LEASE OF WELLINGTON BUSINESS PARK

 

 

TABLE OF CONTENTS

 

	PAGE
ARTICLE I BASIC PROVISIONS	1
1.1   INTRODUCTION	1
1.2   BASIC DATA	1
1.3   ADDITIONAL DEFINITIONS	2
ARTICLE II PREMISES AND APPURTENANT RIGHTS	3
2.1   LEASE OF PREMISES	3
2.2   APPURTENANT RIGHTS AND RESERVATIONS	3
2.3   OPTION FOR ADDITIONAL PARKING	5
2.4   OPTION TO EXTEND	6
2.5   EXPANSION OPTION	7
2.6   RIGHT OF FIRST OFFER	8
2.7   STORAGE SPACE	8
ARTICLE III BASIC RENT	9
3.1   PAYMENT	9
ARTICLE IV COMMENCEMENT DATE AND CONDITION	10
4.1   COMMENCEMENT DATE	10
4.2   PREPARATION OF THE PREMISES	10
4.3   CONDITION; LANDLORD’S PERFORMANCE	12
4.4   TENANT’S DELAYS	12
ARTICLE V USE OF PREMISES	13
5.1   PERMITTED USE	13
5.2   INSTALLATIONS AND ALTERATIONS BY TENANT	14
5.3   HAZARDOUS MATERIALS	15
ARTICLE VI ASSIGNMENT AND SUBLETTING	16
6.1   PROHIBITION	16
6.2   EXCESS PAYMENTS	17
6.3   ACCEPTANCE OF RENT	18
6.4   ADDITIONAL REQUIREMENTS	18
ARTICLE VII RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD	18
7.1   LANDLORD REPAIRS	18
7.2   TENANT’S AGREEMENT	19
7.3   FLOOR LOAD—HEAVY MACHINERY	19
7.4   BUILDING SERVICES	20
7.5   ELECTRICITY	21
ARTICLE VIII REAL ESTATE TAXES	23
8.1   PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES	23
8.2   ABATEMENT	24
8.3   ALTERNATE TAXES	24
ARTICLE IX OPERATING EXPENSES	25
9.1   DEFINITIONS	25
9.2   TENANT’S PAYMENTS	25
ARTICLE X INDEMNITY AND PUBLIC LIABILITY INSURANCE	26
10.1   TENANT’S INDEMNITY	26
10.2   LANDLORD’S INDEMNITY	27
10.3   GENERAL LIABILITY INSURANCE	27
10.4   TENANT’S RISK AND PROPERTY DAMAGE INSURANCE	27
10.5   INJURY CAUSED BY THIRD PARTIES	27
10.6   CERTIFICATES OF INSURANCE	27
ARTICLE XI LANDLORD’S ACCESS TO PREMISES	28
11.1   LANDLORD’S RIGHTS	28

 

 

ARTICLE XII FIRE, EMINENT DOMAIN, ETC.	28
12.1   ABATEMENT OF RENT	28
12.2   LANDLORD’S RIGHT OF TERMINATION	28
12.3   RESTORATION	29
12.4   AWARD	29
ARTICLE XIII DEFAULT	29
13.1   TENANT’S DEFAULT	29
13.2   LANDLORD’S DEFAULT	33
ARTICLE XIV MISCELLANEOUS PROVISIONS	33
14.1   EXTRA HAZARDOUS USE	33
14.2   WAIVER	34
14.3   COVENANT OF QUIET ENJOYMENT	34
14.4   LANDLORD’S LIABILITY	34
14.5   NOTICE TO MORTGAGEE OR GROUND LESSOR	35
14.6   ASSIGNMENT OF RENTS AND TRANSFER OF TITLE	35
14.7   RULES AND REGULATIONS	36
14.8   ADDITIONAL CHARGES	36
14.9   INVALIDITY OF PARTICULAR PROVISIONS	36
14.10   PROVISIONS BINDING, ETC.	36
14.11   RECORDING	36
14.12   NOTICES	36
14.13   WHEN LEASE BECOMES BINDING	36
14.14   PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS	37
14.15   RIGHTS OF MORTGAGEE OR GROUND LESSOR	37
14.16   ESTOPPEL CERTIFICATE	37
14.17   INTENTIONALLY OMITTED	38
14.18   REMEDYING DEFAULTS	38
14.19   HOLDING OVER	38
14.20   WAIVER OF SUBROGATION	38
14.21   SURRENDER OF PREMISES	38
14.22   INTENTIONALLY OMITTED	39
14.23   BROKERAGE	39
14.24   GOVERNING LAW	39
14.25   BLINDS AND DRAPES	39

 

 

LEASE

 

THIS INSTRUMENT IS A LEASE, dated as of August 13, 2004, in which the Landlord and the Tenant are the parties hereinafter named, and which relates to space in the building (the “Building”) located at One Cabot Road, Medford, Massachusetts. The parties to this instrument hereby agree with each other as follows:

 

ARTICLE I

BASIC PROVISIONS

 

1.1   INTRODUCTION.   The following set forth basic data and, where appropriate, constitute definitions of the terms hereinafter listed.

 

1.2   BASIC DATA.

 

Landlord: Cabot Road Partners, LLC, a Delaware limited liability company.

 

Landlord’s Original Address:

c/o Berkeley Investments, Inc., 121 High Street, Boston, Massachusetts 02110

 

Tenant: The First Marblehead Corporation

 

Tenant’s Original Address:

The Prudential Tower 800 Boylston Street, 34th Floor Boston, MA 02199-8157

 

Guarantor: None

 

Basic Rent: The Basic Rent is as follows:

 

Rental Period		Annual Basic Rent			Monthly Payment
Months 1-9		$	0.00		$	0.00
Months 10-24		$	2,593,424.00		$	216,118.66
Months 25-36		$	2,661,672.00		$	221,806.00
Months 37-84		$	2,934,664.00		$	244,555.33

 

Premises: The entire second floor and a portion of the third floor of the Building as shown on Exhibit FP annexed hereto, subject to the provisions of Section 2.1 regarding the Third Floor Space (as defined in Section 2.4).

 

Premises Rentable Area: Agreed to be 136,496 rentable square feet.

 

Permitted Uses: General office use, call center use, data center use, and other uses incidental to the foregoing uses (including, without limitation, ancillary office kitchen/pantry use), but specifically excluding medical or dental offices, utility company offices, employment agencies (other than executive or professional search firms) and governmental or quasi-governmental offices.

 

Escalation Factor: .442, as computed in accordance with the Escalation Factor Computation.

 

Initial Term: Seven (7) years commencing on the Commencement Date and expiring at the close of the day immediately preceding the seventh anniversary of the Commencement Date, except that if the Commencement Date shall be other than the first day of a calendar month, the expiration of the Initial Term shall be at the close of the day on the last day of the calendar month in which such anniversary shall fall.

 

Base Operating Expenses: Operating Expenses for the calendar year ending December 31, 2005.

 

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Base Taxes: Taxes for the calendar year ending December 31, 2005, as the same may be reduced by the proportional amount of any abatement net of expenses applicable to any tax fiscal year included within the aforesaid calendar year. Landlord represents that, as of the date of this Lease, the Property constitutes a single tax lot.

 

Security Deposit: None

 

Broker: The Codman Company & GVA Thompson Doyle Hennessey & Everest

 

1.3   ADDITIONAL DEFINITIONS.

 

Agent: Berkeley Management, Inc. or such other person or entity from time to time designated by Landlord.

 

Bankruptcy Code: As defined in Section 13.1.

 

Building Rentable Area: 308,496 rentable square feet.

 

Business Days: All days except Saturday, Sunday, New Year’s Day, Martin Luther King’s Birthday, Presidents’ Day, Patriot’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day (and the following day when any such day occurs on Sunday or prior day if Saturday) and such other days that tenants occupying at least 50% of Building Rentable Area recognize as holidays for their general office staff.

 

Commencement Date: As defined in Section 4.1.

 

Default of Tenant: As defined in Section 13.1.

 

Environmental Condition: Any disposal, release or threat of release of Hazardous Materials on, from or about the Building or the Property or storage of Hazardous Materials on, from or about the Building or the Property.

 

Environmental Laws: Any federal, state and/or local statute, ordinance, bylaw, code, rule and/or regulation now or hereafter enacted, pertaining to any aspect of the environment or human health, including, without limitation, Chapter 21C, Chapter 21D, and Chapter 21E of the General Laws of Massachusetts and the regulations promulgated by the Massachusetts Department of Environmental Protection, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. , the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. , the Toxic Substances Control Act, 15 U.S.C. §2061 et seq. , the Federal Clean Water Act, 33 U.S.C. §1251, and the Federal Clean Air Act, 42 U.S.C. §7401 et seq .

 

Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2.

 

Escalation Factor Computation: Premises Rentable Area divided by Building Rentable Area.

 

Event of Bankruptcy: As defined in Section 13.1.

 

Hazardous Materials: Shall mean each and every element, compound, chemical mixture, contaminant, pollutant, material, waste or other substance which is defined, determined or identified as hazardous or toxic under any Environmental Law, including, without limitation, any “oil,” “hazardous material,” “hazardous waste,” “hazardous substance” or “chemical substance or mixture”, as the foregoing terms (in quotations) are defined in any Environmental Laws.

 

Initial Public Liability Insurance: $5,000,000 per occurrence (combined single limit) for property damage, bodily injury or death.

 

Land: The parcel of land upon which the Building and the related sidewalks and parking facilities are constructed, as shown on the site plan attached hereto and made a part hereof as Exhibit PP . If Landlord shall elect to construct another building on the Land, then the definition of Land hereunder

 

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shall exclude the property on which such building and the improvements related to such building are located.

 

Operating Expenses: As determined in accordance with Section 9.1.

 

Operating Year: As defined in Section 9.1.

 

Premises Usable Area: The carpetable area contained within the Premises.

 

Property: The Building and the Land.

 

Rent Commencement Date: The date that is nine months after the Commencement Date.

 

Scheduled Commencement Date: December 1, 2004.

 

Tax Year: As defined in Section 8.1.

 

Taxes: As determined in accordance with Section 8.1.

 

Tenant’s Plans: As defined in Section 4.2.

 

Tenant’s Removable Property: As defined in Section 5.2.

 

Term of this Lease: The Initial Term and any extension thereof in accordance with the provisions hereof.

 

ARTICLE II

PREMISES AND APPURTENANT RIGHTS

 

2.1   LEASE OF PREMISES.   Landlord hereby demises and leases to Tenant for the Term of this Lease and upon the terms and conditions hereinafter set forth, and Tenant hereby leases from Landlord, the Premises. Notwithstanding the foregoing, Tenant acknowledges that the portion of the Premises on the third floor (the “Third Floor Space”) is currently leased to a third party pursuant to a separate lease. It shall be a condition precedent to the occurrence of the Commencement Date of this Lease and to the parties’ respective obligations under this Lease that (a) Landlord and such tenant of the Third Floor Space enter into an agreement satisfactory to Landlord to terminate such lease, and (b) such tenant has surrendered and vacated the Third Floor Space, except for certain items of movable personal property that will not affect or delay Landlord’s Work in the Premises. If such condition precedent has not occurred on or before the date that is twenty (20) days after the date of this Lease, either Landlord or Tenant shall have the right to terminate this Lease by written notice to the other given within five (5) Business Days after the expiration of such twenty (20) day period.

 

2.2   APPURTENANT RIGHTS AND RESERVATIONS.

 

(a)            Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use, and permit its invitees to use, in common with others (i) public or common lobbies, hallways, stairways and elevators and common walkways necessary for access to the Building, and if the portion of the Premises on any floor includes less than the entire floor, the common toilets, corridors and elevator lobby on such floor, and (ii) the access roads, driveways, parking areas, loading areas, pedestrian sidewalks, landscaped areas, trash enclosures, recreation areas and other areas or facilities, if any, which are located in or on the Land and designated by Landlord from time to time for the non-exclusive use of tenants and other occupants of the Building (the areas described in clauses (i) and (ii) are hereinafter collectively referred to as the “Common Areas”); but such rights shall always be subject to reasonable rules and regulations from time to time established by Landlord pursuant to Section 14.7 and to the right of Landlord to designate and change from time to time areas and facilities so to be used, provided that such changes shall not unreasonably, adversely affect Tenant’s access to or use and occupancy of the Premises and shall not result in a permanent reduction in the number of elevators serving the Premises.

 

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(b)            Excepted and excluded from the Premises are the ceiling, floor, perimeter walls and exterior windows (except the inner surfaces of each thereof), and any space in the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other Building facilities, but the entry doors to the Premises are a part thereof. Landlord shall have the right to place in the Premises (but in such manner as to reduce to a minimum interference with Tenant’s use of the Premises and so as to require only a de minimus reduction in the Premises Usable Area) interior storm windows, sun control devices, and utility lines, equipment, stacks, pipes, conduits, ducts and the like. Tenant shall have the right, subject to the other terms and conditions of this Lease, including, without limitation, the provisions of Section 5.2, to place pipes, wires and other typical office infrastructure serving the Premises above the ceiling. In the event that Tenant shall install any hung ceilings or walls in the Premises, Tenant shall install and maintain, as Landlord may require, proper access panels therein to afford access to any facilities above the ceiling or within or behind the walls.

 

(c)            As of the Execution Date of this Lease, there are approximately 3.0 parking spaces in the parking areas designated for use by the tenants of the Building for every 1,000 square feet of Building Rentable Area. Tenant’s Share of such parking spaces shall equal 409 spaces, of which, 81 spaces shall be available in the garage on a non-exclusive, unreserved basis. Nothing contained in the Lease shall prohibit or otherwise restrict Landlord from changing from time to time, without notice to Tenant, the location, layout or type of such parking areas, provided that Landlord shall not reduce the total number of parking spaces available for Tenants’ use. Subject to reasonable rules from time to time made by Landlord of which Tenant is given notice, Tenant shall have the right, in common with all other tenants of the Building, to use such parking areas, without charge, on a first-come, first-served basis. Notwithstanding the foregoing, if, after the date of this Lease, Landlord shall reserve any parking spaces for any other tenant of the Building, including pursuant to an amendment to the existing lease for a tenant in possession as of the date of this Lease, then Landlord shall reserve for Tenant the number of parking spaces that is equal to, on a proportionate basis, to the number of parking spaces reserved for such other tenant, and such reserved spaces shall constitute part of Tenant’s 409 spaces; for illustration purposes, if Landlord gives to a tenant 4 reserved parking spaces, and such reserved parking spaces constitute ten percent (10%) of the parking spaces allocable to the tenant under its lease, then Landlord shall give to Tenant 41 reserved parking spaces. In addition, Landlord shall maintain a sticker system, or other similar program selected by Landlord in its sole discretion, in order to restrict the use of the parking areas of the Property by authorized vehicles only. As part of any such system, Landlord shall use reasonable efforts to make sure unauthorized vehicles are not using the parking areas.

 

(d)            So long as the Building is at least seventy-five percent (75%) occupied, Landlord agrees to operate a fitness center in the Building (the “Fitness Center”) in accordance with the provisions of this Section 2.2(d). Tenant and Tenant’s employees and invitees shall have the right to use the Fitness Center, subject to Landlord’s right to change from time to time the type and location of the Fitness Center and, if at any time the Building is less than seventy-five percent (75%) occupied, to cease operation of the Fitness Center. The use of the Fitness Center by Tenant and its employees and invitees shall be at the sole risk of Tenant and/or such employees and invitees, and Landlord shall have no risk or obligation therefor. As an ongoing condition to Tenant’s right to use the Fitness Center, Tenant covenants with Landlord to maintain at all times a list of persons who are using, or who have requested permission to use, the Fitness Center, and to keep on file for Landlord’s inspection a duly executed and witnessed release and indemnification agreement from each such person, in such form as Landlord may from time to time approve or require. Access to the Fitness Center shall be controlled by key card security.

 

(e)            So long as the Building is at least seventy-five percent (75%) occupied, Landlord agrees to operate a cafeteria in the Building (the “Cafeteria”) in accordance with the provisions of this Section 2.2(e). Tenant and Tenant’s employees and invitees shall have the right to use the Cafeteria,

 

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subject to Landlord’s right to change from time to time the type and location of the Cafeteria and, if at any time the Building is less than seventy-five percent (75%) occupied, to cease operation of the Cafeteria. Landlord agrees to cause the Cafeteria and to cause the operator to operate, manage and maintain the Cafeteria in a condition in keeping with other cafeterias in similar first-class buildings in the Medford/Charlestown area.

 

2.3   OPTION FOR ADDITIONAL PARKING.   Notwithstanding anything to the contrary contained in the Lease, provided that (a) this Lease is then in full force and effect, (b) no Default of Tenant shall have occurred that remains uncured, and (c) the originally-named Tenant, The First Marblehead Corporation, or any successor entity for which Landlord’s consent is not required under Section 6.1(b) below, is then occupying at least eighty-five percent (85%) of the Premises for the Permitted Use, upon written notice from Tenant to Landlord, Landlord hereby consents to Tenant undertaking to construct or cause to be constructed additional parking spaces on the Property in the location set forth in Exhibit AP attached hereto (the “Additional Parking”), for use by Tenant’s employees, subject to the terms and conditions of this Section 2.3, and subject to the rights previously given to another tenant in the Building to build an additional 70 spaces in such location.

 

Tenant acknowledges that Landlord has made no representations or warranties regarding the feasibility of, or requirements for, the use of the Property for the Additional Parking, for all of which Tenant hereby assumes sole responsibility. Tenant shall, at Tenant’s sole cost and expense, obtain all required waivers, permits and approvals of applicable governmental entities and other third parties prior to commencing any such construction and shall provide copies thereof to Landlord. Tenant shall consult with Landlord and keep Landlord informed concerning the process of obtaining any required waivers, permits and approvals and Landlord shall have the right to participate with Tenant in such process. Tenant’s construction of the Additional Parking shall be subject to all of the applicable terms and conditions of this Lease regarding alterations, including, without limitation, the applicable provisions of Section 5.2 and Exhibits TW and IR. Without limiting the generality of the foregoing, Tenant shall submit all plans for construction to Landlord for its approval, and shall perform the construction using a contractor first approved by Landlord. Tenant shall perform such construction subject to and in accordance all applicable laws, codes, rules, regulations, permits and approvals, including, without limitation any Environmental Laws. Landlord’s approval of Tenant’s plans and Tenant’s general contractor shall not impose upon Landlord any responsibility or liability whatsoever to Tenant, including, without limitation, as a result of, or arising out of, the defaults or other acts or omissions of the general contractor.

 

After construction of the Additional Parking, Tenant shall be solely responsible, at Tenant’s sole cost and expense, to maintain and repair the Additional Parking, in good order condition and repair, including, without limitation, any necessary snow removal. If Landlord shall request by written notice to Tenant at the time that Landlord approves the plans for such Additional Parking, Tenant shall promptly, and in all cases prior to the expiration of such Term, remove the improvements constituting the Additional Parking and restore such portion of the Property to the condition existing immediately prior to the construction thereof, at Tenant’s sole cost and expense.

 

If at any time during the Term, Landlord intends to develop the portion of the Property on which Tenant has the right to construct the Additional Parking, Landlord may deliver a written notice to Tenant in which Landlord either (a) requires that Tenant remove the then existing improvements to the Property that constitute the Additional Parking, at Tenant’s sole cost and expense, within ninety (90) days after the date of such notice, or (b) informs Tenant that, if it has not yet constructed the Additional Parking, Tenant shall have no further right to construct the Additional Parking. If Tenant has previously constructed the Additional Parking, Tenant shall cause such improvements to be removed within such ninety day period.

 

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both, request such appointment by the American Arbitration Association, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. In such event, the third arbitrator shall conduct its own independent investigation of the applicable Fair Market Rental Value within fifteen (15) days of his/her appointment; neither Landlord’s arbitrator nor Tenant’s arbitrator shall notify the third arbitrator of its determination. After the third arbitrator has completed its determination, the third arbitrator shall notify Landlord and Tenant of the date on which said arbitrator will discloses its determination, which date shall be at least five (5) days after the giving of such notice. Such disclosure shall take place in Landlord’s office unless otherwise mutually agreed by the parties. In such case, the Fair Market Rental Value shall be the rent proposed by either Landlord’s arbitrator or Tenant’s arbitrator, whichever value is closer to the determination of the third arbitrator; if the two are equidistant from the third arbitrator, the Fair Market Rental Value shall be equal to the third arbitrator’s determination. All arbitrators shall be appraisers or other qualified real estate professionals who are independent from the parties who have had at least ten (10) years commercial real estate experience in the greater Boston area. Each party shall pay the fees of its own arbitrator, and the fees of the third arbitrator shall be shared equally by the parties.

 

2.5   EXPANSION OPTION.

 

(a)            Subject to the terms and conditions of this Section 2.5 and subject to the pre-existing rights of Transystems, Inc., as shown on Exhibit FO , Tenant shall have the right to expand the Premises to include 16,640 rentable square feet of space on the first floor of the Building, in the location shown on Exhibit FP-1 (“Expansion Premises”), provided and on condition that (i) this Lease is in full force and effect, (ii) no Default of Tenant shall have occurred and be continuing (either at the time of exercise or at upon the Expansion Premises Commencement Date), (iii) Tenant shall not have assigned this Lease or vacated or sublet more than 20,000 rentable square feet in the Premises, other than in connection with a transfer for which Landlord’s consent is not required under Article VI (any of which conditions described in clauses (i), (ii), and (iii) may be waived by Landlord at any time in Landlord’s sole discretion). If Tenant shall give Landlord written notice no later than the date that is twelve months after the date of this Lease electing to so expand the Premises, then Landlord shall deliver possession of the Expansion Premises to Tenant on the Expansion Premises Commencement Date (as defined below). If Tenant shall fail to timely deliver such notice electing to so expand the Premises, Tenant shall be deemed to have waived such right, and Landlord shall thereafter be free to lease all or any portion of the Expansion Premises to such parties and on such terms as Landlord shall determine in its sole discretion, subject to the provisions of Section 2.6 below.

 

(b)            Promptly after the date of Tenant’s notice, Landlord shall commence and use commercially reasonable efforts to perform certain improvements to the Expansion Premises in order to fit out the space in accordance with a Building standard level of finish consistent with the level of finish for Landlord’s Work in the remainder of the Premises, and a ratio of twenty percent (20%) office space to eighty percent (80%) open space. Such work shall be performed in accordance with and subject to the requirements for Plans, timing of Landlord’s Work, Tenant Delay, punchlist, warranty, and other requirements applicable to the initial Premises set forth in Article IV below. The date that Landlord has substantially completed such work and delivered the Expansion Premises to Tenant is hereinafter referred to as the “Expansion Premises Commencement Date”. Landlord shall use commercially reasonable efforts to deliver the Expansion Premises to Tenant on or before the date that is five (5) months after the date of Tenant’s notice. As of the Expansion Premises Commencement Date, the Premises under this Lease shall be expanded to include the Expansion Premises. Once incorporated into the Premises, Tenant’s rights and obligations with respect to the Expansion Premises shall be subject to and with the benefit of all of the terms and conditions of this Lease, except that: (i) the Basic Rent per square foot applicable to the Expansion Premises shall equal the Basic Rent per square foot for the remainder of the Premises; (ii) the Term of the Lease with respect to the Expansion Premises shall be coterminous with the remainder of the Premises; (iii) Tenant shall commence

 

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payment of such additional amount of Basic Rent with respect to the First Expansion Premises on the Expansion Premises Commencement Date; and (iv) the Escalation Factor shall be revised to reflect the addition of the Expansion Premises to the Premises in accordance with the Escalation Factor Computation. Promptly after the Expansion Premises Commencement Date, Landlord and Tenant agree to enter into an amendment to this Lease memorializing the addition of the Expansion Premises to this Lease and the amendment to the applicable defined terms hereunder, including, without limitation, Premises, Basic Rent, Term and Escalation Factor, but failure of the parties to execute such an amendment shall have no effect on the expansion of the Premises to include the Expansion Premises, and the economic terms associated therewith, as set forth above.

 

2.6   RIGHT OF FIRST OFFER.

 

(a)            Subject to the terms and conditions of this Section 2.6 and subject to the pre-existing rights of the tenants or other occupants of the Building set forth in Exhibit FO , Tenant shall have a “Right of First Offer” to lease any office space that is available for lease to third parties in the Building during the Term of this Lease (the “First Offer Space”), including, without limitation, office space leased to a third party after Tenant has elected not to exercise, and/or has failed to exercise, whichever the case may be, such rights under this Section 2.6 with respect to said space, provided and on condition that (i) this Lease is in full force and effect, (ii) no Default of Tenant shall have occurred and be continuing (either at the time of exercise or upon the commencement date of the Term for the First Offer Space), (iii) Tenant shall not have assigned this Lease or vacated or sublet more than 20,000 rentable square feet in the Premises, other than in connection with a transfer for which Landlord’s consent is not required under Article VI (any of which conditions described in clauses (i), (ii), and (iii) may be waived by Landlord at any time in Landlord’s sole discretion).

 

(b)            Landlord will notify Tenant of its plans to lease any portion of the First Offer Space to any unrelated third party. Landlord’s notice shall specify the square footage of the space and its location, the date of availability, the term of the lease for such space, the Basic Rent for such space, and all other material terms and conditions which will apply to such space. Notwithstanding the foregoing, if Landlord shall offer such space to Tenant during the first twelve months after the Commencement Date, such First Offer Space shall be upon the same terms and conditions as set forth for the Expansion Premises under Section 2.5 above. Tenant will notify Landlord within ten (10) Business Days of Landlord’s notice if Tenant wishes to lease such First Offer Space from Landlord on the terms and conditions so specified and otherwise on substantially the same terms and conditions as contained in this Lease. If Tenant notifies Landlord that it wishes to lease the First Offer Space, Landlord and Tenant shall execute a lease agreement or amendment to this Lease within ten (10) Business Days incorporating substantially such terms and conditions. If Tenant fails to notify Landlord within said seven day period that Tenant intends to lease such First Offer Space or fails to execute a lease agreement for such First Offer Space within ten (10) Business Days of Tenant’s notice of intent to Landlord, Landlord shall be entitled to lease such space to any third party on terms and conditions acceptable to Landlord in its sole discretion. Notwithstanding the foregoing, if Tenant shall not exercise its Right of First Offer and Landlord intends to lease the First Offer Space for a net effective rent (taking into consideration any difference in the improvements allowance or other economic concessions offered to such third party but not to Tenant) that is less than ninety percent (90%) of the net effective rent contained in Landlord’s notice to Tenant, prior to leasing such First Offer Space to any unrelated third party, Landlord shall again offer the First Offer Space to Tenant, at such revised terms and conditions offered to such third party, and Tenant shall again have a Right of First Offer pursuant to this Section 2.6.

 

2.7   STORAGE SPACE.

 

(a)            Landlord shall lease to Tenant and Tenant shall accept from Landlord certain storage space consisting of approximately 1,000 rentable square feet on the garage level of the Building (the “Storage

 

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Area”), located as shown on Exhibit FP-2, attached hereto and made a part hereof. The Storage Area shall be used by Tenant solely for storage purposes as an ancillary use in connection with Tenant’s use of the Premises. The Storage Area shall be held by Tenant commencing on the Commencement Date and continuing thereafter throughout the Term of this Lease, subject to this Section 2.7. There shall be no additional charges due in respect of Tenant’s use of the Storage Space.

 

(b)            During the term of this Lease, the Storage Area shall be occupied by Tenant in accordance with and subject to all of the terms and conditions of this Lease. Without limiting the generality of the foregoing (i) Tenant shall extend the coverage of the insurance provided for by Article X of this Lease to the Storage Area; (ii) Tenant shall maintain the Storage Area and repair any damage to the Storage Area caused by Tenant, its agents, contractors or employees; (iii) Landlord shall retain access to the Storage Area and shall be entitled to enter the Storage Area in accordance with the terms and conditions of Article XI; and (iv) upon expiration or earlier termination of this Lease, Tenant shall quit and surrender the same to Landlord, broom clean, and with any damage due to Tenant’s use thereof repaired. Landlord may require Tenant at its own expense to secure the Storage Area, but Tenant shall make no other changes to the Storage Area without Landlord’s prior written approval. Tenant agrees that it is accepting the Storage Area in “as is” condition without representation or warranty by Landlord.

 

ARTICLE III

BASIC RENT

 

3.1   PAYMENT.

 

(a)            Tenant agrees to pay to Landlord, or as directed by Landlord, commencing on the Rent Commencement Date without offset, abatement (except as expressly provided in this Lease), deduction or demand, the Basic Rent. In addition, within ten (10) days after receipt of written notice from Landlord, which notice shall be given no earlier than the date that is three (3) months prior to the Rent Commencement Date, Tenant shall deposit with Landlord the sum of $216,118.66 as a deposit of the first month’s Basic Rent which shall be applied by Landlord on behalf of the Tenant to the payment of the first month’s Basic Rent when due and payable. Such Basic Rent shall be payable in equal monthly installments, in advance, on the first day of each and every calendar month (except as hereinabove provided) during the Term of this Lease, at the following address: Cabot Road Partners, L.L.C., P. O. Box 31367, Hartford, Connecticut 06150-1367, or at such other place as Landlord shall from time to time designate by notice, by check drawn on a bank which is a member of the Boston or New York Clearing House. Until notice of some other designation is given, Basic Rent and all other charges for which provision is herein made shall be paid by remittance payable to the Agent, and all remittances so received as aforesaid, or by any subsequently designated recipient, shall be treated as a payment to Landlord. Landlord and Tenant agree that all amounts due from Tenant under or in respect of this Lease, whether labeled Basic Rent, Escalation Charges, additional charges or otherwise, shall be considered as rental reserved under this Lease for all purposes, including without limitation regulations promulgated pursuant to the Bankruptcy Code, and including further without limitation Section 502(b) thereof.

 

(b)            Basic Rent for any partial month shall be pro-rated on a daily basis, and if Basic Rent commences on a day other than the first day of a calendar month, the first payment which Tenant shall make to Landlord shall be payable on the date Basic Rent commences and shall be equal to a proportionate part of the monthly installment of Basic Rent for the partial month in which Basic Rent commences plus the installment of Basic Rent for the succeeding calendar month. Rental and any other sums due hereunder not paid within five (5) Business Days after the date due more than once in any twelve month period shall bear interest for each month or fraction thereof from the due date until paid computed at the annual rate of three percentage points over the so-called prime rate then currently from time to time charged to its most favored corporate customers by Bank of America or its successors, or at any applicable lesser maximum legally permissible rate for debts of this nature.

 

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ARTICLE IV

COMMENCEMENT DATE AND CONDITION

 

4.1   COMMENCEMENT DATE.   The “Commencement Date” shall be the last to occur of:

 

(a)    the day following the Substantial Completion Date, as defined in Section 4.2, or

 

(b)    the Scheduled Commencement Date set forth in Section 1.3 hereof.

 

Notwithstanding the foregoing, if Tenant’s personnel shall occupy all or any part of the Premises for the conduct of its business (as opposed to entry to prepare the same for occupancy) prior to the Commencement Date as determined pursuant to the preceding sentence, except any such entry for the purpose of setting up and operating a data center at the Premises, such date of occupancy shall, for all purposes of this Lease, be the Commencement Date. Promptly upon the occurrence of the Commencement Date, Landlord and Tenant shall execute and deliver a letter designating the Commencement Date, but the failure by either party to execute and deliver such a letter shall have no effect on the Commencement Date, as hereinabove determined. Landlord shall permit Tenant reasonable access to the Premises prior to the Commencement Date so that Tenant may install furniture, equipment, cabling and fixtures, and operate a data center (the “Data Center”) in the Premises, and perform such other actions as Tenant deems desirable to prepare for occupancy of the Premises on the Commencement Date. Any such access shall be subject to and upon all of the terms and conditions of this Lease other than the payment of Basic Rent and Escalation Charges.

 

4.2   PREPARATION OF THE PREMISES.

 

(a)

 

(i)             Within ten (10) Business Days after Tenant has given to Landlord sufficient information concerning (A) telephone/data wiring and cabling to workstations, (B) program information for power/data, and (C) systems tie-in information from the Cavan Group, Landlord shall cause the construction drawings for the improvements to the portion of the Premises that will constitute the Data Center (the “Data Center Plans”) to be prepared in accordance with the space plan and work specifications attached hereto and made a part hereof as Exhibit SP-1 (the “Data Center Space Plan”), and in compliance with all applicable laws, regulations and ordinances, including without limitation the Americans With Disabilities Act of 1990. The Data Center Plans shall be submitted to Tenant within said ten (10) Business Day period for its approval, which shall not be unreasonably withheld. Tenant shall notify Landlord of its approval or disapproval of the Data Center Plans within five (5) Business Days after receipt thereof. Any disapproval shall be accompanied by a specific statement of the reasons therefor. Within ten (10) Business Days after receipt of Tenant’s disapproval, Landlord shall revise the Data Center Plans and resubmit them to Tenant, which shall have three (3) Business Days after receipt of the resubmission to review and respond thereto.

 

(ii)            Within thirty (30) days after Tenant has given to Landlord sufficient information concerning (A) telephone/data wiring and cabling to workstations, (B) program information for power/data, and (C) systems tie-in information from the Cavan Group, Landlord shall cause the construction drawings for the interior finish and other tenant improvements to the Premises (the “Premises Plans”) to be prepared in accordance with Building standard tenant finish as described in Exhibit BS , the space and work specifications attached hereto and made a part hereof as Exhibit SP-2 (the “Premises Space Plan”), and in compliance with all applicable laws, regulations and ordinances, including without limitation the Americans With Disabilities Act of 1990. The Premises Plans shall be submitted to Tenant within said thirty (30) day period for its approval, which shall not be unreasonably withheld. Tenant shall notify Landlord of its approval or disapproval of the Premises Plans within five (5) Business Days after receipt thereof. Any disapproval shall be accompanied by a specific statement of the reasons therefor. Within ten (10) Business Days after

 

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receipt of Tenant’s disapproval, Landlord shall revise the Premises Plans and resubmit them to Tenant, which shall have three (3) Business Days after receipt of the resubmission to review and respond thereto.

 

(iii)           The final approved Premises Plans and Data Center Plans hereunder shall be referred to collectively as the “Approved Plans.” Landlord shall be responsible for the architect’s fees in connection with the preparation of the Data Center Space Plan and the Premises Space Plan up to an amount equal to $13,649.60. In addition, Landlord shall be solely responsible for the architect’s fees in connection with the preparation of the Approved Plans.

 

(b)            Promptly after approval of the Approved Plans, Landlord shall obtain all necessary permits and approvals and commence and exercise all reasonable efforts to complete the work described in the Approved Plans (“Landlord’s Work”). Landlord’s Work shall be performed at Landlord’s sole cost and expense, subject to the provisions of paragraph (c) below. Landlord agrees to complete Landlord’s Work in a good and workmanlike manner and in compliance with all applicable laws, regulations and ordinances, including without limitation the Americans With Disabilities Act of 1990. Landlord agrees to use reasonable efforts to substantially complete the portion of Landlord’s Work as set forth in the Data Center Plans on or before the date (the “Scheduled Data Center Completion Date”) that is forty-five (45) days after the Data Center Plans have been approved and Landlord has obtained all applicable permits and approvals required to perform such work, subject to Tenant Delay and Force Majeure. Landlord agrees to use reasonable efforts to substantially complete the remainder of Landlord’s Work by the Scheduled Commencement Date subject to Tenant Delay and Force Majeure. If Landlord has not substantially completed the portion of Landlord’s Work for the Data Center on or before the Scheduled Data Center Completion Date, except as a result of Force Majeure or Tenant Delay, Tenant shall be entitled to an abatement of one (1) day of Basic Rent (but not Additional Rent or other charges) applicable to the Data Center for every one (1) day delay in the occurrence of the substantial completion of such portion of Landlord’s Work after the Scheduled Data Center Completion Date. If Landlord has not substantially completed the remainder of Landlord’s Work on or before February 1, 2005, except as a result of Force Majeure or Tenant Delay, Tenant shall be entitled to an abatement of one (1) day of Basic Rent (but not Additional Rent or other charges) applicable to the entire Premises for every one (1) day delay in the occurrence of the substantial completion of the remainder of Landlord’s Work after February 1, 2005. If Landlord has not substantially completed Landlord’s Work as of April 1, 2005, subject to Force Majeure and Tenant Delay, Tenant shall have the right to terminate this Lease by written notice to Landlord given on or before April 10, 2005. The foregoing rights in the event of a delay in the substantial completion of Landlord’s Work shall be Tenant’s sole and exclusive remedies for such delay.

 

(c)            The term “Change Order” as used in this Lease shall mean any change to the approved Plans requested by Tenant and Approved by Landlord, which shall not be unreasonably withheld, conditioned or delayed. Within five (5) Business Days after receipt by Landlord of a Change Order request, Landlord shall provide to Tenant a notice of the estimated adjustment, if any, in the cost of Landlord’s Work and the estimated delay, if any, in the substantial completion of Landlord’s Work beyond the scheduled Substantial Completion Date (as the same may have been previously modified by a prior Change Order) resulting from the Change Order. Within three (3) Business Days after receipt of Landlord’s notice, Tenant shall have the option to cancel the Change Order in writing to the Landlord within said three (3) Business Day period. The estimated adjustment in the cost of Landlord’s Work shall be determined by (i) adding the architectural and engineering fees (if any) associated with reviewing and revising the Plans in connection with the Change Order, the cost of the materials and labor attributable to the Change Order, the contractor’s overhead and profit attributable to the work described in the Change Order (which shall be calculated at the same rate used in the construction contract for Landlord’s Work), the increased costs (if any) of various trade contractors due to delay in completing Landlord’s Work, and the costs (if any) associated with the cancellation of materials already

 

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ordered, and (ii) subtracting from such costs the cost of materials and labor attributable to the work (if any) not being done, the contractor’s overhead and profit on the such materials and labor, the cost of the cancelled materials, and the cost of any other savings attributable to the Change Order. In the event there is a net increase in the cost of Landlord’s Work as a result of the Change Order, then Tenant shall pay to Landlord the amount of the net increase (less the amount of any retainage contained in Landlord’s construction contract) in two (2) equal installments, the first of which shall be paid within twenty (20) days after Tenant shall have approved the Change Order and the second of which shall be paid within thirty (30) days after the work described on the Change Order has been substantially completed; Tenant agrees to pay the retainage to Landlord simultaneously with the payment of the 2nd installment.

 

(d)            The Premises shall be deemed ready for occupancy on the first day on which (i) Landlord’s Work has been completed, except for minor items of work (and, if applicable, adjustment of equipment and fixtures) which can be completed after occupancy has been taken without causing unreasonable interference with Tenant’s use and enjoyment of the Premises (i.e. so-called “punchlist” items), (ii) the Building systems serving the Premises are in good working order and otherwise in the condition required to be maintained by Landlord under this Lease, and (iii) Landlord has obtained a permanent certificate of occupancy for the Premises permitting Tenant to use the Premises for the Permitted Use. Such date is hereinafter called the “Substantial Completion Date.” Within five (5) Business Days after the occurrence of the Substantial Completion Date, Landlord and Tenant shall inspect the Premises and shall prepare a punchlist of remaining items to be completed. Landlord shall complete all punchlist items as soon as conditions permit, and in all events within sixty (60) days, and Tenant shall afford Landlord access to the Premises for such purposes.

 

4.3   CONDITION; LANDLORD’S PERFORMANCE.   In addition to the punchlist described in Section 4.2(d), Tenant shall have the right to give Landlord a notice, not later than twelve (12) calendar months after the Commencement Date, of (i) any respects in which Landlord has not performed Landlord’s Work fully, properly and in accordance with the terms of this Lease, or (ii) any respects in which Landlord’s Work is not in good working order and condition, or (iii) any defects in workmanship and materials in Landlord’s Work. Except as identified in any such notice from Tenant to Landlord, Tenant shall have no right to make any claim that Landlord has failed to perform any of Landlord’s Work fully, properly and in accordance with the terms of this Lease or to require Landlord to perform any further Landlord’s Work. Landlord shall complete, repair and/or replace such items as soon as conditions permit, and in all events within sixty (60) days after written notice from Tenant and Tenant shall afford Landlord access to the Premises for such purposes. Except for Landlord’s Work, the Premises are being leased in their present condition, and except as set forth in the immediately preceding sentence, are being leased AS IS, WITHOUT REPRESENTATION OR WARRANTY by Landlord.

 

4.4   TENANT’S DELAYS.   The delays referred to in paragraph (a) are herein referred to collectively and individually as “ Tenant’s Delay ”:

 

(a)            If a delay shall occur in the Substantial Completion Date beyond the Scheduled Commencement Date as the result of:

 

(i)             any delay by Tenant in approving the Data Center Plans and/or the Premises Plans beyond the periods set forth in Section 4.2 above; or

 

(ii)            any request by Tenant that Landlord delay the commencement or completion of Landlord’s Work for any reason; or

 

(iii)           any reasonably necessary displacement of any of Landlord’s Work from its place in Landlord’s construction schedule resulting from any of the causes for delay referred to in this paragraph (a) and the fitting of such Landlord’s Work back into such schedule; and

 

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if Landlord shall notify Tenant of such delay within two (2) days of the commencement of such delay (which notice shall include the estimated duration of such delay), then such delay shall constitute a Tenant Delay; provided, however, if Landlord fails to give Tenant notice of a delay within said two (2) day period, then such delay shall not constitute a Tenant Delay for the purposes of this Lease. The parties agree that the Substantial Completion Date shall be deemed accelerated by the actual number of days of delay attributable to Tenant Delays.

 

(b)            In addition, if Landlord notifies Tenant in a Change Order of an estimated delay in the substantial completion of Landlord’s Work beyond the scheduled Substantial Completion Date due to the work described in said Change Order, and if a delay actually occurs, then such delay shall constitute a Tenant Delay and the Substantial Completion Date shall be deemed accelerated by the actual number of days of delay attributable to such Change Order.

 

ARTICLE V

USE OF PREMISES

 

5.1   PERMITTED USE.

 

(a)            Tenant agrees that the Premises shall be used and occupied by Tenant only for Permitted Uses and for no other purpose.

 

(b)            Tenant agrees to conform to the following provisions during the Term of this Lease:

 

(i)             Service and utility areas (whether or not a part of the premises) shall be used only for the particular purpose for which they were designed. Subject to the other terms and provisions of this Lease, Tenant may install at its own cost and expense so-called hot-cold water fountains, coffee makers, microwaves and so-called Dwyer refrigerator-sink-stove combinations for the preparation of beverages and foods, provided that no cooking, frying, etc., are carried on in the Premises which require special exhaust venting. Tenant hereby acknowledges that the Building is not engineered to provide any such special venting.

 

(ii)            Tenant shall cause all freight to be delivered to or removed from the Building and the Premises in accordance with reasonable rules and regulations established by Landlord in accordance with Section 14.7;

 

(iii)           Tenant will not place on the exterior of the Premises (including both interior and exterior surfaces of doors and interior surfaces of windows) or on any part of the Building outside the Premises, any signs, symbol, advertisement or the like, except as provided in this clause (iii). Landlord shall not unreasonably withhold or delay its consent with respect to the installation of signs or lettering on the entry doors to the Premises provided such signs conform to then Building standards adopted by Landlord in its sole discretion; Tenant shall submit to Landlord a plan or sketch of the sign (including size, color, material, location and method of affixation) to be placed on or at such entry doors in connection with Tenant’s request for Landlord’s consent. Landlord shall pay for the cost of any Building-standard suite entry signage selected by Tenant, and Tenant shall pay for any additional costs and expenses with respect to any above Building-standard signage selected by Tenant and approved by Landlord as aforesaid. Landlord agrees to maintain a tenant directory in the lobby of the Building in which will be placed Tenant’s name and the location of the Premises in the Building, and a directory on each floor with the names of up to five of Tenant’s departments.

 

In addition, subject to the approval of applicable governmental authorities, Landlord hereby consents to the installation of Tenant’s sign on the exterior of the east side of the Building, as conceptually depicted and in the location specified on Exhibit ES , which shall be purchased and installed at Tenant’s sole cost and expense. Upon the expiration or earlier termination of this Lease, Tenant shall remove the sign (but not the supports) from the exterior of the Building,

 

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remove the supports for such Building sign (unless other directed by Landlord), repair any damage to the Building’s exterior caused by such removal, and restore the exterior of the Building to the condition existing prior to the placement of such sign and support on the Building, reasonable wear and tear and damage by fire or other casualty excepted.

 

Landlord hereby agrees further to place Tenant’s name on the monument sign at the entrance to the Building, which signage shall be consistent with the Building standard graphics and lettering for the monument sign;

 

(iv)           Notwithstanding any provision of this Lease, Tenant shall not use, or suffer or permit the use or occupancy of, or suffer or permit anything to be done in or anything to be brought into or kept in or about the Premises of the Building or any part thereof (including, without limitation, any materials appliances or equipment used in the construction or other preparation of the Premises and furniture and carpeting): (a) for any unlawful purposes or in any unlawful manner; (b) which, in the reasonable judgment of Landlord shall in any way materially impair, interfere with or otherwise diminish the quality of any of the Building services or the proper and economic heating, cleaning, ventilating, air conditioning or other servicing of the Building, or Premises, or with the use or occupancy of any of the other areas of the Building, which is consistent with the maintenance of the Building as an office building of the first class in the quality of its maintenance, use, or occupancy;

 

(v)            Tenant shall not perform any act or carry on any practice which may injure the Premises, or any other part of the Building, or cause any offensive odors or loud noise or constitute a nuisance or a menace to, or otherwise interfere with the business of, any other tenant or tenants or other persons in the Building;

 

(vi)           Tenant shall comply with the requirements of all applicable governmental laws, rules and regulations, including without limitation the Americans With Disabilities Act of 1990, to the extent such compliance is required as a result of the specific manner in which Tenant is using the Premises, Tenant’s layout of the Premises, or any alterations or improvements performed by Tenant subsequent to the completion of Landlord’s Work; and

 

(vii)          If any governmental license or permit shall be required for the proper and lawful conduct of Tenant’s business, and if the failure to secure such licenses or permit would in any way affect Landlord, the Premises, the Building or Tenant’s ability to perform any of its obligations under this Lease, Tenant, at Tenant’s expense, shall duly procure and thereafter maintain such license and, upon request by Landlord, submit the same to inspection by Landlord. Tenant, at Tenant’s expense, shall at all times comply with the terms and conditions of each such license or permit. Tenant shall furnish all data and information to governmental authorities and Landlord as required in accordance with legal, regulatory, licensing or other similar requirements as they relate to Tenant’s use or occupancy of the Premises or the Building.

 

(c)            Landlord shall comply with the requirements of all applicable governmental laws, rules and regulations, including without limitation the Americans With Disabilities Act of 1990, applicable to the Building and, to the extent Tenant is not obligated to comply therewith under clause (vi) of Section 5.1(b), to the Premises; provided, however, Landlord’s failure to comply with such laws, rules and regulations with respect to any portion of the Property outside the Premises shall not constitute a default under Section 13.2 unless (i) such failure unreasonably interferes with Tenant’s access to the Premises or with Tenant’s use and enjoyment of the Premises and/or the Common Areas or (ii) Tenant may be subject to a fine, penalty or enforcement action as a result of such failure.

 

5.2   INSTALLATIONS AND ALTERATIONS BY TENANT.

 

(a)            Except as expressly provided herein, Tenant shall make no alterations, additions (including, for the purposes hereof, wall-to-wall carpeting), or improvements in or to the Premises (including any

 

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initial improvements necessary for Tenant’s occupancy) without Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed with respect to non-structural alterations that do not adversely affect any of the Building systems. Landlord’s consent shall not be required for (i) any purely cosmetic alteration that does not affect any Building system, and (ii) any non-structural alteration that does not affect any Building system and costs less than $50,000 in any one instance. Any alterations, additions or improvements for which Landlord’s consent is required shall (i) be in accordance with complete plans and specifications meeting the requirements set forth in Exhibit PR and approved by Landlord, (ii) be in accordance with the standards set forth in Exhibit BS attached hereto, (iii) be made only in accordance with the procedures set forth in Exhibit TW attached hereto by contractors or mechanics approved by Landlord, (iv) be made at Tenant’s sole expense and at such reasonable times and in such reasonable manner as Landlord may from time to time designate and (v) upon installation, become part of the Premises and the property of Landlord, provided that Landlord reserves the right, at the time that Landlord consents to such alterations, to require the removal of any non-standard office alterations upon the expiration or earlier termination of the Term of this Lease. Notwithstanding the foregoing, Tenant shall not be required to remove any items of Landlord’s Work installed as part of Tenant’s initial occupancy of the Premises, nor any wiring or cabling installed by Tenant from time to time during the Term.

 

(b)            All articles of personal property and all business fixtures, machinery and equipment and furniture owned or installed by Tenant solely at its expense in the Premises (“Tenant’s Removable Property”) shall remain the Property of Tenant and may be removed by Tenant at any time prior to the expiration of this Lease, provided that Tenant, at its expense, shall repair any damage to the Building caused by such removal.

 

(c)            Notice is hereby given that Landlord shall not be liable for any labor or materials furnished or to be furnished to Tenant upon credit, and that no mechanic’s or other lien for any such labor or materials shall attach to or affect the reversion or other estate or interest of Landlord in and to the Premises. To the maximum extent permitted by law, at such time as any contractor commences to perform work on behalf of Tenant, such contractor (and any subcontractors) shall furnish a written statement acknowledging the provisions set forth in the previous sentence. Whenever and as often as any mechanic’s lien shall have been filed against the Property based upon any act or interest of Tenant or of anyone claiming through Tenant, Tenant shall forthwith take such action by bonding, deposit or payment as will remove or satisfy the lien.

 

(d)            In the course of any work being performed by Tenant, (other than “field installations” of Tenant’s Removable Property and the installation of any wiring and cabling), Landlord reserves the right to require Tenant to employ union labor compatible with that being employed by Landlord for work in or to the Building, and not to employ or permit the use of any labor or otherwise take any action which might result in a labor dispute involving personnel providing services or construction in the Building pursuant to arrangements made by Landlord.

 

5.3   HAZARDOUS MATERIALS.

 

(a)            Tenant may use chemicals such as adhesives, lubricants, ink, solvents and cleaning fluids of the kind and in amounts and in the manner customarily found and used in business offices in order to conduct its business at the Premises and to maintain and operate the business machines located in the Premises. Tenant shall not use, store, handle, treat, transport, release or dispose of any other Hazardous Materials on or about the Premises or the Property without Landlord’s prior written consent, which Landlord may withhold or condition in Landlord’s sole discretion.

 

(b)            Any handling, treatment, transportation, storage, disposal or use of Hazardous Materials by Tenant in or about the Premises or the Property and Tenant’s use of the Premises shall comply with all applicable Environmental Laws.

 

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(ii)            any assignee agrees directly with Landlord, by written instrument in form satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder including, without limitation, the covenant against further assignment and subletting.

 

(c)            Provided that Tenant is not in default of any of Tenant’s obligations under this Lease beyond applicable notice and cure periods, Landlord’s consent to a proposed assignment or sublease shall not be unreasonably withheld or delayed, and shall be given or withheld within twenty (20) days after receipt of all information required from Tenant hereunder, provided and upon condition that:

 

(i)             In Landlord’s reasonable judgment the proposed assignee or subtenant is engaged in a business which is in keeping with the then standards of the Building and Property and the proposed use is limited to the Permitted Use;

 

(ii)            The proposed assignee or subtenant is a reputable person or entity with sufficient financial worth considering the responsibility involved, based on evidence provided by Tenant (and others) to Landlord, as determined by Landlord in its reasonable discretion;

 

(iii)           Neither (A) the proposed assignee or sublessee nor (B) any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the proposed assignee or sublessee or any person or entity who controls the proposed assignee or sublessee, is then an occupant of any part of the Property, provided that Landlord then has comparable space to lease to such party;

 

(iv)           The proposed assignee or sublessee is not a person or entity to or from whom Landlord has sent or received a letter of intent or other written expression of interest in the prior ninety (90) day period for the lease of space at the Property comparable in terms of size and finish as the Premises (or the applicable portion of the Premises to be sublet); and

 

(v)            The proposed sublease or assignment shall be in form reasonably satisfactory to Landlord and shall comply with the applicable provisions of this Article 6.

 

(d)            If Landlord shall refuse consent to a request to assign or sublease, Landlord’s notice shall set forth the reasons for denying such consent. If Landlord shall fail to respond to Tenant within such twenty (20) day period, and if such failure shall continue for an additional ten (10) days after an additional written notice from Tenant, which notice shall specifically reference this Section 6.1 and shall state, in bold, uppercase, prominent letters that failure to respond within such ten (10) day period shall be deemed approval by Landlord of such request, then Landlord shall be deemed to have approved the proposed assignment or sublease.

 

6.2   EXCESS PAYMENTS.   If Tenant assigns this Lease or sublets the Premises or any portion thereof, except pursuant to the provisions of Section 6.1(b) above, Tenant shall pay to Landlord as additional rent fifty percent (50%) of the amount, if any, by which (a) any and all compensation received by Tenant as a result of such assignment or subletting, net of reasonable expenses actually incurred by Tenant in connection with such assignment or subletting (including, without limitation, the cost of any leasehold improvements provided for such assignee or subtenant and the value of any reasonable and customary free rent, work allowance or other concessions provided to such party), exceeds (b) the allocable portion of the applicable Basic Rent and Escalation Charges attributable to the portion of the Premises so sublet or assigned. After Tenant has fully recovered its reasonable expenses, Tenant shall commence paying to Landlord its share of such excess payments to the extent Tenant actually receives such payment; such payments shall be made on the date the corresponding payments under this Lease are due. Notwithstanding the foregoing, the provisions of this Section 6.2 shall impose no obligation on Landlord to consent to an assignment of the Lease or a subletting of all or a portion of the Premises.

 

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6.3   ACCEPTANCE OF RENT.   If, in violation of this Article 6, this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may, at any time and from time to time, collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy, collection or modification of any provisions of this Lease shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from the further performance of covenants on the part of Tenant to be performed hereunder. Any consent by Landlord to a particular subletting or occupancy shall not in any way diminish the prohibition stated in paragraph (a) of this Section 6.1 or the continuing liability of the original named Tenant. No assignment or subletting hereunder shall relieve Tenant from its obligations hereunder and Tenant shall remain fully and primarily liable therefor. No such assignment, subletting, or occupancy shall affect or be contrary to Permitted Uses. Any assignment, subletting or occupancy shall be void ab initio , if the same shall fail to require that such assignee, subtenant or occupant agree therein to be independently bound by and upon all of the covenants, agreements, terms, provisions and conditions set forth in this Lease on the part of Tenant to be kept and performed, except, in the case of a subtenant, limited to the portion of the Premises proposed to be sublet.

 

6.4   ADDITIONAL REQUIREMENTS.   Tenant shall reimburse Landlord on demand, as Additional Rent, for any reasonable out-of-pocket costs (including reasonable attorneys’ fees and expenses) incurred by Landlord in connection with any actual or proposed assignment or sublease or other act described in paragraph (a)  of Section 6.1 , whether or not consummated, including the costs of making investigations as to the acceptability of the proposed assignee or subtenant. Any sublease to which Landlord gives its consent shall not be valid unless and until Tenant and the sublessee execute a consent agreement in form and substance satisfactory to Landlord in its reasonable discretion and a fully executed counterpart of such sublease has been delivered to Landlord. Any sublease shall provide that: (i) the term of the sublease ends no later than one day before the last day of the Term of this Lease; (ii) such sublease is subject and subordinate to this Lease; (iii) Landlord may enforce the provisions of the sublease, including collection of rents; and (iv) in the event of termination of this Lease or reentry or repossession of the Premises by Landlord, Landlord may, at its sole discretion and option, take over all of the right, title and interest of Tenant, as sublessor, under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord.

 

ARTICLE VII

RESPONSIBILITY FOR REPAIRS AND CONDITION OF

PREMISES; SERVICES TO BE FURNISHED BY LANDLORD

 

7.1   LANDLORD REPAIRS.

 

(a)            Except as otherwise provided in this Lease, Landlord agrees to keep in good order, condition and repair, consistent with similar first-class office buildings in the Medford/Charlestown area, (i) the Building, including, without limitation, roof, foundation, exterior walls, exterior windows, structure, elevators, and all base building systems (but specifically excluding any supplemental heating, ventilation or air conditioning equipment or systems installed at Tenant’s request or installed, whether or not by or on behalf of Tenant, as a result of requirements in excess of Building standard design criteria), (ii) all Common Areas (interior and exterior), and (iii) all signage (other than any signs installed by Tenant), except that Landlord shall in no event be responsible to Tenant for the repair of glass in the Premises (excluding exterior windows), the doors leading to the Premises, or any condition in the Premises or the Building caused by any act or neglect of Tenant, or its invitees or contractors other than as set forth in Article XII. Landlord shall also keep and maintain all Common Areas free of snow and ice and accumulation of dirt and rubbish, and shall keep and maintain all landscaped areas on the Property in a neat and orderly condition. Notwithstanding the foregoing, but subject to the provisions of Section 14.20, Landlord shall be responsible for the cost of repairs which may be made necessary by

 

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reason of damage to the Premises caused solely by any negligent or willful act of Landlord, or its contractors or invitees. Landlord shall not be responsible to make any improvements or repairs to the Building other than as expressly in this Section 7.1 provided, unless expressly provided otherwise in this Lease.

 

(b)            Landlord shall never be liable for any failure to make repairs which, under the provisions of this Section 7.1 or elsewhere in this Lease, Landlord has undertaken to make unless Tenant has given notice to Landlord of the need to make such repairs, and Landlord has failed to commence to make such repairs within a reasonable time after receipt of such notice, or fails to proceed with reasonable diligence to complete such repairs.

 

7.2   TENANT’S AGREEMENT.

 

(a)            Subject to Landlord’s obligations set forth in Section 7.1 above, Tenant will keep neat and clean and maintain in good order, condition and repair the Premises and every part thereof, excepting only those repairs for which Landlord is responsible under the terms of this Lease, reasonable wear and tear of the Premises, and damage by fire or other casualty or as a consequence of the exercise of the power of eminent domain; and shall surrender the Premises, at the end of the Term, in such condition. Without limitation, Tenant shall continually during the Term of this Lease maintain the Premises in accordance with standards recommended by the Boston Board of Fire Underwriters to the extent said compliance is required as a result of the specific manner in which Tenant is using the Premises, Tenant’s layout of the Premises, or any alterations or improvements performed by Tenant subsequent to the completion of Landlord’s Work. To the extent that the Premises constitute a “Place of Public Accommodation” within the meaning of the Americans with Disabilities Act of 1990, Tenant shall be responsible, subject to the requirements of Section 5.2, for making the repairs within the Premises that are necessary to comply with any provisions of such Act that are enacted, or become effective, or become applicable to the Premises after the Commencement Date. Notwithstanding the foregoing, to the maximum extent this provision may be enforceable according to law and is not otherwise contrary to public policy, Tenant shall be responsible for the cost of repairs which may be made necessary by reason of damage to the Building caused solely by any negligent or willful act of Tenant, or its contractors or invitees (including any damage by fire or other casualty arising therefrom), provided that the liability of Tenant under this sentence shall be limited as and to the extend provide in Section 14.20.

 

(b)            If repairs are required to be made by Tenant pursuant to the terms hereof, Landlord may demand by written notice that Tenant make the same forthwith, and if Tenant refuses or neglects to commence such repairs and complete the same within the cure period provided in Section 13.1 (except in the case of emergency in which event Landlord may make such repairs immediately), Landlord may (but shall not be required to do so) make or cause such repairs to be made.

 

7.3   FLOOR LOAD—HEAVY MACHINERY.

 

(a)            Tenant shall not place a load upon any floor in the Premises exceeding 100 lbs. per square foot of Premises Usable Area in the west wing and 125 lbs. per square foot of Premises Usable Area in the east wing or the maximum which such floor was designed to carry and which is allowed by law. Landlord reserves the right to employ Landlord’s structural engineer, at Tenant’s expense, to prescribe the weight and position of all business machines and mechanical equipment, including safes, which shall be placed so as to distribute the weight. Business machines and mechanical equipment shall be placed and maintained by Tenant at Tenant’s expense in settings sufficient, in Landlord’s judgment, to absorb and prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures into or out of the Building without Landlord’s prior consent, which shall not be unreasonably withheld, conditioned or delayed, but which consent may include a requirement to provide reasonable insurance, naming Landlord as an insured, in such amounts as Landlord may deem reasonable.

 

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(b)            If any such safe, machinery, equipment, freight, bulky matter or fixtures requires special handling, Tenant agrees to employ only persons holding a Master Rigger’s License to do such work, and that all work in connection therewith shall comply with applicable laws and regulations. Any such moving shall be at the sole risk and hazard of Tenant, and Tenant will exonerate, indemnify and save Landlord harmless against and from any liability, loss, injury, claim or suit resulting directly or indirectly from such moving.

 

7.4   BUILDING SERVICES.

 

(a)            Landlord shall, on Business Days from 8:00 a.m. to 6:00 p.m., furnish heating and cooling as normal seasonal changes may require at least equal to 1cfm per square foot of Premises Usable Area with 20% outdoor air to maintain 69-74 degree Fahrenheit Temperature, under normal business operation at an occupancy of not more than one person per 100 square feet of Premises Usable Area and a combined lighting and standard electrical load not exceeding 3.0 watts per square foot of Premises Usable Area, with the use of venetian blinds on the windows. If Tenant shall require air conditioning, heating or ventilation outside the hours and days above specified, Tenant shall give Landlord at least 24 hours’ prior notice of such requirement. Landlord shall furnish such service and Tenant shall pay therefor such charges as may from time to time be in effect. Such charge is currently $50.00 per hour per floor. Notwithstanding the foregoing, Landlord shall provide heating and cooling from 8:00 a.m. to 1:00 p.m., on no more than twenty-six (26) Saturdays per calendar year, solely to the portion of the Premises on the second floor of the Building, provided and on condition that Tenant notifies Landlord in writing that it will require such heating or cooling not less than 24 hours prior to the applicable Saturday. In the event Tenant introduces into the Premises personnel or equipment which overloads the capacity of the Building system or in any other way interferes with the system’s ability to perform adequately its proper functions, supplementary systems may, if and as needed, at Landlord’s option, be provided by Landlord, at Tenant’s expense.

 

(b)            Landlord shall also provide:

 

(i)             Passenger elevator service in common with Landlord and other tenants in the Building.

 

(ii)            Hot water for lavatory and kitchen purposes and cold water (at temperatures supplied by the City of Medford) for drinking, kitchen and lavatory and toilet purposes at a central service area on each floor. If Tenant uses water for any purpose other than for ordinary office kitchen, lavatory and drinking purposes, Landlord may assess a reasonable charge for the additional water so used or install a water meter and thereby measure Tenant’s water consumption for all purposes. In the latter event, Tenant shall pay the cost of the meter and the cost of installation thereof and shall keep such meter and installation equipment in good working order and repair. Tenant agrees to pay for water consumed, as shown on such meter, together with the sewer charge based on such meter charges, as and when bills are rendered, and in default in making such payment Landlord may pay such charges and collect the same from Tenant as an additional charge.

 

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(iii)           Cleaning and janitorial services on Business Days to (x) the Premises, provided the same are kept in order by Tenant and no extra services are necessary by reason of any special installations made by Tenant, and (y) the Common Areas, substantially in accordance with the cleaning standards set forth in Exhibit CS attached hereto.

 

(iv)           Free access to the Premises at all times, 24/7, subject to reasonable security restrictions from time to time in effect, and subject always to restrictions based on emergency conditions.

 

(v)            Backup power for normal office use to the Premises through three 2,000 kva generators. Landlord shall perform scheduled preventative maintenance twice per year during the Term. Preventative maintenance will be performed to one generator at a time while the remaining two are on line and available. In addition, the generators will be exercised every two weeks during off hours by running each one for a half hour.

 

(vi)           Illuminate the parking areas and the sidewalks after dusk, and illuminate the interior Common Areas.

 

(c)            Landlord or Agent from time to time may provide one or more uniformed attendants in or about the lobby of the Building. Such attendant(s) serve functions such as assisting visitors and invitees of tenants and others in the Building, monitoring fire control and alarm equipment, and summoning emergency services to the Building as and when needed. Tenant expressly acknowledges and agrees that: (i) such attendants are not police officers, they are unarmed, and they are not trained in situations involving potentially physical confrontation; and (ii) such attendants have been provided as an amenity to tenants of the Building for the sole purposes set forth above, and not for the purpose of securing any individual tenant premises or guaranteeing the physical safety of Tenant’s Premises or of Tenant’s employees, agents, contractors or invitees. If and to the extent that Tenant desires to provide additional security for the Premises or for such persons or their property, Tenant shall be responsible for so doing, after having first consulted with Landlord and after obtaining Landlord’s consent, which shall not be unreasonably withheld. Landlord expressly disclaims any and all responsibility and/or liability for the physical safety of Tenant’s property, and for that of Tenant’s employees, agents, contractors and invitees, and, without in any way limiting the operation of Article X hereof, to the extent permissible by applicable law, Tenant, for itself and its agents, contractors, invitees and employees, hereby expressly waives any claim, action, cause of action or other right which may accrue or arise as a result of any damage or injury to the person or property of Tenant or any such agent, invitee, contractor or employee. Tenant acknowledges that the Building is located in an urban area, and that crimes against property and persons do occasionally occur. Tenant agrees that, as between Landlord and Tenant, it is Tenant’s responsibility to advise its employees, agents, contractors and invitees as to necessary and appropriate safety precautions.

 

7.5   ELECTRICITY.

 

(a)            Landlord shall furnish electricity to the Premises for lights, outlets and supplemental HVAC service dedicated to Tenant’s Premises to meet a so-called “connected load” requirement not to exceed six (6.0) watts at 277/480 volts per square foot of Premises Usable Area. Tenant agrees in its use of the Premises not to exceed such requirement and that its total connected lighting load will not exceed the maximum from time to time permitted under applicable governmental regulations. Landlord shall purchase and install, at Tenant’s expense (without mark-up or service charge), all replacement lamps, tubes, bulbs, starters and ballasts; provided, however, Landlord agrees to purchase and install, at Landlord’s expense, any lamps, tubes, bulbs, starters and ballasts during the first three (3) months of the Term. In order to assure that the foregoing requirements are not exceeded and to avert possible adverse affect on the Building’s electrical system, Tenant shall not, without Landlord’s prior consent, connect any fixtures, appliances or equipment to the Building’s electrical distribution system other than typewriters, printers, fax machines, pencil sharpeners, desk top calculators, dictaphones, photocopiers,

 

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personal computers, word processors, radios and other similar small electrical equipment normally found in business offices.

 

(b)            Tenant shall be responsible for the payment of all electricity used and consumed in the Premises, including, without limitation for lights, outlets and supplemental HVAC service dedicated to Tenant’s Premises, provided however, once Tenant has installed the equipment in the Data Center, and such equipment is in operation, Tenant shall pay for all electricity used in the Data Center, allocated by Landlord on a per square foot basis to the Data Center. Landlord shall install a separate check meter measuring the electricity used and consumed in the Premises, and from time to time, but not more than once per calendar month, Landlord shall invoice Tenant for electricity used and consumed in the Premises, at Landlord’s cost therefore, without markup. Tenant shall pay Landlord the invoiced amount as Additional Rent hereunder within thirty (30) days after receipt of each such invoice. The obligation to pay for electricity used and consumed in the Premises during the last month of the Term hereof shall survive expiration of the Term.

 

(c)            Landlord shall have the right to discontinue furnishing electricity to the Premises at any time upon not less than thirty (30) days’ notice to Tenant provided that Landlord shall, at Landlord’s expense, separately meter the Premises directly to t