Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Constant Contact, Inc. Form S-1 HTML 1.31M
19: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 5K
2: EX-3.1 EX-3.1 Second Amended and Restated Certificate of 23 89K
Incorporation
3: EX-3.3 EX-3.3 Amended and Restated Bylaws 26 64K
4: EX-10.1 EX-10.1 1999 Stock Option/Stock Issuance Plan 10 47K
9: EX-10.10 EX-10.10 Letter Agreement, Steven R. Wasserman, 2 15K
Dated December 1, 2005
10: EX-10.11 EX-10.11 Letter Agreement, Richard H. Turcott, 5 26K
Dated December 6, 2006
11: EX-10.12 EX-10.12 2007 Executive Team Bonus Plan 4 18K
12: EX-10.14 EX-10.14 Amended and Restated Investors' Rights 33 146K
Agreement, Dated August 9, 2001
13: EX-10.15 EX-10.15 Amended and Restated Preferred Investors' 56 215K
Rights Agreement, Dated May 12, 2006
14: EX-10.16 EX-10.16 Lease Agreement, Dated July 9, 2002 117 351K
15: EX-10.17 EX-10.17 Loan and Security Agreement, Dated 74 250K
February 27, 2003
5: EX-10.2 EX-10.2 Form of Non-Qualified Stock Option 10 43K
Agreement With Executives
6: EX-10.3 EX-10.3 Form of Non-Qualified Stock Option 10 42K
Agreement
7: EX-10.4 EX-10.4 Restricted Stock Purchase Agreement, Dated 7 40K
December 12, 2005
8: EX-10.9 EX-10.9 Letter Agreement, Gail F. Goodman, Dated 2 13K
April 14, 1999
17: EX-23.1 EX-23.1 Consent of Pricewaterhousecoopers LLP HTML 9K
18: EX-23.2 EX-23.2 Consent of Vitale, Caturano & Company, HTML 9K
Ltd.
16: EX-16.1 EX-16.1 Letter From Vitale, Caturano & Company, HTML 9K
Ltd.
‘EX-10.16’ — EX-10.16 Lease Agreement, Dated July 9, 2002
Exhibit Table of Contents
EXHIBIT 10.16
RESERVOIR PLACE II
WALTHAM, MASSACHUSETTS
LEASE
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as Reservoir Place II and with an
address at 1601 Trapelo Road, Waltham, Massachusetts.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
REFERENCE DATA
1.1 Subjects Referred To:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Article:
DATE OF LEASE: July 9, 2002
LANDLORD: Boston Properties Limited Partnership,
a Delaware limited partnership; the
general partner of which is Boston
Properties, Inc., a Delaware
corporation
LANDLORD'S ORIGINAL ADDRESS: c/o Boston Properties, Inc.
111 Huntington Avenue - Suite 300
Boston, Massachusetts 02199-7610
TENANT: Roving Software Incorporated, a
Delaware corporation
TENANT'S ORIGINAL ADDRESS: 117 Kendrick Street, Suite 400
Needham, Massachusetts 02494
Attn: Gail Goodman
LANDLORD'S CONSTRUCTION REPRESENTATIVE: Mark Denman
TENANT'S CONSTRUCTION REPRESENTATIVE: Dmitry Manilov
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OUTSIDE COMPLETION DATE FOR PHASE I July 22, 2002
CONSTRUCTION:
OUTSIDE COMPLETION DATE FOR PHASE II September 15, 2002
CONSTRUCTION:
ESTIMATED COMMENCEMENT DATE: July 12, 2002
RENT COMMENCEMENT DATE: The Commencement Date
TERM OR LEASE TERM (SOMETIMES CALLED Thirty-six (36) calendar months (plus
THE ORIGINAL TERM): the partial month, if any,
immediately following the Commencement
Date), unless extended or sooner
terminated as provided in this Lease.
EXTENSION OPTION: One (1) period of two (2) years, as
provided in and on the terms set forth
in Section 8.20 hereof.
THE SITE: That certain parcel of land located on
Trapelo Road, Waltham, Middlesex
County, Massachusetts, being more
particularly described in Exhibit A
attached hereto.
THE BUILDING: The Building known as Reservoir Place
II, and numbered 1601 Trapelo Road,
Waltham, Massachusetts, located on the
site and containing the Total Rentable
Floor Area set forth below.
THE ADDITIONAL BUILDING: The other Building known as Reservoir
Place I located on the Site and
containing the Total Rentable Floor
Area set forth below.
THE BUILDINGS: The Building and the Additional
Building.
THE COMPLEX: The Building and the Additional
Building together with all parking
areas, garage, and structures and the
Site.
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TENANT'S SPACE: A portion of the second (2nd) floor of
the Building in accordance with the
floor plan annexed hereto as Exhibit D
and incorporated herein by reference.
NUMBER OF PARKING PRIVILEGES: Privileges for parking thirty (30)
automobiles, nine (9) of which are
located in the garage below the
Building, and twenty-one (21) of which
will be located on the outdoor surface
lot.
ANNUAL FIXED RENT: (a) During the Original Term of this
Lease at the annual rate of Two Hundred
Eight Thousand Seven Hundred Sixty-Four
and 48/100 Dollars ($208,764.48)
(being the product of (i) $24.50 and
(ii) the "Rentable Floor Area of
Tenant's Space" (hereinafter defined in
this Section 1.1). The monthly
installment of annual fixed rent during
the Original Term is $17,397.04.
(b) During the extension option period
(if exercised), as determined pursuant
to Section 8.20.
BASE OPERATING EXPENSES: Landlord's Operating Expenses (as
hereinafter defined in Section 2.6) for
calendar year 2002, being January 1,
2002 through December 31, 2002.
BASE TAXES: Landlord's Tax Expenses (as hereinafter
defined in Section 2.7) for fiscal tax
year 2003, being July 1, 2002 through
June 30, 2003.
TENANT ELECTRICITY: Initially as provided in Section 2.8
subject to adjustment as provided in
Section 2.8.
RENTABLE FLOOR AREA OF TENANT'S SPACE
(SOMETIMES ALSO CALLED RENTABLE FLOOR
AREA OF THE PREMISES): 8,521 square feet.
TOTAL RENTABLE FLOOR AREA OF THE 368,257 square feet.
BUILDING:
TOTAL RENTABLE FLOOR AREA OF THE 161,734 square feet.
ADDITIONAL BUILDING:
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TOTAL RENTABLE FLOOR AREA OF THE 529,991 square feet.
BUILDINGS:
PERMITTED USE: General office purposes, including
development, marketing and sale of
software, software support and
training.
INITIAL MINIMUM LIMITS OF TENANT'S $3,000,000.00 combined single limit per
COMMERCIAL GENERAL LIABILITY INSURANCE: occurrence on a per location basis
BROKERS: Insignia/ESG, Inc. and Cushman &
Wakefield
SECURITY DEPOSIT: $104,382.24
GUARANTOR: None
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT B List of Plans for Landlord's Work
EXHIBIT C Landlord's Services
EXHIBIT D Floor Plan
EXHIBIT E Commencement Date Agreement
EXHIBIT F List of Mortgages
1.3 Table of Articles and Sections
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TABLE OF CONTENTS
[Download Table]
Article I REFERENCE DATA
1.1 Subjects Referred To ........................................... 1
1.2 Exhibits ........................................................ 4
1.3 Table of Articles and Sections .................................. 4
Article II BUILDING, PREMISES, TERM AND RENT
2.1 The Premises .................................................... 9
2.2 Rights To Use Common Facilities ................................. 9
2.2.1 Tenant's Parking ................................................ 10
2.3 Landlord's Reservations ......................................... 10
2.4 Habendum ........................................................ 10
2.5 Monthly Fixed Rent Payments ..................................... 11
2.6 Adjustment for Operating Expenses ............................... 11
2.7 Adjustment for Real Estate Taxes ................................ 14
2.8 Tenant Electricity .............................................. 16
Article III CONDITION OF PREMISES; ALTERATIONS
3.1 SUBSTANTIAL COMPLETION .......................................... 17
3.2 OUTSIDE COMPLETION DATE ......................................... 19
3.3 Tenant Alterations and Additions ................................ 20
Article IV LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants .............................................. 22
4.1.1 Services Furnished by Landlord .................................. 22
4.1.2 Additional Services Available to Tenant ......................... 22
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility Repairs...... 23
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4.1.4 Door Signs ...................................................... 23
4.2 Interruptions and Delays in Service and Repairs, etc ............ 23
4.3 Landlord's Indemnity ............................................ 24
Article V TENANT'S COVENANTS
5.1 Payments ........................................................ 24
5.2 Repair and Yield Up ............................................. 24
5.3 Use ............................................................. 25
5.4 Obstructions; Items Visible From Exterior; Rules and
Regulations ................................................ 25
5.5 Safety Appliances; Licenses ..................................... 26
5.6 Assignment; Sublease ............................................ 26
5.7 Indemnity; Insurance ............................................ 31
5.8 Personal Property at Tenant's Risk .............................. 32
5.9 Right of Entry .................................................. 32
5.10 Floor Load; Prevention of Vibrations and Noise .................. 33
5.11 Personal Property Taxes ......................................... 33
5.12 Compliance with Laws ............................................ 33
5.13 Payment of Litigation Expenses .................................. 33
Article VI CASUALTY AND TAKING
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment ... 33
6.2 Uninsured Casualty .............................................. 35
6.3 Eminent Domain-Termination or Restoration ....................... 35
6.4 Eminent Domain Damages Reserved ................................. 36
Article VII DEFAULT
7.1 Tenant's Default ................................................ 37
7.2 Landlord's Default .............................................. 41
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Article VIII MISCELLANEOUS
8.1 Extra Hazardous Use ............................................. 41
8.2 Waiver .......................................................... 41
8.3 Cumulative Remedies ............................................. 42
8.4 Quiet Enjoyment ................................................. 42
8.5 Notice To Mortgagee and Ground Lessor ........................... 43
8.6 Assignment of Rents ............................................. 43
8.7 Surrender ....................................................... 45
8.8 Brokerage ....................................................... 45
8.9 Invalidity of Particular Provisions ............................. 45
8.10 Provisions Binding; etc ......................................... 46
8.11 Recording ....................................................... 46
8.12 Notices ......................................................... 46
8.13 When Lease Becomes Binding ...................................... 47
8.14 Section Headings ................................................ 47
8.15 Rights of Mortgagee ............................................. 47
8.16 Status Report and Financial Statements .......................... 48
8.17 Self-Help ....................................................... 49
8.18 Holding Over .................................................... 49
8.19 Non-Subrogation ................................................. 50
8.20 Extension Option ................................................ 50
8.21 Security Deposit - Letter of Credit ............................. 51
8.22 Late Payment .................................................... 53
8.23 Governing Law ................................................... 53
8.24 Additional Rent ................................................. 53
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8.25 Waiver of Trial by Jury ......................................... 53
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ARTICLE II
BUILDING, PREMISES, TERM AND RENT
2.1 Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
accepts from Landlord, Tenant's Space in the Building excluding exterior
faces of exterior walls, the common stairways and stairwells, elevators and
elevator wells, fan rooms, electric and telephone closets, janitor closets,
freight elevator vestibules, and pipes, ducts, conduits, wires and
appurtenant fixtures serving exclusively or in common other parts of the
Building and if Tenant's Space includes less than the entire rentable area
of any floor, excluding the common corridors, elevator lobbies and toilets
located on such floor.
Tenant's Space with such exclusions is hereinafter sometimes referred to as
the "Premises". The term "Building" means the Building identified on the
first page, and which is the subject of this Lease and being one of the two
(2) Buildings erected on the Site by the Landlord; the term "Site" means
all, and also any part, of the Land described in Exhibit A, plus any
additions or reductions thereto resulting from the change of any abutting
street line and all parking areas and structures. The terms "Property" or
"Complex" means the two (2) Buildings and the Site.
2.2 Subject to Landlord's right to change or alter any of the following in
Landlord's discretion as herein provided, Tenant shall have, as appurtenant
to the Premises, the non-exclusive right to use in common with others, but
not in a manner or extent that would materially interfere with the normal
operation and use of the Building as a multi-tenant office building and
subject to reasonable rules of general applicability to tenants of the
Building from time to time made by Landlord of which Tenant is given
notice: (a) the common lobbies, corridors, stairways, and elevators of the
Building, and the pipes, ducts, shafts, conduits, wires and appurtenant
meters and equipment serving the Premises in common with others, (b) the
loading areas serving the Building and the common walkways and driveways
necessary for access to the Building, and (c) if the Premises include less
than the entire rentable floor area of any floor, the common toilets,
corridors and elevator lobby of such floor. Tenant shall have the right,
during the Term of the Lease, to reserve and use free of charge any and all
of the eight conference rooms in the Building on a first come first serve
basis, along with the other tenants of the Building and Landlord shall
maintain a reservation book for such purposes. Notwithstanding anything to
the contrary herein, Landlord has no obligation to allow any particular
telecommunication service provider to have access to the Building or the
Premises. If Landlord permits such access, Landlord may condition such
access upon the payment to Landlord by the service provider of fees
assessed by Landlord in its sole discretion. Landlord approves Verizon
and/or
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UUNET/Worldcom as Tenant's service provider without assessment of any fees or
charges.
2.2.1 In addition, Landlord shall provide to Tenant monthly privileges in
the number specified in Section 1.1 for the parking of automobiles,
in common with use by other tenants from time to time of the Complex,
and on a first-come, first-served basis, and Landlord shall not be
obligated to furnish stalls or spaces on the Site specifically
designated for Tenant's use. Tenant covenants and agrees that it and
all persons claiming by, through and under it, shall at all times
abide by all reasonable rules and regulations promulgated by Landlord
with respect to the use of the parking areas on the Site. The parking
privileges granted herein are non-transferable except to a permitted
assignee or subtenant as provided in Section 5.6 through Section
5.6.5. Further, Landlord assumes no responsibility whatsoever for
loss or damage due to fire, theft or otherwise to any automobile(s)
parked on the Site or to any personal property therein, however
caused, and Tenant covenants and agrees, upon request from Landlord
from time to time, to notify its officers, employees, agents and
invitees of such limitation of liability. Tenant acknowledges and
agrees that a license only is hereby granted, and no bailment is
intended or shall be created.
2.3 Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use: (a) to install, use, maintain, repair,
replace and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, and (b) to alter or
relocate any other common facility, provided that substitutions are
substantially equivalent or better. Installations, replacements and
relocations referred to in clause (a) above shall be located so far as
practicable in the central core area of the Building, above ceiling
surfaces, below floor surfaces or within perimeter walls of the Premises.
Except in the case of emergencies, Landlord agrees to use its best efforts
to give Tenant reasonable advance notice of any of the foregoing activities
which require work in the Premises.
2.4 The Term of this Lease shall be the period specified in Section 1.1 hereof
as the "Lease Term", unless sooner terminated or extended as herein
provided. The Lease Term hereof shall commence on, and the Commencement
Date shall be, the later to occur of:
(a) The date on which the Phase I Construction is substantially complete,
as defined in Section 3.1 hereof, (including obtaining a temporary or
permanent certificate of occupancy from the applicable governmental
authority, to the extent required by law, for occupancy by Tenant of
the Premises for the Permitted Use ("Certificate of Occupancy"),
provided however, that if Landlord obtains a temporary Certificate of
Occupancy, Landlord shall use due diligence to obtain a permanent
Certificate of
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Occupancy promptly thereafter), which date is estimated to occur on or about
July 12, 2002; or
(b) July 12, 2002.
As soon as may be convenient after the Commencement Date has been
determined, Landlord and Tenant agree to join with each other in the
execution, in the form of Exhibit E hereto, of a written Commencement Date
Agreement in which the Commencement Date and specified Lease Term of this
Lease shall be stated. If Tenant shall fail to execute such Agreement, the
Commencement Date and Lease Term shall be as reasonably determined by
Landlord in accordance with the terms of this Lease.
2.5 Tenant agrees to pay to Landlord, or as directed by Landlord, at P.O. Box
3557, Boston, MA 02241-3557 or at such other place as Landlord shall from
time to time designate by notice, on the Commencement Date (defined in
Section 1.1 hereof) and thereafter monthly, in advance, on the first day of
each and every calendar month during the Original Term, a sum equal to one
twelfth (1/12th) of the Annual Fixed Rent (sometimes hereinafter referred
to as "fixed rent") and on the first day of each and every calendar month
during each extension option period (if exercised), a sum equal to one
twelfth (1/12th) of the annual fixed rent as determined in Section 8.20 for
the applicable extension option period.
Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord
at such rate on a pro rata basis, and, if the Commencement Date is a day
other than the first day of a calendar month, the first payment which
Tenant shall make to Landlord shall be a payment equal to a proportionate
part of such monthly Annual Fixed Rent for the partial month from the
Commencement Date to the first day of the succeeding calendar month.
Other charges payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion; and other provisions of
this Lease calling for monthly payments shall be read as incorporating this
undertaking by Tenant.
The Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by Tenant to Landlord, without offset, deduction or
abatement except as otherwise specifically set forth in this Lease.
2.6 "Landlord's Operating Expenses" means the cost of operation of the Building
and the Site which shall exclude costs of special services rendered either
to Tenant or to other tenants for which a separate charge is made and
capital expenditures, other than the Permitted Capital Expenditures, as
defined below, but shall include, without limitation, the following:
premiums for insurance carried with respect to the Building and the Site
(including, without limitation, liability insurance,
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insurance against loss in case of fire or casualty and insurance of monthly
installments of fixed rent and any additional rent which may be due under
this Lease and other leases of space in the Building for not more than 12
months in the case of both fixed rent and additional rent and if there be
any first mortgage of the Property, including such insurance as may be
required by the holder of such first mortgage); compensation and all fringe
benefits, workmen's compensation insurance premiums and payroll taxes paid
to, for or with respect to all persons engaged in the operating,
maintaining, managing, insuring or cleaning of the Building or Site, water,
sewer, electric, gas, oil and telephone charges (excluding heating,
ventilating and air conditioning, electricity and utility charges
separately chargeable to tenants); cost of building and cleaning supplies
and equipment; cost of maintenance, cleaning and repairs (other than
repairs not properly chargeable against income or reimbursed from
contractors under guarantees); cost of snow removal and care of
landscaping; payments under service contracts with independent contractors;
payments by the Landlord to the town in which the Complex is located
relating to traffic safety, fire safety, and other governmental services
and programs; management fees at reasonable rates consistent with the type
of occupancy and the service rendered; and all other reasonable and
necessary expenses paid in connection with the operation, cleaning,
management, insuring and maintenance of the Building and the Site and
properly chargeable against income; provided, however, there shall be
included (a) depreciation for capital expenditures ("Permitted Capital
Expenditures") made by Landlord (i) to reduce operating expenses if
Landlord shall have reasonably determined that the annual reduction in
operating expenses shall exceed depreciation therefor or (ii) to comply
with applicable laws, rules, regulations, requirements, statutes,
ordinances, by-laws and court decisions of all public authorities which are
now or hereafter in force (herein collectively called "Legal
Requirements"); plus (b) in the case of both (i) and (ii) an interest
factor, reasonably determined by Landlord, as being the interest rate then
charged for long term mortgages by institutional lenders on like properties
within the locality in which the Building is located; depreciation in the
case of both (i) and (ii) shall be determined by dividing the original cost
of such Permitted Capital Expenditure by the number of years of useful life
of the Permitted Capital Expenditure acquired and the useful life shall be
reasonably determined by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of acquisition of
the Permitted Capital Expenditure; and further provided, however, if
Landlord reasonably concludes on the basis of engineering estimates that a
particular Permitted Capital Expenditure will effect savings in other
Operating Expenses, including, without limitation, energy related costs,
and that such projected savings will, on an annual basis ("Projected Annual
Savings"), exceed the annual depreciation therefor, then and in such event
the amount of depreciation for such Permitted Capital Expenditure shall be
increased to an amount equal to the Projected Annual Savings; and in such
circumstance, the increased depreciation (in the amount of the Projected
Annual Savings) shall be made for such period of time as it would take to
fully amortize the cost of the item in question, together
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with interest thereon at the interest rate as aforesaid in equal monthly
payments, each in the amount of 1/12th of the Projected Annual Savings,
with such payment to be applied first to interest and the balance to
principal. Landlord hereby agrees that there shall be no duplication of
costs in Landlord's Operating Expenses.
"Operating Expenses Allocable to the Premises" shall mean (a) the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the Total
Rentable Floor Area of the Building plus (b) the same proportion of
Landlord's Operating Expenses for and pertaining to the Site as the
Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor
Area of the Buildings.
"Base Operating Expenses" is hereinbefore defined in Section 1.1. Base
Operating Expenses shall not include market-wide cost increases due to
extraordinary circumstances, including but not limited to, Force Majeure
(as defined in Section 6.1), boycotts, strikes, conservation surcharges,
embargoes or shortages.
"Base Operating Expenses Allocable to the Premises" means (i) the same
proportion of Base Operating Expenses for and pertaining to the Building as
the Rentable Floor Area of Tenant's Space bears to the Rentable Floor Area
of the Building plus (ii) the same proportion of Base Operating Expenses
for and pertaining to the Site as the Rentable Floor Area of Tenant's Space
bears to the Rentable Floor Area of the Buildings.
Beginning with calendar year 2003, if with respect to any calendar year
falling within the Term, or fraction of a calendar year falling within the
Term at the beginning or end thereof, the Operating Expenses Allocable to
the Premises for a full calendar year exceed Base Operating Expenses
Allocable to the Premises, or for any such fraction of a calendar year
exceed the corresponding fraction of Base Operating Expenses Allocable to
the Premises, then Tenant shall pay to Landlord, as Additional Rent, the
amount of such excess. Such payments shall be made at the times and in the
manner hereinafter provided in this Section 2.6. The Base Operating
Expenses Allocable to the Premises do not and the Operating Expenses
Allocable to the Premises shall not include any costs in respect of
electricity and HVAC, provision for the payment of which is made in Section
2.8 of this Lease. Landlord shall provide Tenant with a statement, prepared
in accordance with the following paragraph, of Base Operating Expenses
Allocable to the Premises at the same time as operating cost statements for
such calendar year are provided to other tenants of the Building.
Not later than one hundred twenty (120) days after the end of the first
calendar year or fraction thereof ending December 31, 2003 and on December
31 of each succeeding calendar year during the Term or fraction thereof at
the end of the Term, Landlord shall render Tenant a statement in reasonable
detail and according
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to usual accounting practices certified by a representative of Landlord,
showing for the preceding calendar year or fraction thereof, as the case
may be, Landlord's Operating Expenses and Operating Expenses Allocable to
the Premises. Said statement to be rendered to Tenant shall also show for
the preceding year or fraction thereof as the case may be the amounts of
operating expenses already paid by Tenant as additional rent, and the
amount of operating expenses remaining due from, or overpaid by, Tenant for
the year or other period covered by the statement. Within thirty (30) days
after the date of delivery of such statement, Tenant shall pay to Landlord
the balance of the amounts, if any, required to be paid pursuant to the
above provisions of this Section 2.6 with respect to the preceding year or
fraction thereof, or Landlord shall credit any amounts due from it to
Tenant pursuant to the above provisions of this Section 2.6 against (i)
monthly installments of fixed rent next thereafter coming due or (ii) any
sums then due from Tenant to Landlord under this Lease (or refund such
portion of the overpayment as aforesaid if the Term has ended and Tenant
has no further obligation to Landlord).
In addition, commencing as of January, 2003, Tenant shall make payments
monthly on account of Tenant's share of increases in Landlord's Operating
Expenses anticipated for the then current year at the time and in the
fashion herein provided for the payment of Annual Fixed Rent. The amount to
be paid to Landlord shall be an amount reasonably estimated annually by
Landlord to be sufficient to cover, in the aggregate, a sum equal to
Tenant's share of such increases in Landlord's Operating Expenses for each
calendar year during the Term.
If the Building is not at least 95% occupied during any calendar year,
including calendar year 2002, Landlord's Operating Expenses shall be
determined as if the Building had been 95% occupied during that calendar
year and Base Operating Expenses shall also be determined as if the
Building had been 95% occupied. The extrapolation of Landlord's Operating
Expenses under this Section shall be performed by appropriately adjusting
the cost of those components of Landlord's Operating Expenses that are
impacted by changes in the occupancy of the Building.
2.7 If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term beginning with the July 1, 2003-June 30, 2004 Tax Year,
Landlord's Tax Expenses Allocable to the Premises as hereinafter defined
for a full Tax Year exceed Base Taxes Allocable to the Premises, or for any
such fraction of a Tax Year exceed the corresponding fraction of Base Taxes
Allocable to the Premises then, on or before the thirtieth (30th) day
following receipt by Tenant of the certified statement referred to below in
this Section 2.7, then Tenant shall pay to Landlord, as Additional Rent,
the amount of such excess. In addition, payments by Tenant on account of
increases in real estate taxes anticipated for the then current year shall
be made monthly at the time and in the fashion herein provided
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for the payment of fixed rent commencing July 1, 2003. The amount so to be
paid to Landlord shall be an amount reasonably estimated by Landlord to be
sufficient to provide Landlord, in the aggregate, a sum equal to Tenant's
share of such increases, at least ten (10) days before the day on which
such payments by Landlord would become delinquent. Landlord shall provide
Tenant with a statement, prepared in accordance with the following
sentence, of Base Taxes Allocable to the Premises at the same time as tax
statements for such Tax Year are provided to other tenants of the Building.
Not later than one hundred twenty (120) days after Landlord's Tax Expenses
Allocable to the Premises are determined for the first such Tax Year or
fraction thereof and for each succeeding Tax Year or fraction thereof
during the Term, Landlord shall render Tenant a statement in reasonable
detail certified by a representative of Landlord showing for the preceding
year or fraction thereof, as the case may be, real estate taxes on the
Building and the Site and abatements and refunds of any taxes and
assessments. Expenditures for legal fees and for other expenses incurred in
obtaining the tax refund or abatement may be charged against the tax refund
or abatement before the adjustments are made for the Tax Year. Said
statement to be rendered to Tenant shall also show for the preceding year
or fraction thereof as the case may be the amounts of real estate taxes
already paid by Tenant as Additional Rent, and the amount of real estate
taxes remaining due from, or overpaid by, Tenant for the year or other
period covered by the statement. Within thirty (30) days after the date of
delivery of the foregoing statement, Tenant shall pay to Landlord the
balance of the amounts, if any, required to be paid pursuant to the above
provisions of this Section 2.7 with respect to the preceding year or
fraction thereof, or Landlord shall credit monthly installments of fixed
rent next thereafter coming due, or refund such overpayment if the Term has
ended and Tenant has no further obligation to Landlord.
Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning July 1 each year
during the Term or if the appropriate governmental tax fiscal period
shall begin on any date other than July 1, such other date. If during
the Lease Term the Tax Year is changed by applicable law to less than
a full 12-month period, the Base Taxes and Base Taxes Allocable to the
Premises shall each be proportionately reduced.
(ii) "Landlord's Tax Expenses Allocable to the Premises" shall mean (a) the
same proportion of Landlord's Tax Expenses for and pertaining to the
Building as the Rentable Floor Area of Tenant's Space bears to the
Total Rentable Floor Area of the Building plus (b) the same proportion
of Landlord's Tax Expenses for and pertaining to the Site as the
Rentable Floor Area of Tenant's Space bears to the Total Rentable
Floor Area of the Buildings.
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(iii) "Landlord's Tax Expenses" with respect to any Tax Year means the
aggregate real estate taxes on the Building and Site with respect to
that Tax Year, reduced by any abatement receipts with respect to that
Tax Year.
(iv) "Base Taxes" is hereinbefore defined in Section 1.1.
(v) "Base Taxes Allocable to the Premises" means (i) the same proportion
of Base Taxes for and pertaining to the Building as the Rentable Floor
Area of Tenant's Space bears to the Total Rentable Floor Area of the
Building, plus (ii) the same proportion of Base Taxes for and
pertaining to the Site as the Rentable Floor Area of Tenant's Space
bears to the Total Rentable Floor Area of the Buildings.
(vi) "Real estate taxes" means all taxes and special assessments of every
kind and nature assessed by any governmental authority on the Building
or Site which the Landlord shall become obligated to pay because of or
in connection with the ownership, leasing and operation of the Site,
the Building and the Property and reasonable expenses of any formal or
informal proceedings for negotiation or abatement of taxes. The amount
of special taxes or special assessments to be included shall be
limited to the amount of the installment (plus any interest, other
than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in respect of which
such taxes are being determined. There shall be excluded from such
taxes all income, estate, succession, inheritance and transfer taxes;
provided, however, that if at any time during the Term the present
system of ad valorem taxation of real property shall be changed so
that in lieu of the whole or any part of the ad valorem tax on real
property there shall be assessed on Landlord a capital levy or other
tax on the gross rents received with respect to the Site or Building,
or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment levy or charge distinct
from any now in effect in the jurisdiction in which the Site or
Building are located) measured by or based, in whole or in part, upon
any such gross rents, then any and all of such taxes, assessments,
levies or charges, to the extent so measured or based, shall be deemed
to be included within the term "real estate taxes" but only to the
extent that the same would be payable if the Site and Buildings were
the only property of Landlord.
2.8 Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share (hereinafter defined) of the cost incurred by the Landlord in
furnishing electricity and heating, ventilating and air conditioning
("HVAC") to the Building and the Site, including common areas and
facilities and space occupied by tenants, (but expressly excluding utility
charges separately chargeable to tenants for additional or special services
and excluding electricity for the HVAC unit serving the
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Premises exclusively which shall be measured by a separate submeter
pursuant to Exhibit C), and Tenant shall pay on account thereof, at the
time that monthly installments of Annual Fixed Rent are due and payable, as
Additional Rent, an amount equal to 1/12th (prorated for any partial month)
of the amount estimated by Landlord from time to time as the Tenant's
Proportionate Share of the annual cost thereof. If with respect to any
calendar year falling within the Term or fraction of a calendar year
falling within the Term at the beginning or end thereof, the Tenant's
Proportionate Share of the cost of furnishing electricity and HVAC to the
Building and the Site exceeds the amounts payable on account thereof, then
Tenant shall pay to Landlord, as Additional Rent, on or before the
thirtieth (30th) day following receipt by Tenant of the statement referred
to below in this Section 2.8, Tenant's Proportionate Share of the amount of
such excess. For and with respect to the electricity and HVAC of the
Building, the Tenant's Proportionate Share shall be a fraction, the
numerator of which is the Rentable Floor Area of Tenant's Space and the
denominator of which is the Total Rentable Floor Area of the Building, and
for and with respect to the electricity for the Site the Tenant's
Proportionate Share shall be a fraction, the numerator of which is the
Rentable Floor Area of Tenant's Space and the denominator of which is the
Total Rentable Floor Area of the Buildings.
Not later than one hundred twenty (120) days after the end of the first
calendar year or fraction thereof ending December 31 and of each succeeding
calendar year during the Term or fraction thereof at the end of the Term,
Landlord shall render Tenant a reasonably detailed accounting certified by
a representative of Landlord showing for the preceding calendar year, or
fraction thereof, as the case may be, the costs of furnishing electricity
and HVAC to the Building and the Site. Said statement to be rendered to
Tenant also shall show for the preceding year or fraction thereof, as the
case may be, the amount already paid by Tenant on account of electricity
and HVAC, and the amount remaining due from, or overpaid by, Tenant for the
year or other period covered by the statement.
ARTICLE III
CONDITION OF PREMISES; ALTERATIONS
3.1 SUBSTANTIAL COMPLETION
(A) Landlord shall perform the work described on Exhibit B annexed hereto
and described therein as the Phase I Construction and the Phase II
Construction (collectively, "Landlord's Work"); provided, however, that the
Landlord shall have no responsibility for the installation or connection of
Tenant's computer, telephone, other communication equipment, systems or
wiring. It is agreed that (i) construction of the Phase I Construction is
intended to be "turnkey" and will be completed at Landlord's sole cost and
expense (subject to the terms of Section 3.1(B) below) and (ii) subject to
Section 3.2.B, Tenant shall, as Additional Rent,
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after the Phase II Construction is completed, reimburse Landlord upon
demand an amount ("Phase II Contribution") equal to the lesser of (x)
one-half (1/2) of the cost of the Phase II Construction or (y) Two Thousand
and 00/100 ($2,000.00) Dollars, and Landlord shall be responsible for the
balance of the costs of the Phase II Construction. Landlord's Work shall be
performed using Building Standard methods, materials and finishes. Landlord
and Tenant hereby agree that that certain letter agreement dated June 27,
2002 between Landlord and Tenant relating to reimbursement of certain
construction related costs shall upon the full execution and delivery of
this Lease be of no further force or effect.
(B) If Tenant shall request any revisions to Landlord's Work, Landlord
shall have such revisions prepared at Tenant's sole cost and expense and
Tenant shall reimburse Landlord for the cost of preparing any such
revisions to the Landlord's Work, plus any applicable state sales or use
tax thereon, upon demand. Promptly upon completion of the revisions,
Landlord shall notify Tenant in writing of the increased cost in Landlord's
Work, if any, resulting from such revisions to the Landlord's Work. Tenant,
within one business day shall notify Landlord in writing whether it desires
to proceed with such revisions. In the absence of such written
authorization, Landlord shall have the option to continue to work on the
Premises disregarding the requested revision. Tenant shall be responsible
for any Tenant Delay in completion of the Premises resulting from any
revisions to the Landlord's Work. If such revisions result in an increase
in the cost of Landlord's Work, such increased costs plus any applicable
state sales or use tax thereon, shall be payable by Tenant upon demand.
Notwithstanding anything herein to the contrary, all revisions to the
Landlord's Work shall be subject to the approval of Landlord.
(C) Subject to delays due to Force Majeure, as defined in Section 6.1,
Landlord shall use reasonable speed and diligence in the performance of
Landlord's Work, but Tenant shall have no claim against Landlord for
failure so to complete construction of Landlord's Work in the Premises,
except for the right to terminate this Lease, without further liability to
either party, in accordance with the provisions hereinafter specified in
Section 3.2.
The Phase I Construction shall be treated as having been substantially
completed on the later of:
(a) The date on which the Phase I Construction, together with common
facilities for access and services to the Premises, has been completed
(or would have been completed except for Tenant Delay) except for
items of work and adjustment of equipment and fixtures which can be
completed after occupancy has been taken without causing substantial
interference with Tenant's use of the Premises (i.e. so-called "punch
list" items) and items of work for which there is a long lead time in
obtaining the materials therefore or which are specially or
specifically manufactured, produced or
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milled for the work in or to the Premises and require additional time
for receipt or installation ("long lead" items), or
(b) The date when Landlord has received a Certificate of Occupancy, as
defined in Section 2.4(a).
The Phase II Construction shall be performed promptly after the substantial
completion of the Phase I Construction.
Landlord shall complete as soon as conditions practically permit all items
and work excepted by Section 3.1(C)(a) above, and Tenant shall cooperate
with Landlord in providing access as may be required to complete such work
in a normal manner. Landlord shall permit Tenant access for installing
Tenant's trade fixtures in portions of the Premises prior to substantial
completion when it can be done without material interference with remaining
work or with the maintenance of harmonious labor relations. In the event of
any dispute as to the date on which the Phase I Construction has been
completed as described in subsection 3.1(B)(a) above, the reasonable
determination of Landlord's architect as to such date shall be deemed
conclusive and binding on both Landlord and Tenant.
Tenant agrees that no delay by it, or anyone employed by it, in performing
work to prepare the Premises for occupancy (including, without limitation,
the work in installing Tenant's trade fixtures) (collectively a "Tenant
Delay") shall delay commencement of the Term or the obligation to pay rent,
regardless of the reason for such delay or whether or not it is within the
control of Tenant or any such employee, and the Phase I Construction shall
be deemed completed as of the date when the same would have been
substantially completed except for Tenant Delay, as determined by Landlord
in the exercise of its good faith business judgment. Nothing contained in
this paragraph shall limit or qualify or prejudice any other covenants,
agreements, terms, provisions and conditions contained in this Lease.
3.2 A. If Landlord shall have failed substantially to complete the Phase I
Construction in the Premises described in Exhibit B on or before the
Outside Completion Date for Phase I Construction as defined in Section 1.1
hereof (which date shall be extended automatically for such periods of time
as Landlord is prevented from proceeding with or completing the same by
reason of Force Majeure as defined in Section 6.1) Tenant shall have the
right to terminate this Lease by giving notice ("Termination Notice") to
Landlord of Tenant's desire to do so before such completion and after the
Outside Completion Date for the Phase I Construction (as so extended) and
by paying to Landlord, at the time that Tenant gives such Termination
Notice, the sum of Thirty Thousand and 00/100 ($30,000.00) Dollars
("Termination Fee"); and, upon the giving of such Termination Notice and
the payment of such Termination Fee, the term of this Lease shall cease and
come to an end without further liability or obligation on the part of
either party; and such right of termination shall be Tenant's sole and
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exclusive remedy for Landlord's failure so to complete the Phase I
Construction within such time. Each day of Tenant Delay shall be deemed
conclusively to cause an equivalent day of delay by Landlord in
substantially completing the Phase I Construction pursuant to Section 3.1,
and thereby automatically extend for each such equivalent day of delay the
date of the Outside Completion Date for the Phase I Construction. If Tenant
fails to pay the Termination Fee at the time Tenant gives such Termination
Notice, then Tenant's Termination Notice shall be null and void and of no
force or effect.
B. In addition, if Landlord shall have failed to obtain a permanent
Certificate of Occupancy on or before the expiration of the temporary
Certificate of Occupancy, as such temporary Certificate of Occupancy may be
extended, and if such failure is not due to the acts or omissions of
Tenant, Tenant's agents, contractors or employees, then Tenant shall have
the right to terminate this Lease by giving notice ("CO Termination
Notice") to Landlord of Tenant's desire to do so before Landlord obtains
the permanent Certificate of Occupancy and, upon the giving of such CO
Termination Notice, the term of this Lease shall cease and come to an end
without further liability or obligation on the part of either party; and
such right of termination shall be Tenant's sole and exclusive remedy for
Landlord's failure so to obtain a permanent Certificate of Occupancy on or
before the expiration of the temporary Certificate of Occupancy, as it may
be extended.
C. If Landlord shall have failed substantially to complete the Phase II
Construction in the Premises described in Exhibit B on or before the
Outside Completion Date for the Phase II Construction as defined in Section
1.1 hereof (which date shall be extended automatically for such periods of
time as Landlord is prevented from proceeding with or completing the same
by reason of Force Majeure as defined in Section 6.1) then Tenant shall
have no obligation to pay to Landlord the Phase II Contribution, as defined
in Section 3.1(A), which shall be Tenant's sole and exclusive remedy for
Landlord's failure so to complete the Phase II Construction within such
time. Each day of Tenant Delay shall be deemed conclusively to cause an
equivalent day of delay by Landlord in substantially completing the Phase
II Construction pursuant to Section 3.1, and thereby automatically extend
for such equivalent day of delay the date of the Outside Completion Date
for the Phase II Construction.
3.3 This Section 3.3 shall apply before and during the Term. All construction
work required or permitted by this Lease shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances,
rules, regulations, statutes, by-laws, court decisions, and orders and
requirements of all public authorities ("Legal Requirements") and all
Insurance Requirements (as defined in this Section 3.3 hereof). All of
Tenant's work shall be coordinated with any work being performed by or for
Landlord and in such manner as to maintain harmonious labor relations. Each
party may inspect the work of the other at reasonable times and shall
promptly give notice of observed defects. Each party
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authorizes the other to rely in connection with design and construction
upon approval and other actions on the party's behalf by any Construction
Representative of the party named in Section 1.1 or any person hereafter
designated in substitution or addition by notice to the party relying.
Except as otherwise provided in Article IV, the work required of Landlord
pursuant to this Article III, if any, shall be deemed approved by Tenant
when Tenant commences occupancy of the Premises for the Permitted Use,
except for items which are then uncompleted (including punch list items and
long lead items) and as to which Tenant shall have given Landlord notice
prior to such date. Tenant shall not make alterations and additions to
Tenant's space except in accordance with plans and specifications therefor
first approved by Landlord, which approval shall not be unreasonably
withheld or delayed. However, Landlord's determination of matters relating
to aesthetic issues relating to alterations, additions or improvements
which are visible outside the Premises shall be in Landlord's sole
discretion. Without limiting such standard Landlord shall not be deemed
unreasonable for withholding approval of any alterations or additions
(including, without limitation, any alterations or additions to be
performed by Tenant under Section 3.1) which (a) involve or, in Landlord's
opinion, might affect any structural or exterior element of the Building,
any area or element outside of the Premises, or any facility serving any
area of the Building outside of the Premises, or (b) will delay completion
of the Premises or Building, or (c) will require unusual expense to readapt
the Premises to normal office use on Lease termination or increase the cost
of construction or of insurance or taxes on the Building or of the services
called for by Section 4.1 unless Tenant first gives assurance acceptable to
Landlord for payment of such increased cost and that such readaptation will
be made prior to such termination without expense to Landlord, or (d) are
inconsistent, in Landlord's judgment, with alterations satisfying
Landlord's standards for new alterations in the Building. Landlord's review
and approval of any such plans and specifications and consent to perform
work described therein shall not be deemed an agreement by Landlord that
such plans, specifications and work conform with applicable Legal
Requirements and requirements of insurers of the Building (herein cared
"Insurance Requirements") nor deemed a waiver of Tenant's obligations under
this Lease with respect to applicable Legal Requirements and Insurance
Requirements nor impose any liability or obligation upon Landlord with
respect to the completeness, design sufficiency or compliance of such
plans, specifications and work with applicable Legal Requirements and
Insurance Requirements. Within 30 days after receipt of an invoice from
Landlord, Tenant shall pay to Landlord, as a fee for Landlord's review of
any plans or work (excluding any review respecting initial improvements),
as Additional Rent: (i) actual out-of-pocket cost of such review, plus (ii)
third party expenses incurred by Landlord to review Tenant's plans and
Tenant's work. All alterations and additions shall be part of the Building
unless and until Landlord shall specify the same for removal pursuant to
Section 5.2. All of Tenant's alterations and additions and installation of
furnishings shall be coordinated with any work being performed by Landlord
and
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in such manner as to maintain harmonious labor relations and not to damage
the Buildings or Site or interfere with construction or operation of the
Buildings and other improvements to the Site and, except for installation
of furnishings, shall be performed by Landlord's general contractor or by
contractors or workers first approved by Landlord. Except for work by
Landlord's general contractor, Tenant, before its work is started, shall
secure all licenses and permits necessary therefor; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them and
security satisfactory to Landlord protecting Landlord against liens arising
out of the furnishing of such labor and material; and cause each contractor
to carry workmen's compensation insurance in statutory amounts covering all
the contractor's and subcontractor's employees and commercial general
liability insurance or comprehensive general liability insurance with a
broad form comprehensive liability endorsement with such limits as Landlord
may reasonably require, but in no event less than $3,000,000.00 combined
single limit per occurrence on a per location basis (all such insurance to
be written in companies approved by Landlord and naming and insuring
Landlord and Landlord's managing agent as additional insureds and insuring
Tenant as well as the contractors), and to deliver to Landlord certificates
of all such insurance. Tenant agrees to pay promptly when due the entire
cost of any work done on the Premises by Tenant, its agents, employees, or
independent contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach to the
Premises or the Buildings or the Site and immediately to discharge any such
liens which may so attach. Tenant shall pay, as additional rent, 100% of
any real estate taxes on the Complex which shall, at any time after
commencement of the Term, result from any alteration, addition or
improvement to the Premises made by Tenant.
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord covenants:
4.1.1 To furnish services, utilities, facilities and supplies set forth in
Exhibit C equal to those customarily provided by landlords in high
quality buildings in the Boston West Suburban Market subject to
escalation reimbursement in accordance with Section 2.6.
4.1.2 To furnish, at Tenant's expense, reasonable additional Building
operation services which are usual and customary in similar office
buildings in the Boston West Suburban Market upon reasonable advance
request of Tenant at reasonable and equitable rates from time to time
established by Landlord.
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4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs to the
roof, exterior walls, floor slabs and common areas and facilities and
all water, sewer, electrical, sprinkler, HVAC and other Building
systems which serve the Building generally as may be necessary to keep
them in serviceable condition and (ii) to maintain the Building
(exclusive of Tenant's responsibilities under this Lease) in a first
class manner comparable to the maintenance of similar properties in
the Boston West Suburban Market.
4.1.4 To provide and install, at Landlord's expense for the initial
installation (all changes thereafter at Tenant's expense), letters or
numerals on doors in the Premises and Tenant identification on the
Building directory in the lobby of the Building to identify Tenant's
official name and Building address; all such letters and numerals
shall be in the building standard graphics and no others shall be used
or permitted on the Premises.
4.2 Landlord shall not be liable to Tenant for any compensation or reduction of
rent by reason of inconvenience or annoyance or for loss of business
arising from the necessity of Landlord or its agents entering the Premises
for any of the purposes in this Lease authorized, or for repairing the
Premises or any portion of the Building or Site however the necessity may
occur. In case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or furnishing any services or performing any
other covenant or duty to be performed on Landlord's part, by reason of any
cause reasonably beyond Landlord's control, including without limitation
strike, lockout, breakdown, accident, order or regulation of or by any
Governmental authority, or failure of supply, or inability by the exercise
of reasonable diligence to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any
cause due to any act or neglect of Tenant or Tenant's servants, agents,
employees, licensees or any person claiming by, through or under Tenant, or
other causes reasonably beyond Landlord's control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in
Article VI, shall Tenant be entitled to any abatement or reduction of rent
by reason thereof, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or constructive, total or
partial, eviction from Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause
thereof. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
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4.3 Subject to the limitations on Landlord's liability set forth in this Lease,
and subject to Section 8.19, Landlord agrees to indemnify, defend and save
harmless Tenant from and against any claim arising from any accident,
injury or damage occurring in the Premises, in the Building or on the
Property after the date that possession of the Premises is first delivered
to Tenant and until the expiration or earlier termination of the Lease
Term, to the extent that such accident, injury or damage results from the
negligence or willful misconduct of Landlord or Landlord's agents,
employees or contractors. Landlord shall have the right, without Tenant's
approval, to settle any litigation arising within the scope of Landlord's
indemnity, provided that Tenant is not required to pay any portion of such
settlement.
ARTICLE V
TENANT'S COVENANTS
Tenant covenants during the term and such further time as Tenant occupies
any part of the Premises:
5.1 To pay when due all fixed rent and additional rent and all charges for
utility services rendered to the Premises (except as otherwise provided in
Exhibit C) and, as further additional rent, all charges for additional
services rendered pursuant to Section 4.1.2.
5.2 Except as otherwise provided in Article VI and Section 4.1.3 to keep the
Premises in good order, repair and condition, reasonable wear and tear only
excepted (the parties hereby acknowledging that the carpeting in the
Premises presently has significant gaps in the seams which Tenant shall not
be obligated to repair hereunder), and all glass in windows (except glass
in exterior walls unless the damage thereto is attributable to Tenant's
negligence or misuse) and doors of the Premises whole and in good condition
with glass of the same type and quality as that injured or broken, damage
by fire or taking under the power of eminent domain only excepted, and at
the expiration or termination of this Lease peaceably to yield up the
Premises all construction, work, improvements, and all alterations and
additions thereto in good order, repair and condition, reasonable wear and
tear only excepted, first removing (i) all goods and effects of Tenant,
(ii) the wiring for Tenant's computer, telephone and other communication
systems and equipment, unless Landlord, by notice to Tenant given at least
ten (10) days before such expiration or termination, specifies that such
wiring need not be removed, and (iii) to the extent specified by Landlord
by notice to Tenant given at least ten (10) days before such expiration or
termination, all alterations and additions made by Tenant and all
partitions, and repairing any damages caused by such removal and restoring
the Premises and leaving them clean and neat. Notwithstanding the
foregoing, Landlord agrees to make such election at the time that Landlord
approves Tenant's plans for any such alterations, etc., if Tenant requests
in writing that Landlord make such election at the time that Tenant
requests Landlord's
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approval of such alterations, etc. Tenant shall not permit or commit any
waste, and Tenant shall be responsible for the cost of repairs which may be
made necessary by reason of damage to common areas in the Building, to the
Site or to the other building caused by Tenant, Tenant's agents, employees,
contractors, sublessees, licensees, concessionaires or invitees. Tenant
shall maintain all its equipment, furniture and furnishings in good order
and repair. Landlord agrees to assign any warranties to Tenant for
enforcement which Landlord receives in connection with the HVAC unit
installed by Landlord as part of the Landlord's Work.
5.3 To use the Premises for the Permitted Uses only, and not to injure or
deface the Premises, Building, the Additional Building, the Site or any
other part of the Complex nor to permit in the Premises or on the Site any
auction sale, vending machine, or inflammable fluids or chemicals, or
nuisance, or the emission from the Premises of any objectionable noise or
odor, nor to use or devote the Premises or any part thereof for any purpose
other than the Permitted Uses, nor any use thereof which is inconsistent
with the maintenance of the Building as an office building of the first
class in the quality of its maintenance, use and occupancy, or which is
improper, offensive, contrary to law or ordinance or liable to invalidate
or increase the premiums for any insurance on the Building or its contents
or liable to render necessary any alteration or addition to the Building.
Further, (i) Tenant shall not, nor shall Tenant permit its employees,
invitees, agents, independent contractors, contractors, assignees or
subtenants to, keep, maintain, store or dispose of (into the sewage or
waste disposal system or otherwise) or engage in any activity which might
produce or generate any substance which is or may hereafter be classified
as a hazardous material, waste or substance (collectively "Hazardous
Materials") (other than standard quantities of customary office supplies
and cleaning materials kept, used and disposed of in accordance with all
applicable laws), under federal, state or local laws, rules and
regulations, including, without limitation, 42 U.S.C. Section 6901 et seq.,
42 U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C.
Section 1802 et seq. and Massachusetts General Laws, Chapter 21E and the
rules and regulations promulgated under any of the foregoing, as such laws,
rules and regulations may be amended from time to time (collectively
"Hazardous Materials Laws"), (ii) Tenant shall immediately notify Landlord
of any incident in, on or about the Premises, the Building or the Site that
would require the filing of a notice under any Hazardous Materials Laws,
(iii) Tenant shall comply and shall cause its employees, invitees, agents,
independent contractors, contractors, assignees and subtenants to comply
with each of the foregoing and (iv) Landlord shall have the right to make
such inspections (including testing) as Landlord shall elect from time to
time to determine that Tenant is complying with the foregoing.
5.4 Not to obstruct in any manner any portion of the Building not hereby leased
or any portion thereof or of the other building or of the Site used by
Tenant in common with others; not without prior consent of Landlord to
permit the painting or
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placing of any signs, curtains, blinds, shades, awnings, aerials or
flagpoles, or the like, visible from outside the Premises; and to comply
with all reasonable Rules and Regulations now or hereafter made by
Landlord, of which Tenant has been given notice, for the care and use of
the Building and Site and their facilities and approaches; Landlord shall
not be liable to Tenant for the failure of other occupants of the Buildings
to conform to such rules and regulations. Notwithstanding anything to the
contrary in this Lease contained, Landlord agrees that it will not enforce
said Rules and Regulations against Tenant in a discriminatory or arbitrary
manner.
5.5 To keep the Premises equipped with all safety appliances required by any
public authority because of any use made by Tenant other than normal office
use, and to procure all licenses and permits so required because of such
use and, if requested by Landlord, to do any work so required because of
such use, it being understood that the foregoing provisions shall not be
construed to broaden in any way Tenant's Permitted Use.
5.6 Except as otherwise expressly provided herein, Tenant covenants and agrees
that it shall not assign, mortgage, pledge, hypothecate or otherwise
transfer this Lease and/or Tenant's interest in this Lease or sublet (which
term, without limitation, shall include granting of concessions, licenses
or the like) the whole or any part of the Premises. Any assignment,
mortgage, pledge, hypothecation, transfer or subletting not expressly
permitted in or consented to by Landlord under Sections 5.6.1-5.6.5 shall
be void, ab initio; shall be of no force and effect; and shall confer no
rights on or in favor of third parties. In addition, Landlord shall be
entitled to seek specific performance of, and other equitable relief with
respect to, the provisions hereof. Notwithstanding the foregoing, changes
in equity ownership in Tenant shall not constitute an assignment for the
purposes of this Section 5.6 nor be subject to Landlord's termination right
pursuant to Section 5.6.1.1 nor require notice to Landlord pursuant to
Section 5.6 3 nor require a separate written instrument with Landlord
pursuant to Section 5.6.5 nor be deemed transfers or other events requiring
Landlord's consent under this Section 5.6 of the Lease so long as such
changes are not for the purpose of avoiding or otherwise circumventing the
provisions of this Section 5.6.
5.6.1 Notwithstanding the foregoing provisions of Section 5.6 above and the
provisions of Section 5.6.2 below, but subject to the provisions of
Sections 5.6.3, 5.6.4 and 5.6.5, below Tenant shall have the right to
assign this Lease or to sublet the Premises (in whole or in part) to
any parent or subsidiary corporation or affiliate of Tenant or to any
corporation or entity into which Tenant may be converted into or with
which it may be merged or consolidated or which shall succeed to all
or substantially all of the business or assets of Tenant, provided
that the entity to which this Lease is so assigned or which so sublets
the Premises has a credit worthiness (e.g. assets on a pro forma basis
using generally accepted accounting principles
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consistently applied and using the most recent financial statements) which
is the same or better than the Tenant as of the Date of this Lease. For
purposes hereof, an "affiliate" shall be any person or entity which shall
control, shall be controlled by or shall be under common control with
Tenant. If any parent or subsidiary corporation or affiliate of Tenant to
which this Lease is assigned or the Premises sublet (in whole or in part)
shall cease to be such a parent or subsidiary corporation or affiliate,
such cessation shall be considered an assignment or subletting requiring
Landlord's consent. Section 5.6.1.1 shall not be applicable to an
assignment or sublease pursuant to this Section 5.6.1.
5.6.1.1 Notwithstanding the provisions of Section 5.6 above, in the
event Tenant desires to assign this Lease or to sublet the whole
(but not part) of the Premises (no partial subletting being
permitted other than as provided in Section 5.6.1), Tenant shall
notify Landlord thereof in writing and Landlord shall have the
right at its sole option, to be exercised within thirty (30) days
after receipt of Tenant's notice, to terminate this Lease as of a
date specified in a notice to Tenant, which date shall be sixty
(60) days after Landlord's notice to Tenant; provided, however,
that upon the termination date as set forth in Landlord's notice,
all obligations relating to the period after such termination
date (but not those relating to the period before such
termination date) shall cease and promptly upon being billed
therefor by Landlord, Tenant shall make final payment of all rent
and additional rent due from Tenant through the termination date.
In the event that Landlord shall not exercise its termination
rights as aforesaid, or shall fail to give any or timely notice
pursuant to this Section the provisions of Sections 5.6.2-5.6.5
shall be applicable. This Section 5.6.1.1 shall not be applicable
to an assignment or sublease pursuant to Section 5.6.1.
5.6.2 Notwithstanding the provisions of Section 5.6 above, but subject to
the provisions of this Section 5.6.2 and the provisions of Sections
5.6.3, 5.6.4 and 5.6.5 below, in the event that Landlord shall not
have exercised the termination right as set forth in Section 5.6.1.1,
or shall have failed to give any or timely notice under Section
5.6.1.1, then for a period of ninety (90) days (i) after the receipt
of Landlord's notice stating that Landlord does not elect the
termination right, or (ii) after the expiration of the thirty (30) day
period referred to in Section 5.6.1.1 in the event Landlord shall not
give any or timely notice under Section 5.6.1.1, as the case may be,
Tenant shall have the right to assign this Lease or sublet the whole
(but not part) of the Premises in accordance with Tenant's notice to
Landlord given as provided in Section 5.6.3 provided that, in each
instance, Tenant first obtains the express prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
Without limiting the foregoing
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standard, Landlord shall not be deemed to be unreasonably withholding
its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is a tenant in the Building, is (or
within the previous sixty (60) days has been) in active negotiation
with Landlord for premises in the Building or is not of a character
consistent with the operation of a first class office building (by way
of example Landlord shall not be deemed to be unreasonably withholding
its consent to an assignment or subleasing to any governmental or
quasi-governmental agency), or
(b) the proposed assignee or subtenant is not of good character and
reputation, or
(c) the proposed assignee or subtenant does not possess adequate financial
capability to perform the Tenant obligations as and when due or
required, or
(d) the assignee or subtenant proposes to use the Premises (or part
thereof) for a purpose other than the purpose for which the Premises
may be used as stated in Section 1.1 hereof, or
(e) the character of the business to be conducted or the proposed use of
the Premises by the proposed subtenant or assignee shall (i) be likely
to increase Landlord's Operating Expenses beyond that which Landlord
now incurs for use by Tenant; (ii) be likely to increase the burden on
elevators or other Building systems or equipment over the burden prior
to such proposed subletting or assignment; or (iii) violate or be
likely to violate any provisions or restrictions contained herein
relating to the use or occupancy of the Premises, or
(f) there shall be existing an Event of Default (defined in Section 7.1),
or
(g) any part of the rent payable under the proposed assignment or sublease
shall be based in whole or in part on the income or profits derived
from the Premises of if any proposed assignment or sublease shall
potentially have any adverse effect on the real estate investment
trust qualification requirements applicable to Landlord and its
affiliates, or
(h) the holder of any mortgage or ground lease on property which includes
the Premises does not approve of the proposed assignment or sublease
and Landlord provides evidence to Tenant of such disapproval of the
proposed assignment or subletting.
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5.6.3 Tenant shall give Landlord prior notice of any proposed sublease or
assignment (provided that, if prohibited by confidentiality in
connection with a proposed sale, merger, consolidation or
reorganization, then Tenant shall give Landlord written notice within
10 days after the effective date of the proposed sale, merger,
consolidation or reorganization), and said notice shall specify the
provisions of the proposed assignment or subletting, including (a) the
name and address of the proposed assignee or subtenant, (b) in the
case of a proposed assignment or subletting pursuant to Section 5.6.2,
such information as to the proposed assignee's or proposed subtenant's
net worth and financial capability and standing as may reasonably be
required for Landlord to make the determination referred to in Section
5.6.2 above (provided, however, that Landlord shall hold such
information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a
confidential basis), (c) all of the terms and provisions upon which
the proposed assignment or subletting is to be made, (d) in the case
of a proposed assignment or subletting pursuant to Section 5.6.2, all
other information necessary to make the determination referred to in
Section 5.6.2 above and (e) in the case of a proposed assignment or
subletting pursuant to Section 5.6.1 above, such information as may be
reasonably required by Landlord to determine that such proposed
assignment or subletting complies with the requirements of said
Section 5.6.1. No partial subletting shall be permitted.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease
(the whole but (except in the case of a partial sublease under Section
5.6.1) not part of the Premises) or sign pursuant to Tenant's notice,
as given hereunder; provided, however, that if such assignment or
sublease shall not be executed and delivered to Landlord within
ninety (90) days after the date of Landlord's consent, the consent
shall be deemed null and void and the provisions of Section 5.6.1.1
shall be applicable.
5.6.4 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants
and agrees that, in addition to the Annual Fixed Rent, additional rent
and other charges to be paid pursuant to this Lease, fifty percent
(50%) of the "Assignment/Sublease Profits" (hereinafter defined), if
any, shall be paid to Landlord.
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The "Assignment/Sublease Profits" shall be the excess, if any, of (a)
the "Assignment/Sublease Net Revenues" as hereinafter defined over (b)
the Annual Fixed Rent and additional rent and other charges provided
in this Lease (provided, however, that for the purpose of calculating
the Assignment/Sublease Profits in the case of a sublease, appropriate
proportions in the applicable Annual Fixed Rent, additional rent and
other charges under this Lease shall be made based on the percentage
of the Premises subleased and on the terms of the sublease). The
"Assignment/Sublease Net Revenues" shall be the fixed rent, additional
rent and all other charges and sums payable either initially or over
the term of the sublease or assignment, less the reasonable costs of
Tenant incurred in such subleasing or assignment (the definition of
which shall include but not necessarily be limited to rent
concessions, brokerage commissions and alteration allowances) as set
forth in a statement certified by an appropriate officer of Tenant and
delivered to Landlord within thirty (30) days of the full execution of
the sublease or assignment document, amortized over the term of the
sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
5.6.5 (A) It shall be a condition of the validity of any assignment or
subletting permitted under Section 5.6.1 above, or consented to under
Section 5.6.2 above, that both Tenant and the assignee or sublessee
agree directly with Landlord in a separate written instrument
reasonably satisfactory to Landlord which contains terms and
provisions reasonably required by Landlord, including, without
limitation, the agreement of the assignee or sublessee to be bound by
all the obligations of the Tenant hereunder, including, without
limitation, the obligation to pay the rent and other amounts provided
for under this Lease (but in the case of a partial subletting pursuant
to Section 5.6.1, such subtenant shall agree on a pro rata basis to be
so bound) including the provisions of Sections 5.6 through 5.6.5
hereof (if prohibited by confidentiality in connection with a proposed
sale, merger, consolidation or reorganization, then Tenant shall
execute such written instrument within 10 days after the effective
date of the proposed sale, merger, consolidation or reorganization),
but such assignment or subletting shall not relieve the Tenant named
herein of any of the obligations of the Tenant hereunder, Tenant shall
remain fully and primarily liable therefor and the liability of
Tenant and such assignee (or subtenant, as the case may be) shall be
joint and several. Further, and notwithstanding the foregoing, the
provisions hereof shall not constitute a recognition of the assignment
or the assignee thereunder or the sublease or the subtenant
thereunder, as the case may be, and at Landlord's option, upon the
termination or expiration of the Lease (whether such termination is
based upon a cause beyond Tenant's control, a default of Tenant, the
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agreement of Tenant and Landlord or any other reason), the assignment
or sublease shall be terminated.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord
in connection with any request by Tenant for consent to assignment or
subletting.
(C) If this Lease be assigned, or if the Premises or any part thereof
be sublet or occupied by anyone other than Tenant, Landlord may upon
prior notice to Tenant, at any time and from time to time, collect
rent and other charges from the assignee, sublessee or occupant and
apply the net amount collected to the rent and other charges herein
reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or a waiver of the
provisions of Sections 5.6 through 5.6.5 hereof, or the acceptance of
the assignee, sublessee or occupant as a tenant or a release of Tenant
from the further performance by Tenant of covenants on the part of
Tenant herein contained, the Tenant herein named to remain primarily
liable under this Lease.
(D) No assignment or subletting under any of the provisions of
Sections 5.6.1 or 5.6.2 shall in any way be construed to relieve
Tenant from obtaining the express consent in writing to Landlord to
any further assignment or subletting which would otherwise require
Landlord's consent hereunder.
(E) Without limiting Tenant's obligations under Section 3.3, Tenant
shall be responsible, at Tenant's sole cost and expense, for
performing all work necessary to comply with Legal Requirements and
Insurance Requirements in connection with any assignment or subletting
hereunder including, without limitation, any work in connection with
such assignment or subletting.
5.7 To defend with counsel first approved by Landlord (which approval shall not
be unreasonably withheld or delayed), save harmless, and indemnify Landlord
from any liability for injury, loss, accident or damage to any person or
property, and from any claims, actions, proceedings and expenses and costs
in connection therewith (including without limitation reasonable counsel
fees) (i) arising from (a) the omission, fault, willful act, negligence or
other misconduct of Tenant or Tenant's contractors, licensees, invitees,
agents, servants, independent contractors or employees or (b) any use made
or thing done or occurring on the Premises not due to the omission, fault,
willful act, negligence or other misconduct of Landlord, or,(ii) resulting
from the failure of Tenant to perform and discharge its covenants and
obligations under this Lease; to maintain commercial general liability
insurance or comprehensive general liability insurance written on an
occurrence
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basis with a broad form comprehensive liability endorsement covering the
Premises insuring Landlord and Landlord's managing agent (and such persons
as are in privity of estate with Landlord and Landlord's managing agent as
may be set out in notice from time to time) as additional insureds as well
as Tenant with limits which shall, at the commencement of the Term, be at
least equal to those stated in Section 1.1 and from time to time during the
Term shall be for such higher limits, if any, as are customarily carried in
Greater Boston with respect to similar properties or which may reasonably
be required by Landlord, and workmen's compensation insurance with
statutory limits covering all of Tenant's employees working in the
Premises, and to deposit with Landlord on or before the Commencement Date
and concurrent with all renewals thereof, certificates for such insurance
bearing the endorsement that the policies will not be canceled until after
thirty (30) days' written notice to Landlord. All insurance required to be
maintained by Tenant pursuant to this Lease shall be maintained with
responsible companies qualified to do business, and in good standing, in
the Commonwealth of Massachusetts and which have a rating of at least "A-"
and are within a financial size category of not less than "Class VIII" in
the most current Best's Key Rating Guide or such similar rating as may be
reasonably selected by Landlord if such Guide is no longer published.
5.8 That all of the furnishings, fixtures, equipment, effects and property of
every kind, nature and description of Tenant and of all persons claiming
by, through or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant,
may be on the Premises or elsewhere in the Building or on the Site, shall
be at the sole risk and hazard of Tenant, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by
the leakage or bursting of water pipes, steam pipes, or other pipes, by
theft or from any other cause, no part of said loss or damage is to be
charged to or be borne by Landlord, except that Landlord shall in no event
be indemnified or held harmless or exonerated from any liability to Tenant
or to any other person, for any injury, loss, damage or liability to the
extent that such injury, loss, damage, or liability is due to Landlord's
negligence or willful misconduct or to the extent such indemnity, hold
harmless or exoneration is prohibited by law. Further, Tenant, at Tenant's
expense, shall maintain at all times during the Term of this Lease
insurance against loss or damage covered by so-called "all risk" type
insurance coverage with respect to Tenant's fixtures, equipment, goods,
wares and merchandise, tenant improvements made by or paid for by Tenant,
and other property of Tenant (collectively, "Tenant's Property"). Such
insurance shall be in an amount at least equal to the full replacement cost
of Tenant's Property.
5.9 To permit Landlord and its agents to examine the Premises at reasonable
times upon reasonable advance notice (except that no notice shall be
required in an emergency) and, if Landlord shall so elect, to make any
repairs or replacements Landlord may deem necessary; to remove, at Tenant's
expense, any alterations, addition, signs, curtains, blinds, shades,
awnings, aerials, flagpoles, or the like not
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consented to in writing; and to show the Premises to prospective tenants
during the eleven (11) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable times.
5.10 Not to place a load upon the Premises exceeding an average rate of 70
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in such
manner and at such time as Landlord shall in each instance authorize;
Tenant's business machines and mechanical equipment which cause vibration
or noise that may be transmitted to the Building structure or to any other
space in the Building shall be so installed, maintained and used by Tenant
so as to eliminate such vibration or noise.
5.11 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 To comply with all applicable Legal Requirements now or hereafter in force
which shall impose a duty on Tenant relating to or as a result of the
Tenant's use or occupancy of the Premises; provided that Tenant shall not
be required to make any alterations or additions to the Building systems,
structure, roof, exterior and load bearing walls, foundation, structural
floor slabs and other structural elements of the Building unless the same
are required by such Legal Requirements as a result of or in connection
with Tenant's use or occupancy of the Premises beyond normal use of space
of this kind. Tenant shall promptly pay all fines, penalties and damages
that may arise out of or be imposed because of its failure to comply with
the provisions of this Section 5.12.
5.13 As Additional Rent, to pay all reasonable costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease or in connection
with any bankruptcy case involving Tenant or any guarantor.
ARTICLE VI
CASUALTY AND TAKING
6.1 In case during the Lease Term the Building is damaged by fire or casualty
and (i) such fire or casualty damage cannot, in the ordinary course,
reasonably be expected to be repaired within one hundred twenty (120) days
from the time that repair work would commence as reasonably determined by
Landlord, or (ii) in any case where the holder of any mortgage which
includes the Building as a part of the mortgaged premises or any ground
lessor of any ground lease which includes the Site as part of the demised
premises does not allow the net insurance proceeds to be applied to the
restoration of the Building (and/or the Site), Landlord may, at its
election, terminate this Lease by notice given to Tenant within sixty (60)
days
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after the date of such fire or other casualty, specifying the effective
date of termination. The effective date of termination specified by
Landlord shall not be less than thirty (30) days nor more than forty-five
(45) days after the date of notice of such termination.
In case during the last year of the Lease Term, the Premises are damaged by
fire or casualty and such fire or casualty damage cannot, in the ordinary
course, reasonably be expected to be repaired within one hundred fifty
(150) days (and/or as to special work or work which requires long lead time
then if such work cannot reasonably be expected to be repaired within such
additional time as is reasonable under the circumstances given the nature
of the work) from the time that repair work would commence as reasonably
determined by Landlord, Tenant may, at its election, terminate this Lease
by notice given to Landlord within sixty (60) days after the date of such
fire or other casualty, specifying the effective date of termination. The
effective date of termination specified by Tenant shall be not less than
thirty (30) days nor more than forty-five (45) days after the date of
notice of such termination.
In the event that the Lease is terminated pursuant to this Article VI, a
just proportion of the Annual Fixed Rent, Tenant's share of Operating
Costs, Tenant's share of real estate taxes and Tenant's Proportionate Share
of electricity and HVAC according to the nature and extent of the injury to
the Premises shall be abated from the date of such fire or other casualty
until the effective termination date.
Unless terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and effect following any such damage subject, however,
to the following provisions.
If the Building or any part thereof is damaged by fire or casualty and this
Lease is not so terminated, or Landlord or Tenant have no right to
terminate this Lease, Landlord promptly after such damage and the
determination of the net amount of insurance proceeds available shall use
due diligence to restore the Premises and the Building in the event of
damage thereto (excluding Tenant's Property) into proper condition for use
and occupation and a just proportion of the Annual Fixed Rent, Tenant's
share of Operating Costs, Tenant's share of real estate taxes and Tenant's
Proportionate Share of electricity and HVAC according to the nature and
extent of the injury to the Premises shall be abated until the Premises
shall have been put by Landlord substantially into such condition except
for punch list items and long lead items. Notwithstanding anything herein
contained to the contrary, Landlord shall not be obligated to expend for
such repair and restoration any amount in excess of the net insurance
proceeds.
Where Landlord is obligated or otherwise elects to effect restoration of
the Premises, unless such restoration is completed within nine (9) months
from the
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date of the casualty or taking, such period to be subject, however, to
extension where the delay in completion of such work is due to Force
Majeure, as defined hereinbelow (but in no event beyond twelve (12) months
from the date of the casualty or taking), Tenant shall have-the right to
terminate this Lease at any time after the expiration of such nine-month
(as extended) period until the restoration is substantially completed, such
termination to take effect as of the thirtieth (30th) day after the date of
receipt by Landlord of Tenant's notice, with the same force and effect as
if such date were the date originally established as the expiration date
hereof unless, within thirty (30) days after Landlord's receipt of Tenant's
notice, such restoration is substantially completed, in which case Tenant's
notice of termination shall be of no force and effect and this Lease and
the Lease Term shall continue in full force and effect. When used herein,
"Force Majeure" shall mean any prevention, delay or stoppage due to
governmental regulation, strikes, lockouts, acts of God, acts of war,
terrorists acts, civil commotions, unusual scarcity of or inability to
obtain labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord's control or attributable to Tenant's action or
inaction.
6.2 Notwithstanding anything to the contrary contained in this Lease, if the
Building or the Premises shall be substantially damaged by fire or casualty
as the result of a risk not covered by the forms of casualty insurance at
the time maintained by Landlord and such fire or casualty damage cannot, in
the ordinary course, reasonably be expected to be repaired within thirty
(30) days from the time that repair work would commence, Landlord may, at
its election, terminate the Term of this Lease by notice to the Tenant
given within thirty (30) days after such loss. If Landlord shall give such
notice, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally
established as the expiration date hereof.
6.3 If the entire Building, or such portion of the Premises or access thereto
as to render the balance (if reconstructed to the maxim extent practicable
in the circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have the
right to terminate this Lease by notice to the other of its desire to do
so, provided that such notice is given not later than thirty (30) days
after Tenant has been deprived of possession. If either party shall give
such notice, then this Lease shall terminate as of the date of such notice
with the same force and effect as if such date were the date originally
established as the expiration date hereof.
Further, if (i) so much of the Building or Site shall be so taken that
continued operation of the Building would be uneconomic as a result of the
taking, or (ii) the holder of any mortgage which includes the Premises as
part of the mortgaged premises or any ground lessor of any ground lease
which includes the Site as part of the demised premises does not allow the
net condemnation proceeds to be applied to the restoration of the Building,
Landlord shall have the right to
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terminate this Lease by giving notice to Tenant of Landlord's desire to do
so not later than thirty (30) days after Tenant has been deprived of
possession of the Premises (or such portion thereof as may be taken). If
Landlord shall give such notice, then this Lease shall terminate as of the
date of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease
Term hereof, and should this Lease not be terminated in accordance with the
foregoing provisions, Landlord agrees that after the determination of the
net amount of condemnation proceeds available to Landlord, Landlord shall
use due diligence to put what may remain of the Premises into proper
condition for use and occupation as nearly like the condition of the
Premises prior to such taking as shall be practicable (excluding Tenant's
Property). Notwithstanding the foregoing, Landlord shall not be obligated
to expend for such repair and restoration any amount in excess of the net
condemnation proceeds made available to it.
If the Premises or the access thereto shall be affected by any exercise of
the power of eminent domain, then the Annual Fixed Rent, Tenant's share of
Operating Costs, Tenant's share of real estate taxes and Tenant's
Proportionate Share of electricity and HVAC shall be justly and equitably
abated and reduced according to the nature and extent of the loss of use
thereof suffered by Tenant; and in case of a taking which permanently
reduces the Rentable Floor Area of the Premises, a just proportion of the
Annual Fixed Rent, Tenant's share of operating costs and Tenant's share of
real estate taxes shall be abated for the remainder of the Lease Term.
6.4 Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Buildings, the Complex
and the Site and the leasehold hereby created, or any one or more of them,
accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby
grants, releases and assigns to Landlord all Tenant's rights such awards,
and covenants to execute and deliver such further assignments and
assurances thereof as Landlord may from time to time request.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any of
Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that such
action and any resulting award shall not affect or diminish the amount of
compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE VII
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DEFAULT
7.1 (a) If at any time subsequent to the date of this Lease any one or more of
the following events (herein sometimes called an "Event of Default")
shall occur:
(i) Tenant shall fail to pay any installment of the Annual Fixed Rent,
Additional Rent or other charges for which provision is made herein on or
before the date on which the same become due and payable, and the same
continues for ten (10) days after notice from Landlord thereof, or
(ii) Landlord having rightfully given the notice specified in
subdivision (a) above twice in any calendar year, Tenant shall thereafter
in the same calendar year fail to pay the Annual Fixed Rent, Additional
Rent or any other monetary amount due under this Lease on or before the
date on which the same become due and payable, or,
(iii) Tenant shall assign its interest in this Lease or sublet any
portion of the Premises in violation of the requirements of Sections 5.6
through 5.6.5 of this Lease, or
(iv) Tenant shall fail to perform or observe some term or condition
of this Lease which, because of its character, would immediately
jeopardize Landlord's interest (such as, but without limitation, failure to
maintain general liability insurance, or the employment of labor and
contractors within the Premises which interfere with Landlord's work, in
violation of Section 3.3), and such failure continues for five (5) days
after notice from Landlord to Tenant thereof; or
(v) Tenant shall neglect or fail to perform or observe any other
requirement, term, covenant or condition of this Lease (not hereinabove in
this Section 7.1(a) specifically referred to) on Tenant's part to be
performed or observed and Tenant shall fail to remedy the same within
thirty (30) days after notice to Tenant specifying such neglect or failure,
or if such neglect or failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30) day period, Tenant shall
fail to commence promptly to remedy the same and to prosecute such remedy
to completion with diligence and continuity; or
(vi) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(vii) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief
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for itself under any present or future Federal, State or other statute, law
or regulation for the relief of debtors, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties, or shall admit
in writing its inability to pay its debts generally as they become due; or
(viii) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
or future Federal, State on other statute, law or regulation and shall
remain undismissed or unstayed for an aggregate of sixty (60) days (whether
or not consecutive), or if any debtor in possession (whether or not Tenant)
trustee, receiver or liquidator of Tenant or of all or any substantial part
of its properties or of the Premises shall be appointed without the consent
or acquiescence of Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of sixty (60) days (whether or not consecutive).
then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a former
instance), Landlord lawfully may, immediately or at any time thereafter,
and without demand or further notice of default terminate this Lease by
notice to Tenant, specifying a date not less than five (5) days after the
giving of such notice on which this Lease shall terminate, and this Lease
shall come to an end on the date specified therein as fully and completely
as if such date were the date herein originally fixed for the expiration of
the Lease Term (Tenant hereby waiving any rights of redemption), and Tenant
will then quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided.
(b) If this Lease shall have been terminated as provided in this Article,
then Landlord may, without notice, re-enter the Premises, either by force,
summary proceedings, ejectment or otherwise, and remove and dispossess
Tenant and all other persons and any and all property from the same, as if
this Lease had not been made, and Tenant hereby waives the service of
notice of intention to re-enter.
(c) In the event that this Lease is terminated under any of the provisions
contained in Section 7.1(a) or shall be otherwise terminated by breach of
any obligation of Tenant, Tenant covenants and agrees forthwith to pay and
be liable for, on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of rent and other charges
reserved as they would, under the terms of this Lease, become due if this
Lease had not been terminated or if Landlord had not entered or re-entered,
as aforesaid, and whether the Premises be relet or remain vacant, in whole
or in part, or for a period less than the remainder of the Term, and for
the whole thereof, but in the event the Premises be relet by Landlord,
Tenant shall be entitled to a credit in the net amount of rent and other
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charges received by Landlord in reletting, after deduction of all expenses
incurred in reletting the Premises (including, without limitation,
remodeling costs, brokerage fees and the like), and in collecting the rent
in connection therewith, in the following manner:
Amounts received by Landlord after reletting shall first be applied against
such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due
under this Lease, the amount which Tenant is obligated to pay under the
terms of this Lease (Tenant's liability prior to any such reletting and
such recovery not in any way to be diminished as a result of the fact that
such reletting might be for a rent higher than the rent provided for in
this Lease); when and if such expenses have been completely recovered, the
amounts received from reletting by Landlord as have not previously been
applied shall be credited against Tenant's obligations as of each day when
a payment would fall due under this Lease, and only the net amount thereof
shall be payable by Tenant. Further, amounts received by Landlord from such
reletting for any period shall be credited only against obligations of
Tenant allocable to such period, and shall not be credited against
obligations of Tenant hereunder accruing subsequent or prior to such
period; nor shall any credit of any kind be due for any period after the
date when the term of this Lease is scheduled to expire according to its
terms.
(d) (i) Landlord may elect, as an alternative, to have Tenant pay
liquidated damages, which election may be made by notice given to
Tenant at any time after the termination of this Lease under this
Section 7.1, above, and whether or not Landlord shall have collected
any damages as hereinbefore provided in this Article VII, and in lieu
of all other such damages beyond the date of such notice. Upon such
notice, Tenant shall promptly pay to Landlord, as liquidated damages,
in addition to any damages collected or due from Tenant from any
period prior to such notice and all expenses which Landlord may have
incurred with respect to the collection of such damages, such a sum as
at the time of such notice represents the amount of such excess, if
any, of (a) the discounted present value, at a discount rate of 6%, of
the Annual Fixed Rent, Additional Rent and other charges which would
have been payable by Tenant under this Lease for the remainder of the
Lease Term if the Lease terms had been fully complied with by Tenant,
over and above (b) the discounted present value, at a discount rate of
6%, of the Annual Fixed Rent, Additional Rent and other charges that
would be received by Landlord if the Premises were re-leased at the
time of such notice for the remainder of the Lease Term at the fair
market value (including provisions regarding periodic increases in
Annual Fixed Rent if such are applicable) prevailing at the time of
such notice as reasonably determined by Landlord.
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(ii) For the purposes of this Article, if Landlord elects to require
Tenant to pay damages in accordance with the immediately preceding
paragraph, the total rent shall be computed by assuming that Tenant's
share of excess taxes, Tenant's share of excess operating costs and
Tenant's share of excess electrical costs would be, for the balance of
the unexpired Term from the date of such notice, the amount thereof
(if any) for the immediately preceding annual period payable by Tenant
to Landlord.
(e) In case of any Event of Default, re-entry, dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or any part
or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord's option be equal to or less than or exceed
the period which would otherwise have constituted the balance of the Term
of this Lease and may grant concessions or free rent to the extent that
Landlord considers advisable or necessary to re-let the same and (ii) may
make such alterations, repairs and decorations in the Premises as Landlord
in its sole judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in
any way whatsoever for failure to re-let the Premises, or, in the event
that the Premises are re-let, for failure to collect the rent under
re-letting. Tenant, for itself and any and all persons claiming through or
under Tenant, including its creditors, upon the termination of this Lease
and of the term of this Lease in accordance with the terms hereof, or in
the event of entry of judgment for the recovery of the possession of the
Premises in any action or proceeding, or if Landlord shall enter the
Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights
or privileges which it or they may or might have under and by reason of any
present or future law or decision, to redeem the Premises or for a
continuation of this Lease for the term of this Lease hereby demised after
having been dispossessed or ejected therefrom by process of law, or
otherwise.
Landlord agrees to use reasonable efforts to relet the Premises after
Tenant vacates the Premises in the event that the Lease is terminated based
upon a default by Tenant hereunder. Marketing of Tenant's Premises in a
manner similar to the manner in which Landlord markets other premises
within Landlord's control in the Complex shall be deemed to have satisfied
Landlord's obligation to use "reasonable efforts." In no event shall
Landlord be required to (i) solicit or entertain negotiations with any
other prospective tenants for the Premises until Landlord obtains full and
complete possession of the Premises including, without limitation, the
final and unappealable legal right to re-let the Premises free of any claim
of Tenant, (ii) give preference to reletting the Premises over leasing
other vacant space in the Building, or (iii) lease the Premises if, in
Landlord's bona fide
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business judgment, the proposed rent is less than the then current fair
market rental value of the Premises.
(f) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for. Further,
nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, the damages are to be proved,
whether or not the amount be greater, equal to, or less than the amount of
the loss or damages referred to above.
7.2 Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such default,
after notice by Tenant to Landlord properly specifying wherein Landlord has
failed to perform any such obligation.
ARTICLE VIII
MISCELLANEOUS
8.1 Tenant covenants and agrees that Tenant will not do or permit anything to
be done in or upon the Premises, or bring in anything or keep anything
therein, which shall increase the rate of insurance on the Premises or on
the Building above the standard rate applicable to premises being occupied
for the use to which Tenant has agreed to devote the Premises; and Tenant
further agrees that, in the event that Tenant shall do any of the
foregoing, Tenant will promptly pay to Landlord, on demand, any such
increase resulting therefrom, which shall be due and payable as additional
rent thereunder.
8.2 Failure on the part of Landlord or Tenant to complain of any action
or non-action on the part of the other, no matter how long the same may
continue, shall never be a waiver by Tenant or Landlord, respectively, of
any of its rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as a waiver of
any of the other provisions hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or approval of Landlord or Tenant to or
of any action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent or
approval to or of subsequent similar act by the other. Further, the
acceptance by Landlord of Annual Fixed Rent, Additional Rent or any other
charges paid by Tenant under this Lease shall not be or be deemed to be a
waiver
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by Landlord of any default by Tenant, whether or not Landlord knows of such
default, except for such defaults as to which such payment relates.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in full, shall
be given no effect, and Landlord may accept such check without prejudice to
any other rights or remedies which Landlord may have against Tenant.
8.3 The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which such party may be lawfully entitled
in case of any breach or threatened breach by Tenant of any provisions of
this Lease. In addition to the other remedies provided in this Lease,
Landlord shall be entitled to the restraint by injunction of the violation
or attempted or threatened violation of any of the covenants, conditions or
provisions of this Lease or to a decree compelling specific performance of
any such covenants, conditions or provisions.
8.4 Tenant, subject to the terms and provisions of this Lease and with the
benefit of any applicable grace periods provided for in this Lease on
payment of the rent and observing, keeping and performing all of the terms
and provisions of this Lease on Tenant's part to be observed, kept and
performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the Term (exclusive of any period during which
Tenant is holding over after the expiration or termination of this Lease
without the consent of Landlord), without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the Premises
superior to Tenant, subject, however, to the terms of this Lease; the
foregoing covenant of quiet enjoyment is in lieu of any other covenant,
express or implied; and it is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Lease shall be
binding upon Landlord and Landlord's successors only with respect to
breaches occurring during Landlord's or Landlord's successors' respective
ownership of Landlord's interest hereunder, including ground or master
lessees, to the extent of their respective interests, as and when they
shall acquire same and then only for so long as they shall retain such
interest.
Further, Tenant specially agrees to look solely to Landlord's then equity
interest in the Building at the time owned, or in which Landlord holds
an interest as ground lessee, for recovery of any judgment from Landlord;
it being specifically agreed that neither Landlord (original or successor),
nor any beneficiary of any Trust of which any person holding Landlord's
interest is Trustee, nor any member, manager, partner, director or
stockholder nor Landlord's managing agent shall ever be personally liable
for any such judgment, or for the payment of any
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monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Tenant
might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or any action not involving the personal
liability of Landlord (original or successor), any successor Trustee to the
persons named herein as Landlord, or any beneficiary of any Trust of which
any person holding Landlord's interest is Trustee, or of any manager,
member, partner, director or stockholder of Landlord or of Landlord's
managing agent, to respond in monetary damages from Landlord's assets other
than Landlord's equity interest aforesaid in the Building. In no event
shall Landlord ever be liable to Tenant for any indirect or consequential
damages or lost profits suffered by Tenant from whatever cause or loss of
profits or the like. In the event that Landlord shall be determined to have
acted unreasonably in withholding any consent or approval under this Lease,
the sole recourse and remedy of the Tenant in respect thereof shall be to
specifically enforce Landlord's obligation to grant such consent or
approval, and in no event shall the Landlord be responsible for any damages
of whatever nature in respect of its failure to give such consent or
approval nor shall the same otherwise affect the obligations of the Tenant
under this Lease or act as any termination of this Lease.
8.5 After receiving notice from any person, firm or other entity that it holds
a mortgage which includes the Premises as part of the mortgaged premises,
or that it is the ground lessor under a lease with Landlord, as ground
lessee, which includes the Premises as a part of the mortgaged premises, no
notice from Tenant to Landlord shall be effective unless and until a copy
of the same is given to such holder or ground lessor, and the curing of any
of Landlord's defaults by such holder or ground lessor within a reasonable
time thereafter (including a reasonable time to obtain possession of the
premises if the mortgagee or ground lessor elects to do so) shall be
treated as performance by Landlord. For the purposes of this Section 8.5 or
Section 8.15, the term "mortgage" includes a mortgage on a leasehold
interest of Landlord (but not one on Tenant's leasehold interest). If any
mortgage is listed on Exhibit F then the same shall constitute notice from
the holder of such mortgage for the purposes of this Section 8.5. Further
no Annual Fixed Rent or Additional Rent may be paid by Tenant more than
thirty (30) days in advance except with the prior written consent of all
holder(s) of such mortgages and ground leases, and any such payment without
such consent shall not be binding on such holder(s).
8.6 With reference to any assignment by Landlord of Landlord's interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease on
property which includes the Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the acceptance thereof by
the holder of such mortgage or the ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of Landlord
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hereunder, unless such holder, or ground lessor, shall, by notice sent
to Tenant, specifically otherwise elect; and
(b) That, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only upon
foreclosure of such holder's mortgage and the taking of possession of
the Premises, or, in the case of a ground lessor, the assumption of
Landlord's position hereunder by such ground lessor. Tenant
acknowledges that it has been informed by Landlord that Landlord has
entered into certain agreements with its lenders ("Lenders") which
require it to include in this Lease (and requires Tenant to include in
any sublease which may be permitted hereunder) the following
provisions: (i) no rent payable under this Lease or under any such
sublease may be based in whole or in part on the income or profits
derived from the Premises or any subleased premises except for
percentage rent based on gross (not net) receipts or sales; (ii) if
Lenders succeed to the Landlord's interests under this Lease and are
advised by Lenders' counsel that all or any portion of the rent
payable under this Lease is or may be deemed to be unrelated business
income within the meaning of the Internal Revenue Code of the 1986, as
amended, or the regulations issued thereunder, Lenders may elect to
amend unilaterally the calculation of rents under this Lease so that
none of the rents payable to Lenders under this Lease will constitute
unrelated business income, provided that such amendment will not
increase the Tenant's payment obligations or other liability under
this Lease or reduce the Landlord's obligations under this Lease; and
(iii) if Lenders request, Tenant will be obligated to execute any
document Lenders may deem necessary to effect the amendment of this
Lease in accordance with the foregoing subsection (ii). Further, no
Annual Fixed Rent or Additional Rent may be paid by Tenant more than
thirty (30) days in advance except with Lenders' prior written
consent, and any such payment without such consent shall not be
binding on Lenders.
In no event shall the acquisition of title to the Building and the
land on which the same is located by a purchaser which, simultaneously
therewith, leases the entire Building or such land back to the seller
thereof be treated as an assumption by such purchaser-lessor, by
operation of law or otherwise, of Landlord's obligations hereunder,
but Tenant shall look solely to such seller-lessee, and its successors
from time to time in title, for performance of Landlord's obligations
hereunder subject to the provisions of Section 8.4 hereof. In any such
event, this Lease shall be subject and subordinate to the lease to
such purchaser provided that such purchaser agrees to recognize the
right of Tenant to use and occupy the Premises pursuant to this Lease
upon the payment of rent and other charges payable by Tenant under
this Lease and the performance by Tenant of Tenant's obligations
hereunder and provided that Tenant agrees to attorn to such purchaser.
For all purposes, such seller-lessee, and its successors in title,
shall be the landlord hereunder unless and until Landlord's position
shall have been assumed by such purchaser-lessor.
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8.7 (A) No act or thing done by Landlord during the Lease Term shall be deemed
an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid, unless in writing signed by Landlord. No
employee of Landlord or of Landlord's agents shall have any power to accept
the keys of the Premises prior to the termination of this Lease, provided,
however, that the foregoing shall not apply to the delivery of keys to
Landlord or its agents in its (or their) capacity as managing agent or for
purpose of emergency access. In any event, however, the delivery of keys to
any employee of Landlord or of Landlord's agents shall not operate as a
termination of the Lease or a surrender of the Premises.
(B) Upon the expiration or earlier termination of the Lease Term, Tenant
shall surrender the Premises to Landlord in the condition as required by
Sections 3.3 and 5.2, first removing all goods and effects of Tenant and
completing such other removals as may be permitted or required pursuant to
Section 5.2.
8.8 (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Lease other than the
broker, person or firm, if any, designated in Section 1.1 hereof; and in
the event any claim is made against the Landlord relative to dealings by
Tenant with brokers other than the Brokers, if any, designated in Section
1.1 hereof, Tenant shall defend the claim against Landlord with counsel of
Tenant's selection first approved by Landlord (which approval will not be
unreasonably withheld) and save harmless and indemnify Landlord on account
of loss, cost or damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker in connection with the consummation of this Lease other than the
broker, person or firm, if any, designates in Section 1.1 hereof; and in
the event any claim is made against the Tenant relative to dealings by
Landlord with brokers other than the Brokers, if any, designated in Section
1.1 hereof, Landlord shall defend the claim against Tenant with counsel of
Landlord's selection and save harmless and indemnify Tenant on account of
loss, cost or damage which may arise by reason of such claim. Landlord
agrees that it shall be solely responsible for the payment of brokerage
commissions to the Brokers, if any, designated in Section 1.1 hereof.
8.9 If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision
of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
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8.10 The obligations of this Lease shall run with the land, and except as herein
otherwise provided, the terms hereof shall be binding upon and shall inure
to the benefit of the successors and assigns, respectively, of Landlord and
Tenant and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and assigns. Each term and each
provision of this Lease to be performed by Tenant shall be construed to be
both a covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to subletting or
assignment by Tenant, but has reference only to those instances in which
Landlord may have later given consent to a particular assignment as
required by the provisions of Article V hereof or such assignment is
otherwise permitted under Article V.
8.11 Tenant agrees not to record the within Lease, but each party hereto agrees,
on the request of the other, to execute a so-called Notice of Lease or
short form lease in form recordable and complying with applicable law and
reasonably satisfactory to both Landlord's and Tenant's attorneys. In no
event shall such document set forth rent or other charges payable by Tenant
under this Lease; and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease, and is not
intended to vary the terms and conditions of this Lease.
8.12 Whenever, by the terms of this Lease, notice shall or may be given either
to Landlord or to Tenant, such notice shall be in writing and shall be sent
by registered or certified mail, return receipt requested, postage prepaid:
If intended for Landlord, addressed to Landlord at the address set forth on
the first page of this Lease (or to such other address or addresses as may
from time to time hereafter be designated by Landlord by like notice) with
a copy to Landlord, Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the address set forth on the
second page of this Lease except that from and after the Commencement Date
the address of Tenant shall be the Premises, Attention: Gail Goodman (or to
such other address or addresses as may from time to time hereafter be
designated by Tenant by like notice), with a copy to Thomas Durkin, Esq.,
Lucash, Gesmer & Updegrove LLP, 40 Broad Street, Boston, MA 02109.
Except as otherwise provided herein, all such notices shall be effective
when received; provided, that (i) if receipt is refused, notice shall be
effective upon the first occasion that such receipt is refused or (ii) if
the notice is unable to be delivered due to a change of address of which no
notice was given, notice shall be effective upon the date such delivery was
attempted.
Where provision is made for the attention of an individual or department,
the notice shall be effective only if the wrapper in which such notice is
sent is addressed to the attention of such individual or department.
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Any notice given by an attorney on behalf of Landlord or by Landlord's
managing agent shall be considered as given by Landlord and shall be fully
effective.
Time is of the essence with respect to any and all notices and periods for
giving notice or, taking any action thereto under this Lease.
8.13 Employees or agents of Landlord have no authority to make or agree to make
a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon
the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered
only by written agreement between Landlord and Tenant, and no act or
omission of any employee or agent of Landlord shall alter, change or modify
any of the provisions hereof.
8.14 The titles of the Articles throughout this Lease are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease.
8.15 This Lease shall be subject and subordinate to any mortgage now or
hereafter on the Site or the Building, or both, and to each advance made or
hereafter to be made under any mortgage, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor provided that in the case of a future mortgage the
holder of such mortgage agrees to recognize the rights of Tenant under this
Lease (including the right to use and occupy the Premises) upon the payment
of rent and other charges payable by Tenant under this Lease and the
performance by Tenant of Tenant's obligations hereunder. In confirmation of
such subordination and recognition, Tenant shall execute and deliver
promptly such instruments of subordination and recognition as such
mortgagee may reasonably request. In the event that any mortgagee or its
respective successor in title shall succeed to the interest of Landlord,
then, this Lease shall nevertheless continue in full force and effect and
Tenant shall and does hereby agree to attorn to such mortgagee or successor
and to recognize such mortgagee or successor as its landlord. If any holder
of a mortgage which includes the Premises, executed and recorded prior to
the date of this Lease, shall so elect, this Lease and the rights of Tenant
hereunder, shall be superior in right to the rights of such holder, with
the same force and effect as if this Lease had been executed, delivered and
recorded, or a statutory Notice hereof recorded, prior to the execution,
delivery and recording of any such mortgage. The election of any such
holder shall become effective upon either notice from such holder to Tenant
it the same fashion as notices from Landlord to Tenant are to be given
hereunder
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or by the recording in the appropriate registry or recorder's office of an
instrument in which such holder subordinates its rights under such mortgage
to this Lease. Tenant hereby appoints such mortgagee (from time to time) as
Tenant's attorney-in-fact to execute such subordination and recognition in
the following circumstances:
1. Landlord, such mortgagee, or ground lessor ("Requesting Party") shall
have given Tenant a written request ("First Request") therefore,
stating that if Tenant does not timely execute and deliver such
certificate or instrument, the mortgagee or ground lessor may act as
Tenant's attorney-in-fact in accordance with this Section 8.15;
2. Tenant shall fail to execute and deliver such certificate or
instrument or provide Landlord with notice of its objections to the
form of such certificate or instrument within ten (10) days of the
First Request;
3. The Requesting Party shall, after the expiration of such ten (10) day
period, have given Tenant another request ("Second Request") therefor,
stating that Tenant has failed timely to respond to the First Request
for such certificate or instrument and that if Tenant does not execute
and deliver such certificate or instrument within ten (10) days of the
Second Request, the mortgagee or ground lessor may act as Tenant's
attorney-in-fact in accordance with this Section 8.15; and
4. Tenant shall fail to execute and deliver such certificate or
instrument or provide Landlord with notice of its objections to the
form of such certificate or instrument within ten (10) days of the
Second Request.
Notwithstanding the foregoing, upon written request by Tenant, Landlord
will use reasonable efforts to obtain a non-disturbance, subordination and
attornment agreement from Landlord's then current mortgagee on such
mortgagee's then current standard form of agreement. "Reasonable efforts"
of Landlord shall not require Landlord to incur any cost, expense or
liability to obtain such agreement, it being agreed that Tenant shall be
responsible for any fee or review costs charged by the mortgagee. Upon
request of Landlord, Tenant will execute the mortgagee's form of
non-disturbance, subordination and attornment agreement and return the same
to Landlord for execution by the mortgagee. Landlord's failure to obtain a
non-disturbance, subordination and attornment agreement for Tenant shall
have no effect on the rights, obligations and liabilities of Landlord and
Tenant to be considered to be a default by Landlord hereunder.
8.16 Recognizing that Landlord may find it necessary to establish to third
parties, such as accountants, banks, potential or existing mortgagees,
potential purchasers or the like, the then current status of performance
hereunder, Tenant, within ten (10) days after the request of landlord made
from time to time, will furnish to
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Landlord, or any existing or potential holder of any mortgage encumbering
the Premises, the Building, the Site and/or the Complex or any potential
purchaser of the Premises, the Building, the Site and/or the Complex, (each
an "Interested Party"), a statement of the status of any matter pertaining
to this Lease, including, without limitation, acknowledgments that (or the
extent to which) each party is in compliance with its obligations under the
terms of this Lease. In addition, Tenant shall deliver to Landlord, or any
Interested Party designated by Landlord, financial statements of Tenant and
any guarantor of Tenant's obligations under this Lease, as reasonably
requested by Landlord, including, but not limited to financial statements
for the past three (3) years. Upon written request by Tenant, Landlord and
any party receiving such statements from Landlord shall, prior to delivery
of such statements, enter into a commercially reasonable confidentiality
agreement covering any confidential information that is disclosed by
Tenant. Any such status statement or financial statement delivered by
Tenant pursuant to this Section 8.16 may be relied upon by any Interested
Party.
8.17 If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but shall not be
obligated, to enter upon the Premises and to perform such obligation
notwithstanding the fact that no specific provision for such substituted
performance by Landlord is made in this Lease with respect to such default.
In performing such obligation, Landlord may make any payment of money or
perform any other act. All sums so paid by Landlord (together with interest
at the rate of two and one-half percentage points over the then prevailing
prime or base rate in Boston as set by Fleet Bank, N.A., or its successor)
(but in no event greater than the maximum rate permitted by applicable law)
and all costs and expenses in connection with the performance of any such
act by Landlord, shall be deemed to be additional rent under this Lease and
shall be payable to Landlord immediately on demand. Landlord may exercise
the foregoing rights without waiving any other of its rights or releasing
Tenant from any of its obligations under this Lease.
8.18 Any holding over by Tenant after the expiration of the term of this Lease
shall be treated as a tenancy at sufferance and shall be on the terms and
conditions as set forth in this Lease, as far as applicable except that
Tenant shall pay as a use and occupancy charge an amount equal to the
greater of (x) the Holdover Percentage, as hereinafter defined, of the
Annual Fixed Rent and Additional Rent calculated (on a daily basis) at the
highest rate payable under the terms of this Lease or (y) the fair market
rental value of the Premises, in each case for the period measured from the
day on which Tenant's hold-over commences and terminating on the day on
which Tenant vacates the Premises. For purposes hereof, the "Holdover
Percentage" shall be equal to 150% for the first thirty (30) days of such
hold-over and 200% from and after the thirty-first (31st) day of such
hold-over. In addition, if Tenant holds-over for more than thirty (30)
days, Tenant shall save Landlord, its agents and employees harmless and
will exonerate, defend and indemnify Landlord, its agents and employees
from and against any and all damages which
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Landlord may suffer on account of Tenant's hold-over in the Premises after
the expiration or prior termination of the term of this Lease. Nothing in
the foregoing nor any other term or provision of this Lease shall be deemed
to permit Tenant to retain possession of the Premises or hold over in the
Premises after the expiration or earlier termination of the Lease Term. All
property which remains in the Building or the Premises following vacation
by Tenant of the Premises after the expiration or termination of this Lease
shall be conclusively deemed to be abandoned and may either be retained by
Landlord as its property or sold or otherwise disposed of in such manner as
Landlord may see fit. If any part thereof shall be sold, then Landlord may
receive the proceeds of such sale and apply the same, at its option against
the expenses of the sale, the cost of moving and storage, any arrears of
rent or other charges payable hereunder by Tenant to Landlord and any
damages to which Landlord may be entitled under this Lease and at law and
in equity.
8.19 Any insurance carried by either party with respect to the Premises or
property therein or occurrences thereon shall, if it can be so written
without additional premium or with an additional premium which the other
party agrees to pay, include a clause or endorsement denying to the insurer
rights of subrogation against the other party to the extent rights have
been waived by the insured prior to occurrence of injury or loss. Each
party, notwithstanding any provisions of this Lease to the contrary, hereby
waives any rights of recovery against the other for injury or loss due to
hazards covered by such insurance to the extent of the indemnification
received thereunder. This waiver of rights by Tenant shall apply to, and be
for the benefit of, Landlord's managing agent.
8.20 (A) On the conditions (which conditions Landlord may waive by written
notice to Tenant) that at the time of exercise of the herein described
option to extend (i) there exists no "Event of Default" (defined in Section
7.1), (ii) this Lease is still in full force and effect, and (iii) Tenant
has neither assigned this Lease nor sublet any portion of the Premises
(except for an assignment subletting permitted without Landlord's consent
under Section 5.6 hereof), Tenant shall have the right to extend the Term
hereof upon all the same terms, conditions, covenants and agreements herein
contained (except for the Annual Fixed Rent which shall be adjusted during
the option period as hereinbelow set forth and except that there shall be
no further option to extend) for one (1) period of two (2) years. The
option period is sometimes herein referred to as the "Extended Term".
Notwithstanding any implication to the contrary Landlord has no obligation
to make any additional payment to Tenant in respect of any construction
allowance or the like or to perform any work to the Premises as a result of
the exercise by Tenant of such option.
(B) If Tenant desires to exercise its option to extend the Term, then
Tenant shall give notice ("Tenant's Request") to Landlord, not earlier than
fifteen (15) months nor later than twelve (12) months prior to the
expiration of the Original
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Term, of Tenant's request for Landlord's quotation of the annual fair
market rent for the Premises as of the commencement date of the Extended
Term, such quotation to be based on the use of the Premises as first class
office space utilizing properties of a similar character within the Boston
West Suburban market (including premises within the Complex if at the time
such quotation is requested such premises shall be available for rent)
(hereinafter called the "Annual Market Rent"). Within thirty (30) days
after Landlord's receipt of Tenant's notice requesting such a quotation,
Landlord shall notify Tenant of Landlord's quotation of the Annual Market
Rent for the Extended Tenn. Within fifteen (15) days after receipt by
Tenant of Landlord's quotation of such Annual Market Rent, Tenant shall
have the right to extend the Term for the Extended Term by written notice
("Exercise Notice") to Landlord within said last mentioned 15-day period
upon all of the same terms, conditions, covenants and agreements contained
in this Lease except that the annual fixed rent for the Extended Term shall
be equal to the Annual Market Rent as quoted by Landlord for the Extended
Term; provided, however, in no event shall the Annual Fixed Rent payable
during the Extended Term be less than the Annual Fixed Rent for the last
year of the Original Term of this Lease and except further that the only
extension options shall be those set forth in this Section 8.20. Upon the
giving of such notice, this Lease and the Term hereof shall be extended,
for the Extended Term, without the necessity for the execution of any
additional documents (except that Landlord and Tenant agree to enter into
an instrument in writing setting forth the Annual Fixed Rent); and in such
event all references herein to the Term or the term of this Lease shall be
construed as referring to the Term, as so extended, unless the context
clearly otherwise requires. If Tenant fails timely to give either a
Tenant's Request or an Exercise Notice pursuant to this Section 8.20, then
Tenant shall have no further right to extend the term of the Lease pursuant
to this Section 8.20, time being of the essence of the exercise by Tenant
of its rights under this Section 8.20. Tenant shall have no right to extend
the term of this Lease for more than two (2) years after the expiration of
the Original Lease Term.
8.21 SECURITY DEPOSIT
(A) Concurrently with the execution of this Lease, Tenant shall pay to
landlord a security deposit in the amount of One Hundred Four Thousand
Three Hundred Eighty-Two and 24/100 Dollars ($104,382.24) and Landlord
shall hold the same, throughout the Term of this Lease (including the
Extended Term, if applicable), unless sooner returned to Tenant as provided
in this Section 8.21, as security for the performance by Tenant of all
obligations on the part of Tenant to be performed under this Lease. At
Tenant's option, such deposit, or any portion thereof, may be in the form
of an irrevocable, unconditional, negotiable letter of credit (the "Letter
of Credit"). The Letter of Credit shall (i) be issued by and drawn on a
bank reasonably approved by Landlord and at a minimum having a corporate
credit rating from Standard and Poor's Professional Rating Service of BBB-
or a comparable minimum rating from Moody's Professional Rating Service
(Landlord
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hereby approving Silicon Valley Bank as of the date of this Lease), (ii) be
in a form reasonably acceptable to Landlord, (iii) permit one or more draws
thereunder to be made accompanied only by certification by Landlord that
pursuant to the terms of this Lease, Landlord is entitled to apply such
Letter of Credit and the proceeds thereof to an Event of Default of Tenant
under this Lease, (iv) permit transfers at any time without charge, and (v)
permit presentment by recognized overnight delivery service. Any such
Letter of Credit shall be for a term of one (1) year and shall provide for
automatic renewals through the date which is thirty (30) days subsequent to
the scheduled expiration of this Lease (as the same may be extended) unless
at least 45 days prior to the expiration date or applicable anniversary
thereof, the issuer notifies Landlord in writing ("Non Renewal Notice")
that the issuer elects not to so renew the Letter of Credit, or if the
issuer will not grant automatic renewals (subject to a Non Renewal Notice),
the Letter of Credit shall be renewed by Tenant each year and each such
renewal shall be delivered to and received by Landlord not later than
thirty (30) days before the expiration of the then current Letter of Credit
(herein called a "Renewal Presentation Date"). In the event of a failure to
so deliver any such renewal Letter of Credit on or before the applicable
Renewal Presentation Date, or if the issuer gives Landlord a Non Renewal
Notice, Landlord shall be entitled to present the then existing Letter of
Credit for payment and to receive the proceeds thereof, which proceeds
shall be held as Tenant's security deposit, subject to the terms of this
Section 8.21. Upon the occurrence of any Event of Default, Landlord shall
have the right from time to time without prejudice to any other remedy
Landlord may have on account thereof, to draw on all or any portion of such
deposit held as a Letter of Credit and to apply the proceeds of such Letter
of Credit or any cash held as such deposit, or any part thereof, to the
extent necessary to satisfy Landlord's damages arising from such Event of
Default on the part of Tenant under the terms of this Lease. If Landlord so
applies all or any portion of such deposit, Tenant shall within seven (7)
days after notice from Landlord deposit cash with Landlord in an amount
sufficient to restore such deposit to the full amount stated in this
Section 8.21. While Landlord holds any cash deposit Landlord shall have no
obligation to pay interest on the same and shall have the right to
commingle the same with Landlord's other funds. Neither the holder of a
mortgage nor the Landlord in a ground lease on property which includes the
Premises shall ever be responsible to Tenant for the return or application
of any such deposit, whether or not it succeeds to the position of Landlord
hereunder, unless such deposit shall have been received in hand by such
holder or ground Landlord.
Tenant not then being in default beyond the expiration of applicable grace
periods, and having performed all of its obligations under this Lease,
including the payment of all Annual Fixed Rent, Landlord shall return the
deposit, or so much thereof as shall not have theretofore been applied in
accordance with the terms of this Section 8.21, to Tenant on the expiration
or earlier termination of the term of this Lease (as the same may have been
extended) and surrender possession of the
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Premises by Tenant to Landlord in the condition required in the Lease at
such time.
8.22 If Landlord shall not have received any payment or installment of Annual
Fixed Rent or Additional Rent on or before the date (the "Due Date") on
which the same first becomes payable under this Lease, the amount of such
payment or installment shall bear interest from the Due Date through and
including the date such payment or installment is received by Landlord, at
a rate equal to the lesser of (i) the rate announced by Fleet National
Bank, N.A. or its successor from time to time as its prime or base rate (or
if such rate is no longer available, a comparable rate reasonably selected
by Landlord), plus two percent (2%), or (ii) the maximum applicable legal
rate, if any. Such interest shall be deemed additional rent and shall be
paid by Tenant to Landlord upon demand.
8.23 This Lease shall be governed exclusively by the provisions hereof and by
the law of the Commonwealth of Massachusetts, as the same may from time to
time exist.
8.24 Each and every payment and expenditure, other than Annual Fixed Rent, shall
be deemed to be Additional Rent hereunder, whether or not the provisions
requiring payment of such amounts specifically so state, and shall be
payable, unless otherwise provided in this Lease, within thirty (30) days
after written demand by Landlord, and in the case of the non-payment of any
such amount, Landlord shall have, in addition to all of its other rights
and remedies, all the rights and remedies available to Landlord hereunder
or by law in the case of non-payment of Annual Fixed Rent. Unless expressly
otherwise provided in this Lease, the performance and observance by Tenant
of all the terms, covenants and conditions of this Lease to be performed
and observed by Tenant shall be at Tenant's sole cost and expense. If
Tenant has not objected to any statement of Additional Rent which is
rendered by Landlord to Tenant within ninety (90) days after Landlord has
rendered the same to Tenant, them the same shall be deemed to be a final
account between Landlord and Tenant not subject to any further dispute. In
the event that Tenant shall seek Landlord's consent or approval under this
Lease, then Tenant shall reimburse Landlord, upon demand, as Additional
Rent, for all reasonable costs and expenses, including legal and
architectural costs and expenses, incurred by Landlord in processing such
request, whether or not such consent or approval shall be given.
8.25 To induce Landlord to enter into this Lease, the Tenant hereby waives any
right to trial by jury in any action, proceeding or counterclaim brought by
either Landlord or Tenant on any matters whatsoever arising out of any way
connected with this Lease, the relationship of the Landlord and the Tenant,
the Tenant's use or occupancy of the premises and/or any claim of injury or
damage, including but not limited to, any summary process eviction action.
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EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
WITNESS: LANDLORD:
BOSTON PROPERTIES LIMITED PARTNERSHIP
By BOSTON PROPERTIES, INC.,
Its general partner
/s/ [illegible] By /s/ David C. Provost
------------------------------------- -------------------------------------
Name David C. Provost
Title Vice President
TENANT:
ROVING SOFTWARE INCORPORATED
By /s/ Gail F. Goodman
-------------------------------------
Name Gail F. Goodman
Title PRESIDENT
(OR VICE PRESIDENT)
HERETO DULY AUTHORIZED
ATTEST:
/s/ Gail F. Goodman By /s/ Gail F. Goodman
------------------------------------- -------------------------------------
Name Gail F. Goodman Name Gail F. Goodman
Title SECRETARY Title TREASURER
(ASSISTANT SECRETARY) (OR ASSISTANT TREASURER)
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
EXHIBIT A
DESCRIPTION
A parcel of land (the "Land") in Waltham and Lexington, Middlesex County,
Massachusetts containing 34.372 acres and shown on that certain plan entitled
"Plan of Land in Waltham and Lexington, Middlesex Co., Mass.", dated March
6,1986, prepared by Land Surveys Incorporated, recorded with the Middlesex South
District Registry of Deeds (the "Registry") in Book 17090, Page End (the
"Plan"), bounded and described as follows:
[Download Table]
EASTERLY by the Northern Circumferential Highway (Route 128) by two
lines measuring 1,067.16 feet and 127.72 feet;
SOUTHEASTERLY by the ramp to Trapelo Road and Trapelo Road by five lines
AND SOUTHERLY measuring 309.05 feet, 262.57 feet, 122.01 feet, 78.18 feet,
and 8.38 feet;
NORTHWESTERLY by land N/F Reservoir Place Realty Trust, 110 feet;
SOUTHERLY by land N/F Reservoir Place Realty Trust, 96.07 feet, and by
land N/F William and Louise Butler, 99 feet;
NORTHWESTERLY by land N/F Thomas P. and Sandra H. Kehoe, 105 feet;
SOUTHERLY 62 feet,
SOUTHEASTERLY 39.27 feet and 160 feet, and
NORTH-EASTERLY 39.27 feet, all by land of N/F Thomas P, and Sandra H.
Kehoe;
SOUTHWESTERLY by Trapelo Road, 95 feet;
NORTHWESTERLY 39.27 feet and 100 feet, and
SOUTHWESTERLY 102.57 feet, all by land N/F Leonard and Evalyn Weld;
NORTHWESTERLY 275 feet, and
SOUTHWESTERLY 122.35, by land N/F Robert L. and Barbara T. Anderson;
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[Download Table]
NORTHWESTERLY by two lines measuring 235.15 feet and 284.27 feet, by lands
N/F Edward J. and Beverly J. Mirabito, Carol Lane, N/F
Charles J. Senior, Jr., N/F Donald and Shirley Gibbs, N/F
Raymond R. and Bridget Picard, and N/F Henry F. Miller;
WESTERLY by five lines measuring 580.06 feet, 25 feet, 128.21 feet,
344.66 feet and 9.12 feet, by lands N/F Henry P, Miller, N/F
John H. and Nancy Russell, N/F Frederick and Anne Creamer,
N/F J.S.C. Realty Trust, N/F Santo and Catherine Lafauci,
N/F Jean Yves and Annette Morin,
N/F Helen K. Hickey, Priscilla Lane, N/F Stanley C. and
Louise H. Whynock, and the City of Waltham;
NORTHEASTERLY 692.16 feet by land N/F The C-R Trust;
EASTERLY 137.39 feet by Route 128;
SOUTHWESTERLY by two lines measuring 336.67 feet and 286.94 feet by land
N/F Tracer Lane Trust;
EASTERLY by two lines measuring 506.14 feet and 325.94 feet, by land
N/F Tracer Lane Trust;
NORTHERLY 45 feet,
WESTERLY 27 feet, and
NORTHERLY 555.01 feet, all by land N/F Tracer Lane Trust.
Together with the right, in common with others, use Tracer Lane, a private
way, throughout its entire length over the Land, for access to and from Trapelo
Road, a public way, and for all other purposes for which public ways are
normally used in the City of Waltham and the Town of Lexington, as shown on the
Plan.
Together with the appurtenant right in common with others to use that
portion of the Land located within the easement granted to Boston Edison Company
by a Grant of Easement dated October 2, 1946 and recorded in the Registry in
Book 7098, Page 118, for all purposes allowed under an Agreement with Boston
Edison Company and Albamont Properties, Inc. dated January 31, 1975 and recorded
in the Registry in Book 12771, Page 538.
Together with the appurtenant right and easement, in common with others, to
discharge surface water contained in an Easement Indenture among Tracerlab, Inc.
et al. dated January 9, 1957 and recorded in the Registry in Book 8892, Page
112.
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Together with the appurtenant rights and easements, in common with others,
granted to, the owner of the Land in (a) an Indenture among Boston Edison
Company et al. Dated September 19, 1966 and recorded in the Registry in Book
11258, Page 79, (b) a Utilities Maintenance Agreement among LFE Inc. et al dated
September 19, 1966 and recorded in the Registry in Book 11258, Page 92, and (c)
an Easement Indenture among 128 Realty Corporation et al. dated September 19,
1966 and recorded in the Registry in Book 11258, Page 061.
Together with the right and easement, in common with others, granted the
owner of the Land in an Agreement dated May 12,1975 and recorded in the Registry
in Book 12892, Page 410.
Together with the right to terminate the Agreement between Leonard N. Weld
et ux. dated April 9,1974 and recorded in the Registry in Book 12627, Page 235.
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EXHIBIT B
DESCRIPTION OF LANDLORD'S WORK
Phase I Construction
1. Server room 4-ton dedicated HVAC unit installed, functional, and tested
with a separate thermostat control in the server room.
2. Server room expansion by relocating left server room wall roughly 6 1/2
feet into the kitchen space.
3. Power requirements
a. Dedicate the already existing 60-amp panel in the server room to
exclusively power all of the cubicles that Tenant is building out
(complete)
b. Installing another 60-amp panel (three phase) in the server room to
service all of the server racks and computers within the server room.
c. Connecting the A/C unit to the already existing Nema-5-30 wall outlet,
which draws power from a third power panel NOT located in the Premises
(complete)
d. Attaching the 4 quad outlets in the server room to another power panel
which is NOT in the Premises (complete)
Phase II Construction
1. Removal of small decorative wall at main entrance.
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EXHIBIT C
LANDLORD SERVICES
RESERVOIR PLACE
I. CLEANING:
Cleaning and janitor services as provided below:
A. OFFICE AREAS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Empty all waste receptacles and ashtrays and remove waste
material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces, including furniture, office equipment, window sills,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains and sanitize.
6. Move and dust under all desk equipment and telephones and replace
same (but not computer terminals, specialized equipment or other
materials).
7. Wipe clean all chrome and other bright work.
8. Hand dust grill work within normal reach.
9. Main doors to premises shall be locked and lights shut off upon
completion of cleaning.
WEEKLY:
1. Dust coat racks and the like.
2. Spot clean entrance doors, light switches and doorways.
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QUARTERLY:
1. Render high dusting not reached in daily cleaning to include:
a) dusting all pictures, frames, charts, graphs and similar
wall hangings.
b) dusting of all vertical surfaces, such as walls, partitions,
doors and door frames, etc.
c) dusting all pipes, ducts and moldings.
d) dusting of all vertical blinds.
e) dust all ventilating, air conditioning, louvers and grills.
2. Spray buff all resilient floors.
B. LAVATORIES:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers,
sanitary dispensers; materials to be furnished by Landlord,
MONTHLY:
1. Machine scrub lavatory floors.
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2. Wash all partitions and tile walls in lavatories.
3. Dust all lighting fixtures and grills in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS:
DAILY: (Monday through Friday, inclusive, holidays excepted).
1. Sweep and damp mop all floors, empty and clean waste receptacles,
dispose of waste.
2. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
3. Spot clean any metal work inside lobbies.
4. Spot clean any metal work surrounding building entrance doors.
5. Sweep all stairwells and dust handrails.
MONTHLY:
1. All resilient tile floors in public areas to be spray buffed.
D. WINDOW CLEANING:
All exterior windows shall be washed on the inside and outside
surfaces no less than three (3) times per year.
II. HVAC:
A. Heating, ventilating and conditioning equipment will be provided with
sufficient capacity to accommodate a maximum population density of one
(1) person per one hundred fifty (150) square feet of useable floor
area served. In the event Tenant introduces into the Premises
personnel or equipment which overloads the system's ability to
adequately perform its proper functions, Landlord shall notify Tenant
in writing and supplementary system(s) may be required and installed
by Landlord at Tenant's expense, if within fifteen (15) days Tenant
has not modified its use so as not to cause such overload.
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Operating criteria of the basic system are in accordance with the
Massachusetts Energy Code and shall not be less than the following:
1. Cooling season indoor conditions of not in excess of 78 degrees
Fahrenheit when outdoor conditions are 91 degrees Fahrenheit
drybulb and 73 degrees Fahrenheit wetbulb.
2. Heating season minimum room temperature of 70 degrees Fahrenheit
when outdoor conditions are 6 degrees Fahrenheit drybulb.
B. Landlord shall provide heating, ventilating and air conditioning as
normal seasonal charges may require during Normal Building Operating
Hours (8:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to
1:00 p.m. on Saturdays, legal holidays in all cases excepted).
If Tenant shall require air conditioning (during the air conditioning
season) or heating or ventilating during any season outside Normal
Building Operating Hours, Landlord shall use landlord's best efforts
to furnish such services for the area or areas specified by written
request of Tenant delivered to the Building Superintendent or the
Landlord before 3:00 p.m. of the business day preceding the extra
usage. For such services, Tenant shall pay Landlord, as additional
rent, upon receipt of billing, a sum equal to the cost incurred by
Landlord. As of the date of this Lease, the cost for such service is
$32.00 per hour.
III. ELECTRICAL SERVICES:
A. Landlord shall provide electric power for a combined load of 3.0 watts
per square foot of useable area for lighting and for office machines
through standard receptacles for a typical office space and Landlord
shall provide the additional power requirements per Exhibit B.
B. Landlord shall require separate check or sub-metering and direct
billing to Tenant for the electric power required for the HVAC unit to
be installed in the Premises as part of the Landlord Work and for any
other special equipment (such as computers and reproduction equipment)
that requires either 3-phase electric power or any voltage other than
120, or for any other usage in excess of 3.0 watts per square foot.
C. Landlord will furnish and install, at Tenant's expense, all
replacement lighting tubes, lamps and ballasts required by Tenant.
Landlord will clean lighting fixtures on a regularly scheduled basis
at Tenant's expense.
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IV. ELEVATORS:
Provide passenger elevator service.
V. WATER:
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. CARD ACCESS SYSTEM:
Landlord will provide a card access system at one entry door of the
building.
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EXHIBIT D
FLOOR PLAN
[IMAGE OF FLOOR PLAN]
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EXHIBIT E
FORM OF COMMENCEMENT DATE AGREEMENT
Reference is made to that certain Lease by and between ___________________
__________________, a(n) __________________, Landlord and _____________________,
a(n) ________________________, Tenant, and dated ___________________.
Landlord and Tenant hereby confirm and agree that the Commencement Date
under the Lease is _______________________ and that the Lease Term is _________.
This Commencement Date Agreement is executed as a sealed instrument as of
_________, 20___.
LANDLORD: ,
-----------------------------
a(n)
-----------------------------------
By:
------------------------------------
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By:
------------------------------------
------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TENANT: ,
-------------------------------
A(n)
-----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Name (print):
--------------------------
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EXHIBIT F
LIST OF MORTGAGEES
Security Agreement and Mortgage Deed, dated 10/30/96 recorded in the South
Middlesex Registry of Deeds at Book 26791, Page 101, affected by Amended and
Restated Mortgage Deed from Landlord to Teachers Insurance and Annuity
Association of America, dated 11/3/98 recorded with said Deeds, said mortgagee
having an address Attn: Joan Herman, Sr. Investment Analyst, 730 Third Avenue,
New York, NY 10017.
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FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE dated as of this 29th day of June, 2005, by and
between BOSTON PROPERTIES LIMITED PARTNERSHIP, as landlord ("Landlord") and
ROVING SOFTWARE INCORPORATED, a Delaware corporation, d/b/a CONSTANT CONTACT, as
tenant ("Tenant").
RECITALS
By Lease (the "Lease") dated July 9, 2002, Landlord did lease to Tenant and
Tenant did lease from Landlord a portion of the second (2nd) floor of the
building known as and numbered Reservoir Place, 1601 Trapelo Road, Waltham,
Massachusetts (the "Building") consisting of 8,521 square feet of rentable floor
area (the "Rentable Floor Area of the Initial Premises") which Premises are more
particularly described in the Lease (the "Initial Premises").
Landlord and Tenant have agreed to terminate the Lease with regard to the
entire Initial Premises (hereinafter sometimes also referred to as the
"Relinquished Premises") and Tenant has determined to Lease from Landlord the
27,094 square feet of rentable floor area (the "Rentable Floor Area of the New
Premises") on the third floor of the Building, which space is shown on Exhibit A
attached hereto as New Premises (hereinafter sometimes referred to as the "New
Premises ") upon all of the same terms and conditions contained in the Lease,
except as otherwise provided in this First Amendment to Lease (the "First
Amendment").
In addition, the Lease provides for a Term which will expire, unless
extended or sooner terminated, on July 31, 2005. Landlord and Tenant desire to
extend the Term of the Lease upon the terms contained in this First Amendment.
Landlord and Tenant are entering into this instrument to set forth said
leasing of the New Premises, to integrate the New Premises into the Lease, to
extend the Term of the Lease and to amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to other,
the receipt and sufficiency of which are hereby severally acknowledged, and in
further consideration of the mutual promises herein contained, Landlord and
Tenant hereby agree to and with each other as follows:
1. As of the "New Premises Commencement Date (as defined in Section 2
hereinbelow) the New Premises shall constitute a part of the "Premises" (and
"Tenant's Space") demised to Tenant under the Lease and as of the "Relinquish
Date" (as defined in Section 3 hereof) the Relinquished Premises shall no longer
be deemed to be a part of and shall be deleted and removed from the "Premises"
(and "Tenant's Space") demised to Tenant under the Lease. By way of example, the
option to extend the Lease Term provided in Section 6 hereinbelow shall apply to
the New Premises but not to the Relinquished Premises.
2. The following definitions are hereby added to Section 1.1 of the Lease
immediately after the definition of "Outside Completion Date for Phase II
Construction":
NEW PREMISES The earlier to occur of (i) the date on which
COMMENCEMENT DATE: the New Premises are substantially complete as
provided in Exhibit C attached to this First
Amendment, or (ii) the date which Tenant
commences beneficial use of the New Premises.
NEW PREMISES October 1, 2005
SCHEDULED TERM
COMMENCEMENT DATE:
NEW PREMISES OUTSIDE March 1, 2006
COMPLETION DATE:
NEW PREMISES LEASE That period of time commencing on the New
TERM: Premises Commencement Date and expiring on the
expiration on the First Extended Term (defined
in Section 4 hereinbelow).
3. On or prior to the New Premises Commencement Date (sometimes hereinafter
also referred to as the "Relinquish Date"), Tenant shall quit and vacate the
Relinquished Premises and surrender the same in the condition required by the
Lease upon the expiration or earlier termination of the Lease Term.
4. The Lease Term, which but for this First Amendment is scheduled to
expire on July 31, 2005, is hereby extended for a period commencing on August 1,
2005 and expiring on the date which is sixty (60) months subsequent to the New
Premises Commencement Date (plus the partial month, if any, immediately
following the New Premises Commencement Date) (the "First Extended Term") unless
sooner extended or terminated in accordance with the provisions of the Lease as
herein amended, such extension to be upon all the same terms and conditions set
forth in the Lease except as otherwise provided in this First Amendment.
5. Section 8.20 of the Lease is hereby deleted in its entirety and Landlord
and Tenant hereby acknowledge and agree that Tenant's only option to extend the
Lease Term beyond the expiration of the First Extended Term shall be as set
forth in Section 6 hereinbelow.
6. (A) On the conditions (which conditions Landlord may waive by written
notice to Tenant) that both at the time of exercise of the herein described
option to extend and as of the commencement of such extended term (i) there
exists no "Event of Default" (defined in Section 7.1 of the Lease) and there
have been no more than two (2) Event of Default occurrences during the Term,
(ii) the Lease is still in full force and effect, and (iii) Tenant has neither
assigned the Lease nor sublet the Premises (except for an assignment or
subletting permitted without Landlord's consent under Section 5.6 hereof),
Tenant shall have the right to extend the Term of the Lease upon all the same
terms, conditions, covenants and agreements contained in the Lease (except for
the Annual Fixed Rent which shall be adjusted during the option period as
hereinbelow set forth and except that there shall be no further option to
extend) for one period of
three (3) years. The option period is sometimes herein referred to as the
"Second Extended Term." Notwithstanding any implication to the contrary Landlord
has no obligation to make any additional payment to Tenant in respect of any
construction allowance or the like or to perform any work to the Premises as a
result of the exercise by Tenant of any such option.
(B) If Tenant desires to exercise its option to extend the Term of the
Lease, then Tenant shall give notice ("Tenant's Request") to Landlord, not
earlier than fifteen (15) months nor later than twelve (12) months prior to the
expiration of the First Extended Tenn, of Tenant's request for Landlord's
quotation of the annual fair market rent for the Premises as of the commencement
date of the Second Extended Term, such quotation to be based on the use of the
Premises as first class office space utilizing properties of a similar character
within the Boston West Suburban market (including premises within the Complex if
at the time such quotation is requested such premises shall be available for
rent) (hereinafter called the "Annual Market Rent"). Within thirty (30) days
after Landlord's receipt of Tenant's notice requesting such a quotation,
Landlord shall notify Tenant of Landlord's quotation of the Annual Market Rent
for the Second Extended Term. Within fifteen (15) days after receipt by Tenant
of Landlord's quotation of such Annual Market Rent, Tenant shall have the right
to extend the Term of the Lease for the Second Extended Term by written notice
("Exercise Notice") to Landlord within said last mentioned 15-day period upon
all of the same terms, conditions, covenants and agreements contained in the
Lease, as amended, except that the annual fixed rent for the Second Extended
Term shall be equal to the Annual Market Rent as quoted by Landlord for the
Second Extended Term; provided, however, in no event shall the Annual Fixed Rent
payable during the Second Extended Term be less than the Annual Fixed Rent for
the last year of the Term of the Lease as it may have been extended and except
further that there shall be no further extension option. Upon the giving of such
notice, the Lease and the Term shall be extended, for the Second Extended Term,
without the necessity for the execution of any additional documents (except that
Landlord and Tenant agree to enter into an instrument in writing setting forth
the Annual Fixed Rent); and in such event all references herein to the Term or
the term of the Lease shall be construed as referring to the Term, as so
extended, unless the context clearly otherwise requires. If Tenant fails timely
to give either a Tenant's Request or an Exercise Notice pursuant to this Section
6, then Tenant shall have no further right to extend the term of the Lease
pursuant to this Section 6, time being of the essence of the exercise by Tenant
of its rights under this Section 6. Tenant shall have no right to extend the
term of this Lease for more than three (3) years after the expiration of the
First Extended Term.
7. (A) Annual Fixed Rent for the Initial Premises shall continue to be
payable through the Relinquish Date as provided in the Lease.
(B) (i) During the period from the New Premises Commencement Date
through the date which is twenty-four (24) months subsequent to the New Premises
Commencement Date (plus the partial month, if any, immediately following the New
Premises Commencement Date), Annual Fixed Rent for the New Premises shall be
payable at the annual rate of $636,709.00 (being the product of (i) $23.50 and
(ii) the Rentable Floor Area of the New Premises).
(ii) During the period from the twenty-fifth (25th) month
following the New Premises Commencement Date (plus the partial month, if any,
immediately
following the New Premises Commencement Date) through the expiration of the
First Extended Term, Annual Fixed Rent for the New Premises shall be payable at
the annual rate of $650,256.00 (being the product of (i) $24.00 and (ii) the
Rentable Floor Area of the New Premises).
(C) Annual Fixed Rent for the New Premises during the Second
Extended Term (if exercised) shall be payable as provided in Section 6 of this
First Amendment.
8. (A) For purposes of calculating Tenant's payments for Operating Expenses
pursuant to Section 2.6 of the Lease for that portion of the Lease Term prior to
the New Premises Commencement Date, the definition of "Base Operating Expenses"
contained in Section 1.1 of the Lease shall be unchanged. For that portion of
the Lease Term on and after the New Premises Commencement Date, for such
purposes, the definition of "Base Operating Expenses" shall be deleted in its
entirety and substituted with the following:
BASE OPERATING Landlord's Operating Expenses (as hereinafter defined
EXPENSES: in Section 2.6) for calendar year 2005 being January 1,
2005 through December 31, 2005.
(B) For purposes of calculating Tenant's payments for real estate
taxes pursuant to Section 2.7 of the Lease for that portion of the Lease Term
prior to the New Premises Commencement Date, the definition of "Base Taxes"
contain in Section 1.1 of the Lease shall be unchanged. For that portion of the
Lease Term on and after the New Premises Commencement Date, for such purposes,
the definition of "Base Taxes" shall be deleted in its entirety and Substituted
with the following:
BASE TAXES: Landlord's Tax Expenses (as defined in Section 2.7)
for fiscal tax year 2006 (being July 1, 2005 through
June 30, 2006).
9. For the purposes of computing Tenant's payments for operating expenses
pursuant to Section 2.6 of the Lease, Tenant's payments for real estate taxes
pursuant to Section 2.7 of the Lease and Tenant's payments for electricity (as
determined pursuant to Sections 2.5 and 2.8 of the Lease) for the period on and
after the New Premises Commencement Date , the "Rentable Floor Area of Tenant's
Space" shall be 27,094 square feet (being the Rentable Floor Area of New
Premises). For the period prior to such date, the definition of "Rentable Floor
Area of Tenant's Space" shall continue to be the Rentable Floor Area of the
Initial Premises for such purposes.
10. , As of the date of this First Amendment, Tenant agrees to pay to
Landlord $111,917.76 (the "Additional Security Deposit"). Such Additional
Security Deposit along with the original security deposit in the amount of
$104,382.24 paid by Tenant in accordance with Section 8.21 of the Lease contain
a total of $216,300.00 and shall be held by Landlord as security for the
performance by Tenant of all obligations on the part of the Tenant under the
Lease during the Term (as extended hereunder and as may be further extended)
with respect to
the Initial Premises, the New Premises and the Sublease Premises pursuant to the
terms and conditions set forth in such Section 8.21.
11. Landlord agrees to perform the work respecting the New Premises as
described in Exhibit B attached hereto. All such work will be performed in
accordance with the Work Letter attached hereto as Exhibit C.
12. As of the New Premises Commencement Date, the "Number of Parking
Privileges" for which Tenant is entitled pursuant to Section 1.1 shall be
increased to ninety-five (95) automobiles, thirty-one (31) of which are located
in the garage below the Building and sixty-four (64) of which are located on the
outdoor surface lot.
13. In no event shall Tenant have the right to terminate or cancel the
Lease or to withhold rent or to set-off any claim or damages against rent as a
result of any default by Landlord or breach by Landlord of its covenants or
warranties or promises under the Lease, except in the case of a wrongful
eviction of Tenant from the demised premises (constructive or actual) by
Landlord continuing after notice to Landlord thereof and a reasonable
opportunity for Landlord to cure the same. Further, the Tenant shall not assert
any right to deduct the cost of repairs or any monetary claim against the
Land1ord from rent thereafter due and payable, but shall look solely to the
Landlord for satisfaction of such claim.
14. As an inducement to Landlord to enter into this First Amendment, Tenant
hereby represents and warrants that: (i) Tenant is not, nor is it owned or
controlled directly or indirectly by, any person, group, entity or nation named
on any list issued by the Office of Foreign Assets Control of the Unites States
Department of the Treasury ("OFAC") pursuant to Executive Order 13224 or any
similar list or any law, order, rule or regulation or any Executive Order of the
President of the United States as a terrorist, "Specially Designated National
and Blocked Person" or other banned or blocked person (any such person, group,
entity or nation being hereinafter referred to as a "Prohibited Person"); (ii)
Tenant is not (nor is it owned, controlled, directly or indirectly, by any
person, group, entity or nation which is) acting directly or indirectly for or
on behalf of any Prohibited Person; and (iii) neither Tenant (nor any person,
group, entity or nation which owns or controls Tenant, directly or indirectly)
has conducted or will conduct business or has engaged or will engage in any
transaction or dealing with any Prohibited Person, including without limitation
any assignment of the Lease or any subletting of all or any portion of the
Premises or the making or receiving of any contribution or funds, goods or
services to or for the benefit of a Prohibited Person. In connection with the
foregoing, it is expressly understood and agreed that (x) any breach by Tenant
of the foregoing representations and warranties shall be deemed an immediate
Event of Default by Tenant under Section 7.1 of the Lease (without the benefit
of notice or grace) and shall be covered by the indemnity provisions of Section
5.7 of the Lease, and (y) the representations and warranties contained in this
subsection shall be continuing in nature and shall survive the expiration or
earlier termination of the Lease.
15. Landlord and Tenant acknowledge that as of the date of this First
Amendment Tenant subleases from Authoria, Inc. pursuant to a Sublease dated
October __ 2004 (the "Sublease") 2,200 square feet of rentable floor area
located on the second floor of the Building (the "Sublease Premises") and that
the term of the Sublease along with the underlying master
lease are scheduled to expire on July 31, 2005 (the "Sublease Expiration Date").
In the event that the New Premises Commencement Date has not occurred prior to
the Sublease Expiration Date, the Sublease Premises shall be added to the
"Premises" leased under the Lease for a term commencing on August 1, 2005 and
expiring on the New Premises Commencement Date. The leasing of the Sublease
Premises shall be upon all of the terms and conditions set forth in the Lease,
as amended, except that Tenant shall not be obligated to make payments for
operating expenses as provided in Section 2.6, real estate taxes as provided in
Section 2.7 or electricity as provided in Sections 2.5 and 2.8 for the Sublease
Premises and except further that Annual Fixed Rent shall be payable for the
Sublease Premises at the annual rate of $44,000.00 (being the product of (i)
$20.00 and (ii) the Rentable Floor Area of the Sublease Premises (being 2,200
square feet) in the same manner provided in the Lease for payments of Annual
Fixed Rent. Notwithstanding anything to the contrary herein, Landlord shall have
no obligation to perform any additions, alterations or improvements in the
Sublease Premises. Upon the expiration or earlier termination of the Lease with
respect to the Sublease Premises, Tenant shall return the Sublease Premises to
Landlord in the condition required pursuant to the Lease. The extension option
contained in this First Amendment shall not be applicable to the Sublease
Premises.
16. (A) Tenant warrants and resents that Tenant has not dealt with any
broker in connection with the consummation of this First Amendment other than
Cushman & Wakefield (the "Broker"); and in the event any claim is made against
Landlord relative to dealings by Tenant with brokers other than the Broker,
Tenant shall defend the claim against Landlord with counsel of Tenant's
selection first approved by Landlord (which approval will not be unreasonably
withheld) and save harmless and indemnify Landlord on account of loss, cost or
damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with
any broker in connection with the consummation of this First Amendment other
than the Broker; and in the event any claim is made against Tenant relative to
dealings by Landlord with brokers, Landlord shall defend the claim against
Tenant with counsel of Landlord's selection and save harmless and indemnify
Tenant on account of loss, cost or damage which may arise by reason of such
claim.
17. Except as otherwise expressly provided herein, all capitalized terms
used herein without definition shall have the same meanings as are set forth in
the Lease.
18. Except as herein amended the Lease shall remain unchanged and in full
force and effect. All references to the "Lease" shall be deemed to be references
to the Lease as herein amended.
EXECUTED as of the date and year first above written.
WITNESS: LANDLORD:
BOSTON PROPERTIES LIMITED PARTNERSHIP
By BOSTON PROPERTIES, INC.,
its general partner
/s/ [illegible] By: /s/ David C. Provost
------------------------------------- -------------------------------------
Name: David C. Provost
Title: Senior Vice President
Boston Properties
TENANT:
ATTEST: ROVING SOFTWARE INCORPORATED
By: /s/ Eric S. Groves By: /s/ Gail F. Goodman
---------------------------------- -------------------------------------
Name: Eric S. Groves Name: Gail F. Goodman
Title: Secretary or Assistant Title: President (or Vice President)
Secretary
EXHIBIT B
DESCRIPTION OF LANDLORD'S WORK
[IMAGE OF FLOOR PLAN]
EXHIBIT C
WORK LETTER
1.1 SUBSTANTIAL COMPLETION.
(A) Plans and Construction Process.
(1) Landlord's Work. Landlord shall perform the work in the New
Premises shown on the plans (the "Plans") listed on Exhibit B
annexed to this Amendment ("Landlord's Work"); provided, however,
that Landlord shall have no responsibility for the installation
or connection of Tenant's computer, telephone, other
communication equipment, systems or wiring. Any items of work
requested by Tenant and not shown on the Plans shall be deemed to
be Change Proposal(s) (as defined below) and shall be subject to
the terms and provisions of subsection (2) below.
(2) Change Orders. Tenant shall have the right, in accordance
herewith, to submit for Landlord's approval change proposals with
respect to items of work not shown on the Plans (each, a "Change
Proposal"). Landlord agrees to respond to any such Change
Proposal within such time as is reasonably necessary (taking into
consideration the information contained in such Change Proposal)
after the submission thereof by Tenant, advising Tenant of any
anticipated costs ("Change Order Costs") associated with such
Change Proposal (which shall include a construction management
fee equal to 6% of the Change Proposal), as well as an estimate
of any delay which would likely result in the completion of the
Landlord's Work if a Change Proposal is made pursuant thereto.
Tenant shall have the right to then approve or withdraw such
Change Proposal within five (5) days after receipt of such
information. If Tenant fails to respond to such Change Proposal
within such five (5) day period, such Change Proposal shall be
deemed withdrawn. If Tenant approves such Change Proposal, then
such Change Proposal shall be deemed a "Change Order" hereunder
and if the Change Order is made, then the Change Order Costs
associated with the Change Order shall be deemed additions to
Landlord's Work and shall be paid in the same manner as Tenant
Plan Excess Costs are paid as set forth in Section 1.3.
(3) Except to the extent that another time period is expressly herein
set forth, Tenant shall respond to any request from Landlord,
Landlord's architect, Landlord's contractor and/or Landlord's
construction representative for approvals or information in
connection with Landlord's Work, within two (2) business days of
Tenant's receipt of such request. In addition, Tenant shall,
within two (2) business days after receipt thereof from Landlord,
execute and deliver to Landlord any affidavits and documentation
required in order to obtain all permits and approvals necessary
for Landlord to
commence and complete Landlord's Work on a timely basis ("Permit
Documentation").
(4) Time of the Essence. Time is of the essence in connection with
Tenant's obligations under this Section 1.1.
(B) Substantial Completion; Tenant Delay.
(1) Landlord's Obligations. Subject to delays due to Tenant Delays
(as hereinafter defined) and delays due to any prevention, delay
or stoppage due to governmental regulation, strikes, lockouts,
acts of God, acts of war, terrorist acts, civil commotions,
unusual scarcity of or inability to obtain labor or materials,
labor difficulties, casualty or other causes reasonably beyond
Landlord's control or attributable to Tenant's action or inaction
("Force Majeure"), Landlord shall use reasonable speed and
diligence to have the Landlord's Work with respect to the New
Premises substantially completed on or before the New Premises
Scheduled Term Commencement Date, but Tenant shall have no claim
against Landlord for failure so to complete construction of
Landlord's Work in the New Premises, except for the right to
terminate this Lease with respect to the New Premises only,
without further liability to either party, in accordance with the
provisions hereinafter specified in Section 1.2
(2) Definition of Substantial Completion. The New Premises shall be
treated as having been substantially completed and be deemed
ready for Tenant's occupancy on the later of:
(a) The date on which Landlord's Work, together with common
facilities for access and services to the New Premises has
been completed (or would have been completed except for
Tenant Delay) except for items of work and adjustment of
equipment and fixtures which can be completed after
occupancy has been taken without causing substantial
interference with Tenant's use of such premises (i.e.
so-called "punch list" items), or
(b) The date when permission has been obtained from the
applicable governmental authority, to the extent required
by law, for occupancy by Tenant of the New Premises for the
Permitted Use (as defined in the Lease), unless the failure
to obtain such permission is due to a Tenant Delay.
In the event of any dispute as to the date on which Landlord's
Work has been completed, the reasonable determination of
Landlord's architect as to such date shall be deemed conclusive
and binding on both Landlord and Tenant.
(3) Incomplete Work. Landlord shall complete as soon as conditions
practically permit any incomplete items of Landlord's Work, and
Tenant
shall cooperate with Landlord in providing access as may be
required to complete such work in a normal manner.
(4) Early Access by Tenant. Landlord shall permit Tenant access for
installing Tenant's trade fixtures in portions of the New
Premises prior to substantial completion with it can be done
without material interference with remaining work or with the
maintenance of harmonious labor relations. Any such access by
Tenant shall be upon all of the terms and conditions of the Lease
(other than the payment of Annual Fixed Rent) and shall be at
Tenant's sole risk, and Landlord shall not be responsible for any
injury to persons or damage to property resulting from such early
access by Tenant.
(5) Prohibition on Access by Tenant Prior to Actual Substantial
Completion. If, prior to the date that either the New Premises
are in fact actually substantially complete, the New Premises are
deemed to be substantially complete pursuant to the provisions of
this Section (i.e. and the Commencement Date has therefore
occurred), Tenant shall not (except with Landlord's consent) be
entitled to take possession of the New Premises for the Permitted
Use until the New Premises is in fact actually substantially
complete.
(C) Tenant Delay.
(1) A "Tenant Delay" shall be defined as the following:
(a) Tenant's failure timely to respond to any request from
Landlord, Landlord's architect, Landlord's contractor and/or
Landlord's construction representative or to timely provide
all required Permit Documentation to Landlord within the
applicable time periods get forth in this Work Letter;
(b) Tenant's failure pay the Tenant Plan Excess Costs in
accordance with Section 1.3 of this Work Letter;
(c) Any delay due to items work for which there is long lead
time in obtaining the materials therefor or which are
specially or specifically manufactured, produced or milled
for the work in or to the New Premises and require
additional time for receipt or installation;
(d) Any delay due to changes, alterations or additions required
or made by Tenant with respect to items not shown on the
Plans including, without limitation, Change Orders; or
(e) Any other delays caused by Tenant, Tenant's contractors,
architects, engineers, or anyone else engaged by Tenant in
connection with the preparation of the New Premises for
Tenant's
occupancy, including, without limitation, utility companies
and other entities furnishing communications, data
processing or other service, equipment, or furniture.
(2) Tenant Obligations with Respect to Tenant Delays.
(a) Tenant covenants that no Tenant Delay shall delay
commencement of the Term or the obligation to pay Annual
Fixed Rent or Additional Rent, regardless of the reason for
such Tenant Delay or whether or not it is within the control
of Tenant or any such employee. Landlord's Work shall be
deemed substantially completed as of the date when
Landlord's Work would have been substantially completed but
for any Tenant Delays, as determined by Landlord in the
exercise of its good faith business judgment.
(b) Tenant shall reimburse Landlord the amount, if any, by which
the cost of Landlord's Work is increased as the result of
any Tenant Delay.
(c) Any amounts due from Tenant to Landlord under this Section
1.1(C)(2) shall be due and payable within thirty (30) days
of billing therefor, and shall be considered to be
Additional Rent. Nothing contained in this Section 1.1(C)(2)
shall limit or qualify or prejudice any other covenants,
agreements, terms, previsions and conditions contained in
this Lease.
1.2 OUTSIDE COMPLETION DATE.
If Landlord shall have failed substantially to complete Landlord's Work in the
New Premises described in the Plans on or before the New Premises Outside
Completion Date as defined in the First Amendment to which this Work Letter is
attached (which date shall be extended automatically for such periods of time as
Landlord is prevented from proceeding with or completing the same by reason of
Landlord's Force Majeure or any act or failure to act of Tenant which interferes
with Landlord's construction of the New Premises without limiting Landlord's
other rights on account thereof), Tenant shall have the right to terminate this
First Amendment with respect to New Premises by giving notice to Landlord of
Tenant's desire to do so before such completion and within the time period from
the New Premises Outside Completion Date (as so extended) until the date which
is thirty (30) days subsequent to the New Premises Outside Completion Date (as
so extended); and, upon the giving of such notice, this First Amendment with
respect to New Premises shall cease and come to an end without further liability
or obligation on the part of either party unless, within thirty (30) days after
receipt of such notice, Landlord substantially completes Landlord's Work
respecting New Premises. Such right of termination with respect to New Premises
shall be Tenant's sole and exclusive remedy for Landlord's failure so to
complete Landlord's Work within such time and in no event shall Tenant have a
right to terminate the Lease with respect to the Initial Premises for such
failure. Each day of Tenant Delay shall be deemed conclusively to cause an
equivalent day of delay by Landlord in substantially completing Landlord's Work
respecting New Premises pursuant to Section 1.1 hereof, and thereby
automatically extend for each such equivalent day of delay the date of the New
Premises Outside Completion Date.
1.3 TENANT PLAN EXCESS COSTS.
Notwithstanding anything contained in this Work Letter to the contrary, it is
understood and agreed that Tenant shall be fully responsible for the costs of
any items of work not shown on the Plans attached to this First Amendment as
Exhibit B (the "Tenant Plan Excess Costs"). To the extent, if any, that there
are Tenant Plan Excess Costs, Tenant shall pay Landlord, as Additional Rent, 50%
of the Tenant Plan Excess Costs prior to the commencement of the Landlord's
Work, with the balance of the Tenant Plan Excess Costs due upon substantial
completion of the Landlord's Work respecting New Premises; provided, however,
that in the event that the Tenant Plan Excess Costs exceed $10,000 (the "Maximum
Amount"), then Tenant shall pay to Landlord, as Additional Rent, at the time
that Tenant approves any Change Order that causes the Tenant Plan Excess Costs
to exceed the Maximum Amount, all Tenant Plan Excess Costs in excess of the
Maximum Amount.
SECOND AMENDMENT TO LEASE
SECOND AMENDMENT TO LEASE dated as of this 24th day of July, 2006 by and between
BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, the
general partner of which is Boston Properties, Inc., a Delaware corporation, as
landlord ("Landlord") and ROVING SOFTWARE INCORPORATED, a Delaware corporation,
d/b/a CONSTANT CONTACT, as tenant ("Tenant").
RECITALS
By Lease dated July 9, 2002 (the "Original Lease"), as amended by First
Amendment to Lease dated as of June 29, 2005 (the "First Amendment") Landlord
did lease to Tenant and Tenant did hire and lease from Landlord certain premises
containing 27,094 square feet of rentable floor area ("Rentable Floor Area of
Existing Premises") located on the third (3rd) floor in the building (the
"Building") commonly known as Reservoir Place Main (formerly referred to in the
Lease as "Reservoir Place II") at 1601 Trapelo Road, Waltham, Massachusetts
(referred to in the Lease as the "Premises" or "Tenant's Space", hereinafter,
the "Existing Premises"). The Original Lease, as amended by the First Amendment,
is hereinafter referred to as the "Lease".
Tenant has determined to lease from Landlord an additional 10,335 feet of
rentable floor area ("Rentable Floor Area of Expansion Premises") on the third
(3rd) floor of the Building (the "Expansion Premises") shown on Exhibit A
attached hereto, upon the terms and conditions contained in this Second
Amendment to Lease (the "Second Amendment").
Landlord and Tenant are entering into this instrument to set forth the
terms and conditions for the use and occupancy of the Expansion Premises and to
otherwise amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
1. As of the "Expansion Premises Commencement Date" (as defined in Section 2
below) and continuing through the expiration or earlier termination of the
Term (including the balance of the First Extended Term), the Existing
Premises shall be expanded to include the Expansion Premises, such that the
Existing Premises and the Expansion Premises shall constitute the
"Premises" (and "Tenant's Space") demised to Tenant under the Lease. All
terms and conditions of the Lease (including, without limitation, Tenant's
right to extend the Lease Term as set forth in Section 6 of the First
Amendment) shall apply to the Expansion Premises and Existing Premises,
collectively, except as otherwise indicated in this Second Amendment.
2. The following definitions are hereby added (or substituted, where
applicable) to the REFERENCE DATA in Section 1.1 of the Lease:
EXPANSION PREMISES May 1, 2008.
COMMENCEMENT DATE:
BROKER McCall & Almy
One Post Office Square, 37th Floor
Boston, Massachusetts 02109
3. ANNUAL FIXED RENT.
(A) With respect to the Existing Premises, Annual Fixed Rent shall be paid
as currently provided in the Lease.
(B) With respect to the Expansion Premises, commencing on the Expansion
Premises Commencement Date and continuing through the expiration of the
First Extended Term, Annual Fixed Rent for the Expansion Premises shall be
payable at the annual rate of Two Hundred and Eighty Nine Thousand Three
Hundred and Eighty 00/100 Dollars ($289,380.00) (being the product of (i)
$28.00 and (ii) the Rentable Floor Area of Expansion Premises (being 10,
335 square feet)).
4. Effective as of the Expansion Premises Commencement Date and continuing
through the expiration of the Term, the following definitions are hereby
added to the REFERENCE DATA in Section 1.1 of the Lease:
NUMBER OF PARKING Beginning on the Expansion Premises Commencement
PRIVILEGES FOR THE Date, there shall be added additional privileges
EXPANSION PREMISES: for parking thirty-six (36) automobiles, ten (10)
of which are located in the garage below the
Building, and twenty-six (26) of which will be
located on the outdoor surface lot.
RENTABLE FLOOR AREA OF 10,335 square feet.
EXPANSION PREMISES:
5. OPERATING EXPENSES.
(A) Existing Premises. For purposes of calculating Tenant's payments for
Operating Expenses for the Existing Premises pursuant to Section 2.6 of the
Lease, the definition of "Base Operating Expenses" contained in Paragraph
8(A) of the First Amendment shall be unchanged.
(B) Expansion Premises. In addition to the payments referenced in Section
5(A) above, Tenant shall pay Operating Expenses for the Expansion Premises
to be calculated as follows: For purposes of calculating Tenant's payments
for Operating Expenses for the Expansion Premises pursuant to Section 2.6
of the Lease for that portion of the First Extended Term on and after the
Expansion Premises Commencement Date, with respect to the Expansion
Premises only, the definition of "Base Operating Expenses" shall be:
BASE OPERATING Landlord's Operating Expenses (as defined in Section
EXPENSES: 2.6 of the Lease) for calendar year 2008 being
January 1, 2008 through December 31, 2008.
6. REAL ESTATE TAXES.
(A) Existing Premises. For purposes of calculating Tenant's payments for
real estate taxes for the Existing Premises pursuant to Section 2.7 of the
Lease, the definition of "Base Taxes" contained in Paragraph 8(B) of the
First Amendment shall be unchanged.
(B) Expansion Premises. In addition to the payments referenced in Section
6(A) above, Tenant shall pay real estate taxes for the Expansion Premises
to be calculated as follows: For purposes of calculating Tenant's payments
for real estate taxes for the Expansion Premises pursuant to Section 2.7 of
the Lease for that portion of the First Extended Term on and after the
Expansion Premises Commencement Date, with respect to the Expansion
Premises only, the definition of "Base Taxes" shall be:
BASE TAXES: Landlord's Tax Expenses (as defined in Section 2.7 of the
Lease) for fiscal tax year 2009 being July 1, 2008 through
June 30, 2009.
7. Condition of the Expansion Premises. Tenant shall accept the Expansion
Premises in their "AS-IS" condition without any obligation on the
Landlord's part to perform any additions, alterations, improvements,
demolition or other work therein or pertaining thereto or to install or
connect any of Tenant's telephone or other communications equipment or
systems or to provide any allowance.
8. Yield-Up.
(a) Notwithstanding the provisions of Section 5.2 of the Lease to the
contrary, with respect to the condition in which Tenant must yield up the
Premises at the expiration or termination of the Term, Tenant shall not be
required to remove any alterations or additions (i) made by Oce Imagistics,
Inc. ("Imagistics") prior to the commencement of the term of that certain
sublease from Imagistics to Tenant dated as of the date of this Second
Amendment (the "Sublease"), and consented to by Landlord pursuant to that
certain Consent Agreement by and among Landlord, Tenant and Imagistics
dated as of the date hereof; and (ii) made by Tenant to the extent shown on
the Plans dated May 15, 2006 prepared by Visnick & Caulfield and known as
A-O Cover sheet, D-1 Demolition Plan, A-1 Furniture Plan, A-2 Partition
Plan, A-3 Electrical & Tele/Data Plan, A-4 Reflected Ceiling Plan, A-5
Finish Plan, A-6 Details and plans dated May 15, 2006 prepared by AHA
Consulting Engineers and known as FP-3 Fire Protection, Partial third floor
plan and FA-3 Fire Alarm, Partial third floor plan, as modified by letter
dated June 8, 2006 from Michael J. Schumacher to Marcus Green of Tenant
(collectively, the "Sublease Plans"), all of which Plans have previously
been delivered to Landlord. Provided, however, notwithstanding the
foregoing, Tenant shall in all events remain obligated to remove the wiring
for Tenant's computer, telephone and other
communication systems and equipment, unless Landlord, by notice to Tenant
given at least forty-five (45) days before the expiration or termination of
the Term, specifies that such wiring need not be removed.
(b) Commencing on the Expansion Premises Commencement Date, Sections 3.3
and 5.2 of the Lease are amended as follows:
(i) Section 3.3. Add the following phrase to the beginning of the
last complete sentence on page 21 of the Lease: "Except for any
alterations or additions that Tenant requests to remain in the
Premises in Tenant's notice seeking Landlord's consent for the
installation thereof (which notice shall specifically refer to
this Section 3.3) and for which Landlord specifically agrees in
writing may remain,"; and
(ii) Section 5.2. Add the following parenthetical after the words
"before such expiration or termination" in subsection (iii) of
Section 5.2: "(unless otherwise specified by Landlord as set
forth in Section 3.3)".
Except as expressly provided in this paragraph, all other terms and
conditions of Section 5.2 shall continue to apply to the Premises and shall
remain in full force and effect.
9. Commencing on the Expansion Premises Commencement Date, Section 3.3 of the
Lease is amended to add the following sentence after the seventh sentence
of the existing paragraph:
"With respect to alterations and additions to Tenant's space for which a
building permit is not required under applicable Legal Requirements only,
Landlord agrees that it shall not delay its review and approval (or
disapproval, as applicable) of the plans and specifications submitted by
Tenant, for more than five (5) business days after receipt such plans and
specifications. The foregoing sentence shall not apply to, and shall in no
way affect or limit, Landlord's rights and obligations with respect to the
review and approval of plans and specifications for all other alterations
and additions proposed by Tenant."
10. Commencing on the date of this Second Amendment, Section 5.6.1.1 of the
Lease is amended as follows:
(a) Delete the words beginning in the second line of the paragraph, "the
whole (but not part), of the Premises (no partial subletting being
permitted other than as provided in Section 5.6.1)" and substitute therefor
the words, "all or a portion of the Premises" and
(b) Add the following paragraph to the end of the existing paragraph:
"In addition to the other requirements set forth in this Lease and
notwithstanding any other provision of this Lease, partial sublettings
of the Premises shall only be permitted under the following terms and
conditions: (i) the layout of both the subleased premises and the
remainder of the Premises must comply with applicable laws,
ordinances, rules and/or regulations and be
approved by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed, including, without limitation, all
requirements concerning access and egress; (ii) in the event the
subleased premises are separately physically demised from the
remainder of the Premises, Tenant shall pay all costs of separately
physically demising the subleased premises; and (iii) in no event
shall there exist more than three (3) partial subleases at any one
time during the Term."
(c) During the term of the Sublease, in connection with any reference in
the Lease to a partial sublease of the "Premises," the term "Premises"
shall refer collectively to the Premises and the subleased premises
subleased by Tenant, as subtenant, under the Sublease.
11. Right of First Offer.
As of the date hereof, 4,876 feet of rentable floor area on the third (3rd)
floor of the Building shown on Exhibit B attached hereto (the "Offer
Space") is available for lease. Subsequent to the date of this Second
Amendment, and provided that at the time Landlord elects to offer the Offer
Space to Tenant for reletting (i) no "Event of Default" (as defined in
Section 7.1 of the Lease exists and there have been no more than two (2)
Event of Default occurrences during the Term, (ii) Tenant has not assigned
this Lease (except for assignments permitted under Section 5.6.1 of the
Lease) or sublet more than ten percent (10%) of the Rentable Floor Rea of
Tenant's Space, and (iii) the Lease is still in full force and effect,
Landlord agrees not to enter into a lease or leases to relet such Offer
Space without first giving to Tenant an opportunity to lease such space for
the Annual Market Rent (as hereinafter defined) as determined by Landlord.
The Annual Market Rent shall be the annual fair market rent for such space
as of the date when the same becomes so available for reletting, based upon
the use of such space as first class office space utilizing properties of
similar character within the Boston West Suburban market (including similar
premises within the Complex if at the time such quotation is requested such
premises shall be available for rent). When Landlord is in discussions with
a third party to lease the Offer Space and has negotiated with such third
party an annual fixed rent and length of term for the Offer Space that
Landlord wishes to accept in order to proceed to the letter of intent stage
with such third party, which may be at any time after the date of this
Second Amendment, in Landlord's sole discretion. Landlord shall notify
Tenant (the "Offer Notice") of the availability of such Offer Space and
shall advise Tenant of the Annual Market Rent and other business terms upon
which Landlord is willing to lease such Offer Space. If Tenant wishes to
exercise Tenant's right of first offer, Tenant shall do so, if at all, by
giving Landlord notice of Tenant's desire to lease the entire amount of
such Offer Space (it being agreed that Tenant has no right to lease less
than the entire amount of the Offer Space which is so available) on the
terms provided herein within fifteen (15) days after receipt of Landlord's
Offer Notice, time being of the essence. If Tenant shall give such notice
the same shall constitute an agreement to enter into an instrument in
writing to lease such Offer Space within twenty (20) business days after
receipt of such instrument from Landlord upon all of the same terms and
conditions in this Lease except for the provisions of this Section, the
Annual
Fixed Rent which shall be equal to the Annual Market Rent as quoted by
Landlord, such other business terms set forth in Landlord's Offer Notice as
aforesaid and those provisions which are inappropriate to the business
agreement. If Tenant shall not so exercise such right within such period,
time being of the essence in respect of such exercise, Tenant shall have no
further right of first offer hereunder and Landlord shall be free to enter
into a lease or leases of such Offer Space or portions thereof with another
prospective tenant or tenants upon terms and conditions as Landlord shall
determine, which terms may include rights or options to extend the term or
to expand the size of the premises under such lease or leases, provided,
however, it is agreed that if Landlord does not so lease such space during
the three month period following the date of Landlord's Offer Notice for an
annual market rent that is equal to or greater than ninety percent (90%) of
the Annual Market Rent quoted by Landlord in the Offer Notice, then terms
of this Section shall continue to apply to such Offer Space.
If Tenant shall exercise any such right of first offer and if, thereafter,
the then occupant of the premises with respect to which Tenant shall have
so exercised such right wrongfully fails to deliver possession of such
premises at the time when its tenancy is scheduled to expire, Landlord
shall use reasonable efforts and due diligence (which shall be limited to
the commencement and prosecution thereafter of eviction proceedings but
which shall not require the taking of any appeal) to evict such occupant
from such space and; to deliver possession of such space to Tenant as soon
as may be practicable. Commencement of the term of Tenant's occupancy and
lease of such additional space shall, in the event of such holding over by
such occupant, be deferred until possession of the additional space is
delivered to Tenant. The failure of the then occupant of such premises to
so vacate shall not constitute a default or breach by Landlord and shall
not give Tenant any right to terminate this Lease or to deduct from, offset
against or withhold Annual Fixed Rent or additional rent (or any portions
thereof).
12. Notwithstanding Section 8.15 of the Lease, upon execution and delivery of
this Second Amendment, Landlord will use "reasonable efforts" as defined in
Section 8.15 of the Lease, to obtain a non-disturbance, subordination and
attornment agreement from Landlord's current mortgagee on such mortgagee's
then current standard form of agreement ("Lender SNDA"), with such changes
that are mutually acceptable to the parties thereto. In the event that
Tenant requests changes to any standard Lender SNDA form, Tenant shall be
responsible for all costs and expenses incurred by Landlord or any such
mortgagee in connection with the review, negotiation and execution thereof
including, but not limited to, attorneys fees. Landlord's failure to obtain
a Lender SNDA for Tenant shall have no effect on the rights, obligations
and liabilities of Landlord and Tenant or be considered to be a default by
Landlord hereunder.
13. Tenant represents that simultaneous with the execution of this Second
Amendment, Tenant and Imagistics have executed the Sublease. Subject to the
execution and delivery by Tenant and Imagistics of the Sublease, and the
execution and delivery by Tenant, Imagistics and Landlord of Landlord's
Consent, Landlord represents that the term of Landlord's lease with
Imagistics, to which the Sublease is subordinate, is scheduled to expire on
April 30, 2008. Landlord and Tenant acknowledge and agree that the Lease
Term is currently scheduled to expire on September 30, 2010, unless further
extended by Tenant for the Second Extended Term as provided in Section 6 of
the First Amendment.
14. (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Second Amendment other
than the Broker referenced above; and in the event any claim is made
against Landlord relative to dealings by Tenant with brokers other than the
Broker, Tenant shall defend the claim against Landlord with counsel of
Tenant's selection first approved by Landlord (which approval will not be
unreasonably withheld) and save harmless and indemnify Landlord on account
of loss, cost or damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker in connection with the consummation of this Second Amendment other
than the Broker referenced above; and in the event any claim is made
against Tenant relative to dealings by Landlord with brokers other than the
Broker, Landlord shall defend the claim against Tenant with counsel of
Landlord's section and save harmless and indemnify Tenant on account of
loss, cost or damage which may arise by reason of such claim.
15. Except as otherwise expressly provided herein, all capitalized terms used
herein without definition shall have the same meanings as are set forth in
the Lease.
16. Except as herein amended the Lease shall remain unchanged and in full force
and effect. All references to the "Lease" shall be deemed to be references
to the Lease as herein amended.
[Signature page to follow.]
EXECUTED as a sealed instrument as of the date and year first above
written.
WITNESS: LANDLORD:
BOSTON PROPERTIES LIMITED PARTNERSHIP
By BOSTON PROPERTIES, INC.,
Its general partner
/s/ [illegible] By /s/ David C. Provost
------------------------------------- -------------------------------------
Name David C. Provost
Title Senior Vice President
Boston Properties
ATTEST: TENANT:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman By /s/ Steven R. Wasserman
--------------------------------- -------------------------------------
Name: Steven R. Wasserman Name Steven R. Wasserman
Title: Secretary Title (VICE PRESIDENT)
HERETO DULY AUTHORIZED
By /s/ Marcus Green
-------------------------------------
Name Marcus Green
Title ASSISTANT TREASURER
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
EXHIBIT A
Plan of Expansion Premises
[IMAGE OF EXPANSION PREMISES]
EXHIBIT B
Plan of Offer Space
[IMAGE OF OFFER SPACE]
THIRD AMENDMENT TO LEASE
THIRD AMENDMENT TO LEASE dated as of this 27th day of February, 2007 by and
between BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership,
the general partner of which is Boston Properties, Inc., a Delaware corporation,
as landlord ("Landlord") and CONSTANT CONTACT, INC., a Delaware corporation, as
tenant ("Tenant").
RECITALS
By Lease dated July 9, 2002 (the "Original Lease"), as amended by First
Amendment to Lease dated as of June 29, 2005 (the "First Amendment"), and Second
Amendment to Lease dated as of July 24, 2006 (the "Second Amendment") (the
Original Lease, as amended by the First Amendment and the Second Amendment,
hereinafter referred to as the "Lease"), Landlord did lease to Tenant and Tenant
did hire and lease from Landlord certain premises containing 37,429 square feet
of rentable floor area ("Rentable Floor Area of Existing Premises") located on
the third (3rd) floor in the building (the "Building") commonly known as
Reservoir Place Main (formerly referred to in the Lease as "Reservoir Place II")
at 1601 Trapelo Road, Waltham, Massachusetts (referred to in the Lease as the
"Premises" or "Tenant's Space", hereinafter, the "Existing Premises"). The
parties further acknowledge that the term has not yet commenced with respect to
a portion of the Existing Premises (i.e., the "Expansion Premises", as such term
is defined in the Second Amendment), and that Tenant is currently subleasing
such space pursuant to a separate sublease agreement.
Tenant has determined to lease from Landlord an additional 13,276 feet of
rentable floor area ("Rentable Floor Area of Third Expansion Premises") on the
third (3rd) floor of the Building (the "Third Expansion Premises") shown on
Exhibit A attached hereto, upon the terms and conditions contained in this Third
Amendment to Lease (the "Third Amendment"). The Third Expansion Premises is
comprised of the "Third Expansion Premises A," which is 8,400 feet of rentable
floor area ("Rentable Floor Area of the Third Expansion Premises A") as shown on
Exhibit A, and the "Third Expansion Premises B," which is 4,876 feet of rentable
floor area ("Rentable Floor Area of the Third Expansion Premises B") as shown on
Exhibit A.
Landlord and Tenant are entering into this instrument to set forth the
terms and conditions for the use and occupancy of the Third Expansion Premises
and to otherwise amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
1. (A) As of the "Third Expansion Premises A Commencement Date" (as defined in
Section 2 below) and continuing through the expiration or earlier
termination of the Term (including the balance of the First Extended Term),
the Existing Premises shall be expanded to include the Third Expansion
Premises A, such that the Existing Premises and the Third Expansion
Premises A shall constitute the "Premises" (and "Tenant's Space") demised
to Tenant under the Lease. All terms and conditions of the Lease
(including,
without limitation, Tenant's right to extend the Lease Term as set forth in
Section 6 of the First Amendment) shall apply to the Third Expansion
Premises A and Existing Premises, collectively, except as otherwise
indicated in this Third Amendment.
(B) As of the "Third Expansion Premises B Commencement Date" (as defined in
Section 2 below) and continuing through the expiration or earlier
termination of the Term (including the balance of the First Extended Term),
the Existing Premises shall be expanded to include the Third Expansion
Premises B, such that the Existing Premises and the Third Expansion
Premises B shall constitute the "Premises" (and "Tenant's Space") demised
to Tenant under the Lease. All terms and conditions of the Lease
(including, without limitation, Tenant's right to extend the Lease Term as
set forth in Section 6 of the First Amendment) shall apply to the Third
Expansion Premises B and Existing Premises, collectively, except as
otherwise indicated in this Third Amendment.
2. The following definitions are hereby added (or substituted, where
applicable) to the REFERENCE DATA in Section 1.1 of the Lease:
[Download Table]
THIRD EXPANSION PREMISES
A COMMENCEMENT DATE The earlier to occur of (i) the date
that is sixty (60) days after Landlord
provides Tenant with early access to all
of the Third Expansion Premises A as
provided under Section 7.5 of this Third
Amendment, or (ii) the date on which
Tenant commences beneficial use of the
Third Expansion Premises A for its
business purposes.
THIRD EXPANSION PREMISES A
RENT COMMENCEMENT DATE: Thirty (30) days after the Third
Expansion Premises A Commencement Date.
THIRD EXPANSION PREMISES
EXPIRATION DATE: September 30, 2010, to be coterminous
with the Term
LANDLORD'S CONSTRUCTION
REPRESENTATIVE: Michael Schumacher
TENANT'S CONSTRUCTION
REPRESENTATIVE: David Mann and Steven Wasserman, either
of whom individually may act on Tenant's
behalf.
THIRD EXPANSION PREMISES B
COMMENCEMENT DATE: March 1, 2007.
[Download Table]
THIRD EXPANSION PREMISES B RENT
COMMENCEMENT DATE: July 1, 2007
ADDITIONAL SECURITY DEPOSIT: $91,375.00
BROKER: McCall & Almy
One Post Office Square, 37th Floor
Boston, Massachusetts 02109
3. ANNUAL FIXED RENT.
(A) With respect to the Existing Premises, Annual Fixed Rent shall be paid
as currently provided in the Lease.
(B) With respect to the Third Expansion Premises A Annual Fixed Rent for
the Third Expansion Premises A shall be payable as follows:
(i) Commencing on the Third Expansion Premises A Rent Commencement
Date and continuing for the next twelve calendar months of the Term
(plus the partial month, if any, immediately following the Third
Expansion Premises A Rent Commencement Date) at the annual rate of
Two Hundred and Forty Three Thousand Six Hundred 00/100 Dollars
($243,600.00) (being the product of (i) $29.00 and (ii) the Rentable
Floor Area of the Third Expansion Premises A (being 8,400 square
feet));
(ii) During the next twelve (12) calendar months of the Term, at the
annual rate of Two Hundred and Fifty Two Thousand 00/100 Dollars
($252,000.00) (being the product of (i) $30.00 and (ii) the Rentable
Floor Area of the Third Expansion Premises A); and
(iii) Thereafter and continuing through the expiration of the Term, at
the annual rate of Two Hundred and Sixty Thousand Four Hundred 00/100
Dollars ($260,400.00) (being the product of (i) $31.00 and (ii) the
Rentable Floor Area of the Third Expansion Premises A).
(C) With respect to the Third Expansion Premises B, Annual Fixed Rent for
the Third Expansion Premises B shall be payable as follows:
(i) Commencing on the Third Expansion Premises B Rent Commencement
Date and continuing for the next twelve calendar months of the Term
(plus the partial month, if any, immediately following the Third
Expansion Premises B Rent Commencement Date) at the annual rate of One
Hundred and Twenty One Thousand Nine Hundred 00/100 Dollars
($121,900.00) (being the product of (i) $25.00 and (ii) the Rentable
Floor Area of the Third Expansion Premises B (being 4,876 square
feet));
(ii) During the next twelve (12) calendar months of the Term, at the
annual rate of One Hundred and Twenty Six Thousand Seven Hundred and
Seventy Six 00/100 Dollars ($126,776.00) (being the product of (i)
$26.00 and (ii) the Rentable Floor Area of the Third Expansion
Premises B); and
(iii) Thereafter and continuing through the expiration of the Term, at
the annual rate of One Hundred and Thirty One Thousand Six Hundred and
Fifty Two 00/100 Dollars ($131,652.00) (being the product of (i)
$27.00 and (ii) the Rentable Floor Area of the Third Expansion
Premises B).
4. (A) Effective as of the Third Expansion Premises A Commencement Date and
continuing through the expiration of the Term, the following definitions
are hereby added to the REFERENCE DATA in Section 1.1 of the Lease:
[Download Table]
NUMBER OF PARKING PRIVILEGES FOR THE Beginning on the Third Expansion
THIRD EXPANSION PREMISES A: Premises A Commencement Date, there
shall be added additional privileges
for parking twenty nine (29) automobiles,
eight (8) of which are located in the
garage below the Building, and
twenty-one (21) of which will be located
on the outdoor surface lot.
[Download Table]
RENTABLE FLOOR AREA OF THE THIRD 8,400 square feet.
EXPANSION PREMISES A:
(B) Effective as of the Third Expansion Premises B Commencement Date and
continuing through the expiration of the Term, the following definitions
are hereby added to the REFERENCE DATA in Section 1.1 of the Lease:
[Download Table]
NUMBER OF PARKING PRIVILEGES FOR THE Beginning on the Third Expansion
THIRD EXPANSION PREMISES B: Premises B Commencement Date, there
shall be added additional privileges for
parking seventeen (17) automobiles, five
(5) of which are located in the garage
below the Building, and twelve (12) of
which will be located on the outdoor
surface lot.
RENTABLE FLOOR AREA OF THE THIRD 4,876 square feet.
EXPANSION PREMISES B:
5. OPERATING EXPENSES.
(A) Existing Premises. For purposes of calculating Tenant's payments for
Operating Expenses for the Existing Premises pursuant to Section 2.6 of the
Lease, the definition of "Base Operating Expenses" shall be unchanged.
(B) Third Expansion Premises A. In addition to the payments referenced in
Section 5(A) above, Tenant shall pay Operating Expenses for the Third
Expansion Premises A to be calculated as follows: For purposes of
calculating Tenant's payments for Operating Expenses for the Third
Expansion Premises A pursuant to Section 2.6 of the Lease for that portion
of the Term on and after the Third Expansion Premises A Commencement Date,
with respect to the Third Expansion Premises A only, the definition of
"Base Operating Expenses" shall be:
[Download Table]
BASE OPERATING EXPENSES: Landlord's Operating Expenses (as
defined in Section 2.6 of the Lease) for
calendar year 2007 being January 1, 2007
through December 31, 2007.
(C) Third Expansion Premises B. In addition to the payments referenced in
Section 5(A) above, Tenant shall pay Operating Expenses for the Third
Expansion Premises B to be calculated as follows: For purposes of
calculating Tenant's payments for Operating Expenses for the Third
Expansion Premises B pursuant to Section 2.6 of the Lease for that portion
of the Term on and after the Third Expansion Premises B Commencement
Date, with respect to the Third Expansion Premises B only, the definition
of "Base Operating Expenses" shall be:
[Download Table]
BASE OPERATING EXPENSES: Landlord's Operating Expenses (as
defined in Section 2.6 of the Lease) for
calendar year 2007 being January 1, 2007
through December 31, 2007.
(D) Notwithstanding the foregoing or any provision hereof to the contrary,
Tenant shall not be obligated to pay any of Landlord's Operating Expenses
allocable to the Third Expansion Premises A and/or the Third Expansion
Premises B for any period prior to January 1, 2008.
6. REAL ESTATE TAXES
(A) Existing Premises. For purposes of calculating Tenant's payments for
real estate taxes for the Existing Premises pursuant to Section 2.7 of the
Lease, the definition of "Base Taxes" shall be unchanged.
(B) Third Expansion Premises A. In addition to the payments referenced in
Section 6(A) above, Tenant shall pay real estate taxes for the Third
Expansion Premises A to be calculated as follows: For purposes of
calculating Tenant's payments for real estate taxes for the Third Expansion
Premises A pursuant to Section 2.7 of the Lease for that portion of the
Term on and after the Third Expansion Premises A Commencement Date, with
respect to the Third Expansion Premises A only, the definition of "Base
Taxes" shall be:
[Download Table]
BASE TAXES: Landlord's Tax Expenses (as defined in
Section 2.7 of the Lease) for fiscal tax
year 2008 being July 1, 2007 through
June 30, 2008.
(C) Third Expansion Premises B. In addition to the payments referenced in
Section 6(A) above, Tenant shall pay real estate taxes for the Third
Expansion Premises B to be calculated as follows: For purposes of
calculating Tenant's payments for real estate taxes for the Third Expansion
Premises B pursuant to Section 2.7 of the Lease for that portion of the
Term on and after the Third Expansion Premises B Commencement Date, with
respect to the Third Expansion Premises B only, the definition of "Base
Taxes" shall be:
[Download Table]
BASE TAXES: Landlord's Tax Expenses (as defined in
Section 2.7 of the Lease) for fiscal tax
year 2008 being July 1, 2007 through
June 30, 2008.
(D) Notwithstanding the foregoing or any provision hereof to the contrary,
Tenant shall not be obligated to pay any of Landlord's Tax Expenses
allocable to the Third Expansion Premises A and/or the Third Expansion
Premises B for any period prior to July 1, 2008.
7. Condition of the Third Expansion Premises. Tenant shall accept the Third
Expansion Premises A and Third Expansion Premises B, respectively, in their
"AS-IS" condition without any obligation on the Landlord's part to perform
any additions, alterations, improvements, demolition or other work therein
or pertaining thereto or to install or connect any of Tenant's telephone or
other communications equipment or systems or to provide any allowance,
except as provided below. Notwithstanding the foregoing, Landlord
represents and warrants that as of the Third Expansion Premises A
Commencement Date, and the Third Expansion Premises B Commencement Date,
respectively, the HVAC system and all other building systems serving the
Third Expansion Premises A and Third Expansion Premises B will be in good
order, condition and repair.
7.1 Third Expansion Premises A Work
(A) Tenant, at its sole cost and expense, shall perform all work necessary
to prepare the Third Expansion Premises A for Tenant's occupancy (the
"Third Expansion Premises A Work"). Landlord acknowledges that it has
approved the work described in the area designated as "Phase 3B Exterior
Suite" (the "Exterior Suite Area") on the schematic plans attached hereto
as Exhibit E (the "Tenant's Schematic Plans"). The Third Expansion Premises
A Work shall be performed in accordance with plans and specifications
prepared by an architect, licensed by the Commonwealth of Massachusetts and
reasonably approved by Landlord (the "Third Expansion Premises A
Architect"), such plans and specifications to be subject to the reasonable
approval of the Landlord, but Landlord may not disapprove of matters shown
on, and consistent with, the Exterior Suite Area of the Tenant's Schematic
Plans. Without limiting the generality of the foregoing, Tenant shall have
the right to use Visnick & Caulfield Associates, Inc. as the Third
Expansion Premises A Architect for the Third Expansion Premises A Work.
Tenant shall submit to Landlord a detailed floor plan layout together with
working drawings for the Third Expansion Premises A Work to prepare the
Third Expansion Premises A for Tenant's occupancy. Such floor plan layout
and working drawings (the "Third Expansion Premises A Plans") shall contain
at least the information required by, and shall conform to the requirements
of, Exhibit B. Provided that the Third Expansion Premises A Plans contain
at least the information required by, and conform to the requirements of,
said Exhibit B, Landlord's approval of the Third Expansion Premises A Plans
shall not be unreasonably withheld or delayed (said approval to be given
within five (5) business days of Landlord's receipt of three (3) copies of
such plans and specifications); however, Landlord's determination of
matters relating to aesthetic issues relating to alterations or changes
which are visible outside the Premises shall be in Landlord's sole
discretion. If Landlord disapproves of any Third Expansion Premises A
Plans, then Tenant shall promptly have the Third Expansion Premises A Plans
revised by its architect to incorporate all objections and conditions
presented by Landlord and shall resubmit such plans to Landlord no later
than seven (7) days after Landlord has submitted to Tenant its objections
and conditions. Such process shall be followed until the Third Expansion
Premises A Plans shall have been approved by the Landlord without objection
or condition.
(B) Once the Third Expansion Premises A Plans have been approved by
Landlord, Tenant, at its sole cost and expense, shall promptly, and with
all due diligence, perform the Third Expansion Premises A Work as set forth
on the Third Expansion Premises A Plans, and, in connection therewith,
Tenant shall obtain all necessary governmental permits and approvals for
the Third Expansion Premises A Work.
7.2 Third Expanded Premises B Work
(A) Tenant, at its sole cost and expense, shall perform all work necessary
to prepare the Third Expansion Premises B for Tenant's occupancy (the
"Third Expansion Premises B Work"), and together with the Third Expansion
Premises A Work, the "Tenant's Work"). Landlord acknowledges that it has
approved the work described in the area designated as "Phase 3A Atrium
Suite" (the "Atrium Suite Area") on Tenant's Schematic Plans. The Third
Expansion Premises B Work shall be performed in accordance with plans and
specifications prepared by an architect, licensed by the Commonwealth of
Massachusetts and reasonably approved by Landlord (the "Third Expansion
Premises B Architect"), such plans and specifications to be subject to the
reasonable approval of the Landlord, but Landlord may not disapprove of
matters shown on, and consistent with, the Atrium Suite Area of the
Tenant's Schematic Plans. Without limiting the generality of the foregoing,
Tenant shall have the right to use Visnick & Caulfield Associates, Inc. as
the Third Expansion Premises B Architect for the Third Expansion Premises B
Work. Tenant shall submit to Landlord, a detailed floor plan layout
together with working drawings for the Third Expansion Premises B Work to
prepare the Third Expansion Premises B for Tenant's occupancy. Such floor
plan layout and working drawings (the "Third Expansion Premises B Plans")
shall contain at least the information required by, and shall conform to
the requirements of, Exhibit B. Provided that the Third Expansion Premises
B Plans contain at least the information required by, and conform to the
requirements of, said Exhibit B, Landlord's approval of the Third Expansion
Premises B Plans shall not be unreasonably withheld or delayed (said
approval to be given within five (5) business days of Landlord's receipt of
three (3) copies of such plans and specifications); however, Landlord's
determination of matters relating to aesthetic issues relating to
alterations or changes which are visible outside the Premises shall be in
Landlord's sole discretion. If Landlord disapproves of any Third Expansion
Premises B Plans, then Tenant shall promptly have the Third Expansion
Premises B Plans revised by its architect to incorporate all objections and
conditions presented by Landlord and shall resubmit such plans to Landlord
no later than seven (7) days after Landlord has submitted to Tenant its
objections and conditions. Such process shall be followed until the Third
Expansion Premises B Plans shall have been approved by the Landlord without
objection or condition.
(B) Once the Third Expansion Premises B Plans have been approved by
Landlord, Tenant, at its sole cost and expense, shall promptly, and with
all due diligence, perform the Third Expansion Premises B Work as set forth
on the Third Expansion Premises B Plans, and, in connection therewith,
Tenant shall obtain all necessary governmental permits and approvals for
the Third Expansion Premises B Work.
7.3 Quality and Performance of Work
All of Tenant's Work shall be performed strictly in accordance with Section
3.3 of the Lease. Tenant shall have Tenant's Work performed by contractors,
reasonably approved by Landlord, which contractors shall provide to
Landlord such insurance as the Landlord may reasonably require. Without
limiting the generality of the foregoing, and subject to all applicable
terms and conditions of the Lease, Tenant shall have the right to use
Majestic Construction, Inc., as the general contractor for the Tenant's
Work. Landlord shall have the right to provide such reasonable rules and
regulations relative to the performance of Tenant's Work and other work
which the Tenant may perform under this Lease and tenant shall abide by all
such reasonable rules and regulations and shall cause all of its
contractors to so abide including, without limitation, payment for the
costs of using Building services. It shall be Tenant's obligation to obtain
a certificate of occupancy or other like governmental approval for the use
and occupancy of the Third Expansion Premises to the extent required by
law, and Tenant shall not occupy the Third Expansion Premises for the
conduct of business until and unless it has obtained such approval and has
submitted to Landlord a copy of the same. Additionally, Tenant shall
provide waivers of lien from all of Tenant's general contractors,
subcontractors and suppliers performing work of Five Thousand and 00/100
Dollars or more, in the aggregate, in the recordable forms attached hereto
as Exhibit D. Tenant shall also prepare and submit to Landlord promptly
after Tenant's Work is substantially complete a set of as-built plans in
both print and electronic forms showing the work performed by Tenant to the
Premises. To the extent the same may be shown in the as-built plans
prepared for Tenant from its existing vendor, such plans shall include,
without limitation, any wiring or cabling installed by Tenant or Tenant's
contractor for Tenant's computer, telephone and other communication
systems. Within thirty (30) days after receipt of an invoice from Landlord,
Tenant shall pay to Landlord, as Additional Rent, an amount equal to the
sum of (i) third party expenses incurred by Landlord to review any elements
of Tenant's Plans and Tenant's Work that may affect the structure of the
Building, and (ii) third party expenses incurred by Landlord to review
Tenant's Plans and Tenant's Work of which Tenant has received advance
notice and which Tenant, in its commercially reasonable determination, has
approved. All of Tenant's Work shall be coordinated with any work being
performed by or for Landlord and in such manner as to maintain harmonious
labor relations. Each party may inspect the work of the other at reasonable
times and shall promptly give notice of observed defects. Each party
authorizes the other to rely in connection with design and construction
upon approval and other actions on the party's behalf by any Construction
Representative of the party named above or any person hereafter designated
in substitution or addition by notice to the party relying. Tenant
acknowledges that Tenant is acting for its own benefit and account and that
Tenant will not be acting as Landlord's agent in performing any Tenant
Work, accordingly, no contractor, subcontractor or supplier shall have a
right to lien Landlord's interest in the Property in connection with any
work.
7.4 Special Allowance
(A) Landlord shall provide to Tenant a special allowance equal to the
product of (i) $13.00 and (ii) the Rentable Floor Area of the Third
Expansion Premises A (the "Third
Expansion Premises A Tenant Allowance"). The Third Expansion Premises A
Tenant Allowance shall be used and applied by Tenant solely on account of
the cost of associated architect's fees, construction supervision and
construction of Tenant's Work, provided, however, Tenant may use and apply
a portion of the Third Expansion Premises A Tenant Allowance on account of
Tenant's so-called "soft costs" related to the Third Expansion Premises A
Work (including, supervisory and construction management fees, and the cost
of wiring and cabling), in an amount not to exceed the product of (x) $1.00
and (y) the Rentable Floor area of the Third Expansion Premises A. Provided
that the Tenant (i) has completed all of such Third Expansion Premises A
Work in accordance with the terms of the Lease, has paid for all of such
Third Expansion Premises A Work in full and has delivered to Landlord lien
waivers as required by Section 7.3 herein, (ii) has executed the
Commencement Date Agreement in the form annexed hereto as Exhibit C, (iii)
has delivered to Landlord its certificate specifying the cost of such Third
Expansion Premises A Work and all contractors, subcontractors and supplies
involved with the Third Expansion Premises A Work, together with evidence
of such cost in the form of paid invoices, receipts and the like, (iv) has
satisfied the requirements of (i) through (iii) above and made request for
such payment on or before the date that is three hundred and sixty five
(365) days after the Third Expansion Premises A Commencement Date, (v) is
not otherwise in default (beyond applicable notice and cure periods) under
the Lease, and (vi) there are no liens (unless bonded to the reasonable
satisfaction of Landlord) against Tenant's interest in the Lease or against
the Building or the Site arising out of the Third Expansion Premises A Work
or any litigation in which Tenant is a party, then within thirty (30) days
after the satisfaction of the foregoing conditions, the Landlord shall pay
to the Tenant the lesser of the amount of such costs so certified (the
"Third Expansion Premises A Certified Costs") or the amount of the Third
Expansion Premises A Tenant Allowance. For the purposes hereof, the cost to
be so reimbursed by Landlord shall include the cost of leasehold
improvements but not the cost of any of Tenant's personal property, trade
fixtures or trade equipment or any so-called soft costs, except as
expressly permitted above. Notwithstanding the foregoing, Landlord shall be
under no obligation to apply any portion of the Third Expansion Premises A
Tenant Allowance for any purposes other than as provided in this Section
7.4, nor shall Landlord be deemed to have assumed any obligations, in whole
or in part, of Tenant to any contractors, subcontractors, suppliers,
workers or materialmen. Further, except as provided in this Section 7.4,
the Third Expansion Premises A Tenant Allowance shall only be applied
towards the cost of leasehold improvements and in no event shall Landlord
be required to make application of any portion of the Third Expansion
Premises A Tenant Allowance towards Tenant's personal property, trade
fixtures or moving expenses or on account of any supervisory fees,
overhead, management fees or other payments to Tenant, or any partner or
affiliate of Tenant. In the event that such cost of the Third Expansion
Premises A Work and the other costs for which Tenant is permitted to seek
reimbursement above are less than the Third Expansion Premises A Tenant
Allowance, Tenant shall not be entitled to any payment or credit nor shall
there be any application of the same toward Annual Fixed Rent or Additional
Rent owed by Tenant under the Lease, provided, however, notwithstanding the
foregoing, that the amount of the Third Expansion Premises A Tenant
Allowance in excess of the Third Expansion Premises A Certified Costs (the
"Third Expansion Premises A Allowance Excess"), if
any, shall be added to, and made available to Tenant as part of the Third
Expansion Premises B Tenant Allowance (as defined below). Landlord shall be
entitled to deduct from the Third Expansion Premises A Tenant Allowance an
amount equal to the sum of (i) third party expenses incurred by Landlord to
review any elements of the Third Expansion Premises A Plans and the Third
Expansion Premises A Work that may affect the structure of the Building,
and (ii) third party expenses incurred by Landlord review the Third
Expansion Premises A Plans and the Third Expansion Premises A Work of which
Tenant has received advance notice and which Tenant, in its commercially
reasonable determination, has approved.
(B) Landlord shall provide to Tenant a special allowance equal to the
product of (i) $13.00 and (ii) the Rentable Floor Area of the Third
Expansion Premises B (the "Third Expansion Premises B Tenant Allowance").
The Third Expansion Premises B Tenant Allowance shall be used and applied
by Tenant solely on account of the cost of associated architect's fees,
construction supervision and construction of Tenant's Work, provided,
however, Tenant may use and apply a portion of the Third Expansion Premises
B Tenant Allowance on account of Tenant's so-called "soft costs" related to
the Third Expansion Premises B Work (including, supervisory and
construction management fees, and the cost of wiring and cabling), in an
amount not to exceed the product of (x) $1.00 and (y) the Rentable Floor
Area of the Third Expansion Premises B. Provided that the Tenant (i) has
completed all of such Third Expansion Premises B Work in accordance with
the terms of the Lease, has paid for all of such Third Expansion Premises B
Work in full and has delivered to Landlord lien waivers as required by
Section 7.3 herein, (ii) has executed the Commencement Date Agreement in
the form annexed hereto as Exhibit C, (iii) has delivered to Landlord its
certificate specifying the cost of such Third Expansion Premises B Work and
all contractors, subcontractors and supplies involved with the Third
Expansion Premises B Work, together with evidence of such cost in the form
of paid invoices, receipts and the like, (iv) has satisfied the
requirements of (i) through (iii) above and made request for such payment
on or before the date that is three hundred and sixty five (365) days after
the Third Expansion Premises B Commencement Date, (v) is not otherwise in
default (beyond applicable notice and cure periods) under the Lease, and
(vi) there are no liens (unless bonded to the reasonable satisfaction of
Landlord) against Tenant's interest in the Lease or against the Building or
the Site arising out of the Third Expansion Premises B Work or any
litigation in which Tenant is a party, then within thirty (30) days after
the satisfaction of the foregoing conditions, the Landlord shall pay to the
Tenant the lesser of the amount of such costs so certified (the "Third
Expansion Premises B Certified Costs") or the amount of the Third Expansion
Premises B Tenant Allowance. For the purposes hereof, the cost to be so
reimbursed by Landlord shall include the cost of leasehold improvements but
not the cost of any of Tenant's personal property, trade fixtures or trade
equipment or any so-called soft costs, except as expressly permitted above.
Notwithstanding the foregoing, Landlord shall be under no obligation to
apply any portion of the Third Expansion Premises B Tenant Allowance for
any purposes other than as provided in this Section 7.4, nor shall Landlord
be deemed to have assumed any obligations, in whole or in part, of Tenant
to any contractors, subcontractors, suppliers, workers or materialmen.
Further, except as provided in this Section 7.4, the Third Expansion
Premises B Tenant Allowance shall only be applied towards the cost of
leasehold improvements and in no event shall Landlord be required to
make application of any portion of the Third Expansion Premises B Tenant
Allowance towards Tenant's personal property, trade fixtures or moving
expenses or on account of any supervisory fees, overhead, management fees
or other payments to Tenant, or any partner or affiliate of Tenant. In the
event that such cost of the Third Expansion Premises B Work and the other
costs for which Tenant is permitted to seek reimbursement above are less
than the Third Expansion Premises B Tenant Allowance, Tenant shall not be
entitled to any payment or credit nor shall there be any application of the
same toward Annual Fixed Rent or Additional Rent owned by Tenant under the
Lease, provided, however, notwithstanding the foregoing, that the amount of
the Third Expansion Premises B Tenant Allowance in excess of the Third
Expansion Premises B Certified Costs (the "Third Expansion Premises B
Allowance Excess"), if any, shall be added to, and made available to Tenant
as part of the Third Expansion Premises A Tenant Allowance. Landlord shall
be entitled to deduct from the Third Expansion Premises B Tenant Allowance
an amount equal to the sum of (i) third party expenses incurred by
Landlord to review any elements of the Third Expansion Premises B Plans and
the Third Expansion Premises B Work that may affect the structure of the
Building, and (ii) third party expenses incurred by Landlord to review the
Third Expansion Premises B Plans and the Third Expansion Premises B Work of
which Tenant has received advance notice and which Tenant, in its
commercially reasonable determination, has approved.
7.5 Early Access by Tenant.
(A) On or after April 1, 2007, and subject to the timely surrender of the
Third Expansion Premises A by the existing tenants of the Third Expansion
Premises A, Landlord shall permit Tenant access to the Third Expansion
Premises A to commence the construction of the Third Expansion Premises A
Work. Landlord shall use commercially reasonable efforts to provide Tenant
with at least four (4) days advanced notice (which notice may be oral to
Tenant's Construction Representative) of the anticipated date on which
Landlord will provide Tenant with such access, provided, however, the
parties agree that Tenant shall have no remedy or recourse for Landlord's
failure to provide such advanced notice and, provided further, that in no
event will Landlord's failure to provide such advanced notice delay the
Third Expansion Premises A Commencement Date or the Third Expansion
Premises A Rent Commencement Date. Any such access by Tenant shall be upon
all of the terms and conditions of the Lease (other than the payment of
Annual Fixed Rent) and shall be at Tenant's sole risk, and Landlord shall
not be responsible for any injury to persons or damage to property
resulting from such early access by Tenant.
If the existing tenants of the Third Expansion Premises A wrongfully fail
to deliver possession of such space at the time when their tenancy is
scheduled to expire, Landlord shall use reasonable efforts and due
diligence (which shall be limited to the commencement and prosecution
thereafter of eviction proceedings but which shall not require the taking
of any appeal) to evict such occupant from such space and to deliver
possession of such space to Tenant as soon as may be practicable. The
failure of the then occupant of such space to so vacate shall not give
Tenant any right to terminate this Amendment or to deduct from, offset
against or withhold Annual Fixed Rent, Additional Rent or other charges due
under this Amendment (or any portions thereof), except as
expressly provided in the next sentence of this Section. If Landlord shall
have failed to provide Tenant with such access to the Third Expansion
Premises A on or before September 1, 2007 (the "Outside Delivery Date")
(which date shall be extended automatically for such periods of time as
Landlord is prevented from providing the same by reason of Force Majeure
(it being agreed said Force Majeure shall not include delay attributable to
any existing tenant's wrongful failure to deliver possession of the Third
Expansion Premises A, as more particularly described above) or any act or
failure to act of Tenant which interferes with Landlord's ability to
provide such access, without limiting Landlord's other rights on account
thereof), Tenant shall have the right to terminate this Third Amendment to
Lease, with respect to the Third Expansion Premises A only, by giving
notice to Landlord of Tenant's desire do so before such access is provided
to Tenant within the time period from the Outside Delivery Date (as so
extended) until the date which is thirty (30) days subsequent to the
Outside Delivery Date (as so extended); and, upon the giving of such
notice, the term of this Third Amendment to Lease, shall cease and come to
an end with respect to the Third Expansion Premises A only, without further
liability or obligation on the part of either party unless, within thirty
(30) days after receipt of such notice, Landlord provides such access to
Tenant; and such right of termination shall be Tenant's sole and exclusive
remedy for Landlord's failure to provide access within such time.
(B) As of the date of this Third Amendment, Landlord shall permit Tenant
access to the Third Expansion Premises B to commence the construction of
the Third Expansion Premises B Work. Any such access by Tenant shall be
upon all of the terms and conditions of the Lease (other than the payment
of Annual Fixed Rent) and shall be at Tenant's sole risk, and Landlord
shall not be responsible for any injury to persons or damage to property
resulting from such early access by Tenant.
8. Section 11 of the Second Amendment is deleted and neither party shall have
any further right or obligation thereunder.
9. Effective as of the Third Expansion Premises A Commencement Date and
continuing through the expiration of the Term, clause (iii) of the last
sentence of Section 5.6.1.1 of the Lease is hereby deleted and the
following language is substituted therefor: "(iii) in no event shall there
exist more than five (5) partial subleases at any one time during the
Term," and a new clause (iv) shall be added as follows: "and (iv) in no
event shall the rentable floor area of any subleased premises be less than
3,000 square feet."
10. DELIVERY OF ADDITIONAL SECURITY DEPOSIT.
(a) As of the date of this Third Amendment, Tenant agrees to pay to
Landlord $91,375.00 (the "Additional Security Deposit"). Such Additional
Security Deposit, along with the existing security deposit in the amount of
$216,300.00 (the "Existing Security Deposit") paid by Tenant in accordance
with Section 8.21 of the Lease, shall be held by Landlord as security for
the performance by Tenant of all obligations on the part of Tenant under
the Lease during the Term (as may be further extended) with respect to the
Premises, as such term is amended by this Third Amendment, pursuant to the
terms and conditions set forth in Section 8.21. The Additional Security
Deposit and the Existing Security Deposit are hereafter collectively
referred to as the "Security Deposit."
Landlord shall continue to hold the Security Deposit in accordance with the
terms and conditions of the Lease, except as follows.
(b) With respect to the Additional Security Deposit only, Landlord shall
exchange the then existing Letter of Credit for a Letter of Credit
delivered by Tenant which reduces the amount secured by said Letter of
Credit by Twenty Six Thousand and Thirty Three 00/100 Dollars ($26,033.00)
(and otherwise in strict conformity with the requirements of Section 8.21
of the Lease) on the date that is twelve months prior to the Third
Expansion Premises Expiration Date (i.e., September 30, 2009) so that the
remainder of the Additional Security Deposit thereafter secured by the
Letter of Credit shall be Sixty Five Thousand Three Hundred and Forty Two
00/100 Dollars ($65,342.00) and the remainder of the Total Security Deposit
thereafter secured by the Letter of Credit shall be Two Hundred Eighty One
Thousand Six Hundred and Forty Two 00/100 Dollars ($281,642.00), if (i)
Tenant is not then in default (beyond applicable notice and cure periods)
under the terms of the Lease, (ii) Landlord has not applied such deposit or
any portion thereof to Landlord's damages arising from any default on the
part of Tenant, whether or not Tenant has restored the amount so applied by
Landlord and (iii) there have been no more than two (2) Event of Default
occurrences during the Term.
(c) If Tenant believes that it has satisfied all the conditions precedent
to a reduction in the amount of the Additional Security Deposit, then it
shall request such reduction in writing to Landlord, which request shall
certify to Landlord that all such conditions have been satisfied. If
Landlord determines that all of the aforesaid conditions are met, the
Additional Security Deposit shall be so reduced in accordance with this
Section. No Letter of Credit shall automatically reduce, but any reduction
in the amount thereof shall require Landlord's prior written notice to the
issuer of the Letter of Credit of the reduced amount. Within thirty (30)
days after Landlord's receipt of Tenant's request for a reduction as
described above, Landlord shall determine whether such a reduction is
permitted in accordance with this Section, and if it is, Landlord shall
notify the issuer of the Letter of Credit of the amount to which the Letter
of Credit shall be reduced.
11. (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Third Amendment other
than the Broker referenced above; and in the event any claim is made
against Landlord relative to dealings by Tenant with brokers other than the
Broker, Tenant shall defend the claim against Landlord with counsel of
Tenant's selection first approved by Landlord (which approval will not be
unreasonably withheld) and save harmless and indemnify Landlord on account
of loss, cost or damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker in connection with the consummation of this Third Amendment other
than the Broker referenced above; and in the event any claim is made
against Tenant relative to dealings by Landlord with brokers other than the
Broker, Landlord shall defend the claim against Tenant with counsel of
Landlord's selection and save harmless and indemnify Tenant on account of
loss, cost or damage which may arise by reason of such claim. Landlord
agrees that it shall be solely responsible for the payment of brokerage
commissions due to the Broker referenced above in accordance with a
separate commission agreement.
12. Except as otherwise expressly provided herein, all capitalized terms used
herein without definition shall have the same meanings as are set forth in
the Lease.
13. Except as herein amended the Lease shall remain unchanged and in full force
and effect. All references to the "Lease" shall be deemed to be references
to the Lease as herein amended.
[Signature page to follow.]
EXECUTED as a sealed instrument as of the date and year first above
written.
WITNESS: LANDLORD:
BOSTON PROPERTIES LIMITED PARTNERSHIP
By BOSTON PROPERTIES, INC.,
Its general partner
/s/ [illegible] By /s/ David C. Provost
------------------------------------- -------------------------------------
Name David C. Provost
Title Senior Vice President
Boston Properties
ATTEST: TENANT:
CONSTANT CONTACT, INC.
By: /s/ Eric Groves By /s/ Gail Goodman
--------------------------------- -------------------------------------
Name: Eric Groves Name Gail Goodman
Title: SECRETARY or Title PRESIDENT or (VICE PRESIDENT)
(ASSISTANT SECRETARY) HEREUNTO DULY AUTHORIZED
By /s/ Steven R. Wasserman
-------------------------------------
Name Steven R. Wasserman
Title TREASURER or
(ASSISTANT TREASURER)
HEREUNTO DULY AUTHORIZED
(CORPORATE SEAL)
EXHIBIT A
Plan of Third Expansion Premises
EXHIBIT B
TENANT PLAN AND WORKING DRAWING REQUIREMENTS
1. Floor plan indicating location of partitions and doors (details required of
partition and door types).
2. Location of standard electrical convenience outlets and telephone outlets.
3. Location ;and details of special electrical outlets; (e.g. Xerox),
including voltage, amperage, phase and NEMA configuration of outlets.
4. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located indicating
fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting fixtures,
speakers, etc.
6. Location and heat load in BTU/Hr. of all special air conditioning and
ventilating requirements and all necessary HVAC mechanical drawings.
7. Location and details of special structural requirements, e.g., slab
penetrations and areas with floor loadings exceeding a live load of 70
lbs./s.f.
8. Locations and details of all plumbing fixtures; sinks, drinking fountains,
etc.
9. Location and specifications of floor coverings, e.g., vinyl tile, carpet,
ceramic tile, etc.
10. Finish schedule plan indicating wall covering, paint or paneling with paint
colors referenced to standard color system.
11. Details and specifications of special millwork, glass partitions, rolling
doors and grilles, blackboards, shelves, etc.
12. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and any
special items such as thresholds, soundproofing, etc. Keying schedule is
required.
13. Verified dimensions of all built-in equipment (file cabinets, lockers, plan
files, etc.).
14. Location of any special soundproofing requirements.
15. All drawings to be uniform size (30" X 42") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of 1/8"
= 1' or larger.
16. Drawing submittal shall include the appropriate quantity required for
Landlord to file for permit along with four half size sets and one full
size set for Landlord's review and use.
17. Provide all other information necessary to obtain all permits and approvals
for Landlord's Work.
18. Upon completion of the work, Tenant shall provide Landlord with two hard
copies and one electronic CAD file of updated architectural and mechanical
drawings to reflect all project sketches and changes.
EXHIBIT C
FORM OF COMMENCEMENT DATE AGREEMENT
DECLARATION AFFIXING THE COMMENCEMENT DATE OF AMENDMENT
THIS AGREEMENT made this __ day of ______________ 200_, by and between
___________________________ (hereinafter "Landlord") and ______________
(hereinafter "Tenant").
WITNESSETH THAT:
1. This Agreement is made pursuant to Section _ of that certain Lease
Amendment dated _________________, between the parties aforenamed as
Landlord and Tenant (the "Lease").
2. It is hereby stipulated that the applicable Lease Term commenced on
____________, (being the relevant "Commencement Date" under the Amendment),
and shall end and expire on ____________________, unless sooner terminated
or extended, as provided for in the Lease.
WITNESS the execution hereof under seal by persons hereunto duly authorized, the
date first above written.
LANDLORD:
----------------------------------------
TENANT:
----------------------------------------
ATTEST:
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Hereunto duly authorized
(CORPORATE SEAL)
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this __ day of _______________, 200_, before me, the undersigned notary
public, personally appeared ________________, proved to me through satisfactory
evidence of identification, which were _________________________, to be the
person whose name is signed on the preceding or attached document in my
presence.
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF ___________________
On this __ day of _______________, 200_, before me, the undersigned notary
public, personally appeared ________________, proved to me through satisfactory
evidence of identification, which were _________________________, to be the
person whose name is signed on the preceding or attached document, and who swore
or affirmed to me that the contents of the documents are truthful and accurate
to the best of [his] [her] knowledge and belief.
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
EXHIBIT D
FORMS OF LIEN WAIVERS
CONTRACTOR'S PARTIAL WAIVER AND SUBORDINATION OF LIEN
STATE OF ____________________________ Date: _________________
______________________________ COUNTY Application for Payment No.: _______
OWNER: _________________________________________________________________________
CONTRACTOR: ____________________________________________________________________
LENDER / MORTGAGEE: None
1. Original Contract Amount: $ ______________________________________
2. Approved Change Orders: $ ______________________________________
3. Adjusted Contract Amount: $ ______________________________________
(line 1 plus line 2)
4. Completed to Date: $ ______________________________________
5. Less Retainage: $ ______________________________________
6. Total Payable to Date: $ ______________________________________
(line 4 less line 5)
7. Less Previous Payments: $ ______________________________________
8. Current Amount Due: $ ______________________________________
(line 6 less line 7)
9. Pending Change Orders: $ ______________________________________
10. Disputed Claims: $ ______________________________________
The undersigned who has a contract with _________________________________ for
furnishing labor or materials or both labor and materials or rental equipment,
appliances or tools for the erection, alteration, repair or removal of a
building or structure or other improvement of real property known and identified
as located in ___________________ (city or town), _________ County,
____________________________ and owned by _______________________, upon receipt
of ____________________ ($__________________) in payment of an
invoice/requisition/application for payment dated ___________________ does
hereby:
(a) waive any and all liens and right of lien on such real property for
labor or materials, or both labor and materials, or rental equipment,
appliances or tools, performed or furnished through the following date
_____________________ (payment period), except for retainage, unpaid
agreed or pending change orders, and disputed claims as stated above;
(b) subordinate any and all liens and right of lien to secure payment for
such unpaid, agreed or pending change orders and disputed claims, and
such further labor or materials, or both labor and materials, or
rental equipment, appliances or tools, except for retainage, performed
or furnished at any time through the twenty-fifth day after the end of
the above payment period, to the extent of the amount actually
advanced by the above lender/mortgagee through such twenty-fifth day.
Signed under the penalties of perjury this __________ day of _____________,
20__.
WITNESS: CONTRACTOR:
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
SUBCONTRACTOR'S LIEN WAIVER
General Contractor: ____________________________________________________________
Subcontractor: _________________________________________________________________
Owner: _________________________________________________________________________
Project: _______________________________________________________________________
Total Amount Previously Paid: $ _____________________________
Amount Paid This Date: $ _____________________________
Retainage (Including This Payment) Held to Date: $ _____________________________
In consideration of the receipt of the amount of payment set forth above and any
and all past payments received from the Contractor in connection with the
Project, the undersigned acknowledges and agrees that it has been paid all sums
due for all labor, materials and/or equipment furnished by the undersigned to or
in connection with the Project and the undersigned hereby releases, discharges,
relinquishes and waives any and all claims, suits, liens and rights under any
Notice of Identification, Notice of Contract or statement of account with
respect to the Owner, the Project and/or against the Contractor on account of
any labor, materials and/or equipment furnished through the date hereof.
The undersigned individual represents and warrants that he is the duly
authorized representative of the undersigned, empowered and authorized to
execute and deliver this document on behalf of the undersigned and that this
document binds the undersigned to the extent that the payment referred to herein
is received.
The undersigned represents and warrants that it has paid in full each and every
sub-subcontractor, laborer and labor and/or material supplier with whom
undersigned has dealt in connection with the Project and the undersigned agrees
at its sole cost and expense to defend, indemnify and hold harmless the
Contractor against any claims, demands, suits, disputes, damages, costs,
expenses (including attorneys fees), liens and/or claims of lien made by such
sub-subcontractors, laborers and labor and/or material suppliers arising out of
or in any way related to the Project. This document is to take effect as a
sealed instrument.
Signed under the penalties of perjury as of this _____ day of
__________________, 20__.
SUBCONTRACTOR: Signature and Printed Name of Individual
Signing this Lien Waiver
------------------------------------- ----------------------------------------
----------------------------------------
WITNESS:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Dated:
------------------------------
CONTRACTOR'S WAIVER OF CLAIMS AGAINST OWNER AND ACKNOWLEDGMENT OF FINAL PAYMENT
Commonwealth of Massachusetts Date: ______________________
COUNTY OF ___________________________ Invoice No.: _____________________
OWNER: _________________________________________________________________________
CONTRACTOR: ____________________________________________________________________
PROJECT: _______________________________________________________________________
1. Original Contract Amount: $ ________________________________
2. Approved Change Orders: $ ________________________________
3. Adjusted Contract Amount: $ ________________________________
4. Sums Paid On Account of Contract Amount: $ ________________________________
5. Less Final Payment Due: $ ________________________________
The undersigned being duly sworn hereby attests that when the Final Payment Due
as set forth above is paid in full by Owner, such payment shall constitute
payment in full for all labor, materials, equipment and work in place furnished
by the undersigned in connection with the aforesaid contract and that no further
payment is or will be due to the undersigned.
The undersigned hereby attests that it has satisfied all claims against it for
items, including by way of illustration but not by way of limitation, items of:
labor, materials, insurance, taxes, union benefits, equipment, etc. employed in
the prosecution of the work of said contract, and acknowledges that satisfaction
of such claims serves as an inducement for the Owner to release the Final
Payment Due.
The undersigned hereby agrees to indemnify and hold harmless the Owner from and
against all claims arising in connection with its Contract with respect to
claims for the furnishing of labor, materials and equipment by others. Said
indemnification and hold harmless shall include the reimbursement of all actual
attorney's fees and all costs and expenses of every nature, and shall be to the
fullest extent permitted by law.
The undersigned hereby irrevocably waives and releases any and all liens and
right of lien on such real property and other property of the Owner for labor or
materials, or both labor and materials, or rental equipment, appliances or
tools, performed or furnished by the undersigned, and anyone claiming by,
through, or under the undersigned, in connection with the Project.
The undersigned hereby releases, remises and discharges the Owner, any agent of
the Owner and their respective predecessors, successors, assigns, employees,
officers, shareholders, directors, and principals, whether disclosed or
undisclosed (collectively "Releasees") from and against any and all claims,
losses, damages, actions and causes of action (collectively "Claims") which the
undersigned and anyone claiming by, through or under the undersigned has or may
have against the Releasees, including, without limitation, any claims arising in
connection with the Contract and the work performed thereunder.
Notwithstanding anything to the contrary herein, payment to the undersigned of
the Final Payment Due sum as set forth above, shall not constitute a waiver by
the Owner of any of its rights under the contract including by way of
illustration but not by way of limitation guarantees and/or warranties. Payment
will not be made until a signed waiver is returned to Owner.
The undersigned individual represents and warrants that he/she is the duly
authorized representative of the undersigned, empowered and authorized to
execute and deliver this document on behalf of the undersigned.
Signed under the penalties of perjury as a sealed instrument as of this __ day
of ___________________, _______.
_________________________ Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Hereunto duly authorized
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this __ day of ___________________, 20__, before me, the undersigned
notary public, personally appeared ________________________, proved to me
through satisfactory evidence of identification, to be the person whose name is
signed on the preceding or attached document, and acknowledged to me that he/she
signed it as _____________________ for __________________________, a
corporation/partnership voluntarily for its stated purpose.
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
EXHIBIT E
TENANT'S SCHEMATIC PLANS
(see attached)
[IMAGE OF TENANT'S SCHEMATIC PLANS]
Dates Referenced Herein and Documents Incorporated by Reference
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