Back to top

EXPANSION OPTION AGREEMENT

Option Agreement

EXPANSION OPTION AGREEMENT | Document Parties: COLOR KINETICS INC | Finard Properties LLC, | THREE BURLINGTON WOODS LLC You are currently viewing:
This Option Agreement involves

COLOR KINETICS INC | Finard Properties LLC, | THREE BURLINGTON WOODS LLC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: EXPANSION OPTION AGREEMENT
Governing Law: Massachusetts     Date: 1/10/2007
Industry: Furniture and Fixtures     Sector: Consumer Cyclical

EXPANSION OPTION AGREEMENT, Parties: color kinetics inc , finard properties llc  , three burlington woods llc
50 of the Top 250 law firms use our Products every day
 

Exhibit 99.2

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 ”).

BACKGROUND :

     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.

AGREEMENTS :

     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.

 

 

 

 

 

 

 

 

 

TENANT:
COLOR KINETICS INCORPORATED

 

 

 

LANDLORD:
BURLINGTON WOODS OFFICE TRUST NO. 2

 

 

 

 

 

 

 

 

 

By:

 

/s/ William J. Sims

 

 

 

By:

 

/s/ William G. Finard

 

 

 

 

 

 

 

 

 

 

 

Name: William J. Sims
Title: President and CEO
          Hereunto duly authorized

 

 

 

 

 

William G. Finard, as Trustee and not individually

 

 

 

 

 

 

 

 

 

By:

 

/s/ David K. Johnson

 

 

 

By:

 

/s/ David T. Ting

 

 

 

 

 

 

 

 

 

 

 

Name: David K. Johnson
Title: Senior VP, CFO and Treasurer
          Hereunto duly authorized

 

 

 

 

 

David T. Ting, as Trustee and not individually

iv


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

Exhibit “A”

Form of Expansion Space Lease

v


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

LEASE

BURLINGTON WOODS OFFICE PARK

2 Burlington Woods Drive, Burlington, Massachusetts

Premises: Portion of the Third (3 rd ) Floor
Tenant: COLOR KINETICS INCORPORATED

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

1.

 

 

 

 

 

BASIC LEASE PROVISIONS

 

 

1

 

 

 

 

1.1

 

 

INTRODUCTION.

 

 

1

 

 

 

 

1.2

 

 

BASIC DATA AND DEFINITIONS.

 

 

1

 

2.

 

 

 

 

 

DEMISING OF PREMISES, TERM, OPTIONS

 

 

2

 

 

 

 

2.1

 

 

DEMISE OF PREMISES.

 

 

2

 

 

 

 

2.2

 

 

APPURTENANT RIGHTS AND RESERVATIONS.

 

 

2

 

 

 

 

2.3

 

 

TERM.

 

 

3

 

 

 

 

2.4

 

 

OPTION TO EXTEND THE TERM.

 

 

3

 

 

 

 

2.5

 

 

RIGHT OF FIRST OFFER ON CERTAIN ADDITIONAL SPACE.

 

 

4

 

 

 

 

2.6

 

 

INTENTIONALLY OMITTED.

 

 

5

 

3.

 

 

 

 

 

RENT

 

 

5

 

 

 

 

3.1

 

 

FIXED RENT.

 

 

5

 

 

 

 

3.2

 

 

FIXED RENT FOR AVAILABLE SPACE AND DURING ANY EXTENSION TERM.

 

 

6

 

 

 

 

3.3

 

 

LATE PAYMENT.

 

 

8

 

4.

 

 

 

 

 

USE OF PREMISES; ALTERATIONS

 

 

8

 

 

 

 

4.1

 

 

PERMITTED USE.

 

 

8

 

 

 

 

4.2

 

 

ALTERATIONS.

 

 

11

 

 

 

 

4.3

 

 

WIRELESS NETWORK.

 

 

12

 

 

 

 

4.4

 

 

INTENTIONALLY OMITTED.

 

 

13

 

 

 

 

4.5

 

 

EXTERIOR SIGNAGE.

 

 

14

 

 

 

 

4.6

 

 

ROOF LICENSE.

 

 

14

 

5.

 

 

 

 

 

ASSIGNMENT AND SUBLETTING

 

 

16

 

 

 

 

5.1

 

 

GENERALLY.

 

 

16

 

 

 

 

5.2

 

 

REIMBURSEMENT, RECAPTURE AND EXCESS RENT.

 

 

18

 

 

 

 

5.3

 

 

CERTAIN TRANSFERS.

 

 

20

 

6.

 

 

 

 

 

CONDITION OF PREMISES AND RESPONSIBILITY FOR REPAIRS

 

 

21

 

 

 

 

6.1

 

 

CONDITION OF PREMISES. [to be determined]

 

 

21

 

 

 

 

6.2

 

 

TENANT’S IMPROVEMENTS. [to be determined]

 

 

21

 

 

 

 

6.3

 

 

REPAIRS TO BE MADE BY LANDLORD.

 

 

21

 

 

 

 

6.4

 

 

MAINTENANCE AND REPAIRS TO BE MADE BY TENANT.

 

 

22

 

 

 

 

6.5

 

 

FLOOR LOAD — HEAVY MACHINERY; OCCUPANT DENSITY.

 

 

22

 

7.

 

 

 

 

 

SERVICES; UTILITY CHARGES

 

 

23

 

 

 

 

7.1

 

 

LANDLORD’S SERVICES.

 

 

23

 

 

 

 

7.2

 

 

UTILITY SERVICES AND CHARGES.

 

 

24

 

 

 

 

7.3

 

 

ELECTRICAL SERVICE AND ELECTRICAL CHARGE.

 

 

25

 

vi


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

 

 

 

 

 

 

 

 

 

 

 

8.

 

 

 

 

 

ADDITIONAL RENT FOR TAXES AND OPERATING EXPENSES

 

 

25

 

 

 

 

8.1

 

 

TENANT’S PAYMENT OF ITS SHARE OF REAL ESTATE TAXES.

 

 

25

 

 

 

 

8.2

 

 

TENANT’S PAYMENT OF ITS SHARE OF OPERATING EXPENSES.

 

 

27

 

9.

 

 

 

 

 

INDEMNITY AND INSURANCE

 

 

31

 

 

 

 

9.1

 

 

INDEMNITY.

 

 

31

 

 

 

 

9.2

 

 

INSURANCE.

 

 

31

 

 

 

 

9.3

 

 

TENANT’S RISK.

 

 

33

 

 

 

 

9.4

 

 

INJURY CAUSED BY THIRD PARTIES.

 

 

33

 

 

 

 

9.5

 

 

LANDLORD’S INSURANCE.

 

 

33

 

10.

 

 

 

 

 

LANDLORD’S ACCESS TO PREMISES

 

 

33

 

 

 

 

10.1

 

 

LANDLORD’S RIGHT OF ACCESS.

 

 

33

 

 

 

 

10.2

 

 

EXHIBITION OF SPACE TO PROSPECTIVE TENANTS.

 

 

34

 

 

 

 

10.3

 

 

KEYS.

 

 

34

 

11.

 

 

 

 

 

FIRE, EMINENT DOMAIN, ETC.

 

 

34

 

 

 

 

11.1

 

 

FIRE OR OTHER CASUALTY.

 

 

34

 

 

 

 

11.2

 

 

EMINENT DOMAIN.

 

 

35

 

12.

 

 

 

 

 

DEFAULT

 

 

36

 

 

 

 

12.1

 

 

TENANT’S DEFAULT.

 

 

36

 

 

 

 

12.2

 

 

REMEDIES.

 

 

37

 

 

 

 

12.3

 

 

INTEREST ON LATE PAYMENTS.

 

 

39

 

 

 

 

12.4

 

 

LANDLORD’S DEFAULT.

 

 

39

 

 

 

 

12.5

 

 

COSTS OF ENFORCEMENT.

 

 

40

 

 

 

 

12.6

 

 

BANKRUPTCY AND INSOLVENCY.

 

 

40

 

 

 

 

12.7

 

 

LIMITATIONS ON ENFORCEMENT.

 

 

41

 

13.

 

 

 

 

 

MISCELLANEOUS PROVISIONS

 

 

41

 

 

 

 

13.1

 

 

EXTRA HAZARDOUS USE.

 

 

41

 

 

 

 

13.2

 

 

WAIVER.

 

 

41

 

 

 

 

13.3

 

 

COVENANT OF QUIET ENJOYMENT.

 

 

42

 

 

 

 

13.4

 

 

LANDLORD’S LIABILITY.

 

 

42

 

 

 

 

13.5

 

 

NOTICE TO MORTGAGEE AND GROUND LESSOR.

 

 

43

 

 

 

 

13.6

 

 

ASSIGNMENT OF RENTS.

 

 

43

 

 

 

 

13.7

 

 

MECHANIC’S LIENS.

 

 

43

 

 

 

 

13.8

 

 

NO BROKERAGE.

 

 

44

 

 

 

 

13.9

 

 

INVALIDITY OF PARTICULAR PROVISIONS.

 

 

44

 

 

 

 

13.10

 

 

PROVISIONS BINDING, ETC.

 

 

44

 

 

 

 

13.11

 

 

RECORDING.

 

 

45

 

 

 

 

13.12

 

 

NOTICES.

 

 

45

 

 

 

 

13.13

 

 

WHEN LEASE BECOMES BINDING.

 

 

45

 

 

 

 

13.14

 

 

PARAGRAPH HEADINGS.

 

 

46

 

 

 

 

13.15

 

 

RIGHTS OF MORTGAGEE.

 

 

46

 

 

 

 

13.16

 

 

STATUS REPORT.

 

 

46

 

 

 

 

13.17

 

 

TENANT’S FINANCIAL CONDITION.

 

 

47

 

 

 

 

13.18

 

 

ADDITIONAL REMEDIES OF LANDLORD; SURVIVAL.

 

 

48

 

 

 

 

13.19

 

 

WAIVER OF COUNTERCLAIMS.

 

 

48

 

 

 

 

13.20

 

 

CONSENTS.

 

 

48

 

 

 

 

13.21

 

 

HOLDING OVER.

 

 

49

 

vii


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13.22

 

 

NON-SUBROGATION.

 

 

49

 

 

 

 

13.23

 

 

ENVIRONMENTAL HAZARDS.

 

 

49

 

 

 

 

13.24

 

 

LETTER OF CREDIT.

 

 

51

 

 

 

 

13.25

 

 

GOVERNING LAW.

 

 

51

 

 

 

 

13.26

 

 

INTENTIONALLY OMITTED.

 

 

52

 

 

 

 

13.27

 

 

SECURITY MEASURES.

 

 

52

 

 

 

 

13.28

 

 

EASEMENTS.

 

 

52

 

 

 

 

13.29

 

 

CHANGES TO PROPERTY.

 

 

52

 

 

 

 

13.30

 

 

INCORPORATION OF PRIOR AGREEMENTS.

 

 

53

 

 

 

 

13.31

 

 

AMENDMENTS.

 

 

53

 

 

 

 

13.32

 

 

COVENANTS.

 

 

53

 

 

 

 

13.33

 

 

AUCTIONS.

 

 

53

 

 

 

 

13.34

 

 

MERGER.

 

 

53

 

 

 

 

13.35

 

 

AUTHORITY.

 

 

53

 

 

 

 

13.36

 

 

RELATIONSHIP OF PARTIES.

 

 

54

 

 

 

 

13.37

 

 

RIGHT TO LEASE.

 

 

54

 

 

 

 

13.38

 

 

INTENTIONALLY OMITTED.

 

 

54

 

 

 

 

13.39

 

 

OFAC CERTIFICATION AND INDEMNITY.

 

 

54

 

 

 

 

13.40

 

 

WAIVER OF JURY TRIAL.

 

 

55

 

viii


 

LEASE

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

a.     INTRODUCTION.

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.

 

 

 

Lease Date:

 

[                       ___, 200___].

 

 

 

Landlord:

 

BURLINGTON WOODS OFFICE TRUST NO. 2

 

 

 

Present Mailing Address of Landlord:

 

c/o Finard Properties LLC
One Burlington Woods Drive
Burlington, Massachusetts 01803

 

 

 

Tenant:

 

COLOR KINETICS INCORPORATED,
a Delaware corporation.

 

 

 

Present Mailing Address of Tenant:

 

Three Burlington Woods Drive
Burlington, Massachusetts 01803

 

 

 

Term or original Term:

 

[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)).

 

 

 

Scheduled Commencement Date:

 

                                         [TO BE DETERMINED] .

 

 

 

Estimated Delivery Date:

 

                                         [TO BE DETERMINED] .

 

 

 

Fixed Rent:

 

Lease Year     PSF     Annual Fixed Rent     Monthly Installment
[TO BE DETERMINED]

 

 

 

Electrical Charge:

 

Premises are separately metered.

 

 

 

Option Periods:

 

Two (2) extension periods of five (5) years each.

 

 

 

Premises:

 

The portion of the Building (as defined above) located on the third (3 rd ) floor, and shown as outlined on Exhibit A attached hereto.

 


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

 

 

 

Rentable Floor Area of the Premises:

 

Approximately 9,963 square feet.

 

 

 

Rentable Floor Area of the Building:

 

Approximately 26,729 square feet.

 

 

 

Permitted Use:

 

First-class office space, and no other use except as expressly set forth in the Lease (including Section 4.1.1 below).

 

 

 

Letter of Credit Amount:

 

[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.

 

 

 

Brokers:

 

Spaulding and Slye, a member of the Jones Lang LaSalle group and GVA Thompson Doyle Hennessey and Stevens.

 

 

 

Tax Base:

 

The Taxes for Tax Year ___ (the fiscal year ending June 30, ___), as provided in Section 8.1.

 

 

 

Base Operating Expenses:

 

The Operating Expenses for Operating Year ___ (currently the calendar year ending December 31, ___), as provided in Section 8.2.

2.     DEMISING OF PREMISES, TERM, OPTIONS

a.     DEMISE OF PREMISES.

     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.

c.     TERM.

     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.

3.     RENT

a.     FIXED RENT.

     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:

 

a)

 

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.

 

 

 

 

 

b)

 

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.

 

 

 

 

 

c)

 

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

7


 

 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

 

 

 

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.

 

d)

 

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.

     iii. During the Extension Term, Tenant shall continue to pay all additional rent and other payments as provided in this Lease.

c.     LATE PAYMENT.

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

a.     PERMITTED USE.

8


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

     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:

 

a)

 

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.

 

 

 

 

 

b)

 

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.

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.

 

c)

 

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

9


 

 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

 

 

 

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.

 

d)

 

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.

 

 

 

 

 

e)

 

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.

 

 

 

 

 

f)

 

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

10


 

 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

 

 

 

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).

b.     ALTERATIONS.

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-

11


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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.

c.     WIRELESS NETWORK.

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

12


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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.

13


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

e. EXTERIOR SIGNAGE.

     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.

f. ROOF LICENSE.

     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.

14


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

     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

15


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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

a. GENERALLY.

     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

16


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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,

17


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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

18


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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

19


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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.

c. CERTAIN TRANSFERS.

     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

20


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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

21


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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

22


 

Burlington Woods — Color Kinetics Expansion Space Lease (BWOP2)

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


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more