\n29. MISCELLANEOUS 64
\n 29.1 SEPARABILITY………………………………………..64
\n 29.2 CAPTIONS, ETC……………………………………….64
\n 29.3 BROKER……………………………………………..65
\n 29.4 MODIFICATIONS……………………………………….65
\n 29.5 ARBITRATION…………………………………………65
\n 29.6 GOVERNING LAW……………………………………….66
\n 29.7 ASSIGNMENT OF RENTS………………………………….66
\n 29.8 REPRESENTATION OF AUTHORITY…………………………..66
\n 29.9 EXPENSES INCURRED BY LANDLORD UPON TENANT REQUESTS………66
\n 29.10 RETAIL AREA…………………………………………67
\n 29.11 SURVIVAL……………………………………………67<\/p>\nEXHIBIT 2 Lease Plan 69<\/p>\n
EXHIBIT 2-1 Plan of Complex 70<\/p>\n
EXHIBIT 3 Requirements for Tenant’s Plans 71<\/p>\n
EXHIBIT 4 Building Services 72<\/p>\n
EXHIBIT 5 Form of Letter of Credit 75<\/p>\n
EXHIBIT 6 Base Building Specifications 77<\/p>\n
EXHIBIT 7 Exterior Signage 78<\/p>\n
EXHIBIT 8 Tenant’s Removable Property 79<\/p>\n
RIDER TO LEASE 80
\n<\/c><\/s><\/table>\n
-iv-
\n 9<\/p>\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 in
\nany Exhibit attached to this Lease shall be deemed and construed to incorporate
\nthe 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 Building as
\ndescribed 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 Premises,
\nrights to use in common, with others entitled thereto, subject to reasonable
\nrules from time to time made by Landlord of which Tenant is given notice; (a)
\nthe common lobbies, hallways, stairways and elevators of the Building, serving
\nthe Premises in common with others, (b) common walkways necessary for access to
\nthe Building, and (c) if the Premises include less than the entire rentable area
\nof any floor, the common toilets and other common facilities of such floor; and
\nno other appurtenant rights or easements. Landlord shall allow Tenant’s
\ntelecommunication service provider to have access to the Building and to
\nTenant’s Premises, provided however, that Landlord shall have the right to
\ncharge Tenant’s provider fees in connection with the services being performed by
\nsuch provider. Notwithstanding the foregoing, so long as Tenant’s
\ntelecommunications service provider (“Provider”) does not provide
\ntelecommunications service to any other tenant of the Building, Landlord shall
\nnot require such Provider to pay any fees for such access.<\/p>\n
2.3 PARKING. During the term of the Lease, commencing on the Rent
\nCommencement Date (and, if there is more than one Rent Commencement Date
\npursuant to Article 3.1 hereof commencing on a pro rata basis with each such
\nRent Commencement Date), the Landlord will make available, at Tenant’s written
\nrequest, which request must be made on or before the Full Rent Commencement
\nDate, up to one and one-half (1.5) monthly parking passes per 1,000 square feet
\nof Total Rentable Area leased by Tenant (the “Parking Space Cap”) for use in the
\ngarage of the Complex or surface parking areas in the Building, as the same may
\nchange from time to time (“Parking Areas”). If Tenant fails timely to make such
\nrequest for any such parking passes, Tenant shall have no right to obtain such
\nparking passes under this Article 2.3, except to the extent thereafter
\navailable, as more specifically set forth herein. If Tenant requests fewer
\npasses than the Parking Space Cap prior to the Full Rent Commencement Date,
\nTenant shall have the right, from time to time during the term of the Lease, to
\nrequest additional parking passes up to the Parking Space Cap. If Landlord has
\nsuch passes available, Landlord will provide the same to Tenant (but in no event
\nmore than the Parking Space Cap), provided<\/p>\n
-1-
\n 10<\/p>\n
however, that, if such passes are not available, Landlord shall have no
\nobligation to provide additional passes to Tenant. Tenant shall have no right to
\nsublet, assign, or otherwise transfer said parking passes, other than to an
\nAssignee 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 (including, without limitation, Landlord’s
\nright, without additional charge to Tenant above the prevailing rate for parking
\npasses, to institute a valet or attendant-managed parking system), from time to
\ntime in force.<\/p>\n
2.4 EXCLUSIONS AND RESERVATIONS. All the perimeter walls of the Premises
\nexcept the inner surfaces thereof, any balconies (except to the extent same are
\nshown as part of the Premises on the Lease Plan (Exhibit 2)), terraces or roofs
\nadjacent to the Premises, and any space in or adjacent to the Premises used for
\nshafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms,
\nducts, electric or other utilities, sinks or other Building facilities, and the
\nuse 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 follow
\nmean and include the following:<\/p>\n
(a) “SPECIFIED COMMENCEMENT DATE” – The “Specified Commencement Date”
\nis the date (as stated in Exhibit 1) on which it is estimated that Landlord’s
\nWork Necessary to Trigger Term Commencement Date will be substantially
\ncompleted.<\/p>\n
(b) “TERM COMMENCEMENT DATE” – The “Term Commencement Date” is the
\ndate on which the First Substantial Completion Date, as defined in Article
\n4.0(b), occurs.<\/p>\n
(c) “RENT COMMENCEMENT DATE” – Subject to the provisions of this
\nArticle 3.1(c), the “Rent Commencement Date” is the earlier of (i) the Outside
\nRent Commencement Date, as defined in Article 3.1(d), or (ii) the date Tenant
\ntakes possession of the whole of the Premises for use and operation of Tenant’s
\nbusiness as set forth in Exhibit 1. If Tenant takes earlier possession of any
\nportion of any floor on which the Premises are located prior to the Outside Rent
\nCommencement Date for use as set forth in Exhibit 1, then the Rent Commencement
\nDate for the entirety of the portion of the Premises located on such floor shall
\noccur as of the date that Tenant first takes such possession. As used herein,
\nthe term “FULL RENT COMMENCEMENT DATE” shall mean the date on which the Rent
\nCommencement Date has occurred for the entirety of the Premises.<\/p>\n
(d) “OUTSIDE RENT COMMENCEMENT DATE” – Subject to the provisions of
\nthis Article 3.1(d), the “Outside Rent Commencement Date” shall be later of: (i)
\none hundred fifty (150) days after the Term Commencement Date, or (ii) one
\nhundred twenty (120) days after<\/p>\n
-2-
\n 11<\/p>\n
the Third and Fourth Floor Substantial Completion Date, as hereinafter defined,
\nor (iii) ninety (90) days after the First and Second Floor Substantial
\nCompletion Date, as hereinafter defined, or (iv) sixty (60) days after the
\nPermanent Power Turn-On Date, as hereinafter defined, or (v) the Base Building
\nSubstantial Completion Date, as hereinafter defined, or (vi) five (5) days after
\nthe HVAC Operational Date, as hereinafter defined. Notwithstanding the
\nforegoing, if Tenant does not, in fact, substantially complete Tenant’s Work
\nprior to the Outside Rent Commencement Date, as determined pursuant to the first
\nsentence of this Article 3.1(d), and if any Landlord Delays occur, then the
\nOutside Rent Commencement Date shall be extended by the number of days that any
\nLandlord Delay actually delays the substantial completion of Tenant’s Work
\nbeyond the Outside Rent Commencement Date, as determined pursuant to the first
\nsentence of this Article 3.1(d).<\/p>\n
3.2 HABENDUM. TO HAVE AND TO HOLD the Premises for a term of years
\ncommencing on the Term Commencement Date and ending on the Termination Date as
\nstated in Exhibit 1 or on such earlier date upon which said term may expire or
\nbe terminated pursuant to any of the conditions of limitation or other
\nprovisions of this Lease or pursuant to law (which date for the termination of
\nthe terms hereof will hereafter be called “Termination Date”). Notwithstanding
\nthe foregoing, if the Termination Date as stated in Exhibit 1 shall fall on
\nother than the last day of a calendar month, said Termination Date shall be
\ndeemed to be the last day of the calendar month in which said Termination Date
\noccurs.<\/p>\n
3.3 DECLARATION FIXING TERM COMMENCEMENT DATE, RENT COMMENCEMENT DATE, AND
\nTERMINATION DATE. As soon as may be after the execution date hereof, each of the
\nparties hereto agrees, upon demand of the other party to join in the execution,
\nin recordable form, of a statutory notice, memorandum, etc. of lease and\/or
\nwritten declaration in which shall be stated the Term Commencement Date, the
\nRent Commencement Date(s), and (if need be) the Termination Date. If this Lease
\nis terminated before the term expires, then upon Landlord’s request the parties
\nshall execute, deliver and record an instrument acknowledging such fact and the
\ndate of termination of this Lease, and Tenant hereby appoints Landlord its
\nattorney-in-fact in its name and behalf to execute such instrument if Tenant
\nshall fail to execute and deliver such instrument after Landlord’s request
\ntherefor within ten (10) days.<\/p>\n
4. CONSTRUCTION<\/p>\n
4.0 LANDLORD’S WORK.<\/p>\n
(a) Landlord, at Landlord’s sole cost and expense, shall perform the base
\nbuilding work (“LANDLORD’S WORK”) as defined in the Base Building Specifications
\nattached hereto as Exhibit 6. Landlord shall not make any material change in the
\nBase Building Specifications without obtaining the prior written approval of
\nTenant (which approval shall not be unreasonably withheld, conditioned, or
\ndelayed). Without limiting the foregoing, Landlord shall not make any material
\nchanges in the finishes of the lobby of the Building without obtaining the prior
\nwritten approval of Tenant (which approval shall not be unreasonably withheld,
\nconditioned, or delayed). Notwithstanding the foregoing, Tenant hereby agrees
\nthat: (i) with respect to the glasswall finish adjacent to the retail areas in
\nthe lobby, Landlord may use an alternate wall finish in lieu of the materials
\nspecified in the Base Building Specifications (which alternate finish shall be
\nat least equal in quality to the finishes contained in the lobby at 500
\nTechnology Square as of the date hereof) and Landlord shall perform, as part of
\nthe Landlord’s Work, whatever sprinkler work is required by applicable codes in
\nconnection with such wall finish, and<\/p>\n
-3-
\n 12<\/p>\n
(ii) with respect to the lobby walls, Landlord may use an alternate finish in
\nlieu of the finish specified in the Base Building Specifications, provided that
\nsuch alternate finish is at least equal in quality to the finishes contained in
\nthe lobby at 500 Technology Square as of the date hereof. Subject to delays due
\nto governmental regulation, unusual scarcity of or inability to obtain labor or
\nmaterials, labor difficulties, casualty or other causes reasonably beyond
\nLandlord’s control (collectively “Landlord’s Force Majeure”), Landlord shall use
\nreasonable speed and diligence in the construction of Landlord Work Necessary to
\nTrigger Term Commencement Date (as defined in Article 4.0(g) below) so as to
\nhave the same substantially completed on or before the Specified Commencement
\nDate set forth in Exhibit 1, but Tenant shall have no claim against Landlord for
\nfailure to complete construction of Landlord’s Work, except as expressly set
\nforth in Article 4.1. In each such instance of Landlord’s Force Majeure,
\nLandlord shall exercise reasonable diligence to eliminate the cause of such
\ninability to perform.<\/p>\n
(b) The “FIRST SUBSTANTIAL COMPLETION DATE” shall be defined as the date
\non which the Landlord’s Work Necessary to Trigger Term Commencement Date, as
\ndefined in Article 4.0(g), has been substantially completed, so that any
\nremaining Landlord’s Work can be performed with a minimum of interference or
\ndelay in the progress of Tenant’s Work on the fifth floor, Tenant acknowledging,
\nhowever, the priority of Landlord’s Work, as set forth in Article 4.2(c).<\/p>\n
(c) The “THIRD AND FOURTH FLOOR SUBSTANTIAL COMPLETION DATE” shall be
\ndefined as the date on which Landlord’s Work Necessary to Trigger Third and
\nFourth Floor Substantial Completion Date, as defined in Article 4.0(h), has been
\nsubstantially completed, so that any remaining Landlord’s Work can be performed
\nwith a minimum of interference or delay in the progress of Tenant’s Work on the
\nthird and fourth floors, Tenant acknowledging, however, the priority of
\nLandlord’s Work, as set forth in Article 4.2(c). Notwithstanding the foregoing,
\nin the event of any Tenant Delays which actually delay the performance of
\nLandlord’s Work Necessary to Trigger Third and Fourth Floor Substantial
\nCompletion Date, the Third and Fourth Floor Substantial Completion Date shall be
\ndefined as the date on which Landlord’s Work Necessary to Trigger Third and
\nFourth Floor Substantial Completion Date would have been substantially completed
\nbut for such Tenant Delays.<\/p>\n
(d) The “FIRST AND SECOND FLOOR SUBSTANTIAL COMPLETION DATE” shall be
\ndefined as the date on which Landlord’s Work Necessary to Trigger First and
\nSecond Floor Substantial Completion Date, as defined in Article 4.0(i), has been
\nsubstantially completed, so that any remaining Landlord’s Work can be performed
\nwith a minimum of interference or delay in the progress of Tenant’s Work on the
\nfirst and second floors, Tenant acknowledging, however, the priority of
\nLandlord’s Work, as set forth in Article 4.2(c). Notwithstanding the foregoing,
\nin the event of any Tenant Delays which actually delay the performance of
\nLandlord’s Work Necessary to Trigger First and Second Floor Substantial
\nCompletion Date, the First and Second Floor Substantial Completion Date shall be
\ndefined as the date on which Landlord’s Work Necessary to Trigger First and
\nSecond Floor Substantial Completion Date would have been substantially completed
\nbut for such Tenant Delays.<\/p>\n
(e) The “PERMANENT POWER TURN-ON DATE” shall be defined as the date on
\nwhich Landlord has made permanent electric power and the base building heating
\nand air conditioning system operational for the entire Premises, except that in
\nthe event of any Tenant Delays which actually delay Landlord’s ability to
\nachieve the Permanent Power Turn-On Date, the Permanent Power Turn-On Date shall
\nbe defined as the date on which Landlord would have been able to<\/p>\n
-4-
\n 13<\/p>\n
make permanent electric power and the base building heating and air conditioning
\nsystem operational for the entire Premises but for such Tenant Delays.<\/p>\n
(f) The “BASE BUILDING SUBSTANTIAL COMPLETION DATE” shall be defined as
\nthe date on which Landlord’s Work Necessary to Trigger Rent Commencement Date,
\nas defined in Article 4.0(j), has been substantially completed, except that in
\nthe event of any Tenant Delays which actually delay the performance of
\nLandlord’s Work Necessary to Trigger Rent Commencement Date, the Base Building
\nSubstantial Completion Date shall be defined as the date on which Landlord’s
\nWork Necessary to Trigger Rent Commencement Date would have been substantially
\ncompleted but for such Tenant Delays.<\/p>\n
(g) The “LANDLORD WORK NECESSARY TO TRIGGER TERM COMMENCEMENT DATE” shall
\nbe defined as the following items of work:<\/p>\n
i.) Site utilities serving the Building;
\n ii.) Foundation piles, grade beams, and structural slab on grade;
\n iii.) Under slab drainage and utilities;
\n iv.) Structural steel erected and set;
\n v.) Composite concrete decks;
\n vi.) Spray fireproofing;
\n vii.) Precast concrete Building exterior panels;
\n viii.) The fifth floor is Building Tight, as defined in Article
\n 4.0(k), and
\n ix.) Any other portions of Landlord’s Work necessary to enable
\n Tenant and its contractor to commence the Tenant’s Work (as
\n defined in Article 4.2) on the fifth floor.<\/p>\n
(h) The “LANDLORD WORK NECESSARY TO TRIGGER THIRD AND FOURTH FLOOR
\nSUBSTANTIAL COMPLETION DATE” shall be defined as the following items of work:<\/p>\n
i.) The Landlord Work Necessary to Trigger Term Commencement
\n Date;
\n ii) Both the third and fourth floors are Building Tight, as
\n defined in Article 4.0(k); and
\n iii) Any other portions of Landlord’s Work necessary to enable
\n Tenant and its contractor to commence the Tenant’s Work on
\n both the third and fourth floors.<\/p>\n
(i) The “LANDLORD WORK NECESSARY TO TRIGGER FIRST AND SECOND FLOOR
\nSUBSTANTIAL COMPLETION DATE” shall be defined as the following items of work:<\/p>\n
i.) The Landlord Work Necessary to Trigger Term Commencement
\n Date;
\n ii.) The Landlord Work Necessary to Trigger Third and Fourth
\n Floor Substantial Completion Date;
\n iii.) Both the first and second floors are Building Tight, as
\n defined in Article 4.0(k); and
\n iv.) Any other portions of Landlord’s Work necessary to enable
\n Tenant and its contractor to commence the Tenant’s Work on<\/p>\n
-5-
\n 14<\/p>\n
the second floor and in the portion of the first floor in
\n which the Premises are located.<\/p>\n
(j) The Landlord Work necessary to trigger the “BASE BUILDING SUBSTANTIAL
\nCOMPLETION DATE” shall be defined as the following items of work:<\/p>\n
i.) The Landlord Work Necessary to Trigger Term Commencement
\n Date;
\n ii.) The Landlord Work Necessary to Trigger Third and Fourth
\n Floor Substantial Completion Date;
\n iii.) The Landlord Work Necessary to Trigger First and Second
\n Floor Substantial Completion Date;
\n iv.) The following items of Landlord’s Work, to the extent not
\n included in clauses (i), (ii), and (iii) of this Article
\n 4.0(j):<\/p>\n
(a) Curtainwall;
\n (b) Roofing;
\n (c) Windows;
\n (d) Elevators;
\n (e) Mechanical, Electrical & Plumbing Systems for Building
\n Core & Shell;
\n (f) Building Cores including bathroom, mechanical,
\n electrical, and telephone\/data rooms;
\n (g) Building Lobby and Lobby interior finishes to the
\n extent which would be necessary to satisfy the
\n Certificate of Occupancy Test, as defined in Article
\n 4.0(l);
\n (h) Mechanical\/Electrical & Plumbing finishes;
\n (i) Base Building Fire Alarm Panels & Life Safety Systems;
\n (j) Exterior walkways at least five (5) feet wide and
\n sufficient to permit access to and egress from the
\n Premises and adjacent public streets and parking areas,
\n as well as around the perimeter of the Building; and
\n (k) All elements of Landlord’s Work necessary to satisfy
\n the Certificate of Occupancy Test, as further defined
\n in Article 4.0(l).<\/p>\n
Any portion of Landlord’s Work which is not completed on or before the Base
\nBuilding Substantial Completion Date which affects a particular portion of the
\nPremises, or the access thereto, shall be completed within thirty (30) days
\nafter a Certificate of Occupancy has been issued for such portion of the
\nPremises, except for (x) items of Landlord Work which are not complete due to
\ndelays caused by weather (for those items which are weather-sensitive), and (y)
\nitems of Landlord Work which are not complete due to delays caused by long lead
\ntime items and causes beyond Landlord’s reasonable control (provided, however,
\nthat items of Landlord Work which are not complete due to delays caused by long
\nlead time items and causes beyond Landlord’s reasonable control shall in any
\nevent be completed within ninety (90) days after the issuance of the Certificate
\nof Occupancy for the portion of the Premises in question). Without limiting the
\nforegoing, the final balancing of mechanical systems need not be completed as of
\nthe Rent Commencement Date, however, the air handling units serving the Premises
\nshall be<\/p>\n
-6-
\n 15<\/p>\n
operational (the date such units are made operational being herein referred to
\nas the “HVAC Operational Date”).<\/p>\n
(k) BUILDING TIGHT. Any floor shall be deemed to be “Building Tight” if
\nall of the following have been achieved:<\/p>\n
i.) The roof of the Building has been installed and is
\n weather-tight;
\n ii.) The windows on such floor have been installed and are
\n weather-tight;
\n iii.) The precast concrete on such floor has been installed and
\n is weather-tight;
\n iv.) All core walls facing the tenanted areas of such floor have
\n been substantially completed;
\n v.) The perimeter wall of the Building on such floor has been
\n installed, is weather tight and has interior drywall ready
\n for finish treatment;
\n vi.) Temporary power is available to Tenant on such floor;
\n vii.) All base building mechanical systems which are to be
\n provided to such floor have been stubbed to such floor.<\/p>\n
(l) CERTIFICATE OF OCCUPANCY TEST.<\/p>\n
i.) As a Condition to the Base Building Substantial Completion Date.
\nReference is made to clauses (g) and (j) of Article 4.0(j)(iv), which provide
\nthat, as a condition to achieving the Base Building Substantial Completion Date,
\nLandlord’s Work must have been completed to the extent necessary to enable
\nTenant to obtain a Certificate of Occupancy for the Premises (hereinafter
\nreferred to as the “Certificate of Occupancy Test”). Landlord shall apply to the
\nBuilding Inspector of the City of Cambridge (“Building Inspector”) for a
\nCertificate of Occupancy with respect to Landlord’s Work (“Base Building”) in
\norder to assist the parties in determining whether the Base Building Substantial
\nCompletion Date has occurred. If the Building Inspector issues a Base Building
\nCertificate of Occupancy, the Certificate of Occupancy Test shall be
\nconclusively deemed to have been satisfied. The parties acknowledge that: (a) if
\nTenant’s Work has not progressed to the point where Tenant is able to apply for
\na Certificate of Occupancy with respect to at least a portion of the Premises,
\nthe Building Inspector may not be willing to perform such inspection, (b) given
\nthat Tenant’s Work includes a portion of the sprinkler system, the Building
\nInspector may not be able to issue a Base Building Certificate of Occupancy if
\nTenant’s Work is not complete, and (c) other incomplete portions of Tenant’s
\nWork may prevent Landlord from obtaining a Base Building Certificate of
\nOccupancy. If the Building Inspector is willing to perform such inspection and
\nif the Building Inspector denies the issuance of the Base Building Certificate
\nof Occupancy based solely on deficiencies identified by the Building Inspector
\nin Landlord’s Work, then the Certificate of Occupancy Test shall not be deemed
\nsatisfied until Landlord corrects such deficiencies to the satisfaction of the
\nBuilding Inspector. If, despite Landlord’s application for a Base Building
\nCertificate of Occupancy, the Building Inspector does not perform such
\ninspection, or if the Building Inspector performs such inspection, but does not
\nidentify any deficiencies in Landlord’s Work and does not issue a Base Building
\nCertificate of Occupancy, then the Certificate of Occupancy Test may still be
\nsatisfied as follows: Landlord shall notify Tenant when it believes that all of
\nLandlord’s Work necessary for Tenant to obtain a Certificate of Occupancy has
\nbeen substantially completed (“Landlord’s Completion Notice”). If Tenant
\ndisputes Landlord’s assertion of substantial<\/p>\n
-7-
\n 16<\/p>\n
completion, it shall so notify Landlord within ten (10) days after receipt of
\nLandlord’s Completion Notice, whereupon such dispute shall be immediately
\nsubmitted to arbitration in accordance with the provisions of Article 29.5. The
\nparties hereby acknowledge that Tenant, and not Landlord, is responsible for all
\nitems of Tenant’s Work which must be completed in order to enable Tenant to
\nobtain a Certificate of Occupancy for the Premises and in no event shall
\nLandlord be deemed to have failed to satisfy the Certificate of Occupancy Test
\nbased upon any deficiency or lack of completion of Tenant’s Work.<\/p>\n
ii.) Tenant’s Inability to Obtain a Certificate of Occupancy after the
\nOccurrence of the Base Building Substantial Completion Date. If the Base
\nBuilding Substantial Completion Date (i.e. and the Rent Commencement Date)
\noccurs prior to the issuance of a Certificate of Occupancy with respect to any
\nportion of the Premises, and if, subsequently Tenant is denied a Certificate of
\nOccupancy with respect to any portion of the Premises, solely by reason of any
\ndeficiency in Landlord’s Work, then: (x) Landlord shall, as promptly as
\npossible, remedy such deficiency so as to remove such impediment to Tenant’s
\nobtaining such Certificate of Occupancy, and (y) Tenant’s obligation to pay
\nYearly Rent and other charges due under the Lease in respect of the portion of
\nthe Premises which Tenant is unable to occupy because it cannot obtain such
\nCertificate of Occupancy shall be fully abated during the period of time
\ncommencing as of the date that Tenant is denied such Certificate of Occupancy
\nuntil Landlord cures such deficiency in Landlord’s Work so that it is no longer
\nprevents Tenant from obtaining such Certificate of Occupancy.<\/p>\n
(m) TENANT DELAY. A “Tenant Delay” shall be defined as any act or omission
\nby Tenant, or any agent, employee, consultant, contractor, or subcontractor of
\nTenant, which causes an actual delay in the performance of Landlord’s Work
\nNecessary to Trigger Full Rent Commencement Date. Notwithstanding the foregoing,
\nno event shall be deemed to be a Tenant Delay until and unless Landlord has
\ngiven Tenant written notice (“Tenant Delay Notice”) advising Tenant: (i) that a
\nTenant Delay is occurring, (ii) of the basis on which Landlord has determined
\nthat a Tenant Delay is occurring, and (iii) the actions which Landlord believes
\nthat Tenant must take to eliminate such Tenant Delay. No period of time prior to
\nthe time that Tenant receives a Tenant Delay Notice shall be included in the
\nperiod of time charged to Tenant pursuant to such Tenant Delay Notice.<\/p>\n
(n) LANDLORD DELAY. A “Landlord Delay” shall be defined as any act or
\nomission by Landlord or any agent, employee, consultant, contractor or
\nsubcontractor of Landlord which: (i) is not a result of the priority granted to
\nLandlord’s Work as set forth in Article 4.2(c) hereof, and (ii) causes an actual
\ndelay in the performance of Tenant’s Work. Notwithstanding the foregoing, except
\nas set forth in Article 4.2(e), no event shall be deemed to be a Landlord Delay
\nuntil and unless Tenant has given Landlord written notice (“Landlord Delay
\nNotice”) advising Landlord: (i) that a Landlord Delay is occurring, (ii) of the
\nbasis on which Tenant has determined that a Landlord Delay is occurring, and
\n(iii) the actions which Tenant believes that Landlord must take to eliminate
\nsuch Landlord Delay. No period of time prior to the time that Landlord receives
\na Landlord Delay Notice shall be included in the period of time charged to
\nLandlord pursuant to such Landlord Delay Notice.<\/p>\n
(o) LANDLORD’S WARRANTY; SATISFACTION OF LANDLORD’S OBLIGATIONS UNDER
\nARTICLE 4.<\/p>\n
-8-
\n 17<\/p>\n
i.) Landlord’s Warranty. Landlord warrants to Tenant that: (x) materials
\nand equipment furnished in the performance of Landlord’s Work will be of good
\nquality and new unless otherwise required or permitted by the Base Building
\nSpecifications, (y) Landlord’s Work will be free from defects not inherent in
\nthe quality required or permitted under the Base Building Specifications, and
\n(z) Landlord’s Work will conform the requirements of the Base Building
\nSpecifications. Any portion of Landlord’s Work not conforming to the
\nrequirements of this clause (i), including substitutions not properly approved
\nand authorized, may be considered defective. Landlord’s warranty excludes remedy
\nfor damage or defect caused by abuse, modifications not executed by Landlord,
\nimproper or insufficient maintenance (other than by Landlord, where Landlord is
\nrequired to perform maintenance on the item or system in question), improper
\noperation (other than by Landlord, where Landlord operates the item or system in
\nquestion), or normal wear and tear and normal usage.<\/p>\n
ii.) Warranty Period. Landlord shall be deemed to have satisfied all of its
\nobligations under this Article 4 (including, without limitation, Landlord’s
\nwarranty obligations under this Article 4.0(o) and under Article 4.3) except to
\nthe extent that, on or before the Warranty Expiration Date, as hereinafter
\ndefined, Tenant gives written notice to Landlord in accordance with the
\nprovisions of Article 27 setting forth with specificity the manner in which
\nTenant believes that Landlord has failed to comply with its obligations under
\nthis Article 4. The “Warranty Expiration Date” shall be defined as the date
\nthree hundred fifty-eight (358) days after the Full Rent Commencement Date.<\/p>\n
iii.) Repair of Defective Work. Landlord agrees that it shall, without cost
\nto Tenant, correct any portion of Landlord’s Work which is found not to be in
\naccordance with the requirements of the warranties set forth in this Article
\n4.0(o) and in Article 4.3, unless Tenant has previously given Landlord a written
\nacceptance of such condition, provided that: Tenant gives Landlord written
\nnotice of such condition in accordance with the provisions of Article 27
\npromptly after it becomes aware of such condition, and in any event on or before
\nthe Warranty Expiration Date. The provisions of this Article 4.0(o) shall not
\nrelieve Landlord of any obligation which Landlord has to make repairs or to
\nperform maintenance pursuant to Article 8 of the Lease.<\/p>\n
(p) Any dispute between the parties with respect to the provisions of this
\nArticle 4 shall be submitted to arbitration in accordance with Article 29.5.<\/p>\n
4.1 TENANT’S REMEDIES BASED ON DELAYS IN LANDLORD’S WORK.<\/p>\n
(a) If the Term Commencement Date shall not have occurred on or before
\nOctober 1, 2001 (“INITIAL OUTSIDE COMPLETION DATE”) (which date shall be
\nextended for up to ninety (90) days on account of any Force Majeure Delays, as
\nhereinafter defined), Tenant shall have the right to terminate this Lease by
\ngiving notice to Landlord of Tenant’s desire to do so before such completion and
\nwithin the time period from the Initial Outside Completion Date (as so extended)
\nuntil the date which is thirty (30) days subsequent to the Initial Outside
\nCompletion Date (as so extended); and, upon the giving of such notice, the Term
\nof this Lease shall cease and come to an end without further liability or
\nobligation on the part of either party unless, within thirty (30) days after
\nreceipt of such notice, the Term Commencement Date occurs. If Tenant terminates
\nthe Lease pursuant to this Paragraph (a), Landlord shall return to Tenant any
\nLetter of Credit given by Tenant to Landlord within fifteen (15) business days
\nafter Landlord’s receipt written request for such return from Tenant, and
\nLandlord shall reimburse Tenant an amount equal to the<\/p>\n
-9-
\n 18<\/p>\n
lesser of: (x) Five Hundred Sixty-Eight Thousand Two Hundred Thirty
\n($568,230.00) Dollars, or (y) the actual cost incurred by Tenant through the
\nEffective Termination Date in preparing the plans and specifications for
\nTenant’s Work. Landlord shall make such payment to Tenant within thirty (30)
\ndays after Tenant delivers to Landlord evidence reasonably satisfactory to
\nLandlord of the amount such costs. Landlord shall have the right to audit
\nTenant’s books and records with respect to Tenant’s costs.<\/p>\n
(b) If the Base Building Substantial Completion Date does not occur on or
\nbefore March 1, 2002 (“INTERIM OUTSIDE COMPLETION DATE”) (which date shall be
\nextended (i) for the period of any Tenant Delays, and (ii) for up to ninety (90)
\ndays on account of any Force Majeure Delays), Tenant shall have the right to
\nterminate this Lease by giving notice to Landlord of Tenant’s desire to do so
\nbefore such completion and within the time period from the Interim Outside
\nCompletion Date (as so extended) until the date which is thirty (30) days
\nsubsequent to the Interim Outside Completion Date (as so extended); and, upon
\nthe giving of such notice (“Effective Termination Date”), the Term of this Lease
\nshall cease and come to an end without further liability or obligation on the
\npart of either party unless the Base Building Substantial Completion Date occurs
\non or before the date thirty (30) days after receipt of such notice (as so
\nextended). If Tenant has occupied part of the Premises for the Permitted Use
\nprior to such termination, then the Effective Termination Date with respect to
\nthe part of the Premises so occupied shall be ninety (90) days subsequent to the
\nInterim Outside Completion Date (as so extended). If Tenant terminates the Lease
\npursuant to this Paragraph (b), Landlord shall return to Tenant any Letter of
\nCredit given by Tenant to Landlord within fifteen (15) business days after
\nLandlord’s receipt written request for such return from Tenant, and Landlord
\nshall reimburse Tenant an amount equal to the actual cost incurred by Tenant
\nthrough the Effective Termination Date in performing and designing the Tenant’s
\nWork to the extent that such amount exceeds any portion of Landlord’s
\nContribution theretofore paid to or for the account of Tenant. Landlord shall
\nmake such payment to Tenant within thirty (30) days after Tenant delivers to
\nLandlord evidence reasonably satisfactory to Landlord of the amount such costs.
\nLandlord shall have the right to audit Tenant’s books and records with respect
\nto Tenant’s costs.<\/p>\n
(c) If the Base Building Substantial Completion Date does not occur on or
\nbefore June 1, 2002 (“FINAL OUTSIDE COMPLETION DATE”) (which date shall be
\nextended for the period of any Tenant Delays), Tenant shall have the right to
\nterminate this Lease by giving notice to Landlord of Tenant’s desire to do so
\nbefore such completion and within the time period from the Final Outside
\nCompletion Date until the date which is thirty (30) days subsequent to the Final
\nOutside Completion Date; and, upon the giving of such notice (“Effective
\nTermination Date”), the Term of this Lease shall cease and come to an end
\nwithout further liability or obligation on the part of either party unless the
\nBase Building Substantial Completion Date occurs on or before the date thirty
\n(30) days after receipt of such notice. If Tenant has occupied part of the
\nPremises for the Permitted Use prior to such termination, then the Effective
\nTermination Date with respect to the part of the Premises so occupied shall be
\nninety (90) days subsequent to the Final Outside Completion Date. If Tenant
\nterminates the Lease pursuant to this Paragraph (c), Landlord shall return to
\nTenant any Letter of Credit given by Tenant to Landlord within fifteen (15)
\nbusiness days after Landlord’s receipt written request for such return from
\nTenant, and Landlord shall reimburse Tenant an amount equal to the actual cost
\nincurred by Tenant through the Effective Termination Date in performing and
\ndesigning the Tenant’s Work to the extent that such amount exceeds any portion
\nof Landlord’s Contribution theretofore paid to or for the account of Tenant.
\nLandlord shall make such payment to Tenant within thirty (30) days after Tenant
\ndelivers to<\/p>\n
-10-
\n 19<\/p>\n
Landlord evidence reasonably satisfactory to Landlord of the amount such costs.
\nLandlord shall have the right to audit Tenant’s books and records with respect
\nto Tenant’s costs.<\/p>\n
(d) FORCE MAJEURE DELAYS. For the purposes of this Article 4.1, “Force
\nMajeure Delays” shall be defined as any delays in the performance of Landlord’s
\nWork to the extent arising from causes beyond Landlord’s reasonable control
\nother than Tenant Delays, provided however, that no delay shall be deemed to be
\na Force Majeure Delay unless Landlord advises Tenant in writing of such delay on
\nor before the date thirty (30) days after Landlord first becomes aware of such
\ndelay.<\/p>\n
(e) RENT CREDIT. If the Full Rent Commencement Date has not occurred for
\nall or a portion of the Premises on or before the Liquidated Damage Date, as
\nhereinafter defined, then with respect to those portion(s) of the Premises with
\nrespect to which the Rent Commencement Date has not occurred, Tenant shall be
\nentitled to a credit against the Yearly Rent on a day-for-day basis for the
\nlesser of (i) the number of days from the Liquidated Damage Date to but not
\nincluding the Rent Commencement Date with respect to such portion(s) of the
\nPremises, and (ii) one hundred eighty (180) days. The “Liquidated Damage Date”
\nshall be defined as December 1, 2001.<\/p>\n
(f) The remedies set forth in this Article 4.1 are Tenant’s sole and
\nexclusive rights and remedies based upon any delay in the performance of
\nLandlord’s Work. If Tenant terminates this Lease pursuant to this Article 4.1,
\nthen the Third Amendment to the Building 500 Lease (as defined in Article 21.1
\nhereof) shall also thereby be automatically terminated and of no further force
\nand effect.<\/p>\n
4.2 TENANT’S WORK.<\/p>\n
(a) Tenant shall, on or before the Outside Tenant Work Commencement Date,
\ncommence the performance of the work (“Tenant’s Work”) necessary to prepare the
\nPremises for Tenant’s occupancy, and Tenant shall thereafter diligently
\nprosecute the Tenant’s Work to completion. The “OUTSIDE TENANT WORK COMMENCEMENT
\nDATE” shall be defined as the date nine (9) months after the Term Commencement
\nDate, provided that if Tenant is delayed in the commencement of Tenant’s Work by
\nreason of causes beyond Tenant’s reasonable control, the Outside Tenant Work
\nCommencement Date shall be extended by the lesser of: (i) the period of time
\nwhich Tenant is so delayed, or (ii) three (3) additional months (i.e. in no
\nevent shall the Outside Tenant Work Commencement Date occur later than the date
\none (1) year after the Term Commencement Date).<\/p>\n
(b) Tenant shall substantially complete Tenant’s Work on or before the
\nOutside Tenant Work Completion Date. The “OUTSIDE TENANT WORK COMPLETION DATE”
\nshall be defined as the date fifteen (15) months after the Full Rent
\nCommencement Date, provided that if Tenant is delayed in the performance of
\nTenant’s Work by reason of causes beyond Tenant’s reasonable control, the
\nOutside Tenant Work Completion Date shall be extended by the lesser of: (i) the
\nperiod of time which Tenant is so delayed, or (ii) three (3) additional months
\n(i.e. in no event shall the Outside Tenant Work Completion Date occur later than
\nthe date eighteen (18) months after the Full Rent Commencement Date).<\/p>\n
(c) COST OF TENANT’S WORK; PRIORITY OF WORK. Except for Landlord’s
\nContribution, as set forth in Article 6.2, all of the Tenant’s Work shall be
\nperformed at Tenant’s<\/p>\n
-11-
\n 20<\/p>\n
sole cost and expense, and shall be performed in accordance with the provisions
\nof this Lease (including, without limitation, Articles 11 and 12). Tenant and
\nLandlord shall each take necessary reasonable measures to the end that Tenant’s
\ncontractors and Landlord’s contractors shall cooperate in all ways with
\nLandlord’s contractors to avoid any delay in either Landlord’s Work or Tenant’s
\nWork or any conflict with the performance of either Landlord’s Work or Tenant’s
\nWork, Tenant acknowledging, however, that in the case of conflict that is not
\nreasonably avoidable, the performance of Landlord’s Work shall have priority.
\nTenant shall pay to Landlord, as additional rent, within ten (10) days of
\nbilling therefor, charges (which shall be reasonably based on Tenant’s usage)
\nfor the use of elevators and\/or hoisting in connection with the performance of
\nTenant’s Work. Tenant shall have access to the Premises and the Building on a
\n24-hour a day, 365-day a year basis in order to perform Tenant’s Work. Landlord
\nand Tenant recognize that to the extent Tenant elects to perform some or all of
\nTenant’s Work during times other than normal construction hours, Landlord will
\nneed to make arrangements to have supervisory personnel on site. Accordingly,
\nLandlord and Tenant agree as follows: Tenant shall give Landlord at least five
\n(5) days’ written notice of any time outside of normal construction hours (i.e.,
\nMonday-Friday, 7 a.m. to 3 p.m., excluding holidays) when Tenant intends to
\nperform portions of Tenant’s Work (the “After Hours Work”). Landlord shall pay
\nthe cost of the first one hundred hours, in the aggregate, of Landlord’s
\nsupervisory personnel overseeing the After Hours Work. Tenant shall reimburse
\nLandlord, within thirty (30) days after demand therefor, for the cost of all
\nadditional hours of Landlord’s supervisory personnel overseeing the After Hours
\nWork. Landlord shall notify Tenant of the after hours hourly rates (which shall
\nbe normal and customary) for such supervisory personnel from time to time upon
\nwritten request.<\/p>\n
(d) TENANT’S PLANS. In connection with the performance of Tenant’s Work,
\nTenant shall submit to Landlord for Landlord’s reasonable approval an initial
\nset of plans (“Initial Plans”), progress plans from time to time (“Interim
\nPlans”) and a full set of construction drawings (“Final Plans”) for Tenant’s
\nWork (collectively “the Plans”). The Final Plans shall contain at least the
\ninformation required by, and shall conform to the requirements of, Exhibit 3.
\nLandlord’s approval of the Initial Plans and the Interim Plans (and the Final
\nPlans, provided that the Final Plans are consistent with the Initial Plans and
\nthe Interim Plans and contain at least the information required by, and conform
\nto the requirements of, said Exhibit 3), shall not be unreasonably withheld,
\nconditioned or delayed and shall comply with the requirements to avoid aesthetic
\nor other conflicts with the design and function of the balance of the Building.
\nLandlord’s approval is solely given for the benefit of Landlord under this
\nArticle 4.2 and neither Tenant nor any third party shall have the right to rely
\nupon Landlord’s approval of Tenant’s Plans for any other purpose whatsoever.
\nWithout limiting the foregoing, Tenant shall be responsible for all elements of
\nthe design of Tenant’s plans (including, without limitation, compliance with
\nlaw, functionality of design, the structural integrity of the design, the
\nconfiguration of the Premises and the placement of Tenant’s furniture,
\nappliances and equipment), and Landlord’s approval of Tenant’s Plans shall in no
\nevent relieve Tenant of the responsibility for such design.<\/p>\n
(e) TIME PERIODS FOR LANDLORD’S RESPONSE TO TENANT’S PLANS. Landlord
\nagrees to respond to any Initial Plans within ten (10) days of receipt thereof
\nand to Interim Plans and the Final Plans within fifteen (15) days of receipt
\nthereof. If Landlord has not responded to any submission of Tenant’s Plans
\nwithin the ten (10) or fifteen (15) day, as applicable, time period set forth
\nabove, then Tenant may send Landlord a notice of such failure to respond, which
\nnotice (“Second Notice”) shall contain the following language in bold face and
\nall capital letters: “SECOND NOTICE. FAILURE TO RESPOND TO THIS NOTICE WITHIN
\nFIVE (5)<\/p>\n
-12-
\n 21<\/p>\n
DAYS SHALL CONSTITUTE A LANDLORD DELAY UNDER THE LEASE, WHICH MAY ENTITLE TENANT
\nTO A RENT ABATEMENT.” If Landlord does not respond to the submission of Tenant’s
\nPlans within five (5) days after receipt of the Second Notice, then each
\nadditional day after five (5) days before Landlord responds to such submission
\nshall constitute a Landlord Delay.<\/p>\n
(f) TENANT’S HOIST. Subject to Landlord’s prior written approval of
\nTenant’s plans and specifications therefor (which approval shall not be
\nunreasonably withheld, conditioned, or delayed), Tenant shall have the right,
\nduring the performance of Tenant’s Work, to install a hoist at the Building in
\norder to enable Tenant’s contractor to perform Tenant’s Work. Tenant shall
\nmaintain such hoist in good condition and in a manner which does not interfere
\nwith the performance of Landlord’s Work. The initial location of such hoist
\nshall be as reasonably approved by Tenant, recognizing the priority given to
\nLandlord’s Work in Article 4.2(c) hereof. Once such hoist is installed, Tenant
\nshall not be required to relocate such hoist, except that Tenant shall remove
\nsuch hoist from the Building at the time that Landlord makes available to Tenant
\nan elevator for Tenant’s exclusive use. Tenant shall repair any damage to the
\nBuilding caused by the installation or removal of such hoist.<\/p>\n
(g) GAS LINE. Subject to (i) Landlord’s prior written approval of Tenant’s
\nplans and specifications therefor (which approval shall not be unreasonably
\nwithheld, conditioned, or delayed), and (ii) Tenant having obtained all
\nnecessary governmental approvals therefor, Landlord shall bring natural gas to
\nthe perimeter of the Building at Landlord’s expense and Tenant shall have the
\nright to tie into the same at its expense for the purpose of serving Tenant’s
\nback-up generator.<\/p>\n
4.3 QUALITY AND PERFORMANCE OF WORK. All construction work required or
\npermitted by this Lease (whether constituting part of Landlord’s Work or
\nTenant’s Work) shall be done in a good and workmanlike manner and in compliance
\nwith all applicable laws, ordinances, rules, regulations, statutes, by-laws,
\ncourt decisions, and orders and requirements of all public authorities (“Legal
\nRequirements”) and all insurance requirements of this Lease. All of Tenant’s
\nWork shall be coordinated with any work being performed by, or for, Landlord,
\nand in such manner as to maintain harmonious labor relations. Each party
\nauthorizes the other to rely in connection with design and construction upon the
\nwritten approval or other written authorizations on the party’s behalf by any
\nConstruction Representative of the party designated by the party. Each party’s
\ninitial Construction Representative is designated on Exhibit 1.<\/p>\n
5. USE OF PREMISES<\/p>\n
5.1 PERMITTED USE. Tenant shall continuously during the term hereof occupy
\nand use the Premises only for the purposes as stated in Exhibit 1 and for no
\nother 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<\/p>\n
-13-
\n 22<\/p>\n
requires special exhaust venting, Tenant hereby acknowledging that the Building
\nis not engineered to provide any such special venting. Landlord hereby agrees
\nthat 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 5.1.<\/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 limitation,
\nany materials appliances or equipment used in the construction or other
\npreparation 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 be
\nrequired 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 AND SPECIAL ALLOWANCE<\/p>\n
6.1. 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 the Premises
\nshall commence on the Rent Commencement Date. 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<\/p>\n
-14-
\n 23<\/p>\n
such 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 to Landlord any authorizations, certificates or other
\ndocumentation as may be required to establish and give effect to the Automatic
\nDebit System. Either party shall have the right to change its bank or financial
\ninstitution from time to time, provided that Tenant, no less than thirty (30)
\ndays prior to the effective date of any such change, shall provide Landlord with
\nwritten notice of such change and any and all authorizations, certificates or
\nother documentation as may be required to establish and give effect to the
\nAutomatic Debit System at Tenant’s new bank or financial institution if Tenant
\nelects to continue to use such Automatic Debit System. Tenant shall promptly pay
\nall service fees and other charges imposed upon Tenant in connection with the
\nAutomatic Debit System, and Tenant shall promptly reimburse Landlord for any
\ncharges resulting from insufficient funds in Tenant’s bank account (provided
\nhowever, that Tenant shall have the right to discontinue the use of the
\nAutomatic Debit System at any time upon at least thirty (30) days’ prior written
\nnotice to Landlord). In the event that any Yearly Rent or other fixed monthly
\ncharges are not paid on time as a result of insufficient funds in Tenant’s
\naccount, Tenant shall be liable for any interest in accordance with this
\nArticle. Tenant shall remain liable to Landlord for all payments of Rent due
\nhereunder regardless of whether Tenant’s account is incorrectly debited in any
\ngiven month, it being agreed that a debit of less than the full amount due shall
\nnot be construed as a waiver by Landlord of its right to receive any unpaid
\nbalance.<\/p>\n
(b) Rentable Area. Landlord and Tenant acknowledge the Total Rentable Area
\nof 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. In the event that Landlord alters any of the buildings in, or adds
\nother buildings to, the Complex, the Total Rentable Area of any such buildings
\nshall be included in the Total Rentable Area of the Complex when first occupied.<\/p>\n
6.2 LANDLORD’S CONTRIBUTION.<\/p>\n
(a) As an inducement to Tenant’s entering into this Lease, Landlord shall
\nprovide to Tenant a special allowance equal to up to Thirty and 00\/100 Dollars
\n($30.00) per square foot of Rentable Floor Area of the Premises initially
\ndemised to Tenant (i.e. Three Million Four Hundred Nine Thousand Three Hundred
\nEighty and 00\/100 Dollars ($3,409,380.00)) (“Landlord’s Contribution”) to be
\nused by Tenant to pay for the cost of the Tenant’s Work. For<\/p>\n
-15-
\n 24<\/p>\n
the purposes hereof, the cost to be so reimbursed by Landlord shall include the
\ncost of leasehold improvements but not the cost of any of Tenant’s personal
\nproperty, trade fixtures or trade equipment or any so-called soft costs.
\nFurthermore, in the event that Tenant does not build out all of the Premises,
\nLandlord’s Contribution shall be limited to a maximum of Thirty and 00\/100
\nDollars ($30.00) per square foot of Rentable Floor Area of the Premises actually
\nbuilt out by Tenant (the “Finished Area”).<\/p>\n
(b) Landlord shall pay Landlord’s Proportion (as hereinafter defined) of
\nthe cost shown on each requisition (as hereinafter defined) submitted by Tenant
\nto Landlord within twenty (20) days of submission thereof by Tenant to Landlord
\nuntil the entirety of Landlord’s Contribution has been exhausted. For purposes
\nhereof, “Landlord’s Proportion” shall be a fraction, the numerator of which is
\nLandlord’s Contribution and the denominator of which is the total contract price
\nfor Tenant’s Work, and a “requisition” shall mean written documentation
\n(including, without limitation, invoices from Tenant’s contractors, vendors,
\nservice providers and consultants, lien waivers, and such other documentation as
\nLandlord or Landlord’s mortgagee may reasonably request) showing in reasonable
\ndetail the costs of the item in question or of the improvements installed to
\ndate in the Premises, accompanied by certifications from Tenant that the amount
\nof the requisition in question does not exceed the cost of the items, services
\nand work covered by such requisition. Each requisition shall be accompanied by
\nevidence reasonably satisfactory to Landlord that items, services and work
\ncovered by such requisition has been fully paid by Tenant and that the work has
\nbeen performed. Landlord shall have the right, upon reasonable advance notice to
\nTenant, to inspect Tenant’s books and records relating to each requisition in
\norder to verify the amount thereof. Tenant shall submit requisition(s) no more
\noften than monthly.<\/p>\n
(c) Notwithstanding anything to the contrary herein contained:<\/p>\n
(i) Landlord shall have no obligation to advance funds on account of
\n Landlord’s Contribution unless and until Landlord has received
\n the requisition in question.<\/p>\n
(ii) Except with respect to work and\/or materials previously paid for
\n by Tenant, as evidenced by paid invoices and written lien waivers
\n provided to Landlord, Landlord shall have the right to have
\n Landlord’s Contribution paid to directly to Tenant’s
\n contractor(s), consultants, service providers, and vendor(s). In
\n no event shall Landlord’s Contribution be applied to any fees
\n paid to Tenant or any affiliate of Tenant.<\/p>\n
(iii) Landlord shall have no obligation to pay any portion of
\n Landlord’s Contribution in respect of any requisition submitted
\n after the date (“Outside Requisition Date”) which is the earlier
\n of: (a) three (3) months after the completion of Tenant’s Work,
\n or (b) twenty-one (21) months after the Full Rent Commencement
\n Date (provided, however, that if Tenant certifies to Landlord
\n that it is engaged in a good faith dispute with its contractor,
\n such Outside Requisition Date shall be extended while such
\n dispute is ongoing, so long as Tenant is diligently prosecuting
\n the resolution of such dispute). Tenant shall not be entitled to
\n receive any portion of Landlord’s Contribution except to the
\n extent<\/p>\n
-16-
\n 25<\/p>\n
that it has submitted requisitions and\/or made demand therefor,
\n on or before the Outside Requisition Date.<\/p>\n
(iv) Tenant shall not be entitled to any unused portion of Landlord’s
\n Contribution.<\/p>\n
(v) Landlord’s obligation to pay any portion of Landlord’s
\n Contribution shall be conditioned upon there existing no default
\n beyond the expiration of any applicable grace periods by Tenant
\n in its obligations under the Lease at the time that Landlord
\n would otherwise be required to make such payment.<\/p>\n
7. RENTABLE AREA<\/p>\n
Total Rentable Area of the Premises, the Building and the Complex have, as
\nof 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 contract
\ndirectly with the company supplying electric current for the purchase and
\nobtaining by Tenant of electric current directly from such company to be billed
\ndirectly to, and paid for by, Tenant. Tenant shall have the right to choose
\namong companies supplying electric current to the Premises if there is more than
\none such company available. Tenant acknowledges that such electric current
\npurchased directly by Tenant shall include the current used to operate the HVAC
\nequipment serving the Premises.<\/p>\n
(b) Landlord shall (i) permit its risers, conduits and feeders to the
\nextent available, suitable and safely capable, to be used for the purpose of
\nenabling Tenant to purchase and obtain electric current directly from such
\ncompany, (ii) without cost or charge to Tenant, make such alterations and
\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) If Tenant shall require electric current for use in the Premises
\nin excess of the capacity available at the commencement of the term of this
\nLease and if (i) in Landlord’s reasonable judgment, Landlord’s facilities are
\ninadequate for such excess requirements or (ii) such excess use shall result in
\nan additional burden on the Building air conditioning system and additional cost
\nto 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<\/p>\n
-17-
\n 26<\/p>\n
entail excessive or unreasonable alterations or repairs or interfere with or
\ndisturb other tenants or occupants of the Building or (y) Tenant shall reimburse
\nLandlord for such additional cost, as aforesaid.<\/p>\n
(e) Landlord, at Tenant’s expense and upon Tenant’s request, shall
\npurchase 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 be
\nliable or responsible to Tenant for any loss, damage or expense which Tenant may
\nsustain or incur if the quantity, character, or supply of electrical energy is
\nchanged or is no longer available or suitable for Tenant’s requirements.<\/p>\n
(g) Tenant agrees that it will not make any material alteration or
\nmaterial addition to the electrical equipment and\/or appliances in the Premises
\nwithout the prior written consent of Landlord in each instance first obtained,
\nwhich consent will not be unreasonably withheld, and will promptly advise
\nLandlord of any other alteration or addition to such electrical equipment and\/or
\nappliances.<\/p>\n
8.2 WATER. Landlord shall furnish hot and cold water for ordinary premises
\ncleaning, toilet, lavatory and drinking purposes. If Tenant requires, uses or
\nconsumes water for any purpose other than for the aforementioned purposes,
\nLandlord may (i) assess a reasonable charge for the additional water so used or
\nconsumed by Tenant or (ii) install a water meter and thereby measure Tenant’s
\nwater consumption for all purposes. In the latter event, Landlord shall pay the
\ncost of the meter and the cost of installation thereof and shall keep said meter
\nand installation equipment in good working order and repair. Tenant agrees to
\npay for water consumed, as shown on said meter, together with the sewer charge
\nbased on said meter charges, as and when bills are rendered, and on default in
\nmaking such payment Landlord may pay such charges and collect the same from
\nTenant, but only to the extent that the charges shown on the meter exceed the
\nconsumption reasonably expected for ordinary premises cleaning, toilet, lavatory
\nand drinking purposes. All piping and other equipment and facilities for use of
\nwater outside the building core will be installed and maintained by Landlord at
\nTenant’s sole cost and expense.<\/p>\n
8.3 ELEVATORS, HEAT, CLEANING.<\/p>\n
(a) Landlord at its expense shall: (i) provide necessary elevator
\nfacilities (which may be manually or automatically operated, either or both, as
\nLandlord may from time to time elect) on Mondays through Fridays, excepting
\nlegal holidays, from 8:00 a.m. to 6:00 p.m. and on Saturdays, excepting legal
\nholidays, from 8:00 a.m. to 1:00 p.m. (called “business days”) and have one
\nelevator in operation available for Tenant’s use, non-exclusively, together with
\nothers having business in the Building, at all other times; (ii) furnish heat
\n(substantially equivalent to that being furnished in comparably aged similarly
\nequipped office buildings in the same city) to the Premises during the normal
\nheating season on business days; and (iii) cause the office areas and the
\nnetwork operations center of the Premises to be cleaned on business days (except
\non Saturdays) provided the same are kept in order by Tenant. Either Exhibit 4
\n(if annexed hereto) or, otherwise, the cleaning standards generally prevailing
\nin first-class office buildings in the city or town where the Building is
\nlocated, shall represent substantially the extent and scope of the cleaning by
\nLandlord referred to in this Article 8.3.<\/p>\n
-18-
\n 27<\/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 advance
\nwritten notice from Tenant of its requirements in that regard, to furnish
\nadditional heat, cleaning or air conditioning services to the Premises on days
\nand at times other than as above provided.<\/p>\n
(b) There shall be no charge for additional heat or air conditioning,
\nas Tenant pays the cost of electricity therefor directly pursuant to Article
\n8.1. Tenant will pay to Landlord a reasonable charge (i) for any such additional
\ncleaning service required by Tenant, (ii) for any extra cleaning of the Premises
\nrequired because of the carelessness or indifference of Tenant or because of the
\nnature of Tenant’s business, and (iii) for any cleaning done at the request of
\nTenant of any portions of the Premises which may be used for storage, shipping
\nroom or other non-office purposes. If the cost to Landlord for cleaning the
\nPremises shall be increased due to the installation in the Premises, at Tenant’s
\nrequest, of any materials or finish other than those which are building
\nstandard, Tenant shall pay to Landlord an amount equal to such increase in cost.<\/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 excessive
\nor unreasonable alterations, repairs or expense or interfere with or disturb
\nother tenants; and Tenant shall<\/p>\n
-19-
\n 28<\/p>\n
reimburse Landlord in such an amount as will compensate it for the cost incurred
\nby it in operating such additional air conditioning 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.<\/p>\n
(a) When necessary by reason of accident or emergency, or for
\nrepairs, alterations, replacements or improvements which in the reasonable
\njudgment of Landlord are desirable or necessary to be made, or of difficulty or
\ninability in securing supplies or labor, or of strikes, or of any other cause
\nbeyond the reasonable control of Landlord, whether such other cause be similar
\nor dissimilar to those hereinabove specifically mentioned until said cause has
\nbeen removed, Landlord reserves the right to interrupt, curtail, stop or suspend
\n(i) the furnishing of heating, elevator, air conditioning, and cleaning services
\nand (ii) the operation of the plumbing and electric systems. Landlord shall
\nexercise reasonable diligence to eliminate the cause of any such interruption,
\ncurtailment, stoppage or suspension, but there shall be no diminution or
\nabatement of rent or other compensation due from Landlord to Tenant hereunder,
\nnor shall this Lease be affected or any of the Tenant’s obligations hereunder
\nreduced, and the Landlord shall have no responsibility or liability for any such
\ninterruption, curtailment, 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
\napply in the event of untenantability caused by fire or other casualty, or
\ntaking (see Articles 18 and 20).<\/p>\n
-20-
\n 29<\/p>\n
8.9 ENERGY CONSERVATION. Notwithstanding anything to the contrary in this
\nArticle 8 or in this Lease contained, Landlord may institute, and Tenant shall
\ncomply with, such policies, programs and measures as may be necessary, required,
\nor expedient for the conservation and\/or preservation of energy or energy
\nservices, provided however, that Landlord does not, by reason of such policies,
\nprograms and measures, reduce the level of energy or energy services being
\nprovided to the premises below the level of energy or energy services then being
\nprovided in comparably aged, first-class office buildings in the greater Boston
\narea, or as may be necessary or required to comply with applicable codes, rules
\nregulations or standards.<\/p>\n
8.10 MISCELLANEOUS. Other than air conditioning, all services provided by
\nLandlord to Tenant are based upon an assumed maximum Premises population of one
\nperson per one hundred fifty (150) square feet of Total Rentable Area. Tenant
\nacknowledges that if it exceeds the foregoing limitation, Landlord may incur
\ncosts including, without limitation, additional costs due to the additional load
\non building systems. Tenant agrees to reimburse Landlord for the amount of such
\ncosts (if any), as reasonably determined by Landlord, due to a Premises
\npopulation 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 occurs any part
\nof the term of this Lease.<\/p>\n
(b) “Operating Cost Base” shall be the amount as stated in Exhibit 1.<\/p>\n
(c) Subject to the provisions of Article 6(b),”Tenant’s Building
\nPercentage” and “Tenant’s Complex Percentage” shall be the respective figures as
\nstated in Exhibit 1.<\/p>\n
(d) “Taxes”:<\/p>\n
Subject to Article 9.7:<\/p>\n
(d1) “Building Taxes” shall mean the real estate taxes and other
\n taxes, levies and assessments imposed upon the Building and that portion of
\n the land of the Complex comprised of the Building’s footprint and an area
\n surrounding the Building as shown on Exhibit 2-1, and upon any personal
\n property of Landlord used in the operation of the Building, or on
\n Landlord’s interest in the Building or such personal property (provided
\n that to the extent such taxes, levies, and assessments are also allocable
\n to property other than the Building, such amounts shall be allocated among
\n all real estate which is so jointly assessed based on the assessor’s
\n records or, if the records do not provide a separate allocation, based on
\n square footage of the buildings in question); charges, fees and assessments
\n for transit, housing, police, fire or other services or purported benefits
\n to the Building; service or user payments in lieu of taxes; and any and all
\n other taxes, levies, betterments, assessments and charges arising from the
\n ownership, leasing, operating, use or occupancy of the Building or based
\n upon rentals derived therefrom, which are or shall be imposed by federal,
\n state, county, municipal or other governmental authorities. Notwithstanding
\n anything to the contrary herein contained, with respect to<\/p>\n
-21-
\n 30<\/p>\n
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 the
\n provisions of Article 9.1(d4)<\/p>\n
(d2) “Land” shall mean all of the land of the Complex (but not any
\n improvements thereon which are separately assessed, except for common
\n facilities as set forth in Paragraph (d3) below), excluding, however, the
\n land on which the Garage and all other parking areas are located and the
\n portions of land under each building in the Complex and an area surrounding
\n each such building as shown on Exhibit 2-1, and reasonable similar areas
\n designated by Landlord in connection with new buildings added to the
\n Complex from time to time. Real estate taxes with respect to such parking
\n areas are included in the parking fees charged to users and real estate
\n taxes attributable to the land comprised of the footprint and such
\n perimeter area of each building in the Complex shall be allocated on a
\n building-by-building basis.<\/p>\n
(d3) “Land Taxes” shall mean the real estate taxes and other taxes,
\n levies and assessments imposed upon the Land, upon any common facilities
\n separately assessed as such by the tax assessor, and upon any personal
\n property of Landlord used in connection with the Land, or on Landlord’s
\n interest in the Land or such personal property (provided that to the extent
\n such taxes, levies, and assessments are also allocable to property other
\n than the Land, such amounts shall be equitably allocated among all real
\n estate which is so jointly assessed); charges, fees and assessments for
\n transit, housing, police, fire or other governmental services or purported
\n benefits to the Land; service or user payments in lieu of taxes; and any
\n and all other taxes, levies, betterments, assessments and charges arising
\n from the ownership, leasing, operation, or use of the Land or based upon
\n rentals 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 or which are
\n otherwise assessed as part of Building Taxes. The definition of Land Taxes
\n is subject to the provisions of Article 9.1(d4).<\/p>\n
(d4) As of the Execution Date, neither Building Taxes nor Land Taxes
\n shall include any inheritance, estate, succession, gift, franchise, rental,
\n income or profit tax, capital stock tax, capital levy or excise, or any
\n income taxes arising out of or related to the ownership and operation of
\n the Building or Complex, provided, however, that any of the same and any
\n other tax, excise, fee, levy, charge or assessment, however described, that
\n may in the future be levied or assessed as a substitute for or an addition
\n to, in whole or in part, any tax, levy or assessment which would otherwise
\n constitute “Taxes,” whether or not now customary or in the contemplation of
\n the parties on the Execution Date of this Lease, shall constitute “Taxes,”
\n but only to the extent calculated as if the Complex were the only real
\n estate owned by Landlord. “Taxes” shall also include reasonable expenses of
\n tax abatement or other proceedings contesting assessments or levies.<\/p>\n
(e) “Tax Base” shall be the amount stated in Exhibit 1 and shall apply to
\na Tax Period of twelve (12) months. The Tax Base shall be reduced pro rata if
\nand to the extent that the Tax Period contains fewer than twelve (12) months.<\/p>\n
-22-
\n 31<\/p>\n
(f) “Tax Period” shall be any fiscal\/tax period in respect of which Taxes
\nare due and payable to the appropriate governmental taxing authority (i.e., as
\nmandated by the governmental taxing authority), any portion of which period
\noccurs during the term of this Lease, the first such Period being the one in
\nwhich the Rent Commencement Date (or, if there is more than one Rent
\nCommencement Date hereunder, the first such date) occurs.<\/p>\n
(g) “Operating Costs”:<\/p>\n
Subject to Article 9.7:<\/p>\n
(g1) Definition of Building Operating Costs. “Building Operating
\n Costs” shall mean all costs incurred and expenditures of whatever nature
\n made by Landlord in the operation and management, for repair and
\n replacements, cleaning and maintenance of the non-retail portion of the
\n Building, including, without limitation, vehicular and pedestrian
\n passageways serving the Building, related equipment, facilities and
\n appurtenances and cooling and heating equipment. For costs and expenditures
\n made by Landlord in connection with the Building as a whole, Landlord shall
\n make a reasonable allocation thereof between the retail and non-retail
\n portions of the Building. A portion of Complex Operating Costs shall be
\n included in Building Operating Costs in accordance with Subparagraphs g(3)
\n and g(6).<\/p>\n
(g2) Definition of Complex Operating Costs. “Complex Operating Costs”
\n shall mean all costs incurred and expenditures made by Landlord in the
\n operation and management, repair and replacement, cleaning and maintenance
\n of the common areas of the Complex, exclusive of the Garage, the Parking
\n Areas, the Building, and the other buildings in the Complex. Any expenses
\n incurred by Landlord that can be allocated on a building-by-building basis
\n shall be so allocated in accordance with Subparagraph (g3). To the extent
\n that a cost included in Complex Operating Costs is also allocable to
\n property other than the Complex, such cost shall be equitably allocated to
\n each parcel of property which benefits from such cost.<\/p>\n
(g3) The allocation of costs and expenditures among the various
\n buildings in the Complex shall be on the basis of the ratio of the Total
\n Rentable Area of each building in the Complex to the Total Rentable Area of
\n the Complex, unless such allocation would result in a disproportionate
\n charge based upon the relative usage of the service on which such cost is
\n based, in which case such allocation shall be based upon such relative
\n usage. Building Operating Costs and Complex Operating Costs shall include,
\n without limitation, those categories of “Specifically Included Operating
\n Costs”, as set forth below, but shall not include “Excluded Costs”, as
\n hereinafter defined.<\/p>\n
(g4) Definition of Excluded Costs. “Excluded Costs” shall be defined
\n as:<\/p>\n
(i) mortgage charges (including interest, principal, points
\n and fees);<\/p>\n
(ii) brokerage commissions;<\/p>\n
-23-
\n 32<\/p>\n
(iii) salaries of executives and owners not directly
\n employed in the management\/operation of the Complex;<\/p>\n
(iv) the cost of work done by Landlord for a particular
\n tenant for which Landlord has the right to be
\n reimbursed by such tenant;<\/p>\n
(v) subject to Subparagraph (g5) below, such portion of
\n expenditures as are not properly chargeable against
\n income;<\/p>\n
(vi) any ground or underlying lease rental;<\/p>\n
(vii) bad debt expenses;<\/p>\n
(viii) costs incurred by Landlord to the extent that
\n Landlord is reimbursed by insurance proceeds or is
\n otherwise reimbursed, other than through the payment of
\n Operating Costs;<\/p>\n
(ix) depreciation, amortization and interest payments,
\n except as expressly set forth in subparagraph (g5)
\n below and except on equipment, materials, tools,
\n supplies and vendor-type equipment purchased by
\n Landlord to enable Landlord to supply services Landlord
\n might otherwise contract for with a third party where
\n such depreciation, amortization and interest payments
\n would otherwise have been included in the charge for
\n such third party’s services, all as determined in
\n accordance with generally accepted accounting
\n principles, consistently applied, and when depreciation
\n or amortization is permitted or required, the item
\n shall be amortized over its reasonably anticipated
\n useful life;<\/p>\n
(x) advertising and promotional expenditures, and costs of
\n acquisition and maintenance of one-party signs in or on
\n the Building identifying the owner of the Building or
\n other tenants;<\/p>\n
(xi) marketing costs, including leasing commissions,
\n attorneys’ fees (in connection with the negotiation and
\n preparation of letters, deal memos, letters of intent,
\n leases, subleases and\/or assignments), space planning
\n costs and other costs and expenses incurred in
\n connection with lease, sublease and\/or assignment
\n negotiations and transactions with present or
\n prospective tenants or other occupants of the Building;<\/p>\n
-24-
\n 33<\/p>\n
(xii) costs, including permit, license and inspection costs,
\n incurred with respect to the installation of tenants’
\n or other occupants’ improvements or incurred in
\n renovating or otherwise improving, decorating, painting
\n or redecorating vacant space for tenants or other
\n occupants of the Building;<\/p>\n
(xiii) expenses in connection with services or other
\n benefits which are offered to other tenants of the
\n Building or Complex but not to Tenant or for which
\n Tenant is charged directly, other than through
\n Operating Costs;<\/p>\n
(xiv) fines, interest and penalties incurred by Landlord due
\n to the violation by Landlord or any tenant of the terms
\n and conditions of any lease of space in the Building;<\/p>\n
(xv) management fees paid or charged by Landlord in
\n connection with the management of the Building to the
\n extent such management fee is in excess of the market
\n rate.<\/p>\n
(xvi) salaries and other benefits paid to any executive
\n employees above the level of senior property manager of
\n the Complex;<\/p>\n
(xvii) amounts paid to Landlord or to subsidiaries or
\n affiliates of Landlord for goods and\/or services in the
\n Building to the extent the same exceeds the costs of
\n such goods and\/or services rendered by unaffiliated
\n third parties on a competitive basis;<\/p>\n
(xviii) Landlord’s general corporate overhead and general
\n administrative expenses;<\/p>\n
(xix) any compensation paid to clerks, attendants or other
\n persons in commercial concessions operated by Landlord;<\/p>\n
(xx) services provided, taxes, attributable to, and costs
\n incurred in connection with the operation (as opposed
\n to the repair and maintenance thereof which shall be
\n included in Operating Costs) of any garage for the
\n Building, and any replacement garages or parking
\n facilities;<\/p>\n
(xxi) costs incurred in connection with upgrading the
\n Building to comply with laws, rules, regulations and
\n codes in effect prior to the Term Commencement Date;<\/p>\n
-25-
\n 34<\/p>\n
(xxii) fines, interest and penalties arising from the
\n negligence or willful misconduct of Landlord or other
\n tenants or occupants of the Building or their
\n respective agents, employees, licensees, vendors,
\n contractors or providers of materials or services;<\/p>\n
(xxiii) costs arising from Landlord’s political
\n contributions;<\/p>\n
(xxiv) costs for sculpture, paintings or other objects of
\n art;<\/p>\n
(xxv) costs associated with the operation of the business of
\n the entity which constitutes Landlord as the same are
\n distinguished from the costs of operation of the
\n Building, including accounting and legal matters, costs
\n of defending any lawsuits with any mortgagee (except as
\n the actions of Tenant may be in issue), costs of
\n selling, syndicating, financing, mortgaging or
\n hypothecating any of Landlord’s interest in the
\n Building, costs incurred in connection with any
\n disputes between Landlord and its employees, between
\n Landlord and Building management, or between Landlord
\n and other tenants or occupants;<\/p>\n
(xxvi) rentals for items which, if purchased rather than
\n rented, would constitute a capital cost, to the extent
\n that the rental payments exceed the costs which could
\n be included pursuant to paragraph (g5) below;<\/p>\n
(xxvii) costs of electricity for plugs and lights provided
\n to other tenants’ demised premises;<\/p>\n
(xxviii) repair and replacement costs in connection with
\n defects in Landlord’s Work which are incurred by
\n Landlord prior to the third (3rd) anniversary of the
\n Full Rent Commencement Date; and<\/p>\n
(xxix) any costs related to any development, demolition or
\n construction activity in the Building or the Complex,
\n and any and all costs of construction mitigation
\n measures, including, without limitation, dust control,
\n cleaning, maintenance, debris removal, traffic control
\n and noise control, but the foregoing shall have no
\n effect on the inclusion of the cost of normal cleaning
\n services for the Complex.<\/p>\n
(g5) Capital Expenditures.<\/p>\n
(i) REPLACEMENTS. If, during the term of this Lease, Landlord
\n shall replace any capital items or make any capital expenditures<\/p>\n
-26-
\n 35<\/p>\n
(collectively called “Capital Expenditures”) the total amount of which
\n is not properly includable in Operating Costs for the Operating Year
\n in which they were made, in accordance with generally accepted
\n accounting principles and practices in effect at the time of such
\n replacement, there shall nevertheless be included in such Operating
\n Costs and in Operating Costs for each succeeding Operating Year the
\n amount, if any, by which the Annual Charge-Off (determined as
\n hereinafter provided) of such Capital Expenditure (less insurance
\n proceeds, if any, collected by Landlord by reason of damage to, or
\n destruction of the capital item being replaced) exceeds the Annual
\n Charge-Off of the Capital Expenditure for the item being replaced.<\/p>\n
(ii) NEW CAPITAL ITEMS. If a new capital item is acquired which
\n does not replace another capital item which was worn out, has become
\n obsolete, etc., and such new capital item being acquired is either (i)
\n required by law or (ii) reasonably projected to reduce Operating
\n Costs, then there shall be included in Operating Costs for each
\n Operating Year in which and after such capital expenditure is made the
\n Annual Charge-Off of such capital expenditure.<\/p>\n
(iii) ANNUAL CHARGE-OFF. “Annual Charge-Off” shall be defined as
\n the annual amount of principal and interest payments which would be
\n required to repay a loan (“Capital Loan”) in equal monthly
\n installments over the Useful Life, as hereinafter defined, of the
\n capital item in question on a direct reduction basis at an annual
\n interest rate equal to the Capital Interest Rate, as hereinafter
\n defined, where the initial principal balance is the cost of the
\n capital item in question.<\/p>\n
(iv) USEFUL LIFE. “Useful Life” shall be reasonably determined by
\n Landlord in accordance with generally accepted accounting principles
\n and practices in effect at the time of acquisition of the capital
\n item. Notwithstanding the foregoing, if Landlord reasonably concludes
\n on the basis of engineering estimates that a particular capital
\n expenditure will effect savings in Complex operating expenses
\n including, without limitation, energy-related costs, and that such
\n annual projected savings will exceed the Annual Charge-Off of Capital
\n Expenditures computed as aforesaid, then and in such events, the
\n Annual Charge-Off shall be determined based upon a Useful Life which
\n would cause the principal and interest payments in a full repayment of
\n the Capital Loan in question to equal the amount of projected savings
\n of such Useful Life.<\/p>\n
(v) CAPITAL INTEREST RATE. “Capital Interest Rate” shall be
\n defined as an annual rate of either one percentage point over the AA
\n Bond rate (Standard & Poor’s corporate composite or, if unavailable,
\n its equivalent) as reported in the financial press at the time the
\n capital expenditure is made or, if the capital item is acquired
\n through third-party financing, then the actual (including fluctuating)
\n rate paid by Landlord in financing the acquisition of such capital
\n item.<\/p>\n
(g6) Specifically Included Categories of Operating Costs. Subject to
\n the Excluded Costs definition, the qualifications on reimbursable Building
\n Operating Costs and Complex Operating Costs set forth in Articles 9.1(g1)
\n 9.1(g2) and 9.1(g3), and<\/p>\n
-27-
\n 36<\/p>\n
except as otherwise expressly excluded from the definition of Building
\n Operating Costs and Complex Operating Costs pursuant to the provisions of
\n this Lease, Building Operating Costs and Complex Operating Costs shall
\n include, but not be limited to, the following, provided that if such costs
\n are attributable to the Building and to other buildings in the Complex,
\n then such costs shall be equitably apportioned among the Building and such
\n other buildings in accordance with Article 9.1(g3), and if such costs are
\n attributable to common areas of the Complex and to other property which is
\n not part of the Complex, then such costs shall be equitably apportioned
\n among the Complex and such other property.<\/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 Landlord
\n on account of all employees of Landlord and\/or Landlord’s managing agent,
\n who are employed in, about or on account of the Premises (to the extent
\n that the underlying wages or salaries are included in Building Operating
\n Costs or Complex Operating Costs, as the case may be), except that taxes
\n levied upon the net income of the Landlord and taxes withheld from
\n employees, and “Taxes” as defined in Article 9.1(d) shall not be included
\n herein.<\/p>\n
WATER: All charges and rates connected with water supplied to the Premises,
\n the Building and\/or the common areas of the Complex and related sewer use
\n charges.<\/p>\n
HEAT AND AIR CONDITIONING: The cost of electricity connected with heat and
\n air conditioning supplied to the common areas of the Building and\/or
\n Complex, and all other charges connected with heat and air conditioning
\n 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 on
\n account of the Premises and\/or Complex provided that wages and costs for
\n employees who also work on other properties shall be allocated to the
\n Complex based upon the proportion of their time spent working on the
\n 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 and\/or
\n Complex, surrounding areaways and windows in the Premises and\/or Complex,
\n including, without limitation, the services listed on Exhibit 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 Complex
\n (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 the
\n Building and\/or Complex, including the cost of electric current for the
\n elevators, lights, air conditioning and heating, but not including electric
\n current which is paid for directly to the utility by the user\/tenant in the
\n Premises and\/or Complex. (If and so long as Tenant is billed directly by
\n the electric utility for its own consumption of electricity for lights and
\n plugs as determined by its separate meter or by submeter, then Operating
\n Costs shall include only public area electric current consumption and
\n electricity for base building HVAC and not any demised Premises electric
\n current consumption for lights and plugs.) Wherever<\/p>\n
-28-
\n 37<\/p>\n
separate metering is unlawful, prohibited by utility company regulation or
\n tariff or is otherwise impracticable, relevant consumption figures for the
\n purposes of this Article 9 shall be determined by fair and reasonable
\n allocations and engineering estimates made by Landlord.<\/p>\n
INSURANCE, ETC.: Fire, casualty, liability and such other insurance as may
\n from time to time be reasonably required by lending institutions on
\n first-class office buildings in the City or Town wherein the Building is
\n located and all other expenses customarily incurred in connection with the
\n operation and maintenance of first-class suburban office\/research and
\n development buildings in the Market Area.<\/p>\n
MANAGEMENT SPACE: Market rate rental costs associated with the Complex’s
\n 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, any
\n cafeteria. The costs to be included in Complex Operating Costs shall
\n include any subsidy, including lower than market rate rent, provided by
\n Landlord for or with respect to such amenity. In the event that the costs
\n of a Complex amenity are included in an Operating Year but such costs were
\n not included in the Complex Operating Costs Base, then the Complex
\n Operating Costs Base shall be adjusted to reflect what would have been the
\n costs for such amenity in the Complex Operating Costs Base if such amenity
\n had been operated during calendar year 2000.<\/p>\n
9.2 TAX EXCESS.<\/p>\n
(a) IN GENERAL. Commencing as of the Rent Commencement Date (or, if
\nthere is more than one Rent Commencement Date hereunder, the first such date),
\nand continuing thereafter throughout the term of this Lease, if with respect to
\nany Tax Period, the sum (“Tenant’s Tax Share”) of (i) Tenant’s Building Tax
\nPercentage of Building Taxes plus (ii) Tenant’s Complex Tax Percentage of Land
\nTaxes exceeds the Tax Base, Tenant shall, subject to Article 9.10, pay such
\nexcess to Landlord, such amount being hereinafter referred to as “Tax Excess.”
\nTax 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 Excess shall
\nbe given for any refund obtained by reason of a reduction in any Taxes by the
\nAssessors or the administrative, judicial or other governmental agency
\nresponsible therefor. The original computations, as well as reimbursement or
\npayments 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<\/p>\n
-29-
\n 38<\/p>\n
with adjustments to be made at a later date when the tax refund, if any, shall
\nbe paid to Landlord by the taxing authorities. Expenditures for reasonable legal
\nfees and for other reasonable similar or dissimilar expenses incurred in
\nobtaining the tax refund may be charged against the tax refund before the
\nadjustments are made for the Tax Period.<\/p>\n
9.3 OPERATING EXPENSE EXCESS.<\/p>\n
Commencing as of the Rent Commencement Date (or, if there is more than one
\nRent Commencement Date hereunder, the first such date), and continuing
\nthereafter throughout the term of the Lease, if with respect to any Operating
\nYear, the Building Operating Costs exceed the Operating Cost Base, Tenant shall,
\nsubject to Article 9.10, pay Tenant’s Building Operating Cost Percentage of such
\nexcess to Landlord, such amount being hereinafter 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 Excess,
\ncalculated by Landlord on the basis of the most recent Operating Costs data or
\nbudget available. Landlord shall, within one hundred twenty (120) days after the
\nend of each Operating Year, deliver to Tenant a reasonably detailed statement
\n(“Year End Statement”) of the actual amount of Operating Costs for such
\nOperating 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 Rent Commencement Date or if the Termination Date
\noccurs in the middle of an Operating Year or Tax Period, Tenant shall be liable
\nfor only that portion of the Operating Expense or Tax Excess, as the case may
\nbe, in respect of such Operating Year or Tax Period represented by a fraction
\nthe numerator of which is the number of days of the herein term (commencing as
\nof the applicable Rent Commencement Date) which falls within the Operating Year
\nor Tax Period and the denominator of which is three hundred sixty-five (365), or
\nthe number of days in said Tax Period, as the case may be. Any credit pursuant
\nto Article 9.10 for the years in which any Rent Commencement Date or the
\nTermination Date occur shall be similarly pro-rated.<\/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 and the
\nBuilding remaining after such taking.<\/p>\n
-30-
\n 39<\/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 EFFECT OF CONVERSION OF COMPLEX TO A CONDOMINIUM. Landlord reserves
\nthe right to create a condominium encompassing some or all of the Complex,
\nincluding the Building. In the event that such a condominium is created, then
\n(i) if the Building shall constitute a separately assessed unit in the
\ncondominium, Building Taxes shall thereafter be defined as the amount of Taxes
\nassessed against such unit, and if the Building does not constitute a separately
\nassessed unit, Landlord shall thereafter equitably allocate Taxes to the
\nBuilding and the Land on a reasonable basis; and (ii) Landlord shall include any
\ncondominium fees assessed against the unit containing the premises in Building
\nOperating Costs and Complex Operating Costs, as the case may be, to the extent
\nsuch fees represent costs which would otherwise be included in Building
\nOperating Costs or Complex Operating Costs. The allocation of any such
\ncondominium fees between Building Operating Costs and Complex Operating Costs
\nshall be based on square footage of Total Rentable Area of the premises
\nbenefiting from the cost in question, unless Landlord reasonably determines that
\nsuch allocation should be made on another reasonable basis.<\/p>\n
9.8 DISPUTES, ETC. Any disputes arising under this Article 9 may, at the
\nelection of either party, be submitted to arbitration as hereinafter provided.
\nAny obligations under this Article 9 which shall not have been paid at the
\nexpiration or sooner termination of the term of this Lease shall survive such
\nexpiration and shall be paid when and as the amount of same shall be determined
\nand be due.<\/p>\n
9.9 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 available to
\n Tenant at the offices where Landlord keeps such records during
\n normal business hours within a reasonable time after Landlord
\n receives a written request from Tenant to make such examination.<\/p>\n
2. Tenant shall have the right to make such examination no more than
\n once in respect of any period in which Landlord has given Tenant
\n a statement of the actual amount of Operating Costs.<\/p>\n
3. Any request for examination in respect of any Operating Year may
\n be made no more than sixty (60) days after Landlord advises
\n Tenant of the actual amount of Operating Costs in respect of such
\n period.<\/p>\n
4. Such examination may be made only by a nationally recognized
\n independent certified public accounting firm approved by
\n Landlord, such<\/p>\n
-31-
\n 40<\/p>\n
approval not to be unreasonably withheld or delayed. Without
\n limiting Landlord’s approval rights, Landlord may withhold its
\n approval of any examiner of Tenant who is being paid by Tenant on
\n a contingent fee basis.<\/p>\n
5. As a condition to performing any such examination, Tenant and its
\n examiners shall be required to execute and deliver to Landlord an
\n agreement, in form reasonably acceptable to Landlord, agreeing to
\n keep confidential any information which it discovers about
\n Landlord or the Building or the Complex in connection with such
\n examination.<\/p>\n
6. If such audit reveals an overcharge of more than five percent
\n (5%), Landlord shall reimburse Tenant the reasonable cost of such
\n audit within thirty (30) days after written demand therefor.<\/p>\n
9.10 CREDIT IF OPERATING COSTS AND TAXES ARE LESS THAN THEIR RESPECTIVE
\nBASES.<\/p>\n
(a) The provisions of this Article 9.10(a) shall only apply if, with
\nrespect to any Operating Year, Tenant is required to pay Operating Expense
\nExcess, but the amount of Tenant’s Tax Share for such Operating Year is less
\nthan the Tax Base. In such instance, the amount of Operating Expense Excess
\npayable by Tenant for such Operating Year shall be reduced by an amount equal to
\nthe amount by which the Tax Base exceeds Tenant’s Tax Share for such Operating
\nYear. Since, as of the Execution Date, the method for determining Tenant’s Tax
\nShare is determined based upon a fiscal Tax Period commencing as of each July 1
\nand ending as of the following June 30, Tenant’s Tax Share for any Operating
\nYear shall, for the purposes of this Article 9.10(a), be determined based upon
\nthe pro-rata portion of the actual amount of Taxes payable in respect of each
\nTax Period which overlaps such Operating Year. Following are three examples of
\nthis calculation:<\/p>\n
EXAMPLE 1<\/p>\n
(1) For calendar year 2002, the Operating Expense Excess payable by Tenant
\n would be $1,000.00, but for the provisions of this Article 9.10(a), and<\/p>\n
(2) For fiscal year 2002 (i.e. July 1, 2001-June 30, 2002), the Tenant’s
\n Tax Share is $500.00 LESS than the Tax Base, and<\/p>\n
(3) For fiscal year 2003 (i.e. July 1, 2002-June 30, 2003), the Tenant’s
\n Tax Share is $200.00 MORE than the Tax Base, then,<\/p>\n
(4) The amount of Operating Expense Excess payable by Tenant for calendar
\n year 2002 shall be reduced by $150.00 pursuant to this Article 9.10(a) (the
\n reduction amount being equal to 50% of the amount by which Tenant’s Tax
\n Share is LESS than the Tax Base for fiscal year 2002 [$250.00] MINUS 50% of
\n the amount by which Tenant’s Tax Share for fiscal year 2003 is MORE than
\n the Tax Base [$100.00]).<\/p>\n
EXAMPLE 2<\/p>\n
-32-
\n 41<\/p>\n
(1) For calendar year 2002, the Operating Expense Excess payable by Tenant
\n would be $1,000.00, but for the provisions of this Article 9.10(a), and<\/p>\n
(2) For fiscal year 2002 (i.e. July 1, 2001-June 30, 2002), the Tenant’s
\n Tax Share is $400.00 LESS than the Tax Base, and<\/p>\n
(3) For fiscal year 2003 (i.e. July 1, 2002-June 30, 2003), the Tenant’s
\n Tax Share is $300.00 LESS than the Tax Base, then,<\/p>\n
(4) The amount of Operating Expense Excess payable by Tenant for calendar
\n year 2002 shall be reduced by $350.00 pursuant to this Article 9.10(a) (the
\n reduction amount being equal to 50% of the amount by which Tenant’s Tax
\n Share is LESS than the Tax Base for fiscal year 2002 [$200.00] PLUS 50% of
\n the amount by which Tenant’s Tax Share for fiscal year 2003 is LESS than
\n the Tax Base [$150.00]).<\/p>\n
EXAMPLE 3<\/p>\n
(1) For calendar year 2002, the Operating Expense Excess payable by Tenant
\n would be $1,000.00, but for the provisions of this Article 9.10(a), and<\/p>\n
(2) For fiscal year 2002 (i.e. July 1, 2001-June 30, 2002), the Tenant’s
\n Tax Share is $300.00 LESS than the Tax Base, and<\/p>\n
(3) For fiscal year 2003 (i.e. July 1, 2002-June 30, 2003), the Tenant’s
\n Tax Share is $600.00 MORE than the Tax Base, then,<\/p>\n
(4) The amount of Operating Expense Excess payable by Tenant for calendar
\n year 2002 shall not be reduced pursuant to this Article 9.10(a) (the
\n reduction amount being equal to 50% of the amount by which Tenant’s Tax
\n Share is LESS than the Tax Base for fiscal year 2002 [$150.00] MINUS 50% of
\n the amount by which Tenant’s Tax Share for fiscal year 2003 is MORE than
\n the Tax Base [$300.00], but never less than zero).<\/p>\n
(b) The provisions of this Article 9.10(b) shall only apply if, with
\nrespect to any Tax Period, Tenant is required to pay Tax Excess, but the amount
\nof Tenant’s Building Operating Cost Percentage of Building Operating Costs
\n(“Tenant’s Operating Share”) for such Tax Period is less than the Operating Cost
\nBase. In such event, the amount of Tax Excess payable by Tenant for such Tax
\nPeriod shall be reduced by an amount equal to the amount by which the Operating
\nCost Base exceeds Tenant’s Operating Share for such Tax Period. Since, as of the
\nExecution Date, the method for determining Tenant’s Tax Share is determined
\nbased upon a fiscal Tax Period commencing as of each July 1 and ending as of the
\nfollowing June 30, Tenant’s Operating Share for any Tax Period shall, for the
\npurposes of this Article 9.10(b), be determined based upon the pro-rata portion
\nof the actual amount of Tenant’s Operating Share payable in respect of each
\nOperating Year which overlaps such Tax Period Year. Following are three examples
\nof this calculation:<\/p>\n
EXAMPLE 1<\/p>\n
(1) For fiscal year 2003 (i.e. July 1, 2002-June 30, 2003), the Tax Excess
\n payable by Tenant would be $1,000.00, but for the provisions of this
\n Article 9.10(b), and<\/p>\n
-33-
\n 42<\/p>\n
(2) For calendar year 2002, the Tenant’s Operating Share is $500.00 LESS
\n than the Operating Cost Base, and<\/p>\n
(3) For calendar year 2003, the Tenant’s Operating Share is $200.00 MORE
\n than the Operating Cost Base, then,<\/p>\n
(4) The amount of Tax Excess payable by Tenant for fiscal year 2003 shall
\n be reduced by $150.00 pursuant to this Article 9.10(b) (the reduction
\n amount being equal to 50% of the amount by which Tenant’s Operating Share
\n is LESS than the Operating Cost Base for calendar year 2002 [$250.00] MINUS
\n 50% of the amount by which Tenant’s Operating Share for calendar year 2003
\n is MORE than the Operating Cost Base [$100.00]).<\/p>\n
EXAMPLE 2<\/p>\n
(1) For fiscal year 2003 (i.e. July 1, 2002-June 30, 2003), the Tax Excess
\n payable by Tenant would be $1,000.00, but for the provisions of this
\n Article 9.10(b), and<\/p>\n
(2) For calendar year 2002, the Tenant’s Operating Share is $400.00 LESS
\n than the Operating Cost Base, and<\/p>\n
(3) For calendar year 2003, the Tenant’s Operating Share is $300.00 LESS
\n than the Operating Cost Base, then,<\/p>\n
(4) The amount of Tax Excess payable by Tenant for fiscal year 2003 shall
\n be reduced by $350.00 pursuant to this Article 9.10(b) (the reduction
\n amount being equal to 50% of the amount by which Tenant’s Operating Share
\n is LESS than the Operating Cost Base for calendar year 2002 [$200.00] PLUS
\n 50% of the amount by which Tenant’s Operating Share for calendar year 2003
\n is LESS than the Operating Cost Base [$150.00]).<\/p>\n
EXAMPLE 3<\/p>\n
(1) For fiscal year 2003 (i.e. July 1, 2002-June 30, 2003), the Tax Excess
\n payable by Tenant would be $1,000.00, but for the provisions of this
\n Article 9.10(b), and<\/p>\n
(2) For calendar year 2002, the Tenant’s Operating Share is $300.00 LESS
\n than the Operating Cost Base, and<\/p>\n
(3) For calendar year 2003, the Tenant’s Operating Share is $600.00 MORE
\n than the Operating Cost Base, then,<\/p>\n
(4) The amount of Tax Excess payable by Tenant for fiscal year 2003 shall
\n not be reduced pursuant to this Article 9.10(b) (the reduction amount being
\n equal to 50% of the amount by which Tenant’s Operating Share is LESS than
\n the Operating Cost Base for calendar year 2002 [$150.00] MINUS 50% of the
\n amount by which Tenant’s Operating Share for calendar year 2003 is MORE
\n than the Operating Cost Base [$300.00], but never less than zero).<\/p>\n
-34-
\n 43<\/p>\n
10. CHANGES OR ALTERATIONS BY LANDLORD<\/p>\n
Landlord reserves the right, exercisable by itself or its nominee, at any
\ntime 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
Subject to the provisions of Article 8.8(b) hereof, during the performance
\nof demolition or renovation of existing buildings and construction of new
\nbuildings 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<\/p>\n
-35-
\n 44<\/p>\n
Building and that the cost of repairing any damage to the Premises or the
\nBuilding arising from installation or such removal shall be paid by Tenant. All
\nelectric, plumbing, heating and sprinkling systems, fixtures and outlets,
\nvaults, paneling, molding, shelving, radiator enclosures, cork, rubber, linoleum
\nand composition floors, ventilating, silencing, air conditioning and cooling
\nequipment, shall be deemed to be included in such fixtures, equipment,
\nimprovements and appurtenances, whether or not attached to or built into the
\nPremises. Where not built into the Premises, all removable electric fixtures,
\ncarpets, drinking or tap water facilities, furniture, or trade fixtures or
\nbusiness equipment or Tenant’s inventory or stock in trade shall not be deemed
\nto be included in such fixtures, equipment, improvements and appurtenances and
\nmay be, and upon the request of Landlord will be, removed by Tenant upon the
\ncondition that such removal shall not materially damage the Premises or the
\nBuilding and that the cost of repairing any damage to the Premises or the
\nBuilding arising from installation or such removal shall be paid by Tenant. If
\nthis Lease shall be terminated by reason of Tenant’s breach or default, then,
\nnotwithstanding anything to the contrary in this Lease contained, Landlord shall
\nhave a lien against all Tenant’s property in the Premises or elsewhere in the
\nBuilding at the time of such termination to secure Landlord’s rights under
\nArticle 21 hereof. Tenant shall, within ten (10) days of Landlord’s written
\nrequest, from time to time, execute and deliver to Landlord such documentation
\n(e.g., UCC statements) as may be necessary to enable Landlord to perfect such
\nlien.<\/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 made by contractors or mechanics approved by
\nLandlord. No installations or work shall be undertaken or begun by Tenant until:
\n(i) Landlord has approved written plans and specifications and a time schedule
\nfor such work; (ii) Tenant has made provision for either written waivers of
\nliens from all contractors, laborers and suppliers of materials for such
\ninstallations or work, the filing of lien bonds on behalf of such contractors,
\nlaborers and suppliers, or other appropriate protective measures approved by
\nLandlord and reasonably and customarily required by other landlords of first
\nclass office buildings in Cambridge, Massachusetts for work of the type being
\nperformed; and (iii) where the cost of such work exceeds $300,000.00 in any one
\ninstance, Tenant has procured appropriate surety payment and performance bonds.
\nNo 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
\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<\/p>\n
-36-
\n 45<\/p>\n
designate. If Tenant shall make any alterations, decorations, installations,
\nremovals, additions or improvements to the Premises, then Landlord may elect to
\nrequire the Tenant at the expiration or sooner termination of the term of this
\nLease to restore the Premises to substantially the same condition as existed at
\nthe Full Rent Commencement Date. Landlord agrees to make such election at the
\ntime that Landlord approves Tenant’s plans for any such alterations, etc., if
\nTenant requests in writing that Landlord make such election at the time that
\nTenant 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 alterations,
\n additions or improvements;<\/p>\n
(ii) Tenant shall submit to Landlord plans for such alterations,
\n additions or improvements if Tenant utilizes plans for such
\n alterations, additions or improvements, and<\/p>\n
(iii) that such alterations, additions or improvements shall not
\n materially, adversely affect any of the Building’s systems, or
\n 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 the Premises–whether such work be
\ndone prior to or after the Term Commencement Date–Tenant will strictly observe
\nthe following covenants and agreements:<\/p>\n
(a) Tenant agrees that it will not, either directly or indirectly,
\nuse any contractors and\/or materials if their use will create any difficulty,
\nwhether in the nature of a labor dispute or otherwise, with other contractors
\nand\/or labor engaged by Tenant or Landlord or others in the construction,
\nmaintenance and\/or operation of the Building or any part thereof.<\/p>\n
(b) In no event shall any material or equipment be incorporated in or
\nadded to the Premises, so as to become a fixture or otherwise a part of the
\nBuilding, in connection with any such alteration, decoration, installation,
\naddition or improvement which is subject to any lien, charge, mortgage or other
\nencumbrance of any kind whatsoever or is subject to any security interest or any
\nform of title retention agreement. No installations or work shall be undertaken
\nor<\/p>\n
-37-
\n 46<\/p>\n
begun by Tenant until (i) Tenant has made provision for written waiver of liens
\nfrom all contractors, laborers and suppliers of materials for such installations
\nor work, and taken other appropriate protective measures approved by Landlord;
\nand (ii) Tenant has procured appropriate surety payment and performance bonds
\nwhich shall name Landlord as an additional obligee and has filed lien bond(s)
\n(in jurisdictions 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 Building or the
\n Premises caused by the installation or removal of any such
\n equipment or personal property;<\/p>\n
2. That it will give Landlord not less than five (5) days
\n advance written notice prior to making any entry into the
\n Premises;<\/p>\n
3. That it will not hold any auction or foreclosure sale on the
\n Premises; and<\/p>\n
4. That it will have the right to remove such equipment or
\n property only during the term of this Lease.<\/p>\n
(c) All installations or work done by Tenant shall be at its own
\nexpense 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 undertaking any
\nwork in the Premises; do all of such work in a good and workmanlike manner,
\nemploying materials of good quality and complying with all governmental
\nrequirements; and defend, save harmless, exonerate and indemnify Landlord from
\nall injury, loss or damage to any person or property occasioned by or growing
\nout of such work. Tenant shall cause contractors employed by Tenant to carry
\nWorker’s Compensation Insurance in accordance with statutory requirements,<\/p>\n
-38-
\n 47<\/p>\n
Automobile Liability Insurance and, naming Landlord as an additional insured,
\nCommercial General Liability Insurance covering such contractors on or about the
\nPremises in the amounts stated in Article 15 hereof or in such other reasonable
\namounts as Landlord shall require and to submit certificates evidencing such
\ncoverage to Landlord prior to the commencement of such work.<\/p>\n
14. REPAIRS BY TENANT–FLOOR LOAD<\/p>\n
14.1 REPAIRS BY TENANT. Tenant shall keep all and singular the Premises
\nneat and clean (including periodic rug shampoo and waxing of tiled floors and
\ncleaning of blinds and drapes) and in such repair, order and condition as the
\nsame are in on the Term Commencement Date or may be put in during the term
\nhereof, reasonable use and wearing thereof and damage by fire or by other
\ncasualty excepted. Tenant shall be solely responsible for the proper maintenance
\nof all equipment and appliances operated by Tenant, including, without
\nlimitation, copiers, laser printers, computers and refrigerators. Tenant shall
\nmake, as and when needed as a result of misuse by, or neglect or improper
\nconduct of, Tenant or Tenant’s servants, employees, agents, contractors,
\ninvitees, or licensees or otherwise, all repairs in and about the Premises
\nnecessary to preserve them in such repair, order and condition, which repairs
\nshall be in quality and class equal to the original work. Landlord may elect, at
\nthe expense of Tenant, to make any such repairs or to repair any damage or
\ninjury to the Building or the Premises caused by moving property of Tenant in or
\nout of the Building, or by installation or removal of furniture or other
\nproperty, or by misuse by, or neglect, or improper conduct of, Tenant or
\nTenant’s servants, employees, agents, contractors, or licensees.<\/p>\n
14.2 FLOOR LOAD–HEAVY MACHINERY. Tenant shall not place a load upon any
\nfloor 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 force
\nand 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<\/p>\n
-39-
\n 48<\/p>\n
to time thereafter shall be not less than such higher amounts, if procurable, as
\nmay be reasonably required by Landlord and are customarily carried by
\nresponsible similar tenants in the City or Town wherein the 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 the payment of all premiums for such policies, shall be delivered by
\nTenant to Landlord and certificates as aforesaid of such policies shall upon
\nrequest of Landlord, be delivered by Tenant to the holder of any mortgage
\naffecting the Premises.<\/p>\n
15.3 GENERAL. Tenant will save Landlord, its agents and employees, harmless
\nand will exonerate, defend and indemnify Landlord, its agents and employees,
\nfrom and against any and all claims, liabilities or penalties asserted by or on
\nbehalf of any person, firm, corporation or public authority arising from the
\nTenant’s breach of the Lease or:<\/p>\n
(a) On account of or based upon any injury to person, or loss of or
\ndamage to property, sustained or occurring on the Premises on account of or
\nbased 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 of or
\ndamage 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 account of)
\nany work or thing whatsoever done (other than by Landlord or its contractors, or
\nagents or employees of either) on the Premises during the term of this Lease and
\nduring the period of time, if any, prior to the Term Commencement Date that
\nTenant may have been given access to the Premises.<\/p>\n
(d) Tenant’s obligations under this Article 15.3 shall be insured
\neither under the Commercial General Liability Insurance required under Article
\n15.1, 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
-40-
\n 49<\/p>\n
(e) Except as set forth in this Article 15.3(e), Tenant shall not be
\nliable to Landlord for consequential damages. Notwithstanding the foregoing, in
\nthe event that Tenant is required to indemnify Landlord against the claim of a
\nthird party pursuant to this Article 15.3, and if such third party recovers a
\njudgment against Landlord for consequential damages based upon the negligence or
\nwillful misconduct of Tenant, its contractors, agents or employees, Tenant shall
\nbe liable for such consequential damages suffered by such third party. The
\nforegoing shall not limit Landlord’s right to recover damages in accordance with
\nArticle 21.3 (x) or (y) or to recover damages in accordance with the last
\nparagraph of Article 22 as the result of a holdover by Tenant in the premises
\nbeyond 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,
\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 injury or
\ndamage to persons or property resulting from fire, explosion, falling plaster,
\nsteam, gas, air contaminants or emissions, electricity, electrical or electronic
\nemanations or disturbance, water, rain or snow or leaks from any part of the
\nBuilding or from the pipes, appliances, equipment or plumbing works or from the
\nroof, street or sub-surface or from any other place or caused by dampness,
\nvandalism, malicious mischief or by any other cause of whatever nature, unless
\ncaused by or due to the negligence of Landlord, its agents, servants or
\nemployees, and then, where notice and an opportunity to cure are appropriate
\n(i.e., where Tenant has an opportunity to know or should have known of such
\ncondition sufficiently in advance of the occurrence of any such injury or damage
\nresulting therefrom as would have enabled Landlord to prevent such damage or
\nloss had Tenant notified Landlord of such condition) only after (i) notice to
\nLandlord of the condition claimed to constitute negligence and (ii) the
\nexpiration of a reasonable time after such notice has been received by Landlord
\nwithout Landlord having taken all reasonable and practicable means to cure or
\ncorrect such condition; and pending such cure or correction by Landlord, Tenant
\nshall take all reasonably prudent temporary measures and safeguards to prevent
\nany injury, loss or damage to persons or property. In no event shall Landlord be
\nliable for any loss, the risk of which is covered by Tenant’s insurance or is
\nrequired to be so covered by this Lease; nor shall Landlord or its agents be
\nliable for any such damage caused by other tenants or persons in the Building or
\ncaused by operations in construction of any private, public, or quasi-public
\nwork; nor shall Landlord be liable for any latent defect in the Premises or in
\nthe Building; provided however, that: (i) the foregoing shall not limit
\nLandlord’s obligation to repair any latent defect in Landlord’s Work of which
\nTenant gives Landlord written notice within the time period required pursuant to
\nArticle 4.8, and (ii) the foregoing shall not relieve Landlord of its obligation
\nto<\/p>\n
-41-
\n 50<\/p>\n
perform maintenance and repairs pursuant to Article 8.7. Landlord shall
\ncooperate with Tenant in such manner as Tenant shall reasonably request in the
\nevent that Tenant suffers any loss or damage by reason of any such latent defect
\nso that Tenant shall be able to prosecute any claim which it may have against
\nthe contractor and\/or material supplier responsible for such latent defect.
\nWithout limiting the foregoing, Landlord shall assign its right to Tenant
\nagainst any such contractor and\/or material supplier, if necessary to enable
\nTenant 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
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 advertising the Premises,
\n or any portion thereof for sublease or assignment give
\n Landlord a Recapture Offer, as hereinafter defined.<\/p>\n
2. For the purposes hereof a “Recapture Offer” shall be defined
\n as a notice in writing from Tenant to Landlord which:<\/p>\n
(a) States that Tenant desires to sublet the Premises, or a
\n portion thereof, or to assign its interest in this
\n Lease.<\/p>\n
(b) Identifies the affected portion of the Premises
\n (“Recapture Premises”).<\/p>\n
(c) Identifies the period of time (“Recapture Period”)
\n during which Tenant proposes to sublet the Recapture
\n Premises or to assign its interest in the Lease.<\/p>\n
-42-
\n 51<\/p>\n
(d) Offers to Landlord to terminate the Lease in respect of
\n the Recapture Premises (in the case of a proposed
\n assignment of Tenant’s interest in the Lease or a
\n subletting for the remainder of the term of the Lease)
\n or to suspend the term of the Lease PRO TANTO in
\n respect of the Recapture Period (i.e. the term of the
\n Lease in respect of the Recapture Premises shall be
\n terminated during the Recapture Period and Tenant’s
\n rental obligations shall be reduced in proportion to
\n the ratio of the Total Rentable Area of the Recapture
\n Premises to the Total Rentable Area of the Premises
\n then demised to Tenant).<\/p>\n
3. Landlord shall have twenty-one (21) business days to accept
\n a Recapture Offer. If Landlord does not timely give written
\n notice to Tenant accepting a Recapture Offer, then Landlord
\n agrees that, subject to Subparagraph 5 of this Paragraph B,
\n it will not unreasonably withhold or delay its consent to a
\n sublease of the Recapture Premises for the Recapture Period,
\n or an assignment of Tenant’s interest in the Lease, as the
\n case may be, to a Qualified Transferee, as hereinafter
\n defined.<\/p>\n
4. For the purposes hereof, a “Qualified Transferee” shall be
\n defined as a person, firm or corporation which, in
\n Landlord’s reasonable opinion:<\/p>\n
(a) is financially responsible and of good reputation
\n (recognizing that Akamai Technologies, Inc. remains
\n liable hereunder); and<\/p>\n
(b) is engaged in a business, the functional aspects of
\n which, with respect to the Premises, are similar to the
\n use of other Premises made by other office space
\n tenants in the Building.<\/p>\n
5. In the event that the proposed assignee or sublessee is then
\n a tenant or subtenant of other premises in the Building or
\n the Complex (an “Existing Tenant”), then Tenant’s written
\n request for Landlord’s consent to a sublease or assignment
\n to such entity shall be deemed to constitute a second
\n Recapture Offer to Landlord with respect to such proposed
\n sublease or assignment, except that Landlord shall have
\n seven (7) calendar days from the receipt of Tenant’s written
\n request for consent to such proposed sublease or assignment
\n in which to give Tenant written notice that Landlord accepts
\n such Recapture Offer.<\/p>\n
6. Notwithstanding anything to the contrary in this Paragraph B
\n contained:<\/p>\n
-43-
\n 52<\/p>\n
(a) If Tenant is in default of its obligations under the
\n Lease at the time that it makes the aforesaid offer to
\n Landlord, such default shall be deemed to be a
\n “reasonable” reason for Landlord withholding its
\n consent to any proposed subletting or assignment; and<\/p>\n
(b) If Tenant does not enter into a sublease with a
\n subtenant (or an assignment to an assignee, as the case
\n may be) approved by Landlord, as aforesaid, on or
\n before the date which is one hundred eighty (180) days
\n after the earlier of: (x) the expiration of said
\n twenty-one (21) business day period, or (y) the date
\n that Landlord notifies Tenant that Landlord will not
\n accept Tenant’s offer to terminate or suspend the
\n Lease, then Landlord shall have the right arbitrarily
\n to withhold its consent to any subletting or assignment
\n proposed to be entered into by Tenant after the
\n expiration of said one hundred eighty (180) day period
\n unless Tenant again offers, in accordance with this
\n Paragraph B, either to terminate or to suspend the
\n Lease in respect of the portion of the Premises
\n proposed to be sublet (or in respect of the entirety of
\n the Premises in the event of a proposed assignment, as
\n the case may be). If Tenant shall make any subsequent
\n offers to terminate or suspend the Lease pursuant to
\n this Paragraph B, any such subsequent offers shall be
\n treated in all respects as if it is Tenant’s first
\n offer to suspend or terminate the Lease pursuant to
\n this Paragraph B, provided that the period of time
\n Landlord shall have in which to accept or reject such
\n subsequent offer shall be fourteen (14) business days.<\/p>\n
7. Notwithstanding anything to the contrary herein contained,
\n except in connection with a Protected Sublease, as defined
\n in Subparagraph 8 of this Paragraph B, Tenant shall have no
\n right, under this Paragraph B hereof, prior to the date that
\n is the earlier of (i) one (1) year after the Full Rent
\n Commencement Date, and (ii) the date when Buildings 100, 300
\n and 700 are one hundred percent (100%) leased.<\/p>\n
8. Notwithstanding the foregoing, Tenant shall have the right
\n to sublease up to 35,696 square feet of Rentable Floor Area,
\n in the aggregate, of the Premises for a term not in excess
\n of forty-two months (a “Protected Sublease”) without the
\n requirement of giving Landlord a Recapture Notice with
\n respect thereto, and without being subject to the provisions
\n of Paragraph (7) above. Such Protected Sublease shall,
\n however, require Landlord’s consent, which shall not be
\n unreasonably withheld, conditioned or delayed for a sublease
\n to a Qualified Transferee, as defined in Paragraph (4)
\n above, and shall be subject to the provisions of<\/p>\n
-44-
\n 53<\/p>\n
Paragraph (5) above allowing Landlord to recapture the
\n relevant portion of the Premises in connection with
\n subleases or assignments to Existing Tenants. Tenant shall
\n pay Landlord 50% of the net (i.e., net of the reasonable and
\n customary brokerage, legal, design and construction costs
\n incurred by Tenant in connection with such Protected
\n Sublease) amount of all rent and other consideration which
\n Tenant receives as a result of a Protected Sublease that is
\n in excess of the rent payable to Landlord for the portion of
\n the Premises and Term covered by the Transfer. Tenant shall
\n pay Landlord for Landlord’s share of any excess within ten
\n (10) days after Tenant’s receipt of such excess
\n consideration.<\/p>\n
9. No subletting or assignment shall relieve Tenant of its
\n primary obligation as party-Tenant hereunder, nor shall it
\n reduce or increase Landlord’s obligations under the 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 with
\npartners, or if Tenant is a partnership, then:<\/p>\n
(i) Each present and future partner shall be personally bound by and
\nupon all of the covenants, agreements, terms, provisions and conditions set
\nforth in this Lease on the part of Tenant to be performed; and<\/p>\n
-45-
\n 54<\/p>\n
(ii) In confirmation of the foregoing, Landlord may (but without being
\nrequired to do so) request (and Tenant shall duly comply) that Tenant, at the
\ntime that Tenant admits any new partner to its partnership, shall require each
\nsuch new partner to execute an agreement in form and substance satisfactory to
\nLandlord whereby such new partner shall agree to be personally bound by and upon
\nall of the covenants, agreements, terms, provisions and conditions of this Lease
\non the part of Tenant to be performed, without regard to the time when such new
\npartner is admitted to partnership or when any obligations under any such
\ncovenants, 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 or
\nany portion of the Premises be sublet, to any of the following entities: Gardner
\nGroup, 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 with
\nthe Rules and Regulations, if any, annexed hereto and such other and further
\nreasonable Rules and Regulations as Landlord hereafter at any time or from time
\nto time may make and may communicate in writing to Tenant, which in the
\nreasonable judgment of Landlord shall be necessary for the reputation, safety,
\ncare or appearance of the Building, or the preservation of good order therein,
\nor the operation or maintenance of the Building, or the equipment thereof, or
\nthe comfort of tenants or others in the Building, provided, however, that in the
\ncase of any conflict between the provisions of this Lease and any such
\nregulations, the provisions of this Lease shall control, and provided further
\nthat nothing contained in this Lease shall be construed to impose upon Landlord
\nany duty or obligation to enforce the Rules and Regulations or the terms,
\ncovenants or conditions in any other lease as against any other tenant and
\nLandlord shall not be liable to Tenant for violation of the same by any other
\ntenant, its servants, employees, agents, contractors, visitors, invitees or
\nlicensees. Notwithstanding anything to the contrary in<\/p>\n
-46-
\n 55<\/p>\n
this Lease contained, Landlord agrees that it will not enforce said Rules and
\nRegulations against Tenant 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 limitation, sanitary, electrical,
\nheating, air conditioning or other systems) or of complying with all laws,
\norders and requirements of governmental or other authority or of exercising any
\nright reserved to Landlord by this Lease (including the right during the
\nprogress of any such repairs, replacements or improvements or while performing
\nwork and furnishing materials in connection with compliance with any such laws,
\norders or requirements to take upon or through, or to keep and store within, the
\nPremises all necessary materials, tools and equipment); and (iii) permit
\nLandlord, at reasonable times, upon reasonable advance notice, to show the
\nPremises during ordinary business hours to any existing or prospective
\nmortgagee, ground lessor, space lessee, purchaser, or assignee of any mortgage,
\nof the Building or of the Building and the land or of the interest of Landlord
\ntherein, and during the period of 12 months next preceding the Termination Date
\nto any person contemplating the leasing of the Premises or any part thereof. If,
\nduring the last month of the term, Tenant shall have removed all or
\nsubstantially all of Tenant’s property therefrom, Landlord may immediately enter
\nand alter, renovate and redecorate the Premises, without elimination or
\nabatement of rent, or incurring liability to Tenant for any compensation, and
\nsuch acts shall have no effect upon this Lease. If Tenant shall not be
\npersonally present to open and permit an entry into the Premises at any time
\nwhen for any reason an entry therein shall be necessary or permissible, Landlord
\nor Landlord’s agents may enter the same by a master key, or may forcibly enter
\nthe same, without rendering Landlord or such agents liable therefor (if during
\nsuch entry Landlord or Landlord’s agents shall accord reasonable care to
\nTenant’s property), and without in any manner affecting the obligations and
\ncovenants of this Lease. Provided that Landlord shall incur no additional
\nexpense thereby, Landlord shall exercise its rights of access to the Premises
\npermitted under any of the terms and provisions of this Lease in such manner as
\nto minimize to the extent practicable interference with Tenant’s use and
\noccupation of the Premises. If an excavation shall be made upon land adjacent to
\nthe Premises or shall be authorized to be made, Tenant shall afford to the
\nperson causing or authorized to cause such excavation, license to enter upon the
\nPremises for the purpose of doing such work as said person shall deem necessary
\nto preserve the Building from injury or damage and to support the same by proper
\nfoundations without any claims for damages or indemnity against Landlord, or
\ndiminution or abatement of rent.<\/p>\n
17.3 ACCIDENTS TO SANITARY AND OTHER SYSTEMS. Tenant shall give to Landlord
\nprompt notice of any fire or accident in the Premises or in the Building and of
\nany damage to, or defective condition in, any part or appurtenance of the
\nBuilding including, without limitation, sanitary, electrical, ventilation,
\nheating and air conditioning or other systems located in, or passing through,
\nthe Premises. Except as otherwise provided in Articles 18 and 20, and subject to
\nTenant’s obligations in Article 14, such damage or defective condition shall be
\nremedied by Landlord with reasonable diligence, but if such damage or defective
\ncondition was caused by Tenant or by the employees, licensees, contractors or
\ninvitees of Tenant, the cost to remedy the<\/p>\n
-47-
\n 56<\/p>\n
same shall be paid by Tenant. In addition, all reasonable costs incurred by
\nLandlord in connection with the investigation of any notice given by Tenant
\nshall be paid by Tenant if the reported damage or defective condition was caused
\nby Tenant or by the employees, licensees, contractors, or invitees of Tenant.
\nTenant shall not be entitled to claim any eviction from the Premises or any
\ndamages arising from any such damage or defect unless the same (i) shall have
\nbeen occasioned by the negligence of the Landlord, its agents, servants or
\nemployees and (ii) shall not, after notice to Landlord of the condition claimed
\nto constitute negligence, have been cured or corrected within a reasonable time
\nafter such notice has been received by Landlord; and in case of a claim of
\neviction unless such damage or defective condition shall have rendered the
\nPremises untenantable and they shall not have been made tenantable by Landlord
\nwithin a reasonable time.<\/p>\n
17.4 SIGNS, BLINDS AND DRAPES.<\/p>\n
(a) Tenant shall put no signs in any part of the Building. No signs or
\nblinds may be put on or in any window or elsewhere if visible from the exterior
\nof the Building, nor may the building standard drapes or blinds be removed by
\nTenant. Tenant may hang its own drapes, provided that they shall not in any way
\ninterfere with the building standard drapery or blinds or be visible from the
\nexterior of the Building and that such drapes are so hung and installed that
\nwhen drawn, the building standard drapery or blinds are automatically also
\ndrawn. Any signs or lettering in the public corridors or on the doors shall
\nconform to Landlord’s building standard design. Neither Landlord’s name, nor the
\nname of the Building or any Center, Office Park or other Park of which the
\nBuilding is a part, or the name of any other structure erected therein shall be
\nused without Landlord’s consent in any advertising material (except on business
\nstationery or as an address in advertising matter), nor shall any such name, as
\naforesaid, be used in any undignified, confusing, detrimental or misleading
\nmanner.<\/p>\n
(b) 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
\noccupying and paying rent on not less than seventy percent (70%) of the entirety
\nof Floors 1 through 5 of the Building, excluding the retail portions thereof,
\nTenant (or an Assignee or Affiliated Entity occupying the Premises as aforesaid)
\nshall have the right to erect and maintain signage on the exterior of the
\nBuilding (the “Exterior Signage”) as described in and subject to the
\nrestrictions contained in Exhibit 7 attached hereto, and as shown on the plan
\nattached hereto as part of said Exhibit 7, provided (i) the Exterior Signage
\ncomplies with all applicable laws and shall not interfere with the Landlord’s
\nsignage program for the Building and Complex (and Tenant shall have obtained any
\nnecessary permits prior to erecting the Exterior Signage), (ii) the Exterior
\nSignage shall be located as shown on the plan contained in Exhibit 7, (iii) the
\nmaterials, design and lighting of the Exterior Signage, and any requested
\nchanges thereto, shall be subject to Landlord’s prior written approval, which
\napproval shall not be unreasonably withheld, and (iv) Tenant shall at all times
\nmaintain the Exterior Signage in good order and condition and shall remove the
\nExterior Signage at the expiration or earlier termination of the term hereof or
\nupon Landlord’s written demand after the failure of condition (ii) above, and
\nshall repair any damage to the Building caused by the Exterior Signage or its
\ninstallation or removal. Tenant’s signage rights pursuant to the foregoing
\nprovision shall be exclusive as to all portions of the Building; provided,
\nhowever, that the retail tenant(s) of the Building shall have the right to erect
\nsignage not more than twenty (20) feet above ground level on the exterior of the
\nside(s) of the Building on which their premises have window frontage. Any such
\nsignage by retail tenant(s) (x) shall be in accordance with all applicable law,
\nand (y) with respect to the signage immediately facing Building 500 in the<\/p>\n
-48-
\n 57<\/p>\n
Complex, so long as Akamai Technologies, Inc., itself or an Assignee or
\nAffiliated Entity collectively are occupying at least seventy percent (70%) of
\nsaid Building 500, such signage shall be subject to Tenant’s approval, which
\napproval shall not be unreasonably withheld, delayed or conditioned. Landlord
\nagrees, at Tenant’s cost, to reasonably cooperate with Tenant in obtaining any
\nnecessary governmental approvals, permits, etc. in connection with the Exterior
\nSignage. Tenant shall have the right, from time to time throughout the term of
\nthe Lease, to replace its signage (if any) with signage which is equivalent to
\nthe signage being replaced, subject to all of the terms and conditions of this
\nArticle 17.4 and Exhibit 7.<\/p>\n
17.5 ESTOPPEL CERTIFICATE. Either party shall at any time and from time to
\ntime 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 permit to
\nbe brought or kept in or on the Premises or elsewhere in the Building (i) any
\ninflammable, combustible or explosive fluid, material, chemical or substance
\nincluding, without limitation, any hazardous substances as defined under
\nMassachusetts General Laws chapter 21E, the Federal Comprehensive Environmental
\nResponse Compensation and Liability Act (CERCLA), 42 USC Section 9601 et seq.,
\nas amended, under Section 3001 of the Federal Resource Conservation and Recovery
\nAct of 1976, as amended, or under any regulation of any governmental authority
\nregulating environmental or health matters (except for standard office supplies
\nstored in proper containers), (ii) any materials, appliances or equipment
\n(including, without limitation, materials, appliances and equipment selected by
\nTenant for the construction or other preparation of the Premises and furniture
\nand carpeting) which pose any danger to life, safety or health or may cause
\ndamage, injury or death; (iii) any unique, unusually valuable, rare or exotic
\nproperty, work of art or the like unless the same is fully insured under
\nall-risk coverage, or (iv) any data processing, electronic, optical or other
\nequipment or property of a delicate, fragile or vulnerable nature unless the
\nsame are housed, shielded and protected against harm and damage, whether by
\ncleaning or maintenance personnel, radiations or emanations from other equipment
\nnow or hereafter installed in the Building, or otherwise. Nor shall Tenant cause
\nor permit 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 expense
\nshall comply with all laws, rules, orders and regulations, including, without
\nlimitation, all energy-<\/p>\n
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\n 58<\/p>\n
related requirements, of Federal, State, County and Municipal Authorities and
\nwith any direction of any public officer or officers, pursuant to law, which
\nshall impose any duty upon Landlord or Tenant with respect to or arising out of
\nTenant’s use or occupancy of the Premises. In addition, Tenant shall, at
\nTenant’s sole expense, for so long as the Parking and Traffic Demand Management
\nPlan dated May 9, 1999 as approved by (and subject to the conditions set for in
\nsuch approval) the City of Cambridge on July 9, 1999 remains applicable to the
\nComplex, offer to subsidize mass transit monthly passes for all of its employees
\nand otherwise cooperate with Landlord in encouraging employees to seek alternate
\nmodes of transportation. Tenant shall reimburse and compensate Landlord for all
\nexpenditures made by, or damages or fines sustained or incurred by, Landlord due
\nto nonperformance or noncompliance with or breach or failure to observe any
\nitem, covenant, or condition of this Lease upon Tenant’s part to be kept,
\nobserved, performed or complied with. If Tenant receives notice of any violation
\nof law, ordinance, order or regulation applicable to the Premises, it shall give
\nprompt notice thereof to Landlord. Landlord shall comply with any laws, rules,
\norders, regulations, energy requirements (“Laws”) and with any direction of any
\npublic office or officer relating to the maintenance or operation of the
\nBuilding as an office building, and the costs so incurred by Landlord shall be
\nincluded in Operating Costs in accordance with the provisions of Article 9.
\nLandlord hereby represents to Tenant that, as of the Execution Date of the
\nLease, Landlord has not received notice from any governmental agency that the
\nBuilding 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 to
\nbe 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 any
\nfixtures, equipment or utilities therein or serving the same, to be overloaded,
\ndamaged or defaced, nor permit any hole to be drilled or made in any part
\nthereof. Tenant shall not suffer or permit any employee, contractor, business
\ninvitee or visitor to violate any covenant, agreement or obligations of the
\nTenant under this Lease.<\/p>\n
18. DAMAGE BY FIRE, ETC.<\/p>\n
(a) During the entire term of this Lease, and adjusting insurance
\ncoverages to reflect current values from time to time:–(i) Landlord shall keep
\nthe Building (excluding work,<\/p>\n
-50-
\n 59<\/p>\n
installations, improvements and betterments made in the Premises after the Term
\nCommencement Date [called “Over-Building-Standard Property”] and any other
\nproperty installed by or at the expense of Tenant) insured against loss or
\ndamage caused by any peril covered under fire, extended coverage and all risk
\ninsurance in an amount equal to one hundred percent (100%) replacement cost
\nvalue above foundation walls; and (ii) Tenant shall keep its personal property
\nin and about the Premises and the Over-Building-Standard Property insured
\nagainst loss or damage caused by any peril covered under fire, extended coverage
\nand all risk insurance in an amount equal to one hundred percent (100%)
\nreplacement cost value. Such Tenant’s insurance shall insure the interests of
\nboth Landlord and Tenant as their respective interests may appear from time to
\ntime and shall name Landlord as an additional insured; and the proceeds thereof
\nshall be used only for the replacement or restoration of such personal property
\nand the Over-Building-Standard Property.<\/p>\n
(b) If any portion of the Premises required to be insured by Landlord
\nunder the preceding paragraph shall be damaged by fire or other insured
\ncasualty, Landlord shall proceed with diligence, subject to the then applicable
\nstatutes, building 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
(c) 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<\/p>\n
-51-
\n 60<\/p>\n
of which shall be not less than thirty (30) days after the day on which such
\ntermination notice is received by Tenant.<\/p>\n
(d) 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
(i) Said notice shall be given after said two hundred fifty (250) day
\n period or sixty (60) day period, as the case may be.<\/p>\n
(ii) 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
(iii) If said repairs or restoration are substantially complete on or
\n before the date thirty (30) days (which thirty-(30)-day period
\n shall be extended by the length of any delays caused by Tenant or
\n Tenant’s contractors) after Landlord receives such notice, said
\n notice shall have no further force and effect.<\/p>\n
(iv) If said repairs or restoration are not substantially complete on
\n or before the date thirty (30) days (which thirty-(30)-day period
\n shall be extended by the length of any delays caused by Tenant or
\n Tenant’s contractors) after Landlord receives such notice, the
\n Lease shall terminate as of said effective date.<\/p>\n
(e) GENERAL PROVISIONS RELATING TO TERMINATION BASED UPON CASUALTY.
\nIn the event of any termination of this Lease pursuant to this Article 18:<\/p>\n
(i) The term hereof shall expire as of such effective termination
\n date as though that were the Termination Date as stated in
\n Exhibit 1 and the Yearly Rent shall be apportioned as of such
\n date.<\/p>\n
(ii) If the Premises or any part thereof shall have been rendered
\n unfit for use and occupation by reason of such damage the Yearly
\n Rent for the period from the date of the fire or other casualty
\n to the effective termination date, or a just and proportionate
\n part thereof, according to the nature and extent to which the
\n Premises shall have been so rendered unfit, shall be abated.<\/p>\n
(iii) If a Restructuring Rent Event, as defined in Paragraph 1 of the
\n Rider to this Lease, occurs, and if Landlord draws upon any
\n Letter of Credit which Landlord is holding pursuant to Paragraph
\n 1 of the Rider to this Lease for the purpose of making a
\n Restructuring Rent Payment, AND if the Lease is subsequently
\n terminated by either party pursuant to this Article 18 based upon
\n a fire or other casualty, then Landlord shall, within thirty (30)
\n days of the effective termination date of such casualty, pay to
\n Tenant a Casualty Termination Payment, as hereinafter defined.
\n The “Casualty Termination Payment” shall be defined as the amount
\n of principal which would remain unpaid at the effective
\n termination<\/p>\n
-52-
\n 61<\/p>\n
date on a loan (i) in the original principal amount of the
\n Restructuring Rent Payment, (ii) with interest at the rate of the
\n rate per annum announced by Fleet Bank, N.A., or its successor,
\n from time to time as its “prime” rate, plus one-quarter percent
\n (1\/4%), (iii) which is repaid on a direct reduction basis in
\n equal monthly payments of principal and interest, and (iv) with a
\n term commencing with the application of the Restructuring Rent
\n Payment and ending as of the expiration of the then-current term
\n of the Lease. If, prior to the termination of the Lease based
\n upon a fire or other casualty, there have been two Restructuring
\n Rent Payments pursuant to Paragraph 1.C.6 of the Rider to this
\n Lease, the Casualty Termination Payment shall be calculated
\n separately for each such Restructuring Rent Payment.<\/p>\n
19. WAIVER OF SUBROGATION<\/p>\n
In any case in which Tenant shall be obligated to pay to Landlord any loss,
\ncost, damage, liability, or expense suffered or incurred by Landlord, Landlord
\nshall allow to Tenant as an offset against the amount thereof (i) the net
\nproceeds of any insurance collected by Landlord for or on account of such loss,
\ncost, damage, liability or expense, provided that the allowance of such offset
\ndoes 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
20. CONDEMNATION – EMINENT DOMAIN<\/p>\n
(a) In the event that the Premises or any part thereof, or the whole or
\nany part of the Building, shall be taken or appropriated by eminent domain or
\nshall be 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<\/p>\n
-53-
\n 62<\/p>\n
the election of Landlord by a notice in writing of its election so to terminate
\nwhich shall be given by Landlord to Tenant within sixty (60) days following the
\ndate on which Landlord shall have received notice of such taking, appropriation
\nor condemnation. In the event that a substantial part of the Premises or of the
\nmeans of access thereto shall be so taken, appropriated or condemned, then (and
\nin any such event) this Lease and the term hereof may be terminated at the
\nelection of Tenant by a notice in writing of its election so to terminate which
\nshall be given by Tenant to Landlord within sixty (60) days following the date
\non which Tenant shall have received notice of such taking, appropriation or
\ncondemnation.<\/p>\n
(b) 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.<\/p>\n
(c) If a Restructuring Rent Event, as defined in Paragraph 1 of the Rider
\nto this Lease, occurs, and if Landlord draws upon any Letter of Credit which
\nLandlord is holding pursuant to Paragraph 1 of the Rider to this Lease for the
\npurpose of making a Restructuring Rent Payment, AND if the Lease is subsequently
\nterminated by either party pursuant to this Article 20 based upon taking or
\ncondemnation, as aforesaid, then Landlord shall, within thirty (30) days of the
\neffective termination date of such taking, pay to Tenant a Taking Termination
\nPayment, as hereinafter defined. The “Taking Termination Payment” shall be
\ndefined as the amount of principal which would remain unpaid at the effective
\ntermination date on a loan (i) in the original principal amount of the
\nRestructuring Rent Payment, (ii) with interest at the rate of the rate per annum
\nannounced by Fleet Bank, N.A., or its successor, from time to time as its
\n“prime” rate, plus one-quarter percent (1\/4%), (iii) which is repaid on a direct
\nreduction basis in equal monthly payments of principal and interest, and (iv)
\nwith a term commencing with the application of the Restructuring Rent Payment
\nand ending as of the expiration of the then-current term of the Lease. If, prior
\nto the termination of the Lease based upon a taking, there have been two
\nRestructuring Rent Payments pursuant to Paragraph 1.C.6 of the Rider to this
\nLease, the Taking Termination Payment shall be calculated separately for each
\nsuch Restructuring Rent Payment.<\/p>\n
(d) If neither party (having the right so to do) elects to terminate
\nLandlord will, with reasonable diligence and at Landlord’s expense, restore the
\nremainder of the Premises, or the remainder of the means of access, as nearly as
\npracticably may be to the same condition as obtained prior to such taking,
\nappropriation or condemnation in which event (i) the Total Rentable Area shall
\nbe equitably adjusted, (ii) a just proportion of the Yearly Rent, according to
\nthe nature and extent of the taking, appropriation or condemnation and the
\nresulting permanent injury to the Premises and the means of access thereto,
\nshall be permanently abated, and (iii) a just proportion of the remainder of the
\nYearly Rent, 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<\/p>\n
-54-
\n 63<\/p>\n
damages created, accrued or accruing by reason of any such taking, appropriation
\nor condemnation, in implementation and in confirmation of which Tenant does
\nhereby acknowledge that Landlord shall be entitled to receive all such
\ncompensation and damages, grant to Landlord all and whatever rights (if any)
\nTenant may have to such compensation and damages, and agree to execute and
\ndeliver all and whatever further instruments of assignment as Landlord may from
\ntime to time request. In the event of any taking of the Premises or any part
\nthereof for temporary (i.e., not in excess of one (1) year) use, (i) this Lease
\nshall be and remain unaffected thereby, and (ii) Tenant shall be entitled to
\nreceive for itself any award made to the extent allocable to the Premises in
\nrespect of such taking on account of such use, provided, that if any taking is
\nfor a period extending beyond the term of this Lease, such award shall be
\napportioned between Landlord and Tenant as of the Termination Date or earlier
\ntermination of this Lease.<\/p>\n
21. DEFAULT<\/p>\n
21.1 CONDITIONS OF LIMITATION – RE-ENTRY – TERMINATION. This Lease and the
\nherein term and estate are, upon the condition that if (a) subject to Article
\n21.7, Tenant shall neglect or fail to perform or observe any of the Tenant’s
\ncovenants or agreements herein, including (without limitation) the covenants or
\nagreements with regard to the payment when due of rent, additional charges,
\nreimbursement for increase in Landlord’s costs, or any other charge payable by
\nTenant to Landlord (all of which shall be considered as part of Yearly Rent for
\nthe purposes of invoking Landlord’s statutory or other rights and remedies in
\nrespect of payment defaults); or (b) Tenant shall desert or abandon the Premises
\nor the same shall become vacant (whether or not the keys shall have been
\nsurrendered or the rent shall have been paid); or (c) Tenant shall be involved
\nin financial difficulties as evidenced by an admission in writing by Tenant of
\nTenant’s inability to pay its debts generally as they become due, or by the
\nmaking or offering to make a composition of its debts with its creditors; or (d)
\nTenant shall make an assignment or trust mortgage, or other conveyance or
\ntransfer of like nature, of all or a substantial part of its property for the
\nbenefit of its creditors, or (e) an attachment on mesne process, on execution or
\notherwise, or other legal process shall issue against Tenant or its property and
\na sale of any of its assets shall be held thereunder; or (f) any judgment, final
\nbeyond appeal or any lien, attachment or the like in excess of $250,000.00 shall
\nbe entered, recorded or filed against Tenant in any court, registry, etc. and
\nTenant shall fail to pay such judgment within thirty (30) days after the
\njudgment shall have become final beyond appeal or to discharge or secure by
\nsurety bond such lien, attachment, etc. within thirty (30) days of such entry,
\nrecording or filing, as the case may be; or (g) the leasehold hereby created
\nshall be taken on execution or by other process of law and shall not be revested
\nin Tenant within thirty (30) days thereafter; or (h) a receiver, sequesterer,
\ntrustee or similar officer shall be appointed by a court of competent
\njurisdiction to take charge of all or any part of Tenant’s property and such
\nappointment shall not be vacated within thirty (30) days; or (i) any proceeding
\nshall be instituted by or against Tenant pursuant to any of the provisions of
\nany Act of Congress or State law relating to bankruptcy, reorganizations,
\narrangements, compositions or other relief from creditors, and, in the case of
\nany proceeding instituted against it, if Tenant shall fail to have such
\nproceedings dismissed within thirty (30) days or if Tenant is adjudged bankrupt
\nor insolvent as a result of any such proceeding, or (j) any event shall occur or
\nany contingency shall arise whereby this Lease, or the term and estate thereby
\ncreated, would (by operation of law or otherwise) devolve upon or pass to any
\nperson, firm or corporation other than Tenant, except as expressly permitted
\nunder Article 16 hereof, or (k) for so long as Building 500 in the Complex is
\nowned by Landlord or an affiliate of Landlord, Tenant shall default beyond any
\napplicable notice or cure period under that certain lease dated as of September
\n22, 1999 between Landlord and Tenant for premises at Building 500 in the
\nComplex, as amended (the<\/p>\n
-55-
\n 64
\n“Building 500 Lease”) – then, and in any such event (except as hereinafter in
\nArticle 21.2 otherwise provided) Landlord may, by notice to Tenant, elect to
\nterminate this Lease; and thereupon (and without prejudice to any remedies which
\nmight otherwise be available for arrears of rent or other charges due hereunder
\nor preceding breach of covenant or agreement and without prejudice to Tenant’s
\nliability for damages as hereinafter stated), upon the giving of such notice,
\nthis Lease shall terminate as of the date specified therein as though that were
\nthe Termination Date as stated in Exhibit 1. Without being taken or deemed to be
\nguilty of any manner of trespass or conversion, and without being liable to
\nindictment, prosecution or damages therefor, Landlord may, forcibly if
\nnecessary, enter into and upon the Premises (or any part thereof in the name of
\nthe whole); repossess the same as of its former estate; and expel Tenant and
\nthose claiming under Tenant. Wherever “Tenant” is used in subdivisions (c),
\n(d), (e), (f), (g), (h) and (i) of this Article 21.1, it shall be deemed to
\ninclude any one of (i) any corporation of which Tenant is a controlled
\nsubsidiary and (ii) any guarantor of any of Tenant’s obligations under this
\nLease. The words “re-entry” and “re-enter” as used in this Lease are not
\nrestricted to their technical legal meanings.<\/p>\n
21.2 INTENTIONALLY OMITTED.<\/p>\n
21.3 DAMAGES – TERMINATION. Upon the termination of this Lease under the
\nprovisions 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 this Lease
\n(or at any time thereafter if Landlord shall have initially elected damages
\nunder subparagraph (y), below), (i) the aggregate of the rent and other charges
\nprojected over the period commencing with such termination and ending on the
\nTermination Date as stated in Exhibit 1 exceeds (ii) the aggregate projected
\nrental value of the Premises for such period;<\/p>\n
or:<\/p>\n
(y) amounts equal to the rent and other charges which would have been
\npayable by Tenant had this Lease not been so terminated, payable upon the due
\ndates 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<\/p>\n
-56-
\n 65<\/p>\n
actually received by Landlord prior to the commencement of such suit. If the
\nPremises or any part thereof should be re-let in combination with other space,
\nthen proper apportionment on a square foot area basis shall be made of the rent
\nreceived from such re-letting and of the expenses of re-letting.<\/p>\n
In calculating the rent and other charges under Subparagraph (x), above,
\nthere 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 the
\nrecovery by Landlord against Tenant of any sums or damages to which, in addition
\nto the damages particularly provided above, Landlord may lawfully be entitled by
\nreason 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 on
\nTenant’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 attorneys’ fees incurred by Landlord unless judgment is entered
\n(final, and beyond appeal) in favor of Landlord in the lawsuit relating to such
\nfees. Landlord shall pay, upon demand by Tenant, reasonable attorneys’ fees
\nincurred by Tenant in connection with any lawsuit between Landlord and Tenant
\nwhere judgment 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<\/p>\n
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\n 66<\/p>\n
dispossessed or ejected therefrom by process of law or under the terms of this
\nLease or after the termination of this Lease as herein 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 Article
\ncontained, Landlord agrees not to take any action to terminate this Lease (a)
\nfor default by Tenant in the payment when due of any sum of money, if Tenant
\nshall cure such default within five (5) business days after written notice
\nthereof is given by Landlord to Tenant, or (b) for default by Tenant in the
\nperformance 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 contained,
\nexcept to the extent prohibited by applicable law, any statutory notice and
\ngrace periods provided to Tenant by law are hereby expressly waived by Tenant.<\/p>\n
22. END OF TERM – ABANDONED PROPERTY<\/p>\n
Upon the expiration or other termination of the term of this Lease, Tenant
\nshall peaceably quit and surrender to Landlord the Premises and all alterations
\nand additions thereto, broom clean, in good order, repair and condition (except
\nas provided herein and in Articles 8.7, 18 and 20) excepting only ordinary wear
\nand use and damage by fire or other casualty for which, under other provisions
\nof this Lease, Tenant has no responsibility of repair or restoration. Tenant
\nshall remove all of its property and, to the extent specified by Landlord, all
\nalterations and additions made by Tenant and all partitions wholly within the
\nPremises, and shall repair any damages to the Premises or the Building caused by
\ntheir installation or by such removal. Tenant’s obligation to observe or perform
\nthis covenant shall survive the expiration or other termination of the term of
\nthis Lease.<\/p>\n
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\n 67<\/p>\n
Tenant will remove any personal property from the Building and the Premises
\nupon or prior to the expiration or termination of this Lease and any such
\nproperty which shall remain in the Building or the Premises thereafter shall be
\nconclusively deemed to have been abandoned, and may either be retained by
\nLandlord 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 the
\nPremises or any part thereof after the expiration or prior termination of the
\nterm of this Lease without any agreement in writing between Landlord and Tenant
\nwith respect thereto, then, prior to the acceptance of any payments for rent or
\nuse and occupancy by Landlord, the person remaining in possession shall be
\ndeemed 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 hereinafter
\nprovided for, this Lease is subject and subordinate in all respects to all
\nmatters of record (including, without limitation, deeds and land disposition
\nagreements), ground leases and\/or underlying leases, and all mortgages, any of
\nwhich may now or hereafter be placed on or affect such leases and\/or the real
\nproperty of which the Premises are a part, or any part of such real property,
\nand\/or Landlord’s interest or estate therein, and to each advance made and\/or
\nhereafter 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<\/p>\n
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\n 68<\/p>\n
lessor’s right to do so for, on behalf and in the name of Tenant under certain
\ncircumstances, as hereinafter provided. Tenant acknowledges that, where
\napplicable, any consent or approval hereafter given by Landlord may be subject
\nto the further consent or approval of such mortgagee and\/or ground lessor; and
\nthe failure or refusal of such mortgagee and\/or ground lessor to give such
\nconsent or approval shall, notwithstanding anything to the contrary in this
\nLease contained, constitute reasonable justification for Landlord’s withholding
\nits consent or approval. Landlord hereby represents to Tenant that, as of the
\nExecution Date of this Lease, there is no mortgage affecting the Premises or the
\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 subordinate
\nor revoke any such subordination of the mortgage or ground lease held by it to
\nthis Lease. Such subordination or revocation, as the case may be, shall be
\neffected 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 letter of credit unless it shall
\nhave been physically delivered to such successor; or (iv) be bound by any
\nprevious modification of this Lease or by any previous payment of Yearly Rent
\nfor a period greater than one (1) month, made without such ground lessor’s or
\nmortgagee’s consent where such consent is required by applicable ground lease or
\nmortgage 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<\/p>\n
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\n 69<\/p>\n
hereof to execute a suitable instrument in confirmation of Tenant’s agreement to
\nattorn, as aforesaid, subject to Landlord’s, mortgagee’s and ground lessor’s
\nright to do so for, on behalf and in the name of Tenant under certain
\ncircumstances, as hereinafter 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
(f) Notwithstanding anything to the contrary contained in this Article 23,
\nif all or part of Landlord’s estate and interest in the real property of which
\nthe Premises are a part shall be a leasehold estate held under a ground lease,
\nthen: (i) the foregoing subordination provisions of this Article 23 shall not
\napply 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 observe
\nany agreement by Landlord herein, in no event will the Landlord be deemed to be
\nin default under this Lease permitting Tenant to exercise any or all rights or
\nremedies under this Lease until the Tenant shall have given written notice of
\nsuch failure to any mortgagee (ground lessor and\/or trustee) of which Tenant
\nshall have been advised and until a reasonable period of time shall have elapsed
\nfollowing the giving of such notice, during which such mortgagee (ground lessor
\nand\/or trustee) shall have the right, but shall not be obligated, to remedy such
\nfailure.<\/p>\n
24. QUIET ENJOYMENT<\/p>\n
Landlord covenants that if, and so long as, Tenant keeps and performs each
\nand every covenant, agreement, term, provision and condition herein contained on
\nthe part and on behalf of Tenant to be kept and performed, Tenant shall quietly
\nenjoy the Premises from and against the claims of all persons claiming by,
\nthrough or under Landlord subject, nevertheless, to the covenants, agreements,
\nterms, provisions and conditions of this Lease and to the mortgages, ground
\nleases and\/or underlying leases to which this Lease is subject and subordinate,
\nas hereinabove set forth.<\/p>\n
Without incurring any liability to Tenant, Landlord may permit access to
\nthe Premises and open the same, whether or not Tenant shall be present, upon any
\ndemand of any receiver,<\/p>\n
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\n 70<\/p>\n
trustee, assignee for the benefit of creditors, sheriff, marshal or court
\nofficer entitled to, or reasonably purporting to be entitled to, such access for
\nthe purpose of taking possession of, or removing, Tenant’s property or for any
\nother lawful purpose (but this provision and any action by Landlord hereunder
\nshall not be deemed a recognition by Landlord that the person or official making
\nsuch demand has any right or interest in or to this Lease, or in or to the
\nPremises), or upon demand of any representative of the fire, police, building,
\nsanitation or other department of the city, state or federal 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, or
\nto 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 with knowledge of the breach of any covenant of this Lease
\nshall not be deemed a waiver of such breach. The failure of Landlord to enforce
\nany of such Rules and Regulations against Tenant and\/or any other tenant in the
\nBuilding shall not be deemed a waiver of any such Rules and Regulations. No
\nprovisions of this Lease shall be deemed to have been waived by either party
\nunless such waiver be in writing signed by such party. No payment by Tenant or
\nreceipt by Landlord of a lesser amount than the monthly rent herein stipulated
\nshall be deemed to be other than on account of the stipulated rent, nor shall
\nany endorsement or statement on any check or any letter accompanying any check
\nor payment as rent be deemed an accord and satisfaction, and Landlord may accept
\nsuch check or payment without prejudice to Landlord’s right to recover the
\nbalance of such rent 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
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\n 71<\/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 Lease
\nand the obligations of Tenant to pay rent hereunder and perform all the other
\ncovenants, agreements, terms, provisions and conditions hereunder on the part of
\nTenant to be performed shall in no way be affected, impaired or excused because
\nLandlord is unable to fulfill any of its obligations under this Lease or is
\nunable to supply or is delayed in supplying any service expressly or impliedly
\nto be supplied or is unable to make or is delayed in making any repairs,
\nreplacements, additions, alterations, improvements or decorations or is unable
\nto supply or is delayed in supplying any equipment or fixtures if Landlord is
\nprevented or delayed from so doing by reason of strikes or labor troubles or any
\nother similar or dissimilar cause whatsoever beyond Landlord’s reasonable
\ncontrol, including but not limited to, governmental preemption in connection
\nwith a national emergency or by reason of any rule, order or regulation of any
\ndepartment or subdivision thereof of any governmental agency or by reason of the
\nconditions of supply and demand which have been or are affected by war,
\nhostilities or other similar or dissimilar emergency. In each such instance of
\ninability of Landlord to perform, Landlord shall exercise reasonable diligence
\nto eliminate the cause of such inability to perform.<\/p>\n
Tenant shall neither assert nor seek to enforce any claim against Landlord,
\nor Landlord’s agents or employees, or the assets of Landlord or of Landlord’s
\nagents or employees, for breach of this Lease or otherwise, other than against
\nLandlord’s interest in the Building of which the Premises are a part and the
\nComplex and in the uncollected rents, issues and profits thereof, and Tenant
\nagrees to look solely to such interest for the satisfaction of any liability of
\nLandlord under this Lease, it being specifically agreed that in no event shall
\nLandlord or Landlord’s agents or employees (or any of the officers, trustees,
\ndirectors, partners, beneficiaries, joint venturers, members, stockholders or
\nother principals or representatives, and the like, disclosed or undisclosed,
\nthereof) ever be personally liable for any such liability. This paragraph shall
\nnot limit any right that Tenant might otherwise have to obtain injunctive relief
\nagainst Landlord or to take any other action which shall not involve the
\npersonal liability of Landlord to respond in monetary damages from Landlord’s
\nassets other than the Landlord’s interest in said real estate, as aforesaid. In
\nno event shall Landlord or Landlord’s agents or employees (or any of the
\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 consequential or
\nincidental damages. Without limiting the foregoing, in no event shall Landlord
\nor Landlord’s agents or employees (or any of the officers, trustees, directors,
\npartners, beneficiaries, joint venturers, members, stockholders or other
\nprincipals or representatives and the like, disclosed or undisclosed, thereof)
\never be liable for lost profits of Tenant. If by reason of Landlord’s failure to
\nacquire title to the real property of which the Premises are a part or to
\ncomplete construction of the Building or Premises, Landlord shall be held to be
\nin breach of this Lease, Tenant’s sole and exclusive remedy shall be as set
\nforth in Article 4 hereof.<\/p>\n
27. BILLS AND NOTICES<\/p>\n
Any notice, consent, request, bill, demand or statement hereunder by either
\nparty to the other party shall be in writing and, if received at Landlord’s or
\nTenant’s address, shall be deemed to have been duly given when either delivered
\nor served personally or mailed in a postpaid envelope, deposited in the United
\nStates mail addressed to Landlord at its address as stated in Exhibit 1 and to
\nTenant at the Premises (or at Tenant’s address as stated in Exhibit 1, if mailed
\nprior to Tenant’s occupancy of the Premises), or if any address for notices
\nshall have been duly<\/p>\n
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\n 72<\/p>\n
changed as hereinafter provided, if mailed as aforesaid to the party at such
\nchanged address. Either party may at any time change the address or specify an
\nadditional address for such notices, consents, requests, bills, demands or
\nstatements by delivering or mailing, as aforesaid, to the other party a notice
\nstating the change and setting forth the changed or additional address, provided
\nsuch changed or additional address is within the United States.<\/p>\n
If Tenant is a partnership, Tenant, for itself, and on behalf of all of its
\npartners, hereby appoints Tenant’s Service Partner, as identified on Exhibit 1,
\nto 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 due
\nfrom Tenant to Landlord hereunder shall be due and payable in full twenty (20)
\ndays, unless herein otherwise provided, after submission thereof by Landlord to
\nTenant. Tenant’s failure to make timely payment of any amounts indicated by such
\nbills and statements, whether for work done by Landlord at Tenant’s request,
\nreimbursement provided for by this Lease or for any other sums properly owing by
\nTenant to Landlord, shall be treated as a default in the payment of rent, in
\nwhich event Landlord shall have all rights and remedies provided in this Lease
\nfor the nonpayment of rent.<\/p>\n
28. PARTIES BOUND — SEIZIN OF TITLE<\/p>\n
The covenants, agreements, terms, provisions and conditions of this Lease
\nshall bind and benefit the successors and assigns of the parties hereto with the
\nsame effect as if mentioned in each instance where a party hereto is named or
\nreferred to, except that no violation of the provisions of Article 16 hereof
\nshall operate to vest any rights in any successor or assignee of Tenant and that
\nthe provisions of this Article 28 shall not be construed as modifying the
\nconditions of limitation contained in Article 21 hereof.<\/p>\n
If, in connection with or as a consequence of the sale, transfer or other
\ndisposition of the real estate (land and\/or Building, either or both, as the
\ncase may be) of which the Premises are a part, Landlord ceases to be the owner
\nof the reversionary interest in the Premises, Landlord shall be entirely freed
\nand relieved from the performance and observance thereafter of all covenants and
\nobligations hereunder on the part of Landlord to be performed and observed, it
\nbeing understood and agreed in such event (and it shall be deemed and construed
\nas a covenant running with the land) that the person succeeding to Landlord’s
\nownership of said reversionary interest shall thereupon and thereafter assume,
\nand perform and observe, any and all of such covenants and obligations of
\nLandlord.<\/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 remainder of the Lease (or the
\nremainder of such provision) and the application thereof to other persons or
\ncircumstances 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<\/p>\n
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\n 73<\/p>\n
provisions thereof. References to “State” shall mean, where appropriate, the
\nDistrict of Columbia and other Federal territories, possessions, as well as a
\nstate 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. Except as specifically otherwise provided below, arbitration
\nproceedings, including the selection of an arbitrator, shall be conducted
\npursuant to the rules, regulations and procedures from time to time in effect as
\npromulgated by the American Arbitration Association. Prior written notice of
\napplication by either party for arbitration shall be given to the other at least
\nten (10) days before submission of the application to the said Association’s
\noffice in the City wherein the Building is situated (or the nearest other city
\nhaving an Association office). The arbitrator shall hear the parties and their
\nevidence. The decision of the arbitrator shall be binding and conclusive, and
\njudgment 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. The
\ncosts and expenses of each arbitration hereunder and their apportionment between
\nthe parties shall be determined by the arbitrator in his award or decision. No
\narbitrable dispute shall be deemed to have arisen under this Lease prior to (i)
\nthe expiration of the period of twenty (20) days after the date of the giving of
\nwritten notice by the party asserting the existence of the dispute together with
\na description thereof sufficient for an understanding thereof; and (ii) where a
\nTenant payment (e.g., Tax Excess or Operating Expense Excess under Article 9
\nhereof) is in issue, the amount billed by Landlord which is not disputed by
\nTenant in good faith having been paid by Tenant. Notwithstanding the foregoing,
\nthe parties hereby agree that (i) except as set forth in (ii) below, the
\narbitrator for any disputes relating to Article 4 of this Lease shall be the
\n“Initial Arbitrator”, or the “Alternate Arbitrator” if the Initial<\/p>\n
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\n 74<\/p>\n
Arbitrator is not available, and (ii) the arbitrators for any disputes relating
\nto the Certificate of Occupancy Test, as set forth in Article 4.0(l) of this
\nLease, shall be a panel of three (the “Initial Three Arbitrators”), consisting
\nof the Initial Arbitrator, with the Alternate Arbitrator serving as a substitute
\nif the Initial Arbitrator is not available, plus the “Landlord’s Arbitrator” and
\nthe “Tenant’s Arbitrator”, with the “Landlord’s Alternate Arbitrator” and\/or the
\n“Tenant’s Alternate Arbitrator” serving as a substitute if the Landlord’s
\nArbitrator or the Tenant’s Arbitrator, as the case may be, is not available. All
\nof such individuals shall be chosen as follows: Within seven (7) days after the
\ndate hereof, Landlord and Tenant shall each designate one arbitrator and one
\nalternate arbitrator, to be known as Landlord’s Arbitrator, Landlord’s Alternate
\nArbitrator, Tenant’s Arbitrator and Tenant’s Alternate Arbitrator, respectively.
\nLandlord’s Arbitrator and Tenant’s Arbitrator shall, within thirty (30) days
\nafter the date hereof, designate two individuals to serve as the Initial
\nArbitrator and the Alternate Arbitrator, respectively. Any decision to be made
\nby the Initial Three Arbitrators shall be made as follows: Landlord’s Arbitrator
\nand Tenant’s Arbitrator (or the Alternate Arbitrator sitting in his\/her stead)
\nshall each render a decision on the matter, and the Initial Arbitrator (or the
\nAlternate Arbitrator sitting in his\/her stead) shall choose which of the
\ndecisions made by the Landlord’s Arbitrator or Tenant’s Arbitrator is correct,
\nand such decision shall then be binding on the parties.<\/p>\n
29.6 GOVERNING LAW. This Lease is made pursuant to, and shall be governed
\nby, and construed in accordance with, the laws of the State wherein the Building
\nis situated and any applicable local municipal rules, regulations, by-laws,
\nordinances and the like.<\/p>\n
29.7 ASSIGNMENT OF RENTS. With reference to any assignment by Landlord of
\nits 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 thereof
\nby such mortgagee and\/or ground lessor shall never be deemed an assumption by
\nsuch mortgagee and\/or ground lessor of any of the obligations of the Landlord
\nthereunder, unless such mortgagee and\/or ground lessor shall, by written notice
\nsent to the Tenant, specifically otherwise elect; and<\/p>\n
(b) that, except as aforesaid, such mortgagee and\/or ground lessor
\nshall be treated as having assumed the Landlord’s obligations thereunder only
\nupon foreclosure of such mortgagee’s mortgage or deed of trust or termination of
\nsuch ground lessor’s ground lease and the taking of possession of the demised
\nPremises after having given notice of its exercise of the option stated in
\nArticle 23 hereof to succeed to the interest of the Landlord under this 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, upon
\ndemand, 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<\/p>\n
-66-
\n 75<\/p>\n
connection with proposed alterations to be made by Tenant to the Premises,
\nrequests by Tenant to sublet the Premises or assign its interest in the Lease,
\nthe execution by Landlord of estoppel certificates requested by Tenant (except
\nthat there shall be no charge for the first such estoppel certificate requested
\nby Tenant in any calendar year), and requests by Tenant for Landlord to execute
\nwaivers of Landlord’s interest in Tenant’s property in connection with third
\nparty financing by Tenant. Such costs shall be deemed to be additional rent
\nunder the Lease.<\/p>\n
29.10 RETAIL AREA. Landlord agrees that retail uses in the Building will be
\nconsistent with the types of retail uses in other office buildings of comparable
\nquality in the metropolitan Boston area, and that no construction activity for
\nretail uses will be allowed in the Building lobby except to the extent that such
\nconstruction activity relates to a door into the lobby from such retail area and
\ncannot reasonably be performed outside the Building lobby, and then only if
\nseparated from the Building lobby by a painted construction barrier. So long as
\nAkamai Technologies, Inc., itself, or an Assignee or Affiliated Entity (as those
\nterms are defined in Article 16) collectively are occupying at least seventy
\npercent (70%) of the Premises then demised to Tenant, Landlord agrees that any
\ndoor into the lobby from such retail area shall be used for emergency egress
\nonly, except that, as shown on Lease Plan, Exhibit 2, Sheet 1, the retail
\npremises located on the first floor of the Building shall have access to the
\ncommon bathrooms on the first floor through the doors shown on Lease Plan,
\nExhibit 2, Sheet 1. Reaccess to the lobby from such bathrooms shall be
\ncontrolled by Tenant’s security system, subject to emergency access as required
\nby law.<\/p>\n
29.11 SURVIVAL. Without limiting any other obligation of the Tenant which
\nmay survive the expiration or prior termination of the term of the Lease, all
\nobligations 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
-67-
\n 76<\/p>\n
IN WITNESS WHEREOF the parties hereto have executed this Indenture of Lease
\nin 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\/ Kathryn L. Jorden
\n ———————– ——————————–
\n Name: Thomas Ragno (Name) (Title)
\n Title: Senior Vice President Hereunto Duly Authorized<\/p>\n
-68-
\n 77<\/p>\n
EXHIBIT 2<\/p>\n
LEASE PLAN<\/p>\n
-69-
\n 78<\/p>\n
EXHIBIT 2-1<\/p>\n
PLAN OF COMPLEX<\/p>\n
-70-
\n 79<\/p>\n
EXHIBIT 3<\/p>\n
REQUIREMENTS FOR TENANT PLANS<\/p>\n
Intentionally Omitted.<\/p>\n
-71-
\n 80<\/p>\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 flooring
\n to be swept nightly, using approved dust-down preparation.<\/p>\n
2. All wood, linoleum, vinyl-asbestos, vinyl and other similar types of
\n floors to be swept or dry mopped nightly, using dust-down preparation;
\n all carpeting and rugs in the main traffic areas (corridors, reception
\n areas, etc.) to be vacuumed nightly and all other carpeted areas to be
\n vacuumed at least 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 waste
\n materials, including folded paper boxes and cartons, to a designated
\n 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 and
\n floors adjacent to sinks to be washed nightly.<\/p>\n
8. Hand dust all door and other ventilating louvers within reach, as
\n 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 at
\n 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 in
\n 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 non-scented
\n disinfectants.<\/p>\n
-72-
\n 81<\/p>\n
2. Clean all mirrors, powder shelves, bright work and enameled surfaces
\n in all lavatories nightly. Scour, wash and disinfect all basins, bowls
\n and urinals using non-scented disinfectants.<\/p>\n
3. Police lavatories during the day with matron or porter to pick up
\n waste and replenish materials.<\/p>\n
4. Wash all toilet seats nightly.<\/p>\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 hangings.<\/p>\n
2. Dust exposed pipes, ventilation and air conditioning louvers, ducts
\n and high moldings.<\/p>\n
D. Window Cleaning<\/p>\n
1. All exterior windows (except for any retail\/commercial areas) from the
\n second floor and above will be cleaned inside and outside at least
\n three (3) times per calendar year except when cleaning is rendered
\n impracticable by inclement weather.<\/p>\n
2. Entrance doors and elevator lobby glass to be cleaned daily and kept
\n in a clean condition at all times during the day.<\/p>\n
3. Wipe down all metal window frames as necessary but not less often than
\n 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 nightly.<\/p>\n
3. Lobby walls to be dusted as often as necessary, but not less than
\n weekly.<\/p>\n
-73-
\n 82<\/p>\n
4. Screen and clean sand urns nightly.<\/p>\n
5. Clean all unpainted metal work in a manner appropriate to original
\n finish.<\/p>\n
F. Porters<\/p>\n
Necessary number of day porters under supervision will be assigned for the
\n 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 the
\n extent practicable.<\/p>\n
4. Dust and rub down all elevator doors, frames, telephone booths and
\n directories daily.<\/p>\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 lavatories.<\/p>\n
10. Maintain fan rooms, motor rooms and air conditioning rooms in clean
\n 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 and
\n sprinkler system, walkways and stairs as necessary.<\/p>\n
13. If directed by superintendent, fill towel and soap dispensers and
\n perform any emergency cleaning required.<\/p>\n
-74-
\n 83<\/p>\n
EXHIBIT 5<\/p>\n
FORM OF LETTER OF CREDIT<\/p>\n
BENEFICIARY: ISSUANCE DATE:<\/p>\n
________________, 2000<\/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: $10,228,140.00
\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 Ten Million Two
\nHundred Twenty-Eight Thousand One Hundred Forty and 00\/100 US Dollars
\n($10,228,140.00) available by your draft(s) drawn on ourselves at sight
\naccompanied 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 ___________, 2000 by and between
\nTECHNOLOGY SQUARE LLC, as Landlord, and AKAMAI TECHNOLOGIES, INC., as Tenant,
\nfor premises at Building 600, Technology Square, Cambridge, Massachusetts.<\/p>\n
Draft(s) must indicate name and issuing bank and credit number and must be
\npresented 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
You shall be entitled to assign your interest in this Irrevocable Standby
\nLetter of Credit from time to time to your lender(s) and\/or your successors in
\ninterest without our approval and without charge. In the event of an assignment,
\nwe reserve the right to require reasonable evidence of such assignment as a
\ncondition to any draw hereunder.<\/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
-75-
\n 84<\/p>\n
This Letter of Credit shall expire at our office on ________________, 2001
\n(the “Stated Expiration Date”). It is a condition of this Letter of Credit that
\nthe Stated Expiration Date shall be deemed automatically extended without
\namendment for successive one (1) year period s from such Stated Expiration Date,
\nunless at least forty-five (45) days prior to such Stated Expiration Date )or
\nany anniversary thereof) we shall notify you and the Accountee\/Applicant in
\nwriting by registered mail (return receipt) that we elect not to consider this
\nLetter of Credit extended for any such additional one (1) year period.<\/p>\n
-76-
\n 85<\/p>\n
EXHIBIT 6<\/p>\n
BASE BUILDING SPECIFICATIONS<\/p>\n
-77-
\n 86<\/p>\n
EXHIBIT 7<\/p>\n
EXTERIOR SIGNAGE<\/p>\n
Specifications set forth in report by Sasaki Associates dated August 3, 2000
\ntitled “Technology Square, Cambridge, MA, Site Signage Program, 100% CD’s”<\/p>\n
See also 2 sheets attached plans.<\/p>\n
-78-
\n 87<\/p>\n
EXHIBIT 8<\/p>\n
TENANT’S REMOVABLE PROPERTY<\/p>\n
1. Antennae
\n2. Satellite Dishes
\n3. Network Operations Center
\n4. Computer Equipment
\n5. Telephone Switch and Equipment
\n6. Signage (Interior and Exterior)
\n7. Kitchen Equipment (Only if not built in)
\n8. Security System (Only if installed by Tenant)
\n9. Generators<\/p>\n
-79-
\n 88<\/p>\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. LETTERS OF CREDIT<\/p>\n
A. DELIVERY OF LETTERS OF CREDIT. Tenant shall deliver to Landlord, on
\nthe date that Tenant executes and delivers the Lease to Landlord, an Irrevocable
\nStandby Letter of Credit (“Initial Letter of Credit”) which shall be (1) in the
\nform attached hereto as Exhibit 5, (2) issued by a bank reasonably acceptable to
\nLandlord upon which presentment may be made in Boston, Massachusetts, (3) in the
\nLetter of Credit Amount, as hereinafter defined, and (4) for a term of one (1)
\nyear, subject to extension in accordance with the terms of the Letter of Credit.
\nThe Letter of Credit Amount shall initially be $5,114,070.00. In addition,
\nTenant shall, on the Term Commencement Date, deliver to Landlord either: (i) an
\namendment to the Initial Letter of Credit, in form reasonably acceptable to
\nLandlord, increasing the Letter of Credit Amount from $5,114,070.00 to
\n$10,228,140.00 (“Letter of Credit Amendment”), or (ii) a second Letter of Credit
\nconforming to the requirements of this Subparagraph A (“Second Letter of
\nCredit”), in the amount of $5,114,070.00. Tenant’s failure to deliver either the
\nLetter of Credit Amendment or the Second Letter of Credit shall be deemed to be
\na default by Tenant in its obligations under the Lease with the same notice and
\ncure period as would be applicable as if such failure were a failure to pay
\nYearly Rent when due under the Lease. If Tenant elects to provide a Second
\nLetter of Credit in lieu of a Letter of Credit Amendment, then the Initial
\nLetter of Credit and the Second Letter of Credit shall be collectively referred
\nto herein as the “Letter of Credit” and the Letter of Credit Amount shall be
\ndefined as the sum of the amounts of Initial Letter of Credit and the Second
\nLetter of Credit. The Letter of Credit shall be subject to reduction as set
\nforth below. Tenant shall, on or before the date thirty (30) days prior to the
\nexpiration of the term of the Letter of Credit, deliver to Landlord a new Letter
\nof Credit satisfying the foregoing conditions (“Substitute Letter of Credit”) in
\nlieu of the Letter of Credit then being held by Landlord. Such Letter of Credit
\nshall be automatically renewable in accordance with the second to last
\ngrammatical paragraph of Exhibit 5; provided that, in such event, Tenant shall
\nbe required to deliver a Substitute Letter of Credit satisfying the conditions
\nhereof, on or before the date thirty (30) days prior to the expiration of the
\nterm of such Letter of Credit, if the issuer of such Letter of Credit gives
\nnotice of its election not to renew such Letter of Credit for any additional
\nperiod pursuant thereto. Upon written request of Tenant, Landlord shall deliver
\nto the issuing bank an instruction authorizing the issuing bank to reduce the
\nLetter of Credit Amount in accordance with the schedule set forth herein.<\/p>\n
B. RENT RESTRUCTURING EVENT. A “Rent Restructuring Event” shall be
\ndefined as :<\/p>\n
1. Any monetary default or material non-monetary default by Tenant in its
\n obligations under the Lease which is not cured after the giving of any
\n applicable notice and the expiration of any applicable grace periods
\n (“Event of Default”); or<\/p>\n
2. If, at any time, both of the following conditions occur: (i) the price
\n per share for Tenant’s common stock as traded on a nationally-recognized
\n exchange and calculated on the basis of a thirty (30) day trailing average
\n and adjusted for any stock splits, reverse<\/p>\n
-80-
\n 89<\/p>\n
stock splits or mergers from and after the Execution Date, is less than
\n $20.00 (a “Low Stock Price Event”), and (ii) Tenant does not, within ten
\n (10) days after notice from Landlord that Landlord claims that such Low
\n Stock Price Event constitutes a Rent Restructuring Event, provide Landlord
\n with a certification from Tenant’s Chief Financial Officer, or from the
\n independent certified public accountant that prepared Tenant’s most recent
\n financial statement in accordance with Subparagraph J hereof, or from
\n another independent certified public accountant reasonably acceptable to
\n Landlord, that, as of the date of Landlord’s notice, the aggregate amount
\n of cash, cash equivalents, and short term investments held by Tenant and
\n which is free and clear of any liens or encumbrances is equal to or greater
\n than $50,000,000.00.<\/p>\n
C. EFFECT OF RENT RESTRUCTURING EVENT. If any Rent Restructuring Event
\noccurs, then:<\/p>\n
1. If the Rent Restructuring Event is an Event of Default, Landlord may,
\n at its election, (a) exercise its rights under Paragraph 1.K of this Rider
\n to draw down the Default Draw Amount, and\/or in addition thereto, (b)
\n Landlord may, in its sole discretion, draw (i) the balance of the Letter of
\n Credit or (ii) fifty percent (50%) of the balance of the Letter of Credit
\n and apply such amount as a payment of Yearly Rent under the Lease; or<\/p>\n
2. If the Rent Restructuring Event is not an Event of Default, Landlord
\n may, at its election and in its sole discretion, draw (i) the entire Letter
\n of Credit or (ii) fifty percent (50%) of the Letter of Credit, and apply
\n such amount as a payment of Yearly Rent under the Lease; and<\/p>\n
3. Upon the application of any payment pursuant to Clauses 1 or 2 above
\n (each of which is referred to herein as a “Restructuring Rent Payment”),
\n then the amount of monthly payments of Yearly Rent payable by Tenant
\n thereafter under the Lease shall be reduced by an amount equal to the
\n Monthly Rent Reduction Amount, as hereinafter defined; and<\/p>\n
4. Except as set forth in Clause 6 of this Paragraph C, in no event shall
\n Landlord draw down the Letter of Credit (either in whole or in part) and
\n apply the proceeds as a Restructuring Rent Payment more than once during
\n the term hereof. Landlord’s election to draw down the Letter of Credit
\n (either in whole or in part) and apply the proceeds as a Restructuring Rent
\n Payment must be made within ninety (90) days following the Rent
\n Restructuring Event in question (or, in the case of a Rent Restructuring
\n Event that continues over a period of time, within ninety (90) days
\n following the last day thereof); and<\/p>\n
5. Landlord’s right to draw down the Letter of Credit, either in whole or
\n in part, and apply the proceeds as a Restructuring Rent Payment, shall
\n expire upon the occurrence of both of the following events:<\/p>\n
(a) At least two (2) years shall have passed since Tenant has
\n provided Landlord with the Initial Letter of Credit, and<\/p>\n
-81-
\n 90<\/p>\n
(b) Tenant’s Cash Flow (as defined in Subparagraph H below),
\n aggregated over four (4) consecutive fiscal quarters (beginning not
\n sooner than the quarter containing the first anniversary of the date
\n Tenant provides Landlord with the Initial Letter of Credit), is
\n positive; and<\/p>\n
6. If Landlord exercises its right to draw down the Letter of Credit,
\n either in whole or in part, and apply the proceeds as a Restructuring Rent
\n Payment before the Term Commencement Date, when the Letter of Credit Amount
\n is only $5,114,070.00, then when the Letter of Credit Amount is increased
\n to $10,228,140.00 after the Term Commencement Date, Landlord shall draw
\n down the same percentage of the increased Letter of Credit Amount and apply
\n such proceeds as a Restructuring Rent Payment (e.g., if Landlord drew down
\n the fifty (50%) of the Initial Letter of Credit, then Landlord shall draw
\n down the fifty (50%) percent of Second Letter of Credit, or of the
\n increased amount in the Initial Letter of Credit, as affected by the Letter
\n of Credit Amendment, as the case may be); and<\/p>\n
7. Landlord shall have no obligation to draw down the Letter of Credit if
\n a Rent Restructuring Event occurs; and<\/p>\n
8. If a Rent Restructuring Event occurs but Landlord does not exercise
\n its right to draw upon the Letter of Credit based upon such Rent
\n Restructuring Event, Landlord shall, if the same or a different Rent
\n Restructuring Event occurs, have the right to draw upon the Letter of
\n Credit to make a Restructuring Rent Payment as if the first such Rent
\n Restructuring Event had not previously occurred; and<\/p>\n
9. If a Rent Restructuring Event occurs and Landlord elects to draw upon
\n the Letter of Credit to make a Rent Restructuring Payment, then (except as
\n provided in Clause 6 of this Subparagraph C) Landlord shall have no further
\n right to draw upon the Letter of Credit to make a subsequent Rent
\n Restructuring Payment; provided however, that the provisions of this Clause
\n 9 shall not affect Landlord from drawing upon the Letter of Credit based
\n upon a subsequent Event of Default for the purposes of paying a Default
\n Draw Amount, as hereinafter defined, or from drawing upon the Letter of
\n Credit pursuant to Subparagraph L of this Paragraph 1, if Tenant fails
\n timely to deliver a Substitute Letter of Credit.<\/p>\n
D. MONTHLY RENT REDUCTION PAYMENT. The “Monthly Rent Reduction Payment”
\nshall be equal to the amount of the monthly payment of principal and interest
\nwhich would be necessary to fully pay a loan, in the amount of the Restructuring
\nRent Payment with interest at the rate of the rate per annum announced by Fleet
\nBank, N.A., or its successor, from time to time as its “prime” rate, plus
\none-quarter percent (1\/4%), which is repaid on a direct reduction basis in equal
\nmonthly payments of principal and interest over a term commencing with the
\napplication of the Restructuring Rent Payment and ending as of the expiration of
\nthe then-current term of the Lease.<\/p>\n
E. REDUCTION DATE. “Reduction Date” shall be defined as the second
\nanniversary of the Full Rent Commencement Date, and each anniversary of the Full
\nRent Commencement Date which occurs thereafter during the term of the Lease.<\/p>\n
-82-
\n 91<\/p>\n
F. REDUCTION CONDITIONS. Tenant shall be deemed to have satisfied the
\n“Reduction Conditions” with respect to any Reduction Date, if, as of such
\nReduction Date, all of the following are satisfied:<\/p>\n
1. Tenant is not in monetary default, or in material non-monetary
\n default, in either case beyond any applicable notice and cure periods, of
\n any of its obligations under the Lease as of such Reduction Date;<\/p>\n
2. The Lease is in full force and effect; and<\/p>\n
3. Tenant has not been in either monetary default, or in material
\n non-monetary default, in either case beyond any applicable notice and cure
\n periods, on more than one occasion during the immediately preceding twelve
\n (12) months of the term of the Lease.<\/p>\n
G. REDUCTION AMOUNT. The “Reduction Amount” with respect to any Reduction
\nDate shall be based upon Tenant’s Cash Flow, as hereinafter defined, during
\nTenant’s last full twelve month fiscal year immediately preceding the Reduction
\nDate in question, as follows. If Tenant’s Cash Flow for the immediately
\npreceding fiscal year is:<\/p>\n
1. Not positive, then the Reduction Amount shall be zero;<\/p>\n
2. Positive, but less than or equal to $5,000,000.00, then the Reduction
\n Amount shall be $1,000,000.00; or<\/p>\n
3. More than $5,000,000.00, but less than or equal to $10,000,000.00,
\n then the Reduction Amount shall be $1,250,000.00; or<\/p>\n
4. More than $10,000,000.00, but less than or equal to $15,000,000.00,
\n then the Reduction Amount shall be $1,500,000.00; or<\/p>\n
5. More than $15,000,000.00, but less than or equal to $20,000,000.00,
\n then the Reduction Amount shall be $1,750,000.00; or<\/p>\n
6. Greater than $20,000,000.00, then the Reduction Amount shall be
\n $2,000,000.00.<\/p>\n
In no event, however, shall the Letter of Credit Amount ever be reduced below
\n$3,409,380.00.<\/p>\n
H. DEFINITION OF CASH FLOW. Tenant’s Cash Flow for any period shall mean
\nthe sum of (i) Tenant’s net income attributable to common stock holders, (ii)
\ninterest on convertible debt that is accrued but not yet paid or payable, (iii)
\ndepreciation and (iv) amortization, all as reflected in the audited financial
\nstatements for period in question. Stock compensation amortization may be added
\nas part of the definition of Cash Flow, provided that said adjustment is as
\nreported in the audited financial statements of Tenant for the relevant
\nreporting period.<\/p>\n
I. EFFECT OF SATISFACTION OF RENT REDUCTION CONDITIONS. If, on any
\nReduction Date, Tenant satisfies all of the Reduction Conditions, then the
\nLetter of Credit Amount shall be reduced by the applicable Reduction Amount, if
\nany. Such reduction in the Letter of Credit Amount may be effected by an
\namendment, in form reasonably acceptable to Landlord, to the<\/p>\n
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\n 92<\/p>\n
existing Letter(s) of Credit then being held by Landlord, or by Tenant’s
\ndelivery to Landlord of a substitute Letter of Credit satisfying all of the
\nrequirements of the Letter of Credit to be provided to Tenant except that the
\nLetter of Credit Amount for such substitute Letter of Credit shall be in the
\nappropriately reduced amount. In the latter event, Landlord shall exchange the
\nLetter(s) of Credit then being held by Landlord for such substitute Letter of
\nCredit.<\/p>\n
J. TENANT’S FINANCIAL STATEMENTS. Tenant shall deliver to Landlord
\nfinancial statements as and when made publicly available, if Tenant’s stock is
\nthen publicly traded. If Tenant’s stock is not then publicly traded, Tenant
\nshall deliver to Landlord (i) within ninety (90) days following the end of its
\nfiscal year, copies of Tenant’s annual financial statements, prepared by an
\nindependent certified public accounting firm reasonably acceptable to Landlord
\nand in form reasonably acceptable to Landlord, and (ii) within forty-five (45)
\ndays following the end of each of its fiscal quarters, copies of Tenant’s
\nquarterly financial statements certified by Tenant’s chief financial officer and
\nin form reasonably acceptable to Landlord. All such financial statements shall
\nbe prepared in accordance with generally accepted accounting principles,
\nconsistently applied.<\/p>\n
K. EFFECT OF TENANT DEFAULT. In the event that Tenant is in default of
\nits obligations under the Lease, beyond the expiration of applicable notice and
\ngrace periods, then the Landlord shall have the right, at any time after such
\nevent, without giving any further notice to Tenant, to draw down from said
\nLetter of Credit (Substitute Letter of Credit or Additional Letter of Credit, as
\ndefined below, as the case may be) (a) the amount necessary to cure such default
\nor (b) if such default cannot reasonably be cured by the expenditure of money,
\nto exercise all rights and remedies Landlord may have on account of such
\ndefault, the amount which, in Landlord’s opinion, is necessary to satisfy
\nTenant’s liability on account thereof (“Default Draw Amount”). The foregoing
\nshall be in addition to Landlord’s other rights to draw down the Letter of
\nCredit (Substitute Letter of Credit or Additional Letter of Credit, as the case
\nmay be) pursuant to this Paragraph 1. In the event of any such draw by the
\nLandlord, Tenant shall, within fifteen (15) business days of written demand
\ntherefor, deliver to Landlord an additional Letter of Credit satisfying the
\nforegoing conditions (“Additional Letter of Credit”), except that the amount of
\nsuch Additional Letter of Credit shall be the Default Draw Amount.
\nNotwithstanding anything to the contrary herein contained, if Landlord draws
\nupon the Letter of Credit to make a Rent Restructuring Payment, in no event
\nshall Tenant have any obligation to provide to Landlord an Additional Letter of
\nCredit in the amount of such Rent Restructuring Payment. In addition, in the
\nevent of a termination based upon the default of Tenant under the Lease, or a
\nrejection of the Lease pursuant to the provisions of the Federal Bankruptcy
\nCode, Landlord shall have the right to draw upon the Letter of Credit (from time
\nto time, if necessary) to cover the full amount of damages and other amounts due
\nfrom Tenant to Landlord under the Lease. Any amounts so drawn shall, at
\nLandlord’s election, be applied first to any unpaid rent and other charges which
\nwere due prior to the filing of the petition for protection under the Federal
\nBankruptcy Code.<\/p>\n
L. EFFECT OF FAILURE TO DELIVER SUBSTITUTE LETTER OF CREDIT. In the event
\nthat Tenant fails timely to deliver to Landlord a Substitute Letter of Credit,
\nthen the Landlord shall have the right, at any time after such event, without
\ngiving any further notice to Tenant and without limiting its other remedies on
\naccount thereof, to draw down the Letter of Credit (or Substitute Letter of
\nCredit and\/or Additional Letter(s) of Credit) and to hold the proceeds thereof
\n(“Cash Proceeds”) in a segregated bank account in the name of the Landlord in
\naccordance with the provisions of this Paragraph 1.<\/p>\n
-84-
\n 93<\/p>\n
M. RETURN OF LETTER OF CREDIT AT END OF TERM. To the extent that Landlord
\nhas not previously drawn upon any Letter of Credit, Substitute Letter of Credit,
\nAdditional Letter of Credit or Cash Proceeds (collectively “L\/C Equivalent”)
\nheld by the Landlord, and to the extent that Tenant is not otherwise in default
\nof its obligations under the Lease as of the termination date of the Lease,
\nLandlord shall return such L\/C Equivalent to Tenant on the termination of the
\nterm of the Lease.<\/p>\n
N. LETTER OF CREDIT NOT A MEASURE OF LIQUIDATED DAMAGES. In no event
\nshall the proceeds of any Letter of Credit be considered as a measure of
\nliquidated damages.<\/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, (i) that Tenant is not in
\ndefault of its covenants and obligations under the Lease, and (ii) that Akamai
\nTechnologies, Inc., itself, or an Assignee or Affiliated Entity (as those terms
\nare defined in Article 16) collectively are occupying at least seventy percent
\n(70%) of the Premises then demised to Tenant, both as of the time of option
\nexercise and as of the commencement of the hereinafter described additional
\nterm, Tenant shall have the option to extend the term of this Lease for two (2)
\nadditional five (5) year terms, each such additional term commencing as of the
\nexpiration of the initial term of the Lease or the previous extension term, as
\nthe case may be. Tenant may exercise such option to extend by giving Landlord
\nwritten notice on or before the date fifteen (15) months prior to the expiration
\ndate of the initial term of the Lease or the previous extension term, as the
\ncase may be. Upon the timely giving of such notice, the term of this Lease shall
\nbe deemed extended upon all of the terms and conditions of this Lease, except
\nthat Landlord shall have no obligation to construct or renovate the Premises and
\nthat the Yearly Rent, Operating Costs in the Base Year, and Tax Base during such
\nadditional term shall be as hereinafter set forth. If Tenant fails to give
\ntimely notice, as aforesaid, Tenant shall have no further right to extend the
\nterm of this Lease, time being of the essence of this Paragraph 2.<\/p>\n
B. YEARLY RENT<\/p>\n
The Yearly Rent during the additional term(s) 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 in question, of the Premises then demised to
\nTenant, provided however, that in no event shall the sum of Yearly Rent,
\nOperating Expense Excess and Tax Excess payable by Tenant for any twelve-(12)-
\nmonth period during an additional term be less than the sum of Yearly Rent,
\nOperating Expense 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 eighteen
\n(18) months prior to the expiration date of the initial term of the Lease or the
\nprevious extension term, as the case may be, to request in writing that Landlord
\nadvise Tenant of Landlord’s designation of the Fair Market Rental Value
\napplicable during the additional term. Landlord shall, within thirty (30) days
\nafter receipt of Tenant’s request, advise Tenant in writing of such designation
\nof 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
-85-
\n 94<\/p>\n
If Tenant has exercised its right to extend the term of the Lease in
\nrespect of an 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 the later of (i) twelve (12) months after Landlord receives such
\ntermination notice from Tenant, or (ii) the date that this Lease would have
\nexpired had Tenant not exercised the extension option in question. If Tenant
\ntimely exercises such termination right, then: (i) the Yearly Rent payable by
\nTenant for the period commencing as of the day after the expiration of the then
\ncurrent term of the Lease through the effective termination date shall be based
\nupon the Fair Market Rental Value, as determined by the arbitrators or as agreed
\nto by the parties, as the case may be, and (ii) Tenant shall be required to
\nreimburse Landlord, within ten (10) days of billing therefor, for any and all
\nreasonable out-of-pocket expenses incurred by Landlord in connection with the
\narbitration proceedings; and (iii) Landlord shall have the right, by notice
\n(“Landlord’s Extension Notice”) given to Tenant within thirty (30) days after
\nthe receipt of Tenant’s termination notice, to extend the Term of the Lease for
\na period ending on the date eighteen (18) months after the expiration of the
\nTerm, prior to any extension pursuant to Paragraph C above (“Short Extended
\nTerm”). If Landlord timely gives Landlord’s Extension Notice, then the Term of
\nthe Lease shall be automatically extended for the Short Extended Term and the
\nYearly Rent during the Short Extended Term shall be based upon the Fair Market
\nRental Value, as determined by the arbitrators or as agreed to by the parties,
\nas the case may be.<\/p>\n
D. Tenant shall have no further option to extend the term of the Lease
\nother than the two (2) additional five (5) year terms herein provided.<\/p>\n
E. Notwithstanding the fact that upon Tenant’s exercise of the herein
\noption(s) to extend the term of the Lease such extension shall be
\nself-executing, as aforesaid, the parties shall promptly execute a lease
\namendment reflecting such additional term after Tenant exercises the herein
\noption, except that the Yearly Rent payable in respect of such additional term,
\nthe Operating Costs in the Base Year during such additional term, and the Tax
\nBase during such additional term, may not be set forth in said amendment.
\nSubsequently, after such Yearly Rent, Operating Costs in the Base Year, and Tax
\nBase are determined, the parties shall execute a written agreement confirming
\nthe same. The execution of such lease amendment shall not be deemed to waive any
\nof the conditions to Tenant’s exercise of its rights under this Paragraph 2,
\nunless otherwise specifically 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<\/p>\n
-86-
\n 95<\/p>\n
first-class office buildings located in East Cambridge, Massachusetts. In
\ndetermining Fair Market Rental Value, the following factors, among others, shall
\nbe taken into account and given effect: size, location of Premises, lease term,
\ncondition of building, economic concessions then being granted by the landlord,
\nthe absence of certain costs to be incurred by landlord (e.g., brokerage
\ncommissions, tenant improvement costs), and services provided by the landlord.<\/p>\n
B. Notwithstanding anything to the contrary herein contained, the parties
\nhereby agree that upon the determination of any Fair Market Rental Value,
\nLandlord shall have the right, exercisable by written notice to Tenant on or
\nbefore 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 on Exhibit 1
\n from the amount stated on Exhibit 1 to an amount equal to the
\n actual amount of Operating Costs for the immediately preceding
\n Operating Year, and<\/p>\n
(2) to change the Tax Base as stated on Exhibit 1 from the amount
\n stated on Exhibit 1 to an amount equal to the actual amount of
\n Taxes for the immediately preceding fiscal\/tax year for which
\n Landlord has 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<\/p>\n
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\n 96<\/p>\n
jurisdiction of such court and further agree that any process or notice of
\nmotion 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 upon
\nsuch 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 one or more satellite dishes and\/or antennae (collectively,
\nthe “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 or
\nareas on the roof of the Building containing approximately an aggregate of 2700
\nsquare feet of rentable area in an area to be designated by Landlord, provided
\nthat if such area consists of two or more non-contiguous areas, such areas must
\nbe reasonably suitable for Tenant’s purposes of installing, maintaining and
\noperating the Antenna. Tenant shall be permitted to use the Antenna Area solely
\nfor the Antenna installed in accordance with specifications approved by Landlord
\nin advance utilizing a frequency or frequencies and transmission power
\nidentified in such approved specifications which Tenant will be installing in
\nthe Antenna Area and no other frequencies or transmission power shall be used by
\nTenant without Landlord’s prior written consent, which shall not be unreasonably
\nwithheld or delayed, except for matters of aesthetics, which shall be determined
\nin Landlord’s sole discretion. Such installation shall be designed in such
\nmanner as to be easily removable and so as not to damage the roof of the
\nBuilding. The Antenna and any replacement shall be subject to Landlord’s
\napproval, which shall not be unreasonably withheld or delayed, except for
\nmatters of aesthetics, which shall be determined in Landlord’s sole discretion.
\nTenant’s use of the Antenna Area shall be upon all of the conditions of the
\nLease, 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
-88-
\n 97<\/p>\n
D. Landlord shall provide Tenant with 24-hour access to the Antenna Area,
\nsubject to Landlord’s reasonable security procedures and restrictions based on
\nemergency conditions and to other causes beyond Landlord’s reasonable control.
\nTenant shall give Landlord reasonable advance written notice of the need for
\naccess to the Antenna Area (except that such notice may be oral in an
\nemergency), and Landlord must be present during any entry by Tenant onto the
\nAntenna Area. Each notice for access shall be in the form of a work order
\nreferencing the lease and describing, as applicable, the date access is needed,
\nthe name of the contractor or other personnel requiring access, the name of the
\nsupervisor authorizing the access\/work, the areas to which access is required,
\nthe Building common elements to be impacted (risers, electrical rooms, etc.) and
\nthe description of new equipment or other Rooftop Installations to be installed
\nand evidence of Landlord’s approval thereof. In the event of an emergency, such
\nnotice shall follow 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, other
\ntenants, licensees or occupants of the Building) shall have the right to benefit
\nfrom 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 the
\nAntenna Area or the Antenna shall be installed by Tenant, at Tenant’s expense,
\nsubject 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 Term Commencement Date in respect of the
\nAntenna Area.<\/p>\n
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\n 98<\/p>\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 Tenant,
\nto require Tenant to relocate the Antenna Area to another area (“Relocated
\nRooftop Area”) on the roof of the Building suitable for the use of Rooftop
\nInstallations. In such event, Tenant shall, at Landlord’s cost and expense, on
\nor before the thirtieth (30th) day after Landlord gives such notice, relocate
\nall of its Rooftop Installations from the Antenna Area to the Relocation Rooftop
\nArea.<\/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
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<\/p>\n
-90-
\n 99<\/p>\n
expense and subject to the provisions of this Agreement (including, without
\nlimitation, subparagraph P hereof), have access to and use (and tie into) the
\nCentral Building System for the uses permitted hereunder, and (ii) commencing
\nupon Tenant’s use of the Central Building System and continuing thereafter
\nthroughout the term, the Yearly Rent payable hereunder shall be adjusted to be
\nthat which is reasonably designated by Landlord from time to time based upon
\nLandlord’s determination of the fair market value of the access rights to the
\nCentral Building System granted 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 and
\ntakes from Landlord, an area containing approximately 730 square feet of
\nrentable area on that portion of the roof of the Building (“Generator Area”) for
\na generator for emergency use only (“Generator”) for a term commencing as of the
\ndate of installation of the Generator (“Term Commencement Date in respect of the
\nGenerator”) and terminating as of the expiration or earlier termination of the
\nterm of the Lease. Said demise of the Generator Area shall be upon all of the
\nsame terms and conditions of the Lease, except as set forth in this Paragraph 5.
\nTenant shall not install or operate the Generator until Tenant has obtained and
\nsubmitted to Landlord copies of all required governmental permits, licenses, and
\nauthorizations necessary for the installation and operation of the Generator. In
\naddition, Tenant shall comply with all reasonable construction rules and
\nregulations promulgated by Landlord in the installation, maintenance and
\noperation of the Generator. Tenant shall be permitted to use the Generator Area
\nsolely for the maintenance and operation of the Generator, and the Generator and
\nGenerator Area are solely for the benefit of Tenant. All electricity generated
\nby the Generator may only be consumed by Tenant in the Premises.<\/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
-91-
\n 100<\/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 which
\nthe Generator Area is in as of the Term Commencement Date in respect of the
\nGenerator, 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 reason, the installation or use of the Generator
\nand\/or the Installations shall result in an increase in the amount of the
\npremiums for such coverage, then Tenant shall be liable for the full amount of
\nany 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<\/p>\n
-92-
\n 101<\/p>\n
of any one occurrence and such insurance shall name Landlord as an additional
\ninsured party.<\/p>\n
L. In addition to and without limiting the indemnification provisions set
\nforth 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
-93-<\/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-41748","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\/41748","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=41748"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41748"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41748"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41748"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}