to be made any alterations, additions, or improvements, including,
but not limited to, the attachment of any fixtures or equipment in, on, or to the Premises or any
part thereof or the making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested by Landlord,
furnish complete plans and specifications for such alterations, additions and improvements.
Landlord’s consent shall not be unreasonably withheld with respect to alterations which (i) are not
structural in nature, (ii) are not visible from the exterior of the Building, (iii) do not affect
or require modification of the Building’s electrical, mechanical, plumbing, HVAC or other systems,
and (iv) in aggregate do not cost more than $5.00 per rentable square foot of that portion of the
Premises affected by the alterations in question.
6.2 In the event Landlord consents to the making of any such alteration, addition or
improvement by Tenant, the same shall be made by using either Landlord’s contractor or a contractor
reasonably approved by Landlord, in either event at Tenant’s sole cost and expense. If Tenant
shall employ any contractor other than Landlord’s contractor and such other contractor or any
subcontractor of such other contractor shall employ any non-union labor or supplier, Tenant shall
be responsible for and hold Landlord harmless from any and all delays, damages and extra costs
suffered by Landlord as a result of any dispute with any labor unions concerning the wage, hours,
terms or conditions of the employment of any such labor. In any event Landlord may charge Tenant a
construction management fee not to exceed five percent (5%) of the cost of such work to cover its
overhead as it relates to such proposed work, plus third-party costs actually incurred by Landlord
in connection with the proposed work and the design thereof, with all such amounts being due five
(5) days after Landlord’s demand.
6.3 All alterations, additions or improvements proposed by Tenant shall be constructed in
accordance with all government laws, ordinances, rules and regulations, using
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Building standard materials where applicable, and Tenant shall, prior to construction, provide
the additional insurance required under Article 11 in such case, and also all such assurances to
Landlord as Landlord shall reasonably require to assure payment of the costs thereof, including but
not limited to, notices of non-responsibility, waivers of lien, surety company performance bonds
and funded construction escrows and to protect Landlord and the Building and appurtenant land
against any loss from any mechanic’s, materialmen’s or other liens. Tenant shall pay in addition
to any sums due pursuant to Article 4, any increase in real estate taxes attributable to any such
alteration, addition or improvement for so long, during the Term, as such increase is
ascertainable; at Landlord’s election said sums shall be paid in the same way as sums due under
Article 4. Landlord may, as a condition to its consent to any particular alterations or
improvements, require Tenant to deposit with Landlord the amount reasonably estimated by Landlord
as sufficient to cover the cost of removing such alterations or improvements and restoring the
Premises, to the extent required under Section 26.2.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint
the Premises, except as specified in Exhibit B if attached to this Lease and except that
Landlord shall repair and maintain the structural portions of the Building, including the basic
plumbing, air conditioning, heating and electrical systems installed or furnished by Landlord. By
taking possession of the Premises, Tenant accepts them as being in good order, condition and repair
and in the condition in which Landlord is obligated to deliver them, except as set forth in the
punch list to be delivered pursuant to Section 2.1. It is hereby understood and agreed that no
representations respecting the condition of the Premises or the Building have been made by Landlord
to Tenant, except as specifically set forth in this Lease.
7.2 Tenant shall, at all times during the Term, keep the Premises in good condition and repair
excepting damage by fire, or other casualty, and in compliance with all applicable governmental
laws, ordinances and regulations, promptly complying with all governmental orders and directives
for the correction, prevention and abatement of any violations or nuisances in or upon, or
connected with, the Premises, all at Tenant’s sole expense.
7.3 Landlord shall not be liable for any failure to make any repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant.
7.4 Except as provided in Article 22, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant’s business arising from the making
of any repairs, alterations or improvements in or to any portion of the Building or the Premises or
to fixtures, appurtenances and equipment in the Building. Except to the extent, if any, prohibited
by law, Tenant waives the right to make repairs at Landlord’s expense under any law, statute or
ordinance now or hereafter in effect.
8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land and Tenant’s leasehold
interest in the Premises free from any liens arising out of any services, work or materials
performed, furnished, or contracted for by Tenant, or obligations incurred by Tenant. In the event
that Tenant fails, within ten (10) days following the imposition of any such lien, to
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either cause the same to be released of record or provide Landlord with insurance against the same
issued by a major title insurance company or such other protection against the same as Landlord
shall accept (such failure to constitute an Event of Default), Landlord shall have the right to
cause the same to be released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be payable to it by Tenant within five (5) days Landlord’s demand .
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to sublet the whole or
any part of the Premises whether voluntarily or by operation of law, or permit the use or occupancy
of the Premises by anyone other than Tenant, and shall not make, suffer or permit such assignment,
subleasing or occupancy without the prior written consent of Landlord, such consent not to be
unreasonably withheld, and said restrictions shall be binding upon any and all assignees of the
Lease and subtenants of the Premises. In the event Tenant desires to sublet, or permit such
occupancy of, the Premises, or any portion thereof, or assign this Lease, Tenant shall give written
notice thereof to Landlord at least forty-five (45) days but no more than one hundred twenty (120)
days prior to the proposed commencement date of such subletting or assignment, which notice shall
set forth the name of the proposed subtenant or assignee, the relevant terms of any sublease or
assignment and copies of financial reports and other relevant financial information of the proposed
subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise, Tenant shall at all
times remain directly, primarily and fully responsible and liable for the payment of the rent
specified in this Lease and for compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Upon the occurrence of an Event of Default, if the
Premises or any part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such assignment or sublease
and apply such rent against any sums due to Landlord from Tenant under this Lease, and no such
collection shall be construed to constitute a novation or release of Tenant from the further
performance of Tenant’s obligations under this Lease.
9.3 In addition to Landlord’s right to approve of any subtenant or assignee, Landlord shall
have the option, in its sole discretion, in the event of any proposed subletting or assignment, to
terminate this Lease, or in the case of a proposed subletting of less than the entire Premises, to
recapture the portion of the Premises to be sublet, as of the date the subletting or assignment is
to be effective. The option shall be exercised, if at all, by Landlord giving Tenant written
notice given by Landlord to Tenant within thirty (30) days following Landlord’s receipt of Tenant’s
written notice as required above. However, if Tenant notifies Landlord, within five (5) days after
receipt of Landlord’s termination notice, that Tenant is rescinding its proposed assignment or
sublease, the termination notice shall be void and the Lease shall continue in full force and
effect. If this Lease shall be terminated with respect to the entire Premises pursuant to this
Section, the Term of this Lease shall end on the date stated in Tenant’s notice as the effective
date of the sublease or assignment as if that date had been originally fixed in this Lease for the
expiration of the Term. If Landlord recaptures under this Section only a portion of the Premises,
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the rent to be paid from time to time during the unexpired Term shall abate proportionately
based on the proportion by which the approximate square footage of the remaining portion of the
Premises shall be less than that of the Premises as of the date immediately prior to such
recapture. Tenant shall, at Tenant’s own cost and expense, discharge in full any outstanding
commission obligation which may be due and owing as a result of any proposed assignment or
subletting, whether or not the Premises are recaptured pursuant to this Section 9.3 and rented by
Landlord to the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this Lease, Tenant shall pay
to Landlord as additional rent an amount equal to fifty (50%) percent of any Increased Rent (as
defined below), less the Costs Component (as defined below), when and as such Increased Rent is
received by Tenant. As used in this Section, “Increased Rent” shall mean the excess of (i) all
rent and other consideration which Tenant is entitled to receive by reason of any sale, sublease,
assignment or other transfer of this Lease, over (ii) the rent otherwise payable by Tenant under
this Lease at such time. For purposes of the foregoing, any consideration received by Tenant in
form other than cash shall be valued at its fair market value as determined by Landlord in good
faith. The “Costs Component” is that amount which, if paid monthly, would fully amortize on a
straight-line basis, over the entire period for which Tenant is to receive Increased Rent, the
reasonable costs incurred by Tenant for leasing commissions and tenant improvements in connection
with such sublease, assignment or other transfer.
9.5 Notwithstanding any other provision hereof, it shall be considered reasonable for Landlord
to withhold its consent to any assignment of this Lease or sublease of any portion of the Premises
if at the time of either Tenant’s notice of the proposed assignment or sublease or the proposed
commencement date thereof, there shall exist any uncured default of Tenant or matter which will
become a default of Tenant with passage of time unless cured, or if the proposed assignee or
sublessee is an entity: (a) with which Landlord is already in negotiation; (b) is already an
occupant of the Park unless Landlord is unable to provide the amount of space required by such
occupant; (c) is a governmental agency; (d) is incompatible with the character of occupancy of the
Building; (e) with which the payment for the sublease or assignment is determined in whole or in
part based upon its net income or profits; or (f) would subject the Premises to a use which would:
(i) involve increased personnel or wear upon the Building; (ii) violate any exclusive right granted
to another tenant of the Building; (iii) require any addition to or modification of the Premises or
the Building in order to comply with building code or other governmental requirements; or, (iv)
involve a violation of Section 1.2. Tenant expressly agrees that for the purposes of any statutory
or other requirement of reasonableness on the part of Landlord, Landlord’s refusal to consent to
any assignment or sublease for any of the reasons described in this Section 9.5, shall be
conclusively deemed to be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum, not to exceed $2,500.00 per request, equal to all
of Landlord’s costs, including reasonable attorney’s fees, incurred in investigating and
considering any proposed or purported assignment or pledge of this Lease or sublease of any of the
Premises, regardless of whether Landlord shall consent to, refuse consent, or determine that
Landlord’s consent is not required for, such assignment, pledge or sublease. Any purported sale,
assignment, mortgage, transfer of this Lease or subletting which does not comply with the
provisions of this Article 9 shall be void.
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9.7 If Tenant is a corporation, limited liability company, partnership or trust, any transfer
or transfers of or change or changes within any twelve (12) month period in the number of the
outstanding voting shares of the corporation or limited liability company, the general partnership
interests in the partnership or the identity of the persons or entities controlling the activities
of such partnership or trust resulting in the persons or entities owning or controlling a majority
of such shares, partnership interests or activities of such partnership or trust at the beginning
of such period no longer having such ownership or control shall be regarded as equivalent to an
assignment of this Lease to the persons or entities acquiring such ownership or control and shall
be subject to all the provisions of this Article 9 to the same extent and for all intents and
purposes as though such an assignment.
9.8 Notwithstanding the foregoing provisions of this Article to the contrary, Tenant shall be
permitted to assign this Lease, or sublet all or a portion of the Premises, to an Affiliate, as
hereinafter defined, of Tenant without the prior consent of Landlord, if all of the following
conditions are first satisfied:
9.8.1 Tenant shall not then be in default under this Lease;
9.8.2 a fully executed copy of such assignment or sublease, the assumption of this Lease by
the assignee or acceptance of the sublease by the sublessee, and such other information regarding
the assignment or sublease as Landlord may reasonably request, shall have been delivered to
Landlord;
9.8.3 the Premises shall continue to be operated solely for the use specified in the Reference
Page or other use acceptable to Landlord in its sole discretion;
9.8.4 any guarantor of this Lease reaffirms that its Guaranty remains in full force and
effect; and
9.8.5 Tenant shall pay the Assignment/Subletting Fee plus all costs, not to exceed $2,500.00
per request, reasonably incurred by Landlord in connection with such assignment or subletting,
including without limitation attorneys’ fees.
Tenant acknowledges (and, at Landlord’s request, at the time of such assignment or subletting
shall confirm) that in each instance Tenant shall remain liable for performance of the terms and
conditions of the Lease despite such assignment or subletting. As used herein, the term
“Affiliate” shall mean an entity which (i) directly or indirectly controls Tenant or (ii) is under
the direct or indirect control of Tenant or (iii) is under common direct or indirect control with
Tenant, (iv) is the successor in interest to Tenant by way of merger or consolidation, or by sale
of all of the stock of Tenant or of all of the assets of Tenant, so long as the tangible net worth
of the surviving or successor entity following such transaction is at least as much as the tangible
net worth of Tenant immediately preceding the transaction or at the Commencement Date, whichever is
higher. Control shall mean ownership of fifty-one percent (51%) or more of the voting securities
or rights of the controlled entity.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant hereby waives all
claims against them for any damage to any property or any injury to any person in or about the
Premises or the Building by or from any cause whatsoever (including without limiting
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the foregoing, rain or water leakage of any character from the roof, windows, walls, basement,
pipes, plumbing works or appliances, the Building not being in good condition or repair, gas, fire,
oil, electricity or theft), except to the extent caused by or arising from the gross negligence or
willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect,
indemnify and hold the Landlord Entities harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney’s fees) incurred by reason of (a) any damage
to any property (including but not limited to property of any Landlord Entity) or any injury
(including but not limited to death) to any person occurring in, on or about the Premises or the
Building to the extent that such injury or damage shall be caused by or arise from any actual or
alleged act, neglect, fault, or omission by or of Tenant or any Tenant Entity; (b) the conduct or
management of any work or thing whatsoever done by the Tenant in or about the Premises or from
transactions of the Tenant concerning the Premises; (c) Tenant’s failure to comply with any and all
governmental laws, ordinances and regulations applicable to the condition or use of the Premises or
its occupancy; or (d) any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of the Tenant to be performed pursuant to this Lease. The
provisions of this Article shall survive the termination of this Lease with respect to any claims
or liability accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial General Liability
insurance policy or policies to protect the Landlord Entities against any liability to the public
or to any invitee of Tenant or a Landlord Entity incidental to the use of or resulting from any
accident occurring in or upon the Premises with a limit of not less than $1,000,000.00 per
occurrence and not less than $2,000,000.00 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and property damage
liability and $1,000,000 products/completed operations aggregate; (b) Business Auto Liability
covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000 per accident;
(c) insurance protecting against liability under Worker’s Compensation Laws with limits at least as
required by statute with Employers Liability with limits of $500,000 each accident, $500,000
disease policy limit, $500,000 disease-each employee; (d) All Risk or Special Form coverage
protecting Tenant against loss of or damage to Tenant’s alterations, additions, improvements,
carpeting, floor coverings, panelings, decorations, fixtures, inventory and other business personal
property situated in or about the Premises to the full replacement value of the property so
insured; and, (e) Business Interruption Insurance with limit of liability representing loss of at
least approximately six (6) months of income.
11.2 The aforesaid policies shall (a) be provided at Tenant’s expense; (b) name the Landlord
Entities as additional insureds (General Liability) and loss payee (Property—Special Form); (c) be
issued by an insurance company with a minimum Best’s rating of “A:VII” during the Term; and (d)
provide that said insurance shall not be canceled unless thirty (30) days prior written notice (ten
days for non-payment of premium) shall have been given to Landlord; a certificate of Liability
insurance on Accord Form 25 and a certificate of Property insurance on Accord Form 27 shall be
delivered to Landlord by Tenant upon the Commencement Date and at least thirty (30) days prior to
each renewal of said insurance.
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11.3 Whenever Tenant shall undertake any alterations, additions or improvements in, to or
about the Premises (“Work”) the aforesaid insurance protection must extend to and include injuries
to persons and damage to property arising in connection with such Work, without limitation
including liability under any applicable structural work act, and such other insurance as Landlord
shall require; and the policies of or certificates evidencing such insurance must be delivered to
Landlord prior to the commencement of any such Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers so permit, Tenant and Landlord
hereby mutually waive their respective rights of recovery against each other for any loss insured
by fire, extended coverage, All Risks or other insurance now or hereafter existing for the benefit
of the respective party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their insurer to evidence
compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES.
13.1 Subject to the other provisions of this Lease, Landlord agrees to furnish to the Premises
during Building Business Hours (specified on the Reference Pages) on generally recognized business
days (but exclusive in any event of Sundays and national and local legal holidays), the following
services and utilities subject to the rules and regulations of the Building prescribed from time to
time: (a) water suitable for normal office use of the Premises; (b) heat and air conditioning
required in Landlord’s reasonable judgment for the use and occupation of the Premises during
Building Business Hours; (c) cleaning and janitorial service; (d) elevator service by nonattended
automatic elevators, if applicable; and, (e) equipment to bring to the Premises electricity for
lighting, convenience outlets and other normal office use. To the extent that Tenant is not billed
directly by a public utility, Tenant shall pay, within five (5) days of Landlord’s demand, for all
electricity used by Tenant in the Premises, as determined by separate submetering of Tenant’s
electricity. The charge shall be at the rates charged for such services by the local public
utility. The parties acknowledge that, as of the Lease Reference Date, the initial rate for
electricity is $1.15 per square foot of the Premises per annum, which rate is subject to change
based on the rates charged, from time to time, by the local public utility. In the absence of
Landlord’s gross negligence or willful misconduct, Landlord shall not be liable for, and Tenant
shall not be entitled to, any abatement or reduction of rental by reason of Landlord’s failure to
furnish any of the foregoing, unless such failure shall persist for an unreasonable time after
written notice of such failure is given to Landlord by Tenant and provided further that Landlord
shall not be liable when such failure is caused by accident, breakage, repairs, labor disputes of
any character, energy usage restrictions or by any other cause, similar or dissimilar, beyond the
reasonable control of Landlord. Landlord shall use reasonable efforts to remedy any interruption
in the furnishing of services and utilities.
13.2 Should Tenant require any additional work or service, as described above, including
services furnished outside ordinary business hours specified above, Landlord may, on terms to be
agreed, upon reasonable advance notice by Tenant, furnish such additional service and Tenant agrees
to pay Landlord such charges as may be agreed upon, including any tax imposed thereon, but in no
event at a charge less than Landlord’s actual cost plus overhead for such additional service and,
where appropriate, a reasonable allowance for depreciation of any
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systems being used to provide such service. The current charge for after-hours HVAC service,
which is subject to change at any time, is specified on the Reference Pages.
13.3 Wherever heat-generating machines or equipment are used by Tenant in the Premises which
affect the temperature otherwise maintained by the air conditioning system or Tenant allows
occupancy of the Premises by more persons than the heating and air conditioning system is designed
to accommodate, in either event whether with or without Landlord’s approval, Landlord reserves the
right to install supplementary heating and/or air conditioning units in or for the benefit of the
Premises and the cost thereof, including the cost of installation and the cost of operations and
maintenance, shall be paid by Tenant to Landlord within five (5) days of Landlord’s demand.
13.4 Tenant will not, without the written consent of Landlord, use any apparatus or device in
the Premises, including but not limited to, electronic data processing machines and machines using
current in excess of 2000 watts and/or 20 amps or 120 volts, which will in any way increase the
amount of electricity or water usually furnished or supplied for use of the Premises for normal
office use, nor connect with electric current, except through existing electrical outlets in the
Premises, or water pipes, any apparatus or device for the purposes of using electrical current or
water. If Tenant shall require water or electric current in excess of that usually furnished or
supplied for use of the Premises as normal office use, Tenant shall procure the prior written
consent of Landlord for the use thereof, which Landlord may refuse, and if Landlord does consent,
Landlord may cause a water meter or electric current meter to be installed so as to measure the
amount of such excess water and electric current. The cost of any such meters shall be paid for by
Tenant. Tenant agrees to pay to Landlord within five (5) days of Landlord’s demand, the cost of
all such excess water and electric current consumed (as shown by said meters, if any, or, if none,
as reasonably estimated by Landlord) at the rates charged for such services by the local public
utility or agency, as the case may be, furnishing the same, plus any additional expense incurred in
keeping account of the water and electric current so consumed.
13.5 Tenant will not, without the written consent of Landlord, contract with a utility
provider to service the Premises with any utility, including, but not limited to,
telecommunications, electricity, water, sewer or gas, which is not previously providing such
service to other tenants in the Building. Subject to Landlord’s reasonable rules and regulations
and the provisions of Articles 6 and 26, Tenant shall be entitled to the use of wiring
(“Communications Wiring”) from the existing telecommunications nexus in the Building to the
Premises, sufficient for normal general office use of the Premises. Tenant shall not install any
additional Communications Wiring, nor remove any Communications Wiring, without in each instance
obtaining the prior written consent of Landlord, which consent may be withheld in Landlord’s sole
and absolute discretion. Landlord’s shall in no event be liable for disruption in any service
obtained by Tenant pursuant to this paragraph.
14. HOLDING OVER. If Tenant retains possession of the Premises or part of them after termination
of this Lese by lapse of time or otherwise, a tenancy at sufferance at the Holdover Rate, as
hereinafter defined, shall be deemed to have been created and Tenant shall pay Landlord for each
day Tenant retains possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate (“Holdover Rate”) which shall be Two Hundred Percent (200%)
of the greater of (a) the amount of the Annual Rent for the last period prior to the
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date of such termination plus all Rent Adjustments under Article 4; and (b) the then market rental
value of the Premises as determined by Landlord assuming a new lease of the Premises of the then
usual duration and other terms, in either case, prorated on a daily basis, and also pay all damages
sustained by Landlord by reason of such retention. In any event, no provision of this Article 14
shall be deemed to waive Landlord’s right of reentry or any other right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination, this Lease shall be subject and subordinate at all times
to ground or underlying leases and to the lien of any mortgages or deeds of trust now or hereafter
placed on, against or affecting the Building, Landlord’s interest or estate in the Building, or any
ground or underlying lease; provided, however, that if the lessor, mortgagee, trustee, or holder of
any such mortgage or deed of trust elects to have Tenant’s interest in this Lease be superior to
any such instrument, then, by notice to Tenant, this Lease shall be deemed superior, whether this
Lease was executed before or after said instrument. Notwithstanding the foregoing, Tenant
covenants and agrees to execute and deliver within ten (10) days of Landlord’s request such further
instruments evidencing such subordination or superiority of this Lease as may be required by
Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all the rules and
regulations as set forth in Exhibit D to this Lease and all reasonable and
non-discriminatory modifications of and additions to them from time to time put into effect by
Landlord. Landlord shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Building of any such rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right, upon reasonable advance notice
(except that no notice shall be required in an emergency or to provide daily janitor service), to
re-enter the Premises to inspect the same, to supply janitor service and any other service to be
provided by Landlord to Tenant under this Lease, to show said Premises to prospective purchasers,
mortgagees or tenants, and to alter, improve or repair the Premises and any portion of the
Building, without abatement of rent, and may for that purpose erect, use and maintain scaffolding,
pipes, conduits and other necessary structures and open any wall, ceiling or floor in and through
the Building and Premises where reasonably required by the character of the work to be performed,
provided entrance to the Premises shall not be blocked thereby, and further provided that the
business of Tenant shall not be interfered with unreasonably. Landlord shall have the right at any
time to change the arrangement and/or locations of entrances, or passageways, doors and doorways,
and corridors, windows, elevators, stairs, toilets or other public parts of the Building and to
change the name, number or designation by which the Building is commonly known. In the event that
Landlord damages any portion of any wall or wall covering, ceiling, or floor or floor covering
within the Premises, Landlord shall repair or replace the damaged portion to match the original as
nearly as commercially reasonable but shall not be required to repair or replace more than the
portion actually damaged. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant’s business, any loss of occupancy or quiet enjoyment
of the Premises, and any other loss occasioned by any action of Landlord authorized by this Article
17.
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17.2 For each of the aforesaid purposes, Landlord shall at all times have and retain a key
with which to unlock all of the doors in the Premises, excluding Tenant’s vaults and safes or
special security areas (designated in advance), and Landlord shall have the right to use any and
all means which Landlord may deem proper to open said doors in an emergency to obtain entry to any
portion of the Premises. As to any portion to which access cannot be had by means of a key or keys
in Landlord’s possession, Landlord is authorized to gain access by such means as Landlord shall
elect and the cost of repairing any damage occurring in doing so shall be borne by Tenant and paid
to Landlord within five (5) days of Landlord’s demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall be deemed to be
Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming due to be paid to Landlord
under this Lease, whether such sum be any installment of the rent reserved by this Lease, any other
amount treated as additional rent under this Lease, or any other payment or reimbursement to
Landlord required by this Lease, whether or not treated as additional rent under this Lease, and
such failure shall continue for a period of five (5) days after written notice that such payment
was not made when due, but if any such notice shall be given, for the twelve (12) month period
commencing with the date of such notice, the failure to pay within five (5) days after due any
additional sum of money becoming due to be paid to Landlord under this Lease during such period
shall be an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or covenant of this Lease which is
not provided for in another Section of this Article and shall not cure such failure within twenty
(20) days (forthwith, if the failure involves a hazardous condition) after written notice of such
failure to Tenant provided, however, that such failure shall not be an event of default if such
failure could not reasonably be cured during such twenty (20) day period, Tenant has commenced the
cure within such twenty (20) day period and thereafter is diligently pursuing such cure to
completion, but the total aggregate cure period shall not exceed ninety (90) days.
18.1.3 Tenant shall fail to vacate the Premises immediately upon termination of this Lease, by
lapse of time or otherwise, or upon termination of Tenant’s right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability to pay its debts
generally as they become due, file a petition in bankruptcy or a petition to take advantage of any
insolvency statute, make an assignment for the benefit of creditors, make a transfer in fraud of
creditors, apply for or consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws, as now in effect or hereafter amended, or any other
applicable law or statute of the United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order, judgment or decree adjudicating
Tenant bankrupt, or appointing a receiver of Tenant, or of the whole or any substantial part of its
property, without the consent of Tenant, or approving a petition filed
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against Tenant seeking reorganization or arrangement of Tenant under the bankruptcy laws of
the United States, as now in effect or hereafter amended, or any state thereof, and such order,
judgment or decree shall not be vacated or set aside or stayed within sixty (60) days from the date
of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of any of the Events of
Default described or referred to in Article 18, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever, concurrently or
consecutively and not alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or terminate Tenant’s right to
possession only, without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time or otherwise, or upon any
termination of Tenant’s right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver possession thereof to
Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of Landlord’s former estate and
to expel or remove Tenant and any others who may be occupying or be within the Premises and to
remove Tenant’s signs and other evidence of tenancy and all other property of Tenant therefrom
without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, and
without incurring any liability for any damage resulting therefrom, Tenant waiving any right to
claim damages for such re-entry and expulsion, and without relinquishing Landlord’s right to rent
or any other right given to Landlord under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time or otherwise, Landlord
shall be entitled to recover as damages, all rent, including any amounts treated as additional rent
under this Lease, and other sums due and payable by Tenant on the date of termination, plus as
liquidated damages and not as a penalty, an amount equal to the sum of: (a) an amount equal to the
then present value of the rent reserved in this Lease for the residue of the stated Term of this
Lease including any amounts treated as additional rent under this Lease and all other sums provided
in this Lease to be paid by Tenant, minus the fair rental value of the Premises for such residue;
(b) the value of the time and expense necessary to obtain a replacement tenant or tenants, and the
estimated expenses described in Section 19.1.4 relating to recovery of the Premises, preparation
for reletting and for reletting itself; and (c) the cost of performing any other covenants which
would have otherwise been performed by Tenant.
19.1.4 Upon any termination of Tenant’s right to possession only without termination of the
Lease:
19.1.4.1 Neither such termination of Tenant’s right to possession nor Landlord’s taking and
holding possession thereof as provided in Section 19.1.2 shall terminate the Lease or release
Tenant, in whole or in part, from any obligation, including Tenant’s obligation to pay the rent,
including any amounts treated as additional rent, under this Lease for the full Term, and if
Landlord so elects Tenant shall continue to pay to Landlord the entire
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amount of the rent as and when it becomes due, including any amounts treated as additional
rent under this Lease, for the remainder of the Term plus any other sums provided in this Lease to
be paid by Tenant for the remainder of the Term.
19.1.4.2 Landlord shall use commercially reasonable efforts to relet the Premises or portions
thereof to the extent required by applicable law. Landlord and Tenant agree that nevertheless
Landlord shall at most be required to use only the same efforts Landlord then uses to lease
premises in the Building generally and that in any case that Landlord shall not be required to give
any preference or priority to the showing or leasing of the Premises or portions thereof over any
other space that Landlord may be leasing or have available and may place a suitable prospective
tenant in any such other space regardless of when such other space becomes available and that
Landlord shall have the right to relet the Premises for a greater or lesser term than that
remaining under this Lease, the right to relet only a portion of the Premises, or a portion of the
Premises or the entire Premises as a part of a larger area, and the right to change the character
or use of the Premises. In connection with or in preparation for any reletting, Landlord may, but
shall not be required to, make repairs, alterations and additions in or to the Premises and
redecorate the same to the extent Landlord deems necessary or desirable, and Tenant shall pay the
cost thereof, together with Landlord’s expenses of reletting, including, without limitation, any
commission incurred by Landlord, within five (5) days of Landlord’s demand. Landlord shall not be
required to observe any instruction given by Tenant about any reletting or accept any tenant
offered by Tenant unless such offered tenant has a credit-worthiness acceptable to Landlord and
leases the entire Premises upon terms and conditions including a rate of rent (after giving effect
to all expenditures by Landlord for tenant improvements, broker’s commissions and other leasing
costs) all no less favorable to Landlord than as called for in this Lease, nor shall Landlord be
required to make or permit any assignment or sublease for more than the current term or which
Landlord would not be required to permit under the provisions of Article 9.
19.1.4.3 Until such time as Landlord shall elect to terminate the Lease and shall thereupon
be entitled to recover the amounts specified in such case in Section 19.1.3, Tenant shall pay to
Landlord upon demand the full amount of all rent, including any amounts treated as additional rent
under this Lease and other sums reserved in this Lease for the remaining Term, together with the
costs of repairs, alterations, additions, redecorating and Landlord’s expenses of reletting and the
collection of the rent accruing therefrom (including reasonable attorney’s fees and broker’s
commissions), as the same shall then be due or become due from time to time, less only such
consideration as Landlord may have received from any reletting of the Premises; and Tenant agrees
that Landlord may file suits from time to time to recover any sums falling due under this Article
19 as they become due. Any proceeds of reletting by Landlord in excess of the amount then owed by
Tenant to Landlord from time to time shall be credited against Tenant’s future obligations under
this Lease but shall not otherwise be refunded to Tenant or inure to Tenant’s benefit.
19.2 Upon the occurrence of an Event of Default, Landlord may (but shall not be obligated to)
cure such default at Tenant’s sole expense. Without limiting the generality of the foregoing,
Landlord may, at Landlord’s option, enter into and upon the Premises if Landlord determines in its
sole discretion that Tenant is not acting within a commercially reasonable time to maintain, repair
or replace anything for which Tenant is responsible under this Lease or to
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otherwise effect compliance with its obligations under this Lease and correct the same,
without being deemed in any manner guilty of trespass, eviction or forcible entry and detainer and
without incurring any liability for any damage or interruption of Tenant’s business resulting
therefrom and Tenant agrees to reimburse Landlord within five (5) days of Landlord’s demand as
additional rent, for any expenses which Landlord may incur in thus effecting compliance with
Tenant’s obligations under this Lease, plus interest from the date of expenditure by Landlord at
the Wall Street Journal prime rate.
19.3 Tenant understands and agrees that in entering into this Lease, Landlord is relying upon
receipt of all the Annual and Monthly Installments of Rent to become due with respect to all the
Premises originally leased hereunder over the full Initial Term of this Lease for amortization,
including interest at the Amortization Rate. For purposes hereof, the “Concession Amount” shall be
defined as the aggregate of all amounts forgone or expended by Landlord as free rent under the
lease, under Exhibit B hereof for construction allowances, if any (excluding therefrom any
amounts expended by Landlord for Landlord’s Work, as defined in Exhibit B), and for
brokers’ commissions payable by reason of this Lease. Accordingly, Tenant agrees that if this
Lease or Tenant’s right to possession of the Premises leased hereunder shall be terminated as of
any date (“Default Termination Date”) prior to the expiration of the full Initial Term hereof by
reason of a default of Tenant, there shall be due and owing to Landlord as of the day prior to the
Default Termination Date, as rent in addition to all other amounts owed by Tenant as of such Date,
the amount (“Unamortized Amount”) of the Concession Amount determined as set forth below; provided,
however, that in the event that such amounts are recovered by Landlord pursuant to any other
provision of this Article 19, Landlord agrees that it shall not attempt to recover such amounts
pursuant to this Paragraph 19.3. For the purposes hereof, the Unamortized Amount shall be
determined in the same manner as the remaining principal balance of a mortgage with interest at the
Amortization Rate payable in level payments over the same length of time as from the effectuation
of the Concession concerned to the end of the full Initial Term of this Lease would be determined.
The foregoing provisions shall also apply to and upon any reduction of space in the Premises, as
though such reduction were a termination for Tenant’s default, except that (i) the Unamortized
Amount shall be reduced by any amounts paid by Tenant to Landlord to effectuate such reduction and
(ii) the manner of application shall be that the Unamortized Amount shall first be determined as
though for a full termination as of the Effective Date of the elimination of the portion, but then
the amount so determined shall be multiplied by the fraction of which the numerator is the rentable
square footage of the eliminated portion and the denominator is the rentable square footage of the
Premises originally leased hereunder; and the amount thus obtained shall be the Unamortized Amount.
19.4 If, on account of any breach or default by Tenant in Tenant’s obligations under the terms
and conditions of this Lease, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney or collection agency concerning or to enforce or defend any of Landlord’s
rights or remedies arising under this Lease or to collect any sums due from Tenant, Tenant agrees
to pay all costs and fees so incurred by Landlord, including, without limitation, reasonable
attorneys’ fees and costs. TENANT EXPRESSLY WAIVES ANY RIGHT TO: (A) TRIAL BY JURY; AND (B)
SERVICE OF ANY NOTICE REQUIRED BY ANY PRESENT OR FUTURE LAW OR ORDINANCE APPLICABLE TO LANDLORDS OR
TENANTS BUT NOT REQUIRED BY THE TERMS OF THIS LEASE.
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19.5 Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other
remedies provided in this Lease or any other remedies provided by law (all such remedies being
cumulative), nor shall pursuit of any remedy provided in this Lease constitute a forfeiture or
waiver of any rent due to Landlord under this Lease or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants contained in this Lease.
19.6 No act or thing done by Landlord or its agents during the Term shall be deemed a
termination of this Lease or an acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of said Premises shall be valid, unless in writing
signed by Landlord. No waiver by Landlord or Tenant of any violation or breach of any of the
terms, provisions and covenants contained in this Lease shall be deemed or construed to constitute
a waiver of any other violation or breach of any of the terms, provisions and covenants contained
in this Lease. Landlord’s acceptance of the payment of rental or other payments after the
occurrence of an Event of Default shall not be construed as a waiver of such Default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord in enforcing one or more of the
remedies provided in this Lease upon an Event of Default shall not be deemed or construed to
constitute a waiver of such Default or of Landlord’s right to enforce any such remedies with
respect to such Default or any subsequent Default.
19.7 Intentionally Deleted.
19.8 Any and all property which may be removed from the Premises by Landlord pursuant to the
authority of this Lease or of law, to which Tenant is or may be entitled, may be handled, removed
and/or stored, as the case may be, by or at the direction of Landlord but at the risk, cost and
expense of Tenant, and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all expenses incurred in
such removal and all storage charges against such property so long as the same shall be in
Landlord’s possession or under Landlord’s control. Any such property of Tenant not retaken by
Tenant from storage within thirty (30) days after removal from the Premises shall, at Landlord’s
option, be deemed conveyed by Tenant to Landlord under this Lease as by a bill of sale without
further payment or credit by Landlord to Tenant.
19.9 If more than one (1) Event of Default occurs during the Term or any renewal thereof,
Tenant’s renewal options, expansion options, purchase options and rights of first offer and/or
refusal, if any are provided for in this Lease, shall be null and void.
20. TENANT’S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the provisions of the
United States Bankruptcy Code or other law of the United States or any state thereof for the
protection of debtors as in effect at such time (each a “Debtor’s Law”):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or receiver of Tenant’s assets
(each a “Tenant’s Representative”) shall have no greater right to assume or assign this Lease or
any interest in this Lease, or to sublease any of the Premises than accorded to Tenant in Article
9, except to the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor’s Law. Without limitation of the
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generality of the foregoing, any right of any Tenant’s Representative to assume or assign this
Lease or to sublease any of the Premises shall be subject to the conditions that:
20.1.1.1 Such Debtor’s Law shall provide to Tenant’s Representative a right of assumption of
this Lease which Tenant’s Representative shall have timely exercised and Tenant’s Representative
shall have fully cured any default of Tenant under this Lease.
20.1.1.2 Tenant’s Representative or the proposed assignee, as the case shall be, shall have
deposited with Landlord as security for the timely payment of rent an amount equal to the larger
of: (a) three (3) months’ rent and other monetary charges accruing under this Lease; and (b) any
sum specified in Article 4.1; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without limitation, such
assurances shall include, at least, in the case of assumption of this Lease, demonstration to the
satisfaction of the Landlord that Tenant’s Representative has and will continue to have sufficient
unencumbered assets after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant’s Representative will have sufficient funds to fulfill the obligations
of Tenant under this Lease; and, in the case of assignment, submission of current financial
statements of the proposed assignee, audited by an independent certified public accountant
reasonably acceptable to Landlord and showing a net worth and working capital in amounts determined
by Landlord to be sufficient to assure the future performance by such assignee of all of the
Tenant’s obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this Lease or subleasing any part
of the Premises, as shall be the case, will not breach any provision in any other lease, mortgage,
financing agreement or other agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the Debtor’s Law, no right under
Article 9 to refuse consent to the proposed assignment or sublease by reason of the identity or
nature of the proposed assignee or sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing its other covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold and enjoy the
Premises for the Term without hindrance or molestation from Landlord subject to the terms and
provisions of this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the obligations of this
Lease because of such interference or disturbance.
22. CASUALTY
22.1 In the event the Premises or the Building are damaged by fire or other cause and in
Landlord’s reasonable estimation such damage can be materially restored within one hundred eighty
(180) days, Landlord shall forthwith repair the same and this Lease shall remain in full force and
effect, except that Tenant shall be entitled to a proportionate abatement in rent and Tenant’s
liability for Expenses, Insurance Costs and/or Taxes from the date of such damage. Such abatement
of rent shall be made pro rata in accordance with the extent to which the damage
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and the making of such repairs shall interfere with the use and occupancy by Tenant of the
Premises from time to time. Within forty-five (45) days from the date of such damage, Landlord
shall notify Tenant, in writing, of Landlord’s reasonable estimation of the length of time within
which material restoration can be made, and Landlord’s determination shall be binding on Tenant.
For purposes of this Lease, the Building or Premises shall be deemed “materially restored” if they
are in such condition as would not prevent or materially interfere with Tenant’s use of the
Premises for the purpose for which it was being used immediately before such damage.
22.2 If such repairs cannot, in Landlord’s reasonable estimation, be made within one hundred
eighty (180) days, Landlord and Tenant shall each have the option of giving the other, at any time
within ninety (90) days after such damage, notice terminating this Lease as of the date of such
damage. In the event of the giving of such notice, this Lease shall expire and all interest of the
Tenant in the Premises shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term. In the event that neither Landlord
nor Tenant exercises its option to terminate this Lease, then Landlord shall repair or restore such
damage, this Lease continuing in full force and effect, and the rent and Tenant’s liability for
Expenses, Insurance Costs and/or Taxes hereunder shall be proportionately abated as provided in
Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or loss by or from fire or
other cause to any panelings, decorations, partitions, additions, railings, ceilings, floor
coverings, office fixtures or any other property or improvements installed on the Premises by, or
belonging to, Tenant. Any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or Premises shall be for the sole benefit of the party carrying such
insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and material restoration
within sixty (60) days after the date estimated by Landlord therefor as extended by this Section
22.4, Tenant may at its option and as its sole remedy terminate this Lease by delivering written
notice to Landlord, within fifteen (15) days after the expiration of said period of time, whereupon
the Lease shall end on the date of such notice or such later date fixed in such notice as if the
date of such notice was the date originally fixed in this Lease for the expiration of the Term;
provided, however, that if construction is delayed because of changes, deletions or additions in
construction requested by Tenant, strikes, lockouts, casualties, Acts of God, war, material or
labor shortages, government regulation or control or other causes beyond the reasonable control of
Landlord, the period for restoration, repair or rebuilding shall be extended for the amount of time
Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article: (a) Landlord shall
not have any obligation whatsoever to repair, reconstruct, or restore the Premises when the damages
resulting from any casualty covered by the provisions of this Article 22 occur during the last
twelve (12) months of the Term or any extension thereof, but if Landlord determines not to repair
such damages Landlord shall notify Tenant and if such damages shall render any material portion of
the Premises untenantable Tenant shall have the right to terminate this Lease by notice to Landlord
within fifteen (15) days after receipt of Landlord’s notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the
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Premises or Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written notice of
termination to Tenant within fifteen (15) days after such requirement is made by any such holder,
whereupon this Lease shall end on the date of such damage as if the date of such damage were the
date originally fixed in this Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises by any peril
covered by the provisions of this Article 22, it shall be Tenant’s responsibility to properly
secure the Premises and upon notice from Landlord to remove forthwith, at its sole cost and
expense, such portion of all of the property belonging to Tenant or its licensees from such portion
or all of the Building or Premises as Landlord shall request.
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be taken or appropriated
by any public or quasi-public authority under the power of eminent domain, or conveyance in lieu of
such appropriation, either party to this Lease shall have the right, at its option, of giving the
other, at any time within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation, if such taking or
appropriation shall be so substantial as to materially interfere with Tenant’s use and occupancy of
the Premises. If neither party to this Lease shall so elect to terminate this Lease, the rental
thereafter to be paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the Building shall be taken or
appropriated by any public or quasi-public authority under the power of eminent domain or
conveyance in lieu thereof, and regardless of whether the Premises or any part thereof are so taken
or appropriated, Landlord shall have the right, at its sole option, to terminate this Lease.
Landlord shall be entitled to any and all income, rent, award, or any interest whatsoever in or
upon any such sum, which may be paid or made in connection with any such public or quasi-public use
or purpose, and Tenant hereby assigns to Landlord any interest it may have in or claim to all or
any part of such sums, other than any separate award which may be made with respect to Tenant’s
trade fixtures and moving expenses; Tenant shall make no claim for the value of any unexpired Term.
24. SALE BY LANDLORD. In event of a sale or conveyance by Landlord of the Building, the same shall
operate to release Landlord from any future liability upon any of the covenants or conditions,
expressed or implied, contained in this Lease in favor of Tenant, and in such event Tenant agrees
to look solely to the responsibility of the successor in interest of Landlord in and to this Lease.
Except as set forth in this Article24, this Lease shall not be affected by any such sale and
Tenant agrees to attorn to the purchaser or assignee. If any security has been given by Tenant to
secure the faithful performance of any of the covenants of this Lease, Landlord may transfer or
deliver said security, as such, to Landlord’s successor in interest and thereupon Landlord shall be
discharged from any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord or mortgagee or prospective
mortgagee a sworn statement certifying: (a) the date of commencement of this Lease; (b) the fact
that this Lease is unmodified and in full force and effect (or, if there have been modifications to
this Lease, that this lease is in full force and effect, as modified, and stating the date and
nature of such modifications); (c) the date to which the rent and other sums
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payable under this Lease have been paid; (d) the fact that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant’s statement; and (e) such other
matters as may be requested by Landlord. Landlord and Tenant intend that any statement delivered
pursuant to this Article 25 may be relied upon by any mortgagee, beneficiary or purchaser. Tenant
irrevocably agrees that if Tenant fails to execute and deliver such certificate within such ten
(10) day period, the statements contained therein shall be deemed true and correct and such
certificate shall be fully binding on Tenant.
26. SURRENDER OF PREMISES.
26.1 Tenant shall arrange to meet Landlord for two (2) joint inspections of the Premises, the
first to occur at least thirty (30) days (but no more than sixty (60) days) before the last day of
the Term, and the second to occur not later than forty-eight (48) hours after Tenant has vacated
the Premises. In the event of Tenant’s failure to arrange such joint inspections and/or
participate in either such inspection, Landlord’s inspection at or after Tenant’s vacating the
Premises shall be conclusively deemed correct for purposes of determining Tenant’s responsibility
for repairs and restoration.
26.2 All alterations, additions, and improvements in, on, or to the Premises made or installed
by or for Tenant, including carpeting (collectively, “Alterations”), shall be and remain the
property of Tenant during the Term. Upon the expiration or sooner termination of the Term, all
Alterations shall become a part of the realty and shall belong to Landlord without compensation,
and title shall pass to Landlord under this Lease as by a bill of sale. At the end of the Term or
any renewal of the Term or other sooner termination of this Lease, Tenant will peaceably deliver up
to Landlord possession of the Premises, together with all Alterations by whomsoever made, in the
same conditions received or first installed, broom clean and free of all debris, excepting only
ordinary wear and tear and damage by fire or other casualty. Notwithstanding the foregoing, if
Landlord elects by notice given to Tenant at least ten (10) days prior to expiration of the Term,
Tenant shall, at Tenant’s sole cost, remove any Alterations, including carpeting, so designated by
Landlord’s notice, and repair any damage caused by such removal. Tenant must, at Tenant’s sole
cost, remove upon termination of this Lease, any and all of Tenant’s furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other trade fixtures and
personal property (collectively, “Personalty”). Personalty not so removed shall be deemed
abandoned by the Tenant and title to the same shall thereupon pass to Landlord under this Lease as
by a bill of sale, but Tenant shall remain responsible for the cost of removal and disposal of such
Personalty, as well as any damage caused by such removal. In lieu of requiring Tenant to remove
Alterations and Personalty and repair the Premises as aforesaid, Landlord may, by written notice to
Landlord delivered at least thirty (30) days before the Termination Date, require Tenant to pay to
Landlord, as additional rent hereunder, the cost of such removal and repair in an amount reasonably
estimated by Landlord.
26.3 All obligations of Tenant under this Lease not fully performed as of the expiration or
earlier termination of the Term shall survive the expiration or earlier termination of the Term
Upon the expiration or earlier termination of the Term, Tenant shall pay to Landlord the amount, as
estimated by Landlord, necessary to repair and restore the Premises as provided in this Lease
and/or to discharge Tenant’s obligation for unpaid amounts due or to become due to Landlord. All
such amounts shall be used and held by Landlord for payment of such obligations of Tenant,
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with Tenant being liable for any additional costs upon demand by Landlord, or with any excess
to be returned to Tenant after all such obligations have been determined and satisfied. Any
otherwise unused Security Deposit shall be credited against the amount payable by Tenant under this
Lease.
27. NOTICES. Any notice or document required or permitted to be delivered under this Lease shall
be addressed to the intended recipient, by fully prepaid registered or certified United States Mail
return receipt requested, or by reputable independent contract delivery service furnishing a
written record of attempted or actual delivery, and shall be deemed to be delivered when tendered
for delivery to the addressee at its address set forth on the Reference Pages, or at such other
address as it has then last specified by written notice delivered in accordance with this Article
27, or if to Tenant at either its aforesaid address or its last known registered office or home of
a general partner or individual owner, whether or not actually accepted or received by the
addressee. Any such notice or document may also be personally delivered if a receipt is signed by
and received from, the individual, if any, named in Tenant’s Notice Address.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by Tenant under this
Lease, Tenant shall reimburse to Landlord, upon demand, any and all taxes payable by Landlord
(other than net income taxes) whether or not now customary or within the contemplation of the
parties to this Lease: (a) upon, allocable to, or measured by or on the gross or net rent payable
under this Lease, including without limitation any gross income tax or excise tax levied by the
State, any political subdivision thereof, or the Federal Government with respect to the receipt of
such rent; (b) upon or with respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by the Tenant’s gross receipts
or payroll or the value of Tenant’s equipment, furniture, fixtures and other personal property of
Tenant or leasehold improvements, alterations or additions located in the Premises; or (d) upon
this transaction or any document to which Tenant is a party creating or transferring any interest
of Tenant in this Lease or the Premises. In addition to the foregoing, Tenant agrees to pay,
before delinquency, any and all taxes levied or assessed against Tenant and which become payable
during the term hereof upon Tenant’s equipment, furniture, fixtures and other personal property of
Tenant located in the Premises.
29. RELOCATION OF TENANT. Landlord, at its sole expense, on at least sixty (60) days prior written
notice, may require Tenant to move from the Premises to other space in the Park of comparable size
and decor in order to permit Landlord to consolidate the space leased to Tenant with other
adjoining space leased or to be leased to another tenant. In the event of any such relocation,
Landlord will pay all expenses of preparing and decorating the new premises so that they will be
substantially similar to the Premises from which Tenant is moving, and Landlord will also pay the
expense of moving Tenant’s furniture and equipment (including telephone and data systems) to the
relocated premises. In such event this Lease and each and all of the terms and covenants and
conditions hereof shall remain in full force and effect and thereupon be deemed applicable to such
new space except that revised Reference Pages and a revised Exhibit A shall become part of
this Lease and shall reflect the location of the new premises.
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30. PARKING.
30.1 During the initial Term of this Lease, Tenant agrees to lease from Landlord and Landlord
agrees to lease to Tenant, the number and type of parking spaces as set forth on the Reference Page
of this Lease. This right to park in the Building’s parking facilities (the “Parking Facility”)
shall be on an unreserved, nonexclusive, first come, first served basis, for passenger-size
automobiles and is subject to the following terms and conditions:
30.1.1 Tenant shall at all times abide by and shall cause each of Tenant’s employees, agents,
customers, visitors, invitees, licensees, contractors, assignees and subtenants (collectively,
“Tenant’s Parties”) to abide by any rules and regulations (“Rules”) for use of the Parking Facility
that Landlord or Landlord’s garage operator reasonably establishes from time to time, and otherwise
agrees to use the Parking Facility in a safe and lawful manner. Landlord reserves the right to
adopt, modify and enforce the Rules governing the use of the Parking Facility from time to time
including any key-card, sticker or other identification or entrance system and hours of operation.
Landlord may refuse to permit any person who violates such Rules to park in the Parking Facility,
and any violation of the Rules shall subject the car to removal from the Parking Facility.
30.1.2 Unless specified to the contrary above, the parking spaces hereunder shall be provided
on a non-designated “first-come, first-served” basis. Landlord reserves the right to assign
specific spaces, and to reserve spaces for visitors, small cars, disabled persons or for other
tenants or guests, and Tenant shall not park and shall not allow Tenant’s Parties to park in any
such assigned or reserved spaces. Tenant may validate visitor parking by such method as Landlord
may approve, at the validation rate from time to time generally applicable to visitor parking.
Tenant acknowledges that the Parking Facility may be closed entirely or in part in order to make
repairs or perform maintenance services, or to alter, modify, re-stripe or renovate the Parking
Facility, or if required by casualty, strike, condemnation, act of God, governmental law or
requirement or other reason beyond the operator’s reasonable control.
30.1.3 Tenant acknowledges that to the fullest extent permitted by law, Landlord shall have no
liability for any damage to property or other items located in the parking areas of the Project
(including without limitation, any loss or damage to tenant’s automobile or the contents thereof
due to theft, vandalism or accident), nor for any personal injuries or death arising out of the use
of the Parking Facility by Tenant or any Tenant’s Parties, whether or not such loss or damage
results from Landlord’s active negligence or negligent omission. The limitation on Landlord’s
liability under the preceding sentence shall not apply however to loss or damage arising directly
from Landlord’s willful misconduct. Without limiting the foregoing, if Landlord arranges for the
parking areas to be operated by an independent contractor not affiliated with Landlord, Tenant
acknowledges that Landlord shall have no liability for claims arising through acts or omissions of
such independent contractor. Tenant and Tenant’s Parties each hereby voluntarily releases,
discharges, waives and relinquishes any and all actions or causes of action for personal injury or
property damage occurring to Tenant or any of Tenant’s Parties arising as a result of parking in
the Parking Facility, or any activities incidental thereto, wherever or however the same may occur,
and further agrees that Tenant will not prosecute any claim for personal injury or property damage
against Landlord or any of its officers, agents, servants or employees for any said causes of
action and in all events, Tenant agrees to look first to its
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insurance carrier and to require that Tenant’s Parties look first to their respective
insurance carriers for payment of any losses sustained in connection with any use of the Parking
Facility. Tenant hereby waives on behalf of its insurance carriers all rights of subrogation
against Landlord or Landlord’s agents.
30.1.4 Tenant’s right to park as described in this Article and this Lease is exclusive to
Tenant and shall not pass to any assignee or sublessee without the express written consent of
Landlord. Such consent is at the sole discretion of the Landlord.
30.2 If Tenant violates any of the terms and conditions of this Article, the operator of the
Parking Facility shall have the right to remove from the Parking Facility any vehicles hereunder
which shall have been involved or shall have been owned or driven by parties involved in causing
such violation, without liability therefore whatsoever. In addition, Landlord shall have the right
to cancel Tenant’s right to use the Parking Facility pursuant to this Article upon ten (10) days’
written notice, unless within such ten (10) day period, Tenant cures such default. Such
cancellation right shall be cumulative and in addition to any other rights or remedies available to
Landlord at law or equity, or provided under this Lease.
31. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for convenience of
reference and shall in no way define, increase, limit or describe the scope or intent of any
provision of this Lease. Any indemnification or insurance of Landlord shall apply to and inure to
the benefit of all the following “Landlord Entities”, being Landlord, Landlord’s investment
manager, and the trustees, boards of directors, officers, general partners, beneficiaries,
stockholders, employees and agents of each of them. Any option granted to Landlord shall also
include or be exercisable by Landlord’s trustee, beneficiary, agents and employees, as the case may
be. In any case where this Lease is signed by more than one person, the obligations under this
Lease shall be joint and several. The terms “Tenant” and “Landlord” or any pronoun used in place
thereof shall indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their and each of their respective successors, executors,
administrators and permitted assigns, according to the context hereof. The term “rentable area”
shall mean the rentable area of the Premises or the Building as calculated by the Landlord on the
basis of the plans and specifications of the Building including a proportionate share of any common
areas. Tenant hereby accepts and agrees to be bound by the figures for the rentable space footage
of the Premises and Tenant’s Proportionate Share shown on the Reference Pages; however, Landlord
may adjust either or both figures if there is manifest error, addition or subtraction to the
Building or any business park or complex of which the Building is a part, remeasurement or other
circumstance reasonably justifying adjustment. The term “Building” refers to the structure in
which the Premises are located and the common areas (parking lots, sidewalks, landscaping, etc.)
appurtenant thereto. If the Building is part of a larger complex of structures, the term
“Building” may include the entire complex, where appropriate (such as shared Expenses, Insurance
Costs or Taxes) and subject to Landlord’s reasonable discretion.
32. TENANT’S AUTHORITY. If Tenant signs as a corporation, partnership, trust or other legal entity
each of the persons executing this Lease on behalf of Tenant represents and warrants that Tenant
has been and is qualified to do business in the state in which the Building is located, that the
entity has full right and authority to enter into this Lease, and that all persons signing on
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behalf of the entity were authorized to do so by appropriate actions. Tenant agrees to deliver to
Landlord, simultaneously with the delivery of this Lease, a corporate resolution, proof of due
authorization by partners, opinion of counsel or other appropriate documentation reasonably
acceptable to Landlord evidencing the due authorization of Tenant to enter into this Lease.
33. FINANCIAL STATEMENTS AND CREDIT REPORTS. At Landlord’s request, Tenant shall deliver to
Landlord a copy, certified by an officer of Tenant as being a true and correct copy, of Tenant’s
most recent audited financial statement, or, if unaudited, certified by Tenant’s chief financial
officer as being true, complete and correct in all material respects. Tenant hereby authorizes
Landlord to obtain one or more credit reports on Tenant at any time, and shall execute such further
authorizations as Landlord may reasonably require in order to obtain a credit report,
34. COMMISSIONS. Each of the parties represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Lease, except as described on the Reference Pages
(the “Brokers”). Landlord agrees to pay to the Brokers in connection with this Lease a brokerage
commission pursuant to a separate agreement between Landlord and the Brokers.
35. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of its provisions. This
Lease shall in all respects be governed by the laws of the state in which the Building is located.
36. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms, covenants and
conditions contained in this Lease shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the parties to this Lease.
37. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all agreements of the
parties to this Lease and supersedes any previous negotiations. There have been no representations
made by the Landlord or any of its representatives or understandings made between the parties other
than those set forth in this Lease and its exhibits. This Lease may not be modified except by a
written instrument duly executed by the parties to this Lease.
38. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a reservation of
the Premises. Landlord shall not be bound by this Lease until it has received a copy of this Lease
duly executed by Tenant and has delivered to Tenant a copy of this Lease duly executed by Landlord,
and until such delivery Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the contrary, Landlord
may withhold delivery of possession of the Premises from Tenant until such time as Tenant has paid
to Landlord any security deposit required by Article 4.1, the first month’s rent as set forth in
Article3 and any sum owed pursuant to this Lease.
39. RECORDATION. Tenant shall not record or register this Lease or a short form memorandum hereof
without the prior written consent of Landlord, and then shall pay all charges and taxes incident
such recording or registration.
40. LIMITATION OF LANDLORD’S LIABILITY. Redress for any claim against Landlord under this Lease
shall be limited to and enforceable only against and to the extent of
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Landlord’s interest in the Building. The obligations of Landlord under this Lease are not intended
to be and shall not be personally binding on, nor shall any resort be had to the private properties
of, any of its or its investment manager’s trustees, directors, officers, partners, beneficiaries,
members, stockholders, employees, or agents, and in no case shall Landlord be liable to Tenant
hereunder for any lost profits, damage to business, or any form of special, indirect or
consequential damages.
THIS FIRST AMENDMENT TO LEASE, dated as of December 14, 2005 (this “Amendment”), between
ACQUIPORT UNICORN, INC., a Delaware corporation (“Landlord”), and 3AM LABS, INC., a Delaware
corporation, as the successor in interest to REMOTELYANYWHERE, Inc., a Delaware Corporation
(“Tenant”).
RECITALS:
A. Landlord and REMOTELY ANYWHERE, INC. entered into that certain Office Lease dated for
reference July 14, 2004 (the “Lease”) for approximately 4,614 rentable square feet (the “Current
Premises”) on the fourth floor of the building commonly known as 500 Unicorn Park Drive, Woburn,
Massachusetts (the “Building”).
B. 3AM LABS, INC. is accepted by Landlord as the successor in interest to REMOTELY ANYWHERE,
INC. and wherever in the Lease or this Amendment there is reference to Tenant, that reference shall
be to 3AM LABS, INC.
C. The Term of the Lease is currently scheduled to expire on September 30, 2006. Tenant and
Landlord wish to extend the Term of the Lease. Also, Tenant wishes to lease from Landlord, and
Landlord wishes to lease to Tenant, in substitution for the Current Premises, approximately 18,262
rentable square feet (the “New Space”) on the first floor of the Building. The New Space is
approximately depicted on Exhibit A attached hereto.
D. All terms, covenants and conditions contained in this Amendment shall have the same meaning
as in the Lease, it being understood that other than as expressly set forth in this Amendment, the
New Space shall be included within the term, “Premises”, as such term is used within the Lease,
and, shall govern should a conflict exist with previous terms and conditions and that the reference
to Exhibit A in the Lease shall be construed as a reference to Exhibit A to this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
Recitals. The recitals set forth above are hereby incorporated herein as if fully set
forth.
Capitalized Terms. All capitalized terms used herein shall have the same meanings
ascribed to them in the Lease, unless otherwise defined in this Amendment.
Substitution of Premises. Effective on the date on which Landlord tenders possession
of the New Space to Tenant with Landlord’s Work under Exhibit B substantially complete (the
“New Space Commencement Date”), the Premises subject to the Lease shall consist solely of the New
Space, and all references in the Lease to the “Premises” shall refer to the New Space. Within
seven (7) days following the New Space Commencement Date, Tenant shall deliver full possession of
the Current Premises to Landlord, in the condition required as though the Lease
were then terminating as to the Current Premises. If Tenant fails to deliver the Current
Premises within such seven-day period as above provided, Tenant shall be obligated to pay to
Landlord rent also for the Current Premises at the rate then currently applicable to the Current
Premises, following such seven day period on a day to day basis until Tenant has so delivered to
Landlord the Current Premises. If Tenant fails to deliver the Current Premises to Landlord within
thirty (30) days from the New Space Commencement Date, Tenant shall be deemed to be in holdover
status in the Current Premises and shall be obligated to pay rent for the Current Premises
thereafter at the Holdover Rate and subject to the holdover provision, i.e. Article 14, of the
Lease. In the event Landlord shall permit Tenant to occupy the New Space prior to the New Space
Commencement Date, such occupancy shall be subject to all the provisions of the Lease. Said early
possession shall not advance the expiration of the term. For the purposes of defining the New
Space Commencement Date under this paragraph of the Amendment and Landlord’s obligations under
paragraph 10(b) of this Amendment, “substantially complete” shall mean that at a minimum Landlord’s
Work under Exhibit B is in compliance with all applicable laws and regulations, an occupancy permit
is issued and that there remains to be completed only “punch list” items as agreed by Tenant and
Landlord.
Term. The calendar month in which the New Space Commencement Date occurs is referred
to as the “Commencement Month.” Upon the occurrence of the New Space Commencement Date, the Term of
the Lease, scheduled to expire on September 30, 2006, will be extended to and through the last day
of the thirty sixth (36th) full calendar month after (if the Commencement Month is not a
full calendar month), or from and including (if the Commencement Month is a full calendar month),
the Commencement Month.
Reference Page Amendments. Effective as of the New Space Commencement Date, the
Reference Page of the Lease is amended in the following particulars:
Premises Address: Premises on the First floor of the Building, instead of Third Floor as
referenced therein (for outline of Premises see Exhibit A attached to this Amendment).
Premises Rentable Area: Approximately 18,262 rentable sq. ft.
Term of Lease: As set forth in Paragraph 4 of this Amendment.
Termination Date: As set forth in Paragraph 4 of this Amendment.
Annual Rent and Monthly Installment: See paragraph 6 below.
Base Year (Direct Expenses): 2006
Base Year (Taxes): Taxes for fiscal 2006 (i.e., commencing July 1, 2005)
Tenant’s Proportionate Share: 9.59%
Security Deposit: Increased to $95,875.50. The existing Letter of Credit shall be extended
and amended to take into consideration the extension of the Term and increase in the amount of the
Security Deposit as provided herein and the opportunities for reduction of the Security Deposit as
set forth in Paragraph 11 (a) of this Amendment.
2
Annual Rent and Monthly Installment of Rent. Until the New Space Commencement Date,
Tenant shall continue to pay Annual Rent as currently in effect per the Lease, without change, but
prorated for the Current Premises up to the New Space Commencement Date, subject however to an
holdover rent pursuant to Paragraph 3 of this Amendment. Effective as of the New Space
Commencement Date as to the Premises, Annual Rent shall be payable as follows:
Monthly
Rentable
Annual Rent
Installment of
Period
Square Footage
Per Square Foot
Annual Rent
Rent
Year l
18,262
$
20.00
$
365,240.00
$
30,436.67
Year 2
18,262
$
21.00
$
383,502.00
$
31,958.50
Year 3
18,262
$
22.00
$
401,764.00
$
33,480.33
Provided that Tenant is not in default, the Monthly Installment of Rent shall be abated for the
first three (3) full calendar months commencing with the New Space Commencement Date (if the New
Space Commencement Date is not the first of the month, rent for the partial calendar months will be
prorated to allow for a free rent credit totaling $91,310.01).
All amounts are net of Tenant electricity, which is for lights, plugs, and variable air volume
(VAV) boxes within the Premises, is separately submetered, and is due and payable by Tenant in
accordance with Section 13.1 of the Lease. Year 1 is the period beginning on the New Space
Commencement Date and ending at the end of the twelfth (12th) full calendar month of the extended
Term; Year 2 is the twelve (12) calendar month period immediately following Year 1; and so forth.
The actual dates are to be confirmed per Paragraph 10b below.
Renewal Option. Tenant shall, provided the Lease is in full force and effect and
Tenant is not in default under any of the other terms and conditions of the Lease at the time of
notification or commencement, have two (2) successive options to renew this Lease for a term of
three (3) years each, for the portion of the Premises being leased by Tenant as of the date the
renewal term is to commence, on the same terms and conditions set forth in the Lease, except as
modified by the terms, covenants and conditions as set forth below:
If Tenant elects to exercise said option, then Tenant shall provide Landlord with written
notice no earlier than the date that is 365 days prior to the expiration of the Term of the Lease
but no later than the date that is 180 days prior to the expiration of the Term of this Lease. If
Tenant fails to provide such notice, Tenant shall have no further or additional right to extend or
renew the term of the Lease.
The Annual Rent and Monthly Installment in effect at the expiration of the then current term
of the Lease shall be increased to reflect the current fair market rental for comparable space in
the Building and in other similar buildings in the same rental market as of the date the renewal
term is to commence, taking into account the specific provisions of the Lease which will remain
constant. Landlord shall advise Tenant of the new Annual Rent and Monthly Installment for the
Premises no later than sixty (60) days after receipt of Tenant’s written request therefor. Said
request shall be made no earlier than thirty (30) days prior to the first date on which Tenant may
exercise its option under this Paragraph. Said notification of the
3
new Annual Rent may include a provision for its escalation to provide for a change in fair
market rental between the time of notification and the commencement of the renewal term. In no
event shall the Annual Rent and Monthly Installment be less than the Annual Rent and Monthly
Installment in the preceding period.
This option is not transferable to any third party that does not acquire all or substantially
all of the assets or equity of Tenant, but is transferable by Tenant to any entity acquiring all or
substantially all of the assets or equity of Tenant; the parties hereto acknowledge and agree that
they otherwise intend that the aforesaid option to renew this Lease shall be “personal” to Tenant
as set forth above and that in no event will any assignee or sublessee otherwise have any rights to
exercise the aforesaid option to renew.
As each renewal option provided for above is exercised, the number of renewal options
remaining to be exercised is reduced by one and upon exercise of the last remaining renewal option
Tenant shall have no further right to extend the term of the Lease.
Expansion. To accommodate Tenant’s future need for additional space within Unicorn
Park, when such need arises and so long as Tenant is not then in default under the Lease, Landlord
will use commercially reasonable efforts to assist Tenant in finding additional space within
Unicorn Park, if available, to satisfy such need.
Parking. Subsection 30.1.2 of the Lease is modified by the addition of the following
sentence as the last sentence of said provision: “Notwithstanding anything in the Lease to the
contrary, Tenant shall be entitled to the use of nine (9) reserved covered parking spaces within
500 Unicorn Park as designated by Landlord.”
Condition of Premises.
Tenant acknowledges that Landlord shall have no obligation to perform any construction or make
any additional improvements or alterations, or to afford any allowance to Tenant for improvements
or alterations, in connection with this Amendment, other than as is set forth in this Paragraph 10.
Except as is provided in this Paragraph 10 and Exhibit B, Tenant accepts the New Space in
its “as is” condition.
Landlord shall tender possession of the New Space with all the work to be performed by
Landlord pursuant to Exhibit B to this Lease substantially completed, endeavoring to do so
by April 1, 2006 (the “Scheduled Commencement Date”). Tenant shall deliver a punch list of items
not completed within thirty (30) days after Landlord tenders possession of the Premises and
Landlord agrees to proceed with due diligence to perform its obligations regarding such items.
Tenant shall, at Landlord’s request, execute and deliver a memorandum agreement provided by
Landlord in the form of Exhibit C attached hereto, setting forth the actual New Space
Commencement Date, Termination Date and, if necessary, a revised rent schedule. Should Tenant fail
to do so within thirty (30) days after Landlord’s request, the information set forth in such
memorandum provided by Landlord shall be conclusively presumed to be agreed and correct.
Tenant agrees that in the event of the inability of Landlord to deliver possession of the New
Space on the Scheduled Commencement Date for any reason, Landlord shall not be
4
liable for any damage resulting from such inability and Tenant shall continue in occupancy of,
and paying rent on account of, the Current Premises at the rate currently payable under the Lease;
but Tenant shall not be liable for any rent for the New Space until the time when Landlord can,
after notice to Tenant, deliver possession of the New Space to Tenant. No such failure to give
possession on the Scheduled Commencement Date shall affect the other obligations of Tenant under
this Lease, except that if this Lease is executed by the Tenant and delivered to Landlord by
January 5, 2006 and Landlord is unable to deliver possession of the New Space by May 15, 2006
(other than as a result of strikes, shortages of materials, holdover tenancies or similar matters
beyond the reasonable control of Landlord and Tenant is notified by Landlord in writing as to such
delay), Tenant shall have the option to deliver a termination notice, unless and to the extent that
said delay is as a result of: (a) Tenant’s failure to agree to plans and specifications and/or
construction cost estimates or bids; (b) Tenant’s request for materials, finishes or installations
other than Landlord’s standard except those, if any, that Landlord shall have expressly agreed to
furnish without extension of time agreed by Landlord; (c) Tenant’s change in any plans or
specifications; or, (d) performance or completion by a party employed by Tenant (each of the
foregoing, a “Tenant Delay”). If any delay is the result of a Tenant Delay, the New Space
Commencement Date and the payment of rent under this Lease for the New Space shall be accelerated
by the number of days of such Tenant Delay. Subject to the foregoing, if Tenant has provided the
aforesaid termination notice, this Amendment shall be deemed terminated and not to be part of the
Lease and the Lease shall continue in full force and effect without reference to this Amendment.
In the event Landlord permits Tenant, or any agent, employee or contractor of Tenant, to
enter, use or occupy the New Space prior to the New Space Commencement Date, such entry, use or
occupancy shall be subject to all the provisions of this Lease other than the payment of rent for
the New Space. Said early possession shall not advance the Termination Date.
Security Deposit. Article 5 of the Lease is hereby modified as follows:
Subsection 5.2.8 is added as follows:
5.2.8 As of the expiration of the twelfth (12th) full calendar month of the first
year of the extended Term, provided that Tenant is not then in default, and that prior thereto
there has occurred no monetary Event of Default, Landlord shall permit the amount of the letter of
credit to be reduced by $31,958.50 to $63,917.00. As of the expiration of the twelfth
(12th) full calendar month of the second year of the extended Term, provided that Tenant
is not then in default, and that prior thereto there has occurred no monetary Event of Default,
Landlord shall permit the amount of the letter of credit to be reduced to $31,958.50.
Tenant’s Authority. If Tenant signs as a corporation, partnership, trust or other
legal entity each of the persons executing this Lease on behalf of Tenant represents and warrants
that Tenant has been and is qualified to do business in the state in which the Building is located,
that the entity has full right and authority to enter into this Lease, and that all persons signing
on behalf of the entity were authorized to do so by appropriate actions. Tenant agrees to deliver
to Landlord, simultaneously with the delivery of this Amendment, a certified corporate resolution,
evidencing the due authorization of Tenant to enter into this Amendment.
5
Broker. Landlord and Tenant each represents and warrants to the other that it has not
dealt with any broker or finder in connection with this Amendment other than Meredith & Grew, whose
commissions shall be paid by Landlord pursuant to separate agreement.
Incorporation. Except as modified herein, all other terms and conditions of the Lease
shall continue in full force and effect and Tenant hereby ratifies and confirms its obligations
thereunder. Tenant acknowledges that as of the date of the Amendment, Tenant (i) is not in default
under the terms of the Lease; (ii) has no defense, set off or counterclaim to the enforcement by
Landlord of the terms of the Lease; and (iii) is not aware of any action or inaction by Landlord
that would constitute a default by Landlord under the Lease.
Landlord hereby ratifies and confirms its obligations under this Lease. Landlord acknowledges that
as of the date of the Amendment, Landlord (i) is not in default under the terms of the Lease; (ii)
has no defense, set off or counterclaim to the enforcement by Tenant of the terms of the Lease; and
(iii) is not aware of any action or inaction by Tenant that would constitute an Event of Default by
Tenant under the Lease.
Assignment and Subletting. Article 9 of the Lease is hereby modified as follows:
Subsection 9.9 is added as follows:
9.9 Landlord’s rights under Subsection 9.3 shall not apply to any assignment or subletting by
Tenant pursuant to Subsection 9.8 above.
Surrender of Premises. Insert the phrase, “so long as Landlord has requested such an
inspection in writing at least ten (10) days before the scheduling of the inspection” at the end of
Subsection 26.1 of the Lease.
Taxes Payable By Tenant. Insert the following as a last sentence to Article 28: “In
no event shall this result in Tenant paying or reimbursing any real estate taxes with regard to the
Premises, except to the extent that such taxes increase over the Base Year.”
Relocation of Tenant. Article 29 of the Lease is deleted from the Lease and the
phrase, “Intentionally Deleted” is substituted in lieu thereof.
6
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the day and year
first written above.
LANDLORD:
TENANT:
ACQUIPORT UNICORN, INC., a
Delaware corporation
3AM LABS, INC., a Delaware corporation
By:
/s/ (Illegible)
By:
/s/ (Illegible)
Title:
District Manager
Title:
President
Dated:
Jan 13, 2006
Dated:
Jan 5, 2006
7
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE, dated as of October 19, 2007 (this “Amendment”), between
ACQUIPORT UNICORN, INC., a Delaware corporation (“Landlord”), and LogMeIn, Inc., successor in
interest to 3AM Labs, Inc., a Delaware corporation (“Tenant”), for certain premises in the building
located at 500 Unicorn Park Drive, Woburn, Massachusetts (“Building “).
RECITALS:
A. Landlord and Tenant’s predecessor in interest entered into that certain Lease dated for
reference July 14, 2004, which was amended by that certain First Amendment To Lease (“First
Amendment”) dated December 14, 2005 (as amended, the “Lease”) for approximately 18,262 rentable
square feet on the first floor of the Building (the “Current Premises”).
B. Landlord and Tenant now desire to further amend the Lease to provide for certain expansion
space and extension of the Term in accordance with the terms and conditions hereinafter set forth.
C. All terms, covenants and conditions contained in this Amendment shall have the same meaning
as in the Lease, and, shall govern should a conflict exist with previous terms and conditions.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
Defined Terms. All terms defined in the Lease retain their meaning herein, unless
specified herein to the contrary.
Additional Space. Tenant wishes to lease from Landlord, and Landlord wishes to lease
to Tenant, in addition to the Current Premises, approximately 13,016 rentable square feet of space
on the fifth floor of the Building as approximately depicted on Exhibit A, attached hereto
and incorporated herein (the “Additional Space”). Effective January 1, 2008, the Premises subject
to the Lease shall consist of the Current Premises as expanded to include the Additional Space, and
all references in the Lease to the “Premises” shall refer to such expanded space, except as
otherwise provided in this Amendment.
Term. The Term of the Lease is hereby extended to and through February 28, 2013.
Rent Schedule. As of January I, 2008, Tenant shall continue to pay Annual Rent as the
Lease provides for the Current Premises and shall pay Annual Rent for the Additional Space as
follows, net of Tenant electricity:
Monthly
Period
Rentable Square
Annual Rent Per
Installment of
From
through
Footage
Square Foot
Annual Rent
Rent
1/1/2008
12/31/2008
13,016
$
26.50
$
344,924.00
$
28,743.67
1/1/2009
12/31/2009
13,016
$
27.50
$
357,940.00
$
29,828.33
1/1/2010
12/31/2010
13,016
$
28.50
$
370,956.00
$
30,913.00
1/1/2011
12/31/2011
13,016
$
29.50
$
383,972.00
$
31,997.67
1/1/2012
2/28/2013
13,016
$
30.50
$
396,988.00
$
33,082.33
Tenant is not obligated to pay any rent for the Additional Space prior to January 1, 2008.
Provided that Tenant is not in default, the Monthly Installment of Rent (base rent only) for the
Additional Space shall be abated and waived for the months of January and February, 2008.
As of April 1, 2009, Tenant shall pay Monthly Installment of Rent for the Current Premises in
accordance with the following schedule, net of Tenant electricity:
Monthly
Period
Rentable Square
Annual Rent Per
Installment of
From
through
Footage
Square Foot
Annual Rent
Rent
4/1/2009
11/30/2009
18,262
$
25.00
$
456,550.00
$
38,045.83
12/1/2009
11/30/2010
18,262
$
26.00
$
474,812.00
$
39,567.67
12/1/2010
11/30/2011
18,262
$
27.00
$
493,074.00
$
41,089.50
12/1/2011
2/28/2013
18,262
$
28.00
$
511,336.00
$
42,611.33
Until April 1, 2009, Tenant shall pay the rent for the Current Premises as currently provided in
the Lease.
Tenant’s Proportionate Share. Effective January 1, 2008, Tenant’s Proportionate Share
for the Additional Space shall be 6.8 %.
Condition of Premises.
Tenant acknowledges that Landlord shall have no obligation to perform any construction or make
any additional improvements or alterations, or to afford any allowance to Tenant for improvements
or alterations, in connection with this Amendment, other than as is set forth in this Section 6.
Except as is provided in this Section 6, Tenant accepts the Additional Space in its “as is”
condition.
Landlord shall tender possession of the Additional Space with all the work to be performed by
Landlord pursuant to Exhibit B to this Lease substantially completed, endeavoring to do so
by January 1, 2008. Tenant shall deliver a punch list of items not completed within thirty (30)
days after Landlord tenders possession of the Additional Space and Landlord agrees to proceed with
due diligence to perform its obligations regarding such items.
In the event Landlord permits Tenant, or any agent, employee or contractor of Tenant, after
the existing tenant, if any, has vacated the Additional Space, to enter, use or occupy the
Additional Space prior to January 1, 2008, such entry, use or occupancy shall be subject to all
the provisions of the Lease other than the payment of any increase in rent pursuant to this
Amendment for the period of time prior to January 1, 2008.
Base Year for Expenses, Insurance and Taxes.
Effective January 1, 2008 for the Additional Space only, the Base Year for Expenses and
Insurance shall be 2008 and for Taxes shall be the period of July 1, 2007 through June 30, 2008.
Effective April 1, 2009 for the Current Premises only, the Base Year for Expenses and
Insurance shall be 2009 and for Taxes shall be the period of July 1, 2008 through June 30, 2009.
Termination Option. So long as Tenant is not in default at either the time of
exercise or at the time of termination, Tenant shall have the option to terminate this Lease
(“Termination Option”), effective as of December 31, 2010 (“Early Termination Date”). The
Termination Option may be exercised only in material compliance with the terms of this paragraph.
The Termination Option shall be exercised, if at all, by delivery to Landlord (at the place and in
the manner set forth in the Lease for delivery of notices) of a notice of termination (“Termination
Notice”). The Termination Notice (i) must be delivered not later than nine (9) months prior to the
Early Termination Date, and (ii) must be accompanied with a certified or cashier’s check in the
amount of the Termination Payment (defined below). If and only if Tenant timely and properly
delivers the Termination Notice and the Termination Payment, the Term of this Lease shall end and
all terms and conditions of this Lease (except for those provisions that survive the termination or
expiration of the Lease, such as “indemnification”) and Tenant’s obligations hereunder, including
without limitation Tenant’s obligation to pay rent, shall expire on the Early Termination Date, as
though the Early Termination Date had been originally fixed as the expiration date of such Term.
All terms and conditions of this Lease and Tenant’s obligations hereunder, including without
limitation Tenant’s obligation to pay rent, shall continue up to and including the Early
Termination Date. The Termination Payment is the sole property of Landlord upon payment and is not
refundable under any circumstances, except breach of this Section by the Landlord. Tenant
acknowledges and agrees that the Termination Payment is fair and reasonable compensation to
Landlord for the loss of expected rentals from Tenant over the remainder of the scheduled term
after the Early Termination Date. All obligations of Tenant and Landlord arising under this Lease
prior to the Early Termination Date and not fully performed as of the Early Termination Date shall
survive the Early Termination Date. This option is not transferable; the parties hereto
acknowledge and agree that they intend that the aforesaid option to terminate this Lease shall be
“personal” to Tenant as set forth above and that, other than as set forth below, in no event will
any assignee or sublessee have any rights to exercise the aforesaid option to terminate.
Notwithstanding the above, Tenant may assign its rights under this Section in connection with a
merger, consolidation, spin-off, corporate reorganization, acquisition, sale of all or
substantially all of its assets or other Change of Control. “Change of Control” means any merger,
investment, stock transfer or acquisition, asset transfer or acquisition, which has the effect of
changing the ownership of the referenced party to this Lease or any parent or subsidiary of the
referenced party. The “Termination Payment” will be the sum of (a) rent (base rent) which would,
but for such termination, have been payable for the three (3) month period beginning on the day
following the Early Termination Date, plus (b) the unamortized balance, as
of the Early Termination Date, of Landlord’s costs for tenant improvements and rent abatement
incurred in connection with this Lease, assuming amortization in full of such costs with interest
at nine percent (9%) per annum over the Term of the Lease as extended by this Amendment. At
Tenant’s request, Landlord shall provide a calculation of the actual Termination Payment amount.
Commissions. Each of the parties represents and warrants that it has not dealt with
any broker or finder in connection with this Amendment, other than Meredith & Grew, Inc.
representing the Tenant and Cushman & Wakefield of Massachusetts, Inc. representing the Landlord
(the “Brokers”). Landlord hereby agrees to pay the fees and commissions of the Brokers pursuant to
separate agreements.
Temporary Space. Upon full execution of this Amendment, Landlord will make available
as temporary space up to January 9, 2008 approximately 3,685 square feet of space on the first
floor of the Building (“Temporary Space”). Such occupancy shall be subject to all of the terms,
conditions and covenants of this Lease, other than the payment of rent for use of such space except
as hereinafter provided. Tenant shall take the Temporary Space in its as-is condition, and
Landlord shall not be required to provide any tenant improvements or allowances in connection
therewith. Tenant will be responsible for payment of all of its utility use within the Temporary
Space and return the Temporary Space to the Landlord in the condition that it was received and
broom clean. If Tenant fails to vacate the Temporary Space by January 9, 2008, Tenant shall be
liable for rent on the Temporary Space from and including January 9, 2008 at the annual rate of
$26.50 per square foot, payable monthly on the first day of each month in advance, until the return
of such Temporary Space to Landlord. Notwithstanding the foregoing, Landlord reserves the right to
terminate Tenant’s use of the Temporary Space by providing Tenant with at least a twenty-one (21)
day advance written notice of such termination in the event Landlord needs the space due to a
consummation of a lease with a third party for such space.
Parking. Effective January 1, 2008, Section 9 of the First Amendment is modified by
increasing “nine (9)” to “fifteen (15)” as referenced therein.
Security Deposit. Section 11 of the First Amendment, which added Section 5.2.8 to the
Lease, is hereby deleted. As of January 1, 2008, the Security Deposit shall be increased to
$125,000.00 and, as provided in Section 5.2 of the Lease, it shall be in the form of an Irrevocable
Standby Letter of Credit with an expiration, by automatic annual renewals, of no earlier than May31, 2013.
Tenant’s Authority. If Tenant signs as a corporation, Tenant represents and warrants
that Tenant has been and is qualified to do business as a corporation in the Commonwealth of
Massachusetts, that Tenant has full right and authority to enter into this Amendment, and that all
persons signing on behalf of the corporation were authorized to do so by appropriate corporate
actions. Tenant agrees to furnish promptly upon request a corporate resolution or other
appropriate documentation evidencing the due authorization of Tenant to enter into this Amendment.
Tenant hereby represents and warrants that neither Tenant, nor, to its knowledge, any persons or
entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any
sanctions program that is established by Executive Order of the President or published by the
Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (ii) designated by the
President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International
Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive
Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such
statutes; or (iii) named on the following list that is published by OFAC: “List of Specially
Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time
during the Term, an Event of Default will be deemed to have occurred, without the necessity of
notice to Tenant.
Incorporation. Except as modified herein, all other terms and conditions of the Lease
shall continue in full force and effect and Tenant hereby ratifies and confirms its obligations
thereunder. Tenant acknowledges that, as of the date of the Amendment, Tenant (i) is not in
default under the terms of the Lease; (ii) has no defense, set off or counterclaim to the
enforcement by Landlord of the terms of the Lease; and (iii) is not aware of any action or inaction
by Landlord that would constitute an Event of Default by Landlord under the Lease.
Limitation of Landlord Liability. Redress for any claims against Landlord under the
Lease or this Amendment shall only be made against Landlord to the extent of Landlord’s interest in
the property to which the Premises are a part. The obligations of Landlord under the Lease shall
not be personally binding on, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, the general partners thereof or
any beneficiaries, stockholders, employees or agents of Landlord, or the investment manager, and in
no case shall Landlord be liable to Tenant hereunder for any lost profits, damage to business, or
any form of special, indirect or consequential damages.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the day and year
first written above.
