all Base Rent and
Additional Rent 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.
5.5 No 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 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.
PAGE 14
5.6 Survival. Any payment 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.
6. INTENTIONALLY OMITTED.
7. SECURITY DEPOSIT; LETTER OF CREDIT
7.1 Amount. Contemporaneously with the execution of this Lease, Tenant shall
deliver to Landlord either as Tenant shall so elect (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 7.4 below, or (ii) an irrevocable
letter of credit (the "Letter of Credit") that shall (a) be in the initial
amount of $560,234.61; (b) be issued on the form attached hereto as Exhibit 5;
(c) name Landlord as its beneficiary; and (d) be drawn on an FDIC insured
financial institution reasonably satisfactory to Landlord that satisfies both
the Minimum Rating Agency Threshold and the Minimum Capital Threshold (as those
terms are defined below). The "Minimum Rating Agency Threshold" shall mean that
the issuing bank has outstanding unsecured, uninsured and unguaranteed senior
long-term indebtedness that is then rated (without regard to qualification of
such rating by symbols such as "+" or "-" or numerical notation) "Baa" or better
by Moody's Investors