33 HAYDEN AVENUE LEXINGTON, MASSACHUSETTS

 

Exhibit 10.142

 

33 HAYDEN AVENUE

LEXINGTON, MASSACHUSETTS

 

Lease Dated December 20, 2004

 

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, and with an address at, 33 Hayden Avenue, Lexington, 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:

 

 

 

2

 

3

 

4

 

5

 

1.2	EXHIBITS .

 

There are incorporated as part of this Lease:

 

 

1.3	TABLE OF ARTICLES AND SECTIONS .

 

 

6

 

7

 

8

 

ARTICLE II

 

THE BUILDINGS, PREMISES, TERM AND RENT

 

2.1	THE PREMISES .

 

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, 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 referred to as the “Premises.” The term “Building” means the Building identified on the first page, and which is the subject of this Lease; 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 term “Property” means the Building and the Site.

 

2.2	RIGHTS TO USE COMMON FACILITIES .

 

Subject to Landlord’s right to change or alter any of the following in Landlord’s discretion as provided in Section 2.3 hereof, Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use in common with others, 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, elevators and loading area of the Building, and the pipes, ducts, conduits, wires and appurtenant meters and equipment serving the Premises in common with others, (b) 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. Notwithstanding anything to the contrary herein, Landlord has no obligation to allow any particular telecommunication service provider to have access to the Building or to the Premises except as may be required by applicable law. Tenant acknowledges that it uses Verizon as its present telecommunications provider. Landlord hereby approves Tenant’s use of Verizon but any cabling, equipment and other telecommunications apparatus, wiring and other appurtenances (collectively “Equipment”) and the placement and location thereof shall be solely for Tenant’s use in the conduct of the Permitted Use and shall be first approved by Landlord prior to installation, such approval not to be unreasonably withheld. Such approval may be conditioned by Landlord on Tenant’s agreement to remove all of the same at the expiration or earlier termination of this Lease but may not be conditioned on the imposition of access

 

9

charges. Landlord agrees not to unreasonably withhold its consent to any subsequent telecommunications service provider in replacement of, and not in addition to, Verizon. If Landlord so consents to such subsequent telecommunications service provider, Landlord may not condition such access upon the payment to Landlord by the service provider of fees assessed by Landlord. However, Landlord shall have the right to condition the same on Landlord’s prior approval of the installation, placement and location of such subsequent service provider’s Equipment and Tenant’s agreement to remove all of such subsequent service provider’s Equipment at the expiration or earlier termination of this lease. In no event shall any telecommunications provider install any equipment for sale of service to others or for anyone’s use other than Tenant in the Premises for the conduct of the Permitted Use.

 

2.2.1

TENANT’S PARKING .

 

In addition, Tenant shall have the right to use in the parking area the Number of Parking Spaces (referred to in Section 1.1) for the parking of automobiles by its employees and visitors, in common with use by other tenants from time to time of the Complex, provided, however, that Landlord shall not be obligated to furnish stalls or spaces in any parking area specifically designated for Tenant’s use. However, Landlord shall designate five (5) parking spaces for visitor use. Such visitor spaces shall be available to the visitors of all tenants, subtenants and other occupants from time to time of the Building and Landlord shall have no obligation to police or otherwise monitor or regulate the use thereof. Except for payment by Tenant of operating expenses as provided in Section 2.6 hereof, there shall be no charge for Tenant’s use of such parking spaces during the Original Term. 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, except for the negligence or willful misconduct of Landlord and persons for whose Landlord is responsible, 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’S RESERVATIONS .

 

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

 

10

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. Notwithstanding the foregoing, Landlord’s right to make such alterations, additions or other changes shall not materially and adversely (i) affect Tenant’s use of the Premises, (ii) interfere with or deprive Tenant of reasonable access to and from the Premises, (iii) change the configuration of the Premises or (iv) reduce the Rentable Floor Area of the Premises. Further, except in the case of emergencies, Landlord shall give Tenant reasonable advance notice of any work and Landlord shall perform such work in a manner so as not to materially interfere with Tenant’s use of the Premises.

 

2.4	HABENDUM .

 

Tenant shall have and hold the Premises for a period commencing on the earlier of (the “Commencement Date”) (a) that date on which the Premises are “substantially complete” as provided in Section 3.1 provided, or (b) that date on which Tenant commences occupancy of any portion of the Premises for the Permitted Uses, and continuing for the Term unless sooner terminated as provided in Article VI or Article VII or unless extended as provided in Section 8.20. During Landlord’s construction of the improvements to the Premises pursuant to Article III hereof, Tenant shall have the right to install its wiring and cabling, its furniture and fixtures but only in accordance with and subject to the provisions and requirements of Section 5.14 hereof and such right and Tenant’s access shall be upon all of the terms and conditions set forth in this Lease except that such installation if prior to the date of substantial completion (as provided in Section 3.1), shall not trigger the commencement of the Lease Term as respects commencement of Annual Fixed Rent. However, whether or not Tenant exercises such rights and whether or not Tenant has completed all such installations, the Lease Term and Annual Fixed Rent shall commence on the Commencement Date.

 

As soon as may be convenient after the date has been determined on which the Term commences as aforesaid, Landlord and Tenant agree to join with each other in the execution of a written Declaration, in the form of Exhibit E, in which the date on which the Term commences as aforesaid and the Term of this Lease shall be stated. If Tenant fails to execute such Declaration, the Commencement Date and Lease Term shall be as reasonably determined by Visnick and Caulfield, Architects (“Visnick & Caulfield”) in accordance with the terms of this Lease.

 

2.5	FIXED RENT PAYMENTS .

 

Tenant agrees to pay to Landlord, or as directed by Landlord, at Landlord’s Original Address specified in Section 1.1 hereof, or at such other place as Landlord shall from

 

11

time to time designate by notice, (1)(a) on the Rent 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 (1/12 ^th ) of the Annual Fixed Rent (sometimes hereinafter referred to as “fixed rent”) and (1)(b) on the Commencement Date 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 (1/12 ^th ) of $1.00 per annum for each square foot of Rentable Floor Area of Tenant’s Space for tenant electricity subject to escalation as provided in Section 2.8 and (2) on the first day of each and every calendar month during the extension option period (if exercised), a sum equal to (a) one twelfth (1/12 ^th ) of the annual fixed rent as determined in Section 8.20 for the extension option period plus (b) then applicable monthly electricity charges (subject to escalation for electricity as provided in Section 2.8 hereof. Until notice of some other designation is given, fixed rent and all other charges for which provision is herein made shall be paid by remittance to or for the order of Boston Properties Limited Partnership at P.O. Box 3557, Boston, Massachusetts 02241-3557, and all remittances received by Boston Properties Limited Partnership, as Agents as aforesaid, or by any subsequently designated recipient, shall be treated as payment to Landlord.

 

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 Rent Commencement Date is a day other than the first day of a calendar month, the first payment of Annual Fixed Rent 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 Rent Commencement Date to the first day of the succeeding calendar month.

 

Additional Rent 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 but shall commence on the Commencement Date; and other provisions of this Lease calling for monthly payments shall be read as incorporating this undertaking by Tenant.

 

Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence until the Rent Commencement Date, Tenant shall be subject to, and shall comply with, all other provisions of this Lease as and at the times provided in this Lease.

 

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.

 

The Rent Commencement Date in respect of the Premises (“RCD”) shall be the date which is 181 days after the Commencement Date (“Fixed Rent Abatement Period”) (i.e., Tenant shall have no obligation to pay Annual Fixed Rent during the first (1 ^st ) 180 days of the Term of the Lease in respect of the Premises (“Abated Fixed Rent”).

 

12

Notwithstanding anything to the contrary herein contained, if Tenant defaults at any time during the Term of the Lease and fails to cure such default within the applicable cure period under this Lease, all Abated Fixed Rent shall immediately become due and payable. The payment by Tenant of the Abated Fixed Rent in the event of a default shall not limit or affect any of Landlord’s other rights, pursuant to this Lease or at law or in equity. During the Fixed Rent Abatement Period, only Annual Fixed Rent payable in respect of the Premises shall be abated, and Tax Excess, Operating Expense Excess and all other costs and charges specified in the Lease shall remain as due and payable pursuant to the provisions of the Lease. In the event that Tenant pays to Landlord the Abated Fixed Rent in accordance with this Paragraph, then the monthly installments of Annual Fixed Rent thereafter (i.e., after Tenant makes such payment) payable by Tenant during the remainder of the initial Term of the Lease shall be reduced by the Monthly Abated Fixed Rent Reduction, as hereinafter defined. The “Monthly Abated Fixed Rent Reduction” shall be defined as the amount of Abated Fixed Rent actually paid by Tenant to Landlord, amortized on a straight-line basis in equal monthly installments over the remainder of the initial Term of the Lease.

 

2.6	OPERATING EXPENSES .

 

“Landlord’s Operating Expenses” means the cost of operation of the Building and the Site which shall exclude costs of special services rendered to tenants (including Tenant) for which a separate charge is made, but shall include, without limitation, the following: premiums for insurance carried with respect to the Building and the Site (including, without limitation, liability insurance, 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, worker’s compensation insurance premiums and payroll taxes paid to, for or with respect to all persons engaged in the operating, maintaining or cleaning of the Building or Site, water, sewer, electric, gas, oil and telephone charges (excluding utility charges separately chargeable to tenants for additional or special services); 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 or manufacturers under guarantees or out of insurance proceeds); cost of snow removal and care of landscaping; payments under service contracts with independent contractors; any and all subsidies or other payments of any type or amount made or granted by Landlord respecting the operation of the cafeteria; 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 and maintenance of the Building and the Site and properly chargeable against income, provided, however, there shall be included (a) depreciation for capital expenditures made by Landlord (i) to reduce Landlord’s

 

13

Operating Expenses if Landlord shall have reasonably determined that the annual reduction in Landlord’s 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 enacted or amended after the Date of this Lease; 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 capital expenditure by the number of years of useful life (without regard to any accelerated depreciation permitted thereunder) of the capital item acquired and the useful life shall be reasonably determined by Landlord in accordance with generally accepted accounting principles and practices (without regard to any accelerated depreciation permitted thereunder) in effect at the time of acquisition of the capital item.

 

Notwithstanding the foregoing, the following shall be excluded from Operating Expenses for the Property:

 

(1)

All capital expenditures and depreciation, except as otherwise explicitly provided in this Section 2.6;

 

(2)

Leasing fees or commissions, advertising and promotional expenses, legal fees, the cost of tenant improvements, build out allowances to Tenants, moving expenses, assumption of rent under existing leases and other concessions incurred in connection with leasing space in the Building;

 

(3)

Interest on indebtedness, debt amortization, ground rent, and refinancing costs for any mortgage or ground lease of the Building or the Site;

 

(4)

Legal, auditing, consulting and professional fees and other costs, (other than those legal, auditing, consulting and professional fees and other costs incurred in connection with the normal and routine maintenance and operation of the Building and/or the Site) paid or incurred in connection with financings, refinancings or sales of any of Landlord’s interest in the Building or the Site;

 

(5)

Real estate taxes, provided that real estate taxes shall be payable as provided in Section 2.7;

 

(6)

Costs incurred in performing work or furnishing services for any tenant (including Tenant), whether at such tenant’s or Landlord’s expense, to the extent that such work or services is in excess of any work or service that Landlord is obligated to furnish to Tenant at Landlord’s expense (e.g., if Landlord agrees to provide extra cleaning to another tenant, the cost thereof would be excluded since Landlord is not obligated to furnish extra cleaning to Tenant);

 

14

(7)

The cost of any item or service to the extent to which Landlord is actually reimbursed or compensated by insurance, any tenant, or any third party;

 

(8)

The cost of repairs or replacements incurred by reason of fire or other casualty or condemnation other than costs not in excess of the deductible on any insurance maintained by Landlord which provides a recovery for such repair or replacement;

 

(9)

Insurance premiums to the extent any tenant causes Landlord’s existing insurance premiums to increase or requires Landlord to purchase additional insurance because of such tenant’s use of the Building for other than office purposes;

 

(10)

Any advertising, promotional or marketing expenses for the Building;

 

(11)

Penalties and interest for late payment of any obligations of Landlord, including, without limitation, taxes, insurance, equipment leases and other past due amounts;

 

(12)

Contributions to charitable organizations;

 

(13)

Salaries or other compensation paid to employees above the grade of property manager;

 

(14)

The cost of testing, remediation or removal of “Hazardous Materials” (as defined in Section 5.3) in the Building or on the Site required by “Hazardous Materials Laws” (as defined in Section 5.3) unless caused by Tenant or its contractors, subcontractors, agents, employees or invitees;

 

(15)

Legal fees and other expenses incurred in connection with negotiating and enforcing leases with tenants in the Building.

 

“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 Building.

 

“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), conservation surcharges, boycotts, strikes, embargoes or shortages.

 

15

“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 Total Rentable Floor Area of the Building.

 

In the event that on the average less than ninety-five percent (95%) of the Rentable Floor Area of the Building is leased during any calendar year during the Lease Term (including, without limitation, calendar year 2005 for purposes of calculating Base Operating Expenses), then Landlord’s Operating Expenses for each such calendar year which vary based on the level of occupancy (as, for example, cleaning expenses) shall be determined by Landlord to be an amount equal to the Landlord’s Operating Expenses which so vary and which would normally be expected to have been charged had ninety-five percent (95%) of the Rentable Floor Area of the Building been leased during such calendar year. In no event shall Landlord receive on account of any extrapolation an amount in excess of actual costs incurred.

 

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 include the $1.00 for tenant electricity to be paid by Tenant at the time of payment of Annual Fixed Rent and for which provision is made in Section 2.5 hereof, separate provision being made in Section 2.8 of this Lease for Tenant’s share of increases in electricity costs.)

 

Landlord’s Operating Expense records shall be kept on a consistent basis from year to year. Not later than one hundred and 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 statement in reasonable detail and according to usual accounting practices certified by a representative of Landlord, showing Base Operating Expenses and Base Operating Expenses Allocable to the Premises and also 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 shall be rendered in form substantially similar to the Operating Expenses Statement Form attached hereto as Exhibit G. 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,

 

16

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). Such refund, if any, shall survive the expiration or earlier termination of this Lease provided Tenant was not in default at the expiration or termination of this Lease and provided Tenant does not then have any further obligations to Landlord. Within ten (10) days after Landlord’s receipt of a request for explanation from Tenant, Landlord shall provide to Tenant a reasonable explanation to Tenant of questions relating to Landlord’s Operating Expenses and such reasonable documentation of expenses for the year covered by such statement as Tenant may reasonably request.

 

In addition, 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 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 operating expenses for each calendar year during the Term. Any increase in estimated annual estimated Landlord’s Operating Expenses shall be accompanied by a reasonable written explanation thereof.

 

Notwithstanding the foregoing provisions, no decrease in Landlord’s Operating Expenses shall result in a reduction of the amount otherwise payable by Tenant if and to the extent said decrease is attributable to vacancies in the Buildings rather than to any other causes.

 

Upon no less than ten (10) business days prior notice to Landlord, Tenant, at Tenant’s expense, may examine Landlord’s books and records regarding the Operating Expense statement for the year submitted at any reasonable time specified by Landlord during Landlord’s business hours at a place designated by Landlord. Tenant shall hold such books and records in confidence and not disclose the same to any other party, including, without limitation, any other tenant in the Building. As a condition precedent to the conduct of any such audit, Tenant shall execute a confidentiality agreement binding Tenant and its auditor and all of their respective employees and agents in such form as determined by Landlord. Landlord shall reasonably cooperate with any such examination and shall promptly make such records available to Tenant and Tenant’s accountant. Such audit right must be exercised within 180 days following Tenant’s receipt of Landlord’s annual reconciliation or other statement showing Landlord’s determination of the Operating Expenses for the subject calendar year. Any such review or audit shall be limited to

 

17

the year reflected in such statement. In the event the audit shows an over-payment, or mischarged amount, then Landlord shall grant Tenant a rent credit in the amount previously paid by Tenant or if this Lease has expired or terminated Landlord shall pay to Tenant such amount (less any monies owned to Landlord under this Lease), which obligation shall survive such termination or expiration. All costs for any such audit shall be paid by Tenant, unless the amount of the discrepancy is identified to be more than five percent (5%) in which event Landlord shall pay for the costs of the audit. In no event shall Tenant employ or otherwise use or engage the services of any person, firm, consultant, accountant, advisor, agent or other representative to perform such audit whose fee or compensation is based in whole or in part on a percentage of the amount disputed or on a percentage of overpayment or savings or on any contingent basis.

 

2.7	REAL ESTATE TAXES .

 

If with respect to any full Tax Year or fraction of a Tax Year falling within the Term, 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 (30 ^th ) 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. Not later than ninety (90) 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 seeking 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 include a copy of the applicable rent estate tax bill and shall also show for the preceding Tax 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 Tax Year or fraction thereof, or Landlord shall credit any amounts due from it to Tenant pursuant to the provisions of this Section 2.7 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 over-payment as aforesaid if the Term has ended and Tenant has no further obligation to Landlord). Such refund, if any, shall survive the expiration or earlier termination of this Lease provided was not then in default at the expiration or termination of this Lease and provided Tenant does not then have any further obligations to Landlord).

 

18

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 for the payment of fixed rent. 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.

 

To the extent that real estate taxes shall be payable to the taxing authority in installments with respect to periods less than a Tax Year, the foregoing statement shall be rendered and payments made on account of such installments. Notwithstanding the foregoing provisions, no decrease in Landlord’s Tax Expenses with respect to any Tax Year shall result in a reduction of the amount otherwise payable by Tenant if and to the extent said decrease is attributable to vacancies in the Building or partial completion of the Building rather than to any other causes.

 

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.

 

(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 Building.

 

(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 Building.

 

19

(vi)

“Real estate taxes” means all taxes and special assessments of every kind and nature and user fees and other like fees 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 and fees for any formal or informal proceedings for negotiation or abatement of taxes (collectively, “Abatement Expenses”), which Abatement Expenses shall be excluded from Base 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 Property, 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 Property is 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.

 

(vii)

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.

 

2.8	TENANT ELECTRICITY .

 

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 cost of furnishing electricity to the Premises demised to Tenant, (excluding electricity for common areas of the Building and Site and electricity for standard heating, ventilating and air-conditioning (“HVAC”), all of which shall be covered by and included in Operating Costs under Section 2.6 hereof and also excluding utility charges separately chargeable to tenants for additional or special services as, for example, for supplemental or additional HVAC services) for a full calendar year exceeds $1.00 per square foot of Rentable Floor Area of the Building, or for any such fraction of a calendar year exceeds the corresponding fraction of $1.00 per square foot of Rentable Floor Area of the Building, then Tenant shall pay to Landlord, as Additional Rent, on or before the thirtieth (30 ^th ) day following receipt by Tenant of the statement referred to below in this Section 2.8, its proportionate share of the amount of such excess (i.e.

 

20

the same ratio of such excess as the Rentable Floor Area of Tenant’s Space bears to the Total Rentable Floor Area of the Building). Payments by Tenant on account of such excess shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. The amount so to be paid to Landlord shall be an amount from time to time reasonably estimated by Landlord to be sufficient to cover, in the aggregate, a sum equal to such excess for each calendar year during the Term. If the Landlord shall reasonably determine that the cost of the electricity furnished to the Tenant at the Premises exceeds the amount being paid under Sections 2.5 and 2.8, then the Landlord may charge the Tenant for such excess and the Tenant shall promptly pay the same upon billing therefor.

 

Not later than ninety (90) 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 to the Building. 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 the amount remaining due from, or overpaid by, Tenant for the year or other period covered by the statement.

 

2.8.1.

TENANT ELECTRICITY – CHECK METERS FOR THE PREMISES .

 

(A)

Landlord shall, at its sole cost and expense, install one or more check meters (so-called) for the Premises in locations and in a manner as determined by Landlord. Notwithstanding the provisions of Section 2.8 and any other Section or provision of this Lease, commencing on the date the check meter(s) for the Premises becomes operational and continuing for the Term (as it may be extended) Tenant shall be check metered and separately billed by Landlord for all electricity usage related to and/or used respecting the Premises and all related facilities and equipment (collectively called the “Premises Electricity”). Landlord shall have the right to bill Tenant for Premises Electricity on a monthly basis and Tenant shall pay such monthly Premises Electricity charges to Landlord within ten (10) days after receipt of Landlord’s billing therefore.

 

From and after the date the check meter(s) for the Premises are effective and operational, then thereafter electricity thereafter used and/or consumed for the Premises shall be paid as provided in this Section 2.8.1. but a final settling up, adjustment and payment for Premises electricity used and/or consumed prior to said effective date shall be made in accordance with Section 2.5 and 2.8 hereof.

 

21

 

ARTICLE III

 

CONDITION OF PREMISES; ALTERATIONS

 

3.1	SUBSTANTIAL COMPLETION .

 

(A)

Plans and Construction Process .

 

(1)

Landlord’s Work . Attached hereto as Exhibit B is (i) a space plan (“Tenant Plan”) and (ii) a detailed scope (hereinafter called the “Building Standard Materials and Turnkey Scope”) showing the work to be performed by Landlord, at Landlord’s cost and expense, in order to prepare the Premises for Tenant’s occupancy (such work being hereinafter referred to as the “Landlord’s Work”). For the purposes of this Lease, the term “Landlord’s Work” shall mean all labor, materials and other work necessary for the construction of the improvements described in Exhibit B; provided, however, that Landlord shall have no responsibility for the installation or connection of Tenant’s computer, telephone, other communication equipment, systems or wiring.

 

(2)

Additional Tenant Work . Attached hereto as Exhibit B-1 is a list of items of work included on the Tenant Plan which is work beyond the scope outlined in the Building Standard and Materials Turnkey Scope and therefore is not included within Landlord’s Work (such work being hereinafter referred to as the “Additional Tenant Work”). For the purpose of this Lease, the term “Additional Tenant Work” shall mean all labor, materials and other work necessary for the construction of the Additional Tenant Work and for the purchase and installation of the “Tenant’s Supplemental Air-Conditioning Units” (referred to in Section 3.5 hereof). Landlord’s Work and the Additional Tenant Work are collectively hereinafter called the “Work.”

 

(3)(a)

Tenant Plan Excess Costs . It is understood and agreed that Landlord shall be responsible for the design costs associated with the Landlord’s Work and Tenant shall be responsible (as part of Tenant Plan Excess Costs, as hereinafter defined) for the design costs associated with the Additional Tenant Work. On or before January 28, 2005, Landlord shall furnish to Tenant a written statement of (i) the costs of the Additional Tenant Work including the “Tenant’s Supplemental A/C Units Costs” (defined in Section 3.5 hereof) (such costs in the aggregate being hereinafter referred to as the “Tenant Plan Excess Costs”), which such costs shall include a construction management fee equal to 4% of the Additional Tenant Work costs in excess of $200,000.00 and shall be paid by Tenant as Additional Rent

 

22

in accordance with Section 3.4 below, and (ii) Landlord’s estimate of any delay which would likely result in the completion of the Landlord’s Work as the result of any particular item of Additional Tenant Work. In addition, Landlord shall not charge the 4% construction management fee on the cost of Tenant’s installation of its telecommunications wiring and cabling. Tenant shall be solely responsible for the installation thereof at its sole cost and expense and Landlord shall have no obligation to manage or otherwise oversee the installation thereof but Tenant shall comply with the provisions of Section 2.2 hereof.

 

(3)(b)

Landlord’s Notice to Tenant of Long Lead Items . On or before January 11, 2005, Landlord shall furnish to Tenant a written list of “Long Lead Items” (hereinafter defined), the cost thereof and the length of the lead time. “Long Lead Items” shall mean any 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 milled for the Work in or to the Premises and require additional time for receipt or installation.

 

(4)

Authorization to Proceed Date; Long Lead Item Release Date . On or before February 2, 2005 (herein called the “Authorization to Proceed Date”), Tenant shall give Landlord written authorization to proceed with the Additional Tenant Work in accordance with the Tenant’s Plan and Exhibit B-1 (such notice being referred to as the “Notice to Proceed”). In addition, Tenant shall promptly 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 the Work on a timely basis (“Permit Documentation”).

 

Further, Tenant shall, on or before January 14, 2005 (herein called the “Long Lead Item Release Date”), give Landlord written authorization to proceed to purchase and/or contract for the “Long Lead Items” (defined above). Notwithstanding the foregoing, Tenant acknowledges that (i) certain Long Lead Items may still delay completion of the Work and thus result in a Tenant Delay even if Tenant does authorize them on or before the Long Lead Item Release Date, and (ii) any Long Lead Items which are added as a result of a change order after the Long Lead Item Release Date may delay completion of the Work and thus result in a Tenant Delay.

 

(5)

Change Orders . Tenant shall have the right, in accordance herewith, to submit for Landlord’s approval change proposals subsequent to the Notice to Proceed (each, a “Change Proposal”). Landlord agrees to

 

23

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 increase in costs (“Change Order Costs”) associated with such Change Proposal, as well as an estimate of any delay which would likely result in the completion of the Work if a Change Proposal is made pursuant hereto (“Landlord’s Change Order Response”). Tenant shall have the right to then approve or withdraw such Change Proposal within five (5) business days after receipt of Landlord’s Change Order Response. If Tenant fails to respond to Landlord’s Change Order Response within such five (5) business 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 the Tenant Plan Excess Costs and shall be paid in the same manner as Tenant Plan Excess Costs are paid as set forth in Section 3.4. Notwithstanding the foregoing, if a Change Order relates to a deletion in any item or component of Work which has not been contracted for or purchased as of the date of Landlord’s receipt of Tenant’s Change Proposal therefore, Tenant shall only be responsible for the increase in the cost of the item or component of the Work covered by the Change Order in excess of the deleted item.

 

(6)

Tenant Response to Requests for Information and Approvals . 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 the Work, within three (3) business days of Tenant’s receipt of such request.

 

(7)

Time of the Essence . Time is of the essence in connection with Tenant’s obligations under this Section 3.1.

 

(B)

Tenant Delay .

 

(1)

A “ Tenant Delay ” shall be defined as the following which shall be set forth in writing by Landlord to Tenant within a reasonable period of time after Landlord learns of same:

 

(a)

Tenant’s failure to give authorization to Landlord to proceed to purchase and/or contract for Long Lead Items on or before the Long Lead Item Release Date,

 

24

Tenant’s failure to give authorization to Landlord to proceed with the Additional Tenant Work on or before the Authorization to Proceed Date or Tenant’s failure to provide all required Permit Documentation to Landlord on or before the Authorization to Proceed Date; or

 

(b)

Tenant’s failure timely to respond to any request from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction Representative including, without limitation, within the time periods set forth in Section 3.1(A)(6) above;

 

(c)

Tenant’s failure to pay the Tenant Plan Excess Costs in accordance with Section 3.4;

 

(d)

Any delay due to items of work for which there is a 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 Premises and require additional time for receipt or installation;

 

(e)

Any delay in the completion of the Work resulting from particular items of the Additional Tenant Work, including, without limitation, Change Orders; or

 

(f)

Any other delays caused by Tenant, Tenant’s contractors, architects, engineers or anyone else engaged by Tenant in connection with the preparation of the Premises for Tenant’s occupancy, including, without limitation, utility companies and other entities furnishing communications, data processing or other service, equipment, or furniture.

 

The Tenant Delays defined in clauses (a), (b) and (c) of this Section 3.1(B)(1) are sometimes hereinafter referred to as “Accelerated Rent Tenant Delays,” the Tenant Delays defined in clauses (d), (e), and (f) of this Section 3.1(B)(1) are sometimes hereinafter referred to as “Other Tenant Delays.”

 

(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

 

25

such Tenant Delay or whether or not it is within the control of Tenant or any such employee. The Work shall be deemed substantially completed as of the date when the Work would have been substantially completed but for any Tenant Delays, as determined by Visnick & Caulfield, Architects in the exercise of its good faith business judgment.

 

(b)

If any Accelerated Rent Tenant Delays occur: (i) Tenant shall, for the purpose of reimbursing Landlord for lost rent due to Landlord’s inability to proceed with the Work as scheduled, pay to Landlord an amount (“Accelerated Rent Payment”) equal to one day of Annual Fixed Rent and Additional Rent for each day of Accelerated Rent Tenant Delay, (ii) the Estimated Commencement Date shall be extended by each day of Accelerated Rent Tenant Delay, and (iii) if the Commencement Date occurs before the Estimated Commencement Date, then any Accelerated Rent Payment paid by Tenant shall be credited against the Annual Fixed Rent and Additional Rent payable by Tenant in respect of the period commencing as of the Commencement Date and ending as of the Estimated Commencement Date.

 

(c)

Tenant shall reimburse Landlord the amount, if any, by which the cost of the Work is increased as the result of any Tenant Delay in excess of the amounts paid under Section 3.1(B)(2)(b) above and not otherwise credited to Tenant under said Section 3.1(B)(2)(b).

 

(d)

If Landlord claims a Tenant Delay has occurred, Landlord and Tenant shall reasonably cooperate to revise the project schedule to the end that, insofar as reasonably feasible, lost time may be made up but Landlord shall in no event be obligated to engage in extraordinary efforts. Without limiting the foregoing, Landlord shall have no obligation to cause any Work to be performed other than during normal business hours and Landlord shall have no obligation to pay premium or overtime rates and/or charges. In determining whether a Tenant Delay has occurred, whether Accelerated Rent is due or whether Tenant is to reimburse Landlord on account of increases in cost due to a Tenant Delay only the net effect on the critical path is to be considered after giving effect to (i) changes in the work, which eliminate work or require less work or less costly work than originally contemplated in the project schedule and in fact reduce the time schedule and (ii) any mitigation of a delay by means of rescheduling of work subject to the foregoing.

 

26

(e)

Any amounts due from Tenant to Landlord under this Section 3.1(B)(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 3.1(B)(2) shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease.

 

(C)

Substantial Completion of the Work .

 

(1)

Landlord’s Obligations . Subject to Tenant Delays and delays due to Force Majeure, as defined in Section 6.1 and subject to the provisions of Section 3.1(B)(2), Landlord shall use reasonable speed and diligence to have the Work substantially completed on or before the Estimated Commencement Date, but Tenant shall have no claim against Landlord for failure so to complete construction of the 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.

 

(2)

Definition of Substantial Completion . The Premises shall be treated as having been substantially completed on the later of:

 

(a)

The date on which the Work, together with common facilities for access and services to the Premises, has been completed (or would have been completed except for Tenant Delays) except for items of work and adjustment of equipment and fixtures which can be completed after occupancy has been taken without causing material interference with Tenant’s use of the Premises (i.e. so-called “punch list” items), and

 

(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 Premises for the Permitted Use, 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 the Work has been substantially completed, the reasonable determination of Visnick & Caulfield, Architects as to such date shall be deemed conclusive and binding on both Landlord and Tenant.

 

27

(3)

Incomplete Work . Landlord shall complete as soon as conditions practically permit any incomplete items of 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 Premises when 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 the Premises are in fact actually substantially complete, the Premises are deemed to be substantially complete pursuant to the provisions of this Section 3.1 (i.e. and the Commencement Date has therefore occurred), Tenant shall not (except with Landlord’s consent) be entitled to take possession of the Premises for the Permitted Use until the Premises are in fact actually substantially complete.

 

(6)

Landlord’s Notice of Anticipated Date of Substantial Completion . Landlord shall give Tenant not less than fourteen (14) days advance notice of the anticipated date of substantial completion.

 

(7)

Job meetings and Inspections . Landlord shall advise Tenant from time to time (which advice may be oral) of the periodic job meetings to be held respecting the conduct of Work and Tenant shall have the right to attend such job meetings. In addition, Tenant shall have the right to enter upon the Premises to inspect the progress of the Work but only at times when Work is being performed and in such a manner so as not to interfere with the progress thereof.

 

3.2	RENT ABATEMENT, OUTSIDE COMPLETION DATE AND TENANT’S TERMINATION RIGHT .

 

(A) In the event that the Work shall not be substantially completed by the sixtieth (60 ^th ) day following the Estimated Commencement Date and if such failure to substantially complete is not due, in whole or in part, to any Tenant Delay or to any Change Order, then for each day that the Commencement Date is delayed beyond the 60 ^th day following the Estimated Commencement Date, Landlord shall provide Tenant with one (1) day’s free fixed rent which shall be in addition to the free rent resulting from the Rent Commencement Date being the 181 ^st following the

 

28

Commencement Date. The provisions of this Section 3.2(A) shall only apply if Tenant does not terminate this Lease pursuant to Section 3.2(B) below.

 

(B) If Landlord shall have failed substantially to complete the Work on or before the Outside Completion Date 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 or any act or failure to act of Tenant which interferes with Landlord’s construction of the Premises, without limiting Landlord’s other rights on account thereof), Tenant shall have the right to terminate this Lease by giving notice to Landlord of Tenant’s desire to do so before such completion and within the time period from the Outside Completion Date (as so extended) until the date which is thirty (30) days subsequent to the Outside Completion Date (as so extended); and, upon the giving of such notice, the term of this Lease 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 the Work to be performed by Landlord pursuant to Section 3.1. In the event that this Lease shall be terminated pursuant to the foregoing provisions of this Section 3.2(B), Landlord shall promptly reimburse Tenant for (a) any Tenant Plan Excess Costs previously paid by Tenant to Landlord and (b) “Tenant’s Termination Damages” (hereinafter defined). “Tenant’s Termination Damages” shall be the reasonable out of pocket costs and expenses actually paid by Tenant to third parties unaffiliated and not employed by Tenant for, on account of or respecting the following in the Premises but not to exceed $300,00.00 in the aggregate: (i) legal fees paid by Tenant in negotiating this Lease and in enforcing this Section 3.2(B) in the event Tenant terminates pursuant hereto, (ii) project management services of a third party in supervising the installation of Tenant’s telecommunications equipment; (iii) consulting services of a third party in supervising the installation of Tenant’s audio visual equipment; (iv) voice and data wiring and cabling, (v) video installations in conference rooms, (vi) wiring and cabling in Tenant’s data center in the Premises, (vii) purchase and installation of audio amplification equipment and (viii) interior and exterior signage erected by Tenant pursuant to Section 8.26 of this Lease. However, there shall be excluded from Tenant’s Termination Damages the costs and expenses of any of the foregoing items which are removed by Tenant or which are reasonably reusable in another location by Tenant. As a condition to being reimbursed for Tenant’s Termination Damages, Tenant shall be required to submit to Landlord reasonable written information evidencing actual payment of the foregoing. In no event shall Tenant be entitled to any indirect, consequential, punitive or other damages or any other remedies. Landlord and Tenant hereby agree that the foregoing right of termination and payment shall be Tenant’s sole and exclusive remedy for Landlord’s failure so to complete such Work within such time and respecting Tenant’s termination under this Section 3.2(B) or otherwise. Each day of Tenant Delay shall be deemed conclusively to cause an equivalent day of delay by Landlord in substantially completing the Work pursuant to Section 3.1, and thereby automatically extend for each such equivalent day of delay the date of the Outside Completion Date.

 

29

3.3	QUALITY AND PERFORMANCE OF WORK .

 

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 Section 5.14 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 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 to the extent to which Tenant shall have given Landlord notice of respects in which Landlord has not performed Landlord’s construction obligations under this Article III not later than the end of the twelfth (12 ^th ) full calendar month next beginning after the Commencement Date with respect to all of Landlord’s construction obligations under this Article III including, but not limited to, the heating, ventilating and air conditioning systems servicing the Premises, Tenant shall be deemed conclusively to have approved Landlord’s construction and shall have no claim that Landlord has failed to perform any of Landlord’s obligations under this Article III (if any). Landlord agrees to correct or repair at its expense items which are then incomplete or do not conform to the work contemplated under the Plans and as to which, in either case, Tenant shall have given notice to Landlord, as aforesaid.

 

3.4

PAYMENT OF TENANT PLAN EXCESS COSTS AND CHANGE ORDER COSTS . To the extent, if any, that there are Tenant Plan Excess Costs as provided in Section 3.1, Tenant shall pay Landlord, as Additional Rent, fifty percent (50%) of the Tenant Plan Excess Costs prior to the commencement of Landlord’s Work and the Additional Tenant Work, provided however, that in the event the Tenant Plan Excess Costs exceed $100,000.00 (“Maximum Amount”), then, in addition, Tenant shall pay to Landlord, as Additional Rent, prior to the commencement of Landlord’s Work and the Additional Tenant Work, all such Tenant Plan Excess Costs in excess of the Maximum Amount. Further, if a Change Order results in “Change Order Costs” (as set forth in Section 3.1(A)(5)), then Tenant shall pay to Landlord, as Additional Rent, at the time that Tenant approves such Change Order in accordance with Section 3.1(A)(5), all such Change Order Costs.

 

3.5	TENANT’S SUPPLEMENTAL AIR CONDITIONING UNITS . As part of the “Additional Tenant Work” (defined in Section 3.1(A)(2) hereof), Landlord shall

 

30

purchase and install three (3), 5 ton air-conditioning units which shall be for Tenant’s sole and exclusive supplemental air-conditioning requirements in the Premises and shall be located on the roof of the Building and elsewhere in the Premises (“Tenant’s Supplemental Air Conditioning Units”). The location on the roof shall be as selected by Landlord. The portion of the Tenant’s Supplemental Air-Conditioning Units located within the Premises shall be located either (i) above ceilings, as determined by Landlord, or (ii) if elsewhere, as suggested by Landlord, then in a location as reasonably agreed to by Landlord and Tenant. Tenant shall timely select the units. However, Landlord shall have the right to approve the units including, without limitation, their size, weight, style, operating characteristics and aesthetics. The cost to purchase Tenant’s Supplemental Air-Conditioning Units and all labor, work and other materials necessary for the installation of Tenant’s Supplemental Air-Conditioning Units and their lines, fixtures and all appurtenances (collectively the “Tenant’s Supplemental A/C Units Costs”) shall be paid by Tenant as part of Tenant Plan Excess Costs pursuant to Sections 3.1(A)(3) and 3.4 hereof. From and after Landlord’s initial installation of the Tenant’s Supplemental Air Conditioning Units, Tenant shall be solely responsible for the operation, maintenance, repair and replacement of the same and Tenant shall be responsible for all utilities’ costs incurred in operating Tenant’s Supplemental Air Conditioning Units.

 

ARTICLE IV

 

LANDLORD’S COVENANTS; INTERRUPTIONS AND DELAYS

 

4.1	LANDLORD COVENANTS :

 

4.1.1

(A) SERVICES FURNISHED BY LANDLORD .

 

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.

 

(B) HVAC MAINTENANCE

 

Subject to escalation reimbursement in accordance with Section 2.6, Landlord shall maintain, repair and make replacements as necessary to operate the heating, ventilating and air-conditions system (the “HVAC System”) including periodic cleaning and maintenance of the ducts and outside components of the HVAC System.

 

4.1.2

ADDITIONAL SERVICES AVAILABLE TO TENANT .

 

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

 

31

reasonable and equitable rates from time to time established by Landlord. Tenant agrees to pay to Landlord, as Additional Rent, the cost of any such additional Building services requested by Tenant and for the cost of any additions, alterations, improvements or other work performed by Landlord in the Premises at the request of Tenant within thirty (30) days after being billed therefor.

 

4.1.3

ROOF, EXTERIOR WALL, FLOOR SLAB AND COMMON FACILITY REPAIRS .

 

Except for (a) normal and reasonable wear and use and (b) damage caused by fire and casualty and by eminent domain, and except as otherwise provided in Article VI and subject to the escalation provisions of Section 2.6, (i) to make such repairs to the roof, exterior walls, floor slabs and common areas and facilities 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.

 

4.2	INTERRUPTIONS AND DELAYS IN SERVICES AND REPAIRS, ETC .

 

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 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 the causes set forth in Section 3.2 hereof as being 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, or right to terminate this Lease, 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 the Premises.

 

In the event that the electrical, heating, ventilating, air conditioning, or all elevator service to the Premises shall be shut down for more than five (5) full and consecutive business days, then, Tenant shall be entitled to an abatement of Annual Fixed Rent from the date of the shutdown of such service to the date such service is restored. Tenant agrees that if and to the extent such shutdown is covered by Landlord’s loss of rents coverage, the abatement of Annual Fixed Rent shall be limited and equal to the “Insurance Amount” (hereinafter defined). However, if such shutdown of service is attributable to Landlord’s negligence or willful conduct, the abatement of Annual

 

32

Fixed Rent shall not be limited to the Insurance Amount. The “Insurance Amount” shall be an amount equal to the payment actually received by Landlord (but only allocable to and on account of the Premises) for such shut down of service to the Premises received from Landlord’s insurance carrier providing such loss of rents insurance less the amount of any deductible contained in such loss of rents insurance coverage. Notwithstanding anything herein contained to the contrary, in no event shall any of the events referred to in this Section give rise to a claim in Tenant’s favor that such failure constitutes actual or constructive, total or partial, eviction from the 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.

 

4.3

LANDLORD’S INSURANCE . Landlord shall carry at all times during the Term of this Lease (i) commercial general liability insurance with respect to the Building in an amount as determined by Landlord from time to time, (ii) insurance against loss or damage with respect to the Buildings covered by the so-called “all risk” type insurance coverage (including loss of rents as determined by Landlord) in an amount equal to at least the replacement value of the Building but whether or not and in what amounts to maintain coverage for terrorism, the decision as to the amount of the full replacement coverage for “all risk” type insurance coverage and the amount of the deductible shall all be in Landlord’s sole discretion but in no event shall such insurance be in such amount as would trigger the application of the co-insurance provision of such policy. Landlord may also maintain such other insurance as may from time to time be required by a mortgagee holding a mortgage lien on the Building. Further, Landlord may also maintain such insurance against loss of annual fixed rent and additional rent and such other risks and perils as Landlord deems proper. Any and all such insurance (i) may be maintained under a blanket policy affecting other properties of Landlord and/or its affiliated business organizations, (ii) may be written with deductibles as determined by Landlord and (iii) shall be subject to escalation reimbursement in accordance with Section 2.6.

 

33

 

ARTICLE V

 

TENANT’S COVENANTS

 

Tenant covenants during the Term and such further time as Tenant occupies any part of the Premises:

 

5.1	PAYMENTS .

 

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	REPAIR AND YIELD UP .

 

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, 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 except for the initial Tenant improvements constructed pursuant to Article III hereof, (ii) to the extent specified by Landlord by notice to Tenant as set forth in Section 5.14 hereof all alterations and additions made by Tenant (iii) all partitions and (iv) to the extent specified by Landlord by notice to Tenant given at least ten (10) days before such expiration or termination, the wiring for Tenant’s computer, telephone and other communication systems and equipment whether located in the Premises or in any other portion of the Building, including all risers and all alterations and additions made by Tenant, and in each case repairing any damage caused by such removal and restoring the Premises and leaving them clean and neat. 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, contractors, employees, sublessees, licensees, concessionaires or invitees.

 

5.3

USE .

 

To use and occupy the Premises for the Permitted Use only, and not to injure or deface the Premises, 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 permit in the Premises anything which will in any way result in the leakage of fluid or the growth of mold, and not 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

 

34

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”), 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; provided, however, that if any inspection discloses a use in violation of this Section 5.3, Tenant shall pay for the Landlord’s out of pocket costs of such inspection. Notwithstanding the foregoing, Tenant may use normal amounts and types of substances typically used for office uses provided that Tenant uses such substances in the manner in which they are normally used and in compliance with all Hazardous Materials Laws and other Legal Requirements and provided further that no odors shall emanate from the Premises which are detectable in any other portion of the Building or Site.

 

Landlord represents to Tenant that, to the best of Landlord’s actual knowledge as of the date of this Lease, there are no Hazardous Materials in the Buildings or on the Site which are required to be removed or otherwise abated in accordance with applicable Hazardous Materials Laws. Subject to the limitations of Section 8.4 hereof if and to the extent required to be removed or abated pursuant to the requirements of Hazardous Materials Laws as set forth in any notice from applicable governmental authority having jurisdiction, which notice is not challenged but is accepted by Landlord, Landlord shall use reasonable efforts to remove or abate as required by applicable Hazardous Materials Laws Hazardous Materials in the common areas of the Buildings or the “Base Building” (as hereinafter defined), provided that the foregoing shall not apply to (i) requirements of Hazardous Materials Laws resulting from the use of, or additions, alterations or improvements in, any tenant space in the Buildings, including the Premises (except that if the initial improvements to the Premises performed by Landlord in accordance with Section 3.1 or Section 3.2 hereof triggers compliance with Hazardous Material Laws, Landlord shall be responsible for removal or abatement in accordance with such Hazardous Materials Laws) or (ii) Hazardous Materials which are in the Building or on the Site because of the action or inaction of any tenant or occupant in the Complex, including

 

35

Tenant, or any employee, agent or contractor thereof, or (iii) any tenant space in the Building, including the Premises, and any additions, alterations and improvements therein. In addition, Landlord shall be responsible for the initiation and performance on a regular basis of an Operations and Maintenance Plan Regarding any Hazardous Materials existing in the Building or on the Site existing prior to the execution of this Lease. For purposes of this Section, the “Base Building” shall mean the structural elements of the Building and the heating, ventilating and air conditioning, electrical and plumbing systems and equipment bringing primary service to the tenant spaces in the Buildings. Subject to the limitations of Section 8.4 hereof, Landlord agrees to indemnify and save Tenant harmless from liability, loss and damage to persons or property and from any claims, actions, proceedings and expenses in connection therewith resulting from (x) the failure of Landlord to fulfill its obligations under the preceding sentence or (y) any releases of Hazardous Materials within the Buildings or on the Site that occurred prior to the Date of this Lease; provided, however, that in no event shall the foregoing indemnity render Landlord liable for any loss or damage to Tenant’s personal property, fixtures or equipment and Landlord shall in no event be liable for indirect, consequential or punitive damages.

 

5.4	OBSTRUCTIONS; ITEMS VISIBLE FROM EXTERIOR; RULES AND REGULATIONS .

 

Not to obstruct in any manner any portion of the Building not hereby leased or any portion thereof or of the Additional Building or of the Site used by Tenant in common with others; not without prior consent of Landlord to permit the painting or placing of any signs (except for such signage as is permitted pursuant to Section 8.26 hereof), 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 and which are applicable to all tenants generally of the Building, 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.

 

5.5	SAFETY APPLIANCES .

 

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	ASSIGNMENT; SUBLEASE . 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

 

36

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 or other equitable relief with respect to the provisions hereof.

 

5.6.1

Notwithstanding the foregoing provisions of Section 5.6 above and the provisions of Sections 5.6.2 and 5.6.4 below, but subject to the provisions of Sections 5.6.3, and 5.6.5 below, Tenant shall have the right, without Landlord’s consent, to assign this Lease or to sublet the Premises (in whole or in part) to (a) an entity succeeding to the business and assets of Tenant whether by way of merger or consolidation or by way of acquisition of all or substantially all of the assets of Tenant (including, without limitation, a transfer of this Lease by assignment to such successor entity); provided that the acquiring entity is as a matter of law, or otherwise agrees directly with Landlord to be, directly and primarily obligated under this Lease, (b) an entity which is either the parent of Tenant, controlled by Tenant or under common control with Tenant (herein called an “Affiliate”); provided that such assignee is as a matter of law, or otherwise agrees directly with Landlord to be, directly and primarily obligated under this Lease; or (c) a partnership or joint venture in which Tenant (or an entity described in items (a) or (b) above) is a bonafide partner or joint venturer owning at least fifty one percent (51%) of all ownership interests in such partnership or joint venture and possess at least fifty one percent (51%) of the voting rights in such partnership or joint venture; provided that such partnership or joint venture is as a matter of law, or otherwise agrees directly with Landlord to be, directly and primarily obligated under this Lease. However, it shall be a condition to any such assignment or sublease under this Section 5.6.1 that the entity to which this Lease is so assigned or which so sublets the Premises has reasonable financial standing and capability to perform the obligations of Tenant under this Lease as and when due or required. If any 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, such cessation shall be considered an assignment or subletting requiring Landlord’s consent.

 

5.6.1.1

Notwithstanding the provisions of Section 5.6 above but subject to the provisions of this Section 5.6.1.1 and the provisions of Sections 5.6.3, 5.6.4 and 5.6.5, Tenant may sublease less than forty percent (40%) of the Rentable Floor Area of the Premises in the aggregate provided that in each instance Tenant first obtains the express prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In determining for the purposes of the foregoing whether forty percent (40%) or more of the Rentable Floor Area of the Premises have been sublet, assignments or subleases made pursuant to Section 5.6.1 hereof shall not be included. Tenant may sublease at a rent and other charges payable by the proposed subtenant that may be lower than the market rent and other charges for first class office space.

 

37

However, Landlord shall not be deemed to be unreasonably withholding its consent to such a proposed subleasing if:

 

(a)

the proposed subtenant is (i) a tenant or subtenant in the Building and there is available space in the Building that could accommodate the requirement of such tenant or subtenant within six (6) months of the date Tenant proposes to be the Commencement Date for its proposed sublease, (ii) in active negotiation (as evidenced by the receipt by Landlord of a request for proposal to lease from such party no more than ninety (90) days prior to Tenant’s request for consent) with Landlord for premises in the Building or or (iii) 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). From time to time during the Lease Term, Tenant shall have the right by written notice (“Tenant’s Notice”) to submit to Landlord a list of prospective parties with whom Tenant would like to propose sublease or assignment terms. Within seven (7) days following Landlord’s receipt of Tenant’s Notice, Landlord shall advise Tenant whether or not Landlord is in active negotiations with any such prospective parties identified in Tenant’s Notice;

 

(b)

the proposed subtenant does not possess reasonably adequate financial capability to perform the obligations of the subtenant under the sublease as and when due or required, or

 

(c)

the 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

 

(d)

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 materially increase Landlord’s Operating Expenses beyond that which Landlord incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden prior to such proposed subletting; or (iii) violate or be likely to violate any provisions or restrictions contained herein relating to the use or occupancy of the Premises, or

 

(e)

there shall be existing an Event of Default (defined in section 7.1), or

 

(f)

any part of the rent payable under the proposed sublease shall be based in whole or in part on the income or profits derived from the Premises or if proposed sublease shall potentially have any adverse

 

38

effect on the real estate investment trust qualification requirements applicable to Landlord and its affiliates.

 

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, Tenant covenants and agrees not to assign this Lease or to sublet forty percent (40%) or more of the Rentable Floor Area of the Premises (which shall be deemed to include, without limitation, any proposed subleasing which together with prior subleasings would result in an area equal to or greater than forty percent (40%) of the Rentable Floor Area of the Premises in the aggregate being the subject of one or more subleases) without, in each instance, having first obtained the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. In determining for the purposes of the foregoing whether forty percent (40%) or more has been sublet, assignments or subleases made pursuant to Section 5.6.1 hereof shall not be included. Tenant may sublease at a rent and other charges payable by the proposed subtenant that may be lower than the market rent and other charges for first class office space. However, 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 (i) a tenant or subtenant in the Building and there is available space in the Building that could accommodate the requirement of such tenant or subtenant within six (6) months of the date Tenant proposes to be the Commencement Date for its proposed sublease, (ii) in active negotiation (as evidenced by the receipt by Landlord of a request for proposal to lease from such party no more than ninety (90) days prior to Tenant’s request for consent) with Landlord for premises in the Building or (iii) 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). From time to time during the Lease Term, Tenant shall have the right by written notice (“Tenant’s Notice”) to submit to Landlord a list of prospective parties with whom Tenant would like to propose sublease or assignment terms. Within seven (7) days following Landlord’s receipt of Tenant’s Notice, Landlord shall advise Tenant whether or not Landlord is in active negotiations with any such prospective parties identified in Tenant’s Notice;

 

(b)

the proposed assignee or subtenant does not possess reasonably adequate financial capability to perform the obligations of the Tenant under this Lease (in the case of an assignment) or of the subtenant under the sublease (in the case of a sublease) as and when due or required,

 

39

(c)

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

 

(d)

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 materially increase Landlord’s Operating Expenses beyond that which Landlord incurs for use by Tenant; (ii) be likely to materially increase the burden on elevators or other Building systems or equipment over the burden prior to such