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EXHIBIT
10.29
55 WALKERS BROOK
DRIVE
LEASE
ARTICLE
1
Reference
Data
Each reference in this Lease
to any of the following subjects shall be construed to incorporate
the data stated for that subject in this
Section 1.1.
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| Date of
this Lease: |
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August 16, 2007 |
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| Building: |
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The Building known as and numbered 55 Walker’s Brook
Drive in Reading, Massachusetts in Deed dated May 31, 2006, and
recorded in Middlesex County South District Registry of Deeds in
Book 47559, Page 449 (the Building and such parcel of land
hereinafter being collectively referred to as the
“Property”). |
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| Premises: |
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Portions of the first, second and third floors of the Building,
substantially as shown on Exhibit A attached hereto. |
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Rentable Floor
Area of Premises: |
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36,544 square feet |
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| Landlord: |
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Brookview Investments, LLC |
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Original Notice
Address of Landlord:
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c/o Nordblom Management Company, Inc. |
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15 Third Avenue
Burlington, Massachusetts
01803
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| Tenant: |
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Keurig Incorporated, a Delaware corporation |
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Original Notice
Address of Tenant:
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Prior to the date Tenant takes occupancy of any portion of the
Premises for |
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business purposes: |
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101 Edgewater Drive
Wakefield, MA 01880
Attn: General Counsel
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After such occupancy date: |
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55 Walkers Brook Drive
Reading, MA
Attn: General Counsel
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| Rent Commencement Date: |
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January 1, 2008 |
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| Expiration Date: |
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December 31, 2015 |
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| Delivery
Date: |
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The Date of this Lease. |
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| Annual
Fixed Rent Rate: |
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Commencement Date - Rent Commencement Date: |
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$ |
0.00 |
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Rent
Commencement Date - May 31, 2008: |
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$ |
0.00 |
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June 1,
2008 - December 31, 2008: |
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$ |
584,704.00 |
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January
1, 2009 - December 31, 2010: |
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$ |
913,600.00 |
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January
1, 2011 - December 31, 2011: |
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$ |
931,872.00 |
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January
1, 2012 - December 31, 2012: |
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$ |
968,416.00 |
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January
1, 2013 - December 31, 2013: |
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$ |
986,688.00, |
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January
1, 2014 - December 31, 2014: |
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$ |
1,004,960.00 |
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January
1, 2015 - December 31, 2015: |
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$ |
1,023,232.00 |
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| Monthly
Fixed Rent Rate: |
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Commencement Date - Rent Commencement Date: |
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$ |
0.00 |
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Rent
Commencement Date - May 31, 2008: |
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$ |
0.00 |
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June 1,
2008 - December 31, 2008: |
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$ |
48,725.33 |
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January
1, 2009 - December 31, 2010: |
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$ |
76,133.33 |
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January
1, 2011 - December 31, 2011: |
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$ |
77,656.00 |
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January
1, 2012 - December 31, 2012: |
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$ |
80,701.33 |
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January
1, 2013 - December 31, 2013: |
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$ |
82,224.00 |
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January
1, 2014 - December 31, 2014: |
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$ |
83,746.67 |
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January
1, 2015 - December 31, 2015: |
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$ |
85,269.33 |
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| Letter of
Credit Amount: |
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$305,294.67 |
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| Guarantor: |
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Green Mountain Coffee Roasters, Inc. |
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| TI
Allowance: |
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$1,827,200.00 |
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| Supplemental Allowance: |
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Up to $365,440.00, subject to the terms of Section
3.4. |
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| Base
Operating Costs: |
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Operating Expenses for calendar year 2008, grossed up as set
forth in Section 4.2.3 hereof |
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| Base
Taxes: |
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Taxes for fiscal year 2008 (i.e. July 1, 2007 - June 30, 2008),
grossed up as set forth in Section 4.2.1 hereof. |
1
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| Tenant’s Percentage: |
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The ratio
of the Rentable Floor Area of the Premises to the total rentable
area of the Building, which shall initially be deemed to be
26.46%. |
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| Permitted
Uses : |
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General
office use, and as ancillary thereto, and to the extent permitted
by applicable zoning and all applicable laws, ordinances and
regulations. (i) laboratory/research and development, (ii) storage
(but only in that portion of the Premises marked on Exhibit A as
the Storage Area), and (iii) limited light manufacturing in support
of the research and development use (all such uses subject to
Section 6.1.2 hereof) |
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| Public Liability Insurance Limits: |
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Commercial General Liability: |
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$3,000,000 per occurrence |
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$5,000,000 general aggregate |
The Exhibits listed below in
this section are incorporated in this Lease by reference and are to
be construed as a part of this Lease.
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| EXHIBIT
A |
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Plan
showing the Premises |
| EXHIBIT A-1 |
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Plan showing
Right of First Refusal Space |
| EXHIBIT
B |
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Commencement
Date Notification |
| EXHIBIT
C |
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Landlord’s Work (base building) |
| EXHIBIT C-1 |
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Landlord’s Work (demising plan) |
| EXHIBIT C-2 |
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Tenant’s Work |
| EXHIBIT
D |
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Work Change
Order |
| EXHIBIT
E |
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Form Letter
of Credit |
| EXHIBIT
F |
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Rules and
Regulations |
| EXHIBIT
G |
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Form Tenant
Estoppel Certificate |
| EXHIBIT
H |
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Form of
Landlord’s Waiver And Consent |
| 1.3 |
Table of Articles and Sections |
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| ARTICLE 1 — Reference Data |
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| 1.1 |
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Subjects Referred To |
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1 |
| 1.2 |
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Exhibits |
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2 |
| 1.3 |
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Table of Articles and Sections |
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2 |
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| ARTICLE 2 — Premises and Term |
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| 2.1 |
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Premises |
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3 |
| 2.2 |
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Term |
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4 |
| 2.3 |
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Extension Option |
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4 |
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| ARTICLE 3 — Improvements |
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| 3.1 |
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Performance of Work and Approval of Landlord’s
Work |
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4 |
| 3.2 |
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Tenant’s Work |
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5 |
| 3.3 |
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TI Allowance |
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5 |
| 3.4 |
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Supplemental Allowance |
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5 |
| 3.5 |
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Space Planning Allowance |
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5 |
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| ARTICLE 4 — Rent |
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| 4.1 |
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The Fixed Rent |
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5 |
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4.1.1 |
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Supplemental Rent |
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5 |
| 4.2 |
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Additional Rent |
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5 |
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4.2.1 |
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Real
Estate Taxes |
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5 |
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4.2.2 |
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Personal
Property Taxes |
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6 |
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4.2.3 |
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Operating
Costs |
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6 |
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4.2.4 |
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Insurance |
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7 |
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4.2.5 |
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Utilities |
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7 |
| 4.3 |
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Late Payment of Rent |
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7 |
| 4.4 |
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Letter of Credit |
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8 |
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4.4.1 |
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Amount of
Letter of Credit |
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8 |
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4.4.2 |
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Renewal
of Letter of Credit |
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8 |
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4.4.3 |
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Draws to
Cure Defaults |
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8 |
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4.4.4 |
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Draws to
Pay Damages |
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8 |
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4.4.5 |
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Draws for
Failure to Deliver Substitute Letter of Credit |
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8 |
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4.4.6 |
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Transferability |
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8 |
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4.4.7 |
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Return of
Letter of Credit at End of Term |
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8 |
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| ARTICLE 5 — Landlord’s Covenants |
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| 5.1 |
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Affirmative Covenants |
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8 |
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5.1.1 |
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Heat and
Air Conditioning |
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8 |
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5.1.2 |
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Electricity |
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8 |
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5.1.3 |
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Cleaning;
Water |
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8 |
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5.1.4 |
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Elevator;
Fire Alarm |
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9 |
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5.1.5 |
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Repairs |
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9 |
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5.1.6 |
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Landscaping, Snow Removal, Grounds Maintenance |
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9 |
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5.1.7 |
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Insurance |
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9 |
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5.1.8 |
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Access |
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9 |
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5.1.9 |
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Compliance with Law |
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9 |
| 5.2 |
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Interruption |
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9 |
| 5.3 |
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Outside Services |
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9 |
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| ARTICLE 6 — Tenant’s Additional
Covenants |
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| 6.1 |
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Affirmative Covenants |
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9 |
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6.1.1 |
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Perform
Obligations |
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9 |
2
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6.1.2 |
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Use |
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9 |
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6.1.3 |
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Repair
and Maintenance |
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9 |
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6.1.4 |
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Compliance with Law |
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10 |
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6.1.5 |
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Indemnification |
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10 |
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6.1.6 |
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Landlord’s Right to Enter |
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10 |
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6.1.7 |
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Personal
Property at Tenant’s Risk |
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10 |
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6.1.8 |
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Payment
of Landlord’s Cost of Enforcement |
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10 |
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6.1.9 |
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Yield
Up |
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10 |
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6.1.10 |
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Rules and
Regulations |
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10 |
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6.1.11 |
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Estoppel
Certificate |
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10 |
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6.1.12 |
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Landlord’s Expenses Re: Consents |
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11 |
| 6.2 |
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Negative Covenants |
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11 |
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6.2.1 |
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Assignment and Subletting |
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11 |
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6.2.2 |
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Nuisance |
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12 |
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6.2.3 |
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Hazardous
Wastes and Materials |
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12 |
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6.2.4 |
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Floor
Load; Heavy Equipment |
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12 |
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6.2.5 |
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Installation, Alterations or Additions |
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12 |
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6.2.6 |
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Abandonment |
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13 |
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6.2.7 |
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Signs |
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13 |
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6.2.8 |
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Parking
and Storage |
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13 |
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| ARTICLE 7 — Casualty or Taking |
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| 7.1 |
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Termination |
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13 |
| 7.2 |
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Restoration |
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13 |
| 7.3 |
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Award |
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14 |
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| ARTICLE 8 — Defaults |
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| 8.1 |
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Events of Default |
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14 |
| 8.2 |
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Remedies |
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14 |
| 8.3 |
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Remedies Cumulative |
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14 |
| 8.4 |
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Landlord’s Right to Cure Defaults |
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14 |
| 8.5 |
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Effect of Waivers of Default |
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14 |
| 8.6 |
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No Waiver, etc. |
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15 |
| 8.7 |
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No Accord and Satisfaction |
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15 |
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| ARTICLE 9 — Rights of Holders |
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| 9.1 |
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Rights of Mortgage Holders |
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15 |
| 9.2 |
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Lease Superior or Subordinate to Mortgages |
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15 |
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| ARTICLE 10 — Miscellaneous Provisions |
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| 10.1 |
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Notices From One Party to the Other |
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15 |
| 10.2 |
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Quiet Enjoyment |
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15 |
| 10.3 |
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Lease Not to be Recorded |
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15 |
| 10.4 |
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Limitation of Landlord’s Liability |
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15 |
| 10.5 |
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Acts of God |
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16 |
| 10.6 |
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Landlord’s Default |
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16 |
| 10.7 |
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Brokerage |
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16 |
| 10.8 |
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Applicable Law and Construction |
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16 |
| 10.9 |
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Right of First Offer |
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16 |
| 10.10 |
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Right of First Refusal |
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16 |
| 10.11 |
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Expansion Right |
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16 |
| 10.12 |
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Lease Guaranty |
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17 |
ARTICLE
2
Premises and
Term
| 2.1 |
Premises . Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord, subject to and with the benefit
of the terms, covenants, conditions and provisions of this Lease,
the Premises, excluding the roof, exterior faces of exterior walls,
the common stairways, stairwells, elevators and elevator shafts,
and pipes, ducts, conduits, wires, and appurtenant fixtures serving
exclusively or in common other parts of the Building (and any
areas, such as the space above the ceiling or in the walls, that
may contain such pipes, ducts, conduits, wires or appurtenant
fixtures), and if Tenant’s space includes less than entire
rentable area of any floor, excluding the central core area of such
floor. |
Tenant shall have, as
appurtenant to the Premises, rights to use in common, 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, hallways, stairways, and
elevators of the Building, (b) common walkways and driveways
necessary for access to the Building, (c) the common parking
areas serving the Building, and (d) if the Premises include
less than the entire rentable area of any floor, the common toilets
and other common facilities in the central core area of such
floor.
Landlord shall ensure that a
cafeteria/food service presently planned for the Building (the
“Cafeteria”) will be operational on or before the Rent
Commencement Date. Landlord shall use diligent efforts to require
the Cafeteria to use, on an exclusive basis, Keurig/Green Mountain
Coffee Roasters products and equipment for brewing coffee. Tenant
shall have the right, upon reasonable prior notice to Landlord, and
subject to availability (it being understood that such Cafeteria is
subject to a “first come, first served” availability
for use), to use, at no charge (other than as specified herein),
the seating areas of the Cafeteria for meetings provided such
meetings take place outside of the Cafeteria’s normal
business hours. Tenant’s use of the Cafeteria shall be in
compliance with all applicable laws and codes, and otherwise
subject to the terms and conditions of this Lease, and Tenant
shall, as Additional Rent, be responsible to reimburse Landlord for
any out-of-pocket “set up” and clean up costs for such
use, as well as any other costs reasonably incurred by Landlord in
connection with such use, including but not limited to the costs of
any heating, ventilating and air-conditioning (“HVAC”)
provided to the Cafeteria during the hours of such use (it being
understood Tenant shall not be obligated to reimburse Landlord for
costs that would have been ordinarily incurred by Landlord
irrespective of Tenant’s use of the Cafeteria—e.g. if
Landlord was to have ordinarily supplied HVAC to the Cafeteria
during certain hours, and then Tenant uses the Cafeteria during
such time, then Landlord shall not charge Tenant for such HVAC). To
the extent that the Cafeteria shall cease operations at any time
during the term of this Lease, then, for as long as Landlord elects
to retain the Cafeteria as a common space, Tenant shall be
permitted to continue its use of the same, subject to the terms and
conditions hereof.
3
Tenant shall be permitted, on
an unreserved, first-come-first-served basis, to use up to 3.4
parking spaces per 1,000 rentable square feet of the Premises in
the parking area serving the Building (it being agreed that as of
the date of this Lease Tenant has a right to 125 parking spaces
pursuant to the preceding ratio). Tenant shall be permitted to use
such spaces for the parking of passenger vehicles.
Landlord reserves the right
from time to time, using commercially reasonable efforts to
minimize the nature and duration of any interference with use of
the Premises: (a) to install, use, maintain, repair, replace
and relocate for service to the Premises and other parts of the
Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or Building, (b) to
alter or relocate any other common facility, (c) to make any
repairs and replacements to the Premises which Landlord may deem
necessary, and (d) in connection with any excavation made upon
adjacent land of Landlord or others, to enter, and to license
others to enter, upon the Premises to do such work as the person
causing such excavation deems necessary to preserve the wall of the
Building from injury or damage and to support the same.
| 2.2 |
Term . TO HAVE AND TO HOLD for a term beginning
on the Commencement Date, which shall be the earlier of
(a) the date that is forty five (45) days following the
date of this Lease and (b) the date Tenant commences
Tenant’s Work (as defined in Section 3.2 ), and ending
on the Expiration Date, unless sooner terminated or extended as
hereinafter provided. When the Commencement Date has been
determined, such date shall be evidenced by a document, in the form
attached hereto as Exhibit B, which Landlord shall complete and
deliver to Tenant, and which shall be deemed conclusive unless
Tenant shall notify Landlord of any disagreement therewith within
ten (10) days of receipt. |
Upon full execution of the
Lease, Tenant may, following notice to Landlord, and prior to the
Commencement Date, enter the Premises and without payment of rent,
but otherwise subject to all the terms and conditions of this
Lease, for the purpose of commencing Tenant’s Work (as
hereinafter defined), provided that Tenant shall not interfere with
any work then being performed by or for Landlord in the Premises or
Building, and provided Tenant shall reimburse Landlord for
Landlord’s actual costs in connection with the Tenant’s
pre-commencement work performed after normal building hours,
including the cost of Tenant’s electrical and HVAC usage for
after normal building hours construction, as well as any additional
janitorial services and trash removal. All such work shall be done
in accordance with, and Tenant shall comply with, the provisions of
Section 6.2.5 hereof.
| 2.3 |
Extension Option . Provided that as of the date
of the notice specified below, Tenant is not in default and has not
previously been in default of its obligations under this Lease
beyond any applicable notice and cure period, Tenant shall have the
right to extend the term of this Lease for one (1) additional
period of five (5) years, commencing on January 1, 2016
and expiring December 31, 2020 (the “extended
term”). All of the terms, covenants and provisions of this
Lease shall apply to such extended term except that the Annual
Fixed Rent Rate for such extension period shall be the Market Rate
(as hereinafter defined) at the commencement of such extended term,
as designated by Landlord (subject to the terms of this
Section 2.3), the Base Operating Expenses for the extension
period shall be the Operating Expenses for the calendar year in
which the extension period begins (i.e. calendar year 2016), and
the Base Taxes for the extension period shall be the Taxes for the
fiscal year in which the extension period begins (i.e. fiscal year
2016). “Market Rate” as used herein shall mean the
annual fair market rate during the extended term for leases of
space located in the vicinity of the Building that are of
comparable size, condition and quality as the Premises. If Tenant
shall elect to exercise the aforesaid option, it shall do so by
giving Landlord notice in writing of its intention to do so not
later than one (1) year prior to the expiration of the
original term of this Lease (i.e. no later than December 31,
2014). If Tenant gives such notice, the extension of this Lease
shall be automatically effected without the execution of any
additional documents. The original term and the extended term are
hereinafter collectively called the “term”. |
If Tenant exercises the
aforesaid option, then not later than eleven (11) months prior
to the expiration of the original term of this Lease Landlord shall
give written notice to Tenant of Landlord’s designation of
the Market Rate. Within fifteen (15) days following
Landlord’s notice, Tenant shall either propose its
designation of the Market Rate by giving notice thereof to
Landlord, or accept Landlord’s designation of the Market
Rate. Failure on the part of Tenant to give such notice of its
designation of Market Rate shall bind Tenant to Landlord’s
designation of the Market Rate. If Tenant proposes its designation
of the Market Rate, then Landlord and Tenant may attempt to
negotiate regarding the Market Rate. If the parties have been
unable to reach agreement within thirty (30) days following
Tenant’s designation, then the Market Rate may be submitted
to arbitration by either party as follows: The Market Rate shall be
determined by impartial arbitrators, one to be chosen by the
Landlord, one to be chosen by Tenant, and a third to be selected,
if necessary, as below provided. The arbitrators shall be charged
to determine the Market Rate by selecting one or the other of
Landlord’s or Tenant’s determinations thereof. The
arbitrators shall have no authority or jurisdiction to make any
other determination of such amount. The unanimous written decision
of the two first chosen, without selection and participation of a
third arbitrator, or otherwise, the written decision of a majority
of three arbitrators chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant. Landlord and
Tenant shall each notify the other of its chosen arbitrator within
ten (10) days following the call for arbitration and, unless
such two arbitrators shall have reached a unanimous decision within
thirty (30) days after their designation, they shall so notify
the office of then President of the Boston Bar Association and
request him to select an impartial third arbitrator who has not
represented either Landlord or Tenant previously, and who shall be
a real estate counsellor or a broker dealing with like types of
properties to determine the Market Rate as herein defined. Such
third arbitrator and the first two chosen shall hear the parties
and their evidence and render their decision within thirty
(30) days following the conclusion of such hearing and notify
Landlord and Tenant thereof. The expense of the third arbitrator
(if any) shall be borne by the “loser” of such
arbitration (i.e. the party whose designation of Market Rate is
not chosen following such arbitration). If the dispute
between the parties as to a Market Rate has not been resolved
before the commencement of Tenant’s obligation to pay Fixed
Rent based upon such Market Rate, then Tenant shall pay Fixed Rent
under the Lease based upon the Market Rate designated by Landlord
until either the agreement of the parties as to the Market Rate, or
the decision of the arbitrators, as the case may be, at which time
Tenant shall pay any underpayment of Fixed Rent to Landlord, or
Landlord shall refund any overpayment of Fixed Rent to
Tenant.
In any event, the Annual
Fixed Rent Rate for the extended term shall not be less than $26.00
per rentable square foot.
ARTICLE
3
Improvements
| 3.1 |
Performance of Work and Approval of Landlord’s
Work . Landlord shall cause to be performed the base
building work described in Exhibit C and the demising work
substantially as shown on Exhibit C-1 (such work is collectively
referred to as “Landlord’s Work”). All such work
shall be done in a good and workmanlike manner employing good
materials and so as to conform to all applicable building laws.
Tenant agrees that Landlord may make any changes in such work which
may become reasonably necessary or advisable, other than
substantial changes, without approval of Tenant, provided written
notice is promptly given to Tenant; and Landlord may make
substantial changes in such work, with the written approval of
Tenant, which shall not be unreasonably withheld or delayed.
Landlord shall use diligence to cause the portion of
Landlord’s Work described in Exhibit C to be substantially
completed by the Rent Commencement Date and shall use diligence to
cause the demising portion of Landlord’s Work as shown on
Exhibit C-1 to be completed within sixty (60) days from the
date of this Lease, subject to the provisions of Section 10.5
hereof. Landlord agrees that Tenant may make changes in such work
with the approval of Landlord and the execution by Landlord and
Tenant of a Work Change Order in the form attached hereto as
Exhibit D. Landlord’s Work shall be deemed approved by Tenant
when Tenant occupies the Premises for the conduct of its business,
except for items of Landlord’s Work which are uncompleted or
do not conform to Exhibits C and C-1 and as to which Tenant shall,
in either case, have given written notice to Landlord prior to such
occupancy. A certificate of completion by a licensed architect or
registered engineer shall be conclusive evidence that
Landlord’s Work has been completed except for items stated in
such certificate to be incomplete or not in conformity with
Exhibits C and C-1. Except for Landlord’s Work, the Premises
leased to and accepted by Tenant “as is” in the
condition they are in as of the date hereof, without any obligation
on the part of Landlord to prepare the Premises for Tenant’s
occupancy or any representation or warranty concerning the
condition of the Premises or the Building. Notwithstanding the
foregoing, prior to the date that Tenant completes Tenant’s
Work and obtains a certificate of occupancy for the Premises, the
base Building systems (including but not limited to elevators)
shall be in good working order and condition, and the common areas
of the Building shall be in compliance with applicable building
codes. |
4
| 3.2 |
Tenant’s Work . Tenant shall perform the
work consistent with the plans listed in Exhibit C-2, or comparable
layout plans (such work being referred to herein as
“Tenant’s Work”). Tenant’s Work shall be
performed by Tenant in accordance with the terms of this Lease,
including, without limitation, the requirements of
Section 6.2.5 hereof. Tenant’s Work shall be at
Tenant’s sole cost and expense and performed pursuant to
architectural, electrical and mechanical construction drawings,
plans and specifications first approved by Landlord and consistent
with the plans listed in Exhibit C-2 or comparable layout plans.
Tenant agrees to employ for Tenant’s Work one or more
responsible contractors of whom Landlord has given prior approval,
and whose labor will work without interference with other labor
working on the Property, and to cause such contractors employed by
Tenant to carry worker’s compensation insurance in accordance
with statutory requirements and comprehensive public liability
insurance covering such contractors on or about the Premises in
amounts at least equal to the limits set forth in Section 1.1
and to submit certificates evidencing such coverage to Landlord
prior to the commencement of such work. Tenant shall commence
Tenant’s Work on the Premises promptly following the date
that the Premises are delivered to Tenant, and shall diligently
pursue the same to completion, it being understood that
Tenant’s Work shall be completed no later than March 1,
2008. |
| 3.3 |
TI Allowance . Landlord shall provide Tenant with
the TI Allowance, which shall be used by Tenant for construction
costs in connection with Tenant’s Work. Notwithstanding the
foregoing, up to $182,720.00 of the TI Allowance may be applied to
moving expenses incurred by Tenant in connection with moving in to
the Premises. The TI Allowance shall be payable as
follows: |
A. The first forty percent
(40%) of the TI Allowance shall be paid to Tenant within
thirty (30) days following the last to occur of:
(i) Tenant providing an affidavit from Tenant’s
architect certifying that fifty percent (50%) of
Tenant’s Work has been completed, and
(ii) Tenant’s request for such portion of the TI
Allowance.
B. Another forty percent
(40%) of the TI Allowance shall be paid to Tenant within
thirty (30) days following the last to occur of:
(i) Tenant’s delivery to Landlord of a copy of the
certificate of occupancy (or temporary certificate of occupancy)
issued in connection with Tenant’s Work, and
(ii) Tenant’s request for such portion of the TI
Allowance.
C. The final twenty percent
(20%) of the TI Allowance shall be paid to Tenant within
thirty (30) days following the last to occur of: (i) all
phases of Tenant’s Work have been substantially completed in
substantial accordance with the plans approved by Landlord and a
final certificate of occupancy has been issued; (ii) Tenant
has caused to be delivered to Landlord all final invoices from
contractors, subcontractors and suppliers evidencing the total cost
of Tenant’s Work, together with lien waivers from general
contractors; (iii) Tenant has paid for the cost of
Tenant’s Work, and has caused to be delivered to Landlord
written evidence of such payment; and (iv) Tenant’s
request for such portion of the TI Allowance.
If Tenant does not submit any
or all of its requests for Landlord to distribute the TI Allowance
in accordance with the provisions contained in this
Section 3.3 on or before the date that is than ninety
(90) days following the Rent Commencement Date, any unused
amount shall accrue to the sole benefit of Landlord, it being
understood that Tenant shall not be entitled to any credit,
abatement or other concession in connection therewith. Nordblom
Development Company shall, as compensation for its review of plans
in connection with Tenant’s Work, receive from Tenant a fee
equal to one percent (1%) of the total cost of Tenant’s
Work, which fee may be applied to the TI Allowance.
| 3.4 |
Supplemental Allowance . Tenant may request, on or
before November 1, 2007, the Supplemental Allowance to be
added to and made a part of the TI Allowance. In the event that
Tenant makes such request on or before such date, then the
Supplemental Allowance shall be added to the TI Allowance, and the
Fixed Rent shall be adjusted pursuant to Section 4.1.1 hereof.
The Supplemental Allowance shall be used in connection with the
design and construction of Tenant’s Work. |
| 3.5 |
Space Planning Allowance . Landlord shall provide Tenant
with an allowance (the “Space Planning Allowance”) of
$4,385.28 in connection with Tenant’s architect’s
preliminary test fit for the Premises. Tenant shall deliver a copy
of such test fit to Landlord promptly upon Tenant’s receipt
of the same, and, subject to Tenant’s right to use the same
in connection with Tenant’s Work, such test fit shall become
the property of Landlord. Landlord shall fund the Space Planning
Allowance within thirty (30) days following Tenant delivering
to Landlord (i) a copy of the test fit and (ii) evidence
that Tenant has paid its architect an amount equal to or in excess
of the Space Planning Allowance in connection with the test fit.
Tenant shall be entitled to the Space Planning Allowance
irrespective of whether Tenant and Landlord enter into this
Lease. |
ARTICLE
4
Rent
| 4.1 |
The Fixed Rent . Tenant covenants and agrees to pay rent
to Landlord at the Original Address of Landlord or, following at
least ten (10) days’ prior notice, at such other place
or to such other person or entity as Landlord may by notice in
writing to Tenant from time to time direct, at the Annual Fixed
Rent Rate, in equal installments at the Monthly Fixed Rent Rate
(which is 1/12th of the Annual Fixed Rent Rate), in advance,
without notice or demand, and except as otherwise expressly
provided for herein, without setoff, abatement, suspension,
deferment, reduction or deduction, on the first day of each
calendar month included in the term; and for any portion of a
calendar month at beginning of the term, at the rate for the first
year of the term payable in advance for such portion. It is the
intention of the parties hereto that the obligations of Tenant
hereunder shall be separate and independent covenants and
agreements, that the Annual Fixed Rent, the Additional Rent and all
other sums payable by Tenant to Landlord shall continue to be
payable in all events and that the obligations of Tenant hereunder
shall continue unaffected, unless the requirement to pay or perform
the same shall have been terminated pursuant to an express
provision of this Lease, provided that the foregoing shall in no
way be considered as a waiver of Tenant’s right to claim or
assert a constructive eviction. |
If Landlord shall give notice
to Tenant that all rent and other payments due hereunder are to be
made to Landlord by electronic funds transfers, so called, or by
similar means, Tenant shall make all such payments as shall be due
after receipt of said notice by means of said electronic funds
transfers (or such similar means as designated by
Landlord).
| |
4.1.1 |
Supplemental Rent . If Tenant requests the Supplemental
Allowance to be added to the TI Allowance, then, as of the date
that the TI Allowance is disbursed to Tenant, the parties shall
enter into an amendment to this Lease whereby the Annual Fixed Rent
Rate specified in Section 1.1 shall be increased such that the
Supplemental Allowance will be amortized over a period of ninety
one (91) months at a rate of nine percent (9%). |
| 4.2 |
Additional Rent . Tenant covenants and agrees to
pay, as Additional Rent, insurance costs, utility charges, personal
property taxes and its pro rata share of increases in real estate
taxes and operating costs with respect to the Premises as provided
in this Section 4.2 as follows: |
| |
4.2.1 |
Real
Estate Taxes . If Taxes (as hereinafter defined) for any
Tax Year during the term shall exceed Base Taxes, Tenant shall
reimburse Landlord, as Additional Rent, for Tenant’s
Percentage of such excess (such amount hereinafter referred to as
“Tax Excess”). Tenant shall remit to Landlord, on the
first day of each calendar month, estimated payments on account of
Tax Excess, such monthly amounts to be sufficient to provide
Landlord, by the time real estate tax payments are due and payable
to any governmental authority responsible for collection of same, a
sum equal to the Tax Excess, as reasonably estimated by Landlord
from time to time on the basis of the most recent tax data
available (it being understood that Tenant
|
5
| |
shall have at least ten
[10] days’ prior notice before it shall be required pay any
revised estimate of Tax Excess). If the total of such monthly
remittances for any Tax Year is greater than the actual Tax Excess
for such Tax year, Landlord shall promptly pay to Tenant, or if the
term of this Lease has not expired or otherwise been terminated,
credit against the next accruing payments to be made by Tenant
pursuant to this subsection 4.2.1, the difference; if the total of
such remittances is less than the actual Tax Excess for such Tax
Year, Tenant shall pay the difference to Landlord at least ten
(10) days prior to the date or dates within such Tax Year that
any Taxes become due and payable to the governmental authority (but
in any event no earlier than ten (10) days following a written
notice to Tenant, which notice shall set forth the manner of
computation of Tax Excess).
|
If, after Tenant shall have
made reimbursement to Landlord pursuant to this subsection 4.2.1,
Landlord shall receive a refund of any portion of Taxes paid by
Tenant with respect to any Tax Year during the term hereof as a
result of an abatement of such Taxes by legal proceedings,
settlement or otherwise (without Landlord having any obligation to
undertake any such proceedings), Landlord shall promptly pay to
Tenant, or credit against the next accruing payments to be made by
Tenant pursuant to this subsection 4.2.1, the Tenant’s
Percentage of the refund (less the proportional, pro rata expenses,
including attorneys’ fees and appraisers’ fees,
incurred in connection with obtaining any such refund), as relates
to Tax Excess paid by Tenant to Landlord with respect to any Tax
Year for which such refund is obtained.
In the event this Lease shall
commence, or shall end (by reason of expiration of the term or
earlier termination pursuant to the provisions hereof), on any date
other than the first or last day of the Tax Year, or should the Tax
Year or period of assessment of real estate taxes be changed or be
more or less than one (1) year, as the case may be, then the
amount of Tax Excess which may be payable by Tenant as provided in
this subsection 4.2.1 shall be appropriately apportioned and
adjusted.
The term “Taxes”
shall mean all taxes, assessments, betterments and other charges
and impositions (including, but not limited to, fire protection
service fees and similar charges) levied, assessed or imposed at
any time during the term by any governmental authority upon or
against the Property, or taxes in lieu thereof, and additional
types of taxes to supplement real estate taxes due to legal limits
imposed thereon. If, at any time during the term of this Lease, any
tax or excise on rents or other taxes, however described, are
levied or assessed against Landlord with respect to the rent
reserved hereunder, either wholly or partially in substitution for,
or in addition to, real estate taxes assessed or levied on the
Property, such tax or excise on rents shall be included in Taxes;
however, Taxes shall not include franchise, estate, inheritance,
succession, capital levy, transfer, income or excess profits taxes
assessed on Landlord. Taxes shall include any estimated payment
made by Landlord on account of a fiscal tax period for which the
actual and final amount of taxes for such period has not been
determined by the governmental authority as of the date of any such
estimated payment.
If during any portion of any
tax year, including but not limited to fiscal year 2008, for which
Taxes are being computed, the Building was not at least 95%
occupied by tenants and as a result the Taxes assessed were less
than the same would have been had the Building been at least 95%
occupied, then Taxes shall be reasonably extrapolated or
“grossed up” by Landlord to the reasonably estimated
Taxes that would have been incurred if the Building were 95%
occupied by tenants, and such extrapolated amount shall, for the
purposes of this Section 4.2.1, be deemed to be the Taxes for
such year. Such extrapolation or “gross up” shall be
determined for each fiscal year on a basis consistent with such
determination for fiscal year 2008.
| |
4.2.2 |
Personal Property Taxes . Tenant shall pay all
taxes charged, assessed or imposed upon the personal property of
Tenant in or upon the Premises. |
| |
4.2.3 |
Operating Costs . If, during the term hereof,
Operating Costs (as hereinafter defined) incurred by Landlord in
any calendar year shall exceed the Base Operating Costs, Tenant
shall reimburse Landlord, as Additional Rent, for Tenant’s
Percentage of any such excess (such amount being hereinafter
referred to as the “Operating Costs Excess”). Tenant
shall remit to Landlord, on the first day of each calendar month,
estimated payments on account of Operating Costs Excess, such
monthly amounts to be sufficient to provide Landlord, by the end of
the calendar year, a sum equal to the Operating Costs Excess, as
reasonably estimated by Landlord from time to time (it being
understood that Tenant shall have at least ten [10] days’
prior notice before it shall be required pay any revised estimate
of Operating Costs Excess). If, at the expiration of the year in
respect of which monthly installments of Operating Costs Excess
shall have been made as aforesaid, the total of such monthly
remittances is greater than the actual Operating Costs Excess for
such year, Landlord shall promptly pay to Tenant, or, if the term
of this Lease has not expired or otherwise been terminated, credit
against the next accruing payments to be made by Tenant pursuant to
this subsection 4.2.3, the difference; if the total of such
remittances is less than the Operating Costs Excess for such year,
Tenant shall pay the difference to Landlord within twenty
(20) days from the date Landlord shall furnish to Tenant an
itemized statement of the Operating Costs Excess, prepared,
allocated and computed in accordance with generally accepted
accounting principles. Any reimbursement for Operating Costs due
and payable by Tenant with respect to periods of less than twelve
(12) months shall be equitably prorated. |
The term “Operating
Costs” shall mean all costs and expenses incurred for the
operation, cleaning, maintenance, repair and upkeep of the
Property, including, without limitation, all costs of maintaining
and repairing the Property (including snow removal, landscaping and
grounds maintenance, operation and maintenance of parking lots,
sidewalks, walks, access roads and driveways, security, operation
and repair of heating and air-conditioning equipment, elevators,
lighting, trash compactors and any other Building equipment or
systems) and of all repairs and replacements (other than repairs or
replacements for which Landlord has received full reimbursement)
necessary to keep the Property in good working order, repair,
appearance and condition; all costs, including material and
equipment costs, for cleaning and janitorial services to the
Building (including window cleaning of the Building); all costs of
any reasonable insurance carried by Landlord relating to the
Property; all costs related to provision of heat (including oil,
electric, steam and/or gas), air-conditioning, and water (including
sewer charges) and other utilities to the Building; payments under
all service contracts relating to the foregoing; all compensation,
fringe benefits, payroll taxes and workmen’s compensation
insurance premiums related thereto with respect to any employees of
Landlord or its affiliates engaged in security and maintenance of
the Property; costs of maintaining or operating an on-site
cafeteria for the Building (including subsidy programs, if any);
attorneys’ fees and disbursements (exclusive of any such fees
and disbursements incurred in tax abatement proceedings) and
auditing and other professional fees and expenses; and a management
fee. Notwithstanding the foregoing, in the event that Landlord
decides to aggregate Operating Costs with regard to the common
areas, facilities and amenities associated with the Property (e.g.
landscaping) with those of adjoining properties owned by Landlord
or an affiliate of Landlord, then to the extent such costs have
been aggregated, Tenant shall be responsible for the portion of
such costs and expenses that are equitably allocable to the
Property.
There shall not be included
in such Operating Costs:
A. brokerage fees (including
rental fees) related to the operation of the Building;
B. interest and depreciation
charges incurred on the Property;
C. expenditures made by
Tenant with respect to (i) cleaning, maintenance and upkeep of
the Premises, and (ii) the provision of electricity to the
Premises;
D. capital expenditures
(except as provided for below);
E. any cost representing an
amount paid to any person, firm, corporation or other entity
related to or affiliated with Landlord, which amount is in excess
of the amount which would have been paid in the absence of such
relationship for comparable work or services;
F. the cost of correcting any
violation of law existing as of the Commencement Date;
6
G. the costs of repairs or
other work necessitated by fire or other casualty (provided
Landlord shall be permitted to include in Operating Expenses any
commercially reasonable deductible paid by Landlord in connection
with such work);
H. costs or expenses related
to the removal, abatement or remediation of hazardous materials in
or about the Building and/or Property, to the extent such costs are
not attributable to or do not arise from the acts or omissions of
Tenant or Tenant’s agents, employees, invitees or
contractors; and
I. costs incurred in
connection with upgrading the Building to comply with handicap,
life, fire and safety codes enacted prior to the Commencement Date
and for which Landlord would be responsible by the terms of this
Lease.
If, during the term of this
Lease, Landlord shall replace any capital items or make any capital
expenditures which are (a) required to comply with laws in
effect after the Commencement Date, or (b) are intended to
reduce Operating Costs, or (c) following the expiration of the
first four (4) years of the term, as are required to replace
worn-out items as may be necessary to maintain the Building in good
working order, repair and appearance and in a first class condition
(the items in (a), (b) and (c) above collectively called
“capital expenditures”) the total amount of which is
not properly included in Operating Costs for the calendar year in
which they were made, there shall nevertheless be included in
Operating Costs for each calendar year in which and after such
capital expenditure is made the annual charge-off of such capital
expenditure. (Annual charge-off shall be determined by
(i) dividing the original cost of the capital expenditure by
the number of years of useful life thereof [the useful life shall
be reasonably determined by Landlord in accordance with generally
accepted accounting principles and practices in effect at the time
of acquisition of the capital item]; and (ii) adding to such
quotient an interest factor computed on the unamortized balance of
such capital expenditure based upon an interest rate reasonably
determined by Landlord as being the interest rate then being
charged for long-term mortgages by institutional lenders on like
properties within the locality in which the Building is located.)
Provided, further, that if Landlord reasonably concludes on the
basis of engineering estimates that a particular capital
expenditure will effect savings in Operating Costs and that such
annual projected savings will exceed the annual charge-off of
capital expenditure computed as aforesaid, then and in such events,
the annual charge-off shall be determined by dividing the amount of
such capital expenditure by the number of years over which the
projected amount of such savings shall fully amortize the cost of
such capital item or the amount of such capital expenditure; and by
adding the interest factor, as aforesaid.
If during any portion of any
year, including but not limited to calendar year 2008, for which
Operating Costs are being computed, the Building was not at least
95% occupied by tenants or if Landlord was not supplying all
tenants with the services being supplied hereunder, actual
Operating Costs incurred shall be reasonably extrapolated or
“grossed up” by Landlord to the reasonably estimated
Operating Costs that would have been incurred if the Building were
95% occupied by tenants or if such services were being supplied to
all tenants occupying 95% of the Building, and such extrapolated
amount shall, for the purposes of this Section 4.2.3, be
deemed to be the Operating Costs for such year. Such extrapolation
or “gross up” shall be determined for each calendar
year on a basis consistent with such determination for calendar
year 2008.
| |
4.2.4 |
Insurance . Tenant shall, at its expense, as
Additional Rent, take out and maintain throughout the term the
following insurance protecting Landlord: |
| |
4.2.4.1 |
Commercial general liability insurance naming Landlord, Tenant,
and Landlord’s managing agent and any mortgagee of which
Tenant has been given notice as insureds or additional insureds and
indemnifying the parties so named against all claims and demands
for death or any injury to person or damage to property which may
be claimed to have occurred on the Premises (or the Property,
insofar as used by customers, employees, servants or invitees of
the Tenant), in amounts which shall, at the beginning of the term,
be at least equal to the limits set forth in Section 1.1, and,
which, from time to time during the term, shall be for such higher
limits, if any, as are customarily carried in the area in which the
Premises are located on property similar to the Premises and used
for similar purposes; and workmen’s compensation insurance
with statutory limits covering all of Tenant’s employees
working on the Premises. |
| |
4.2.4.2 |
Fire insurance with the usual extended coverage endorsements
covering all Tenant’s furniture, furnishings, fixtures and
equipment. |
| |
4.2.4.3 |
All such policies shall be obtained from responsible companies
qualified to do business and in good standing in Massachusetts,
which companies and the amount of insurance allocated thereto shall
be subject to Landlord’s approval, not to be unreasonably
withheld. Tenant agrees to furnish Landlord with certificates
evidencing all such insurance prior to the beginning of the term
hereof and evidencing renewal thereof at least thirty
(30) days prior to the expiration of any such policy. Each
such policy shall be non-cancelable with respect to the interest of
Landlord without at least ten (10) days’ prior written
notice thereto. In the event provision for any such insurance is to
be by a blanket insurance policy, the policy shall allocate a
specific and sufficient amount of coverage to the
Premises. |
| |
4.2.4.4 |
All insurance which is carried by either party with respect to
the Building, Premises or to furniture, furnishings, fixtures, or
equipment therein or alterations or improvements thereto, whether
or not required, shall include provisions which either designate
the other party as one of the insured or deny to the insurer
acquisition by subrogation of rights of recovery against the other
party to the extent such rights have been waived by the insured
party prior to occurrence of loss or injury, insofar as, and to the
extent that, such provisions may be effective without making it
impossible to obtain insurance coverage from responsible companies
qualified to do business in the state in which the Premises are
located (even though extra premium may result therefrom). In the
event that extra premium is payable by either party as a result of
this provision, the other party shall reimburse the party paying
such premium the amount of such extra premium. If at the request of
one party, this non-subrogation provision is waived, then the
obligation of reimbursement shall cease for such period of time as
such waiver shall be effective, but nothing contained in this
subsection shall derogate from or otherwise affect releases
elsewhere herein contained of either party for claims. Each party
shall be entitled to have certificates of any policies containing
such provisions. Each party hereby waives all rights of recovery
against the other for loss or injury to property against which the
waiving party is protected by insurance (or is required to be to
protected by insurance under this Lease) containing said
provisions, reserving, however, any rights with respect to
recoupment of any commercially reasonable deductibles under such
insurance. Tenant shall not acquire as insured under any insurance
carried on the Premises any right to participate in the adjustment
of loss or to receive insurance proceeds and agrees upon request
promptly to endorse and deliver to Landlord any checks or other
instruments in payment of loss in which Tenant is named as
payee. |
| |
4.2.5 |
Utilities . Tenant shall pay to Landlord all
actual charges, without mark-up, for electricity supplied by
Landlord and separately check metered (which shall include
electricity for lights, outlets and VAV boxes), and charges for
telephone and other utilities or services not supplied by Landlord
pursuant to Subsections 5.1.1, 5.1.2, and 5.1.3, whether designated
as a charge, tax, assessment, fee or otherwise, all such charges to
be paid as the same from time to time become due. Except as
otherwise provided in Article 5, it is understood and agreed that
Tenant shall make its own arrangements for the installation or
provision of all such utilities and that Landlord shall be under no
obligation to furnish any utilities to the Premises and shall not
be liable for any interruption or failure in the supply of any such
utilities to the Premises. Any utilities for which Landlord bills
Tenant shall be billed at the cost incurred by Landlord in
obtaining such utilities. |
| 4.3 |
Late Payment of Rent . If any installment of rent
is paid after the date the same was due, and if on a prior occasion
in the twelve (12) month period prior to the date such
installment was due an installment of rent was paid after the same
was due, then Tenant shall pay Landlord a late payment fee equal to
five (5%) percent of the overdue payment. |
7
| 4.4 |
Letter of Credit . The performance of
Tenant’s obligations under this Lease shall be secured by a
letter of credit throughout the term hereof in accordance with and
subject to the following terms and conditions: |
| |
4.4.1 |
Amount of Letter of Credit .
(a) Concurrently with Tenant’s execution and delivery of
this Lease, Tenant shall deliver to Landlord an irrevocable standby
letter of credit (the “Original Letter of Credit”)
which shall be (i) in the form of Exhibit E attached to this
Lease (the “Form LC”), (ii) issued by a bank
reasonably satisfactory to Landlord, (iii) in the amount equal
to the Letter of Credit Amount, and (iv) for a term of at
least 1 year, subject to the provisions of Section 4.4.2
below. The Original Letter of Credit, any Additional Letters(s) of
Credit and Substitute Letter(s) of Credit are referred to herein as
the “Letter of Credit.” |
| |
4.4.2 |
Renewal of Letter of Credit . Each Letter of
Credit shall be automatically renewable in accordance with the
second to last paragraph of the Form LC; provided however, that
Tenant shall be required to deliver to Landlord a new letter of
credit (a “Substitute Letter of Credit”) satisfying the
requirements for the Original Letter of Credit under
Section 4.4.1 on or before the date 30 days prior to the
expiration of the term of the Letter of Credit then in effect, if
the issuer of such Letter of Credit gives notice of its election
not to renew such Letter of Credit for any additional period
pursuant thereto. Should any Letter of Credit contain a final
expiration date, in addition to a current expiration date, such
final expiration date shall be no earlier than 45 days following
the Expiration Date of this Lease. |
| |
4.4.3 |
Draws to Cure Defaults . If the Fixed Rent,
Additional Rent or any other sum payable to Landlord hereunder
shall be overdue and unpaid or should Landlord make payments on
behalf of the Tenant, or Tenant shall fail to perform any of the
terms of this Lease in all cases beyond the expiration of all
applicable notice and cure periods, then Landlord shall have the
right, at any time thereafter to draw down from the Letter of
Credit the amount necessary to cure such default. In the event of
any such draw by the Landlord, Tenant shall, within 30 days of
written demand therefor, deliver to Landlord an additional Letter
of Credit (“Additional Let |
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