OFFICE LEASE AGREEMENT BETWEEN NORMANDY NICKERSON ROAD, LLC ("LANDLORD") AND BITSTREAM INC. ("TENANT")

Exhibit 10.12

Execution Version

OFFICE LEASE AGREEMENT

BETWEEN

NORMANDY NICKERSON ROAD, LLC

(“LANDLORD”)

AND

BITSTREAM INC.

(“TENANT”)

Execution Version

 

TABLE OF CONTENTS

 

 

i

Execution Version

 

Exhibits :

 

 

ii

Execution Version

 

OFFICE LEASE AGREEMENT

THIS OFFICE LEASE AGREEMENT (the “ Lease ”) is made and entered into as of June 22, 2009, by and between NORMANDY NICKERSON ROAD, LLC, a Delaware limited liability company (“ Landlord ”) and BITSTREAM INC., a Delaware corporation (“ Tenant ”). The following exhibits and attachments are incorporated into and made a part of the Lease: Exhibit A (Outline and Location of Premises), Exhibit B (Expenses and Taxes), Exhibit C (Work Letter), Exhibit D (Commencement Letter), Exhibit E (Building Rules and Regulations), Exhibit F (Additional Provisions) and Exhibit G (Form of Letter of Credit).

 

1.	Basic Lease Information.

1.01 “ Building ” shall mean the building located at 500 Nickerson Road, Marlborough, Massachusetts 01752. “ Rentable Square Footage of the Building ” is deemed to be 82,423 square feet.

1.02 “ Premises ” shall mean the areas shown on Exhibit A to this Lease consisting of 27,378 rentable square feet on the second floor of the Building. The “ Rentable Square Footage of the Premises ” is deemed to be 27,378 rentable square feet. Landlord and Tenant stipulate and agree that the Rentable Square Footage of the Building and the Rentable Square Footage of the Premises are correct.

1.03 “Base Rent” :

 

 

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Monthly Base Rent shall not accrue and shall not be owed (the “Abated Rent”) by Tenant during the first 90 days of the Term (the “Abatement Period”), provided that in the event this Lease is terminated due to the occurrence of an Event of Default by the Tenant, the Landlord shall have a right to recover the Abated Rent as part of the Landlord’s damages under this Lease.

1.04 “ Tenant’s Pro Rata Share ”: 33.22 % for the Building and 4.77 % for the Complex. Tenant’s Pro Rata Share shall be adjusted for changes in the Rentable Square Footage of the Premises and/or the Rentable Square Footage of the Building and/or Complex, including, without limitation, changes which may result from any condemnation or other taking of a portion of the Building and/or Complex.

Execution Version

 

1.05 “ Base Year ” for Taxes: Fiscal Year (defined below) 2010 (i.e., July 1, 2009 to June 30, 2010); “ Base Year ” for Expenses (defined in Exhibit B ): calendar year 2010. For purposes hereof, “Fiscal Year” shall mean the Base Year for Taxes and each period of July 1 to June 30 thereafter.

1.06 “ Term ”: A period of one hundred and twenty (120) Lease Months from the Commencement Date. Subject to adjustment as provided in Section 3, the Term shall commence on August 15, 2009 (the “ Commencement Date ”) and, unless terminated early or extended in accordance with this Lease, end on the one hundred and twentieth (120 ^th ) Lease Month following the Commencement Date (the “ Termination Date ”). “ Lease Mont h” shall mean a calendar month (or, if the Commencement Date is not the first day of a calendar month, the first Lease Month shall be such partial calendar month in which the Commencement Date occurs plus the first full calendar month thereafter).

1.07 “ Landlord’s Work / Improvement Allowance ”: Landlord shall provide Tenant (i) turn-key preparation of the Premises pursuant to the Final Plans more particularly set forth in Exhibit C (the “Landlord’s Work ”) and (ii) $410,670.00 (the “ Improvement Allowance ”), which amount shall be applied, upon Tenant’s written request, to furniture, fixtures and equipment for the Premises, moving cost for Tenant’s occupancy of the Premises, tele-data cabling for the Premises, project management for (A) Tenant review of Landlord’s Work, (B) Alterations (defined below) and/or (C) additional Alterations (subject to Landlord’s approval as set forth in Section 9), including, but not limited to, security, audio/visual requirements, and construction change orders. Tenant acknowledges that any request for payment of the Improvement Allowance must be delivered to Landlord together with executed lien waivers (if applicable), contractor’s statements and/or invoices and owner’s statements covering the work for which reimbursement is then being requested and any other documents reasonably requested by Landlord as evidence that the work and/or equipment has been completed and paid for, and Landlord shall thereafter disburse such portion of the remaining Improvement Allowance within twenty (20) days after the Landlord’s receipt of all required documentation. Notwithstanding any provision to the contrary set forth in this Lease, Tenant shall not be entitled to any remaining portion of the un-disbursed Improvement Allowance to the extent Tenant does not request the same prior to the expiration of the eighteenth (18 ^th ) Lease Month.

1.08 “ Security Deposit ”: $135,680.00 , as more fully described in Section 6.

1.09 Intentionally Omitted.

1.10 “ Broker(s) ”: Cushman & Wakefield of Massachusetts (“ Tenant’s Broker ”) and Richards, Barry, Joyce & Partners (“ Landlord’s Broker ”).

1.11 “ Permitted Use ”: General office use, light manufacturing, and associated storage, subject to and in compliance with all applicable zoning and land use laws, rules, codes and regulations.

 

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1.12 “Notice Address(es)” :

Tenant:

Until the Commencement Date:

Bitstream Inc.

245 First Street, 17th Floor

Cambridge, MA 02142

Attn: Anna M. Chagnon, President

and James P. Dore, Vice President and

Chief Financial Officer

After the Commencement Date:

Bitstream Inc.

500 Nickerson Road,

Marlborough, Massachusetts 01752

Attn: Anna M. Chagnon, President

and James P. Dore, Vice President and

Chief Financial Officer

With a copy to:

(a) Bowditch & Dewey, LLP

175 Crossing Boulevard

Suite 500

Framingham, MA 01702

Attn: Paul C. Bauer, Esquire

(b) David Townsend

Cushman & Wakefield

125 Summer Street, 15 ^th floor

Boston, MA 02110

Landlord:

For all Notices:

Steve Smith

Normandy Real Estate Management

1776 On the Green

67 Park Place East

Morristown, New Jersey 07960

With a copy to:

Raymond P. Trevisan

Principal, General Counsel

Normandy Real Estate Partners

67 Park Place East, 8 ^th Floor

Morristown, New Jersey 07960

 

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With a copy to:

McCarter & English LLP.

265 Franklin Street

Boston, Massachusetts 02110

Attention: Diane M. McDermott, Esquire

1.13 “ Business Day(s) ” are Monday through Friday of each week, exclusive of New Year’s Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day (“ Holidays ”). Landlord may designate additional Holidays that are commonly recognized by other office buildings in the area where the Building is located. “Building Service Hours” are 8:00 a.m. to 6:00 p.m. on Business Days and 9:00 a.m. to 1:00 p.m. on Saturdays exclusive of Holidays.

1.14 “ Complex ”: Those certain parcels of land (approximately 85 acres) and the buildings, the parking areas and other improvements thereon, including the Building, collectively known as 100-700 Nickerson Road, Marlborough, Middlesex County, Massachusetts, also commonly known as Marlborough Technology Complex, as well as any additional buildings or amenities that may be constructed on the Complex property.

 

2.	Lease Grant.

The Premises are hereby leased to Tenant from Landlord, together with the right to use any portions of the Complex that are from time to time designated by Landlord for the common use of tenants and others, including, but not limited to (i) the common stairways and access ways, lobbies, hallways, entrances, stairs, elevators and any passageways thereto, toilets, refuse facilities, common pipes, ducts, conduits, wires, and other areas or facilities within the Building for the general use, convenience and benefit of Tenant and other tenants and occupants of the Building; and (ii) the common walkways, sidewalks, landscaping, parking spaces and driveways and loading docks associated with the Building, full service cafeteria, fitness center, lockers and showers, common executive conference center, training room and dry cleaning service (collectively, the “ Common Areas ”), subject to the right of Landlord to make such changes in or to the Building and/or Complex and the fixtures and equipment thereof, as well as in or to the street entrances, halls, passages, elevators, stairways and other improvements thereof, as Landlord may deem necessary or desirable, so long as the same does not materially adversely affect Tenant’s access to or use of the Premises and Landlord takes commercially reasonable efforts to minimize any disruption to Tenant caused by such changes. The Tenant shall also have the right to use the telephone and electrical closets and appurtenant equipment which serve the Premises and other premises in the Building; provided the right to access such closets and equipment shall be under the supervision of the Landlord and upon such rules and regulations as the Landlord shall designate, including approval of any vendors which may require access to connect the equipment servicing the Tenant’s Premises. Landlord may adopt any name for the Building and/or Complex and Landlord reserves the right to change the name or address of the Building at any time.

 

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Landlord and Tenant acknowledge that the Premises are in a Building and Complex which are not open to the general public. Access to the Building or Complex is restricted to Landlord, Tenant, their agents, employees and contractors and to their invited visitors. In the event of a labor dispute including a strike, picketing, informational or associational activities directed at Tenant or any other tenant, Landlord reserves the right unilaterally to alter Tenant’s ingress and egress to the Building or Complex or make any other change in operating conditions to restrict pedestrian, vehicular or delivery ingress and egress to a particular location. The foregoing notwithstanding, Tenant shall have access to and use of the Premises twenty-four (24) hours per day and three hundred sixty-five (365) days per year.

 

3.	Adjustment of Commencement Date; Possession.

3.01 The Landlord shall deliver the Premises with Landlord’s Work Substantially Complete (as defined in Exhibit C) on August 15, 2009 to Tenant. In the event Landlord delivers the Premises to Tenant Substantially Complete prior to August 15, 2009, Tenant shall have early use of the Premises commencing on such delivery date for all purposes including moving in, installation of technology, furniture and trade fixtures, as well as for the Permitted Use, but the Commencement Date shall nonetheless be August 15, 2009. If for any reason whatsoever, Landlord is unable to deliver possession of the Premises to Tenant with the Landlord’s Work Substantially Complete on or prior to August 15, 2009, then this Lease shall remain in full force and effect and the Commencement Date shall automatically be adjusted forward on a day-for-day basis until the date on which Landlord delivers possession of the Premises to Tenant with the Landlord’s Work Substantially Complete. In the event Landlord does not deliver the Premises to Tenant Substantially Complete by September 15, 2009, as such date is extended due to Force Majeure and Tenant Delay (as defined in Exhibit C) (the “ Late Delivery Threshold ”), then each day of delay after the Late Delivery Threshold shall result in an increase in the Base Rent abatement set forth in Section 1.03 of one day (by way of example only, if there is no Force Majeure and no Tenant Delay and Landlord delivers the Premises Substantially Complete on September 17, 2009, the Base Rent abatement period shall be 92 days instead of 90 days). In the event Landlord fails, for any reason other than Force Majeure, to deliver possession of the Premises as required by this Lease on or before November 15, 2009 (which date shall be extended for each day of Tenant Delay), then Tenant may elect, upon notice to Landlord, given any time prior to the date of such delivery, to terminate this Lease effective upon the date that is thirty (30) days following such notice; provided that if Landlord delivers possession of the Premises prior to the end of such 30-day period, then such termination shall be of no force or effect. In the event Landlord fails, due to Force Majeure alone, to deliver possession of the Premises as required by this Lease on or before December 15, 2009 (which date shall be extended for each day of Tenant Delay), then Tenant may elect, upon notice to Landlord, given any time prior to the date of such delivery, to terminate this Lease effective upon the date that is thirty (30) days following such notice; provided that if Landlord delivers possession of the Premises prior to the end of such 30-day period, then such termination shall be of no force or effect.

3.02 Subject to Landlord’s obligations under this Lease, including the obligation to perform Landlord’s Work, the Premises are accepted by Tenant in “as is” condition and configuration without any representations or warranties by Landlord express or implied except as expressly provided in this Lease. By taking possession of the Premises, Tenant agrees that the

 

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Premises are in good order and satisfactory condition; provided, this shall not limit the Landlord’s obligations under the provisions of this Lease including, without limitation, Section 7 (Building Services) and Section 9.02. Landlord shall also be obligated to cure any violations of laws with respect to the Premises (including the Americans with Disabilities Act) which may exist as of the Commencement Date, if any, within a reasonable period of time after the Landlord becomes aware of same. In the event Landlord’s Work triggers any necessary additional work to the Premises, Building or Complex to comply with any laws (including the Americans with Disabilities Act), Landlord shall be solely responsible for completing such additional work at Landlord’s sole cost and expense. Except as set forth in Section 3.01, Landlord shall not be liable for a failure to deliver possession of the Premises, or any other space, due to the holdover or unlawful possession of such space by another party; provided, however, that Landlord shall use reasonable efforts to obtain possession of the space. If Tenant takes possession of the Premises, or any portion thereof, before the Commencement Date, such possession shall be subject to the terms and conditions of this Lease. However, except for the cost of services requested by Tenant, Tenant shall not be required to pay Rent for any days of possession before the Commencement Date.

 

4.

Rent.

4.01 Tenant shall pay Landlord, without any setoff or deduction, unless expressly set forth in this Lease, all Base Rent and Additional Rent due for the Term (collectively referred to as “ Rent ”). “ Additional Rent ” means all sums (exclusive of Base Rent) that Tenant is required to pay Landlord under this Lease. Tenant shall pay and be liable for all rental, sales and use taxes (but excluding income taxes), if any, imposed upon or measured by Rent. Base Rent and recurring monthly charges of Additional Rent shall be due and payable in advance on the first day of each calendar month without notice or demand. All other items of Rent shall be due and payable by Tenant on or before 30 days after billing by Landlord. Rent shall be made payable to the entity, and sent to the address, Landlord designates and shall be made by good and sufficient check or by other means acceptable to Landlord. Past due Rent shall accrue interest at 12% per annum from the due date until actually paid. The foregoing notwithstanding, Tenant shall not be responsible for payment of such interest for the first such late payment in any calendar year if such late payment is made within five (5) days of receipt of Landlord’s written notice of delinquency. Landlord’s acceptance of less than the correct amount of Rent shall be considered a payment on account of the earliest Rent due. Rent for any partial month during the Term shall be prorated. No endorsement or statement on a check or letter accompanying payment shall be considered an accord and satisfaction. Tenant’s covenant to pay Rent is independent of every other covenant in this Lease.

4.02 Tenant shall pay Tenant’s Pro Rata Share of Taxes and Expenses in accordance with Exhibit B of this Lease.

 

5.	Compliance with Laws; Use.

The Premises shall be used for the Permitted Use and for no other use whatsoever. Tenant shall comply with all statutes, codes, ordinances, orders, rules and regulations of any municipal or governmental entity whether in effect now or later, including the Americans with Disabilities Act (“ Law(s) ”), regarding the operation of Tenant’s business and the use, condition,

 

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configuration and occupancy of the Premises, but only to the extent such obligations are triggered by Tenant’s particular manner of use of the Premises, other than for general office use. In addition, Tenant shall, at its sole cost and expense, promptly comply with any Laws that relate to the “Base Building” (defined below), but only to the extent such obligations are triggered by Tenant’s particular manner of use of the Premises, other than for general office use, or Alterations or improvements in the Premises performed or requested by Tenant, specifically excluding Landlord’s Work. “ Base Building ” shall include the structural portions of the Building, the public restrooms and the Building mechanical, electrical and plumbing systems and equipment located in the internal core of the Building on the floor or floors on which the Premises are located. Tenant shall promptly provide Landlord with copies of any notices it receives regarding an alleged violation of Law. Tenant shall comply with the rules and regulations of the Building attached as Exhibit E and such other reasonable rules and regulations adopted by Landlord from time to time, including rules and regulations for the performance of Alterations (defined in Section 9). Landlord will deliver the Premises in compliance with all applicable laws (including the Americans with Disabilities Act) as of the Commencement Date.

 

6.	Security Deposit.

The Security Deposit shall be delivered to Landlord within five (5) business days of execution of this Lease by Tenant and held by Landlord without liability for interest (unless required by Law) as security for the performance of Tenant’s obligations. The Security Deposit is not an advance payment of Rent or a measure of damages. Landlord may use all or a portion of the Security Deposit to satisfy past due Rent or to cure any Default (defined in Section 18) by Tenant. If Landlord uses any portion of the Security Deposit, Tenant shall, within 5 days after demand, restore the Security Deposit to its original amount. Subject to the Landlord’s right to apply the Security Deposit as set forth herein, Landlord shall return any unapplied portion of the Security Deposit to Tenant within 45 days after the later to occur of the Termination Date or the date Tenant surrenders the Premises to Landlord in compliance with Section 25. Landlord may assign the Security Deposit to a successor or transferee and, following the assignment, Landlord shall have no further liability for the return of the Security Deposit. Landlord shall not be required to keep the Security Deposit separate from its other accounts.

The Security Deposit shall be in the form of an irrevocable letter of credit (the “Letter of Credit”), which Letter of Credit shall: (a) be in the initial amount of $135,680; (b) be issued on the form attached hereto as Exhibit G ; (c) name Landlord as its beneficiary; and (d) be drawn on an FDIC insured financial institution reasonably satisfactory to the Landlord. The Letter of Credit (and any renewals or replacements thereof) shall be for a term of not less than 1 year. Tenant agrees that it shall from time to time, as necessary, whether as a result of a draw on the Letter of Credit by Landlord pursuant to the terms hereof or as a result of the expiration of the Letter of Credit then in effect, renew or replace the original and any subsequent Letter of Credit so that a Letter of Credit, in the amount required hereunder, is in effect until a date which is at least 60 days after the Termination Date of the Lease. If Tenant fails to furnish such renewal or replacement at least 60 days prior to the stated expiration date of the Letter of Credit then held by Landlord, Landlord may draw upon such Letter of Credit and hold the proceeds thereof (and such proceeds need not be segregated) as a Security Deposit pursuant to the terms of this Section 6. Any renewal or replacement of the original or any subsequent Letter of Credit shall meet the requirements for the original Letter of Credit as set forth above, except that such replacement or renewal shall be issued by an FDIC insured financial institution satisfactory to Landlord at the time of the issuance thereof.

 

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If Landlord draws on the Letter of Credit as permitted in this Lease, then, upon demand of Landlord, Tenant shall restore the amount available under the Letter of Credit to its original amount by providing Landlord with an amendment to the Letter of Credit evidencing that the amount available under the Letter of Credit has been restored to its original amount.

 

7.	Building Services.

7.01 Landlord shall furnish Tenant with the following services: (a) water for use in the Base Building lavatories; (b) customary heat and air conditioning in season during Building Service Hours; provided that Tenant shall have the right to receive HVAC service for the Premises during hours other than Building Service Hours by paying Landlord’s then standard charge for additional HVAC service so long as Tenant requests same by written notice to Landlord not later than 12:00 noon on the Business Day preceding the day of such overtime usage; (c) standard janitorial service on Business Days; (d) Elevator service; (e) Electricity in accordance with the terms and conditions in Section 7.02; and (f) such other services as Landlord reasonably determines are necessary or appropriate for the Building or Complex. Tenant may continuously run supplemental cooling of its server room in the Premises 24 hours per day, 365 days per year (“Supplemental Cooling”). Supplemental Cooling is not a Landlord-provided service, Landlord shall not shut down the Supplemental Cooling in non-Building Service Hours, and Landlord shall not charge Tenant the off-hours HVAC charges for Supplemental Cooling as same will be subject to electricity charges for Supplemental Cooling as part of the Premises electricity submeter, the charges for which shall be paid solely by the Tenant.

7.02 (a) Electricity shall be distributed to the Premises either by the electric utility company selected by Landlord to provide electricity service for the Building and/or Complex, or, at Landlord’s option, by Landlord; and Landlord shall permit Landlord’s wires and conduits, to the extent available, suitable and safely capable, to be used for such distribution. If and so long as Landlord is distributing electricity to the Premises, Tenant shall obtain all of its electricity from Landlord. Such charges will be based on Landlord’s actual cost of such electrical service based upon the existing submeter measuring usage in the Premises. If the electric utility company selected by Landlord to provide electricity service for the Building and/or the Complex is distributing electricity to the Premises, Landlord may elect to require Tenant, at its cost, to make all necessary arrangements with such electric utility company for metering and paying for electric current furnished to the Premises. All electricity used during the performance of janitorial service, or the making of any alterations or repairs in or to the Premises (excluding the Landlord’s Work), or the operation of any special air conditioning system serving the Premises, including Supplemental Cooling, shall be paid by Tenant. Landlord shall as part of the Landlord’s Work install a meter or sub-meter for electricity used in the Premises.

Landlord reserves the right at any time and from time to time before or during the Term to contract with an electric service provider (“ Electric Service Provider ”) of its choice to provide electricity service for the Building. Tenant shall cooperate with Landlord and the Electric Service Provider at all times and, as reasonably necessary, shall allow Landlord and the Electric Service Provider reasonable access after reasonable notice except in an emergency where Landlord shall provide notice to the extent reasonably possible to the Building’s and Complex’s electric lines, feeders, risers, wiring and other machinery within the Premises.

 

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(b) Without the consent of Landlord, Tenant’s use of electrical service shall not exceed, either in voltage, rated capacity, use beyond Building Service Hours or overall load, that which Landlord, on a rentable square foot basis, reasonably deems to be standard for the Building, which as of the date of this Lease is five (5) watts per rentable square foot. Landlord acknowledges that Tenant’s operation of the Supplemental Cooling generally as well as beyond Building Service Hours (including 24 hours per day, seven days per week), using the existing unit to be delivered with the Premises, does not currently exceed the limits set forth in or otherwise violate the preceding sentence. Landlord shall have the right to measure electrical usage by commonly accepted methods. If it is determined that Tenant is using excess electricity, Tenant shall pay Landlord for the cost of such excess electrical usage as Additional Rent.

7.03 Landlord’s failure to furnish, or any interruption, diminishment or termination of services due to the application of Laws, the failure of any equipment, the performance of repairs, improvements or alterations, utility interruptions or the occurrence of an event of Force Majeure (defined in Section 26.03) (collectively a “ Service Failure ”) shall not render Landlord liable to Tenant, constitute a constructive eviction of Tenant, give rise to an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or agreement. Notwithstanding the foregoing, in the event a Service Failure that is within the reasonable control of Landlord continues for a period in excess of five (5) consecutive business days, Tenant’s Base Rent shall abate on a day-by-day basis in proportion to the portion of the Premises that Tenant is unable to use for the Permitted Use. The foregoing Base Rent abatement shall be the Tenant’s sole remedy for any interruption of Tenant’s business operations due to such Service Failure.

 

8.	Leasehold Improvements.

All improvements in and to the Premises, including any Alterations (collectively, “ Leasehold Improvements ”) shall remain upon the Premises at the end of the Term without compensation to Tenant. Landlord, however, by written notice to Tenant given at the time of Landlord’s consent to any Alterations, to the extent required, may require Tenant, at its expense, to remove any Alterations (other than Landlord’s Work) that, in Landlord’s reasonable judgment, are of a nature that would require removal and repair costs that are materially in excess of the removal and repair costs associated with standard office improvements and all Cable (as defined in Section 9.01; collectively referred to as “ Required Removables ”). Required Removables shall include, without limitation, Cable, internal stairways, raised floors, personal restrooms and showers, vaults, rolling file systems and structural alterations and modifications, but shall not include Landlord’s Work or any other improvements in the Premises on the date that possession of the Premises is delivered to Tenant. The designated Required Removables shall be removed by Tenant before the Termination Date. Tenant shall repair damage caused by the installation or removal of Required Removables. If Tenant fails to perform its obligations in a timely manner, Landlord may perform such work at Tenant’s expense.

 

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9.	Repairs and Alterations.

9.01 Tenant shall periodically inspect the Premises to identify any conditions that are dangerous or in need of maintenance or repair. Tenant shall promptly provide Landlord with notice of any such conditions. Tenant shall, at its sole cost and expense, perform all maintenance and repairs to the Premises that are not Landlord’s express responsibility under this Lease, and keep the Premises in good condition and repair, reasonable wear and tear excepted. Tenant’s repair and maintenance obligations include, without limitation, repairs to: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior side of demising walls; (e) electronic, phone and data cabling and related equipment that is installed by or for the exclusive benefit of Tenant (collectively, “ Cable ”); (f) supplemental air conditioning units, kitchens, including hot water heaters, plumbing, and similar facilities exclusively serving Tenant; (g) Alterations and (h) Rooftop Equipment (defined in Section 28 below). To the extent Landlord is not reimbursed by insurance proceeds, Tenant shall reimburse Landlord for the cost of repairing damage to the Building caused by the acts of Tenant, Tenant Related Parties and their respective contractors and vendors (including without limitation repairs necessitated by the installation, use, maintenance, repair and removal of the Rooftop Equipment). If Tenant fails to commence to make any repairs to the Premises for more than 15 days after notice from Landlord (although notice shall not be required in an emergency) and to continuously and diligently proceed to complete the repair if same cannot be completed within said 15 day period, Landlord may make the repairs, and Tenant shall pay the reasonable cost of the repairs, together with an administrative charge in an amount equal to 10% of the cost of the repairs. “ Tenant Related Parties ” shall mean Tenant’s officers, directors, shareholders, employees and agents.

9.02 Landlord shall keep and maintain in good repair and working order and perform maintenance upon the: (a) structural elements of the Building; (b) mechanical (including HVAC), electrical, plumbing and fire/life safety systems serving the Building in general; (c) Common Areas; (d) roof of the Building; (e) exterior windows of the Building; and (f) elevators serving the Building. Landlord shall promptly make repairs for which Landlord is responsible.

9.03 Tenant shall not make alterations, repairs, additions or improvements or install any Cable (collectively referred to as “ Alterations ”) without first obtaining the written consent of Landlord in each instance, such consent to include review and approval of all plans for such Alterations, which consent shall not to be unreasonably withheld, conditioned or delayed except that Landlord shall have complete discretion with regard to granting or withholding approval of the portions of the proposed Alterations to the extent such Alterations would impact the Building’s structure or systems, or would be visible from the common facilities or exterior of the Building. However, Landlord’s consent shall not be required for any Alteration that satisfies all of the following criteria (a “ Cosmetic Alteration ”): (a) is of a cosmetic nature such as painting, wallpapering, hanging pictures and installing carpeting; (b) is not visible from the exterior of the Premises or Building; (c) will not affect the Base Building; (d) does not require work to be performed inside the walls, below the floor, or above the ceiling of the Premises; and (e) the cost of such work does not exceed $30,000.00. Tenant shall provide written notice to Landlord prior to the commencement of any Cosmetic Alterations and shall deliver to Landlord a copy of the plans and specifications, if any, for Cosmetic Alterations. Cosmetic Alterations shall be subject to all the other provisions of this Section 9.03. Prior to starting work, Tenant shall furnish Landlord with plans and specifications; names of contractors reasonably acceptable to Landlord

 

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(provided that Landlord may designate specific contractors with respect to Base Building); required permits and approvals; evidence of contractor’s and subcontractor’s insurance in amounts reasonably required by Landlord and naming Landlord as an additional insured; and any security for performance in amounts reasonably required by Landlord. Changes to the plans and specifications must also be submitted to Landlord for its approval. Alterations shall be constructed in a good and workmanlike manner using materials of a quality reasonably approved by Landlord. Tenant shall reimburse Landlord for any sums paid by Landlord for third party examination of Tenant’s plans for non-Cosmetic Alterations. In addition, Tenant shall pay Landlord a fee for Landlord’s oversight and coordination of any Alterations other than Cosmetic Alterations equal to 3% of the cost of the Alterations. Upon completion, Tenant shall furnish “as-built” plans for all Alterations other than Cosmetic Alterations, completion affidavits and full and final waivers of lien. Landlord’s approval of an Alteration shall not be deemed a representation by Landlord that the Alteration complies with Law.

 

10.	Entry by Landlord.

Landlord may enter the Premises to inspect, show to prospective buyers of the Building or prospective lenders, or clean the Premises or to perform or facilitate the performance of repairs, alterations or additions to the Premises or any portion of the Building or in the last twelve (12) months of the Term, show to prospective tenants. Except in emergencies or to provide Building services, Landlord shall provide Tenant with reasonable prior verbal notice of entry, shall provide Tenant with the opportunity to accompany Landlord, and shall use reasonable efforts to minimize any interference with Tenant’s use of the Premises. If reasonably necessary, Landlord may temporarily close all or a portion of the Premises to perform repairs, alterations and additions. However, except in emergencies, Landlord will not close the Premises if the work can reasonably be completed on weekends and after Building Service Hours. Entry by Landlord shall not constitute a constructive eviction or entitle Tenant to an abatement or reduction of Rent. In connection with any repairs made in the Premises by Landlord, Landlord shall not eliminate power to the Supplemental Cooling or, if unavoidable, Landlord shall bring in temporary power or cooling equipment at Landlord’s sole cost and expense.

 

11.	Assignment and Subletting.

11.01 Except in connection with a Permitted Transfer (defined in Section 11.04), Tenant shall not assign, sublease, transfer or encumber any interest in this Lease or allow any third party to use any portion of the Premises (collectively or individually, a “ Transfer ”) without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed if Landlord does not exercise its recapture rights under Section 11.02. If the entity which controls the voting shares/rights of Tenant changes at any time, such change of ownership or control shall constitute a Transfer, subject to Tenant’s rights with respect to a Permitted Transfer as set forth in Section 11.04, unless Tenant is an entity whose outstanding stock is listed on a recognized securities exchange or if at least 80% of its voting stock is owned by another entity, the voting stock of which is so listed. Any attempted Transfer in violation of this Section is voidable by Landlord. In no event shall any Transfer, including a Permitted Transfer, release or relieve Tenant from any obligation under this Lease.

 

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11.02 Tenant shall provide Landlord with financial statements for the proposed transferee, a fully executed copy of the proposed assignment, sublease or other Transfer documentation and such other information as Landlord may reasonably request. Within 15 Business Days after receipt of the required information and documentation, Landlord shall either: (a) consent to the Transfer by execution of a consent agreement in a form reasonably designated by Landlord; (b) reasonably refuse to consent to the Transfer in writing; or (c) recapture the portion of the Premises that Tenant is proposing to Transfer for the term of the proposed Transfer. Landlord shall not exercise this right of recapture in the event the proposed Transfer would result, in the aggregate with any previous Transfers, in Transfers of less than forty percent (40%) of the Premises. If Landlord exercises its right to recapture, this Lease shall automatically be amended (or terminated if the entire Premises is being assigned or sublet) to delete the applicable portion of the Premises effective on the proposed effective date of the Transfer for the term of the proposed Transfer. Tenant shall pay Landlord its actual out-of-pocket fees, not to exceed $1,500.00, for Landlord’s review of any requested Transfer, excluding a Permitted Transfer, for which Tenant will have no cost reimbursement obligation.

11.03 Tenant shall pay Landlord 50% of all rent and other consideration which Tenant receives as a result of a Transfer that is in excess of the Rent payable to Landlord for the portion of the Premises and Term covered by the Transfer. Tenant shall pay Landlord for Landlord’s share of the excess within 30 days after Tenant’s receipt of the excess. Tenant may deduct from the excess, on a straight-line basis, all reasonable and customary expenses directly incurred by Tenant attributable to the Transfer, including but not limited to leasing concessions, broker’s fees, attorney’s fees and tenant improvements. If Tenant is in Default, Landlord may require that all sublease payments be made directly to Landlord, in which case Tenant shall receive a credit against Rent in the amount of Tenant’s share of payments received by Landlord.

11.04 Tenant may assign this Lease to a successor to Tenant by purchase, merger, consolidation or reorganization (an “ Ownership Change ”) or assign this Lease or sublet all or a portion of the Premises to an Affiliate without the consent of Landlord, provided that all of the following conditions are satisfied (a “ Permitted Transfer ”): (a) Tenant is not in Default; (b) in the event of an Ownership Change, Tenant’s successor shall own substantially all of the assets of Tenant and have a net worth which is at least equal to Tenant’s net worth as of the day prior to the proposed Ownership Change; (c) the Permitted Use does not allow the Premises to be used for retail purposes; and (d) Tenant shall give Landlord written notice at least 15 Business Days prior to the effective date of the Permitted Transfer. Tenant’s notice to Landlord shall include information and documentation evidencing the Permitted Transfer and showing that each of the above conditions has been satisfied. If requested by Landlord, Tenant’s successor shall sign a commercially reasonable form of assumption agreement. “ Affiliate ” shall mean an entity controlled by, controlling or under common control with Tenant (for such period of time as such entity continues to be controlled by, controlling or under common control with Tenant, it being agreed that the subsequent sale or transfer of stock resulting in a change in voting control, or any other transaction(s) having the overall effect that such entity ceases to be controlled by, controlling or under common control with Tenant within twelve (12) months following an assignment of this Lease to an Affiliate, shall be treated as if such sale or transfer or transaction(s) were, for all purposes, an assignment of this Lease governed by the provisions of this Article 11).

 

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12.

Liens.

Tenant shall not permit mechanics’ or other liens to be placed upon the Complex, Building, Premises or Tenant’s leasehold interest in connection with any work or service done or purportedly done by or for the benefit of Tenant or its transferees. Tenant shall give Landlord notice at least 15 days prior to the commencement of any work in the Premises to afford Landlord the opportunity, where applicable, to post and record notices of non-responsibility. Tenant, within 10 days of notice from Landlord, shall fully discharge any lien by settlement, by bonding or by insuring over the lien in the manner prescribed by the applicable lien Law. If Tenant fails to do so, Landlord may bond, insure over or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount paid by Landlord, including, without limitation, reasonable attorneys’ fees. Landlord shall have the right to require Tenant to post a performance or payment bond in connection with any work or service done or purportedly done by or for the benefit of Tenant. Tenant acknowledges and agrees that all such work or service is being performed for the sole benefit of Tenant and not for the benefit of Landlord.

 

13.	Indemnity and Waiver of Claims.

Subject to the provisions of Section 15 and except as specifically otherwise provided in this Lease and except for the negligence or intentional misconduct of Landlord or Landlord Related Parties (defined below), Tenant hereby waives all claims against and releases Landlord and its trustees, members, principals, beneficiaries, partners, officers, directors, employees, Mortgagees (defined in Section 23) and agents (the “ Landlord Related Parties ”) from all claims for any injury to or death of persons, damage to property or business loss in any manner related to (a) Force Majeure, (b) acts of third parties, (c) the bursting or leaking of any tank, water closet, drain or other pipe, (d) the inadequacy or failure of any security services, personnel or equipment, or (e) any matter not within the reasonable control of Landlord. In addition to the foregoing, except for the negligence or intentional misconduct of Landlord or Landlord Related Parties, Tenant agrees that Landlord shall have no responsibility or liability whatsoever for any loss or damage, however caused, to furnishings, fixtures, equipment, or other personal property of Tenant or of any persons claiming by, through, or under Tenant. Except to the extent caused by the negligence or willful misconduct of Landlord or any Landlord Related Parties, Tenant shall indemnify, defend and hold Landlord and Landlord Related Parties harmless against and from all liabilities, obligations, damages, penalties, claims, actions, costs, charges and expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if and to the extent permitted by Law) (collectively referred to as “ Losses ”), which may be imposed upon, incurred by or asserted against Landlord or any of the Landlord Related Parties by any third party and arising out of or in connection with any damage or injury occurring in the Premises or any negligence or intentional misconduct (including violations of Law) of Tenant, the Tenant Related Parties or any of Tenant’s transferees, contractors or licensees.

13.02 Subject to the provisions of Section 15, and except as specifically otherwise provided in this Lease, and except for the negligence or intentional misconduct of the Tenant (or those claiming under the Tenant), Landlord shall indemnify, defend and hold Tenant harmless against and from all Losses which may be imposed upon, incurred by or asserted against Tenant by any third party arising out of or in connection with damage or injury occurring in the Building (excluding the Premises) or the Complex as a result of the negligence or intentional misconduct of the Landlord or the Landlord Related Parties.

 

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14.	Insurance.

Tenant shall maintain the following insurance (“ Tenant’s Insurance ”): (a) Commercial General Liability Insurance applicable to the Premises and its appurtenances providing, including blanket contractual and personal liability, with broad form endorsement with coverages of at least $2,000,000 per occurrence, $3,000,000 in the aggregate; (b) Excess/Umbrella Liability with coverages of at least $5,000,000 per occurrence, $5,000,000 in the aggregate; (c) Property/Business Interruption Insurance written on an All Risk or Special Perils form, with coverage for broad form water damage including earthquake sprinkler leakage, at replacement cost value and with a replacement cost endorsement covering all of Tenant’s business and trade fixtures, equipment, movable partitions, furniture, merchandise and other personal property within the Premises (“ Tenant’s Property ”) and any Leasehold Improvements performed by or for the benefit of Tenant; (d) Automobile/Hired and Owned with coverage of at least $1,000,000 combined single limit (e) Workers’ Compensation Insurance in amounts required by Law and (f) Employers Liability Coverage of at least $500,000.00 per occurrence. Tenant may carry any portion of the insurance required hereunder through a so-called umbrella coverage and/or blanket policy, provided that the Landlord has been provided with information to support that the so-called blanket coverage is adequate to provide the coverages required hereunder. Any company writing Tenant’s Insurance shall have an A.M. Best rating of not less than A-VIII. All Commercial General Liability Insurance policies shall name as additional insureds Landlord (or its successors and assignees), the holder(s) of any mortgage(s) encumbering the Premises, Normandy Real Estate Partners, LLC, Normandy Real Estate Management, LLC and all of their affiliates, members, officers, employees, agents and representatives, managing agents and premises owners, and other designees of Landlord and its successors as the interest of such designees shall appear, with the Landlord as certificate holder being designated as follows: Normandy Nickerson Road, LLC, Nickerson Road, Marlborough, MA, c/o Normandy Real Estate Management, 400 5th Avenue, Waltham, MA 02451. All policies of Tenant’s Insurance shall contain endorsements that the insurer(s) shall give Landlord and its designees at least 30 days’ advance written notice of any cancellation, termination, material change or lapse of insurance. Tenant shall provide Landlord with a certificate of insurance evidencing Tenant’s Insurance prior to the earlier to occur of the Commencement Date or the date Tenant is provided with possession of the Premises, and thereafter as necessary to assure that Landlord always has current certificates evidencing Tenant’s Insurance. So long as the same is available at commercially reasonable rates, Landlord shall maintain so called All Risk property insurance on the Building at replacement cost value as reasonably estimated by Landlord.

 

15.	Subrogation.

Landlord and Tenant hereby waive and shall cause their respective insurance carriers to waive any and all rights of recovery, claims, actions or causes of action against the other for any loss or damage with respect to Tenant’s Property, Leasehold Improvements, the Building, the Premises, or any contents thereof, including rights, claims, actions and causes of action based on negligence, which loss or damage is (or would have been, had the insurance required by this Lease been carried) covered by insurance.

 

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16.	Casualty Damage.

16.01 If all or any portion of the Premises becomes untenantable by fire or other casualty to the Premises (collectively a “ Casualty ”), Landlord, with reasonable promptness but not later than sixty (60) days from the date of such casualty, shall cause a general contractor selected by Landlord to provide Landlord and Tenant with a written estimate of the amount of time required using standard working methods to Substantially Complete the repair and restoration of the Premises and any Common Areas necessary to provide access to the Premises (“ Completion Estimate ”). If the Completion Estimate indicates that the Premises or any Common Areas necessary to provide access to the Premises cannot reasonably be substantially completed within 270 days from the date of the Casualty, then either party shall have the right to terminate this Lease upon written notice to the other within 10 days after receipt of the Completion Estimate. Tenant, however, shall not have the right to terminate this Lease if the Casualty was caused by the gross negligence or intentional misconduct of Tenant or any Tenant Related Parties. In addition, Landlord, by notice to Tenant within 90 days after the date of the Casualty, shall have the right to terminate this Lease if: (1) the Premises have been materially damaged and there is less than two (2) years of the Term remaining on the date of the Casualty; (2) any Mortgagee requires that the insurance proceeds be applied to the payment of the mortgage debt; or (3) a material uninsured loss to the Building occurs. In addition, in the event that the Premises and the Common Areas are not Substantially Completed within 270 days from the date the Casualty occurred, subject to reasonable delays (not to exceed sixty (60) days) for insurance adjustment or other matters beyond Landlord’s reasonable control, Tenant shall have the right to terminate this Lease upon 30 days advance notice to the Landlord given at any time subsequent to 270 days (plus a period of up to sixty (60) days set forth above, if applicable) after the date of the Casualty but prior to such Substantial Completion; provided that if the Landlord delivers the Premises and the Common Areas Substantially Complete prior to the expiration of such 30-day period then said notice of termination shall be of no force or effect.

16.02 If this Lease is not terminated, Landlord shall promptly and diligently, subject to reasonable delays for insurance adjustment or other matters beyond Landlord’s reasonable control, restore the Premises and Common Areas. Such restoration shall be to substantially the same condition that existed on the Commencement Date, except for modifications required by Law or any other modifications to the Common Areas deemed desirable by Landlord. Upon notice from Landlord, Tenant shall assign to Landlord (or to any party designated by Landlord) all property insurance proceeds payable to Tenant under Tenant’s Insurance with respect to any Leasehold Improvements performed by or for the benefit of Tenant which the Landlord may agree to restore (exclusive of Landlord’s Work which shall be insured by Landlord); provided if the estimated cost to repair such Leasehold Improvements exceeds the amount of insurance proceeds received by Landlord from Tenant’s insurance carrier, the excess cost of such repairs shall be paid by Tenant to Landlord prior to Landlord’s commencement of repairs. Landlord shall not be liable for any inconvenience to Tenant, or injury to Tenant’s business resulting in any way from the Casualty or the repair thereof. Provided that Tenant is not in Default, during any period of time that all or a material portion of the Premises is rendered untenantable as a result of a Casualty, the Rent shall abate for the portion of the Premises that is untenantable and not used by Tenant.

 

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17.	Condemnation.

Either party may terminate this Lease if any material part of the Building or any portion of the Premises, is taken or condemned for any public or quasi-public use under Law, by eminent domain or private purchase in lieu thereof (a “ Taking ”). For the purposes of this Section, a “material” part of the Building shall be over 30% of the Building. Landlord shall also have the right to terminate this Lease if there is a Taking of any portion of the Building or the Complex which would have a material adverse effect on Landlord’s ability to profitably operate the remainder of the Building. The terminating party shall provide written notice of termination to the other party within 45 days after it first receives notice of the Taking. The termination shall be effective on the date the physical taking occurs. If this Lease is not terminated, Base Rent and Tenant’s Pro Rata Share shall be appropriately adjusted to account for any reduction in the square footage of the Building or Premises. All compensation awarded for a Taking shall be the property of Landlord. The right to receive compensation or proceeds are expressly waived by Tenant, however, Tenant may file a separate claim for Tenant’s Property and Tenant’s reasonable relocation expenses, provided the filing of the claim does not diminish the amount of Landlord’s award. If only a part of the Premises is subject to a Taking and this Lease is not terminated, Landlord, with reasonable diligence, will restore the remaining portion of the Premises as nearly as practicable to the condition immediately prior to the Taking.

 

18.	Events of Default.

Each of the following occurrences shall be a “ Default ”: (a) Tenant’s failure to pay any portion of Rent when due, if the failure continues for 5 days after written notice to Tenant (“ Monetary Default ”); (b) Tenant’s failure (other than a Monetary Default) to comply with any term, provision, condition or covenant of this Lease, if the failure is not cured within 30 days after written notice to Tenant provided, however, if Tenant’s failure to comply cannot reasonably be cured within 30 days, Tenant shall be allowed additional time (not to exceed 60 days) as is reasonably necessary to cure the failure so long as Tenant begins the cure within 10 days after such notice to Tenant and diligently pursues the cure to completion; (c) Tenant or any guarantor of this Lease becomes insolvent, makes a transfer in fraud of creditors, files a bankruptcy proceeding or has an involuntary proceeding filed against it which is not dismissed within thirty (30) days of filing, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts when due or forfeits or loses its right to conduct business; (d) the leasehold estate is taken by process or operation of Law; (e) Tenant abandons the Premises (vacating the Premises shall not constitute abandonment provided that Tenant otherwise complies with its obligations under this Lease); or (f) Tenant is in default beyond any notice and cure period under any other lease or agreement with Landlord at the Building or Complex. If Landlord provides Tenant with notice of Tenant’s failure to comply with any specific provision of this Lease on 3 separate occasions during any 12 month period, Tenant’s subsequent violation of such provision shall, at Landlord’s option, be an incurable Default by Tenant. All notices sent under this Section shall be in satisfaction of, and not in addition to, notice required by Law.

 

19.

Remedies.

19.01 Upon Default, Landlord shall have the right to pursue any one or more of the following remedies:

(a) Terminate this Lease, in which case Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises, Landlord, in compliance with Law, may enter upon and take possession of the Premises and remove Tenant, Tenant’s Property and any party occupying the Premises. Tenant shall pay Landlord, on demand, all past due Rent and other losses and damages Landlord suffers as a result of Tenant’s Default, including, without limitation, all Costs of Reletting (defined below) and any deficiency that may arise from reletting or the failure to relet the Premises. “ Costs of Reletting ” shall include all reasonable costs and expenses incurred by Landlord in reletting or attempting to relet the Premises, including, without limitation, legal fees, brokerage commissions, the cost of alterations and the value of other concessions or allowances granted to a new tenant.

 

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(b) Terminate Tenant’s right to possession of the Premises and, in compliance with Law, remove Tenant, Tenant’s Property and any parties occupying the Premises. Landlord may (but, except as expressly provided below, shall not be obligated to) relet all or any part of the Premises, without notice to Tenant, for such period of time and on such terms and conditions (which may include concessions, free rent and work allowances) as Landlord in its absolute discretion shall determine. Landlord may collect and receive all rents and other income from the reletting. Tenant shall pay Landlord on demand all past due Rent, all Costs of Reletting and any deficiency arising from the reletting or failure to relet the Premises. The re-entry or taking of possession of the Premises shall not be construed as an election by Landlord to terminate this Lease. Landlord shall use reasonable efforts to relet the Premises on such terms as Landlord in its sole discretion may determine (including a term different from the Term, rental concessions, and alterations to, and improvement of, the Premises); however, Landlord shall not be obligated to relet the Premises before leasing other portions of the Building. Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished because of, Landlord’s failure to relet the Premises or to collect rent due for such reletting.

19.02 In lieu of calculating damages under Section 19.01, Landlord may elect to receive as damages the sum of (a) all Rent accrued through the date of termination of this Lease or Tenant’s right to possession, and (b) an amount equal to the total Rent that Tenant would have been required to pay for the remainder of the Term discounted to present value, minus the then present fair rental value of the Premises for the remainder of the Term, similarly discounted, after deducting all anticipated Costs of Reletting. If Tenant is in Default of any of its non-monetary obligations under the Lease, Landlord shall have the right to perform such obligations. Tenant shall reimburse Landlord for the cost of such performance upon demand together with an administrative charge equal to 10% of the cost of the work performed by Landlord. The repossession or re-entering of all or any part of the Premises shall not relieve Tenant of its liabilities and obligations under this Lease. Except as set forth in the first sentence of this Section 19.02, no right or remedy of Landlord shall be exclusive of any other right or remedy. Each right and remedy shall be cumulative and in addition to any other right and remedy now or subsequently available to Landlord at Law or in equity.

 

20.	Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE COMPLEX. TENANT

 

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SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE COMPLEX FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN SECTION 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL LANDLORD OR ANY MORTGAGEES OR LANDLORD RELATED PARTIES