This REVOCABLE PARKING LICENSE AGREEMENT ("Agreement") is entered as of this day of , 20 by and between 180 Wells Realty LLC, a Massachusetts limited liability company with an address of 60 Wells Avenue, Suite 100, Newton, Massachusetts 02459 ("Licensor") and CyberArk Software, Inc., having an address at 60 Wells Avenue, Suite 102, Newton, Massachusetts 02459 ("Licensee").
RECITALS:
WHEREAS, Licensee desires to enter into a revocable license arrangement for the use of a limited part of the paved parking area on a portion of the property commonly known as 180 Wells Avenue, Newton, Massachusetts (the "Property"); and
WHEREAS, Licensor is willing to enter into a revocable license arrangement for the use of a limited part of the paved parking area on a portion of the Property, subject to and conditioned upon compliance with this Agreement; and
WHEREAS, this Agreement is entered by Licensor and Licensee pursuant to the terms of that certain Lease between Wells 60 Realty LLC (as Landlord), and Licensee (as Tenant) dated October 28, 2013, as amended, relating to certain premises located at 60 Wells Avenue, Newton, MA (the "60 Wells Lease").
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree as follows:
| 1. | Grant of License.Subject to and conditioned upon the terms and provisions of this Agreement, Licensor hereby grants to Licensee a temporary, revocable license ("Revocable Parking License") to use for parking only the twenty-four (24) parking spaces initially in the area ("Licensed Area") as shown on the sketch attached as Exhibit A. Licensor may from time to time in its sole discretion relocate or re-designate all or any portion of the Licensed Area upon seven (7) days prior written notice ("Relocation Notice") to Licensee, at which time the Licensed Area shall be changed as provided in the Relocation Notice. The Revocable Parking License creates only a revocable license arrangement with Licensee personally and no other party, and there are no tenancy, occupancy or possessory rights of any kind or nature created under this Agreement. |
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| 2. | Term.The Term of this Agreement and the Revocable Parking License shall be for a period beginning on the Term Commencement Date and ending on the Expiration Date unless earlier tenninated as provided herein (the "Term"), without any right of renewal or extension. Notwithstanding the foregoing, at Licensor's option and in its sole discretion and in addition to Licensor's right to tenninate this Agreement and the Revocable Parking License upon Licensee's Default hereunder, Licensor may tenninate this Agreement and the Revocable Parking License by providing Licensee not less than sixty (60) days advance written notice of its intention to terminate ("Termination Notice"). Additionally, at any time on or after January 1, 2020, Licensee shall have the right to terminate this Agreement and the Revocable Parking License by providing Licensor not less than six (6) calendar months' notice of its intention to terminate ("Licensee Termination Notice"). Licensee agrees to timely cease using the Licensed Area and vacate and surrender the Licensed Area to Licensor in the condition required by this Agreement by the date set forth for termination in the Termination Notice or Licensee Termination Notice, on which date this Agreement and the Revocable Parking License will terminate (except for provisions of this Agreement that by their terms survive such termination). |
| 3. | Term Commencement Date. | , 20 (that date which is ninety (90) days after notice from Licensee of Licensee's election to proceed). |
| 4. | Expiration Date.That date which is the last day of the Additional Premises Initial Term (as defined in the 60 Wells Lease), subject to the rights of early termination set forth in Paragraph 2 of this Agreement. |
| 5. | Base License Fee.During the Term of this Agreement and Revocable Parking License, the Base License Fee ("Base Fee") shall be at the annual rate of$3I,680.00, with each monthly installment being $2,640.00. Each monthly installment of the Base Fee is payable monthly in advance, without offset, setoff or deduction for any reason, on the first day of each month, and shall be made payable to Licensor at the address set forth in the first paragraph, or, upon ten (10) days prior written notice from Licensor to Licensee, to Licensor's designee. At Licensor's request the Base Fee shall be paid by ACH deposits. |
| 6. | Licensed Area.The Licensed Area is only to be for the use and during the hours set forth in Section 7 hereof and for no other purpose. Licensee has the right, in common with Licensor, licensees of the Property and others acting by, through and under Licensor and such licensees, to use the paved passageways closest to the Licensed Area ("Access Areas") on the Property for ingress to and egress from the Licensed Area and Wells Avenue. Pursuant to the Relocation Notice as provided in Section I of this Agreement, Licensor has the right at any time and from time to time during the Term to relocate all or a portion of the Licensed Area to another area of the parking lot servicing the Property. In no event shall Licensee be permitted to use any additional parking spaces/areas at the Property other than within the Licensed Area. Licensee agrees that Licensor shall not be responsible to police or otherwise monitor the Licensed Area in any manner, including, without limitation, Licensor is not responsible to ensure that unauthorized vehicle(s) are not parked within the Licensed Area. In no event shall Licensee have any right to tow, remove or otherwise notice (or cause any such towing, removal or notice of) any unauthorized vehicle(s) parked within Licensee's Licensed Area. |
| 7. | Use.The use of the Licensed Area is only for use of transient and not overnight parking of Licensee's employees' passenger automobiles only, and for no other use. To the extent permitted by applicable laws only, the Licensed Area is only to be used daily between the hours of 5:00 a.m. - midnight. All Licensee's employees' automobiles shall be registered, insured and in good operating and aesthetic condition. Licensee shall use the Licensed Area for parking of passenger vehicles only, and no repairing, washing, refueling, or maintaining of vehicles shall be permitted at the Licensed Area at any time. Licensee shall not permit any work to be performed on the vehicles nor any water, fumes, noise nor other adverse condition to occur on or emanate from the Licensed Area. Licensee shall comply with all applicable laws in connection with its use of the Licensed Area. Licensee shall keep the Licensed Area clean and free of any litter and debris. Licensee agrees, which agreement shall survive the tennination of this Agreement and the Revocable Parking License, that Licensor has no responsibility whatsoever for any loss, theft, damage or destruction to any vehicle in, at or near the Property or Licensed Area, or in connection with or arising out of the Revocable Parking License. |
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| 8. | Security Deposit.The Security Deposit shall be $2,640.00 paid to Licensor upon signing this Agreement. The Security Deposit shall be refunded to Licensee without interest within sixty (60) days after the Expiration Date conditioned upon and subject to the terms of this Agreement, including, without limitation, subject to Licensee's satisfactory compliance with the conditions of this Agreement and subject to deduction by Licensor for payment of Licensee's obligations not then fulfilled by Licensee. Licensor may use the Security Deposit to pay for any obligation hereunder not timely paid or performed by Licensee, and upon ten (I 0) days prior written notice from Licensor, Licensee shall replenish the Security Deposit to the full $2,640.00. |
| 9. | Insurance.Licensee shall procure and maintain in full force and effect during the Term of this Agreement a policy of comprehensive, general liability insurance in form, substance and amount satisfactory to Licensor, each on an occurrence basis, with minimum coverages for commercial general liability to be in an amount not less than $1,000,000.00 for each occurrence and $2,000,000.00 in the aggregate, and with an overall umbrella coverage of $5,000,000.00. The foregoing policy(ies) shall include without limitation non-owned and hired automobile coverage. All insurance policies and the amounts of insurance shall be location specific to 180 Wells Avenue, Newton, Massachusetts. Each policy of insurance shall name as additional insureds Licensor and Intrum Corp. and other related parties and/or mortgagee(s) of the Property (collectively, "Licensor Related Parties") of which Licensee receives ten (IO) days advance written notice. Each such policy shall be Best Rated A- or better and non-cancelable with respect to Licensor and the Licensor Related Parties on less than thirty (30) days prior written notice to Licensor. Upon execution of this Agreement, a duplicate original or certificate of each insurance policy shall be delivered to Licensor with all premiums paid through at least the first twelve (12) months after the date hereof, and new or updated policies or certificates of insurance (each evidencing twelve (12) month's full premium payment) shall be delivered to Licensor not later than thirty (30) days prior to the expiration date of each then existing policy. Licensee hereby releases Licensor from any and all liability for any loss or damage resulting from or arising out of Licensee's or its employees' or patrons' use under this Agreement regardless of the fault or negligence of Licensor, and Licensee shall secure a waiver of subrogation provision in each applicable insurance policy. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| 10. | Additional Payments. In addition to the Base Fee and any other payments due from Licensee to Licensor hereunder, Licensee agrees to pay Licensor's costs, in connection with Licensor's work to identify the Licensed Area including, without limitation, costs to pay for signage and striping or other identification of the parking spaces in the Licensed Area (collectively, the "Identification Costs"). In connection therewith and simultaneously with the execution of this Agreement, Licensee shall pay to Licensor $1,000.00 ("Initial Additional Payment") towards the Identification Costs. Licensor and Licensee agree that upon Licensor's determination of the final amount of Identification Costs, either (i) Licensor shall return to Licensee such amount overpaid by Licensee that is the difference between the actual Identification Costs and the Initial Additional Payment, or (ii) Licensee shall pay to Licensor within 15 days following billing from Licensor, the amount that the Identification Costs exceeds the Initial Additional Payment. |
| 11. | Exoneration/Indemnification. Licensee will exonerate, indemnify, save and hold harmless Licensor and its managers, members, employees, agents, successors and assigns ("Licensor Parties") from and against any and all claims, liabilities or penalties asserted by or on behalf of any third party(ies): (i) on account of, or based upon, any injury to any person or loss of or damage to property sustained or occurring for any reason arising out of or related to Licensee's use of the Licensed Area or Access Areas; and (ii) on account of, or based upon, any injury to any person or loss of or damage to, property sustained or resulting from Licensee's breach of any provision of this Agreement, including without limitation, related to the use or release by Licensee, or those acting by, through or under Licensee, of any hazardous or toxic materials or waste as defined under any state or federal law. Notwithstanding the foregoing, Licensee shall not be liable under this Section 11 on account of claims, liabilities or penalties incurred on account of Licensor's Parties' gross negligence or willful misconduct. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
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| A. | Repairs. Licensor has the right from time to time to maintain, repair and replace the paving and lighting on the Licensed Area and the Access Area as deemed necessary by Licensor, during which time certain portions of the Licensed Area or Access Area may be unavailable for use by Licensee. |
| B. | Reimbursement of Costs. Any additional costs above the Base Fee to be paid to Licensor by Licensee under this Agreement shall be reimbursed to Licensor within thirty (30) days following billing and shall be paid to Licensor in the same manner and at the same address as provided for the payment of monthly installments of the Base Fee. |
| C. | License Termination. Upon termination of this Agreement and the Revocable Parking License, Licensee shall vacate the Licensed Area and leave it in at least as good condition as when Licensee's occupancy began, subject to ordinary wear, and as later improved; and all Licensee's property and all debris shall be removed and all damage repaired. This Section shall survive the termination of the Revocable Parking License and this Agreement. |
| D. | Maintenance, Repair and Replacement. Except as otherwise set forth below, Licensee shall be responsible at its own cost and expense to keep, or cause to be kept, clean and maintain the Licensed Area in good condition. Subject to Force Majeure events, Licensee's actions, and other occurrences beyond Licensor's reasonable control including, without limitation, the acts or omissions of third parties, Licensor shall be responsible in a commercially reasonable manner for the following: (i) the plowing and removal of snow from and sanding of ice to the Licensed Area as well as the passageways thereto and therefrom; and (ii) maintaining the existing parking lot lighting on or adjacent to the Licensed Area consistent with its current maintenance practices. Licensor shall also maintain, repair and replace the paving and lighting in the Licensed Area and Access Areas as deemed necessary by Licensor. Licensee agrees to cooperate with Licensor in connection with Licensor's responsibilities in this paragraph, including, without limitation, Licensee's arranging for vehicles to temporarily vacate and not use the Licensed Area from time to time to permit Licensor to perform its responsibilities. |
| E. | As Is Condition. Licensee shall not be permitted to make any alterations or additions to the Licensed Area. Licensee agrees that Licensee has fully inspected the Licensed Area and Access Areas, has entered into this Agreement based on its own investigations and without reliance on any Licensor representation or warranty of any kind and accepts the Licensed Area in its "AS IS", with all faults, condition. |
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| F. | Assignment and Sublicensing. Licensee shall not assign this Agreement nor sublicense any rights to the whole or any part of the Licensed Area, and any purported assignment or sublicense shall be void ab initio. |
| G. | Default. The term "Default" or "default" means (i) the failure of Licensee to pay any installment of the Base Fee or any other amount due hereunder on or within ten (10) days after its due date or (ii) the failure of Licensee to cure any non-monetary breach of this Agreement within ten (10) business days after written notice to Licensee. Upon a Default, Licensor shall have the right, at its option, to declare by written notice to Licensee, this Agreement and the Revocable Parking License immediately terminated, and thereafter to use the Licensed Area for any purpose, to deny Licensee access to the Property and remove from the Property, at Licensee's sole cost and expense and without liability to Licensor, all the vehicles and other property of Licensee and Licensee's employees and patrons, and to exercise all other remedies available to Licensor as provided in this Agreement and otherwise available at law and in equity. Licensor's remedies under this Agreement and at law and in equity are cumulative and may be exercised in any manner of Licensor's election. Costs of enforcement and collection, plus interest on all amounts not paid when due at 1.5% a month, shall be paid by Licensee to Licensor. In the event of a Default by Licensee resulting in Licensor's termination of this Agreement and the Revocable Parking License, Licensee (a) shall pay Licensor within seven (7) days after being invoiced therefor, the total of all amounts due from Licensee under this Agreement until Licensee has vacated the Licensed Area and left it in the condition required hereunder, and (b) shall pay Licensor within ten (10) days after being invoiced therefor, a sum equal to twelve (12) months of the Base Fee except if there are less than twelve (12) months left in the Term, in which case such sum shall be equal to the Base Fee for the remainder of the Tenn, plus interest at the rate of 18% per annum from the date(s) due through the date of payment of the foregoing amounts under (a) and (b) of this sentence, and plus (c) the costs of collection. Timely payment of the sums set forth in (a), (b) and (c) above shall be deemed liquidated damages on account of such default and termination, except for obligations specifically set forth herein to survive termination, and except that Licensor shall retain all rights, and Licensee shall continue to be liable under, Section 12.M. for Licensee's unauthorized use after termination. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| H. | Subordination. This Agreement is automatically subordinate to all present and future Licensor mortgage financing. |
| I. | Licensor Liability. Notwithstanding anything to the contrary contained herein, Licensor shall have no liability except for willful misconduct or gross negligence, and then only for the cost of the repair of personal property. Performance by Licensor shall be excused by third party delays. Licensor shall not be responsible for interruption in the outdoor lighting or other services/delivered by third parties. Licensor is only liable for its obligations hereunder during its time of ownership of the Property, with each successive owner of the Property only liable for its obligations hereunder during its respective period of ownership. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| J. | Broker. Licensee represents and warrants to Licensor that it was not shown the Licensed Area by any broker nor was any broker or finder involved in Licensee's entering into this Agreement. Licensee shall indemnify Licensor from the falseness of the foregoing representation or warranty. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
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| K. | Signage. Licensee shall not place signage at/on or paint or otherwise decorate or do any other work in or to the Licensed Area. |
| L. | Notice. Notices from Licensor to Licensee under this Agreement shall be deemed duly served if delivered to Licensee's offices located at 60 Wells Avenue, Suite 102, Newton, Massachusetts 02459, or at such other address as Licensor shall notify Licensee, in each case to the attention of Randy A. Goldberg. Licensee's local contact in Newton is ("Contact Person") who may be reached at ----------' with an e-mail address of ------------ with Licensee agreeing to notify Licensor with any change of the Contact Person and/or contact information. Otherwise, notices hereunder shall be deemed duly given from and after such time as (i) deposited with the U.S. Mails, for delivery via registered or certified mail, return receipt requested, postage prepaid, (ii) deposited for overnight delivery with a national courier with delivery tracking service such as FedEx, or (iii) by in-hand delivery to Licensee or Licensor at his/their/its Initial Address on the top of the first page hereof, or at such replacement address as may from time to time be given upon ten (10) days advance written notice to the other. |
| M. | Licensee's Unauthorized Use After Termination. In the event that Licensee continues to access and use the Licensed Area or any portion of the Property beyond the expiration of the Term of this Agreement, or earlier termination of this Agreement or the Revocable Parking License, such use shall not create any rights in Licensee but shall subject Licensee to all the obligations set forth herein but at a rate equal to $7,920.00 for each month or part of any month ("Unauthorized Use Rate") during which Licensee continues such unauthorized use. The foregoing is not intended to create liability from Licensee to Licensor for those parties that are not permitted to park within the Licensed Area under the terms of this Agreement. The acceptance of a purported fee check following the end of the Term shall not constitute the creation of any rights in Licensee, it being agreed that Licensee's status shall remain unlawful and a continuing Default of this Agreement, and notwithstanding anything set forth in this Agreement, Licensor shall have the right to exercise any and all rights and remedies available to Licensor hereunder and at law or in equity, including, without limitation, rights and remedies available on account of trespass. Licensee shall also pay to Licensor all damages, whether direct and/or indirect, sustained by reason of such unauthorized use. Otherwise, such unauthorized use shall be on the terms and conditions set forth in this Agreement, as far as applicable. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| N. | Rules and Regulations. Licensee agrees to comply with all reasonable rules and regulations which Licensor may establish from time to time for the orderly and efficient management and operation of the Property or any portion thereof. |
| 0. | Counterparts. This Agreement may be signed in multiple originals and/or may be separately signed and assembled to contain the signatures of all the parties, with each counterpart constituting an original document. |
| P. | Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts. Licensee agrees that (a) jurisdiction for any legal process taken with respect to this Agreement and/or enforcement or compliance by or against any of the parties to this Agreement shall be exclusively commenced and processed within the State Courts of Norfolk, Middlesex or Suffolk Counties of the Commonwealth of Massachusetts, and (b) each such party submits to such jurisdiction. |
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| Q. | Entire Agreement. This Agreement contains the entire agreement between the parties and the terms may not in any way be altered, modified, or changed, or shall any term be added to or deleted from the agreement except by a writing signed by both parties. Licensor and Licensee agree there are no other agreements or understandings between Licensor and Licensee in the matters addressed in this Agreement. |
| R. | No Joint Venture. Nothing in this Agreement is intended to or shall be construed to create either an express or implied partnership or joint venture between the parties. |
| S. | Authority. Each individual executing this Agreement on behalf of his or her respective party represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity in accordance with the governing documents of such entity, and that upon full execution and delivery this Agreement is binding upon said entity in accordance with its terms. |
| T. | Unauthorized Parking. In addition to all the rights and remedies of Licensor hereunder, Licensor and Licensee agree to the provisions of this Section. Licensor, at its option, has the right to notify Licensee of the unauthorized use by Licensee's employee(s) of either of the following (each, an "Unauthorized Use"): (i) parking in areas outside the Licensed Area; or (ii) parking in the Licensed Area at times other than the pennitted hours; or (iii) using the Licensed Area or any other portion of the Property for uses other than as permitted under Section 7 of this Agreement. Upon the second notice in any twelve (12) month period from Licensor to Licensee of Unauthorized Use, the Base Fee shall be increased to the Unauthorized Use Rate, which Unauthorized Use Rate shall continue from the date of the second notice until such time as Licensee has demonstrated to Licensor that such Unauthorized Use has been discontinued for at least four (4) full consecutive weeks, provided, however, such Unauthorized Use Rate shall be payable for not less than one (I) full month. In addition, Licensee shall at all times use good faith efforts to prevent those parties affiliated with Licensee (including without limitation Licensee's guests and patrons) who are not permitted to use the Licensed Area under the terms of this Agreement from parking within the Licensed Area. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
End of text - Signature page follows
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Executed as a sealed instrument as of the date first written above.
LICENSOR: 180 Wells Realty LLC By: Intrum Corp., Manager By: _______________________ Randy A. Goldberg, President | LICENSEE: CyberArk Software, Inc.
By: ________________________________________________________
Ehud Mokady, President and CEO duly authorized By: _________________________________________________________ Suzy Peled-Spigelman, Vice President Finance, Americas, duly authorized |
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Exhibit A
Plan of Licensed Area
EXHIBITB-2
FORM OF 20 SPACE REVOCABLE PARKING LICENSE AGREEMENT
20 SPACE REVOCABLE PARKING LICENSE AGREEMENT
This REVOCABLE PARKING LICENSE AGREEMENT ("Agreement") is entered as of this day of , 20 by and between 180 Wells Realty LLC, a Massachusetts limited liability company with an address of 60 Wells Avenue, Suite 100, Newton, Massachusetts 02459 ("Licensor") and CyberArk Software, Inc., having an address at 60 Wells Avenue, Suite 102, Newton, Massachusetts 02459 ("Licensee").
RECITALS:
WHEREAS, Licensee desires to enter into a revocable license arrangement for the use of a limited part of the paved parking area on a portion of the property commonly known as 180 Wells Avenue, Newton, Massachusetts (the "Property"); and
WHEREAS, Licensor is willing to enter into a revocable license arrangement for the use of a limited part of the paved parking area on a portion of the Property, subject to and conditioned upon compliance with this Agreement; and
WHEREAS, this Agreement is entered by Licensor and Licensee pursuant to the terms of that certain Lease between Wells 60 Realty LLC (as Landlord), and Licensee (as Tenant) dated October 28, 2013, as amended, relating to certain premises located at 60 Wells Avenue, Newton, MA (the "60 Wells Lease").
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee agree as follows:
| 1. | Grant of License.Subject to and conditioned upon the terms and provisions of this Agreement, Licensor hereby grants to Licensee a temporary, revocable license ("Revocable Parking License") to use for parking only the twenty (20) parking spaces initially in the area ("Licensed Area") as shown on the sketch attached as Exhibit A. Licensor may from time to time in its sole discretion relocate or re-designate all or any portion of the Licensed Area upon five (5) days prior written notice ("Relocation Notice") to Licensee, at which time the Licensed Area shall be changed as provided in the Relocation Notice. The Revocable Parking License creates only a revocable license arrangement with Licensee personally and no other party, and there are no tenancy, occupancy or possessory rights of any kind or nature created under this Agreement. |
| 2. | Term.The Term of this Agreement and the Revocable Parking License shall be for a period beginning on the Term Commencement Date and ending on the Expiration Date unless earlier terminated as provided herein (the "Term"), without any right of renewal or extension except as set forth herein. Notwithstanding the foregoing, at Licensor's and/or Licensee's option and in its sole discretion both Licensee and Licensor shall have the right to terminate this Agreement and the Revocable Parking License by providing to the other party not less than thirty (30) days advance written notice of its intention to terminate ("Termination Notice"). Licensee agrees to timely cease using the Licensed Area and vacate and surrender the Licensed Area to Licensor in the condition required by this Agreement by the date set forth for termination in the Termination Notice, on which date this Agreement and the Revocable Parking License will terminate (except for provisions of this Agreement that by their terms survive such termination). |
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| 3. | Term Commencement Date. _____________ | ,, 20_. |
| 4. | Expiration Date.That date which is twelve (12) months after the Term Commencement Date, renewable for successive periods of twelve (12) months each, but subject to the rights of early termination set forth in Paragraph 2 of this Agreement. |
| 5. | Base License Fee.During the Term of this Agreement and Revocable Parking License, the Base License Fee ("Base Fee") shall be at the annual rate of $240.00, with each monthly installment being $20.00. Each monthly installment of the Base Fee is payable monthly in advance, without offset, setoff or deduction for any reason, on the first day of each month, and shall be made payable to Licensor at the address set forth in the first paragraph, or, upon ten (10) days prior written notice from Licensor to Licensee, to Licensor's designee. At Licensor's request the Base Fee shall be paid by ACH deposits. |
| 6. | Licensed Area.The Licensed Area is only to be for the use and during the hours set forth in Section 7 hereof and for no other purpose. Licensee has the right, in common with Licensor, licensees of the Property and others acting by, through and under Licensor and such licensees, to use the paved passageways closest to the Licensed Area ("Access Areas") on the Property for ingress to and egress from the Licensed Area and Wells Avenue. Pursuant to the Relocation Notice as provided in Section I of this Agreement, Licensor has the right at any time and from time to time during the Term to relocate all or a portion of the Licensed Area to another area of the parking lot servicing the Property. In no event shall Licensee be permitted to use any additional parking spaces/areas at the Property other than within the Licensed Area. Licensee agrees that Licensor shall not be responsible to police or otherwise monitor the Licensed Area in any manner, including, without limitation, Licensor is not responsible to ensure that unauthorized vehicle(s) are not parked within the Licensed Area. In no event shall Licensee have any right to tow, remove or otherwise notice (or cause any such towing, removal or notice of) any unauthorized vehicle(s) parked within Licensee's Licensed Area. |
| 7. | Use.The use of the Licensed Area is only for use of transient and not overnight parking of Licensee's employees' passenger automobiles only, and for no other use. To the extent permitted by applicable laws only, the Licensed Area is only to be used daily between the hours of 5:00 a.m. - midnight. All Licensee's employees' automobiles shall be registered, insured and in good operating and aesthetic condition. Licensee shall use the Licensed Area for parking of passenger vehicles only, and no repairing, washing, refueling, or maintaining of vehicles shall be permitted at the Licensed Area at any time. Licensee shall not permit any work to be performed on the vehicles nor any water, fumes, noise nor other adverse condition to occur on or emanate from the Licensed Area. Licensee shall comply with all applicable laws in connection with its use of the Licensed Area. Licensee shall keep the Licensed Area clean and free of any litter and debris. Licensee agrees, which agreement shall survive the termination of this Agreement and the Revocable Parking License, that Licensor has no responsibility whatsoever for any loss, theft, damage or destruction to any vehicle in, at or near the Property or Licensed Area, or in connection with or arising out of the Revocable Parking License. |
| 8. | Security Deposit.The Security Deposit shall be $2,640.00 paid to Licensor upon signing this Agreement. The Security Deposit shall be refunded to Licensee without interest within sixty (60) days after the Expiration Date conditioned upon and subject to the terms of this Agreement, including, without limitation, subject to Licensee's satisfactory compliance with the conditions of this Agreement and subject to deduction by Licensor for payment of Licensee's obligations not then fulfilled by Licensee. Licensor may use the Security Deposit to pay for any obligation hereunder not timely paid or performed by Licensee, and upon ten (10) days prior written notice from Licensor, Licensee shall replenish the Security Deposit to the full $2,640.00. |
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| 9. | Insurance.Licensee shall procure and maintain in full force and effect during the Term of this Agreement a policy of comprehensive, general liability insurance in form, substance and amount satisfactory to Licensor, each on an occurrence basis, with minimum coverages for commercial general liability to be in an amount not less than $1,000,000.00 for each occurrence and $2,000,000.00 in the aggregate, and with an overall umbrella coverage of $5,000,000.00. The foregoing policy(ies) shall include without limitation non-owned and hired automobile coverage. All insurance policies and the amounts of insurance shall be location specific to 180 Wells Avenue, Newton, Massachusetts. Each policy of insurance shall name as additional insureds Licensor and Intrum Corp. and other related parties and/or mortgagee(s) of the Property (collectively, "Licensor Related Parties") of which Licensee receives ten (10) days advance written notice. Each such policy shall be Best Rated A- or better and non-cancelable with respect to Licensor and the Licensor Related Parties on less than thirty (30) days prior written notice to Licensor. Upon execution of this Agreement, a duplicate original or certificate of each insurance policy shall be delivered to Licensor with all premiums paid through at least the first twelve (12) months after the date hereof, and new or updated policies or certificates of insurance (each evidencing twelve (12) month's full premium payment) shall be delivered to Licensor not later than thirty (30) days prior to the expiration date of each then existing policy. Licensee hereby releases Licensor from any and all liability for any loss or damage resulting from or arising out of Licensee's or its employees' or patrons' use under this Agreement regardless of the fault or negligence of Licensor, and Licensee shall secure a waiver of subrogation provision in each applicable insurance policy. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| 10. | Additional Payments. In addition to the Base Fee and any other payments due from Licensee to Licensor hereunder, Licensee agrees to pay Licensor's costs, in connection with Licensor's work to identify the Licensed Area including, without limitation, costs to pay for signage and striping or other identification of the parking spaces in the Licensed Area (collectively, the "Identification Costs"). In connection therewith and simultaneously with the execution of this Agreement, Licensee shall pay to Licensor $1,000.00 ("Initial Additional Payment") towards the Identification Costs. Licensor and Licensee agree that upon Licensor's determination of the final amount of Identification Costs, either (i) Licensor shall return to Licensee such amount overpaid by Licensee that is the difference between the actual Identification Costs and the Initial Additional Payment, or (ii) Licensee shall pay to Licensor within 15 days following billing from Licensor, the amount that the Identification Costs exceeds the Initial Additional Payment. |
| 11. | Exoneration/Indemnification. Licensee will exonerate, indemnify, save and hold hannless Licensor and its managers, members, employees, agents, snccessors and assigns ("Licensor Parties") from and against any and all claims, liabilities or penalties asserted by or on behalf of any third party(ies): (i) on acconnt of, or based upon, any injury to any person or loss of or damage to property sustained or occurring for any reason arising out of or related to Licensee's use of the Licensed Area or Access Areas; and (ii) on account of, or based upon, any injury to any person or loss of or damage to, property sustained or resulting from Licensee's breach of any provision of this Agreement, including without limitation, related to the use or release by Licensee, or those acting by, through or under Licensee, of any hazardous or toxic materials or waste as defined under any state or federal law. Notwithstanding the foregoing, Licensee shall not be liable under this Section 11 on account of claims, liabilities or penalties incurred on account of Licensor's Parties' gross negligence or willful misconduct. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
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| A. | Repairs. Licensor has the right from time to time to maintain, repair and replace the paving and lighting on the Licensed Area and the Access Area as deemed necessary by Licensor, during which time certain portions of the Licensed Area or Access Area may be unavailable for use by Licensee. |
| B. | Reimbursement of Costs. Any additional costs above the Base Fee to be paid to Licensor by Licensee under this Agreement shall be reimbursed to Licensor within thirty (30) days following billing and shall be paid to Licensor in the same manner and at the same address as provided for the payment of monthly installments of the Base Fee. |
| C. | License Termination. Upon termination of this Agreement and the Revocable Parking License by Licensor or by Licensee, Licensee shall vacate the Licensed Area and leave it in at least as good condition as when Licensee's occupancy began, subject to ordinary wear, and as later improved; and all Licensee's property and all debris shall be removed and all damage repaired. This Section shall survive the termination of the Revocable Parking License and this Agreement. |
| D. | Maintenance, Repair and Replacement. Except as otherwise set forth below, Licensee shall be responsible at its own cost and expense to keep, or cause to be kept, clean and maintain the Licensed Area in good condition. Subject to Force Majeure events, Licensee's actions, and other occurrences beyond Licensor's reasonable control including, without limitation, the acts or omissions of third parties, Licensor shall be responsible in a commercially reasonable manner for the following: (i) the plowing and removal of snow from and sanding of ice to the Licensed Area as well as the passageways thereto and therefrom; and (ii) maintaining the existing parking lot lighting on or adjacent to the Licensed Area consistent with its current maintenance practices. Licensor shall also maintain, repair and replace the paving and lighting in the Licensed Area and Access Areas as deemed necessary by Licensor. Licensee agrees to cooperate with Licensor in connection with Licensor's responsibilities in this paragraph, including, without limitation, Licensee's arranging for vehicles to temporarily vacate and not use the Licensed Area from time to time to permit Licensor to perfonn its responsibilities. |
| E. | As Is Condition. Licensee shall not be permitted to make any alterations or additions to the Licensed Area. Licensee agrees that Licensee has fully inspected the Licensed Area and Access Areas, has entered into this Agreement based on its own investigations and without reliance on any Licensor representation or warranty of any kind and accepts the Licensed Area in its "AS IS", with all faults, condition. |
| F. | Assignment and Sublicensing. Licensee shall not assign this Agreement nor sublicense any rights to the whole or any part of the Licensed Area, and any purported assignment or sublicense shall be void ab initio. |
| G. | Default. The term "Default" or "default" means (i) the failure of Licensee to pay any installment of the Base Fee or any other amount due hereunder on or within ten (10) days after its due date or (ii) the failure of Licensee to cure any non-monetary breach of this Agreement within ten (10) business days after written notice to Licensee. Upon a Default, Licensor shall have the right, at its option, to declare by written notice to Licensee, this Agreement and the Revocable Parking License immediately terminated, and thereafter to use the Licensed Area for any purpose, to deny Licensee access to the Property and remove from the Property, at Licensee's sole cost and expense and without liability to Licensor, all the vehicles and other property of Licensee and Licensee's employees and patrons, and to exercise all other remedies available to Licensor as provided in this Agreement and otherwise available at law and in equity. Licensor's remedies under this Agreement and at law and in equity are cumulative and may be exercised in any manner of Licensor's election. Costs of enforcement and collection, plus interest on all amounts not paid when due at 1.5% a month, shall be paid by Licensee to Licensor. In the event of a Default by Licensee resulting in Licensor's termination of this Agreement and the Revocable Parking License, Licensee (a) shall pay Licensor within seven (7) days after being invoiced therefor, the total of all amounts due from Licensee under this Agreement until Licensee has vacated the Licensed Area and left it in the condition required hereunder, and (b) to the extent then known, all other amounts that may be or become due to Licensee under this Agreement, including, without limitation, sums due under Sections 11., 12.M. and 12.T. hereof, plus interest at the rate of 18% per annum from the date(s) due through the date of payment of the foregoing amounts under (a) and (b) of this sentence, and (c) plus costs of collection. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
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| H. | Subordination. This Agreement is automatically subordinate to all present and future Licensor mortgage financing. |
| I. | Licensor Liability. Notwithstanding anything to the contrary contained herein, Licensor shall have no liability except for willful misconduct or gross negligence, and then only for the cost of the repair of personal property. Performance by Licensor shall be excused by third party delays. Licensor shall not be responsible for interruption in the outdoor lighting or other services/delivered by third parties. Licensor is only liable for its obligations hereunder during its time of ownership of the Property, with each successive owner of the Property only liable for its obligations hereunder during its respective period of ownership. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| J. | Broker. Licensee represents and warrants to Licensor that it was not shown the Licensed Area by any broker nor was any broker or finder involved in Licensee's entering into this Agreement. Licensee shall indemnify Licensor from the falseness of the foregoing representation or warranty. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| K. | Signage. Licensee shall not place signage at/on or paint or otherwise decorate or do any other work in or to the Licensed Area. |
| L. | Notice. Notices from Licensor to Licensee under this Agreement shall be deemed duly served if delivered to Licensee's offices located at 60 Wells Avenue, Suite 102, Newton, Massachusetts 02459, or at such other address as Licensor shall notify Licensee, in each case to the attention of Randy A. Goldberg. Licensee's local contact in Newton is ("Contact Person") who may be reached at, with an e-mail address of ---------- ------------ with Licensee agreeing to notify Licensor with any change of the Contact Person and/or contact infonnation. Otherwise, notices hereunder shall be deemed duly given from and after such time as (i) deposited with the U.S. Mails, for delivery via registered or certified mail, return receipt requested, postage prepaid, (ii) deposited for overnight delivery with a national courier with delivery tracking service such as FedEx, or (iii) by in-hand delivery to Licensee or Licensor at his/their/its Initial Address on the top of the first page hereof, or at such replacement address as may from time to time be given upon ten (I 0) days advance written notice to the other. |
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| M. | Licensee's Unauthorized Use After Termination.In the event that Licensee continues to access and use the Licensed Area or any portion of the Property beyond the expiration of the Term of this Agreement, or earlier termination of this Agreement or the Revocable Parking License, such use shall not create any rights in Licensee but shall subject Licensee to all the obligations set forth herein but at a rate equal to $7,920.00 for each month or part of any month ("Unauthorized Use Rate") during which Licensee continues such unauthorized use. The foregoing is not intended to create liability from Licensee to Licensor for those parties that are not permitted to park within the Licensed Area under the terms of this Agreement. The acceptance of a purported fee check following the end of the Term shall not constitute the creation of any rights in Licensee, it being agreed that Licensee's status shall remain unlawful and a continuing Default of this Agreement, and notwithstanding anything set forth in this Agreement, Licensor shall have the right to exercise any and all rights and remedies available to Licensor hereunder and at law or in equity, including, without limitation, rights and remedies available on account of trespass. Licensee shall also pay to Licensor all damages, whether direct and/or indirect, sustained by reason of such unauthorized use. Otherwise, such unauthorized use shall be on the terms and conditions set forth in this Agreement, as far as applicable. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
| N. | Rules and Regulations.Licensee agrees to comply with all reasonable rules and regulations which Licensor may establish from time to time for the orderly and efficient management and operation of the Property or any portion thereof. |
| O. | Countemarts. This Agreement may be signed in multiple originals and/or may be separately signed and assembled to contain the signatures of all the parties, with each counterpart constituting an original document. |
| P. | Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts. Licensee agrees that (a) jurisdiction for any legal process taken with respect to this Agreement and/or enforcement or compliance by or against any of the parties to this Agreement shall be exclusively commenced and processed within the State Courts of Norfolk, Middlesex or Suffolk Counties of the Commonwealth of Massachusetts, and (b) each such party submits to such jurisdiction. |
| Q. | Entire Agreement. This Agreement contains the entire agreement between the parties and the terms may not in any way be altered, modified, or changed, or shall any term be added to or deleted from the agreement except by a writing signed by both parties. Licensor and Licensee agree there are no other agreements or understandings between Licensor and Licensee in the matters addressed in this Agreement. |
| R. | No Joint Venture. Nothing in this Agreement is intended to or shall be construed to create either an express or implied partnership or joint venture between the parties. |
| S. | Authority. Each individual executing this Agreement on behalf of his or her respective party represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity in accordance with the governing documents of such entity, and that upon full execution and delivery this Agreement is binding upon said entity in accordance with its terms. |
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| T. | Unauthorized Parking. In addition to all the rights and remedies of Licensor hereunder, Licensor and Licensee agree to the provisions of this Section. Licensor, at its option, has the right to notify Licensee of the unauthorized use by Licensee's employee(s) of either of the following (each, an "Unauthorized Use"): (i) parking in areas outside the Licensed Area; or (ii) parking in the Licensed Area at times other than the permitted hours; or (iii) using the Licensed Area or any other portion of the Property for uses other than as permitted under Section 7 of this Agreement. Upon the second notice in any twelve (12) month period from Licensor to Licensee of Unauthorized Use, the Base Fee shall be increased to the Unauthorized Use Rate, which Unauthorized Use Rate shall continue from the date of the second notice until such time as Licensee has demonstrated to Licensor that such Unauthorized Use has been discontinued for at least four (4) full consecutive weeks, provided, however, such Unauthorized Use Rate shall be payable for not less than one (I) full month. In addition, Licensee shall at all times use good faith efforts to prevent those parties affiliated with Licensee (including without limitation Licensee's guests and patrons) who are not permitted to use the Licensed Area under the terms of this Agreement from parking within the Licensed Area. This Section shall survive the termination of this Agreement and the Revocable Parking License. |
End of text - Signature page follows
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Executed as a sealed instrument as of the date first written above.
LICENSOR: 180 Wells Realty LLC By: Intrum Corp., Manager By: _______________________ Randy A. Goldberg, President | LICENSEE: CyberArk Software, Inc.
By: ________________________________________________________
Ehud Mokady, President and CEO duly authorized By: ________________________________________________________ Suzy Peled-Spigelman, Vice President Finance, Americas, duly authorized |
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Exhibit A
Plan of Licensed Area
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SCHEDULE 11
MODIFIED LEASE SECTION 11
Schedule 11
Replacement of Section 11 of Lease
11. Tenant's Work, Alterations and Improvements.
If Tenant determines that any alterations or improvements to the Premises are reasonably necessary or desirable for the operation of Tenant's business at the Premises for the Permitted Use ("Tenant's Work"), all such Tenant's Work shall be subject to Landlord's express prior written consent and shall be performed in compliance with this Section 11. To the extent applicable, Tenant's Work shall also include, without limitation, Tenant's Additional Work as defined in Section II.10.C. of this Second Amendment and the Tenant Improvements if Tenant elects to itself complete the Tenant Improvements pursuant to Section II.IQ.I. of this Second Amendment ("Tenant's T.I. Work"). Tenant's Work (other than Tenant's Additional Work and Tenant's T.I. Work) shall not include any structural alterations or additions to the Premises, however, Landlord shall not unreasonable withhold, condition, or delay consent for cosmetic or non-structural alterations or improvements (removal or construction of interior non-structural partition walls shall be considered non-structural alterations), provided such proposed alterations or improvements: do not affect the mechanical systems of the Building, or any other tenant space, or the exterior (including exterior doors and windows) of the Building; do not detract from the continuing utility and structural integrity of the Building or the Property; and otherwise comply with the terms hereof. Landlord's consent shall not be required for alterations of a purely cosmetic nature (e.g. painting carpeting, etc.) so long as Tenant provide not less than ten (I 0) business days' notice to Landlord and otherwise complies with the provisions of this Section 11. Before commencing Tenant's Work or seeking permits therefor, Tenant shall submit to Landlord for Landlord's approval, a copy of all plans and specifications prepared and stamped by a licensed architect and/or applicable engineer (to the extent required to obtain a building permit for the applicable Tenant's Work); all contracts for labor and material, which contracts shall conform to the requirements hereof; evidence of insurance relative to such work in form and substance acceptable to Landlord; and evidence of availability of funds sufficient to complete all such work. Landlord's approval of the foregoing described pennits, plans, contracts, insurance and availability of funds shall not be unreasonably withheld, conditioned or delayed provided the Tenant's Work related thereto has been approved by Landlord if and as required herein. Before starting any Tenant's Work, Tenant shall deliver to Landlord copies of all permits, licenses and other authorizations required under all Applicable Laws (collectively, the "Permits"), all of which shall be maintained in Tenant's name in full force and effect. Subject to Landlord's Improvement Allowance and other payments and/or reimbursement due from Landlord to Tenant pursuant to Section II.IQ. of this Second Amendment, all Tenant's Work shall be at Tenant's sole cost and expense, shall be performed by Tenant in a good and workmanlike manner using new and first-class materials and supplies, free from defects in design, construction, workmanship and materials, in strict compliance with all Applicable Laws, and in a manner as will avoid jurisdictional and labor disputes, and once commenced shall be diligently pursued to completion. Tenant shall not pennit any mechanic's, materialmen's, or similar lien to be placed upon the Premises or the Property for labor or materials furnished to Tenant or claiming to have been furnished to Tenant in connection with work of any character perfonned or claimed to have been performed at the direction of Tenant, and Tenant shall cause any such lien, if placed, to be released of record within seven (7) days without cost to Landlord. Tenant shall, upon request, provide to Landlord from time to time promptly upon request, lien waivers from all parties performing work or supplying materials to the Premises. In the event that any Tenant's Work shall exceed $25,000.00, at Landlord's option, Landlord may condition the right of Tenant to perform any Tenant's Work to the Premises on lien bonds, escrows, or other conditions acceptable to Landlord to prevent liens arising against the Property. No Tenant's Work shall be commenced until Tenant has delivered to Landlord a copy of all contracts and subcontracts signed by Tenant's contractors for the approved Tenant's Work which contracts shall include the following language: "Contractor acknowledges that the work covered by this contract has been contracted for the benefit of CyberArk Software, Inc., and not for the benefit of the landlord or owner of the premises or real estate on which the premises is located, and therefore Contractor agrees that any claim or lien for non-payment or non-performance shall be asserted only against the leasehold interest of CyberArk Software, Inc. in the premises, and not against the owner of the premises or the real estate at which the work under this Contract shall be performed". Subject to the provisions of Section II.10. of this Second Amendment, all Tenant's Work, including all fixtures, alterations and other improvements made by Tenant to or at the Premises shall become the property of Landlord at the termination of Tenant's occupancy or, if requested by Landlord, all or any part thereof shall be removed by Tenant at Tenant's cost, and the Premises restored at the end of Tenant's occupancy. If at the time that Tenant requests Landlord's approval of the plans and specifications with respect to such Tenant's Work, Tenant also requests, in writing, Landlord's detennination of whether or not all or any portion of such Tenant's Work will be required to be removed at Lease termination (a "Removal Determination"), then Landlord shall advise Tenant of its Removal Determination at such time. Tenant shall indenmify Landlord and hold it harmless for all loss, cost, damage and expense, including without limitation, reasonable attorneys' fees, incurred by Landlord resulting from or relating to Tenant's Work, and the foregoing indemnification obligations shall survive termination or expiration of this Lease. Any alterations, additions or other work or improvements performed to the Premises without Landlord's express prior written consent shall, at Landlord's option, be a Default under this Lease unless within ten (10) days after notice to Tenant, arrangements satisfactory to Landlord, in its sole discretion, are made to resolve same.
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