by Landlord as a result of Tenant's
delinquent payments.
Acceptance of a late charge or interest shall not
constitute a waiver of Tenant's default with respect to the overdue amount or
prevent Landlord from exercising any of the other rights and remedies available
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 AGREES THAT THE OBLIGATIONS OF TENANT
HEREUNDER SHALL BE SEPARATE AND INDEPENDENT COVENANTS AND AGREEMENTS, THAT RENT
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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.
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 of $1,698,714.80 (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