EXPANSION OPTION
AGREEMENT
THIS EXPANSION
OPTION AGREEMENT is made this 8th day of January, 2007, between
BURLINGTON WOODS OFFICE TRUST NO. 2 , having a mailing
address c/o Finard Properties LLC, One Burlington Woods Drive,
Burlington, Massachusetts 01803-4503 (“ Landlord
”) and COLOR KINETICS INCORPORATED , having a current
address of 10 Milk Street, Suite 1100, Boston, Massachusetts
02109 (“ Tenant ”).
A. Reference
is made to a Lease of even date herewith between THREE
BURLINGTON WOODS LLC (“ TBW ”), as landlord,
and Tenant, as tenant, (the “ Building 3 Lease
”) demising approximately 50,826 rentable square feet of
space located in Three Burlington Woods (the “ Building 3
Premises ”) as more fully described in the Building 3
Lease. At Landlord’s written request from time to time,
Tenant shall provide a true, complete and accurate copy of the
Building 3 Lease. All capitalized terms used but not defined herein
shall have the same meaning as set forth in the Building 3
Lease.
B. Landlord
is the owner of Two Burlington Woods Drive, Burlington,
Massachusetts (“ Building 2 ”) and is presently
an affiliate of TBW.
C. Landlord
and Tenant desire to provide for the expansion rights as set forth
below.
In consideration
of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
1.
Expansion Right . Notwithstanding any change in ownership of
Building 2 or Building 3, provided (a) Tenant is not in
default beyond any applicable grace period under any of the terms
and conditions of the Building 3 Lease at the time it elects to
exercise its rights hereunder or, at Landlord’s option, at
the time of the delivery of the Expansion Space (as defined below),
and (b) the Tenant originally named in the Building 3 Lease
(or a Permitted Transferee) continues to occupy and operate in not
less than 40,348 rentable square feet of the Building 3 Premises
(excluding the Basement Space), then, subject to the terms and
conditions of this Agreement, Tenant shall have the option to lease
(the “ Expansion Space Lease ”) an approximately
9,963 rentable square foot premises on the third (3
rd ) floor of Building 2 (the “ Expansion
Space ”) currently occupied by Soundbite Communications,
Inc. (collectively with its subtenant(s), successors and assigns,
if any, “ Soundbite ”) pursuant to a lease
between Landlord and Soundbite (the “ Soundbite Lease
”). Tenant’s rights and obligations hereunder shall be
independent from and in addition to its rights and obligations
under the Building 3 Lease and not in substitution thereof.
Landlord has advised Tenant that the term of the Soundbite Lease
expires on or about May 31, 2008 and that Soundbite has one
(1) three (3) — year option to extend the term thereof,
which if exercised on or before September 1, 2007, would
extend the term thereof to on or about May 31, 2011. Tenant
shall send written notice to Landlord and TBW during the month of
September, 2007 (the “ Inquiry Notice ”)
requesting a determination as to whether Soundbite has exercised
the extension right pursuant to the Soundbite Lease and Landlord
shall respond in writing promptly thereafter. In the event
Soundbite has not exercised its extension right pursuant to the
Soundbite Lease, Tenant shall exercise its rights under this
Agreement in writing within thirty (30) days of
Landlord’s response to Tenant’s Inquiry Notice. In the
event Soundbite has exercised the extension right pursuant to the
Soundbite Lease, Tenant shall exercise its rights under this
Agreement in writing on or before August 31, 2010. If Tenant
exercises its rights in accordance with this Agreement, the
anticipated commencement date of the Expansion Space Lease will be
the date upon which the term of the Soundbite Lease expires (at the
expiration of the current term thereof or the three-year extension
period, as the case may be) and Soundbite has delivered possession
of the Expansion Space free of all occupants, subject to delays
caused
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
by factors
beyond the reasonable control of Landlord. Landlord shall not be
liable to Tenant for any failure to deliver the Expansion Space on
any specified date; provided, however, in no event shall Tenant be
required to pay rent or any other charges on the Expansion Space
until it has been delivered to Tenant as required hereunder. If
Tenant shall fail to exercise its rights under this Agreement as
provided herein, this Agreement and the rights and obligations of
the parties hereunder shall be of no further force or effect;
provided, however, that so long as Tenant exercises its expansion
right hereunder in writing on or before August 31, 2010 as
aforesaid, Tenant shall not lose its expansion right hereunder if,
but only if, Soundbite had exercised its extension right under the
Soundbite Lease even if Tenant failed to provide the Inquiry
Notice.
2.
Expansion Lease . Following Tenant’s timely exercise
of its rights hereunder, Landlord and Tenant shall execute and
deliver the Expansion Space Lease substantially in the form
attached hereto as Exhibit “A” incorporating
and/or deleting such other applicable terms and conditions as
indicated therein, and Landlord and Tenant shall work in good faith
to agree upon the appropriate fixed rent which shall be determined
pursuant to Section 3 below. The Term of the Expansion Space
Lease shall be co-terminus with the original Term of the Building 3
Lease.
3. Fixed
Rent For The Expansion Space . (a) For the Expansion Space
to be leased by Tenant in accordance with this Agreement, the
annual Fixed Rent to be paid by Tenant for the Expansion Space
shall be determined as of the commencement date of the Expansion
Space Lease and shall equal the Fair Market Rental Value for the
Expansion Space.
(b) The
“Fair Market Rental Value” shall mean the market rate
for similar or comparable space in the Northwest Boston Suburban
market including all relevant factors. The determination of the
Fair Market Rental Value shall take into consideration all material
economic differences between the Expansion Space and such other
similar or comparable space including, without limitation, (i) the
aggregate net value of any amenities offered by a comparison
landlord and not offered by Landlord and vice versa; (ii) the
difference between any broker commissions payable by Landlord and
any brokerage commissions payable by a comparison landlord in
connection with a comparison lease; (iii) the differences in
the way Landlord and a comparison landlord is reimbursed for
operating expenses and taxes (including the applicable base years
for purposes of determining escalation payments); and (iv) the
aggregate net value of any economic concessions (such as, but not
limited to, rent abatements and improvement allowances and a
market-based fit-up period not to exceed two (2) months)
offered by a comparison landlord and not offered by Landlord and
vice versa, provided, that the value of any improvement allowance
offered by a comparison landlord to the extent required to bring
the comparison premises to a condition similar to the then
“as-is” condition of the space in question shall not be
relevant. The Fair Market Rental Value shall be determined as
follows:
(i) After
the exercise by Tenant of its election to lease the Expansion
Space, Landlord shall advise Tenant in writing of Landlord’s
determination of the Fair Market Rental Value prior to the
execution of the Expansion Space Lease. Tenant shall be deemed to
have accepted the rental amount contained in Landlord’s said
notice, and such rental rate shall be conclusively deemed to be the
Fair Market Rental Value, unless Tenant notifies Landlord in
writing, within seven (7) days after Landlord’s notice,
that Tenant disputes the aforementioned determination by Landlord,
in which event the parties shall proceed to the Fair Market Rental
Value determination as set forth in Subsection
(ii) below.
(ii)
In the event that Tenant so disputes the determination of the Fair
Market Rental Value by Landlord, and Landlord and Tenant are unable
to agree on the Fair Market Rental Value within thirty
(30) days, the same shall be determined as follows: Landlord
and Tenant each shall, within thirty (30) days thereafter,
appoint an independent appraiser who shall be instructed to
determine
ii
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
independently
the Fair Market Rental Value. If the difference between the amounts
so determined by such appraisers does not exceed ten percent (10%)
of the lesser of such amounts, then the Fair Market Rental Value
shall be an amount equal to fifty percent (50%) of the total of the
amounts so determined. If the difference between the amounts so
determined shall exceed ten percent (10%) of the lesser of such
amounts, then such two (2) appraisers shall have ten
(10) days thereafter to appoint a third appraiser, but if such
appraisers fail to do so within such ten (10) day period, then
either Landlord or Tenant may request the Greater Boston Real
Estate Board or any successor organization thereto to appoint an
appraiser within ten (10) days of such request, and both
Landlord and Tenant shall be bound by any appointment so made
within such ten (10) day period. If no such appraiser shall
have been appointed within such ten (10) days either Landlord
or Tenant may apply to any court having jurisdiction to have such
appointment made by such court. Any appraiser appointed by the
original appraisers, by the Greater Boston Real Estate Board or by
such court shall be instructed to determine the Fair Market Rental
Value in accordance with the definition of such term contained
herein and within twenty (20) days after its appointment. If
the third appraisal shall exceed the higher of the first two
appraisals, the Fair Market Rental Value shall be the higher of the
first two appraisals; if the third appraisal is less than the lower
of the first two appraisals, the Fair Market Rental Value shall be
the lower of the first two appraisals. In all other cases, the Fair
Market Rental Value shall be equal to the third appraisal.
Notwithstanding the foregoing, if either party shall fail to
appoint its appraiser within the 30 day period specified above
(such party being referred to herein as the “failing
party”), the other party may serve notice on the failing
party requiring the failing party to appoint its appraiser within
ten (10) days of the giving of such notice. If the failing
party shall not respond by appointment of its appraiser within said
ten day period, then the appraiser appointed by the other party
shall be the sole appraiser whose determination of the Fair Market
Rental Value shall be binding and conclusive upon Tenant and
Landlord. Each party shall pay for the fees and expenses of the
appraiser appointed by it, but the fees and expenses of the third
appraiser shall be shared equally by the parties. All appraisers
appointed hereunder shall be MAI appraisers, so-called, or
commercial real estate brokers with at least ten (10) years
direct experience, and Northwest Boston Suburban market. The
foregoing determination shall be conclusive, final and binding on
the parties and enforceable in any court having jurisdiction over
the parties.
Landlord and
Tenant each hereby acknowledges and agrees that the foregoing is an
agreement for the parties hereto to work in good faith to reach a
mutually satisfactory agreement regarding the Expansion Space and
does not, and, until such time as Landlord and Tenant execute a
mutually acceptable Expansion Space Lease, shall not be deemed to,
create any option, right or other enforceable obligation regarding
any expansion or space within Building 2, or give rise to any right
to terminate the Building 3 Lease or any claim of breach of
Landlord hereunder or under the Building 3 Lease, or any claim for
damages at law or equity, including injunctive relief.
4.
Broker . Each party warrants and represents that it has not
dealt with any broker other than Spaulding and Slye, a member of
the Jones Lang LaSalle group and GVA Thompson Doyle Hennessey and
Stevens (the “ Brokers ”) in connection with the
consummation of this Agreement, and in the event any claim is made
against the Landlord or the Tenant relative to dealings with
brokers other than the aforesaid brokers, the party breaching such
warranty and representation shall defend the claim against the
first party with counsel of the indemnified party’s selection
and save harmless and indemnify such party on account of loss, cost
or damage which may arise by reason of any such claim. Landlord
shall be responsible for any commission due the Brokers in
connection with this Agreement.
iii
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
EXECUTED under
seal as of the date first written above.
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TENANT:
COLOR KINETICS INCORPORATED
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LANDLORD:
BURLINGTON WOODS OFFICE TRUST NO. 2
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/s/ William J.
Sims
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By:
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/s/ William G.
Finard
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Name: William
J. Sims
Title: President and CEO
Hereunto
duly authorized
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William G.
Finard, as Trustee and not individually
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/s/ David K.
Johnson
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By:
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/s/ David T.
Ting
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Name: David K.
Johnson
Title: Senior VP, CFO and Treasurer
Hereunto
duly authorized
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David T. Ting,
as Trustee and not individually
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iv
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
Form of Expansion Space
Lease
v
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
BURLINGTON WOODS OFFICE PARK
2 Burlington Woods Drive,
Burlington, Massachusetts
Premises: Portion of the Third
(3 rd
) Floor
Tenant: COLOR KINETICS INCORPORATED
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BASIC LEASE
PROVISIONS
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1
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1.1
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INTRODUCTION.
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1
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1.2
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BASIC DATA AND
DEFINITIONS.
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1
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DEMISING OF
PREMISES, TERM, OPTIONS
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2
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2.1
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DEMISE OF
PREMISES.
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2
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2.2
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APPURTENANT
RIGHTS AND RESERVATIONS.
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2
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2.3
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TERM.
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3
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2.4
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OPTION TO
EXTEND THE TERM.
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3
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2.5
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RIGHT OF FIRST
OFFER ON CERTAIN ADDITIONAL SPACE.
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4
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2.6
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INTENTIONALLY
OMITTED.
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5
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RENT
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5
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3.1
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FIXED
RENT.
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5
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3.2
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FIXED RENT FOR
AVAILABLE SPACE AND DURING ANY EXTENSION TERM.
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6
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3.3
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LATE
PAYMENT.
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8
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USE OF
PREMISES; ALTERATIONS
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8
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4.1
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PERMITTED
USE.
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8
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4.2
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ALTERATIONS.
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11
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4.3
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WIRELESS
NETWORK.
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12
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4.4
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INTENTIONALLY
OMITTED.
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13
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4.5
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EXTERIOR
SIGNAGE.
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14
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4.6
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ROOF
LICENSE.
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14
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ASSIGNMENT AND
SUBLETTING
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16
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5.1
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GENERALLY.
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16
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5.2
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REIMBURSEMENT,
RECAPTURE AND EXCESS RENT.
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18
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5.3
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CERTAIN
TRANSFERS.
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20
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CONDITION OF
PREMISES AND RESPONSIBILITY FOR REPAIRS
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21
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6.1
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CONDITION OF
PREMISES. [to be determined]
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21
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6.2
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TENANT’S
IMPROVEMENTS. [to be determined]
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21
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6.3
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REPAIRS TO BE
MADE BY LANDLORD.
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21
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6.4
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MAINTENANCE AND
REPAIRS TO BE MADE BY TENANT.
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22
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6.5
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FLOOR LOAD
— HEAVY MACHINERY; OCCUPANT DENSITY.
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22
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SERVICES;
UTILITY CHARGES
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23
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7.1
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LANDLORD’S SERVICES.
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23
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7.2
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UTILITY
SERVICES AND CHARGES.
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24
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7.3
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ELECTRICAL
SERVICE AND ELECTRICAL CHARGE.
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25
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vi
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
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ADDITIONAL RENT
FOR TAXES AND OPERATING EXPENSES
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25
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8.1
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TENANT’S
PAYMENT OF ITS SHARE OF REAL ESTATE TAXES.
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25
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8.2
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TENANT’S
PAYMENT OF ITS SHARE OF OPERATING EXPENSES.
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27
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INDEMNITY AND
INSURANCE
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31
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9.1
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INDEMNITY.
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31
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9.2
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INSURANCE.
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31
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9.3
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TENANT’S
RISK.
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33
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9.4
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INJURY CAUSED
BY THIRD PARTIES.
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33
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9.5
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LANDLORD’S INSURANCE.
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33
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LANDLORD’S ACCESS TO PREMISES
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33
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10.1
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LANDLORD’S RIGHT OF ACCESS.
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33
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10.2
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EXHIBITION OF
SPACE TO PROSPECTIVE TENANTS.
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34
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10.3
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KEYS.
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34
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FIRE, EMINENT
DOMAIN, ETC.
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34
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11.1
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FIRE OR OTHER
CASUALTY.
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34
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11.2
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EMINENT
DOMAIN.
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35
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DEFAULT
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36
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12.1
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TENANT’S
DEFAULT.
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36
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12.2
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REMEDIES.
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37
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12.3
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INTEREST ON
LATE PAYMENTS.
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39
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12.4
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LANDLORD’S DEFAULT.
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39
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12.5
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COSTS OF
ENFORCEMENT.
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40
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12.6
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BANKRUPTCY AND
INSOLVENCY.
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40
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12.7
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LIMITATIONS ON
ENFORCEMENT.
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41
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MISCELLANEOUS
PROVISIONS
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41
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13.1
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EXTRA HAZARDOUS
USE.
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41
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13.2
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WAIVER.
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41
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13.3
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COVENANT OF
QUIET ENJOYMENT.
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42
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13.4
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LANDLORD’S LIABILITY.
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42
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13.5
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NOTICE TO
MORTGAGEE AND GROUND LESSOR.
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43
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13.6
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ASSIGNMENT OF
RENTS.
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43
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13.7
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MECHANIC’S LIENS.
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43
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13.8
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NO
BROKERAGE.
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44
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13.9
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INVALIDITY OF
PARTICULAR PROVISIONS.
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44
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13.10
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PROVISIONS
BINDING, ETC.
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44
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13.11
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RECORDING.
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45
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13.12
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NOTICES.
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45
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13.13
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WHEN LEASE
BECOMES BINDING.
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45
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13.14
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PARAGRAPH
HEADINGS.
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46
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13.15
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RIGHTS OF
MORTGAGEE.
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46
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13.16
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STATUS
REPORT.
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46
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13.17
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TENANT’S
FINANCIAL CONDITION.
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47
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13.18
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ADDITIONAL
REMEDIES OF LANDLORD; SURVIVAL.
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48
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13.19
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WAIVER OF
COUNTERCLAIMS.
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48
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13.20
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CONSENTS.
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48
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13.21
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HOLDING
OVER.
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49
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vii
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
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13.22
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NON-SUBROGATION.
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49
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13.23
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ENVIRONMENTAL
HAZARDS.
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49
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13.24
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LETTER OF
CREDIT.
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51
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13.25
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GOVERNING
LAW.
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51
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13.26
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INTENTIONALLY
OMITTED.
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52
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13.27
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SECURITY
MEASURES.
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52
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13.28
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EASEMENTS.
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52
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13.29
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CHANGES TO
PROPERTY.
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52
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13.30
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INCORPORATION
OF PRIOR AGREEMENTS.
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53
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13.31
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AMENDMENTS.
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53
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13.32
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COVENANTS.
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53
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13.33
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AUCTIONS.
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53
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13.34
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MERGER.
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53
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13.35
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AUTHORITY.
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53
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13.36
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RELATIONSHIP OF
PARTIES.
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54
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13.37
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RIGHT TO
LEASE.
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54
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13.38
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INTENTIONALLY
OMITTED.
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54
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13.39
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OFAC
CERTIFICATION AND INDEMNITY.
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54
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13.40
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WAIVER OF JURY
TRIAL.
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55
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viii
BURLINGTON WOODS OFFICE
PARK
This Lease, by
and between Landlord and the Tenant (as defined below), relates to
the space in the building (the “Building”) known as
Building No. 2 of Burlington Woods Office Park (the
“Office Park”), in Burlington, Middlesex County,
Massachusetts, with an address at Two Burlington Woods Drive,
Burlington, Massachusetts. The term “Lot” shall mean
the parcel of land on which the Building is located; and the term
“Property” shall mean the Lot and all improvements
thereon from time to time, including the Building.
The parties to
this Lease hereby agree with each other as follows:
1. BASIC LEASE
PROVISIONS
As further
supplemented in the balance of this instrument and its Exhibits,
the following sets forth the basic terms of this Lease and, where
appropriate, constitutes definitions of certain terms used in this
Lease.
b. BASIC DATA AND
DEFINITIONS.
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[
___, 200___].
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BURLINGTON
WOODS OFFICE TRUST NO. 2
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Present Mailing
Address of Landlord:
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c/o Finard
Properties LLC
One Burlington Woods Drive
Burlington, Massachusetts 01803
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COLOR KINETICS
INCORPORATED,
a Delaware corporation.
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Present Mailing
Address of Tenant:
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Three
Burlington Woods Drive
Burlington, Massachusetts 01803
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[TO BE
DETERMINED but co-terminus with the original term of BWOP3
Lease] (plus the partial
month, if any, immediately following the Commencement Date (as
defined in Section 2.3.2)).
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Scheduled
Commencement Date:
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[TO BE DETERMINED]
.
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[TO BE DETERMINED]
.
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Lease
Year PSF Annual
Fixed Rent Monthly Installment
[TO BE DETERMINED]
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Premises are
separately metered.
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Two
(2) extension periods of five (5) years each.
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The portion of
the Building (as defined above) located on the third (3
rd ) floor, and shown as outlined on Exhibit A
attached hereto.
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Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
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Rentable Floor
Area of the Premises:
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Approximately
9,963 square feet.
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Rentable Floor
Area of the Building:
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Approximately
26,729 square feet.
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First-class
office space, and no other use except as expressly set forth in the
Lease (including Section 4.1.1 below).
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[TO BE
DETERMINED based on the then current rent computed as set forth in
BWOP3 Lease] $
, subject to reduction to $
as set forth in Section 13.24 below.
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Spaulding and
Slye, a member of the Jones Lang LaSalle group and GVA Thompson
Doyle Hennessey and Stevens.
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The Taxes for
Tax Year ___ (the fiscal year ending June 30, ___), as
provided in Section 8.1.
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The Operating
Expenses for Operating Year ___ (currently the calendar year ending
December 31, ___), as provided in Section 8.2.
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2. DEMISING OF
PREMISES, TERM, OPTIONS
i. Landlord
hereby demises and leases to Tenant, and Tenant hereby accepts from
Landlord, the Premises, subject to the terms and conditions of this
Lease.
ii. For the
purposes of this Lease, it is agreed that the Rentable Floor Area
of the Premises shall be as stated in Section 1.2 above, and
the Rentable Floor Area of the Building shall be as stated in
Section 1.2 above.
b. APPURTENANT
RIGHTS AND RESERVATIONS.
i. Tenant
shall have, as appurtenant to the Premises, the nonexclusive right
to use and to permit its invitees to use in common with others,
public or common lobbies, hallways, stairways, passenger and
freight elevators, loading areas, sanitary facilities, conduits and
risers in the Building necessary or convenient for Tenant’s
use and occupancy of the Premises, and (as provided in the next
subsection) the parking facilities serving the Building
(collectively, as same may be changed from time to time as provided
in this Lease, the “Common Areas”). Such rights shall
always be subject to reasonable rules and regulations from time to
time established by Landlord by suitable notice (and uniformly
applied to all occupants of the Building), and shall be subject to
the right of Landlord to designate and change from time to time
areas and facilities to be so used; provided, no such change shall
materially adversely affect Tenant’s access to, or use of,
the Premises pursuant to the terms and conditions of this
Lease.
ii. Tenant shall
also have, as appurtenant to the Premises, the nonexclusive right
to use, and permit its employees and invitees to use, in common
with others, on a first come, first serve basis, the open parking
facilities serving the Building (excepting those spaces now
or
2
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
hereafter
designated by Landlord as being for the exclusive use of others).
Such parking rights shall be subject to the right of Landlord to
limit the number of parking spaces available to Tenant, its
employees and invitees, where the use of the same exceeds, in
Landlord’s judgment, the greater of (i) Tenant’s
pro rata share (based upon the ratio of the Rentable Floor Area of
the Premises to the Rentable Floor Area of the Building) of the
parking at the Building, or (ii) the ratio of approximately 3
spaces per 1,000 square feet of the Rentable Floor Area of the
Premises.
iii. Excepted
and excluded from the Premises are the roof and all perimeter walls
of the Premises, except the inner surfaces thereof, but the entry
doors to the Premises are not excluded from the Premises and are a
part thereof for all purposes; and Tenant agrees that 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) utility lines, pipes and the like to serve premises
other than the Premises, and to replace and maintain and repair
such utility lines, pipes and the like in, over and upon the
Premises.
iv. During
the hours of 8:00 A.M. to 6:00 P.M., Monday through Friday, legal
holidays (both federal and state) in all cases excepted
(“Normal Building Operating Hours”), the Building shall
be open and access to the Premises shall be freely available,
subject to interruption due to causes beyond Landlord’s
reasonable control. During periods other than Normal Building
Operating Hours, Landlord shall provide means of access to the
Premises, subject to security restrictions on such access, such as
card access systems, and the other terms and conditions of this
Lease. Access to the Premises during Normal Building Operating
Hours and at other times shall always be subject to reasonable
rules and regulations therefor from time to time established by
Landlord by suitable notice (and uniformly applied to all occupants
of the Building). Tenant acknowledges that, in all events, Tenant
is responsible for providing security to the Premises and its own
personnel, guests, invitees or agents and, to the maximum extent
this agreement may be made effective according to law, Tenant shall
indemnify, defend with counsel of Landlord’s selection, and
save Landlord harmless from any claim for injury to person or
damage to property asserted by any personnel, employee, guest,
invitee or agent of Tenant which is suffered or occurs in the
Premises by reason of the act of any intruder or any other person
in the Premises.
i. Subject to
the conditions herein stated, Tenant shall hold the Premises for
the Term (as defined in Section 1.2) commencing on the
Commencement Date (as defined below) and expiring at midnight of
the last day of the Term, unless sooner terminated as provided
herein.
ii. The term
“Commencement Date” shall mean [TO BE
DETERMINED] .
iii. Landlord
and Tenant agree to execute a supplemental agreement confirming the
actual Commencement Date and expiration date of the Term, once same
are determined.
d. OPTION TO EXTEND
THE TERM.
Tenant shall
have the option to extend the Term of this Lease for two
(2) additional Option Periods (each an “Extension
Term”), provided that: (i) Tenant is not in default
beyond any
3
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
applicable
grace period under any of the terms and conditions of this Lease at
the time it elects to extend the Term or, at Landlord’s
option, at the commencement of the Extension Term; (ii) the
Tenant originally named herein (or a Permitted Transferee, as
defined in Section 5.3.3 below) continues to occupy and
operate in all or substantially all of the Premises; and
(iii) Tenant has given Landlord written notice of its election
to extend the Term no later than 9 months prior to the
expiration date of the original Term of this Lease or the first
Extension Term, as the case may be. In the event that Tenant shall
extend the Term as aforesaid, such extension(s) shall be upon the
same terms and conditions as set forth herein except that: the
exercised Extension Term shall no longer be available; and the
annual Fixed Rent payable hereunder shall be adjusted in accordance
with the provisions of Section 3. Should Tenant so extend the
Term of this Lease, the term “Term” as used herein
shall mean the original Term together with the Extension Terms. If
Tenant fails to timely exercise its rights hereunder as aforesaid,
Tenant shall be deemed to have conclusively waived its right to do
so and the applicable Extension Term(s) set forth herein shall be
void and of no further force or effect and Tenant, following such
failure (or waiver) and within seven (7) days of Landlord’s
request therefor, shall execute and deliver to Landlord a
certification, in recordable form, confirming the Tenant’s
failure to exercise (or waiver of) such right, and Tenant’s
failure to so execute and deliver such certification shall (without
limiting Landlord’s remedies on account thereof) entitle
Landlord to execute and deliver to any third party, and record, an
affidavit confirming the waiver, which affidavit shall be binding
on Tenant and may be conclusively relied on by third
parties.
e. RIGHT OF FIRST
OFFER ON CERTAIN ADDITIONAL SPACE.
i. Provided
(i) Tenant is not in default beyond any applicable grace
period under any of the terms and conditions of this Lease at the
time it elects to exercise its rights hereunder or, at
Landlord’s option, at the time of the delivery of the
Available Space (as defined below); and (ii) the Tenant originally
named herein (or a Permitted Transferee) continues to occupy and
operate all or substantially all of the Premises, Tenant shall have
the right of first offer to lease any space in the Building that
becomes available for occupancy (the “Available Space”)
subject to and in accordance with the terms and conditions set
forth in this Section 2.5. If at any time from and after the
Commencement Date and during the Term of this Lease there shall be
any Available Space, Landlord shall notify Tenant thereof in
writing (“Landlord’s Available Space Notice”),
which notice shall include the anticipated date upon which such
Available Space shall be available for occupancy by Tenant along
with a floor plan showing the approximate rentable square footage
thereof. Tenant shall have the right to lease such Available Space
only by giving written notice to Landlord within twenty
(20) business days after Tenant receives Landlord’s
Available Space Notice, time being of the essence. If Tenant so
elects to lease the Available Space, such Space shall be leased
upon the same terms and conditions contained in this Lease, except
that the Fixed Rent for such space shall be equal to the Fair
Market Rental Value therefor determined in accordance with
Section 3.2 below and the Letter of Credit shall be increased
proportionately to reflect the inclusion of such Available Space,
and the Available Space shall be and become part of the Premises
hereunder upon the delivery of such Available Space to Tenant. It
is understood and agreed that the Available Space shall be leased
by Tenant in its then “as is”, “where-is”
condition, without warranty or representation by Landlord and
Landlord shall have no obligation to complete any work to prepare
the applicable Space for Tenant’s use and occupancy.
Following such election by Tenant, and effective as of the delivery
of the applicable
4
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
Available Space
and for the balance of the Term and any extension thereof:
(a) the “Premises”, as used in this Lease, shall
include the applicable Available Space; (b) the
“Rentable Floor Area of the Premises” shall be
increased to include the rentable square footage of the applicable
Available Space; and (c) the annual Fixed Rent shall equal the
sum of the Fixed Rent provided for in this Lease plus the Fixed
Rent for the applicable Available Space as determined as set forth
herein. To confirm the inclusion of the Available Space as set
forth above, Landlord shall prepare, and Landlord and Tenant shall
promptly execute and deliver, an Amendment to Lease reflecting the
foregoing terms and incorporation of any Available Space. For the
purposes hereof, space shall be deemed “available for
occupancy” when any lease or occupancy agreement (including
extension periods) has expired or is due to expire within six
(6) months, or Landlord has elected not to renew the lease of
the present tenant, and any prior options, rights or rights to
lease with respect to such Available Space have expired or been
waived and Landlord is free to lease such space to third parties
without restriction.
ii. If Tenant
fails to timely exercise any of its rights hereunder, the right(s)
granted hereunder as to the applicable Available Space shall be
deemed waived for all purposes, and Landlord may lease the
applicable Available Space to any party and upon any terms free of
any rights of Tenant. Tenant, following such waiver and within
7 days of Landlord’s request therefor, shall execute and
deliver to Landlord a certification, in recordable form, confirming
the waiver of such right, and Tenant’s failure to so execute
and deliver such certification shall (without limiting
Landlord’s remedies on account thereof) entitle Landlord to
execute and deliver to any third party, and record, an affidavit
confirming the waiver, which affidavit shall be binding on Tenant
and may be conclusively relied on by third parties.
iii. Tenant
understands that its rights under this Section are and shall be
subject and subordinate to any options to lease or any rights of
first negotiation, first offer or first refusal to lease granted to
other tenants of the Building prior to the date of execution and
delivery of this Lease.
f. INTENTIONALLY
OMITTED.
i. Tenant
agrees to pay to Landlord, without offset or deduction and without
previous demand therefor, annual Fixed Rent during each Lease Year
(as defined below) of the Term. The annual Fixed Rent during the
original Term shall be as provided in Section 1.2
above.
ii. All such
annual Fixed Rent shall be payable in equal monthly installments,
in advance, on the first day of each and every calendar month
during the Term, commencing on the Commencement Date, to Landlord,
or as directed by Landlord, at the Present Mailing Address of
Landlord (as set forth in Section 1.2) or at the address from
time to time designated by Landlord.
iii. Fixed Rent
for any partial month shall be paid by Tenant on a pro rata basis,
and if the Commencement Date occurs on a day other than the first
day of a calendar month, the first
5
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
payment which
Tenant shall make shall be a payment equal to a proportionate part
of such monthly Fixed Rent for the partial month from such date to
the first day of the succeeding calendar month, and the monthly
Fixed Rent for such succeeding calendar month.
iv. For the
purposes of this Lease, “Lease Year” shall mean each
successive 12-month period included in whole or in part in the Term
of this Lease; the first Lease Year beginning on the Commencement
Date and ending at midnight on the day before the first anniversary
of the Commencement Date (provided that if the Commencement Date is
not the first day of a calendar month, the first Lease Year shall
end at midnight on the last day of the calendar month which
includes the first anniversary of the Commencement Date). If the
first Lease Year of the Term shall be greater than one full
calendar year, the annual Fixed Rent for such Lease Year shall be
increased proportionately to the greater length of such Lease
Year.
v. Notwithstanding
the fact that the amounts of Fixed Rent set forth in this Lease
were or may have been determined with reference to the floor area
of the Premises, said amounts as set forth above are stipulated to
be the amounts of Fixed Rent due hereunder, whether or not the
actual floor area of the Premises are in fact more or less than the
floor area figures used to determine said Fixed Rent.
b. FIXED RENT FOR
AVAILABLE SPACE AND DURING ANY EXTENSION TERM.
i. For any
applicable Available Space leased by Tenant in accordance with
Section 2.5 and/or during any Extension Term of this Lease (if
Tenant exercises its option to extend the Term hereof in accordance
with Section 2.4), the annual Fixed Rent to be paid by Tenant
for the applicable Available Space and during each Lease Year of
the applicable Extension Term shall be determined as of the first
day of the inclusion of the applicable Available Space into the
Premises and/or Extension Term, respectively, and shall equal the
Fair Market Rental Value.
ii. The
“Fair Market Rental Value” shall mean the market rate
for similar or comparable space in the Northwest Boston Suburban
market to the applicable Available Space and/or the Premises for
the Extension Term, as the case may be, including all relevant
factors, but in no event shall the Fair Market Rental Value be less
than the Fixed Rent (on a per rentable square foot basis) payable
during the last Lease Year of the original Term (or prior Extension
Term) as to any Extension Term Fixed Rent, or less than the Fixed
Rent then being charged under this Lease as to any Available Space.
The determination of the Fair Market Rental Value shall take into
consideration all material economic differences between the
applicable space in question and such other similar or comparable
space including, without limitation, (i) the aggregate net
value of any amenities offered by a comparison landlord and not
offered by Landlord and vice versa; (ii) the difference
between any broker commissions payable by Landlord and any
brokerage commissions payable by a comparison landlord in
connection with a comparison lease; (iii) the differences in
the way Landlord and a comparison landlord is reimbursed for
operating expenses and taxes (including the applicable base years
for purposes of determining escalation payments); and (iv) the
aggregate net value of any economic concessions (such as, but not
limited to, rent abatements and improvement allowances) offered by
a comparison landlord and not offered by Landlord and vice versa,
provided, that the value of any improvement allowance offered by a
comparison landlord to the extent required to bring the
6
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
comparison
premises to a condition similar to the then “as-is”
condition of the space in question shall not be relevant. The Fair
Market Rental Value shall be determined as follows:
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a)
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After the exercise by Tenant of its
option to extend the Term, Landlord shall advise Tenant in writing
of Landlord’s determination of the Fair Market Rental Value
prior to the expiration of the original Term or then current
Extension Term or prior to the delivery of the applicable Available
Space, as the case may be. Tenant shall be deemed to have accepted
the rental amount contained in Landlord’s said notice, and
such rental rate shall be conclusively deemed to be the Fair Market
Rental Value, unless Tenant notifies Landlord in writing, within
7 days after Landlord’s notice, that Tenant disputes the
aforementioned determination by Landlord, in which event the
parties shall proceed to the Fair Market Rental Value determination
as set forth in Subsection (c) below.
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b)
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After the exercise by Tenant of its
election to lease any Available Space, Landlord shall advise Tenant
in writing of Landlord’s determination of the Fair Market
Rental Value prior to the delivery of such Available Space. Tenant
shall be deemed to have accepted the rental amount contained in
Landlord’s said notice, and such rental rate shall be
conclusively deemed to be the Fair Market Rental Value, unless
Tenant notifies Landlord in writing, within 7 days after
Landlord’s notice, that Tenant disputes the aforementioned
determination by Landlord, in which event the parties shall proceed
to the Fair Market Rental Value determination as set forth in
Subsection (c) below.
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c)
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In
the event that Tenant so disputes the determination of the Fair
Market Rental Value by Landlord, and the Landlord and Tenant are
unable to agree on the Fair Market Rental Value within
30 days, the same shall be determined as follows: Landlord and
Tenant each shall, within thirty (30) days thereafter, appoint
an independent appraiser who shall be instructed to determine
independently the Fair Market Rental Value. If the difference
between the amounts so determined by such appraisers does not
exceed ten percent (10%) of the lesser of such amounts, then the
Fair Market Rental Value shall be an amount equal to fifty percent
(50%) of the total of the amounts so determined. If the difference
between the amounts so determined shall exceed ten percent (10%) of
the lesser of such amounts, then such two (2) appraisers shall
have ten (10) days thereafter to appoint a third appraiser,
but if such appraisers fail to do so within such ten (10) day
period, then either Landlord or Tenant may request the Greater
Boston Real Estate Board or any successor organization thereto to
appoint an appraiser within ten (10) days of such request, and
both Landlord and Tenant shall be bound by any appointment so made
within such ten (10) day period. If no such appraiser shall
have been appointed within such ten (10) days either Landlord
or Tenant may apply to any court having jurisdiction to have such
appointment made by such court. Any appraiser appointed by the
original appraisers, by the Greater Boston Real Estate Board or by
such court shall be instructed to determine the Fair Market Rental
Value in accordance with the definition of such term contained
herein and within twenty (20) days after its appointment. If the
third appraisal shall exceed the
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7
Burlington Woods — Color
Kinetics Expansion Space Lease (BWOP2)
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higher of the first two appraisals,
the Fair Market Rental Value shall be the higher of the first two
appraisals; if the third appraisal is less than the lower of the
first two appraisals, the Fair Market Rental Value shall be the
lower of the first two appraisals. In all other cases, the Fair
Market Rental Value shall be equal to the third appraisal.
Notwithstanding the foregoing, if either party shall fail to
appoint its appraiser within the 30 day period specified above
(such party being referred to herein as the “failing
party”), the other party may serve notice on the failing
party requiring the failing party to appoint its appraiser within
ten (10) days of the giving of such notice. If the failing
party shall not respond by appointment of its appraiser within said
ten day period, then the appraiser appointed by the other party
shall be the sole appraiser whose determination of the Fair Market
Rental Value shall be binding and conclusive upon Tenant and
Landlord. Each party shall pay for the fees and expenses of the
appraiser appointed by it, but the fees and expenses of the third
appraiser shall be shared equally by the parties. All appraisers
appointed hereunder shall be MAI appraisers, so-called, or
commercial real estate brokers with at least ten (10) years
direct experience, and Northwest Boston Suburban market. The
foregoing determination shall be conclusive, final and binding on
the parties and enforceable in any court having jurisdiction over
the parties.
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d)
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If
the parties are unable to agree on the Fair Market Rental Value (or
the arbitration procedure set forth above has not concluded) prior
to the first day of the Extension Term or the date the applicable
Available Space is incorporated into the Premises, Tenant shall
make monthly payments on account of Fixed Rent (in addition to all
additional rent and other payments hereunder) in the amount of
Landlord’s initial designation of the Fair Market Rental
Value, until the Fair Market Rental Value has been finally
established as herein provided, at which time an appropriate
retroactive Fixed Rent adjustment payment or refund shall be made,
if necessary.
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iii. During
the Extension Term, Tenant shall continue to pay all additional
rent and other payments as provided in this Lease.
If any Fixed
Rent, additional rent or any other payments due hereunder from
Tenant are not paid within 5 days of the due date thereof,
Tenant shall be charged a late fee of $250.00 for each late payment
for each month or portion thereof that said payment remains
outstanding. Said late fee shall be payable in addition to and not
in exclusion of any other remedies of Landlord on account of such
late payments, including without limitation the obligation to pay
interest on late payments, as provided in
Section 12.3.
4. USE OF PREMISES;
ALTERATIONS
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i. Tenant
agrees that the Premises shall be used and occupied by Tenant only
for the Permitted Use, as provided in Section 1.2 of this
Lease, and for no other purpose or purposes; provided ,
however , Tenant shall have the right to use all or any
portion of the Premises to demonstrate, develop and display on a
non-retail basis its products (including prototypes thereof), from
time to time, subject in all cases to all Laws and Restrictions (as
defined below), the terms and conditions of this Lease including,
but not limited to, Sections 4.1(c) and 4.2, and Tenant shall be
responsible for obtaining and maintaining all necessary permits and
approvals for all such uses in the foregoing proviso, and Tenant
acknowledges that Landlord has not made any representations or
warranties as to whether such uses set forth in the foregoing
proviso comply with applicable Laws and Restrictions.
ii. Tenant
further covenants and agrees to conform to the following provisions
during the entire Lease Term:
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a)
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Tenant shall cause all freight
(including furniture, fixtures and equipment used by Tenant in the
occupancy of the Premises) to be delivered to or removed from the
Building and the Premises in accordance with reasonable rules and
regulations established by Landlord therefor and Landlord may
require that such deliveries or removals be undertaken during
periods other than Normal Building Operating Hours; provided,
however, no separate charges will be assessed by Landlord for
Tenant’s use of the loading area.
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b)
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Tenant shall not place on the
exterior of exterior walls (including both interior and exterior
surfaces of windows and doors) or on any part of the Building
outside the Premises, any sign, symbol, advertisement or the like
visible to public view outside of the Premises except as provided
in the next paragraph or elsewhere in this Lease.
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Notwithstanding
the foregoing, Tenant may, at Tenant’s sole expense, locate a
sign at the entrance doors to the Premises of the type commonly and
customarily found in first-class office buildings for the purpose
of identifying and locating the Premises, which signs and location
shall be subject to the prior approval of Landlord, not to be
unreasonably withheld. Where Landlord establishes reasonable
standards for such signs, Tenant agrees to conform to the same and
to submit for Landlord’s prior approval, such approval not
unreasonably to be withheld, a plan or sketch of the sign to be
placed on or about such entry door and location thereof. Without
limitation, lettering on windows and window displays are expressly
prohibited. Landlord shall also provide Tenant with a listing on
the Building’s main tenant directory.
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c)
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Tenant shall not perform any act or
any practice which may injure the Premises, or any other part of
the Building or the Property, or cause any offensive odors or loud
noise, or constitute a nuisance or a menace to any other tenant or
tenants or other persons in the Building, or be detrimental to the
reputation or appearance of the Building, and Tenant shall permit
no waste with respect to the Premises or the Property. Landlord
acknowledges that the Premises may be used in connection with the
development of prototypes of Tenant’s products. Tenant
acknowledges and agrees that the foregoing uses, and the
installation and operation of any
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equipment relating thereto, shall be
done and effected in accordance with all of the terms and
conditions of this Lease and that any such installations or
alterations relating thereto shall be considered Alterations
pursuant to Section 4.2 below requiring Landlord’s prior
consent thereto and Tenant obtaining all necessary permits and
approvals therefor. Tenant shall take all commercially reasonable
steps and precautions, such as installing adequate venting, vapor
barriers and sound insulation, to contain all odors and noises
emanating from the Premises (or applicable portions thereof)
engaged in the forgoing uses. In the event that Tenant’s
operations of the Premises (or portions thereof) cause or are
believed to cause any interference or complaints from Landlord or
any other tenants or occupants of the Building (or any applicable
governmental authorities), then upon receipt of notice from
Landlord of such interference or complaints, Tenant will promptly
take all steps necessary to correct and eliminate the source of
such interference or complaints and if same cannot be resolved to
the reasonable satisfaction of all parties within 24 hours (or a
shorter period if Landlord believes a shorter period to be
appropriate) then, upon request from Landlord, Tenant shall shut
down the Tenant’s operations that cause or are believed to
cause the interference or complaints pending a mutually
satisfactory resolution. Tenant will defend, indemnify and save
Landlord harmless against and from any liability, loss, injury,
damage, claim or suit resulting directly or indirectly from the
aforesaid installations, use and operation of the applicable
portions of the Premises, and this indemnity shall survive the
termination of this Lease. Tenant acknowledges and agrees that the
foregoing limitations and/or restrictions shall not give rise to
any right to terminate this Lease or any claim of breach of
Landlord under this Lease or any claim for damages against Landlord
or Landlord’s Agents at law or equity, including injunctive
relief.
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d)
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Tenant shall conduct Tenant’s
business in the Premises in such a manner that Tenant’s
invitees shall not collect, line up or linger in the lobby or
corridors of the Building, but shall be entirely accommodated
within the Premises.
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e)
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Tenant shall comply and shall cause
all employees to comply with all rules and regulations from time to
time established by Landlord by suitable notice, and of uniform
application to all occupants of the Building, including without
limitation the current rules and regulations, a copy of which are
attached hereto as Exhibit B. Landlord shall not, however, be
responsible for the noncompliance of any such rules and regulations
by any other tenant or occupant.
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f)
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Tenant shall, at Tenant’s sole
expense, promptly comply with all applicable laws, ordinances,
rules, regulations, orders, certificates of occupancy, conditional
use or other permits, variances, covenants and restrictions of
record, the reasonable recommendations of Landlord’s
engineers or other consultants, and requirements of any fire
insurance underwriters, rating bureaus or government agencies, now
in effect or which may hereafter come into effect during the Lease
Term relating in any manner to the Premises or the occupation and
use by Tenant of the Premises (“Laws and
Restrictions”). Notwithstanding anything in this Lease to
the
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contrary, except in connection with
[TO BE DETERMINED: Tenant’s Improvements] or with
Tenant’s non-office use of portions of the Premises set forth
in Subsection 4.1.1 for which Tenant may be required to make
Alterations (as defined below) to the Premises or the Building,
Tenant shall have no obligation to make Alterations to the Premises
to comply with current or future Laws and Restrictions if such Laws
and Regulations are of general application to the Building or space
therein used for first-class office space rather than
Tenant’s particular or specific manner of use of the Premises
(or portions thereof).
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Tenant shall
not make any alterations, improvements, additions, utility and
other installations (including Lighting Systems [as defined below]
and signs) or repairs (hereinafter collectively referred to as
“Alterations” or singly as an “Alteration”)
to the Premises, except in accordance with this Section 4.2
(and any other applicable provisions of the Lease) and with the
prior written consent of Landlord, which, except as otherwise
expressly provided in this Lease, Landlord agrees not unreasonably
to withhold as to nonstructural Alterations (nonstructural
Alterations being those that do not affect the Building’s
structure, roof, exterior or mechanical, electrical, plumbing, life
safety or other Building systems or architectural design, character
or use of the Building or Premises). Without limiting any of the
terms hereof, Landlord will not approve any Alterations requiring
unusual expense to readapt the Premises to normal office use on
lease termination or increasing the cost of construction, insurance
or taxes on the Building or of Landlord’s services to the
Premises, unless Tenant first gives assurances or security
reasonably acceptable to Landlord that such re-adaptation will be
made prior to such termination without expense to Landlord and
makes provisions reasonably acceptable to Landlord for payment of
such increased cost. All Alterations made by Tenant shall be made
in accordance with plans and specifications which have been
approved in writing by the Landlord (using the approval standard
set forth in first sentence hereof), pursuant to a duly issued
permit, and in accordance with all Laws and Restrictions, the
provisions of this Lease and in a good and first-class workmanlike
manner using new materials of same or better quality as base
building standard materials, free of all liens and encumbrances.
All Alterations shall be performed by a contractor or contractors
selected by Tenant and approved in writing by Landlord, such
approval not to be unreasonably withheld. Tenant shall pay Landlord
the direct cost it reasonably incurs in reviewing the plans
therefor and in monitoring the construction of the Alterations. If,
as a result of any Alterations made by Tenant, Landlord is
obligated to comply with the Americans With Disabilities Act or any
other Laws or Restrictions and such compliance requires Landlord to
make any improvement or Alteration to any portion of the Building,
as a condition to Landlord’s consent, Landlord shall have the
right to require Tenant to pay to Landlord prior to the
construction of any Alteration by Tenant, the entire cost of any
improvement or alteration Landlord is obligated to complete by such
law or regulation. Tenant agrees to obtain or cause its
contractor(s) to obtain, prior to the commencement of any work or
Alterations, “builder’s all risk” insurance in an
amount and with such coverages reasonably approved by Landlord and
worker’s compensation insurance in the statutorily required
amount(s) and evidence of all such insurance shall be furnished to
Landlord prior to the performance by such contractor(s) or
person(s) of any work in respect of the Premises. Landlord shall
have the right to stop any work not being performed in conformance
with this Lease, and, at its option, may repair or remove
non-
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conforming work
at the expense of Tenant. Tenant hereby indemnifies and holds
Landlord harmless from and against any liens, encumbrances and
violations of Laws and Restrictions arising from or relating to any
Alterations. The filing of any lien or encumbrance, or the
violation of Laws or Restrictions, shall constitute a default
hereunder. The repair and indemnity obligations of Tenant
hereunder, including Tenant’s obligations to repay Landlord
the cost of repairing or removing Alterations, shall survive the
termination of this Lease. All Alterations performed by Tenant in
the Premises shall remain therein (unless Landlord directs Tenant
to remove the same on termination or expiration of this Lease as
provided herein) and, at termination or expiration, shall be
surrendered as a part thereof, except for Tenant’s usual
trade furniture and equipment, if movable, installed prior to or
during the Lease term at Tenant’s cost, which trade furniture
and equipment Tenant shall remove in their entirety prior to the
termination or expiration of this Lease, provided that if Tenant is
then in default hereunder, Landlord may direct that no such trade
fixtures, furniture and equipment be removed. Subject to
Tenant’s restoration and repair obligations set forth herein,
Tenant shall surrender any LED lighting fixtures installed in the
office portion of the Premises for general illumination purposes.
Tenant agrees to repair any and all damage to the Premises
resulting from such removal (including removal of Tenant’s
Alterations directed by Landlord) or, if Landlord so elects, to pay
Landlord for the cost of any such repairs forthwith after billing
therefor. Notwithstanding anything contained herein to the
contrary, upon the specific written request of Tenant given at the
time of requesting consent for any Alterations, Landlord shall
identify (a) which Alterations (or group or pool of
Alterations) Landlord will require Tenant to remove at the
expiration of the Term or earlier termination of this Lease, and/or
(b) which Alterations (or group or pool of Alterations)
Landlord may require Tenant to remove at the expiration of the Term
or earlier termination of this Lease upon notice given to Tenant
not less than one hundred fifty (150) days prior to such
expiration or termination, and unless such Alterations are so
identified, Tenant shall have no obligation to remove any such
Alterations from the Premises at the expiration of the Term or
earlier termination of this Lease; provided, however, Landlord
shall not require Tenant to remove any Alterations identified
(pursuant to either Subsection (a) or (b)) which do not or
will not, in Landlord’s good faith belief, require
extraordinary expense to remove and/or re-adapt the Premises to
normal office use.
Subject to the
terms and conditions of this Section 4.3, Tenant shall have
the right to install in the Premises a wireless intranet, Internet,
and communications network (also known as “Wi-Fi”) for
the use of Tenant and its employees, clients, customers and
invitees within the Premises (the “Network”). Tenant
shall not solicit, suffer, or permit other tenants or occupants of
the Building to use the Network or any other communications
service, including, without limitation, any wired or wireless
Internet service that passes through, is transmitted through, or
emanates from the Premises. Tenant represents and warrants that
Tenant’s Network and the related communications equipment of
Tenant’s and/or its service providers and contractors located
in the Premises, including, without limitation, any antennas,
routers, access points, switches, or equipment (collectively,
“Tenant’s Communications Equipment”) shall be of
a type and, if applicable, frequency that will be consistent with
commercially accepted protocols and shall not cause radio
frequency, electromagnetic, or any other interference or
disturbance to any customary office equipment of any other party
including, without limitation, Landlord, other
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tenants, or
occupants of the Building, any adjacent building or property, or
any other party. In the event that Tenant’s Communications
Equipment causes or is believed to cause any such interference,
upon receipt of notice from Landlord of such interference, Tenant
will take all steps necessary to correct and eliminate the
interference. If the interference is not eliminated within 24 hours
(or a shorter period if Landlord believes a shorter period to be
appropriate) then, upon request from Landlord, Tenant shall shut
down the Tenant’s Communications Equipment pending resolution
of the interference, with the exception of intermittent testing
upon prior notice to and with the approval of Landlord, not to be
unreasonably withheld. Tenant’s installation, maintenance and
operation of the Network and Tenant’s Communications
Equipment shall comply with all applicable Laws and Restrictions
and the applicable provisions of this Lease including, without
limitation Section 4.2 above. Tenant acknowledges and agrees
that Tenant’s rights hereunder are not exclusive within the
Building and that Landlord has granted and/or may grant lease
rights, licenses, and other rights to various other tenants and
occupants of the Building and to telecommunications service
providers for similar and/or related uses. Tenant will defend,
indemnify and save Landlord harmless against and from any
liability, loss, injury, damage, claim or suit resulting directly
or indirectly from the installations, use and operation of
Tenant’s Network and Tenant’s Communications Equipment,
and this indemnity shall survive the termination of this
Lease.
d. INTENTIONALLY
OMITTED.
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Subject to the
provisions of this Section 4.5, and provided that
(i) Tenant is not in default of the terms and conditions of
this Lease (beyond any applicable notice or cure period), and (ii)
the Tenant originally named herein (or a Permitted Transferee)
occupies at least 17,850 rentable square feet of space in the
Building, the original named Tenant (or Permitted Transferee) shall
have the right, at its sole cost and expense, to maintain one
(1) exterior sign on the Route 128 side of the Building for
the purpose of identifying Tenant (“Building Signage”),
which Building Signage (including size, design, logo, color(s) and
degree of illumination, if any, and location on method of
attachment to the Building) shall be subject to the prior approval
of Landlord (such approval not to be unreasonably withheld) and
installed, maintained and operated in compliance with all
applicable Laws and Restrictions. Landlord reserves the right to
retain and grant other parties signage rights on Building. In no
event shall Tenant have the right to utilize more than an allocable
share of any such exterior signage based upon the square footage of
the Premises in relation to the total square footage of space in,
or signage available to, the Building. If necessary, Landlord shall
provide electrical service to the exterior portion of the Building
approximately where Tenant’s sign is to be located at
Tenant’s sole cost. Tenant shall be responsible for obtaining
and maintaining all necessary permits and approvals for such
signage, along with all costs and expenses incurred by Landlord in
connection therewith (including any taxes or assessments thereon
and the cost of providing and maintaining electrical service
thereto) and Landlord shall reasonably cooperate with Tenant in
connection with obtaining such permits and approvals. Tenant shall
pay such amounts within thirty (30) days of Landlord’s
invoice therefor. At the expiration of earlier termination of the
Lease, or in the event the original named Tenant (or Permitted
Transferee) ceases to occupy at least 17,850 rentable square feet
in the Building (except for periods of casualty, restoration or
remodeling), Landlord shall have the right, at Tenant’s sole
cost and expense, to remove Tenant’s Building Signage and
repair and restore the Building to the same or better condition
existing prior to such installation, or at Landlord’s
election, Landlord shall require Tenant to so repair or
restore.
i. Tenant
shall have the non-exclusive license, at no additional cost, to
install, operate and maintain, all in good order and repair, an
antenna or dish (“Antenna”) and supplemental HVAC unit
(“Tenant’s HVAC Unit”) on a portion or portions
of the roof of the Building (“Roof”) in compliance with
all of the terms and conditions of this Lease, including but not
limited to Section 4.2, and all of the specifications
described on Exhibit G attached hereto and incorporated herein
by this reference as the same may be reasonably amended by Landlord
from time to time (the “Specifications”). Tenant
acknowledges and agrees that the right granted to Tenant hereunder
is a non-exclusive license and is not a lease or an appurtenant
right to the Premises and, further, that Tenant’s liabilities
under this Lease are not contingent or conditioned upon its ability
to use the Antenna and Tenant shall continue to be obligated to
perform all of its obligations under the Lease if Tenant is unable
to use the Antenna. Tenant shall only use the Antenna to transmit
and receive data transmissions for Tenant’s use in the
Premises. No person or entity other than Tenant (or a Permitted
Transferee, subtenant, successor or assign) shall have the right to
use or receive transmissions from the Antenna.
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Burlington Woods — Color
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ii. The
Antenna and Tenant’s HVAC Unit shall be installed at a
location or locations on the Roof selected by Landlord, in its sole
but reasonable discretion, and Landlord shall have the right, to be
exercised in good faith, to require Tenant to relocate the Antenna,
but not Tenant’s HVAC Unit, from time to time, at
Tenant’s sole cost and expense; provided, however, Landlord
shall not require Tenant to so relocate its Antenna at
Tenant’s cost for purposes benefiting a third party,
including another Building Tenant or occupant. Landlord makes no
representation or warranty to Tenant that the Roof will be
satisfactory to Tenant or will permit Tenant to receive the
transmissions it desires to receive. Prior to installing or
replacing either the Antenna or Tenant’s HVAC Unit, Tenant
shall submit to Landlord plans and specifications for the
installation of the Antenna and/or Tenant’s HVAC Unit, as the
case may be, prepared by a licensed engineer reasonably
satisfactory to Landlord (the “Plans”). The Plans shall
be consistent with the Specifications, and otherwise reasonably
satisfactory to Landlord, and shall show the location of the
installations of the Antenna and/or Tenant’s HVAC Unit and
all related equipment and components on the Roof, the location and
type of all piping, conduit, wiring, cabling, the manner in which
the Antenna and/or Tenant’s HVAC Unit will be placed on and
fastened to the Roof and any other information requested by
Landlord, in Landlord’s good faith discretion. Landlord shall
have the right to require that the Antenna and/or Tenant’s
HVAC Unit not be visible from any location on the ground and/or
that the all such equipment be screened in a manner satisfactory to
Landlord, in Landlord’s good faith discretion. Landlord shall
have the right to employ an engineer or other consultant to review
the Plans and the reasonable, actual cost of such engineer or
consultant shall be paid by Tenant to Landlord within thirty
(30) days after request therefor. After Landlord has approved
the Plans and prior to installing the Antenna and/or Tenant’s
HVAC Unit and any related equipment, wiring, conduit, piping, or
cabling, Tenant shall obtain and provide to Landlord: (a) all
required governmental and quasi-governmental permits, licenses,
special zoning variances and authorizations, as required by
applicable Laws and Restrictions, all of which Tenant shall obtain
at its own cost and expense; and (b) a policy or certificate
of insurance evidencing such insurance coverage as may be
reasonably required by Landlord. Any alteration or modification of
the Antenna and/or Tenant’s HVAC Unit or any associated
piping, conduit, wiring, cabling, equipment after the Plans have
been approved shall require Landlord’s prior written
approval, which may be given or withheld in Landlord’s good
faith discretion.
iii. Installation
and maintenance of the Antenna, Tenant’s HVAC Unit or any
associated piping, conduit, wiring, cabling, equipment shall be
performed solely by contractors approved by Landlord, in its
reasonable discretion. Landlord’s may require Tenant to use a
roofing contractor selected by Landlord to perform any work that
could damage, penetrate or alter the Roof and an electrician
selected by Landlord to install any associated piping, conduit,
wiring, cabling, equipment on the Roof or in the Building. Landlord
may require anyone going on the Roof to execute in advance a
liability waiver satisfactory to Landlord. Tenant shall bear all
costs and expenses incurred in connection with the installation,
operation and maintenance of the Antenna and Tenant’s HVAC
Unit.
iv. Tenant
acknowledges that Landlord may decide, in its good faith
discretion, from time to time, to repair or replace the Roof
(hereinafter “Roof Repairs”). If Landlord elects to
make Roof Repairs, Tenant shall, upon Landlord’s request,
temporarily remove the Antenna so that the Roof Repairs may be
completed. The cost of removing and reinstalling the
Antenna
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shall be paid
by Tenant, at Tenant’s sole cost and expense. Landlord shall
not be liable to Tenant for any damages, lost profits or other
costs or expenses incurred by Tenant as the result of the Roof
Repairs.
v. On the
termination or expiration of the Lease, Tenant shall remove the
Antenna and all associated conduit, wiring, cabling, equipment and
repair any damages caused thereby, at Tenant’s sole cost and
expense. If Tenant does not remove the Antenna on or before the
date this Lease terminates or expires, Tenant hereby authorizes
Landlord to remove and dispose of the Antenna and associated
conduit, wiring, cabling, equipment, and Tenant shall promptly
reimburse Landlord for the costs and expenses it incurs in removing
and disposing of same and repairing any damages caused thereby.
Tenant agrees that Landlord may dispose of the Antenna and any
associated conduit, wiring, cabling, equipment in any manner
selected by Landlord.
vi. Tenant’s
license to operate and maintain the Antenna and Tenant’s HVAC
Unit shall automatically expire and terminate on the date that the
term of the Lease expires or is otherwise terminated. This license
to operate and maintain the Antenna shall also terminate if any of
the following continue for more than three (3) days after
written notice from Landlord to Tenant: (a) the Antenna is causing
physical damage to the Building or the Roof, (b) the Antenna
is interfering with the normal or customary transmission or receipt
of transmission or receipt of signals from or to the Building,
(c) the Antenna is causing Landlord to be in violation of any
agreement to which Landlord is a party or (d) the Antenna is
causing Landlord to be in violation any local, state or federal
law, regulation or ordinance.
5. ASSIGNMENT
AND SUBLETTING
i. Except as
expressly provided in this Article 5, Tenant covenants and
agrees that it will not assign this Lease or sublet (which term,
without limitation, shall include the granting of any concessions,
licenses, occupancy rights, management arrangements and the like)
the whole or any part of the Premises without, in each instance,
having first received the express, written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. A
change in Tenant’s name shall not constitute an assignment or
sublease hereunder, provided Tenant notifies Landlord in writing of
such name change prior to making such change. Tenant shall not
collaterally assign this Lease (or any portion thereof) or permit
any assignment of this Lease by mortgage, other encumbrance or
operation of law.
ii. Without
limitation, it shall not be unreasonable for Landlord to withhold
such approval from any assignment or subletting where, in
Landlord’s opinion: (i) the proposed assignee or
sublessee does not have a financial standing and credit rating
reasonably acceptable to Landlord, provided, however, Landlord
acknowledges that potential sublessees could include one or more
“start-up” entities; (ii) the proposed assignee or
sublessee has a bad or negative reputation in the community;
(iii) the business in which the proposed assignee or sublessee
is engaged could detract from the Building, its value or the costs
of ownership thereof; (iv) the rent to be paid by any proposed
sublessee is less than the then current fair market rent for
comparable sublease space in the Northwest Boston Suburban market;
(v) the proposed sublessee or assignee is a current tenant or
a prospective tenant (meaning such tenant has been shown space or
has
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been presented
with or has made an offer to lease space) of the Building or of the
Office Park and Landlord (or a Landlord affiliated entity) is able
to provide suitable space for such tenant; (vi) the use of the
Premises by any sublessee or assignee (if different from the
Permitted Use) violates any use restriction granted by Landlord in
any other lease or would otherwise cause Landlord to be in
violation of its obligations under another lease or agreement to
which Landlord is a party; (vii) if such assignment or
subleasing is not approved of by the holder of any mortgage on the
Property (if such approval is required); (viii) a proposed
assignee’s or subtenant’s business will impose a burden
on the Property’s parking facilities, elevators, common
areas, facilities, or utilities that is greater than the burden
imposed by Tenant, in Landlord’s reasonable judgment;
(ix) any guarantor of this Lease refuses to consent to the
proposed transfer or to execute a written agreement reaffirming the
guaranty; (x) Tenant is in default of any of its obligations
under the Lease (beyond any applicable notice or cure period) at
the time of the request or at the time of the proposed assignment
or sublease; (xi) if requested by Landlord, the assignee or
subtenant refuses to sign a non-disturbance and attornment
agreement in favor of Landlord’s lender; (xii) Landlord
has sued or been sued by the proposed assignee or subtenant or has
otherwise been involved in a legal dispute with the proposed
assignee or subtenant; (xiii) the assignee or subtenant is involved
in a business which is not in keeping with the then current
standards of the Property; (xiv) the assignment or sublease
will result in there being more than one (1) subtenant of the
Premises; or (xv) the assignee or subtenant is a governmental
or quasi-governmental entity or an agency, department or
instrumentality of a governmental or quasi-governmental agency. In
no event, however, shall Tenant assign this Lease or sublet the
whole or any part of the Premises to a proposed assignee or
sublessee which has been judicially declared bankrupt or insolvent
according to law, or with respect to which an assignment has been
made of property for the benefit of creditors, or with respect to
which a receiver, guardian, conservator, trustee in involuntary
bankruptcy or similar officer has been appointed to take charge of
all or any substantial part of the proposed assignee’s or
sublessee’s property by a court of competent jurisdiction, or
with respect to which a petition has been filed for reorganization
under any provisions of the Bankruptcy Code now or hereafter
enacted, or if a proposed assignee or sublessee has filed a
petition for such reorganization, or for arrangements under any
provisions of the Bankruptcy Code now or hereafter enacted and
providing a plan for a debtor to settle, satisfy or extend the time
for the payment of debts.
iii. Any
request by Tenant for such consent shall set forth or be
accompanied by, in detail reasonably satisfactory to Landlord, the
identification of the proposed assignee or sublessee, its financial
condition and the terms on which the proposed assignment or
subletting is to be made, including, without limitation, a signed
copy of all assignment and sublease documents, and clearly stating
the rent or any other consideration to be paid in respect thereto;
and such request shall be treated as Tenant’s warranty in
respect of the information submitted therewith. Tenant’s
request shall not be deemed complete or submitted until all of the
foregoing information has been received by Landlord. Landlord shall
respond to such request for consent within twenty (20) days
following Landlord’s receipt of all information,
documentation and security required by Landlord with respect to
such proposed sublease or assignment.
iv. The foregoing
restrictions shall be binding on any assignee or sublessee to which
Landlord has consented, provided, notwithstanding anything else
contained in this Lease,
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Landlord’s consent to any further
assignment, subleasing or any sub-subleasing by any approved
assignee or sublessee may be withheld by Landlord at
Landlord’s sole and absolute discretion.
v. Consent by
Landlord to any assignment or subleasing shall not include consent
to the assignment or transferring of any lease renewal, extension
or other option, first offer, first refusal or other rights granted
hereunder, or any special privileges or extra services granted to
tenant by separate agreement (written or oral), or by addendum or
amendment of the Lease.
vi. In the
case of any assignment of this Lease or subletting of the Premises,
the Tenant named herein shall be and remain fully and primarily
liable for the obligations of Tenant hereunder, notwithstanding
such assignment or subletting, including, without limitation, the
obligation to pay the Fixed Rent and other amounts provided under
this Lease, and the Tenant shall be deemed to have waived all
suretyship defenses.
vii. In
addition to the foregoing, it shall be a condition of the validity
of any such assignment or subletting that the assignee or sublessee
agrees directly with Landlord, in form satisfactory to Landlord, to
be bound by all the obligations of Tenant hereunder, including,
without limitation, the obligation to pay Fixed Rent and other
amounts provided for under this Lease, the covenant regarding use
and the covenant against further assignment and
subletting.
b.
REIMBURSEMENT, RECAPTURE AND EXCESS RENT.
i. Tenant
shall, upon demand, reimburse Landlord for the reasonable fees and
expenses (including legal and administrative fees and costs)
incurred by Landlord in processing any request to assign this Lease
or to sublet all or any portion of the Premises, whether or not
Landlord agrees thereto, and if Tenant shall fail promptly so to
reimburse Landlord, the same shall be a default in Tenant’s
monetary obligations under this Lease subject to the applicable
grace and cure period set forth in Section 12.1(b).
ii. If Tenant
requests Landlord’s consent to assign this Lease or sublet
any portion of the Premises (other than in connection with a
Permitted Transfer), Landlord shall have the option, exercisable by
written notice to Tenant given within fifteen (15) business
days after Landlord’s receipt of Tenant’s notice of its
intent to sublet all or any portion of the Premises for the
remainder of the Term of this Lease or to assign its interest in
this Lease, to (a) terminate this Lease as of the date
specified by Landlord, which shall not be less than thirty
(30) nor more than one hundred twenty (120) days after
the date of such notice of the whole Premises, or
(b) terminate this Lease as of the date specified by Landlord,
which shall not be less than thirty (30) nor more than one
hundred twenty (120) days after the date of such notice, as to
the portion Premises in the case of a proposed subletting of a
portion Premises for the remainder of the Term of this Lease. In
the event of termination in respect of a portion of the Premises,
the portion so eliminated shall be delivered to Landlord on the
date specified in good order and condition in the manner provided
in Section 4.2 at the end of the Term and thereafter, to the
extent necessary in Landlord’s good faith judgment, Landlord,
at its own cost and expense, may have access to and may make
modification to the Premises (or portion thereof) so as to make
such portion a self-contained rental unit with access to common
areas, elevators and the like; provided, however, that Landlord
shall use reasonable efforts not to interfere with Tenant’s
use of the remaining
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portion of the
Premises, if any. Fixed Rent and the Rentable Floor Area of the
Premises shall be adjusted according to the extent of the Premises
for which the Lease is terminated.
iii. Without
limitation of the rights of Landlord hereunder in respect thereto,
if there is any assignment of this Lease by Tenant for
consideration or a subletting of the whole of the Premises by
Tenant at a rent which exceeds the rent payable hereunder by
Tenant, or if there is a subletting of a portion of the Premises by
Tenant at a rent in excess of the subleased portion’s pro
rata share of the rent payable hereunder by Tenant, then Tenant
shall pay to Landlord, as additional rent, forthwith upon
Tenant’s receipt of, in the case of an assignment, fifty
percent (50%) all of the consideration (or the cash equivalent
thereof) therefor and in the case of a subletting, fifty percent
(50%) all of any such excess rent. For the purposes of this
subsection, the term “rent” shall mean all Fixed Rent,
additional rent or other payments and/or consideration payable by
one party to another for the use and occupancy of all or a portion
of the Premises including, without limitation, key money, or bonus
money paid by the assignee or subtenant to Tenant in connection
with such transaction and any payment in excess of fair market
value for services rendered by Tenant to the assignee or subtenant
or for assets, fixtures, inventory, equipment or furniture
transferred by Tenant to the assignee or subtenant in connection
with any such transaction, but shall exclude any separate payments
by Tenant for reasonable attorney’s fees and broker’s
commissions, market-based remodeling costs tenant improvement
allowances (provided same shall not relate to, or reimburse Tenant
for, Tenant’s repair, maintenance and yield-up obligations
under this Lease) in connection with such assignment or
subletting.
iv. If the
Premises or any part thereof are sublet by Tenant, following the
occurrence of a default which has continued beyond the applicable
cure period, Landlord, in addition to any other remedies provided
hereunder or at law, may at its option collect directly from such
sublessee(s) all rents becoming due to the Tenant under such
sublease(s) and apply such rent against any amounts due Landlord by
Tenant under this Lease, and Tenant hereby irrevocably authorizes
and directs such sublessee(s) to so make all such rent payments, if
so directed by Landlord; and it is understood that no such election
or collection or payment shall be construed to constitute a
novation of this Lease or a release of Tenant hereunder, or to
create any lease or occupancy agreement between the Landlord and
such subtenant or impose any obligations on Landlord, or otherwise
constitute the recognition of such sublease by Landlord for any
purpose whatsoever.
v. The
following terms and conditions shall apply to any subletting by
Tenant of all or any part of the Premises and shall be deemed
included in all subleases under this Lease whether or not expressly
incorporated therein:
Tenant hereby
absolutely and unconditionally assigns and transfers to Landlord
all of Tenant’s interest in all rentals and income arising
from any sublease entered into by Tenant, and Landlord may collect
such rent and income and apply same toward Tenant’s
obligations under this Lease; provided, however, that until a
default occurs in the performance of Tenant’s obligations
under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this
or any other assignment of such rents to Landlord nor by reason of
the collection of the rents from a subtenant, be deemed to have
assumed or recognized any sublease or to be liable to the subtenant
for any failure of Tenant to perform and
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comply with any
of Tenant’s obligations to such subtenant under such
sublease, including, but not limited to, Tenant’s obligation
to return any security deposit. Tenant hereby irrevocably
authorizes and directs any such subtenant, upon receipt of a
written notice from Landlord stating that a default exists in the
performance of Tenant’s obligations under this Lease, to pay
to Landlord the rents due as they become due under the sublease.
Tenant agrees that such subtenant shall have the right to rely upon
any such statement and request from Landlord, and that such
subtenant shall pay such rents to Landlord without any obligation
or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the
contrary. In the event Tenant shall default in the performance of
its obligations under this Lease or Landlord terminates this Lease
by reason of a default of Tenant, Landlord at its option and
without any obligation to do so, may require any subtenant to
attorn to Landlord, in which event Landlord shall undertake the
obligations of Tenant under such sublease from the time of the
exercise of said option to the termination of such sublease;
provided, however, Landlord shall not be liable for any prepaid
rents or security deposit paid by such subtenant to Tenant or for
any other prior defaults of Tenant under such sublease.
i. If at any
time Tenant’s interest in this Lease is held by a
corporation, trust, partnership, limited liability company or other
entity, the transfer of a controlling interest in or of the voting
stock, beneficial interests, partnership interests, membership
interests or other ownership interests therein (whether at one time
or in the aggregate) shall be deemed an assignment of this Lease,
and shall require Landlord’s prior written consent, which
consent shall be subject to the standard set forth in
Section 5.1.1 above. The foregoing provisions shall not be
applicable so long as the Tenant is a corporation, the outstanding
voting stock of which is listed on a recognized security exchange,
or if at least 80% of its voting stock is owned by another
corporation, the voting stock of which is so listed. For the
purposes hereof, a “controlling interest” shall mean
any transfer that results in the change (whether at one time or in
the aggregate) in the effective control over the management of such
entity.
ii. To enable
Landlord to determine the ownership of Tenant, Tenant agrees to
furnish to Landlord, from time to time promptly after
Landlord’s request therefor, (i) if the next to last
sentence of subsection 5.3.1 if applicable, proof of listing on a
recognized security exchange, or (ii) if the last sentence of
subsection 5.3.1 is not applicable, an accurate and complete
listing of the holders of its stock, beneficial interests,
partnership interests, membership interests or other ownership
interests therein as of such request and as of the date of this
Lease. Landlord shall use reasonable efforts to keep confidential
any information received by Landlord pursuant to this
Section 5.3, provided, however, that Landlord shall have the
right to disclose any such information to existing or prospective
mortgagees, or prospective purchasers of the Building.
iii.
Notwithstanding any other provision of this Section, transactions
with an entity (i) into or with which Tenant is merged or
consolidated, (ii) to which substantially all of
Tenant’s assets are transferred as a going concern, or
(iii) which controls or is controlled by Tenant or is under
common control with Tenant, shall not be deemed to be an assignment
or subletting within the meaning of this Section, provided that in
any of such events (1) Landlord receives prior
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written notice
of any such transactions, (2) the assignee or subtenant agrees
directly with Landlord, by written instrument in form reasonably
satisfactory to Landlord, to be bound by all the obligations of
Tenant hereunder including, without limitation, the covenant
against further assignment and subletting, (3) in no event
shall Tenant be released from its obligations under this Lease,
(4) any such transfer or transaction is for a legitimate,
regular business purpose of Tenant other than a transfer of
Tenant’s interest in this Lease, and (5) the involvement
by Tenant or its assets in any transaction, or series of
transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise) whether or
not a formal assignment or hypothecation of this Lease or
Tenant’s assets occurs, will not result in a reduction of the
“Net Worth” of Tenant (or its successor) as hereinafter
defined, by an amount equal to such Net Worth of Tenant as it is
represented to Landlord at the time of the execution by Landlord of
this Lease, or as it exists immediately prior to said transaction
or transactions constituting such reduction, at whichever time said
Net Worth of Tenant was or is greater. “Net Worth” of
Tenant for purposes of this section shall be the net worth of
Tenant (excluding any guarantors) established under generally
accepted accounting principles consistently applied. The
transactions described in this Section 5.3.3 are referred to
as “Permitted Transfers” and the assignees of such
transactions are referred to as “Permitted
Transferees”.
6. CONDITION OF
PREMISES AND RESPONSIBILITY FOR REPAIRS
a. CONDITION OF
PREMISES. [to be determined]
b.
TENANT’S IMPROVEMENTS. [to be determined]
c. REPAIRS TO
BE MADE BY LANDLORD.
i. Except as
otherwise provided in this Lease, Landlord agrees to keep in good
order, condition and repair consistent with the first-class nature
of the Building, the roof (including the roof membrane), exterior
walls, structural components and common building systems (including
the electrical, mechanical and plumbing systems) of the Building
insofar as they affect or serve the Premises and the appurtenant
Common Areas of the Building, and to maintain, repair and, as
necessary or desirable, replace the HVAC system and equipment
serving the Premises, unless installed by or for Tenant. Landlord
shall comply with all present and future Laws and Restrictions
applicable to the Common Areas of the Building insofar as the same
affect Tenant’s use of the Premises. Without limitation,
Landlord shall in no event be responsible to Tenant for the
condition of glass in and about the Premises or for the doors
leading to the Premises, or for any improvements, additions or
alterations [TO BE DETERMINED: (including the Tenant’s
Improvements)] installed by or for the Tenant, or for any
plumbing or electrical fixtures located exclusively within the
Premises, or for any for any condition in the Premises or the
Building caused by any act or neglect of Tenant or any contractor,
agent, employee or invitee of Tenant, or anyone claiming by,
through or under Tenant. Landlord also agrees to maintain the
parking areas, roadways and landscaping on the property surrounding
the Building in good order and repair and shall keep the parking
areas and roadways reasonably free of snow and ice accumulation.
Landlord shall not be responsible to make any improvements or
repairs to the Building or the Premises other than as expressed in
this Section unless expressly otherwise provided in this Lease. All
costs incurred by Landlord in
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connection with
the foregoing obligations shall be included as part of Operating
Expenses as and to the extent set forth in Section 8.2
below.
ii. Landlord
shall never be liable for any failure to make repairs which, under
the provisions of this Section or elsewhere in this Lease, Landlord
has undertaken to make unless: (a) Tenant has given notice to
Landlord of the need to make such repairs as a result of a
condition in the Building or in the Premises requiring any repair
for which Landlord is responsible; and (b) Landlord has failed to
commence to make such repairs within a reasonable time after
receipt of such notice if any repairs are, in fact, necessary;
provided, however, the foregoing shall not be construed to
alleviate Landlord’s obligations to perform its obligations
hereunder in a commercially reasonable manner.
d. MAINTENANCE
AND REPAIRS TO BE MADE BY TENANT.
i. Tenant
covenants and agrees that Tenant will keep neat and clean and
maintain in good order, condition and repair, the Premises and
every part thereof (and any signs or Lighting Systems permitted
hereunder) throughout the Lease Term, excepting only those repairs
for which Landlord is responsible under the terms of this Lease,
damage by fire or other casualty or as a consequence of the
exercise of the power of eminent domain and reasonable wear and
tear and Tenant shall surrender the Premises at the end of the Term
in such condition. Without limitation, Tenant shall maintain and
use the Premises in accordance with all Laws and Restrictions and
shall, at Tenant’s own expense obtain and maintain in effect
all permits, licenses and the like required by applicable law.
Tenant shall not permit or commit any waste, and Tenant shall be
responsible for the cost of repairs which may be made necessary by
reason of damage to any areas in the Building or Office Park,
including the Premises, by Tenant, Tenant’s contractors or
Tenant’s agents, employees, invitees, or anyone claiming by,
through or under Tenant. Landlord may replace as needed any non-LED
bulbs and ballasts in the Premises during the Lease Term at
Tenant’s cost and expense, or Landlord may require Tenant to
replace the same (and/or LED bulbs), at Tenant’s cost and
expense.
ii. If
repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith,
and if Tenant fails, refuses or neglects to commence such repairs
and complete the same with reasonable dispatch after such demand,
Landlord may (but shall not be obligated to) make or cause such
repairs to be made and shall not be responsible to Tenant for any
loss or damage that may accrue to Tenant’s stock or business
by reason thereof. If Landlord makes or causes such repairs to be
made, Tenant agrees that Tenant will forthwith, on demand, pay to
Landlord the cost thereof, and if Tenant shall fail to so reimburse
Landlord upon demand, Landlord shall have the remedies provided for
the nonpayment of rent or other charges payable
hereunder.
e. FLOOR LOAD
— HEAVY MACHINERY; OCCUPANT DENSITY.
i. Tenant shall
not place a load upon any floor in the Premises exceeding the floor
load per square foot of area which such floor was designed to carry
and which is allowed by law. Landlord reserves the right 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
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Tenant’s
expense in settings sufficient, in Landlord’s reasonable
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, not to be unreasonably
withheld.
ii. If 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 said work, and that
all work in connection therewith shall comply with 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. Tenant
shall schedule such moving at such times as Landlord shall require
for the convenience of the normal operations of the
Building.
iii. Tenant
shall maintain a ratio of not more than one Occupant (as defined
below) per square foot of rentable area in the Premises as required
by applicable federal, state and local building codes and
requirements. Upon request by Landlord, Tenant shall maintain on a
daily basis an accurate record of the number
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