COLOCATION/INTERCONNECTION LICENSE ONE SUMMER STREET MARKLEY BOSTON, LLC, a Delaware Limited Liability Company as Licensor, and CARBONITE, INC., a Delaware Corporation as Licensee
Exhibit 10.10
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
MARKLEY BOSTON, LLC,
a Delaware Limited Liability Company
as Licensor,
and
CARBONITE, INC.,
a Delaware Corporation
as Licensee
TABLE OF CONTENTS
| Page | ||||
SECTION 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS |
1 | |||
SECTION 2 LICENSE TERM |
1 | |||
SECTION 3 FEES AND CHARGES |
1 | |||
SECTION 4 SERVICES AND HVAC |
2 | |||
SECTION 5 INSURANCE |
3 | |||
SECTION 6 NONWAIVER |
4 | |||
SECTION 7 ASSIGNMENT AND SUBLETTING |
4 | |||
SECTION 8 SURRENDER OF PREMISES |
4 | |||
SECTION 9 ESTOPPEL CERTIFICATES |
4 | |||
SECTION 10 SUBORDINATION |
4 | |||
SECTION 11 DEFAULTS; REMEDIES |
5 | |||
SECTION 12 LATE CHARGES |
5 | |||
SECTION 13 MISCELLANEOUS PROVISIONS |
5 | |||
Confidential
Treatment Requested by Carbonite, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
This Data Center/Technology License (the “License”), dated as of the date set forth in
Item 1 of the Summary of Basic License Information (the “Summary”), below, is made by and
between ▇▇▇▇▇▇▇ BOSTON, LLC, a Delaware Limited Liability Company (“Licensor”), and CARBONITE,
INC., a Delaware Corporation (“Licensee”).
SUMMARY OF BASIC LICENSE INFORMATION
| ITEM | TERMS OF LICENSE | DESCRIPTION | ||
1.
|
Date: | August 30, 2006 (the “Effective Date”) | ||
2.
|
Premises (Section 1): |
|||
| 2.1 Building: | Approximately 392,000 rentable square feet located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. | |||
| 2.2 Premises: | Approximately 323 rentable, caged square feet located on the 4th floor of the Building, as more particularly shown on Exhibit A attached to the License. | |||
3.
|
License Term (Section 2): |
|||
| 3.1 Length of Term: | Two (2) years and no (0) months | |||
| 3.2 License Commencement Date: | Upon completion of Landlord’s Work | |||
| 3.3 License Expiration Date: | The date immediately preceding the Second (2nd) anniversary of the License Commencement Date. | |||
4.
|
Summery of Fees (Section 3): |
|||
| 4.1 Cage Fee | $[***] monthly with [***]% annual escalations on the anniversary of the License Commencement Date. The first fee payment will be prorated by the remaining days in the month in which the License commences and is due upon execution of this License Agreement. | |||
| 4.2 Cross-Connection Fees | $[***] monthly for Fiber cross-connections (with one-time $[***] cabling charge per cross-connection), $[***] monthly for three (3) coax cross-connections (with a one-time $[***] cabling charge), $[***] monthly for three (3) copper or Ethernet cross connections (with a one-time $[***] cabling fee). | |||
| 4.3 Non-Recurring Set-Up Fees | $[***] due upon execution of this License Agreement. | |||
| 4.4 Fee Commencement Date: | Same as the License Commencement Date Referenced in Summary Section 3.2 above. | |||
5.
|
Security Deposit | $[***], due upon execution of this License. | ||
6.
|
Address of Licensee (Section 13.9): |
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Carbonite, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇. Marblehead, MA 01945 Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: |
||
| With a copy to: |
[***]
|
Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. |
| ITEM | TERMS OF LICENSE | DESCRIPTION | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Carbonite, Inc. | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. | ||||
| Boston, MA 02116 | ||||
7.
|
Address of Licensor | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| (Section 13.9): | Manager | |||
| Markley Boston, LLC | ||||
| ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Boston, Massachusetts 02111 | ||||
| with a copy to: | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| General Counsel | ||||
| Markley Group | ||||
| ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor | ||||
| Los Angeles, CA 90013 | ||||
| Phone: ▇▇▇-▇▇▇-▇▇▇▇ | ||||
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ | ||||
8.
|
Broker(s) | N/A |
Confidential
Treatment Requested by Carbonite, Inc.
SECTION 1
PREMISES,
BUILDING, PROJECT, AND COMMON AREAS
1.1. Premises, Building and Common Areas
1.1.1
The Premises. Licensor hereby licenses to Licensee and Licensee hereby
licenses from Licensor the space as set forth in Item 2.2 of
the Summary of Basic License Information (“Summary”) and outlined in
Exhibit A attached hereto (the “Premises”). The parties hereto agree that the license of the Premises is upon and subject to
the terms, covenants and conditions herein set forth. The parties hereto hereby acknowledge
that the purpose of Exhibit A is to show the approximate location of the Premises in the
“Building” as that term is defined in Item 2.1 of the Summary, and such Exhibit is not
meant to constitute an agreement, representation or warranty as to the construction of the Premises.
The taking of possession of the Premises by Licensee shall conclusively establish that the
Premises and the Building were at such time in good and sanitary order, condition and repair.
1.1.2 Access. Licensor agrees that, subject to Licensor’s reasonable rules and
regulations, and access control systems and procedures, and the terms of this License, Licensee
shall have access to the Premises, and Common Areas on the 4th floor, 24 hours a day, 365 days a
year during the License Term.
1.1.3 Landlord’s Work. Landlord will construct a cage of thirty-four feet
(34’) by nine and one-half feet (9 ½’) around the Premises. Landlord shall equip the premises
with ladder racks and provide nine (9) thirty (30) amp circuits at one-hundred-twenty (120 volts)
with L5-30 receptacles. Licensee has declined power set up in a 2N configuration and acknowledges
that this will result in an outage when Licensor performs maintenance on the electrical system.
Licensor will give Licensee advanced notice of such maintenance; however, Licensee agrees that
Licensor shall have no liability with regard to such planned outages.
SECTION 2
LICENSE TERM
2.1.
License Term. The terms and provisions of this License shall be effective as of the date
of this License. The term of this License (the “License Term”) shall be as set forth in Item
3.1 of the Summary, shall commence on the date set forth in
Item 3.2 of the Summary
(the “License Commencement Date”), and shall terminate on the date set forth in Item 3.3 of
the Summary (the “License Expiration Date”) unless this License is sooner terminated as hereinafter
provided. For purposes of this License, the term “License Year” shall mean each consecutive twelve
(12) month period during the License Term; provided, however, that the last License Year shall end
on the License Expiration Date. At any time during the License Term, Licensor may deliver to
Licensee a notice in the form as set forth in Exhibit B, attached hereto, as a confirmation only of
the information set forth therein, which Licensee shall execute and return to Licensor within five
(5) business days after receipt thereof. Licensee acknowledges that the rights granted to Licensee
hereunder do not constitute a lease or casement of any portion of the Premises or Building, nor do
they create a partnership or joint venture between Licensor and Licensee. Licensor hereby reserves
the right to grant, renew or extend similar licenses to others. Licensee shall have no right to
hold over after the expiration of the Term of this License without Licensor’s consent. If Licensee
holds over after the termination of this License such holdover shall be deemed to be upon all of
the terms of this License except that the amount of the License Fee shall be increased to an amount
equal to two hundred percent (200%) of the License Fees in effect
immediately prior to the
termination. If Licensee holds over for more than thirty (30) days, Licensee shall also pay
to Licensor all damages actually sustained by Licensor resulting from retention of possession by
Licensee in excess of the double License Fee set forth in the preceding sentence.
SECTION 3
FEES AND CHARGES
Licensee shall pay, without prior notice or demand, to Licensor or Licensor’s agent at the
management office of the Project, or, at Licensor’s option, at such other place as Licensor may from
time to time designate in writing, by a check for currency which, at the time of payment, is legal
tender for private or public debts in the United States of America, base fees for the Premises
(“Base Fees”), payable in monthly installments as set forth in Item 4 of the
Summary in advance on or before the first day of each and every calendar month during the License
Term, without any setoff or deduction whatsoever. The Fees for the first full
month of the License Term, along with the entire Set-Up Fees and Security Deposit, shall
be paid at the time of Licensee’s execution of this License.
3.1.
Cage Fee. Cage Fees are subject to annual [***]% escalations on each anniversary of the
License Commencement Date.
| Monthly Fee | Set-Up Fee | |||
| 323 sq. ft. cage | $[***] | $[***] |
[***]
|
Information has been omitted and filed with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. |
Confidential
Treatment Requested by Carbonite, Inc.
3.2
Cross-Connection Fees. All Cross-Connection Fees are subject
to annual 3% escalations on
each anniversary of the License Commencement Date.
| Connection Type | Monthly Fee (per connection) | Set-Up Fee | ||
| Fiber Cross Connects | $[***] per cross connect | $[***] Cabling Fee per cross-connect | ||
| Coax Cross Connects | $[***] per 3 cross connects (must be purchased in sets of 3) | $[***] Cabling Fee per set of 3 cross-connects | ||
| Copper and Ethernet Cross Connects | $[***] per 3 cross connects (must be purchased in sets of 3) | $[***] Cabling Fee per set of 3 cross-connects | ||
| Disconnects Fiber/Coax | One Time NRC |
3.3 Fiber and Conduit Fees. Should Licensee require that conduit and fiber be run
from the interconnection facility through any of the fiber entries in the building, the following
fiber and conduit fees shall apply.
| Terminations Optical | Monthly Fee | Set-Up Fee | ||||||
12 Fibers |
$ | [***] | $ | [***] | ||||
24 Fibers |
$ | [***] | $ | [***] | ||||
48 Fibers |
$ | [***] | $ | [***] | ||||
72 Fibers |
$ | [***] | $ | [***] | ||||
96 Fibers |
$ | [***] | $ | [***] | ||||
Electrical |
||||||||
DS 3 (12 Connector Cable) |
$ | [***] | $ | [***] | ||||
DS 1 (28 Position Cable) |
$ | [***] | $ | [***] | ||||
3.4. Additional Technician Time.
Technician time required to set up services is included in the “Set-Up Fees” listed
above. Any additional non-emergency technician time required by Licensee will be billed at a rate
of $150 per hour and shall be applied to the monthly invoice for the
month following the ▇▇▇▇ upon
which the time and services were provided. All non-emergency work should be requested in writing, 2
business days in advance. All technician time not scheduled 2 business days in advance will
be charged the emergency rates of $175 per hour from 8:00 am to 5:00 pm Monday through Friday
and $225 per hour during all other times.
SECTION 4
SERVICES AND HVAC
4.1 Standard Licensee Services. Licensor and Licensee shall provide the following services to the Premises.
4.1.1 Licensor shall connect, at Licensee’s expense, Licensee’s equipment in the Licensed
Facilities to termination points on the Cable Distribution System within the Building’s Meet Me
Room (the “CDS”), designated by Licensor. Licensor shall provide the services as specified in
Exhibit C. Service Levels, provided that in the event of any conflict between this
Service Levels as specified in Exhibit C, the provisions of this License shall prevail.
Licensee shall comply with the Rules and Regulations as specified in Exhibit D.
Licensor will monitor security, environment, power and other conditions in the Licensed
Facilities.
4.1.2 Licensee may, by written notice to Licensor, request that an interconnection be made
between Licensee and any other licensee or tenant of the Building within the interconnection
facilities located in the Building. Licensee’s notice shall
describe in adequate detail the type of
connection to be made and shall be accompanied by a written agreement with the other licensee or
tenant permitting such interconnection and authorizing Licensor to make such interconnection.
Subject to the terms of the Interconnection Facility Service Levels, a copy of which is attached
hereto as Exhibit C, within three (3) business days after receiving such request, Licensor shall
cause the desired interconnection to be established. By making the
request, Licensee agrees to pay
the fees as set forth in Section 3 above for each such interconnection.
4.1.3
If Licensee has requested, and Licensor has agreed to provide, any other services
(“Additional Services”) they are described in Exhibit E. Licensor and Licensee may amend
Exhibit E in writing from time to time.
4.1.4 Amendments to Services Provided. Licensee may request changes to the services to
be provided pursuant to Section 3 and/or Section 4.1.3 above by submitting a written request to
Licensor. All change requests should specify the date upon which the changes should be made. The
monthly charge for all services shall be prorated for the number of days remaining
in the month at the time that the change was made and the prorated amount shall be applied to the
invoice for the following month.
4.1.5
Power. Licensor shall provide to the Premises Nine (9) 30 amp circuits with
L5-30 receptacles to which Licensee shall connect its equipment. Licensee has declined power set up
in a 2N configuration and acknowledges that this will result in an outage when Licensor performs
maintenance on the electrical system. Licensor will give Licensee advanced notice of such
maintenance; however, Licensee agrees that Licensor shall have no liability with regard to such
planned outages. The power consumed by Licensee’s equipment shall be submetered and passed through
to Licensee at the building’s power rate.
4.1.6
HVAC. Heating, ventilation and air conditioning (“HVAC”) service in the Premises,
will be provided by Licensor, (collectively, “HVAC Equipment”), which shall be subject to the
direct control of Licensor.
[***]
|
Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. |
4.2. Emergency Generator. Licensor has installed for the benefit of the Licensees
of the Building an emergency generator plant (the “Building
Emergency Generators”) in the Building
which is in service as of the execution of this License. Licensee’s use of such emergency power
shall be in accordance with such rules and regulations and as may be established by Licensor from
time to time.
4.3. Interruption of Use. Licensee agrees that Licensor shall not be liable for
damages, by abatement of Fees or otherwise, for failure to furnish or delay in furnishing any
service, or for any diminution or interruption in the quality or quantity thereof, when such
failure or delay or diminution is occasioned, in whole or in part, by repairs,
replacements, or improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Building or Project after commercially
reasonable effort to do so, by any accident, riot or other dangerous conditions, emergencies, or
casualty whatsoever, by act or default of Licensee or other parties, or by any other cause beyond
Licensor’s reasonable control; and such failures or delays or diminution shall never be deemed to
constitute an eviction or disturbance of Licensee’s use and possession of the Premises or relieve
Licensee from paying Fees or performing any of its obligations under this License Furthermore,
Licensor shall not be liable under any circumstances for a loss of, or injury to, property or for
injury to, or interference with, Licensee’s business, including, without limitation, loss of
profits, however occurring, through or in connection with or
incidental to a failure to furnish any
of the services or utilities as set forth in this Section 4 or elsewhere in this License.
As a material inducement to Licensor’s entry into this License, Licensee waives and releases any
rights it may have to make repairs at Licensor’s expense under Massachusetts Law and under any
similar Laws now or hereafter in effect. In the event that Licensor is unable to provide a critical
service as required by this contract and is unable to remedy the problem within 30 days of written
notice, Licensee may terminate this agreement with 30 days written notice. Critical
services shall be any service specifically required to be provided by Licensor in this License
Agreement that when not performed significantly impacts the business of the Tenant. Such services
shall include, but not be limited to, power, environmental temperature between 64 and 78 degrees
Fahrenheit, relative humidity between 30% and 70%, a clean air environment, and access to the
Premises.
SECTION 5
INSURANCE
5.1. Indemnification and Waiver. Licensee hereby assumes all risk of damage to
property or injury to persons in, upon or about the Premises from any cause whatsoever and agrees
that Licensor, its partners, subpartners and their respective officers, agents, employees and
independent contractors (collectively, “Licensor Parties”) shall not be liable for, and are hereby
releases from any responsibility for, any damage either to person or property or resulting from the
loss of use thereof, which damage is sustained by Licensee or by other persons claiming through
Licensee. Licensee shall indemnify, defend, protect, and hold harmless the Licensor Parties from
and against any and all Claims incurred in connection with or arising from: (i) any cause in, on or
about the Premises (excepting only causes arising within the walls of the Premises or pipes under
the control of the Licensor); (ii) any acts, omissions or negligence of Licensee or of any person
claiming by, through or under Licensee, or of any of Licensee’s Customers, the contractors, agents,
employees, invitees and/or licensees of Licensee or any such person, in, on or about the Project
(including, without limitation, any Claims relating to the installation, placement, removal or
financing of any Alterations, improvements, fixtures, conduit, equipment and/or appurtenances in,
on or about the Premises and Project); and/or (iii) any breach by Licensee of the terms of this
License. Licensee’s agreement to indemnify Licensor pursuant to this Section 6.1 is not
intended and shall not relieve any insurance carrier of its obligations under policies required to
be carried by Licensee pursuant to the provisions of this License, to the extent such policies
cover the matters subject to Licensee’s indemnification obligations.
5.2. Licensee’s Compliance With Licensor’s Fire and Casualty Insurance. Licensee shall,
at Licensee’s expense, comply with all insurance company requirements pertaining to the use of the
Premises and Building. Licensee, at Licensee’s expense, shall comply with all rules, orders,
regulations or requirements of the American Insurance Association (formerly the National Board of
Fire Underwriters) and with any similar body,
5.3. Licensee’s Insurance. Licensee shall maintain the following coverages, the
aggregate insured limits of which shall be five million dollars, at all times following the ▇▇▇▇
(the “Insurance Start Date”) which is the date of Licensee’s entry into the Premises to perform any
work or commence business operations therein.
5.3.1 Commercial General Liability Insurance covering the insured against claims of bodily
injury, personal injury and properly damage (including loss of use thereof) arising out of
Licensee’s operations (and the operations of any Customers of Licensee), and contractual
liabilities (covering the performance by Licensee of its indemnity agreements).
5.3.2 Physical Damage Insurance covering all business and trade fixtures, Supplemental
Equipment shall be written on a “physical loss or damage basis” under a “special form policy”, for
the full replacement cost value (subject to reasonable deductible amounts) new without deduction
for depreciation of the covered items and in amounts that meet any co-insurance clauses of the
policies of insurance.
5.4. Subrogation. Licensor and Licensee agree to have their respective insurance
companies issuing property damage insurance with respect to the Building and Premises waive any
rights of subrogation that such companies may have against Licensor or Licensee, as the case may
be. Anything in this License to the contrary notwithstanding,
Licensor and Licensee hereby waive
and release each other of and from any and all Claims of each party for any loss or damage that may
occur to the Premises, Building or Project, and/or the personal property of each party within the
Building, but only to the extent the releasing party’s loss or damage is covered under casualty
insurance policies in effect at the time of such loss or damage or would have been covered by the
casually insurance required to be carried under this Section 5 had the releasing party
complied with its applicable insurance obligations under this Section 6. Each party agrees
to promptly give to its respective insurance company which has issued policies of insurance
covering any risk of direct physical loss, written notice of the terms of the mutual waivers
contained in this Section 5, and to have such insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of said waivers.
SECTION 6
NONWAIVER
No provision of this License shall be deemed waived by either party hereto unless expressly
waived in a writing signed thereby. The waiver by either party hereto of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach
of same or any other term, covenant or condition herein contained. The subsequent acceptance of
Fees hereunder by Licensor shall not be deemed to be a waiver of any preceding breach by Licensee
of any term, covenant or condition of this License, other than the failure of Licensee to pay the
particular Fees so accepted, regardless of Licensor’s knowledge of such preceding breach at the
time of acceptance of such Rent.
SECTION 7
ASSIGNMENT AND SUBLETTING
7.1.
Transfers. Licensee shall not, without the prior written consent of Licensor,
assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise
transfer, this License or any interest hereunder, permit any assignment, or other transfer of this
License or any interest hereunder by operation of law, sublet the Premises or any part thereof, or
enter into any license, “co-location” or concession agreements or otherwise permit the occupancy or
use of the Premises or any part thereof by any persons other than Licensee and its employees and
contractors (all of the foregoing are hereinafter sometimes referred to collectively as “Transfers”
and any person to whom any Transfer is made or sought to be made is hereinafter sometimes referred
to as a “Transferee”).
7.2. Licensor’s Consent. Licensor may withhold consent for any reason whatsoever at
Licensor’s sole discretion
SECTION 8
SURRENDER OF PREMISES
8.1. Surrender of Premises. Noact or thing done by Licensor or any agent or employee
of Licensor during the License Term shall be deemed to constitute an acceptance by Licensor of a
surrender of the Premises unless such intent is specifically acknowledged in writing by ▇▇▇▇▇▇▇▇,
8.2. Removal of Licensee Property by Licensee. Upon the expiration of the License
Term, or upon any earlier termination of this License, Licensee shall, subject to the provisions of
this Section 8, quit and surrender possession of the Premises to Licensor in as good order
and condition as when Licensee took possession and as thereafter improved by Licensor and/or
Licensee. Upon such expiration or termination, Licensee shall not remove all or any of Licensee’s
Conduit, Lines, or Connecting Equipment.
SECTION 9
ESTOPPEL CERTIFICATES
Within eight (8) days following a request in writing by Licensor, Licensee shall execute,
acknowledge and deliver to Licensor an estoppel certificate, which, as submitted by Licensor, shall
be substantially in the form of Exhibit E, attached hereto (or such other form as may be
required by any prospective ground lessor, mortgagee or purchaser of the Project, or any portion
thereof), indicating therein any exceptions thereto that may exist at that time, and shall also
contain any other information reasonably requested by Licensor or Licensor’s mortgaged or
prospective mortgagee. Any such certificate may be relied upon by any prospective ground lessor,
mortgagee or purchaser of all or any portion of the Project. Licensee shall execute and deliver
whatever other instruments may be reasonably required for such purposes. Failure of Licensee to
timely execute, acknowledge and deliver such estoppel certificate or Other instruments shall
constitute an acceptance of the Premises and an acknowledgment by Licensee that statements included
in the estoppel certificate are true and correct, without exception.
SECTION 10
SUBORDINATION
10.1. Master Lease. Licensor and Licensee acknowledge that Licensor is not currently
the owner of the Building or Project but is a ground lessee of a ground lease thereof pursuant to
that certain Master Lease (the “Master Lease”) between Licensor, as lessee, and MSP One Summer
Street LLP, (“Master Landlord”), as landlord and owner, and that Licensor’s and Licensee’s rights
and obligations under this License are subject to the terms and conditions of the Master Lease.
10.2. Subordination. Without the necessity of any additional document being executed
by Licensee for the purpose of effecting a subordination, this License shall be subject and
subordinate at all times to ground or underlying licenses and to the lien of any mortgage or deeds
of trust now or hereafter placed on, against or affecting the Building, Licensor’s interest or
estate in the Building, or any ground or underlying license; provided, however, that if the lessor,
mortgagee, trustee, or holder of any such mortgage or deed of trust elects to have Licensee’s
interest in this License be superior to any such instrument, then, by notice to Licensee, this
License shall be deemed superior, whether this License was executed
before or after said
instrument. Notwithstanding the foregoing. Licensee covenants and agrees to execute and deliver
upon demand such further instruments evidencing such subordination or superiority of this License
as may be required or requested by Licensor.
Confidential
Treatment Requested by Carbonite, Inc.
SECTION 11
DEFAULTS; REMEDIES
▇▇.▇.▇▇▇▇▇▇
of Default. The occurrence of any of the following shall constitute a
default of this License by Licensee:
11.1-1 Any failure by Licensee to pay any Fee or any other charge required to be paid under
this License, or any part thereof, when due unless such failure is cured within six (6) business
days after written notice to Licensee; or
11.1.2 Except where a specific time period is otherwise set forth for Licensee’s performance
in this License, in which event the failure to perform by Licensee within such time period shall be
a default by Licensee under this Section 11, any failure by Licensee to observe or perform
any other provision, covenant or condition of this License to be observed or performed by Licensee
where such failure continues for twenty (20) days after written notice thereof from Licensor to
Licensee; provided that if the nature of such default is such that the same cannot reasonably be
cured within a twenty (20) day period, Licensee shall not be deemed to be in default if it
diligently commences such cure within such period and thereafter diligently proceeds to rectify and
cure such default; or
The notice periods provided above in this Section 11 are in lieu of, and not in
addition to, any notice periods provided by any applicable Laws.
11.2. Remedies Upon Default Upon the occurrence of any event of
default by Licensee, Licensor shall have, in addition to any other remedies available to
Licensor at law or in equity (all of which remedies shall be distinct, separate and
cumulative), the option to pursue any one or more of the following remedies, each and all
of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
11.2.1 Terminate this License, in which event Licensee shall immediately surrender the
Premises to Licensor, and if Licensee fails to do so, Licensor may, without prejudice to any other
remedy which it may have for possession or arrearages in rent, enter
upon and take
possession of the Premises and expel or remove Licensee and any other person who may be occupying
the Premises or any part thereof, without being liable for prosecution or any claim or damages
therefore.
11.2.2 Licensor shall at all times have the rights and remedies, without prior demand or
notice except as required by applicable Laws, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this License, or restrain or enjoin a violation or
breach of any provision hereof.
11.3. Efforts to Re-License. No re-entry or repossession, repairs,
maintenance, changes, alterations and additions, re-licensing, appointment of a
receiver to protect Licensor’s interests hereunder, or any other action or omission by Licensor
shall be construed as an election by Licensor to terminate this License or Licensee’s right to
possession, or to accept a surrender of the Premises.
SECTION 12
LATE CHARGES
12.1. Late Charges. If any installment of Fees or any other sum due from Licensee
shall not be received by Licensor or Licensor’s designee within five (5) days after said amount is
due, then Licensee shall pay to Licensor a late charge equal to [***]
percent ([***]%) of the overdue
amount plus any reasonable attorneys’ fees incurred by Licensor by reason of Licensee’s failure to
pay Fees and/or other charges when due hereunder. The late charge shall be in addition to all of
Licensor’s other rights and remedies hereunder and shall not be construed as liquidated damages or
as limiting Licensor’s remedies,
12.2. Interest. In addition to the late charge described in Section
12.1 above, any Fees or other amounts owing hereunder which are not paid within ten (10) days
after the date they are due shall bear interest from the date when due until paid at a rate per
annum equal to the highest rate permitted by applicable Laws.
SECTION 13
MISCELLANEOUS PROVISIONS
13.1. Modification of License. Should any current or prospective mortgagee or ground
lessor for the Building or Project require a modification of this License, which
modification will not cause an increased cost or expense to Licensee or in any other way materially
and adversely change the rights and obligations of Licensee hereunder, then and in such event,
Licensee agrees that this License may be so modified and agrees to execute whatever documents are
reasonably required therefor and to deliver the same to Licensor within ten (10) days following a
request therefor.
13.2. Transfer of Licensor’s Interest. Licensee acknowledges that Licensor has the
right to transfer all or any portion of its interest in the Project or Building and in this
License, and Licensee agrees that in the event of any such transfer, Licensor shall automatically
be release from all liability under this License arising from and alter the effective date of the
transfer and Licensee agrees to look solely to such transferee for the performance of Licensor’s
obligations hereunder arising from and after the date of the transfer and such transferee shall be
deemed to have fully assumed and be liable for all such future obligations of Licensor under this
License, including the return of any Security Deposit, and Licensee shall attorn to such
transferee. Licensee further acknowledges that Licensor may assign its interest in this License to
a mortgage lender as additional security and agrees that such an assignment shall not release
Licensor from its obligations hereunder and that Licensee shall continue to look to Licensor for
the performance of its obligations hereunder.
[***]
|
Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions. |
13.3. Partial Invalidity. If any term, provision or condition contained in this
License shall, to any extent, be invalid or unenforceable, the remainder of this License, or the
application of such term, provision or condition shall not be affected thereby, and each and every
other term, provision and condition of this License shall be valid and enforceable to the fullest
extent possible.
13.4. Licensor Exculpation. The liability of Licensor or the Licensor Parties to
Licensee for any default by Licensor under this License or arising in connection herewith or with
Licensor’s operation, management, leasing, repair, renovation, alteration or any other matter
relating to the Project or the Premises shall be limited solely and exclusively to an amount which
is equal to interest of Licensor in the Project. Neither Licensor, nor any of the Licensor Parties
shall have any personal liability therefor, and Licensee hereby expressly waives and releases such
personal liability on behalf of itself and all persons claiming by, through or under Licensee.
13.5. Entire Agreement. It is understood and acknowledged that there are no oral
agreements between the parties hereto affecting this License and this License and the Exhibits
hereto, constitute the parties’ entire agreement with respect to the leasing of the Premises and
supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and
understandings, if any, between the parties hereto.
13.6.
Right to License. Licensor reserves the absolute right to effect such other
tenancies in the Project as Licensor in the exercise of its sole business judgment shall determine
to best promote the interests of the Building and/or Project.
13.7. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain services, labor, or materials or reasonable substitutes
therefor, governmental actions, civil commotions, fire or other casualty, and other causes beyond
the reasonable control of the party obligated to perform, except with respect to the obligations
imposed with regard to Fees and other charges to be paid by Licensee pursuant to this License and
except as to Licensee’s obligations under this License (collectively, a “Force Majeure”),
notwithstanding anything to the contrary Contained in this License, shall excuse the performance of
such party for a period equal to any such prevention, delay or Stoppage.
13.8. Waiver of Redemption by Licensee. Licensee hereby waives, for Licensee and for
all those claiming under Licensee, any and all rights now or hereafter existing to redeem
by order or judgment of any court or by any legal process or writ, Licensee’s right of occupancy of
the Premises after any termination of this License,
13.9. Notices. All notices, demands, statements, designations, approvals or other
communications (collectively, “Notices”) given or required to be given by either
party to the other hereunder or by law shall be in writing, shall be (i) sent by United States
certified or registered mail, postage prepaid, return receipt requested (“Mail”), (ii) delivered by
a nationally recognized overnight courier, or (iii) delivered personally. Any Notice shall be sent,
transmitted, or delivered, as the case may be, to Licensee at the appropriate address set forth in
Item 6 of the Summary, or to such other place as Licensee may from time to time designate
in a Notice to Licensor, or to Licensor at the at the appropriate address set forth in Item
7 of the Summary, or to such other places as Licensor may from time to time designate in a
Notice to Licensee. Any Notice will be deemed given upon the earlier of (A) three (3) days after
the date it is posted if sent by Mail, (B) the date the overnight courier delivery is made or
attempted to be made, or (C) the date personal delivery is made.
13.10. Authority. If Licensee is a corporation, trust, partnership or Limited
Liability Company, each individual executing this License on behalf of Licensee hereby represents
and warrants that Licensee is a duly formed and existing entity qualified to do business in
Massachusetts and that Licensee has full right and authority to execute and deliver this License
and that each person signing on behalf of Licensee is authorized to do so.
13.11.
Attorneys’ Fees. In the event that either Licensor or Licensee should bring suit
for the possession of the Premises, for the recovery of any sum due under this License, or because
of the breach of any provision of this License or for any other relief against the other, then all
costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing ▇▇▇▇▇ therein
shall be paid by the other party, which obligation on the part of the other party shall be
deemed to have accrued on the date of the commencement of such action and shall be enforceable
whether or not the action goes to judgment.
13.12. Governing Law; WAIVER OF TRIAL BY JURY. This License shall be construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts. IN ANY ACTION OR
PROCEEDING ARISING HEREFROM, LICENSOR AND LICENSEE HEREBY CONSENT TO (i) THE JURISDICTION OF ANY
COMPETENT COURT WITHIN THE COMMONWEALTH OF MASSACHUSETTS, (ii) SERVICE OF PROCESS BY ANY MEANS
AUTHORIZED BY MASSACHUSETTS LAWS, AND (iii) IN THE INTEREST OF SAVING TIME AND EXPENSE, TRIAL
WITHOUT A JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS LICENSE, THE RELATIONSHIP OF LICENSOR AND LICENSEE, LICENSEE’S USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY.
13.13. Counterparts. This License may be executed in counterparts with the same effect
as if both parties hereto had executed the same document. Both counterparts shall be construed
together and shall constitute a single license.
13.14. No Violation. Licensee hereby warrants and represents that neither its
execution of nor performance under this License shall cause Licensee to be in violation of any
agreement, instrument, contract, Law, rule or regulation by which Licensee is bound, and Licensee
shall protect, defend, indemnify and hold Licensor harmless from and against any and all Claims
arising from Licensee’s breach of this warranty and representation.
IN WITNESS WHEREOF, Licensor and Licensee have caused this License to be executed the day and
date first above written.
| “Licensor”: | “Licensee”: | |||||||||
| ▇▇▇▇▇▇▇ BOSTON, LLC, a Delaware Limited Liability Company |
CARBONITE, INC. a Delaware Corporation |
|||||||||
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|||||||
| Title: Manager | Title: CTO | |||||||||
EXHIBIT A
OUTLINE OF PREMISES
[TO BE PROVIDED]
EXHIBIT A
EXHIBIT B
NOTICE OF LICENSE TERM DATES
To:
|
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Carbonite, Inc. | ||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇. | ||
| Marblehead, MA 01945 | ||
| Phone: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Fax: |
Re:
Colocation/Interconnection License dated August
, 2006 between ▇▇▇▇▇▇▇ BOSTON, LLC, a Delaware Limited
Liability Company (“Licensor”), and CARBONITE, INC., a Delaware Corporation (“Licensee”)
concerning approximately 323 rentable square feet of caged space in the Neutral Colocation
Facility on the 4th floor of the building located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. |
Gentlemen:
In
accordance with the Colocation/Interconnection License (the “License”), we
wish to advise you and/or confirm as
follows:
1. The
License Term shall commence on or has commenced on the License Commencement
Date of August , 2006 for a
License Term of Two (2) years, ending on August , 2008.
2. Fees
commenced to accrue on August ,
2006, in the amount of $ per month.
3. Your payment checks should be made payable to ▇▇▇▇▇▇▇ Boston, LLC, or such other person
or entity as designated in writing by Licensor.
| “Licensor”: ▇▇▇▇▇▇▇ BOSTON, LLC, a Delaware Limited Liability Company |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Its: President | ||||
Agreed to and Accepted
as of , 20___,
as of , 20___,
“Licensee”:
CARBONITE, INC.
a Delaware corporation
a Delaware corporation
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|||
| Its: CTO |
EXHIBIT B
EXHIBIT C
INTERCONNECTION FACILITY SERVICE LEVELS
The Interconnection Facility is located on the Fourth (4th) Floor within the One
Summer Street Telecom Facility in Boston, Massachusetts. The Interconnection Facility is comprised
of two sections, the Equipment Area (comprised of two or more rooms) and the Cross Connect Area,
Equipment Area.
The equipment area includes the licensee spaces where all racks, cabinets and cages will be
located. Licensees will have access to their equipment on a 24 x 7 basis. In order to facilitate
access licensees will provide a list of authorized personnel to whom access cards will be issued.
Licensees will be required to comply with all base building rules and regulations. At least one
technician provided by the Licensor will be available from 8:00 am to 5:00 pm, Monday through
Friday, excluding holidays.
Licensees who are leasing a cabinet, half-cabinet or cage within the Equipment Area for the
purpose of providing fiber to the Interconnection Facility will be assigned a port location on a
LGX common panel rack along with a conduit route. Prior to installation, a conduit routing plan
must be submitted to building management and approved in writing. An exact location for penetration
of the Interconnection Facility will also be designated.
Upon installation of conduit into the Equipment Area of the Interconnection Facility,
Licensees will terminate all fiber into the Licensee’s assigned area. All terminations will be
scheduled in writing and the management will coordinate the installations. Terminations will be
made during normal business hours. Should Licensee require after hours installation, additional
fees laid out in this document will apply.
Cross Connect Area.
The Cross Connect Area is where all cross connects will he made. Licensee will not have access
to this portion of the Interconnection Facility Should a Licensee require an inspection of the
existing cross-connects or equipment in use, an appointment may be made for escorted access. All
requests for access must be made in writing and submitted to the Interconnection Facility manager.
Only employees designated on the list submitted by the Licensee will be permitted access. All
appointments should be scheduled during normal business hours.
Cross Connects.
In order to initiate a cross connect, a licensee will make a request in writing during normal
business hours. Licensor will provide a standard form to each licensee. The licensee initiating the
cross connect will be required to provide signatures of authorized personnel or a letter of
authorisation from both parties involved in the cross connect. Cross connect requests will be
acknowledged in writing. This document will include a completion date fur the cross-connect.
Licensee cross connects will he completed within three business days from the time of order
placement. Companies that do not have an agreement with Licensor shall not be permitted to
interconnect with licensees within the Interconnection Facility.
Licensees will be required to provide terminating information within their own equipment as
well as terminating information within the connecting companies’ equipment. All cross-connects will
be performed during normal business hours. Should a licensee require an after hours crass connect,
this work will be subject to the additional fees listed in this document. All cross-connects
outside a licensee’s equipment area must be completed by Licensor’s technician.
All cross connects will be terminated to Bell Core Standards. The connections will be tested
by the requesting company, Once connection has been accepted, it will be documented by the
Licensor’s OSS System, Current termination specifications and DB loss information are listed in the
Equipment Specifications set forth below. Additional technical requirements can he met, but must be
specified in writing. Any customized work will be billed on an hourly basis.
Technical Services.
Technical Services within the Neutral Colocation and Interconnection Facilities must be either
(1) performed by Licensor’s technicians or (2) supervised by Licensor’s technicians. The
Interconnection Facility will be staffed between the hours of 8:00 A.M. and 500 P.M. Should a
licensee require technical hands-on support. Licensor’s
technicians will be billed at it rate of
$150.00 per hour during normal business hours, If a licensee has a service request, the licensee
can contact Licensor at the Building Management Office.
The Interconnection Facility will be monitored 24 hours a day, 7 days a week. Licensees will
have the ability to customize a service level agreement that meets their requirements. Should a
licensee place an emergency service call after hours and they do not have an agreement in place, a
technician will respond within two hours. If the problem is found to be with either licensee’s
equipment, a minimum 4 hour cull out will be assessed at $225.00 per hour.
Interconnection Facility Equipment Specifications
Typical Rack or Cabinet Mount Termination Panels (Source ADC). FL2000 Series Products — system is a
flexible and modular series of fiber cross-connect panels. System will use integral FL2000
components for the correct protection, bend radius management, and slack patch cord storage
required by fiber cross-connect applications.
Normal Capacity. 96 position Height 10.5” (varying modularity and segregation may be utilized
with full line use of 24, 48 and 72 position termination and termination/splice fiber panels.
EXHIBIT C
Connector
Style. Singlemode — Ultra PC — SC.
Mounting
Style. 19” EIA spaced standard mounting for channel racks. Optional 23” left mount with
Inner-Interbay Management Panel as extension piece and cable
management system are available. 4”
projection standard with ability to flush mount in cabinets or racks.
Latch Type. K 1 lock.
Number of Cable Clamps. 1 clamp — Standard
| Typical Fiber Optic Specifications for Connectors on Jumpers (Source ADC) |
Singlemode Ultra
Polish Connectors
(UPC)
SC*
Insertion Loss
<.75 db max.
<.75 db <.75 db
Return Loss
> 45 db min.
>
45 db > 45 db
Factory
connectors/patch cords are tested to a master cable to be better than .3dB IL and 57dB
RL. Singlemode SMF-28 fiber optic cable is typical.
* The SC connector will be the standard connection we will stock. If something other than this
connector is required, Licensor’s personnel can work with the
specified requirement at the time.
EXHIBIT C
EXHIBIT D
RULES AND REGULATIONS
Licensee shall faithfully observe and comply with the following Rules and Regulations.
Licensor shall not be responsible to Licensee for the nonperformance of any of said Rules and
Regulations by or otherwise with respect to the acts or omissions of any other Licensees or
occupants of the Project. In the event of any conflict between the Rules and Regulations and the
other provisions of this License, the License shall control.
1. Licensee shall not alter any lock or install any new or additional locks, bolts or card key
access systems on any doors or windows of the Premises without obtaining Licensor’s prior written
consent. Licensee shall bear the cost of any lock changes or repairs required by Licensee. Two keys
will he furnished by Licensor for the Premises, and any additional keys required by Licensee must
be obtained by Licensee from Licensor at a reasonable cost to be established by Licensor. Upon the
termination of this License, Licensee shall restore to Licensor all keys of stores, offices, and
toilet rooms, either furnished to, or otherwise procured by, Licensee and in the event of
the loss of keys so furnished, Licensee shall pay to Licensor the cost of replacing same or of
changing the lock or locks opened by such lost key if Licensor shall deem it necessary to make such
changes.
2. All doors opening to public corridors shall be kept closed at all times except for normal
ingress and egress to the Premises.
3. Any signs, notices, logos, pictures, names or advertisements which are installed and that
have not been separately approved by Licensor may be removed without notice by Licensor at
Licensee’s expense. Licensee may not install any signs on the exterior or root of the Building or
in the Common Areas. Any signs or other items visible from the exterior of the Premises or
Building, shall be Subject to the prior approval of Licensor, in its sole discretion.
4. To maintain the first-rate quality standards within the Neutral Colocation and Cross
Connect facilities, tenants or licensees and their service providers shall not run cabling or fiber
connections outside of tenants’ or licensees’ leased cabinets or cages. Tenants and Licensees must
schedule any of their wiring requirements with the Building Operations office and use Building
technicians. A tenant or licensee may use its own internal resources to perform this work, however,
in doing so it must retain the services of a Building technician or management representative in a
supervisory capacity to ensure that the work performed meets facility’s quality standards.
5. Licensor reserves the right to close and keep locked all entrance and exit doors of the
Building during such hours as are customary for comparable buildings in the vicinity of the
Building. Licensee, its employees and agents must be sure that the doors to the Building are
securely closed and locked when leaving the Premises if it is after the normal hours of business
for the Building. Any Licensee, its employees, agents or any other
persons entering or leaving the
Building at any time when it is so locked, or any time when it is considered to be after normal
business hours for the Building, may be required to sign the Building register. Access to the
Building may be refused unless the person seeking access has proper identification or has a
previously arranged pass for access to the Building, Licensor will furnish passes to persons for
whom Licensee requests same in writing. Licensee shall be responsible for all persons for whom
Licensee requests passes and shall be liable to Licensor for all acts of such persons. Licensor and
its agents shall in no case be liable for damages for any error with regard to the admission to or
exclusion from the Building or Project of any person. In case of invasion, mob, riot, public
excitement, or other commotion, Licensor reserves the right to prevent access to the Building or
the Project during the continuance thereof by any means it deems
appropriate for the safety and
protection of life and property.
6. No furniture, freight or equipment of any kind shall be brought into the Building without
prior notice to Licensor. All moving activity into or out of the Building shall be scheduled with
Licensor and done only at such time and in such manner as Licensor designates. Licensor will not be
responsible for loss of or damage to any such property in any case. Any damage to any part of the
Building or Project or their contents, occupants or visitors by moving or maintaining any such
property shall be the sole responsibility and expense of Licensee.
7. The
toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose
other than that for which they were constructed, and no foreign substance of any kind whatsoever
shall be thrown therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Licensee who, or whose employees, agents, invitees or
licensees shall have caused same.
8. Licensee shall not overload the floor of the Premises.
9. Licensor
reserves the right to exclude or expel from the Project any person who, in the
judgment of ▇▇▇▇▇▇▇▇, is intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of these Rules and Regulations.
10. Licensee shall comply with all safety, lire protection and evacuation procedures and
regulations established by Licensor or any governmental agency.
Licensor reserves the right at any time to change or rescind any one or more of these Rules
and Regulations, or to make such other and further reasonable Rules and Regulations as in
Licensor’s judgment may from time to time be necessary for the management, safety, care and
cleanliness of the Premises, Building, Common Areas and/or the Project, and for the preservation of
good order therein, as well as for the convenience of other occupants and Licensees therein.
Licensor may waive any one or more of these Rules and Regulations for the benefit of any particular
Licensees, but no such waiver by Licensor shall be construed as a waiver of such Rules and
Regulations in favor of any other Licensee, nor prevent Licensor from thereafter enforcing any such
Rules or Regulations against any or all Licensees of the Project. Licensee shall be deemed to have
read these Rules and Regulations and to have agreed to abide by them as a condition of its
occupancy of the Premises.
EXHIBIT D
EXHIBIT E
FORM OF LICENSEE’S ESTOPPEL CERTIFICATE
The undersigned as Licensee under that certain Colocation/Interconnection License (the “License”)
made and entered into as of August
, 2006 by and between ▇▇▇▇▇▇▇ BOSTON, LLC, a Delaware Limited Liability Company
as Licensor, and the undersigned as Licensee, for certain premises located in the Interconnection Facility on
the 4th floor of the building located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Building”), certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the License and all
amendments and modifications thereto. The documents contained in Exhibit A represent the entire
agreement between the parties as to the Premises and the Building.
2. The undersigned currently occupies the Premises described in the License, the License Term
commenced on August __, 2006, and the License Term expires on August __, 2008, and the undersigned has no option to
terminate or cancel the License or to purchase all or any part of the Premises, the Building and/or the project of
which the Building is a part (the “Project”). Except as expressly set forth in the License,
Licensee has no rights to use or occupy any areas of the Building or Project other than the
Premises.
3. Base Fees became payable on August ___, 2006.
4. The License is in full force and effect and has not been modified, supplemented or amended
in any way except as provided in Exhibit A.
5. Licensee has not transferred, assigned, or sublet any portion of the Premises nor entered
into any license or concession agreements with respect thereto except as follows:
6. All monthly installments of Base Fees, all Additional Fees and all other charges have been
paid when due through . The current monthly installment of Base Fees is $
.
7. All conditions of the License to be performed by Licensor necessary to the enforceability
of the License have been satisfied and Licensor is not in default thereunder. In addition, the
undersigned has not delivered any notice to Licensor regarding a default by Licensor thereunder.
8. No license fee has been paid more than thirty-one (31) days in advance and no security has
been deposited with Licensor except as provided in the License.
9. As
of the date hereof, there are no existing defenses or offsets, to the undersigned’s
knowledge, claims or any basis for a claim that the undersigned has against Licensor.
10. If Licensee is a corporation, Limited Liability Company or partnership, each individual
executing this Estoppel Certificate on behalf of Licensee hereby represents and warrants that
Licensee is a duly formed and existing entity qualified to do business in Massachusetts and that
Licensee has full right and authority to execute and deliver this Estoppel Certificate and that
each person signing on behalf of Licensee is authorized to do so.
11. There are no actions pending against the undersigned or any guarantor of the License under
the bankruptcy or similar laws.
12. Other than in compliance with all applicable laws and incidental to the ordinary course of
the use of the Premises, the undersigned has not used or stored any hazardous materials or
substances in the Premises.
13. To the undersigned’s knowledge, all Licensee improvement work to be performed by Licensor
under the License has been completed in accordance with the License and has been accepted by the
undersigned and all reimbursements and allowances due to the undersigned under the License in
connection with any Licensee improvement work have been paid in full.
The undersigned acknowledges that this Estoppel Certificate may be delivered to Licensor or to
a prospective mortgagee, ground lessor or purchaser, and acknowledges that said prospective
mortgagee, ground lessor or purchaser will be relying upon the statements contained herein in
making the loan, entering into the ground license or acquiring the property of which the Premises
are a part (as the case may be) and that receipt by it of this certificate is a condition of making
such loan, entering into such ground license or acquiring such property (as the case may be).
EXHIBIT E
Executed at on the __ day of ___ , 20__.
| “Licensee” CARBONITE, INC. a Delaware Corporation |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | CTO | |||
EXHIBIT E