EXHIBIT 10.7
LEASE BETWEEN
BURLINGTON CROSSING OFFICE LLC
AND
iROBOT CORPORATION
FOR
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
INDEX
ARTICLE 1 - REFERENCE DATA
1.1. Subject Referred To 1
1.2. Exhibits 3
ARTICLE 2 - PREMISES AND TERM 4
2.1. Premises 4
2.2. Term 4
ARTICLE 3 - CONSTRUCTION 5
3.1. Intentionally Deleted 5
3.2. Intentionally Deleted 5
3.3. General Provisions Applicable to Construction 5
3.4. Preparation of Premises for Occupancy 5
ARTICLE 4 - RENT 5
4.1. Rent 5
4.2. Operating Cost Escalation 5
4.3. Payments 9
ARTICLE 5 - LANDLORD'S COVENANTS/REPRESENTATIONS 9
5.1. Landlord's Covenants during the Term 9
5.2. Interruptions 12
5.3. Landlord' s Representations 13
ARTICLE 6 - TENANT'S COVENANTS 13
6.1. Tenant's Covenants during the Term 13
6.2. Approval by Tenant's Board of Directors 20
ARTICLE 7 - CASUALTY AND TAKING 20
7.1. Casualty and Taking 20
7.2. Reservation of Award 21
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INDEX
(CONTINUED)
ARTICLE 8 - RIGHTS OF MORTGAGEE 21
8.1. Priority of Lease 21
8 2. Limitation on Mortgagee's Liability 22
8.3. Intentionally Deleted 22
8.4. No Prepayment or Modification, etc. 22
8.5. No Release or Termination 22
8.6. Continuing Offer 23
8.7. Mortgagee's Approval 23
8.8. Submittal of Financial Statement 23
ARTICLE 9 - DEFAULT 23
9.1. Events of Default 23
9.2. Tenant's Obligations After Termination 24
ARTICLE 10 - MISCELLANEOUS 25
10.1. Titles 25
10.2. Notice of Lease 25
10.3. Intentionally Deleted 25
10.4. Notices from One Party to the Other 25
10.5. Bind and Inure 25
10.6. No Surrender 26
10.7. No Waiver, Etc. 26
10.8. No Accord and Satisfaction 26
10.9. Cumulative Remedies 26
10.10. Partial Invalidity 27
10.11a. Landlord's Right to Cure 27
10.11b. Tenant's Right to Cure 27
10.12. Estoppel Certificate 27
10.13. Waiver of Subrogation 28
10.14. Brokerage 28
10.15. Confidentiality 28
ARTICLE 11 - SECURITY DEPOSIT 29
ii
Date of Lease Execution October 29, 2002
REFERENCE DATA
1.1. SUBJECTS REFERRED TO
Each reference in this Lease to any of the following subjects shall
incorporate the data stated for that subject in this Section 1.1
Landlord Burlington Crossing Office LLC
Managing Agent The ▇▇▇▇▇▇▇▇▇ Company
Landlord's and Managing
Agent's Address Burlington ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Landlord's Representative ▇▇▇▇ ▇ ▇▇▇▇▇▇▇, Executive Vice President
Tenant iRobot Corporation
Tenant's Address (for Notice & Billing) Twin City Office Center
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant's Representative ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Building ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
Floor First
Tenant's Space Such space shown on the plan attached
hereto as Exhibit "A" located within the
Building on the Floor
Rentable Floor Area of Tenant's Space 24,004 Square Feet
Total Rentable Floor Area of the
Building 81,685 Square Feet
Commencement Date December 1, 2002
Free Rent Period See Section 4.1
1
Term Expiration Date December 31, 2008
Term Six years, and one month
Fixed Rent Months 1-2 No rent due $0.00 monthly
Months 3-8 $9.90/RSF $19,803.30
monthly
Months 9-14 $11.90/RSF $23,803.97
monthly
Months 15-25 $17.40/RSF $34,805.80
monthly
Months 26-37 $19.40/RSF $38,806.47
monthly
Months 38-49 $20.40/RSF $40,806.80
monthly
Months 50-61 $21.40/RSF $42,807.13
monthly
Months 62-73 $22.40/RSF $44,807.47
monthly
Monthly Fixed Rent For each month during the Term, the
monthly Fixed Rent amount set forth
above
Annual Estimated Operating Costs Actuals CY 2003 (approximately $7.25/RSF
- included in the Fixed Rent)
Estimated Cost of Electrical Service To be separately submetered in
to Tenant's Space accordance with Exhibit "D"
The anticipated cost of such
electricity is 90 cents ($0.90)
per rentable square foot
First Fiscal Year for Tenant's Paying
Operating Costs Escalation Year beginning January 1, 2004
Security Deposit See Article 11
Guarantor None
Permitted Uses The development, marketing,
manufacturing, machining, sale and
delivery of robots and associated
technology and the providing of
professional services in connection
therewith
Real Estate Broker(s) CB ▇▇▇▇▇▇▇ ▇▇▇▇▇/Whittier Partners, Inc
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Partners
Public Liability Insurance - Bodily
Injury and Property Damage Each Occurrence $1,000,000
Aggregate $2,000,000
2
Special Provisions Exhibit "H" Option to Extend
Exhibit "T" Expansion Rights/ Right of First Refusal
Exhibit "K" Subordination, Non-Disturbance
and Attornment Agreement
1.2. EXHIBITS
The Exhibits listed below in this Section are incorporated in this Lease
by reference and are to be construed as part of this Lease:
EXHIBIT A Plan Showing Tenant's Space
EXHIBIT B Legal Description of Lot
EXHIBIT C Intentionally Deleted
EXHIBIT D Landlord's Services
EXHIBIT E Rules and Regulations
EXHIBIT F Intentionally Deleted
EXHIBIT G Estoppel Certificate
EXHIBIT H Option to Extend
EXHIBIT I Expansion Rights / Right of First Refusal
EXHIBIT J Intentionally Deleted
EXHIBIT K Subordination, Non-Disturbance and Attornment Agreement
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ARTICLE 2.
PREMISES AND TERM.
2.1. PREMISES.
Subject to and with the benefit of the provisions of this Lease and any
ground lease or land disposition agreement relating to that certain parcel of
land on which the Building is located known as ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as more particularly described on Exhibit "B" attached hereto and made a part
hereof (the "Lot"), Landlord hereby leases to Tenant and Tenant leases from
Landlord, Tenant's Space in the Building, excluding exterior faces of exterior
walls, the common facilities area and building service fixtures and equipment
serving exclusively or in common other parts of the Building Tenant's Space,
with such exclusions, is hereinafter referred to as the "Premises".
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto, subject to reasonable rules of general
applicability to tenants of the Building from time to time made by Landlord of
which Tenant is given notice(a) the common facilities included in the Building
or on the Lot, including the parking facilities (which currently consists of 362
parking spaces and which at all times during the Term shall consist of at least
3.3 spaces per 1,000 square feet of leased area, the parking facilities shall be
used by Tenant on a "non-reserved" basis with all other tenants in the Building,
including their employees and/or invitees, and for which use there shall not be
an additional charge to Tenant, its employees or invitees), bathrooms and other
facilities, to the extent from time to time designated by Landlord, and (b) the
Building service fixtures and equipment serving the Premises Other tenants of
the Building have been provided use of the parking spaces on the same
non-reserved basis as provided to Tenant pursuant to subparagraph (a) above.
Landlord reserves the right from time to time, without unreasonable
interference with Tenant's use (a) to install, repair, replace, use, maintain
and relocate for service to the Premises and to other parts of the Building or
either, building service fixtures and equipment wherever located in the
Building, and (b) to alter or relocate any other common facility provided that
substitutions are substantially equivalent or better.
2.2. TERM.
To have and to hold for a period (the 'Term") commencing on the
Commencement Date and continuing until the Term Expiration Date, unless sooner
terminated as provided in Section 7 1 or in Article 9, or unless extended as
provided in Exhibit "H" hereto.
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ARTICLE 3.
CONSTRUCTION.
3.1. INTENTIONALLY DELETED.
3.2. INTENTIONALLY DELETED.
3.3. GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
All construction work required or permitted by this Lease, shall be done
in a good and workmanlike manner and in compliance with all applicable laws and
all lawful ordinances, regulations and orders of governmental authority and
insurers of the Building Landlord may inspect any work of Tenant at reasonable
times and shall promptly give notice of observed defects.
3.4. PREPARATION OF PREMISES FOR OCCUPANCY.
Landlord shall deliver the Premises on an "as-is" basis subject to a
general clean-up of the space to include "touch up" painting where necessary.
Landlord represents that the Building's systems are in good working order and
fully functional.
ARTICLE 4.
RENT.
4.1. RENT.
Tenant agrees to pay, without any offset or reduction whatever, fixed rent
equal to l/12th of the Fixed Rent in equal installments in advance on the first
day of each calendar month included in the Term, and for any portion of a
calendar month at the beginning or end of the Term, at the pro rata rate payable
for such portion in advance. The term "Rent" shall at all times be used herein
to mean Fixed Rent plus additional rent payable under this Lease Notwithstanding
the foregoing, Fixed Rent shall be abated from December 1, 2002 through January
31, 2003.
4.2. OPERATING COST ESCALATION.
With respect to the First Fiscal Year for Tenant's Paying Operating Cost
Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer
to the successive twelve (12) month periods commencing on January 1st and ending
on December 31st included within the Term) or fraction thereafter, Tenant shall
pay to Landlord, as additional rent, Operating Cost Escalation (as defined
below), if any, on or before the thirtieth (30th) day following receipt by
Tenant of Landlord's Statement (as defined below) As soon as practicable after
the end of each Fiscal Year ending during the Term and after Lease termination,
Landlord shall render a statement ("Landlord's Statement") in reasonable detail
and according to usual accounting.
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practices certified by Landlord and showing for the preceding Fiscal Year or
fraction thereof, as the case may be, "Landlord's Operating Costs", and
specifying Tenant's "Pro Rata Share" (which such term shall refer to the
fraction, the numerator of which is the Rentable Floor Area of Tenant's Space,
and the denominator of which is the Total Rentable Floor Area of the Building)
for such Fiscal Year,
EXCLUDING the interest and amortization on mortgages for the Building and
Lot or leasehold interests therein and the cost of special services rendered to
tenants (including Tenant) for which a special charge is made, depreciation of
buildings and other improvements, improvements, repairs or alterations to spaces
leased to other tenants, costs of any items to the extent Landlord receives
reimbursement from insurance proceeds or from a third party, and expenses for
capital items other than those permitted for purposes of reducing Landlord's
Operating Costs pursuant to the following paragraph,
BUT INCLUDING, without limitation real estate taxes on the Building and
Lot, installments and interest on assessments for public betterments or public
improvements, expenses of any proceedings for abatement of taxes and assessments
with respect to any Fiscal Year or fraction of a Fiscal Year, provided, however,
that any tax refunds shall be applied to reduce Landlord's Operating Costs,
premiums for insurance, compensation and all fringe benefits, workmen's
compensation, insurance premiums and payroll taxes paid by Landlord to, for or
with respect to all persons engaged in the operating, maintaining, or cleaning
of the Building and Lot, steam, water, sewer, electric, gas, telephone, and
other utility charges not billed directly to tenants by Landlord or the utility,
but not including the cost to Landlord of electricity furnished for lighting,
electrical facilities, equipment, machinery, fixtures and appliances used by
Tenant in Tenant's Space (other than Building heating, ventilating and air
conditioning equipment) as set forth in Paragraph VII of Exhibit "D", costs of
building and cleaning supplies and equipment (including rental), cost of
maintenance, cleaning and repairs, cost of snow plowing or removal, or both, and
care of landscaping, payments to independent contractors under service contracts
for cleaning, operating, managing (not to exceed five percent (5%) of collected
gross rents of the Building), maintaining and repairing the Building and Lot
(which payments may be to affiliates of Landlord provided the same are at
reasonable rates consistent with the type of occupancy and the services
rendered), the cost of providing amenities to the Building, and all other
reasonable and necessary expenses paid in connection with the operation,
cleaning, maintenance, and repair of the Building and Lot, or either, and
properly chargeable against income, it being agreed that if Landlord installs a
new or replacement capital item for the purpose of reducing Landlord's Operating
Costs, the annual costs thereof as reasonably amortized by Landlord over the
useful life of the item so installed in accordance with generally accepted
accounting principles, with legal interests on the unamortized amount, shall be
included in Landlord's Operating Costs.
In case of services which are not rendered to all areas on a comparable
basis or in case service consumption vanes among tenants in the Building, the
proportion allocable to the Premises shall be the same proportion which the
Rentable Floor Area of Tenant's Space bears to the total rentable floor area to
which such service is so rendered, or to which such
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disproportionate service or use is rendered (such latter area to be determined
in the same manner as the Total Rentable Floor Area of the Building).
Notwithstanding anything contained herein to the contrary, Tenant is not
obligated to pay its Pro Rata Share of Landlord's Operating Costs which is
included in Fixed Rent at such amount equal to the actual Landlord's Operating
Costs for CY 2003 (approximately $7.25 per RSF, but shall only be obligated to
pay the increase above such amount (i.e Operating Cost Escalation) as herein
provided.
"Operating Cost Escalation" shall be equal to (a) less (b).
(a) the product of Landlord's Operating Costs per rentable square foot
(based upon the Total Rentable Floor Area of the Building as set
forth in Section 1.1 hereof) as indicated in Landlord's Statement
times the Rentable Floor Area of Tenant's Space, and
(b) the product of the Annual Estimated Operating Costs per rentable
square foot (based upon the Total Rentable Floor Area of the
Building as set forth in Section 1.1 hereof) times the Rentable
Floor Area of Tenant's Space, which shall never be less than such
amount equal to the actual Landlord's Operating Costs for CY 2003
(approximately $7.25 RSF and which is already included in Fixed
Rent).
If, with respect to any Fiscal Year or fraction thereof during the Term,
Tenant is obligated to pay Operating Cost Escalation, then Tenant shall pay, as
additional rent, on the first day of each month of each ensuing Fiscal Year
thereafter, until Landlord's Statement for an ensuing Fiscal Year reflects that
Tenant is not obligated to pay Operating Cost Escalation, Estimated Monthly
Escalation Payments equal to 1/12th of the annualized Operating Cost Escalation
for the immediately preceding Fiscal Year, Estimated Monthly Escalation Payments
for each ensuing Fiscal Year shall be made retroactively from the first day of
such Fiscal Year. In no event shall Tenant be obligated to pay more than the
actual Operating Cost Escalation during any Fiscal Year. Therefore, for any
Fiscal Year, such Estimated Monthly Escalation Payments shall be credited
towards Tenant's obligation to pay an Operating Cost Escalation for such Fiscal
Year, with an additional payment made by Tenant or credit issued by Landlord, as
applicable.
The term "real estate taxes" as used above shall mean all taxes of every
kind and nature assessed by any governmental authority on the Lot, the Building
and improvements, or both, which the Landlord shall become obligated to pay
because of or in connection with the ownership, leasing and operation of the
Lot, the Building and improvements, or both, subject to the following There
shall be excluded for such taxes all income taxes, excess profits taxes, excise
taxes, franchise taxes, estate, succession, inheritance and transfer taxes,
provided, however, that if at any time during the Term the present system of ad
valorem taxation of real property shall be changed so that in lieu of the whole
or any part of the ad valorem tax on real property, there shall be assessed on
Landlord a capital levy or other tax on the gross rents.
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received with respect to the Lot, Building and improvements, or both, a federal,
state, county, municipal, or other local income, franchise, excise or similar
tax, assessment, levy or charge (distinct from any now in effect) measured by or
based, in whole or in part, upon any such gross rents, then any and all of such
taxes, assessments, levies or charges, to the extent so measured or based, shall
be deemed to be included within the term "real estate taxes." Upon Tenant's
reasonable request, Landlord shall furnish to Tenant copies of receipted real
estate tax bills showing payment in full of the real estate taxes applicable to
the Lot (and all improvements thereon) for the preceding tax fiscal year. Under
no circumstance will "real estate taxes" include any taxes now due or which
become due for a period prior to the Commencement Date.
Landlord shall have the right from time to time during the Term hereof,
but not more than once per lease year, to change the periods of accounting under
this Section 4.2 to any annual period other than the Fiscal Year and upon any
such change all items referred to in this Section shall be appropriately
apportioned. In all Landlord's Statements, rendered under this Section, amounts
for periods partially within and partially without the accounting periods shall
be appropriately apportioned, and any items which are not determinable at the
time of a Landlord's Statement shall be included therein on the basis of
Landlord's estimate, and with respect thereto Landlord shall render promptly
after determination a supplemental Landlord's Statement, and appropriate
adjustment shall be made according thereto. All Landlord's Statements shall be
prepared on an accrual basis of accounting.
All records that the Landlord is required to maintain hereunder shall be
maintained by the Landlord for a period of two (2) years following the
expiration of the Fiscal Year to which such records relate. Tenant shall have
the right, through its employees or representatives, to examine and audit such
records at reasonable times, but no more than once per Fiscal Year, upon not
less than five (5) days prior written notice. Such records shall be maintained
at Landlord's Address set forth in Section 1.1, or such other place within the
Commonwealth of Massachusetts as Landlord shall designate from time to time for
the keeping of such records. The costs of such audits shall be borne by Tenant,
provided, however, that if such audit establishes that the actual Operating Cost
Escalation for the Fiscal Year in question is less than the Landlord's final
determination of the Operating Cost Escalation as set forth in Landlord's
Statement submitted to Tenant by at least five percent (5%), then Landlord shall
pay the reasonable cost of such audit. If as a result of such audit, it is
determined that Tenant must pay additional amounts to Landlord on account of the
Operating Cost Escalation, or that Tenant has overpaid Landlord on account of
the Operating Cost Escalation, then the undercharged or overpaid party shall
reimburse the other party for the payment due, together with interest thereon
from the date of Landlord's Statement at the interest rate set forth in Section
4.3 hereof.
Notwithstanding any other provision of this Section 4.2, if the Term
expires or is terminated as of a date other than the last day of a Fiscal Year
at the end of the Term, Tenant's last payment to Landlord under this Section 4.2
shall be made on the basis of Landlord's best estimate of the items otherwise
includable in Landlord's Statement and shall be made on or before the later of
(a) ten (10) days after Landlord delivers such estimate to Tenant, or (b) the
last day of the Term, with an appropriate payment or refund to be made upon
submission of Landlord's Statement.
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4.3 PAYMENTS.
All payments of fixed and additional rent shall be made to Managing Agent,
or to such other person as Landlord may from time to time designate. If any
installment of Rent, fixed or additional, or on account of leasehold
improvements performed by Landlord or its contractor on Tenant's behalf,
pursuant to Article 3 hereof, is paid more than ten (10) days after written
notice that such payment is due (provided, however, that Tenant shall not be
entitled to written notice more than two (2) times in any twelve (12) month
period), at Landlord's election, it shall bear interest at the rate of 18% per
annum from such due date, which interest shall be immediately due and payable as
further additional rent.
ARTICLE 5
LANDLORD'S COVENANTS/REPRESENTATIONS
5.1 LANDLORD'S COVENANTS DURING THE TERM.
Landlord covenants during the Term
5.1.1 Building Services - To furnish, through Landlord's employees or
independent contractors, the services listed in Exhibit "D",
because of U.S. Department of Defense requirements particular to
Tenant's Permitted Uses, Landlord further agrees that services
provided outside of business hours may only be performed by
citizens of the United States or permanent residents or refugees
under 8 U.S.C. Section 1324b(a)(3),
5.1.2 Additional Building Services - To furnish, through Landlord's
employees or independent contractors, reasonable additional
Building operation services upon reasonable advance request of
Tenant at equitable rates from time to time established by
Landlord to be paid by Tenant,
5.1.3 Repairs - Except as otherwise provided in Article 7, to make such
repairs to the roof, exterior walls, floor slabs, HVAC (where
repairs are not due to Tenant's negligence) and common facilities
of the Building as may be necessary to keep them in serviceable
condition and in the condition set forth in Section 5.1.5 below,
5.1.4 Quiet Enjoyment - That Landlord has the right to make this Lease
and that Tenant, on paying the Rent and performing its obligations
hereunder, shall peacefully and quietly have, hold and enjoy the
Premises throughout the Term without any manner of hindrance or
molestation from Landlord or anyone claiming under Landlord,
subject, however, to all the terms and provisions hereof,
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5.1.5 Common Areas - To keep and maintain the common areas and parking
facilities of the Building in good order, condition and repair,
including, without limitation, to snowplow and sand the parking
areas and sidewalks located upon the Lot up to the entrances of
the Building, and in a safe, clean, sightly and sanitary condition
in accordance with good and accepted Building practices and in a
manner consistent with first-class buildings of a similar size and
nature to that of the Building,
5.1.6 Insurance - Throughout the Term of this Lease, Landlord shall
purchase and keep in force and effect, or cause to be purchased
and kept in force and effect, Commercial General Liability
Insurance, written on an occurrence and not on a claims-made
basis, containing provisions adequate to protect Landlord from and
against claims for bodily injury, and claims for property damage
occurring upon the Lot or the Building located thereon and/or
occurring on the Premises due to the acts or omissions of Landlord
or its officers, agents, employees or independent contractors, or
due to Landlord's failure to comply with, or default or other
breach of, the provisions of this Lease, such insurance having
bodily injury and property damage combined limits of liability of
not less than $1,000,000 per occurrence, which coverage may be
provided by supplementing the Commercial General Liability policy
with an Umbrella Liability policy.
Landlord shall also purchase and keep in force, or cause to be
purchased and kept in force, insurance upon the Lot and Building
(including the Premises) against loss or damage by a hazard
insured under a so-called "Special Form" policy and such
additional insurance as would customarily be carried by prudent
owners of similar buildings in the same locale as the Building,
and in all events including collapse, vandalism, water damage and
sprinkler leakage, comprehensive boiler and machinery insurance,
in an amount equal to the actual replacement cost of the Building
(including the Premises), including the value of all additions,
alterations, replacements and repairs thereto made by Landlord, as
well as machinery, equipment and their systems forming a part
thereof, or in such greater amount as shall be required to prevent
Landlord or Tenant or other tenants of the Building from becoming
a co-insurer within the terms of the applicable policies. The
phrase "actual replacement cost" shall mean the actual replacement
cost (excluding cost of excavations, foundations, and footings)
without diminution of such cost for depreciation or obsolescence.
The foregoing policy shall contain an agreed-amount clause waiving
co-insurance, and Landlord shall annually update the amount of
insurance coverage and arrange to continue the agreed-amount
clause. The foregoing policy shall also contain, to the extent
applicable, endorsements providing coverage for demolition costs,
increased cost of construction, and contingent liability from
operation of building laws.
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Landlord shall also maintain the requisite flood insurance as is
customary and as may be required by Landlord's mortgagee(s).
The annual costs paid by Landlord in maintaining the foregoing
insurance during the Term shall be included in Landlord's
Operating Costs set forth in Article 4 hereof, and Tenant shall
pay its pro rata share as specified in said Article 4.
All insurance required in this Section or elsewhere in this Lease
shall be effected under valid and enforceable policies issued by
insurers of recognized responsibility licensed to do business in
the State in which the Building is located and rated by Best's
Insurance Reports or any successor publication of comparable
standing and carrying a rating of A-VII or better, or the then
equivalent of such rating. All such policies shall be written as
primary policies not contributing with or in excess of coverage
which Landlord may carry.
Nothing contained in this Article or elsewhere in this Lease shall
prohibit a party from obtaining a policy or policies of blanket
insurance which may cover other property of the insuring party
provided that (x) any such blanket policy expressly allocates to
the properties hereunder to be insured not less than the amount of
insurance required hereunder, and (y) such blanket policy shall
not diminish the obligations of the insuring party so that the
proceeds from such policies shall be an amount no less than the
amount of the proceeds that would be available if the insuring
obtained the required insurance under policies separately insuring
the risks which this Lease requires to be insured.
Each party agrees to have included in each of its insurance
policies a waiver of the insurer's rights of subrogation against
the other party set forth in Section 10.13 hereof to the extent
applicable without payment of any additional premiums.
Landlord agrees to furnish evidence of the foregoing insurance by
providing Tenant with Certificate(s) of Insurance on or before the
Commencement Date hereunder and from time to time hereafter during
the Term of this Lease upon the reasonable request of Tenant,
5.1.7 Tenant's Costs - In case Tenant shall, without any fault on its
part, be made party to any litigation commenced by or against
Landlord or by or against any parties in possession of the
Premises or any part thereof claiming under Landlord, Landlord
shall pay all costs including, without implied limitation,
reasonable counsel fees (at rates standard to the Boston market
rates) and judgments or amounts incurred by or imposed upon Tenant
in connection with such litigation and also to pay all such costs
and fees incurred by Tenant in
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connection with the successful enforcement by Tenant of any
obligations of Landlord under this Lease,
5.1.8 Additional Storage Space - Landlord's affiliate, Burlington
Crossing LLC, agrees to allow Tenant to use additional space,
without additional rent, within the adjacent 6,000 square foot
building owned by Landlord and further described in Exhibit "T"
hereof for the purposes of storing one or more electric or diesel
powered vehicles (provided, however, that all fuel is removed
prior to storage), or other equipment related to Tenant's
Permitted Uses. Use of such space is subject to all of the terms
and provisions of this Lease other than the payment of Base Rent.
Landlord may, in its sole discretion, require Tenant to remove the
vehicles on forty-five (45) days prior written notice (i.e. such
use shall be until such time as notified by Landlord hereunder).
It is hereby acknowledged and agreed that Landlord shall use good
faith, diligent efforts to provide alternate on-site storage space
to Tenant, and
5.1.9 Indemnity - To defend, with counsel reasonably acceptable to
Tenant, save harmless, and indemnify Tenant from any liability for
injury, loss, accident or damage to any person or property and
from any claims, actions, proceedings and expenses and costs in
connection therewith (including, without implied limitation,
reasonable counsel fees) arising directly from the negligent or
willful acts, omissions and/or misconduct of Landlord and not
caused directly by the negligent or willful acts, omissions and/or
misconduct of Tenant. In no event shall Landlord be obligated to
indemnify Tenant for any willful or negligent act or omission of
Tenant or any of Tenant's employees, agents, contractors or
licensees.
5.2 INTERRUPTIONS.
Landlord shall not be liable to Tenant for any compensation or reduction
of rent by reason of inconvenience or annoyance or for loss of business arising
from power losses or shortages or from the necessity of Landlord's entering the
Premises for any of the purposes in this Lease authorized, or for repairing the
Premises or any portion of the Building or Lot. After the Commencement Date, in
case Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any service or performing any other covenant or duty
to be performed on Landlord's part, by reason of any cause reasonably beyond
Landlord's control, Landlord shall not be liable to Tenant therefore, nor,
except as expressly otherwise provided in Article 7, shall Tenant be entitled to
any abatement or reduction of rent by reason thereof, nor shall the same give
rise to a claim in Tenant's favor that such failure constitutes, actual or
constructive, total or partial, eviction from the Premises.
Landlord reserves the right to stop any service or utility system when
necessary by reason of accident or emergency or until necessary repairs have
been completed. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated
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stoppage and will use reasonable efforts to avoid unnecessary inconvenience to
Tenant by reason thereof.
Notwithstanding the foregoing, after the Commencement Date, if a total
interruption that has been caused by the negligence or willful misconduct of
Landlord, or by construction of improvements (as opposed to repairs) continues
for more than thirty (30) consecutive business days, Tenant shall be allowed to
▇▇▇▇▇ the Rent by 50% for the pro rata portion of the month in which the
interruption takes place and continues.
5.3 LANDLORD'S REPRESENTATIONS.
Landlord hereby represents and warrants to Tenant that the existing
certificate of occupancy for the Building and the zoning classification and
local laws and ordinances applicable to the Premises as of the date of execution
of this Lease permit the use of the Premises for the Permitted Uses and allow a
sign to be placed on the Building as provided in Section 6.1.18 hereof.
ARTICLE 6
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such further time as Tenant occupies
any part of the Premises.
6.1.1 Tenant's Payments - To pay when due (a) all Fixed Rent and
additional rent, (b) all taxes which may be imposed on Tenant's
personal property in the Premises (including, without limitation,
Tenant's fixtures and equipment) regardless to whomever assessed,
(c) all charges by public utility for telephone and other utility
services (including service inspections therefor) rendered to the
Premises not otherwise required hereunder to be furnished by
Landlord without charge and not consumed in connection with any
services required to be furnished by Landlord without charge, and
(d) as additional rent, all charges of Landlord for services
rendered pursuant to Section 5.1.2 hereof,
6.1.2 Repairs and Yielding Up - Except as otherwise provided in Article
7 and Section 5.1.3, to keep the Premises in good order, repair
and condition, reasonable wear only excepted, and at the
expiration or termination of this Lease peaceably to yield up the
Premises and all changes and additions therein in such order,
repair and condition, first removing all goods and effects of
Tenant and any items, the removal of which is required by
agreement or specified therein to be removed at Tenant's election
and which Tenant elects to remove, and repairing all damage caused
by such
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removal and restoring the Premises and leaving them clean and
neat, any property not so removed shall be deemed abandoned and
may be removed and disposed of by Landlord, in such manner as
Landlord shall determine, and Tenant shall pay Landlord the entire
cost and expense incurred by it by effecting such removal and
disposition and any damage resulting therefrom, it being agreed
that the acceptance of reasonable use and wear shall not apply so
as to permit Tenant to keep the Premises in anything less than
suitable, tenantable and usable condition, considering the nature
of the Premises and the use reasonably made thereof, or in less
than good and tenantable repair,
6.1.3 Occupancy and Use - From the Commencement Date, to use and occupy
the Premises only for the Permitted Uses, and not to injure or
deface the Premises, Building or Lot, and not to permit in the
Premises any auction sale, nuisance, or the emission from the
Premises of any objectionable noise or odor, nor any use thereof
which is improper, offensive, contrary to law or ordinances, or
liable to invalidate or increase the premiums for any insurance on
the Building or its contents or liable to render necessary any
alteration or addition to the Building,
6.1.4 Rules and Regulations - To comply with the Rules and Regulations
set forth in Exhibit "E" and all other reasonable Rules and
Regulations hereafter made by Landlord, of which Tenant has been
given notice, for the care and use of the Building and Lot and
their facilities and approaches, it being understood that Landlord
shall not be liable to Tenant for the failure of other tenants of
the Building to conform to such Rules and Regulations,
6.1.5 Safety Appliances - To keep the Premises equipped with all safety
appliances required by law or ordinance or any other regulation of
any public authority because of any use made by Tenant and to
procure all licenses and permits so required because of such use
and, if requested by Landlord, to do any work so required because
of such use, it being understood that the foregoing provisions
shall not be construed to broaden in any way Tenant's Permitted
Uses,
6.1.6 Assignment and Subletting - Not without prior written consent of
Landlord (which consent shall not be unreasonably withheld or
delayed by Landlord) to assign this Lease, to make any sublease,
or to permit occupancy of the Premises or any part thereof by
anyone other than Tenant, voluntarily or by operation of law, it
being understood that Tenant shall, as additional rent, reimburse
Landlord promptly for reasonable legal and other expenses incurred
by Landlord in connection with any request by Tenant for consent
to assignment or subletting. No assignment or subletting shall
affect the continuing primary liability of Tenant (which,
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following assignment, shall be joint and several with the
assignee). No consent to any of the foregoing in a specific
instance shall operate as waiver in any subsequent instance. If
Tenant requests Landlord's consent to assign this Lease or sublet
more than forty percent (40%) of the Premises, Landlord shall have
the option, exercisable by written notice to Tenant given within
thirty (30) days after receipt of such request, to terminate this
Lease as of a date specified in such notice which shall be not
less than forty-five (45), or more than sixty (60) days after the
date of such notice, and any rental received by Tenant from
sub-tenant must be remitted to Landlord, provided, however, in the
event Landlord notifies Tenant of its right to recapture as
aforesaid, Tenant shall have the right, exercisable by written
notice within fifteen (15) days of receipt of Landlord's notice,
to withdraw its request to so assign or sublet the Premises.
Landlord and Tenant hereby further agree that if Landlord approves
a sublease or assignment with a total rentable amount greater than
the total rent due from Tenant to Landlord under this Lease, then
Tenant shall pay to Landlord forthwith upon Tenant's receipt of
each such installment of such excess rent during the term of any
approved sublease or assignment, as additional rent hereunder, an
amount equal to fifty percent (50%) of the positive excess between
all fixed rent and additional rent received by Tenant under the
sublease or assignment (after reimbursement to Tenant of all
reasonable brokerage fees, reasonable attorney fees, reasonable
tenant improvement allowances and any other subletting costs
reasonably incurred by Tenant) and the Fixed Rent and additional
rent to Landlord under this Lease. In the event the sublease is
less than the full Premises hereunder, the above rent adjustment
shall be equally prorated on a square foot basis.
Notwithstanding the foregoing, Tenant shall have the right,
without Landlord's consent, to sublet, assign or otherwise
transfer its interest in this Lease to any parent, affiliate or
operating subsidiary of Tenant, or subsidiary or affiliate of
Tenant's parent, or to a corporation with which it may merge or
consolidate, provided, however, that such sublessee, assignee, or
transferee agrees to be bound by all the terms and provisions of
this Lease and written documentation evidencing same is provided
to Landlord.
Anything contained in the foregoing provisions of this section to
the contrary notwithstanding, neither Tenant nor any other person
having interest in the possession, use, occupancy or utilization
of the Premises shall enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of
space in the Premises which provides for rental or other payment
for such use, occupancy or utilization based, in whole or in part,
on the net income or profits derived by any person from the
Premises leased, used, occupied or utilized (other than an amount
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based on a fixed percentage or percentages of receipts or sales),
and any such purported lease, sublease, license, concession or
other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession use,
occupancy or utilization of any part of the Premises,
6.1.7 Indemnity - To defend, with counsel reasonably acceptable to
Landlord, save harmless, and indemnify Landlord from any liability
for injury, loss, accident or damage to any person or property and
from any claims, actions, proceedings and expenses and costs in
connection therewith (including, without implied limitation,
reasonable counsel fees) (i) arising from the omission, fault,
willful act, negligence or other misconduct of Tenant or from any
use made or thing done or occurring on the Premises not due to the
omission, fault, willful act, negligence or other misconduct of
Landlord, or (ii) resulting from the failure of Tenant to perform
and discharge its covenants and obligations under this Lease,
6.1.8 Tenant's Liability Insurance - To maintain public liability
insurance in the Premises in amounts which shall, at the beginning
of the Term, be at least equal to the limits set forth in Section
1.1 and from time to time during the Term, shall be for such
higher limits, if any, as are customarily carried in the area in
which the Premises are located on property similar to the Premises
and used for similar purposes and to furnish Landlord with the
certificates thereof,
6.1.9 Tenant's Workmen's Compensation Insurance - To keep all Tenant's
employees working in the Premises covered by workmen's
compensation insurance in statutory amounts and to furnish
Landlord with certificates thereof,
6.1.10 Landlord's Right of Entry - To permit Landlord and Landlord's
agents entry, to examine the Premises at reasonable times upon
notice to Tenant (except in the event of an emergency where notice
shall be given as soon as possibly practicable) and, if Landlord
shall so elect, to make repairs or replacements, to remove, at
Tenant's expense, any changes, additions, signs, curtains, blinds,
shades, awnings, aerials, flagpoles, or the like not consented to
in writing, and to show the Premises to prospective tenants during
the six (6) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable times. Any
such entry by Landlord (or its contractors) hereunder shall be
conducted in such a manner as to reasonably minimize any
disruption to Tenant's operations therein. Landlord hereby
acknowledges that in connection with any such entry, Landlord (or
its contractors or invitees as hereinabove permitted) may come
into contact with sensitive and confidential material of Tenant,
and therefore Landlord agrees to enter (and/or have its
contractors or
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invitees enter) into reasonable disclosure documents regarding the
non-disclosure of such sensitive and confidential material of
Tenant,
6.1.11 Loading - Not to place a load upon the Premises exceeding an
average rate of one hundred and fifty (150) pounds of live load
per square foot of floor area, and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in
such a manner and at such times as Landlord shall in each instance
approve, Tenant's business machines and mechanical equipment which
cause vibration or noise that may be transmitted to the Building
structure or to any other leased space in the Building shall be
placed and maintained by Tenant in settings of cork, rubber,
spring, or other types of vibration eliminators sufficient to
eliminate such vibration or noise,
6.1.12 Landlord's Costs - In case Landlord shall, without any fault on
its part, be made party to any litigation commenced by or against
Tenant or by or against any parties in possession of the Premises
or any part thereof claiming under Tenant, Tenant shall pay, as
additional rent, all costs including, without implied limitation,
reasonable counsel fees (at rates standard to the Boston market
rates) and judgments or amounts incurred by or imposed upon
Landlord in connection with such litigation and as additional
rent, also to pay all such costs and fees incurred by Landlord in
connection with the successful enforcement by Landlord of any
obligations of Tenant under this Lease,
6.1.13 Tenant's Property - All the furnishings, fixtures, equipment,
effects and property of every kind, nature and description of
Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy of
the Premises by Tenant or anyone claiming under Tenant, may be on
the Premises or elsewhere in the Building or on the Lot shall be
at the sole risk and hazard of Tenant, and if the whole or any
part thereof shall be destroyed or damaged by fire, water or
otherwise, or by the leakage or bursting of water pipes, steam
pipes, or other pipes, by theft, or from any other cause, no part
of said loss or damage is to be charged to or to be borne by
Landlord, except to the extent that such damage is directly caused
by Landlord's negligence or willful misconduct,
6.1.14 Labor or Materialmen's Liens - To pay promptly when due the entire
cost of any work done on the premises by Tenant, its agents,
employees, or independent contractors, not to cause or permit any
liens for labor or material performed or furnished in connection
therewith to attach to the Premises, and upon receipt of written
notice of such liens, to timely discharge any such liens which may
so attach,
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6.1.15 Changes or Additions - Not to make any changes or
additions to the Premises without Landlord's prior
written consent (which consent shall, in the instances
of non-structural changes or additions only, not be
unreasonably withheld or delayed),
6.1.16 Holdover - To pay to Landlord twice the Fixed and
additional rent then applicable for each month or
portion thereof Tenant shall retain possession of the
Premises or any part thereof after the termination of
this Lease, whether by lapse of time or otherwise, and
also to pay all damages sustained by Landlord on account
thereof, the provisions of this subsection shall not
operate as a waiver by Landlord of any right of re-entry
provided in this Lease,
6.1.17 Hazardous Materials - Tenant shall not (either with or
without negligence) cause or permit the escape, disposal
or release of any biologically or chemically active or
other hazardous substances, or materials onto or in the
vicinity of the Premises. Tenant shall not allow the
storage or use of such substances or materials in any
manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of
such substances or materials, nor allow to be brought
into the Premises any such materials or substances
except to use in the ordinary course of Tenant's
business. Tenant agrees to furnish, upon Landlord's
request, a written inventory of the identity of such
substances or materials used in the ordinary course of
Tenant's business. Without limitation, hazardous
substances and materials shall include those described
in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq, the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. Section 6901 et
seq, the Massachusetts Hazardous Waste Management Act,
as amended, M G L c 21C, the Massachusetts Oil and
Hazardous Material Release Prevention and Response Act,
as amended, M G L c 21E, any applicable local ordinance
or bylaw, and the regulations adopted under these acts
(collectively, the "Hazardous Waste Laws"). If any
lender or governmental agency shall ever require testing
to ascertain whether or not there has been any release
of hazardous materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon
demand as additional charges if such requirement applies
to the Premises and only if such release is determined
by a third party consultant to have been caused by
Tenant. If Tenant receives from any federal, state or
local governmental agency any notice of violation or
alleged violation of any Hazardous Waste Law, or if
Tenant is obligated to give any notice under any
Hazardous Waste Law, Tenant agrees to forward to
Landlord a copy of any such notice within three (3)
business days of Tenant's receipt or transmittal
thereof. In addition, Tenant shall execute affidavits,
representations and the like from time to time at
Landlord's request
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concerning Tenant's best knowledge or belief regarding
the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify Landlord
in the manner provided in Section 6.1.7 of this Lease
from any release of hazardous substances or materials if
caused by Tenant or persons acting under Tenant on the
Premises or in the Building or on the Lot. Landlord
retains the right to inspect the Premises at all
reasonable times, upon reasonable notice to Tenant, to
ensure compliance with this paragraph. The within
covenants shall survive the expiration or earlier
termination of the Term,
6.1.18 Signs and Advertising - Except as hereinafter expressly
provided, Tenant will not place or suffer to be placed
or maintained on the exterior or roof of the Premises
any sign, decoration, lettering or advertising matter or
any other thing of any kind Tenant will, at its sole
cost and expense, maintain such sign, decoration,
lettering, advertising matter, or other thing as may be
permitted hereunder in good condition and repair at all
times.
Tenant shall have the right, at its sole cost and
expense, subject to applicable sign ordinances and to
Landlord's prior approval, to install a clean and
professionally lettered sign customary or appropriate in
the conduct of Tenant's business designating iRobot
Corporation on the South Avenue side of the Building (in
such location as designated on Exhibit "A" of this
Lease). Landlord will fully cooperate with Tenant in
filing any required signage application, permit and/or
variance for said signage as described in this Section
6.1.18. Tenant is responsible for any permitting or
variance fees. It is hereby acknowledged by and between
Landlord and Tenant that Tenant shall also be entitled
to standard building signage at the entries to the
Premises and on the lobby directory of the Building,
6.1.19 Security - All security shall be the Tenant's sole
responsibility. In no event shall Landlord be
responsible for providing any security to the Premises
or to the Building's common areas and parking
facilities,
6.1.20 Rooftop Communication Equipment - Subject to the
provisions hereinafter provided, Tenant shall have the
right from time to time during the Term hereof to
install rooftop communication equipment (i.e. satellite
or antenna devices or GPS systems) on the roof of the
Building. Subject to applicable law, matters of title,
and the consent of Landlord (which consent shall not be
unreasonably withheld or delayed), Tenant, at its sole
cost and expense, has the right to install such
equipment on the roof of the Building. The size and
location of the installation shall be at a site
acceptable to Landlord, and the approval of any such
size and location shall not be reasonably withheld or
delayed by Landlord. Tenant shall install the equipment
in accordance with sound construction practices, and in
accordance with all applicable laws, rules, codes and
ordinances, and in a
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good and workmanlike manner. Tenant shall use such
roofing contractor required to comply with the existing
roof warranties, as designated by Landlord. Tenant shall
indemnify, defend and hold Landlord harmless from and
against any and all liability or loss arising from or
out of the installation or removal of such rooftop
communication equipment. Upon expiration of the Term,
Tenant shall be responsible for the removal of the same
and for repairing any damage caused therefrom, and
6.1.21 Access - Subject to the terms and provisions of this
Lease, applicable law and so long as Tenant's use is
conducted in such a manner as to minimize any disruption
to other tenants of the Building (including their
employees, agents, invitees, licensees and the like),
Tenant shall have the right to use (i) certain common
areas as "testing areas" (specifically such areas as are
designated as such on Exhibit "A" attached hereto), and
(ii) the side door of the Building for purposes of
bringing robots in and out of the Building.
6.2 APPROVAL BY TENANT'S BOARD OF DIRECTORS.
Tenant's obligation to perform its covenants and agreements hereunder is
subject to the condition precedent that this Lease be approved by Tenant's Board
of Directors. Unless Tenant gives Landlord written notice within ten (10) days
after the date hereof that the Board disapproves this Lease, then this condition
shall be deemed to have been satisfied or waived and the provisions of this
Section 6.2 shall be of no further force or effect. If Tenant provides such
notice of disapproval to Landlord, then all of Landlord's and Tenant's
obligations hereunder shall be deemed terminated and this Lease shall terminate
without recourse to the parties hereto.
ARTICLE 7
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING.
In case during the Term all or any substantial part of the Premises, the
Building, or Lot or any one or more of them, are damaged materially by fire or
any other cause or by action of public or other authority in consequence thereof
or are taken by eminent domain or Landlord receives compensable damage by reason
of anything lawfully done in pursuance of public or other authority, this Lease
shall terminate at Landlord's or Tenant's election, which may be made,
notwithstanding. Landlord's entire interest may have been divested, by notice
given to Tenant, or Landlord as applicable, within thirty (30) days after the
occurrence of the event giving rise to the election to terminate, which notice
shall specify the effective date of termination which shall be not less than
thirty (30) nor more than sixty (60) days after the date of notice of such
termination. If in any such case the Premises are rendered unfit for use and
occupation and the Lease is not so terminated, Landlord shall use due diligence
to put the Premises, or in case of taking, what may remain thereof (excluding
any items installed or paid for by Tenant which Tenant may be required or
permitted to remove) into proper condition for use and occupation to
20
the extent permitted by the net award of insurance or damages, and a just
proportion of the Fixed Rent and additional rent according to the nature and
extent of the injury shall be abated until the Premises or such remainder shall
have been put by Landlord in such condition, and in case of a taking or any
other aforementioned cause which permanently reduces the area of the Premises, a
just proportion of the Fixed Rent and additional rent shall be abated for the
remainder of the Term and an appropriate adjustment shall be made to the Annual
Estimated Operating Costs.
7.2 RESERVATION OF AWARD.
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises, Building or Lot and the leasehold hereby created, or
any one or more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other authority.
Tenant hereby releases and assigns to Landlord all Tenant's rights to such
awards, and covenants to deliver such further assignments and assurances thereof
as Landlord may from time to time request, hereby irrevocably designating and
appointing Landlord as its attorney-in-fact to execute and deliver in Tenant's
name and behalf all such further assignments thereof. It is agreed and
understood, however, that Landlord does not reserve to itself, and Tenant does
not assign to Landlord, any damages payable for (i) movable trade fixtures
installed by Tenant or anybody claiming under Tenant, at its own expense, or
(ii) relocation expenses recoverable by Tenant from such authority in a separate
action.
ARTICLE 8
RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE
Landlord shall have the option to subordinate this Lease to any mortgagee
or deed of trust of the Lot or Building, or both ("the mortgaged premises"),
provided that the holder thereof enters into an agreement (substantially in the
form attached hereto as Exhibit "K" or such other form requested by such
mortgagee and reasonably acceptable to Tenant) with Tenant by the terms of which
the holder will agree to recognize the rights of Tenant under this Lease and to
accept Tenant as tenant of the Premises under the terms and conditions of this
Lease in the event of acquisition of title by such holder through foreclosure
proceedings or otherwise and Tenant will agree to recognize the holder of such
mortgage as Landlord in such event, which agreement shall be made to expressly
bind and inure to the benefit of the successors and assigns of Tenant and of the
holder and upon anyone purchasing the mortgaged premises at any foreclosure
sale. Any such mortgage to which this Lease shall be subordinated may contain
such terms, provisions and conditions as the holder deems usual or customary.
Unless Landlord exercises such option, this Lease shall be superior to and shall
not be subordinated to any mortgage or other voluntary lien or other encumbrance
on the mortgaged premises. Landlord agrees to obtain and furnish to Tenant a
Subordination and Non-Disturbance Agreement in said form attached hereto as
Exhibit "K" within thirty (30) days after execution of this Lease by both
parties hereto. Landlord acknowledges that Paragraph 4 of Exhibit K requires
that Tenant pay rent directly to the Mortgagee in the event demand is made upon
Tenant by Mortgagee.
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8.2 LIMITATION ON MORTGAGEE'S LIABILITY.
Upon entry and taking possession of the mortgaged premises for any purpose
other than foreclosure, the holder of a mortgage shall have all rights of
Landlord, and during the period of such possession, the duty to perform all
Landlord's obligations hereunder. Except during such period of possession, no
such holder shall be liable, either as mortgagee or as holder of a collateral
assignment of this Lease, to perform, or be liable in damages for failure to
perform any of the obligations of Landlord unless and until such holder shall
enter and take possession of the mortgaged premises for the purpose of
foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage,
such holder shall be liable to perform all of the obligations of Landlord,
provided that a discontinuance of any foreclosure proceeding shall be deemed a
conveyance under the provisions of Section 10.5 to the owner of the equity of
the mortgaged premises.
8.3 INTENTIONALLY DELETED.
8.4 NO PREPAYMENT OR MODIFICATION, ETC.
No Fixed Rent, additional rent, or any other charge shall be paid more
than one (1) month prior to the due dates thereof, and payments made in
violation of this provision shall (except to the extent that such payments are
actually received by a mortgagee in possession or in the process of foreclosing
its mortgage) be a nullity as against such mortgagee, and Tenant shall be liable
for the amount of such payments to such mortgagee. No assignment of this Lease
and no agreement to make or accept any surrender, termination or cancellation of
this Lease and no agreement to modify so as to reduce the rent, change the Term,
or otherwise materially change the rights of Landlord under this Lease, or to
relieve Tenant of any obligations or liability under this Lease, shall be valid
unless consented to in writing by Landlord's mortgagees of record, if any.
8.5 NO RELEASE OR TERMINATION.
No act or failure to act on the part of Landlord which would entitle.
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release or
termination of such obligations or a termination of this Lease unless (i) Tenant
shall have first given written notice of Landlord's act or failure to act to
Landlord's mortgagees of record, if any, specifying the act or failure to act on
the part of Landlord which could or would give basis to Tenant's rights, and
(ii) such mortgagees, after receipt of such notice, have failed or refused to
correct or cure the condition complained of within a reasonable time thereafter,
but nothing contained in this Section 8.5 shall be deemed to impose any
obligation on any such mortgagee to correct or cure any such condition.
"Reasonable time" as used above means and includes a reasonable time to obtain
possession of the mortgaged premises, if the mortgagee elects to do so, and a
reasonable time to correct or cure the condition if such condition is determined
to exist.
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8.6 CONTINUING OFFER.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants and agreements contained in this Article 8) constitute a
continuing offer to any person, corporation or other entity, which by accepting
or requiring an assignment of this Lease or by entry or foreclosure assumes the
obligations herein set forth with respect to such mortgagee, and such mortgagee
shall be entitled to enforce such provisions in its own name. Tenant agrees on
request of Landlord to execute and deliver from time to time any agreement which
may reasonably be deemed necessary to implement the provisions of this Article
8.
8.7 MORTGAGEE'S APPROVAL.
Landlord's obligation to perform its covenants and agreements hereunder is
subject to the condition precedent that this Lease be approved by the holder of
any mortgage of which the Premises are a part and by the issuer of any
commitment to make a mortgage loan which is in effect on the date hereof. Unless
Landlord gives Tenant written notice within ten (10) days after the date hereof
that such holder or issuer, or both, disapprove this Lease, then this condition
shall be deemed to have been satisfied or waived and the provisions of this
Section 8.7 shall be of no further force or effect. If Landlord provides such
notice of disapproval to Tenant, then all of Landlord's and Tenant's obligations
hereunder shall be deemed terminated and this Lease shall terminate without
recourse to the parties hereto.
8.8 SUBMITTAL OF FINANCIAL STATEMENT.
Subject to reasonable confidentiality restrictions, at any time and from
time to time during the Term of this Lease (but not more than quarterly), within
fifteen (15) days after request therefor by Landlord, Tenant shall supply to
Landlord and/or any Mortgagee a current financial statement (i.e. , unaudited
quarterly and audited for annual statements) or such other financial information
as may be reasonably required by any such party.
ARTICLE 9
DEFAULT
9.1 EVENTS OF DEFAULT.
If any default by Tenant continues after written notice, in case of Fixed
Rent or additional rent for more than ten (10) days, or in any other case for
more than thirty (30) days and such additional time, if any, as is reasonably
necessary to cure the default if the default is of such a nature that it cannot
reasonably be cured in thirty (30) days, or if Tenant makes any assignment for
the benefit of creditors, or files a petition under any bankruptcy or insolvency
law, or if such a petition is filed against Tenant and is not dismissed within
ninety (90) days, or if a receiver or similar officer becomes entitled to
Tenant's leasehold hereunder and it is not returned to Tenant within ninety (90)
days, or if such leasehold is taken on execution or other process of law in any
23
action against Tenant, then, and in any such cases, Landlord and the agents and
servants of Landlord may, in addition to and not in derogation of any remedies
for any preceding breach of covenant, immediately or at any time thereafter
while such default continues and without further notice and with or without
process of law, if permitted by applicable law, enter into and upon the Premises
or any part thereof in the name of the whole or mail a notice of termination
addressed to Tenant at the Premises and repossess the same as of Landlord's
former estate and expel. Tenant and those claiming through or under Tenant and
remove its and their effects (forcibly, if necessary) without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of covenant, and
upon such entry or mailing as aforesaid, this Lease shall terminate, but Tenant
shall remain liable as hereinafter provided. Tenant hereby waives all statutory
rights (including, without limitation, rights of redemption, if any) to the
extent such rights may be lawfully waived, and Landlord, without notice to
Tenant, may store Tenant's effects and those of any person claiming through or
under Tenant at the expense and risk of Tenant and, if Landlord so elects, may
sell such effects at public auction or private sale and apply the net proceeds
to the payment of all sums due to Landlord from Tenant, if any, and pay over the
balance, if any, to Tenant. Notwithstanding the foregoing provisions of this
Section 9.1, Landlord shall not have the right to sell or otherwise alienate
Tenant's computers or any robotic equipment or government owned equipment.
9.2 TENANT'S OBLIGATIONS AFTER TERMINATION.
In the event that this Lease is terminated under any of the provisions
contained in Section 9.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the excess of the total rent reserved for the residue of the Term
over the rental value of the Premises for said residue of the Term. In
calculating the rent reserved, there shall be included, in addition to the Fixed
Rent and all additional rent, the value of all other consideration agreed to be
paid or performed by Tenant for said residue. Tenant further covenants as an
additional and cumulative obligation after any such ending to pay punctually to
Landlord all the sums and perform all the obligations which Tenant covenants in
this Lease to pay and to perform in the same manner and to the same extent and
at the same time as if this Lease had not been terminated. In calculating the
amounts to be paid by Tenant under the next foregoing covenant, Tenant shall be
credited with any amount paid to Landlord as compensation as provided in the
first sentence of this Section 9.2 and also with the net proceeds of any rents
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
implied limitation, all repossession costs, brokerage commissions, fees for
legal services and expense of preparing the Premises for such reletting, it
being agreed by Tenant that Landlord may (i) relet the Premises or any part or
parts thereof for a term or terms which may, at Landlord's option, be equal to
or less than or exceed the period which would otherwise have constituted the
balance of the Term and may grant such concessions and free rent as Landlord in
its sole reasonable judgment considers advisable or necessary to relet the same,
and (ii) make such alterations, repairs and decorations in the Premises as
Landlord in its sole judgment considers advisable or necessary to relet the
same, and no action of Landlord in accordance with the foregoing or failure to
relet or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid.
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Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
ARTICLE 10
MISCELLANEOUS
10.1 TITLES.
The titles of the Articles are for convenience and are not to be
considered in construing this Lease.
10.2 NOTICE OF LEASE.
Simultaneously, upon the execution of this Lease, both parties shall
execute and deliver a short form of this Lease in a form appropriate for
recording or registration, and if this Lease is terminated before the Term
expires, an instrument in such form acknowledging the date of termination.
Landlord hereby agrees to coordinate the execution and recording of such short
form of this Lease, at its sole cost and expense.
10.3 INTENTIONALLY DELETED.
10.4 NOTICES FROM ONE PARTY TO THE OTHER.
No notice, approval, consent requested or election required or permitted
to be given or made pursuant to this Lease shall be effective unless the same is
in writing. Communications shall be addressed, if to Landlord, at Landlord's
Address, together with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other address or
addresses as may have been specified by prior notice to Tenant and, if to
Tenant, at Tenant's Address until the Commencement Date, and thereafter at the
Premises, and in either event with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., at the
same address as Tenant, or at such other place or places as may have been
specified by prior notice to Landlord. Any communication so addressed shall be
deemed duly served if mailed by registered or certified mail, return receipt
requested, delivered by hand, or by overnight express service by a carrier
providing a receipt of delivery.
10.5 BIND AND INURE.
The obligations of this Lease shall run with the land, and this Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns,
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except that the Landlord named herein and each successive owner of the Premises
shall be liable only for the obligations accruing during the period of its
ownership. Neither the Landlord named herein nor any successive owner of the
Premises whether an individual, trust, a corporation or otherwise shall have any
personal liability beyond their equity interest in the Premises.
10.6 NO SURRENDER.
The delivery of keys to any employees of Landlord or to Landlord's agent
or any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
10.7 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this Lease
or, with respect to such failure of Landlord, any of the Rules and Regulations
referred to in Section 6.1.4, whether heretofore or hereafter adopted by
Landlord, shall not be deemed a waiver of such violation nor prevent a
subsequent act, which would have originally constituted a violation, from having
all the force and effect of an original violation, nor shall the failure of
Landlord to enforce any of said Rules and Regulations against any other tenant
in the Building be deemed a waiver of any such Rules or Regulations. The receipt
by Landlord of Fixed Rent or additional rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach by Landlord,
unless such waiver be in writing signed by Landlord. No consent or waiver,
express or implied, by Landlord or Tenant to or of any breach of any agreement
or duty shall be construed as a waiver or consent to or of any other breach of
the same or any other agreement or duty.
10.8 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Fixed Rent and
additional rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed as
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
10.9 CUMULATIVE REMEDIES.
The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other remedies
or means of redress to which it may be lawfully entitled in case of any breach
or threatened breach by Tenant of any provisions of this Lease. In addition to
the other remedies provided in this Lease, Landlord shall be entitled to seek
the restraint by injunction of the violation or attempted or threatened
violation of any of the covenants, conditions or provisions of this Lease or to
seek a decree compelling specific performance of any such covenants, conditions
or provisions.
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10.10 PARTIAL INVALIDITY.
If any term of this Lease, or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
10.11(a) LANDLORD'S RIGHT TO CURE.
If Tenant shall at any time default in the performance of any obligation
under this Lease which default shall remain uncured after the expiration of any
applicable notice and cure periods therefor, Landlord shall have the right, but
shall not be obligated, to enter upon the Premises and to perform such
obligation, notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to such
default. In performing such obligation, Landlord may make any payment of money
or perform any other act. All sums so paid by Landlord (together with interest
at the rate of 4% per annum in excess of the then prime rate of interest being
charged by a majority of the banks in Boston), and all necessary incidental
costs and expenses in connection with the performance of any such acts by
Landlord, shall be deemed to be additional rent under this Lease and shall be
payable to Landlord immediately on demand. Landlord may exercise the foregoing
rights without waiving any other of its rights or releasing Tenant from any of
its obligations under this Lease.
10.11(b) TENANT'S RIGHT TO CURE.
If Landlord shall at any time default in the performance of any obligation
under this Lease beyond all applicable notice and cure periods, if expressly
provided herein, otherwise after written notice and Landlord's failure to cure
the same within twenty (20) days of receipt of such notice or such additional
time if such cure is of such nature that cannot be cured within twenty (20) days
and Landlord is diligently prosecuting such cure to completion, then Tenant
shall have the right, but shall not be obligated, to perform such obligation on
Landlord's behalf, provided that such obligation applies solely to the Premises
and not to (i) the Common Areas and, (ii) the structural components of the
Building, or (ii) the Building service fixtures and equipment not exclusively
serving the Premises. Landlord shall (within thirty (30) days of receipt thereof
showing satisfactory evidence of Tenant's payment of same) reimburse Tenant for
such costs in performing Landlord's obligations (with interest accruing if not
reimbursed by Landlord as herein required at the rate set forth in Paragraph (a)
above).
10.12 ESTOPPEL CERTIFICATE.
Tenant and Landlord agree on the Commencement Date, and from time to time
thereafter, upon not less than fifteen (15) days' prior written request by the
other, to execute, acknowledge and deliver to the other a statement in writing
in the form attached hereto as Exhibit "G", certifying that this Lease is
unmodified and in full force and effect, that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the Fixed Rent and additional
27
rent and to perform its other covenants under this Lease, that there are no
uncured defaults of Landlord or Tenant under this Lease (or, if there are any
defenses, offsets, counterclaims, or defaults, setting them forth in reasonable
detail), and the dates to which the Fixed Rent, additional rent and other
charges have been paid. Any such statements delivered pursuant to this Section
10.12 may be relied upon by any prospective purchaser or mortgage of premises
which include the Premises or any prospective assignee of any such mortgagee,
and any persons specified in the notice requesting such certificate.
10.13 WAIVER OF SUBROGATION.
Landlord and Tenant mutually agree, with respect to any hazard which is
covered by casualty or property insurance then being carried by them, or
required to be carried hereunder (whether or not such insurance is then in
effect) to release each other from any and all claims with respect to such loss,
and they further mutually agree that their respective insurance companies shall
have no rights of subrogation against the other on account thereof. Landlord and
Tenant agree that any policies presently existing or to be obtained on or after
the date hereof (including renewals of present policies) shall, to the extent
available without payment of any additional premium, include a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the insured to recover
thereunder. The parties further agree that if said waiver of subrogation shall
be unobtainable or unenforceable or shall void the respective policies, then
their respective policies shall not be invalidated, and said waiver shall become
null and void and of no further force and effect.
10.14 BROKERAGE.
Tenant and Landlord represent and warrant that they have dealt with no
broker in connection with this transaction other than those listed in Section
1.1, and agrees to defend, indemnify and save Landlord or Tenant, as the case
may be, harmless from and against any and all claims for a commission arising
out of this Lease made by anyone other than those listed in Section 1.1.
Landlord agrees to pay all brokerage commissions or fees due to said brokers
listed in Section 1.1.
10.15 CONFIDENTIALITY.
This Lease document is a confidential document by and between Landlord
and Tenant and shall not be disclosed, copied, distributed or circulated to any
person(s) other than to such parties and their respective mortgagees, successors
or assigns, their legal counsel or their accountants, without prior written
consent of the Landlord. In no event, however, shall the foregoing prevent
Tenant from disclosing the existence of the Lease or a general description of
its contents.
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ARTICLE 11
SECURITY DEPOSIT
A "Security Deposit" in the initial amount of One Hundred Twelve Thousand
($112,000.00) Dollars shall be delivered to Landlord prior to the Commencement
Date. Such Security Deposit shall be held by Landlord without liability for
interest and as security for the performance of Tenant's obligations under this
Lease.
The Security Deposit may at Tenant's election, be in the form of (a) cash
escrow or (b) a letter of credit, which letter of credit shall (i) be in form
reasonably acceptable to Landlord, (ii) name Landlord as its beneficiary, (iii)
expire not less than one (1) year after the issuance thereof, and (iv) be drawn
on an FDIC-insured financial institution reasonably satisfactory to Landlord.
Landlord hereby approves of Silicon Valley Bank. Tenant shall from time to time,
as necessary, renew or replace or amend the original and any subsequent letter
of credit no less than ten (10) days prior to the stated expiration date of the
letter of credit then held by Landlord, and if Tenant fails to renew or replace
or amend said letter of credit by not later than ten (10) days prior to
expiration, Landlord may draw upon such letter of credit and hold the proceeds
thereof in a segregated account as a Security Deposit pursuant to the terms of
this Article 1.1. Any renewal of or replacement for the original or any
subsequent letter of credit shall meet the requirements for the original letter
of credit as set forth above.
Landlord may, from time to time, without prejudice to any other remedy,
use all or a portion of the Security Deposit to cure any default by Tenant that
remains uncured after the expiration of any applicable notice and grace periods,
including, without limitation, any uncured default in connection with any
arrearages of Fixed Rent, costs incurred by Landlord to repair damage to the
Premises caused by Tenant, and any costs incurred by Landlord to clean (other
than normal wear and tear) the Premises upon termination of this Lease.
Following any such application of the Security Deposit, Tenant shall, upon
demand, provide Landlord with an additional cash security deposit in an amount
equal to the amount of Security Deposit applied by Landlord, or, if the Security
Deposit is in the form of a letter of credit, then restore the letter of credit
to its full amount. If Tenant is not in default as of December 31, 2007 and if
Landlord has not previously had to draw down the Security Deposit, then Landlord
shall reduce the Security Deposit to an amount of Seventy-Five Thousand
($75,000.00) Dollars, and the remaining Thirty-Seven Thousand ($37,000.00)
Dollars shall be returned to Tenant. If the Security Deposit is in the form of a
letter of credit, then such reduction shall be effected as follows. Landlord
shall return the letter of credit to Tenant provided that Tenant has delivered a
replacement (or amended) letter of credit, in an amount reduced by Thirty-Seven
Thousand ($37,000.00) Dollars from the amount of the previous letter of credit,
which replacement (or amended) letter of credit shall comply with the foregoing
requirements. If Tenant is not in default at the termination of this Lease,
after Tenant surrenders the Premises to Landlord in accordance with this Lease
and all amounts due Landlord from Tenant are finally determined and paid by
Tenant or through application of the Security Deposit, the balance of the
Security Deposit shall be returned to Tenant.
Notwithstanding the foregoing, the parties hereby agree that Tenant may
withhold up to Thirty Thousand Dollars ($30,000.00) from the Security Deposit
that, as described above, is
29
due to Landlord prior to the Commencement Date, but only so long as the amount
withheld is applied toward the cost of constructing tenant improvements in the
Premises (any such construction to be performed in accordance with the terms of
this Lease) However, the amount so withheld shall subsequently be repaid to
Landlord in order to replenish the Security Deposit to its originally intended
amount of One Hundred Twelve Thousand ($112,000.00) Dollars. Such repayment
shall occur as follows beginning on the first day of the first full month of the
Term of the Lease, Tenant shall remit to Landlord, in the same manner as, and
together with, Tenant's payment of Base Rent, at least one/twelfth (1/12th) of
the total amount of the Security Deposit that was withheld, with such payments
to continue until the full amount of the Security Deposit has been restored.
(Signatures on next page)
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EXECUTED as a sealed instrument in two or more counterparts on the day and
year first above written.
TENANT LANDLORD
iROBOT CORPORATION BURLINGTON CROSSING OFFICE LLC
BY THE ▇▇▇▇▇▇▇▇▇ COMPANY,
ITS MANAGING MEMBER
By /s/ ▇▇▇▇▇▇▇▇ ▇. Clear By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------------
▇▇▇▇▇▇▇▇ ▇. Clear ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer President
As to Section 5.1.8 and Exhibit I only
BURLINGTON CROSSING LLC
BY THE ▇▇▇▇▇▇▇▇▇ Company,
ITS MANAGING MEMBER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
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EXHIBIT "A"
PLAN SHOWING TENANT'S SPACE AND
LOCATION OF PROPOSED SIGNAGE AND
TESTING AREAS
(To be Supplied)
32
EXHIBIT "B"
LEGAL DESCRIPTION OF LOT
That certain parcel of land, together with the buildings and improvements
thereon, situated in the Town of Burlington, County of Middlesex, Commonwealth
of Massachusetts, and described as follows.
Said parcel is shown as ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and contains 7.781
acres, more or less, according to said Land Court Plan.
33
EXHIBIT "C"
[INTENTIONALLY DELETED]
34
EXHIBIT "D"
LANDLORD'S SERVICES
I. CLEANING.
A. General.
1. All cleaning work will be performed between 6:00 PM and
midnight, Monday through Friday, unless otherwise necessary
for stripping, waxing, etc.
2. Abnormal waste removal (e.g., bulk packaging, wood or
cardboard crates, refuse from cafeteria operation, etc.) shall
be Tenant's responsibility. Tenant's lunch room shall not be
deemed to be a cafeteria for purposes of this paragraph.
B. Daily Operations (once each weekday).
1. Tenant Areas.
a. Empty and clean all waste receptacles. Wash receptacles
as necessary.
b. Vacuum all rugs and carpeted areas.
c. Empty, damp-wipe and dry all ashtrays.
2. Lavatories.
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot-clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal
receptacles.
f. Refill toilet tissue, towel, soap and sanitary napkin
dispensers.
3. Public Areas.
a. Wipe down entrance doors and clean glass (interior and
exterior).
b. Vacuum elevator carpets and wipe down doors and walls.
C. Operations as Needed (but not less than every other day).
1. Tenant and Public Areas.
a. Buff all resilient floor areas every other day.
b. Clean water coolers.
35
D. Weekly Operations.
1. Tenant Areas, Lavatories, Public Areas
a. Hand dust and wipe clean all horizontal surfaces with
treated cloths to include exposed furniture, office
equipment, window ▇▇▇▇▇, door ledges, chair rails,
baseboards, convector tops, etc within normal reach.
b. Remove finger marks from private entrance doors, light
switches, and doorways.
c. Sweep all stairways.
E. Monthly Operations.
1. Tenant and Public Areas.
a. Thoroughly vacuum seat cushions on chairs, sofas, etc.
b. Vacuum and dust grillwork.
2. Lavatories.
a. Wash down interior walls and toilet partitions.
F. As Required and Weather Permitting (but not less than three times
per year).
1. Entire Building.
a. Clean inside of all windows.
b. Clean outside of all windows.
G. Yearly.
1. Tenant and Public Areas.
a. Strip and wax all resilient tile floor areas.
II. HEATING, VENTILATING AND AIR CONDITIONING.
1. Landlord shall provide and maintain in good order and repair during
the Term heating, ventilation and air conditioning as required to
provide reasonably comfortable temperatures for normal business day
occupancy (except holidays), Monday through Friday, from 8:00 AM to
8:00 PM, and Saturday from 8:00 AM to 1:00 PM if so requested by
Tenant by providing 24 hour notice. HVAC services beyond the
aforesaid hours of operation can be made available to Tenant, if so
requested by Tenant by providing 24 hour notice, at a cost of
approximately $15 per hour per unit.
2. Maintenance on any additional or special air conditioning equipment
and the associated operating cost will be at Tenant's expense.
36
III. WATER.
Hot water for lavatory purposes and cold water for drinking, lavatory and
toilet purposes.
IV. ELEVATORS (If building is elevated).
Elevators for the use of all tenants and the general public for access to
and from all floors of the Building, programming of elevators (including,
but not limited to, service elevators), shall be as Landlord from time to
time determines best for the Building as a whole.
V. RELAMPING OF LIGHT FIXTURES.
Relamping, ballasts and starters within the Premises.
VI. CAFETERIA, VENDING AND PLUMBING INSTALLATIONS.
1. Any space to be used primarily for lunchroom or cafeteria operation
shall be Tenant's responsibility to keep clean and sanitary.
Cafeteria, vending machines or refreshment service installations by
Tenant must be approved by Landlord in writing. All maintenance,
repairs and additional cleaning necessitated by such installations
shall be at Tenant's expense.
2. Except for restrooms contained in the Premises, Tenant is
responsible for the maintenance and repair of plumbing fixtures and
related equipment installed in the leased premises for its exclusive
use (such as in coffee room, cafeteria or employee exercise area).
3. Landlord shall be responsible to provide and maintain in good order
and repair during the Term hereof all plumbing and electrical
systems servicing the Premises.
VII. ELECTRICITY.
1. Tenant shall pay for all electricity consumed in Tenant's Space. The
consumption shall be measured by a separate submeter, and Tenant
shall pay for such consumption directly to Landlord. Tenant's use of
electrical energy in Tenant's Space shall not at any time exceed the
capacity of any of the electrical conductors or equipment in or
otherwise serving Tenant's Space. To ensure that such capacity is
not exceeded and to avert possible adverse effects upon the
Building's electrical system, Tenant shall not, without prior
written notice to Landlord in each instance, connect to the Building
electric distribution system any fixtures, appliances or equipment
which operates on a voltage in excess of 120 volts nominal, or make
any alteration or addition to the electric system of the Tenant's
Space. Tenant hereby further agrees (i) not to exceed the amperage
for the service panel without Landlord's prior written consent, and
(ii) to notify Landlord in the event. Tenant requires excess
voltage, whereupon the parties will cooperate and work with each
other to provide Tenant with such excess voltage, at Tenant's cost
and expense Unless Landlord shall reasonably object to the
connection of any such fixtures, appliances
37
or equipment, all additional risers or other equipment required
therefore shall be provided by Landlord and the cost thereto shall
be paid by Tenant upon Landlord's demand.
2. It is understood that the electrical service to the Premises may be
furnished by one or more suppliers of electricity and that the cost
of electricity may be billed as a single charge or divided into and
billed in a variety of categories such as distribution charges,
transmission charges, generation charges, public good charges and
other similar categories and may also include a reasonable fee,
commission or other charge by a broker, aggregator or other
intermediary for obtaining or arranging the supply of electricity.
Landlord shall, upon providing prior written notice to Tenant, have
the right to select the supplier of electricity to the Building,
Premises and Lot, and, as Tenant's agent, to designate the same to a
local utility, to aggregate the supply of electricity for the
Building, Premises and Lot with other buildings, to purchase
electricity for the Building, Premises and Lot through a broker,
aggregator or other intermediary and/or buyers group or other group
and to change the supplier of electricity and/or manner of
purchasing electricity from time to time.
If Landlord undertakes activities for the purpose of reducing
Landlord's or Tenant's operating costs, provided Landlord reasonably
anticipates such activities should reduce Landlord's or Tenant's
operating costs, (such as negotiating an agreement with a utility or
another energy supplier or engaging an energy consultant or
undertaking conservation or other energy efficient measures that may
require capital expenditures), Tenant shall pay its proportionate
share of all costs and expenses associated with such actions
(including but not limited to brokers' commissions, legal fees and
capital expenditures which shall be amortized in accordance with the
provisions of Section 4.2 of the Lease), as additional rent, as and
when payment is made by Landlord, so long as Tenant's approval has
been obtained by Landlord in advance, which such approval shall not
be unreasonably withheld or delayed by Tenant and which such
approval of Tenant shall only be required so long as Tenant remains
the sole tenant of the Building.
3. Utility lines and other facilities that supply the Premises,
whenever installed, may be the subject of a requirement that the
owner of the Premises make payments for the lines or other
facilities upon the occurrence of certain events, if, for example, a
tenant utilizing such facilities discontinues purchasing energy from
the provider of the facilities, Landlord may be required to enter
into agreements that would obligate it to make such payments in the
future. Landlord agrees to notify the Tenant of any such agreements,
any amendments, modifications, replacements or substitutions
thereto, Landlord hereby acknowledging that there are no such
agreements currently in force or effect. If such payments are
required, whether based on contract or tariff, from Landlord with
respect to such facilities that are utilized by the Tenant, the
Landlord shall so inform Tenant in writing, and the Tenant thereby
agrees that it shall reimburse the Landlord for its proportionate
share of all such payments as additional rent, when and as made by
the Landlord, with no profit to Landlord.
4. As used in this Section VII, the term "supplier(s) of electricity"
shall mean one or more companies (including but not limited to an
electric utility, generator, independent or non-regulated company
or intermediary or broker or group) that provides electricity to the
Premises or to the Landlord to be provided to the Premises, as the
case may be.
38
EXHIBIT "E"
RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators and stairways shall
not be encumbered or obstructed by Tenant, Tenant's agents, servants,
employees, licensees, and visitors be used by them for any purpose other
than for ingress and egress to and from the Premises. The moving in or out
of all safes, freight, furniture, or bulky matter of any description must
take place during the hours which Landlord may determine from time to
time. Landlord reserves the right to inspect all freight and bulky matter
to be brought into the Building and to exclude from the Building all
freight and bulky matter which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
2. No curtains, blinds, shades, screens, or signs other than those furnished
by Landlord shall be attached to, hung in, or used in connection with any
window or door of the Premises without the prior written consent of the
Landlord. Interior signs on doors shall be painted or affixed for Tenant
by Landlord or by sign painters first approved by Landlord, at the expense
of Tenant, and shall be of a size, color and style acceptable to Landlord.
3. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof without the prior written consent of
Landlord. Tenant must, upon the termination of its tenancy, restore to
Landlord all keys of stores, shops, booths, stands, offices and toilet
rooms, either furnished to or otherwise procured by Tenant, and in the
event of the loss of any keys so furnished, Tenant shall pay to Landlord
the cost thereof.
4. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same.
5. Tenant may request heating and/or air conditioning during other periods in
addition to normal working hours by submitting their request in writing to
the Building Manager's office no later than 2:00 PM the preceding workday
(Monday through Friday) on forms available from the Building Manager. The
request shall clearly state the start and stop hours of the "off-hour"
service. Tenant shall submit to the Building Manager a list of personnel
who are authorized to make such requests. Charges are to be determined by
the Building Manager on the additional hours of operations and shall be
fair and reasonable and reflect the additional operating costs involved.
6. Tenant shall comply with all security measures from time to time
established by Landlord for the Building.
7. The Building is a non-smoking building.
39
EXHIBIT "F"
[INTENTIONALLY DELETED]
40
EXHIBIT "G"
ESTOPPEL CERTIFICATE
(This may be edited for estoppel certificates requested of Landlord by Tenant)
THIS CERTIFICATE is made to
with respect to a Lease between as Landlord and the
undersigned, covering a building located in , such lease being dated ,
as amended by (list all amendments).
The undersigned has been advised that (the "Bank"), is about to
enter into a transaction whereby the Bank is making a loan secured by the
aforesaid real estate and the Lease to the undersigned, and under which the Bank
may acquire an ownership interest in such real estate. In connection with this
transaction, the entire interest of the Landlord under the Lease to the
undersigned will be assigned to the Bank. The undersigned acknowledges that the
Bank is and will be relying upon the truth, accuracy and completeness of this
letter in proceeding with the transaction described above.
The undersigned, for the benefit of the bank, their successors and
assigns, hereby certifies, represents, warrants, agrees and acknowledges that
1. The Lease is in full force and effect in accordance with its terms
without modification or amendment except as noted above and the
undersigned is the holder of the Tenant's/Landlord's interest under
the Lease.
2. The undersigned is in possession of all of the Premises described in
the Lease under and pursuant to the Lease and is doing business
thereon, and the premises are completed as required by the Lease.
3. The undersigned has no claims or offsets with respect to any of its
obligations as Tenant/Landlord under the Lease, and neither the
undersigned nor the Landlord/Tenant is claimed to be in default
under the Lease.
4. The undersigned Tenant has not paid any rental or installments
thereof in advance of the due date as set forth in the Lease.
5. The undersigned Tenant/Landlord has no notice of prior assignment,
hypothecation or pledge of rents of the Lease or the Landlord's
interest thereunder or of the Tenant's interest thereunder.
6. The term of the Lease has commenced and is presently scheduled to
expire on ______________________________. If there are any rights of
extension or renewal under the terms of the Lease, the same have
not, as of the date of this letter, been exercised.
7. Until such time as the Bank shall become the Landlord, if the
undersigned should assert a claim that the Landlord has failed to
perform an obligation to the undersigned under the
41
terms of the Lease or otherwise, notice thereof shall promptly be
furnished to the Bank, and the undersigned agrees that the undersigned
will not exercise any rights which the undersigned might otherwise have on
account of any such failure until notice thereof has been given to the
Bank, and the Bank has had the same opportunity to cure any such failure
as the Landlord may have under the terms of the Lease.
8. Each of the statements set forth in Paragraphs 1 through 7 are true,
accurate and complete except as follows (state specifically any
exception).
DATED:
ATTEST:
By:_____________________________________
By:_____________________________________
42
EXHIBIT "H"
OPTION TO EXTEND
Provided Tenant is not then in default under this Lease at the time of the
exercise thereof, Tenant shall have one (1) option to extend the term of this
Lease for a period of three (3) years. Such option to extend is to be exercised
by Tenant, notifying Landlord in writing thereof, at least twelve (12) months
prior to the end of the initial Term of this Lease. The exercise of such option
shall automatically extend the Term of this Lease, except that (i) there shall
be no additional option to extend after the termination of this option, and (ii)
the applicable Fixed Rent payable by Tenant during such extended term shall be
at ninety-five percent (95%) of the "Market Rent" as set forth herein.
The Market Rent for the Premises shall be determined as follows:
(a) The Market Rent shall be proposed by Landlord within ten (10) days
of receipt of Tenant's notice that it intends to exercise its option
to extend the Term (the "Landlord's Proposed Market Rent"). The
Landlord's Proposed Market Rent shall be the Market Rent unless
Tenant notifies Landlord, within ten (10) days of Tenant's receipt
of Landlord's Proposed Market Rent, that Landlord's Proposed Market
Rent is not satisfactory to Tenant (such notice being referred to as
"Tenant's Rejection Notice").
(b) If the Market Rent is not otherwise agreed upon by Landlord and
Tenant within ten (10) days after Landlord's receipt of Tenant's
Rejection Notice, then the Market Rent shall be determined by the
following appraisal procedure. Tenant shall provide Landlord with
notice specifying the name and address of the appraiser designated
by Tenant (the "Tenant's Appraisal Notice").
Landlord shall, within five (5) days after receipt of Tenant's
Appraisal Notice, notify Tenant of the name and address of the
appraiser designated by Landlord. Such two appraisers shall, within
twenty (20) days after the designation of the second appraiser, make
their determinations of the Market Rent in writing and give notice
thereof to each other and to Landlord and Tenant. Such two
appraisers shall have ten (10) days after the receipt of notice of
each other's determination to confer with each other and to attempt
to reach agreement as to the determination of the Market Rent. If
such appraisers shall concur in such determination, they shall give
notice thereof to Landlord and Tenant and such concurrence shall be
final and binding upon Landlord and Tenant. If such appraisers shall
fail to concur as to such determination within said ten (10) day
period, they shall give notice thereof to Landlord and Tenant and
such appraisers shall immediately designate a third appraiser. If
the two appraisers shall fail to agree upon the designation of such
third appraiser within ten (10) days after said ten (10) day period,
then they or either of them shall give notice of such failure to
agree to Landlord and Tenant, and if Landlord and Tenant fail to
agree upon the selection of such third appraiser within five (5)
days after the appraiser(s) appointed by the parties give notice as
aforesaid, then either party on behalf of both may apply to the
American Arbitration Association, or any successor thereto, or on
his or her failure, refusal, or inability to act, to a court of
competent jurisdiction, for the designation of such third appraiser
43
All appraisers shall be real estate appraisers or consultants who
shall have had at least seven (7) years continuous experience in the
business of appraising real estate in the suburban Boston area.
The third appraiser shall conduct such hearings and investigations
as he or she may deem appropriate and shall, within ten (10) days
after the date of his or her designation, make an independent
determination of the Market Rent.
(c) If none of the determinations of the appraisers varies from the
average of the determinations of the other appraisers by more than
ten percent (10%), the average of the determinations of the three
appraisers shall be the Market Rent for the Premises. If, on the
other hand, the determination of any single appraiser varies from
the average of the determinations of the other two appraisers whose
determinations are closest in number by more than ten percent (10%),
then the average of the determinations of the two closest appraisers
shall be the Market Rent. The determination of the appraisers, as
provided above, shall be conclusive and binding upon the parties and
shall have the same force and effect as a judgment made in a court
of competent jurisdiction. Each party shall pay the fees, costs and
expenses of the appraiser selected by it pursuant to this Exhibit
"H" (and its own counsel fees) and one-half (1/2) of all other
expenses and fees of any such third appraiser.
(d) In no event, however, shall Fixed Rent during the extension term be
less than $22 40 per square foot.
(e) In the event the Market Rent is not determined prior to the date on
which the extension term commences, Tenant shall pay the Fixed Rent
at the rate set forth in Landlord's Proposed Market Rent of
Paragraph (a) until the Market Rent is so determined in accordance
with the terms and conditions of this Exhibit "H". At the time
Market Rent is determined, Tenant shall pay to Landlord the excess
(if any) of the Market Rent over the Fixed Rent under Landlord's
Proposed Market Rent of Paragraph (a), for the portion of such time
period then having elapsed, or Landlord shall pay to Tenant or shall
credit Tenant's next installment of Fixed Rent due hereunder with
the excess (if any) of the Rent under Landlord's Proposed Market
Rent of Paragraph (a) over the Market Rent for the portion of such
time period then having elapsed.
44
EXHIBIT "I"
EXPANSION RIGHTS / RIGHT OF FIRST REFUSAL
In the event that, during the Term of this Lease, Tenant enters into a
direct lease with Landlord (or its affiliates, including without limitation,
affiliates of The ▇▇▇▇▇▇▇▇▇ Company) for at least 36,004 rentable square feet in
another building owned by Landlord or one of said affiliates, and further
provided that the rent under said new lease is at then Market Rent, as defined
in Exhibit "H" of this Lease, then Tenant shall be permitted to vacate the
Premises (as such term is described in this Lease) upon the commencement date of
the new lease, as though said commencement date where the originally
contemplated expiration date under this Lease. The foregoing provision shall be
binding upon the successors and assigns of Landlord and Tenant, expressly
excluding, however, any mortgagee of Landlord.
Additionally (but subject to Landlord's or The ▇▇▇▇▇▇▇▇▇ Company's or
either of their respective affiliates' own use of the Offer Space (defined
below) or plans for redevelopment of the building containing the Offer Space, as
more particularly described below), in no event shall Landlord decide to lease,
agree to lease, or accept any offer to lease additional space within the
adjacent 6,000 square foot building owned by Landlord's affiliate, Burlington
Crossing LLC, having an address of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ (the "Offer
Space") unless Landlord first affords Tenant an opportunity to lease the Offer
Space in accordance with the provisions of this Exhibit "I" and only after
written notice to Tenant. Such notice shall contain the proposed essential terms
with respect to the Offer Space (Landlord's summary thereof shall herein be
referred to as the "Offer"). The Offer shall set forth all of the essential
terms and conditions upon which Landlord proposes to lease the Offer Space to
Tenant. Upon receipt of the Offer from Landlord, and provided further that there
does not then exist an uncured, continuing Event of Default under this Lease and
provided further that the Tenant specified in Section 1.1 hereof or an entity
that controls Tenant, or is controlled by or with Tenant, is then leasing and
occupying at least 75% of the rentable square feet of the Premises, then Tenant
shall have a right to lease the Offer Space by giving notice to Landlord to such
effect within fourteen (14) days after Tenant's receipt of Landlord's notice of
such Offer. If such notice is not so timely given by Tenant, then Landlord shall
be free to lease the Offer Space, or portion thereof, to any third party on any
terms and conditions it determines in its sole discretion at any time after the
expiration of said fourteen (14) day period.
Notwithstanding anything to the contrary in this Exhibit "I", if Tenant
notifies Landlord of its election to lease the Offer Space and then fails to
execute and deliver the required amendment to this Lease (or separate lease
agreement, as applicable) once the same has been mutually agreed upon by
Landlord and Tenant in accordance with this Exhibit "I" then (i) Tenant shall be
deemed to have waived its rights to lease the Offer Space under this Exhibit
"I," (ii) Landlord shall have the unrestricted right to lease such space upon
whatever terms and conditions as are negotiated by Landlord in its sole
discretion, and (iii) Tenant's right of first offer under this Exhibit "I" shall
become null and void and of no further force and effect. The recording by the
Landlord of an affidavit to such effect shall be conclusive evidence of the
termination or waiver of Tenant's first offer option hereunder. Otherwise, if
the Landlord and Tenant, each acting reasonably and in good faith, fail to agree
on a mutually agreeable form of amendment to this Lease (or separate lease
agreement, as the case may be) within said thirty (30) day period upon receipt
of Landlord's proposed form of agreement, unless such date is extended by mutual
agreement of both parties hereto, then such failure shall be treated as a
non-exercise by Tenant of its right of first refusal, with the consequence that
Landlord shall be free to lease the Offer Space or any
45
portion thereof to any third party, but if the Offer Space should once again
become available thereafter, then at that time Tenant shall once again have the
right of first refusal set forth in this Exhibit "I".
As aforesaid, Tenant's right hereunder are expressly subject and
subordinate to Landlord's (or its affiliates') own use of the Offer Space or
plans for redevelopment of the building containing the Offer Space. Landlord
agrees that either Landlord, The ▇▇▇▇▇▇▇▇▇ Company, or either of their
respective affiliates', as the case may be, shall notify Tenant in writing of
any such exercise of this reserved right, whereupon Tenant's right of first
refusal on the Offer Space shall become null and void
46
EXHIBIT "J"
[INTENTIONALLY DELETED]
47
EXHIBIT "K"
LESSEE'S LEASE STATEMENT AND
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made as of the 29th day of October, 2002, by and between
iRobot Corporation, having an address of Twin City ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessee") and
Fleet National Bank, having a place of business at
_________________________________________________________________ (hereinafter
referred to as "Mortgagee").
WHEREAS, Mortgagee has made a mortgage loan to Burlington Crossing Office
LLC, as successor in title to Burlington Crossing LLC, (hereinafter referred to
as "Lessor"), secured by a Mortgage and Security Agreement dated May 31, 1996,
and filed with the Middlesex South District Registry of Deeds (Registered Land
Section) as Document No. 1004035, as affected by an Intercreditor Agreement
dated May 31, 1996, and filed with said Deeds as Document No. 1004039, as
affected by a Modification to Construction Mortgage and Security Agreement and
Collateral Assignment of Leases and Rents dated as of December 23, 1997, and
filed with said Deeds as Document No. 1050675, and as further affected by an
Assumption Agreement and Consent of Mortgagee dated as of April 7, 1998, and
filed with said Deeds as Document No. 1062313 (collectively, the "Mortgage") on
land owned by Lessor located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (the
"Premises"), upon which is located a building containing approximately
eighty-one thousand six hundred and eighty-five (81,685) square feet
(hereinafter referred to as the "Building").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Lessee and Mortgagee do hereby agree as follows
1. Lessee hereby certified and represents to Mortgagee that
(i) it has entered into a written lease with Lessor (the "Lease") dated
October 29, 2002, for a portion of the Building (the "Demised
Premises") to be located on the Premises, notice of which Lease is
recorded with the Middlesex South District Registry of Deeds
(Registered Land Section) herewith,
(ii) there presently exists no default in the performance of the Lease by
the Lessor, and the Lease is presently in full force and effect, and
(iii) Lessee holds no claim against the Lessor when might be set-off
against accruing rentals.
2. Lessee and Mortgagee hereby consent and agree that
(i) the Lease shall be, and the same hereby is, made subordinate in each
and every respect to the lien of the Mortgage and to all advances
made thereunder (and under the Construction Loan Agreement executed
simultaneously therewith), and
(ii) any of the foregoing notwithstanding, if the interests of Lessor in
the Premises shall be acquired by Mortgagee by reason of foreclosure
of the Mortgage or other proceedings
48
brought to enforce the rights of Mortgagee, by deed in lieu of
foreclosure or by and other method, or acquired by any other
purchaser or purchasers pursuant to the foreclosure sale (Mortgagee
or such purchaser(s), as the case may be, being referred to as
"Purchaser"), the Lease and the rights of Lessee thereunder shall
continue in full force and effect and shall not be terminated or
disturbed, except in accordance with the terms of the Lease. Lessee
shall be bound to Purchaser under all the terms, covenants, and
conditions of the Lease for the balance of the term thereof
remaining, and any extensions or renewals thereof which may be
effected in accordance with any option therefor contained in the
Lease, with the same force and effect as if Purchaser were the
Lessor under the Lease provided.
(a) Lessee is not in default after expiration of any applicable
grace or notice periods under the Lease under any provision of
the Lease or this Agreement at the time Mortgagee exercises
any such right, remedy or privilege,
(b) the Lease at that time is in force and effect according to its
original terms or with such amendments or modifications as
Mortgagee shall have approved as provided below,
(c) Lessee thereafter continues to fully and punctually perform
all of its obligations under the Lease without default
thereunder, and
(d) Lessee attorns to Purchaser as provided below, and
(iii) in the event of any foreclosure of the Mortgage by Mortgagee, its
successors or assigns, or at the request of Mortgagee at any time
pursuant to the assignment of the Lease to Mortgagee, Lessee will
recognize Mortgagee, its successors and assigns, or any Purchaser,
as the new lessor under the Lease will attorn to and continue to be
bound by each and every term of the Lease, and upon such attornment,
the Lease and the rights of Lessee shall continue in full force and
effect as if it were a direct Lease between Mortgagee, or any
Purchaser, and Lessee upon all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, provided, however, Mortgagee, or any Purchaser, shall not
be:
(a) liable for any act or omission of any prior landlord
(including Lessor), or
(b) responsible for the cure of any default under the Lease
arising prior to the time Mortgagee or such Purchaser takes
possession of the Premises, or
(c) subject to any offsets or defenses which Lessee might have
against any prior landlord (including Lessor), or
(d) bound by any rent or additional rent which Lessee might have
paid for more than the then current month and/or month
immediately following the then current month to any prior
landlord (including Lessor), or
(e) bound by any agreement or modification of the Lease made
without Mortgagee's written consent, or
49
(f) liable for any security deposit or other sums held by any
prior landlord (including Lessor) unless the same was actually
received by Mortgagee, or
(g) required to rebuild the Building or any part thereof in the
event of casualty damage to or condemnation of any material
portion of the Building or the Demised Premises, or
(h) required to complete any construction of or renovations to the
Demised Premises and/or the Building, notwithstanding any
obligations of the Lessor with respect thereto under the
Lease.
(iv) Mortgagee may at any time unilaterally subordinate (or cause to be
subordinated) the lien of the Mortgage on the Premises to the Lease.
3. Lessee hereby acknowledges receipt of notice that pursuant to an
Assignment of Leases and Rents from Lessor, all leases and rents involving
the Building, including the Lease of Lessee, are assigned to the Mortgagee
as security for its loan, hereby acknowledges that it has received no
notice of any sale, transfer or assignment of the Lease or of rentals
thereunder by Lessor, other than pursuant to said Assignment of Leases and
Rents, and hereby agrees that it will not (i) join in any material change
or modification of the Lease so as to reduce the rent, change the Term, or
otherwise materially change the rights of Landlord under the Lease, or to
relieve Tenant of any obligations or liability under the Lease, (ii)
anticipate rentals thereunder, or (iii) agree to terminate or cancel the
Lease or surrender said Premises, without the prior written consent of
Mortgagee.
4. Lessee hereby agrees that upon Mortgagee's demand, it will make all
payments of rent then and thereafter due to Lessor directly to Mortgagee
and not to Lessor or any independent rental agent which Lessor might at
any time utilize.
5. Lessee hereby agrees that the interest of the Lessor in the Lease has been
assigned to Mortgagee solely as security for the purposes indicated in the
said Assignment of Leases and Rents, and that, until such time as
Mortgagee has taken possession of the Premises and exercised its rights
under said Assignment of Leases and Rents, Mortgagee assumes no duty,
liability or obligation whatever under the Lease, or any extension or
renewal thereof, by virtue of said Assignment of Leases and Rents.
6. Lessee hereby agrees to notify Mortgagee, its successors and assigns of
any default on the part of Lessor under the Lease and grants to Mortgagee,
it successors and assigns, the right and opportunity to cure any such
default.
7. This Agreement shall be binding upon and shall more to the benefit of
Lessee and Mortgagee and their respective heirs, executors,
administrators, successors and assigns, as the case may be.
[Signatures continue on next consecutive page]
50
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, under seal,
as of the day and year first written above
WITNESS LESSEE
iROBOT CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title President
/s/ M. ▇▇▇▇▇ ▇▇▇▇▇ By M. ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title Treasurer & Sr. Vice President
WITNESS MORTGAGEE
FLEET NATIONAL BANK
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ Aidan home
----------------------------- ----------------------
Title vice president
By_______________________
Title____________________
STATE OF MASSACHUSETTS
COUNTY OF MIDDLESEX
10/29, 2002
THEN personally appeared before me ▇▇▇▇▇ ▇▇▇▇▇▇▇, as President of iRobot
Corporation, and acknowledged the foregoing instrument to be his/her free act
and deed as ___________________________, as aforesaid, and the free act and deed
of said corporation
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
NOTARY PUBLIC
My Commission Expires
[Notarial acknowledgements continue on next consecutive page]
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NOTARY PUBLIC
Commonwealth of Massachusetts
My Commission Expires Sept. 4, 2009
51
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF _________ 10/29, 2002
THEN personally appeared before me M. ▇▇▇▇▇ ▇▇▇▇▇, as Treasurer of iRobot
Corporation, and acknowledged the foregoing instrument to be his/her free act
and deed as ____________________________, as aforesaid, and the free act and
deed of said corporation
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
NOTARY PUBLIC
My Commission Expires
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NOTARY PUBLIC
Commonwealth of Massachusetts
My Commission Expires Sept. 4, 2009
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK 11/8, 2002
THEN personally appeared before me ▇▇▇▇▇ ▇▇▇▇, as Vice President, of Fleet
National Bank, and acknowledged the foregoing instrument to be his/her free act
and deed as Vice President, as aforesaid, and the free act and deed of said
Fleet National Bank
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
NOTARY PUBLIC
Commonwealth of
My Commission Expires ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC
My commission expires Mar 4, 2005
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK __________ , 2002
THEN personally appeared before
me_________________________________________________, as _____________________ of
Fleet National Bank, and acknowledged the foregoing instrument to be his/her
free act and deed as ___________________________, as aforesaid, and the free
act and deed of said Fleet National Bank
_________________________________
NOTARY PUBLIC
My Commission Expires
52
Instrument No. 1241646
recorded 11/27/02
NOTICE OF LEASE
In accordance with the provisions of Massachusetts General Laws (Ter Ed)
Chapter 183, Section 4, as amended, notice is hereby given of a certain lease
(hereinafter referred to as the "Lease") dated as of October 29, 2002 by and
between BURLINGTON CROSSING OFFICE, LLC (hereinafter referred to as "Landlord")
and iROBOT CORPORATION (hereinafter referred to as "Tenant").
WITNESSETH
1. The address of the Landlord is ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇
▇▇▇▇▇▇▇.
2. The address of the Tenant is Twin City Office Center, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
3. The Lease was executed on October 29, 2002.
4. The Term of the Lease is six (6) years and one (1) month, beginning on the
Commencement Date, which is December 1, 2002.
5. The demised premises is approximately 24,004 square feet of space on the 1st
floor of the building (the "Building") located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ of Middlesex, Commonwealth of Massachusetts, commonly known at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, more particularly described on Exhibit "A" attached hereto and made a
part hereof.
6. Subject to the provisions of Exhibit "H" of the Lease, the Tenant has the
option to extend the Term of the Lease for one (1) additional period of three
(3) years.
7. Subject to the provisions of Section "I" of the Lease, Tenant has a right of
first offer for space within the adjacent 6,000 square foot building owned by
Landlord's affiliate, Burlington Crossing LLC, having an address of ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
(Continued on next page)
This Notice of Lease has been executed merely to give notice of the Lease,
and all of the terms, conditions and covenants of which are incorporated herein
by reference. The parties hereto do not intend this Notice of Lease to modify or
amend the terms, conditions and covenants of the Lease which are incorporated
herein by reference.
IN WITNESS WHEREOF, the parties hereto have duly executed this Notice of
Lease as of this 29th day of October, 2002.
TENANT LANDLORD
iROBOT CORPORATION BURLINGTON CROSSING OFFICE LLC
BY THE ▇▇▇▇▇▇▇▇▇ COMPANY,
ITS MANAGING MEMBER
By. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By. /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------- --------------------------------
Name ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title President Title EVP and Assistant Treasurer
By /s/ M ▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name M ▇▇▇▇▇ ▇▇▇▇▇
Title Treasurer
2
COMMONWEALTH OF MASSACHUSETTS
middlesex, ss 10/29/2002
Then personally appeared before me ▇▇▇▇▇ ▇▇▇▇▇▇▇ the President of iRobot
Corporation, and acknowledged the foregoing instrument to be his free act and
deed, and the free act and deed of iRobot Corporation.
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
NOTARY PUBLIC
My Commission Expires
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NOTARY PUBLIC
Commonwealth of Massachusetts
My Commission Expires Sept. 4, 2009
COMMONWEALTH OF MASSACHUSETTS
middlesex, ss 10/29/2002
Then personally appeared before me ▇▇▇▇ ▇ ▇▇▇▇▇▇▇, the Executive Vice President
and Assistant Treasurer of Burlington Crossing office LLC, and acknowledged the
foregoing instrument to be his free act and deed, and the free act and deed of
Burlington Crossing Office LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
NOTARY PUBLIC
My Commission Expires 4-9-04
3
EXHIBIT "A"
That certain parcel of land, together with the buildings and improvements
thereon, situated in the Town of Burlington, County of Middlesex, Commonwealth
of Massachusetts, and described as follows.
Said parcel is shown as ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and contains 7.781
acres, more or less, according to said Land Court Plan.
For title reference see Certificate of Title No 211190, Book 1186, Page 40
414048 vl
4
FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "Amendment") is made as of April 23,
2003 between BURLINGTON CROSSING OFFICE LLC, a Massachusetts limited liability
company, having its offices located at c/o. The ▇▇▇▇▇▇▇▇▇ Company, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Landlord")
and iROBOT CORPORATION, a Delaware corporation, having its offices located at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Tenant")
WITNESSETH THAT
WHEREAS, by instrument dated October 29,2002 (the "Lease"), the Landlord
demised to Tenant 24,004 rentable square feet located on a portion of the first
(1st) floor of the building (the "Building") known as ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (said 24,004 rentable square feet of space being
defined in Section 2.1 of the Lease as the "Premises"), and
WHEREAS, Landlord and Tenant desire to amend the Lease to expand the
Premises to include 10,210 rentable square feet of additional space located on
another portion of the first (1st) floor of the Building (the "Additional
Premises"),
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and the mutual covenants and agreements herein
contained, Landlord and Tenant hereby agree as follows:
1. Initial capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Lease.
2. The following amendments are hereby made to the Lease, which amendments
shall be effective as of June 1,2003.
(a) Article 1 of the Lease is amended by deleting Article 1 in its
entirety and by replacing the same with Article 1 attached hereto as
Schedule 1.
(b) Schedule 2 of this Amendment is added to the Lease as a new Exhibit
"A-1".
(c) Section 2.1 of the Lease is amended by deleting the last sentence of
the first paragraph thereof and replacing it with the following:
"The Premises is depicted on the plans attached hereto as Exhibit
"A" and Exhibit A-1". The portion of the Premises depicted on
Exhibit "A" is hereafter referred to as the "Original Premises," and
the portion of the Premises depicted on Exhibit A-1" is hereafter
referred to as the "Additional Premises" Commencing on June 1,2003,
the
1
term "Premises" shall mean the Original Premises together with the
Additional Premises".
(d) Article 3 is amended by adding thereto a new Section 3.5, as
follows:
"3.5. ADDITIONAL PREMISES
The Additional Premises shall be delivered to Tenant on June
1,2003, in "as is" condition, subject to a general clean-up of the
space to include "touch-up" painting where necessary and the
construction of two double door wide passage ways between the
Original Premises and the Additional Premises Landlord represents
that the Building's systems are in good working condition".
3. Landlord and Tenant each represent and warrant that it has dealt with no
broker, other than ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Partners, in connection with
this Amendment and agree to defend, indemnify and save the other party
harmless from and against any and all claims for a commission arising out
of this Lease made by anyone other than the aforementioned broker.
4. Except as modified by this Amendment, the Lease is hereby ratified and
confirmed.
5. This Amendment may be signed in any number of counterparts and each
thereof shall be deemed to be an original and all such counterparts shall
be but one and the same agreement.
6. Landlord's obligations to perform hereunder are subject to the condition
precedent that Landlord's Mortgagee approves of this Amendment by
executing and delivering to Landlord the Mortgagee's Consent form attached
hereto as Schedule 3.
7. Tenant's obligation to perform its covenants and agreements hereunder is
subject to the condition precedent that this First Amendment to Lease be
approved by Tenant's Board of Directors Unless Tenant gives Landlord
written notice within ten (10) days after the date hereof that the Board
disapproves this First Amendment to Lease, then this condition shall be
deemed to have been satisfied or waived and the provisions of this Section
7 shall be of no further force or effect. If Tenant provides such notice
of disapproval to Landlord, then all of Landlord's and Tenant's
obligations hereunder shall be deemed terminated and this First Amendment
to Lease shall terminate without recourse to the parties hereto.
2
Executed as an instrument under seal as of the date first above written
TENANT LANDLORD
iROBOT CORPORATION BURLINGTON CROSSING OFFICE LLC
A Massachusetts limited liability company,
BY THE ▇▇▇▇▇▇▇▇▇ COMPANY,
Managing Member
By /s/ ▇▇▇▇▇▇▇▇ ▇. Clear
---------------------
Name ▇▇▇▇▇▇▇▇ ▇. CLEAR
Title CHIEF FINANCIAL OFFICER
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Executive Vice President
3
SCHEDULE 1
Date of Lease Execution October 29, 2002
REFERENCE DATA
1.1. SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following subjects shall
incorporate the data stated for that subject in this Section 1.1.
LANDLORD Burlington Crossing Office LLC
MANAGING AGENT The ▇▇▇▇▇▇▇▇▇ Company
LANDLORD'S AND MANAGING
AGENT'S ADDRESS Burlington ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LANDLORD'S REPRESENTATIVE ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
TENANT iRobot Corporation
TENANT'S ADDRESS (FOR NOTICE
& BILLING) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT'S REPRESENTATIVE ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
BUILDING ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
FLOOR 1
TENANT'S SPACE Such space shown on the plans attached hereto as
Exhibit "A" and Exhibit "A-1", located within the
Building on Floor 1
RENTABLE FLOOR AREA OF
TENANT'S SPACE (a) As to the Original Premises
24,004 square feet on the First Floor
(b) As to the Additional Premises
10,210 square feet on the First Floor
(c) Total "Rentable Floor Area of Tenant's
Space" 34,214 square feet
4
TOTAL RENTABLE FLOOR AREA
OF THE BUILDING 81,685 square feet
SCHEDULED TERM
COMMENCEMENT DATE December 1, 2002
TERM EXPIRATION DATE December 31, 2008
APPROXIMATE TERM Six years and one month from the Commencement
Date for the Original Premises
FIXED RENT June 2003 - July 2003 $9.90/RSF /Annum
$28,226.55 Monthly
August 2003 - January 2004 $11.90/RSF /Annum
$33,928.88 Monthly
February 2004-December 2004 $17.40/RSF/Annum
$49,610.30 Monthly
January 2005-December 2005 $19.40/RSF/Annum
$55,312.63 Monthly
January 2006-December 2006 $20.40/RSF/Annum
$58,163.80 Monthly
January 2007-December 2007 $21.40/RSF/Annum
$61,014.97 Monthly
January 2008-December 2008 $22.40/RSF/Annum
$63,866.13 Monthly
MONTHLY FIXED RENT For each month during the Term, the Monthly Fixed
Rent amount set forth above
ANNUAL ESTIMATED OPERATING
COSTS Actual current year 2003 (approximately $7.25 per
rentable square foot included in the Fixed Rent)
ESTIMATED COST OF ELECTRICAL
SERVICE TO TENANT'S SPACE To be separately sub-metered in accordance with
Exhibit "D". The anticipated cost of such
electricity is $0.90 per rentable square foot per
annum
FIRST FISCAL YEAR FOR TENANT'S
PAYING OPERATING COST
ESCALATION Year beginning January 1, 2004
SECURITY DEPOSIT See Article 1.1
GUARANTOR(S) None
5
PERMITTED USES The development, marketing, manufacturing,
machining, sale and delivery of robots and
associated technology and the providing of
professional services in connection therewith
REAL ESTATE BROKER(S) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Partners
PUBLIC LIABILITY INSURANCE BODILY INJURY AND PROPERTY DAMAGE
EACH COVERAGE $1,000,000.00
AGGREGATE $2,000,000.00
1.2. EXHIBITS.
The Exhibits listed below in this Section are incorporated in this Lease by
reference and are to be construed as part of this Lease.
EXHIBIT A Plan Showing Tenant's Space
EXHIBIT A-1 Plan Showing Tenant's Additional Space
EXHIBIT B Legal Description of Lot
EXHIBIT C Intentionally Deleted
EXHIBIT D Landlord's Services
EXHIBIT E Rules and Regulations
EXHIBIT F Intentionally Deleted
EXHIBIT G Estoppel Certificate
EXHIBIT H Option to Extend
EXHIBIT I Expansion Rights / Right of First Refusal*
EXHIBIT J Intentionally Deleted
EXHIBIT K Subordination, Non-Disturbance and Attornment Agreement
6
SCHEDULE 2
EXHIBIT A-1.1
Plan Showing Tenant's Space (Additional Premises)
[TO BE PROVIDED]
7
SCHEDULE 3
CONSENT OF MORTGAGEE
The undersigned Mortgagee hereby consents and approves the terms and
provisions set forth in this First Amendment to Lease dated as of April 23, 2003
by and between BURLINGTON CROSSING OFFICE LLC ("Landlord") and iROBOT
CORPORATION ("Tenant").
MORTGAGEE
FLEET NATIONAL BANK
/s/ [ILLEGIBLE] By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------ --------------------------
Witness Name ▇▇▇▇▇ ▇. ▇▇▇▇
Title VICE PRESIDENT
Date 5/5/03
8
EXHIBIT "I"
EXPANSION RIGHTS / RIGHT OF FIRST REFUSAL
In the event that, during the Term of this Lease, Tenant enters into a
direct lease with Landlord (or its affiliates, including without limitation,
affiliates of The ▇▇▇▇▇▇▇▇▇ Company) for at least 51,321 rentable square feet in
another building owned by Landlord or one of said affiliates, and further
provided that the rent under said new lease is at then Market Rent, as defined
in Exhibit "H" of this Lease, then Tenant shall be permitted to vacate the
Premises (as such term is described in this Lease) upon the commencement date of
the new lease, as though said commencement date where the originally
contemplated expiration date under this Lease. The foregoing provision shall be
binding upon the successors and assigns of Landlord and Tenant, expressly
excluding, however, any mortgagee of Landlord.
Additionally (but subject to Landlord's or The ▇▇▇▇▇▇▇▇▇ Company's or either of
their respective affiliates' own use of the Offer Space (defined below) or plans
for redevelopment of the building containing the Offer Space, as more
particularly described below), in no event shall Landlord decide to lease, agree
to lease, or accept any offer to lease additional space within the adjacent
6,000 square foot building owned by Landlord's affiliate, Burlington Crossing
LLC, having an address of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ (the "Offer Space")
unless Landlord first affords Tenant an opportunity to lease the Offer Space in
accordance with the provisions of this Exhibit "I" and only after written notice
to Tenant Such notice shall contain the proposed essential terms with respect to
the Offer Space (Landlord's summary thereof shall herein be referred to as the
"Offer"). The Offer shall set forth all of the essential terms and conditions
upon which Landlord proposes to lease the Offer Space to Tenant. Upon receipt of
the Offer from Landlord, and provided further that there does not then exist an
uncured, continuing Event of Default under this Lease and provided further that
the Tenant specified in Section 1.1 hereof or an entity that controls Tenant, or
is controlled by or with Tenant, is then leasing and occupying at least 75% of
the rentable square feet of the Premises, then Tenant shall have a right to
lease the Offer Space by giving notice to Landlord to such effect within
fourteen (14) days after Tenant's receipt of Landlord's notice of such Offer. If
such notice is not so timely given by Tenant, then Landlord shall be free to
lease the Offer Space or portion thereof, to any third party on any terms and
conditions it determines in its sole discretion at any time after the expiration
of said fourteen (14) day period.
Notwithstanding anything to the contrary in this Exhibit "I", if Tenant notifies
Landlord of its election to lease the Offer Space and then fails to execute and
deliver the required amendment to this Lease (or separate lease agreement, as
applicable) once the same has been mutually agreed upon by Landlord and Tenant
in accordance with this Exhibit "I," then (i) Tenant shall be deemed to have
waived its rights to lease the Offer Space under this Exhibit "I," (ii) Landlord
shall have the unrestricted right to lease such space upon whatever terms and
conditions as are negotiated by Landlord in its sole discretion, and (iii)
Tenant's right of first offer under this Exhibit "I" shall become null and void
and of no further force and effect. The recording by the Landlord of an
affidavit to such effect shall be conclusive evidence of the termination or
waiver of Tenant's first offer option hereunder. Otherwise, if the Landlord and
Tenant, each acting reasonably and in good faith, fail to agree on a mutually
agreeable form of amendment to this Lease (or separate lease agreement, as the
case may be) within said thirty (30) day period upon receipt of Landlord's
proposed form of agreement, unless such date is extended by mutual agreement of
both parties hereto, then such failure shall be treated as a non-exercise by
Tenant of its right of first refusal, with the consequence that Landlord shall
be free to lease the Offer Space or any
portion thereof to any third party, but if the Offer Space should once again
become available thereafter, then at that time Tenant shall once again have the
right of first refusal set forth in this Exhibit "I".
As aforesaid, Tenant's right hereunder are expressly subject and
subordinate to Landlord's (or its affiliates') own use of the Offer Space or
plans for redevelopment of the building containing the Offer Space. Landlord
agrees that either Landlord, The ▇▇▇▇▇▇▇▇▇ Company, or either of their
respective affiliates', as the case may be, shall notify Tenant in writing of
any such exercise of this reserved right, whereupon Tenant's right of first
refusal on the Offer Space shall become null and void.
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (this "Amendment") is made as of the 22nd
day of February, 2005, between Burlington Crossing Office LLC, a Massachusetts
limited liability company, having its offices at c/o The ▇▇▇▇▇▇▇▇▇ Company, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Landlord") and iRobot Corporation, a Delaware corporation, having its offices
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as the "Tenant").
WITNESSETH THAT
WHEREAS, by instrument dated October 29, 2002, as amended by a First
Amendment to Lease dated April 23, 2003 (collectively, the "Lease") Landlord
demised to Tenant certain premises consisting of 34,314 rentable square feet of
tenant space (the "Premises"), located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, and as more particularly described in the Lease (the "Building"),
and.
WHEREAS, Landlord and Tenant desire to amend the Lease to expand the
Premises to (i) include the balance of the first floor consisting of 24,120
square feet currently occupied by ▇▇▇▇▇ Clinic Hospital, Inc ("Lahey"), except
for a communications closet shown on Schedule 1 attached hereto and made a part
hereof (the "Data Closet"), which shall be used by Tenant on a non-exclusive
basis with other tenant(s) of the Building, currently Lahey, pursuant to the
terms of a separate agreement between Tenant and Lahey, as hereinafter provided
in Paragraph 5(i) below (the "First Floor Space"), (ii) to provide for the
modification to and lease of the 6,150 square foot ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building for
Tenant's use, (iii) to provide for a possible expansion workshop of 3,000 square
feet to the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building, (iv) to provide for the use of temporary
space at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, and (v) to address certain other matters as set forth
herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and the mutual covenants and agreements herein
contained, Landlord and Tenant hereby agree as follows:
1. Initial capitalized terms used herein, but not defined herein, shall
have the meanings ascribed to them in the Lease.
2. Section 2.1 of the Lease is hereby amended by adding the following
paragraphs at the end of said Section.
"2.1.1 Temporary Space - Landlord and Tenant hereby acknowledge and agree
that Tenant shall have the right to use and occupy the Temporary Space (as
hereinafter defined), subject to all the terms and provisions of this Section or
elsewhere in this Lease, except as otherwise provided herein to the contrary,
until such time as the full renovations to 33 Second
1
Avenue ("33 Second Avenue Work") (as hereinafter defined in Section 2.1.1A
below) is completed and ready for Tenant's occupancy, or in the event that
Landlord is unable to obtain the required permits for the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work,
as hereinafter provided, until December 31, 2005. Alternatively, in the event
that Landlord is unable to obtain the required permits necessary to fully
renovate the entire ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building, then Tenant shall have the
option, exercisable within thirty (30) days of receipt of Landlord's notice that
it has been unsuccessful in obtaining the necessary permits for the construction
of the Workshop, to continue to use and occupy the Temporary Space, subject to
the terms and provisions of this Lease, except that the Fixed Rent due for
Tenant's continued occupancy of the Temporary Space shall be $1.00 per square
foot per annum paid monthly in advance, and Tenant shall be responsible to make
any such additional improvements to the Temporary Space as may be required by
the Building Inspector or other applicable authorities of the Town of
Burlington. Any additional improvements requested by Tenant, and so required as
aforesaid, shall be performed by GCCI, at Tenant's cost, specifically at cost
plus ten percent (10%). Otherwise, Tenant shall vacate and surrender the
Temporary Space in accordance with the provisions of Section 6.1.2 hereof. The
parties hereby further agree to execute an amendment to this Lease, upon the
request of either party, confirming the permanent addition of the Temporary
Space to the "Premises" hereunder in the event that Tenant elects to continue
its occupancy thereof (i.e., the term "Premises" shall be expanded to include
the Temporary Space and a new rent schedule shall be provided). Landlord has
made certain temporary renovation improvements to approximately 2,755 square
feet of the building located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Temporary Space").
Landlord has been paid by Tenant for the cost of such Temporary Space
improvements. Except for the $1.00 per square foot set forth previously in this
section, Tenant shall not be required to pay Fixed Rent on the Temporary Space,
but will reimburse Landlord its pro rata share of taxes and utilities allocable
to the Temporary Space, as additional rent, on a monthly basis from November 1,
2004 until the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work is completed, or until its lease of the
Temporary Space is terminated as provided in this Section 2.1.1, after which
event Section 2.1.1A shall apply.
2.1.1A ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work - Tenant has requested Landlord renovate the 6,150
square foot ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building and provide an exclusive adjacent area in
the current parking lot for testing of an additional approximately 8,500 square
feet (such testing area to be protected by jersey barriers and/or fencing) and
other rough terrain testing space on the slopes and drive at the southwest
corner of the lot to also be made available for Tenant's use until the end of
the Term, as hereinafter provided in this Section 2.1.1A. A portion of the ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ building is currently being used as the Temporary Space. Landlord
has provided Tenant with initial plans titled "33 ▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
iRobot - Expansion Building Options, Drawing A -1 (Tenant Review & Pricing)
1/6/05," attached as Schedule 3, and Site Plan - Proposed Option "B", ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, dated 12/8/04, attached as Schedule 3-A, and an initial
estimate of the approximate cost of such ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work of one hundred
eighty-three thousand four hundred seventy-nine ($183,479) dollars and, if
requested by Tenant, an additional two hundred fourteen thousand five hundred
ninety-nine ($214,599) dollars for the Workshop. Upon execution of this
Amendment and receiving Tenant's electrical requirements from Tenant, Landlord,
or at Tenant's option and sole expense a third party architect, reasonably
acceptable to Landlord, will prepare more detailed plans for construction and
bidding for the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work and will present them to Tenant for
2
approval. Once such construction plans have been approved by Tenant, Landlord
will obtain bids for such work and will present Tenant with a not to exceed cost
for such work ("Cost of the Work"). Included in the Cost of the Work shall be
general conditions and the cost of GCCI's overhead and profit equal to seven
percent (7%) of such work, and a five percent (5%) contingency reserve. Landlord
will not expend the five percent (5%) contingency reserve without first
informing Tenant. Tenant agrees to reimburse Landlord as set forth later in this
Section 2.1.1A for the actual cost of said work not to exceed the Cost of the
Work unless there is a change in scope or Tenant approved change order. Upon
written approval by Tenant of the Cost of the Work, Landlord agrees to use
reasonable efforts to have the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work completed so that the work
is completed within three (3) months following approval by Tenant of Landlord's
construction and bidding plans and Cost of the Work (the "Scheduled Completion
Date"), which completion date shall, however, be extended for a period equal to
that of any delays due to governmental regulations, unusual scarcity of or
inability to, obtain labor or materials, labor difficulties, casualty or other
causes reasonably beyond Landlord's control. The ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work shall be
deemed completed, and rent payable thereon shall commence on the earlier of (a)
the date on which Tenant occupies any part of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building
other than the Temporary Space, (b) the date on which the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work
is substantially completed as certified by Landlord ("33 Second Avenue Rent
Commencement Date"). Landlord shall permit Tenant access for installing its own
equipment furnishings in the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building if it can be done without
material interference with Landlord's remaining work. Notwithstanding the
foregoing provisions, if the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work is not complete and the
building is not ready for occupancy on or before a date which is sixty (60) days
after the Scheduled Completion Date stated above for whatever reason other than
Tenant's fault or the allowable delays set forth above, Tenant may elect not to
lease said ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building and not to reimburse Landlord for
Landlord's costs by giving notice to Landlord of such election. Upon receipt of
such election, Landlord shall have an additional fifteen (15) days to complete
said work. If said work is completed within such fifteen (15) day period, then
Tenant's election above shall be null and void, it being understood that said
election by it shall be Tenant's sole remedy at law and in equity for Landlord's
failure to have the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building ready for Tenant's occupancy.
Tenant agrees to use and occupy the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building subject to the
terms and conditions of this Lease, except as otherwise set forth herein to the
contrary.
Tenant shall reimburse Landlord for the actual cost of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work
but not, without Tenant's prior written consent, in excess of the Tenant
approved Cost of the Work Parties agree that such reimbursement shall be paid by
an adjustment to the Fixed Rent under the Lease. Specifically such actual cost
shall be amortized over a term of five (5) years at a seven percent (7%) rate,
i.e., a constant annual payment of 23.77% of the actual cost of the ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Work, plus twelve thousand two hundred ($12,200) dollars per year. Thus,
for example, if the cost of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work were two hundred sixty
thousand ($260,000) dollars, then the additional Annual Fixed Rent would be
equal to two hundred sixty thousand ($260,000) dollars times 2377 which equals
sixty-one thousand eight hundred two ($61,802) dollars, plus twelve thousand two
hundred ($12,200) dollars, for a total additional Fixed Rent of seventy-three
thousand eight hundred two ($73,802) dollars per year, six thousand one hundred
fifty dollars and sixteen cents ($6,150.16) per month. Any increase in Operating
Costs or real estate taxes or additional Landlord's services called for in
Section 5.1 required because of Tenant's occupancy
3
of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building shall be paid for by Tenant (i.e., 100% of such
costs shall be allocable to Tenant) on a monthly basis, as additional rent. It
is hereby expressly understood and agreed that any such costs shall not be
included within the "Operating Cost Base" for the Building. Landlord and Tenant
agree that they shall enter into a mutually satisfactory amendment to this Lease
in order to reflect Tenant's occupancy of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ building, adding
it to the Premises, and the rent adjustments hereunder. Upon termination of this
Lease for any reason prior to five (5) years after the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Rent
Commencement Date, Tenant shall pay Landlord the unamortized balance of such
costs within ten (10) days of receipt of an invoice therefor. However, in the
event that, within three (3) years of the termination of the Lease for any
reason, except by reason of Tenant's default, Landlord subsequently leases ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ to others, then, at such time as such new ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ tenant
makes its first rent payment thereon, Landlord will rebate to Tenant the
following amount of the unamortized balance of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cost of the
Work previously paid by Tenant to Landlord upon termination of this Lease
("Unamortized Balance"). Such rebate to be calculated as follows:
1. Any Landlord costs associated with the re-leasing of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
to include, but not be limited to broker commissions, tenant improvements, other
concessions, shall be added to the Unamortized Balance. The resulting subtotal
shall be amortized over the new lease term at eight percent (8%). To that
amortized subtotal total shall be added one ($1.00) dollar per rentable square
foot times the square footage of space leased under the new lease for ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇. That grand total of the amortized subtotal plus one ($1.00) dollar per
rentable square foot total to be divided into the average annual triple net rent
of the leased space. If the quotient of such division equals or exceeds 1.0,
then Landlord shall rebate to Tenant total amount of the Unamortized Balance. If
the resulting quotient is less than 1.0, then Landlord shall return that portion
represented by the quotient times the Unamortized Balance. Example follows:
Assuming the following facts and conditions.
A Landlord leased 6,150 square feet of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
for five (5) years @ average rent triple net of $7.50/SF = $ 46,125/ year
B Lease Up Costs Total = $104,550
1B Commissions @ $6.00/SF $36,900
2B Tenant Improvements @ $10.00/SF $61,500
3B Other @$1.00/SF $ 6,150
C Unamortized Balance of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work = $ 87,700
--------
D Subtotal Costs = $192,250
E D x 5-year amortization @ 8% = $192,250 x 0.2434 = $ 46,794
F $1.00 per Square Foot Re-leased Space = $ 6,150
--------
G Grand Total of Amortized Costs + $1.00/SF = $ 52,944
H A/G = $46,125/$52,944 = 0.871
Landlord rebates Tenant H x C = 0.871 x $87,700 = $76,387
4
The provisions of this section shall survive termination of this Lease.
2.1.2. Workshop - As requested by Tenant, Landlord hereby agrees to use
good faith, diligent efforts to obtain any and all approvals and permits
necessary for the construction of a prefab steel building as an expansion to the
rear of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ located as shown on the plan attached hereto as
Schedules 3 and 3-A, containing approximately 3,000 square feet (the "Workshop"
and at times, the "Workshop Work") Tenant shall provide Landlord with
specifications for the Workshop on or before April 1, 2005. Landlord will not
approve any alterations that will require unusual expense to demolish the
Workshop on lease termination Landlord agrees to develop, at Tenant's cost, the
modification of the Site Plan and all other plans and/or studies required for
Landlord to obtain the necessary state and local permits and approvals for the
construction of the Workshop and the bidding of the work necessary to construct
the Workshop. Tenant acknowledges that Landlord has indicated a variance shall
be required for such expansion. Landlord agrees to try to obtain such permits,
using the efforts as aforesaid, on or before June 30, 2005. Landlord and Tenant
agree to work and cooperate with each other so as to reach mutual agreement on
any modifications to the plans as may be requested by the applicable permit
granting authorities. In the event that Landlord is unsuccessful in obtaining
all necessary permits and approvals for the construction of the Workshop by
September 30, 2005, Landlord's obligations under this Section 2.1.2 shall
terminate, and such failure shall not be deemed to be a default by Landlord
hereunder. Tenant agrees to reimburse Landlord for its permitting expenses
incurred hereunder, up to a maximum of five thousand ($5,000) dollars, within
thirty (30) days of receipt of Landlord's invoice therefor, containing
reasonable backup documentation evidencing the same.
In the event that Landlord obtains all of such permits, then Landlord
shall then obtain bids for the construction of said Workshop and present to
Tenant a not to exceed cost to construct such Workshop ("Cost of the Workshop
Work") and a scheduled completion date for such work ("Scheduled Completion
Date"). Included in the Cost of the Workshop Work shall be general conditions,
the cost of GCCI's overhead and profit, equal to seven percent (7%) of the work,
and a five percent (5%) contingency reserve. Landlord will not expend the five
percent (5%) contingency reserve without first informing Tenant. After approval
of the plans for the Cost of the Workshop Work by Tenant, Landlord shall
commence construction of the Workshop and diligently prosecute the same to
completion (i.e., the parties further agreeing that no overtime shall be
required). The Workshop Work shall be deemed completed and Fixed and additional
Rent payable thereon shall commence on the earlier of (a) the date on which
Tenant occupies any part of the Workshop, (b) the date on which the Workshop
Work shown on the Workshop plans accepted by Tenant is substantially completed
as certified by Landlord's architect ("Workshop Rent Commencement Date").
Landlord shall permit Tenant access for installing its own equipment and
furnishings in the Workshop if it can be done without material interference with
Landlord's remaining work. Notwithstanding the foregoing provisions, if the
Workshop is not complete and the building ready for occupancy on or before a
date which is ninety (90) days after the Scheduled Completion Date for whatever
reason other than Tenant's fault or the allowable delays previously set forth in
2.1.1A, Tenant may elect not to lease said Workshop and not to reimburse
Landlord for Landlord's costs by giving notice to Landlord of
5
such election. Upon receipt of such election, Landlord shall have an additional
fifteen (15) days to complete said work. If said work is completed within such
fifteen (15) day period, then Tenant's election above shall be null and void, it
being understood that said election by it shall be Tenant's sole remedy at law
and in equity for Landlord's failure to have the Workshop ready for Tenant's
occupancy. Upon Landlord's substantial completion and obtaining a certificate of
occupancy (which may be temporary) for the Workshop and providing Tenant with a
copy thereof, Tenant agrees to use and occupy the Workshop subject to the terms
and conditions of this Lease, except as otherwise set forth herein to the
contrary.
Tenant shall reimburse Landlord for the actual cost of construction of the
Workshop, not to exceed the Cost of the Workshop Work unless there is a change
in scope or Tenant approved change order. The parties agree that such
reimbursement shall be paid by Tenant in the form of an adjustment to the Fixed
Rent under this Lease. Specifically, such costs shall be amortized over the
remaining Term of this Lease at a per annum rate of seven percent (7%), plus six
thousand ($6,000) dollars per year, to be paid monthly in advance as additional
Fixed Rent. Any increase in Operating Costs or real estate taxes or additional
Landlord's services called for by Section 5.1 required because of Tenant's
occupancy of the Workshop shall be paid for by Tenant (i.e., 100% of such costs
shall be allocable to Tenant) on a monthly basis, as additional rent. It is
hereby expressly understood and agreed that any such costs shall not be included
within the "Operating Cost Base" for the Building. Landlord and Tenant agree
that they shall enter into a mutually satisfactory amendment to this Lease in
order to reflect Tenant's occupancy of the Workshop, adding it to the Premises,
and the Rent adjustments hereunder. In the event that this Lease terminates
prior to December 31, 2008, then Tenant shall be required to make a Termination
Payment equal to the unamortized balance of the actual costs of the construction
of the Workshop. In the event that, within three (3) years of the termination of
the Lease for any reason, except by reason of Tenant's default, Landlord
subsequently leases the Workshop to others, then, at such time as such new
Workshop tenant makes its first rent payment thereon, Landlord will rebate to
Tenant the following amount of the unamortized balance of the Workshop Cost of
the Work previously paid by Tenant to Landlord upon termination of this Lease
("Unamortized Balance") Such rebate to be calculated as follows:
1. Any Landlord costs associated with the re-leasing of the Workshop to
include, but not be limited to broker commissions, tenant improvements, other
concessions, shall be added to the Unamortized Balance. The resulting subtotal
shall be amortized over the new lease term at eight percent (8%). To that
amortized subtotal total shall be added one ($1.00) dollar per rentable square
foot times the square footage of space leased under the new lease for the
Workshop. That grand total of the amortized subtotal plus one ($1.00) dollar per
rentable square foot total to be divided into the average annual triple net rent
of the leased space. If the quotient of such division equals or exceeds 1.0,
then Landlord shall rebate to Tenant total amount of the Unamortized Balance. If
the resulting quotient is less than 1.0, then Landlord shall return that portion
represented by the quotient times the Unamortized Balance Example follows:
Assuming the following facts and conditions.
6
A. Landlord leased 3,000 square feet of the Workshop for
three (3) years @ average rent triple net of $5.00/ SF = $15,000/ year
B. Lease Up Costs Total = $19,000
1B. Commissions @ $3.33/SF $10,000
2B. Tenant Improvements @ $3.00/SF $ 9,000
3B. Other @ $-0-/SF $ -0-
C. Unamortized Balance of the Workshop Work = $70,700
-------
D. Subtotal Costs = $89,700
E. D x 3-year amortization @ 8% = $89,700 x 0.3761 = $33,736
F. $1.00 per Square Foot Re-leased Space = $ 3,000
-------
G. Grand Total of Amortized Costs + $1.00/ SF = $36,736
H. A/G = $15,000/ $36,736 = 0.408
Landlord rebates Tenant H x C = 0.408 x $70,700 = $28,846
The provisions of this section shall survive termination of this Lease".
3. Landlord and Tenant hereby agree that references in the Lease to "Lot"
or "Premises" shall include any and all testing areas or other areas, such as
parking areas permitted to be used and/or occupied by Tenant under this Lease,
should such areas not be within the definition of "Lot" hereunder (for example,
but not by way of limitation, the provisions of Sections 6.1.3, 6.1.4, 6.1.5,
6.1.7, 6.1.8, 6.1.9, 6.1.12, and 6.1.13 shall apply to all of said additional
areas).
4. Article 10 of the Lease is hereby amended by inserting the following as
a new Section 10.16.
"Section 10.16. (Covenants Independent). Each provision hereof constitutes
an independent covenant, enforceable separately from each other covenant hereof.
To the extent any provision hereof or any application of any provision hereof
may be declared unenforceable, such provision or application shall not affect
any other provision hereof or other application of such provision. Tenant
acknowledges and agrees that Tenant's obligation to pay Fixed Rent and
additional rent is independent of any and all obligations of Landlord hereunder,
with the result that Tenant's sole remedy for any alleged breach by Landlord of
its obligation hereunder shall be to commence a judicial proceeding against
Landlord seeking specific performance, and not to deduct or set off Fixed Rent
or additional rent or terminate this Lease".
5. Upon the later to occur of all of the foregoing events (the "Expansion
Events" or such date upon which the Expansion Events occur hereinafter being
referred to as the "Expansion Date") (i) the termination of the existing Lahey
lease with respect to the First Floor Space subject to ▇▇▇▇▇'▇ right to use the
Data Closet, in common with Tenant, pursuant to the terms of a separate
agreement between Tenant and Lahey as aforesaid, or a future tenant of
7
Landlord as applicable (the "Expansion Space"), (ii) Landlord's receipt of the
applicable termination payments from Lahey, (iii) Lahey vacating said space in
accordance with the terms and provisions of its lease with Landlord, and (iv)
Tenant hereby accepting such space in its then "as is" condition, then Landlord
and Tenant hereby agree that the term "Premises" as used in this Lease shall
include the Expansion Space. Accordingly, upon the occurrence of the Expansion
Events, (A) Section 1.1 of the Lease shall be amended as follows (i) the
definition of "Rentable Floor Area of Tenant's Space" shall be amended by
deleting the existing language in its entirety and by replacing the same with
"58,334 square feet, subject to further expansion as provided in Sections 2.1.1
and 2.1.2 hereof, and (ii) the definition of "Fixed Rent" set forth in Section
1.1 of the Lease shall be amended by deleting the same in its entirety and by
replacing the same with a new Fixed Rent schedule reflecting the addition of the
Expansion Space (i.e., 24,120 square feet) and Landlord's agreement that the
Fixed Rent allocable to the Expansion Space shall be $18.50 per rentable square
foot for the period commencing upon the occurrence of the Expansion Events and
ending on September 30, 2007, and thereafter (i) $21.40 per rentable square foot
from October 1, 2007 through and including December 31, 2007, and (ii) $22.40
per rentable square foot from January 1, 2008 through and including December 31,
2008, and (B) Section 1.2 of the Lease shall be amended by adding the plan
attached hereto as Exhibit "A-3" as a new Exhibit "A-3" thereto. As aforesaid in
Paragraphs 2.1.1A and 2.1.2 above, Landlord and Tenant hereby agree that they
shall enter into a mutually satisfactory amendment to this Lease in order to
reflect the necessary Rent adjustments hereunder and any other relevant
provisions of the Lease necessitated by the events outlined in this Amendment.
6. Section 1.2 of the Lease is hereby amended by deleting Exhibit "D" of
the Lease and by replacing the same with Exhibit "D-l" attached hereto and made
a part hereof Accordingly, all references in the Lease to Exhibit "D" shall now
refer to Exhibit "D-1" attached hereto.
7. Effective on the Expansion Date, Section 8.2 of the Lease shall be
amended by adding the following at the beginning of the second sentence thereof,
"Except as otherwise provided in Exhibit "I" hereof, and".
8. Effective on the Expansion Date (as hereinbefore defined in Section 5
above), Exhibit "I" of the Lease is hereby amended by (i) deleting the square
footage figure of "51,321" and by replacing the same with "87,000", (ii) adding
the following after the words. " Market Rent as defined in Exhibit "H" of this
Lease" in line 4 thereof, "but in no event lower than (a) $22.40 (quoted on a
gross basis) plus tenant electricity, or (b) rent which is sufficient in
Landlord's reasonable and good faith opinion, to finance the non-land project
costs of such expansion building, and further provided that the term of the new
expansion building lease is not for less than ten (10) years", (iii) adding
the following at the end of the first sentence after the words "under this
Lease", the following "and upon payment by Tenant to Landlord of any unamortized
cost of the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work and/or the Workshop Work (as defined in
Sections 2.1.1A and 2.1.2 hereof), which such cost figures either shall be
furnished by Landlord to Tenant within forty-five (45) days of completion of the
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work and/or the Workshop Work and again within five (5) days of
receipt of Tenant's termination notice together with reasonable supporting
documentation evidencing the same (the "Termination Payment")", and (iv)
replacing the entire second sentence with the following "The foregoing provision
(and
8
the provisions with respect to the permitting and construction of the Temporary
Space or the ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work and/or the Workshop Work pursuant to Sections
2.1.1, 2.1.1A, and 2.1.2 hereof) shall be binding upon the successors and
assigns of Landlord and Tenant, expressly excluding, however, any mortgagee of
Landlord, its successors and/or assigns, and shall not constitute a default by
Landlord of its obligations under this Exhibit "I" (or Section 2.1.1 or 2.1.2,
as it relates to the Temporary Space, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Work, or Workshop as
aforesaid)".
9. The Lease is hereby amended by adding Exhibit "J" attached hereto and
made a part hereof as the new Exhibit "J" to the Lease Accordingly, Section 1.2
of the Lease is hereby amended by deleting the words "Intentionally Deleted"
after Exhibit "J" and by replacing the same with "Right of First Offer".
10. Landlord and Tenant each represent and warrant that is has dealt with
no broker, other than ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & Partners, in connection with this
Amendment and agree to defend, indemnify and save the other party harmless from
and against any and all claims for a commission arising out of this Lease made
by anyone other than the aforementioned broker. The parties further agree that
Landlord's compensation obligation to said broker shall be limited to the lease
of the Expansion Space from July 31, 2007 to December 31, 2008.
11. Except as modified by this Amendment, the Lease is hereby ratified and
confirmed.
12. This Amendment may be signed in any number of counterparts and each
thereof shall be deemed to be an original, and all such counterparts shall be
but one and the same agreement.
13. Landlord's obligations to perform hereunder are subject to the
condition precedent that Landlord's mortgagee approves of this Amendment by
executing and delivering to Landlord the Mortgagee's Consent form attached
hereto as Schedule 4, unless Landlord gives Tenant written notice within thirty
(30) days after the date hereof that Landlord's mortgagee disapproves this
Amendment, then this condition shall be deemed to have been satisfied or waived,
and the provisions of this Section 13 shall be of no further force or effect. If
Landlord's mortgagee provides such notice of disapproval to Landlord, then all
of Landlord's and Tenant's obligations hereunder shall be deemed terminated, and
this Amendment shall terminate without recourse to the parties hereto.
14. Tenant's obligation to perform its covenants and agreements hereunder
is subject to the condition precedent that this Amendment be approved by
Tenant's Board of Directors Unless Tenant gives Landlord written notice within
ten (10) days after the date hereof that the Board disapproves this Amendment,
then this condition shall be deemed to have been satisfied or waived, and the
provisions of this Section 14 shall be of no further force or effect. If Tenant
provides such notice of disapproval to Landlord, then all of Landlord's and
Tenant's obligations hereunder shall be deemed terminated, and this Amendment
shall terminate without recourse to the parties hereto.
9
EXECUTED as an instrument under seal as of the date first written above
TENANT LANDLORD
iRobot Corporation Burlington Crossing Office LLC
A Massachusetts limited liability company
By The ▇▇▇▇▇▇▇▇▇ Company,
Managing Member
By /s/ ▇▇▇▇▇▇▇▇ ▇. Clear By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------- ------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. CLEAR ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CHIEF FINANCIAL OFFICER President
& TREASURER
10
SCHEDULE - 1
DATA CLOSET
[FLOOR PLAN]
SCHEDULE - 3
[FLOOR PLAN]
SCHEDULE 3-A
I-ROBOT
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
OPTION "B" - NO EXPANSION
02/18/05 - REV (2)
PAGE 1 OF 2
1. REROOF EXISTING BLDG. (INCLU. REPAIR ROOF DECK, ETC.) 5,700 S.F. @ 2.50/S.F. = 14,250.00
2. SELECT DEMO IN EXISTING BLDG. = 15,000.00
3. INSULATE & SHEETROCK PERIMETER WALLS 320 L.F.X10'=3,200 S.F @$6/S.F. = 7,200.00
4. STORM WINDOW (INSIDE) AT EXISTING 92'X6'= 552 S.F. @ = 10,000.00
5. REMOVE & PROVIDE RAMP AT ENTRANCE. = 1,500.00
6. NEW OPENING AT MASONRY BEARING WALL 1 EA. = 500.00
7. ▇▇▇▇ & SHEETROCK INTERIOR MASONRY WALL AND PATCH EXISTING = 8,370.00
8. NEW TOILET ROOM - PLUMBING & TRENCHING = 20,000.00
9. NEW DECK HIGH PARTITIONS 106 L.F. @ $55.00/L.F. = 5,830.00
10. NEW DOORS, FRAMES & HDWR. 8 EA. @ $600/EA. = 4,800.00
11. ACOUSTICAL CEILINGS 1,200 S.F. @ $2/S.F. = 2,400.00
12. CARPET, VCT&BASE = 3,500.00
13. PAINTING = 3,000.00
14. HVAC 6,000 S.F. = 20,000.00
15. SPRINKLERS NOT REQUIRED = _________
16. ELECTRICAL, LIGHTS, POWER, LIFE SAFETY & FIRE ALARM 6,000 S.F. = 20,000.00
17. BUILDING PERMIT $10/1,000 = 1,250.00
18. SUPERVISION $2,860/WK. = 8,580.00
SCHEDULE 3-A
I-ROBOT PAGE 2 OF 2
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
OPTION "B" - NO EXPANSION
02/18/05 - REV (2)
19. PROJECT MANAGER @ $4,207/WK. @ 50% = 12,621.00
20. CLEAN-UP & GENERAL LABOR @ 1,000/WK. = 3,000.00
21. DUMPSTERS 6 EA. @ 600/DUMP = 1,800.00
22. POSTAGE, DRWG. REPRO., FAX, ETC. = 1,250.00
-----------
SUBTOTAL = $164,851.00
6% FEE 9,891.00
-----------
SUBTOTAL = $174,742.00
CONTINGENCY 5% = 8,737.00
-----------
TOTAL BUDGET = $183,479.00
▇▇▇▇▇▇/IROBOT-NOEXPANSION
SCHEDULE 3-A
I-ROBOT
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
OPTION "B" - 3000 S.F. EXPANSION
02/18/05 - REV (2)
PAGE 1 OF 2
1. ADD CATCH BASIN = $3,000.00
2. CHAIN LINK DOUBLE GATE 2 EA. @ $2,000 EA. = 4,000.00
3. JERSEY BARRIES 10 EA. @ 200 EA. = 2,000.00
4. RECLAIM BIT. PAVEMENT 225 TONS @ $10/TON = 2,250.00
5. EXCAVATE & BACKFILL FOOTINGS 4 DAYS @ $1,000/DAY = 4,000.00
6. GRAVEL BASE FOR SLAB ON GRADE 130 CYDS. @ $18/C.Y. = 2,340.00
7. NEW UTILITIES NOT REQUIRED __________
8. CONCRETE FOUNDATIONS 40 C.Y. @175/C.Y. = 7,000.00
9. CONCRETE SLAB ON GRAD 50 C.Y. @ 200/C.Y. = 10,000.00
10. PREFAB. PACKAGED BLDG. MATERIAL = 26,000.00
11. PREFAB. PACKAGED BLDG. ERECTION 3,000 S.F. @ 2.25/S.F. = 18,000.00
12. HVAC 3,0000 S.F. = 40,000.00
13. SPRINKLERS NOT REQUIRED = __________
14. ELECTRICAL, LIGHTS, POWER, LIFE SAFETY & FIRE ALARM 3,000 S.F. = 40,000.00
15. BUILDING PERMIT $10/1,000 = 1,250.00
16. SUPERVISION @$2,860/WK. = 14,300.00
17. PROJECT MANAGER @ $4,207/WK. @ 50% = 12,621.00
18. CLEAN-UP & GENERAL LABOR @ 1,000/WK. = 3,000.00
19. DUMPSTERS 3 EA. @ 600/DUMP. = 1,800.00
SCHEDULE 3-A
I-ROBOT PAGE 2 OF 2
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
OPTION "B" - 3,000 S.F. EXPANSION
02/18/05 - REV (2)
19. POSTAGE, DRWG. REPRO., FAX, ETC. = 1,250.00
-----------
SUBTOTAL = $192,811.00
6% FEE = 11,569.00
-----------
SUBTOTAL = $204,380.00
CONTINGENCY 5% = 10,219.00
-----------
TOTAL BUDGET = $214,599.00
▇▇▇▇▇▇/IROBOTREVISED2/18
SCHEDULE 4
CONSENT OF MORTGAGEE
The undersigned Mortgagee hereby consents and approves the terms and provisions
set forth in this Second Amendment to Lease dated as of________________________,
2005, by and between Burlington Crossing Office LLC ("Landlord') and iRobot
Corporation ("Tenant")
MORTGAGEE
BANK OF AMERICA
___________________________ By _________________________________________
Witness
Name________________________________________
Title_______________________________________
Date________________________________________
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EXHIBIT "A-3"
PLAN OF EXPANSION SPACE
(TO BE SUPPLIED)
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EXHIBIT "D-1"
LANDLORD'S SERVICES
I. CLEANING.
A. BUILDING LOBBIES AND COMMON AREAS.
1. Entrance doors and partition glass to be cleaned nightly. Wipe
down frames and fixtures as needed.
2. Remove entrance mats and clean sand and dirt from pits and
floors, clean and replace mats nightly.
3. Floors to be swept and washed nightly. Maintain a high luster
finish following manufacturer's specifications.
4. Walls to be dusted and spot cleaned as necessary, thoroughly
washed twice a year.
5. Empty and wipe clean trash receptacles nightly including
exterior smoker's stations.
6. Dust, with treated cloth, security desks, window ▇▇▇▇▇,
directory frames, planters, etc, nightly.
7. Clean director glass nightly.
8. Vacuum all carpeted areas nightly, treat and spot clean
stains, clean fully as needed.
9. Vinyl tile floors to be dry mopped nightly, spot washed with
clean water as needed and spray buffed weekly.
10. Sweep all stairwells in building nightly and keep in clean
condition, washing same as necessary.
11. Do all high dusting (not reached in nightly cleaning)
quarterly, which includes the following.
(a) Dust all pictures, frames, charts, graphs and similar
wall hangings.
(b) Dust exposed piped, ventilation and air conditioning
grilles, louvers, ducts and high molding, as needed.
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12. Clean and maintain luster on ornamental metal work as needed
within arm's reach.
13. Dust all drapes and blinds as needed.
14. Wash and disinfect drinking fountains using a non-scented
disinfectant nightly. Polish all metal surfaces on the unit
nightly.
15. Strip and wax all resilient tile floors yearly.
16. Shampoo all common area carpets at additional contract price
at least once per year.
B. LAVATORIES - NIGHTLY.
1. Empty paper towel receptacles, bag and transport waste paper
to designated area, disinfect receptacle and add new liner.
2. Empty sanitary napkin disposal receptacles, bag and transport
waste, disinfect receptacle and add new liner.
3. Refill toilet tissue, hand towel dispensers, and sanitary
napkin dispensers.
4. Scour, wash and disinfect all basins, bowls and urinals using
non-scented disinfectants.
5. Wash, disinfect and wipe dry both sides of toilet seat using
non-scented disinfectants.
6. Wash and polish all mirrors, counters, faucets, flushometers,
bright work and enameled surfaces.
7. Spot clean toilet partitions, doors, door frames, walls,
lights and light switches.
8. Remove all cobwebs from walls and ceilings.
9. Sweep and wash all floors, using proper non-scented
disinfectants.
10. Add water to floor drains weekly, disinfect monthly.
11. Turn off lights.
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C. ELEVATORS - NIGHTLY.
1. Thoroughly clean walls.
2. Wipe clean control panels, door frames and mirrors.
3. Vacuum cab and floor door tracks.
4. Vacuum floors, shampoo as needed, wash stone floors.
5. Dust ceilings.
D. GENERAL CLEANING (MONDAY THROUGH FRIDAY - HOLIDAYS EXCLUDED) TENANT
AREAS NIGHTLY - UNLESS NOTED.
1. Empty and clean all waste receptacles nightly and remove waste
paper and waste materials, including folded paper boxes and
cartons, to designated area Replace liners as needed Check and
wash waste baskets if soiled. Abnormal waste removal (e.g.
computer installation paper, bulk packaging, wood or cardboard
crates, refuse from cafeteria operation, etc. ) shall be
Tenant's responsibility.
2. Weekly hand dust with treated cloth and wipe clean or feather
dust[er] all accessible areas on furniture, desks, files,
telephones, fixtures and window ▇▇▇▇▇.
3. Clean all glass table tops and tenant entrance glass. Spot
clean glass partitions.
4. Spot clean all walls, door frames and light switches.
5. Wipe clean and polish all bright metal work as needed within
arm's reach.
6. All stone, ceramic, tile, marble, terrazzo and other unwaxed
flooring to be swept, using approved dust-down preparation.
7. All wood, linoleum, rubber asphalt, vinyl and other similar
type of floors to be swept, using approved dust-down
preparation and mopped or cleaned with dry system cleaner
nightly.
8. Reception areas, halls, high traffic areas to be vacuumed
nightly.
9. Offices and cubicles to be spot vacuumed nightly. Complete
vacuum weekly.
10. Spot clean carpet stains.
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11. Wash and clean all water fountains and coolers nightly. Sinks
and floors adjacent to sinks to be washed nightly.
12. Dust blinds as needed.
13. Vinyl tile floors to be dry mopped nightly, spot washed with
clean water as needed and spray buffed every two weeks.
E. SHOWERS.
1. Wash shower walls and floors nightly, using proper non-scented
disinfectants.
2. Clean and disinfect shower curtains weekly.
3. Scrub showers with bleach weekly.
4. Wash tile walls with proper grout cleaning compound as needed.
5. Add water to floor drains weekly, disinfect monthly.
6. Turn off lights.
II. HEATING, VENTILATING AND AIR CONDITIONING.
1. Heating, ventilation and air conditioning as required to provide
reasonably comfortable temperatures for normal business day
occupancy (except holidays), Monday through Friday, from 8:00 AM to
6:00 PM, and Saturday from 8:00 AM to 1:00 PM, if so requested by
Tenant, by providing at least 24 hours notice HVAC services beyond
the aforesaid hours of operation can be made available to Tenant, if
so requested by Tenant, by providing at least 24 hours prior written
notice and at a cost of $25.00 per hour per unit.
2. Maintenance on any additional or special air conditioning equipment,
and the associated operating cost thereof, will be at Tenant's
expense.
III. WATER.
Hot water for lavatory purposes and cold water for drinking, lavatory and
toilet purposes.
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IV. ELEVATORS.
Elevators for the use of all tenants and the general public for access to
and from all floors of the Building, programming of elevators (including,
but not limited to, service elevators), shall be as Landlord from time to
time determines best for the Building as a whole.
V. SECURITY/ACCESS.
Twenty-four (24) hour entry to the Building is available to Tenant and
Tenant's employees, after normal Building hours of operation. Tenant shall
have unresticted access to its Premises at all times, and not just during
normal building hours and operation. All security within the Premises
shall be the responsibility of the Tenant.
VI. BUILDING HOURS.
Normal building hours of operation are Monday through Friday from 8:00 AM
to 6:00 PM. The Building operates on Saturday from 8:00 AM to 1:00 PM,
with access to the Building subject to the provisions as outlined in Item
V contained herein. Except for the heating, ventilating and air
conditioning system, which operates in accordance with the schedule as
described in Item II contained herein, all Building systems, including but
not limited to electrical, mechanical, elevator, fire safety and
sprinkler, and water, operates 24 hours per day, 7 days per week, subject
to repairs, failures and interrupted service beyond Landlord's control.
VII. CAFETERIA, VENDING AND PLUMBING INSTALLATIONS.
1. Any space to be used primarily for lunchroom or cafeteria operation
shall be Tenant's responsibility to keep clean and sanitary.
Cafeteria, vending machines or refreshment service installations by
Tenant must be approved by Landlord in writing. All maintenance,
repairs and additional cleaning necessitated by such installations
shall be at Tenant's expense.
2. Tenant is responsible for the maintenance and repair of plumbing
fixtures and related equipment installed in the Premises for its
exclusive use (such as in coffee room, cafeteria or employee
exercise area).
VIII. SIGNAGE.
Tenant shall be entitled to such signage currently in place as of the date
hereof.
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IX. ELECTRICITY.
Tenant shall pay for all electricity consumed in the Premises. Landlord
shall invoice Tenant for the cost of Tenant's electricity on a monthly
basis based on the sub-meter readings measuring Tenant's actual electrical
consumption. Tenant shall reimburse Landlord for such consumption within
thirty (30) days upon receipt of Landlord's invoice therefor.
Tenant's use of electrical service in the Premises shall not at any time
exceed the capacity of any of the electrical conductors or other equipment
in or otherwise serving the Premises or the Building standard, as
hereinafter provided. To ensure that such capacity is not exceeded and to
avert possible adverse effects upon the Building's electrical system,
Tenant shall not, without at least thirty (30) days prior written notice
to and consent of Landlord in each instance, connect to the Building
electric distribution system any fixtures, appliances or equipment which
operates on a voltage in excess of 277/480 volts nominal, or make any
alteration or addition to the electric system of the Premises. In the
event Tenant shall use (or request that it be allowed to use) electrical
service in excess of that deemed by Landlord to be standard for the
Building, Landlord may refuse to provide such excess usage or refuse to
consent to such usage or may consent upon such conditions as Landlord
reasonably elects (including, but not limited to, the installation of
utility service upgrades, sub-meters, air handlers or cooling units), and
all such additional usage (except to the extent prohibited by law),
installation and maintenance thereof shall be paid for by Tenant, as
additional rent, upon Landlord's demand.
It is understood that the electrical generated service to the Premises may
be furnished by one or more generators of electrical power and that the
cost of electricity may be billed as a single charge or divided into and
billed in a variety of categories, such as distribution charges,
transmission charges, generation charges, congestion charges, public good
charges, and other similar categories, and may also include a fee,
commission or other charge by a broker, aggregator or other intermediary
for obtaining or arranging the supply of generated electricity. Landlord
shall have the right to select the generator of electricity to the
Premises and to purchase generated electricity for the Premises through a
broker, aggregator or other intermediary and/or buyers group or other
group and to change the generator of electricity and/or manner of
purchasing electricity from time to time.
If Landlord undertakes activities for the purpose of reducing Tenant's
operating costs (such as negotiating an agreement with a utility or
another energy generator or engaging an energy consultant or undertaking
conservation or other energy efficient measures that may require capital
expenditures), Tenant shall pay its proportionate share of all costs and
expenses associated with such actions (including, but not limited to,
brokers' commissions, legal fees and capital expenditures), as additional
rent, if, as and when payment is made by Landlord.
20
As used herein, the term "generator of electricity" shall mean one or more
companies (including, but not limited to, an electric utility, generator,
independent or non-regulated company) that provides generated power to the
Premises or to the Landlord to be provided to the Premises, as the case
may be.
X. OTHER UTILITIES.
Tenant shall be responsible for the payment of all other utilities
consumed by Tenant in the Premises, including telephone, cable, other
communications, and gas (if applicable). Tenant shall pay for such
consumption directly to the provider of such utilities.
21
EXHIBIT "J"
RIGHT OF FIRST OFFER
In no event shall Landlord, during the initial Term of the Lease, decide
to lease space, agree to lease or offer to lease space that becomes available in
the Building, unless Landlord first affords Tenant an opportunity to lease such
area in accordance with the provisions of this Exhibit "J" and only after
written notice to Tenant. Upon receipt of such notice from Landlord, and
provided further that there does not then exist an uncured, continuing Event of
Default under this Lease, then Tenant shall have the one-time right to lease any
such space, on an "as is" basis, by giving notice to Landlord to such effect
within sixty (60) days after Tenant's receipt of Landlord's notice of such
availability. If such notice is not so timely given by Tenant, then Landlord
shall be free to lease the subject space on whatever terms and conditions as
Landlord desires at any time after the expiration of said sixty (60) day period.
The non-exercise by Tenant of its rights under this Exhibit "J" as to any one
offer, shall be deemed to waive Tenant's rights of first offer as to any offers
or space availability within the Building, as the parties acknowledge and agree
that this is a one-time right of first offer only.
In the event that Tenant exercises its right of first offer to lease such
rentable space in the Building when it becomes available, then Landlord and
Tenant hereby agree that they shall enter into a mutually acceptable amendment
to this Lease, specifying that such rentable area is a part of the Premises
under this Lease and demising said premises to Tenant pursuant to the same terms
and conditions contained in this Lease, with the exception that as part of such
amendment, and as a condition of Tenant's right to exercise its right of first
offer for any such space Tenant shall agree to and such amendment shall reflect
(i) that the Rent for such space shall be as set forth in Section 1.1 of this
Lease, as amended by this Amendment, specifically excluding the $ 18.50 per
square foot Fixed Rent from the Expansion Date to September 30, 2007 (the
Expansion Space as defined in this Amendment) including the current tax and
operating base of $7.37 per square foot included within said Rent, and (ii) that
Tenant's right to lease such new rentable space shall be for the then remaining
Term under the Lease. Such amendment shall also contain other appropriate terms
and provisions relating to the addition of such rentable space to this Lease,
and as mutually agreed upon by the parties, and shall be signed by Tenant within
thirty (30) days of receipt of the proposed amendment from the Landlord in the
form as hereinabove required.
Notwithstanding anything to the contrary in this Exhibit "J", if Tenant
notifies Landlord of its election to lease such available rentable space in the
Building which was the subject of Landlord's notice and then fails to execute
and deliver the required amendment to this Lease once the same has been mutually
agreed upon by Landlord and Tenant in accordance with this Exhibit "J", then (i)
Tenant shall be deemed to have waived its rights under this Exhibit "J", (ii)
Landlord shall have the unrestricted right to lease such space to any third
party upon any terms as it desires, and (iii) Tenant's right of first offer
hereunder shall automatically terminate and be of no further and effect. The
recording by the Landlord of an affidavit to such effect shall be conclusive
evidence of the termination or waiver of Tenant's right of first offer option
hereunder. Otherwise, if the Landlord and Tenant, each acting reasonably and in
good faith, fail to agree on a mutually agreeable form of amendment to this
Lease within said thirty (30) day period upon
22
receipt of Landlord's proposed form of amendment, unless such date is extended
by mutual agreement of both parties hereto, then such failure shall be treated
as a non-exercise by Tenant of its right of first offer in accordance with the
first paragraph of this Exhibit "J".
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