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INDENTURE OF LEASE

Lease Agreement

INDENTURE OF LEASE | Document Parties: HOLOGIC INC | Cytyc Corporation | Ram Management Co, Inc You are currently viewing:
This Lease Agreement involves

HOLOGIC INC | Cytyc Corporation | Ram Management Co, Inc

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Title: INDENTURE OF LEASE
Governing Law: Massachusetts     Date: 11/27/2007
Industry: Medical Equipment and Supplies     Law Firm: Goulston Storrs     Sector: Healthcare

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Exhibit 10.46

EXECUTION COPY

THIS INDENTURE OF LEASE dated as of the 11 th day of July, 2006 (“Execution Date”), is made by and between 445 Simarano Drive, Marlborough LLC, a Massachusetts limited liability company with offices c/o Ram Management Co., Inc., 200 U.S. Route One, Suite 200, Scarborough, Maine 04074 (hereinafter called the “Landlord”) and Cytyc Corporation, a Delaware corporation with a mailing address of 250 Campus Drive, Marlborough, Massachusetts 01752 (hereinafter called the “Tenant”).

WITNESSETH that for and in consideration of the rents herein reserved and the covenants and agreements herein contained and expressed and to be kept, performed and fulfilled, the parties agree as follows:

Section 1 - Premises; Building; Land; Landlord’s Work .

(A) Landlord hereby demises and lets unto Tenant, and Tenant hereby leases from Landlord a portion of the building at 445 Simarano Drive, Marlborough, Massachusetts (the “Building”), the leased premises is deemed to contain 129,588 rentable square feet on the first floor and 15,939 rentable square feet of second floor office space (a total of 145,527 rentable square feet), and shown as the building space highlighted on Exhibit A annexed hereto (the “Premises”) and use, in common with others, of such easements and appurtenances necessary for access to the Premises (as defined herein). The Building is located on the parcel of land. (“Land”) shown on Exhibit A-1 . The legal description of the Land is set forth on Exhibit A-2 . The Building, the Land, all improvements located on the Land, and all rights of way and easements appurtenant thereto are herein referred to as the “Property”. Tenant shall have access to the Premises on a 24 hour, 365 days per year basis. The Landlord shall provide Tenant, at no charge, with parking based on a ratio of 2.3 cars per 1,000 square feet based on the total rentable square feet of the building (175,763 sf.). In addition, included within the above-referenced allotment of parking spaces, Landlord shall provide Tenant at no charge approximately 108 designated spaces (the upper parking lot servicing the second floor) for Tenant’s exclusive use. All other parking spaces shall be for use by Tenant in common with other tenants in the Building (except for such parking spaces that are provided to Cascade Promotions’ space for its exclusive use), all of which parking spaces shall be located within the Building’s parking areas, all as set forth on Exhibit A-1 .

(B) The Landlord shall provide the Vanilla Box and Base Building standard in accordance with the terms and conditions set forth in Exhibit B attached hereto and made a part hereof (“Landlord’s Work”). Landlord shall complete the following items of Landlord’s Work as follows: (1) Landlord’s work on Exhibit B attached hereto on or before July 14, 2006, subject to force majeure to the extent stated in Exhibit B: Items 1, 2 and 7; (2) Landlord’s Work on Exhibit K 2, 3, and 6 on or before July 14, 2006, subject to force majeure to the extent stated in Exhibit K , and (3) all other items of Landlord’s Work set forth on Exhibits B and K, within the timeframes set in said Exhibits B and K, subject to force majeure and delays in installation up to a maximum of thirty (30) days. All other work, permits and approvals shall be at Tenant’s sole cost and expense and as set forth in Section 15 below. Otherwise, except as expressly set forth in this Lease, the Landlord shall provide the Tenant with the Premises in “broom clean” condition and “as is.” In addition, the Landlord shall provide a Tenant Improvement Allowance of $1,150,000 for Tenant’s construction work in the space in accordance with the terms and conditions set forth in Section 15 below.

 

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(C) Subject to the force majeure provision set forth in Section 1(B) above, in the event that Landlord’s Work (as described on Exhibit B) is not substantially completed as of the Rent Commencement Date, Landlord shall provide Tenant with one-half day’s free Base Rent (as liquidated damages) for each day of delay in Landlord’s substantial completion after the Rent Commencement Date. If such delay continues beyond thirty (30) days, Landlord shall provide Tenant with one day’s free Base Rent (as liquidated damages) for each day of such further delay.

(D) Seismic Provision. Landlord agrees to engage a reputable seismic expert to determine whether the Building requires upgrading in order to comply with Massachusetts law. Landlord shall, by July 14, 2006 (subject to Landlord’s right to extend to July 21, 2006 if requested by its seismic expert, deliver to Tenant a report from such expert setting forth such expert’s opinion as to whether the Building requires such upgrade work. If required by such report, Landlord will perform work to upgrade the Building so long as the Landlord’s cost of such work does not exceed $150,000 and the Tenant shall contribute the next $75,000 of said cost. To the extent the cost of such required work is less than $150,000, such savings shall inure to Landlord’s benefit. If Landlord does not deliver such report to Tenant on the date set forth above, or if the cost of such work exceeds $225,000 and the Landlord and Tenant cannot agree on allocation of the additional cost, then either party shall have the right, exercisable upon written notice to the other party to terminate this Lease. Any work required by such expert’s report shall be completed by the Rent Commencement Date, subject to force majeure up to a maximum of thirty (30) days.

(E) In the event that an additional handicapped chairlift is required to be installed to comply with applicable law, Landlord shall perform all work necessary to install such chair lift and Tenant agrees to pay 1/3 of the cost of such work up to a maximum of $25,000. Such work, if required, shall be completed by November 1, 2006, subject to force majeure up to a maximum extension of thirty (30) days.

Section 2 - Term; Term Commencement Date; Rent Commencement Date; Tenant Work; Landlord Delays ,

(A) The term of this Lease shall commence as of the Term Commencement Date, as hereinafter defined. The Term Commencement Date shall be defined as the date that Landlord delivers the Premises to Tenant in a condition which will allow Tenant to commence Tenant’s Work, with the Landlord’s Work identified in items numbered 1, 2 and 7 in Exhibit B complete and with the items numbered 2, 3 and 6 in Exhibit K complete, and shall, subject to the provisions of this Lease, terminate as of the date (“Termination Date”) which is twelve (12) years and three (3) months commencing on the Rent Commencement Date, except that if the Rent Commencement Date occurs on other than the first day of a calendar month, then the Termination Date shall be the last day of the calendar month which the date twelve years and three months after the Rent Commencement Date occurs.

(B) The “Rent Commencement Date” shall be defined as the date one hundred twenty (120) days after the Term Commencement Date, except that, in the event that Tenant’s Work is delayed by any Landlord Delays, as hereinafter defined, the Rent Commencement Date shall be extended by the period of any Landlord Delays; whether it has been delayed by force majeure

 

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The parties shall, promptly after the occurrence of the Rent Commencement Date, execute a written agreement confirming the Term Commencement Date, the Rent Commencement Date, and the Termination Date.

(C) “Tenant Work” shall be defined as all work to be performed by Tenant in the initial preparation of the Premises for Tenant’s occupancy. Landlord shall, at no cost to Landlord (except that the Tenant Improvement Allowance may be applied to such costs), cooperate with Tenant in such manner as Tenant may reasonably request, in obtaining all permits and approvals necessary for the performance of Tenant’s Work and Tenant’s use of the Premises.

(D) “Landlord Delays” shall be defined as any delay in the performance of the Tenant Work by reason of: (i) the default or delay of Landlord, or Landlord’s agents, employees or contractors, (ii) Landlord’s failure, for any reason, to complete all of Landlord’s Work on or before the date one hundred twenty (120) days after the Term Commencement Date; whether it has been delayed by force majeure, or (ii) Tenant’s inability to obtain a building permit or certificate of occupancy solely based upon the non-compliance of the exterior common areas of the Building, and the common vestibule located behind the Cascade Promotions’ space, or the Property with applicable laws, ordinances or regulations (collectively “Laws”).

(E) If the Term Commencement Date does not occur on or before August 15, 2006 for any reason, subject to extension in the event of force majeure not exceeding 30 days, then Tenant shall have the right to terminate this Lease upon written notice to Landlord.

Section 3 - Rent Commencement Date and Rent Rate .

(A) For the purposes of this Section 3, “Rent Month” shall be defined as any calendar month during the term of this Lease commencing as of the Rent Commencement Date, or on the same day of the months following the Rent Commencement Date. For example, if the Rent Commencement Date occurs on December 15, 2006, then Rent Month 1 shall be the period commencing as of December 15, 2006 and ending as of January 14, 2007, Rent Month 2 shall be the period commencing as of January 15, 2007 and ending as of February 14, 2007, etc.

(B) For the purposes of this Section 3, “Rent Year” shall be defined as any twelve month period during the term commencing as of the Rent Commencement Date, or as of any anniversary of the Rent Commencement Date.

(C) Commencing on the Rent Commencement Date, Tenant shall pay to Landlord rent (“Base Rent”) for the Premises monthly, in advance, on or before the first day of each month (prorated for any partial month), with first Rent Year’s rent being paid on a phase-in basis, as follows:

 

Period

   Rent per rentable
square foot per annum
   Total Period Rent    Monthly Rent

Rent Months 1-6 Base Rent payable on 20,000 sf

   $ 6.35    $ 63,500    $ 10,583

 

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Rent Months 7-9 Base Rent payable on 80,000 sf

   $ 6.35    $ 127,000    $ 42,333

Rent Months 10-12 Base Rent payable on 125,000 sf

   $ 6.35    $ 198,437    $ 66,146

Rent Years 2-3 Base Rent payable on 145,527 beginning on the first anniversary of the Rent Commencement Date (subject to the provisions of Section 8 below)

   $ 6.35    $ 924,096    $ 77,008

Rent Years 4-6

   $ 6.75    $ 982,307    $ 81,859

Rent Years 7-9

   $ 7.50    $ 1,091,453    $ 90,954

Rent Years 10-the end of the initial term

   $ 8.25    $ 1,200,598    $ 100,050

Section 4 Additional Rent .

(A)  Operating Costs,

(1) Commencing as of the Rent Commencement Date, and continuing thereafter throughout the term of this Lease, Tenant shall pay to Landlord, as Additional Rent, Tenant’s Proportionate Share (as hereinafter defined) of all of the costs of the Property (“Operating Costs”). Operating Costs may include, but shall not be limited to: i) cleaning and maintenance of the common areas, ii) clearing and snow removal from parking area, access drives, and all other paved areas on the Land, iii) insurance carried by Landlord with respect to the Property in accordance with the provisions of this Lease (“Insurance Costs”), iv) landscaping and grounds care, v) repairs and maintenance of the buildings and improvements on the Property, vi) maintenance and other costs related to water, sewer, septic, storm drainage and other utility services provided to the Property to the extent such utilities are not separately metered to the Premises and other tenant premises in the Property, and vi) parking lot and exterior lighting maintenance and repairs. Operating Costs shall not include Excluded Costs, as hereinafter defined.

(2) In the event that Tenant leases the ROFO Space (as defined below) and becomes the sole Tenant of the Building, Landlord shall, on or before the December 1 immediately preceding each calendar year during the term of this Lease, provide to Tenant, for Tenant’s written approval, a budget for Operating Costs for such calendar year. Tenant shall not unreasonably withhold its approval of such budget and Tenant shall, within fifteen (15) days after its receipt of such budget, advise Landlord as to whether it approves such budget. Any dispute as to any such budget shall be submitted to arbitration in accordance with Section 48 hereof.

 

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(3) Intentionally deleted.

(B) Property Management Fee Rent. Commencing as of the Rent Commencement Date, and continuing thereafter throughout the term of this Lease, Tenant shall pay to Landlord, as Additional Rent, Property Management Fee Rent equal to three (3%) percent of the sum of: (i) Base Rent, (ii) Operating Costs, and (iii) Taxes payable by Tenant to Landlord, from time to time, pursuant to the provisions of this Lease. Notwithstanding the foregoing, if Tenant exercises its right of first refusal and becomes sole tenant in building, Tenant may have the option to manage the property, pursuant to Section 21, and then, from and after the date that Tenant commences to manage the Property, Tenant shall be obligated to pay a one and one-quarter percent (1.25%) Property Management Fee to Landlord for asset management.

(C) Taxes. Subject to Section 4(E), commencing as of the Rent Commencement Date, Tenant shall pay to Landlord, as Additional Rent, Tenant’s Proportionate Share of Taxes, as hereinafter defined. The term “Taxes” as used in this paragraph shall be deemed to include all assessments, impositions and other governmental charges, ordinary and extraordinary, which may be levied, assessed or otherwise become a lien upon or charge against the Property. Landlord hereby represents to Tenant that, as of the Execution Date of this Lease, there are no betterments or special assessments affecting the Property. Betterments and special assessments shall only be included Taxes as if, and to the extent, the same were payable over the longest period of time permitted by Law. Notwithstanding anything to the contrary herein contained, Taxes shall exclude: (i) all excess profits taxes, franchise taxes, corporate excise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal and commonwealth/state income taxes, and other taxes to the extent applicable to Landlord’s general or net income (unless such tax is a substitute for or supplementary to an ad valorem property tax); and (ii) any penalties or interest caused by late payment of Taxes by Landlord which is not caused by the late payment of Taxes by Tenant.

(D) Payment Procedures .

(1) Additional rent shall be paid in monthly installments, due with the monthly payments of the Base Rent, based on the estimated budget provided by Landlord to Tenant. Landlord shall, on or before the date one hundred twenty (120) days after the end of each calendar year during the term of the Lease, reconcile actual costs and expenses with the budget figures and make appropriate adjustments with Tenant. As part of such annual reconciliation, the Landlord shall provide Tenant with a detailed statement of actual costs and expenses (“Year End Statement”) in Landlord’s normal format. Tenant shall, within thirty (30) days after such delivery, pay Tenant’s share to Landlord, as Additional Rent, less any estimated payments. If the estimated payments exceed Tenant’s share, then the excess shall be applied against the next installment(s) of Base Rent and Additional Rent payable by Tenant, except that, with respect to the reconciliation for the last year of the term of the Lease, Landlord shall, at the time that it delivers the Year End Statement for such year, reimburse Tenant for any overpayment by Tenant, to the extent that such overpayment exceeds any amounts then due from Tenant to Landlord.

(2) If Tenant provides a written request to Landlord within one hundred and eighty (180) days after receipt of the Year End Statement provided in this Section 4(D), Tenant shall be entitled, during reasonable business hours, to review Landlord’s books and records on which Landlord has calculated Additional Rent. Notwithstanding the foregoing, if, in performing any such audit, Tenant discovers any errors, Tenant shall have the right to review Landlord’s books

 

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and records for the one (1) year immediately preceding the year in question solely for the purpose of determining whether such errors were made in the preceding year. If Tenant’s review establishes any overpayment by Tenant, Landlord shall either, at Landlord’s option, credit such amount to Tenant’s next payment of Additional Rent, or refund such amounts within thirty (30) days after receipt of Tenant’s calculations; if Tenant’s review discloses any underpayment by Tenant, Tenant shall pay such amounts within thirty (30) days from the time it calculates, or receives the calculation of such amounts. If, after performing any such audit, it is determined that Landlord has overbilled Tenant by more than 5% for the year in question, Landlord shall reimburse Tenant for its reasonable out-of-pocket costs incurred in performing such audit. Such audits may be performed by Tenant’s certified public account or by Tenant’s internal auditors but in no event shall any such examiner be compensated on a percentage basis of any recovery from Landlord.

(E) Initial Budget; Phasing of Tenant’s Obligation to Pay Taxes. During calendar year 2006 the estimated budget for Additional Rent shall be $2.42 per rentable square foot ($1.50 per rentable square foot for Operating Costs and Property Management Fee Rent and $.92 per rentable square foot for Taxes). Tenant shall be responsible for Operating Costs) on the entire 145,527 square feet of the Premises commencing on the Rent Commencement Date. Tenant obligation to pay Taxes shall be phased in the same proportion that Tenant’s obligation to pay Base Rent is phased as set forth in Section 3 above.

(F) Tenant’s Proportionate Share. For the purposes of this Lease, Tenant’s Proportionate Share is the product of the rentable area of the Premises divided by the rentable area of the Building. At the time of signing of this Lease, such Tenant’s Proportionate Share is expected to be eighty-two and eight-tenths percent (82.8%), based on one hundred forty five thousand five hundred twenty seven (145,527) square feet divided by one hundred seventy five thousand seven hundred sixty three square feet (175,763) square feet, the rentable square footage of the Property.

Section 5 - Payment of Rent and Late Charges . Payments due under Sections 3 and 4 above shall be made at Landlord’s office at the address set forth in Section 37, or such other place as Landlord may designate in writing, on or before the first of each month. If any installment of Base Rent shall not be received by Landlord or Landlord’s designee within five (5) business days following the due date (provided, however, Landlord shall be required to give written notice to Tenant of such failure and Tenant shall have a cure period of five (5) business days once in any twelve month period, after which the late charge shall apply without notice), or within five (5) business days following written notice that such amount was not paid when due for Additional Rent, then Tenant shall pay to Landlord a late charge equal to five percent (5%) of the overdue amount; provided, however, that Landlord hereby agrees to waive the first such late charge in any 12 month period. In addition to the late charge described above, any Rent or other amounts owing hereunder which are not paid within ten (10) days following the due date shall bear interest from the date when due until paid at an annual interest rate equal to the prime rate, as stated under the column “Money Rates” in The Wall Street Journal , plus four (4%) percent (“Lease Interest Rate”); provided, however, in no event shall such annual interest rate exceed the highest annual interest rate permitted by applicable Law. All payments under this Lease shall be paid to Landlord without notice or demand, and without abatement, deduction, counterclaim or set-off, except to the extent otherwise expressly set forth herein.

Section 6 - Security Deposit . Intentionally Omitted.

 

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Section 7 – Option to Extend.

(A) Subject to the terms and conditions in this Section 7, Tenant shall have the right and option to extend the term of this Lease for two (2) consecutive additional periods (“Extension Terms”) of five (5) years each commencing on the expiration of the original term or the then Extension Term, upon all the terms and conditions of this Lease except for Base Rent. Base Rent during the Extension Term shall be at the greater of the Base Rent paid during the immediately preceding lease year or ninety five percent (95%) of the then fair market rent (“Fair Market Rent”) for the Premises, as defined below. Tenant may exercise its option to extend only if Tenant is not then (i.e. as of the giving of Tenant’s Exercise Notice, as hereinafter defined) in default in performance or observance of any term or condition of this Lease, after the giving of any applicable notice and the expiration of any applicable grace period. In addition, if, as of the commencement of the First Extension Term, either: (i) Tenant’s interest in this Lease has been assigned to anyone other than a Permitted Transferee (as defined in Section 22 hereof), or (y) Tenant has subleased more than fifty (50%) of the rentable area of the Premises to anyone other than a Permitted Transferee, then Tenant shall not have the right to extend the term of the Lease for the Second Extension Term. Tenant may exercise its options to extend only by delivering notice (“Tenant’s Exercise Notice”) of its intent to extend the term hereof to Landlord on or after the date eighteen (18) months prior to the expiration of the then current term of the Lease, but on or before the date twelve (12) months prior to the expiration of the then current term of the Lease, time being of the essence. If Tenant fails timely to give Tenant’s Exercise Notice, as aforesaid, Tenant’s option shall utterly expire, time being of the essence. Following the timely exercise by Tenant of its option to extend the term hereof, the term of the Lease shall, subject to Section 7(D), be deemed to be extended for the Extension Term in question, without the need for further act or deed by either party.

(B) The Fair Market Rent shall mean the rent then being paid by tenants for leases entered into as of the date in question for premises similar to the Premises in buildings which are comparable to the Building in terms of age, quality of construction, level of service and amenities, size and appearance and located in Southborough, Northborough, Marlborough and Westborough, Massachusetts. Fair Market Rent shall take into account all relevant factors, including, without limitation, whether the tenant is paying additional rent on a gross basis or on a net basis, as well as free rent, landlord construction allowances, and other economic concessions then being provided by landlords to tenants. Fair Market Rent shall not take into account the value of any leasehold improvements made by Tenant to the extent that the same have been paid for by Tenant.

(C) Tenant may, on or after the date fifteen (15) months prior to the end of the then current term, request that Landlord provide Tenant with Landlord’s determination of Base Rent for the Extension Term in question, and Landlord shall provide Tenant with Landlord’s determination of said Base Rent in writing within fifteen (15) business days of Landlord’s receipt of such request. If Tenant does not agree with Landlord’s determination, then Tenant shall so advise Landlord of such disagreement in Tenant’s Exercise Notice. If Tenant does not make such request of Landlord prior to the time that Tenant gives Tenant’s Exercise Notice for the Extension Term in question, Landlord shall, within thirty (30) days after Landlord receives Tenant’s Exercise Notice, furnish Tenant in writing with notice of Landlord’s determination of the Base Rent for the Extension Term in question. In such event, if Tenant does not agree with Landlord’s determination of Base Rent, Tenant shall advise Landlord in writing (“Dispute

 

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Notice”) of such agreement within twenty (20) days of its receipt of such determination, In either case, if the parties do not agree upon the Base Rent for the Extension Term in question, then the Fair Market Rent shall be determined by appraisal as follows, Tenant hereby agreeing that it shall have no right to submit any dispute as to Fair Market Rent to appraiser unless Tenant has previously exercised its option to extend the term of the Lease for the Extension Term in question. Each of the parties shall, within twenty (20) days after the giving of Tenant’s Exercise Notice or within twenty (20) days after Tenant gives the Dispute Notice, select an appraiser, each of whom shall have at least five (5) years of experience in appraising commercial properties in the greater Boston area, and the two appraisers shall together select a third appraiser similarly qualified. The three appraisers together shall attempt to agree on the current market rate of Base Rent for the Extension Term in question. Failing a unanimous decision, the Base Rent shall be determined by majority vote of the appraisers. Landlord and Tenant shall each pay the charges for the appraiser which it selects, and they shall share equally the charges for the third appraiser. Following the exercise by Tenant of its option to extend the term hereof, all references in this Lease to the term hereof, or expressions of similar import, shall be deemed to refer to the term as so extended. The decision and award of the appraiser(s) shall be final and conclusive on all parties.

(D) Intentionally deleted.

Section 8 – Right of First Offer.

(A) Until the expiration (or earlier termination) of the Cascade Promotions Lease, Tenant shall have a right of first offer (“Right of First Offer”) to lease the entire space currently leased by Cascade Promotions consisting of approximately thirty thousand two hundred thirty-six (30,236) rentable square feet which space shall be available in June, 2011 unless earlier terminated (the “ROFO Space.”) The ROFO Space term shall be co-terminus with the term of this Lease and the ROFO Space rent and additional charges shall be the same per square foot Base Rent and other charges as are then applicable pursuant to this Lease. If the Tenant accepts the Landlord’s ROFO, this Lease shall be deemed amended and the ROFO Space shall become part of the Premises. Landlord shall be obligated to deliver such ROFO Space at the end of the Cascade Promotions Lease in its “as is” condition.

(B) Conditions. Both at the time Tenant exercises the Right of First Offer and as of the Term Commencement Date in respect of the ROFO Space, the Lease must be in full force and effect and Tenant shall not be in default of its obligations under the Lease after the giving of any applicable notice and the expiration of any applicable grace period.

(C) Landlord Notice . Landlord shall not lease any such ROFO Space to a third party unless and until Landlord has first offered the ROFO Space to Tenant in writing (the “First Offer Leasing Notice”) and Tenant either rejects such offer or a period of thirty (30) days has elapsed from the date that Tenant has received the First Offer Leasing Notice without Tenant having notified Landlord in writing of its acceptance of such First Offer Leasing Notice, time being of the essence. Landlord’s Notice shall set forth the date (“Estimated Commencement Date”) that Landlord estimates that the ROFO Space will be delivered to Tenant (i.e. the day of the existing tenant’s lease of the ROFO Space expires).

(D) Tenant Acceptance. If Tenant timely delivers to Landlord, in accordance with the conditions of this Section 8, written notice of Tenant’s exercise of the Right of First Offer for all

 

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of the ROFO Space and the Landlord determines that Tenant meets all of the conditions provided in this Section 8, then the ROFO Space shall be deemed added to the Premises and subject to the terms and conditions in this Lease, with the exception of those Lease modifications set forth in Section 8(f).

(E) Tenant’s Rejection or Failure to Meet Conditions. If Tenant declines or fails to duly and timely exercise its Right of First Offer or fails to meet all of the conditions provided in this Section 8, Landlord shall, except as set forth in this Section 8(e), thereafter be free to lease the ROFO Space in portions or in its entirety to any third-party at any time without regard to the restrictions in this Section 8 and on whatever terms and conditions Landlord may decide in its sole discretion, without again complying with all the provisions of this Section 8. Notwithstanding the foregoing, if the ROFO Space becomes available for lease to Tenant prior to June 30, 2011 and if Tenant does not elect to lease the ROFO Space at such earlier date, then Tenant shall again have the right to lease such ROFO Space for a term commencing as of June 30, 2011 (i.e. the term, including extension and renewal options, of the next tenant to lease the ROFO Space shall expire no later than June 30, 2011); provided however, that if the ROFO Space becomes available for lease to Tenant at such earlier date due to the then-existing ROFO Space tenant’s default under its lease of the ROFO Space with Landlord, and if Tenant does not elect to lease the ROFO Space at such earlier date, then Tenant shall again have the right to lease such ROFO Space for a term commencing as of the earlier of: (i) the expiration of the term of the next tenant’s lease of the ROFO Space, or (ii) the date five (5) years plus a period of time (not to exceed six (6) months) necessary to enable Landlord to relet the ROFO Space.

(F) Changes to Lease. If Tenant leases the ROFO Space pursuant to the terms of this Section 8, all the obligations, terms, and conditions under the Lease shall also apply to the ROFO Space except that:

 

  i. Term Commencement Date . The Term Commencement Date for the Lease for the ROFO Space (the “Term Commencement Date for the ROFO Space”) shall be the later of: (x) the Estimated Commencement Date set forth in Landlord’s Notice, or (y) the day the ROFO Space is delivered to the Tenant, broom clean, free of tenants or other occupants, and in the same condition in which the ROFO Space is now in, reasonable wear and tear excepted.

(1) If Term Commencement Date does not occur on the Estimated Commencement Date, Landlord shall, at Landlord’s sole cost, use reasonable efforts (which efforts shall include commencing and diligently prosecuting summary process proceedings) to recover possession of the ROFO Space from the existing occupants of the ROFO Space as soon as possible and to obtain any damages and hold over premiums (“Hold Over Premiums”) which has the right to obtain from such occupants. Landlord shall, within ten (10) days after it receives any Hold Over Premiums from such occupants, pay fifty percent (50%) of the net (i.e. net of reasonable attorney’s fees incurred by Landlord in obtaining such Hold Over Premiums) amount of such Hold Over Premiums to Tenant.

 

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(2) If the Term Commencement Date does not occur on or before the date four (4) months after the Estimated Commencement Date, Tenant shall have the right to cancel its exercise of its right to lease the ROFO Space by giving written notice to Landlord.

 

  ii. Rent Commencement Date . The Rent Commencement Date in respect of the ROFO Space shall be the date ninety (90) days after the Term Commencement Date in respect of the ROFO Space.

 

  iii. The Premises . As of the Commencement Date for the ROFO Space, the ROFO Space shall be deemed part of the Premises, and the Premises shall be deemed to consist of the entirety of the Building and the Land.

 

  iv. Pro Rata Share . As of the Rent Commencement Date for the ROFO Space, Tenant’s pro rata share of Operating Costs and Taxes shall be one hundred percent (100%).

 

  v. Tenant Improvement Allowance . Landlord shall not be obligated to provide a Tenant Improvement Allowance to Tenant in respect of its demise of the ROFO Space.

 

  vi. Rent . ROFO Space rent shall be. at the Fair Market Rent computed pursuant to Section 7 above and additional charges shall be the same per square foot amount as is then applicable pursuant to this Lease.

(G) Confirming Lease Amendmen . If requested by either party, Landlord and Tenant shall promptly confirm the following in a written amendment to the Lease;

 

  i. The Commencement Date for the ROFO Space;

 

  ii. The Rent Commencement Date for the ROFO Space;

 

  iii. The location and size of the ROFO Space that was leased by Tenant with an exhibit annexed showing that space crosshatched;

 

  iv. The new Annual Rent to be paid by Tenant; and

 

  v. Tenant’s increased pro rata share of operating costs and real estate taxes.

Section 9 – Taxes and Assessments . Landlord shall pay and discharge all real estate taxes and levies, and charges and governmental impositions, duties and charges of like kind and nature, which shall or may during the term of this Lease be charged, laid, levied or imposed upon or become a lien or liens upon the Building and the Property, subject to Tenant making the payments of Additional Rent as required in Section 4 above. Tenant shall pay all personal property taxes and other governmental impositions on its personal property and fixtures located at the Premises.

Section 10 – Quiet Enjoyment . Landlord shall put Tenant in possession of the Premises at the Term Commencement Date, and Tenant, so long as there is no default by Tenant, after the giving of any applicable notice and the expiration of any applicable grace periods, shall peaceably and quietly hold and enjoy the Premises without hindrance by anyone claiming by, or through, Landlord, or anyone claiming superior title to Landlord, subject to the terms of this Lease.

 

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Section 11 - Signs . Tenant may install exterior signage at the Tenant’s expense (subject to Landlord’s right to apply the Tenant Improvement Allowance towards such costs) with Landlord’s approval (which approval shall not be unreasonably withheld), and subject to the Landlord’s Building Signage standards and all municipal and state regulations. Except for the existing signage of Cascade Promotions (if any), no other exterior signage shall be permitted on the Property.

Section 12 - Repairs by Tenant.

(A) Tenant’s Obligations During Term and at End of Term. Except for those portions of the Premises which are required to be maintained by Landlord pursuant to Section 13, Tenant shall, at its own expense, be responsible for all maintenance and repairs to the Premises, including, without limitation, light bulbs, ballasts, the heating, ventilating and air conditioning systems, alarm system serving the Premises, and for all interior painting desired by Tenant and for the replacement of broken glass within the Premises (which includes the exterior windows). Tenant shall employ suitable contractors (approved by Landlord) to perform maintenance of said heating, ventilating and air conditioning systems, and alarm system. Tenant shall also promptly make any repairs lawfully required by any public authority as a result of changes in statutes or regulations which become effective subsequent to the beginning of the term of this Lease and which repairs are required because of the nature of the occupancy of the Premises by Tenant or the manner in which it conducts its business therein. At the expiration of this Lease or earlier termination hereof for any cause herein provided for, Tenant shall deliver up the Premises to Landlord broom clean and in the same sanitary and attractive condition and state of repair as at the Rent Commencement (as the same may be changed, from time to time, pursuant to the provisions of this Lease), reasonable wear and tear, taking by eminent domain and damage due to fire or other casualty, and damage caused the fault or neglect of Landlord, or Landlord’s agents, employees or contractors excepted.

Landlord makes no warranties or representations regarding indoor air quality or condition within the Premises to the extent related to Tenant’s installation of the HVAC system. Furthermore, Landlord shall have no responsibility regarding indoor air quality or condition (through rent offset by Tenant or otherwise), such responsibility being solely that of Tenant. Tenant has conducted or has had the opportunity to conduct all testing regarding indoor air quality and condition, and hereby releases Landlord for any claim therefore.

(B) Replacement of Systems Near End of Term. Tenant shall be under no obligation to replace any systems (including, without limitation, the HVAC system) serving the Premises during the three (3) years prior to the Termination Date (as extended in the event that Tenant exercises one or more of its extension options); however Tenant shall continue to be obligated to repair and maintain said systems in good working order until the Termination Date to the extent that it is possible to keep said systems in good working order without making replacing the systems or major components of such systems.

(C) Landlord’s Self-Help Rights. In the event Tenant fails to make promptly any repairs required of Tenant hereunder, or fails to perform any of its other obligations, Landlord may, at its option, if such failure continues for more than thirty (30) days after Landlord has

 

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provided notice to Tenant (except that no such prior notice shall be required in an emergency), make such repairs or perform such obligations to Tenant’s account and the reasonable cost thereof will become an obligation of Tenant under this Lease, payable within thirty (30) days of demand and any such amount shall bear interest at the Lease Interest Rate, as defined in Section 5, from the date of demand.

Section 13 - Landlord’s Maintenance .

(A) Landlord Obligations. Landlord shall, throughout the term of the Lease, maintain the structural portions of the Building (i.e. roof, foundations, exterior walls and windows, columns and beams), in good order, condition and repair, except to the extent that damage is caused by Tenant, Tenant’s agents, contractors or employees, subject to Section 26(C) below. In addition, subject to Section 21, Landlord shall maintain landscaping, parking and other paved areas, and common improvements (e.g. drainage, lighting, etc.) serving the Building in good order, condition, and repair. Landlord shall remove snow and ice from the parking and other all paved areas on the Land in accordance with the standards attached hereto as Exhibit L . Landlord shall keep the parking areas lit during night time hours. The parties acknowledge that it is their intention that pursuant to this Lease Tenant has responsibility for all non-structural maintenance and repair to the Premises. Except as expressly set forth in this Lease, Landlord has no obligation to provide any services to Tenant.

(B) Tenant Self-Help. In the event Landlord fails to make promptly any repairs required of Landlord hereunder, or fails to perform any of its other obligations, Tenant may, at its option, if such failure continues for more than thirty (30) days after Tenant has provided notice to Landlord (except that no prior notice shall be required in an emergency), make such repairs or perform such obligations to Landlord’s account and the cost thereof will become an obligation of Landlord under this Lease, payable within thirty (30) days of demand and any such amount shall bear interest at the Lease Interest Rate, as defined in Section 5, from the date of demand. If Landlord fails timely to pay any amounts due to Tenant pursuant to this Section 15 and Tenant obtains an arbitrator’s award that Landlord should have paid such amount, Tenant shall have the right to deduct such amounts from the next installments of Base Rent and other charges due from Tenant under the Lease.

(C) Landlord Fault .

(1) Rent Abatement . If the Premises, or any portion thereof, become untenantable by reason of Landlord Fault, as hereinafter defined, for a period of more than Abatement Period, as hereinafter defined, after Tenant gives Landlord written notice of such event, then Tenant’s obligation to Base Rent and other charges due under the Lease shall be equitably abated during such period of untenantability. The “Abatement Period” shall be defined as five (5) business days, except that to the extent that Landlord is delayed in curing such condition by reason of such force majeure, the Abatement Period shall be extended by such delay up to a maximum of ten (10) additional business days.

(2) Termination . If the Premises, or any portion thereof, become untenantable by reason of Landlord Fault for a period of more than Termination Period, as hereinafter defined, in the event of force majeure) after Tenant gives Landlord written notice of such event, then Tenant shall have the right to terminate this Lease upon written notice to Landlord. The “Termination Period” shall be defined as one hundred twenty (120) days, except that to the extent that

 

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Landlord is delayed in curing such condition by reason of such force majeure, the Termination Period shall be extended by such delay up to a maximum of sixty (60) additional business days.

(3) Landlord Fault . “Landlord Fault” shall be defined as: (i) any failure by Landlord to perform any maintenance or repairs which are required to be performed by Landlord hereunder, (ii) any breach by Landlord in its maintenance and repair obligations under this Lease, or (iii) the negligence or willful misconduct of Landlord, or Landlord’s agents, employees or contractors.

(4) The provisions of this Section 13(C) shall not apply in the event of untenantability caused by fire, other casualty or taking.

Section 14 - Alterations and Additions .

(A) Tenant’s Right to Make Alterations. Tenant shall not make alterations or additions to the Premises, without obtaining Landlord’s prior written consent. Notwithstanding the foregoing:

(i) All initial Tenant improvements are subject to Landlord’s prior written cons


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