\n 21.6 Landlord’s Remedies Not Exclusive…………………. 27
\n 21.7 Grace Period……………………………………. 27<\/p>\n22. END OF TERM – ABANDONED PROPERTY………………………….. 28<\/p>\n
23. SUBORDINATION…………………………………………… 29<\/p>\n
24. QUIET ENJOYMENT…………………………………………. 30<\/p>\n
25. ENTIRE AGREEMENT – WAIVER – SURRENDER…………………….. 31
\n 25.1 Entire Agreement………………………………… 31
\n 25.2 Waiver…………………………………………. 31
\n 25.3 Surrender………………………………………. 31<\/p>\n
26. INABILITY TO PERFORM – EXCULPATORY CLAUSE………………….. 31<\/p>\n
27. BILLS AND NOTICES……………………………………….. 32<\/p>\n
28. PARTIES BOUND – SEIZING OF TITLE………………………….. 33<\/p>\n
29. MISCELLANEOUS…………………………………………… 33
\n 29.1 Separability……………………………………. 33
\n 29.2 Captions, etc…………………………………… 33
\n 29.3 Broker…………………………………………. 33
\n 29.4 Modifications…………………………………… 33
\n 29.5 Arbitration…………………………………….. 34
\n 29.6 Governing Law…………………………………… 34
\n 29.7 Assignment of Rents……………………………… 34
\n 29.8 Representation of Authority………………………. 34
\n 29.9 Expenses Incurred by Landlord Upon Tenant Requests….. 34
\n 29.10 Survival……………………………………….. 34<\/p>\n
EXHIBITS<\/p>\n
Exhibit 1 Lease Data……………………………………..
\n Exhibit 2 Lease Plans…………………………………….
\n Exhibit 3 Building Standard Items…………………………. 36
\n Exhibit 4 Building Services………………………………. 40
\n Exhibit 5 Form of Letter of Credit………………………… 40
\n Exhibit 6 Base Building Work………………………………
\n Exhibit 7 Exterior Sign…………………………………..
\n Exhibit 8 Tenant’s Removable Property
\n<\/c><\/s><\/table>\n
-iii-
\n 10
\n THIS INDENTURE OF LEASE made and entered into on the Execution Date as
\nstated in Exhibit 1 and between the Landlord and the Tenant named in Exhibit 1.<\/p>\n
Landlord does hereby demise and lease to Tenant, and Tenant does hereby hire and
\ntake from Landlord, the Premises hereinafter mentioned and described
\n(hereinafter referred to as “Premises”), upon and subject to the covenants,
\nagreements, terms, provisions and conditions of this Lease for the term
\nhereinafter stated:<\/p>\n
1. REFERENCE DATA<\/p>\n
Each reference in this Lease to any of the terms and titles contained
\nin any Exhibit attached to this Lease shall be deemed and construed to
\nincorporate the data stated under that term or title in such Exhibit.<\/p>\n
2. DESCRIPTION OF DEMISED PREMISES<\/p>\n
2.1. DEMISED PREMISES. The Premises are that portion of the
\nBuilding as described in Exhibit 1 and is hereinafter referred to as “Building”,
\nsubstantially as shown hatched or outlined on the Lease Plan (Exhibit 2) hereto
\nattached and incorporated by reference as a part hereof.<\/p>\n
2.2. APPURTENANT RIGHTS. Tenant shall have, as appurtenant to the
\nPremises, rights to use in common, with others entitled thereto, subject to
\nreasonable rules from time to time made by Landlord of which Tenant is given
\nnotice; (a) the common lobbies, hallways, stairways and elevators of the
\nBuilding, serving the Premises in common with others, (b) common walkways
\nnecessary for access to the Building, and (c) if the Premises include less than
\nthe entire rentable area of any floor, the common toilets and other common
\nfacilities of such floor; and no other appurtenant rights or easements. Landlord
\nshall allow Tenant’s telecommunication service provider to have access to the
\nBuilding and to Tenant’s Premises, provided however, that Landlord shall have
\nthe right to charge Tenant’s provider fees in connection with the services being
\nperformed by such provider.<\/p>\n
2.3. PARKING. During the term of the Lease, the Landlord will make
\navailable, at Tenant’s written request, which request must be made on or before
\nthe Term Commencement Date in respect of Portion A, up to one and one-half (1.5)
\nmonthly parking passes per 1,000 square feet of Total Rentable Area leased by
\nTenant (the “Parking Space Cap”) for use in the garage of the Complex or surface
\nparking areas in the Building, as the same may change from time to time
\n(“Parking Areas”). If Tenant fails timely to make such request for any such
\nparking passes, Tenant shall have no right to obtain such parking passes under
\nthis Article 2.3, except to the extent thereafter available, as more
\nspecifically set forth herein. If Tenant requests fewer passes than the Parking
\nSpace Cap prior to the Term Commencement Date, Tenant shall have the right, from
\ntime to time during the term of the Lease, to request additional parking passes
\nup to the Parking Space Cap. If Landlord has such passes available, Landlord
\nwill provide the same to Tenant (but in no event more than the Parking Space
\nCap), provided however, that, if such passes are not available, Landlord shall
\nhave no obligation to provide additional passes to Tenant. Tenant shall have no
\nright to sublet, assign, or otherwise transfer said parking passes, other than
\nto an Assignee or a Qualified Transferee pursuant to an approved assignment or
\nsublease under Article 16 of the Lease. Said parking passes shall be paid for by
\nTenant at the then current prevailing rate in the Parking Areas, as such rate
\nmay vary from time to time. If, for any reason, Tenant shall fail timely to pay
\nthe charge for said parking passes, and if such default continues for ten (10)
\ndays after written notice, Tenant shall have no further right to the parking
\npasses for which Tenant failed to pay the charge under this Article 2.3. Said
\nparking passes will be on an unassigned, non-reserved basis, and shall be
\nsubject to such reasonable and uniform rules and regulations as may be in effect
\nfor the use of said Parking Areas, from time to time in force.<\/p>\n
-1-
\n 11
\n 2.4. EXCLUSIONS AND RESERVATIONS. All the perimeter walls of the
\nPremises except the inner surfaces thereof, any balconies (except to the extent
\nsame are shown as part of the Premises on the Lease Plan (Exhibit 2)), terraces
\nor roofs adjacent to the Premises, and any space in or adjacent to the Premises
\nused for shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan
\nrooms, ducts, electric or other utilities, sinks or other Building facilities,
\nand the use thereof, as well as the right of access through the Premises for the
\npurposes of operation, maintenance, decoration and repair, are expressly
\nexcluded from the Premises and reserved to Landlord.<\/p>\n
3. TERM OF LEASE<\/p>\n
3.1. DEFINITIONS. As used in this Lease the words and terms which
\nfollow mean and include the following:<\/p>\n
(a) “Specified Commencement Date” – The date (as stated in
\nExhibit 1) on which it is estimated that the Portion of the Premises in question
\nwill be ready for Tenant’s occupancy for its use as stated in Exhibit 1.<\/p>\n
(b) “Term Commencement Date” – The “Term Commencement Date”
\nwith respect to Portion A is the date nine (9) days before the date on which
\nPortion A of the Premises is ready for Tenant’s occupancy (as defined in Article
\n4.2) for use as set forth in Exhibit 1, but in no event prior to January 1,
\n2000. The “Term Commencement Date” with respect to Portion B is the date on
\nwhich Portion B of the Premises is ready for Tenant’s occupancy (as defined in
\nArticle 4.2) for use as set forth in Exhibit 1. If such Portion of the Premises
\nis not ready for such occupancy but if, pursuant to permission therefor duly
\ngiven by Landlord, Tenant takes possession of the whole or any part of such
\nPortion of the Premises for use as set forth in Exhibit 1, “Term Commencement
\nDate” for such Portion shall be the date on which Tenant takes such possession.<\/p>\n
3.2. HABENDUM. TO HAVE AND TO HOLD each Portion of the Premises for
\na term of years commencing on the Term Commencement Date in respect of such
\nPortion and ending on the Termination Date as stated in Exhibit 1 or on such
\nearlier date upon which said term may expire or be terminated pursuant to any of
\nthe conditions of limitation or other provisions of this Lease or pursuant to
\nlaw (which date for the termination of the terms hereof will hereafter be called
\n“Termination Date”). Notwithstanding the foregoing, if the Termination Date as
\nstated in Exhibit 1 shall fall on other than the last day of a calendar month,
\nsaid Termination Date shall be deemed to be the last day of the calendar month
\nin which said Termination Date occurs.<\/p>\n
3.3. DECLARATION FIXING TERM COMMENCEMENT DATE. As soon as may be
\nafter the execution date hereof, each of the parties hereto agrees, upon demand
\nof the other party to join in the execution, in recordable form, of a statutory
\nnotice, memorandum, etc. of lease and\/or written declaration in which shall be
\nstated each such Term Commencement Date and (if need be) the Termination Date.
\nIf this Lease is terminated before the term expires, then upon Landlord’s
\nrequest the parties shall execute, deliver and record an instrument
\nacknowledging such fact and the date of termination of this Lease, and Tenant
\nhereby appoints Landlord its attorney-in-fact in its name and behalf to execute
\nsuch instrument if Tenant shall fail to execute and deliver such instrument
\nafter Landlord’s request therefor within ten (10) days.<\/p>\n
4. READINESS FOR OCCUPANCY – ENTRY BY TENANT PRIOR TO TERM COMMENCEMENT
\n DATE<\/p>\n
4.1 COMPLETION DATE – DELAYS.<\/p>\n
(a) Subject to delay by causes set forth in Article 26 (“Force Majeure
\nDelays”) or caused by a Tenant Delay, as hereinafter defined, Landlord shall use
\nreasonable speed and diligence to have each<\/p>\n
-2-
\n 12
\nPortion of the Premises ready for Tenant’s occupancy on its respective Specified
\nCommencement Date. The failure to have such Portion of the Premises ready for
\nTenant’s occupancy on the Specified Commencement Date in respect of such Portion
\nshall in no way affect the validity of this Lease or the obligations of Tenant
\nhereunder nor shall the same be construed in any way to extend the term of this
\nLease. If a Portion of the Premises is not ready for Tenant’s occupancy within
\nthe meaning of Article 4.2 hereof on the Specified Commencement Date for such
\nPortion, Tenant shall not have any claim against Landlord, and Landlord shall
\nhave no liability to Tenant, by reason thereof. In addition, Landlord shall use
\nreasonable efforts to have the lockers and showers shown on Plan A5-1, Enlarged
\nBasement Core Plan, dated May 10, 1999, as modified by Plan SKA031 dated August
\n31, 1999, both prepared by Sasaki Associates in association with DTS Shaw, Inc.,
\ncompleted, at Landlord’s expense, by the Specified Commencement Date in respect
\nof Portion A, but Landlord’s failure so to do shall not affect the Term
\nCommencement Date in respect of Portion A.<\/p>\n
(b) Notwithstanding anything to the contrary herein contained, if the
\nTerm Commencement Date in respect of either Portion of the Premises has not
\noccurred on or before the date (“Initial Target Date”) sixty (60) days after the
\nSpecified Commencement Date in respect of such Portion, then Tenant shall be
\nentitled to a credit against the Yearly Rent otherwise payable in respect of
\nsuch Portion from and after the Term Commencement Date in respect of such
\nPortion equal to the amount of Yearly Rent payable in respect of such Portion
\nfor one (1) day for each day between the Initial Target Date and the Term
\nCommencement Date in respect of such Portion, provided however, that the Initial
\nTarget Date shall be extended by the number of days that Landlord’s Work in
\nrespect of such Portion is delayed due to Force Majeure Delays.<\/p>\n
(c) Notwithstanding the foregoing, if the Term Commencement Date in
\nrespect of Portion A shall not have occurred on or before the Outside Target
\nDate, as hereinafter defined, then Tenant shall have the right, exercisable by a
\nwritten thirty (30) day termination notice given on or after the Outside Target
\nDate, to terminate the Lease. If the Term Commencement Date in respect of
\nPortion A occurs on or before the thirtieth (30th) day after Landlord receives
\nsuch termination notice, Tenant’s termination notice shall be deemed to be void
\nand of no force or effect. If the Term Commencement Date in respect of Portion A
\ndoes not occur on or before such thirtieth (30th) day, this Lease shall
\nterminate and shall be of no further force or effect. For the purposes hereof,
\nthe “Outside Target Date” shall be defined as the date ninety (90) days after
\nthe Specified Commencement Date in respect of Portion A, provided however, that
\nthe Outside Target Date shall be extended by the lesser of (i) the length of any
\ndelays in Landlord’s Work in respect of Portion A arising from Force Majeure
\nDelays, and (ii) ninety (90) days.<\/p>\n
4.2 WHEN PREMISES DEEMED READY.<\/p>\n
(a) Definition of Substantially Completed. Each Portion of the Premises
\nshall be conclusively deemed ready for Tenant’s occupancy as soon as (i)
\nLandlord’s Work, as hereinafter defined, in such Portion has been substantially
\ncompleted by Landlord insofar as is practicable in view of Tenant Delays and the
\nelevator, plumbing, air conditioning and electric facilities are substantially
\navailable to Tenant, and in good working order, in accordance with the
\nobligations assumed by Landlord hereunder and (ii) the City of Cambridge shall
\nhave issued a permanent, unconditional certificate of occupancy, or its
\nequivalent, permitting Tenant to legally occupy such Portion of the Premises.
\nLandlord’s Work shall be defined as the work to be performed by Landlord in
\npreparing each Portion of the Premises for Tenant’s occupancy as shown on
\nTenant’s final approved plans in respect of such Portion of the Premises,
\nprovided however, that if Landlord’s Work in respect of any Portion of the
\nPremises is delayed as the result of any Tenant Delays, then such Portion shall
\nbe deemed to be ready for Tenant’s occupancy as of date that such Portion would
\nhave been substantially completed but for such Tenant Delays. Notwithstanding
\nthe foregoing, if Tenant engages its own contractors to perform any portion of
\nthe work to be performed in the initial preparation of such Portion of the
\nPremises, Landlord shall be relieved of its responsibility for obtaining such
\ncertificate of occupancy to the extent that Landlord’s failure to obtain such
\ncertificate of occupancy is based upon any aspect of the work performed by
\nTenant’s contractors. A<\/p>\n
-3-
\n 13
\nPortion of the Premises shall not be deemed to be unready for Tenant’s occupancy
\nor incomplete if only minor or insubstantial details of construction, decoration
\nor mechanical adjustments remain to be done in such Portion of the Premises or
\nany part thereof which will not materially interfere with Tenant’s conduct of
\nbusiness in such Portion of the Premises. If a Portion of the Premises is deemed
\nready for Tenant’s occupancy, pursuant to the foregoing, (and the term shall
\nhave commenced by reason thereof), but such Portion of the Premises is not in
\nfact actually ready for Tenant’s occupancy, Tenant shall not (except with
\nLandlord’s consent) be entitled to take possession of such Portion of the
\nPremises for use as set forth in Exhibit 1 until such Portion of the Premises is
\nin fact actually ready for such occupancy. Landlord’s architect’s certificate of
\nsubstantial completion, as hereinabove stated, given in good faith, or of any
\nother facts pertinent to this Article 4.2 shall be deemed conclusive of the
\nstatements therein contained and binding upon Tenant. Any of Landlord’s Work in
\na Portion of the Premises not fully completed on the Term Commencement Date in
\nrespect of such Portion shall be so completed by Landlord within thirty (30)
\ndays after the Term Commencement Date in respect of such Portion (other than
\nlong-lead items which shall be completed with reasonable diligence by Landlord).<\/p>\n
(b) Definition of Tenant Delays. For the purposes hereof, a “Tenant
\nDelay” shall be defined as a delay in the performance of Landlord’s Work: (i)
\ndue to special work (i.e., long – lead items of which Landlord advises Tenant at
\nthe time Landlord approves Tenant’s final plans in respect of a Portion of the
\nPremises), changes, alterations or additions required or made by Tenant in the
\nlayout or finish of either Portion of the Premises or any part thereof, (ii)
\ncaused in whole or in part by Tenant through the delay of Tenant in submitting
\nany plans and\/or specifications, supplying information, approving plans,
\nspecifications or estimates, giving authorizations or otherwise or (iii) caused
\nin whole or in part by delay and\/or default on the part of Tenant or its
\ncontractors including, without limitation, the utility companies and other
\nentities furnishing communications, data processing or other service or
\nequipment.<\/p>\n
4.3 PLANS AND SPECIFICATIONS. Tenant shall be solely responsible for
\nthe timely preparation and submission to Landlord of the final architectural,
\nelectrical and mechanical construction drawings, plans and specifications
\n(called “plans”) necessary to construct each Portion of the Premises for
\nTenant’s occupancy, which plans shall be subject to approval by Landlord’s
\narchitect and engineers, which approval shall not be unreasonably withheld, and
\nshall comply with their requirements to avoid aesthetic or other conflicts with
\nthe design and function of the balance of the Building. Landlord’s approval is
\nsolely given for the benefit of Landlord and neither Tenant nor any third party
\nshall have the right to rely upon Landlord’s approval of Tenant’s plans for any
\npurpose whatsoever. Without limiting the foregoing, Tenant shall be responsible
\nfor all elements of the design of Tenant’s plans (including, without limitation,
\ncompliance with law, functionality of design, the structural integrity of the
\ndesign, the configuration of each Portion of the Premises and the placement of
\nTenant’s furniture, appliances and equipment), and Landlord’s approval of
\nTenant’s plans shall in no event relieve Tenant of the responsibility for such
\ndesign. Tenant has assured itself by direct communication with the architect and
\nengineers (Landlord’s or its own, as the case may be) that the final approved
\nplans can be delivered to Landlord on or before the Final Plans Date in respect
\nof each Portion of the Premises as stated in Exhibit 1, provided that Tenant
\npromptly furnishes complete information concerning its requirements to said
\narchitect and engineers as and when requested by them; and Tenant covenants and
\nagrees to cause said final, approved plans and specifications to be delivered to
\nLandlord on or before said respective Final Plans Dates and to devote such time
\nas may be necessary in consultation with said architect and engineers to enable
\nthem to complete and submit all plans within the required time limit. Time is of
\nthe essence in respect of preparation and submission of plans by Tenant. (The
\nword “architect” as used in this Article 4 shall include an interior designer or
\nspace planner.)<\/p>\n
4.4 PREPARATION OF PREMISES.<\/p>\n
(a) By Landlord. Except as is otherwise herein provided or as
\nmay be otherwise approved by the Landlord, all work necessary to prepare each
\nPortion of the Premises for Tenant’s occupancy, including work to be performed
\nat Tenant’s expense, shall be performed by contractors<\/p>\n
-4-
\n 14
\nemployed by Landlord. Notwithstanding the foregoing, the work described in
\nExhibit 6 as “Base Building Work” shall be performed by Landlord at Landlord’s
\nexpense. Landlord’s contract with the general contractor for Landlord’s Work in
\neach Portion of the Premises shall provide for a fixed fee of four percent (4%),
\nand the fee in connection with change orders shall be four percent (4%), which
\nshall include overhead and profit but not general conditions, which fees shall
\nbe subject to adjustment by reason of changes or by reason of Tenant Delays.
\nLandlord shall cause Landlord’s general contractor to obtain at least three (3)
\nsubcontractor bids for each trade in connection with Landlord’s Work in each
\nPortion of the Premises. Tenant shall have the right to propose subcontractors
\nfor each trade for the Landlord’s Work in each Portion of the Premises, which
\nsubcontractors shall be subject to Landlord’s prior consent, not to be
\nunreasonably withheld. Landlord shall provide to Tenant “open book” access to
\nthe contracting for and pricing of Landlord’s Work in respect of each Portion of
\nthe Premises.<\/p>\n
In addition, Landlord shall contribute up to Thirty and 00\/100 ($30.00)
\nDollars per square foot of Total Rentable Area of each Portion of the Premises
\n(“Landlord’s Contribution”) towards the cost of Landlord’s Work in such Portion
\nof the Premises. Notwithstanding the foregoing, overtime costs and costs
\nresulting from the negligence of the Landlord or its contractors shall not be
\ncharged against Landlord’s Contribution. Tenant shall, within thirty (30) days
\nof billing therefor, together with reasonable backup to evidence such costs,
\nreimburse Landlord for all costs of Landlord’s Work in excess of Landlord’s
\nContribution. Tenant shall have the right to apply any unused portion of
\nLandlord’s Contribution towards (i) the architectural and engineering fees
\nincurred by Tenant in connection with Landlord’s Work, and (ii) the generator to
\nbe installed by Tenant at the Premises. Landlord shall reimburse Tenant for such
\nunused portion of Landlord’s Contribution within thirty (30) days after
\nLandlord’s receipt of paid invoices evidencing such costs. Except as set forth
\nin the immediately preceding two (2) sentences, Tenant shall have no right to
\nuse any unused portion of Landlord’s Contribution.<\/p>\n
(b) By Tenant. Subject always to the provisions of Articles
\n4.2 and 4.3, if Tenant will be employing any contractors in preparing either
\nPortion of the Premises for Tenant’s occupancy, Landlord will give Tenant
\nreasonable advance notice of the date on which such Portion of the Premises will
\nbe ready for such other contractors and a reasonable time will be allowed from
\nsuch date for doing the work to be performed by such other contractors.<\/p>\n
(c) If any work, including but not by way of limitation,
\ninstallation of built-in equipment by the manufacturer or distributor thereof,
\nshall be performed by contractors not employed by Landlord, Tenant shall take
\nnecessary reasonable measures to the end that such contractor shall cooperate in
\nall ways with Landlord’s contractors to avoid any delay to the work being
\nperformed by Landlord’s contractors or conflict in any other way with the
\nperformance of such work.<\/p>\n
4.5 QUALITY AND COST OF MATERIALS. (i) Any construction or finish of
\nthe Premises, whether by Landlord or Tenant, shall equal or exceed the
\nspecifications and quantities provided in Exhibit 3. (ii) Except for Landlord’s
\nContribution, Tenant shall bear all other costs of preparing the Premises for
\nits occupancy in accordance with Tenant’s plans including, without limitation,
\nthe cost of substitutes for any items specified in Exhibit 3.<\/p>\n
4.6 TENANT’S DELAY – ADDITIONAL COSTS. In the event of a Tenant Delay,
\nany additional cost to Landlord in connection with the completion of each
\nPortion of the Premises in accordance with the terms of this Lease and Exhibit 4
\nshall be promptly paid by Tenant to Landlord if such additional cost is in whole
\nor in part the result of such failure, omission or delay of Tenant (provided
\nhowever, that if Tenant is only partially responsible for a delay, i.e. because
\nof delay caused by Landlord or Landlord’s contractor, Tenant shall be charged
\nfor additional costs only to the extent of Tenant’s partial responsibility). For
\nthe purposes of the next preceding sentence, the expression “additional cost to
\nLandlord” shall mean the actual, out-of-pocket cost over and above such cost as
\nwould have been the aggregate cost to Landlord of completing such Portion of the
\nPremises in accordance with the terms of<\/p>\n
-5-
\n 15
\nthis Lease and Exhibit 4 had there been no such Tenant Delay. Nothing contained
\nin this Article 4.6 shall limit or qualify or prejudice any other covenants,
\nagreements, terms, provisions and conditions contained in this Lease, including,
\nbut not limited to Article 4.2.<\/p>\n
4.7 ENTRY BY TENANT PRIOR TO TERM COMMENCEMENT DATE. With Landlord’s
\nprior written consent, which shall not be unreasonably withheld, Tenant shall
\nhave the right to enter each Portion of the Premises prior to the Term
\nCommencement Date in respect of such Portion, during normal business hours and
\nwithout payment of rent, to perform such work or decoration as is to be
\nperformed by, or under the direction or control of, Tenant and as is otherwise
\nin compliance with the terms of this Lease. Such right of entry shall be deemed
\na license from Landlord to Tenant, and any entry thereunder shall be at the risk
\nof Tenant.<\/p>\n
4.8 CONCLUSIVENESS OF LANDLORD’S PERFORMANCE. With respect to patent
\ndefects in any portion of Landlord’s Work, Tenant shall be conclusively deemed
\nto have agreed that Landlord has performed all of its obligations under this
\nArticle 4 with respect to each Portion of the Premises unless not later than the
\nend of the fourth calendar month next beginning after the Term Commencement Date
\nin respect of such Portion of the Premises Tenant shall give Landlord written
\nnotice specifying the respects in which Landlord has not performed any such
\nobligation. With respect to latent defects in any portion of Landlord’s Work,
\nTenant shall be conclusively deemed to have agreed that Landlord has performed
\nall of its obligations under this Article 4 with respect to each Portion of the
\nPremises unless, not later than the date eleven (11) months after the date
\nLandlord substantially completes Landlord’s Work in such Portion of the
\nPremises, Tenant shall give written notice to Landlord specifying the respects
\nin which Landlord has not performed any such obligation.<\/p>\n
4.9 TENANT PAYMENTS OF CONSTRUCTION COST. Landlord shall have the same
\nrights and remedies which Landlord has upon the nonpayment of Yearly Rent and
\nother charges due under this Lease for nonpayment of any amounts which Tenant is
\nrequired to pay to Landlord or Landlord’s contractor in connection with the
\nconstruction and initial preparation of the Premises (including, without
\nlimitation, any amounts which Tenant is required to pay in accordance with
\nArticles 4.5 and 4.6 hereof) or in connection with any construction in the
\nPremises performed for Tenant by Landlord, Landlord’s contractor or any other
\nperson, firm or entity after the Term Commencement Date in respect of either
\nPortion of the Premises.<\/p>\n
5. USE OF PREMISES<\/p>\n
5.1 PERMITTED USE. Tenant shall continuously during the term hereof
\noccupy and use the Premises only for the purposes as stated in Exhibit 1 and for
\nno other purposes. Service and utility areas (whether or not a part of the
\nPremises) shall be used only for the particular purpose for which they were
\ndesigned. Without limiting the generality of the foregoing, Tenant agrees that
\nit shall not use the Premises or any part thereof, or permit the Premises or any
\npart thereof to be used for the preparation or dispensing of food, whether by
\nvending machines or otherwise. Notwithstanding the foregoing, but subject to the
\nother terms and provisions of this Lease, Tenant may, with Landlord’s prior
\nwritten consent, which consent shall not be unreasonably withheld, install at
\nits own cost and expense so-called hot-cold water fountains, coffee makers and
\nrefrigerator-sink-stove combinations for the preparation of beverages and foods,
\nprovided that no cooking, frying, etc., are carried on in the Premises to such
\nextent as requires special exhaust venting, Tenant hereby acknowledging that the
\nBuilding is not engineered to provide any such special venting. Landlord hereby
\nagrees that any equipment shown on Tenant’s final approved plans and equivalent
\nequipment in substitution of such equipment shall not, if maintained in good
\noperating order, be deemed to violate the provisions of this Article 5.2.<\/p>\n
5.2 PROHIBITED USES. Notwithstanding any other provision of this Lease,
\nTenant shall not use, or suffer or permit the use or occupancy of, or suffer or
\npermit anything to be done in or anything to be brought into or kept in or about
\nthe Premises or the Building or any part thereof (including, without<\/p>\n
-6-
\n 16
\nlimitation, any materials appliances or equipment used in the construction or
\nother preparation of the Premises and furniture and carpeting): (i) which would
\nviolate any of the covenants, agreements, terms, provisions and conditions of
\nthis Lease or otherwise applicable to or binding upon the Premises; (ii) for any
\nunlawful purposes or in any unlawful manner; (iii) which, in the reasonable
\njudgment of Landlord shall in any way (a) impair the appearance or reputation of
\nthe Building; or (b) impair, interfere with or otherwise diminish the quality of
\nany of the Building services or the proper and economic heating, cleaning,
\nventilating, air conditioning or other servicing of the Building; or Premises,
\nor with the use or occupancy of any of the other areas of the Building, or
\noccasion discomfort, inconvenience or annoyance, or injury or damage to any
\noccupants of the Premises or other tenants or occupants of the Building; or (iv)
\nwhich is inconsistent with the maintenance of the Building as an office building
\nof the first class in the quality of its maintenance, use, or occupancy. Tenant
\nshall not install or use any electrical or other equipment of any kind which, in
\nthe reasonable judgment of Landlord, might cause any such impairment,
\ninterference, discomfort, inconvenience, annoyance or injury.<\/p>\n
5.3 LICENSES AND PERMITS. If any governmental license or permit shall
\nbe required for the proper and lawful conduct of Tenant’s business, and if the
\nfailure to secure such license or permit would in any way affect Landlord, the
\nPremises, the Building or Tenant’s ability to perform any of its obligations
\nunder this Lease, Tenant, at Tenant’s expense, shall duly procure and thereafter
\nmaintain such license and submit the same to inspection by Landlord. Tenant, at
\nTenant’s expense, shall at all times comply with the terms and conditions of
\neach such license or permit. Tenant shall furnish all data and information to
\ngovernmental authorities and Landlord as required in accordance with legal,
\nregulatory, licensing or other similar requirements as they relate to Tenant’s
\nuse or occupancy of the Premises or the Building.<\/p>\n
6. RENT<\/p>\n
(a) During the term of this Lease the Yearly Rent and other charges, at
\nthe rate stated in Exhibit 1, shall be payable by Tenant to Landlord by monthly
\npayments, as stated in Exhibit 1, in advance and without demand on the first day
\nof each month for and in respect of such month. The rent and other charges
\nreserved and covenanted to be paid under this Lease in respect of each Portion
\nof the Premises shall commence on the Term Commencement Date in respect of such
\nPortion of the Premises, provided however, that Tenant’s obligation to pay
\nYearly Rent, Tax Excess or Operating Expense Excess in respect of the third
\n(3rd) floor of the Premises shall not commence to accrue until the date eight
\n(8) months after the Term Commencement Date in respect of Portion A.
\nNotwithstanding the provisions of the next preceding sentence, Tenant shall pay
\nthe first monthly installment of rent (other than for the third (3rd) floor of
\nthe Premises) on the execution of this Lease. If, by reason of any provisions of
\nthis Lease, the rent reserved hereunder shall commence or terminate on any day
\nother than the first day of a calendar month, the rent for such calendar month
\nshall be prorated. The rent shall be payable to Landlord or, if Landlord shall
\nso direct in writing, to Landlord’s agent or nominee, in lawful money of the
\nUnited States which shall be legal tender for payment of all debts and dues,
\npublic and private, at the time of payment, at the office of the Landlord or
\nsuch place as Landlord may designate, and the rent and other charges in all
\ncircumstances shall be payable without any setoff or deduction whatsoever.
\nRental and any other sums due hereunder not paid on or before the date which is
\nfive (5) business days after the date due shall bear interest for each month or
\nfraction thereof from the due date until paid computed at the annual rate of
\nthree percentage points over the so-called prime rate then currently from time
\nto time charged to its most favored corporate customers by the largest national
\nbank (N.A.) located in the city in which the Building is located (“National
\nBank”), or at any applicable lesser maximum legally permissible rate for debts
\nof this nature. In lieu of requiring Tenant to pay monthly installments of
\nYearly Rent and other fixed monthly charges in the manner described above,
\nTenant shall have the right to pay such amounts by means of an automated debit
\nsystem (the “Automatic Debit System”) whereby any or all such payments shall be
\ndebited from Tenant’s account in a bank or financial institution designated by
\nTenant and credited to Landlord’s account in a bank or financial institution
\ndesignated by Landlord. In the event Tenant elects to pay monthly installments
\nof Yearly Rent and other fixed monthly charges by means of the Automatic Debit
\nSystem, Tenant, within thirty (30) days after written request by Landlord, shall
\nexecute and deliver<\/p>\n
-7-
\n 17
\nto Landlord any authorizations, certificates or other documentation as may be
\nrequired to establish and give effect to the Automatic Debit System. Either
\nparty shall have the right to change its bank or financial institution from time
\nto time, provided that Tenant, no less than thirty (30) days prior to the
\neffective date of any such change, shall provide Landlord with written notice of
\nsuch change and any and all authorizations, certificates or other documentation
\nas may be required to establish and give effect to the Automatic Debit System at
\nTenant’s new bank or financial institution if Tenant elects to continue to use
\nsuch Automatic Debit System. Tenant shall promptly pay all service fees and
\nother charges imposed upon Tenant in connection with the Automatic Debit System,
\nand Tenant shall promptly reimburse Landlord for any charges resulting from
\ninsufficient funds in Tenant’s bank account (provided however, that Tenant shall
\nhave the right to discontinue the use of the Automatic Debit System at any time
\nupon at least thirty (30) days’ prior written notice to Landlord). In the event
\nthat any Yearly Rent or other fixed monthly charges are not paid on time as a
\nresult of insufficient funds in Tenant’s account, Tenant shall be liable for any
\ninterest in accordance with this Article. Tenant shall remain liable to Landlord
\nfor all payments of Rent due hereunder regardless of whether Tenant’s account is
\nincorrectly debited in any given month, it being agreed that a debit of less
\nthan the full amount due shall not be construed as a waiver by Landlord of its
\nright to receive any unpaid balance.<\/p>\n
(b) Rentable Area. Landlord and Tenant acknowledge the Total Rentable
\nArea of the Premises, the Building and of the other buildings initially in the
\nComplex have been determined by agreement, and that the figures set forth in
\nExhibit 1 shall be conclusive and binding on Landlord and Tenant with regard to
\nthe Complex. Landlord and Tenant acknowledge that the figure set forth in
\nExhibit 1 for the Total Rentable Area of the Complex does not include the floor
\narea of the building known as 549 Technology Square, as that building is
\ncurrently vacant. The Total Rentable Area of the Complex shall not include the
\nfloor area of Building 549 unless and until: (i) Landlord executes a lease with
\nrespect to all or any portion of Building 549 for a term of less than two (2)
\nyears and such tenant is in actual occupancy of such space for at least six (6)
\nmonths, in which case the Total Rentable Area of the Complex shall include the
\nfloor area of Building 549 throughout the time of occupancy of such tenant in
\nBuilding 549, or (ii) if Landlord executes a lease with respect to all or any
\nportion of Building 549 with a term of two (2) years or more, in which case the
\nTotal Rentable Area of the Complex shall thereafter include the floor area of
\nBuilding 549 as of the commencement of occupancy of Building 549 by such tenant;
\nprovided however, that upon the demolition of Building 549, the Total Rentable
\nArea of Building 549 shall thereafter be excluded from the Total Rentable Area
\nof the Complex. In the event that Landlord alters any of the buildings in, or
\nadds other buildings to, the Complex, the Total Rentable Area of any such
\nbuildings shall be included in the Total Rentable Area of the Complex when first
\noccupied.<\/p>\n
7. RENTABLE AREA<\/p>\n
Total Rentable Area of the Premises, the Building and the Complex have,
\nas of the Execution Date, been agreed to be the amounts set forth on Exhibit 1.<\/p>\n
8. SERVICES FURNISHED BY LANDLORD<\/p>\n
8.1 ELECTRIC CURRENT.<\/p>\n
(a) As stated in Exhibit 1, Landlord will require Tenant to
\ncontract directly with the company supplying electric current for the purchase
\nand obtaining by Tenant of electric current directly from such company to be
\nbilled directly to, and paid for by, Tenant. Tenant shall have the right to
\nchoose among companies supplying electric current to the Premises if there is
\nmore than one such company available.<\/p>\n
(b) Landlord shall (i) permit its risers, conduits and feeders
\nto the extent available, suitable and safely capable, to be used for the purpose
\nof enabling Tenant to purchase and obtain electric current directly from such
\ncompany, (ii) without cost or charge to Tenant, make such alterations and<\/p>\n
-8-
\n 18
\nadditions to the electrical equipment and\/or appliances in the Building as such
\ncompany shall specify for the purpose of enabling Tenant to purchase and obtain
\nelectric current directly from such company, and (iii) at Landlord’s expense,
\nfurnish and install in or near the Premises any necessary metering equipment
\nused in connection with measuring Tenant’s consumption of electric current and
\nTenant, at Tenant’s expense, shall maintain and keep in repair such metering
\nequipment.<\/p>\n
(c) Tenant shall require electric current for use in the
\nPremises in excess of the capacity available at the commencement of the term of
\nthis Lease and if (i) in Landlord’s reasonable judgment, Landlord’s facilities
\nare inadequate for such excess requirements or (ii) such excess use shall result
\nin an additional burden on the Building air conditioning system and additional
\ncost to Landlord on account thereof then, as the case may be, (x) Landlord upon
\nwritten request and at the sole cost and expense of Tenant, will furnish and
\ninstall such additional wire, conduits, feeders, switchboards and appurtenances
\nas reasonably may be required to supply such additional requirements of Tenant
\nif current therefor be available to Landlord, provided that the same shall be
\npermitted by applicable laws and insurance regulations and shall not cause
\ndamage to the Building or the Premises or cause or create a dangerous or
\nhazardous condition or entail excessive or unreasonable alterations or repairs
\nor interfere with or disturb other tenants or occupants of the Building or (y)
\nTenant shall reimburse Landlord for such additional cost, as aforesaid.<\/p>\n
(e) Landlord, at Tenant’s expense and upon Tenant’s request,
\nshall purchase and install all replacement lamps of types generally commercially
\navailable (including, but not limited to, incandescent and fluorescent) used in
\nthe Premises.<\/p>\n
(f) Subject to Article 8.8 (b), Landlord shall not in any way
\nbe liable or responsible to Tenant for any loss, damage or expense which Tenant
\nmay sustain or incur if the quantity, character, or supply of electrical energy
\nis changed or is no longer available or suitable for Tenant’s requirements.<\/p>\n
(g) Tenant agrees that it will not make any material
\nalteration or material addition to the electrical equipment and\/or appliances in
\nthe Premises without the prior written consent of Landlord in each instance
\nfirst obtained, which consent will not be unreasonably withheld, and will
\npromptly advise Landlord of any other alteration or addition to such electrical
\nequipment and\/or appliances.<\/p>\n
8.2 WATER. Landlord shall furnish hot and cold water for ordinary
\npremises cleaning, toilet, lavatory and drinking purposes. If Tenant requires,
\nuses or consumes water for any purpose other than for the aforementioned
\npurposes, Landlord may (i) assess a reasonable charge for the additional water
\nso used or consumed by Tenant or (ii) install a water meter and thereby measure
\nTenant’s water consumption for all purposes. In the latter event, Landlord shall
\npay the cost of the meter and the cost of installation thereof and shall keep
\nsaid meter and installation equipment in good working order and repair. Tenant
\nagrees to pay for water consumed, as shown on said meter, together with the
\nsewer charge based on said meter charges, as and when bills are rendered, and on
\ndefault in making such payment Landlord may pay such charges and collect the
\nsame from Tenant, but only to the extent that the charges shown on the meter
\nexceed the consumption reasonably expected for ordinary premises cleaning,
\ntoilet, lavatory and drinking purposes. All piping and other equipment and
\nfacilities for use of water outside the building core will be installed and
\nmaintained by Landlord at Tenant’s sole cost and expense.<\/p>\n
8.3 ELEVATORS, HEAT, CLEANING.<\/p>\n
(a) Landlord at its expense shall: (i) provide necessary
\nelevator facilities (which may be manually or automatically operated, either or
\nboth, as Landlord may from time to time elect) on Mondays through Fridays,
\nexcepting legal holidays, from 8:00 a.m. to 6:00 p.m. and on Saturdays,
\nexcepting legal holidays, from 8:00 a.m. to 1:00 p.m. (called “business days”)
\nand have one elevator in operation available for Tenant’s use, non-exclusively,
\ntogether with others having business in the<\/p>\n
-9-
\n 19
\nBuilding, at all other times; (ii) furnish heat (substantially equivalent to
\nthat being furnished in comparably aged similarly equipped office buildings in
\nthe same city) to the Premises during the normal heating season on business
\ndays; and (iii) cause the office areas [and the network operations center] of
\nthe Premises to be cleaned on business days (except on Saturdays) provided the
\nsame are kept in order by Tenant. Either Exhibit 4 (if annexed hereto) or,
\notherwise, the cleaning standards generally prevailing in first-class office
\nbuildings in the city or town where the Building is located, shall represent
\nsubstantially the extent and scope of the cleaning by Landlord referred to in
\nthis Article 8.3.<\/p>\n
(b) The parties agree and acknowledge that, despite reasonable
\nprecautions in selecting cleaning and maintenance contractors and personnel, any
\nproperty or equipment in the Premises of a delicate, fragile or vulnerable
\nnature may nevertheless be damaged in the course of cleaning and maintenance
\nservices being performed. Accordingly, Tenant shall take reasonable protective
\nprecautions with such property and equipment (including, without limitation,
\ncomputers or other data processing components or equipment and optical or
\nelectronic equipment, etc.), e.g., housing the property and equipment in a
\nseparate, locked room, so as to render it inaccessible to the Building’s
\ncleaning personnel.<\/p>\n
8.4 AIR CONDITIONING. Landlord shall through the air conditioning
\nequipment of the Building furnish to and distribute in the Premises air
\nconditioning as normal seasonal changes may require on business days during the
\nhours as aforesaid in Article 8.3 when air conditioning may reasonably be
\nrequired for the comfortable occupancy of the Premises by Tenant. Tenant agrees
\nto use reasonable efforts to lower and close the blinds or drapes when necessary
\nbecause of the sun’s position, whenever the air conditioning system is in
\noperation, and to cooperate fully with Landlord with regard to, and to abide by
\nall the reasonable regulations and requirements which Landlord may prescribe for
\nthe proper functioning and protection of the air conditioning system. The air
\nconditioning system referred to in this Article 8.4 shall be capable of
\nmaintaining the following: the air conditioning system referred to in this
\nArticle 8.4 shall be capable of providing 75(Degree)F dry bulb and 55% of
\nrelative humidity with outside conditions of 91(Degree)F dry bulb and
\n73(Degree)F wet bulb.<\/p>\n
8.5 ADDITIONAL HEAT, CLEANING AND AIR CONDITIONING SERVICES.<\/p>\n
(a) Landlord will use reasonable efforts upon reasonable
\nadvance written notice from Tenant of its requirements in that regard, to
\nfurnish additional heat, cleaning or air conditioning services to the Premises
\non days and at times other than as above provided.<\/p>\n
(b) Tenant will pay to Landlord a reasonable charge (i) for
\nany such additional heat, cleaning or air conditioning service required by
\nTenant, (ii) for any extra cleaning of the Premises required because of the
\ncarelessness or indifference of Tenant or because of the nature of Tenant’s
\nbusiness, and (iii) for any cleaning done at the request of Tenant of any
\nportions of the Premises which may be used for storage, shipping room or other
\nnon-office purposes. If the cost to Landlord for cleaning the Premises shall be
\nincreased due to the installation in the Premises, at Tenant’s request, of any
\nmaterials or finish other than those which are building standard, Tenant shall
\npay to Landlord an amount equal to such increase in cost. As of the Execution
\nDate of the Lease, the charge for additional heat and air conditioning is $65.25
\nper hour. Said charge shall only be increased in relation to the increase in
\nactual costs incurred by Landlord in providing such service including, without
\nlimitation, overhead and depreciation, but excluding any profit to Landlord.
\nNotwithstanding the foregoing, in no event shall the overhead component of such
\ncharge at any time exceed five percent (5%) of the total charge.<\/p>\n
8.6 ADDITIONAL AIR CONDITIONING EQUIPMENT. In the event Tenant requires
\nadditional air conditioning for business machines, meeting rooms or other
\nspecial purposes, or because of occupancy or excess electrical loads, any
\nadditional air conditioning units, chillers, condensers, compressors, ducts,
\npiping and other equipment, such additional air conditioning equipment will be
\ninstalled and maintained by Landlord at Tenant’s sole cost and expense, but only
\nif, in Landlord’s reasonable judgment, the same will not cause damage or injury
\nto the Building or create a dangerous or hazardous condition or entail<\/p>\n
-10-
\n 20
\nexcessive or unreasonable alterations, repairs or expense or interfere with or
\ndisturb other tenants; and Tenant shall reimburse Landlord in such an amount as
\nwill compensate it for the cost incurred by it in operating such additional air
\nconditioning equipment.<\/p>\n
8.7 REPAIRS. Except as otherwise provided in Articles 18 and 20, and
\nsubject to Tenant’s obligations in Article 14, Landlord shall keep and maintain
\nthe roof, exterior walls, structural floor slabs, columns, elevators, public
\nstairways and corridors, lavatories, equipment (including, without limitation,
\nsanitary, electrical, heating, air conditioning, or other systems) and other
\ncommon facilities of the Building in good condition and repair.<\/p>\n
8.8 INTERRUPTION OR CURTAILMENT OF SERVICES. (a) When necessary by
\nreason of accident or emergency, or for repairs, alterations, replacements or
\nimprovements which in the reasonable judgment of Landlord are desirable or
\nnecessary to be made, or of difficulty or inability in securing supplies or
\nlabor, or of strikes, or of any other cause beyond the reasonable control of
\nLandlord, whether such other cause be similar or dissimilar to those hereinabove
\nspecifically mentioned until said cause has been removed, Landlord reserves the
\nright to interrupt, curtail, stop or suspend (i) the furnishing of heating,
\nelevator, air conditioning, and cleaning services and (ii) the operation of the
\nplumbing and electric systems. Landlord shall exercise reasonable diligence to
\neliminate the cause of any such interruption, curtailment, stoppage or
\nsuspension, but there shall be no diminution or abatement of rent or other
\ncompensation due from Landlord to Tenant hereunder, nor shall this Lease be
\naffected or any of the Tenant’s obligations hereunder reduced, and the Landlord
\nshall have no responsibility or liability for any such interruption,
\ncurtailment, stoppage, or suspension of services or systems.<\/p>\n
(b) Notwithstanding anything to the contrary in this Lease contained,
\nif the Premises shall lack any service which Landlord is required to provide
\nhereunder, or if Tenant’s use and occupancy of the Premises shall be disturbed
\nin violation of Article 10 hereof (thereby rendering the Premises or a portion
\nthereof substantially untenantable) so that, for the Landlord Service
\nInterruption Cure Period, as hereinafter defined, the continued operation in the
\nordinary course of Tenant’s business is materially adversely affected and if
\nTenant ceases to use the affected portion of the Premises during the period of
\nuntenantability as the direct result of such lack of service or disturbance,
\nthen, provided that Tenant ceases to use the affected portion of the Premises
\nduring the entirety of the Landlord Service Interruption Cure Period and that
\nsuch untenantability and Landlord’s inability to cure such condition is not
\ncaused by the fault or neglect of Tenant or Tenant’s agents, employees or
\ncontractors, Yearly Rent, Operating Expense Excess and Tax Excess shall
\nthereafter be abated in proportion to such untenantability until the day such
\ncondition is completely corrected. For the purposes hereof, the “Landlord
\nService Interruption Cure Period” shall be defined as five (5) consecutive
\nbusiness days after Landlord’s receipt of written notice from Tenant of the
\ncondition causing untenantability in the Premises, provided however, that the
\nLandlord Service Interruption Cure Period shall be ten (10) consecutive business
\ndays after Landlord’s receipt of written notice from Tenant of such condition
\ncausing untenantability in the Premises if either the condition was caused by
\ncauses beyond Landlord’s control or Landlord is unable to cure such condition as
\nthe result of causes beyond Landlord’s control.<\/p>\n
(c) The provisions of Paragraph (b) of this Article 8.8 shall not apply
\nin the event of untenantability caused by fire or other casualty, or taking (see
\nArticles 18 and 20).<\/p>\n
8.9 ENERGY CONSERVATION. Notwithstanding anything to the contrary in
\nthis Article 8 or in this Lease contained, Landlord may institute, and Tenant
\nshall comply with, such policies, programs and measures as may be necessary,
\nrequired, or expedient for the conservation and\/or preservation of energy or
\nenergy services, provided however, that Landlord does not, by reason of such
\npolicies, programs and measures, reduce the level of energy or energy services
\nbeing provided to the premises below the level of energy or energy services then
\nbeing provided in comparably aged, first-class office buildings in the greater
\nBoston area, or as may be necessary or required to comply with applicable codes,
\nrules regulations or standards.<\/p>\n
-11-
\n 21
\n 8.10 MISCELLANEOUS. Other than air conditioning, all services provided
\nby Landlord to Tenant are based upon an assumed maximum Premises population of
\none person per one hundred fifty (150) square feet of Total Rentable Area.
\nTenant acknowledges that if it exceeds the foregoing limitation, Landlord may
\nincur costs including, without limitation, additional costs due to the
\nadditional load on building systems. Tenant agrees to reimburse Landlord for the
\namount of such costs (if any), as reasonably determined by Landlord, due to a
\nPremises population in excess of the foregoing maximum.<\/p>\n
9. ESCALATION<\/p>\n
9.1 DEFINITIONS. As used in this Article 9, the words and terms which
\nfollow mean and include the following:<\/p>\n
(a) “Operating Year” shall mean a calendar year in which
\noccurs any part of the term of this Lease.<\/p>\n
(b) “Building Operating Cost Base” and “Complex Operating Cost
\nBase” shall be determined as stated in Exhibit 1.<\/p>\n
(c) Subject to the provisions of Article 6(b), “Tenant’s
\nBuilding Operating Cost Percentage,” “Tenant’s Complex Operating Cost
\nPercentage,” and “Tenant’s Building Tax Percentage,” shall be determined as
\nstated in Exhibit 1.<\/p>\n
(d) “Taxes”:<\/p>\n
(d1) “Building Taxes” shall mean the real estate
\n taxes and other taxes, levies and assessments imposed upon the Building
\n and that portion of the land of the Complex comprised of the Building’s
\n footprint and an area surrounding the Building as shown on Exhibit 4,
\n and upon any personal property of Landlord used in the operation of the
\n Building, or on Landlord’s interest in the Building or such personal
\n property (provided that to the extent such taxes, levies, and
\n assessments are also allocable to property other than the Building,
\n such amounts shall be allocated among all real estate which is so
\n jointly assessed based on the assessor’s records or, if the records do
\n not provide a separate allocation, based on square footage of the
\n buildings in question); charges, fees and assessments for transit,
\n housing, police, fire or other services or purported benefits to the
\n Building; service or user payments in lieu of taxes; and any and all
\n other taxes, levies, betterments, assessments and charges arising from
\n the ownership, leasing, operating, use or occupancy of the Building or
\n based upon rentals derived therefrom, which are or shall be imposed by
\n federal, state, county, municipal or other governmental authorities.
\n Notwithstanding anything to the contrary herein contained, with respect
\n to betterments or other extraordinary or special assessments, Tenant’s
\n obligations shall apply only to the extent such assessments are payable
\n during and in respect of the term of the Lease if paid over the longest
\n period permitted by law. The definition of Building Taxes is subject to
\n the provisions of Article 9.1(d4)<\/p>\n
(d2) “Land” shall mean all of the land of the Complex
\n (but not any improvements thereon which are separately assessed, except
\n for common facilities as set forth in Paragraph (d3) below), excluding,
\n however, the land on which the Garage and all other parking areas are
\n located and the portions of land under each building in the Complex
\n (but not Building 549, except as hereinafter provided) and an area
\n surrounding each such building as shown on Exhibit 4. Real estate taxes
\n with respect to such parking areas are included in the parking fees
\n charged to users and real estate taxes attributable to the land
\n comprised of the footprint and such perimeter area of each building in
\n the Complex (but not Building 549, except as hereinafter provided)
\n shall be allocated on a building-by-building basis. Until such time as
\n the floor area of<\/p>\n
-12-
\n 22
\n Building 549 is included in the Total Rentable Area of the Complex
\n pursuant to Article 6(b), all of the buildings from time to time in the
\n Complex shall share the cost of real estate taxes attributable to
\n Building 549’s footprint and the area surrounding Building 549 as shown
\n on Exhibit 4. If at any time, however, the floor area of Building 549
\n is included in the Total Rentable Area of the Complex pursuant to
\n Article 6(b), the real estate taxes attributable to the land comprised
\n of Building 549’s footprint and such Building 549 perimeter area shall
\n be allocated in full to the tenant or tenants of Building 549.<\/p>\n
(d3) “Land Taxes” shall mean the real estate taxes
\n and other taxes, levies and assessments imposed upon the Land, upon any
\n common facilities separately assessed as such by the tax assessor, and
\n upon any personal property of Landlord used in connection with the
\n Land, or on Landlord’s interest in the Land or such personal property
\n (provided that to the extent such taxes, levies, and assessments are
\n also allocable to property other than the Land, such amounts shall be
\n equitably allocated among all real estate which is so jointly
\n assessed); charges, fees and assessments for transit, housing, police,
\n fire or other governmental services or purported benefits to the Land;
\n service or user payments in lieu of taxes; and any and all other taxes,
\n levies, betterments, assessments and charges arising from the
\n ownership, leasing, operating, or use of the Land or based upon rentals
\n derived therefrom, which are or shall be imposed by federal, state,
\n county, municipal or other governmental authorities. Land Taxes shall
\n exclude any taxes on any parking garage located on the Land. The
\n definition of Land Taxes is subject to the provisions of Article
\n 9.1(d4).<\/p>\n
(d4) As of the Execution Date, neither Building Taxes
\n nor Land Taxes shall include any inheritance, estate, succession, gift,
\n franchise, rental, income or profit tax, capital stock tax, capital
\n levy or excise, or any income taxes arising out of or related to the
\n ownership and operation of the Building or Complex, provided, however,
\n that any of the same and any other tax, excise, fee, levy, charge or
\n assessment, however described, that may in the future be levied or
\n assessed as a substitute for or an addition to, in whole or in part,
\n any tax, levy or assessment which would otherwise constitute “Taxes,”
\n whether or not now customary or in the contemplation of the parties on
\n the Execution Date of this Lease, shall constitute “Taxes,” but only to
\n the extent calculated as if the Complex were the only real estate owned
\n by Landlord. “Taxes” shall also include reasonable expenses of tax
\n abatement or other proceedings contesting assessments or levies.<\/p>\n
(e) “Building Tax Base” shall be the amount determined as set
\nforth in Exhibit 1 and shall apply to a Tax Period of twelve (12) months. The
\nBuilding Tax Base shall be reduced pro rata if and to the extent that the Tax
\nPeriod contains fewer than twelve (12) months.<\/p>\n
(f) “Tax Period” shall be any fiscal\/tax period in respect of
\nwhich Taxes are due and payable to the appropriate governmental taxing authority
\n(i.e., as mandated by the governmental taxing authority), any portion of which
\nperiod occurs during the term of this Lease, the first such Tax Period being
\nfiscal tax year 2000.<\/p>\n
(g) “Operating Costs”:<\/p>\n
(g1) Definition of Building Operating Costs.
\n “Building Operating Costs” shall mean all costs incurred and
\n expenditures of whatever nature made by Landlord in the operation and
\n management, for repair and replacements, cleaning and maintenance of
\n the Building, including, without limitation, vehicular and pedestrian
\n passageways serving the Building, related equipment, facilities and
\n appurtenances and cooling and heating equipment<\/p>\n
(g2) Definition of Complex Operating Costs. “Complex
\n Operating Costs” shall mean all costs incurred and expenditures made by
\n Landlord in the operation and<\/p>\n
-13-
\n 23
\n management, for repair and replacements, cleaning and maintenance of
\n the Complex, exclusive of the Garage, the Parking Areas, the Building,
\n and other buildings in the Complex, and Land Taxes. Any expenses
\n incurred by Landlord that can be allocated on a building-by-building
\n basis shall be so allocated in accordance with Subparagraph (g3). To
\n the extent that a cost included in Complex Operating Costs is also
\n allocable to property other than the Complex, such cost shall be
\n equitably allocated to each parcel of property which benefits from such
\n cost. Whether or not Building 549 is included in the Total Rentable
\n Area of the Complex in accordance with Article 6(b), any amounts
\n collected by Landlord from tenants of Building 549 for Complex
\n Operating Costs during any Operating Year shall be applied to reduce
\n Complex Operating Expenses for such Operating Year.<\/p>\n
(g3) The allocation of costs and expenditures among
\n the various buildings in the Complex shall be on the basis of the ratio
\n of the Total Rentable Area of each building in the Complex to the Total
\n Rentable Area of the Complex, unless such allocation would result in a
\n disproportionate charge based upon the relative usage of the service on
\n which such cost is based, in which case such allocation shall be based
\n upon such relative usage. Building Operating Costs and Complex
\n Operating Costs shall include, without limitation, those categories of
\n “Specifically Included Operating Costs”, as set forth below, but shall
\n not include “Excluded Costs”, as hereinafter defined.<\/p>\n
(g4) Definition of Excluded Costs. “Excluded Costs”
\n shall be defined as:<\/p>\n
(i) mortgage charges (including
\n interest, principal, points and
\n fees);<\/p>\n
(ii) brokerage commissions;<\/p>\n
(iii) salaries of executives and owners
\n not directly employed in the
\n management\/operation of the Complex;<\/p>\n
(iv) the cost of work done by Landlord
\n for a particular tenant for which
\n Landlord has the right to be
\n reimbursed by such tenant;<\/p>\n
(v) subject to Subparagraph (g5) below,
\n such portion of expenditures as are
\n not properly chargeable against
\n income;<\/p>\n
(vi) any ground or underlying lease
\n rental;<\/p>\n
(vii) bad debt expenses;<\/p>\n
(viii) costs incurred by Landlord to the
\n extent that Landlord is reimbursed
\n by insurance proceeds or is
\n otherwise reimbursed, other than
\n through the payment of Operating
\n Costs;<\/p>\n
(ix) depreciation, amortization and
\n interest payments, except as
\n expressly set forth in subparagraph
\n (g5) below and except on equipment,
\n materials, tools, supplies and
\n vendor-type equipment purchased by
\n Landlord to enable Landlord to
\n supply services Landlord might
\n otherwise contract for with a third
\n party where such depreciation,
\n amortization and interest payments
\n would otherwise have been included
\n in the charge for such third
\n party’s services, all as determined
\n in<\/p>\n
-14-
\n 24
\n accordance with generally accepted
\n accounting principles, consistently
\n applied, and when depreciation or
\n amortization is permitted or
\n required, the item shall be
\n amortized over its reasonably
\n anticipated useful life;<\/p>\n
(x) advertising and promotional
\n expenditures, and costs of
\n acquisition and maintenance of
\n one-party signs in or on the
\n Building identifying the owner of
\n the Building or other tenants;<\/p>\n
(xi) marketing costs, including leasing
\n commissions, attorneys’ fees (in
\n connection with the negotiation and
\n preparation of letters, deal memos,
\n letters of intent, leases,
\n subleases and\/or assignments),
\n space planning costs and other
\n costs and expenses incurred in
\n connection with lease, sublease
\n and\/or assignment negotiations and
\n transactions with present or
\n prospective tenants or other
\n occupants of the Building;<\/p>\n
(xii) costs, including permit, license
\n and inspection costs, incurred with
\n respect to the installation of
\n tenants’ or other occupants’
\n improvements or incurred in
\n renovating or otherwise improving,
\n decorating, painting or
\n redecorating vacant space for
\n tenants or other occupants of the
\n Building;<\/p>\n
(xiii) expenses in connection with
\n services or other benefits which
\n are offered to other tenants of the
\n Building or Complex but not to
\n Tenant or for which Tenant is
\n charged directly, other than
\n through Operating Costs;<\/p>\n
(xiv) fines, interest and penalties
\n incurred by Landlord due to the
\n violation by Landlord or any tenant
\n of the terms and conditions of any
\n lease of space in the Building;<\/p>\n
(xv) management fees paid or charged by
\n Landlord in connection with the
\n management of the Building to the
\n extent such management fee is in
\n excess of the market rate.<\/p>\n
(xvi) salaries and other benefits paid to
\n any executive employees above the
\n level of senior property manager of
\n the Complex;<\/p>\n
(xvii) amounts paid to Landlord or to
\n subsidiaries or affiliates of
\n Landlord for goods and\/or services
\n in the Building to the extent the
\n same exceeds the costs of such
\n goods and\/or services rendered by
\n unaffiliated third parties on a
\n competitive basis;<\/p>\n
(xviii) landlord’s general corporate
\n overhead and general administrative
\n expenses;<\/p>\n
(xix) any compensation paid to clerks,
\n attendants or other persons in
\n commercial concessions operated by
\n Landlord;<\/p>\n
-15-
\n 25
\n (xx) services provided, taxes,
\n attributable to, and costs incurred
\n in connection with the operation
\n (as opposed to the repair and
\n maintenance thereof which shall be
\n included in Operating Costs) of any
\n garage for the Building, and any
\n replacement garages or parking
\n facilities;<\/p>\n
(xxi) costs incurred in connection with
\n upgrading the Building to comply
\n with laws, rules, regulations and
\n codes in effect prior to the Term
\n Commencement Date;<\/p>\n
(xxii) fines, interest and penalties
\n arising from the negligence or
\n willful misconduct of Landlord or
\n other tenants or occupants of the
\n Building or their respective
\n agents, employees, licensees,
\n vendors, contractors or providers
\n of materials or services;<\/p>\n
(xxiii) costs arising from Landlord’s
\n political contributions;<\/p>\n
(xxiv) costs for sculpture, paintings or
\n other objects of art;<\/p>\n
(xxv) costs associated with the operation
\n of the business of the entity which
\n constitutes Landlord as the same
\n are distinguished from the costs of
\n operation of the Building,
\n including accounting and legal
\n matters, costs of defending any
\n lawsuits with any mortgagee (except
\n as the actions of Tenant may be in
\n issue), costs of selling,
\n syndicating, financing, mortgaging
\n or hypothecating any of Landlord’s
\n interest in the Building, costs
\n incurred in connection with any
\n disputes between Landlord and its
\n employees, between Landlord and
\n Building management, or between
\n Landlord and other tenants or
\n occupants;<\/p>\n
(xxvi) rentals for items which, if
\n purchased rather than rented, would
\n constitute a capital cost, to the
\n extent that the rental payments
\n exceed the costs which could be
\n included pursuant to paragraph (g5)
\n below;<\/p>\n
(xxvii) costs of electricity for plugs and
\n lights provided to other tenants’
\n demised premises;<\/p>\n
(xxviii) Repair and replacement costs in
\n connection with defects in
\n Landlord’s Work which are incurred
\n by Landlord prior to the third
\n (3rd) anniversary of the Term
\n Commencement Date in respect of
\n Portion A; and<\/p>\n
(xxix) any costs related to any
\n development, demolition or
\n construction activity in the
\n Building or the Complex, including,
\n without limitation, in connection
\n with the demolition and development
\n of Building 549 and any and all
\n costs of construction mitigation
\n measures, including, without
\n limitation, dust control, cleaning,
\n maintenance, debris removal,
\n traffic control and noise control,
\n but the foregoing<\/p>\n
-16-
\n 26
\n shall have no effect on the
\n inclusion of the cost of normal
\n cleaning services for the Complex.<\/p>\n
(g5) Capital Expenditures.<\/p>\n
(i) Replacements. If, during the term of
\n this Lease, Landlord shall replace any capital items or make
\n any capital expenditures (collectively called “Capital
\n Expenditures”) the total amount of which is not properly
\n includable in Operating Costs for the Operating Year in which
\n they were made, in accordance with generally accepted
\n accounting principles and practices in effect at the time of
\n such replacement, there shall nevertheless be included in such
\n Operating Costs and in Operating Costs for each succeeding
\n Operating Year the amount, if any, by which the Annual
\n Charge-Off (determined as hereinafter provided) of such Capital
\n Expenditure (less insurance proceeds, if any, collected by
\n Landlord by reason of damage to, or destruction of the capital
\n item being replaced) exceeds the Annual Charge-Off of the
\n Capital Expenditure for the item being replaced.<\/p>\n
(ii) New Capital Items. If a new capital
\n item is acquired which does not replace another capital item
\n which was worn out, has become obsolete, etc., and such new
\n capital item being acquired is either (i) required by law or
\n (ii) reasonably projected to reduce Operating Costs, then there
\n shall be included in Operating Costs for each Operating Year in
\n which and after such capital expenditure is made the Annual
\n Charge-Off of such capital expenditure.<\/p>\n
(iii) Annual Charge-Off. “Annual Charge-Off”
\n shall be defined as the annual amount of principal and interest
\n payments which would be required to repay a loan (“Capital
\n Loan”) in equal monthly installments over the Useful Life, as
\n hereinafter defined, of the capital item in question on a
\n direct reduction basis at an annual interest rate equal to the
\n Capital Interest Rate, as hereinafter defined, where the
\n initial principal balance is the cost of the capital item in
\n question.<\/p>\n
(iv) Useful Life. “Useful Life” shall be
\n reasonably determined by Landlord in accordance with generally
\n accepted accounting principles and practices in effect at the
\n time of acquisition of the capital item. Notwithstanding the
\n foregoing, if Landlord reasonably concludes on the basis of
\n engineering estimates that a particular capital expenditure
\n will effect savings in Complex operating expenses including,
\n without limitation, energy-related costs, and that such annual
\n projected savings will exceed the Annual Charge-Off of Capital
\n Expenditures computed as aforesaid, then and in such events,
\n the Annual Charge-Off shall be determined based upon a Useful
\n Life which would cause the principal and interest payments in a
\n full repayment of the Capital Loan in question to equal the
\n amount of projected savings of such Useful Life.<\/p>\n
(v) Capital Interest Rate. “Capital Interest
\n Rate” shall be defined as an annual rate of either one
\n percentage point over the AA Bond rate (Standard & Poor’s
\n corporate composite or, if unavailable, its equivalent) as
\n reported in the financial press at the time the capital
\n expenditure is made or, if the capital item is acquired through
\n third-party financing, then the actual (including fluctuating)
\n rate paid by Landlord in financing the acquisition of such
\n capital item.<\/p>\n
(g6) Specifically Included Categories of Operating
\n Costs. Subject to the Excluded Costs definition, the qualifications on
\n reimbursable Building Operating Costs and Complex Operating Costs set
\n forth in Articles 9.1(g1) 9.1(g2) and 9.1(g3), and except as otherwise
\n expressly excluded from the definition of Building Operating Costs and
\n Complex Operating Costs pursuant to the provisions of this Lease,
\n Building Operating Costs and Complex<\/p>\n
-17-
\n 27
\n Operating Costs shall include, but not be limited to, the following,
\n provided that if such costs are attributable to the Building and to
\n other buildings in the Complex, then such costs shall be equitably
\n apportioned among the Building and such other buildings in accordance
\n with Article 9.1(g3), and if such costs are attributable to common
\n areas of the Complex and to other property which is not part of the
\n Complex, then such costs shall be equitably apportioned among the
\n Complex and such other property.<\/p>\n
Real Estate Taxes: Land Taxes only, and not Building Taxes, as such
\n terms are defined in Article 9.1(d).<\/p>\n
Taxes (other than real estate taxes): Sales taxes and Federal Social
\n Security, Unemployment and Old Age Taxes and contributions and State
\n Unemployment taxes and contributions accruing to and paid by the
\n Landlord on account of all employees of Landlord and\/or Landlord’s
\n managing agent, who are employed in, about or on account of the
\n Premises (to the extent that the underlying wages or salaries are
\n included in Building Operating Costs or Complex Operating Costs, as the
\n case may be), except that taxes levied upon the net income of the
\n Landlord and taxes withheld from employees, and “Taxes” as defined in
\n Article 9.1(d) shall not be included herein.<\/p>\n
Water: All charges and rates connected with water supplied to the
\n Premises, the Building and\/or the common areas of the Complex and
\n related sewer use charges.<\/p>\n
Heat and Air Conditioning: All charges connected with heat and air
\n conditioning supplied to the Premises, Building and\/or Complex.<\/p>\n
Wages: Wages and cost of all employee benefits of all employees of the
\n Landlord and\/or Landlord’s managing agent who are employed in, about or
\n on account of the Premises and\/or Complex provided that wages and costs
\n for employees who also work on other properties shall be allocated to
\n the Complex based upon the proportion of their time spent working on
\n the Complex and then allocated to the Premises on a square foot basis.<\/p>\n
Cleaning: The cost of labor and material for cleaning the Premises
\n and\/or Complex, surrounding areaways and windows in the Premises and\/or
\n Complex, including, without limitation, the services listed on Exhibit
\n 4.<\/p>\n
Elevator Maintenance: All expenses for or on account of the upkeep and
\n maintenance of all elevators in the Premises, Building and\/or the
\n Complex (if any).<\/p>\n
Electricity: The cost of all electric current for the operation of any
\n machine, appliance or device used for the operation of the Premises and
\n the Building and\/or Complex, including the cost of electric current for
\n the elevators, lights, air conditioning and heating, but not including
\n electric current which is paid for directly to the utility by the
\n user\/tenant in the Premises and\/or Complex. (If and so long as Tenant
\n is billed directly by the electric utility for its own consumption of
\n electricity for lights and plugs as determined by its separate meter or
\n by submeter, then Operating Costs shall include only public area
\n electric current consumption and electricity for base building HVAC and
\n not any demised Premises electric current consumption for lights and
\n plugs.) Wherever separate metering is unlawful, prohibited by utility
\n company regulation or tariff or is otherwise impracticable, relevant
\n consumption figures for the purposes of this Article 9 shall be
\n determined by fair and reasonable allocations and engineering estimates
\n made by Landlord.<\/p>\n
Insurance, etc.: Fire, casualty, liability and such other insurance as
\n may from time to time be reasonably required by lending institutions on
\n first-class office buildings in the City or Town<\/p>\n
-18-
\n 28
\n wherein the Building is located and all other expenses customarily
\n incurred in connection with the operation and maintenance of
\n first-class suburban office\/research and development buildings in the
\n Market Area.<\/p>\n
Management Space: Market rate rental costs associated with the
\n Complex’s management office.<\/p>\n
Complex Amenities: The cost of operating any amenities in the Complex
\n available to all tenants of the Complex including, without limitation,
\n any cafeteria. The costs to be included in Complex Operating Costs
\n shall include any subsidy, including lower than market rate rent,
\n provided by Landlord for or with respect to such amenity. In the event
\n that the costs of a Complex amenity are included in an Operating Year
\n but such costs were not included in the Complex Operating Costs Base,
\n then the Complex Operating Costs Base shall be adjusted to reflect what
\n would have been the costs for such amenity in the Complex Operating
\n Costs Base if such amenity had been operated during calendar year 2000.<\/p>\n
9.2 TAX EXCESS.<\/p>\n
(a) In General. Commencing as of the Term Commencement Date in
\nrespect of each Portion of the Premises, and continuing thereafter throughout
\nthe term of this Lease in respect of such Portion of the Premises, if in any Tax
\nPeriod the Building Taxes exceed the Building Tax Base, Tenant shall pay to
\nLandlord Tenant’s Building Tax Percentage in respect of each Portion of the
\nPremises of such excess, such amount being hereinafter referred to as “Tax
\nExcess.” Tax Excess shall be due within thirty (30) days of Tenant’s receipt of
\nLandlord’s bill therefor. In implementation and not in limitation of the
\nforegoing, Tenant shall remit to Landlord pro rata monthly installments on
\naccount of projected Tax Excess, calculated by Landlord on the basis of the most
\nrecent Tax data available. If the total of such monthly remittances on account
\nof any Tax Period is greater than the actual Tax Excess for such Tax Period,
\nTenant may credit the difference against the next installment of rental or other
\ncharges due to Landlord hereunder, except that if such difference is determined
\nafter the end of the term of this Lease, Landlord shall refund such difference
\nto Tenant within thirty (30) days after such determination to the extent that
\nsuch difference exceeds any amounts then due from Tenant to Landlord. If the
\ntotal of such remittances is less than the actual Tax Excess for such Tax
\nPeriod, Tenant shall pay the difference to Landlord within thirty (30) days of
\nTenant’s receipt of the bill.<\/p>\n
(b) Effect of Abatements. Appropriate credit against Tax
\nExcess shall be given for any refund obtained by reason of a reduction in any
\nTaxes by the Assessors or the administrative, judicial or other governmental
\nagency responsible therefor. The original computations, as well as reimbursement
\nor payments of additional charges, if any, or allowances, if any, under the
\nprovisions of this Article 9.2 shall be based on the original assessed
\nvaluations with adjustments to be made at a later date when the tax refund, if
\nany, shall be paid to Landlord by the taxing authorities. Expenditures for
\nreasonable legal fees and for other reasonable similar or dissimilar expenses
\nincurred in obtaining the tax refund may be charged against the tax refund
\nbefore the adjustments are made for the Tax Period.<\/p>\n
9.3 OPERATING EXPENSE EXCESS.<\/p>\n
Commencing as of the Term Commencement Date in respect of each Portion
\nof the Premises, and continuing thereafter throughout the term of the Lease in
\nrespect of such Portion of the Premises, if the Building Operating Costs in any
\nOperating Year exceed the Building Operating Cost Base, or if the Complex
\nOperating Costs in any Operating Year exceed the Complex Operating Cost Base,
\nTenant shall pay to Landlord Tenant’s Building or Complex Operating Cost
\nPercentage, respectively, in respect of each Portion of the Premises of such
\nexcess, such amounts being hereinafter collectively referred to as “Operating
\nExpense Excess.” Operating Expense Excess shall be due within thirty (30) days
\nof the Tenant’s receipt of the Landlord’s bill therefor. In implementation and
\nnot in limitation of the foregoing, Tenant shall remit to Landlord pro rata
\nmonthly installments on account of projected Operating Expense<\/p>\n
-19-
\n 29
\nExcess, calculated by Landlord on the basis of the most recent Operating Costs
\ndata or budget available. Landlord shall, within one hundred twenty (120) days
\nafter the end of each Operating Year, deliver to Tenant a reasonably detailed
\nstatement (“Year End Statement”) of the actual amount of Operating Costs for
\nsuch Operating Year. If the total of such monthly remittances on account of any
\nOperating Year is greater than the actual Operating Expense Excess for such
\nOperating Year, Tenant may credit the difference against the next installment of
\nrent or other charges due to Landlord hereunder, except that if such difference
\nis determined after the end of the term of this Lease, Landlord shall refund
\nsuch difference to Tenant within thirty (30) days after such determination to
\nthe extent that such difference exceeds any amounts then due from Tenant to
\nLandlord. If the total of such remittances is less than actual Operating Expense
\nExcess for such Operating Year, Tenant shall pay the difference to Landlord
\nwithin thirty (30) days of Tenant’s receipt of Landlord’s bill therefor.<\/p>\n
9.4 PART YEARS. If any Term Commencement Date or if the Termination
\nDate occurs in the middle of an Operating Year or Tax Period, Tenant shall be
\nliable for only that portion of the Operating Expense or Tax Excess, as the case
\nmay be, in respect of such Operating Year or Tax Period represented by a
\nfraction the numerator of which is the number of days of the herein term
\n(commencing as of the applicable Term Commencement Date) which falls within the
\nOperating Year or Tax Period and the denominator of which is three hundred
\nsixty-five (365), or the number of days in said Tax Period, as the case may be.<\/p>\n
9.5 EFFECT OF TAKING. In the event of any taking of a portion of the
\nComplex, the Building or the land upon which it stands under circumstances
\nwhereby this Lease shall not terminate under the provisions of Article 20 then,
\nfor the purposes of determining Tax Excess, there shall be substituted for the
\nTax Base originally provided for herein a fraction of such Tax Base, the
\nnumerator of which fraction shall be the Taxes for the first Tax Period
\nsubsequent to the condemnation or taking which takes into account such
\ncondemnation or taking, and the denominator of which shall be the Taxes for the
\nlast Tax Period prior to the condemnation or taking, which did not take into
\naccount such condemnation or taking. Tenant’s Building Tax Percentage shall be
\nadjusted appropriately to reflect the proportion of the Premises, the Building
\nand\/or the Complex remaining after such taking.<\/p>\n
9.6 ADJUSTMENT OF OPERATING COSTS BASED UPON OCCUPANCY. If less than
\nninety-five percent (95%) of the rentable area of the Building shall have been
\noccupied by tenants at any time during any Operating Year (including the Base
\nYear), or if services, for any other reason, are not provided by Landlord to at
\nleast ninety-five (95%) percent of the rentable area of the Building, then, at
\nLandlord’s election, Building Operating Costs for such Operating Year shall be
\nadjusted to equal the amount which Landlord reasonably determines is the amount
\nBuilding Operating Costs would have been for such period had occupancy been
\nninety-five percent (95%) throughout such period, or if such services had been
\nprovided to ninety-five (95%) percent of the Building throughout such period, as
\nthe case may be.<\/p>\n
9.7 DISPUTES, ETC. Any disputes arising under this Article 9 may, at
\nthe election of either party, be submitted to arbitration as hereinafter
\nprovided. Any obligations under this Article 9 which shall not have been paid at
\nthe expiration or sooner termination of the term of this Lease shall survive
\nsuch expiration and shall be paid when and as the amount of same shall be
\ndetermined and be due.<\/p>\n
9.8 TENANT’S AUDIT RIGHTS. Subject to the provisions of this paragraph,
\nTenant shall have the right, at Tenant’s cost and expense, to examine all
\ndocumentation and calculations prepared in the determination of Operating
\nExpense Excess:<\/p>\n
1. Such documentation and calculation shall be made
\n available to Tenant at the offices where Landlord
\n keeps such records during normal business hours
\n within a reasonable time after Landlord receives a
\n written request from Tenant to make such examination.<\/p>\n
-20-
\n 30
\n 2. Tenant shall have the right to make such examination
\n no more than once in respect of any period in which
\n Landlord has given Tenant a statement of the actual
\n amount of Operating Costs.<\/p>\n
3. Any request for examination in respect of any
\n Operating Year may be made no more than sixty (60)
\n days after Landlord advises Tenant of the actual
\n amount of Operating Costs in respect of such period.<\/p>\n
4. Such examination may be made only by a nationally
\n recognized independent certified public accounting
\n firm approved by Landlord, such approval not to be
\n unreasonably withheld or delayed. Without limiting
\n Landlord’s approval rights, Landlord may withhold its
\n approval of any examiner of Tenant who is being paid
\n by Tenant on a contingent fee basis.<\/p>\n
5. As a condition to performing any such examination,
\n Tenant and its examiners shall be required to execute
\n and deliver to Landlord an agreement, in form
\n reasonably acceptable to Landlord, agreeing to keep
\n confidential any information which it discovers about
\n Landlord or the Building or the Complex in connection
\n with such examination.<\/p>\n
6. If such audit reveals an overcharge of more than five
\n percent (5%), Landlord shall reimburse Tenant the
\n reasonable cost of such audit within thirty (30) days
\n after written demand therefor.<\/p>\n
10. CHANGES OR ALTERATIONS BY LANDLORD<\/p>\n
Landlord reserves the right, exercisable by itself or its nominee, at
\nany time and from time to time without the same constituting an actual or
\nconstructive eviction and without incurring any liability to Tenant therefor or
\notherwise affecting Tenant’s obligations under this Lease, to make such changes,
\nalterations, additions, improvements, repairs or replacements in or to the
\nBuilding (including the Premises) and the fixtures and equipment thereof, as
\nwell as in or to the street entrances, halls, passages, elevators, escalators,
\nand stairways thereof, as it may deem necessary or desirable, and to change the
\narrangement and\/or location of entrances or passageways, doors and doorways, and
\ncorridors, elevators, stairs, toilets, or other public parts of the Building,
\nprovided, however, that there be no unreasonable obstruction of the right of
\naccess to, or unreasonable interference with the use and enjoyment of, the
\nPremises by Tenant. Nothing contained in this Article 10 shall be deemed to
\nrelieve Tenant of any duty, obligation or liability of Tenant with respect to
\nmaking any repair, replacement or improvement or complying with any law, order
\nor requirement of any governmental or other authority. Landlord reserves the
\nright to adopt and at any time and from time to time to change the name or
\naddress of the Building. After the initial change of the name and address of the
\nBuilding, Landlord shall provide to Tenant at least six (6) months’ prior
\nwritten notice of any subsequent change of the name or address of the Building.
\nNeither this Lease nor any use by Tenant shall give Tenant any right or easement
\nfor the use of any door or any passage or any concourse connecting with any
\nother building or to any public convenience, and the use of such doors, passages
\nand concourses and of such conveniences may be regulated or discontinued at any
\ntime and from time to time by Landlord without notice to Tenant and without
\naffecting the obligation of Tenant hereunder or incurring any liability to
\nTenant therefor, provided, however, that there be no unreasonable obstruction of
\nthe right of access to, or unreasonable interference with the use of the
\nPremises by Tenant.<\/p>\n
If at any time any windows of the Premises are temporarily closed or
\ndarkened for any reason whatsoever including but not limited to, Landlord’s own
\nacts, Landlord shall not be liable for any damage Tenant may sustain thereby and
\nTenant shall not be entitled to any compensation therefor nor abatements of rent
\nnor shall the same release Tenant from its obligations hereunder nor constitute
\nan eviction.<\/p>\n
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\n 31
\n Subject to the provisions of Article 8.8(b) hereof, during the
\nperformance of demolition or renovation of existing buildings and construction
\nof new buildings by Landlord in the Complex, Landlord, its agents, employees and
\ncontractors shall use reasonable efforts to minimize any interference with
\nTenant’s use and occupancy of the Premises.<\/p>\n
11. FIXTURES, EQUIPMENT AND IMPROVEMENTS–REMOVAL BY TENANT<\/p>\n
All fixtures, equipment, improvements and appurtenances attached to or
\nbuilt into the Premises prior to or during the term, whether by Landlord at its
\nexpense or at the expense of Tenant (either or both) or by Tenant shall be and
\nremain part of the Premises and shall not be removed by Tenant during or at the
\nend of the term unless Landlord otherwise elects to require Tenant to remove
\nsuch fixtures, equipment, improvements and appurtenances, in accordance with
\nArticles 12 and\/or 22 of the Lease; provided, however, that Tenant shall have
\nthe right to remove (at Tenant’s expense) the items of Tenant’s Removable
\nProperty listed on Exhibit 8, attached hereto, provided that such removal shall
\nnot materially damage the Premises or the Building and that the cost of
\nrepairing any damage to the Premises or the Building arising from installation
\nor such removal shall be paid by Tenant. All electric, plumbing, heating and
\nsprinkling systems, fixtures and outlets, vaults, paneling, molding, shelving,
\nradiator enclosures, cork, rubber, linoleum and composition floors, ventilating,
\nsilencing, air conditioning and cooling equipment, shall be deemed to be
\nincluded in such fixtures, equipment, improvements and appurtenances, whether or
\nnot attached to or built into the Premises. Where not built into the Premises,
\nall removable electric fixtures, carpets, drinking or tap water facilities,
\nfurniture, or trade fixtures or business equipment or Tenant’s inventory or
\nstock in trade shall not be deemed to be included in such fixtures, equipment,
\nimprovements and appurtenances and may be, and upon the request of Landlord will
\nbe, removed by Tenant upon the condition that such removal shall not materially
\ndamage the Premises or the Building and that the cost of repairing any damage to
\nthe Premises or the Building arising from installation or such removal shall be
\npaid by Tenant. If this Lease shall be terminated by reason of Tenant’s breach
\nor default, then, notwithstanding anything to the contrary in this Lease
\ncontained, Landlord shall have a lien against all Tenant’s property in the
\nPremises or elsewhere in the Building at the time of such termination to secure
\nLandlord’s rights under Article 21 hereof. Tenant shall, within ten (10) days of
\nLandlord’s written request, from time to time, execute and deliver to Landlord
\nsuch documentation (e.g., UCC statements) as may be necessary to enable Landlord
\nto perfect such lien.<\/p>\n
12. ALTERATIONS AND IMPROVEMENTS BY TENANT<\/p>\n
Tenant shall make no alterations, decorations, installations, removals,
\nadditions or improvements in or to the Premises without Landlord’s prior written
\nconsent and then only those (i) which equal or exceed the specifications and
\nquantities provided in Exhibit 3 and (ii) made by contractors or mechanics
\napproved by Landlord. No installations or work shall be undertaken or begun by
\nTenant until: (i) Landlord has approved written plans and specifications and a
\ntime schedule for such work; (ii) Tenant has made provision for either written
\nwaivers of liens from all contractors, laborers and suppliers of materials for
\nsuch installations or work, the filing of lien bonds on behalf of such
\ncontractors, laborers and suppliers, or other appropriate protective measures
\napproved by Landlord and reasonably and customarily required by other landlords
\nof first class office buildings in Cambridge, Massachusetts for work of the type
\nbeing performed; and (iii) where the cost of such work exceeds $300,000.00 in
\nany one instance, Tenant has procured appropriate surety payment and performance
\nbonds. No amendments or additions to such plans and specifications shall be made
\nwithout the prior written consent of Landlord. Landlord’s consent and approval
\nrequired under this Article 12 shall not be unreasonably withheld. Landlord’s
\napproval is solely given for the benefit of Landlord and neither Tenant nor any
\nthird party shall have the right to rely upon Landlord’s approval of Tenant’s
\nplans for any purpose whatsoever. Without limiting the foregoing, Tenant shall
\nbe responsible for all elements of the design of Tenant’s plans (including,
\nwithout limitation, compliance with law, functionality of design, the structural
\nintegrity of the design, the configuration of the Premises and the placement of
\nTenant’s furniture, appliances and equipment), and Landlord’s approval of<\/p>\n
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\n 32
\nTenant’s plans shall in no event relieve Tenant of the responsibility for such
\ndesign. Landlord shall have no liability or responsibility for any claim, injury
\nor damage alleged to have been caused by the particular materials, whether
\nbuilding standard or non-building standard, appliances or equipment selected by
\nTenant in connection with any work performed by or on behalf of Tenant in the
\nPremises including, without limitation, furniture, carpeting, copiers, laser
\nprinters, computers and refrigerators. Any such work, alterations, decorations,
\ninstallations, removals, additions and improvements shall be done at Tenant’s
\nsole expense and at such times and in such manner as Landlord may from time to
\ntime designate. If Tenant shall make any alterations, decorations,
\ninstallations, removals, additions or improvements to either Portion of the
\nPremises, then Landlord may elect to require the Tenant at the expiration or
\nsooner termination of the term of this Lease to restore the Premises to
\nsubstantially the same condition as existed at the Term Commencement Date in
\nrespect of such Portion of the Premises. Landlord agrees to make such election
\nat the time that Landlord approves Tenant’s plans for any such alterations,
\netc., if Tenant requests in writing that Landlord make such election at the time
\nthat Tenant requests Landlord’s approval of such alterations, etc.<\/p>\n
Tenant shall have the right, during the term of the Lease, to use the
\ninternal stairwells of the Building to provide access for Tenant’s employees
\nbetween the floors of the Premises provided that (i) such use is permitted by
\napplicable law, (ii) Landlord shall, if required by applicable laws, rules,
\norders and regulations, install a card key access system for the doors to and
\nfrom such stairwells, and (iii) Tenant shall reimburse Landlord, as additional
\nrent, or shall use a portion of the Landlord Allowance, for the costs incurred
\nby Landlord to install such card key access system.<\/p>\n
Notwithstanding anything to the contrary herein contained, Tenant shall
\nhave the right, without obtaining Landlord’s consent, to make interior
\nnonstructural alterations, additions, or improvements, provided however that
\nTenant:<\/p>\n
(i) shall give prior written notice to Landlord of such
\n alterations, additions or improvements;<\/p>\n
(ii) Tenant shall submit to Landlord plans for such
\n alterations, additions or improvements if Tenant
\n utilizes plans for such alterations, additions or
\n improvements, and<\/p>\n
(iii) that such alterations, additions or improvements
\n shall not materially, adversely affect any of the
\n Building’s systems, or the ceiling of the Premises.<\/p>\n
13. TENANT’S CONTRACTORS–MECHANICS’ AND OTHER LIENS–STANDARD OF TENANT’S
\n PERFORMANCE–COMPLIANCE WITH LAWS<\/p>\n
Whenever Tenant shall make any alterations, decorations, installations,
\nremovals, additions or improvements in or to either Portion of the
\nPremises–whether such work be done prior to or after the Term Commencement Date
\nin respect to such Portion of the Premises–Tenant will strictly observe the
\nfollowing covenants and agreements:<\/p>\n
(a) Tenant agrees that it will not, either directly or
\nindirectly, use any contractors and\/or materials if their use will create any
\ndifficulty, whether in the nature of a labor dispute or otherwise, with other
\ncontractors and\/or labor engaged by Tenant or Landlord or others in the
\nconstruction, maintenance and\/or operation of the Building or any part thereof.<\/p>\n
(b) In no event shall any material or equipment be
\nincorporated in or added to the Premises, so as to become a fixture or otherwise
\na part of the Building, in connection with any such alteration, decoration,
\ninstallation, addition or improvement which is subject to any lien, charge,
\nmortgage or other encumbrance of any kind whatsoever or is subject to any
\nsecurity interest or any form of title<\/p>\n
-23-
\n 33
\nretention agreement. No installations or work shall be undertaken or begun by
\nTenant until (i) Tenant has made provision for written waiver of liens from all
\ncontractors, laborers and suppliers of materials for such installations or work,
\nand taken other appropriate protective measures approved by Landlord; and (ii)
\nTenant has procured appropriate surety payment and performance bonds which shall
\nname Landlord as an additional obligee and has filed lien bond(s) (in
\njurisdictions where available) on behalf of such contractors, laborers and
\nsuppliers. Any mechanic’s lien filed against the Premises or the Building for
\nwork claimed to have been done for, or materials claimed to have been furnished
\nto, Tenant shall be discharged by Tenant within ten (10) days thereafter, at
\nTenant’s expense by filing the bond required by law or otherwise. If Tenant
\nfails so to discharge any lien, Landlord may do so at Tenant’s expense and
\nTenant shall reimburse Landlord for any expense or cost incurred by Landlord in
\nso doing within fifteen (15) days after rendition of a bill therefor.
\nNotwithstanding the foregoing, Tenant shall have the right to grant security
\ninterests and\/or to lease its business equipment and personal property in the
\nPremises which were not paid for in whole or in part by the Landlord Allowance,
\nprovided that such lessor or secured party agrees:<\/p>\n
1. That it will repair any damage to the
\n Building or the Premises caused by the
\n installation or removal of any such
\n equipment or personal property;<\/p>\n
2. That it will give Landlord not less than
\n five (5) days advance written notice prior
\n to making any entry into the Premises;<\/p>\n
3. That it will not hold any auction or
\n foreclosure sale on the Premises; and<\/p>\n
4. That it will have the right to remove such
\n equipment or property only during the term
\n of this Lease.<\/p>\n
(c) All installations or work done by Tenant shall be at its
\nown expense and shall at all times comply with (i) laws, rules, orders and
\nregulations of governmental authorities having jurisdiction thereof; (ii)
\norders, rules and regulations of any Board of Fire Underwriters, or any other
\nbody hereafter constituted exercising similar functions, and governing insurance
\nrating bureaus; (iii) Rules and Regulations of Landlord; and (iv) plans and
\nspecifications prepared by and at the expense of Tenant theretofore submitted to
\nand approved by Landlord. Notwithstanding any other provision of this Lease,
\nTenant shall not be responsible for compliance with any laws, regulations, or
\nthe like requiring (i) structural repairs or modifications or (ii) repairs or
\nmodifications to the utility or building service equipment or (iii) installation
\nof new building service equipment, such as fire detection or suppression
\nequipment, unless such repairs, modifications, or installations shall be (a) due
\nto Tenant’s particular use or manner of use of the Premises (as opposed to
\noffice use generally), (b) due to the negligence or willful misconduct of Tenant
\nor any agent, employee, or contractor of Tenant, or (c) due to alterations,
\nadditions or installations by or on behalf of Tenant.<\/p>\n
(d) Tenant shall procure all necessary permits before
\nundertaking any work in the Premises; do all of such work in a good and
\nworkmanlike manner, employing materials of good quality and complying with all
\ngovernmental requirements; and defend, save harmless, exonerate and indemnify
\nLandlord from all injury, loss or damage to any person or property occasioned by
\nor growing out of such work. Tenant shall cause contractors employed by Tenant
\nto carry Worker’s Compensation Insurance in accordance with statutory
\nrequirements, Automobile Liability Insurance and, naming Landlord as an
\nadditional insured, Commercial General Liability Insurance covering such
\ncontractors on or about the Premises in the amounts stated in Article 15 hereof
\nor in such other reasonable amounts as Landlord shall require and to submit
\ncertificates evidencing such coverage to Landlord prior to the commencement of
\nsuch work.<\/p>\n
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\n 34
\n14. REPAIRS BY TENANT–FLOOR LOAD<\/p>\n
14.1 REPAIRS BY TENANT. Tenant shall keep all and singular each Portion
\nof the Premises neat and clean (including periodic rug shampoo and waxing of
\ntiled floors and cleaning of blinds and drapes) and in such repair, order and
\ncondition as the same are in on the Term Commencement Date in respect of such
\nPortion of the Premises or may be put in during the term hereof, reasonable use
\nand wearing thereof and damage by fire or by other casualty excepted. Tenant
\nshall be solely responsible for the proper maintenance of all equipment and
\nappliances operated by Tenant, including, without limitation, copiers, laser
\nprinters, computers and refrigerators. Tenant shall make, as and when needed as
\na result of misuse by, or neglect or improper conduct of, Tenant or Tenant’s
\nservants, employees, agents, contractors, invitees, or licensees or otherwise,
\nall repairs in and about the Premises necessary to preserve them in such repair,
\norder and condition, which repairs shall be in quality and class equal to the
\noriginal work. Landlord may elect, at the expense of Tenant, to make any such
\nrepairs or to repair any damage or injury to the Building or the Premises caused
\nby moving property of Tenant in or out of the Building, or by installation or
\nremoval of furniture or other property, or by misuse by, or neglect, or improper
\nconduct of, Tenant or Tenant’s servants, employees, agents, contractors, or
\nlicensees.<\/p>\n
14.2 FLOOR LOAD–HEAVY MACHINERY. Tenant shall not place a load upon
\nany floor of the Premises exceeding the floor load per square foot of area which
\nsuch floor was designed to carry and which is allowed by law. Landlord reserves
\nthe right to prescribe the weight and position of all business machines and
\nmechanical equipment, including safes, which shall be placed so as to distribute
\nthe weight. Business machines and mechanical equipment shall be placed and
\nmaintained by Tenant at Tenant’s expense in settings sufficient in Landlord’s
\njudgment to absorb and prevent vibration, noise and annoyance. Tenant shall not
\nmove any safe, heavy machinery, heavy equipment, freight, bulky matter, or
\nfixtures into or out of the Building without Landlord’s prior written consent.
\nIf such safe, machinery, equipment, freight, bulky matter or fixtures requires
\nspecial handling, Tenant agrees to employ only persons holding a Master Rigger’s
\nLicense to do said work, and that all work in connection therewith shall comply
\nwith applicable laws and regulations. Any such moving shall be at the sole risk
\nand hazard of Tenant and Tenant will defend, indemnify and save Landlord
\nharmless against and from any liability, loss, injury, claim or suit resulting
\ndirectly or indirectly from such moving. Proper placement of all such business
\nmachines, etc., in the Premises shall be Tenant’s responsibility.<\/p>\n
15. INSURANCE, INDEMNIFICATION, EXONERATION AND EXCULPATION<\/p>\n
15.1 GENERAL LIABILITY INSURANCE. Tenant shall procure, and keep in
\nforce and pay for Commercial General Liability Insurance insuring Tenant on an
\noccurrence basis against all claims and demands for personal injury liability
\n(including, without limitation, bodily injury, sickness, disease, and death) or
\ndamage to property which may be claimed to have occurred from and after the time
\nTenant and\/or its contractors enter the Premises in accordance with Article 4 of
\nthis Lease, of not less than Two Million ($2,000,000) Dollars in the event of
\npersonal injury to any number of persons or damage to property, arising out of
\nany one occurrence, and from time to time thereafter shall be not less than such
\nhigher amounts, if procurable, as may be reasonably required by Landlord and are
\ncustomarily carried by responsible similar tenants in the City or Town wherein
\nthe Building is located.<\/p>\n
15.2 CERTIFICATES OF INSURANCE. Such insurance shall be effected with
\ninsurers approved by Landlord, authorized to do business in the State wherein
\nthe Building is situated under valid and enforceable policies wherein Tenant
\nnames Landlord and Landlord’s managing agent as additional insureds. Such
\ninsurance shall provide that it shall not be canceled or modified without at
\nleast thirty (30) days’ prior written notice to each insured named therein. On
\nor before the time Tenant and\/or its contractors enter the Premises in
\naccordance with Articles 4 and 14 of this Lease and thereafter not less than
\nfifteen (15) days prior to the expiration date of each expiring policy, original
\ncopies of the policies provided for in Article 15.1 issued by the respective
\ninsurers, or certificates of such policies setting forth in full the provisions
\nthereof and issued by such insurers together with evidence satisfactory to
\nLandlord of<\/p>\n
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\n 35
\nthe payment of all premiums for such policies, shall be delivered by Tenant to
\nLandlord and certificates as aforesaid of such policies shall upon request of
\nLandlord, be delivered by Tenant to the holder of any mortgage affecting the
\nPremises.<\/p>\n
15.3 GENERAL. Tenant will save Landlord, its agents and employees,
\nharmless and will exonerate, defend and indemnify Landlord, its agents and
\nemployees, from and against any and all claims, liabilities or penalties
\nasserted by or on behalf of any person, firm, corporation or public authority
\narising from the Tenant’s breach of the Lease or:<\/p>\n
(a) On account of or based upon any injury to person, or loss
\nof or damage to property, sustained or occurring on the Premises on account of
\nor based upon the act, omission, fault, negligence or misconduct of any person
\nwhomsoever (except to the extent the same is caused by Landlord, its agents,
\ncontractors or employees);<\/p>\n
(b) On account of or based upon any injury to person, or loss
\nof or damage to property, sustained or occurring elsewhere (other than on the
\nPremises) in or about the Building (and, in particular, without limiting the
\ngenerality of the foregoing, on or about the elevators, stairways, public
\ncorridors, sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
\napproaches, areaways, roof, or other appurtenances and facilities used in
\nconnection with the Building or Premises) to the extent arising out of the use
\nor occupancy of the Building or Premises by the Tenant, or by any person
\nclaiming by, through or under Tenant, to the extent on account of or based upon
\nthe fault, negligence or misconduct of Tenant, its agents, employees or
\ncontractors; and<\/p>\n
(c) On account of or based upon (including monies due on
\naccount of) any work or thing whatsoever done (other than by Landlord or its
\ncontractors, or agents or employees of either) on either Portion of the Premises
\nduring the term of this Lease and during the period of time, if any, prior to
\nthe Term Commencement Date in respect of such Portion of the Premises that
\nTenant may have been given access to such Portion of the Premises.<\/p>\n
(d) Tenant’s obligations under this Article 15.3 shall be
\ninsured either under the Commercial General Liability Insurance required under
\nArticle 15.1, above, or by a contractual insurance rider or other coverage; and
\ncertificates of insurance in respect thereof shall be provided by Tenant to
\nLandlord upon request.<\/p>\n
(e) Except as set forth in this Article 15.3(e), Tenant shall
\nnot be liable to Landlord for consequential damages. Notwithstanding the
\nforegoing, in the event that Tenant is required to indemnify Landlord against
\nthe claim of a third party pursuant to this Article 15.3, and if such third
\nparty recovers a judgment against Landlord for consequential damages based upon
\nthe negligence or willful misconduct of Tenant, its contractors, agents or
\nemployees, Tenant shall be liable for such consequential damages suffered by
\nsuch third party. The foregoing shall not limit Landlord’s right to recover
\ndamages in accordance with Article 21.3 (x) or (y) or to recover damages in
\naccordance with the last paragraph of Article 22 as the result of a holdover by
\nTenant in the premises beyond the term of the Lease.<\/p>\n
15.4 PROPERTY OF TENANT. In addition to and not in limitation of the
\nforegoing, Tenant covenants and agrees that, to the maximum extent permitted by
\nlaw, all merchandise, furniture, fixtures and property of every kind, nature and
\ndescription related or arising out of Tenant’s leasehold estate hereunder, which
\nmay be in or upon the Premises or Building, in the public corridors, or on the
\nsidewalks, areaways and approaches adjacent thereto, shall be at the sole risk
\nand hazard of Tenant, and that if the whole or any part thereof shall be
\ndamaged, destroyed, stolen or removed from any cause or reason whatsoever no
\npart of said damage or loss shall be charged to, or borne by, Landlord, except,
\nsubject to Article 19 hereof, to the extent such damage or loss is due to the
\nnegligence or willful misconduct of Landlord or Landlord’s agents, employees or
\ncontractors, in which case Landlord shall bear loss or damage only to “ordinary
\noffice property” (as hereinafter defined). For the purpose of this Article 15.4,<\/p>\n
-26-
\n 36
\n“ordinary office property” shall mean merchandise, furniture, and other tangible
\npersonal property of the kind and quantity which may customarily be expected to
\nbe found within comparable business offices in the greater Cambridge area, and
\nexcluding any unusually valuable or exotic property, works of art, and the like.<\/p>\n
15.5 BURSTING OF PIPES, ETC. Landlord shall not be liable for any
\ninjury or damage to persons or property resulting from fire, explosion, falling
\nplaster, steam, gas, air contaminants or emissions, electricity, electrical or
\nelectronic emanations or disturbance, water, rain or snow or leaks from any part
\nof the Building or from the pipes, appliances, equipment or plumbing works or
\nfrom the roof, street or sub-surface or from any other place or caused by
\ndampness, vandalism, malicious mischief or by any other cause of whatever
\nnature, unless caused by or due to the negligence of Landlord, its agents,
\nservants or employees, and then, where notice and an opportunity to cure are
\nappropriate (i.e., where Tenant has an opportunity to know or should have known
\nof such condition sufficiently in advance of the occurrence of any such injury
\nor damage resulting therefrom as would have enabled Landlord to prevent such
\ndamage or loss had Tenant notified Landlord of such condition) only after (i)
\nnotice to Landlord of the condition claimed to constitute negligence and (ii)
\nthe expiration of a reasonable time after such notice has been received by
\nLandlord without Landlord having taken all reasonable and practicable means to
\ncure or correct such condition; and pending such cure or correction by Landlord,
\nTenant shall take all reasonably prudent temporary measures and safeguards to
\nprevent any injury, loss or damage to persons or property. In no event shall
\nLandlord be liable for any loss, the risk of which is covered by Tenant’s
\ninsurance or is required to be so covered by this Lease; nor shall Landlord or
\nits agents be liable for any such damage caused by other tenants or persons in
\nthe Building or caused by operations in construction of any private, public, or
\nquasi-public work; nor shall Landlord be liable for any latent defect in the
\nPremises or in the Building; provided however, that: (i) the foregoing shall not
\nlimit Landlord’s obligation to repair any latent defect in Landlord’s Work of
\nwhich Tenant gives Landlord written notice within the time period required
\npursuant to Article 4.8, and (ii) the foregoing shall not relieve Landlord of
\nits obligation to perform maintenance and repairs pursuant to Article 8.7.
\nLandlord shall cooperate with Tenant in such manner as Tenant shall reasonably
\nrequest in the event that Tenant suffers any loss or damage by reason of any
\nsuch latent defect so that Tenant shall be able to prosecute any claim which it
\nmay have against the contractor and\/or material supplier responsible for such
\nlatent defect. Without limiting the foregoing, Landlord shall assign its right
\nto Tenant against any such contractor and\/or material supplier, if necessary to
\nenable Tenant to prosecute its claim against any such contractor and\/or material
\nsupplier.<\/p>\n
15.6 REPAIRS AND ALTERATIONS–NO DIMINUTION OF RENTAL VALUE. Except as
\notherwise provided in Article 18, there shall be no allowance to Tenant for
\ndiminution of rental value and no liability on the part of Landlord by reason of
\ninconvenience, annoyance or injury to Tenant arising from any repairs,
\nalterations, additions, replacements or improvements made by Landlord, or any
\nrelated work, Tenant or others in or to any portion of the Building or Premises
\nor any property adjoining the Building, or in or to fixtures, appurtenances, or
\nequipment thereof, or for failure of Landlord or others to make any repairs,
\nalterations, additions or improvements in or to any portion of the Building, or
\nof the Premises, or in or to the fixtures, appurtenances or equipment thereof.<\/p>\n
16. ASSIGNMENT, MORTGAGING AND SUBLETTING<\/p>\n
A. Tenant covenants and agrees that neither this Lease nor the term and
\nestate hereby granted, nor any interest herein or therein, will be assigned,
\nmortgaged, pledged, encumbered or otherwise transferred, voluntarily, by
\noperation of law or otherwise, and that neither the Premises, nor any part
\nthereof will be encumbered in any manner by reason of any act or omission on the
\npart of Tenant, or used or occupied, or permitted to be used or occupied, or
\nutilized for desk space or for mailing privileges, by anyone other than Tenant,
\nor for any use or purpose other than as stated in Exhibit 1, or be sublet, or
\noffered or advertised for subletting.<\/p>\n
-27-
\n 37
\n B. Notwithstanding anything to the contrary in the Lease contained,
\nexcept to the extent set forth in Paragraph C below:<\/p>\n
1. Tenant shall, prior to offering or
\n advertising the Premises, or any portion
\n thereof for sublease or assignment give
\n Landlord a Recapture Offer, as hereinafter
\n defined.<\/p>\n
2. For the purposes hereof a “Recapture Offer”
\n shall be defined as a notice in writing from
\n Tenant to Landlord which:<\/p>\n
(a) States that Tenant desires to
\n sublet the Premises, or a portion
\n thereof, or to assign its interest
\n in this Lease.<\/p>\n
(b) Identifies the affected portion of
\n the Premises (“Recapture
\n Premises”).<\/p>\n
(c) Identifies the period of time
\n (“Recapture Period”) during which
\n Tenant proposes to sublet the
\n Recapture Premises or to assign its
\n interest in the Lease.<\/p>\n
(d) Offers to Landlord to terminate the
\n Lease in respect of the Recapture
\n Premises (in the case of a proposed
\n assignment of Tenant’s interest in
\n the Lease or a subletting for the
\n remainder of the term of the Lease)
\n or to suspend the term of the Lease
\n pro tanto in respect of the
\n Recapture Period (i.e. the term of
\n the Lease in respect of the
\n Recapture Premises shall be
\n terminated during the Recapture
\n Period and Tenant’s rental
\n obligations shall be reduced in
\n proportion to the ratio of the
\n Total Rentable Area of the
\n Recapture Premises to the Total
\n Rentable Area of the Premises then
\n demised to Tenant).<\/p>\n
3. Landlord shall have twenty-one (21) business
\n days to accept a Recapture Offer. If
\n Landlord does not timely give written notice
\n to Tenant accepting a Recapture Offer, then
\n Landlord agrees that, subject to
\n Subparagraph 5 of this Paragraph B, it will
\n not unreasonably withhold or delay its
\n consent to a sublease of the Recapture
\n Premises for the Recapture Period, or an
\n assignment of Tenant’s interest in the
\n Lease, as the case may be, to a Qualified
\n Transferee, as hereinafter defined.<\/p>\n
4. For the purposes hereof, a “Qualified
\n Transferee” shall be defined as a person,
\n firm or corporation which, in Landlord’s
\n reasonable opinion:<\/p>\n
(a) is financially responsible and of
\n good reputation (recognizing that
\n Akamai Technologies, Inc. remains
\n liable hereunder); and<\/p>\n
(b) is engaged in a business, the
\n functional aspects of which, with
\n respect to the Premises, are similar
\n to the use of other Premises made by
\n other office space tenants in the
\n Building.<\/p>\n
5. In the event that the proposed assignee or
\n sublessee is then a tenant or subtenant of
\n other premises in the Building or the
\n Complex (an<\/p>\n
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\n 38
\n “Existing Tenant”), then Tenant’s written
\n request for Landlord’s consent to a sublease
\n or assignment to such entity shall be deemed
\n to constitute a second Recapture Offer to
\n Landlord with respect to such proposed
\n sublease or assignment, except that Landlord
\n shall have seven (7) calendar days from the
\n receipt of Tenant’s written request for
\n consent to such proposed sublease or
\n assignment in which to give Tenant written
\n notice that Landlord accepts such Recapture
\n Offer.<\/p>\n
6. Notwithstanding anything to the contrary in
\n this Paragraph B contained:<\/p>\n
(a) If Tenant is in default of its
\n obligations under the Lease at the
\n time that it makes the aforesaid
\n offer to Landlord, such default
\n shall be deemed to be a
\n “reasonable” reason for Landlord
\n withholding its consent to any
\n proposed subletting or assignment;
\n and<\/p>\n
(b) If Tenant does not enter into a
\n sublease with a subtenant (or an
\n assignment to an assignee, as the
\n case may be) approved by Landlord,
\n as aforesaid, on or before the date
\n which is one hundred eighty (180)
\n days after the earlier of: (x) the
\n expiration of said twenty-one (21)
\n business day period, or (y) the
\n date that Landlord notifies Tenant
\n that Landlord will not accept
\n Tenant’s offer to terminate or
\n suspend the Lease, then Landlord
\n shall have the right arbitrarily to
\n withhold its consent to any
\n subletting or assignment proposed
\n to be entered into by Tenant after
\n the expiration of said one hundred
\n eighty (180) day period unless
\n Tenant again offers, in accordance
\n with this Paragraph B, either to
\n terminate or to suspend the Lease
\n in respect of the portion of the
\n Premises proposed to be sublet (or
\n in respect of the entirety of the
\n Premises in the event of a proposed
\n assignment, as the case may be). If
\n Tenant shall make any subsequent
\n offers to terminate or suspend the
\n Lease pursuant to this Paragraph B,
\n any such subsequent offers shall be
\n treated in all respects as if it is
\n Tenant’s first offer to suspend or
\n terminate the Lease pursuant to
\n this Paragraph B, provided that the
\n period of time Landlord shall have
\n in which to accept or reject such
\n subsequent offer shall be fourteen
\n (14) business days.<\/p>\n
7. Notwithstanding anything to the contrary
\n herein contained, except in connection with
\n a Protected Sublease, as defined in
\n Subparagraph 8 of this Paragraph B, Tenant
\n shall have no right, under this Paragraph B
\n hereof, prior to the date that is the
\n earlier of (i) one (1) year after the Term
\n Commencement Date in respect of Portion A,
\n and (ii) the date when Buildings 545, 565
\n and 575 are one hundred percent (100%)
\n leased.<\/p>\n
8. Notwithstanding the foregoing, Tenant shall
\n have the right to sublease up to 35,696
\n square feet of Rentable Floor Area, in the
\n aggregate, of the Premises for a term not in
\n excess of forty-two months (a “Protected
\n Sublease”) without the requirement of giving
\n Landlord a Recapture Notice with respect
\n thereto, and without being subject to the
\n provisions<\/p>\n
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\n 39
\n of Paragraph (7) above. Such Protected
\n Sublease shall, however, require Landlord’s
\n consent, which shall not be unreasonably
\n withheld, conditioned or delayed for a
\n sublease to a Qualified Transferee, as
\n defined in Paragraph (4) above, and shall be
\n subject to the provisions of Paragraph (5)
\n above allowing Landlord to recapture the
\n relevant portion of the Premises in
\n connection with subleases or assignments to
\n Existing Tenants. Tenant shall pay Landlord
\n 50% of the net (i.e., net of the reasonable
\n and customary brokerage, legal, design and
\n construction costs incurred by Tenant in
\n connection with such Protected Sublease)
\n amount of all rent and other consideration
\n which Tenant receives as a result of a
\n Protected Sublease that is in excess of the
\n rent payable to Landlord for the portion of
\n the Premises and Term covered by the
\n Transfer. Tenant shall pay Landlord for
\n Landlord’s share of any excess within ten
\n (10) days after Tenant’s receipt of such
\n excess consideration.<\/p>\n
9. No subletting or assignment shall relieve
\n Tenant of its primary obligation as
\n party-Tenant hereunder, nor shall it reduce
\n or increase Landlord’s obligations under the
\n Lease.<\/p>\n
C. Notwithstanding anything to the contrary herein contained, Tenant
\nshall have the right, without obtaining Landlord’s consent and without giving
\nLandlord a Recapture Offer, to assign its interest in this Lease and to sublease
\nthe premises, or any portion thereof, to an Affiliated Entity, as hereinafter
\ndefined, so long as such entity remains in such relationship to Tenant, and
\nprovided that prior to or simultaneously with such assignment or sublease, such
\nAffiliated Entity executes and delivers to Landlord an Assumption Agreement, as
\nhereinabove defined. For the purposes hereof, an “Affiliated Entity” shall be
\ndefined as any entity which is controlled by, is under common control with, or
\nwhich controls Tenant. Notwithstanding anything to the contrary herein
\ncontained, it is hereby expressly understood and agreed, however, that if Tenant
\nis a corporation, that the assignment or transfer of this Lease, and the term
\nand estate hereby granted, to any corporation into which Tenant is merged or
\nwith which Tenant is consolidated or which acquires all or substantially all of
\nits stock or assets which corporation shall have a net worth at least equal to
\nthat of Tenant immediately prior to such merger or consolidation (such
\ncorporation being hereinafter called “Assignee”), shall not be deemed to be
\nprohibited hereby, or to require Landlord’s consent, or to require the
\nfurnishing of a Recapture Offer, if, and upon the express condition that
\nAssignee and Tenant shall promptly execute, acknowledge and deliver to Landlord
\nan agreement in form and substance satisfactory to Landlord whereby Assignee
\nshall agree to be independently bound by and upon all the covenants, agreements,
\nterms, provisions and conditions set forth in this Lease on the part of Tenant
\nto be performed, and whereby Assignee shall expressly agree that the provisions
\nof this Article 16 shall, notwithstanding such assignment or transfer, continue
\nto be binding upon it with respect to all future assignments and transfers.<\/p>\n
D. If Tenant is an individual who uses and\/or occupies the Premises
\nwith partners, or if Tenant is a partnership, then:<\/p>\n
(i) Each present and future partner shall be personally bound
\nby and upon all of the covenants, agreements, terms, provisions and conditions
\nset forth in this Lease on the part of Tenant to be performed; and<\/p>\n
(ii) In confirmation of the foregoing, Landlord may (but
\nwithout being required to do so) request (and Tenant shall duly comply) that
\nTenant, at the time that Tenant admits any new partner to its partnership, shall
\nrequire each such new partner to execute an agreement in form and substance
\nsatisfactory to Landlord whereby such new partner shall agree to be personally
\nbound by and upon all of the covenants, agreements, terms, provisions and
\nconditions of this Lease on the part of Tenant to be<\/p>\n
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\n 40
\nperformed, without regard to the time when such new partner is admitted to
\npartnership or when any obligations under any such covenants, etc., accrue.<\/p>\n
E. The listing of any name other than that of Tenant, whether on the
\ndoors of the Premises or on the Building directory, or otherwise, shall not
\noperate to vest in any such other person, firm or corporation any right or
\ninterest in this Lease or in the Premises or be deemed to effect or evidence any
\nconsent of Landlord, it being expressly understood that any such listing is a
\nprivilege extended by Landlord revocable at will by written notice to Tenant.<\/p>\n
F. If this Lease be assigned, or if the Premises or any part thereof be
\nsublet or occupied by anybody other than Tenant, Landlord may, at any time and
\nfrom time to time, collect rent and other charges from the assignee, subtenant
\nor occupant, and apply the net amount collected to the rent and other charges
\nherein reserved then due and thereafter becoming due, but no such assignment,
\nsubletting, occupancy or collection shall be deemed a waiver of this covenant,
\nor the acceptance of the assignee, subtenant or occupant as a tenant, or a
\nrelease of Tenant from the further performance by Tenant of covenants on the
\npart of Tenant herein contained. Any consent by Landlord to a particular
\nassignment or subletting shall not in any way diminish the prohibition stated in
\nthe first sentence of this Article 16 or the continuing liability of the Tenant
\nnamed on Exhibit 1 as the party Tenant under this Lease. No assignment or
\nsubletting shall affect the purpose for which the Premises may be used as stated
\nin Exhibit 1.<\/p>\n
G. Tenant agrees that in no event shall this Lease be assigned, or all
\nor any portion of the Premises be sublet, to any of the following entities:
\nGardner Group, Inc.; META Group, Inc.; GIGA Information Group, Inc.; Jupiter
\nCommunications; The Yankee Group, a subsidiary of Primark Corporation; Odyssey
\nResearch; and Mainspring Communications, Inc.<\/p>\n
17. MISCELLANEOUS COVENANTS<\/p>\n
Tenant covenants and agrees as follows:<\/p>\n
17.1 RULES AND REGULATIONS. Tenant will faithfully observe and comply
\nwith the Rules and Regulations, if any, annexed hereto and such other and
\nfurther reasonable Rules and Regulations as Landlord hereafter at any time or
\nfrom time to time may make and may communicate in writing to Tenant, which in
\nthe reasonable judgment of Landlord shall be necessary for the reputation,
\nsafety, care or appearance of the Building, or the preservation of good order
\ntherein, or the operation or maintenance of the Building, or the equipment
\nthereof, or the comfort of tenants or others in the Building, provided, however,
\nthat in the case of any conflict between the provisions of this Lease and any
\nsuch regulations, the provisions of this Lease shall control, and provided
\nfurther that nothing contained in this Lease shall be construed to impose upon
\nLandlord any duty or obligation to enforce the Rules and Regulations or the
\nterms, covenants or conditions in any other lease as against any other tenant
\nand Landlord shall not be liable to Tenant for violation of the same by any
\nother tenant, its servants, employees, agents, contractors, visitors, invitees
\nor licensees. Notwithstanding anything to the contrary in this Lease contained,
\nLandlord agrees that it will not enforce said Rules and Regulations against
\nTenant in a discriminatory or arbitrary manner.<\/p>\n
17.2 ACCESS TO PREMISES–SHORING. Tenant shall: (i) permit Landlord to
\nerect, use and maintain pipes, ducts and conduits in and through the Premises,
\nprovided the same do not materially reduce the floor area or materially
\nadversely affect the appearance thereof; (ii) upon reasonable prior oral notice
\n(except that no notice shall be required in emergency situations), permit
\nLandlord and any mortgagee of the Building or the Building and land or of the
\ninterest of Landlord therein, and any lessor under any ground or underlying
\nlease, and their representatives, to have free and unrestricted access to and to
\nenter upon the Premises at all reasonable hours for the purposes of inspection
\nor of making repairs, replacements or improvements in or to the Premises or the
\nBuilding or equipment (including, without<\/p>\n
-31-
\n 41
\nlimitation, sanitary, electrical, heating, air conditioning or other systems) or
\nof complying with all laws, orders and requirements of governmental or other
\nauthority or of exercising any right reserved to Landlord by this Lease
\n(including the right during the progress of any such repairs, replacements or
\nimprovements or while performing work and furnishing materials in connection
\nwith compliance with any such laws, orders or requirements to take upon or
\nthrough, or to keep and store within, the Premises all necessary materials,
\ntools and equipment); and (iii) permit Landlord, at reasonable times, upon
\nreasonable advance notice, to show the Premises during ordinary business hours
\nto any existing or prospective mortgagee, ground lessor, space lessee,
\npurchaser, or assignee of any mortgage, of the Building or of the Building and
\nthe land or of the interest of Landlord therein, and during the period of 12
\nmonths next preceding the Termination Date to any person contemplating the
\nleasing of the Premises or any part thereof. If, during the last month of the
\nterm, Tenant shall have removed all or substantially all of Tenant’s property
\ntherefrom, Landlord may immediately enter and alter, renovate and redecorate the
\nPremises, without elimination or abatement of rent, or incurring liability to
\nTenant for any compensation, and such acts shall have no effect upon this Lease.
\nIf Tenant shall not be personally present to open and permit an entry into the
\nPremises at any time when for any reason an entry therein shall be necessary or
\npermissible, Landlord or Landlord’s agents may enter the same by a master key,
\nor may forcibly enter the same, without rendering Landlord or such agents liable
\ntherefor (if during such entry Landlord or Landlord’s agents shall accord
\nreasonable care to Tenant’s property), and without in any manner affecting the
\nobligations and covenants of this Lease. Provided that Landlord shall incur no
\nadditional expense thereby, Landlord shall exercise its rights of access to the
\nPremises permitted under any of the terms and provisions of this Lease in such
\nmanner as to minimize to the extent practicable interference with Tenant’s use
\nand occupation of the Premises. If an excavation shall be made upon land
\nadjacent to the Premises or shall be authorized to be made, Tenant shall afford
\nto the person causing or authorized to cause such excavation, license to enter
\nupon the Premises for the purpose of doing such work as said person shall deem
\nnecessary to preserve the Building from injury or damage and to support the same
\nby proper foundations without any claims for damages or indemnity against
\nLandlord, or diminution or abatement of rent.<\/p>\n
17.3 ACCIDENTS TO SANITARY AND OTHER SYSTEMS. Tenant shall give to
\nLandlord prompt notice of any fire or accident in the Premises or in the
\nBuilding and of any damage to, or defective condition in, any part or
\nappurtenance of the Building including, without limitation, sanitary,
\nelectrical, ventilation, heating and air conditioning or other systems located
\nin, or passing through, the Premises. Except as otherwise provided in Articles
\n18 and 20, and subject to Tenant’s obligations in Article 14, such damage or
\ndefective condition shall be remedied by Landlord with reasonable diligence, but
\nif such damage or defective condition was caused by Tenant or by the employees,
\nlicensees, contractors or invitees of Tenant, the cost to remedy the same shall
\nbe paid by Tenant. In addition, all reasonable costs incurred by Landlord in
\nconnection with the investigation of any notice given by Tenant shall be paid by
\nTenant if the reported damage or defective condition was caused by Tenant or by
\nthe employees, licensees, contractors, or invitees of Tenant. Tenant shall not
\nbe entitled to claim any eviction from the Premises or any damages arising from
\nany such damage or defect unless the same (i) shall have been occasioned by the
\nnegligence of the Landlord, its agents, servants or employees and (ii) shall
\nnot, after notice to Landlord of the condition claimed to constitute negligence,
\nhave been cured or corrected within a reasonable time after such notice has been
\nreceived by Landlord; and in case of a claim of eviction unless such damage or
\ndefective condition shall have rendered the Premises untenantable and they shall
\nnot have been made tenantable by Landlord within a reasonable time.<\/p>\n
17.4 SIGNS, BLINDS AND DRAPES. Tenant shall put no signs in any part of
\nthe Building. No signs or blinds may be put on or in any window or elsewhere if
\nvisible from the exterior of the Building, nor may the building standard drapes
\nor blinds be removed by Tenant. Tenant may hang its own drapes, provided that
\nthey shall not in any way interfere with the building standard drapery or blinds
\nor be visible from the exterior of the Building and that such drapes are so hung
\nand installed that when drawn, the building standard drapery or blinds are
\nautomatically also drawn. Any signs or lettering in the public corridors or on
\nthe doors shall conform to Landlord’s building standard design. Neither
\nLandlord’s name,<\/p>\n
-32-
\n 42
\nnor the name of the Building or any Center, Office Park or other Park of which
\nthe Building is a part, or the name of any other structure erected therein shall
\nbe used without Landlord’s consent in any advertising material (except on
\nbusiness stationery or as an address in advertising matter), nor shall any such
\nname, as aforesaid, be used in any undignified, confusing, detrimental or
\nmisleading manner.<\/p>\n
Provided that and for so long as Akamai Technologies, Inc., itself or
\nan Assignee or Affiliated Entity (as those terms are defined in Article 16) is
\n(i) prior to the Term Commencement Date in respect of Portion B, occupying and
\npaying rent on some part of the Premises, and (ii) after the Term Commencement
\nDate in respect of Portion B, occupying and paying rent on not less than ninety
\npercent (90%) of the entirety of Floors 2 through 7 of the Building, Tenant (or
\nan Assignee or Affiliated Entity occupying the Premises as aforesaid) shall have
\nthe non-exclusive right to erect and maintain not more than two signs on the
\nexterior of the Building (individually and collectively, the “Exterior Sign”) as
\ndescribed in and subject to the restrictions contained in Exhibit 7 attached
\nhereto, provided (i) the Exterior Sign complies with all applicable laws and
\nshall not interfere with the Landlord’s signage program for the Building and
\nComplex (and Tenant shall have obtained any necessary permits prior to erecting
\nthe Exterior Sign), (ii) the Exterior Sign shall be located as described in
\nExhibit 7, (iii) the materials, design and lighting of the Exterior Sign, and
\nany requested changes thereto, shall be subject to Landlord’s prior written
\napproval, which approval shall not be unreasonably withheld, and (iv) Tenant
\nshall at all times maintain the Exterior Sign in good order and condition and
\nshall remove the Exterior Signs at the expiration or earlier termination of the
\nterm hereof or upon Landlord’s written demand after the failure of condition
\n(ii) above, and shall repair any damage to the Building caused by the Exterior
\nSign or its installation or removal. Landlord agrees, at Tenant’s cost, to
\nreasonably cooperate with Tenant in obtaining any necessary governmental
\napprovals, permits, etc. in connection with the Exterior Sign.<\/p>\n
17.5 ESTOPPEL CERTIFICATE. Either party shall at any time and from time
\nto time upon not less than twenty (20) days’ prior notice by the other party,
\nexecute, acknowledge and deliver to the requesting party a statement in writing
\ncertifying that this Lease is unmodified and in full force and effect (or if
\nthere have been modifications, that the same is in full force and effect as
\nmodified and stating the modifications), and the dates to which the Yearly Rent
\nand other charges have been paid in advance, if any, stating whether or not the
\nother party is in default in performance of any covenant, agreement, term,
\nprovision or condition contained in this Lease and, if so, specifying each such
\ndefault and such other facts as the requesting party may reasonably request, it
\nbeing intended that any such statement delivered pursuant hereto may be relied
\nupon by any prospective purchaser of the Building or of the Building and the
\nland or of any interest of Landlord therein, any mortgagee or prospective
\nmortgagee thereof, any lessor or prospective lessor thereof, any lessee or
\nprospective lessee thereof, or any prospective assignee of any mortgage thereof.
\nTime is of the essence in respect of any such requested certificate, Tenant
\nhereby acknowledging the importance of such certificates in mortgage financing
\narrangements, prospective sale and the like. Tenant hereby appoints Landlord
\nTenant’s attorney-in-fact in its name and behalf to execute such statement if
\nTenant shall fail to execute such statement within such twenty-(20)-day period.<\/p>\n
17.6 PROHIBITED MATERIALS AND PROPERTY. Tenant shall not bring or
\npermit to be brought or kept in or on the Premises or elsewhere in the Building
\n(i) any inflammable, combustible or explosive fluid, material, chemical or
\nsubstance including, without limitation, any hazardous substances as defined
\nunder Massachusetts General Laws chapter 21E, the Federal Comprehensive
\nEnvironmental Response Compensation and Liability Act (CERCLA), 42 USC
\nSection 9601 et seq., as amended, under Section 3001 of the Federal Resource
\nConservation and Recovery Act of 1976, as amended, or under any regulation of
\nany governmental authority regulating environmental or health matters (except
\nfor standard office supplies stored in proper containers), (ii) any materials,
\nappliances or equipment (including, without limitation, materials, appliances
\nand equipment selected by Tenant for the construction or other preparation of
\nthe Premises and furniture and carpeting) which pose any danger to life, safety
\nor health or may cause damage, injury or death; (iii) any unique, unusually
\nvaluable, rare or exotic property, work of art or the like unless the same is
\nfully insured under all-risk coverage, or (iv) any data processing, electronic,
\noptical or other equipment or property of a delicate, fragile or vulnerable
\nnature unless the same are housed,<\/p>\n
-33-
\n 43
\nshielded and protected against harm and damage, whether by cleaning or
\nmaintenance personnel, radiations or emanations from other equipment now or
\nhereafter installed in the Building, or otherwise. Nor shall Tenant cause or
\npermit any potentially harmful air emissions, odors of cooking or other
\nprocesses, or any unusual or other objectionable odors or emissions to emanate
\nfrom or permeate the Premises.<\/p>\n
17.7 REQUIREMENTS OF LAW–FINES AND PENALTIES. Tenant at its sole
\nexpense shall comply with all laws, rules, orders and regulations, including,
\nwithout limitation, all energy-related requirements, of Federal, State, County
\nand Municipal Authorities and with any direction of any public officer or
\nofficers, pursuant to law, which shall impose any duty upon Landlord or Tenant
\nwith respect to or arising out of Tenant’s use or occupancy of the Premises. In
\naddition, Tenant shall, at Tenant’s sole expense, for so long as the Parking and
\nTraffic Demand Management Plan dated May 9, 1999 as approved by (and subject to
\nthe conditions set for in such approval) the City of Cambridge on July 9, 1999
\nremains applicable to the Complex, offer to subsidize mass transit monthly
\npasses for all of its employees. Tenant shall reimburse and compensate Landlord
\nfor all expenditures made by, or damages or fines sustained or incurred by,
\nLandlord due to nonperformance or noncompliance with or breach or failure to
\nobserve any item, covenant, or condition of this Lease upon Tenant’s part to be
\nkept, observed, performed or complied with. If Tenant receives notice of any
\nviolation of law, ordinance, order or regulation applicable to the Premises, it
\nshall give prompt notice thereof to Landlord. Landlord shall comply with any
\nlaws, rules, orders, regulations, energy requirements (“Laws”) and with any
\ndirection of any public office or officer relating to the maintenance or
\noperation of the Building as an office building, and the costs so incurred by
\nLandlord shall be included in Operating Costs in accordance with the provisions
\nof Article 9. Landlord hereby represents to Tenant that, as of the Execution
\nDate of the Lease, Landlord has not received notice from any governmental agency
\nthat the Building or Premises are in violation of any applicable laws.<\/p>\n
17.8 TENANT’S ACTS–EFFECT ON INSURANCE. Tenant shall not do or permit
\nto be done any act or thing upon the Premises or elsewhere in the Building which
\nwill invalidate or be in conflict with any insurance policies covering the
\nBuilding and the fixtures and property therein; and shall not do, or permit to
\nbe done, any act or thing upon the Premises which shall subject Landlord to any
\nliability or responsibility for injury to any person or persons or to property
\nby reason of any business or operation being carried on upon said Premises or
\nfor any other reason. Tenant at its own expense shall comply with all rules,
\norders, regulations and requirements of the Board of Fire Underwriters, or any
\nother similar body having jurisdiction, and shall not (i) do, or permit anything
\nto be done, in or upon the Premises, or bring or keep anything therein, except
\nas now or hereafter permitted by the Fire Department, Board of Underwriters,
\nFire Insurance Rating Organization, or other authority having jurisdiction, and
\nthen only in such quantity and manner of storage as will not increase the rate
\nfor any insurance applicable to the Building, or (ii) use the Premises in a
\nmanner which shall increase such insurance rates on the Building, or on property
\nlocated therein, over that applicable when Tenant first took occupancy of the
\nPremises hereunder. If by reason of the failure of Tenant to comply with the
\nprovisions hereof the insurance rate applicable to any policy of insurance shall
\nat any time thereafter be higher than it otherwise would be, the Tenant shall
\nreimburse Landlord for that part of any insurance premiums thereafter paid by
\nLandlord, which shall have been charged because of such failure by Tenant.<\/p>\n
17.9 MISCELLANEOUS. Tenant shall not suffer or permit the Premises or
\nany fixtures, equipment or utilities therein or serving the same, to be
\noverloaded, damaged or defaced, nor permit any hole to be drilled or made in any
\npart thereof. Tenant shall not suffer or permit any employee, contractor,
\nbusiness invitee or visitor to violate any covenant, agreement or obligations of
\nthe Tenant under this Lease.<\/p>\n
18. DAMAGE BY FIRE, ETC.<\/p>\n
During the entire term of this Lease, and adjusting insurance coverages
\nto reflect current values from time to time:–(i) Landlord shall keep the
\nBuilding (excluding work, installations, improvements and<\/p>\n
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\n 44
\nbetterments made in either Portion of the Premises after the Term Commencement
\nDate in respect of such Portion of the Premises [called “Over-Building-Standard
\nProperty”] and any other property installed by or at the expense of Tenant)
\ninsured against loss or damage caused by any peril covered under fire, extended
\ncoverage and all risk insurance in an amount equal to one hundred percent (100%)
\nreplacement cost value above foundation walls; and (ii) Tenant shall keep its
\npersonal property in and about the Premises and the Over-Building-Standard
\nProperty insured against loss or damage caused by any peril covered under fire,
\nextended coverage and all risk insurance in an amount equal to one hundred
\npercent (100%) replacement cost value. Such Tenant’s insurance shall insure the
\ninterests of both Landlord and Tenant as their respective interests may appear
\nfrom time to time and shall name Landlord as an additional insured; and the
\nproceeds thereof shall be used only for the replacement or restoration of such
\npersonal property and the Over-Building-Standard Property.<\/p>\n
If any portion of the Premises required to be insured by Landlord under
\nthe preceding paragraph shall be damaged by fire or other insured casualty,
\nLandlord shall proceed with diligence, subject to the then applicable statutes,
\nbuilding codes, zoning ordinances, and regulations of any governmental
\nauthority, and at the expense of Landlord (but only to the extent of insurance
\nproceeds made available to Landlord by any mortgagee and\/or ground lessor of the
\nreal property of which the Premises are a part) to repair or cause to be
\nrepaired such damage, provided, however, in respect of any over-Building
\nStandard Property as shall have been damaged by such fire or other casualty and
\nwhich (in the judgment of Landlord) can more effectively be repaired as an
\nintegral part of Landlord’s repair work on the Premises, that such repairs to
\nsuch Tenant’s alterations, decorations, additions and improvements shall be
\nperformed by Landlord but at Tenant’s expense; in all other respects, all
\nrepairs to and replacements of Tenant’s property and Over-Building-Standard
\nProperty shall be made by and at the expense of Tenant. If the Premises or any
\npart thereof shall have been rendered unfit for use and occupation hereunder by
\nreason of such damage the Yearly Rent or a just and proportionate part thereof,
\naccording to the nature and extent to which the Premises shall have been so
\nrendered unfit, shall be suspended or abated until the Premises (except as to
\nthe property which is to be repaired by or at the expense of Tenant) shall have
\nbeen restored as nearly as practicably may be to the condition in which they
\nwere immediately prior to such fire or other casualty. Tenant agrees to
\ncooperate with Landlord in such manner as Landlord may reasonably request in
\nassisting Landlord in collecting insurance proceeds due in connection with any
\ncasualty which affects the Premises. Landlord shall not be liable for delays in
\nthe making of any such repairs which are due to government regulation,
\ncasualties and strikes, unavailability of labor and materials, and other causes
\nbeyond the reasonable control of Landlord, nor shall Landlord be liable for any
\ninconvenience or annoyance to Tenant or injury to the business of Tenant
\nresulting from delays in repairing such damage.<\/p>\n
Landlord’s Termination Rights. If (i) the Premises are so damaged by
\nfire or other casualty (whether or not insured) at any time during the last
\nthirty months of the term hereof that the cost to repair such damage is
\nreasonably estimated to exceed one third of the total Yearly Rent payable
\nhereunder for the period from the estimated date of restoration until the
\nTermination Date, or (ii) the Building (whether or not including any portion of
\nthe Premises) is so damaged by fire or other casualty (whether or not insured)
\nthat substantial alteration or reconstruction or demolition of the Building
\nshall in Landlord’s judgment be required, then and in either of such events,
\nthis Lease and the term hereof may be terminated at the election of Landlord by
\na notice in writing of its election so to terminate which shall be given by
\nLandlord to Tenant within sixty (60) days following such fire or other casualty,
\nthe effective termination date of which shall be not less than thirty (30) days
\nafter the day on which such termination notice is received by Tenant. In the
\nevent of any termination, this Lease and the term hereof shall expire as of such
\neffective termination date as though that were the Termination Date as stated in
\nExhibit 1 and the Yearly Rent shall be apportioned as of such date; and if the
\nPremises or any part thereof shall have been rendered unfit for use and
\noccupation by reason of such damage the Yearly Rent for the period from the date
\nof the fire or other casualty to the effective termination date, or a just and
\nproportionate part thereof, according to the nature and extent to which the
\nPremises shall have been so rendered unfit, shall be abated.<\/p>\n
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\n 45
\n Tenant’s Termination Rights. In the event that the premises or the
\nBuilding are damaged by fire or other casualty to such an extent so as to render
\nthe premises untenantable, and if Landlord shall fail to substantially complete
\nsaid repairs or restoration within two hundred fifty (250) days (sixty (60) days
\nin the case of a fire or other casualty occurring during the last twelve (12)
\nmonths of the term hereof, as the same may have been extended) after the date of
\nsuch fire or other casualty for any reason other than Tenant’s fault, Tenant may
\nterminate this Lease by giving Landlord written notice as follows:<\/p>\n
(a) Said notice shall be given after said two hundred fifty (250)
\n day period or sixty (60) day period, as the case may be.<\/p>\n
(b) Said notice shall set forth an effective date which is not
\n earlier than thirty (30) days after Landlord receives said
\n notice.<\/p>\n
(c) If said repairs or restoration are substantially complete on
\n or before the date thirty (30) days (which thirty-(30)-day
\n period shall be extended by the length of any delays caused by
\n Tenant or Tenant’s contractors) after Landlord receives such
\n notice, said notice shall have no further force and effect.<\/p>\n
(d) If said repairs or restoration are not substantially complete
\n on or before the date thirty (30) days (which thirty-(30)-day
\n period shall be extended by the length of any delays caused by
\n Tenant or Tenant’s contractors) after Landlord receives such
\n notice, the Lease shall terminate as of said effective date.<\/p>\n
19. WAIVER OF SUBROGATION<\/p>\n
In any case in which Tenant shall be obligated to pay to Landlord any
\nloss, cost, damage, liability, or expense suffered or incurred by Landlord,
\nLandlord shall allow to Tenant as an offset against the amount thereof (i) the
\nnet proceeds of any insurance collected by Landlord for or on account of such
\nloss, cost, damage, liability or expense, provided that the allowance of such
\noffset does not invalidate or prejudice the policy or policies under which such
\nproceeds were payable, and (ii) if such loss, cost, damage, liability or expense
\nshall have been caused by a peril against which Landlord has agreed to procure
\ninsurance coverage under the terms of this Lease, the amount of such insurance
\ncoverage, whether or not actually procured by Landlord.<\/p>\n
In any case in which Landlord or Landlord’s managing agent shall be
\nobligated to pay to Tenant any loss, cost, damage, liability or expense suffered
\nor incurred by Tenant, Tenant shall allow to Landlord or Landlord’s managing
\nagent, as the case may be, as an offset against the amount thereof (i) the net
\nproceeds of any insurance collected by Tenant for or on account of such loss,
\ncost, damage, liability, or expense, provided that the allowance of such offset
\ndoes not invalidate the policy or policies under which such proceeds were
\npayable and (ii) the amount of any loss, cost, damage, liability or expense
\ncaused by a peril covered by fire insurance with the broadest form of property
\ninsurance generally available on property in buildings of the type of the
\nBuilding, whether or not actually procured by Tenant.<\/p>\n
The parties hereto shall each procure an appropriate clause in, or
\nendorsement on, any property insurance policy covering the Premises and the
\nBuilding and personal property, fixtures and equipment located thereon and
\ntherein, pursuant to which the insurance companies waive subrogation or consent
\nto a waiver of right of recovery in favor of either party, its respective agents
\nor employees. Having obtained such clauses and\/or endorsements, each party
\nhereby agrees that it will not make any claim against or seek to recover from
\nthe other or its agents or employees for any loss or damage to its property or
\nthe property of others resulting from fire or other perils covered by such
\nproperty insurance.<\/p>\n
-36-
\n 46<\/p>\n
20. CONDEMNATION – EMINENT DOMAIN<\/p>\n
In the event that the Premises or any part thereof, or the whole or any
\npart of the Building, shall be taken or appropriated by eminent domain or shall
\nbe condemned for any public or quasi-public use, or (by virtue of any such
\ntaking, appropriation or condemnation) shall suffer any damage (direct, indirect
\nor consequential) for which Landlord or Tenant shall be entitled to
\ncompensation, then (and in any such event) this Lease and the term hereof may be
\nterminated at the election of Landlord by a notice in writing of its election so
\nto terminate which shall be given by Landlord to Tenant within sixty (60) days
\nfollowing the date on which Landlord shall have received notice of such taking,
\nappropriation or condemnation. In the event that a substantial part of the
\nPremises or of the means of access thereto shall be so taken, appropriated or
\ncondemned, then (and in any such event) this Lease and the term hereof may be
\nterminated at the election of Tenant by a notice in writing of its election so
\nto terminate which shall be given by Tenant to Landlord within sixty (60) days
\nfollowing the date on which Tenant shall have received notice of such taking,
\nappropriation or condemnation.<\/p>\n
Upon the giving of any such notice of termination (either by Landlord
\nor Tenant) this Lease and the term hereof shall terminate on or retroactively as
\nof the date on which Tenant shall be required to vacate any part of the Premises
\nor shall be deprived of a substantial part of the means of access thereto,
\nprovided, however, that Landlord may in Landlord’s notice elect to terminate
\nthis Lease and the term hereof retroactively as of the date on which such
\ntaking, appropriation or condemnation became legally effective. In the event of
\nany such termination, this Lease and the term hereof shall expire as of such
\neffective termination date as though that were the Termination Date as stated in
\nExhibit 1, and the Yearly Rent shall be apportioned as of such date. If neither
\nparty (having the right so to do) elects to terminate Landlord will, with
\nreasonable diligence and at Landlord’s expense, restore the remainder of the
\nPremises, or the remainder of the means of access, as nearly as practicably may
\nbe to the same condition as obtained prior to such taking, appropriation or
\ncondemnation in which event (i) the Total Rentable Area shall be adjusted as in
\nExhibit 5 provided, (ii) a just proportion of the Yearly Rent, according to the
\nnature and extent of the taking, appropriation or condemnation and the resulting
\npermanent injury to the Premises and the means of access thereto, shall be
\npermanently abated, and (iii) a just proportion of the remainder of the Yearly
\nRent, according to the nature and extent of the taking, appropriation or
\ncondemnation and the resultant injury sustained by the Premises and the means of
\naccess thereto, shall be abated until what remains of the Premises and the means
\nof access thereto shall have been restored as fully as may be for permanent use
\nand occupation by Tenant hereunder. Except for any award specifically
\nreimbursing Tenant for moving or relocation expenses, there are expressly
\nreserved to Landlord all rights to compensation and damages created, accrued or
\naccruing by reason of any such taking, appropriation or condemnation, in
\nimplementation and in confirmation of which Tenant does hereby acknowledge that
\nLandlord shall be entitled to receive all such compensation and damages, grant
\nto Landlord all and whatever rights (if any) Tenant may have to such
\ncompensation and damages, and agree to execute and deliver all and whatever
\nfurther instruments of assignment as Landlord may from time to time request. In
\nthe event of any taking of the Premises or any part thereof for temporary (i.e.,
\nnot in excess of one (1) year) use, (i) this Lease shall be and remain
\nunaffected thereby, and (ii) Tenant shall be entitled to receive for itself any
\naward made to the extent allocable to the Premises in respect of such taking on
\naccount of such use, provided, that if any taking is for a period extending
\nbeyond the term of this Lease, such award shall be apportioned between Landlord
\nand Tenant as of the Termination Date or earlier termination of this Lease.<\/p>\n
21. DEFAULT<\/p>\n
21.1 CONDITIONS OF LIMITATION – RE-ENTRY – TERMINATION. This Lease and
\nthe herein term and estate are, upon the condition that if (a) subject to
\nArticle 21.7, Tenant shall neglect or fail to perform or observe any of the
\nTenant’s covenants or agreements herein, including (without limitation) the
\ncovenants or agreements with regard to the payment when due of rent, additional
\ncharges, reimbursement for increase in Landlord’s costs, or any other charge
\npayable by Tenant to Landlord (all of which shall be<\/p>\n
-37-
\n 47
\nconsidered as part of Yearly Rent for the purposes of invoking Landlord’s
\nstatutory or other rights and remedies in respect of payment defaults); or (b)
\nTenant shall desert or abandon the Premises or the same shall become vacant
\n(whether or not the keys shall have been surrendered or the rent shall have been
\npaid); or (c) Tenant shall be involved in financial difficulties as evidenced by
\nan admission in writing by Tenant of Tenant’s inability to pay its debts
\ngenerally as they become due, or by the making or offering to make a composition
\nof its debts with its creditors; or (d) Tenant shall make an assignment or trust
\nmortgage, or other conveyance or transfer of like nature, of all or a
\nsubstantial part of its property for the benefit of its creditors, or (e) an
\nattachment on mesne process, on execution or otherwise, or other legal process
\nshall issue against Tenant or its property and a sale of any of its assets shall
\nbe held thereunder; or (f) any judgment, final beyond appeal or any lien,
\nattachment or the like in excess of [$250,000.00] shall be entered, recorded or
\nfiled against Tenant in any court, registry, etc. and Tenant shall fail to pay
\nsuch judgment within thirty (30) days after the judgment shall have become final
\nbeyond appeal or to discharge or secure by surety bond such lien, attachment,
\netc. within thirty (30) days of such entry, recording or filing, as the case may
\nbe; or (g) the leasehold hereby created shall be taken on execution or by other
\nprocess of law and shall not be revested in Tenant within thirty (30) days
\nthereafter; or (h) a receiver, sequesterer, trustee or similar officer shall be
\nappointed by a court of competent jurisdiction to take charge of all or any part
\nof Tenant’s property and such appointment shall not be vacated within thirty
\n(30) days; or (i) any proceeding shall be instituted by or against Tenant
\npursuant to any of the provisions of any Act of Congress or State law relating
\nto bankruptcy, reorganizations, arrangements, compositions or other relief from
\ncreditors, and, in the case of any proceeding instituted against it, if Tenant
\nshall fail to have such proceedings dismissed within thirty (30) days or if
\nTenant is adjudged bankrupt or insolvent as a result of any such proceeding, or
\n(j) any event shall occur or any contingency shall arise whereby this Lease, or
\nthe term and estate thereby created, would (by operation of law or otherwise)
\ndevolve upon or pass to any person, firm or corporation other than Tenant,
\nexcept as expressly permitted under Article 16 hereof – then, and in any such
\nevent (except as hereinafter in Article 21.2 otherwise provided) Landlord may,
\nby notice to Tenant, elect to terminate this Lease; and thereupon (and without
\nprejudice to any remedies which might otherwise be available for arrears of rent
\nor other charges due hereunder or preceding breach of covenant or agreement and
\nwithout prejudice to Tenant’s liability for damages as hereinafter stated), upon
\nthe giving of such notice, this Lease shall terminate as of the date specified
\ntherein as though that were the Termination Date as stated in Exhibit 1. Without
\nbeing taken or deemed to be guilty of any manner of trespass or conversion, and
\nwithout being liable to indictment, prosecution or damages therefor, Landlord
\nmay, forcibly if necessary, enter into and upon the Premises (or any part
\nthereof in the name of the whole); repossess the same as of its former estate;
\nand expel Tenant and those claiming under Tenant. Wherever “Tenant ” is used in
\nsubdivisions (c), (d), (e), (f), (g), (h) and (i) of this Article 21.1, it shall
\nbe deemed to include any one of (i) any corporation of which Tenant is a
\ncontrolled subsidiary and (ii) any guarantor of any of Tenant’s obligations
\nunder this Lease. The words “re-entry” and “re-enter” as used in this Lease are
\nnot restricted to their technical legal meanings.<\/p>\n
21.2 INTENTIONALLY OMITTED.<\/p>\n
21.3 DAMAGES – TERMINATION. Upon the termination of this Lease under
\nthe provisions of this Article 21, then except as hereinabove in Article 21.2
\notherwise provided, Tenant shall pay to Landlord the rent and other charges
\npayable by Tenant to Landlord up to the time of such termination, shall continue
\nto be liable for any preceding breach of covenant, and in addition, shall pay to
\nLandlord as damages, at the election of Landlord<\/p>\n
either:<\/p>\n
(x) the amount by which, at the time of the termination of
\nthis Lease (or at any time thereafter if Landlord shall have initially elected
\ndamages under subparagraph (y), below), (i) the aggregate of the rent and other
\ncharges projected over the period commencing with such termination and ending on
\nthe Termination Date as stated in Exhibit 1 exceeds (ii) the aggregate projected
\nrental value of the Premises for such period;<\/p>\n
-38-
\n 48
\n or:<\/p>\n
(y) amounts equal to the rent and other charges which would
\nhave been payable by Tenant had this Lease not been so terminated, payable upon
\nthe due dates therefor specified herein following such termination and until the
\nTermination Date as specified in Exhibit 1, provided, however, if Landlord shall
\nre-let the Premises during such period, that Landlord shall credit Tenant with
\nthe net rents received by Landlord from such re-letting, such net rents to be
\ndetermined by first deducting from the gross rents as and when received by
\nLandlord from such re-letting the expenses incurred or paid by Landlord in
\nterminating this Lease, as well as the expenses of re-letting, including
\naltering and preparing the Premises for new tenants, brokers’ commissions, and
\nall other similar and dissimilar expenses properly chargeable against the
\nPremises and the rental therefrom, it being understood that any such re-letting
\nmay be for a period equal to or shorter or longer than the remaining term of
\nthis Lease; and provided, further, that (i) in no event shall Tenant be entitled
\nto receive any excess of such net rents over the sums payable by Tenant to
\nLandlord hereunder and (ii) in no event shall Tenant be entitled in any suit for
\nthe collection of damages pursuant to this Subparagraph (y) to a credit in
\nrespect of any net rents from a re-letting except to the extent that such net
\nrents are actually received by Landlord prior to the commencement of such suit.
\nIf the Premises or any part thereof should be re-let in combination with other
\nspace, then proper apportionment on a square foot area basis shall be made of
\nthe rent received from such re-letting and of the expenses of re-letting.<\/p>\n
In calculating the rent and other charges under Subparagraph (x),
\nabove, there shall be included, in addition to the Yearly Rent, Tax Excess and
\nOperating Expense Excess and all other considerations agreed to be paid or
\nperformed by Tenant, on the assumption that all such amounts and considerations
\nwould have remained constant (except as herein otherwise provided) for the
\nbalance of the full term hereby granted.<\/p>\n
Suit or suits for the recovery of such damages, or any installments
\nthereof, may be brought by Landlord from time to time at its election, and
\nnothing contained herein shall be deemed to require Landlord to postpone suit
\nuntil the date when the term of this Lease would have expired if it had not been
\nterminated hereunder.<\/p>\n
Nothing herein contained shall be construed as limiting or precluding
\nthe recovery by Landlord against Tenant of any sums or damages to which, in
\naddition to the damages particularly provided above, Landlord may lawfully be
\nentitled by reason of any default hereunder on the part of Tenant.<\/p>\n
21.4 FEES AND EXPENSES.<\/p>\n
(a) If Tenant shall default in the performance of any covenant
\non Tenant’s part to be performed as in this Lease contained, Landlord may, upon
\nreasonable advance notice, except that no notice shall be required in an
\nemergency, immediately, or at any time thereafter, without notice, perform the
\nsame for the account of Tenant. If Landlord at any time is compelled to pay or
\nelects to pay any sum of money, or do any act which will require the payment of
\nany sum of money, by reason of the failure of Tenant to comply with any
\nprovision hereof, or if Landlord is compelled to or does incur any expense,
\nincluding reasonable attorneys’ fees, in instituting, prosecuting, and\/or
\ndefending any action or proceeding instituted by reason of any default of Tenant
\nhereunder, Tenant shall on demand pay to Landlord by way of reimbursement the
\nsum or sums so paid by Landlord with all costs and damages, plus interest
\ncomputed as provided in Article 6 hereof.<\/p>\n
(b) Tenant shall pay Landlord’s cost and expense, including
\nreasonable attorneys’ fees, incurred (i) in enforcing any obligation of Tenant
\nunder this Lease or (ii) as a result of Landlord, without its fault, being made
\nparty to any litigation pending by or against Tenant or any persons claiming
\nthrough or under Tenant. Tenant shall not be obligated to make any payment to
\nLandlord of any<\/p>\n
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\n 49
\nattorneys’ fees incurred by Landlord unless judgment is entered (final, and
\nbeyond appeal) in favor of Landlord in the lawsuit relating to such fees.
\nLandlord shall pay, upon demand by Tenant, reasonable attorneys’ fees incurred
\nby Tenant in connection with any lawsuit between Landlord and Tenant where
\njudgment is entered (final, and beyond appeal) in favor of Tenant.<\/p>\n
21.5 WAIVER OF REDEMPTION. Tenant does hereby waive and surrender all
\nrights and privileges which it might have under or by reason of any present or
\nfuture law to redeem the Premises or to have a continuance of this Lease for the
\nterm hereby demised after being dispossessed or ejected therefrom by process of
\nlaw or under the terms of this Lease or after the termination of this Lease as
\nherein provided.<\/p>\n
21.6 LANDLORD’S REMEDIES NOT EXCLUSIVE. The specified remedies to which
\nLandlord may resort hereunder are cumulative and are not intended to be
\nexclusive of any remedies or means of redress to which Landlord may at any time
\nbe lawfully entitled, and Landlord may invoke any remedy (including the remedy
\nof specific performance) allowed at law or in equity as if specific remedies
\nwere not herein provided for.<\/p>\n
21.7 GRACE PERIOD. Notwithstanding anything to the contrary in this
\nArticle contained, Landlord agrees not to take any action to terminate this
\nLease (a) for default by Tenant in the payment when due of any sum of money, if
\nTenant shall cure such default within five (5) business days after written
\nnotice thereof is given by Landlord to Tenant, or (b) for default by Tenant in
\nthe performance of any covenant other than a covenant to pay a sum of money, if
\nTenant shall cure such default within a period of thirty (30) days after written
\nnotice thereof given by Landlord to Tenant (except where the nature of the
\ndefault is such that remedial action should appropriately take place sooner, as
\nindicated in such written notice), or within such additional period as may
\nreasonably be required to cure such default if (because of governmental
\nrestrictions or any other cause beyond the reasonable control of Tenant) the
\ndefault is of such a nature that it cannot reasonably be cured within such
\nthirty-(30)-day period, provided, however, (1) that there shall be no extension
\nof time beyond such thirty-(30)-day period for the curing of any such default
\nunless, not more than ten (10) days after the receipt of the notice of default,
\nTenant in writing (i) shall specify the cause on account of which the default
\ncannot be cured during such period and shall advise Landlord of its intention
\nduly to institute all steps necessary to cure the default and (ii) shall, as
\nsoon as reasonably practicable, duly institute and thereafter diligently
\nprosecute to completion all steps necessary to cure such default and, (2) that
\nno notice of the opportunity to cure a default need be given, and no grace
\nperiod whatsoever shall be allowed to Tenant, if the default is incurable or if
\nthe covenant or condition the breach of which gave rise to default had, by
\nreason of a breach on two (2) prior occasions within the immediately preceding
\ntwelve (12) month period, been the subject of a notice hereunder to cure such
\ndefault.<\/p>\n
Notwithstanding anything to the contrary in this Article 21.7
\ncontained, except to the extent prohibited by applicable law, any statutory
\nnotice and grace periods provided to Tenant by law are hereby expressly waived
\nby Tenant.<\/p>\n
22. END OF TERM – ABANDONED PROPERTY<\/p>\n
Upon the expiration or other termination of the term of this Lease,
\nTenant shall peaceably quit and surrender to Landlord the Premises and all
\nalterations and additions thereto, broom clean, in good order, repair and
\ncondition (except as provided herein and in Articles 8.7, 18 and 20) excepting
\nonly ordinary wear and use and damage by fire or other casualty for which, under
\nother provisions of this Lease, Tenant has no responsibility of repair or
\nrestoration. Tenant shall remove all of its property and, to the extent
\nspecified by Landlord, all alterations and additions made by Tenant and all
\npartitions wholly within the Premises, and shall repair any damages to the
\nPremises or the Building caused by their installation or by such removal.
\nTenant’s obligation to observe or perform this covenant shall survive the
\nexpiration or other termination of the term of this Lease.<\/p>\n
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\n 50
\n Tenant will remove any personal property from the Building and the
\nPremises upon or prior to the expiration or termination of this Lease and any
\nsuch property which shall remain in the Building or the Premises thereafter
\nshall be conclusively deemed to have been abandoned, and may either be retained
\nby Landlord as its property or sold or otherwise disposed of in such manner as
\nLandlord may see fit. If any part thereof shall be sold, that Landlord may
\nreceive and retain the proceeds of such sale and apply the same, at its option,
\nagainst the expenses of the sale, the cost of moving and storage, any arrears of
\nYearly Rent, additional or other charges payable hereunder by Tenant to Landlord
\nand any damages to which Landlord may be entitled under Article 21 hereof or
\npursuant to law.<\/p>\n
If Tenant or anyone claiming under Tenant shall remain in possession of
\nthe Premises or any part thereof after the expiration or prior termination of
\nthe term of this Lease without any agreement in writing between Landlord and
\nTenant with respect thereto, then, prior to the acceptance of any payments for
\nrent or use and occupancy by Landlord, the person remaining in possession shall
\nbe deemed a tenant-at-sufferance. Whereas the parties hereby acknowledge that
\nLandlord may need the Premises after the expiration or prior termination of the
\nterm of the Lease for other tenants and that the damages which Landlord may
\nsuffer as the result of Tenant’s holding-over cannot be determined as of the
\nExecution Date hereof, in the event that Tenant so holds over, Tenant shall pay
\nto Landlord in addition to all rental and other charges due and accrued under
\nthe Lease prior to the date of termination, charges (based upon fair market
\nrental value of the Premises) for use and occupation of the Premises thereafter
\nand, in addition to such sums and any and all other rights and remedies which
\nLandlord may have at law or in equity, an additional use and occupancy charge in
\nthe amount of fifty percent (50%) of either the Yearly Rent and other charges
\ncalculated (on a daily basis) at the highest rate payable under the terms of
\nthis Lease, but measured from the day on which Tenant’s hold-over commenced and
\nterminating on the day on which Tenant vacates the Premises or the fair market
\nvalue of the Premises for such period, whichever is greater. In addition, Tenant
\nshall save Landlord, its agents and employees, harmless and will exonerate,
\ndefend and indemnify Landlord, its agents and employees, from and against any
\nand all damages which Landlord may suffer on account of Tenant’s hold-over in
\nthe Premises after the expiration or prior termination of the term of the Lease.
\nNotwithstanding the foregoing, Tenant shall not be liable for consequential
\ndamages incurred by Landlord based upon any holdover by Tenant after the
\nexpiration or prior termination of the term of the Lease unless such holdover
\ncontinues for sixty (60) or more days after the termination of this Lease or
\nTenant’s right to possession.<\/p>\n
23. SUBORDINATION<\/p>\n
(a) Subject to any mortgagee’s or ground lessor’s election, as
\nhereinafter provided for, this Lease is subject and subordinate in all respects
\nto all matters of record (including, without limitation, deeds and land
\ndisposition agreements), ground leases and\/or underlying leases, and all
\nmortgages, any of which may now or hereafter be placed on or affect such leases
\nand\/or the real property of which the Premises are a part, or any part of such
\nreal property, and\/or Landlord’s interest or estate therein, and to each advance
\nmade and\/or hereafter to be made under any such mortgages, and to all renewals,
\nmodifications, consolidations, replacements and extensions thereof and all
\nsubstitutions therefor. This Article 23 shall be self-operative and no further
\ninstrument or subordination shall be required. In confirmation of such
\nsubordination, Tenant shall execute, acknowledge and deliver promptly any
\ncertificate or instrument that Landlord and\/or any mortgagee and\/or lessor under
\nany ground or underlying lease and\/or their respective successors in interest
\nmay request, subject to Landlord’s, mortgagee’s and ground lessor’s right to do
\nso for, on behalf and in the name of Tenant under certain circumstances, as
\nhereinafter provided. Tenant acknowledges that, where applicable, any consent or
\napproval hereafter given by Landlord may be subject to the further consent or
\napproval of such mortgagee and\/or ground lessor; and the failure or refusal of
\nsuch mortgagee and\/or ground lessor to give such consent or approval shall,
\nnotwithstanding anything to the contrary in this Lease contained, constitute
\nreasonable justification for Landlord’s withholding its consent or approval.
\nLandlord hereby represents to Tenant that, as of the Execution Date of this
\nLease, there is no mortgage affecting the Premises or the<\/p>\n
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\n 51
\nBuilding. Notwithstanding anything to the contrary in this Article 23 contained,
\nas to any future mortgages, ground leases, and\/or underlying lease or deeds of
\ntrust, the herein provided subordination and attornment shall be effective only
\nif the mortgagee, ground lessor or trustee therein, as the case may be, agrees,
\nby a written instrument in recordable form and in the customary form of such
\nmortgagee, ground lessor, or trustee (“Nondisturbance Agreement”) that, as long
\nas Tenant shall not be in terminable default of the obligations on its part to
\nbe kept and performed under the terms of this Lease, this Lease will not be
\naffected and Tenant’s possession hereunder will not be disturbed by any default
\nin, termination, and\/or foreclosure of, such mortgage, ground lease, and\/or
\nunderlying lease or deed of trust, as the case may be.<\/p>\n
(b) Any such mortgagee or ground lessor may from time to time
\nsubordinate or revoke any such subordination of the mortgage or ground lease
\nheld by it to this Lease. Such subordination or revocation, as the case may be,
\nshall be effected by written notice to Tenant and by recording an instrument of
\nsubordination or of such revocation, as the case may be, with the appropriate
\nregistry of deeds or land records and to be effective without any further act or
\ndeed on the part of Tenant. In confirmation of such subordination or of such
\nrevocation, as the case may be, Tenant shall execute, acknowledge and promptly
\ndeliver any certificate or instrument that Landlord, any mortgagee or ground
\nlessor may request, subject to Landlord’s, mortgagee’s and ground lessor’s right
\nto do so for, on behalf and in the name of Tenant under certain circumstances,
\nas hereinafter provided.<\/p>\n
(c) Without limitation of any of the provisions of this Lease, if any
\nground lessor or mortgagee shall succeed to the interest of Landlord by reason
\nof the exercise of its rights under such ground lease or mortgage (or the
\nacceptance of voluntary conveyance in lieu thereof) or any third party
\n(including, without limitation, any foreclosure purchaser or mortgage receiver)
\nshall succeed to such interest by reason of any such exercise or the expiration
\nor sooner termination of such ground lease, however caused, then such successor
\nmay, upon notice and request to Tenant (which, in the case of a ground lease,
\nshall be within thirty (30) days after such expiration or sooner termination),
\nsucceed to the interest of Landlord under this Lease, provided, however, that
\nsuch successor shall not: (i) be liable for any previous act or omission of
\nLandlord under this Lease; (ii) be subject to any offset, defense, or
\ncounterclaim which shall theretofore have accrued to Tenant against Landlord;
\n(iii) have any obligation with respect to any security deposit unless it shall
\nhave been paid over or physically delivered to such successor; or (iv) be bound
\nby any previous modification of this Lease or by any previous payment of Yearly
\nRent for a period greater than one (1) month, made without such ground lessor’s
\nor mortgagee’s consent where such consent is required by applicable ground lease
\nor mortgage documents. In the event of such succession to the interest of the
\nLandlord — and notwithstanding that any such mortgage or ground lease may
\nantedate this Lease — the Tenant shall attorn to such successor and shall ipso
\nfacto be and become bound directly to such successor in interest to Landlord to
\nperform and observe all the Tenant’s obligations under this Lease without the
\nnecessity of the execution of any further instrument. Nevertheless, Tenant
\nagrees at any time and from time to time during the term hereof to execute a
\nsuitable instrument in confirmation of Tenant’s agreement to attorn, as
\naforesaid, subject to Landlord’s, mortgagee’s and ground lessor’s right to do so
\nfor, on behalf and in the name of Tenant under certain circumstances, as
\nhereinafter provided.<\/p>\n
(d) The term “mortgage(s)” as used in this Lease shall include any
\nmortgage or deed of trust. The term “mortgagee(s)” as used in this Lease shall
\ninclude any mortgagee or any trustee and beneficiary under a deed of trust or
\nreceiver appointed under a mortgage or deed of trust. The term “mortgagor(s)” as
\nused in this Lease shall include any mortgagor or any grantor under a deed of
\ntrust.<\/p>\n
(e) Tenant hereby irrevocably constitutes and appoints Landlord or any
\nsuch mortgagee or ground lessor, and their respective successors in interest,
\nacting singly, Tenant’s attorney-in-fact to execute and deliver any such
\ncertificate or instrument for, on behalf and in the name of Tenant, but only if
\nTenant fails to execute, acknowledge and deliver any such certificate or
\ninstrument within twenty (20) days after Landlord or such mortgagee or such
\nground lessor has made written request therefor.<\/p>\n
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\n 52
\n (f) Notwithstanding anything to the contrary contained in this Article
\n23, if all or part of Landlord’s estate and interest in the real property of
\nwhich the Premises are a part shall be a leasehold estate held under a ground
\nlease, then: (i) the foregoing subordination provisions of this Article 23 shall
\nnot apply to any mortgages of the fee interest in said real property to which
\nLandlord’s leasehold estate is not otherwise subject and subordinate; and (ii)
\nthe provisions of this Article 23 shall in no way waive, abrogate or otherwise
\naffect any agreement by any ground lessor (x) not to terminate this Lease
\nincident to any termination of such ground lease prior to its term expiring or
\n(y) not to name or join Tenant in any action or proceeding by such ground lessor
\nto recover possession of such real property or for any other relief. As of the
\nExecution Date of this Lease, there is no ground lease of the Building or the
\nreal property of which the Building is a part.<\/p>\n
(g) In the event of any failure by Landlord to perform, fulfill or
\nobserve any agreement by Landlord herein, in no event will the Landlord be
\ndeemed to be in default under this Lease permitting Tenant to exercise any or
\nall rights or remedies under this Lease until the Tenant shall have given
\nwritten notice of such failure to any mortgagee (ground lessor and\/or trustee)
\nof which Tenant shall have been advised and until a reasonable period of time
\nshall have elapsed following the giving of such notice, during which such
\nmortgagee (ground lessor and\/or trustee) shall have the right, but shall not be
\nobligated, to remedy such failure.<\/p>\n
24. QUIET ENJOYMENT<\/p>\n
Landlord covenants that if, and so long as, Tenant keeps and performs
\neach and every covenant, agreement, term, provision and condition herein
\ncontained on the part and on behalf of Tenant to be kept and performed, Tenant
\nshall quietly enjoy the Premises from and against the claims of all persons
\nclaiming by, through or under Landlord subject, nevertheless, to the covenants,
\nagreements, terms, provisions and conditions of this Lease and to the mortgages,
\nground leases and\/or underlying leases to which this Lease is subject and
\nsubordinate, as hereinabove set forth.<\/p>\n
Without incurring any liability to Tenant, Landlord may permit access
\nto the Premises and open the same, whether or not Tenant shall be present, upon
\nany demand of any receiver, trustee, assignee for the benefit of creditors,
\nsheriff, marshal or court officer entitled to, or reasonably purporting to be
\nentitled to, such access for the purpose of taking possession of, or removing,
\nTenant’s property or for any other lawful purpose (but this provision and any
\naction by Landlord hereunder shall not be deemed a recognition by Landlord that
\nthe person or official making such demand has any right or interest in or to
\nthis Lease, or in or to the Premises), or upon demand of any representative of
\nthe fire, police, building, sanitation or other department of the city, state or
\nfederal governments.<\/p>\n
25. ENTIRE AGREEMENT — WAIVER — SURRENDER<\/p>\n
25.1 ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
\ncontain the entire and only agreement between the parties and any and all
\nstatements and representations, written and oral, including previous
\ncorrespondence and agreements between the parties hereto, are merged herein.
\nTenant acknowledges that all representations and statements upon which it relied
\nin executing this Lease are contained herein and that the Tenant in no way
\nrelied upon any other statements or representations, written or oral. Any
\nexecutory agreement hereafter made shall be ineffective to change, modify,
\ndischarge or effect an abandonment of this Lease in whole or in part unless such
\nexecutory agreement is in writing and signed by the party against whom
\nenforcement of the change, modification, discharge or abandonment is sought.<\/p>\n
25.2 WAIVER. The failure of either party to seek redress for violation,
\nor to insist upon the strict performance, of any covenant or condition of this
\nLease, or any of the Rules and Regulations promulgated hereunder, shall not
\nprevent a subsequent act, which would have originally constituted a violation,
\nfrom having all the force and effect of an original violation. The receipt by
\nLandlord of rent<\/p>\n
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\n 53
\nwith knowledge of the breach of any covenant of this Lease shall not be deemed a
\nwaiver of such breach. The failure of Landlord to enforce any of such Rules and
\nRegulations against Tenant and\/or any other tenant in the Building shall not be
\ndeemed a waiver of any such Rules and Regulations. No provisions of this Lease
\nshall be deemed to have been waived by either party unless such waiver be in
\nwriting signed by such party. No payment by Tenant or receipt by Landlord of a
\nlesser amount than the monthly rent herein stipulated shall be deemed to be
\nother than on account of the stipulated rent, nor shall any endorsement or
\nstatement on any check or any letter accompanying any check or payment as rent
\nbe deemed an accord and satisfaction, and Landlord may accept such check or
\npayment without prejudice to Landlord’s right to recover the balance of such
\nrent or pursue any other remedy in this Lease provided.<\/p>\n
25.3 SURRENDER. No act or thing done by Landlord during the term hereby
\ndemised shall be deemed an acceptance of a surrender of the Premises, and no
\nagreement to accept such surrender shall be valid, unless in writing signed by
\nLandlord. No employee of Landlord or of Landlord’s agents shall have any power
\nto accept the keys of the Premises prior to the termination of this Lease. The
\ndelivery of keys to any employee of Landlord or of Landlord’s agents shall not
\noperate as a termination of the Lease or a surrender of the Premises. In the
\nevent that Tenant at any time desires to have Landlord underlet the Premises for
\nTenant’s account, Landlord or Landlord’s agents are authorized to receive the
\nkeys for such purposes without releasing Tenant from any of the obligations
\nunder this Lease, and Tenant hereby relieves Landlord of any liability for loss
\nof or damage to any of Tenant’s effects in connection with such underletting.<\/p>\n
26. INABILITY TO PERFORM – EXCULPATORY CLAUSE<\/p>\n
Except as provided in Article 4.1, 4.2, 8.8, 18 and 20 hereof, this
\nLease and the obligations of Tenant to pay rent hereunder and perform all the
\nother covenants, agreements, terms, provisions and conditions hereunder on the
\npart of Tenant to be performed shall in no way be affected, impaired or excused
\nbecause Landlord is unable to fulfill any of its obligations under this Lease or
\nis unable to supply or is delayed in supplying any service expressly or
\nimpliedly to be supplied or is unable to make or is delayed in making any
\nrepairs, replacements, additions, alterations, improvements or decorations or is
\nunable to supply or is delayed in supplying any equipment or fixtures if
\nLandlord is prevented or delayed from so doing by reason of strikes or labor
\ntroubles or any other similar or dissimilar cause whatsoever beyond Landlord’s
\nreasonable control, including but not limited to, governmental preemption in
\nconnection with a national emergency or by reason of any rule, order or
\nregulation of any department or subdivision thereof of any governmental agency
\nor by reason of the conditions of supply and demand which have been or are
\naffected by war, hostilities or other similar or dissimilar emergency. In each
\nsuch instance of inability of Landlord to perform, Landlord shall exercise
\nreasonable diligence to eliminate the cause of such inability to perform.<\/p>\n
Tenant shall neither assert nor seek to enforce any claim against
\nLandlord, or Landlord’s agents or employees, or the assets of Landlord or of
\nLandlord’s agents or employees, for breach of this Lease or otherwise, other
\nthan against Landlord’s interest in the Building of which the Premises are a
\npart and the Complex and in the uncollected rents, issues and profits thereof,
\nand Tenant agrees to look solely to such interest for the satisfaction of any
\nliability of Landlord under this Lease, it being specifically agreed that in no
\nevent shall Landlord or Landlord’s agents or employees (or any of the officers,
\ntrustees, directors, partners, beneficiaries, joint venturers, members,
\nstockholders or other principals or representatives, and the like, disclosed or
\nundisclosed, thereof) ever be personally liable for any such liability. This
\nparagraph shall not limit any right that Tenant might otherwise have to obtain
\ninjunctive relief against Landlord or to take any other action which shall not
\ninvolve the personal liability of Landlord to respond in monetary damages from
\nLandlord’s assets other than the Landlord’s interest in said real estate, as
\naforesaid. In no event shall Landlord or Landlord’s agents or employees (or any
\nof the officers, trustees, directors, partners, beneficiaries, joint venturers,
\nmembers, stockholders or other principals or representatives and the like,
\ndisclosed or undisclosed, thereof) ever be liable for consequential or
\nincidental damages. Without limiting the foregoing, in no event shall Landlord
\nor Landlord’s agents or employees (or any of the <\/p>\n
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\n 54
\nofficers, trustees, directors, partners, beneficiaries, joint venturers,
\nmembers, stockholders or other principals or representatives and the like,
\ndisclosed or undisclosed, thereof) ever be liable for lost profits of Tenant. If
\nby reason of Landlord’s failure to acquire title to the real property of which
\nthe Premises are a part or to complete construction of the Building or Premises,
\nLandlord shall be held to be in breach of this Lease, Tenant’s sole and
\nexclusive remedy shall be a right to terminate this Lease.<\/p>\n
27. BILLS AND NOTICES<\/p>\n
Any notice, consent, request, bill, demand or statement hereunder by
\neither party to the other party shall be in writing and, if received at
\nLandlord’s or Tenant’s address, shall be deemed to have been duly given when
\neither delivered or served personally or mailed in a postpaid envelope,
\ndeposited in the United States mail addressed to Landlord at its address as
\nstated in Exhibit 1 and to Tenant at the Premises (or at Tenant’s address as
\nstated in Exhibit 1, if mailed prior to Tenant’s occupancy of the Premises), or
\nif any address for notices shall have been duly changed as hereinafter provided,
\nif mailed as aforesaid to the party at such changed address. Either party may at
\nany time change the address or specify an additional address for such notices,
\nconsents, requests, bills, demands or statements by delivering or mailing, as
\naforesaid, to the other party a notice stating the change and setting forth the
\nchanged or additional address, provided such changed or additional address is
\nwithin the United States.<\/p>\n
If Tenant is a partnership, Tenant, for itself, and on behalf of all of
\nits partners, hereby appoints Tenant’s Service Partner, as identified on Exhibit
\n1, to accept service of any notice, consent, request, bill, demand or statement
\nhereunder by Landlord and any service of process in any judicial proceeding with
\nrespect to this Lease on behalf of Tenant and as agent and attorney-in-fact for
\neach partner of Tenant.<\/p>\n
All bills and statements for reimbursement or other payments or charges
\ndue from Tenant to Landlord hereunder shall be due and payable in full twenty
\n(20) days, unless herein otherwise provided, after submission thereof by
\nLandlord to Tenant. Tenant’s failure to make timely payment of any amounts
\nindicated by such bills and statements, whether for work done by Landlord at
\nTenant’s request, reimbursement provided for by this Lease or for any other sums
\nproperly owing by Tenant to Landlord, shall be treated as a default in the
\npayment of rent, in which event Landlord shall have all rights and remedies
\nprovided in this Lease for the nonpayment of rent.<\/p>\n
28. PARTIES BOUND — SEIZIN OF TITLE<\/p>\n
The covenants, agreements, terms, provisions and conditions of this
\nLease shall bind and benefit the successors and assigns of the parties hereto
\nwith the same effect as if mentioned in each instance where a party hereto is
\nnamed or referred to, except that no violation of the provisions of Article 16
\nhereof shall operate to vest any rights in any successor or assignee of Tenant
\nand that the provisions of this Article 28 shall not be construed as modifying
\nthe conditions of limitation contained in Article 21 hereof.<\/p>\n
If, in connection with or as a consequence of the sale, transfer or
\nother disposition of the real estate (land and\/or Building, either or both, as
\nthe case may be) of which the Premises are a part, Landlord ceases to be the
\nowner of the reversionary interest in the Premises, Landlord shall be entirely
\nfreed and relieved from the performance and observance thereafter of all
\ncovenants and obligations hereunder on the part of Landlord to be performed and
\nobserved, it being understood and agreed in such event (and it shall be deemed
\nand construed as a covenant running with the land) that the person succeeding to
\nLandlord’s ownership of said reversionary interest shall thereupon and
\nthereafter assume, and perform and observe, any and all of such covenants and
\nobligations of Landlord.<\/p>\n
29. MISCELLANEOUS<\/p>\n
29.1 SEPARABILITY. If any provision of this Lease or portion of such
\nprovision or the application thereof to any person or circumstance is for any
\nreason held invalid or unenforceable, the<\/p>\n
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\n 55
\nremainder of the Lease (or the remainder of such provision) and the application
\nthereof to other persons or circumstances shall not be affected thereby.<\/p>\n
29.2 CAPTIONS, ETC. The captions are inserted only as a matter of
\nconvenience and for reference, and in no way define, limit or describe the scope
\nof this Lease nor the intent of any provisions thereof. References to “State”
\nshall mean, where appropriate, the District of Columbia and other Federal
\nterritories, possessions, as well as a state of the United States.<\/p>\n
29.3 BROKER. Tenant represents and warrants that it has not directly or
\nindirectly dealt, with respect to the leasing of office space in the Building or
\nany Center, Office Park or other Park of which it is a part (called “Building,
\netc.” in this Article 29.3) with any broker or had its attention called to the
\nPremises or other space to let in the Building, etc. by anyone other than the
\nbroker, person or firm, if any, designated in Exhibit 1. Tenant agrees to
\ndefend, exonerate and save harmless and indemnify Landlord and anyone claiming
\nby, through or under Landlord against any claims arising in breach of the
\nrepresentation and warranty set forth in the immediately preceding sentence,
\nprovided that Landlord shall be solely responsible for the payment of brokerage
\ncommissions to the brokers, persons or firms, if any, designated in Exhibit 1.
\nLandlord represents and warrants that, in connection with the execution and
\ndelivery of the Lease, it has not directly or indirectly dealt with any broker
\nother than the brokers designated on Exhibit 1. Landlord agrees to defend,
\nexonerate and save harmless Tenant and anyone claiming by, through, or under
\nTenant against any claims arising in breach of the representation and warranty
\nset forth in the immediately preceding sentence.<\/p>\n
29.4 MODIFICATIONS. If in connection with obtaining financing for the
\nBuilding, a bank, insurance company, pension trust or other institutional lender
\nshall request reasonable modifications in this Lease as a condition to such
\nfinancing, Tenant will not withhold, delay or condition its consent thereto,
\nprovided that such modifications do not increase the obligations of Tenant
\nhereunder or adversely affect the leasehold interest hereby created.<\/p>\n
29.5 ARBITRATION. Any disputes relating to provisions or obligations in
\nthis Lease as to which a specific provision for a reference to arbitration is
\nmade herein shall be submitted to arbitration in accordance with the provisions
\nof applicable state law (as identified on Exhibit 1), as from time to time
\namended. Arbitration proceedings, including the selection of an arbitrator,
\nshall be conducted pursuant to the rules, regulations and procedures from time
\nto time in effect as promulgated by the American Arbitration Association. Prior
\nwritten notice of application by either party for arbitration shall be given to
\nthe other at least ten (10) days before submission of the application to the
\nsaid Association’s office in the City wherein the Building is situated (or the
\nnearest other city having an Association office). The arbitrator shall hear the
\nparties and their evidence. The decision of the arbitrator shall be binding and
\nconclusive, and judgment upon the award or decision of the arbitrator may be
\nentered in the appropriate court of law (as identified on Exhibit 1); and the
\nparties consent to the jurisdiction of such court and further agree that any
\nprocess or notice of motion or other application to the Court or a Judge thereof
\nmay be served outside the State wherein the Building is situated by registered
\nmail or by personal service, provided a reasonable time for appearance is
\nallowed. The costs and expenses of each arbitration hereunder and their
\napportionment between the parties shall be determined by the arbitrator in his
\naward or decision. No arbitrable dispute shall be deemed to have arisen under
\nthis Lease prior to (i) the expiration of the period of twenty (20) days after
\nthe date of the giving of written notice by the party asserting the existence of
\nthe dispute together with a description thereof sufficient for an understanding
\nthereof; and (ii) where a Tenant payment (e.g., Tax Excess or Operating Expense
\nExcess under Article 9 hereof) is in issue, the amount billed by Landlord which
\nis not disputed by Tenant in good faith having been paid by Tenant.<\/p>\n
29.6 GOVERNING LAW. This Lease is made pursuant to, and shall be
\ngoverned by, and construed in accordance with, the laws of the State wherein the
\nBuilding is situated and any applicable local municipal rules, regulations,
\nby-laws, ordinances and the like.<\/p>\n
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\n 56
\n 29.7 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord
\nof its interest in this Lease, or the rents payable hereunder, conditional in
\nnature or otherwise, which assignment is made to or held by a bank, trust
\ncompany, insurance company or other institutional lender holding a mortgage or
\nground lease on the Building, Tenant agrees:<\/p>\n
(a) that the execution thereof by Landlord and the acceptance
\nthereof by such mortgagee and\/or ground lessor shall never be deemed an
\nassumption by such mortgagee and\/or ground lessor of any of the obligations of
\nthe Landlord thereunder, unless such mortgagee and\/or ground lessor shall, by
\nwritten notice sent to the Tenant, specifically otherwise elect; and<\/p>\n
(b) that, except as aforesaid, such mortgagee and\/or ground
\nlessor shall be treated as having assumed the Landlord’s obligations thereunder
\nonly upon foreclosure of such mortgagee’s mortgage or deed of trust or
\ntermination of such ground lessor’s ground lease and the taking of possession of
\nthe demised Premises after having given notice of its exercise of the option
\nstated in Article 23 hereof to succeed to the interest of the Landlord under
\nthis Lease.<\/p>\n
29.8 REPRESENTATION OF AUTHORITY. By his execution hereof each of the
\nsignatories on behalf of the respective parties hereby warrants and represents
\nto the other that he is duly authorized to execute this Lease on behalf of such
\nparty. If Tenant is a corporation, Tenant hereby appoints the signatory whose
\nname appears below on behalf of Tenant as Tenant’s attorney-in-fact for the
\npurpose of executing this Lease for and on behalf of Tenant.<\/p>\n
29.9 EXPENSES INCURRED BY LANDLORD UPON TENANT REQUESTS. Tenant shall,
\nupon demand, reimburse Landlord for all reasonable expenses, including, without
\nlimitation, legal fees, incurred by Landlord in connection with all requests by
\nTenant for consents, approvals or execution of collateral documentation related
\nto this Lease, including, without limitation, costs incurred by Landlord in the
\nreview and approval of Tenant’s plans and specifications in connection with
\nproposed alterations to be made by Tenant to the Premises, requests by Tenant to
\nsublet the Premises or assign its interest in the Lease, the execution by
\nLandlord of estoppel certificates requested by Tenant (except that there shall
\nbe no charge for the first such estoppel certificate requested by Tenant in any
\ncalendar year), and requests by Tenant for Landlord to execute waivers of
\nLandlord’s interest in Tenant’s property in connection with third party
\nfinancing by Tenant. Such costs shall be deemed to be additional rent under the
\nLease.<\/p>\n
29.10 SURVIVAL. Without limiting any other obligation of the Tenant
\nwhich may survive the expiration or prior termination of the term of the Lease,
\nall obligations on the part of Tenant to indemnify, defend, or hold Landlord
\nharmless, as set forth in this Lease (including, without limitation, Tenant’s
\nobligations under Articles 13(d), 15.3, and 29.3) shall survive the expiration
\nor prior termination of the term of the Lease.<\/p>\n
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\n 57
\n IN WITNESS WHEREOF the parties hereto have executed this Indenture of
\nLease in multiple copies, each to be considered an original hereof, as a sealed
\ninstrument on the day and year noted in Exhibit 1 as the Execution Date.<\/p>\n
LANDLORD: TENANT:
\nTECHNOLOGY SQUARE LLC, AKAMAI TECHNOLOGIES, INC.
\na Delaware limited liability company<\/p>\n
By: Beacon Capital Partners L.P.,
\n a Delaware limited partnership
\n d\/b\/a Beacon Capital Partners
\n Limited Partnership, its manager<\/p>\n
By: Beacon Capital Partners, Inc., a
\n Maryland corporation, its general
\n partner<\/p>\n
By: \/s\/ Thomas Ragno By: \/s\/ Paul Sagan
\n ————————— ————————-
\n Name: Thomas Ragno Name: Paul Sagan
\n Title: Senior Vice President Title: President and Chief
\n Operating Officer
\n Hereunto Duly Authorized<\/p>\n
IF TENANT IS A CORPORATION, A SECRETARY’S OR CLERK’S CERTIFICATE OF THE
\nAUTHORITY AND THE INCUMBENCY OF THE PERSON SIGNING ON BEHALF OF TENANT SHOULD BE
\nATTACHED.<\/p>\n
COMMONWEALTH, DISTRICT OR
\nSTATE OF<\/p>\n
COUNTY OF<\/p>\n
On the Execution Date stated in Exhibit 1, the person above signing
\nthis Lease for and on behalf of the Tenant, to me personally known, did sign and
\nexecute this Lease and, being by me duly sworn, did depose and say that he is
\nthe officer of the above named Tenant, as noted, and that he signed his name
\nhereto by order of the Board of Directors of said Tenant.<\/p>\n
————————————-
\n Notary Public
\n My Commission Expires:_______________<\/p>\n
COMMONWEALTH OF MASSACHUSETTS<\/p>\n
COUNTY OF SUFFOLK<\/p>\n
On the Execution Date stated in Exhibit 1, the person above signing
\nthis Lease for and on behalf of Landlord to me personally known, did sign and
\nexecute this Lease and, being by me duly sworn, did depose and say that he is
\nthe duly authorized representative of Landlord.<\/p>\n
————————————-
\n Notary Public
\n My Commission Expires:_______________<\/p>\n
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\n 58
\n EXHIBIT 3<\/p>\n
BUILDING STANDARD ITEMS<\/p>\n
INTENTIONALLY OMITTED<\/p>\n
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\n 59
\n EXHIBIT 4<\/p>\n
BUILDING SERVICES<\/p>\n
A. General Cleaning (Monday through Friday)<\/p>\n
1. All stone, ceramic, tile, marble, terrazzo and other unwaxed
\n flooring to be swept nightly, using approved dust-down
\n preparation.<\/p>\n
2. All wood, linoleum, vinyl-asbestos, vinyl and other similar
\n types of floors to be swept or dry mopped nightly, using
\n dust-down preparation; all carpeting and rugs in the main
\n traffic areas (corridors, reception areas, etc.) to be vacuumed
\n nightly and all other carpeted areas to be vacuumed at least
\n once each week.<\/p>\n
3. Wax all public areas monthly.<\/p>\n
4. Hand dust all furniture, files and fixtures nightly.<\/p>\n
5. Empty all waste receptacles nightly and remove waste paper and
\n waste materials, including folded paper boxes and cartons, to a
\n designated area.<\/p>\n
6. Empty and clean all ash trays and screen all sand urns nightly.<\/p>\n
7. Wash and clean all water fountains and coolers nightly. Sinks
\n and floors adjacent to sinks to be washed nightly.<\/p>\n
8. Hand dust all door and other ventilating louvers within reach,
\n as necessary, but not less often than monthly.<\/p>\n
9. Dust all telephones as necessary.<\/p>\n
10. Keep lockers and janitor sink rooms in a neat, orderly condition
\n at all times.<\/p>\n
11. Wipe clean all bright metal work as necessary.<\/p>\n
12. Check all stairwells throughout entire building nightly and keep
\n in clean condition.<\/p>\n
13. Metal doors and trim of all public elevator cars to be properly
\n maintained and kept clean.<\/p>\n
B. Common Area Lavatories<\/p>\n
1. Sweep and wash all lavatory floors nightly, using proper
\n non-scented disinfectants.<\/p>\n
2. Clean all mirrors, powder shelves, bright work and enameled
\n surfaces in all lavatories nightly. Scour, wash and disinfect
\n all basins, bowls and urinals using non-scented disinfectants.<\/p>\n
3. Police lavatories during the day with matron or porter to pick
\n up waste and replenish materials.<\/p>\n
4. Wash all toilet seats nightly.<\/p>\n
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\n 60
\n 5. Fill toilet tissue holders nightly.<\/p>\n
6. Empty paper towel receptacles nightly.<\/p>\n
7. Empty sanitary disposal receptacles nightly.<\/p>\n
8. Thoroughly clean all wall tile and stall surfaces as necessary.<\/p>\n
C. High Dusting<\/p>\n
Do all high dusting (not reached in nightly cleaning) quarterly which
\n includes the following:<\/p>\n
1. Dust all pictures, frames, charts, graphs, and similar wall
\n hangings.<\/p>\n
2. Dust exposed pipes, ventilation and air conditioning louvers,
\n ducts and high moldings.<\/p>\n
D. Window Cleaning<\/p>\n
1. All exterior windows (except for any retail\/commercial areas)
\n from the second floor and above will be cleaned inside and
\n outside at least three (3) times per calendar year except when
\n cleaning is rendered impracticable by inclement weather.<\/p>\n
2. Entrance doors and elevator lobby glass to be cleaned daily and
\n kept in a clean condition at all times during the day.<\/p>\n
3. Wipe down all metal window frames as necessary but not less
\n often than monthly.<\/p>\n
E. Building Lobbies<\/p>\n
1. Floors to be swept and washed or vacuumed nightly, and machine
\n scrubbed according to Building Standard frequency.<\/p>\n
2. Carpeting in passenger elevator cabs to be vacuum cleaned
\n nightly.<\/p>\n
3. Lobby walls to be dusted as often as necessary, but not less
\n than weekly.<\/p>\n
4. Screen and clean sand urns nightly.<\/p>\n
5. Clean all unpainted metal work in a manner appropriate to
\n original finish.<\/p>\n
F. Porters<\/p>\n
Necessary number of day porters under supervision will be assigned for
\n the following services:<\/p>\n
1. Service all public and building operating space throughout the
\n Building.<\/p>\n
2. Keep elevator cars clean and neat during the day.<\/p>\n
3. Maintain lobbies clean and, during wet weather, mopped dry to
\n the extent practicable.<\/p>\n
4. Dust and rub down all elevator doors, frames, telephone booths
\n and directories daily.<\/p>\n
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\n 61
\n 5. Sweep sidewalks, ramps, etc. daily.<\/p>\n
6. Clean roofs and setbacks as often as necessary.<\/p>\n
7. Maintain firehose and equipment clean.<\/p>\n
8. Lay and remove lobby runners as necessary.<\/p>\n
9. Replenish toilet tissue, towels and other supplies in
\n lavatories.<\/p>\n
10. Maintain fan rooms, motor rooms and air conditioning rooms in
\n clean condition.<\/p>\n
11. Check stairways and keep same neat and clean during the day.<\/p>\n
12. Clean exterior columns, exterior signs and metal work, standpipe
\n and sprinkler system, walkways and stairs as necessary.<\/p>\n
13. If directed by superintendent, fill towel and soap dispensers
\n and perform any emergency cleaning required.<\/p>\n
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\n 62
\n EXHIBIT 5<\/p>\n
FORM OF LETTER OF CREDIT<\/p>\n
BENEFICIARY: ISSUANCE DATE:<\/p>\n
________________, 1999<\/p>\n
TECHNOLOGY SQUARE LLC
\nc\/o Beacon Capital Partners IRREVOCABLE STANDBY
\n LETTER OF CREDIT NO.<\/p>\n
ACCOUNTEE\/APPLICANT: MAXIMUM\/AGGREGATE
\n CREDIT AMOUNT:
\nAKAMAI TECHNOLOGIES, INC. USD: $2,000,000.00
\n[TENANT]<\/p>\n
LADIES AND GENTLEMEN:<\/p>\n
We hereby establish our irrevocable letter of credit in your favor for
\naccount of the applicant up to an aggregate amount not to exceed One Million
\nThree Hundred Thousand and 00\/100 US Dollars ($1,300,000.00) available by your
\ndraft(s) drawn on ourselves at sight accompanied by:<\/p>\n
Your statement, signed by a purportedly authorized officer\/official
\ncertifying that the Beneficiary is entitled to draw upon this Letter of Credit
\n(in the amount of the draft submitted herewith) pursuant to Paragraph 1 of the
\nRider to the Lease (the “Lease”) dated July 8, 1999 by and between TECHNOLOGY
\nSQUARE LLC, as Landlord, and AKAMAI TECHNOLOGIES, INC., as Tenant.<\/p>\n
Draft(s) must indicate name and issuing bank and credit number and must
\nbe presented at this office.<\/p>\n
You shall have the right to make partial draws against this Letter of
\nCredit, from time to time.<\/p>\n
Except as otherwise expressly stated herein, this Letter of Credit is
\nsubject to the “Uniform Customs and practice for Documentary Credits,
\nInternational Chamber of Commerce, Publication No. 500 (1993 Revision)”.<\/p>\n
This Letter of Credit shall expire at our office on ________________,
\n1999 (the “Stated Expiration Date”). It is a condition of this Letter of Credit
\nthat the Stated Expiration Date shall be deemed automatically extended without
\namendment for successive one (1) year periods from such Stated Expiration Date,
\nunless at least forty-<\/p>\n
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\n 63
\nfive (45) days prior to such Stated Expiration Date )or any anniversary thereof)
\nwe shall notify you and the Accountee\/Applicant in writing by registered mail
\n(return receipt) that we elect not to consider this Letter of Credit extended
\nfor any such additional one (1) year period.<\/p>\n
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\n 64
\n EXHIBIT 6<\/p>\n
BASE BUILDING WORK<\/p>\n
The Base Building Specifications attached hereto, as modified by the following:<\/p>\n
1. Tenant shall have the ability to utilize the base building water
\n purification system with a common building riser to each floor. Landlord
\n shall be responsible for the costs to install the base building water
\n purification system.<\/p>\n
2. Landlord’s approval as it relates to the design and construction of
\n Tenant’s elevator lobbies shall not be unreasonably withheld.<\/p>\n
3. Landlord shall permit Tenant, at Tenant’s sole cost and expense, to modify
\n the base building drop ceiling height from 8’6″ to 8’11”.<\/p>\n
4. Landlord shall be responsible, at Landlord’s sole cost and expense, for
\n furnishing and installing building standard horizontal mini-blinds
\n throughout the premises at completion of the Landlord’s Work in the
\n premises.<\/p>\n
5. If the base building perimeter diffusers are not available to meet Tenant’s
\n move-in schedule, Landlord’s contractor may substitute an alternative which
\n is equal in performance and quality, provided that any additional cost
\n shall be the responsibility of Landlord.<\/p>\n
6. Tenant’s fire alarm system may tie into the fire alarm riser to be located
\n on each floor, and Tenant shall not be required to tie each floor back to
\n the main annunciator panel on floor one, provided that final approval of
\n any fire alarm design and\/or installation shall be subject to the approval
\n of any and all governmental authorities having jurisdiction.<\/p>\n
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\n 65
\n EXHIBIT 7<\/p>\n
EXTERIOR SIGN<\/p>\n
Tenant’s exterior signage rights shall be for two (2) signs, located at
\nthe top of the Building, provided that such rights can be granted to Tenant
\nwithout limiting the amount, size and location of signage permitted for the
\nother buildings in the Complex pursuant to the master signage plan for the
\nComplex currently being developed by Landlord with the City of Cambridge.<\/p>\n
The final design, location, and size of signs shall be subject to the
\nLandlord’s prior written approval, which shall not be unreasonably withheld or
\ndelayed, and shall be subject to the provisions of the first paragraph of this
\nExhibit 7.<\/p>\n
Notwithstanding any provision of this Lease to the contrary, if and to
\nthe extent that Landlord grants Forrester Research, Inc. the right to place
\nexterior signage on the second floor of its building in the Complex (or any
\nother floor other than the top of the building), then Landlord shall also grant
\nTenant the right to a similar amount of exterior signage on the second (or
\nother) floor of the Building, provided that Tenant shall in any event be
\nresponsible for obtaining all necessary permits prior to erecting such second
\n(or other) floor signage.<\/p>\n
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\n 66
\n EXHIBIT 8<\/p>\n
TENANT’S REMOVABLE PROPERTY<\/p>\n
1. Antennae<\/p>\n
2. Satellite Dishes<\/p>\n
3. Network Operations Center<\/p>\n
4. Computer Equipment<\/p>\n
5. Telephone Switch and Equipment<\/p>\n
6. Signage (Interior and Exterior)<\/p>\n
7. Kitchen Equipment (Only if not built in)<\/p>\n
8. Security System (Only if installed by Tenant)<\/p>\n
9. Generators (Only if installed by Tenant in the last two (2) years of the
\n lease term)<\/p>\n
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\n 67
\n RIDER TO LEASE<\/p>\n
LANDLORD: Technology Square LLC
\n TENANT: Akamai Technologies, Inc.<\/p>\n
The subject Lease is hereby amended as follows:<\/p>\n
1. SECURITY DEPOSIT<\/p>\n
Tenant acknowledges that Landlord is unwilling to execute the Lease
\nunless Tenant provides Landlord with security for Tenant’s obligations under the
\nLease as follows. Tenant shall have the right to provide such security deposit
\nby either providing to Landlord a security in accordance with Section I below
\nor, at Tenant’s election, a Letter of Credit in accordance with Section II
\nbelow. Tenant shall have the right to change said election from time to time on
\nnot less than thirty (30) days’ written notice to Landlord, and Landlord shall,
\nupon receipt of the replacement form of security deposit in conformance with the
\nterms hereof, return the original form of security deposit to Tenant.<\/p>\n
I. SECURITY DEPOSIT<\/p>\n
Tenant shall, at the time that Tenant executes and delivers this Lease
\nto Landlord, pay to Landlord a security deposit of Two Million and 00\/100
\nDollars ($2,000,000.00) securing Tenant’s obligations under this Lease. In no
\nevent shall said security deposit be deemed to be a prepayment of rent nor shall
\nit be considered a measure of liquidated damages. Tenant agrees that interest
\nshall accrue on said deposit at the then current passbook savings rate offered
\nby the National Bank, as defined in Article 6(a) of the Lease, provided however
\nthat Landlord shall have no obligation to maintain such deposit in a separate
\naccount (i.e. Landlord shall have the right to commingle such deposit with other
\nfunds of Landlord). In the event that Tenant shall default in any of its
\nobligations under the Lease, beyond the expiration of applicable notice and
\ngrace periods, Landlord shall have the right, without prior notice to Tenant, to
\napply said deposit (or any portion thereof) towards the cure of any such default
\nand Tenant shall promptly, upon notice from Landlord, pay to Landlord any amount
\nso applied by Landlord in order to restore the full amount of said deposit. The
\napplication of all or any part of the deposit to any obligation or default of
\nTenant under this Lease shall not deprive Landlord of any other rights or
\nremedies Landlord may have nor shall such application by Landlord constitute a
\nwaiver by Landlord. The amount of the Security Deposit shall be reduced, and the
\nexcess thereof refunded to Tenant, if and to the extent that the Tenant would be
\nentitled to a reduction in the Letter of Credit Amount pursuant to Paragraph II
\nbelow. Provided that Tenant is not in default of any of its obligations under
\nthe Lease at the expiration or earlier termination of the term of the Lease,
\nLandlord shall refund to Tenant any portion of said security deposit which
\nLandlord is then holding (less the amount determined by Landlord in good faith
\nto be sufficient to cure any unsatisfied obligation of Tenant) within thirty
\n(30) days after such expiration or earlier termination of the term. Upon receipt
\nof all amounts owed under the Lease, Landlord shall promptly return the balance
\n(if any) of any amounts so<\/p>\n
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\n 68
\nretained by Landlord in connection with such obligations to Tenant. In addition
\nto any other deductions Landlord is entitled to make pursuant to the terms
\nhereof, Landlord shall have the right to make a good faith estimate of any
\nunreconciled Tax Excess and Operating Expense Excess as of the expiration or
\nearlier termination of the term of the Lease and to deduct any anticipated
\nshortfall from the Security Deposit.<\/p>\n
or<\/p>\n
II. LETTER OF CREDIT<\/p>\n
A. Tenant shall deliver to Landlord, on the date that Tenant executes
\nand delivers the Lease to Landlord, an Irrevocable Standby Letter of Credit
\n(“Letter of Credit”) which shall be (1) in the form attached hereto as Exhibit
\n5, (2) issued by issued by a bank reasonably acceptable to Landlord upon which
\npresentment may be made in Boston, Massachusetts, (3) in the Letter of Credit
\nAmount, as hereinafter defined, and (4) for a term of one (1) year, subject to
\nextension in accordance with the terms of the Letter of Credit. Tenant shall, on
\nor before the date thirty (30) days prior to the expiration of the term of such
\nLetter of Credit, deliver to Landlord a new Letter of Credit satisfying the
\nforegoing conditions (“Substitute Letter of Credit”) in lieu of the Letter of
\nCredit then being held by Landlord. Such Letter of Credit shall be automatically
\nrenewable in accordance with the second to last grammatical paragraph of Exhibit
\n5; provided that, in such event, Tenant shall be required to deliver a
\nSubstitute Letter of Credit satisfying the conditions hereof, on or before the
\ndate thirty (30) days prior to the expiration of the term of such Letter of
\nCredit, if the issuer of such Letter of Credit gives notice of its election not
\nto renew such Letter of Credit for any additional period pursuant thereto. Upon
\nwritten request of Tenant, Landlord shall deliver to the issuing bank an
\ninstruction authorizing the issuing bank to reduce the Letter of Credit Amount
\nin accordance with the schedule set forth herein.<\/p>\n
B. For the purposes hereof, the “Letter of Credit Amount” shall be
\ndefined as follows:<\/p>\n
1. During the Initial Period, as hereinafter defined, the Letter of
\nCredit Amount shall be Two Million and 00\/100 Dollars ($2,000,000.00).<\/p>\n
2. During the Second Period, as hereinafter defined, the Letter of
\nCredit Amount shall be One Million Seven Hundred Fourteen Thousand Two Hundred
\nEighty-Five and 71\/100 Dollars ($1,714,285.71).<\/p>\n
3. During the Third Period, as hereinafter defined, the Letter of
\nCredit Amount shall be One Million Four Hundred Twenty-Eight Thousand Five
\nHundred Seventy-One and 43\/100 Dollars ($1,428,571.43).<\/p>\n
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\n 69
\n 4. During the Fourth Period, as hereinafter defined, the Letter of
\nCredit Amount shall be One Million One Hundred Forty-Two Thousand Eight Hundred
\nFifty-Seven and 14\/100 Dollars ($1,142,857.14).<\/p>\n
5. During the Fifth Period, as hereinafter defined, the Letter of
\nCredit Amount shall be Eight Hundred Fifty-Seven Thousand One Hundred Forty-Two
\nand 86\/100 Dollars ($857,142.86).<\/p>\n
6. During the Sixth Period, as hereinafter defined, the Letter of
\nCredit Amount shall be Five Hundred Seventy-One Thousand Four Hundred
\nTwenty-Eight and 57\/100 Dollars ($571,428.57).<\/p>\n
7. During the Seventh Period, as hereinafter defined, the Letter of
\nCredit Amount shall be Two Hundred Eighty-Five Thousand Seven Hundred Fourteen
\n29\/100 Dollars ($285,714.29).<\/p>\n
8. During the Eighth Period, as hereinafter defined, the Letter of
\nCredit Amount shall be Zero Dollars ($0).<\/p>\n
C. Letter of Credit Periods<\/p>\n
The “Initial Period” shall commence as of the initial Term Commencement
\nDate in respect of Portion A and shall expire as of the first anniversary of the
\nTerm Commencement Date in respect of Portion A, provided however, that if (i)
\nTenant is in monetary or material non-monetary default of any of its obligations
\nas of the such anniversary, (ii) the Lease is not in full force and effect as of
\nsuch anniversary, or (iii) as of such anniversary, Tenant has on more than one
\noccasion previously during the term of the Lease been in monetary or material
\nnon-monetary default beyond any applicable notice and cure periods (any of (i)
\nthrough (iii) being referred to as a Failure Condition), the Initial Period
\nshall expire as of the first day after the first anniversary of the initial Term
\nCommencement Date in respect of Portion A that no Failure Conditions exist.<\/p>\n
Each successive Period thereafter shall commence as of the day
\nimmediately following expiration of the immediately preceding Period and,
\nsubject to the extension of the Period if a Failure Condition exists, shall
\nexpire as of the next following anniversary of the Term Commencement Date in
\nrespect of Portion A.<\/p>\n
D. In the event that Tenant is in default of its obligations under the
\nLease, beyond the expiration of applicable notice and grace periods, then the
\nLandlord shall have the right, at any time after such event, without giving any
\nfurther notice to Tenant, to draw down from said Letter of Credit (Substitute
\nLetter of Credit or Additional Letter of Credit, as defined below, as the case
\nmay be) (a) the amount necessary to cure such default or (b) if such default
\ncannot reasonably be cured by the expenditure of money, to exercise all rights
\nand remedies Landlord may have on account of such default, the amount which, in
\nLandlord’s opinion, is necessary to satisfy Tenant’s liability on account
\nthereof.<\/p>\n
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\n 70
\nIn the event of any such draw by the Landlord, Tenant shall, within fifteen (15)
\nbusiness days of written demand therefor, deliver to Landlord an additional
\nLetter of Credit satisfying the foregoing conditions (“Additional Letter of
\nCredit”), except that the amount of such Additional Letter of Credit shall be
\nthe amount of such draw. In addition, in the event of a termination based upon
\nthe default of Tenant under the Lease, or a rejection of the Lease pursuant to
\nthe provisions of the Federal Bankruptcy Code, Landlord shall have the right to
\ndraw upon the Letter of Credit (from time to time, if necessary) to cover the
\nfull amount of damages and other amounts due from Tenant to Landlord under the
\nLease. Any amounts so drawn shall, at Landlord’s election, be applied first to
\nany unpaid rent and other charges which were due prior to the filing of the
\npetition for protection under the Federal Bankruptcy Code.<\/p>\n
E. In the event that Tenant fails timely to deliver to Landlord a
\nSubstitute Letter of Credit, then the Landlord shall have the right, at any time
\nafter such event, without giving any further notice to Tenant or to Landlord, to
\ndraw down the Letter of Credit (or Substitute Letter of Credit and\/or Additional
\nLetter(s) of Credit) and to hold the proceeds thereof (“Security Proceeds”) in a
\nsegregated bank account in the name of the Landlord as security for Tenant’s
\nobligations under the Lease in accordance with the provisions of this Paragraph
\n1.<\/p>\n
F. To the extent that Landlord has not previously drawn upon any Letter
\nof Credit, Substitute Letter of Credit, Additional Letter of Credit or Security
\nProceeds (collectively “Collateral”) held by the Landlord, and to the extent
\nthat Tenant is not otherwise in default of its obligations under the Lease as of
\nthe termination date of the Lease, Landlord shall return such Collateral to
\nTenant on the termination of the term of the Lease.<\/p>\n
G. In no event shall the proceeds of any Letter of Credit be deemed to
\nbe a prepayment of rent nor shall it be considered as a measure of liquidated
\ndamages.<\/p>\n
2. TENANT’S OPTION TO EXTEND THE TERM OF THE LEASE<\/p>\n
A. On the conditions, which conditions Landlord may waive, at its
\nelection, by written notice to Tenant at any time, that Tenant is not in default
\nof its covenants and obligations under the Lease, and that Akamai Technologies,
\nInc., itself, or an Assignee or Affiliated Entity (as those terms are defined in
\nArticle 16) collectively are occupying at least seventy percent (70%) of the
\nPremises then demised to Tenant, both as of the time of option exercise and as
\nof the commencement of the hereinafter described additional term, Tenant shall
\nhave the option to extend the term of this Lease for one (1) additional five (5)
\nyear term, such additional term commencing as of the expiration of the initial
\nterm of the Lease. Tenant may exercise such option to extend by giving Landlord
\nwritten notice on or before the date twelve (12) months prior to the expiration
\ndate of the initial term of the Lease. Upon the timely giving of such notice,
\nthe term of this Lease shall be deemed extended upon all of the terms and
\nconditions of this Lease, except that Landlord shall have no obligation to
\nconstruct or renovate the Premises and that the Yearly Rent,<\/p>\n
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\n 71
\nOperating Costs in the Base Year, and Tax Base during such additional term shall
\nbe as hereinafter set forth. If Tenant fails to give timely notice, as
\naforesaid, Tenant shall have no further right to extend the term of this Lease,
\ntime being of the essence of this Paragraph 2.<\/p>\n
B. Yearly Rent<\/p>\n
The Yearly Rent during the additional term shall be based upon the Fair
\nMarket Rental Value, as defined in Paragraph 3 of this Rider, as of the
\ncommencement of the additional term, of the Premises then demised to Tenant,
\nprovided however, that in no event shall the sum of Yearly Rent, Operating
\nExpense Excess and Tax Excess payable by Tenant for any twelve-(12)- month
\nperiod during the additional term be less than the sum of Yearly Rent, Operating
\nExpense Excess and Tax Excess payable by Tenant in respect of the
\ntwelve-(12)-month period immediately preceding the commencement of the
\nadditional term. Tenant shall have the right, on and after the date fifteen (15)
\nmonths prior to the expiration date of the initial term of the Lease, to request
\nin writing that Landlord advise Tenant of Landlord’s designation of the Fair
\nMarket Rental Value applicable during the additional term. Landlord shall,
\nwithin thirty (30) days after receipt of Tenant’s request, advise Tenant in
\nwriting of such designation of the Fair Market Rental Value.<\/p>\n
C. Tenant’s Termination Right after the Fair Market Rental Value in
\n Respect of an Additional Term is Determined.<\/p>\n
If Tenant has exercised its right to extend the term of the Lease in
\nrespect of said additional term, and if Tenant, in accordance with Subparagraph
\n(C) of Paragraph 3 of this Rider, timely elects to arbitrate the Fair Market
\nRental Value applicable to such additional term, Tenant shall have the right to
\nterminate the term of the Lease as follows: Tenant may exercise such right by
\ngiving written notice to Landlord on or before the date fifteen (15) days after
\nthe Yearly Rent for the extension term is either agreed to by the parties or is
\ndetermined by the arbitrators, as the case may be. The effective termination
\ndate shall be twelve (12) months after Landlord receives such termination notice
\nfrom Tenant. If Tenant timely exercises such termination right, then: (i) the
\nYearly Rent payable by Tenant for the period commencing as of the day after the
\nexpiration of the then current term of the Lease through the effective
\ntermination date shall be based upon the Fair Market Rental Value, as determined
\nby the arbitrators or as agreed to by the parties, as the case may be, and (ii)
\nTenant shall be required to reimburse Landlord, within ten (10) days of billing
\ntherefor, for any and all reasonable out-of-pocket expenses incurred by Landlord
\nin connection with the arbitration proceedings; and (iii) Landlord shall have
\nthe right, by notice (“Landlord’s Extension Notice”) given to Tenant within
\nthirty (30) days after the receipt of Tenant’s termination notice, to extend the
\nTerm of the Lease for a period ending on the date eighteen (18) months after the
\nexpiration of the Term, prior to any extension pursuant to Paragraph C above
\n(“Short Extended Term”). If Landlord timely gives Landlord’s Extension Notice,
\nthen the Term of the Lease shall be automatically extended for the Short
\nExtended Term and the Yearly Rent during the Short Extended Term shall<\/p>\n
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\n 72
\nbe based upon the Fair Market Rental Value, as determined by the arbitrators or
\nas agreed to by the parties, as the case may be.<\/p>\n
D. Tenant shall have no further option to extend the term of the Lease
\nother than the one (1) additional five (5) year term herein provided.<\/p>\n
E. Notwithstanding the fact that upon Tenant’s exercise of the herein
\noption to extend the term of the Lease such extension shall be self-executing,
\nas aforesaid, the parties shall promptly execute a lease amendment reflecting
\nsuch additional term after Tenant exercises the herein option, except that the
\nYearly Rent payable in respect of such additional term, the Operating Costs in
\nthe Base Year during such additional term, and the Tax Base during such
\nadditional term, may not be set forth in said amendment. Subsequently, after
\nsuch Yearly Rent, Operating Costs in the Base Year, and Tax Base are determined,
\nthe parties shall execute a written agreement confirming the same. The execution
\nof such lease amendment shall not be deemed to waive any of the conditions to
\nTenant’s exercise of its rights under this Paragraph 2, unless otherwise
\nspecifically provided in such lease amendment.<\/p>\n
3. DEFINITION OF FAIR MARKET RENTAL VALUE<\/p>\n
For the purposes of this Rider:<\/p>\n
A. “Fair Market Rental Value” shall be computed as of the date in
\nquestion at the then current annual rental charge (i.e., the sum of Yearly Rent
\nplus escalation and other charges), including provisions for subsequent
\nincreases and other adjustments for leases or agreements to lease then currently
\nbeing negotiated, or executed in comparable space located in the Complex, or if
\nno leases or agreements to lease are then currently being negotiated or executed
\nin the Complex, the Fair Market Rental Value shall be determined by reference to
\nleases or agreements to lease then currently being negotiated or executed for
\ncomparable space located elsewhere in first-class office buildings located in
\nEast Cambridge, Massachusetts. In determining Fair Market Rental Value, the
\nfollowing factors, among others, shall be taken into account and given effect:
\nsize, location of Premises, lease term, condition of building, economic
\nconcessions then being granted by the landlord, the absence of certain costs to
\nbe incurred by landlord (e.g., brokerage commissions, tenant improvement costs),
\nand services provided by the landlord.<\/p>\n
B. Notwithstanding anything to the contrary herein contained, the
\nparties hereby agree that upon the determination of any Fair Market Rental
\nValue, Landlord shall have the right, exercisable by written notice to Tenant on
\nor before the time that Landlord gives Tenant its initial designation of Fair
\nMarket Rental Value:<\/p>\n
(1) to change Operating Costs in the Base Year as stated
\n on Exhibit 1 from the amount stated on Exhibit 1 to
\n an amount equal to the actual amount of Operating
\n Costs for the immediately preceding Operating Year,
\n and<\/p>\n
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\n 73
\n (2) to change the Tax Base as stated on Exhibit 1 from
\n the amount stated on Exhibit 1 to an amount equal to
\n the actual amount of Taxes for the immediately
\n preceding fiscal\/tax year for which Landlord has
\n actual data.<\/p>\n
If Landlord shall exercise such right, the amount of Yearly Rent
\npayable hereunder shall be commensurately adjusted to reflect such change in
\nOperating Costs in the Base Year and in Tax Base.<\/p>\n
C. Dispute as to Fair Market Rental Value<\/p>\n
Landlord shall initially designate Fair Market Rental Value and
\nLandlord shall furnish data in support of such designation. If Tenant disagrees
\nwith Landlord’s designation of a Fair Market Rental Value, Tenant shall have the
\nright, by written notice given within thirty (30) days after Tenant has been
\nnotified of Landlord’s designation, to submit such Fair Market Rental Value to
\narbitration. Fair Market Rental Value shall be submitted to arbitration as
\nfollows: Fair Market Rental Value shall be determined by impartial arbitrators,
\none to be chosen by the Landlord, one to be chosen by Tenant, and a third to be
\nselected, if necessary, as below provided. The unanimous written decision of the
\ntwo first chosen, without selection and participation of a third arbitrator, or
\notherwise, the written decision of a majority of three arbitrators chosen and
\nselected as aforesaid, shall be conclusive and binding upon Landlord and Tenant.
\nLandlord and Tenant shall each notify the other of its chosen arbitrator within
\nten (10) days following the call for arbitration and, unless such two
\narbitrators shall have reached a unanimous decision within thirty (30) days
\nafter their designation, they shall so notify the President of the Boston Bar
\nAssociation (or such organization as may succeed to said Boston Bar Association)
\nand request him to select an impartial third arbitrator, who shall be a real
\nestate broker with at least ten (10) years’ experience dealing with like types
\nof properties in the Cambridge office market, to determine Fair Market Rental
\nValue as herein defined. Such third arbitrator and the first two chosen shall,
\nsubject to commercial arbitration rules of the American Arbitration Association,
\nhear the parties and their evidence and render their decision within thirty (30)
\ndays following the conclusion of such hearing and notify Landlord and Tenant
\nthereof. Landlord and Tenant shall bear the expense of the third arbitrator (if
\nany) equally. The decision of the arbitrator shall be binding and conclusive,
\nand judgment upon the award or decision of the arbitrator may be entered in the
\nappropriate court of law (as identified on Exhibit 1); and the parties consent
\nto the jurisdiction of such court and further agree that any process or notice
\nof motion or other application to the Court or a Judge thereof may be served
\noutside the State wherein the Building is situated by registered mail or by
\npersonal service, provided a reasonable time for appearance is allowed. If the
\ndispute between the parties as to a Fair Market Rental Value has not been
\nresolved before the commencement of Tenant’s obligation to pay rent based<\/p>\n
-64-
\n 74
\nupon such Fair Market Rental Value, then Tenant shall pay Yearly Rent and other
\ncharges under the Lease in respect of the Premises in question based upon the
\nrate in effect immediately before the commencement of Tenant’s obligation to pay
\nrent based upon such Fair Market Rental Value until either the agreement of the
\nparties as to the Fair Market Rental Value, or the decision of the arbitrators,
\nas the case may be, at which time Tenant shall pay any underpayment of rent and
\nother charges to Landlord, or Landlord shall refund any overpayment of rent and
\nother charges to Tenant, in either case with interest at the rate set forth in
\nArticle 6 hereof.<\/p>\n
4. ANTENNA AREA<\/p>\n
Tenant shall have the right to use the Antenna Area, as hereinafter
\ndefined, to install a satellite dish and\/or antenna (collectively, the
\n“Antenna”) for a period commencing as of the date that Tenant installs the
\nAntenna, as hereinafter defined, in the Antenna Area (“Term Commencement Date in
\nrespect of the Antenna Area”) and terminating as of the expiration or earlier
\ntermination of the term of the Lease. The “Antenna Area” shall be an area on the
\nroof of the Building containing approximately 50 square feet of rentable area in
\nan area to be designated by Landlord. Tenant shall be permitted to use the
\nAntenna Area solely for one (1) Antenna installed in accordance with
\nspecifications approved by Landlord in advance utilizing a frequency or
\nfrequencies and transmission power identified in such approved specifications
\nwhich Tenant will be installing in the Antenna Area and no other frequencies or
\ntransmission power shall be used by Tenant without Landlord’s prior written
\nconsent, which shall not be unreasonably withheld or delayed, except for matters
\nof aesthetics, which shall be determined in Landlord’s sole discretion. Such
\ninstallation shall be designed in such manner as to be easily removable and so
\nas not to damage the roof of the Building. The Antenna and any replacement shall
\nbe subject to Landlord’s approval, which shall not be unreasonably withheld or
\ndelayed, except for matters of aesthetics, which shall be determined in
\nLandlord’s sole discretion. Tenant’s use of the Antenna Area shall be upon all
\nof the conditions of the Lease, except as follows:<\/p>\n
A. Tenant shall have no obligation to pay Yearly Rent, Tax Excess or
\nOperating Expense Excess in respect of the Antenna Area.<\/p>\n
B. Landlord shall have no obligation to provide any services to the
\nAntenna Area.<\/p>\n
C. Tenant shall have no right to make any changes, alterations, signs,
\ndecoration, or other improvements (which changes, alterations, signs, decoration
\nor other improvements, together with the Antenna, are hereby collectively
\nreferred to as “Rooftop Installations”) to the Antenna Area or to the Antenna
\nwithout Landlord’s prior written consent, which consent shall not be
\nunreasonably withheld or delayed, except for matters of aesthetics, which shall
\nbe determined in Landlord’s sole discretion.<\/p>\n
D. Landlord shall provide Tenant with 24-hour access to the Antenna
\nArea, subject to Landlord’s reasonable security procedures and restrictions
\nbased on emergency conditions and to other causes beyond Landlord’s reasonable
\ncontrol. Tenant shall give Landlord reasonable advance written notice of the
\nneed for access to the Antenna Area<\/p>\n
-65-
\n 75
\n(except that such notice may be oral in an emergency), and Landlord must be
\npresent during any entry by Tenant onto the Antenna Area. Each notice for access
\nshall be in the form of a work order referencing the lease and describing, as
\napplicable, the date access is needed, the name of the contractor or other
\npersonnel requiring access, the name of the supervisor authorizing the
\naccess\/work, the areas to which access is required, the Building common elements
\nto be impacted (risers, electrical rooms, etc.) and the description of new
\nequipment or other Rooftop Installations to be installed and evidence of
\nLandlord’s approval thereof. In the event of an emergency, such notice shall
\nfollow within five (5) days after access to the Antenna Area.<\/p>\n
E. At the expiration or prior termination of Tenant’s right to use the
\nAntenna Area, Tenant shall remove all Installations (including, without
\nlimitation, the Antenna) from the Antenna Area.<\/p>\n
F. Tenant shall be responsible for the cost of repairing any damage to
\nthe roof of the Building caused by the installation or removal of any Rooftop
\nInstallations.<\/p>\n
G. Tenant shall have no right to sublet the Antenna Area, except in
\nconnection with an assignment or sublease permitted hereunder or otherwise
\napproved by Landlord in accordance with the terms hereof.<\/p>\n
H. No other person, firm or entity (including, without limitation,
\nother tenants, licensees or occupants of the Building) shall have the right to
\nbenefit from the services provided by the Antenna other than Tenant.<\/p>\n
I. In the event that Landlord performs repairs to or replacement of the
\nroof, Tenant shall, to the extent reasonably required, at Tenant’s cost, remove
\nthe Antenna until such time as Landlord has completed such repairs or
\nreplacements. Tenant recognizes that there may be an interference with Tenant’s
\nuse of the Antenna in connection with such work. Landlord shall use reasonable
\nefforts to complete such work as promptly as possible and to perform such work
\nin a manner which will minimize or, if reasonably possible, eliminate any
\ninterruption in Tenant’s use of the Antenna.<\/p>\n
J. Any services required by Tenant in connection with Tenant’s use of
\nthe Antenna Area or the Antenna shall be installed by Tenant, at Tenant’s
\nexpense, subject to Landlord’s prior approval.<\/p>\n
K. To the maximum extent permitted by law, all Rooftop Installations in
\nthe Antenna Area shall be at the sole risk of Tenant, and Landlord shall have no
\nliability to Tenant in the event that any Rooftop Installations are damaged for
\nany reason, except to the extent caused by the gross negligence or willful
\nmisconduct of Landlord, its agents or contractors.<\/p>\n
L. Tenant shall take the Antenna Area “as-is” in the condition in which
\nthe Antenna Area is in as of the Commencement Date in respect of the Antenna
\nArea.<\/p>\n
-66-
\n 76
\n M. Tenant shall comply with all applicable laws, ordinances and
\nregulations in Tenant’s use of the Antenna Area and the Antenna.<\/p>\n
N Landlord shall have the right, upon thirty (30) days notice to
\nTenant, to require Tenant to relocate the Antenna Area to another area
\n(“Relocated Rooftop Area”) on the roof of the Building suitable for the use of
\nRooftop Installations. In such event, Tenant shall, at Landlord’s cost and
\nexpense, on or before the thirtieth (30th) day after Landlord gives such notice,
\nrelocate all of its Rooftop Installations from the Antenna Area to the
\nRelocation Rooftop Area.<\/p>\n
O In addition to complying with the applicable construction provisions
\nof the Lease, Tenant shall not install or operate Rooftop Installations in any
\nportion of the Antenna Area until (x) Tenant shall have obtained Landlord’s
\nprior written approval, which approval will not be unreasonably withheld or
\ndelayed, of Tenant’s plans and specifications for the placement and installation
\nof the Rooftop Installations in the Premises, and (y) Tenant shall have obtained
\nand delivered to Landlord copies of all required governmental and
\nquasi-governmental permits, approvals, licenses and authorizations necessary for
\nthe lawful installation, operation and maintenance of the Rooftop Installations.
\nThe parties hereby acknowledge and agree, by way of illustration and not
\nlimitation, that Landlord shall have the right to withhold its approval of
\nTenant’s plans and specifications hereunder, and shall not be deemed to be
\nunreasonable in doing so, if Tenant’s intended placement or method of
\ninstallation or operation of the Rooftop Installations (i) may subject other
\nlicensees, tenants or occupants of the Building, or other surrounding or
\nneighboring landowners or their occupants, to signal interference, Tenant hereby
\nacknowledging that a shield may be required in order to prevent such
\ninterference, (ii) does not minimize to the fullest extent practicable the
\nobstruction of the views from the windows of the Building that are adjacent to
\nthe Rooftop Installations, if any, (iii) does not complement (in Landlord’s sole
\njudgment, which shall not, however, require Tenant to incur unreasonable
\nexpense) the design and finish of the Building, (iv) may damage the structural
\nintegrity of the Building or the roof thereof, or (v) may constitute a violation
\nof any consent, approval, permit or authorization necessary for the lawful
\ninstallation of the Rooftop Installations.<\/p>\n
P In addition to the indemnification provisions set forth in the Lease
\nwhich shall be applicable to the Antenna Area, Tenant shall, to the maximum
\nextent permitted by law, indemnify, defend, and hold Landlord, its agents,
\ncontractors and employees harmless from any and all claims, losses, demands,
\nactions or causes of actions suffered by any person, firm, corporation, or other
\nentity arising from Tenant’s use of the Antenna Area.<\/p>\n
Q Landlord shall have the right to designate or identify the Rooftop
\nInstallations with or by a lease or license number (or other marking) and to
\nplace such number (or marking) on or near such Rooftop Installations.<\/p>\n
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\n 77
\n R. (i) Tenant recognizes that Landlord may wish to (and Landlord hereby
\nreserves the right to) install a central Building system (the “Central Building
\nSystem”) capable of, among other things, providing Tenant with the type of
\nservice (to be) provided by Tenant’s Rooftop Installations. If Landlord elects
\nto install the Central Building System, and provided that such Central Building
\nSystem is capable of providing service comparable to that provided by Tenant’s
\nRooftop Installations, (i) Tenant shall, upon Landlord’s request and at Tenant’s
\nexpense, remove its Rooftop Installations and other Alterations (including any
\nexisting cabling) from the Building and repair any damage caused their
\ninstallation or removal, (ii) Tenant may, at Tenant’s expense and subject to the
\nprovisions of this Agreement (including, without limitation, subparagraph P
\nhereof), have access to and use (and tie into) the Central Building System for
\nthe uses permitted hereunder, and (ii) commencing upon Tenant’s use of the
\nCentral Building System and continuing thereafter throughout the term, the
\nYearly Rent payable hereunder shall be adjusted to be that which is reasonably
\ndesignated by Landlord from time to time based upon Landlord’s determination of
\nthe fair market value of the access rights to the Central Building System
\ngranted herein.<\/p>\n
(ii) Landlord shall maintain, repair or replace the Central Building
\nSystem, in accordance with the standards for the repair and maintenance of such
\nsystems generally prevailing in the industry from time to time, so as to
\neliminate any material interruption or other adverse effects caused by
\nmalfunction, damage or destruction of the Central Building System, the cost of
\nwhich shall be borne by Tenant if the problem was caused by the act or omission
\nof Tenant or its agents, contractors or employees. Notwithstanding the
\nforegoing, Landlord’s obligation to maintain, repair or replace the Central
\nBuilding System shall apply only to the extent necessary to reach premises in
\nthe Building that are then used by tenants after the malfunction, damage or
\ndestruction or that, if damaged or destroyed, will be again used by tenants upon
\nthe completion of restoration or repair thereof. In no event shall Tenant have
\nany claim or right to make any claim against Landlord whatsoever for any
\ndamages, including, without limitation, consequential or incidental damages, or
\nlost profits, in any such circumstance.<\/p>\n
5. GENERATOR AREA<\/p>\n
Landlord hereby demises and leases to Tenant, and Tenant hereby hires
\nand takes from Landlord, an area containing approximately 200 square feet of
\nrentable area on that portion of the roof of the Building directly on top of the
\nninth floor of the Building (“Generator Area”) for a generator for emergency use
\nonly (“Generator”) for a term commencing as of the date of installation of the
\nGenerator (“Term Commencement Date in respect of the Generator”) and terminating
\nas of the expiration or earlier termination of the term of the Lease. Said
\ndemise of the Generator Area shall be upon all of the same terms and conditions
\nof the Lease, except as set forth in this Paragraph 5. Tenant shall not install
\nor operate the Generator until Tenant has obtained and submitted to Landlord
\ncopies of all required governmental permits, licenses, and authorizations
\nnecessary for the installation and operation of the Generator. In addition,
\nTenant shall comply with all reasonable construction rules and regulations
\npromulgated by Landlord in the installation,<\/p>\n
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\n 78
\nmaintenance and operation of the Generator. Tenant shall be permitted to use the
\nGenerator Area solely for the maintenance and operation of the Generator, and
\nthe Generator and Generator Area are solely for the benefit of Tenant. All
\nelectricity generated by the Generator may only be consumed by Tenant in the
\nPremises.<\/p>\n
A. Tenant shall have no obligation to pay Yearly Rent, Tax Excess or
\nOperating Expense Excess in respect of the Generator Area.<\/p>\n
B. Landlord shall have no obligation to provide any services including,
\nwithout limitation, electric current, to the Generator Area.<\/p>\n
C. Tenant shall have no right to make any changes, alterations,
\nadditions, decorations or other improvements (collectively “Installations”) to
\nthe Generator Area without Landlord’s prior written consent, , which shall not
\nbe unreasonably withheld or delayed, except for matters of aesthetics, which
\nshall be determined in Landlord’s sole discretion.<\/p>\n
D. Tenant shall be responsible for the cost of repairing any damage to
\nthe Building, or the cost of any necessary improvements to the Building, caused
\nby or as a result of the installation of the Generator and\/or any Installations.<\/p>\n
E. Tenant shall have no right to sublet the Generator Area or to assign
\nits interest hereunder, except in connection with an assignment or sublease
\npermitted hereunder or otherwise approved by Landlord in accordance with the
\nterms hereof.<\/p>\n
F. To the maximum extent permitted by law, the Generator and all
\nInstallations in the Generator Area shall be at the sole risk of Tenant, and
\nLandlord shall have no liability to Tenant in the event that the Generator or
\nany Installations are damaged for any reason, except to the extent caused by the
\ngross negligence or willful malfeasance of Landlord, its agents or contractors.<\/p>\n
G. Tenant shall take the Generator Area “as-is” in the condition in
\nwhich the Generator Area is in as of the Term Commencement Date in respect of
\nthe Generator, without any obligation on the part of Landlord to prepare or
\nconstruct the Generator Area for Tenant’s use or occupancy. Without limiting the
\nforegoing, Landlord makes no warranties or representations to Tenant as to the
\nsuitability of the Generator Area for the installation and operation of the
\nGenerator.<\/p>\n
H. In addition to and without limiting Tenant’s obligations under the
\nLease, Tenant shall comply with all applicable environmental and fire prevention
\nlaws, ordinances and regulations in Tenant’s use of the Generator Area.<\/p>\n
I. In addition to and without limiting Tenant’s obligations under the
\nLease, Tenant covenants and agrees that the installation and use of the
\nGenerator and Installations shall not adversely affect the insurance coverage
\nfor the Building. If for any<\/p>\n
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\n 79
\nreason, the installation or use of the Generator and\/or the Installations shall
\nresult in an increase in the amount of the premiums for such coverage, then
\nTenant shall be liable for the full amount of any such increase.<\/p>\n
J. Tenant shall, at Tenant’s sole cost and expense, repair and maintain
\nthe Generator and Installations.<\/p>\n
K. In addition to and without limiting the insurance provisions of the
\nLease, Tenant shall procure, keep in force and pay for Commercial General
\nLiability Insurance in respect of the Generator Area of not less than Ten
\nMillion ($10,000,000.00) Dollars in the event of personal injury to any number
\nof persons or damage to property, arising out of any one occurrence and such
\ninsurance shall name Landlord as an additional insured party.<\/p>\n
L. In addition to and without limiting the indemnification provisions
\nset forth in the Lease, Tenant shall, to the maximum extent permitted by law,
\nindemnify, defend, and hold Landlord harmless from any and all claims, losses,
\ndemands, actions, or causes of actions suffered by any person, firm,
\ncorporation, or other entity arising from Tenant’s use of the Generator Area.<\/p>\n
M. Notwithstanding anything to the contrary herein or in the Lease
\ncontained, in the event that at any time during the term of the Lease in respect
\nof the Generator Area, Landlord determines, in its sole but bona fide business
\njudgment, that the periodic testing of the Generator interferes with the
\noperation of the Building or the operations of any of the occupants of the
\nBuilding, then Tenant shall, upon notice from Landlord, cause all further
\ntesting of the Generator to occur after normal business hours. Other than for
\nperiodic testing as aforesaid, in no event shall Tenant be entitled to operate
\nthe Generator except in cases of a power outage to the Premises or any portion
\nthereof.<\/p>\n
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\n 80
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 1
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
LEASE DATA<\/p>\n
Execution Date: December 1, 1999<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n a Delaware corporation<\/p>\n
Mailing Address: Akamai Technologies, Inc.<\/p>\n
Prior to the Term Commencement Date in respect of Portion A:
\n 201 Broadway
\n Cambridge, Massachusetts 02139<\/p>\n
After the Term Commencement Date in respect of Portion A:
\n 575 Technology Square
\n Cambridge, Massachusetts 02139-3539<\/p>\n
Landlord: TECHNOLOGY SQUARE LLC, a Delaware limited liability
\n company (the sole manager of which is Beacon Capital
\n Partners L.P., a Delaware limited partnership d\/b\/a
\n Beacon Capital Partners Limited Partnership; the sole
\n general partner of which is Beacon Capital Partners,
\n Inc., a Maryland corporation)<\/p>\n
Mailing Address: c\/o Beacon Capital Partners, One Federal Street, Boston,
\n Massachusetts 02110, Attention: General Counsel<\/p>\n
Complex: The land, buildings and other improvements thereon, from
\n time to time, located off Main Street in the City of
\n Cambridge, Middlesex County, Commonwealth of Massachusetts
\n known as Technology Square. The Complex is initially
\n substantially as shown on Exhibit 6, Sheet 1, and the legal
\n description of the Complex is set forth on Exhibit 6, Sheets
\n 2, 3, and 4; however, the Complex may change from time to
\n time as set forth herein.<\/p>\n
Building: 575 Technology Square, Cambridge, Massachusetts<\/p>\n
Existing
\nPremises: The entirety of the second (2nd), third (3rd), fourth (4th),
\n fifth (5th), sixth (6th) and seventh (7th) floors of the
\n Building, substantially as shown on Lease Plan, Exhibit 2,
\n Sheets 1, 2, 3, 4, 5 and 6. The portion of the Premises on
\n the third (3rd), fourth (4th), fifth (5th), and sixth
\n (6th)floors are hereinafter referred to as “Portion “A” of
\n 81
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 2
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
the Premises. The second (2nd) and seventh (7th) floors
\n of the Premises are hereinafter referred to as “Portion
\n B” of the Premises and each of Portion A and Portion B is
\n hereinafter referred to as a “Portion” of the Premises.<\/p>\n
First Amendment
\nAdditional Premises: First Floor Premises:<\/p>\n
An area on the first (1st) floor of the Building,
\n substantially as shown on Lease Plan, Exhibit 2, First
\n Amendment<\/p>\n
Tenth Floor Premises:<\/p>\n
An area on the tenth (10th) floor of the Building,
\n substantially as shown on Lease Plan, Exhibit 2, First
\n Amendment<\/p>\n
Basement Premises:<\/p>\n
An area on the basement floor of the Building,
\n substantially as shown on Lease Plan, Exhibit 2, First
\n Amendment<\/p>\n
The First Floor Premises, the Tenth Floor Premises and
\n the Basement Premises are collectively referred to herein
\n as the First Amendment Additional Premises.<\/p>\n
Art. 3.1 Specified Commencement Date in respect of:
\n Portion A: January 18, 2000
\n Portion B: June 1, 2000
\n First Amendment
\n Additional Premises: March 7, 2000<\/p>\n
Art. 3.2 Termination Date: Seven (7) years after the
\n Term Commencement Date in
\n respect of Portion A<\/p>\n
Art. 4 Final Plans Date in respect of:
\n Portion A: October 18, 1999
\n Portion B: December 1, 1999
\n First Floor Premises: December 31, 1999
\n Basement Premises: January 14, 2000<\/p>\n
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\n 82
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 3
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
Art. 5 Use of Premises: General business office use<\/p>\n
Art. 6 Yearly Rent in respect of:<\/p>\n
Portion A:<\/p>\n
\n\n Lease Year Yearly Rent Monthly Payment<\/p>\n
\n 1 – 2:(1) $2,677,200.00(2) $223,100.00(2)<\/p>\n Lease Years 3 – 4: $2,784,288.00 $232,024.00<\/p>\n
Lease Years 5 – 7: $2,927,072.00 $243,922.67
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Portion B:<\/p>\n
\n\n Time Period Yearly Rent Monthly Payment<\/p>\n
\n Term Commencement
\n Date in respect of
\n Portion B –
\n end of Lease Year 2: $1,383,220.00 $115,268.33<\/p>\n Lease Years 3 – 4: $1,409,992.00 $117,499.33<\/p>\n
Lease Years 5 – 7: $1,499,232.00 $124,936.00
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
First Amendment Additional Premises:<\/p>\n
First Floor Premises:<\/p>\n
\n\n Time Period Yearly Rent Monthly Payment
\n
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n——–
\n(1) For the purposes of this Lease, “Lease Year 1” shall be defined as the
\ntwelve-(12)-month period commencing as of the Term Commencement Date in respect
\nof Portion A and ending on the last day of the month in which the first (1st)
\nanniversary of the Term Commencement Date in respect of Portion A occurs.
\nThereafter, “Lease Year” shall be defined as any twelve (12) month period during
\nthe term of the Lease commencing as of the first (1st) day of the month
\nfollowing the month in which any anniversary of the Term Commencement Date
\noccurs.<\/p>\n
(2) Subject to Article 6(a).<\/p>\n
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\n 83
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 4
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
Term Commencement Date
\n in respect of First Amendment
\n Additional Premises –
\n end of Lease Year 2: $241,950.00 $20,162.50<\/p>\n
Lease Years 3 – 4: $251,628.00 $20,969.00<\/p>\n
Lease Years 5 – 7: $264,531.96 $22,044.33<\/p>\n
Tenth Floor Premises:<\/p>\n
Time Period Yearly Rent Monthly Payment<\/p>\n
Term Commencement Date
\n in respect of First Amendment
\n Additional Premises –
\n end of Lease Year 7: $7,200.00 $600.00<\/p>\n
Basement Premises:<\/p>\n
Time Period Yearly Rent Monthly Payment<\/p>\n
Term Commencement Date
\n in respect of First Amendment
\n Additional Premises –
\n end of Lease Year 7: $27,500.00 $2,291.67<\/p>\n
Art. 7 Total Rentable Area of the Premises:<\/p>\n
Portion A: 71,392 square feet (i.e., 17,848
\n square feet for each of the, third
\n (3rd), fourth (4th), fifth (5th)
\n and sixth (6th) floors)<\/p>\n
Portion B: 35,696 square feet (i.e., 17,848
\n square feet for each of the<\/p>\n
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\n 84
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 5
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
second (2nd) and
\n seventh (7th) floors)<\/p>\n
First Amendment
\n Additional Premises:<\/p>\n
First Floor Premises: 6,452 square feet<\/p>\n
Tenth Floor Premises: 480 square feet<\/p>\n
Basement Premises: 1,375 square feet<\/p>\n
Total First Amendment
\n Additional Premises: 8,307 square feet (Note: the
\n Tenth Floor Premises are not
\n provided with any Landlord
\n services, so they are not included
\n in the calculations for Tenant’s
\n Share of Operating Expense Excess
\n or Tax Excess)<\/p>\n
Total Rentable Area of the Building: 173,584 square feet<\/p>\n
Initial Total Rentable Area of the Complex: 532,279 square
\n feet<\/p>\n
Art. 8 Electricity: Electric current will be metered and paid for
\n by Tenant in accordance with Article 8.1 of
\n the Lease.<\/p>\n
Art. 9 Operating and Tax Escalation:<\/p>\n
Operating Expense Excess:<\/p>\n
Tenant’s Building Operating Cost Percentage in respect of:
\n Portion A: 41.13%(2)
\n Portion B: 20.56%
\n First Amendment
\n Additional Premises: 4.51%<\/p>\n
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\n 85
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 6
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
Note: Tenant’s Building Operating Cost
\n Percentage is a ratio of the Total
\n Rentable Area of the Portion of the
\n Premises to the Total Rentable Area
\n of the Building, and will change if the
\n Total Rentable Area of the Building
\n changes.<\/p>\n
Tenant’s Complex Operating Cost Percentage in respect of:
\n Portion A: 13.41%(2)
\n Portion B: 6.71%
\n First Amendment
\n Additional Premises: 1.47%
\n Note: Tenant’s Complex Operating Cost Percentage
\n is a ratio of the Total Rentable Area of the
\n Portion of the Premises to the Total
\n Rentable Area of the Complex, and will
\n change if the Total Rentable Area of the
\n Complex changes.<\/p>\n
Building Operating Costs Base: The actual amount of
\n Building Operating Costs for calendar year 2000,
\n adjusted pursuant to Article 9.6 Complex Operating
\n Costs Base: Complex Operating Costs for calendar year
\n 2000, adjusted pursuant to Article 9.6<\/p>\n
Tax Excess:<\/p>\n
Tenant’s Building Tax Percentage in respect of:
\n Portion A: 41.13%(2)
\n Portion B: 20.56%
\n First Amendment
\n Additional Premises: 4.51%<\/p>\n
Note: Tenant’s Building Tax Percentage is a ratio of
\n the Total Rentable Area of the Portion of the
\n Premises to the Total Rentable Area of the
\n Building, and will change if the Total Rentable
\n Area of the Building changes.<\/p>\n
-6-
\n 86
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 7
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
Building Tax Base: The arithmetic average of the actual
\n amount of Building Taxes for fiscal tax
\n year 2000 (i.e., July 1, 1999 – June 30,
\n 2000) and fiscal tax year 2001 (i.e.,
\n July 1, 2000-June 30, 2001)<\/p>\n
Tenant’s Complex Tax Percentage in respect of:
\n Portion A: 13.41%(2)
\n Portion B: 6.71%
\n First Amendment
\n Additional Premises: 1.47%
\n Note: Tenant’s Complex Tax Percentage is a ratio of
\n the Total Rentable Area of the Portion of the
\n Premises to the Total Rentable Area of the
\n Complex, and will change if the Total Rentable
\n Area of the Complex changes.<\/p>\n
Complex Tax Base: The arithmetic average of the actual
\n amount of Land Taxes for fiscal tax
\n year 2000 (i.e., July 1, 1999 – June
\n 30, 2000) and fiscal year 2001 (i.e.,
\n July 1, 2000-June 30, 2001)<\/p>\n
Art. 29.3 Co-Brokers: Insignia\/ESG and Spaulding & Slye<\/p>\n
Art. 29.5 Arbitration: Superior Court; Middlesex County<\/p>\n
Exhibit Date: Lease Plan, Exhibit 2, Sheets
\n 1, 2, 3, 4, 5 and 6 dated September
\n 22, 1999 and Lease Plan, Exhibit 2,
\n First Amendment, dated December 1,
\n 1999, Sheets 1 and 2<\/p>\n
-7-
\n 87
\n REVISED EXHIBIT 1, FIRST AMENDMENT, SHEET 8
\n Building No. 575
\n TECHNOLOGY SQUARE
\n Cambridge, Massachusetts<\/p>\n
Tenant: AKAMAI TECHNOLOGIES, INC.
\n Execution Date: December 2, 1999<\/p>\n
LANDLORD: TENANT:<\/p>\n
TECHNOLOGY SQUARE LLC, AKAMAI TECHNOLOGIES, INC.
\na Delaware limited liability company a Delaware corporation<\/p>\n
By: Beacon Capital Partners L.P.,
\n a Delaware limited partnership
\n d\/b\/a Beacon Capital Partners
\n Limited Partnership, its manager<\/p>\n
By: Beacon Capital Partners, Inc., a
\n Maryland corporation, its general
\n partner<\/p>\n
By: _______________________ By: _______________________
\n Name: Thomas Ragno Name: _____________________
\n Title: Senior Vice President Title: ______________________<\/p>\n
Date Signed: _______________________ Date Signed: ________________<\/p>\n
-8-
\n 88
\n Building No. 575
\n Technology Square
\n Cambridge, Massachusetts
\n (“the Building”)<\/p>\n
FIRST AMENDMENT
\n December 1, 1999<\/p>\n
LANDLORD: Technology Square LLC<\/p>\n
TENANT: Akamai Technologies, Inc.<\/p>\n
EXISTING PREMISES: The entirety of the second (2nd), third
\n (3rd), fourth (4th), fifth (5th), sixth
\n (6th) and seventh (7th) floors of the
\n Building, substantially as shown on
\n Lease Plan, Exhibit 2, Sheets 1, 2, 3,
\n 4, 5 and 6. The portion of the Premises
\n on the third (3rd), fourth (4th), fifth
\n (5th), and sixth (6th)floors are
\n hereinafter referred to as “Portion “A”
\n of the Premises. The second (2nd) and
\n seventh (7th) floors of the Premises
\n are hereinafter referred to as “Portion
\n B” of the Premises and each of Portion
\n A and Portion B is hereinafter referred
\n to as a “Portion” of the Premises,
\n substantially as shown on Lease Plan
\n Exhibit 2, Sheets 1, 2, 3, 4, 5 and 6,
\n dated September 22, 1999<\/p>\n
ORIGINAL
\nLEASE LEASE
\nDATA EXECUTION
\n DATE: September 22, 1999<\/p>\n
TERMINATION
\n DATE: Seven (7) years after the Term
\n Commencement Date in respect of Portion
\n A<\/p>\n
PREVIOUS
\n LEASE
\n AMENDMENTS: None<\/p>\n
-1-
\n 89
\nFIRST AMENDMENT
\nADDITIONAL
\nPREMISES:<\/p>\n
First Floor Premises:<\/p>\n
An area on the first (1st) floor of the Building, consisting
\n of 6,452 square feet of Total Rentable Area, substantially as
\n shown on Lease Plan, Exhibit 2, First Amendment, Sheet 1 dated
\n December 1, 1999, a copy of which is attached hereto and
\n incorporated by reference herein<\/p>\n
Tenth Floor Premises:<\/p>\n
An area on the tenth (10th) floor of the Building, consisting
\n of 480 square feet of Total Rentable Area, substantially as
\n shown on Lease Plan, Exhibit 2, First Amendment, Sheet 2 dated
\n December 1, 1999, a copy of which is attached hereto and
\n incorporated by reference herein<\/p>\n
Basement Premises:<\/p>\n
An area on the basement floor of the Building, consisting of
\n 1,375 square feet of Total Rentable Area, substantially as
\n shown on Lease Plan, Exhibit 2, First Amendment, Sheet 3 dated
\n December 1, 1999, a copy of which is attached hereto and
\n incorporated by reference herein<\/p>\n
The First Floor Premises, the Tenth Floor Premises and the Basement
\n Premises are collectively referred to herein as the First Amendment
\n Additional Premises.<\/p>\n
WHEREAS, Tenant desires to lease additional premises located in the
\nBuilding, to wit, the First Amendment Additional Premises;<\/p>\n
WHEREAS, Landlord is willing to lease the First Amendment Additional
\nPremises to Tenant on the terms and conditions hereinafter set forth;<\/p>\n
NOW THEREFORE, the parties hereby agree that the above-referenced lease
\n(the “Lease”) is hereby amended as follows:<\/p>\n
-2-
\n 90
\n 1. DEMISE OF THE FIRST AMENDMENT ADDITIONAL PREMISES<\/p>\n
Landlord hereby demises and leases to Tenant, and Tenant hereby hires
\nand takes from Landlord, the First Amendment Additional Premises for a term
\ncommencing as of the Term Commencement Date in respect of First Amendment
\nAdditional Premises, as hereinafter defined. Said demise of the First Amendment
\nAdditional Premises shall be upon the terms set forth on Revised Exhibit 1,
\nFirst Amendment, Sheets 1, 2, 3 and 4, dated December 1, 1999, a copy of which
\nis attached hereto and incorporated by reference herein, and upon all of the
\nother terms and conditions of the Lease in respect of Portion A (including,
\nwithout limitation, Tenant’s option to extend the term of the Lease, pursuant to
\nParagraph 2 of the Rider to the Lease), except as follows:<\/p>\n
A. The Specified Commencement Date in respect of the First Amendment
\nAdditional Premises shall be March 7, 2000.<\/p>\n
B. The Term Commencement Date in respect of the First Amendment
\nAdditional Premises shall be defined as the earlier of: (i) the date as of which
\nthe First Amendment Work, as defined in Paragraph 2 hereof, is substantially
\ncomplete, other than the installation of the stairway between the first and
\nsecond floors, and those items of the First Amendment Work which cannot
\npracticably be completed prior to the installation of said stairway (such as,
\nfor example, the installation of carpeting in the immediate vicinity of such
\nstairway) or which are delayed as a result of the installation of the stairway,
\nor (ii) the date that Tenant first takes possession of the First Amendment
\nPremises, or any portion thereof, for use as set forth on Revised Exhibit 1.
\nLandlord agrees to use good faith efforts to complete those portions of the
\nFirst Amendment Work which are not complete as of the Term Commencement Date in
\nrespect of the First Amendment Additional Premises promptly after such date.<\/p>\n
C. In the event that any of the provisions of the Lease are
\ninconsistent with this Amendment or the state of facts contemplated hereby, the
\nprovisions of this Amendment shall control.<\/p>\n
2. LANDLORD’S WORK IN RESPECT OF FIRST AMENDMENT ADDITIONAL
\n PREMISES<\/p>\n
Landlord shall perform the work shown on Tenant’s final approved plans
\nwith respect to the First Amendment Additional Premises (“First Amendment
\nWork”). The First Amendment Work shall be performed in accordance with the
\nprovisions of the Lease applicable to the performance of Landlord’s Work with
\nrespect to Portion A (the parties hereby agreeing that the First Amendment
\nAdditional Premises shall be deemed to be a separate Portion of the Premises,
\nfor the purposes of Article 4 of the Lease), except that:<\/p>\n
A. Articles 4.1(b) and 4.1(c) of the Lease shall have no applicability
\nto the First Amendment Additional Premises or the performance of the First
\nAmendment Work, except that if Tenant exercises its right, pursuant to Article
\n4.1(c) to terminate the Lease<\/p>\n
-3-
\n 91
\nbased upon the failure of the Term Commencement Date to occur on or before the
\nOutside Target Date, as defined in Article 4.1(c), then the term of the Lease in
\nrespect of the First Amendment Additional Premises shall terminate as of the
\neffective termination date of the Lease pursuant to said Article 4.1(c)
\n(“Effective Termination Date”); and<\/p>\n
B. The Final Plans Date with respect to the First Floor Premises shall
\nbe December 31, 1999, and the Final Plans Date with respect to the Basement
\nPremises shall be January 14, 2000. Tenant has submitted progress prints of the
\nplans for the First Floor Premises to Landlord. Landlord agrees to review the
\nplans submitted by Tenant and to comment thereon within three (3) business days
\nof Landlord’s receipt thereof;<\/p>\n
C. Landlord’s Contribution in respect of the First Floor Premises shall
\nbe up to Thirty Dollars ($30.00) per square foot of Total Rentable Area of the
\nFirst Floor Premises. There shall be no Landlord’s Contribution in respect of
\nthe Tenth Floor Premises or the Basement Premises; and<\/p>\n
D. Landlord and Tenant acknowledge that the Tenth Floor Premises shall
\nbe used for the purpose set forth in Revised Exhibit 1, First Amendment, and
\nthat no Landlord services other than lights, heat and elevator service (Tenant
\nacknowledging that only one elevator serves the Tenth Floor Premises) shall be
\nprovided thereto, and that no Operating Expense Excess or Tax Excess shall be
\npayable with respect to the Tenth Floor Premises.<\/p>\n
3. REVISED EXHIBIT 1, FIRST AMENDMENT<\/p>\n
Exhibit 1, Sheets 1, 2, 3, 4 and 5 dated September 22, 1999 is hereby
\ndeleted in its entirety and Revised Exhibit 1, First Amendment, Sheets 1, 2, 3,
\n4 and 5 dated December 1, 1999 shall be substituted in its place.<\/p>\n
4. REMEASUREMENT OF BUILDING AND COMPLEX<\/p>\n
The parties hereby agree that the Total Rentable Area of the Building
\nand the Initial Total Rentable Area of the Complex shall be revised as follows:<\/p>\n
A. The Total Rentable Area of the Building is 173,584 square
\n feet.<\/p>\n
B. The Initial Total Rentable Area of the Complex is 532,279
\n square feet.<\/p>\n
5. SHOWERS AND LOCKERS<\/p>\n
Landlord acknowledges that Tenant shall have the right, in common with
\nothers entitled thereto and subject to such rules and regulations as Landlord
\nmay from time to time promulgate with respect thereto, to use the showers and
\nlocker room located in the Basement of the Building, as the same may be changed
\nby Landlord from time to time in<\/p>\n
-4-
\n 92
\naccordance with the terms of the Lease, without charge, except that the costs of
\nmaintaining and operating such facilities may be included in Operating Expenses.<\/p>\n
6. Reference is made to the fact that Landlord is constructing a
\nlavatory on the First Floor of the Building. Landlord hereby agrees that (i) the
\nlavatory shall be for the exclusive use of Tenant, (ii) the only door to the
\nlavatory shall open into the First Floor Premises, (iii) Landlord shall not add
\nany other door to the lavatory, (iv) no tenant or occupant of the Building other
\nthan Tenant shall have any right to access or use the lavatory, and (v) there
\nshall be no adjustment of Tenant’s rent or Tenant’s share of operating expenses
\nor taxes for the building or the Complex as a result of Tenant’s exclusive right
\nto use the lavatory as aforesaid. Without limiting the foregoing, if Landlord
\ndetermines that it is necessary to provide other tenants or occupants with a
\nlavatory on the First Floor of the Building (whether to comply with any
\napplicable law or for any other reason) then Landlord shall construct a separate
\nlavatory for such tenants and occupants. Tenant agrees that all of its
\nobligations concerning repairs, maintenance, cleaning, insurance and indemnity
\nwhich apply to the First Floor Premises shall also apply to such lavatory.<\/p>\n
7. As hereby amended, the Lease is ratified, confirmed and approved in
\nall respects.<\/p>\n
-5-
\n 93
\n EXECUTED under seal as of the date first above-written.<\/p>\n
LANDLORD: TENANT:
\nTECHNOLOGY SQUARE LLC, AKAMAI TECHNOLOGIES, INC.
\na Delaware limited liability company<\/p>\n
By: Beacon Capital Partners L.P.,
\n a Delaware limited partnership
\n d\/b\/a Beacon Capital Partners
\n Limited Partnership, its manager<\/p>\n
By: Beacon Capital Partners, Inc., a
\n Maryland corporation, its general
\n partner<\/p>\n
By: \/s\/ Thomas Ragno By: \/s\/ Paul Sagan
\n —————————- —————————
\n Name: Thomas Ragno Name: Paul Sagan
\n Title: Senior Vice President Title: President
\n Hereunto Duly Authorized<\/p>\n
Date Signed: January 25, 2000 Date Signed: January 18, 2000
\n —————- —————-<\/p>\n
-6-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6606],"corporate_contracts_industries":[],"corporate_contracts_types":[9594,9579],"class_list":["post-41747","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-akamai-technologies-inc","corporate_contracts_types-land__ma","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41747","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41747"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41747"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41747"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41747"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}