to Landlord under this Lease or at law or in equity now or hereafter in effect.
(f)If Tenant during any six (6) month period shall be more than five (5) days
delinquent in the payment of any installment of Rent on three (3) or more
occasions, then, notwithstanding anything herein to the contrary, Landlord may,
by written notice to Tenant, elect to require Tenant to pay all Base Rent and
Additional Rent on account of Operating Costs and Taxes quarterly in
advance.
Such right shall be in addition to and not in lieu of any other right
or remedy available to Landlord hereunder or at law on account of Tenant's
default hereunder.
5.5No Offset; Independent Covenants; Waiver.
Rent shall be paid without notice
or demand, and without setoff, counterclaim, defense, abatement, suspension,
deferment, reduction or deduction, except as expressly provided herein.
TENANT
WAIVES ALL RIGHTS (I) TO ANY ABATEMENT, SUSPENSION, DEFERMENT, REDUCTION OR
DEDUCTION OF OR FROM RENT, AND (II) TO QUIT, TERMINATE OR SURRENDER THIS LEASE
OR THE PREMISES OR ANY PART THEREOF, EXCEPT AS EXPRESSLY PROVIDED
HEREIN.
TENANT HEREBY ACKNOWLEDGES AND
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AGREES THAT THE OBLIGATIONS OF TENANT HEREUNDER SHALL BE SEPARATE AND
INDEPENDENT COVENANTS AND AGREEMENTS, THAT RENT SHALL CONTINUE TO BE PAYABLE IN
ALL EVENTS AND THAT THE OBLIGATIONS OF TENANT HEREUNDER SHALL CONTINUE
UNAFFECTED, UNLESS THE REQUIREMENT TO PAY OR PERFORM THE SAME SHALL HAVE BEEN
TERMINATED PURSUANT TO AN EXPRESS PROVISION OF THIS LEASE.
LANDLORD AND TENANT
EACH ACKNOWLEDGES AND AGREES THAT THE INDEPENDENT NATURE OF THE OBLIGATIONS OF
TENANT HEREUNDER REPRESENTS FAIR, REASONABLE, AND ACCEPTED COMMERCIAL PRACTICE
WITH RESPECT TO THE TYPE OF PROPERTY SUBJECT TO THIS LEASE, AND THAT THIS
AGREEMENT IS THE PRODUCT OF FREE AND INFORMED NEGOTIATION DURING WHICH BOTH
LANDLORD AND TENANT WERE REPRESENTED BY COUNSEL SKILLED IN NEGOTIATING AND
DRAFTING COMMERCIAL LEASES IN MASSACHUSETTS, AND THAT THE ACKNOWLEDGEMENTS AND
AGREEMENTS CONTAINED HEREIN ARE MADE WITH FULL KNOWLEDGE OF THE HOLDING IN
WESSON V. LEONE ENTERPRISES, INC., 437 MASS. 708 (2002).
SUCH ACKNOWLEDGEMENTS,
AGREEMENTS AND WAIVERS BY TENANT ARE A MATERIAL INDUCEMENT TO LANDLORD ENTERING
INTO THIS LEASE.
5.6Survival.
Any obligations under this Section 5 which shall not have been
paid at the expiration or earlier termination of the Term shall survive such
expiration or earlier termination and shall be paid when and as the amount of
same shall be determined and be due, subject to any applicable statute of
limitations.
6.
Intentionally Omitted.
7.
LETTER OF CREDIT
7.1Amount.
Contemporaneously with the execution of this Lease, Tenant shall
deliver to Landlord either (i) cash in the amount specified in the Lease Summary
Sheet (the "Cash Security Deposit"), which shall be held by Landlord in
accordance with Section 7.5 below, or (ii) an irrevocable letter of credit (the
"Letter of Credit") that shall (a) be in the initial amount of $622,421.90; (b)
be issued on the form attached hereto as Exhibit 6; (c) name Landlord as its
beneficiary; (d) be drawn on an FDIC insured financial institution reasonably
satisfactory