Office Lease by Trustees of Church Realty Trust, Landlord to Carbonite, Inc. Tenant of Premises which are the 14th and 15th floors of Boston, Massachusetts Dated as of: June 25, 2009 This cover page is for identification only and is not part of the Lease.
Exhibit 10.8
Carbonite Lease
6.23.09
6.23.09
by
Trustees of Church Realty Trust, Landlord
to
Carbonite, Inc. Tenant
of
of
Premises
which
are the 14th and 15th floors
of
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
Dated as of: June 25, 2009
This cover page is for identification only and is not part of the Lease.
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LEASE by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as they are all of the
Trustees of Church Realty Trust and Carbonite, Inc., as each is further described below, dated as
of June 25, 2009:
1. Reference Data and Definitions
When used in this Lease, the following terms will have the meanings specified in this Section
1:
1.1. Landlord. Trustees of Church Realty Trust, under Deed of Trust dated May
2, 1946, recorded with Suffolk Registry of Deeds, Book 6223, Page 545 (the “Deed of
Trust”).
1.2. Tenant. Carbonite, Inc., a Delaware corporation.
1.3. Building. The 26 story office building known and numbered as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in
Boston, Massachusetts.
1.4. Property. The Building and the land immediately adjoining the Building, including
adjacent sidewalks.
1.5. Premises. 15,910 rentable square feet of space which comprise the 14th and 15th floors
of the Building, more particularly shown on the Floor Plans attached as Exhibit A and as more
particularly described in Description of Premises that appears as part of Exhibit A. The parties
agree that 15,910 square feet is a reasonable approximation of the rentable area of the Premises
and further agree that neither party will be entitled to change that number based on a
re-measurement of the Premises.
1.6. Common Areas. The Common Areas of the Property are: the Land between Huntington Avenue
and the Building, the ground floor lobby, all passenger elevators, the freight elevator, all
emergency stairs between the Premises and the ground floor, bathrooms open to all other users of
the Building, and, subject to Section 6 the escalator between the lobby and the underground
garage.
1.7. Term. Approximately four years and nine months, beginning on the Commencement Date and
ending in all events at 5:00 p.m. local time on June 30, 2014. Tenant will have no right to extend
the Term beyond the last day of the Term as just described.
1.8. Commencement Date. The earlier of (a) the date on which Tenant occupies any portion of
the Premises and begins conducting business therein and (b) October 1, 2009, except as this date
may be changed as provided in Section 5 below, or such other date on or after the date hereof as
the parties may agree in writing. Tenant’s entry into the Premises after the date of this Lease to
install furniture and equipment as provided in
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Section 1.23 will not be deemed to be occupancy of the Premises for purposes of this Section 1.8.
1.9. Termination Date. The Term will end at 5:00 p.m. local time, June 30, 2014, or as earlier
terminated.
1.10 Rent Commencement Date. In order to give Tenant three (3) months of free Rent, the Rent
Commencement Date for the Premises (other than for Early Rent, as described below) will be January
1, 2010.
1.11 Rent Periods. The Term will consist of six Rent Periods:
| a) | Early Rent Period: begins on the Commencement Date and ends on, and includes, September 30, 2009. If the Commencement Date is on or before September 15, 2009, notwithstanding that the Rent Commencement Date has not yet occurred. Early Rent, as described below, will begin to accrue as of the Commencement ▇▇▇▇ and continue each day thereafter through and including September 30, 2009. If the Commencement Date is on or after September 16. 2009, no Rent will accrue or be due or payable with respect to the month of September, 2009. | ||
| b) | Free Rent Period: 3 months; begins on October 1, 2009 and ends on and includes December 31, 2009. | ||
| c) | First Rent Period: 12 months; begins on January 1, 2010 and ends on and includes December 31, 2010. | ||
| d) | Second Rent Period: 9 months; begins on January 1, 2011 and ends on and includes September 30, 2011. | ||
| e) | Third Rent Period: 12 months; begins on October 1, 2011 and ends and includes September 30, 2012. | ||
| f) | Fourth Rent Period: 21 months; begins on October 1, 2012 and ends on the Termination Date. |
Each of the dates in this Section 1.11 is subject to change as provided in Section 5, below.
1.12. Rent. “Rent” means the Rent and the Early Rent described in this Section 1.12, together
with all other amounts that Tenant may be required to pay to Landlord under this Lease.
| a) | Early Rent Period: if due, $505.63 per day, payable on the last day of the Early Rent Period. |
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| b) | Free Rent Period: No Rent will accrue or be due or payable with respect to the Free Rent Period. | ||
| c) | First Rent Period: $269,121.00 payable in 12 monthly installments of $22,426.75. | ||
| d) | Second Rent Period: $275,640.75, payable in 9 monthly installments of $30,626.75. | ||
| e) | Third Rent Period: $383,431.00, payable in 12 monthly installments of $31,952.58. | ||
| f) | Fourth Rent Period: $698,846.73, payable in 21 monthly installments of $33,278.42. |
Rent will be paid as provided in Section 3.
1.13. Permitted Uses. Administrative, executive, and general office uses by Tenant and
Tenant’s employees, contractors, and agents, and for no other use.
1.14. Uses Not Permitted. Notwithstanding the Permitted Uses, neither Tenant nor any other
person or entity claiming through Tenant and having a right to possess, use, or occupy the Premises
or Building shall at any time in, on, or around the Premises or Building (i) manufacture, develop,
sell, display, prescribe, dispense or distribute any type of alcoholic beverages, tobacco products,
narcotics, pharmaceuticals or other medical products, equipment or services, (ii) engage in or
promote gambling activities, (iii) sell, offer, provide, display, dispense, publish, manufacture,
or distribute any publication, product, or service that is pornographic, lewd, obscene, or
otherwise objectionable in the sole, unfettered judgment and discretion of Landlord or its
affiliates, or (iv) other than use by Landlord or any of its affiliates, use the Premises or
Building for activities in support or promotion of a particular religious denomination or
organization.
1.15. Restricted Affiliations. Neither Tenant nor any other person or entity claiming
through Tenant and having a right to possess, use, or occupy the Premises or Building shall at any
lime (i) be affiliated with any entity or organization whose principal business is any of the
activities referenced in Section 1.14(i)-(iii) above, whether or not conducted in, on, or around
the Premises or Building. As used in this Section 1.15, to be affiliated with any entity or
organization means to control, to be controlled by, or to be under common control with such entity
or organization.
1.16. Security Deposit. The amount of the Security Deposit is $45,000, which Tenant will
deliver in cash or in immediately available funds, to Landlord, on or before the date of execution
of this Lease.
1.17. Landlord’s Notice Address
Trustees of Church Realty Trust
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P01-20
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P01-20
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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1.18. Tenant’s Notice Address
Prior to the Commencement Date:
Carbonite, Inc.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Subsequent to the Commencement Date:
Carbonite, Inc.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
1.19. Brokers. ▇▇▇▇▇▇▇ & Wakefield and DTZ FHO Partners.
1.20. Required Insurance Amount. A minimum combined single limit of liability of not less than
$2,000,000 per occurrence and a general aggregate limit (combined primary and excess) of at least
$2,000,000.
1.21. Rules and Regulations. The Rules and Regulations attached hereto as Exhibit B, to which
Landlord may from time to time make reasonable changes, additions or deletions with prior written
notice to Tenant.
1.22.
Normal Business Hours. 8:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 1:00
p.m. on Saturday, legal holidays excepted. The reception desk in the lobby of the Building will be
staffed from 8:15 am to 5:00 pm, Monday through Friday, excluding holidays.
1.23. Installation of Furniture and Equipment. After the date of this Lease, Tenant may enter
the Premises from time to time to install furniture and equipment, in each case at the times and on
the conditions specified by Landlord.
1.24. Telephone and Data Line Connections. Tenant acknowledges that approximately six weeks is
required to establish connections with telephone and data utility lines (the “tel/data service”).
1.25. Lease. “Lease” means this Office Lease.
2. Lease of Premises; Quiet Enjoyment. Landlord leases the Premises to Tenant, and Tenant leases
the Premises from Landlord, for the Term, at the Rent and upon the other
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terms and conditions of
this Lease. Upon paying the Rent and observing the other obligations
of Tenant hereunder, Tenant
may peaceably occupy the Premises during the Term, without disturbance by Landlord or persons
claiming through or under Landlord.
3. Payment of Rent
3.1. Monthly Installments. Except as otherwise expressly provided herein with respect to Early
Rent, beginning on the first day of the First Rent Period, Tenant shall pay the Rent to Landlord in
equal monthly installments in advance, on the first day of each calendar month during the Term,
without offset, notice or demand, at Landlord’s Notice Address or such other address as Landlord
designates by notice to Tenant. Rent for any partial month at the beginning of the Term will be
determined on a per diem basis at the rate applicable to the First Rent Period, and will be due on
the first day of the First Rent Period. Rent for any partial month at the end of the Term will be
determined on a per diem basis at the rate applicable to the previous month, and will be due on the
first day of that previous month.
3.2.
Late Payment. If Tenant does not pay any Rent when due hereunder, Tenant shall pay
Landlord an administration fee in the amount of $250.00. In addition, past due Rent will accrue
interest at 15% per annum, and Tenant shall pay Landlord a reasonable fee for any checks returned
by Tenant’s bank for any reason.
3.3. Gross Lease. This lease is a so-called “gross lease” such that Tenant’s payment of Rent
is inclusive of all real estate taxes, operating costs (other than cleaning), expenses, and, as and
to the extent provided in Section 10, below, utilities; provided, however, that Tenant will be
responsible for the cost of all maintenance and repair within the Premises as provided in Section
8, below. The cost of cleaning the Premises will be charged for separately under the cleaning
contract referred to in Section 10.3, below.
4. Condition of Premises. Landlord represents and warrants to Tenant, as of the Commencement Date
of this Lease, that (i) the Premises and all Building systems serving the Premises, including, but
not limited to, electrical, mechanical, plumbing, lighting and HVAC, are in good working order and
condition and (ii) the Premises are adequately served by utility connections for electricity, water
and sewer. Except as otherwise provided in this Section 4, Landlord shall deliver the Premises “as
is”, but in broom clean condition with a building standard directory in the lobby of the Building
for Tenant and all other tenants in the Building from time to time, and with all Building systems
serving the Premises in good working order and condition. Landlord shall: (x) deliver possession of
the 15th floor with new carpet in uncarpeted areas, a telecommunications room, and card readers
that provide access from the front internal stairwell; and (y) deliver possession of the 14th floor
with new carpet in uncarpeted areas, newly painted walls, and new window shades.
5. Delivery of Premises; Termination. If Landlord fails to deliver possession of the Premises to
Tenant on or before October 1, 2009, Tenant may terminate this Lease by 30 days’ notice to Landlord
at any time thereafter before the date on which possession is delivered to Tenant, which
termination will be Tenant’s sole remedy for Landlord’s
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failure to deliver possession of the Premises hereunder. If this Lease has not terminated as a
result of Tenant’s termination before the date on which possession of the Premises is delivered by
Landlord, the Commencement Date will be the date on which Landlord delivers possession and the
first and last day of each Rent Period, beginning with the Free Rent Period, will be one day later
for each day that the Commencement Date is later than October 1, 2009. Landlord and Tenant will
promptly execute a Commencement Date Certificate to memorialize the actual Commencement Date.
6. Use by Tenant; Access.
6.1 Uses of Premises and Common Areas; Access. Tenant may use the Premises only for Tenant’s
Permitted Uses, in full compliance with applicable legal requirements and the Building Rules and
Regulations, and will obtain, at Tenant’s expense, any required permits, licenses and approvals
required by Tenant’s Permitted Uses other than those that Landlord is required to obtain in order
to fulfill its obligations under this Lease. Tenant may also use those portions of the Common Areas
of the Property reasonably necessary for access to the Premises, as from time to time reasonably
designated by Landlord. Landlord reserves the right to make any changes in the Common Areas which
Landlord deems appropriate, provided that such changes do not materially impair Tenant’s use of the
Premises. Landlord reserves the right to take the escalator between the ground floor lobby and the
parking garage out of service either temporarily or permanently, and Landlord and Tenant agree that
any interruption or termination of service will not be deemed a material impairment either of
Tenant’s use of the Premises or of the parking garage. Tenant will have access to the Premises 24
hours a day. each day of the week; access to the Premises will be by means of a fully integrated
proximity badge system. Landlord shall maintain a security office in the Building that will be
staffed 24 hours a day, each day of the week. Tenant will not cause or permit any waste or damage
to the Premises or cause or permit any invitee of Tenant to cause any waste or damage to the
Property, or make any use of the Premises or the Property which, by noise, odor, vibration or
otherwise might interfere with the use of the Property by others entitled thereto or lead to an
increase in premiums for Landlord’s insurance, and shall maintain the Premises and the Property
free and clear of liens and encumbrances attributable to the acts or omissions of Tenant. Landlord
will have the right to enter the Premises at reasonable times on reasonable notice to inspect the
Premises, to wash exterior windows, to observe or care for birds nesting on the Building, to
perform Landlord’s obligations, and to show the Premises to prospective tenants, purchasers and
mortgagees.
6.2 Parking. Tenant’s rights to use the underground parking garage will be as provided in the
Parking License Agreement of even date herewith by Landlord as Licensor and Tenant as Licensee.
7. Tenant Improvements
7.1. Installation. Tenant may install improvements in the Premises, subject to Landlord’s
approval of Tenant’s plans, specifications, contractors, and schedule (“Tenant’s Improvements”),
which approval shall be given by Landlord within 15 days of
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Tenant’s request and shall not be unreasonably withheld, conditioned or delayed; Landlord may
condition any such approval on Tenant’s removal of some or all of Tenant’s Improvements before the
end of the Term as provided in Section 7.2, below. All Tenant’s Improvements made or work done by
Tenant within the Building will be at Tenant’s sole cost and expense. All improvements will be made
in a good and workmanlike manner and in accordance with all applicable legal requirements.
7.2. Removal. All Tenant’s Improvements shall remain in the Premises at the end of the Term
without compensation to Tenant, provided that Tenant, at its expense, shall remove, on or before
the Termination Date, any electronic, fiber, telephone and data cabling and related equipment
installed by or for the benefit of Tenant. Tenant shall also remove, at its expense. (a) any
improvements identified by Landlord in the course of reviewing Tenant’s plans and specifications
therefore as requiring removal, as provided in Section 7.1, above, and (b) any improvements
installed by Tenant, which, in Landlord’s reasonable judgment, are not standard office improvements
and are of a nature that would require material removal and repair costs. Tenant shall repair any
damage caused by the installation or removal of the wires, cables, equipment, and other
improvements.
8. Maintenance of the Premises by Tenant. Subject to the other provisions of this Section 8, Tenant
shall maintain the Premises, including those systems or parts of systems that serve the Premises
exclusively, in the same condition as exist on the Commencement Date (or when installed, if
installed after the Commencement Date) or such better condition as the Premises or such systems may
be placed in during the Term, in lull compliance with all applicable legal requirements, subject to
reasonable wear and tear and other matters described in this Section 8. Tenant will promptly
replace any damaged glass in the windows and doors of the Premises. Tenant will not be responsible
for damage caused by fire or other cause of loss, for structural or other capital repairs or
replacements or for repairs or replacements to any portion of the systems of the Building other
than those that serve the Premises exclusively, and, subject to the following qualification, for
reasonable wear and tear. Notwithstanding that Tenant will not be responsible for reasonable wear
and tear, Tenant will be responsible to maintain the Premises in good and serviceable condition
suitable to their Permitted Uses, and to make such repairs from time to time as arc necessary to
that end. All repairs by Tenant will be made in a good and workmanlike manner, reasonably
satisfactory to Landlord, and in compliance with all applicable legal requirements. Tenant shall
pay for all maintenance and repairs for which Tenant is responsible.
9. Maintenance of Property by Landlord. Subject to Section 6.1 above and Section 19 below. Landlord
shall maintain the roof, structural elements, exterior walls, exterior window components, including
glass, stairways, elevators, common corridors, rest rooms and other common areas to which Tenant
and all other users of the Building have access, the common systems and equipment of the Property,
and, subject to Section 8. above, the Building systems serving the Premises, including, but not
limited to, electrical, mechanical, plumbing, lighting and HVAC, in at least the same condition as
on the Commencement Date, subject to reasonable wear and tear, and subject to Section 19,
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below, to damage by fire and other causes of loss. Landlord shall also maintain the interior common
areas serving the Premises in a reasonably clean and orderly condition and the exterior walkways
that serve the Premises reasonably free of ice and snow; provided, however, that Landlord will have
no responsibility to maintain, repair or replace those portions of such
systems that are located
within and exclusively serve the Premises.
10. Landlord’s Services
10.1. General. Landlord will furnish to the Premises during Normal Business Hours (a) heat,
ventilating and air-conditioning, at temperatures reasonably adequate for general office uses (the
“Premises HVAC Supply”), subject to Section 11.2, below, (b) electrical service reasonably adequate
for general office uses, (c) hot and cold water to restrooms, (d) elevator service, (e) recycling
containers, (f) lighting, and. (g) security for the Common Areas. The cost of providing all of the
foregoing to the Property during Normal Business Hours will be included in the Rent. Landlord will
make the Premises HVAC Supply available to the Premises outside of Normal Business Hours at a cost
to Tenant of $50.00 per hour. Landlord will not be liable for any interruption of utility services
to the Premises, nor will any such interruption constitute a termination of this Lease or an actual
or constructive eviction of Tenant. Landlord will use reasonable efforts to avoid or limit such
interruptions to the extent that such interruptions are within Landlord’s reasonable power or
control and subject to the reasonable operational requirements of the Property. If there is an
interruption in utility services: (i) for which
Landlord is responsible or which Landlord could, with reasonable efforts, have prevented; (ii)
that materially affects Tenant’s use and enjoyment of the Premises; and, (iii) which interruption
in service is not restored within five days. Tenant shall be entitled to an abatement of Rent until
such service is restored.
10.2 Premises HVAC Supply. Landlord and Tenant acknowledge that the Premises HVAC Supply for
each floor of the Premises has the capacity to provide adequate heat, ventilation, and
air-conditioning to that floor when occupied by up to 50 people. If Tenant chooses to occupy
either floor of the Premises with more than 50 people. Tenant acknowledges that the Premises HVAC
Supply may prove to be inadequate in that circumstance.
10.3 Cleaning. Cleaning of the Premises will be provided under a separate contract of even
date herewith between Landlord and Tenant.
11. Surrender of Premises; Holding Over.
11.1 Surrender by Tenant. On the Termination Date, subject to Sections 7 and 8, above. Tenant
shall vacate and surrender the Premises to Landlord in the same condition that existed at the
beginning of Tenant’s occupancy (except as specifically provided in this Lease), free of Tenant’s
personal property and broom clean. As further provided in Section 7.2, above, Tenant will remove
all alterations made by Tenant and repair any damage to the Premises resulting from such removal
unless Landlord instructs Tenant to leave some or all of such alterations in place, in which event,
such alterations will become the property of Landlord without compensation, provided that Tenant
will
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always have the right and obligation to remove its trade fixtures and business equipment. If any of
Tenant’s property remains within the Property after the Termination Date, it may be retained by
Landlord without compensation, or may be removed and either stored or disposed of by Landlord and
Tenant will reimburse Landlord upon demand for all expenses incurred in connection therewith.
11.2 Holding Over. As an inducement to Landlord to enter into this Lease, Tenant covenants to
vacate and surrender the Premises on or before the Termination Date as provided in Section 11.1
above. If Tenant fails to so vacate and surrender the Premises, Tenant will be a daily tenant at
sufferance as of the day following the Termination Date, for which Tenant shall pay for the first
30 days of such holding over, for each day’s use and occupancy, daily in arrears, at a rate equal
to 150% of the daily rent rate in effect under this Lease for the last month of the Term and
beginning on the 31st day of such holding over and thereafter at a rate equal to 200% of
the daily rent rate in effect under this Lease for the last month of the Term. Tenant shall also
pay to Landlord all damages, direct and indirect, sustained by Landlord as a result of Tenant’s
holding over for more than 30 days; otherwise, such occupancy by Tenant will be on the same terms
and conditions as under this Lease, so far as applicable. Landlord and Tenant agree that, as a
daily tenant at sufferance. Tenant will not be entitled to notice to quit or to remove Tenant’s
property from the Premises, and Landlord may immediately commence any action or actions to compel
the removal of Tenant and Tenant’s possessions and to collect damages resulting from Tenant’s
holding over for more than 30 days, for use and occupation, or for any other sums then due
Landlord. Landlord’s acceptance of any payment from Tenant on account of such holding over, however
characterized, will not be deemed an acceptance of rent nor as a recognition of Tenant’s right to
occupy the Premises.
12. Hazardous Materials. Tenant will not cause, or permit any other person claiming or admitted to
the Property through Tenant to cause, any Hazardous Materials to be used, generated, stored or
disposed of on or about, or transported to or from the Property. “Hazardous Materials”
means any material or substance which: (a) is or becomes defined as a “hazardous substance,”
“hazardous waste,” “infectious waste,” “chemical mixture or substance,” or “air pollutant” under
Environmental Laws; (b) contains or derives from petroleum, polychlorinated biphenyls (PCB’s) or
asbestos; (c) is radioactive or infectious; or (d) has toxic, reactive, ignitable or corrosive
characteristics. “Environmental Laws” means all legal requirements relating to or imposing
liability or standards of conduct concerning Hazardous Materials, public health and safety or
the environment. Notwithstanding the foregoing, normal and reasonable quantities of Hazardous
Materials generally and customarily used in connection with Tenant’s Permitted Uses may be
introduced to the Premises provided such Hazardous Materials arc stored, used and disposed of in
compliance with Environmental Laws and all other applicable legal requirements. Tenant will be
responsible for and will hold Landlord harmless and indemnified against any claim, damage, cost,
liability or penalty related to any Hazardous Materials introduced to or released on or about the
Property by Tenant or by any person claiming or admitted to the Property through Tenant, whether or
not permitted by the preceding sentence or otherwise approved by Landlord.
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13. Risk of Loss; Indemnification. To the maximum extent permitted by law, but subject to the
provisions of the remaining sentences of this Section 13, (a) Tenant agrees that it will occupy the
Premises at its own risk, and that Landlord will not be liable to Tenant, or to any person claiming
or admitted to the Premises through Tenant, for injury or death to persons, or loss or damage to
property of any nature whatsoever, and (b) Tenant waives and will indemnify Landlord against any
claim for bodily injury or death or damage to property, including reasonable legal fees, by Tenant
or by any person claiming under or admitted to the Premises through Tenant, while at the Premises,
including, without limitation. Tenant’s employees, agents, contractors and invitees. To the maximum
extent permitted by law. Landlord shall save harmless, exonerate and indemnify Tenant, its
contractors, agents and employees from and against any and all claims, liabilities or penalties
asserted by or on behalf of any person, firm, corporation, or public authority on account of
injury, death, damage or loss to person or property in or upon the Premises, Building or Property
arising out of the willful misconduct, gross negligence, or negligence of Landlord, its agents and
employees, except to the extent the same was caused by the willful misconduct, gross negligence or
negligence, of Tenant, its agents and employees. In respect of all of the foregoing, Landlord shall
indemnify Tenant from and against all costs, expenses (including reasonable attorneys’ fees), and
liabilities incurred in or in connection with any such claim, action or proceeding brought thereon.
14. Insurance. Tenant will maintain in effect, at its expense, the following insurance:
14.1. Liability Insurance. Commercial general liability insurance in at least the Required
Insurance Amount, for bodily and personal injury and property damage, including as additional
insureds Landlord, The First Church of ▇▇▇▇▇▇, Scientist, in Boston, Massachusetts, any other
person or entity directly liable for the obligations of Landlord, and any representative or
employee of Landlord, any other person or entity directly liable for the obligations of Landlord,
and any representative or employee of Landlord or any mortgagee of the Property designated by
Landlord, such coverage to be primary and not excess or contributing or secondary to any other
insurance available to Landlord or the additional insureds.
14.2. Contents Insurance. Property insurance, covering Tenant’s personal property and fixtures
within the Premises or the Property, written on the broadest form of all risk or special cause of
loss form available for such purpose.
14.3. Workers’ Compensation Insurance. Workers’ Compensation Insurance in accordance with the
applicable legal requirements.
14.4. Other Insurance. Such other types of insurance as Landlord may from time to time
reasonably deem necessary and as to which Landlord has given Tenant notice and a reasonable time to
place such insurance.
14.5. General Requirements. All tenant insurance will be issued by insurance companies
authorized to do insurance business in Massachusetts rated not less than A-VII
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in Best’s Insurance Guide, and will not be subject to cancellation or modification without 30 days
prior written notice to Landlord and to any mortgagee required to be covered.
14.6. Waiver of Claims; Waiver of Subrogation. Each party waives any right of recovery against
the other for injury or loss to property due to hazards covered by insurance to the extent of the
injury or loss covered. Any policy of insurance obtained by either party and applicable to the
Premises or the Property will contain a clause denying the insurer any right of subrogation
against the other party, even though such waiver of subrogation requires payment of an
additional premium, for which the party obtaining the policy shall pay.
14.7. Certificates of Insurance. Before making any entry on the Property and at least 30 days
before the expiration of any policy. Tenant will provide certificates of insurance, in form and
substance satisfactory to Landlord, establishing insurance coverages as required by this Section.
14.8. Landlord’s Insurance. Landlord shall insure the Building against damage with full
replacement cost “special cause of loss form” coverage.
15. Assignment and Subleasing. Tenant will not assign this Lease, sublease any part of the Premises
or otherwise transfer this Lease or any interest in this Lease or in the Premises without obtaining
the written consent of Landlord, which shall not be unreasonably withheld, delayed or conditioned
16. Relation of Lease to Mortgages. This Lease will be subordinate to all mortgages on the
Property, now outstanding or hereafter granted, provided that the record holder of a first mortgage
on the Property (a “First Mortgagee”) may elect to place this Lease ahead of the lien of
its mortgage (and of other mortgages on the Property, if it so elects) and may thereafter change
such election, effective as of the recording of a written notice of such election with the Suffolk
Registry of Deeds, with a copy of such notice to Tenant. If a mortgage on the Property is
foreclosed, the foreclosing mortgagee or the purchaser at a foreclosure sale (in either case,
“First Successor Landlord”), may, at its option, require that Tenant attorn to such party
as the Landlord hereunder and continue to be bound by the terms and conditions of this Lease for
the balance of the Term, provided that First Successor also agrees that Tenant’s use and occupancy
of the Premises will not be disturbed so long as Tenant complies with its obligations under this
Lease. Neither the First Successor Landlord nor any successor or assign of a First Successor
Landlord will be (a) liable for any act or omission of or subject to any offsets or defenses which
Tenant might have against any Landlord prior to the First Successor Landlord (a “Prior
Landlord”) except to the extent such act or refusal to act is in violation of this Lease and is
continued by the First Successor Landlord or its successor or assign, (b) liable for the return of
any security deposit not actually paid over to the First Successor Landlord, (c) bound by any
payments which Tenant has paid to a Prior Landlord other than for monthly installments next due.
(d) obliged to make any payment to Tenant which was required to be made prior to the time the First
Successor Landlord took title, or (c) obliged to perform any work or to make any improvements to
the Premises undertaken by a Prior Landlord. A First Mortgagee that gives notice of its address to
Tenant will be entitled to
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receive a simultaneous copy of any notice of default by Tenant to Landlord and will have an
additional 30 days beyond any cure period available to Landlord within which to cure such default,
and unless such additional time expires without cure, Tenant will have no right to terminate this
Lease on account of Landlord’s default. Any amendment or cancellation of this Lease or surrender of
the Premises made without the prior written consent of the First Mortgagee will be void and of no
effect. Landlord shall use reasonable efforts to obtain from its First Mortgagee a so-called
“non-disturbance agreement” wherein such mortgagee agrees that Tenant’s use and occupancy of the
Premises will not be disturbed so long as Tenant complies with its obligations under the this
Lease.
17. Tenant Defaults
17.1. Events of Default. Each of the following will constitute a material default by Tenant (a
“Tenant Default”): (a) failure by Tenant to make any payment required under this Lease
within two days of the date such payment is due; (b) failure by Tenant to maintain insurance and to
provide certificates as required by this Lease; (c) insolvency or admission of insolvency by
Tenant, the filing by or against Tenant of any bankruptcy, receivership or other proceeding under
State or Federal law, or entering into or acquiescence by Tenant to any arrangement affecting the
rights of Tenant’s creditors generally, or attachment, execution or other seizure of substantially
all of Tenant’s assets located at the Premises or Tenant’s interest
in this Lease or the Premises; and, (d) failure by Tenant to fulfill any other material
obligation under this Lease, if such failure (meaning the failure by Tenant to fulfill any other
material obligation under this Lease) is not cured within 20 days of notice from Landlord to
Tenant, or such longer period as may reasonably be necessary, not to exceed a total of 30 days, if
Tenant promptly commences and diligently pursues such cure. Notwithstanding anything in this
Section 17.1 to the contrary. Tenant shall be permitted, during each consecutive 12-month period
hereunder commencing on the Commencement Date, to make 2 payments required under this Lease within
5 days (as opposed to 2 days) of the date such payment is due. As long as such payments are made
within such 5 day periods, Landlord shall not be entitled to declare a Tenant Default with respect
to such payments. However, nothing in the preceding sentence shall affect Landlord’s rights
contained in any other section of this Lease, including without limitation, the provisions of
Section 3.2.
17.2. Termination by Notice. If a Tenant Default occurs, in addition to any other rights or
remedies. Landlord will have the right to terminate this Lease and recover possession of the
Premises by written notice to Tenant, effective on the date specified in such notice or, if no date
is specified, on the date of receipt or first properly attempted delivery of such notice.
17.3. Landlord’s Remedies. In addition to any other rights or remedies, if Landlord terminates
this Lease for a Tenant Default, Landlord will have the right to recover as damages from Tenant:
(a) any amounts owing from Tenant to Landlord at the time of termination, (b) all of Landlord’s
expenses, including reasonable legal fees, incurred in recovering possession of the Premises and in
proving and collecting the sums due from Tenant hereunder, (c) the amount by which the payments
required under this
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Lease for the balance of the Term exceed the fair market rent for the Premises under a gross lease
similar to this Lease, for the balance of the Term, determined as of the date of such termination,
adjusted to its present value at a reasonable discount rate, and (d) the actual or reasonably
anticipated expense to Landlord of preparing and reletting the Premises. Landlord will also have
the right to enter the Premises and to perform any obligation as to which a Tenant Default has
arisen, without being deemed to have cured such Tenant Default and without liability to Tenant, and
Tenant shall reimburse Landlord for any cost and expense thus incurred promptly upon demand as
damages hereunder. In lieu of the damages recoverable under clause (c) above, Landlord may recover
the liquidated damages provided for in Section 17.4, below.
17.4. Liquidated Damages. Landlord and Tenant agree that the actual damages that would be
suffered by Landlord by the loss of the Rent reserved under this Lease if this Lease should be
terminated due to Tenant’s default would be very difficult to estimate as of the date of this
Lease. Landlord and Tenant wish to agree on a sum that would reasonably compensate Landlord for
such loss and accordingly agree that, in lieu of the damages recoverable under Section 17.3(c)
above and as Landlord’s sole remedy therefor Landlord may recover as liquidated damages, and not as
a penalty, an amount equal to the total of the Rent payable by Tenant with respect to the 12 full
calendar months preceding termination.
17.5 Mitigation of Damages. Landlord shall use commercially reasonable efforts to mitigate
damages, including to re-let the Premises, provided that Landlord will not be required to give
priority to the Premises in renting, or to rent on terms or to any person not otherwise acceptable
to Landlord. Landlord and Tenant agree that if Landlord elects to recover liquidated damages under
Section 17.4, above, Landlord will have no obligation to mitigate damages as a condition to
recovering such liquidated damages.
17.6. Security Deposit. Landlord may apply the Security Deposit to remedy any Tenant Default
and to compensate Landlord for any damages which Landlord suffers as a result of such Tenant
Default, without being deemed to have cured such Tenant Default or waived further damages in
connection therewith. Immediately upon demand, Tenant will deposit cash with Landlord in an amount
equal to any portion of the Security Deposit applied by Landlord as aforesaid. Landlord will not be
required to keep the Security Deposit separate from its general accounts and Tenant will not be
entitled to interest on the Security Deposit. Within 30 days after the Termination Date and
vacation of the Premises by Tenant in accordance with the terms
of this Lease, the Security Deposit, or such part as remains after application of this
Section, will be returned to Tenant.
18. Landlord Defaults
18.1. Events of Default. Landlord shall not be deemed to be in default in the performance of
any of its obligations hereunder unless it shall fail to perform such obligations and such failure
shall continue for 20 days after written notice has been given by Tenant to Landlord specifying the
nature of Landlord’s alleged default, provided if such default cannot be reasonably cured within
such 20 day period then within such
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additional time as is reasonably required to correct any such default, and further provided that
Landlord commences to cure such default within such 20 day period and diligently prosecutes it to
completion.
18.2. Tenant’s Remedies. If a Landlord Default occurs and such Landlord Default directly
affects and materially impairs Tenant’s use and enjoyment of the Premises for the Permitted Uses,
Tenant may make such repairs within the Premises and in Common Areas adjacent to the Premises
necessary to restore Tenant’s use, and Landlord will reimburse Tenant for the reasonable and
necessary third party costs thus incurred by Tenant upon receipt from Tenant of a statement of such
costs in reasonable detail and such backup materials as Landlord may reasonably request. If
Landlord fails to so reimburse Tenant within 60 days of receipt by Landlord of such statement and
backup materials, Tenant may offset such amounts against the installment or installments of Rent
next coming due. Unless otherwise expressly provided in this Lease, Tenant will have no right of
self-help, or any right to withhold, set-off, or ▇▇▇▇▇ Rent and neither party to this Lease will be
liable to the other for punitive damages, lost profits, business interruption, speculative,
consequential or other such damages.
18.3. Independent Covenants. Except as specifically provided herein, the obligations of Tenant
under this Lease, including the obligation to pay Rent, and the obligations of Landlord, are
independent and not mutually dependent covenants and the failure of Landlord to perform any
obligation hereunder will not justify or empower Tenant to withhold Rent, except as provided in the
preceding Section 18.2, and the failure of Landlord to perform any obligation hereunder will not
justify or empower Tenant to terminate this Lease unless the Landlord Default constitutes a
constructive eviction.
19. Property Damage or Taking
19.1. Termination. If the Building is destroyed by fire or other cause of loss or the Property
or the Premises are taken in their entirety by eminent domain or conveyed in their entirety by deed
in lieu of taking, this Lease will terminate as of the date of the property damage or the date that
possession of the Property is surrendered to the taking authority, as applicable. If (a) the
Property or the Premises are substantially damaged by fire or other cause of loss and Landlord
determines in its sole discretion not to restore the Property or the Premises or both to
substantially its condition as existing prior to such damage, or (b) a material portion of the
Property or of the Premises is taken by eminent domain or conveyed by deed in lieu of taking, and
Landlord determines in its sole discretion not to restore the remaining portion of the Premises or
of the Property or both to a condition which is legal and suitable for Tenant’s Permitted Uses,
then Landlord may elect to terminate this Lease by notice to Tenant given within 90 days after such
property damage or notice of taking, effective as of the date of Landlord’s notice or, with respect
to a taking, on the date that possession is surrendered to the taking authority.
19.2. Restoration. If Landlord determines (a) to restore the Property and the Premises to
substantially their condition as existed prior to the damage by fire or other cause of loss or (b)
to restore the remaining portion of the Premises or of the Property or
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both to a condition which is legal and suitable for Tenant’s Permitted Uses alter such taking or
conveyance, Landlord shall promptly give notice of such determination to Tenant, but in any
case on or before the last day of the 90 day period referred to in section 19.1, above. Upon giving
such notice to Tenant, Landlord shall promptly begin to use reasonable efforts so to restore the
Property and the Premises (not including fixtures, modifications and additions installed or
required to be installed by Tenant) as soon as is reasonably practical in light of the
circumstances then prevailing, including the time required to collect insurance proceeds and to
obtain any governmental approvals required for restoration, and subject to any other matters beyond
the reasonable control of Landlord, provided that, in no event will Landlord be required to expend
more for restoration of the Property or the Premises than the net amount of insurance or taking
proceeds actually available to Landlord for such purposes. If restoration of the Premises is not
substantially completed within 180 days of the date as of which Landlord notified Tenant that
Landlord had determined to restore the Property and the Premises, Tenant may terminate this Lease
by written notice to Landlord effective as of any day after the end of the 180 day restoration
period, which termination date shall be specified by Tenant in its notice of termination.
19.3. Abatement. If any portion of the Premises is rendered unusable by Tenant as a result of
the property damage or taking described in Section 19.1(a) or 19.1(b) above, and Tenant, at such
time, is not in default under this Lease, the Rent will be abated, in part or in whole, based on
the proportion of the Premises rendered unusable, until the earlier of the time at which Landlord
has substantially completed its restoration or the date on which Tenant resumes use of the damaged
portion of the Premises.
20. Notices. All notices under this Lease will be in writing and will be given: (a) in hand, with
written acknowledgement of receipt, (b) by Federal Express, Express Mail or other nationally
recognized overnight delivery service which provides verification of delivery, charges prepaid, or
(c) by United States certified mail, postage prepaid, return receipt requested, in each case
addressed to Landlord or Tenant at the Notice Address set forth in Section 1, All notices will be
deemed given when received by the intended recipient. Either party may change its Notice Address by
notice given in accordance herewith.
21. Brokers. Tenant represents that Tenant has dealt with no broker in connection with this Lease
except the Brokers named in Section 1. and agrees to hold Landlord harmless and indemnified from
all claims for brokerage due to any person with whom such Tenant has dealt in breach of such
representation. Landlord will be solely responsible for the payment of the brokerage commission due
to the Brokers named in Section I.
22. Limitation on Liability. The recourse of Tenant against Landlord for any claim related to this
Lease will extend only to Landlord’s interest in the Property and the uncollected rents and profits
therefrom. No personal liability for any such claim will be enforceable against Landlord or any
officer, trustee, director, employee, agent or other person or entity related to Landlord
(including, without limitation, The First Church of ▇▇▇▇▇▇, Scientist, in Boston, Massachusetts) or
against any other property, person or
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entity. If Landlord transfers its interest in the Property, the transferring Landlord will
automatically be released from all liability related to this Lease accruing after such transfer.
The transferring Landlord will continue to be responsible for any security deposit received from
Tenant except to the extent that Landlord has transferred same to its successor or assign.
23. Miscellaneous Provisions
23.1. Amendments and Waivers. This Lease may not be amended except by a writing, duly executed
by both parties and approved in writing by any First Mortgagee having approval rights, and no
waiver or consent will be effective unless in writing and signed by the party giving it. A waiver
or consent by either party hereunder will apply only to the specific instance in which granted and
not to any other instance, however similar.
23.2 Interpretation. Both parties acknowledge that they have fully read and understood this
Lease and have had the opportunity to consult counsel to the extent they deemed necessary, and no
provision of this Lease will be construed in favor or against either party by virtue of
such party being the drafter of such provision. Enumeration of some but not all items of a
class should not be construed as excluding others, notwithstanding the absence of the phrase
“without limitation” or words of like meaning.
23.3. Invalid Provisions. If any provision of this Lease is finally determined by a court of
competent jurisdiction to be in violation of law or otherwise invalid, this Lease will be deemed
amended to the limited extent necessary to cure such violation or invalidity and will be
interpreted, as thus amended, so as to implement the intentions of the parties to the greatest
extent possible.
23.4. Time of the Essence; Force Majeure. Time is of the essence as to all rights and
obligations of the parties hereunder unless specifically provided to the contrary. Notwithstanding
the foregoing, if either party fails to perform an obligation hereunder, other than the obligation
of Tenant to pay Rent when due, which failure results from causes beyond the reasonable control of
such party, including, without limitation, labor problems, contractor disputes, legal requirements,
unavailability of equipment, fixtures or materials, property damage caused by fire or other cause
of loss, or disruption or unavailability of utilities or services (a “Force Majeure
Event”), the amount of time for performance of such obligation shall be extended by the amount
of time such performance is delayed by reason of such Force Majeure Event.
23.5. Jurisdiction; Governing Laws; No Counterclaim. Any action by either party against the
other will be instituted in the state courts of Massachusetts under Massachusetts law, and each
party will have personal jurisdiction over the other for any action brought by such party in
Massachusetts by service made to the other party’s Notice Address.
23.6. Successors and Assigns. Subject to the provisions of Section 22 above, the benefits and
burdens of this Lease will extend to the original Landlord and Tenant and to
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their respective successors and assigns, who will be included within the terms “Landlord” and
“Tenant” as used herein, provided that no transferee from Tenant in violation of the provisions of
this Lease will be entitled to any of the rights or benefits of a Tenant hereunder.
23.7. Estoppel Certificates. Each of the parties, within 10 days of written request from the
other, shall provide a certificate identifying this Lease and any amendments hereto, setting forth
the amount of the then current monthly installment of Rent and of any Security Deposit held
hereunder, stating whether this Lease remains in effect, whether there are any defaults by Landlord
or Tenant, whether any Rent has been paid more than 30 days in advance, whether Tenant is in
possession and paying Rent, whether Tenant claims any off-sets or credits or has any other defenses
to the payment of Rent hereunder, and containing such other reasonable and customary information as
may be requested.
23.8 Counterparts. This Lease may be executed in two or more counterparts.
23.9. Exhibits. The Exhibits to this Lease, which are listed immediately below
the signature block, are incorporated by reference into this Lease.
23.10. Action by Trustees of Church Realty Trust. The undersigned Trustees of Church Realty
Trust represent that any two of the three Trustees thereof are a majority of such Trustees and have
all necessary power and authority to enter into this Lease and related documents, including a
Parking License Agreement and a Contract for Cleaning Services by virtue of the last sentence of
Paragraph 8 of the Deed of Trust, which states: “All of the powers conferred on said Trustees by
this instrument may be exercised by a majority thereof.”
23.11. Time for Performance. Any action under this Lease that is permitted or required to be
taken on a day that is a Saturday, Sunday or a legal holiday in Massachusetts may be taken on the
next day that is not a Saturday, Sunday or legal holiday in Massachusetts.
23.12 Entire Agreement. This Lease contains the entire agreement of the parties respecting
the Premises and the Property and there are no other agreements or understandings between the
parties regarding the subject matter of this Lease, any prior agreements being merged herein and
superseded.
[Signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first above written.
| LANDLORD | Trustees of Church Realty Trust |
|||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee of Church Realty | ||||
| Trust and not individually | ||||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee of Church Realty Trust and not individually | ||||
| See Section 23.10 | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustee of Church Realty | ||||
| Trust and not individually | ||||
| TENANT | Carbonite, Inc. |
|||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇▇▇, President | ||||
Exhibit A: Floor Plans and Description of Premises
Exhibit B: Building Rules and Regulations
Exhibit B: Building Rules and Regulations
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EXHIBIT A
Floor Plan of Premises
The Floor Plan of the Premises is attached to and forms
part of this Exhibit A.
Description of Premises
The Premises include and are defined by the interior surfaces of all exterior walls of the
Building, the interior surfaces of all demising walls within the Building, the doors and doorways
that pass through all such demising walls, the interior surfaces of all exterior windows, the upper
surface of the permanent structure of the floor, and the upper surface of any suspended ceiling.
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EXHIBIT B
Building Rules and Regulations
The following rules and regulations shall apply, where applicable, to the Premises, the
Building, the parking garage (if any), the Property and the appurtenances. Capitalized terms have
the same meaning as defined in the Lease.
| 1. | Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to and from the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or thrown in those areas. At no time shall Tenant permit Tenant’s employees to loiter in Common Areas or elsewhere about the Building or Property. |
| 2. | Plumbing fixtures and appliances shall be used only for the purposes for which designed, and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in the fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its agents, employees or invitees, shall be paid for by Tenant, and Landlord shall not be responsible for the damage. |
| 3. | No signs, advertisements or notices shall be painted or affixed to windows, doors or other parts of the Building, except those of such color, size, style and in such places as are first approved in writing by Landlord. All tenant identification and suite numbers at the entrance to the Premises shall be subject to Landlord’s approval rights set forth in Section 7.1 of the Lease and shall be installed at Tenant’s expense. Except in connection with the hanging of lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into any part of the Premises or Building except by the Building maintenance personnel. |
| 4. | Landlord will at its expense provide and maintain in the first floor (main lobby) of the Building an alphabetical directory board or other directory device listing tenants, and no other directory shall be permitted unless previously consented to by Landlord in writing. |
| 5. | Tenant shall not place any lock(s) on any door in the Premises or Building without Landlord’s prior written consent and Landlord shall have the right to retain at all limes and to use keys to all locks within and into the Premises. A reasonable number of keys to the locks on the entry doors in the Premises shall be furnished by Landlord to Tenant at Tenant’s cost, and Tenant shall not make any duplicate keys. All keys shall be returned to Landlord at the expiration or early termination of this Lease. |
| 6. | All contractors, contractor’s representatives and installation technicians performing work in the Building shall be subject to Landlord’s prior approval and |
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| shall be required to comply with Landlord’s standard rules, regulations, policies and procedures, which may be revised from time to time. | ||
| 7. | Movement in or out of the Building of furniture or office equipment, or dispatch or receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby areas or loading dock areas, shall be restricted to hours designated by Landlord. Tenant shall obtain Landlord’s prior approval by providing a detailed listing of the activity. If approved by Landlord, the activity shall be under the supervision of Landlord and performed in the manner required by Landlord. Tenant shall assume all risk for damage to articles moved and injury to any persons resulting from the activity. If equipment, property, or personnel of Landlord or of any other party is damaged or injured as a result of or in connection with the activity, Tenant shall be solely liable for any resulting damage or loss. | |
| 8. | Landlord shall have the right to approve the weight, size, or location of heavy equipment or articles in and about the Premises. Damage to the Building by the installation, maintenance, operation, existence or removal of Tenant’s Property shall be repaired at Tenant’s sole expense. | |
| 9. | Corridor doors, when not in use, shall be kept closed. | |
| 10. | Tenant shall not: (1) make or permit any improper, objectionable or unpleasant noises or odors in the Building, or otherwise interfere in any way with other tenants or persons having business with them; (2) solicit business or distribute, or cause to be distributed, in any portion of the Building, handbills, promotional materials or other advertising; or (3) conduct or permit other activities in the Building that might, in Landlord’s sole opinion, constitute a nuisance. | |
| 11. | No animals, except those assisting handicapped persons, shall be brought into the Building or kept in or about the Premises. | |
| 12. | No inflammable, explosive or dangerous fluids or substances shall be used or kept by Tenant in the Premises, Building or about the Property. Tenant shall not, without Landlord’s prior written consent, use, store, install, spill, remove, release or dispose of, within or about the Premises or any other portion of the Property, any asbestos-containing materials or any solid, liquid or gaseous material now or subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any other applicable environmental Law which may now or later be in effect. Tenant shall comply with all Laws pertaining to and governing the use of these materials by Tenant, and shall remain solely liable for the costs of abatement and removal. | |
| 13. | Tenant shall not use or occupy the Premises in any manner or for any purpose which might injure the reputation or impair the present or future value of the |
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| Premises or the Building. Tenant shall not use, or permit any part of the Premises to be used, for lodging, sleeping or for any illegal purpose. | ||
| 14. | Tenant shall not take any action which would violate Landlord’s labor contracts or which would cause a work stoppage, picketing, labor disruption or dispute, or interfere with Landlord’s or any other tenant’s or occupant’s business or with the rights and privileges of any person lawfully in the Building (“Labor Disruption”). Tenant shall take the actions necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of Landlord, immediately terminate any work in the Premises that gave rise to the Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant shall have no claim for damages against Landlord or any of the Landlord Related Parties, nor shall the Commencement Date of the Term be extended as a result of the above actions. |
| 15. | Tenant shall not install, operate or maintain in the Premises or in any other area of the Building, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electronic or gas heating devices, without Landlord’s prior written consent. Tenant shall not use more than its proportionate share of telephone lines and other telecommunication facilities available to service the Building. |
| 16. | Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenant’s employees, and then only if the operation docs not violate the lease of any other tenant in the Building. |
| 17. | Bicycles and other vehicles arc not permitted inside the Building or on the walkways outside the Building, except in areas designated by Landlord in the parking garage. |
| 18. | Landlord may from time to time adopt systems and procedures for the security and safety of the Building, its occupants, entry, use and contents. Tenant, its agents, employees, contractors, guests and invitees shall comply with Landlord’s systems and procedures. |
| 19. | Landlord shall have the right to prohibit the use of the name of the Building or any other publicity by Tenant that in Landlord’s sole opinion may impair the reputation of the Building or its desirability. Upon written notice from Landlord, Tenant shall refrain from and discontinue such publicity immediately. |
| 20. | Tenant shall not canvass, solicit or peddle in or about the Building or the Property. |
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Carbonite Lease
6.23.09
6.23.09
| 21. | Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or permit smoking in the Common Areas, unless the Common Areas have been declared a designated smoking area by Landlord, nor shall the above parties allow smoke from the Premises to emanate into the Common Areas or any other part of the Building. Landlord shall have the right to designate the Building (including the Premises) as a non-smoking building. |
| 22. | Landlord shall have the right to designate and approve standard window coverings for the Premises and to establish rules to assure that the Building presents a uniform exterior appearance. Tenant shall ensure, to the extent reasonably practicable, that window coverings are closed on windows in the Premises while they are exposed to the direct rays of the sun. |
| 23. | Deliveries to and from the Premises shall be made only at the times, in the areas and through the entrances and exits designated by Landlord. Tenant shall not make deliveries to or from the Premises in a manner that might interfere with the use by any other tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent with good business practice. |
| 24. | The work of cleaning personnel shall not be hindered by Tenant after 5:30 P.M., and cleaning work may be done at any time when the offices are vacant. Windows, doors and fixtures may be cleaned at any time. Tenant shall provide adequate waste and rubbish receptacles to prevent unreasonable hardship to the cleaning service. |
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