SUBLEASE

Exhibit 10.4

SUBLEASE

This Sublease (the “Sublease”) is made as of the 23 ^rd day of March, 2009 by and between NUANCE COMMUNCIATIONS, INC. (as successor to eScription, Inc.), a Delaware corporation (“Sublandlord”), and Salary.Com., Inc., a Delaware corporation (“Subtenant”).

WITNESSETH:

WHEREAS, by that certain Lease dated June 7, 2005 , as amended by that certain First Amendment to Lease dated as of October 12, 2006 (The Lease, as so amended, is hereinafter called the “Overlease”) (a copy of which Overlease is attached as Exhibit A hereto), TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA (“Overlandlord”), as landlord thereunder, leases to Sublandlord, as tenant thereunder, approximately 36,288 rentable square feet (the “Premises”) comprising a portion of the third (3 ^rd ) floor of the building (the “Building”) known as Needham Corporate Center and numbered 160 Gould Street, Needham, MA, all as more particularly described in the Overlease; and

WHEREAS, Subtenant desires to sublease from Sublandlord and Sublandlord desires to sublease to Subtenant, all of the Premises (hereinafter referred to as the “Subleased Premises”).

NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. DEMISE OF SUBLEASED PREMISES . Sublandlord hereby demises and subleases to Subtenant, and Subtenant hereby hires and takes from Sublandlord, exclusive possession of the Subleased Premises for the term and upon the conditions hereinafter set forth.

2. TERM .

(a) Subject to the provisions of Section 10 herein, the term of this Sublease (the “Term”) shall commence on May 1, 2009 (the “Commencement Date”).

(b) The Term shall end on January 30, 2011 (the “Expiration Date”) or such earlier date upon which such Term may be terminated pursuant to the provisions hereof or pursuant to law.

3. SUBORDINATION TO AND INCORPORATION OF THE OVERLEASE .

(a) This Sublease is in all respects subject and subordinate to the terms and conditions of the Overlease and to the matters to which the Overlease, including any amendments thereto, is or shall be subordinate. Subtenant agrees that Subtenant has reviewed and is familiar with the Overlease, and will not do or suffer or permit anything to be done which would result in a default or breach (whether or not subject to notice or grace periods) on the part of Sublandlord under the Overlease or cause the Overlease to be terminated. If, however, the Overlease is terminated prior to its scheduled expiration, for any reason whatsoever, this Sublease shall likewise terminate without further notice and without further obligation or liability on the part of the parties. Notwithstanding the foregoing, the Overlease shall not be voluntarily terminated by Sublandlord.

(b) Except as otherwise expressly provided in this Sublease, the terms, covenants, conditions, rights, obligations, remedies and agreements of the Overlease are incorporated into this Sublease by reference and made a part hereof as if fully set forth herein and shall constitute the terms of this Sublease, mutatis mutandis , Sublandlord being substituted for “Landlord” thereunder, Subtenant being substituted for “Tenant” thereunder, and “Subleased Premises” being substituted for “Premises” thereunder, except to the extent that such terms do not relate to the Subleased Premises or are inapplicable to, or specifically inconsistent with the terms of this Sublease.

(c) The following provisions of the Overlease shall not be incorporated herein by reference and are expressly excluded from the terms of this Sublease: Sections 1.2 definitions of Base Taxes, Initial Term, Security Deposit and Tenants Original Electrical Factor, 1.3 definitions of Anticipated Term Commencement Date, Landlord’s Work, Penalty Date, Tenants Delays, Tax Year and Term of this Lease, and Utility Expenses, 4.1, 4.2, 4.3, 8.1, 8.2, 8.3, 9.1, 9.2, 14.17, 14.23, 14.30, 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, Exhibit B and Exhibit D; provided ; however, that notwithstanding such non-incorporation, this Sublease remains subject and subordinate to all of the foregoing provisions as provided in Section 3(a) above.

(d) Any capitalized terms not defined herein shall have the meaning set forth in the Overlease.

4. RENT .

(a) From and after September 1, 2009 (“Rent Commencement Date”), Subtenant shall pay to Sublandlord annual fixed rent (the “Fixed Rent”) in the amount of Six Hundred Fifty Three Thousand One Hundred Eighty Four and 0/100 Dollars ($653,184.00). Fixed Rent shall be payable in advance in monthly installments, pro-rated on a per diem basis in the case of any partial months during the Term. Except as otherwise set forth herein, each monthly installment of Fixed Rent shall be payable on or before the first day of each month, without notice or demand and without abatement, set-off or deduction.

(b) In addition to the Fixed Rent, Subtenant agrees to pay to Sublandlord electric charges for the Subleased Premises. Subtenant’s Original Electrical Factor used to calculate estimated charges will be $1.50 per rentable square foot per year (Fifty Four Thousand Four Hundred Thirty Two and 0/100 Dollars ($54,432.00) total per year), subject to future adjustment in accordance with the Overlease. Subtenant shall pay any Subtenant Surcharge within fifteen (15) business days after the presentation of the Overlandlord’s statements therefor by the Sublandlord to Subtenant.

(c) Any failure or delay by Sublandlord in billing any sum set forth in this Section 4 shall not constitute a waiver of Subtenant’s obligation to pay the same in accordance with the terms of this Sublease.

(d) The Fixed Rent and Electrical charges payable pursuant to this Sublease shall be paid by Subtenant to Sublandlord at the address set forth for notices below, or at such other place as Sublandlord may hereafter designate from time to time in writing, in lawful money of the United

 

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States of America, by a good unendorsed check, subject to collection, as and when the same become due and payable, without demand therefor and without any deduction, set-off or abatement whatsoever. Any other amounts of additional rents and other charges herein reserved and payable shall be paid by Subtenant in the manner and to the persons set forth in the statement from Sublandlord describing the amounts due as applicable.

(e) Subtenant shall not be subject to any increase in Operating Expenses or Taxes.

(f) Except as expressly stated in this Section 4, Subtenant shall not be subject to pay any other charges or fees under the terms of Article III, Article 7.5, Article VIII or Article IX of the Overlease.

(g) Upon Subtenant’s execution and delivery of this Sublease, Subtenant shall pay to Sublandlord the sum of Fifty Four Thousand Four Hundred Thirty Two and 00/100 Dollars ($54,432.00) to be applied to the first monthly installment of Fixed Rent due hereunder.

5. SECURITY DEPOSIT . On or before the Commencement Date, Subtenant shall deliver to Sublandlord a security deposit (the “Security Deposit”) in the amount of One Hundred Sixty Three Two Hundred Ninety Six and 0/100 Dollars ($163,296.00) in the form of cash or an unconditional, irrevocable standby letter of credit without documents, i.e., no obligation on Sublandlord’s part to present anything but a sight draft, with Sublandlord as beneficiary, drawable in whole or in part, providing for payment in Boston, Massachusetts, on presentation of Sublandlord’s drafts on sight, providing for multiple draws and multiple successors and otherwise both from a bank and in a form acceptable to Sublandlord. The Security Deposit shall be held by Sublandlord as security for the faithful performance by Subtenant of all the terms, covenants, and conditions of this Sublease applicable to Subtenant. If Subtenant defaults with respect to any provision of this Sublease, including but not limited to the provisions relating to the condition of the Subleased Premises upon the Expiration Date, Sublandlord may (but shall not be required to) use, apply or retain all or any part of the Security Deposit for the payment of any amount which Sublandlord may spend by reason of Subtenant’s default or to compensate Sublandlord for any loss or damage which Sublandlord may suffer by reason of Subtenant’s default and Sublandlord may draw on all or any part of the Security Deposit and thereafter retain any unapplied portion as a cash Security Deposit. If any portion of the Security Deposit is so used or applied, Subtenant shall, within thirty days after written demand therefor, deposit cash or a replacement letter of credit (in form and substance subject to the same requirements as the original letter of credit) with Sublandlord in an amount sufficient to restore the Security Deposit to its original amount. Subtenant’s failure to do so shall be a material default and breach of this Sublease by Subtenant. The rights of Sublandlord pursuant to this Section are in addition to any rights which Sublandlord may have pursuant to Section 11 below. Once the Subtenant fully and faithfully performs every provision of this Sublease to be performed by it, the Security Deposit or any balance thereof shall be returned (without interest) to Subtenant at Sublease termination and after Subtenant has vacated the Subleased Premises. Sublandlord will only use such portion of the Security Deposit, if any, to cover the costs of any repairs or damage caused by the Subtenant. Failure of Subtenant to deliver a replacement letter of credit to Sublandlord at least forty-five (45) business days prior to the expiration date of any current letter of credit shall constitute a separate default entitling Sublandlord to draw down immediately and entirely on the current letter of credit and the proceeds shall constitute a cash Security Deposit.

 

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6. CONDITION OF SUBLEASED PREMISES . Subtenant represents and warrants that it has made a thorough examination of the Subleased Premises and it is familiar with the condition thereof. Subtenant acknowledges that it enters into this Sublease without any representation or warranties by Sublandlord or anyone acting or purporting to act on behalf of Sublandlord, as to present or future condition of the Subleased Premises or the appurtenances thereto or any improvements therein or of the Building. Subject to the foregoing, it is further agreed that Subtenant does and will accept the Subleased Premises “as is” in its present condition and Sublandlord has no obligation to perform any work therein or contribute to the cost of any work. The Subtenant shall return the Subleased Premises to the Sublandlord in the same condition as it is in its present condition, reasonable wear and tear excepted.

7. FAILURE OF OVERLANDLORD TO PERFORM OBLIGATIONS . Subtenant acknowledges and agrees that Sublandlord shall have no obligation to provide any services to the Subleased Premises or to perform the terms, covenants, conditions or obligations contained in the Overlease on the part of Overlandlord to be performed. Subtenant agrees to look solely to Overlandlord for the furnishing of such services and the performance of such terms, covenants, conditions or obligations. In the event that Overlandlord shall fail to furnish such services or to perform any of the terms, covenants, conditions or obligations contained in the Overlease on its part to be performed, Sublandlord shall be under no obligation or liability whatsoever to Subtenant for such failure. In any event, Subtenant shall not be allowed any abatement or diminution of rent under this Sublease because of Overlandlord’s failure to perform any of its obligations under the Overlease. Sublandlord agrees, however, that in the event that Overlandlord shall fail to provide the services or perform the obligations to be provided or performed by it pursuant to the terms of the Overlease, Sublandlord shall, upon written notice from Subtenant, make demand upon Overlandlord pursuant to the terms of the Overlease and to otherwise reasonably cooperate with Subtenant (provided such cooperation shall not require the expenditure of funds) to enforce Overlandlord’s obligations.

8. OBLIGATIONS AND REPRESENTATIONS .

(a) Each party hereto agrees to perform and comply with the terms, provisions, covenants and conditions of the Overlease and not to do or suffer or permit anything to be done which would result in a default under the Overlease or cause the Overlease to be terminated or forfeited. The Sublandlord agrees that it will not voluntarily terminate the Overlease and will duly observe and perform all other obligations imposed on it as Tenant under the Overlease, to the extent that such obligations are not provided in this Sublease to be observed or performed by the Subtenant, except with respect to any failure in such observance or performance which results from any default by the Subtenant hereunder.

(b) The Sublandlord agrees that any notices received by it as tenant under the Overlease shall, upon receipt and when applicable to the terms of this Sublease, be given to the Subtenant in accordance with the provisions of this Sublease.

(c) Omitted.

(d) The Sublandlord shall not modify, surrender, transfer or assign the Overlease to the extent it affects any rights of the Subtenant under this Sublease.

 

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(e) Sublandlord represents and warrants to Subtenant that, as of the date that this Sublease is executed by Sublandlord and delivered to Subtenant: (i) the Overlease is in full force and effect and has not been amended or modified except as expressly set forth herein; (ii) to Sublandlord’s best knowledge, no uncured default by Sublandlord exists under the Overlease; (iii) Sublandlord has no knowledge of any claim by Overlandlord that Sublandlord is in default or breach of any of the provisions of the Overlease; (iv) Sublandlord has no knowledge of any event that has occurred and is continuing which would constitute an event of default under the Overlease but for the requirement of the giving of notice and/or the expiration of the period of time to cure; (v) Sublandlord has not received any notice of default under the Overlease except for defaults which Sublandlord has cured and Overlandlord is no longer claiming exists (vi) to the best of its knowledge, there is no hazardous waste stored on the Subleased Premises and Sublandlord is not in material violation of any federal environmental laws with regard to its use of the Sublease Premises; and (vii) Sublandlord has not filed for protection under any federal bankruptcy laws.

9. PUBLIC LIABILITY INSURANCE . The Subtenant shall make no changes or cancellation of coverage without providin g thirty (30) days notice to the Sublandlord.

10. CASUALTY AND CONDEMNATION . Notwithstanding anything to the contrary contained in this Sublease or in the Overlease, Subtenant shall not have the right to terminate this Sublease as to all or any part of the Subleased Premises, or be entitled to an abatement of Fixed Rent or any other item of rental, by reason of a casualty or condemnation affecting the Subleased Premises unless Sublandlord is entitled to terminate the Overlease or is entitled to a corresponding abatement with respect to its corresponding obligation under the Overlease. If Sublandlord is entitled to terminate the Overlease for all or any portion of the Subleased Premises by reason of casualty or condemnation, Subtenant may terminate this Sublease as to any corresponding part of the Subleased Premises by written notice to Sublandlord given at least five (5) business days prior to the date(s) Sublandlord is required to give notice to Overlandlord of such termination under the terms of the Overlease (provided Subtenant has received reasonable advance notice of such date(s)).

11. CONSENTS . In all provisions of the Overlease requiring the approval or consent of the “Landlord,” Subtenant shall be required to obtain the approval or consent of both Overlandlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, delayed or conditioned so long as the consent of Overlandlord has been obtained). In no event shall Sublandlord be liable for failure to give its consent or approval in any situation where consent or approval has been withheld or refused by Overlandlord, whether or not such withholding or refusal was proper. Notwithstanding the foregoing, Sublandlord and Subtenant shall cooperate in good faith to obtain any such consent of Overlandlord.

12. CONSENT OF OVERLANDLORD TO THIS SUBLEASE . Sublandlord and Subtenant agree that this Sublease is subject to Sublandlord obtaining the written consent (the “Consent”) of Overlandlord as provided in the Overlease. It is expressly understood and agreed that notwithstanding anything to the contrary contained herein, the Term shall not commence, nor shall Subtenant take possession of the Subleased Premises or any part thereof, until the Consent has been obtained. Subtenant hereby agrees that it shall reasonably cooperate in good

 

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faith with Sublandlord and shall comply with any reasonable requests made of Subtenant by Sublandlord or Overlandlord in the procurement of the Consent. In no event shall Sublandlord or Subtenant be obligated to make any payment to Overlandlord in order to obtain the Consent or the consent to any provision hereof, other than as expressly set forth in the Overlease (which costs, if any, shall be shared equally by Sublandlord and Subtenant).

13. DEFAULTS . Subtenant covenants and agrees that in the event that it shall default in the performance of any of the terms, covenants and conditions of this Sublease or of the Overlease, Sublandlord shall be entitled to exercise any and all of the rights and remedies to which it is entitled by law, including, without limitation, the remedy of summary proceeding, and also any and all of the rights and remedies specifically provided for in the Sublease and in the Overlease, which are incorporated herein and made a part hereof, with the same force and effect as if herein specifically set forth in full , and that wherever in the Overlease rights and remedies are given to Overlandlord therein named, the same shall be deemed to refer to Sublandlord herein.

14. NOTICE . Whenever, by the terms of this Sublease, any notice, demand, request, approval, consent or other communication (each of which shall be referred to as a “notice”) shall or may be given either to Sublandlord or to Subtenant, such notice shall be in writing and shall be sent by hand delivery, reputable overnight courier, or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows (or to such other address or addresses as may from time to time hereafter be designated by Sublandlord or Subtenant, as the case may be, by like notice):

 

All such notices shall be deemed to have been served on the date of actual receipt or rejection thereof (in the case of hand delivery), or one (1) business day after such notice shall have been deposited with a reputable overnight courier, or three (3) business days after such notice shall have been deposited in the United States mails within the continental United States (in the case of mailing by registered or certified mail as aforesaid).

 

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15. BROKER . Each of Sublandlord and Subtenant represents and warrants to the other that it has not dealt, either directly or indirectly, with any broker in connection with this Sublease other than Newmark Knight Frank and Wyman Street Advisors (the “Brokers”) and Sublandlord shall be solely responsible for all fees of the Brokers pursuant to separate written agreements. Each of Sublandlord and Subtenant shall indemnify the other from and against any and all loss, costs and expenses, including reasonable attorney’s fees, incurred as a result of a breach of such representation and warranty.

16. COUNTERPARTS . This Sublease may be executed in one or more counterparts, and by different parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties acknowledge and agree that this Sublease may be executed via facsimile or email scanned signature and that delivery of a facsimile or email scanned signature shall be effective to the same extent as delivery of an original signature.

17. SIGNAGE . Any signage for Subtenant shall be at Subtenant’s sole cost and expense, and shall be subject to the approval of Overlandlord and otherwise in accordance with the terms and provisions of the Overlease.

18. FURNITURE, FIXTURES AND EQUIPMENT . In consideration of a payment of Nine Thousand Dollars ($9000.00) by Subtenant, Sublandlord hereby sells to Subtenant the furniture, fixtures and equipment presently located within the Subleased Premises (the “FF&E”). Subtenant acknowledges and agrees that the FF&E is provided in “as-is” condition without any warranty, implied or express, of any kind whatsoever. Subtenant shall be responsible for removing from the Subleased Premises so much of the FF&E as may be required to be so removed under the Overlease. Attached hereto and made a part hereof is Exhibit B, which sets forth in detail the FF&E. Payments for the FF&E shall be due upon execution of this Sublease.

19. IMPROVEMENTS . Subject to the satisfaction of the Consent, Sublandlord grants Subtenant rights of access to the Subleased Premises, from and after March 1, 2009 for Subtenant, at Subtenant’s expense, to make certain alterations, decorations, installations and improvement in and to the Subleased Premises (“Improvements”) to prepare same for use and occupancy by Subtenant; provided, however, that any such access and/or Improvements are at the sole risk of Subtenant and Subtenant indemnifies and holds Sublandlord harmless from and against any claim, loss, damage cost, or liability arising from such access and/or Improvements. Such rights to access and performance of work by Subtenant shall be without compensation, abatement or diminution of fixed rent or additional rent otherwise due and owing by Subtenant to Sublandlord pursuant to this Sublease. All such Improvements are subject to any approvals by the Overlandlord pursuant to the Overlease.

 

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20. OVERLEASE BLACK OUTS . The Sublandlord represents and warrants that the portions of the Overlease which are blacked out are provisions for which the Subtenant will not be obligated nor required to comply with nor be bound by.

21. The Sublandlord shall seek the Overlandlord, its mortgagee and lien holder’s cooperation to acknowledge and honor the terms and conditions of this Sublease and cooperate with the Subtenant in the event of the said mortgagees obtaining title to the Premises.

22. AUTHORITY: QUIET ENJOYMENT . Sublandlord represents and warrants that it has full power and authority to enter into this Sublease and perform its obligations under this Sublease. Subtenant represents and warrants that it has full power and authority to enter into this Sublease and perform its obligations under this Sublease. Upon payment of the Fixed Rent and so long as Subtenant is not in default in the performance of its covenants and agreements in this Sublease beyond any applicable notice and cure period, Subtenant’s quiet and peaceable enjoyment of the Sublease Premises, subject to the terms of this Sublease, the Overlease and to any mortgage, lease or other agreement to which the Overlease may be subordinate, shall not be disturbed or interfered with by Sublandlord, or by any person claiming by, through or under Sublandlord.

IN WITNESS WHEREOF, Sublandlord and Subtenant herein have duly executed this instrument on the day and year first above written.

 

		SUBLANDLORD :				NUANCE COMMUNICATIONS, INC.
				By:		/s/ Thomas L. Beaudoin
				Name:		Thomas L. Beaudoin
				Its:		Executive Vice President & Chief Financial Officer
		SUBTENANT :				SALARY.COM, INC.
				By:		/s/ G. Kent Plunkett
				Name:		G. Kent Plunkett
				Its:		Chief Executive Officer
				By:		/s/ Bryce Chicoyne
				Name:		Bryce Chicoyne
				Its:		Chief Financial Officer

 

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EXHIBIT A

OVERLEASE

[attached]

EXHIBIT B

FURNITURE, FIXTURES & EQUIPMENT

[attached]

 

10

STANDARD LEASE

Needham Corporate Center

160 Gould Street

Needham, Massachusetts

 

 

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LEASE

Preamble

THIS INSTRUMENT IS A LEASE, dated as of June 7, 2005 in which the Landlord and the Tenant are the parties hereinafter named, and which relates to space located in that certain building known and numbered as Needham Corporate Center, 160 Gould Street, Needham, Massachusetts (the “Building”). The parties to this instrument hereby agree with each other as follows:

ARTICLE I

BASIC LEASE PROVISIONS

 

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

 

1.2	BASIC DATA.

Landlord: Teachers Insurance and Annuity Association of America

Landlord’s Original Address:

730 Third Avenue

New York, New York 10017

Attention: Michael Farrell,

Associate Director/Mortgage and Real Estate Division

Tenant: E/Scription, Inc., a Delaware corporation

Tenant’s Original Address:

175 Highland Avenue

Needham, Massachusetts 02494

Guarantor: None

 

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Basic Rent

 

Notwithstanding the foregoing to the contrary, Tenant shall not be required to pay the Monthly Payment of Basic Rent allocable to month number 15.

Base Taxes: Taxes for the fiscal year July 1, 2005 through and including June 30, 2006, as the same may be abated.

Base Operating Expenses: Operating Expenses for the calendar year ending December 31, 2006.

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

Premises Rentable Area: Agreed to be approximately 23,921 rentable square feet.

Permitted Uses: General Office, but specifically excluding any use which would cause any portion of the Premises to be deemed a “place of public accommodation” as defined in the Americans with Disabilities Act of 1990, as amended (the “ADA”).

 

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Escalation Factor: 17.63%, as computed in accordance with the Escalation Factor Computation.

Initial Term: Sixty Three (63) months commencing on the Commencement Date and expiring at the close of the last day (the “Expiration Date”) of such sixty three (63) month period, except that if the Commencement Date shall be other than the first day of a calendar month, the expiration of the Initial Term shall be at the close of the day on the last day of the calendar month on which such Expiration Date shall fall.

Security Deposit: Initially,              plus any Security Deposit Increase Amount or other security deposit required under Article XV of the Lease.

Tenant’s Original Electrical Factor: $1.00 per rentable square foot per year. Initially, $1,993.42 per month; $23,921.00 per year, subject to adjustment from time to time, to reflect changes in the cost of obtaining electric service (and the monthly and annual amounts shall also increase as and to the extent that the rentable square footage of the Premises increases in connection with each addition to the Premises pursuant to Article XV hereof).

 

1.3	ADDITIONAL DEFINITIONS.

Manager: Cushman & Wakefield of Massachusetts, Inc. or such other managing representative designated by Landlord as the Manager from time to time.

Anticipated Term Commencement Date: September 23, 2005 but such date shall be automatically extended for the number of days of delay (determined on the basis of the aggregate cumulative affect of such delays in completing Landlord’s Work related to (a) Force Majeure and/or (b) Tenant Delays.

Building Rentable Area: Agreed to be approximately 135,690 rentable square feet.

Business Days: All days except Saturday, Sunday, New Year’s Day, Washington’s Birthday, Patriot’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day (and the following day when any such day occurs on Sunday).

Commencement Date: As defined in Section 4.1.

Default of Tenant: As ^- defined in Section 13.1.

Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2. For purposes of Article XIII and Section 14.17, the term “Escalation Charges” shall also include the Tenant’s Original Electric Factor.

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

 

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Force Majeure: Collectively and individually, strike or other labor trouble, fire or other casualty, governmental preemption of priorities or other controls in connection with a national or other public emergency or shortages of, or inability to obtain, materials, fuel, supplies or labor, or any other cause, whether similar or dissimilar, beyond Landlord’s reasonable control.

Initial Public Liability Insurance: $1,000,000 (per occurrence) primary liability and $3,000,000 (per occurrence) excess liability (combined single limit) for bodily injury, death and property damage, such policies to be written with companies approved by Landlord and having a Best’s Insurance Rating of A- or better with a Financial Rating of X.

Landlord’s Work. The work described in Exhibit B attached hereto (exclusive of Schedule 1 thereto). In no event shall Landlord’s Work include purchase or installation of the Tenant’s Back Up Generator, UPS system, any rooftop antenna or satellite dish equipment and, further, Landlord’s Work shall not include construction, relocation, purchase or installation or hook up of Tenant’s furniture, fixtures, work stations or equipment including, without limitation, Tenant’s telephone, data and communications equipment.

Lease Year or lease year: Each consecutive 12 calendar month period immediately following the Commencement Date, but if the Commencement Date shall fall on other than the first day of a calendar month, then such term shall mean each consecutive twelve calendar month period commencing with the first day of the first full calendar month following the calendar month in which the Commencement Date occurs, however, the first lease year shall include any partial month between the Commencement Date and the first day of the first full calendar month immediately following the Commencement Date.

Operating Expenses: As set forth in Section 9.1.

Operating Year: As defined in Section 9.1

Penalty Date: September 30, 2005 but such date shall be automatically extended for the number of days of delay (determined on the basis of the aggregate cumulative affect of such delays in completing Landlord’s Work related to (a) Force Majeure and/or (b) Tenant Delays.

Premises: A portion of the third (3rd) floor of the Building shown on Exhibit A annexed hereto.

Property: The Building and the land parcel (the “Land Parcel”) on which it is located (including parking areas, driveways and adjacent sidewalks).

Tax Year: As defined in Section 8.1.

Taxes: As determined in accordance with Section 8.1.

 

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Tenant Delays: Delays in the progress of Landlord’s Work (measured to take into account the cumulative effect of such delays) to the extent caused by or chargeable to, or related to any act or omission by Tenant or any of its agents, servants, employees, consultants and contractors, subcontractors, architects or engineers, or related to Tenant or anyone employed by Tenant, including, without limitation, requested changes in the Landlord’s Work, withdrawal or modification of requested, changes, the time needed to process and review and price changes requested or proposed by Tenant with respect to the Landlords’ Work (whether or not such changes are implemented), delays in providing any information and/or designs requested by Landlord related to the performance of Landlord’s Work (including, without limitation, information needed to complete the mechanical, electrical, plumbing or HVAC elements of Landlord’s Work), delays in granting approval of any aspect of Landlord’s Work requested by Landlord, lack of timely action with respect to submission of information which Tenant is required to provide by Landlord in connection with Landlord’s Work and any displacement of any of Landlord’s Work from its place in Landlord’s construction schedule resulting from any of the foregoing matters and any other delays attributable to Tenant. Tenant Delays shall also include delays attributable to incompleteness or inaccuracy of any information, plans or specifications provided to Landlord by Tenant. In the event that information or approvals are needed from Tenant, Landlord shall deliver written notice thereof to Tenant indicating the information or approval specifically being requested by Landlord (“Landlord’s Notice”). Tenant shall provide Landlord the information so requested by Landlord and/or respond to the approval requested by Landlord within not less than one (1) business day nor more than three (3) business days after receipt of such written request (and, for purposes hereof, emails and faxes to and from respective construction representatives designated by Landlord and Tenant at the email address or fax number designated for such construction representative shall satisfy the requirement for written notice and also for purposes hereof, the information or response, as applicable, must also be received by Landlord or its designated construction representative within such three (3) business day period). In the event that the absence of such approval or information could cause a delay in the completion of Landlord’s Work, then Landlord shall so indicate in Landlord’s Notice and, to the extent reasonably possible, an estimate of the amount of the delay reasonably anticipated. To facilitate communications, Tenant shall be able to send a representative to a weekly meeting with Landlord’s Contractor. The schedule and the possibility of any delays will be reviewed at that meeting. Landlord shall not have the right to make a claim of Tenant Delay unless notice of a claim therefor has been given to Tenant prior to the Commencement Date.

Tenants Removable Property: As defined in Section 5.2.

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

Utility Expenses: As defined in Section 9.1.

 

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Exhibits: The following Exhibits are annexed to this Lease and incorporated herein by this reference:

 

ARTICLE II

PREMISES AND APPURTENANT RIGHTS

 

2.1	LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the Term of this Lease and upon the terms and conditions hereinafter set forth, and Tenant hereby accepts from Landlord, the Premises.

 

2.2

APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use, and permit its invitees to use in common with others, public or common lobbies, hallways, elevators, and common walkways necessary for access to the Building, and if the portion of the Premises on any floor includes less than the entire floor, the common toilets, corridors and elevator lobby of such floor; but Tenant shall have no other appurtenant rights and all such rights shall always be subject to reasonable rules and regulations from time to time established by Landlord pursuant to Section 14.7 and to the right of Landlord to designate and change from time to time areas and facilities so to be used.

(b) Excepted and excluded from the Premises are the ceiling, floor, perimeter walls and exterior windows, except the inner surfaces thereof, but the entry doors (and related glass and finish work) to the Premises are a part thereof; 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 and as not to reduce the size of the Premises) interior storm windows, subcontrol devices (by way of illustration, an electric sub panel, etc.), utility lines, pipes, equipment and the like, in, over and upon the Premises. Tenant shall install and maintain, as Landlord may require, proper access panels in any hung ceilings or walls as may be installed by Tenant in the Premises to afford access to any facilities above the ceiling or within or behind the walls.

 

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ARTICLE III

BASIC RENT

 

3.1

PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by Landlord, commencing on the Commencement Date without offset, abatement, deduction or demand, the Basic Rent plus Landlord’s estimated amounts for Escalation Charges plus Tenant’s Original Electrical Factor. Such Basic Rent plus Landlord’s estimated amounts for Escalation Charges plus Tenant’s Original Electrical Factor shall be payable in equal monthly installments, in advance, on the first day of each and every calendar month during the Term of this Lease, at Landlord’s Original Address, or at such other place as Landlord shall from time to time designate by notice to Tenant, in lawful money of the United States. In the event that any installment of Basic Rent or Escalation Charges or Tenant’s Original Electrical Factor is not paid within five (5) days after the due date, Tenant shall pay, in addition to any other additional charges due under this Lease, an administrative fee equal to the applicable Administrative Fee Percentage (as said term is hereinafter defined) of the overdue payment. As used herein, the term “Administrative Fee Percentage” shall mean five (5%) percent (except that for the first payment of Basic Rent, Escalation Charges or Tenant’s Original Electrical Factor which is not paid within five (5) days of the due date during any consecutive twelve (12) month period, the Administrative Fee Percentage shall be two (2%) percent).

(b) Basic Rent, Escalation Charges and Tenant’s Original Electrical Factor for any partial month shall be pro-rated on a daily basis, and if the first day on which Tenant must pay Basic Rent, Escalation Charges and Tenant’s Original Electrical Factor shall be other than the first day of a calendar month, the first payment which Tenant shall make to Landlord shall be equal to a proportionate part of the monthly installment of Basic Rent for the partial month from the first day on which Tenant must pay Basic Rent, Escalation Charges and Tenant’s Original Electrical Factor to the last day of the month in which such day occurs, plus the installment of Basic Rent, Escalation Charges and Tenant’s Original Electrical Factor for the succeeding calendar month.

ARTICLE IV

COMMENCEMENT AND CONDITION

 

4.1	COMMENCEMENT DATE. The Commencement Date shall be the earlier of (a) that date (but not earlier than September 23, 2005) on which the Premises are ready for occupancy as provided in Section 4.2, or (b) that date on which Tenant commences occupancy for the Permitted Uses.

 

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4.2	LANDLORD’S AND TENANT’S WORK: DELAYS.

(a) Tenant hereby agrees that the Landlord’s Work will be performed by Landlord’s general contractor. Landlord agrees to use good faith efforts to complete the Landlord’s Work (using Building standard tenant materials and allowances), on or before the Anticipated Term Commencement Date. Landlord shall not be required to install any improvements which are not in conformity with plans and specifications for the Building or which are not approved by Landlord’s architect or which do not comply with applicable law, ordinances or codes. In case of delays due to Force Majeure, Tenant Delays, the Anticipated Term Commencement Date shall be extended for the period of such delays. The Premises shall be deemed ready for occupancy when (a) the Landlord’s Work has been completed except for minor items of work and adjustment of equipment and fixtures which can be completed after occupancy has been taken without causing substantial interference with Tenant’s use of the Premises (i.e. so-called “punch list items”), (b) Tenant has received Landlord’s certificate of the completion of the Premises in accordance with clause (a) of this sentence and (c) a certificate of occupancy, temporary or otherwise, has been issued by the Town of Needham, Massachusetts except that the issuance of a certificate of occupancy shall not be required under this clause (c) if its issuance is withheld or delayed due to lack of completion of work or items which (i) are not included in Landlord’s Work (and provided that such withholding or delay in issuing the certificate of occupancy is not due to a failure of the Building (exclusive of the Premises) to comply with applicable laws) or (ii) are the responsibility of Tenant under this Lease including, without limitation, installations of Tenant’s tel-data equipment, Back Up Generator Equipment, work stations, roof top antenna, furniture and computer room and system administration room equipment and appurtenances. Landlord shall complete as soon as conditions practically permit all items and work excepted by said clause (a) (and will use due diligence to complete such items within thirty (30) days after the Commencement Date) and Tenant shall not use the Premises in such manner as will increase the cost of completion. Landlord shall permit Tenant access for installing its tel-data cabling and wiring in portions of the Premises at least ten (10) days prior to the date which Landlord estimates will be the date of substantial completion of Landlord’s Work Tenant shall coordinate its installation of such tel-data equipment with Landlord’s general contractor so as not to delay the performance or completion of Landlord’s Work.

(b) Tenant agrees that for any delay in performing the Landlord’s Work related to a Tenant Delay (and provided the actual Commencement Date occurs subsequent to the originally stated Anticipated Term Commencement Date), it shall pay to Landlord for each day of such delay an amount equal to one day’s Basic Rent within thirty (30) days of the invoice from Landlord stating the charge, regardless of the reason for such delay or whether or not it is within the control of Tenant or any such employee and the Anticipated Term Commencement Date will be adjusted one day for each such day of delay (and provided the actual Commencement Date occurs subsequent to the originally stated Anticipated Term Commencement Date).

 

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(c) If Landlord shall be unable to give possession of the Premises on the Anticipated Term Commencement Date because the Premises are not completed and ready for occupancy, or if repairs, improvements or decorations of the Premises or of the Building are not completed. Landlord shall not (except as otherwise expressly provided in Section 4.2(d) hereof) be subject to any liability for failure to give possession on said date, nor shall such failure affect the validity of this Lease.

(d) If the Premises are not ready for occupancy on or before the Penalty Date, as the same is extended on account of Force Majeure and Tenant Delays, then Tenant shall be entitled to a credit against Basic Rent first payable under this Lease in an amount equal to two days Basic Rent (calculated using the Basic Rent on the first lease year) multiplied by the number of days which elapse from and after the Penalty Date (as extended by Force Majeure and Tenant Delays) through and including the day prior to the date when the Premises are ready for occupancy.

(e) The provisions of Section 5.2(d) of this Lease shall also apply to all of the Tenant’s alterations, additions and installation of furnishings, cabling, computers, generator, UPS system, fixtures, work stations and other matters in order to initially prepare the Premises for occupancy by Tenant.

(f) “As Is”. Except for Landlord’s Work, Tenant agrees to accept the Premises in “AS IS” condition but broom clean (except for clean up related to activity of Tenant) and free of all occupants and their property (except those claiming by, through or under Tenant) without any representations or warranties (express, implied or otherwise).

(g) Construction meetings shall be held once per week after construction of the improvements included within Landlord’s Work is commenced.

 

4.3

WORKMANSHIP AND APPROVAL. The work required of Landlord pursuant to this Article IV shall be deemed approved by Tenant when Tenant commences occupancy of the Premises for the Permitted Uses, except for items which are then uncompleted or do not conform to the description of the Work and as to which, in either case, Tenant shall have given notice to Landlord prior to such date. As Landlord’s Work nears completion, upon request of Tenant, Landlord will give Tenant a good faith estimate as to when the Premises will be “ready for occupancy” and Landlord and Tenant shall schedule a walkthrough in order to facilitate the preparation of a punch list but, in no event, shall Landlord have any liability or responsibility to Tenant if such estimate is not accurate.

 

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ARTICLE V

USE OF PREMISES

 

5.1	PERMITTED USE. (a) Tenant agrees that the Premises shall be used and occupied by Tenant only for Permitted Uses.

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

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

(ii) Tenant will not place on the exterior of the Premises (including both interior and exterior surfaces of doors and interior surfaces of windows) or on any part of the Building outside the Premises, any signs, symbol, advertisements or the like visible to public view outside of the Premises. Landlord will not unreasonably withhold consent for signs or lettering on the entry doors to the Premises provided such signs conform to building standards adopted by Landlord and Tenant has submitted a sketch of the sign to be placed on such entry doors. Landlord will not unreasonably withhold its consent to the placement of Tenant’s logo sign (the “Logo Wall Sign”) in a location on the wall outside of, and next to, the main third floor entry to the Premises provided that the exact location and size of such logo sign is first approved by Landlord and no flashing neon or rotating lighting thereof shall be permitted. The cost of purchase and installation of the Logo Wall Sign shall be borne by Tenant and Tenant shall maintain such Logo Wall sign in good condition and repair and upon expiration or earlier termination of the Lease, Tenant shall remove the Logo Wall Sign and repair any damage to the wall and/or Building related thereto, all at Tenant’s expense.

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

(iv) Tenant shall, at its sole cost and expense: (x) in its use of the Premises, the Building or the Land, comply with the requirements of all applicable governmental laws, rules and regulations including, without limitation, the ADA and (y) pay for and perform any work necessary to bring the Premises into compliance with the ADA which work is required due to the Tenant’s use of the Premises for office purposes or any other use by Tenant (but nothing in this clause (y) shall be deemed to require Tenant to pay for, or perform, work required in order to correct any failure of Landlord’s Work or the Building to comply with the ADA) and (z) pay for and perform any work necessary to bring the Building or Property into compliance with the ADA which work is required due to any alteration, addition or other work or installation by Tenant; and

 

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(v) Tenant shall continuously throughout the Term of this Lease occupy the Premises for the Permitted Uses and for no other purposes.

5.2 INSTALLATION AND ALTERATIONS BY TENANT. (a) Tenant shall make no alterations, additions (including, for the purposes hereof, wall-to-wall carpeting), or improvements in or to the Premises without Landlord’s prior written consent; provided, however, that Tenant shall have the right to, without Landlord’s prior written consent, make alterations (including installation of wall to wall carpeting) which, in each separate case, cost less than $25,000.00 and do not involve or affect the Building structure, floor penetrations or any mechanical, electrical, HVAC or plumbing system. Further, the Landlord will not unreasonably withhold or delay its consent to alterations which are non-structural in nature, do not involve floor penetrations and which do not affect or involve any mechanical, electrical, HVAC or plumbing system. Further and notwithstanding the foregoing provisions of this Section 5.2(a), Landlord agrees that it will not unreasonably withhold its consent to alterations within the Premises that involve or affect the electrical or HVAC systems within or serving the Premises or which affect the Base Building electrical or HVAC systems and which, in any such case, are required by Tenant due to alterations proposed by Tenant to the Tenant’s computer room (and adjacent system administration room related thereto), any equipment located in the computer room (or adjacent system administration room related thereto) or to be located in the computer room (or adjacent system administration room related thereto) provided that (A) Landlord shall have received complete, detailed plans and specifications from Tenant with respect to all such alterations, in each case prepared at Tenant’s sole cost and expense, (B) Landlord shall have approved all of such plans and specifications and (C) Tenant shall be responsible for all costs and expenses of any upgrades or alterations to the Premises and Building HVAC system and equipment and/or electrical system and equipment (and/or the Supplemental HVAC System) required by Landlord in connection therewith and provided, further, that Landlord shall not be required to approve any such alterations which (1) are not in conformity with plans and specifications for the Building, or (2) are not approved by Landlord’s architect or (3) would increase Tenant’s demand, consumption or usage of electricity or HVAC or (4) would result in an additional burden on any of the Building’s utility systems or the capacity thereof or additional costs on account thereof (except that Landlord will not unreasonably withhold its consent in the case of matters described in clauses (1) through (4) inclusive if the conditions in clauses (A) through (C) inclusive are satisfied and in addition thereto Tenant pays the entire cost of any upgrades, alterations and additions to the Premises and Base Building HVAC and electrical systems and equipment and the Supplemental HVAC System required by Landlord in connection therewith) but Landlord shall not be required to approve any such alterations which do not comply with applicable laws, ordinances or codes. Any such alterations, additions or improvements shall (i) be in accordance with complete plans and specifications prepared by Tenant and approved in advance by Landlord (except that where Landlord’s prior written approval of such matter is not required, such advance approval of plans and specifications shall not be required but no such work shall be performed (except repainting and recarpetting and minor touch up work) until such plans and specifications are provided to Landlord); (ii) be performed in a good and workmanlike manner and in compliance with all applicable laws; (iii) be performed and completed in the manner required in Section 5.2(d) hereof; (iv) be made at

 

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Tenant’s sole expense and at such times as Landlord may from time to time designate; and (v) become a part of the Premises and the property of Landlord (unless otherwise agreed in writing by Landlord at the time of giving its consent thereto). It is agreed and understood that Landlord shall have the right to review and approve all changes to any plans which Landlord shall have approved pursuant to this Section 5.2(a).

It is also agreed and understood that Landlord shall not be deemed to be unreasonable in denying its consent to alterations, additions and improvements to the Premises which affect “Base Building Systems” (as said term is hereafter defined).

As used herein, the term “Base Building Systems” shall mean (i) any mechanical, electrical or plumbing system or component of the Building (including the Premises) (ii) the exterior of the Building (iii) the Building HVAC distribution system (iii) any fire safety prevention/suppression system and (iv) any structural element or component of the Building.

(b) All articles of personal property and all business fixtures, machinery and equipment and furniture owned or installed by Tenant solely at its expense in the Premises (“Tenant’s Removable Property”) shall remain the property of Tenant and may be removed by Tenant at any time prior to the expiration of this Lease, provided that Tenant, at its expense, shall repair any damage to the Building caused by such removal. Tenant’s Back Up Generator Equipment and Tenant’s Rooftop Communications Equipment (as such terms are hereinafter defined) constitute part of Tenant’s Removable Property. Although the Supplemental HVAC System (as said term is hereinafter defined) was paid for and installed by Landlord, the Supplemental HVAC System shall constitute part of Tenant’s Removable Property for all purposes under this Lease except that if this Lease is terminated due to a default by Tenant, Landlord shall have the right, at its option, to retain the Supplemental HVAC System as Landlord’s property in which event the Tenant shall have no rights therein.

(c) Notice is hereby given that Landlord shall not be liable for any labor or materials furnished or to be furnished to Tenant upon credit, and that no mechanic’s or other lien for any such labor or materials shall attach to or affect the reversion or other estate or interest of Landlord in and to the Premises. Whenever and as often as any mechanic’s lien shall have been filed against the Premises based upon any act or interest of Tenant or of anyone claiming through Tenant, Tenant shall forthwith take such actions by bonding, deposit or payment as will remove or satisfy the lien.

(d) All of the Tenant’s alterations, additions and installation of furnishings shall be coordinated with any work being performed by Landlord and in such manner as to maintain harmonious labor relations and not damage the Property or interfere with Building construction or operation and shall be performed by contractors or workmen first approved by Landlord, which approval will not be unreasonably withheld. Installation and moving of furnishings, equipment and the like shall be performed only with labor compatible with that being employed by Landlord for work in or to the Building and not to employ or permit the use of any labor or otherwise take any action which might result in a labor dispute involving personnel

 

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providing services in the Building. Except for work by Landlord’s general contractor, Tenant before its work is started shall: secure all licenses and permits necessary therefor and deliver copies thereof to Landlord; deliver to Landlord a statement of the names of all its contractors and subcontractors and the estimated cost of all labor and material to be furnished by them; and cause each contractor to carry workmen’s compensation insurance in statutory amounts covering all the contractor’s and subcontractor’s employees and comprehensive public liability insurance and property damage insurance with such limits as Landlord may reasonably require but in no event less than the Initial Public Liability Insurance specified in Section 1.3 of this Lease as the same may be increased from time to time in accordance with the provisions of Article X of this Lease (all such insurance to be written in companies approved by Landlord (which approval will not be unreasonably withheld) and insuring Landlord, Manager and Tenant as well as the contractors), and to deliver to Landlord certificates of all such insurance. Tenant agrees to pay promptly when due the entire cost of any work done on the Premises by Tenant, its agents, employees, or independent contractors, and not to cause or permit any liens for labor or materials performed or furnished in connection therewith to attach to the Premises or the Property and immediately to discharge any such liens which may so attach and, at the request of Landlord to deliver to Landlord security satisfactory to Landlord against liens arising out of the furnishing of such labor and material. Upon completion of any work done on the Premises by Tenant, its agents, employees, or independent contractors, Tenant shall promptly deliver to Landlord (i) original lien releases and waivers executed by each contractor, subcontractor, supplier, materialmen, architect, engineer or other party which furnished labor, materials or other services in connection with such work and pursuant to which all liens, claims and other rights of such party with respect to labor, material or services furnished in connection with such work are unconditionally released and waived and (ii) copies of any necessary certificate(s) of occupancy relating to the Premises issued by the Town of Needham. Tenant shall pay within fourteen (14) days after being billed therefor by Landlord, as an additional charge hereunder, one hundred percent (100%) of any increase in real estate taxes on the Property not otherwise billed to Tenant which shall, at any time after commencement of the Term, result from any alteration, addition or improvement to the Premises made by or (exclusive of all of Landlord’s Work except for the Supplemental HVAC System) on behalf of Tenant (including Tenant’s original installations, the Supplemental HVAC System, the Back Up Generator and Tenant’s subsequent alterations, additions, substitutions and improvements), whether done prior to or after the commencement of the Term of this Lease.

(e) In connection with the performance of any alterations, improvements, changes or additions to the Premises as contemplated by Article IV or Section 5.2 of this Lease, in the event that any such improvement, alteration, change or addition to the Premises to be performed by Tenant (the “Work”) affects so-called “Base Building Systems” and to the extent that such Work is not performed by Landlord or a general contractor employed directly by Landlord, Tenant hereby agrees to use the services of a construction management firm designated by Landlord to oversee, coordinate and review all aspects of any such Work. The cost and expense of the services of such construction manager (such cost and expense not to exceed commercially reasonable rates) shall be borne by Tenant as an additional charge under this Lease.

 

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ARTICLE VI

ASSIGNMENT AND SUBLETTING

 

6.1

PROHIBITION. (a) Tenant covenants and agrees that (except as may be permitted hereunder) whether voluntarily, involuntarily, by operation of law or otherwise, neither this Lease nor the term and estate hereby granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or otherwise transferred and that neither the Premises nor any part thereof will be encumbered in any manner by reason of any act or omission on the part of Tenant, or used or occupied, by anyone other than Tenant, or for any use or purpose other than a Permitted Use, or be sublet (which term, without limitation, shall include granting of concessions, licenses and the like) in whole or in part, or be offered or advertised for assignment or subletting. Tenant shall reimburse Landlord for all costs and expenses sustained or incurred by Landlord in connection with any request by Tenant for Landlord’s consent to an assignment or subletting not to exceed $2,000.00 per request.

(b) The provisions of paragraph (a) of this Section shall (except as otherwise expressly set forth herein) apply to a transfer (by one or more transfers) of a majority of the stock or partnership interests, or other evidences of ownership of Tenant as if such transfer were an assignment of this Lease; but such provisions shall not apply to transactions with an entity into or with which Tenant is merged or consolidated or to which substantially all of Tenant’s assets or stock are transferred or to any entity (a “Permitted Entity”) which controls or is controlled by Tenant or is under common control with Tenant, provided that in any of such events (i) the successor to Tenant has a net worth computed in accordance with generally accepted accounting principles at least equal to the net worth of Tenant immediately prior to such merger, consolidation or transfer, (ii) proof satisfactory to Landlord of such net worth shall have been delivered to Landlord at least 10 days prior to the effective date of any such transaction, and (iii) the assignee agrees directly with Landlord, by written instrument in form satisfactory to Landlord, to be bound by all the obligations of Tenant hereunder including, without limitation, the covenant against further assignment or subletting (a Permitted Entity which satisfies all of the foregoing provisions is hereinafter called a “Permitted Assignee”),

(c) If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may, at any time and from time to time (after a Default of Tenant with respect to payment of Basic Rent, Escalation Charges or any other sum or charge payable by Tenant under this Lease has occurred), collect rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the rent and other charges herein reserved, but no such assignment, subletting, occupancy, collection or modification of any

 

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provisions of this Lease shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or occupant as a tenant or a release of the original named Tenant from the further performance by the original named Tenant hereunder. No assignment or subletting hereunder shall relieve Tenant from its obligations hereunder and Tenant shall remain fully and primarily liable therefor. No assignment or subletting, or occupancy shall affect Permitted Uses. Any subletting shall expire as of the day immediately preceding the date of expiration of the Term of this Lease.

(d) Landlord shall also have the right to collect rent directly from a subtenant upon expiration or earlier termination of the Term of this Lease. The consent by Landlord to an assignment or subletting shall in no way be construed to relieve Tenant or any successor from obtaining the express consent in writing of Landlord to any further assignment or subletting nor shall any such consent release, diminish or impair Tenant’s continuing primary liability for performance of this Lease unless as part of that consent, Landlord agrees to release the original Tenant. No assignment or subletting and no use of the Premises by a subsidiary wholly-owned by Tenant or controlling corporation of Tenant shall affect the Permitted Uses.

(e) In connection with any request by Tenant for consent to assignment of the Lease (except to a Permitted Assignee) or any subletting of all or any part of the Premises, Tenant shall first submit to Landlord in writing: (i) the name of the proposed assignee or subtenant, (ii) such information as to its financial responsibility and standing as Landlord may reasonably require, and (iii) all terms and provisions upon which the proposed assignment or subletting is to be made. Upon receipt from Tenant of such request and information, the Landlord shall have an option (sometimes hereinafter referred to as the “option” or “Take Back Option”) to be exercised in writing (a “Take Back Notice”) within twenty (20) days after its receipt from Tenant of such request and information, if the request is to assign the Lease or to sublet all of the Premises, to cancel or terminate this Lease, or, if the request is to sublet a portion, of the Premises only, to cancel and terminate this Lease with respect to such portion, in each case, as of the date set forth in Landlord’s notice of exercise of such option, which shall be not less than sixty (60) nor more than ninety (90) days following the giving of such notice. Tenant shall have the right (the “Take Back Rescission Right”), exercisable by written notice given to Landlord within five (5) business days after Tenant’s receipt of a Take Back Notice to rescind its request that Landlord consent to the applicable assignment or subletting which was the subject of Landlord’s Take Back Notice in which case Landlord’s exercise of the applicable Take Back Option shall be deemed cancelled ab initio. If Tenant exercises its Take Back Rescission Right, it may not, for a period of six (6) months thereafter, assign this Lease or sublet any part of the Premises which was the subject of Tenant’s original consent request. If Landlord shall exercise such Take Back Option (and Tenant does not exercise its Take Back Rescission Right strictly as and when required herein), Tenant shall surrender possession of the entire Premises, or the portion which is the subject of the option, as the case may be, on the date set forth in such notice in accordance with the provisions of this Lease relating to surrender of Premises at the expiration of the Term. If this Lease shall be cancelled as to a portion of the Premises only, Basic Rent and Additional Rent shall thereafter be abated

 

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proportionately according to the ratio the number of square feet of the portion of the space surrendered bears to the size of the Premises. As Additional Rent, Tenant shall reimburse Landlord within ten (10) days of receipt of an invoice evidencing the same for reasonable legal and other expenses incurred by Landlord in connection with any request by Tenant for consent to assignment or subletting not to exceed $2,000.00 per request.

If Landlord shall not exercise its Take Back Option pursuant to the foregoing provisions (exclusive of any such exercise of a Take Back Option which is cancelled by Tenant through the exercise of a Take Back Rescission Right), Landlord will not unreasonably delay, condition or withhold its consent to the assignment or subletting to the party referred to upon all the terms and provisions set forth in Tenant’s notice to Landlord, provided that the terms and provisions of such assignment or subletting shall specifically make applicable to the assignee or sublessee all of the provisions of this Section 6.1 of the Lease so that Landlord shall have against the assignee or sublessee all rights with respect to any further assignment or subletting which are set forth in Section 6.1 of this Lease as amended hereby except that no such sublessee shall have any right to further assign the sublease or sublet the Premises. In any case where Landlord consents to an assignment of this Lease, Landlord shall be entitled to receive the Section 6.1 Percentage (as said term is hereinafter defined) of all Assignment Overages (as said term is hereinafter defined) which payment shall, in each case, be made within fifteen (15) days of Tenant’s receipt of each such payment. As used herein, the term “Assignment Overages” shall mean all amounts received by Tenant on account of or pursuant to any assignment of the Lease (including, without limitation, any lump sum payment) after deducting therefrom actual and reasonable broker’s commissions, reasonable attorneys’ fees and tenant fit up costs paid to third parties by Tenant in connection with such assignment and, in the case of an assignment involving more than a single lump sum payment, with such brokerage commissions and tenant fit up costs amortized without interest in equal installments over the term this Lease then remaining at the time of such assignment, except, however, that if amounts payable to the Tenant in connection with such assignment are not spread over the then balance of the term of this Lease, the amount of such amortization and the period over which it is to be spread shall be as determined by Landlord. Further, in any case where Landlord consents to a subletting, Landlord shall be entitled to receive the Section 6.1 Percentage of all Subleasing Overages (as said term is hereinafter defined). As used herein, the term “Subleasing Overages” shall mean, for each period in question, all amounts received by Tenant in connection with any sublease (after deducting therefrom actual and reasonable brokers commissions, reasonable attorneys’ fees and reasonable tenant fit-up costs, in each case, paid to third parties by Tenant in connection with such subletting amortized without interest in equal installments over the term of the Sublease) in excess of Basic Rent and Additional Rent reserved under this Lease for the same period attributable to the space sublet (including, without limitation, all lump sum payments made in connection therewith). Payment of Landlord’s share of Subleasing Overages shall be made to Landlord within fifteen (15) days after receipt by Tenant. Further, if a Default of Tenant has occurred under this Lease (and during the continuance thereof), then, in computing Subleasing Overages and Assignment

 

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Overages, Tenant shall not be entitled to any deductions for broker’s commissions or Tenant fit up costs. As used herein, the term “Section 6.1 Percentage” shall mean fifty (50%) percent except that from and after the date a Default of Tenant shall occur (and during the continuance thereof), the term “Section 6.1 Percentage” shall mean one hundred (100%) percent. Termination of this Lease by Landlord shall terminate all rights of Tenant to receive any Sublease Overages, any Assignment Overages or any other payments due under any sublease or assignment, whether relating to any period prior to or after the date of such termination.

Any such assignment or subletting shall nevertheless be subject to all the terms and provisions of this Section 6.1 and no assignment shall be binding upon Landlord or any of Landlord’s mortgagees, unless Tenant shall deliver to Landlord an instrument in recordable form which contains a covenant of assumption by the assignee running to Landlord and all persons claiming by, through or under Landlord. The failure or refusal of the assignee to execute such instrument of assumption shall not release or discharge the assignee from its liability as Tenant hereunder. In addition, Tenant shall furnish to Landlord a conformed copy of any sublease effected under terms of this Section 6.1. In no event shall the Tenant hereunder be released from its liability under this Lease in connection with Landlord’s exercise of the Take Back Option provided, however, that if Landlord does exercise the Take Back Option with respect to all or any part of the Premises (or, in the case of an assignment of the Lease so as to cancel or terminate the Lease) nothing contained in this sentence shall be deemed to impose any continuing liability upon Tenant as to the part of the Premises which is ‘taken back” or as to the Lease if it is thereby cancelled or terminated.

Landlord shall not be deemed unreasonable in refusing to approve a sublease or an assignment of Lease wherein (a) the proposed sublessee or assignee is a tenant, subtenant or occupant of the Building and Landlord has comparable or competitive space available in the Building for such proposed sublessee or assignee or (b) the Landlord is then in discussions or negotiations with the proposed sublessee or assignee to do a direct lease in the Building or (c) the Landlord determines in its sole but reasonable judgment that the proposed sublessee is not capable of performing its obligations under the Sublease or assignment and is not financially acceptable or would alter the permitted use or (d) the proposed sublessee or assignee is a body or an agency of the state, local or federal government.

ARTICLE VII

RESPONSIBILITY FOR REPAIRS AND CONDITIONS OF PREMISES:

SERVICES TO BE FURNISHED BY LANDLORD

 

7.1

LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease, Landlord agrees to keep in good order, condition and repair the roof, public areas, exterior walls (including exterior glass) and structure of the Building (including plumbing, mechanical and electrical systems installed by Landlord but excluding any systems

 

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installed specifically for Tenant’s benefit or used exclusively by Tenant) and the elevators and the HVAC system serving the Premises, all insofar as they affect the Premises, except that Landlord shall in no event be responsible to Tenant for the condition of glass in the Premises or for the doors (or related glass and finish work) leading to the Premises, or for any condition in the Premises or the Building caused by any act or neglect of Tenant, its agents, employees, invitees or contractors. Further, except as otherwise provided in this Lease, Landlord agrees to keep the parking area (insofar as necessary to provide Tenant the parking rights set forth in this Lease) in a serviceable condition except that Landlord shall, in no event, be responsible to Tenant for any condition in the parking area caused by any act or omission of Tenant, its agents, employees, invitees or contractors. Landlord shall not be responsible to make any improvements or repairs to the Building or parking area other than as expressly in this Section 7.1 provided, unless expressly provided otherwise in this Lease. All costs and expenses incurred by Landlord in performing its obligations under this Section 7.1 shall be included in Operating Expenses (as said term is hereafter defined) except as may otherwise be expressly provided in this Lease.

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

(c) Any services which Landlord is required to furnish pursuant to the provisions of this Lease may, at Landlord’s option be furnished from time to time, in whole or in part, by employees of Landlord or by the Manager of the Property or by one or more third persons and Landlord further reserves the right to require Tenant to enter into agreements with such persons in form and content approved by Landlord (and as approved by Tenant, which approval will not be unreasonably withheld) for the furnishing of such services. Landlord shall cause the paved portions of the Property to be kept reasonably free and clear of snow, ice and refuse and shall cause the landscaped areas of the Property to be maintained in a reasonably attractive appearance.

 

7.2

TENANT’S AGREEMENT. (a) Tenant will keep neat and clean and maintain in reasonably good order, condition and repair the Premises and every part thereof, excepting only those repairs for which Landlord is responsible under the terms of this Lease, reasonable wear and tear of the Premises, and damage by fire or other casualty and as a consequence of the exercise of the power of eminent domain; and shall surrender the Premises, at the end of the Term, in such condition, ordinary wear and tear and damage by fire or other casualty excepted. Without limitation, Tenant shall continually during the Term of this Lease maintain the Premises in accordance with all laws, codes and ordinances from time to time in effect and all directions, rules and regulations of the proper officers of governmental agencies having jurisdiction, and of the Boston Board of Fire Underwriters, and shall, at Tenant’s own

 

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expense, obtain all permits, licenses and the like required by applicable law. Notwithstanding the foregoing or the provisions of Article XII, Tenant shall be responsible for the cost of repairs which may be necessary by reason of damage to the Building caused by any act or neglect of Tenant or its agents, employees, contractors or invitees (including any damage by fire or any other casualty arising therefrom). Tenant shall be responsible for the payment of all charges (whether billed directly to Tenant by the applicable utility or submetered and billed to Tenant by Landlord) for electricity and gas used or consumed by the Tenant’s back up generator and/or Supplemental HVAC System and other special equipment, if any, served by such meter or submeter. Without limitation of the foregoing, Tenant shall not do or perform, and shall not permit its agents, servants, employees, contractors or invitees to do or perform any act or thing in or upon the Property which will invalidate or be in conflict with the certificate of occupancy for the Premises or the Building or violate any statute, law, rule, by-law or ordinance of any governmental entity having jurisdiction over the Property (the “Requirements”). Tenant shall, at Tenant’s sole cost and expenses, take all action, including the making of any improvements or alterations necessary to comply with all Requirements, including, but not limited to the ADA, as modified and supplemented from time to time, which shall, with respect to the Premises or with respect to any abatement of nuisance, impose any violation, order or duty upon Landlord or Tenant arising from, or in connection with the Premises, Tenant’s occupancy, use or manner of use of the Premises (including, without limitation, any occupancy, use or manner of use that constitutes a “place of public accommodation” under the ADA), or any installations in the Premises, or required by reason of a breach of any of Tenant’s covenants or agreements under this Lease, whether or not such Requirements shall now be in effect or hereafter enacted or issued, and whether or not any work required shall be ordinary or extraordinary or foreseen or unforeseen at the date hereof. Without limiting the generality of the foregoing, Tenant shall, at its sole cost and expense, maintain and repair the replace the Supplemental HVAC System (as said term is defined in Section 7.4 hereof) and all components thereof. Notwithstanding the foregoing to the contrary, Tenant shall not be responsible to make improvements or alterations to the Premises which are required in order to make Landlord’s Work comply with all Requirements (exclusive of the ADA) and, in the case of the ADA, Tenant shall not be required to make improvements or alterations necessary to make the Landlord’s Work (exclusive of that related to the Supplemental HVAC system) comply with the ADA.

(b) If repairs are required to be made by Tenant pursuant to the terms hereof, Landlord may demand in writing that Tenant make the same forthwith, and if Tenant refuses or neglects to commence such repairs within thirty (30) days after notice thereof from Landlord and complete the same with reasonable dispatch after such demand, Landlord may (but shall not be required to do so) make or cause such repairs to be made (the provisions of Section 14.18 being applicable to the costs thereof) and shall not be responsible to Tenant for any loss or damage that may accrue to Tenant’s stock or business by reason thereof. Notwithstanding the foregoing, Landlord may elect to take action hereunder immediately and without notice to Tenant (and without waiting thirty (30) days) if Landlord reasonably believes an emergency to exist but in such case shall give notice to Tenant as soon as is practicable thereafter.

 

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7.3

FLOOR LOAD - HEAVY MACHINERY. (a) 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 Tenant’s expense in settings sufficient, in Landlord’s judgment, to absorb and prevent vibration, noise and annoyance. Tenant shall not move any safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures into or out of the Building without Landlord’s prior consent, which consent may include a requirement to provide insurance, naming Landlord as an insured, in such amounts as Landlord may deem reasonable.

(b) 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 such work, and that all work in connection therewith shall comply with applicable laws and regulations (except that Tenant shall be entitled to move its computer equipment itself if a Master Rigger’s license is not required therefor. Any such moving shall be at the sole risk and hazard of Tenant, and Tenant will exonerate, indemnity and save Landlord harmless against and from any liability, loss, injury, claim or suit resulting directly or indirectly from such moving.

 

7.4	BUILDING SERVICES. (a) Landlord shall also provide:

(i) Cold water (at temperatures supplied by the Town of Needham) for drinking, lavatory and toilet purposes. If Tenant uses water for any purpose other than for ordinary lavatory and drinking purposes, Landlord may assess a reasonable charge for the additional water so used, or install a water meter and thereby measure Tenant’s water consumption for all purposes. In the latter event, Tenant shall pay the cost of the meter and the cost of installation thereof including, without limitation, any related charges incurred by Landlord in connection with providing and installing the same. Tenant, at Tenant’s sole cost and expense, shall keep such meter and related equipment in good working order and repair. Tenant agrees to pay for water consumed, as shown on such meter, together with the sewer charge based on such meter charges, as and when bills are rendered, and in default in making such payment Landlord may pay such charges and collect the same from Tenant as an additional charge.

(ii) Access to the Premises twenty-four (24) hours per day, three hundred sixty five (365) days per year, subject to reasonable security restrictions and restrictions based on emergency conditions and all other applicable provisions of this Lease.

 

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(iii) Cleaning Services described in Exhibit F as and to the extent required by Exhibit F.

(iv) On Business Days generally from 8:00 a.m. to 6:00 p.m. (except on Saturdays only generally from 9:00 a.m. to 1:00 p.m.) furnish heating and cooling as normal seasonal temperatures may require to provide reasonably comfortable space temperature and ventilation for occupants of the Premises under normal business operation at an occupancy of not more than one person per 150 square feet of usable floor area. If Tenant requires heating or cooling before or after the hours specified herein or on days which are not Business Days, it shall coordinate the same at least one (1) Business Day in advance with the Building Manager and shall pay to Landlord within ten (10) days after being billed therefor the charge therefor in effect from time to time as determined by Landlord. Initially, such charge shall be $25.00 per hour but Landlord shall have the right to increase such hourly charge from time to time as Landlord may require to reflect Landlord’s cost thereof as reasonably determined by Landlord). If Tenant introduces into the Premises personnel or equipment which overloads the capacity of the Building System, or in any other way interferes with the systems ability to perform adequately its proper functions, or which affects the temperature otherwise maintained by the air conditioning system of the Building, supplementary systems may, if and as needed, at Landlord’s option, be provided by Landlord at Tenant’s expense. Tenant acknowledges that Landlord’s Work includes the supplemental rooftop HVAC system as more particularly described in Exhibit B hereto under the heading “Supplemental HVAC System For Computer Room” (the “Supplemental HVAC System” which term includes all equipment, duct work, wiring, controls, pipes, conduits and connections described in Exhibit B hereto under the heading “Supplemental HVAC System For Computer Room”, but such term does not include any part of the base Building HVAC Equipment) to serve Tenant’s computer room (as such computer room is shown on Exhibit B hereto). Although the Supplemental HVAC System is included within Landlord’s Work, Tenant acknowledges and agrees that Tenant shall be solely responsible for the repair, maintenance and (as needed from time to time) replacement of the Supplemental HVAC System, in each case, at Tenant’s sole cost and expense and that Landlord shall have no obligation or liability to Tenant for any failure of the Supplemental HVAC System to operate as designed or to provide adequate cooling, ventilation or other service to Tenant’s server room and administrative work room or elsewhere in the Premises, it being understood and agreed that Tenant shall have no claim of any kind or nature against Landlord on account of any defect in, or failure of, the Supplemental HVAC System to meet Tenant’s requirements or needs nor for any interruption in services related thereto. Landlord agrees that it shall provide Tenant the benefit of all warranties and claims which Landlord may have against third parties on account of the Supplemental HVAC System, all at Tenant’s sole cost and expense. Tenant shall remove the Supplemental HVAC System from the Building upon expiration or earlier termination of the Lease and, in such case, Tenant shall repair any damage to the Building and/or Property caused by such removal and comply with all applicable laws related to the transfer and disposal of such Supplemental HVAC System except that if this Lease is terminated as a result of a

 

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default by Tenant, then Landlord shall have the right to retain the Supplemental HVAC System and, in such case, title to the Supplemental HVAC System shall automatically vest in the Landlord and Tenant shall have no right to remove the same.

(v) Passenger elevator service twenty-four (24) hours per day, three hundred sixty five (365) days per year.

(vi) Twenty-four (24) hour lobby security service, 365 days per year through the presence of a security attendant in the lobby.

(vii) One (1) Building standard sign strip for the Tenant on the lobby directory at Landlord’s expense and a Building standard sign on the main entry doors to the Premises at Tenant’s expense.

(b) Landlord reserves the right to curtail, suspend, interrupt and/or stop the supply of water, sewage, electrical current, cleaning, and other services, and to curtail, suspend, interrupt and/or stop use of entrances and/or lobbies serving access to the Building, without thereby incurring any liability to Tenant, when necessary by reason of accident or emergency, or for repairs, alterations, replacements or improvements in the judgment of Landlord desirable or necessary, or when prevented from supplying such services or use by strikes, lockouts, difficulty in obtaining materials, accidents or any other cause beyond Landlord’s control, or by laws, orders or inability, by exercise of reasonable diligence, to obtain electricity, water, gas, steam, coal, oil or other suitable fuel or power. No diminution or abatement of rent or other compensation, nor any direct, indirect or consequential damages shall or will be claimed by Tenant as a result of, nor shall this Lease or any of the obligations of Tenant be affected or reduced by reason of, any such interruption, curtailment, suspension or stoppage in the furnishing of the foregoing services or use, irrespective of the cause thereof. Failure or omission on the part of Landlord to furnish any of the foregoing services or use shall not be construed as an eviction of Tenant, actual or constructive, nor entitle Tenant to an abatement of rent, nor to render the Landlord liable in damages, nor release Tenant from prompt fulfillment of any of its covenants under this Lease.

(c) In no event shall Landlord be required to provide any cafeteria or food service operation in the Building.

 

7.5

ELECTRICITY. (a) Tenant acknowledges and agrees that there is no submeter or separate electrical meter in the Premises for the purpose of measuring Tenant’s use and consumption of electricity for lights and plugs in the Premises but there will be a separate checkmeter installed in the Premises or elsewhere in the Building by Landlord for the purpose of measuring use and consumption of electricity for the Supplemental HVAC System (and to the extent so designated by Landlord from time to time such checkmeter may also measure use and consumption of electricity for any equipment of Tenant, including, without limitation, computers and other equipment having special power or environmental requirements). Tenant shall make

 

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direct payment to Landlord of Tenant’s Original Electrical Factor for the operation of lights and plugs in the Premises, as additional rent as provided in Section 3.1 of this Lease. Tenant shall pay Landlord all charges for all checkmetered electricity monthly, within twenty (20) days after being billed therefor by Landlord. Landlord shall permit Landlord’s existing wires, pipes, risers, conduits and other electrical equipment of Landlord to be used for the purpose of providing electrical service to the Premises. Tenant covenants and agrees that its electrical usage and consumption will not disproportionately “siphon off” electrical service necessary for other tenants of the Building and that its total connected load will not exceed the maximum load from time to time permitted by applicable governmental regulations nor the design criteria of the existing Building electrical capacity and that in no event shall such total connected load be in excess of (i) 6.0 watts per square foot of the usable area of the Premises (exclusive of the computer room and system administration room (the “SysAdmin Room”) adjacent to the computer room and related thereto, as such rooms are shown on Exhibit B-1 (collectively such computer room and SysAdmin Room are called by “Computer-Admin Rooms”)) or (ii) the 400 AMP 3 phase dedicated service to the Computer-Admin Rooms described in Exhibit B (or any upgrade, alteration or addition to such 400 AMP 3 phase dedicated service which is (x) installed and paid for by Tenant in accordance with the provisions of Section 5.2 of the Lease and (y) approved by Landlord in accordance with Section 5.2 of the Lease). Landlord shall not in any way be liable or responsible to Tenant for any loss or damage or expense which Tenant may sustain or incur if, during the Term of this Lease, either the quantity or character of electric current is changed or electric current is no longer available or suitable for Tenant’s requirements due to a factor or cause beyond Landlord’s control. Tenant shall purchase and install all lamps, tubes, bulbs, starters and ballasts (except that prior to the Commencement Date, Landlord shall, at its expense, initially supply and install (if not present therein) operable lamps, tubes, bulbs, starters and ballasts in the Premises lighting system). Tenant shall bear the cost of repair and maintenance of any electric or gas meter used or to be installed in (or serving) the Premises.

(b) In order to insure that the foregoing requirements are not exceeded and to avert possible adverse affect on the Building’s electrical system, Tenant shall not, without Landlord’s prior consent, connect any fixtures, appliances or equipment (i) located outside the Computer-Admin Rooms to the Building’s electrical distribution system which operates on a voltage in excess of 120 volts nominal or (ii) located within the Computer-Admin Rooms which operates on or requires more than the 400 AMP 3 phase dedicated service to the Computer-Admin Rooms described on Exhibit B (or any upgrade, alteration or addition to such 400 AMP 3 phase dedicated service which is (x) installed and paid for by Tenant in accordance with the provisions of Section 5.2 of the Lease and (y) approved by Landlord in accordance with Section 5.2 of the Lease). If Landlord shall consent to the connection of any such fixtures, appliances or equipment, all additional risers or other electrical facilities or equipment required therefor shall be provided by Landlord and the cost thereof shall be paid by Tenant upon Landlord’s demand as Additional Rent. From time to time during the Term of this Lease, Landlord shall have the right to have an electrical

 

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consultant selected by Landlord make a survey of Tenant’s electric usage, the result of which shall be conclusive and binding upon Landlord and Tenant. In the event that such survey shows that Tenant has exceeded the requirements set forth in paragraph (a), in addition to any other rights Landlord may have hereunder, Tenant shall, upon demand, reimburse Landlord for the costs of such survey.

(c) Landlord and Tenant acknowledge that the 400 AMP 3 phase dedicated service to the Computer-Admin Rooms does not serve the Supplemental HVAC System.

ARTICLE VIII

REAL ESTATE TAXES

 

8.1

PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this Article, the term “Tax Year” shall mean each twelve-month period commencing on the July 1 immediately preceding the Commencement Date and each twelve-month period thereafter commencing during the Term of this Lease; and the term “Taxes” shall mean all real estate taxes, special assessments and betterment assessments assessed with respect to the Property for any Tax Year.

(b) In the event that during any Tax Year, Taxes shall be greater than Base Taxes, Tenant shall pay to Landlord, as an Escalation Charge, an amount equal to (i) the excess of Taxes over Base Taxes for each Tax Year (or partial Tax Year) falling within the Term of this Lease, multiplied by (ii) the Escalation Factor, such amount to be apportioned for any fraction of a Tax Year in which the Commencement Date falls or the Term of this Lease ends.

(c) Estimated payments by Tenant on account of Taxes shall be made monthly and at the time and in the fashion herein provided for the payment of Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to provide Landlord by the time real estate tax payments are due a sum equal to Tenant’s required payments, as estimated by Landlord from time to time, on account of Taxes for the then current Tax Year. Promptly after receipt by Landlord of bills for such Taxes, Landlord shall advise Tenant of the amount thereof and the computation of Tenant’s payment on account thereof. If estimated payments theretofore made by Tenant for the Tax Year covered by such actual bills exceed the required payments on account thereof for such Year, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant on account of Taxes (or refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord); but if the required payments on account thereof for such Tax Year are greater than estimated payments theretofore made on account thereof for such Tax Year, Tenant shall make payment to Landlord within 30 days after being so advised by Landlord. Landlord shall have the same rights and remedies for the non-payment by Tenant of any payments due on account of Taxes as Landlord has hereunder for the failure of Tenant to pay Basic Rent. The obligations of Tenant pursuant to this Article VIII shall survive expiration or earlier termination of the Term of this Lease.

 

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8.2

ABATEMENT. If Landlord shall receive any tax refund or reimbursement of Taxes or sum in lieu thereof with respect to any Tax Year which is not due to vacancies in the Building, then out of any balance remaining thereof after deducting Landlord’s expenses reasonably incurred in obtaining such refund, Landlord shall, provided there does not then exist a Default of Tenant, credit an amount equal to such refund or reimbursement or sum in lieu thereof (exclusive of any interest) multiplied by the Escalation Factor against the obligations of Tenant next falling due under this Article VIII; provided, that in no event shall Tenant be entitled to receive a credit equal to more than the payments made by Tenant on account of Taxes for such Year pursuant to paragraph (b) of Section 8.1 or to receive any payments or abatements of Basic Rent if Taxes for any Tax Year are less than Base Taxes or if Base Taxes are abated.

 

8.3

ALTERNATE TAXES. (a) If some method or type of taxation shall replace the current method of assessment of real estate taxes in whole or in part, or the type thereof, or if additional types of taxes are imposed upon the Property or Landlord relating to the Property, Tenant agrees that Tenant shall pay a proportionate share of the same as an additional charge computed in a fashion consistent with the method of computation herein provided, to the end that Tenant’s share thereof shall be, to the maximum extent practicable, comparable to that which Tenant would bear under the foregoing provisions.

(b) If a tax (other than Federal or State net income tax) is assessed on account of the rents or other charges payable by Tenant to Landlord under this Lease, Tenant agrees to pay the same as an additional charge within ten (10) days after billing therefor, unless applicable law prohibits the payment of such tax by Tenant.

ARTICLE IX

OPERATING EXPENSES

 

9.1	DEFINITIONS. For the purposes of this Article, the following terms shall have the following respective meanings:

(i) Operating Year: Each calendar year in which any part of the Term of this Lease shall fall.

(ii) Operating Expenses: The aggregate costs or expenses reasonably incurred by Landlord with respect to the operation, administration, insuring, cleaning, repair, maintenance and management of the Property (excluding Utility Expenses) all as set forth in Exhibit E annexed hereto, provided that, if during any portion of the Operating Year for which Operating Expenses are being computed, less than all of Building Rentable Area was occupied by tenants or if Landlord is not

 

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supplying all tenants with the services being supplied hereunder, actual Operating Expenses incurred shall be reasonably extrapolated by Landlord on an item by item basis to the estimated Operating Expenses that would have been incurred if the Building were fully occupied for such Year and such services were being supplied to all tenants, and such extrapolated amount shall, for the purposes hereof, be deemed to be the Operating Expenses for such Year.

(iii) Utility Expenses: The aggregate costs or expenses reasonably incurred by Landlord with respect to supplying electricity (other than electricity supplied to those portions of the Building leased to tenants who directly pay the utility company the cost thereof), oil, steam, gas, water and sewer and other utilities supplied to the Property and not payable directly by tenants to the applicable utility company, provided that, if during any portion of the Operating Year for which Utility Expenses are being computed, less than all Building Rentable Area was occupied by tenants or if Landlord is not supplying all tenants with the utilities being supplied hereunder, actual utility expenses incurred shall be reasonably extrapolated by Landlord on an item-by-item basis to the estimated Utility Expenses that would have been incurred if the Building were fully occupied for such Year and such utilities were being supplied to all tenants, and such extrapolated amount shall, for the purposes hereof, be deemed to be the Utility Expenses for such Year.

 

9.2

TENANT’S PAYMENTS. (a) In the event that during any Operating Year, Operating Expenses shall exceed Base Operating Expenses, Tenant shall pay to Landlord, as an Escalation Charge, an amount equal to (i) the excess of Operating Expenses over Base Operating Expenses for each Operating Year (or partial Operating Year) falling within the Term of this Lease multiplied by (ii) the Escalation Factor, such amount to be apportioned for any partial Operating Year in which the Commencement Date falls or the Term of this Lease ends.

(b) In the event that during any Operating Year, Utility Expenses shall exceed Base Utility Expenses, Tenant shall pay to Landlord, as an Escalation Charge, an amount equal to (i) the excess of Utility Expenses over Base Utility Expenses for each Operating Year (or partial Operating Year) falling within the Term of this Lease multiplied by (ii) the Escalation Factor, such amount to be apportioned for any partial Operating Year in which the Commencement Date falls or the Term of this Lease ends.

(c) Estimated payments by Tenant on account of Operating Expenses and Utility Expenses shall be made monthly and at the time and in the fashion herein provided for the payment of Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to provide Landlord by the end of each Operating Year a sum equal to Tenant’s required payments, as estimated by Landlord from time to time during each Operating Year, on account of Operating Expenses and Utility Expenses for such Operating Year. After the end of each Operating Year, Landlord shall submit to Tenant a reasonably detailed accounting of Operating Expenses and Utility Expenses for such Operating Year, and Landlord shall certify to the accuracy thereof. If

 

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estimated payments theretofore made for such Operating Year by Tenant exceed Tenant’s required payment on account thereof for such Operating Year, according to such statement, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant with respect to Operating Expenses and Utility Expenses (or refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord), but, if the required payments on account thereof for such Operating Year are greater than the estimated payments (if any) theretofore made on account thereof for such Operating Year, Tenant shall make payment to Landlord within thirty (30) days after being so advised by Landlord. Landlord shall have the same rights and remedies for the nonpayment by Tenant of any payments due on account of Operating Expenses and Utility Expenses as Landlord has hereunder for the failure of Tenant to pay Basic Rent. The obligations of Tenant under this Article IX shall survive expiration or earlier termination of the Term of this Lease.

(d) Provided that Tenant shall have first paid all amounts due and payable by Tenant pursuant to this Article IX and upon the written request of Tenant (and not more than once with respect to any Operating Year), Tenant shall be permitted to inspect Landlord’s books and records pertaining to Operating Expenses applicable to the Property for such Operating Year. Such inspection shall take place at a mutually agreeable time at the location where such books and records are kept by the Landlord (or the Manager) in the ordinary course. Tenant shall keep the results of any such inspection strictly confidential and shall not be permitted to use any third party to perform such audit or inspection, other than an independent firm of certified public accountants (A) reasonably acceptable to Landlord, (B) which is not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection (and Tenant shall deliver the fee agreement or other similar evidence of such fee arrangement to Landlord upon request), and (C) which agrees with Landlord in writing to maintain the results of such audit or inspection confidential. Tenant may not conduct an inspection or have an audit performed more than once during any Operating Year. Provided Landlord’s accounting for Operating Expenses is consistent with the terms of this Lease, Landlord’s good faith judgment regarding the proper interpretation of this Lease and the proper accounting for Operating Expenses shall be binding on Tenant in connection with any such audit or inspection. Failure of Tenant to provide Landlord with a written request to review such books and records within one hundred twenty (120) days after receipt of a final statement pursuant to this Article IX with respect to each respective Operating Year shall be deemed a waiver of Tenant’s rights hereunder with respect to such Operating Year. If, subject to the foregoing, such inspection discloses an overpayment by Tenant of its required share of Operating Expenses which Landlord does not dispute (or as to which any dispute is resolved), then Landlord shall credit the amount of such overpayment and if such payment discloses an underpayment by Tenant of its required share of Operating Expenses, then Tenant shall make payment thereof to Landlord within thirty (30) days after notice thereof.

 

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ARTICLE X

INDEMNITY AND PUBLIC LIABILITY INSURANCE

 

10.1

TENANT’S INDEMNITY. To the maximum extent this agreement may be made effective according to law, Tenant agrees to defend, indemnify and save harmless Landlord and its officers, directors, shareholders, employees, contractors, servants, invitees, representatives and agents (collectively, “Landlord Parties”) from and against all claims, loss, liability, costs and damages of whatever nature arising from any default by Tenant under this Lease and the following: (i) from any accident, injury, death or damage whatsoever to any person, or to the property of any person, occurring in or about the Premises; (ii) from any accident, injury, death or damage occurring outside of the Premises but on the Property, where such accident, damage or injury results or is claimed to have resulted from an act or omission on the part of Tenant or Tenant’s agents, employees, invitees, contractors, subcontractors, suppliers, servants, representatives, agents, independent contractors, assignees, subtenants, or any other person or entity acting by, through or under Tenant or by, through or under any assignee of the Tenant’s interest under this Lease or any sublessee (collectively “Tenant Parties” and each a “Tenant Party”); or (iii) in connection with the conduct of Tenant or a Tenant Party or the management of the Premises or of any business therein, or any thing or work whatsoever done, or any condition created (other than by Landlord or any Landlord Party) in or about the Premises by Tenant or any Tenant Party; and, in any case, occurring after the date of this Lease, until the end of the Term of this Lease, and thereafter so long as Tenant is in occupancy of the Premises. This indemnity and hold harmless agreement shall include indemnity against all costs, expenses and liabilities incurred in, or in connection with, any such claim or proceeding brought thereon, and the defense thereof, including, without limitation, reasonable attorneys’ fees and costs at both the trial and appellate levels. The provisions of this Section 10.1 shall survive the expiration or any earlier termination of this Lease.

 

10.2

PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Term of this Lease, and thereafter so long as Tenant is in occupancy of any part of the Premises, a policy of general liability and property damage insurance (including broad form contractual liability, independent contractor’s hazard and completed operations coverage) under which Landlord, Manager (and such other persons as are in privity of estate with Landlord as may be set out in notice from time to time) and Tenant are named as insureds, and under which the insurer agrees to defend, indemnify and hold Landlord, Manager, and those in privity of estate with Landlord, harmless from and against all cost, expense and/or liability arising out of or based upon any and all claims, accidents, injuries and damages set forth in Section 10.1. Each such policy shall be non-cancellable and non-amendable with respect to Landlord, Manager and Landlord’s said designees without thirty (30) days’ prior notice to Landlord and shall be in at least the amounts of the Initial Public Liability

 

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Insurance specified in Section 1.3 or such greater amounts as Landlord shall from time to time request (provided the same is comparable to the limits required by other institutional owners of property in Needham, Massachusetts or Metro-West area of Massachusetts for similar property), and a duplicate original or certificate thereof shall be delivered to Landlord.

 

10.3

TENANT’S RISK. To the maximum extent this agreement may be made effective according to law, Tenant agrees to use and occupy the Premises and to use such other portions of the Property as Tenant is herein given the right to use at Tenant’s own risk; and Landlord shall have no responsibility or liability for any loss of or damage to Tenant’s Removable Property or for any inconvenience, annoyance, interruption or injury to business arising from Landlord’s making any repairs or changes which Landlord is permitted by this Lease or required by law to make in or to any portion of the Premises or other sections of the Property, or in or to the fixtures, equipment or appurtenances thereof. Tenant shall carry “all-risk” property insurance on a “replacement cost” basis (including so-called improvements and betterments) for all of Tenant’s Removable Property and all other property of Tenant located at the Premises, and provide a waiver of subrogation as required in Section 14.20. The provisions of this Section 10.3 shall be applicable from and after the execution of this Lease and until the end of the Term of this Lease, and during such further period as Tenant may use or be in occupancy of any part of the Premises or of the Building.

 

10.4

INJURY CAUSED BY THIRD PARTIES. To the maximum extent this agreement may be made effective according to law, Tenant agrees that Landlord shall not be responsible or liable to Tenant, or to those claiming by, through or under Tenant, for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connecting with the Premises or any part of the Property or otherwise. The provisions of this Section 10.4 shall survive the expiration or any earlier termination of this Lease.

ARTICLE XI

LANDLORD’S ACCESS TO PREMISES

 

11.1

LANDLORD’S RIGHTS. Landlord shall have the right to enter the Premises at all reasonable hours (upon reasonable prior notice, except in the case of emergency when no notice shall be required) for the purpose of inspecting or making repairs to the same, and Landlord shall also have the right to make access available at all reasonable hours to prospective or existing mortgagees, purchasers or tenants of any part of the Property. Except that notwithstanding the foregoing, access to prospective tenants shall only be permitted hereunder during the last twelve (12) months of the Term and also during the continuance of any Default of Tenant. Notice by Landlord under this section may be oral or telephonic if Landlord so elects. In no event shall the term “reasonable prior notice” require more than one (1) Business Day’s prior notice.

 

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ARTICLE XII

FIRE, EMINENT DOMAIN, ETC.

 

12.1

ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty, Basic Rent and Escalation Charges payable by Tenant shall abate proportionately for the period in which, by reason of such damage, there is substantial interference with Tenant’s use of the Premises, having regard to the extent to which Tenant may be required to discontinue Tenant’s use of all or a portion of the Premises, but such abatement or reduction shall end if and when Landlord shall have substantially restored the Premises (excluding any alterations, additions or improvements made by Tenant pursuant to Section 5.2 and excluding all of Tenant’s Removable Property) to the condition in which they were prior to such damage. If the Premises shall be affected by any exercise of the power of eminent domain, Basic Rent and Escalation Charges payable by Tenant shall be justly and equitably abated and reduced according to the nature and extent of the loss of use thereof suffered by Tenant. In no event shall Landlord have any liability for damages to Tenant for inconvenience, annoyance, or interruption of business or other claims or causes of action arising from such fire, casualty or eminent domain.

 

12.2

LANDLORD’S RIGHT OF TERMINATION. If the Premises or the Building are substantially damaged by fire or casualty (the term “substantially damaged” meaning damage of such a character that the same cannot, in ordinary course, reasonably be expected to be repaired within ninety (90) days from the time the repair work would commence), or if any part of the Building is taken by any exercise of the right of eminent domain, then Landlord shall have the right to terminate this Lease (even if Landlord’s entire interest in the Premises may have been divested) by giving notice of Landlord’s election so to do within 90 days after the occurrence of such casualty or the effective date of such taking, whereupon this Lease shall terminate thirty (30) days after the date of such notice with the same force and effect as if such date were the date originally established as the expiration date hereof.

 

12.3

RESTORATION. If this Lease shall not be terminated pursuant to Section 12.2, Landlord shall thereafter use due diligence to restore the Premises (excluding any alterations, additions or improvements made by Tenant and excluding the Tenant’s Removable Property) to proper condition for Tenant’s use and occupation, provided that Landlord’s obligation shall be limited to the amount of insurance proceeds available therefor. If, for any reason, such restoration shall not be substantially completed within one hundred forty-five (145) days after the expiration of the 90-day period referred to in Section 12.2 (which one hundred forty-five (145) day period may be extended for such periods of time as Landlord is prevented from proceeding with or completing such restoration for any cause beyond Landlord’s reasonable control), Tenant shall have the right to terminate this Lease by giving notice to Landlord thereof within thirty (30) days after the expiration of such period

 

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(as so extended). Upon the giving of such notice, this Lease shall cease and come to an end without further liability or obligation on the part of either party unless, within such 30-day period, Landlord substantially completes such restoration. Such right of termination shall be Tenant’s sole and exclusive remedy at law or in equity for Landlord’s failure so to complete such restoration.

 

12.4

AWARD. Landlord shall have and hereby reserves and excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover for damages to the Property and the leasehold interest hereby created, and to compensation accrued or hereafter to accrue by reason of such taking, damage or destruction, and by way of confirming the foregoing, Tenant hereby grants and assigns, and covenants with Landlord to grant and assign to Landlord, all rights to such damages or compensation. Nothing contained herein shall be construed to prevent Tenant from, at its sole cost and expense, prosecuting a separate condemnation proceeding with respect to a claim for the value of any of Tenant’s Removable Property installed in the Premises by Tenant at Tenant’s expense and for relocation expenses, provided that such action shall not affect the amount of compensation otherwise recoverable by Landlord from the taking authority.

ARTICLE XIII

DEFAULT

 

13.1	TENANT’S DEFAULT. (a) If at any time subsequent to the date of this Lease any one or more of the following events (herein referred to as a “Default of Tenant”) shall happen:

(i) Tenant shall fail to pay the Basic Rent, Escalation Charges or other sums payable as additional rent or additional charges hereunder when due and such failure shall continue for more than five (5) days after notice to Tenant (except that such requirement for written notice shall not apply to any such failure which occurs more often than once in any twelve (12) calendar month period); or

(ii) Tenant shall neglect or fail to perform or observe any other covenant herein contained on Tenant’s part to be performed or observed, and Tenant shall fail to remedy the same within thirty (30) days after notice to Tenant specifying such neglect or failure, or if such failure is of such a nature that Tenant cannot reasonably remedy the same within such thirty (30) day period, Tenant shall fail to commence promptly to remedy the same and to prosecute such remedy to completion with diligence and continuity, but in no event shall such additional cure period exceed ninety (90) days; or

(iii) Tenant’s leasehold interest in the Premises shall be taken on execution or by other process of law directed against Tenant; or

 

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(iv) Tenant shall make an assignment for the benefit of creditors or shall file a voluntary petition in bankruptcy or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future Federal, State or other statute, law or regulation for the relief of debtors, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties, or shall admit in writing its inability to pay its debts generally as they become due; or

(v) A petition shall be filed against Tenant in bankruptcy or under any other law seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future Federal, State or other statute, law or regulation and shall remain undismissed or unstayed for an aggregate of ninety (90) days (whether or not consecutive), or if any debtor in possession (whether or not Tenant) trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Premises shall be appointed without the consent or acquiescence of Tenant and such appointment shall remain unvacated or unstayed for an aggregate of ninety (90) days (whether or not consecutive); or

(vi) If an event of the type described in clauses (i) or (ii) above shall occur and if either (a) Tenant shall cure such default within the applicable grace period or (b) Landlord shall, in its sole discretion, permit Tenant to cure such default after the applicable grace period has expired, and an event which would constitute a similar default if not cured within the applicable grace period shall occur (without regard to any notice or opportunity to cure) more than once within the next 365 days, whether or not such event is cured within the applicable grace period;

then in any such case (1) if such Default of Tenant shall occur prior to the Commencement Date, this Lease shall ipso facto , and without further act on the part of Landlord, terminate, and (2) if such Default of Tenant shall occur after the Commencement Date, Landlord may terminate this Lease by notice to Tenant, and thereupon this Lease shall come to an end as fully and completely as if such date were the date herein originally fixed for the expiration of the Term of this Lease, and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided.

(b) If this Lease shall be terminated as provided in this Article, or if any execution or attachment shall be issued against Tenant or any of Tenant’s property whereupon the Premises shall be taken or occupied by someone other than Tenant, then Landlord may, without notice, re-enter the Premises, either by summary proceedings, ejectment or otherwise, and remove and dispossess Tenant and all other persons and any and all property from the same, as if this Lease had not been made, and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end.

 

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(c) In the event of any termination, Tenant shall pay the Basic Rent, Escalation Charges and other sums payable hereunder up to the time of such termination, and thereafter Tenant, until the end of what would have been the Term of this Lease in the absence of such termination, and whether or not the Premises shall have been relet, shall be liable to Landlord for, and shall pay to Landlord, as liquidated current damages, the Basic Rent, Escalation Charges and other sums which would be payable hereunder if such termination had not occurred, less the net proceeds, if any, of any reletting of the Premises, after deducting all actual, out of pocket expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, reasonable legal expenses, reasonable attorneys’ fees, advertising, expenses of employees, alteration costs and expenses of preparation for such reletting. Tenant shall pay such current damages to Landlord monthly on the days which the Basic Rent would have been payable hereunder if this Lease had not been terminated.

(d) At any time after such termination, whether or not Landlord shall have collected any such current damages, as liquidated final damages and in lieu of all such current damages beyond the date of such demand, at Landlord’s election Tenant shall pay to Landlord an amount equal to the excess, if any, of the Basic Rent, Escalation Charges and other sums as hereinbefore provided which would be payable hereunder from the date of such demand (assuming that, for the purposes of this paragraph, annual payments by Tenant on account of Taxes, Utility Expenses and Operating Expenses would be the same as the payments required for the immediately preceding Operating or Tax Year) for what would be the then unexpired Term of this Lease if the same had remained in effect, over the then fair net rental value of the Premises for the same period.

(e) In the case of any Default by Tenant, re-entry, expiration and dispossession by summary proceeding or otherwise, Landlord may (i) re-let the Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term of this Lease and may grant concessions or free rent to the extent that Landlord considers advisable and necessary to re-let the same and (ii) may make such reasonable alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable and necessary for the purpose of reletting the Premises; and the making of such alterations, repairs and decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to re-let the Premises, or, in the event that the Premises are re-let, for failure to collect the rent under such re-letting. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease.

(f) Tenant further agrees that Landlord may file suit from time to time to recover any sums due under the terms of this Lease and that no recovery of any portion due

 

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Landlord hereunder shall be a defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. Reletting the Premises shall not be construed as an election on the part of Landlord to terminate this Lease, and notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach, whereupon the foregoing provisions with respect to termination shall apply. Nothing herein shall be deemed to require Landlord to await the date whereon this Lease or the Term hereof would have expired by limitation had there been no such default by Tenant, or no such termination, as the case may be.

(g) If a Guarantor of this Lease is named in Section 1.2, the happening of any of the events described in paragraphs (a)(iv) or (a)(v) of this Section 13.1 with respect to the Guarantor shall constitute a Default of Tenant hereunder.

(h) The specified remedies to which Landlord may resort hereunder are not intended to be exclusive of any remedies or means of redress to which Landlord may at any time be entitled to lawfully, and Landlord may invoke any remedy (including the remedy of specific performance) allowed at law or in equity as if specific remedies were not herein provided for.

(i) All actual out of pocket costs and expenses incurred by or on behalf of Landlord (including, without limitation, reasonable attorneys’ fees and expenses) in enforcing its rights hereunder or occasioned by any Default of Tenant shall be paid by Tenant.

 

13.2

LANDLORD’S DEFAULT. Landlord shall in no event be in default of the performance of any of Landlord’s obligations hereunder unless and until Landlord shall have unreasonably failed to perform such obligation within a period of time reasonably required to correct any such default, after notice by Tenant to Landlord specifying wherein Landlord has failed to perform any such obligations.

ARTICLE XIV

MISCELLANEOUS PROVISIONS

 

14.1

EXTRA HAZARDOUS USE. Tenant covenants and agrees that Tenant will not do or permit anything to be done in or upon the Premises, or bring in anything or keep anything therein, which shall increase the rate of property or liability insurance on the Premises or of the Building above the standard rate applicable to premises being occupied for Permitted Uses; and Tenant further agrees that, in the event that Tenant shall do any of the foregoing, Tenant will promptly pay to Landlord, on demand, any such increase resulting therefrom, which shall be due and payable as an additional charge hereunder.

 

14.2	WAIVER. (a) Failure on the part of Landlord or Tenant to complain of any action or non-action on the part of the other, no matter how long the same may continue, shall never be a waiver by Tenant or Landlord, respectively, of any of the other’s rights

 

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hereunder. Further, no waiver at any time of any of the provisions hereof by Landlord or Tenant shall be construed as a waiver of any of the other provisions hereof, and a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval of Landlord or Tenant to or of any action by the other requiring such consent or approval shall not be construed to waive or render unnecessary Landlord’s or Tenant’s consent or approval to or of any subsequent similar act by the other.

(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be due from Tenant to Landlord shall be treated otherwise than as a payment on account of the earliest installment of any payment due from Tenant under the provisions hereof. The acceptance by Landlord of a check for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and Landlord may accept such check without prejudice to any other rights or remedies which Landlord may have against Tenant.

 

14.3

COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and provisions of this Lease, on payment of the Basic Rent and Escalation Charges and observing, keeping and performing all of the other terms and provisions of this Lease on Tenant’s part to be observed, kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises during the term hereof, without hindrance or ejection by any persons lawfully claiming under Landlord to have title to the Premises superior to Tenant; the foregoing covenant of quiet enjoyment is in lieu of any other covenant, express or implied.

 

14.4

LANDLORD’S LIABILITY. (a) Tenant acknowledges and agrees that Landlord owns the Property as an investment for its Separate Real Estate Account, and Landlord’s liability shall be limited to Landlord’s equity interest in the Property without recourse to any other assets of Landlord, whether of its Separate Real Estate Account or its general account. Tenant specifically agrees to look solely to Landlord’s interest in the Property, for recovery of any judgment from Landlord and not to any other assets of Landlord; it being specifically agreed that neither Landlord (original or successor) nor any of its assigns, agents, servants, employees, directors, shareholders, officers, trustees and beneficiaries shall ever be personally liable for any such judgment, or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlord’s successors in interest, or to take any action not involving the personal liability of Landlord (original or successor) to respond in monetary damages from Landlord’s assets other than Landlord’s equity interest in the Property.

(b) With respect to any services or utilities to be furnished by Landlord to Tenant, Landlord shall in no event be liable for failure to furnish the same when prevented from doing so by Force Majeure, strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts or employees necessary

 

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to furnish such services, or because of war or other emergency, or for any cause beyond Landlord’s reasonable control, or for any cause due to any act or neglect of Tenant or Tenant’s servants, agents, employees, licensees or any person claiming by, through or under Tenant; nor shall any such failure give rise to any claim in Tenant’s favor that Tenant has been evicted, either constructively or actually, partially or wholly.

(c) In no event shall Landlord ever be liable to Tenant for any loss of business or any other indirect or consequential damages suffered by Tenant from whatever cause.

(d) In no event shall Tenant ever be liable to Landlord for indirect or consequential damages suffered by Landlord from any breach of this Lease except that nothing contained in this clause (d) shall, in any way, limit any damage claims which Landlord may have as against Tenant under Section 14.19 of this Lease (entitled “Holding Over”) nor shall this clause (d) limit or impair the amount of Basic Rent, Escalation Charges, Electrical Charges, Tenant’s Original Electrical Factor, Additional Rent or other sums or charges payable by Tenant under this Lease.

(e) With respect to any repairs or restoration which are required or permitted to be made by Landlord, the same may be made during normal business hours and Landlord shall have no liability for damages to Tenant for inconvenience, annoyance or interruption of business arising therefrom.

 

14.5

NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any person, firm or other entity that it holds a mortgage or a ground lease which includes the Premises, no notice from Tenant to Landlord alleging any default by Landlord shall be effective unless and until a copy of the same is given to such holder or ground lessor (provided Tenant shall have been furnished with the name and address of such holder or ground lessor), and the curing of any of Landlord’s defaults by such holder or ground lessor shall be treated as performance by Landlord.

 

14.6

ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any assignment by Landlord of Landlord’s interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder of a mortgage on property which includes the Premises, Tenant agrees that the execution thereof by Landlord, and the acceptance thereof by the holder of such mortgage, shall never be treated as an assumption by such holder of any of the obligations of Landlord hereunder unless such holder shall, by notice sent to Tenant, specifically otherwise elect and that, except as aforesaid, such holder shall be treated as having assumed Landlord’s obligations hereunder only upon foreclosure of such holder’s mortgage and the taking of possession of the Premises.

(b) In no event shall the acquisition of Landlord’s interest in the Property by a purchaser which, simultaneously therewith, leases Landlord’s entire interest in the Property back to the seller thereof be treated as an assumption by operation of law or otherwise, of Landlord’s obligations hereunder, but Tenant shall look solely to such seller-lessee, and its successors from time to time in title, for performance of

 

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Landlord’s obligations hereunder. In any such event, this Lease shall be subject and subordinate to the lease to such purchaser. For all purposes, such seller-lessee, and its successors in title, shall be the Landlord hereunder unless and until Landlord’s position shall have been assumed by such purchaser-lessor.

(c) Except as provided in paragraph (b) of this Section, in the event of any transfer of title to the Property by Landlord, Landlord shall thereafter be entirely freed and relieved from the performance and observance of all covenants and obligations hereunder (exclusive, however, of obligations due to a failure by Landlord to comply with any of its obligations under this Lease prior to the date of such transfer provided that Tenant shall have given Landlord written notice of such failure prior to the date of such transfer and the transferee shall not have assumed (in writing) Landlord’s obligation with respect thereto).

 

14.7

RULES AND REGULATIONS. Tenant shall abide by rules and regulations set forth in Exhibit C attached hereto and those written rules and regulations from time to time established by Landlord, it being agreed that such rules and regulations will be established and applied by Landlord in a non-discriminatory fashion, such that all rules and regulations shall be generally applicable to other tenants of the Building of similar nature to the Tenant named herein. Landlord agrees to use reasonable efforts to insure that any such rules and regulations are uniformly enforced, but Landlord shall not be liable to Tenant for violation of the same by any other tenant or occupant of the Building, or persons having business with them. In the event that there shall be any conflict between such rules and regulations and the provisions of this Lease, the provisions of this Lease shall control.

 

14.8	ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums under this Lease designated or payable as an additional charge, Landlord shall have the same rights and remedies as Landlord has hereunder for failure to pay Basic Rent.

 

14.9

INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by Law.

 

14.10

PROVISIONS BINDING. ETC. Except as herein otherwise provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Landlord and Tenant and, if Tenant shall be an individual, upon and to his heirs, executors, administrators, successors and assigns. Each term and each provision of this Lease to be performed by Tenant shall be construed to be both a covenant and a condition. The reference contained to successors and assigns of Tenant is not intended to constitute a consent to assignment by Tenant, but has reference only to those instances in which Landlord may later give consent to a particular assignment as required by those provisions of Article VI hereof.

 

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14.11

RECORDING. Tenant agrees not to record this Lease, but each party hereto agrees, on the request of the other, to execute a so-called notice of lease in form recordable and complying with applicable law and reasonably satisfactory to Landlord’s attorneys. In no event shall such document set forth the rent or other charges payable by Tenant under this Lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease.

 

14.12

NOTICES. Whenever, by the terms of this Lease, notices, consents or approvals shall or may by given either to Landlord or to Tenant, such notices, consents or approvals shall be in writing and shall be sent by (i) nationally recognized overnight delivery service with signature required on delivery or (ii) registered or certified mail, return receipt requested, postage prepaid:

If intended for Landlord, addressed to Landlord at:

Landlord’s Original Address

with a copy to:

Cushman & Wakefield of Massachusetts, Inc.

524 Edgewater Drive

Wakefield, Massachusetts 01880

Attention: Property Manager

160 Gould Street

Needham, Massachusetts

(or to such other address as may from time to time hereafter be designated by Landlord by like notice).

If intended for Tenant, addressed to Tenant at Tenant’s Original Address until the Commencement Date and thereafter to the Premises (or to such other address or addresses as may from time to time hereafter be designated by Tenant by like notice), with a copy to Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., One Financial Center, Boston, Massachusetts 02111, Attention: Steve Rosenthal, Esq.

All such notices shall be effective when delivered if sent by overnight courier and if by US Mail when deposited in the United States Mail within the Continental United States, provided that the same are received in ordinary course at the address to which the same were sent.

 

14.13

WHEN LEASE BECOMES BINDING. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant. All negotiations, considerations, representations and understandings between Landlord and Tenant are incorporated herein and this Lease expressly supersedes any

 

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proposals or other written documents relating hereto. This Lease may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change or modify any of the provisions hereof.

 

14.14

PARAGRAPH HEADINGS. The paragraph headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction, or meaning of the provisions of this Lease.

 

14.15

RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate to any mortgage or ground lease from time to time encumbering the Premises, whether executed and delivered prior to or subsequent to the date of this Lease, if the holder of such mortgage or ground lease shall so elect. If this Lease is subordinate to any mortgage or ground lease and the holder thereof (or successor) shall succeed to the interest of Landlord, at the election of such holder (or successor) Tenant shall attorn to such holder and this Lease shall continue in full force and effect between such holder (or successor) and Tenant. Tenant agrees to execute such instruments of subordination or attornment in confirmation of the foregoing agreement as such holder may request. Notwithstanding anything to the contrary contained in this Section 14.15, Tenant shall not be required to subordinate this Lease to any mortgage or the lien of any mortgage, ground lease or sale and a leaseback, nor shall the subordination provided herein be self-operative unless the holder of such mortgage or the lessor under such ground lease, as the case may be, shall enter into an agreement with Tenant, recordable in form, to the effect that, in the event of foreclosure of, or similar action taken under, such mortgage or ground lease, Tenant’s possession of the Premises under this Lease shall not be terminated or disturbed by such mortgage holder or ground lessor or anyone claiming under such mortgage holder or a ground lessor, as the case may be, so long as Tenant shall not be in default under this Lease beyond applicable notice and grace periods. The form of any such agreement shall be the form customarily required by any such mortgagee or ground lessor and may contain such related provisions as such mortgagee or ground lessor customarily requires.

 

14.16

STATUS REPORT. Recognizing that both parties may find it necessary to establish to third parties, such as accountants, banks, mortgagees, ground lessors, or the like, the then current status of performance hereunder, either party, on the request of the other made from time to time, will promptly furnish to Landlord, or the holder of any mortgage or ground lease encumbering the Premises, or to Tenant, as the case may be, a statement of the status of any matter pertaining to this Lease, including, without limitation, acknowledgment that (or the extent to which) each party is in compliance with its obligations under the terms of this Lease.

 

14.17

SECURITY DEPOSIT/LETTER OF CREDIT.

(a) Upon execution and delivery of this Lease by Tenant, Tenant shall deposit with Landlord a Letter of Credit in the amount and form hereafter described and

 

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required (the “Letter of Credit”). The Letter of Credit shall be held by Landlord as security for the faithful payment, performance and observance by Tenant of the payments, terms, covenants, provisions, conditions and agreements to be paid, performed and observed by Tenant under and pursuant to this Lease and the Letter of Credit may be presented, drawn upon and the proceeds thereof may be retained and/or applied by Landlord as hereinafter provided. Upon any failure of Tenant to make any payment of any Basic Rent, Escalation Charges, Additional Rent or other sum or charge when due under this Lease or to perform any other obligation to be performed by Tenant under this Lease, in each case, without any requirement that written notice of such failure be given by Landlord under any other provision of the Lease and whether or not such failure constitutes a Default of Tenant, Landlord may (if it so elects) present for payment and draw upon the Letter of Credit and may use, apply and/or retain the whole or any part of the proceeds drawn under the Letter of Credit to the extent Landlord may elect for the payment of any Basic Rent, Escalation Charges and Additional Rent from time to time due under this Lease as well as any of Landlord’s damages and any other sums, charges and expenses which Landlord may expend or be entitled to receive by reason of or in connection with any failure of Tenant to pay, perform or observe any payment, term, covenant, condition or provision of this Lease to be paid, performed or observed by Tenant under this Lease, including without limitation, any late charges, interest payments and/or any damages of Landlord or any deficiency in the re-letting of the Premises whether said damages or deficiency occurred before or after termination of this Lease, summary proceedings or other re-entry by Landlord.

(b) If Landlord shall present, draw upon and apply or retain all or any portion of the amounts evidenced by the Letter of Credit, Tenant shall, within ten (10) days thereafter, and without the requirement of any demand or any notice from Landlord, replenish and reinstate the amount available to be drawn under the Letter of Credit or cause a substitute Letter of Credit in the form and amount required by this Lease to be re-issued so that at all times during the Term of this Lease, Landlord shall be entitled to draw upon the of the Letter of Credit in the entire amounts from time to time required to be available hereunder notwithstanding any prior presentation or draw thereon.

(c) Tenant agrees that the Letter of Credit shall at all times be an unconditional and irrevocable clean commercial Letter of Credit in form and content satisfactory to Landlord in Landlord’s sole and absolute discretion and in the amount required by this Lease (partial drawings must be permitted) and payable through a New York, New York clearinghouse bank at counters in New York, New York, which bank must be acceptable to and approved by Landlord in Landlord’s sole discretion. In addition, the Letter of Credit shall be payable solely to the benefit of the Landlord from time to time under this Lease and shall be automatically renewable and, upon the direction of Landlord, transferable to and payable for the benefit of any successor Landlord under the Lease without cost to Landlord. The Letter of Credit (or substitutes thereof consistent with the terms hereof) shall be and remain presentable and payable in the amounts required hereunder for the time period beginning on the date of this Lease through and including the date which is

 

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the last to occur of (i) the date which is 30 days after the last day of the Term of this Lease or (ii) the date which is 30 days after the date of delivery by Tenant of the entire Premises to Landlord in accordance with the terms and provisions of this Lease or (iii) 30 days after the last of Tenant’s monetary obligations to Landlord of any kind and nature under this Lease have been paid and satisfied in full. Tenant shall bear all costs and expenses in connection with procuring the Letter of Credit and maintaining it in full force and effect (including, without limitation, any annual fees, renewal fees or transfer fees) for the time periods required hereunder. In the event of a sale or other transfer of the Building, Tenant shall, at its sole cost and expense, cause the Letter of Credit, in the form required hereunder, to be issued to and for the benefit of such transferee or purchaser, as designated by Landlord.

(d) The Landlord from time to time under this Lease, shall be entitled to receive thirty (30) days prior written notice of any cancellation or non-renewal of the Letter of Credit for any reason and the Letter of Credit shall not be cancellable unless and until Landlord shall have received such thirty (30) day advance written notice and the Letter of Credit shall so provide). Upon (i) receiving notice of cancellation or non-renewal of the Letter of Credit or (ii) failure of Tenant to deliver to Landlord a substitute Letter of Credit on or before the date which is thirty (30) days prior to any renewal date and whether or not Tenant shall then be in default in the payment, performance or observance of any term, covenant or provision of this Lease, Landlord shall (if it so elects) be entitled to present, draw upon and retain the entire amount of the Letter of Credit (and the Letter of Credit shall so provide) and upon so doing, Landlord shall be entitled to hold such proceeds (Landlord having no obligation to pay interest on such proceeds and may co-mingle same with other assets of Landlord) and (if Landlord so elects) apply and retain the same to the extent Landlord may elect for the payment of any Basic Rent, Escalation Charges and Additional Rent from time to time due under this Lease as well as any of Landlord’s damages and any other sum which Landlord may expend or be entitled to receive by reason of or in connection with any failure of Tenant to pay, perform or observe any term, covenant, condition or provision of this Lease, including without limitation, any late charges, interest payments and/or any damages of Landlord and/or any deficiencies in the re-letting of the Premises whether said damages or deficiency occurred before or after termination of this Lease, summary proceedings or other re-entry by Landlord.

(e) The Letter of Credit (and any proceeds thereof received by Landlord) may not be deemed by Tenant to constitute rent for any month. Landlord shall not have any obligation to draw upon the Letter of Credit and the exercise by Landlord of any rights under this Section 14.17 shall be without prejudice to any other right or remedy Landlord may have on account thereof. Tenant shall not have the right to call upon Landlord to apply all or any part of the Letter of Credit or any proceeds thereof to cure any default or fulfill any obligation of Tenant, but such use shall be solely in the discretion of Landlord. If Landlord, in its reasonable judgment, determines that the bank issuing the applicable Letter of Credit then being held by Landlord no longer satisfies the requirements of this Lease or is no longer of sufficient net worth or creditworthiness, Landlord may require that Tenant, within

 

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thirty (30) days of receipt of notice thereof, obtain, at Tenant’s sole cost and expense, a substitute letter of credit from another bank reasonably approved by Landlord and satisfying the requirements of this Lease. Tenant understands and agrees that its potential liability under this Lease is not limited to the amount of any security deposit or the amount of any Letter of Credit.

(f) If Landlord conveys Landlord’s interest under this Lease, the Letter of Credit (and/or any proceeds thereof held by Landlord) may be assigned or negotiated by Landlord to Landlord’s grantee, and if so assigned or negotiated, Tenant agrees to look solely to such grantee for proper application of the Letter of Credit (and any such proceeds) in accordance with the provisions of this Section 14.17 and the return thereof in accordance herewith. Upon such assignment or negotiation of the Letter of Credit (or any proceeds thereof) by Landlord to such grantee, Tenant hereby releases the Landlord named herein of any and all liability with respect to the Letter of Credit, any proceeds thereof and their return, and Tenant agrees to look solely to such grantee for satisfaction of any claims in any way related thereto and this provision shall also apply