Exhibit 10.1


 


100
HAYDEN AVENUE


LEXINGTON,
MASSACHUSETTS


 


Lease Dated May 22,
2008


 


THIS INSTRUMENT IS AN INDENTURE OF
LEASE in which the Landlord and the Tenant are the parties hereinafter named,
and which relates to space in a certain building (the “Building”) known as, and
with an address at, 100 Hayden Avenue, Lexington, Massachusetts.


 


The parties to this Indenture of Lease
hereby agree with each other as follows:


 


ARTICLE I


Reference Data


 


1.1           Subjects Referred To


 


Each reference in this
Lease to any of the following subjects shall be construed to incorporate the
data stated for that subject in this Article:


 


	
  Landlord:

  	
   

  	
  Mortimer B. Zuckerman
  and Edward H. Linde, Trustees of 92 Hayden Avenue Trust under Declaration of
  Trust dated August 18, 1983, recorded with the Middlesex South District
  Registry of Deeds in Book 15218, Page 425 as amended by instrument dated
  October 30, 1997 recorded with said Registry in Book 27863,
  Page 347, but not individually.

  
	
   

  	
   

  	
   

  
	
  Landlord’s Original
  Address:

  	
   

  	
  c/o Boston Properties
  Limited Partnership 

  Prudential Center 

  800 Boylston Street, Suite 1900 

  Boston, MA 02199-8103

  
	
   

  	
   

  	
   

  
	
  Landlord’s Construction
  Representative:

  	
   

  	
  Michael Schumacher

  
	
   

  	
   

  	
   

  
	
  Tenant:

  	
   

  	
  AMAG
  Pharmaceuticals, Inc., a Delaware corporation.

  
	
   

  	
   

  	
   

  
	
  Tenant’s Original Address:

  	
   

  	
  125 Cambridge Park
  Drive 

  Cambridge, Massachusetts 02140

  



 

















 


	
  Tenant’s Construction
  Representative:

  	
   

  	
  John Colorusso

  
	
   

  	
   

  	
   

  
	
  Commencement Date:

  	
   

  	
  The date of this Lease.

  
	
   

  	
   

  	
   

  
	
  Rent Commencement Date:

  	
   

  	
  February 1, 2009

  
	
   

  	
   

  	
   

  
	
  Term (Sometimes Called
  the “Original Term”):

  	
   

  	
  The period from the
  Commencement Date through August 31, 2016, unless extended or sooner
  terminated as provided in this Lease.

  
	
   

  	
   

  	
   

  
	
  Extension Options:

  	
   

  	
  Two successive
  (2) periods of five (5) years each as provided in and on the terms
  set forth in Section 8.20 hereof.

  
	
   

  	
   

  	
   

  
	
  The Site:

  	
   

  	
  That certain parcel of
  land known as and numbered 92-100 Hayden Avenue, Lexington, Middlesex County,
  Massachusetts, being more particularly described in Exhibit A attached
  hereto.

  
	
   

  	
   

  	
   

  
	
  The Building:

  	
   

  	
  The three (3) story
  Building on the Site known as and numbered 100 Hayden Avenue, Lexington,
  Massachusetts.

  
	
   

  	
   

  	
   

  
	
  The Additional
  Building:

  	
   

  	
  The two (2) story
  Building on the Site known as and numbered 92 Hayden Avenue, Lexington,
  Massachusetts.

  
	
   

  	
   

  	
   

  
	
  The Buildings:

  	
   

  	
  The Building and the
  Additional Building. The Buildings are herein identified.

  
	
   

  	
   

  	
   

  
	
  The Complex:

  	
   

  	
  The Building and the
  Additional Building together with all parking areas, the Site and all
  improvements (including landscaping) thereon and thereto.

  
	
   

  	
   

  	
   

  
	
  Tenant’s Space:

  	
   

  	
  The entire Building
  (but excluding Landlord’s management office in the Building), containing
  55,924 square feet of rentable floor area as shown on the floor plans annexed
  hereto as Exhibit D and incorporated herein by reference.

  
	
   

  	
   

  	
   

  
	
  Number of Parking
  Spaces:

  	
   

  	
  185 spaces in
  accordance with and subject to the 

  



 


2

















 


	
   

  	
   

  	
  provisions of
  Section 2.2.1 hereof.

  
	
   

  	
   

  	
   

  
	
  Annual Fixed Rent:

  	
   

  	
  (i) During the
  Original Term of this Lease at the following annual rates: 

   

  (a) For the period
  beginning on the “Commencement Date”

  (hereinbefore defined) and expiring on the day immediately preceding the
  “Rent Commencement Date” (also hereinbefore defined), there shall be no
  Annual Fixed Rent payable; 

   

  (b) For the period
  beginning on the Rent Commencement Date and ending on the last of the twelfth
  (12th) full calendar month following the Rent Commencement Date,
  at the annual rate of $1,839,899.60 (being the product of (i) $32.90 and
  (ii) the Rentable Floor Area of the Premises); 

   

  (c) For the period
  beginning on the first day of thirteenth (13th) full calendar
  month following the Rent Commencement Date and expiring on the last day of
  the twenty fourth (24th) full calendar month following the
  Premises Rent Commencement Date, at the annual rate of $1,895,823.60 (being
  the product of (i) $33.90 and the (ii) Rentable Floor Area of the
  Premises); 

   

  (d) For the period
  beginning on the first day of the twenty fifth (25th) full
  calendar month following the Rent Commencement Date and ending on the last
  day of the thirty sixth (36th) full calendar month following the
  Rent Commencement Date, at the annual rate of $1,951,747.60 (begin the
  product of (i) $34.90 and (ii) Rentable Floor Area of the
  Premises); 

   

  (e) For the period
  beginning on the first day of the thirty seventh (37th) full
  calendar month following the Rent Commencement Date and ending on the last
  day of the forty eighth (48th) full calendar month following the
  Rent Commencement Date, at the annual rate of 

  



 


3

















 


	
   

  	
   

  	
  $2,007,671.60 (being
  the product of (i) $35.90 and (ii) the Rentable Floor Area of the
  Premises); 

   

  (f) For the period
  beginning on the first day of the forty-ninth (49th) full calendar
  month following the Rent Commencement Date and ending on the last day of the
  sixtieth (60th) full calendar month following the Rent Commencement Date, at
  the annual rate of $2,063,595.60 (being the product of (i) $36.90 and
  (ii) the Rentable Floor Area of the Premises); 

   

  (g) For the period
  beginning on the first day of the sixty-first (61st) full calendar
  month following the Rent Commencement Date and ending on the last day of the
  seventy-second (72nd) full calendar month following the Rent
  Commencement Date, at the annual rate of $2,119,519.60 (being the product of
  (i) $37.90 and (ii) the Rentable Floor Area of the Premises; and 

   

  (h) For the period
  beginning on the first day of the seventy-third (73rd) full
  calendar month following the Rent Commencement Date and ending on the last
  day of the eighty fourth (84th) full calendar month following the
  Rent Commencement Date, at the annual rate of $2,175,443.60.00 (being the
  product of (i) $38.90 and (ii) the Rentable Floor Area of the
  Premises). 

   

  (i) For the period
  beginning on the first day of the eighty fifth (85th) full
  calendar month following the Rent Commencement Date and ending on the last
  day of the Original Term, at the annual rate of $2,343,215.60 (being the
  product of (i) $41.90 and (ii) the Rentable Floor Area of the
  Premises. 

   

  (ii) During the
  extension option periods (if exercised), as determined pursuant to
  Section 8.20.

  



 


4

















 


	
  Base Operating
  Expenses:

  	
   

  	
  Landlord’s Operating
  Expenses (as hereinafter defined in Section 2.6) for calendar year 2009,
  being January 1, 2009 through December 31, 2009.

  
	
   

  	
   

  	
   

  
	
  Base Taxes:

  	
   

  	
  Landlord’s Tax Expenses
  (as hereinafter defined in Section 2.7) for fiscal tax year 2009, being
  July 1, 2008 through June 30, 2009.

  
	
   

  	
   

  	
   

  
	
  Tenant Electricity:

  	
   

  	
  As provided in
  Section 2.8 hereof.

  
	
   

  	
   

  	
   

  
	
  Additional Rent:

  	
   

  	
  All charges and other
  sums payable by Tenant as set forth in this Lease, in addition to Annual
  Fixed Rent.

  
	
   

  	
   

  	
   

  
	
  Rentable Floor Area of
  Tenant’s Space (Sometimes also called “Rentable Floor Area of the Premises”):

  	
   

  	
  55,924 square feet.

  
	
   

  	
   

  	
   

  
	
  Total Rentable Floor
  Area of the Building:

  	
   

  	
  55,924 square feet.

  
	
   

  	
   

  	
   

  
	
  Total Rentable Floor
  Area of the Additional Building:

  	
   

  	
  31,100 square feet.

  
	
   

  	
   

  	
   

  
	
  Total Rentable Floor
  Area of the Buildings:

  	
   

  	
  87,024 square feet.

  
	
   

  	
   

  	
   

  
	
  Permitted Use:

  	
   

  	
  General office
  purposes, and as ancillary thereto (but not as primary uses) other uses
  customarily accessory to and consistent with general office purposes as from
  time to time permitted as of right by the Zoning By-Law of the Town of
  Lexington.

  
	
   

  	
   

  	
   

  
	
  Initial Minimum Limits
  of Tenant’s Commercial General Liability Insurance:

  	
   

  	
  $5,000,000.00 per
  occurrence, subject to the requirements of Sections 5.7 through 5.7.11.

  
	
   

  	
   

  	
   

  
	
  Brokers:

  	
   

  	
  Jones Lang LaSalle 

  One Post Office Square 

  Boston, Massachusetts 02109 

  



 


5

















 


	
   

  	
   

  	
  and 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cushman and Wakefield 

  125 Summer Street 

  15th Floor 

  Boston, Massachusetts 02110

  
	
   

  	
   

  	
   

  
	
  Security Deposit:

  	
   

  	
  $459,975.00, subject to
  the terms and provisions of Section 8.21 below.

  



 


1.2           Exhibits


 


	
  There are incorporated
  as part of this Lease:

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
   

  	
  Description of Site

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
  —

  	
   

  	
  Parking Plan

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  —

  	
   

  	
  Tenant Plan and Working
  Drawing Requirements

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  —

  	
   

  	
  Landlord’s Services

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  —

  	
   

  	
  Floor Plans

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  —

  	
   

  	
  List of Remaining
  Cafeteria and Data Room Equipment

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  —

  	
   

  	
  Form of Lien
  Waivers

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  —

  	
   

  	
  Form of Letter of
  Credit

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  —

  	
   

  	
  Broker Determination

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit I

  	
  —

  	
   

  	
  Form of Tenant’s
  Insurance Certificate(s)

  



 


1.3           Table of Articles
and Sections


 


	
  ARTICLE I

  	
   

  	
  1

  
	
   

  	
  Reference Data

  	
  1

  
	
   

  	
  1.1

  	
  Subjects Referred To

  	
  1

  
	
   

  	
  1.2

  	
  Exhibits

  	
  6

  
	
   

  	
  1.3

  	
  Table of Articles and Sections

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  8

  
	
   

  	
  The Buildings, Premises, Term
  and Rent

  	
  8

  
	
   

  	
  2.1

  	
  The Premises

  	
  8

  



 


6

















 


	
   

  	
  2.2

  	
  Rights to Use Common Facilities

  	
  9

  
	
   

  	
  2.3

  	
  Landlord’s Reservations

  	
  10

  
	
   

  	
  2.4

  	
  Habendum

  	
  10

  
	
   

  	
  2.5

  	
  Fixed Rent Payments

  	
  10

  
	
   

  	
  2.6

  	
  Operating Expenses

  	
  11

  
	
   

  	
  2.7

  	
  Real Estate Taxes

  	
  18

  
	
   

  	
  2.8

  	
  Tenant Electricity

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  21

  
	
   

  	
  Condition of Premises;
  Alterations

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  26

  
	
   

  	
  Landlord’s Covenants;
  Interruptions and Delays

  	
  26

  
	
   

  	
  4.1

  	
  Landlord Covenants

  	
  26

  
	
   

  	
  4.2

  	
  Interruptions and Delays in
  Services and Repairs, etc.

  	
  26

  
	
   

  	
  4.3

  	
  Landlord’s Indemnity

  	
  27

  
	
   

  	
  4.4

  	
  Landlord’s Insurance

  	
  29

  
	
   

  	
  4.5

  	
  Hazardous Materials

  	
  30

  
	
   

  	
  4.6

  	
  Compliance with Law

  	
  31

  
	
   

  	
  4.7

  	
  Furniture Removal

  	
  31

  
	
   

  	
  4.8

  	
  Cafeteria Operations

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  32

  
	
   

  	
  Tenant’s Covenants

  	
  32

  
	
   

  	
  5.1

  	
  Payments

  	
  32

  
	
   

  	
  5.2

  	
  Repair and Yield Up

  	
  32

  
	
   

  	
  5.3

  	
  Use

  	
  33

  
	
   

  	
  5.4

  	
  Obstructions; Items Visible From
  Exterior; Rules and Regulations

  	
  34

  
	
   

  	
  5.5

  	
  Safety Appliances

  	
  34

  
	
   

  	
  5.6

  	
  Assignment; Sublease

  	
  34

  
	
   

  	
  5.7

  	
  Tenant’s Indemnity, Insurance
  And Related Matters

  	
  42

  
	
   

  	
  5.8

  	
  Waiver of Subrogation

  	
  49

  
	
   

  	
  5.9

  	
  Right of Entry

  	
  49

  
	
   

  	
    5.10

  	
  Floor Load; Prevention of
  Vibration and Noise

  	
  50

  
	
   

  	
    5.11

  	
  Personal Property Taxes

  	
  50

  
	
   

  	
    5.12

  	
  Compliance with Laws

  	
  50

  
	
   

  	
    5.13

  	
  Payment of Litigation Expenses

  	
  50

  
	
   

  	
    5.14

  	
  Alterations

  	
  51

  
	
   

  	
    5.15

  	
  Vendors

  	
  53

  
	
   

  	
    5.16

  	
  Patriot Act

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  54

  
	
   

  	
  Casualty and Taking

  	
  54

  
	
   

  	
  6.1

  	
  Damage Resulting from Casualty

  	
  54

  
	
   

  	
  6.2

  	
  Uninsured Casualty

  	
  56

  



 


7

















 


	
   

  	
  6.3

  	
  Rights of Termination for Taking

  	
  56

  
	
   

  	
  6.4

  	
  Award

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  57

  
	
   

  	
  Default

  	
  57

  
	
   

  	
  7.1

  	
  Tenant’s Default

  	
  57

  
	
   

  	
  7.2

  	
  Landlord’s Default

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  62

  
	
   

  	
  Miscellaneous

  	
  62

  
	
   

  	
  8.1

  	
  Extra Hazardous Use

  	
  62

  
	
   

  	
  8.2

  	
  Waiver

  	
  62

  
	
   

  	
  8.3

  	
  Cumulative Remedies

  	
  62

  
	
   

  	
  8.4

  	
  Quiet Enjoyment

  	
  63

  
	
   

  	
  8.5

  	
  Notice to Mortgagee and Ground
  Lessor

  	
  64

  
	
   

  	
  8.6

  	
  Assignment of Rents

  	
  64

  
	
   

  	
  8.7

  	
  Surrender

  	
  65

  
	
   

  	
  8.8

  	
  Brokerage

  	
  65

  
	
   

  	
  8.9

  	
  Invalidity of Particular
  Provisions

  	
  65

  
	
   

  	
    8.10

  	
  Provisions Binding, etc.

  	
  66

  
	
   

  	
    8.11

  	
  Recording; Confidentiality

  	
  66

  
	
   

  	
    8.12

  	
  Notices

  	
  66

  
	
   

  	
    8.13

  	
  When Lease Becomes Binding

  	
  67

  
	
   

  	
    8.14

  	
  Section Headings

  	
  67

  
	
   

  	
    8.15

  	
  Rights of Mortgagee

  	
  68

  
	
   

  	
    8.16

  	
  Status Reports and Financial
  Statements

  	
  68

  
	
   

  	
    8.17

  	
  Self-Help

  	
  69

  
	
   

  	
    8.18

  	
  Holding Over

  	
  70

  
	
   

  	
    8.19

  	
  Extension Options

  	
  71

  
	
   

  	
    8.20

  	
  Security Deposit

  	
  72

  
	
   

  	
    8.21

  	
  Late Payment

  	
  75

  
	
   

  	
    8.22

  	
  Tenant’s Payments

  	
  75

  
	
   

  	
    8.23

  	
  Waiver of Trial by Jury

  	
  76

  
	
   

  	
    8.24

  	
  Tenant’s Signage

  	
  76

  
	
   

  	
    8.25

  	
  Governing Law

  	
  77

  
	
   

  	
    8.26

  	
  Rooftop Rights

  	
  77

  



 


ARTICLE II


 


The Buildings, Premises,
Term and Rent


 


2.1           The Premises


 


Landlord hereby demises
and leases to Tenant, and Tenant hereby hires and accepts from Landlord, Tenant’s
Space in the Building excluding the roof (but subject to Tenant’s


 


8
















 


rights under Section 8.27
hereof), and if Tenant’s Space is less than the entire Building excluding
exterior faces of exterior walls, the common stairways and stairwells,
elevators and elevator wells, fan rooms, electric and telephone closets,
janitor closets, and pipes, ducts, conduits, wires and appurtenant fixtures
serving exclusively or in common other parts of the Building and if Tenant’s
Space includes less than the entire rentable area of any floor, excluding the
common corridors, elevator lobbies and toilets located on such floor.


 


Tenant’s Space with such
exclusions is hereinafter referred to as the “Premises.” The term “Building”
means the Building identified on the first page, and which is the subject of
this Lease and being one of the two (2) Buildings erected on the Site by
the Landlord; the term “Site” means all, and also any part of the Land
described in Exhibit A, plus any additions or reductions thereto resulting
from the change of any abutting street line and all parking areas and structures.
The term “Property” means the two (2) Buildings and the Site.


 


2.2           Rights to Use Common
Facilities


 


Subject to Landlord’s
right to change or alter any of the following in Landlord’s discretion as
herein provided, Tenant shall have, as appurtenant to the Premises, the non-
exclusive right to use in common with others, subject to reasonable rules of
general applicability to tenants of the Complex from time to time made by
Landlord of which Tenant is given notice common walkways and driveways
necessary for access to the Building.


 


2.2.1        Tenant’s
Parking


 


In addition, Tenant shall
have the exclusive right, as appurtenant to the Premises, to use, without
additional charge, the portion of the parking area shown on the Parking Plan as
“100 Hayden Parking Area”.  The Number of
Parking Spaces (referred to in Section 1.1) for the parking of employee
automobiles and other passenger vehicles (and the occasional parking of
delivery vans) not longer than thirty (30) feet and no more than two such
delivery vans at any one time, provided, however, that Tenant shall be
responsible for moving such delivery vans in order for Landlord to perform snow
plowing and parking lot maintenance; and provided further that Landlord shall
not be obligated to furnish stalls or spaces in any parking area specifically
designated for Tenant’s use. In the event that the Rentable Floor Area of the
Premises decreases at any time during the Lease Term, the Number of Parking
Spaces provided to Tenant hereunder shall be reduced proportionately.  In no event shall Tenant have any right to
use parking spaces in the portion of the parking area shown on the Parking Plan
as “92 Hayden Parking Area”.  Tenant
covenants and agrees that it and all persons claiming by, through and under it,
shall at all times abide by all reasonable rules and regulations
promulgated by Landlord by notice to Tenant with respect to the use of the
parking areas on the Site.  The parking
privileges granted herein are non-transferable 


 


9

















 


except to a permitted
assignee or subtenant as provided in Section 5.6 through Section 5.6.5.  Further, Landlord assumes no responsibility
whatsoever for loss or damage due to fire, theft or otherwise to any automobile(s) parked
on the Site or to any personal property therein, however caused, and Tenant
covenants and agrees, upon request from Landlord from time to time, to notify
its officers, employees, agents and invitees of such limitation of liability.
Tenant acknowledges and agrees that a license only is hereby granted, and no
bailment is intended or shall be created.


 


2.3           Landlord’s
Reservations


 


In the event that Tenant’s
Space is less than the entire Building, Landlord reserves the right from time
to time, without unreasonable interference with Tenant’s use: (a) to
install, use, maintain, repair, replace and relocate for service to the
Premises and other parts of the Building, or either, pipes, ducts, conduits,
wires and appurtenant fixtures, wherever located in the Premises or Building,
and (b) to alter or relocate any other common facility, provided that
substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the Building, above
ceiling surfaces, below floor surfaces or within perimeter walls of the
Premises.  Any non-emergency work
performed pursuant to this Section 2.3 shall be performed at such times
and in such a manner so as to minimize interference with Tenant’s operations in
the Premises.  Any non-emergency work
shall be performed only after reasonable advance notice to Tenant.


 


2.4           Habendum


 


Tenant shall have and
hold the Premises for a period commencing on the date of this Lease (the “Commencement
Date”), and continuing for the Term unless sooner terminated as provided in Article VI
or Article VII or unless extended as provided in Section 8.20.


 


2.5           Fixed Rent Payments


 


Tenant agrees to pay to
Landlord, or as directed by Landlord, at Landlord’s Original Address specified
in Section 1.1 hereof, or at such other place as Landlord shall from time
to time designate by notice, (1) on the Rent Commencement Date (defined in
Section 1.1 hereof) and thereafter monthly, in advance, on the first day
of each and every calendar month during the Original Term, a sum equal to one
twelfth (1/12th) of the Annual Fixed Rent (sometimes hereinafter
referred to as “fixed rent”) and (2) on the first day of each and every
calendar month during each extension option period (if exercised), a sum equal
to (a) one twelfth (1/12th) of the annual fixed rent as
determined in Section 8.20 for the applicable extension option period.
Until notice of some other designation is given, fixed rent and all other
charges for which provision is herein made shall be paid by remittance to or
for the order of Boston Properties Limited Partnership either (i) by mail
to P.O. Box 3557, Boston, Massachusetts 02241-3557, (ii) by wire
transfer to Bank of 


 


10

















 


America in Dallas, Texas,
Bank Routing Number 0260-0959-3 or (iii) by ACH transfer to Bank of
America in Dallas, Texas, Bank Routing Number 111 000 012, and in the case of (ii) or
(iii) referencing Account Number 3756454460, Account Name of Boston Properties,
LP, Tenant’s name and the Property address. All remittances received by Boston
Properties Limited Partnership, as Agents as aforesaid, or by any subsequently
designated recipient, shall be treated as payment to Landlord.


 


Annual Fixed Rent for any
partial month shall be paid by Tenant to Landlord at such rate on a pro rata
basis, and, if the Rent Commencement Date is a day other than the first day of
a calendar month, the first payment of Annual Fixed Rent which Tenant shall
make to Landlord shall be a payment equal to a proportionate part of such
monthly Annual Fixed Rent for the partial month from the Rent Commencement Date
to the first day of the succeeding calendar month.


 


Additional Rent payable
by Tenant on a monthly basis, as hereinafter provided, likewise shall be
prorated, and the first payment on account thereof shall be determined in
similar fashion but shall commence on the Commencement Date; and other
provisions of this Lease calling for monthly payments shall be read as
incorporating this undertaking by Tenant.


 


Notwithstanding that the
payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence
until the Rent Commencement Date, Tenant shall be subject to, and shall comply
with, all other provisions of this Lease as and at the times provided in this
Lease.


 


The Annual Fixed Rent and
all other charges for which provision is herein made shall be paid by Tenant to
Landlord, without offset, deduction or abatement except as otherwise
specifically set forth in this Lease.


 


Notwithstanding anything
contained herein or in Section 1.1 to the contrary, it is understood and
agreed that in the event that this Lease is terminated by reason an Event of
Default during the first thirty (30) months of the Term, Annual Fixed Rent for
the period commencing on the Commencement Date and ending on the last day of
the free rent period shall immediately become due and payable in the amount of
$766,624.83.  Tenant shall within ten (10) days
after demand therefor pay Landlord any amounts necessary so that the total
Annual Fixed Rent for such period shall equal $766,624.83 as aforesaid (taking
into account any amounts previously paid by Tenant as Annual Fixed Rent during
such period).


 


2.6           Operating Expenses


 


“Landlord’s Operating
Expenses” means reasonable, out of pocket the cost of operation of the Building
and the Site which shall exclude costs of special services rendered to tenants
(including Tenant) for which a separate charge is made, but shall include,
without limitation, the following: premiums for insurance carried with respect
to the Building and 


 


11

















 


the Site (including,
without limitation, liability insurance, insurance against loss in case of fire
or casualty and insurance of monthly installments of fixed rent and any
Additional Rent which may be due under this Lease and other leases of space in
the Building for not more than 12 months in the case of both fixed rent and
Additional Rent and if there be any first mortgage of the Property, including
such insurance as may be required by the holder of such first mortgage);
compensation and all fringe benefits, worker’s compensation insurance premiums
and payroll taxes paid to, for or with respect to all persons engaged in the
managing, operating, maintaining or cleaning of the Building or Site, water,
sewer, electric, gas, oil and telephone charges including utilities charges for
parking lot lighting (excluding utility charges separately chargeable to
tenants for additional or special services); cost of building and cleaning
supplies and equipment; cost of maintenance, cleaning and repairs (other than
repairs not properly chargeable against income or reimbursed from contractors
under guarantees); cost of snow removal and care of landscaping; payments under
service contracts with independent contractors; management fees at reasonable
rates consistent with the type of occupancy and the service rendered; costs of
maintaining a regional property management office in connection with the
operation, management and maintenance of the Building (sometimes called the “Regional
Property Management Charge”); and all other reasonable and necessary expenses
paid in connection with the operation, cleaning and maintenance of the Building
and the Site and properly chargeable against income, provided, however, there
shall be included (a) depreciation for capital expenditures made by
Landlord during the Lease Term, but only to the extent the same are incurred
either (i) to reduce Landlord’s Operating Expenses if Landlord shall have
reasonably determined that the annual reduction in Landlord’s Operating
Expenses shall exceed depreciation therefor or (ii) to comply with
applicable laws, rules, regulations, requirements, statutes, ordinances,
by-laws and court decisions of all public authorities which are now or
hereafter in force (the capital expenditures described in subsections (i) and
(ii) being hereinafter referred to as “Permitted Capital Expenditures”);
plus (b) in the case of both (i) and (ii) an interest factor,
reasonably determined by Landlord, as being the interest rate then charged for
long term mortgages by institutional lenders on like properties within the
locality in which the Building is located; depreciation in the case of both (i) and
(ii) shall be determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the capital item acquired
and the useful life shall be reasonably determined by Landlord in accordance
with generally accepted accounting principles and practices in effect at the
time of acquisition of the capital item.


 


Notwithstanding the foregoing provisions, the
following shall be excluded from Landlord’s Operating Expenses:


 


(1)           Leasing
fees or commissions, advertising and promotional expenses, legal fees, the cost
of tenant improvements, build out allowances, moving expenses, and other
concessions and expenses incurred in connection with leasing spacing in the
Building;


 


(2)           Interest
on indebtedness, debt amortization, ground rent, and refinancing costs for 


 


12

















 


any mortgage or ground
lease of the Building, the Complex, or any portion of either of them;


 


(3)           If
the Building shall become a multi-tenant building (i.e., the Building is
occupied by two (2) or more tenants, each under a direct lease with
Landlord), costs incurred in performing work or furnishing services for any
tenant (including Tenant), to the extent that such work or services is in
excess of any work or service Landlord is obligated to provide Tenant under
this Lease without additional charge. 
However, as between Landlord and Tenant, the provisions of Section 4.1.2
shall apply in the case of additional services requested by Tenant to be
performed by Landlord;


 


(4)           The
cost of any item or service to the extent to which Landlord is reimbursed or
compensated by insurance, any tenant, or any third party;


 


(5)           The
cost of repairs or replacements incurred by reason of fire or other casualty or
condemnation other than costs not in excess of the deductible on any insurance
maintained by Landlord which provides a recovery for such repair or
replacement, which deductible shall be as reasonably determined by Landlord;


 


(6)           Any
advertising, promotional or marketing expenses for the Building;


 


(7)           With the exception of
the management fee described in the first paragraph of this Section 2.6
and an allocable portion of the property management office costs and expenses
of Landlord or Boston Properties, the cost of any service or materials provided
by any party related to Landlord, to the extent such costs exceed the
reasonable cost for such service or materials absent such relationship in
buildings similar to the Buildings in the vicinity of the Buildings (if, in any
calendar year, the percentage of revenues used to calculate the management fee
shall be greater than the percentage used to calculate the management fee
included in Base Operating Expenses, then Base Operating Expenses shall be
adjusted and shall be in effect from the year in which the management fee
percentage is increased and shall be the management fee that would have been
payable, and calculated on the rental income, for calendar year 2009 as if such
higher percentage were then in effect.);


 


(8)           Penalties
and interest for late payment of any obligations of Landlord, including,
without limitation, taxes, insurance, equipment leases and other past due
amounts, provided that Tenant pays Operating Costs and real estate taxes timely
as and when due;


 


(9)           Salaries
or other compensation paid to employees above the grade of Regional Property
Manager except that if any such employee performs a service which would have
been performed by an outside consultant, the compensation paid to such employee
for performing such service shall be included in Operating 


 


13

















 


Expenses for the Building
to the extent only that the cost of such service does not exceed the costs of
such service had such service been performed by an outside consultant.  Further, if and to the extent an employee
performs services at the Building and other properties, such employee’s labor
costs shall be reasonably allocated and only the portion reasonably allocable
to the Building shall be included in Landlord’s Operating Expenses (Nothing
contained herein shall affect Landlord’s right to collect the management fee
specifically provided for above.);


 


(10)         Cost
of purchasing or installing sculpture, paintings or other objects of art;


 


(11)         Cost
of repairs, replacements, alterations or improvements necessary to make the
Building comply with applicable law in effect as of the date of this Lease;


 


(12)         Legal
fees or other expenses incurred in connection with negotiating and enforcing
leases with tenants in the Complex;


 


(13)         Depreciation,
except that “Permitted Capital Expenditures” (as hereinbefore defined) and
interest and amortization thereon, which shall include payments for rented
equipment to the extent that such rented equipment would, if purchased,
constitute a Permitted Capital Expenditure or would be used in performing the
work which constitutes a Permitted Capital Expenditure , shall be included in
Operating Expenses;


 


(14)         All
costs and expenses of any special events (e.g. receptions, concerts); provided,
however, that Tenant shall pay the entire costs and expenses of any special
events run by Tenant;


 


(15)         All
legal, architectural, engineering, accounting and other professional fees;
provided, however, that, subject to the provisions of item 1 above, legal,
architectural, engineering, accounting and other professional fees and costs
incurred in connection with the management, operation, maintenance, repair and
replacement of the Complex shall be included in Operating Expenses;


 


(16)         All
costs and expenses attributable to any hazardous wastes, substances, or
materials existing as of the date of this Lease (but not any which subsequently
arise, other than by reason of the acts or omissions of Landlord, its agents,
contractors, or employees) and/or any testing, investigation, reporting,
management, maintenance, remediation, or removal thereof; provided, however,
Tenant shall be solely responsible for all such costs and expenses for all
hazardous wastes, substances and materials resulting from, or caused by Tenant
or its contractors, subcontractors, agents, employees or invitees and the cost
of testing, investigation, reporting, management, maintenance, remediation and
removal thereof. However, there shall be included in Operating Expenses the
cost of Landlord’s routine annual or other periodic hazardous material or
similar inspection of the buildings, the cost of which incurred during the Base
Year shall also be included in Base Operating Expenses (and Landlord agrees
that Base 


 


14

















 


Operating Expenses shall
include an amount equal to the cost of such annual inspection, whether or not
an annual inspection is actually performed during calendar year 2009);


 


(17)         All
charitable or political contributions;


 


(18)         Reserves,
provided, however, amounts actually expended in maintaining, repairing and
operating the Property shall be included in Operating Expenses;


 


(19)         Costs
incurred with respect to the Additional Building or any other building that may
from time to time exist on the Site (a “Future Building”); provided, however,
that any costs relating to the common areas of the Site) shall be reasonably
allocated among the Building, the Additional Building and any Future Building;


 


(20)         All
costs and expenses arising out of (i) any violation of law or legal
requirement by Landlord, (ii) any violation or breach of any lease of
space in the Building, or (iii) any other breach of contract by Landlord;


 


(21)         All
general corporate overhead of Landlord or any its agents or affiliates; and


 


(22)         Any
management fee other than the management fee and the Regional Property
Management Charge set forth in the first paragraph of this Section 2.6;
provided, however, that if Tenant requests Landlord or its managing agent to
perform work for Tenant beyond that which is covered by this Section 2.6,
the same shall be done on a work order basis for which Landlord shall have the
right to charge Tenant for Landlord’s performing same.


 


In addition to the
foregoing, if in any calendar year after 2009 Landlord shall provide a service
that was not provided in 2009, then Base Operating Expenses shall be adjusted
to include the reasonable estimate of the cost of providing such services in
calendar year 2009. Further, if in any calendar year after 2009, Landlord with
Tenant’s consent shall cease to provide a service that was provided in 2009,
then Base Operating Expenses shall be adjusted to exclude the cost of providing
such services in calendar year 2009.


 


“Operating Expenses
Allocable to the Premises” shall mean (a) the same proportion of Landlord’s
Operating Expenses for and pertaining to the Building as the Rentable Floor
Area of Tenant’s Space bears to 100% of the Total Rentable Floor Area of the
Building plus (b) the same proportion of Landlord’s Operating Expenses for
and pertaining to the Site as the Rentable Floor Area of Tenant’s Space bears
to 100% of the Total Rentable Floor Area of the Buildings.


 


“Base Operating Expenses”
is hereinbefore defined in Section 1.1. 
Base Operating Expenses shall not include (i) market wide cost
increases due to extraordinary circumstances, including but not limited to
Force Majeure (as defined in Section 6.1), conservation surcharges,
boycotts, strikes, embargoes or shortages (“Temporary Cost 


 


15

















 


Increase”); provided,
however, that if any item(s) of Temporary Cost Increases shall continue
uninterrupted beyond calendar year 2009, then the amount of such Temporary Cost
Increase excluded from Base Operating Expenses with respect to such item(s) shall
also be excluded from Landlord’s Operating Expenses for and with respect to any
such calendar year during which such Temporary Cost Increase continues and (ii) the
cost of any Permitted Capital Expenditures; provided, however, that any
Permitted Capital Expenditures excluded from Base Operating Expenses shall not
be included in Landlord’s Operating Expenses in any subsequent year.


 


“Base Operating Expenses
Allocable to the Premises” means (i) the same proportion of Base Operating
Expenses for and pertaining to the Building as the Rentable Floor Area of
Tenant’s Space bears to 100% of the Rentable Floor Area of the Building plus (ii) the
same proportion of Base Operating Expenses for and pertaining to the Site as
the Rentable Floor Area of Tenant’s Space bears to 100% of the Rentable Floor
Area of the Buildings.


 


If with respect to any
calendar year falling within the Term, or fraction of a calendar year falling
within the Term at the beginning or end thereof, the Operating Expenses
Allocable to the Premises for a full calendar year exceed Base Operating
Expenses Allocable to the Premises, or for any such fraction of a calendar year
exceed the corresponding fraction of Base Operating Expenses Allocable to the
Premises then, Tenant shall pay to Landlord, as Additional Rent, the amount of
such excess. Such payments shall be made at the times and in the manner
hereinafter provided in this Section 2.6 (the Base Operating Expenses
Allocable to the Premises do not include the tenant electricity to be paid by
Tenant at the time of payment of Annual Fixed Rent, separate provision being
made in Section 2.8 of this Lease for Tenant’s electricity costs for the
Premises).


 


Not later than one
hundred and twenty (120) days after the end of the first calendar year or
fraction thereof ending December 31 and of each succeeding calendar year
during the Term or fraction thereof at the end of the Term, Landlord shall
render Tenant a statement in reasonable detail and according to usual
accounting practices certified by a representative of Landlord, showing for the
preceding calendar year or fraction thereof, as the case may be, Landlord’s
Operating Expenses and Operating Expenses Allocable to the Premises (the “Annual
Statement”). The Annual Statement shall also show for the preceding year or fraction
thereof as the case may be the amounts of operating expenses already paid by
Tenant as Additional Rent, and the amount of operating expenses remaining due
from, or overpaid by, Tenant for the year or other period covered by such
statement. Within thirty (30) days after the date of delivery of such
statement, Tenant shall pay to Landlord the balance of the amounts, if any,
required to be paid pursuant to the above provisions of this Section 2.6
with respect to the preceding year or fraction thereof, or Landlord shall
credit any amounts due from it to Tenant pursuant to the above provisions of
this Section 2.6 against (i) monthly installments of fixed rent next
thereafter coming due or (ii) any sums then due from Tenant to Landlord
under this Lease (or refund such portion of the overpayment as aforesaid if the
Term has ended, net of any sums then due from Tenant to Landlord).


 


16

















 


In addition, Tenant shall
make payments monthly on account of Tenant’s share of increases in Landlord’s
Operating Expenses anticipated for the then current year at the time and in the
fashion herein provided for the payment of fixed rent. The amount to be paid to
Landlord shall be an amount reasonably estimated annually by Landlord to be
sufficient to cover, in the aggregate, a sum equal to Tenant’s share of such
increases in operating expenses for each calendar year during the Term.


 


Notwithstanding the
foregoing, in determining the amount of Landlord’s Operating Expenses for any
calendar year or portion thereof falling within the Lease Term, if less than
ninety-five percent (95%) of the Total Rentable Floor Area of the Building
shall have been occupied by tenants at any time during the period in question,
then those components of Landlord’s Operating Expenses that vary based on
occupancy for such period shall be adjusted to equal the amount such components
of Landlord’s Operating Expenses would have been for such period had occupancy
been ninety-five percent (95%) throughout such period.


 


Subject to the provisions
of this paragraph and provided that no Event of Default then exists, Tenant
shall have the right, at Tenant’s cost and expense, to examine all
documentation and calculations prepared in the determination of Operating
Expenses Allocable to the Premises:


 


(1)              Such
documentation and calculation shall be made available to Tenant at the office
(located in the Eastern continental United States) where Landlord keeps such
records, during normal business hours within thirty (30) days after Landlord
receives a written request from Tenant to make such examination.


 


(2)              Tenant
shall have the right to make such examination no more than once in respect of
any period in which Landlord has given Tenant a statement of the actual amount
of Landlord’s Operating Expenses.


 


(3)              Any
request for examination in respect of any Operating Year may be made no more
than one hundred eighty (180) days after Landlord delivers the Annual Statement
with respect to such period and such examination shall be completed within
ninety (90) days after it is commenced, time being of the essence in respect of
both periods.


 


(4)              Such
examination may be made only by (i) an independent certified public
accounting firm, or (ii) a qualified real estate professional or firm approved
by Landlord, which approval shall not be unreasonably withheld. Without
limiting Landlord’s approval rights, Landlord may withhold its approval of any
examiner of Tenant who is being paid by Tenant on a contingent fee basis.


 


17

















 


(5)              As
a condition to performing any such examination, Tenant and its examiners shall
be required to execute and deliver to Landlord a commercially reasonable
agreement pursuant to which Tenant and its examiners agree to keep confidential
any information which either of them discovers about Landlord or the Building
in connection with such examination, subject only to those exceptions
customarily found in such agreements. Without limiting the foregoing, such
examiners shall be required to agree that they will not represent any other
tenant in the Building or in the other buildings on the Site.


 


2.7           Real Estate Taxes


 


If with respect to any
full Tax Year or fraction of a Tax Year falling within the Term, Landlord’s Tax
Expenses Allocable to the Premises as hereinafter defined for a full Tax Year
exceed Base Taxes Allocable to the Premises, or for any such fraction of a Tax
Year exceed the corresponding fraction of Base Taxes Allocable to the Premises
then, on or before the thirtieth (30th) day following receipt by
Tenant of the certified statement referred to below in this Section 2.7,
then Tenant shall pay to Landlord, as Additional Rent, the amount of such
excess. Not later than ninety (90) days after Landlord’s Tax Expenses Allocable
to the Premises are determined for the first such Tax Year or fraction thereof
and for each succeeding Tax Year or fraction thereof during the Term, Landlord
shall render Tenant a statement in reasonable detail certified by a
representative of Landlord showing for the preceding year or fraction thereof,
as the case may be, real estate taxes on the Building and the Site and
abatements and refunds of any taxes and assessments. Expenditures for legal
fees and for other expenses incurred in seeking the tax refund or abatement may
be charged against the tax refund or abatement before the adjustments are made
for the Tax Year. Said statement to be rendered to Tenant shall also show for
the preceding Tax Year or fraction thereof as the case may be the amounts of
real estate taxes already paid by Tenant as Additional Rent, and the amount of
real estate taxes remaining due from, or overpaid by, Tenant for the year or
other period covered by the statement. Within thirty (30) days after the date
of delivery of the foregoing statement, Tenant shall pay to Landlord the
balance of the amounts, if any, required to be paid pursuant to the above
provisions of this Section 2.7 with respect to the preceding Tax Year or
fraction thereof, or Landlord shall credit any amounts due from it to Tenant
pursuant to the provisions of this Section 2.7 against (i) monthly
installments of fixed rent next thereafter coming due or (ii) any sums
then due from Tenant to Landlord under this Lease (or refund such portion of
the over-payment as aforesaid if the Term has ended, net of any sums then due
from Tenant to Landlord).


 


In addition, payments by
Tenant on account of increases in real estate taxes anticipated for the then
current year shall be made monthly at the time and in the fashion herein
provided for the payment of fixed rent. The amount so to be paid to Landlord
shall be an amount reasonably estimated by Landlord to be sufficient to provide
Landlord, in the aggregate, a sum equal to Tenant’s share of such increases, at
least ten (10) days before the day on which such payments by Landlord
would become delinquent.


 


18
















 


To the extent that real
estate taxes shall be payable to the taxing authority in installments with
respect to periods less than a Tax Year, the foregoing statement shall be
rendered and payments made on account of such installments.


 


Terms used herein are
defined as follows:


 


(i)            “Tax
Year” means the twelve-month period beginning July 1 each year during the
Term or if the appropriate governmental tax fiscal period shall begin on any
date other than July 1, such other date.


 


(ii)           “Landlord’s
Tax Expenses Allocable to the Premises” shall mean (a) the same proportion
of Landlord’s Tax Expenses for and pertaining to the Building as the Rentable
Floor Area of Tenant’s Space bears to 100% of the Total Rentable Floor Area of
the Building plus (b) the same proportion of Landlord’s Tax Expenses for
and pertaining to the Site as the Rentable Floor Area of Tenant’s Space bears
to 100% of the Total Rentable Floor Area of the Buildings.


 


(iii)          “Landlord’s
Tax Expenses” with respect to any Tax Year means the aggregate real estate
taxes on the Building and Site with respect to that Tax Year, reduced by any
abatement receipts with respect to that Tax Year.


 


(iv)          “Base
Taxes” is hereinbefore defined in Section 1.1.


 


(v)           “Base
Taxes Allocable to the Premises” means (i) the same proportion of Base
Taxes for and pertaining to the Building as the Rentable Floor Area of Tenant’s
Space bears to 100% of the Total Rentable Floor Area of the Building, plus (ii) the
same proportion of Base Taxes for and pertaining to the Site as the Rentable
Floor Area of Tenant’s Space bears to 100% of the Total Rentable Floor Area of
the Buildings.


 


(vi)          “Real
estate taxes” means all taxes and special assessments of every kind and nature
and user fees and other like fees assessed by any governmental authority on the
Building or Site which the Landlord shall become obligated to pay because of or
in connection with the ownership, leasing and operation of the Site, the
Building and the Property and reasonable expenses of and fees for any formal or
informal proceedings for negotiation or abatement of taxes (collectively, “Abatement
Expenses”), which Abatement Expenses shall be excluded from Base Taxes.  The amount of special taxes or special
assessments to be included shall be limited to the amount of the installment
(plus any interest, other than penalty interest, payable thereon) of such
special tax or special assessment required to be paid during the year in
respect of which such taxes are being 


 


19

















 


determined, calculated as
if Landlord had elected to pay such special taxes or assessments over the
longest period allowed by law (whether or not Landlord actually so elects).
There shall be excluded from such taxes all income, estate, succession,
inheritance, franchise and transfer taxes, and, provided that Tenant has timely
paid all amounts due from Tenant under this Section 2.7, any fees,
penalties, or interest payable on account of the late payment of any real
estate taxes.  If at any time during the
Term the present system of ad valorem taxation of real property shall be
changed so that in lieu of the whole or any part of the ad valorem tax on real
property there shall be assessed on Landlord a capital levy or other tax on the
gross rents received with respect to the Site or Building or Property, or a
federal, state, county, municipal, or other local income, franchise, excise or
similar tax, assessment, levy or charge distinct from any now in effect in the
jurisdiction in which the Property is located) measured by or based, in whole
or in part, upon any such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or based, shall be
deemed to be included within the term “real estate taxes” but only to the
extent that the same would be payable if the Site and Buildings were the only
property of Landlord.


 


(vii)         If
during the Lease Term the Tax Year is changed by applicable law to less than a
full 12-month period, the Base Taxes and Base Taxes Allocable to the Premises
shall each be proportionately reduced.


 


(viii)        If
Landlord shall receive any refund of any real estate taxes of which Tenant has
paid a portion pursuant to this Section 2.7, then, out of any balance
remaining after deducting Landlord’s reasonable expenses incurred in obtaining
such refund, Landlord shall pay or credit to Tenant its proportionate share of
said balance, prorated as set forth above, but in no event more than the amount
paid by the Tenant with respect to the fiscal year in question.


 


Tenant shall not have the
right to seek an abatement of real estate taxes, but provided Tenant has not
assigned this Lease nor sublet more than one (1) full floor in the
Building, and there shall not be existing an Event of Default, Tenant shall
have the right to request that Landlord seek and abatement of real estate taxes
at Tenant’s sole cost and expense. Landlord agrees to act reasonably with
respect to any such request including meeting with Tenant.


 


2.8                                 Tenant Electricity


 


Commencing on the Commencement Date and continuing throughout the Term
(as it may be extended), Tenant covenants and agrees to pay directly to the
appropriate utility company providing electricity to the Site, as Additional
Rent, all electricity charges for 


 


20

















 


lights, power and heating, ventilating and air conditioning consumed at
the Premises and for other purposes within the Building (“Tenant Electricity”)
and all electricity for exterior lighting of the Building (and not the exterior
of the Additional Building) (“Exterior Electricity”).  There are presently two (2) electric
meters, one of which reads only the electricity to power heating, ventilating
and air-conditioning to the Premises and the other of which reads both the
Exterior Electricity and the Tenant Electricity, and no other electric usage,
and Tenant shall be responsible for the full payment of all electrical charges
associated with both meters.


 


Tenant covenants and agrees to take all steps required
by the appropriate utility company to provide for the direct billing to Tenant
of the Tenant Electricity and the Exterior Electricity including, without
limitation, making application(s) to such utility company in connection
therewith and making any deposits (including, but not limited to, such letters
of credit) as such utility company shall require.  Tenant covenants and agrees to pay, before
delinquency, all electricity charges and rates for and relating to the Tenant
Electricity and the Exterior Electricity and from time to time if requested by
Landlord to provide Landlord with evidence of payment to, and good standing
with, such utility company as Landlord may reasonably require but not more
frequently than twice in any calendar year unless an Event of Default
(hereinafter defined) exists in which case there shall be no limitation on the
frequency of such request.


 


ARTICLE III


 


Condition of
Premises; Alterations


 


3.1                                 Tenant
covenants and agrees that Tenant is leasing the Premises in their as-is
condition on the Commencement Date and that, except as expressly provided in
the following sentence, Landlord has no obligation to perform or make any
additions, alterations, improvements, demolition or other work to the Premises,
the Building or the Site. 
Notwithstanding the foregoing, Landlord agrees that, as of the
Commencement Date, the utility and building service systems and equipment
serving the Premises shall be in good operating order and condition; provided,
however, that the items listed on Exhibit E hereto shall be delivered in
their “as is” condition.  Further, Tenant
acknowledges and agrees that the Commencement Date is a fixed date (being the
date of the Lease) and that the Rent Commencement Date also is a fixed date
(being February 1, 2009) notwithstanding that Tenant plans to perform
improvement and other work in and to the Premises and irrespective of when
Tenant begins such work and how long Tenant takes to complete such work. In
addition, neither the Commencement Date nor the Rent Commencement Date shall be
extended for any reason whatsoever including, without limitation, the time it
takes for certificates of occupancy to be issued by the Town of Lexington for
Tenant’s improvement work in and to the Premises, Tenant hereby acknowledging
and agreeing that Tenant is solely responsible for obtaining all such
certificates of occupancy.  Landlord
agrees to cooperate in good faith with Tenant, at no out of pocket expense to
Landlord, in Tenant’s efforts to obtain such certificates of 


 


21

















 


occupancy.


 


3.2                                 (A)      Tenant,
at its sole cost and expense, shall perform all work necessary to prepare the
Premises for Tenant’s occupancy in accordance with plans and specifications
prepared by Baker Design Group, or another 
architect licensed by the Commonwealth of Massachusetts and approved by
Landlord, which approval shall not be unreasonably withheld, delayed, or
conditioned, such plans and specifications to be subject to the reasonable
approval of the Landlord as set forth below. Tenant hereby acknowledges that
the lobby in the Building, including its floor, walls, ceiling, doors and
equipment (collectively, the “Lobby”), are new and that in no event shall
Tenant make any changes, renovations, alterations or substitutions to or in the
Lobby. Further, during the performance of any demolition or improvement work in
the Building, Tenant shall take all steps reasonably required by Landlord to
protect the Lobby from damage and shall obtain Landlord’s approval which
approval shall not be unreasonably withheld, delayed, or conditioned for the
methods of such protection prior to Tenant performing (or allowing any
contractors to perform) any work in the Premises.


 


Tenant shall submit to
Landlord a detailed floor plan layout together with working drawings (the “Tenant’s
Submission”) for work to be performed by Tenant to prepare the Premises for
Tenant’s occupancy (“Tenant’s Work”). Such floor plan layout and working
drawings (the “Plans”) shall contain at least the information required by, and
shall conform to the requirements of, Exhibit B. Tenant’s submission shall
include at least two (2) full sized sets and two (2) half size sets
of Tenant’s proposed layout and working drawings. Landlord’s approval of the
Plans shall not be unreasonably withheld or delayed; however, Landlord’s
determination of matters relating to aesthetic issues relating to alterations
or changes which are visible outside the Premises shall be in Landlord’s sole
discretion. Landlord shall have seven (7) business days from Tenant’s submission
made in accordance with the requirements hereof to respond to Tenant’s request
for approval thereof.  If Tenant’s
submission does not comply with requirements hereof, Landlord shall notify
Tenant of same within two (2) business days after Tenant makes any such
defective submission, which notice shall specify the respects in which such
submission is defective.  Any disapproval
of any Plans shall set forth in reasonable detail the grounds for such
disapproval along with Landlord’s suggested corrective measures.   If Landlord disapproves of any Plans, then
Tenant shall promptly have the Plans revised by its architect to incorporate
all objections and conditions presented by Landlord and shall resubmit such
plans to Landlord no later than seven (7) days after Landlord has
submitted to Tenant its objections and conditions.  Landlord shall have five (5) calendar
days from Tenant’s resubmission to respond to Tenant’s request for approval
thereof. Such process shall be followed until the Plans shall have been approved
by the Landlord without objection or condition. 
If Landlord fails to respond in writing to Tenant within in the
applicable period specified above (i.e., seven (7) business days after
Tenant’s initial submission and five (5) calendar days after any
resubmission), then the submitted plans shall be deemed approved for all
purposes of this Article III.


 


If in connection with the
review of Tenant’s Plans by the Town of Lexington Building 


 


22

















 


Commissioner at the time
of Tenant’s submission of an application for a building permit for Tenant’s
Work, it is determined by said Building Commissioner that the existing
lobby/atrium and /or the existing means of egress of the Building does not
comply with applicable Legal Requirements and that modification thereto is
required, Landlord, at its sole cost and expense, shall perform modification
work to the lobby/atrium and/or means of egress which will bring such areas
into compliance with the applicable Legal Requirements and will otherwise be
done aesthetically in a manner as determined by Landlord.  If any such modification work shall be
required, the same shall be performed by Landlord’s contractors concurrently
with Tenant’s performance of Tenant’s Work.


 


Notwithstanding the
foregoing, Tenant shall be solely responsible for compliance of Tenant’s Plans
with applicable Legal Requirements, and in the event that (a) any Tenant’s
Work performed in or adjacent to the existing lobby/atrium area as shown on Exhibit D
makes necessary the performance of any other work in such lobby/atrium or the
other existing means of egress from the Building in order for such lobby/atrium
or the other means of egress to comply with applicable Legal Requirements, or (b) any
of Tenant’s Work in the Building is for uses other than general office purposes
(and accessory cafeteria and other customary uses accessory to general office
uses) and results in the existing lobby/atrium area or the other existing means
of egress from the Building not complying with applicable Legal Requirements,
then Tenant, at its sole cost and expense, shall be obligated to perform the
work necessary to provide compliance with applicable Legal Requirements
(including the applicable Massachusetts Building Code).


 


(B)      Once
the Plans have been approved by Landlord, Tenant, at its sole cost and expense,
shall promptly, and with all due diligence, perform Tenant’s Work as set forth
on the Plans, and, in connection therewith, the Tenant shall obtain all
necessary governmental permits and approvals for Tenant’s Work.  Landlord shall cooperate with Tenant, at no
out of pocket expense to Landlord and with no liability to Landlord, in Tenant’s
efforts to obtain such permits and approvals.  
All of Tenant’s Work shall be performed strictly in accordance with the
Plans and in accordance with applicable Legal Requirements (as defined in Section 3.4
hereof) and Insurance Requirements (as defined in Section 5.14 hereof).
Tenant shall have Tenant’s Work performed by a general contractor first
approved by Landlord,  which approval
shall not be unreasonably withheld, delayed, or conditioned, which contractor
shall provide to Landlord such insurance as the Landlord may reasonably
require. Landlord has provided to Tenant rules and regulations relative to
the performance of Tenant’s Work and any other work which the Tenant may
perform under this Lease and Tenant shall abide by all such reasonable rules and
regulations and shall cause all of its contractors to so abide.  Notwithstanding anything set forth in said rules and
regulations, not later than twenty one (21) days after the date of this Lease,
Tenant shall pay to Landlord a one time access fee of $2,500.00 in lieu of any
and all other fees for accessing the Building during the performance of Tenant’s
Work.  It shall be Tenant’s obligation to
obtain a certificate or certificates of occupancy or other like governmental
approval for the use and occupancy of the Premises to the extent required by
law, and Tenant shall not occupy the Premises for the conduct of business until
and unless it has obtained such approval and has submitted to Landlord a 


 


23

















 


copy of the same.
However, the Commencement Date and the Rent Commencement Date shall be the
fixed dates as set forth in Section 3.1 hereof. Tenant shall also prepare
and submit to Landlord promptly after Tenant’s Work is substantially complete a
set of as-built plans in both print and electronic forms showing the work
performed by Tenant to the Premises including, without limitation, any wiring
or cabling installed by Tenant or Tenant’s contractor for Tenant’s computer,
telephone and other communication systems.


 


3.3                                 Special
Allowance.


 


Landlord shall provide to
Tenant a special allowance of $2,236,960.00 (being the product of (i) $40.00
and (ii) the Rentable Floor Area of the Premises (the “Tenant Allowance”).
The Tenant Allowance shall be used and applied by Tenant solely on account of
the cost of Tenant’s Work and the “Applicable Design Costs” (hereinafter
defined).  Provided that Tenant is not in
default beyond the expiration of any applicable notice or grace period of its
obligations under the Lease at the time that Tenant requests any requisition on
account of Tenant’s Allowance, Landlord shall pay to Tenant a portion of the
cost of the work shown on each requisition (as hereinafter defined) submitted
by Tenant to Landlord within thirty (30) days of submission thereof by Tenant
to Landlord, such portion calculated as follows:  If there shall be such a default, Landlord
shall not be obligated to continue funding the Tenant Allowance until and
unless such default is fully cured within the applicable grace period.  If such default is not so cured within the
grace period, Landlord shall have no obligation to continue funding.  Each requisition shall set forth the total
cost of Tenant’s Work (which term, for the purpose hereof, shall include
Approved Design Costs) incurred during the period covered by such requisition.
Landlord shall pay for and with respect to each such requisition an amount
equal to the product of (i) the cost of Tenant’s Work set forth in such
requisition, multiplied by (ii) a fraction, the numerator of which is the
total amount of the Tenant Allowance and the denominator of which is the total
amount of the cost of Tenant’s Work (excluding, however, the cost of any
so-called “demountable wall systems” or other portions, if any, of Tenant’s
Work toward which the Tenant Allowance may not be applied).  Notwithstanding the foregoing, (a) in no
event shall Landlord be required to pay more than the total amount of Tenant’s
Allowance, and (b) the final payment(s) of Tenant’s Allowance shall,
if necessary for Tenant to receive the total amount of Tenant’s Allowance that
Tenant is otherwise entitled to receive hereunder, be increased to the extent
necessary for Tenant to receive such total amount.  For the purposes hereof, a “requisition”
shall mean written documentation showing in reasonable detail the costs of the
improvements then installed by Tenant in the Premises (i.e., the Tenant’s
Work).  Each requisition shall be
accompanied by evidence reasonably satisfactory to Landlord that all work
covered by previous requisitions has been fully paid by Tenant.  Further, the parties hereby acknowledge that
the provisions of the next to last sentence of Section 5.14 of this Lease
shall apply to all of Tenant’s Work under this Article III.  At Landlord’s request from time to time,
Tenant shall deliver lien waivers from all contractors and subcontractors
performing Tenant’s Work.  Landlord shall
have the right, upon reasonable advance notice to Tenant, to examine Tenant’s
invoices relating to each requisition in order to verify the amount
thereof.  Tenant shall submit requisition(s) no
more often than monthly. For the purposes hereof, the cost to be so 


 


24

















 


reimbursed by Landlord
shall consist solely of the cost of leasehold improvements and the Approved
Design Costs (hereinafter defined) but not the cost of any of Tenant’s personal
property, trade fixtures or trade equipment or any so-called soft costs or
other design costs in excess of the Approved Design Costs. The “Approved Design
Costs” shall mean the architectural, engineering and space planning fees and
charges actually paid by Tenant to third party, unaffiliated architects,
engineers and space planners respecting the preparation of Tenant’s Plans but
not to exceed the product of (i) $5.00 and (ii) the 55,924 square
feet of Rentable Floor Area of the Premises. Notwithstanding the foregoing,
Landlord shall be under no obligation to apply any portion of the Tenant
Allowance for any purposes other than as provided in this Section 3.4, nor
shall Landlord be deemed to have assumed any obligations, in whole or in part,
of Tenant to any contractors, subcontractors, suppliers, workers or
materialmen. Further, the Tenant Allowance shall only be applied towards the
cost of leasehold improvements and the Approved Design Costs but in no event
shall Landlord be required to make application of any portion of the Tenant
Allowance towards Tenant’s personal property any “demountable wall systems”, if
any, trade fixtures or moving expenses or on account of any supervisory fees,
overhead, management fees or other payments to Tenant, to any partner or
affiliate of Tenant or to any third party excepting “Approved Design Costs”
(hereinabove defined) and payments to Tenant’s contractors. In the event that
such cost of Tenant’s Work, including the Approved Design Costs, is less than
the Tenant Allowance, Tenant shall not be entitled to any payment or credit nor
shall there be any application of the same toward Annual Fixed Rent or
Additional Rent owed by Tenant under this Lease.


 


3.4                                 Quality
and Performance of Work


 


All construction work
required or permitted by this Lease shall be done in a good and workmanlike
manner and in compliance with all applicable laws, ordinances, rules,
regulations, statutes, by-laws, court decisions, and orders and requirements of
all public authorities (“Legal Requirements”) and all Insurance Requirements.
All of Tenant’s work shall be coordinated with any work being performed by or
for Landlord and in such manner as to maintain harmonious labor relations. Each
party may inspect the work of the other at reasonable times and shall promptly
give notice of observed defects. Each party authorizes the other to rely in
connection with design and construction upon approval and other actions on the
party’s behalf by any Construction Representative of the party named in Section 1.1
or any person hereafter designated in substitution or addition by notice to the
party relying. Tenant acknowledges that Tenant is acting for its own benefit
and account and that Tenant will not be acting as Landlord’s agent in performing
any Tenant Work, accordingly, no contractor, subcontractor or supplier shall
have a right to lien Landlord’s interest in the Property in connection with any
work.


 


25

















 


ARTICLE IV


 


Landlord’s Covenants; Interruptions
and Delays


 


	
  4.1

  	
  Landlord Covenants

  
	
   

  	
   

  	
   

  
	
   

  	
  Landlord covenants and
  agrees to the following during the Term:

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.1

  	
  Services Furnished by
  Landlord.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  To furnish services,
  utilities, facilities and supplies set forth in Exhibit C equal to those
  customarily provided by landlords in high quality buildings in the Boston
  West Suburban Market subject to escalation reimbursement in accordance with
  Section 2.6.

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.2

  	
  Additional Services
  Available to Tenant

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  To furnish, at Tenant’s
  expense, reasonable additional Building operation services which are usual
  and customary in similar office buildings in the Boston West Suburban Market
  upon reasonable advance request of Tenant at reasonable and equitable rates
  from time to time established by Landlord. Tenant agrees to pay to Landlord,
  as Additional Rent, at the rates described above in this Section, the charges
  of Landlord providing any such additional Building services requested by
  Tenant and for the cost of any additions, alterations, improvements or other
  work performed by Landlord in the Premises at the express, written request of
  Tenant within thirty (30) days after being billed therefor.

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.3

  	
  Roof, Exterior Wall,
  Floor Slab and Common Facility Repairs

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Except for
  (a) normal and reasonable wear and use and (b) damage caused by
  fire and casualty and by eminent domain, and except as otherwise provided in
  Article VI and subject to the escalation provisions of Section 2.6,
  (i) to make such repairs to the roof, exterior walls, floor slabs and
  common areas and facilities as may be necessary to keep them in serviceable
  condition and (ii) to maintain the Building (exclusive of Tenant’s
  responsibilities under this Lease) in a first class manner comparable to the
  maintenance of similar properties in the Boston West Suburban Market.

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Interruptions and Delays in Services and
  Repairs, etc

  
	
   

  	
   

  	
   

  
	
   

  	
  (A)        Landlord shall not be liable to Tenant for
  any compensation or reduction of rent by reason of inconvenience or annoyance
  or for loss of business arising from the necessity of Landlord or its agents
  entering the Premises for any of the purposes in this Lease authorized, or
  for repairing the Premises or any portion of the Building however the
  necessity may occur. In case Landlord is prevented or delayed from making any
  repairs, alterations or improvements, or furnishing any services or
  performing any other covenant

  
				



 


 


26

















 


or duty to be performed
on Landlord’s part, by reason of any cause reasonably beyond Landlord’s
control, including without limitation the causes set forth in Section 3.2
hereof as being reasonably beyond Landlord’s control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in Article VI,
shall Tenant be entitled to any abatement or reduction of rent by reason
thereof, or right to terminate this Lease, nor shall the same give rise to a
claim in Tenant’s favor that such failure constitutes actual or constructive,
total or partial, eviction from the Premises.


 


Landlord reserves the
right to stop any service or utility system, when necessary by reason of
accident or emergency, or until necessary repairs have been completed;
provided, however, that in each instance of stoppage, Landlord shall exercise
reasonable diligence to eliminate the cause thereof. Except in case of
emergency repairs, Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.


 


(B)      Notwithstanding
the foregoing, upon the occurrence of any event or circumstance resulting from
or caused by (x) any failure of Landlord to provide electrical, heating,
ventilating, air conditioning, or all elevator service to the Premises or
access to the Premises that prevents Tenant from using the Premises or any
portion thereof or (y) any alterations, replacements, or improvements made
by Landlord to other tenant premises within the Building (any such event or
circumstance described in clauses (x) or (y) above being hereinafter
referred to as an “Abatement Event”), Tenant shall give Landlord notice (“Abatement
Notice”) of any such Abatement Event and if such Abatement Event continues
beyond the Eligibility Period (as hereinafter defined), then the Annual Fixed
Rent shall be abated entirely or reduced, as the case may be, after the
expiration of the Eligibility Period for such time that Tenant continues both
to be so prevented from using, and does not use, the Premises or a portion
thereof, in the proportion that the rentable area of the portion of the
Premises that Tenant is prevented from using, and does not use, bears to the
total Rentable Floor Area of the Premises. The term “Eligibility Period” shall
mean (i) in connection with a failure by Landlord to provide required
services or access to the Premises due to an event or circumstance within
Landlord’s reasonable control or in connection with any alterations,
replacements, or improvements made by Landlord to other tenant premises within
the Building, a period of five (5) consecutive business days after
Landlord’s receipt of any Abatement Notice(s) and (ii) in connection
with a failure by Landlord to provide required services or access to the
Premises due to an event or circumstance not within Landlord’s reasonable
control, a period of  fourteen (14)
consecutive business days after Landlord’s receipt of any Abatement Notice(s).


 


4.3                                 Landlord’s
Indemnity


 


(a)    Indemnity.  Subject to the limitations in Section 8.4
and in Section 5.7.1 and Section 5.8 of this Lease, and to the extent
not resulting from any act, omission, fault, negligence or misconduct of Tenant
or its contractors, licensees, invitees, agents, servants or employees,
Landlord agrees to indemnify and save harmless Tenant from and against any
claim by a third party arising from any injury to or death of any person or
damage to or 


 


27

















 


destruction of the property of any person other than Tenant occurring
in the Premises or in the Complex after the date that possession of the
Premises is first delivered to Tenant and until the expiration or earlier
termination of the Lease Term, to the extent such injury results from the
negligence or willful misconduct of Landlord or Landlord’s employees, or from
any breach or default by Landlord in the performance or observance of its
covenants or obligations under this Lease; provided, however, that in no event
shall the aforesaid indemnity render Landlord responsible or liable for any
loss or damage to fixtures, personal property or other property of Tenant, and
Landlord shall in no event be liable to Tenant for any indirect, consequential
or punitive damages.  Tenant shall
provide notice of any such third party claim to Landlord as soon as
practicable.  The provisions of this Section shall
not be applicable to the holder of any mortgage now or hereafter on the
Property, the Complex or the Building (whether or not such holder shall be a
mortgagee in possession of or shall have exercised any rights under a
conditional, collateral or other assignment of leases and/or rents respecting
the Property, the Complex or the Building) unless and until such mortgagee
shall enter into actual physical possession of the Complex in which case such mortgagee
shall be bound under this Section 4.3 for events covered by this Section 4.3
but only first actually occurring from and after the date such mortgagee enters
into actual physical possession of the Complex subject to the limitations set
forth in Section 8.4, 5.7.1 and 5.8 of this Lease.


 


(b)  Breach.  In the event that Landlord breaches any of
its indemnity obligations hereunder or under any other contractual or common
law indemnity: (i) Landlord shall pay to the Tenant Parties all
liabilities, loss, cost, or expense (including reasonable attorney’s fees)
reasonably incurred by the Tenant Parties as a result of said breach; and (ii) the
Tenant Parties may deduct and offset from any amounts due to Landlord under
this Lease any amounts owed by Landlord pursuant to this section.


 


(c)  No limitation.  The indemnification obligations under this Section shall
not be limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable by or for Landlord under workers’ compensation
acts, disability benefit acts, or other employee benefit acts.  Landlord waives any immunity from or
limitation on its indemnity or contribution liability to the Tenant Parties
based upon such acts.


 


(d)  Survival.  The terms of this section shall survive any
termination or expiration of this Lease.


 


(e)  Costs.  The foregoing indemnity and hold harmless
agreement shall include indemnity for all reasonable costs, expenses and
liabilities (including, without limitation, attorneys’ fees and disbursements)
incurred by the Tenant Parties in connection with any such claim or any action
or proceeding brought thereon, and the defense thereof.  In addition, in the event that any action or
proceeding shall be brought against one or more Tenant Parties by reason of any
such claim, Landlord, upon request from the Tenant Party, shall resist and
defend such action or proceeding on behalf of the Tenant Party by counsel
appointed by Landlord’s insurer (if such claim is covered by insurance without


 


28
















 


reservation) or otherwise by
counsel reasonably satisfactory to the Tenant Party.  The Tenant Parties shall not be bound
by any compromise or settlement of any such claim, action or proceeding without
the prior written consent of such Tenant Parties, which consent shall not be
unreasonably withheld.  Such consent
shall not be required for any compromise or settlement pursuant to which the
Tenant Parties are completely released from liability.


 


(f)  The
provisions of this Section 4.3 are subject to the limitations set forth in
Section 8.4 hereof.


 


4.4                                 Landlord’s
Insurance


 


(a)  Required insurance.  Landlord shall maintain insurance against
loss or damage with respect to the Building on an “all risk” type insurance
form, with customary exceptions, subject to such commercially reasonable
deductibles as Landlord may determine, in an amount equal to at least the
replacement value of the Building. 
Landlord shall also maintain such insurance with respect to any
improvements, alterations, and permanent fixtures of Tenant located at the
Premises but Landlord shall not be obligated to insure Tenant’s Property or any
demountable walls or partitions. 
Landlord shall maintain a policy of commercial general liability
insurance, on an occurrence basis, issued on a form at least as broad as
Insurance Services Office (“ISO”) Commercial General Liability Coverage “occurrence”
form CG 00 01 10 01 or another ISO Commercial General Liability “occurrence”
form providing equivalent coverage.  Such
insurance shall include broad form contractual liability coverage, specifically
covering but not limited to the indemnification obligations undertaken by
Landlord in this Lease.  The minimum
limits of liability of such insurance shall be $5,000,000.00 per occurrence per
location.  Landlord shall maintain worker’s
compensation insurance or participation in a monopolistic state workers’
compensation fund.  The cost of such
insurance shall be treated as a part of Operating Expenses.  Such insurance shall be maintained with an
insurance company selected by Landlord. 
Payment for losses thereunder shall be made solely to Landlord.  Upon Tenant’s reasonable request from time to
time but not more frequently than once each calendar year, Landlord shall
provide Tenant with certificates evidencing the insurance coverage required by
this Lease.


 


(b)  Optional insurance.  Landlord may maintain such additional
insurance with respect to the Building, the Site and the Complex, including,
without limitation, earthquake insurance, terrorism insurance, flood insurance,
liability insurance, pollution liability insurance and/or rent insurance, as
Landlord may in its reasonable business judgment elect, provided that such
additional insurance is customarily carried by the owners of buildings similar
to the Buildings in the metropolitan Boston area.  Landlord may also maintain such other
insurance as may from time to time be required by any Mortgagee.  The cost of all such additional insurance
shall also be part of the Operating Expenses.


 


(c)  Blanket
and self-insurance.  Any or all of
Landlord’s insurance may be 


 


29

















 


provided by blanket
coverage maintained by Landlord or any affiliate of Landlord under its
insurance program for its portfolio of properties, or by a commercially
reasonable program of self-insurance maintained by Boston Properties Limited
Partnership and/or Boston Properties, Inc. (or by any successor landlord)
through a captive insurance company authorized and regulated by a state
government of one of the United States or by the government of the captive’s
domicile, and in such event Operating Expenses shall include the portion of the
reasonable cost of blanket insurance that is equitably allocable to the
Building.  In addition, with respect to
self-insurance:


 


(i)            the
cost of such self insurance included in Operating Expenses shall not exceed the
cost that Landlord would have incurred to purchase from an insurance company
the insurance coverage provided by such self insurance;


 


(ii)           the cost
to repair any damage covered by such self-insurance shall not be included in
Operating Expenses except for an amount equal to a commercially reasonable
deductible under a third-party policy; and


 


(iii)          the
provisions of Section 5.8 hereof shall operate to release Tenant from
liability for any loss or damage covered by such self-insurance if and to the
extent that such self-insurance replaces insurance which Landlord would
otherwise have been required to maintain under this Lease but for Landlord’s
decision to self-insure such risk.


 


(d)  No
obligation.  Landlord shall not be
obligated to insure, and shall not assume any liability of risk of loss for,
Tenant’s Property, including any such property of tenant’s subtenants or
occupants.  Landlord will also have no
obligation to carry insurance against, nor (except as set forth in Section 4.2(B))  be responsible for, any loss suffered by
Tenant, subtenants or other occupants due to interruption of Tenant’s or any
subtenant’s or occupant’s business.


 


4.5                                 Hazardous
Materials


 


Landlord represents to
Tenant that to the best of Landlord’s actual knowledge as of the Date of this
Lease, except as set forth in that certain “Report On Oil And Hazardous
Material Site Evaluation Update, 92-100 Hayden Avenue, Lexington, Massachusetts”
by Haley & Aldrich, Inc., (File No. 11817-040 dated
September, 1996) and that certain “Asbestos Survey Report, 92-100 Hayden
Avenue, Lexington, Massachusetts” prepared for Boston Properties, Inc. by
Covino Environmental Associates, Inc., dated May 20, 1997 (Covino
Project No. 97-00226) (copies of which have been previously provided to
Tenant), there are no Hazardous Materials (as that term is defined in Section 5.3
below, which term, for the purposes hereof, shall also include mold) in the
Building or on, at, beneath, or migrating from the Site which are required to
be investigated, removed, or otherwise abated in accordance with applicable
Hazardous Materials Laws.  Subject to the
limitations of Section 8.4 hereof, Landlord shall remove or abate as
required by 


 


30

















 


applicable Hazardous
Materials Laws Hazardous Materials on, at, beneath, or migrating from the Site
or in the Building, provided that the foregoing removal and/or abatement
requirements shall not apply to Hazardous Materials (including mold) which
first become present in the Building or on the Site after the Commencement Date
(x) because of the use, action or (where action is required hereunder or
under Hazardous Materials Laws) inaction of any tenant or occupant in the Site,
including Tenant, or any employee, agent or contractor of Tenant or (y) because
of any use, alterations or other construction by or for Tenant or any occupant
(other than any Landlord Party) of the Building (items (x) and (y) being
herein collectively called the “Exclusions”). 
Subject to the limitations of Section 8.4 hereof, Landlord agrees
to defend, indemnify, and save Tenant harmless from liability, loss and damage
to persons or property and from any claims (including, without limitation,
bodily injury, property damage, and environmental clean up claims and notices
of responsibility), actions, proceedings and expenses in connection therewith
resulting from (1) the inaccuracy of Landlord’s representation in the
first sentence of this Section 4.5; (2) the presence of Hazardous
Materials on, at, beneath, or migrating from the Site or in the Building,
except to the extent present as a result of the action of Tenant, or any
employee, agent or contractor of Tenant; or (3) the failure of Landlord to
fulfill its obligations under the second sentence of this Section 4.5;
provided, however, that in no event shall the foregoing indemnity (i) cover
or in any way include the Exclusions and (ii) render Landlord liable for
any loss or damage to Tenant’s Property and Landlord shall in no event be
liable for indirect, consequential or punitive damages.  This indemnity and hold harmless agreement
shall survive the expiration or earlier termination of this Lease.


 


4.6                                 Compliance
with Law


 


To comply with all
applicable Legal Requirements now or hereafter in force that impose a duty on
Landlord with respect to the common areas of the Complex.


 


4.7                                 Furniture
Removal


 


Within twenty (20) days
following execution of this Lease by both Tenant and Landlord, Landlord shall,
at its sole expense, remove all furniture currently located in the Premises
other than the fixtures and equipment listed on Exhibit E attached hereto
(the “Remaining Equipment”). Tenant shall have the right to use the Remaining
Equipment throughout the Term and, at the expiration of the Term, shall return
the Remaining Equipment to Landlord in good condition, reasonable wear and tear
excepted.


 


4.8                                 Cafeteria
Operations


 


Reference is made to the
fact that there presently exists within the Building a cafeteria area (the “Cafeteria
Space”) and cafeteria equipment.  During
the term of this Lease, Tenant shall have the right, at its sole cost and
expense, to operate a cafeteria in the Cafeteria Space for the conduct of a
food service for Tenant’s employees and business invitees but not for the
general public provided, however, that Tenant shall first obtain and shall keep
in full force and effect such special permits, approvals, licenses and other
approvals as shall be required by applicable laws, by-laws, orders, rules and
regulations.  


 


31

















 


In connection with the
operation of such cafeteria, Tenant may enter into a food service contract with
a cafeteria operator or other food service provider.  Landlord shall have no liability under such
contract but shall have a right to review and approve such contract. Landlord
shall have no responsibility for maintenance, repair or replacement of the
cafeteria equipment.


 


ARTICLE V


 


Tenant’s Covenants


 


Tenant covenants and
agrees to the following during the Term and such further time as Tenant
occupies any part of the Premises:


 


5.1                                 Payments


 


To pay when due all fixed
rent and Additional Rent and all charges for utility services rendered to the
Premises (except as otherwise provided in Exhibit C) and, as further
Additional Rent, all charges for additional services rendered pursuant to Section 4.1.2.


 


5.2                                 Repair and Yield Up


 


Except as otherwise
provided in Article VI and Section 4.1.3 to keep the Premises in good
order, repair and condition, and all glass in windows (except glass in exterior
walls unless the damage thereto is attributable to Tenant’s negligence or
misuse) and doors of the Premises whole and in good condition with glass of the
same type and quality as that injured or broken, in each case reasonable wear
and tear, damage by fire or other casualty or taking under the power of eminent
domain and damage resulting from the negligence of any of the Landlord Parties,
their agents, contractors or employees or from the failure of Landlord to
perform its obligations under this Lease only excepted, and at the expiration
or termination of this Lease peaceably to yield up the Premises including all
construction, work, improvements, and all alterations and additions thereto in
good order, repair and condition, reasonable wear and tear only excepted, first
removing all furniture, fixtures, equipment, goods and effects of Tenant and,
to the extent specified by Landlord by notice to Tenant given at least thirty
(30) days before such expiration or termination, the wiring for Tenant’s
computer, telephone and other communication systems and equipment whether
located in the Premises or in any other portion of the Building, including all
risers and all alterations and additions made by Tenant (but specifically
excluding all cabling and wiring existing in the Premises as of the date of
this Lease) and all partitions, and repairing any damage caused by such removal
and restoring the Premises and leaving them clean and neat. Tenant shall not
permit or commit any waste, and Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damage to common areas in the
Building, to the Site or to the other Buildings caused by Tenant, Tenant’s
agents, contractors, employees, sublessees, licensees, concessionaires or
invitees.


 


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5.3                                 Use


 


To use and occupy the
Premises for no other purpose other than the Permitted Use, and not to injure
or deface the Premises, Building, the Additional Building, the Site or any
other part of the Site nor to permit in the Premises or on the Site any auction
sale, vending machine (other than those used exclusively by Tenant’s
personnel), or inflammable fluids or chemicals (except as set forth in the last
grammatical paragraph of this Section 5.3), or nuisance, or the emission
from the Premises of any objectionable noise or odor, nor to permit in the
Premises anything which would  in any way
result in the leakage of fluid or the growth of mold, and not to use or devote
the Premises or any part thereof for any purpose other than the Permitted Uses,
nor any use thereof which is inconsistent with the maintenance of the Building
as an office building of the first class in the quality of its maintenance, use
and occupancy, or which is likely to disturb the quiet enjoyment of other
occupants of the Building or the Additional Building, contrary to law or
ordinance or liable to invalidate or increase the premiums for any insurance on
the Building or its contents or liable to render necessary any alteration or
addition to the Building. Further, (i) Tenant shall not, nor shall Tenant
permit its employees, invitees, agents, independent contractors, contractors,
assignees or subtenants to, keep, maintain, store or dispose of (into the
sewage or waste disposal system or otherwise) or engage in any activity which
might produce or generate asbestos, petroleum (and any breakdown product
thereof), lead containing paint, PCBs, and any other substance which is or may
hereafter be classified as a hazardous material, waste or substance
(collectively “Hazardous Materials”), under federal, state or local laws, rules and
regulations, including, without limitation, 42 U.S.C. Section 6901 et seq., 42
U.S.C. Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802
et seq. and Massachusetts General Laws, Chapter 21E and the rules and
regulations promulgated under any of the foregoing, as such laws, rules and
regulations may be amended from time to time (collectively “Hazardous Materials
Laws”), (ii) Tenant shall promptly after becoming aware of same notify
Landlord of any incident in, on or about the Premises, the Building or the Site
that would require the filing of a notice under any Hazardous Materials Laws, (iii) Tenant
shall comply and shall cause its employees, invitees, agents, independent
contractors, contractors, assignees and subtenants to comply with each of the
foregoing and (iv) Landlord shall have the right to make such inspections
(including testing) as Landlord shall elect from time to time to determine that
Tenant is complying with the foregoing.


 


Notwithstanding the
foregoing, Tenant may use normal amounts and types of substances typically used
for office uses, provided that Tenant uses such substances in the manner which
they are normally used for office uses, and in compliance with all Hazardous
Materials Laws and other applicable laws, ordinances, bylaws, rules and
regulations, and Tenant obtains and complies with all permits required by
Hazardous Materials Laws or any other laws, ordinances, bylaws, rules or
regulations prior to the use or presence of any such substances in the
Premises.


 


33

















 


5.4                                 Obstructions;
Items Visible From Exterior; Rules and Regulations.


 


Not to obstruct in any
manner any portion of the Building not hereby leased or any portion thereof or
of the Additional Building or of the Site used by Tenant in common with others;
not without prior consent of Landlord to permit the painting or placing of any
signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like,
visible from outside the Premises; and to comply with all reasonable Rules and
Regulations now or hereafter made by Landlord, of which Tenant has been given
notice, for the care and use of the Building and Site and their facilities and
approaches; Landlord shall not be liable to Tenant for the failure of other
occupants of the Buildings to conform to such Rules and Regulations.


 


5.5                                 Safety Appliances


 


To keep the Premises equipped with all safety
appliances required by any public authority because of (i) any use made by
Tenant other than normal office use, (ii) Tenant’s particular
configuration of furniture within the Premises, 
(iii) any alterations, additions or improvements made by or on
behalf of Tenant in the Premises, or (iv) any subletting of any portion of
the Premises, and to procure all licenses and permits so required because of
any of the foregoing items described in clauses (i), (ii), (iii), or (iv) above,
it being understood that the foregoing provisions shall not be construed to
broaden in any way Tenant’s Permitted Use. 
Landlord agrees to provide any other safety appliances so required by
law (i.e., except to the extent the same are required by reason of clauses (i),
(ii), (iii), or (iv) above), the cost of which shall be included in
Landlord’s Operating Expenses to the extent provided in Section 2.6 above.


 


5.6                                 Assignment;
Sublease


 


Except as otherwise
expressly provided herein, Tenant covenants and agrees that it shall not
assign, mortgage, pledge, hypothecate or otherwise transfer this Lease and/or
Tenant’s interest in this Lease or sublet (which term, without limitation,
shall include granting of concessions, licenses or the like) the whole or any
part of the Premises. Any assignment, mortgage, pledge, hypothecation, transfer
or subletting not expressly permitted herein or consented to by Landlord under
Sections 5.6.1-5.6.5 shall be void, ab initio; shall be of no force and effect;
and shall confer no rights on or in favor of third parties. In addition,
Landlord shall be entitled to seek specific performance of or other equitable
relief with respect to the provisions hereof.


 


5.6.1    Notwithstanding
the foregoing provisions of Section 5.6 above and the provisions of
Sections 5.6.2, 5.6.3, and 5.6.4 below, but subject to the provisions of Section 5.6.5,
below Tenant shall have the right without Landlord’s consent to assign this
Lease or to sublet the Premises (in whole or in part) (i) to any entity
controlling, controlled by, or under common control with Tenant (any such
entity referred to in this item (i), a “Tenant Affiliate”), (ii) or to any
entity into which Tenant may be converted or with which it may merge, or (iii) to
any entity that acquires substantially all of the stock of Tenant or the assets
of Tenant, provided that the entity (other than a Tenant Affiliate) to which
this 


 


34

















 


Lease is so assigned or
which so sublets the Premises and/or any guarantor of such entity has a credit
worthiness (e.g., assets on a pro forma basis using generally accepted
accounting principles consistently applied and using the most recent financial
statements) which is the same or better than the Tenant as of the date of this
Lease.  For the purposes of the preceding
sentence, “control” shall mean ownership, direct or indirect, of the majority
of the voting equity interests in any such entity.  Any of the transfers described in this Section 5.6.1
is referred to herein as a “Permitted Transfer”.


 


5.6.1.1 Notwithstanding
the provisions of Section 5.6 above but subject to the provisions of this Section 5.6.1.1
and the provisions of Sections 5.6.3, 5.6.4 and 5.6.5, Tenant may sublease up
to and including one (1) specific full floor of the Building (as
distinguished from floor area on a number of floors totaling the square footage
of any given floor) provided that in each instance Tenant, at its sole cost and
expense, shall construct such demising walls and secondary or additional means
of ingress and egress as shall be required by applicable Legal Requirements and
provided, further, that in each instance Tenant first obtains the express prior
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed.  Landlord shall
not be deemed to be unreasonably withholding its consent to such a proposed
subleasing if:


 


(a)                                  the
proposed subtenant is (i) a tenant or subtenant in the  Additional Building and Landlord then has
available for lease space in the Additional Building  comparable in size to the space proposed to
be subleased to such subtenant or (iii) not of a character consistent with
the operation of a first class office and development building (by way of
example, Landlord shall not be deemed to be unreasonably withholding its
consent to a subleasing to any governmental or quasi-governmental agency that
regularly deals with the public at large in such agency’s offices, e.g. the
Social Security Administration or Registry of Motor Vehicles), or


 


(b)                                 the
proposed subtenant is not of good character and reputation, or


 


(c)                                  the
proposed subtenant does not possess adequate financial capability to perform
the obligations of the subtenant under the sublease as and when due or required,
or


 


(d)                                 the
subtenant proposes to use the Premises (or part thereof) for a purpose other
than the purposes for which the Premises may be used as stated in Section 1.1
hereof, or


 


(e)                                  the
character of the business to be conducted or the proposed use of the premises
by the proposed subtenant shall (i) be reasonably likely to materially
increase Landlord’s Operating Expenses beyond that which Landlord incurs for
use by Tenant unless Tenant pays the amount of such increase that is not
otherwise passed through to Tenant as part of


 


35

















 


Landlord’s
Operating Expenses (provided that this clause (i) shall not apply unless
and until the Building becomes a multi tenant building, i.e., there is at least
one (1) other tenant in the Building under a direct lease with Landlord); (ii) be
reasonably likely to materially increase the burden on elevators or other
Building systems or equipment over the burden prior to such proposed
subletting; or (iii) violate or be reasonably likely to violate any
provisions or restrictions contained herein relating to the use or occupancy of
the Premises, or


 


(f)                                    there
shall then be existing an Event of Default (defined in section 7.1), or


 


(g)                                 [intentionally
omitted.]


 


(h)                                 any
part of the rent payable under the proposed sublease shall be calculated based
in whole or in part on the income or profits derived from the Premises or if
proposed sublease shall potentially have any adverse effect on the real estate
investment trust qualification requirements applicable to Landlord and its
affiliates.


 


5.6.2      Except
as permitted under Section 5.6.1 above, but subject to the provisions of
this Section 5.6.2 and the provisions of Sections 5.6.3, 5.6.4 and 5.6.5
below, Tenant covenants and agrees not to assign this Lease or to sublet more
than one (1) specific and complete floor in the Building (which shall be
deemed to include, without limitation, any proposed subleasing which together
with prior subleasings would result in an area equal to or greater than one (1)
specific and complete floor in the Building being the subject of one or more
subleases) without, in each instance, having first obtained the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, that in the case of any such
sublease so consented to by Landlord, Tenant, at its sole cost and expense
shall construct such demising walls and secondary or additional means of
ingress and egress as shall be required by applicable Legal Requirements.
Landlord shall not be deemed to be unreasonably withholding its consent to such
a proposed assignment or subleasing if:


 


(a)                                  the
proposed assignee or subtenant is (i) a tenant or subtenant elsewhere on
the Site and Landlord then has available for lease space in the Additional
Building comparable in size to the space proposed to be subleased to such
subtenant, (ii) in active negotiation with Landlord for premises in the
Additional Building or (iii) not of a character consistent with the
operation of a first class development (by way of example, Landlord shall not
be deemed to be unreasonably withholding its consent to an assignment or
subleasing to any governmental or quasi-governmental agency that regularly
deals with the public at large in such agency’s offices, e.g. the Social
Security Administration or Registry of Motor


 


36

















 


Vehicles), or


 


(b)                                 the
proposed assignee or subtenant is not of good character and reputation, or


 


(c)                                  the
proposed assignee or subtenant does not possess adequate financial capability
to perform the obligations of the Tenant under this Lease (in the case of an
assignment) or of the subtenant under the sublease (in the case of a sublease)
as and when due or required,


 


(d)                                 the
assignee or subtenant proposes to use the Premises (or part thereof) for a
purpose other than the purpose for which the Premises may be used as stated in Section 1.1
hereof, or


 


(e)                                  the
character of the business to be conducted or the proposed use of the Premises
by the proposed subtenant or assignee shall (i) be reasonably likely to
materially increase Landlord’s Operating Expenses beyond that which Landlord
incurs for use by Tenant unless Tenant pays the amount of such increase that is
not otherwise passed through to Tenant as part of Landlord’s Operating Expenses
(provided that this clause (i) shall not apply unless and until the Building
becomes a multi tenant building, i.e., there is at least one (1) other tenant
in the Building under a direct lease with Landlord); (ii) be reasonably likely
to materially increase the burden on elevators or other Building systems or
equipment over the burden prior to such proposed subletting or assignment; or (iii)
violate or be reasonably likely to violate any provisions or restrictions
contained herein relating to the use or occupancy of the Premises, or


 


(f)                                    there
shall then be existing an Event of Default (defined in Section 7.1), or


 


(g)                                 [intentionally
omitted.]


 


(h)                                 any
part of the rent payable under the proposed assignment or sublease shall be
based in whole or in part on the income or profits derived from the Premises or
if any proposed assignment or sublease shall potentially have any adverse
effect on the real estate investment trust qualification requirements
applicable to Landlord and its affiliates, or


 


(i)                                     [intentionally
omitted.]


 


(j)                                     [intentionally
omitted.]


 


(k)                                  in
the case of a proposed assignment (other than a Permitted Transfer), Landlord
elects, at its option, by notice given within twenty (20) days after receipt of
Tenant’s notice given pursuant to Section 5.6.3 below, to


 


37

















 


terminate this
Lease as of the proposed effective date of the proposed assignment, provided,
however, that upon such termination, all of Landlord’s and Tenant’s obligations
relating to the period after such termination date (but not those relating to
the period before such termination date) shall cease.  Notwithstanding the foregoing provisions of
this Section 5.6.2(k), if Landlord notifies Tenant of Landlord’s election
to terminate this Lease, Tenant shall have the right, by notice to Landlord
given within ten (10) days after receipt by Tenant of Landlord’s notice of
termination, to withdraw Tenant’s request to assign this Lease in which event
Landlord’s election to terminate shall be rendered null and void; or


 


(l)                                     in
the case of a proposed subleasing for a term substantially equal to the
then-unexpired Term hereof, which together with prior subleasings would result
in an area greater than one (1) specific full floor of the Building being
the subject of one or more subleases (other than a subleasing pursuant to Section 5.6.1),
Landlord elects, at its option, by notice given within twenty (20) days after
receipt of Tenant’s notice given pursuant to Section 5.6.3 below, to
terminate this Lease as to such portions of the Premises then proposed to be
sublet (but not as to any prior subleasings) which would, if made, result in an
area greater than one (1) specific full floor of the Building being sublet
(herein called the “Terminated Portion of the Premises”) as of a date which
shall be not earlier than forty (40) days nor later than ninety (90) days after
Landlord’s notice to Tenant; provided, however that upon the termination date
as set forth in Landlord’s notice, all of Landlord’s and Tenant’s obligations
as to the Terminated Portion of the Premises relating to the period after such
termination date (but not those relating to the period before such termination
date) shall cease and, promptly upon being billed therefor by Landlord Tenant
shall make final payment of all Annual Fixed Rent and Additional Rent due from
Tenant through such termination date; provided, further, that this Lease shall
remain in full force and effect as to such remainder of the Premises, except
that from and after the termination date the Rentable Floor Area of the
Premises shall be reduced to the rentable floor area of the remainder of the
Premises and the definition of Rentable Floor Area of the Premises shall be so
amended and after such termination all references in this Lease to the “Premises”
or the “Rentable Floor Area of the Premises” shall be deemed to be references
to the remainder of the Premises and, accordingly, Tenant’s payments for Annual
Fixed Rent, operating costs, real estate taxes and electricity shall be reduced
on a pro rata basis to reflect the size of the remainder of the Premises, and
provided further that Landlord shall, at Tenant’s sole but reasonable cost and
expense, separately demise the Terminated Portion of the Premises.  Notwithstanding the foregoing provisions of
this Section 5.6.2(l), if Landlord notifies Tenant of Landlord’s election
to terminate this Lease as to the Terminated Portion of the Premises, Tenant
shall have the right, by


 


38
















 


notice of Landlord
given within ten (10) days after receipt by Tenant of Landlord’s notice of
termination, to withdraw Tenant’s request to sublease the Premises in which
event Landlord’s election to terminate shall be rendered null and void; or


 


5.6.3        Tenant
shall give Landlord notice of any proposed sublease or assignment (which
notice, with respect to any assignment occurring by reason of any merger or
acquisition of Tenant or its assets pursuant to Section 5.6.1 above, may
be given as of the date of such assignment), and said notice shall specify the
provisions of the proposed assignment or subletting, including (a) the
name and address of the proposed assignee or subtenant, (b) in the case of
a proposed subletting pursuant to Section 5.6.1.1 or a proposed assignment
or subletting pursuant to Section 5.6.2, as the case may be, such
information as to the proposed assignee’s or proposed subtenant’s net worth and
financial capability and standing as may reasonably be required for Landlord to
make the determination referred to in Section 5.6.1.1 or 5.6.2 above
(provided, however, that Landlord shall hold such information confidential
having the right to release same to its officers, accountants, attorneys and
mortgage lenders on a confidential basis), (c) the business terms and
provisions upon which the proposed assignment or subletting is to be made, (d) in
the case of a proposed subletting pursuant to Section 5.6.1.1 or a
proposed assignment or subletting pursuant to Section 5.6.2, as the case
may be, all other information reasonably necessary to make the determination
referred to in 5.6.1.1 or Section 5.6.2 above and (e) in the case of
a proposed assignment or subletting pursuant to Section 5.6.1 above, such
information as may be reasonably required by Landlord to determine that such
proposed assignment or subletting complies with the requirements of said Section 5.6.1;
provided, however, that in the case of a merger or acquisition, if required by
law or by the terms of any confidentiality agreement to which Tenant is a
party, such information may be provided forthwith after the effective date of
such assignment.   Within ten (10) business
days following Landlord’s receipt of Tenant’s notice given as aforesaid
(including notice given by Tenant pursuant to the immediately preceding
provision), Landlord shall make and submit to Tenant Landlord’s determination
as aforesaid or advise Tenant in reasonable detail of the particular respects
in which Tenant’s notice and/or submission is insufficient (failing which, such
notice and submission shall be deemed adequate) in which case Tenant shall
re-submit such notice with all required information and thereupon the ten (10) business
day period shall again be applicable.


 


If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease or assign
pursuant to Tenant’s notice, as given hereunder; provided, however, that if
such assignment or sublease shall not be executed and delivered to Landlord
within one hundred twenty (120) days after the date of Landlord’s consent, the
consent shall be deemed null and void and the provisions of Section 5.6.1.1
or Section 5.6.2, as the case may be, shall be applicable.


 


39

















 


5.6.4        In
addition, in the case of any assignment or subleasing as to which Landlord may
consent (other than an assignment or subletting permitted under Section 5.6.1
hereof) such consent shall be upon the express and further condition, covenant
and agreement, and Tenant hereby covenants and agrees that, in addition to the
Annual Fixed Rent, Additional Rent and other charges to be paid pursuant to
this Lease, fifty percent (50%) of the “Assignment/Sublease Profits”
(hereinafter defined), if any, shall be paid to Landlord.  The “Assignment/Sublease Profits” shall be
the excess, if any, of (a) the “Assignment/Sublease Net Revenues” as
hereinafter defined over (b) the Annual Fixed Rent and Additional Rent and
other charges provided in this Lease (provided, however, that for the purpose
of calculating the Assignment/Sublease Profits in the case of a sublease,
appropriate proportions in the applicable Annual Fixed Rent, Additional Rent
and other charges under this Lease shall be made based on the percentage of the
Premises subleased and on the terms of the sublease).  The “Assignment/Sublease Net Revenues” shall
be the fixed rent, additional rent and all other charges and sums payable
either initially or over the term of the sublease or assignment plus all
other profits and increases to be derived by Tenant directly as a result of
such subletting or assignment (exclusive of the rental or purchase price
received by Tenant for the transfer of business assets other than Tenant’s
leasehold interest under this Lease), less the actual out-of-pocket costs of
Tenant incurred in such subleasing or assignment (the definition of which
consists of rent concessions, brokerage commissions, legal fees of outside
counsel engaged by Tenant in connection with such assignment or subleasing,
alteration allowances and other cost of any leasehold improvements made by
Tenant in connection with such subletting or assignment, as set forth in a
statement certified by an appropriate officer of Tenant and delivered to
Landlord within thirty (30) days of the full execution of the sublease or
assignment document, amortized over the term of the sublease or assignment.


 


All payments of the Assignment/Sublease Profits due Landlord shall be
made within fifteen (15) business days of receipt of same by Tenant.


 


5.6.5 (A)        It
shall be a condition of the validity of any assignment or subletting of right
under Section 5.6.1 above, or consented to under Section 5.6.1.1 or
Section 5.6.2 above, that both Tenant (except in the event that Tenant
ceases to exist through a merger) and the assignee or sublessee enter into a
separate written instrument directly with Landlord containing the agreement of
the assignee or sublessee Tenant to be bound directly to Landlord for all the
obligations of the Tenant hereunder, including, without limitation, the
obligation (a) to pay the rent and other amounts provided for under this
Lease (but in the case of a partial subletting, such subtenant shall agree on a
pro rata basis to be so bound) and (b) to comply with the applicable
provisions of Sections 5.6 through 5.6.5 hereof. Such assignment or subletting
shall not relieve the Tenant named herein of any of the obligations of the
Tenant hereunder and Tenant shall remain fully and primarily liable therefor 


 


40

















 


and the liability of Tenant and such assignee (or
subtenant, as the case may be) shall be joint and several. Further, and
notwithstanding the foregoing, the provisions hereof shall not constitute a
recognition of the assignment or the assignee thereunder or the sublease or the
subtenant thereunder, as the case may be, and at Landlord’s option, upon the
termination of the Lease, the assignment or sublease shall be terminated.


 


(B)           Except
with respect to any Permitted Transfer, as Additional Rent, Tenant shall
reimburse Landlord within thirty (30) days after receipt of an invoice from
landlord, an amount equal to the reasonable out of pocket legal and other
expenses incurred by Landlord in connection with any request by Tenant for
consent to assignment or subletting, not to exceed $3,000 for any one
transaction.  Section 5.14 hereof
shall apply to any request for plan review made in connection with any
transfer.


 


(C)           If
this Lease be assigned, or if the Premises or any part thereof be sublet or
occupied by anyone other than Tenant, Landlord may upon prior notice to Tenant,
at any time and from time to time after the occurrence of an Event of Default
by Tenant under this Lease, collect rent and other charges from the assignee, sublessee
or occupant and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or a waiver of the provisions of
Sections 5.6 through 5.6.5 hereof, or the acceptance of the assignee, sublessee
or occupant as a tenant or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained, the Tenant herein
named to remain primarily liable under this Lease.


 


(D)          The
consent by Landlord to an assignment or subletting under any of the provisions
of Sections 5.6.1 or 5.6.2 shall in no way be construed to relieve Tenant from
obtaining the express consent in writing of Landlord to any further assignment
or subletting, where such consent is required hereunder.


 


(E)           On
and after the occurrence, and during the continuance, of an “Event of Default”
(defined in Section 7.1), Landlord shall be entitled to one hundred
percent (100%) of any Assignment/Sublease Profits).


 


(F)           In
addition to the other requirements set forth in this Lease and notwithstanding
any other provision of this Lease, partial sublettings of the Premises shall
only be permitted under the following terms and conditions: (i) the layout
of both the subleased premises and the remainder of the Premises must comply
with applicable laws, ordinances, rules and/or regulations (including,
without limitation, all requirements concerning access and egress) and must be
approved by Landlord; (ii) in the event the subleased premises are
separately physically demised from the remainder of the Premises, Tenant shall
pay all costs of


 


41

















 


separately physically demising the subleased premises; and
(iii) there shall be no more than two (2) subleases in effect for the
Premises at any given time.


 


(G)          Without
limiting Tenant’s obligations under Section 5.14 or elsewhere in Section 5.6.1.1
and/or 5.6.2, Tenant shall be responsible, at Tenant’s sole cost and expense, for
performing all work necessary to comply with Legal Requirements and Insurance
Requirements in connection with any assignment or subletting hereunder
including, without limitation, any work in connection with such assignment or
subletting.


 


5.6.6                        Notwithstanding
the other provisions of this Lease, Tenant may from time to time and without
Landlord’s consent  permit one or more
portions of the Premises to be occupied by Tenant’s contractors, subcontractors
of Tenant’s contractors, and/or employees of any of Tenant’s affiliates on a
temporary basis pursuant to an oral or written revocable license, which
contractors and/or subcontractors are using any such space in connection with
the performance of their contract obligations to Tenant in connection with the
Permitted Use and without payment of consideration therefor to Tenant other
than the performance of such contract obligations, provided, however, that
incidental use of such space by any such subcontractor or contractor on behalf
of another entity shall not be deemed a violation of this paragraph. Any space
used for the purposes of this paragraph shall be unified with (e.g. not
separately demised), and indistinguishable from, portions of the Premises not
used for such purposes. Without limiting the generality of Section 5.7(A) below,
Tenant shall indemnify, defend and save Landlord harmless from and against any
liability, loss, cost or damage resulting from the failure of any such
contractors or subcontractors to comply with the terms and conditions of this Lease,
and any such failure of such contractors or subcontractors to comply with the
terms and conditions of this Lease shall be deemed a failure by Tenant to
comply.  From time to time upon the
written request of Landlord, Tenant shall identify in writing any such
contractor or subcontractor occupying portions of the Premises pursuant to this
Section 5.6.6.


 


5.7.                              Tenant’s
Indemnity, Insurance And Related Matters


 


(a)  Indemnity.  To the maximum extent permitted by law,
Tenant agrees to indemnify and save harmless the Landlord Parties (as
hereinafter defined) from and against all claims for injury to or death of any
person or damage to or destruction of property by a third party arising from or
claimed by a third party in a legal proceeding to have arisen from (i) any
act, omission or negligence of the Tenant Parties (as hereinafter defined); (ii) any
accident, injury or damage whatsoever caused to any person, or to the property
of any person, occurring in or about the Premises from the earlier of (A) the
date on which any Tenant Party first enters the Premises for any reason or (B) the
Commencement Date, and thereafter throughout and until the end of the Lease
Term, and after the end of the Lease Term for so long after the end of the
Lease Term as Tenant or anyone acting by, through or under Tenant is in
occupancy of the Premises or any portion thereof; (iii) any accident,


 


42

















 


injury or damage whatsoever occurring outside the
Premises but within the Building, or on common areas or the Property
(collectively, “the Complex”), where such accident, injury or damage results,
or is claimed by a third party in a legal proceeding to have resulted, from any
act, omission or negligence on the part of any of the Tenant Parties; or (iv) any
breach of this Lease by Tenant.  Tenant
shall pay such indemnified amounts as they are incurred by the Landlord
Parties.  This indemnification shall not
be construed to deny or reduce any other rights or obligations of indemnity
that a Landlord Parties may have under this Lease or the common law.  Notwithstanding anything contained herein to
the contrary, Tenant
shall not be obligated to indemnify a Landlord Party for any claims to the
extent that such Landlord Party’s damages result from such Landlord Party’s
negligence or willful misconduct.


 


(b)  Breach.  In the event that Tenant breaches any of its
indemnity obligations hereunder or under any other contractual or common law
indemnity: (i) Tenant shall pay to the Landlord Parties all liabilities,
loss, cost, or expense (including reasonable attorney’s fees) reasonably
incurred by the Landlord Parties as a result of said breach; and (ii) the
Landlord Parties may deduct and offset from any amounts due to Tenant under
this Lease any amounts owed by Tenant pursuant to this section.


 


(c)  No limitation.  The indemnification obligations under this Section shall
not be limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable by or for Tenant or any subtenant or other
occupant of the Premises under workers’ compensation acts, disability benefit
acts, or other employee benefit acts. 
Tenant waives any immunity from or limitation on its indemnity or
contribution liability to the Landlord Parties based upon such acts.


 


(d)  Subtenants and other
occupants.  Tenant shall require its
subtenants, if any, to be bound by the terms of this Section 5.7.


 


(e)  Survival.  The terms of this section shall survive any
termination or expiration of this Lease.


 


(f)  Costs.  The foregoing indemnity and hold harmless
agreement shall include indemnity for all reasonable costs, expenses and
liabilities (including, without limitation, attorneys’ fees and disbursements)
incurred by the Landlord Parties in connection with any such claim or any
action or proceeding brought thereon, and the defense thereof.  In addition, in the event that any action or
proceeding shall be brought against one or more Landlord Parties by reason of
any such claim, Tenant, upon request from the Landlord Party, shall resist and
defend such action or proceeding on behalf of the Landlord Party by counsel
appointed by Tenant’s insurer (if such claim is covered by insurance without
reservation) or otherwise by counsel reasonably satisfactory to the Landlord Party.  The Landlord Parties shall not be bound by
any compromise or settlement of any such claim, action or proceeding without
the prior written consent of such Landlord Parties, which consent shall not be
unreasonably withheld.  Such consent
shall not be required for any


 


43

















 


compromise or settlement pursuant to which
the Landlord Parties are completely released from liability.


 


5.7.1.       Tenant’s
Risk.


 


Tenant agrees to use and
occupy the Premises, and to use such other portions of the Building and the
Complex as Tenant is given the right to use by this Lease at Tenant’s own
risk.  The Landlord Parties shall not be
liable to the Tenant Parties for any damage, injury, loss, compensation or
claim to or destruction of any of Tenant’s property (including, but not limited
to, claims for the interruption of or loss to a Tenant Party’s business), based
on, arising out of or resulting from any cause whatsoever, including, but not
limited to, repairs to any portion of the Premises or the Building or the
Complex, any fire, robbery, theft, mysterious disappearance, or any other crime
or casualty, the actions of any other tenants of the Building or of any other
person or persons, or any leakage in any part or portion of the Premises or the
Building or the Complex, or from water, rain or snow that may leak into, or
flow from any part of the Premises or the Building or the Complex, or from
drains, pipes or plumbing fixtures in the Building or the Complex.  Any goods, property or personal effects
stored or placed in or about the Premises shall be at the sole risk of the
Tenant Party, and neither the Landlord Parties nor their insurers shall in any
manner be held responsible therefor.  The
Landlord Parties shall not be responsible or liable to a Tenant Party, or to
those claiming by, through or under a Tenant Party, for any loss or damage that
may be occasioned by or through the acts or omissions of persons occupying
adjoining premises or any part of the premises adjacent to or connecting with
the Premises or any part of the Building or otherwise.  Notwithstanding the foregoing, the Landlord
Parties shall not be released from liability for any injury, loss, damages or
liability to the extent arising from any negligence or willful misconduct of
the Landlord Parties; provided, however, in no event shall the Landlord Parties
have any liability, to a Tenant Party based on any loss with respect to or
interruption in the operation of Tenant’s business.  The provisions of this section shall be applicable until the
expiration or earlier termination of the Lease Term, and during such further
period as Tenant may use or be in occupancy of any part of the Premises or of
the Building.  Nothing in this Section shall
be deemed to affect Tenant’s rights under Section 4.2(B) of this
Lease subject, however, to the limitations set forth in Sections 5.8, 8.4 and
this Section 5.7.1.


 


5.7.2        Tenant’s Commercial General Liability
Insurance


 


Tenant agrees to maintain in
full force on or before the earlier of (i) the date on which any Tenant
Party first enters the Premises for any reason or (ii) the Commencement
Date, and thereafter throughout and until the end of the Lease Term, and after
the end of the Lease Term for so long after the end of the Lease Term as Tenant
or anyone acting by, through or under Tenant is in occupancy of the Premises or
any portion thereafter, a policy of commercial general liability


 


44

















 


insurance, on an occurrence
basis, issued on a form at least as broad as Insurance Services Office (“ISO”)
Commercial General Liability Coverage “occurrence” form CG 00 01 10 01 or
another ISO Commercial General Liability “occurrence” form providing equivalent
coverage.  Such insurance shall include
broad form contractual liability coverage, specifically covering but not
limited to the indemnification obligations undertaken by Tenant in this
Lease.  The minimum limits of liability
of such insurance shall be $5,000,000.00 per occurrence per location.  In addition, in the event Tenant hosts a
function in the Premises, Tenant agrees to obtain, and cause any persons or
parties providing services for such function to obtain, the appropriate
insurance coverages as determined by Landlord (including liquor liability coverage,
if applicable) and provide Landlord with evidence of the same.


 


5.7.3        Tenant’s Property Insurance.


 


Tenant shall maintain at all
times during the Term of the Lease, and during such earlier time as Tenant may
be performing work in or to the Premises or have property, fixtures, furniture,
equipment, machinery, goods, supplies, wares or merchandise on the Premises,
and continuing thereafter so long as Tenant is in occupancy of any part of the
Premises, business interruption insurance, and insurance against loss or damage
covered by the so-called “all risk” type insurance coverage with respect to
Tenant’s property, fixtures, furniture, equipment, machinery, goods, supplies,
wares, merchandise including without limitation, all demountable partitions and
walls.  The “all risk” insurance required
by this section shall be in an amount at least equal to the full replacement
cost of Tenant’s Property, subject to a commercially reasonable deductible
consistent with Section 5.7.5.  The
business interruption insurance required by this Section shall be an
amount not less than One Million Dollars ($1,000,000.00).  In addition, during such time as Tenant is
performing work in or to the Premises, Tenant, at Tenant’s expense, shall also
maintain, or shall cause its contractor(s) to maintain, builder’s risk
insurance for the full insurable value of such work.  Landlord and such additional persons or
entities with an insurable interest in the Premises as Landlord may reasonably
request by written notice to Tenant shall be named as loss payees, as their
interests may appear, on the policy or policies required by this section.


 


In the event of loss or
damage covered by the “all risk” insurance required by this section, the
responsibilities for repairing or restoring the loss or damage shall be
determined in accordance with Article VI of this Lease.


 


5.7.4        Tenant’s
Other Insurance


 


Throughout the Lease Term, Tenant shall obtain and
maintain (1) worker’s compensation insurance or participation in a
monopolistic state workers’ compensation fund; and (2) employer’s
liability insurance or (in a monopolistic


 


45

















 


state) Stop Gap Liability insurance.  Such worker’s compensation insurance shall
carry minimum limits as defined by the law of the jurisdiction in which the
Premises are located (as the same may be amended from time to time).  Such employer’s liability insurance shall be
in an amount not less than One Million Dollars ($1,000,000) for each accident,
Five Hundred Thousand Dollars ($500,000) disease-policy limit, and One Million
Dollars ($1,000,000) disease-each employee.


 


5.7.5        Requirements
for Insurance


 


All insurance required to
be maintained by Tenant or Landlord pursuant to this Lease shall be maintained
with responsible companies that are admitted to do business, and are in good
standing, in the jurisdiction in which the Premises are located and that have a
rating of at least “A” and are within a financial size category of not less
than “Class X” in the most current Best’s Key Rating Guide or such similar
rating as may be reasonably selected by Landlord.  All such insurance required to be maintained
by Tenant shall:  (1) be acceptable
in form and content to Landlord (Landlord agreeing to act reasonably and in
good faith); (2) be primary and noncontributory; and (3) contain an
endorsement prohibiting cancellation, failure to renew, reduction of amount of
insurance, or change in coverage without the insurer first endeavoring to give
Landlord thirty (30) days’ prior written notice of such proposed action.  No such policy shall contain any deductible
greater than $25,000.00 with respect to Tenant’s commercial general liability
insurance and $100,000.00 with respect to Tenant’s Property Insurance.  All deductibles and self-insured retentions
under any policy maintained by Landlord or Tenant shall be deemed to be “insurance”
for purposes of the waiver in Section 5.8 below.  Landlord reserves the right from time to time
to require Tenant to obtain higher minimum amounts of insurance if and to the
extent such limits as are customarily carried with respect to similar
properties in the area in which the Premises are located.  The minimum amounts of insurance required by
this Lease shall not be reduced by the payment of claims or for any other
reason.  In the event Tenant shall fail
to obtain or maintain any insurance meeting the requirements of this Article,
or to deliver such policies or certificates as required by this Article,
Landlord may, at its option, on five (5) days notice to Tenant, procure
such policies for the account of Tenant, and the cost thereof shall be paid to
Landlord within five (5) days after delivery to Tenant of bills therefor.


 


5.7.6        Additional Insureds


 


The commercial general liability carried by Tenant pursuant to this
Lease, and any additional liability insurance carried by Tenant pursuant to Section 5.7.2
of this Lease, shall name Landlord, Landlord’s managing agent, and such other
Persons with an insurable interest in the Premises as Landlord may reasonably
request by written notice to Tenant from time to time as additional insureds
with respect to liability arising out of or related to this Lease or the
operations of Tenant


 


46

















 


(collectively “Additional Insureds”). 
Such insurance shall provide primary coverage without contribution from
any other insurance carried by or for the benefit of Landlord, Landlord’s
managing agent, or other Additional Insureds. 
Such insurance shall also waive any right of subrogation against each
Additional Insured.


 


5.7.7        Certificates of Insurance


 


On or before the earlier of (i) the date on which any Tenant Party
first enters the Premises for any reason or (ii) the Commencement Date,
Tenant shall furnish Landlord with certificates evidencing the insurance
coverage required by this Lease, and renewal certificates shall be furnished to
Landlord at least annually thereafter, and at least thirty (30) days prior to
the expiration date of each policy for which a certificate was furnished.  (Acceptable forms of such certificates for
liability and property insurance, respectively, are attached as Exhibit I).  In jurisdictions requiring mandatory
participation in a monopolistic state workers’ compensation fund, the insurance
certificate requirements for the coverage required for workers’ compensation
will be satisfied by a letter from the appropriate state agency confirming
participation in accordance with statutory requirements.  Such current participation letters required
by this Section shall be provided every six (6) months for the
duration of this Lease.  Failure by the
Tenant to provide the certificates or letters required by this Section shall
not be deemed to be a waiver of the requirements in this Section.  Upon request by Landlord, a true and complete
copy of any insurance policy required by this Lease shall be delivered to
Landlord within ten (10) days following Landlord’s request.


 


5.7.8        Subtenants


 


Tenant shall, by the terms of any sublease, require its subtenants to
indemnify the Landlord Parties to the same extent that Tenant is required to
indemnify the Landlord Parties pursuant to Section 5.7 above, and to
maintain insurance that meets the requirements of this Article, and otherwise
to comply with the requirements of this Article.  Tenant shall require all such subtenants and
occupants to supply certificates of insurance evidencing that the insurance
requirements of this Article have been met and shall forward such
certificates to Landlord on or before the earlier of (i) the date on which
the subtenant or other occupant or any of their respective direct or indirect
partners, officers, shareholders, directors, members, trustees, beneficiaries,
servants, employees, principals, contractors, licensees, agents, invitees or
representatives first enters the Premises or (ii) the commencement of the
sublease.  Tenant shall be responsible
for identifying and remedying any deficiencies in such certificates or policy
provisions.


 


5.7.9        No Violation of Building Policies


 


Tenant
shall not commit or permit any violation of the policies of fire, boiler,


 


47

















 


sprinkler,
water damage or other insurance covering the Complex and/or the fixtures,
equipment and property therein carried by Landlord, or do or permit anything to
be done, or keep or permit anything to be kept, in the Premises, which in case
of any of the foregoing (i) would result in termination of any such
policies, (ii) would adversely affect Landlord’s right of recovery under
any of such policies, or (iii) would result in reputable and independent
insurance companies refusing to insure the Complex or the property of Landlord
in amounts reasonably satisfactory to Landlord.


 


5.7.10      Tenant to Pay Premium Increases


 


If,
because of anything done, caused or permitted to be done, or omitted by Tenant
(or its subtenant or other occupants of the Premises), the rates for liability,
fire, boiler, sprinkler, water damage or other insurance on the Complex or on
the property and equipment of Landlord or any other tenant or subtenant in the
Building shall be higher than they otherwise would be, Tenant shall reimburse
Landlord and/or the other tenants and subtenants in the Building for the
additional insurance premiums thereafter paid by Landlord or by any of the other
tenants and subtenants in the Building which shall have been charged because of
the aforesaid reasons, such reimbursement to be made from time to time on
Landlord’s demand. Landlord agrees that the use of the Premises for office use
only will not, per  se, result in any increase in premium.  Landlord agrees that Landlord’s Operating
Expenses shall not include any additional premium payable by reason of any
hazardous activity beyond office use conducted by any other occupant of the
Complex.


 


5.7.11      Tenant’s Work


 


During such times as Tenant is performing work or having work or
services performed in or to the Premises, Tenant shall require its contractors,
and their subcontractors of all tiers, to obtain and maintain commercial
general liability, automobile, workers compensation, employer’s liability,
builder’s risk, and equipment/property insurance in such amounts and on such
terms as are customarily required of such contractors and subcontractors on
similar projects.  The amounts and terms
of all such insurance are subject to Landlord’s written approval, which
approval shall not be unreasonably withheld. 
The commercial general liability and auto insurance carried by Tenant’s
contractors and their subcontractors of all tiers pursuant to this section
shall name Landlord, Landlord’s managing agent, and such other Persons with an
insurable interest in the Premises as Landlord may reasonably request by
written notice to Tenant from time to time as additional insureds with respect
to liability arising out of or related to their work or services (collectively “Additional
Insureds”).  Such insurance shall provide
primary coverage without contribution from any other insurance carried by or
for the benefit of Landlord, Landlord’s managing agent, or other Additional
Insureds.  Such insurance shall also
waive any right of subrogation against each Additional Insured.  Tenant shall obtain and submit to Landlord,
prior to the


 


48
















 


earlier of (i) the entry onto the Premises by such contractors or
subcontractors or (ii) commencement of the work or services, certificates
of insurance evidencing compliance with the requirements of this section.


 


5.7.12     Definitions of Landlord Parties and Tenant
Parties


 


The term “Landlord Party” or “Landlord Parties” shall mean Landlord,
any affiliate of Landlord, Landlord’s managing agents for the Building, each
Mortgagee, and each of their respective direct or indirect partners, officers,
shareholders, directors, members, trustees, beneficiaries, servants, employees,
principals, contractors, licensees, agents or representatives.  For the purposes of this Lease, the term “Tenant
Party” or “Tenant Parties” shall mean Tenant, any affiliate of Tenant, any permitted
subtenant or any other permitted occupant of the Premises, and each of their
respective direct or indirect partners, officers, shareholders, directors,
members, trustees, beneficiaries, servants, employees, principals, contractors,
licensees, agents, invitees or representatives.


 


5.8           Waiver
of Subrogation


 


The parties hereto waive
and release any and all rights of recovery against the other, and agree not to
seek to recover from the other or to make any claim against the other, and in
the case of Landlord, against all “Tenant Parties” (hereinafter defined), and
in the case of Tenant, against all “Landlord Parties” (hereinafter defined),
for any loss or damage incurred by the waiving/releasing party to the extent
such loss or damage is insured under any insurance policy required by this
Lease or which would have been so insured had the party carried the insurance
it was required to carry hereunder. 
Tenant shall cause its subtenants, if any, of the Premises to be bound
by the provisions hereof.  In addition,
the parties hereto (and, in the case of Tenant, its subtenants) shall procure
an appropriate clause in, or endorsement on, any insurance policy required by
this Lease pursuant to which the insurance company waives subrogation so long
as no material additional premium is charged for such waiver.  The insurance policies required by this Lease
shall contain no provision that would invalidate or restrict the parties’
waiver and release of the rights of recovery in this section.  The parties hereto covenant that no insurer
shall hold any right of subrogation against the parties hereto by virtue of
such insurance policy.


 


5.9           Right
of Entry


 


To permit Landlord and
its agents to examine the Premises at reasonable times and (except in the event
of an emergency) upon reasonable prior notice and subject to Tenant’s
reasonable security requirements of which Landlord has been given prior notice,
and, if Landlord shall so elect, to make any repairs or replacements Landlord
may deem necessary (provided, however, that Landlord will make repairs or
replacements within the Premises only to the extent permitted or required under
this Lease); to remove, at Tenant’s expense, any alterations, addition, signs,
curtains, blinds, shades, awnings, aerials, flagpoles, or the like not
consented to in writing; and to show the Premises to


 


49

















 


prospective tenants
during the eleven (11) months preceding expiration of the Term and to
prospective purchasers and mortgagees at all reasonable times.  Notwithstanding the foregoing, Landlord’s
building engineer or property manager (and assistant building engineer or
assistant property manager) shall have the right to have an office in the
Building and/or to perform his duties in the Building (including scheduling
service contractors and performing or causing repairs, replacements and other
work to be performed) without giving prior notice.  Landlord agrees that except in the case of an
emergency, it will conduct any such entry contemplated by this Section 5.9
in such a manner so as to minimize any interference with the conduct of Tenant’s
business operations in the Premises (consistent with the nature of the reason
for such entry).


 


5.10         Floor
Load; Prevention of Vibration and Noise


 


Not to place a load upon
the Premises exceeding an average rate of 70 pounds of live load per square
foot of floor area (partitions shall be considered as part of the live load);
and not to move any safe, vault or other heavy equipment in, about or out of
the Premises except in such manner and at such time as Landlord shall in each
instance authorize; Tenant’s business machines and mechanical equipment which
cause vibration or noise that may be transmitted to the Building structure or
to any other space in the Building shall be so installed, maintained and used
by Tenant so as to eliminate such vibration or noise.


 


 5.11        Personal
Property Taxes


 


To pay promptly when due
all taxes which may be imposed upon Tenant’s Property in the Premises to
whomever assessed.


 


 5.12        Compliance
with Laws


 


Except as otherwise
expressly provided in Section 4.6 above, to comply with all applicable
Legal Requirements now or hereafter in force which shall impose a duty on
Landlord or Tenant relating to or as a result of the use or occupancy of the
Premises; provided that Tenant shall not be required to make any installations,
alterations or additions to the Building unless the same are required by such
Legal Requirements as a result of or in connection with Tenant’s use or
occupancy of the Premises beyond normal use of space of this kind. Tenant shall
promptly pay all fines, penalties and damages that may arise out of or be
imposed because of its failure to comply with the provisions of this Section 5.12.


 


5.13         Payment
of Litigation Expenses


 


As Additional Rent, to
pay all reasonable costs, counsel and other fees incurred by Landlord in
connection with the successful enforcement by Landlord of any obligations of
Tenant under this Lease or in connection with any bankruptcy case involving Tenant
(Landlord hereby similarly agreeing to pay all reasonable third party costs,
counsel or other fees incurred by Tenant in connection with the successful
enforcement by Tenant of


 


50

















 


any obligations of Landlord
under this Lease or in connection with any bankruptcy case involving Landlord).


 


5.14         Alterations


 


(A)        Tenant
shall not make alterations and additions to Tenant’s space except in accordance
with plans and specifications therefor first approved by Landlord, which
approval shall not be unreasonably withheld. However, Landlord’s determination
of matters relating to aesthetic issues relating to alterations, additions or
improvements which are visible outside the Premises shall be in Landlord’s sole
but reasonable discretion. Without limiting such standard Landlord shall not be
deemed unreasonable for withholding approval of any alterations or additions
(including, without limitation, any alterations or additions to be performed by
Tenant under Article III) which (a) in Landlord’s reasonable opinion
will materially adversely affect any structural or exterior element of the
Building, any area or element outside of the Premises, or any facility or base
building mechanical system serving any area of the Building outside of the
Premises, or (b) involve or affect the exterior design, size, height, or
other exterior dimensions of the Building or (c) will require unusual
expense to readapt the Premises to normal office use on Lease termination or
expiration or increase the cost of construction or of insurance or taxes on the
Building or of the services called for by Section 4.1 unless Tenant first
gives assurance acceptable to Landlord for payment of such increased cost and
that such readaptation will be made prior to such termination or expiration
without expense to Landlord, (d) enlarge the Rentable Floor Area of the
Premises, or (e) are inconsistent, in Landlord’s reasonable judgment, with
alterations satisfying Landlord’s standards for new alterations in the
Building. Landlord’s review and approval of any such plans and specifications
and consent to perform work described therein shall not be deemed an agreement
by Landlord that such plans, specifications and work conform with applicable
Legal Requirements and requirements of insurers of the Building and the other
requirements of this Lease with respect to Tenant’s insurance obligations
(herein called “Insurance Requirements”) nor deemed a waiver of Tenant’s
obligations under this Lease with respect to applicable Legal Requirements and
Insurance Requirements nor impose any liability or obligation upon Landlord
with respect to the completeness, design sufficiency or compliance of such
plans, specifications and work with applicable Legal Requirements and Insurance
Requirements nor give right to any other parties. Further, Tenant acknowledges
that Tenant is acting for its own benefit and account, and that Tenant shall
not be acting as Landlord’s agent in performing any work in the Premises,
accordingly, no contractor, subcontractor or supplier shall have a right to
lien Landlord’s interest in the Property in connection with any such work.
Within thirty (30) days after receipt of an invoice from Landlord, Tenant shall
pay to Landlord as a fee for Landlord’s review of any work or plans (excluding
any review respecting initial improvements performed pursuant to Article III
hereof but including any review of plans or work relating to any assignment or
subletting), as Additional Rent, an amount equal to the sum of: (i) $150.00
per hour for time spent by Landlord’s in-house personnel and (ii) all
reasonable third party expenses incurred by Landlord to review Tenant’s plans
and Tenant’s work (Landlord hereby agreeing to cap any plan review costs (i.e.,
inclusive of


 


51

















 


items (i) and (ii) above)
relating to interior, non-structural alterations, addition or improvements that
do not impact Building systems at $6,000.00 in connection with any single
request for approval). All alterations and additions shall be part of the
Building unless and until Landlord shall specify the same for removal pursuant
to Section 5.2. All of Tenant’s alterations and additions and installation
of furnishings shall be coordinated with any work being performed by Landlord
and in such manner as to maintain harmonious labor relations and not to damage
the Buildings or Site or interfere with construction or operation of the
Buildings and other improvements to the Site and, except for installation of
furnishings, shall be performed by Landlord’s general contractor or by
contractors or workers first approved by Landlord, which approval shall not be
unreasonably withheld. Except for work by Landlord’s general contractor,
Tenant, before its work is started, shall secure all licenses and permits
necessary therefor; deliver to Landlord a statement of the names of all its
contractors and subcontractors and the estimated cost of all labor and material
to be furnished by them and security reasonably satisfactory to Landlord
protecting Landlord against liens arising out of the furnishing of such labor
and material; and cause each contractor to carry worker’s compensation
insurance in statutory amounts covering all the contractor’s and subcontractor’s
employees and commercial general liability insurance or comprehensive general
liability insurance with a broad form comprehensive liability endorsement with
such limits as Landlord may reasonably require, but in no event less than
$2,000,000.00 combined single limit per occurrence on a per location basis (all
such insurance to be written in companies approved by Landlord, which approval
shall not be unreasonably withheld, and naming and insuring Landlord and
Landlord’s managing agent as additional insureds and insuring Tenant as well as
the contractors), and to deliver to Landlord certificates of all such
insurance.  Except with respect to purely
cosmetic work, such as floor and wall coverings, Tenant shall also prepare and
submit to Landlord a set of as-built plans, in both print and electronic forms,
showing such work performed by Tenant to the Premises promptly after any such
alterations, improvements or installations are substantially complete and
promptly after any wiring or cabling for Tenant’s computer, telephone and other
communications systems is installed by Tenant or Tenant’s contractor. Without
limiting any of Tenant’s obligations hereunder, Tenant shall be responsible, as
Additional Rent, for the costs of any alterations, additions or improvements in
or to the Building that are required in order to comply with Legal Requirements
directly as a result of any work performed by Tenant. Landlord shall have the
right to provide such rules and regulations relative to the performance of
any alterations, additions, improvements and installations by Tenant hereunder
and Tenant shall abide by all such reasonable rules and regulations of
which Tenant has received advance written notice and shall cause all of its
contractors to so abide including, without limitation, payment for the costs of
using Building services. Tenant agrees to pay promptly when due the entire cost
of any work done on the Premises by Tenant, its agents, employees, or
independent contractors, and not to cause or permit any liens for labor or
materials performed or furnished in connection therewith to attach to the
Premises or the Buildings or the Site and immediately to discharge any such
liens which may so attach. Tenant shall pay, as Additional Rent, 100% of any
real estate taxes on the Complex which shall, at any time after commencement of
the Term, result from any alteration, addition or improvement to the Premises
made by Tenant.


 


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Tenant acknowledges and
agrees that Landlord shall be the owner of any additions, alterations and
improvements in the Premises or the Building to the extent paid for by
Landlord.


 


(B)           Notwithstanding
the terms of Section 5.14(A), Tenant shall have the right, without
obtaining the prior consent of Landlord, to make alterations, additions or
improvements to the Premises where:


 


(i)            the same
are within the interior of the Premises within the Building, and do not affect
the exterior of the Premises and the Building (including no signs on windows);


 


(ii)           the same
do not affect the roof, any structural element of the Building, the mechanical,
electrical, plumbing, heating, ventilating, air-conditioning and fire
protection systems of the Building;


 


(iii)          the
cost of any individual alteration, addition or improvement shall not exceed
$30,000.00; and


 


(iv)          Tenant
shall comply with the provisions of this Lease and if such work increases the
cost of insurance or taxes or of services, Tenant shall pay for any such
increase in cost;


 


provided, however, that
Tenant shall, within ten (10) days prior to the making of such changes,
send to Landlord plans and specifications describing the same in reasonable
detail and provided further that Landlord, by notice to Tenant given within ten
(10) days of its receipt of such plans and specifications, may require
Tenant to restore the Premises to its condition prior to such alteration,
addition or improvement at the expiration or earlier termination of the Lease
Term.


 


5.15         Vendors


 


Any vendors engaged by
Tenant to perform services in or to the Premises including, without limitation,
janitorial contractors and moving contractors shall be coordinated with any
work being performed by or for Landlord and in such manner as to maintain
harmonious labor relations and not to damage the Building or the Property or
interfere with Building construction or operation and shall be performed by
vendors first approved by Landlord, which approval shall not be unreasonably
withheld.


 


5.16         Patriot
Act.


 


As an inducement to
Landlord to enter into this Lease, Tenant hereby represents and warrants that: (i) Tenant
is not, nor is it owned or controlled directly or indirectly by, any person,
group, entity or nation named on any list issued by the Office of Foreign
Assets Control of the United States Department of the Treasury (“OFAC”) pursuant
to Executive Order 13224 or any similar list or any law, order, rule or
regulation or any Executive


 


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Order of the President of
the United States as a terrorist, “Specially Designated National and Blocked
Person” or other banned or blocked person (any such person, group, entity or
nation being hereinafter referred to as a “Prohibited Person”); (ii) Tenant
is not (nor is it owned, controlled, directly or indirectly, by any person,
group, entity or nation which is) acting directly or indirectly for or on
behalf of any Prohibited Person; and (iii) from and after the effective
date of the above-referenced Executive Order, Tenant (and any person, group, or
entity which Tenant controls, directly or indirectly) has not conducted nor
will conduct business nor has engaged nor will engage in any transaction or
dealing with any Prohibited Person in violation of the U.S. Patriot Act or any
OFAC rule or regulation, including without limitation any assignment of
this Lease or any subletting of all or any portion of the Premises or the
making or receiving of any contribution of funds, goods or services to or for
the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any
OFAC rule or regulation. In connection with the foregoing, it is expressly
understood and agreed that (x) any breach by Tenant of the foregoing
representations and warranties shall be deemed an immediate Event of Default by
Tenant under Section 7.1 of this Lease (without the benefit of notice or
grace) and shall be covered by the indemnity provisions of Section 5.7
above, and (y) the representations and warranties contained in this
subsection shall be continuing in nature and shall survive the expiration or
earlier termination of this Lease.


 


ARTICLE
VI


 


Casualty and Taking


 


6.1                                 Damage Resulting
from Casualty


 


In case during the Lease
Term the Building is damaged by fire or casualty and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be repaired within
two hundred seventy (270) days from the time that repair work would commence,
Landlord may, at its election, terminate this Lease by notice given to Tenant
within sixty (60) days after the date of such fire or other casualty,
specifying the effective date of termination. The effective date of termination
specified by Landlord shall not be less than thirty (30) days nor more than
forty-five (45) days after the date of notice of such termination.


 


In case during the Lease
Term, the Premises are damaged by fire or casualty and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be repaired
within two hundred seventy (270) days from the time that repair work would
commence, Tenant may, at its election, terminate this Lease by notice given to
Landlord within sixty (60) days after the date of such fire or other casualty,
specifying the effective date of termination. The effective date of termination
specified by Tenant shall be not less than thirty (30) days nor more than forty-five
(45) days after the date of notice of such termination.


 


Not later than thirty
(30) days after the occurrence of any casualty damage to the


 


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Building, Landlord shall
cause a reputable, independent contractor, engineer, insurance adjuster or
other qualified professional to prepare an estimate of the time that would be
required to restore the Building as required by this Article VI, which
estimate shall be delivered to Landlord and Tenant within such thirty-day
period.  Such estimate shall provide the
basis for the termination rights, if any, of Landlord and Tenant under the
preceding two paragraphs.


 


Unless terminated
pursuant to the foregoing provisions, this Lease shall remain in full force and
effect following any such damage subject, however, to the following provisions.


 


If the Building or the
Site or any part thereof are damaged by fire or other casualty and this Lease
is not so terminated, or Landlord or Tenant have no right to terminate this Lease,
and in any such case the holder of any mortgage which includes the Building as
a part of the mortgaged premises or any ground lessor of any ground lease which
includes the Site as part of the demised premises allows the net insurance
proceeds to be applied to the restoration of the Building (and/or the Site),
Landlord promptly after such damage and the determination of the net amount of
insurance proceeds available shall use due diligence to restore the Premises
and the Building in the event of damage thereto (excluding Tenant’s Property,
it being agreed that Tenant’s Property includes all demountable partitions and
walls) into proper condition for use and occupation and a just proportion of
the Annual Fixed Rent, Tenant’s share of Operating Costs and Tenant’s share of
real estate taxes according to the nature and extent of the injury to the
Premises shall be abated until the Premises shall have been put by Landlord
substantially into such condition except for punch list items and long lead
items. Notwithstanding anything herein contained to the contrary, Landlord
shall not be obligated to expend for such repair and restoration any amount in
excess of the net insurance proceeds.  At
its sole cost and expense, Tenant shall restore and/or replace Tenant’s
Property including the demountable partitions and walls.


 


If neither party has
previously terminated this Lease and such restoration is not completed within
ten (10) months from the date of the casualty or taking, such period to be
subject, however, to extension where the delay in completion of such work is
due to Force Majeure, as defined hereinbelow, (but in no event beyond twelve
(12) months from the date of the casualty or taking), Tenant, as its sole and
exclusive remedy, shall have the right to terminate this Lease at any time
after the expiration of such ten-month (as extended) period until the
restoration is substantially completed, such termination to take effect as of
the thirtieth (30th) day after the date of receipt by Landlord of
Tenant’s notice, with the same force and effect as if such date were the date
originally established as the expiration date hereof unless, within thirty (30)
days after Landlord’s receipt of Tenant’s notice, such restoration is
substantially completed, in which case Tenant’s notice of termination shall be
of no force and effect and this Lease and the Lease Term shall continue in full
force and effect. When used herein, “Force Majeure” shall mean any prevention,
delay or stoppage due to governmental regulation, strikes, lockouts, acts
of God, acts of war, terrorists acts, civil commotions, unusual scarcity of or
inability to


 


55

















 


obtain labor or
materials, labor difficulties, casualty or other causes reasonably beyond
Landlord’s control or attributable to Tenant’s action or inaction.


 


6.2           Uninsured
Casualty


 


Notwithstanding anything
to the contrary contained in this Lease, if the Building or the Premises shall
be substantially damaged by fire or casualty as the result of a risk not
covered by the forms of casualty insurance at the time maintained by Landlord
or required to be maintained by Landlord hereunder and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be repaired
within ninety (90) days from the time that repair work would commence, Landlord
may, at its election, terminate the Term of this Lease by notice to the Tenant
given within sixty (60) days after such loss. If Landlord shall give such
notice, then this Lease shall terminate as of the date of such notice with the
same force and effect as if such date were the date originally established as
the expiration date hereof.


 


6.3           Rights
of Termination for Taking


 


If the entire Building,
or such portion of the Premises as to render the balance (if reconstructed to
the maximum extent practicable in the circumstances) unsuitable for Tenant’s
purposes in Tenant’s reasonable business judgment, shall be taken by
condemnation or right of eminent domain, Tenant shall have the right to
terminate this Lease by notice to the other of its desire to do so, provided
that such notice is given not later than thirty (30) days after Tenant has been
deprived of possession. If either party shall give such notice, then this Lease
shall terminate as of the date that Tenant is deprived of possession with the
same force and effect as if such date were the date originally established as
the expiration date hereof.


 


Further, if (x) the
entire Building shall be taken or (y) so much of the Building shall be so
taken that continued operation of the Building would be uneconomic as a result
of the taking, Landlord shall have the right to terminate this Lease by giving
notice to Tenant of Landlord’s desire to do so not later than thirty (30) days
after Tenant has been deprived of possession of the Premises (or such portion
thereof as may be taken). If Landlord shall give such notice, then this Lease
shall terminate as of the date that Tenant is deprived of possession with the
same force and effect as if such date were the date originally established as
the expiration date hereof.


 


Should any part of the
Premises be so taken or condemned during the Lease Term hereof, and should this
Lease not be terminated in accordance with the foregoing provisions, and the
holder of any mortgage which includes the Premises as part of the mortgaged
premises or any ground lessor of any ground lease which includes the Site as
part of the demised premises allows the net condemnation proceeds to be applied
to the restoration of the Building, Landlord agrees that after the
determination of the net amount of condemnation proceeds available to Landlord,
Landlord shall use due diligence to put what may remain of the Premises into
proper condition for use and occupation as nearly like the condition of the
Premises prior to such taking as shall be practicable (excluding


 


56

















 


Tenant’s Property).
Notwithstanding the foregoing, Landlord shall not be obligated to expend for
such repair and restoration any amount in excess of the net condemnation
proceeds made available to it.


 


If the Premises shall be
affected by any exercise of the power of eminent domain, then the Annual Fixed
Rent, Tenant’s share of operating costs and Tenant’s share of real estate taxes
shall be justly and equitably abated and reduced according to the nature and
extent of the loss of use thereof suffered by Tenant; and in case of a taking
which permanently reduces the Rentable Floor Area of the Premises, a just
proportion of the Annual Fixed Rent, Tenant’s share of operating costs and
Tenant’s share of real estate taxes shall be abated for the remainder of the
Lease Term.


 


6.4           Award


 


Landlord shall have and
hereby reserves to itself any and all rights to receive awards made for damages
to the Premises, the Buildings, the Complex and the Site and the leasehold
hereby created, or any one or more of them, accruing by reason of exercise of
eminent domain or by reason of anything lawfully done in pursuance of public or
other authority. Tenant hereby grants, releases and assigns to Landlord all
Tenant’s rights to such awards, and covenants to execute and deliver such
further assignments and assurances thereof as Landlord may from time to time
request, and if Tenant shall fail to execute and deliver the same within
fifteen (15) days after notice from Landlord, Tenant hereby covenants and
agrees that Landlord shall be irrevocably designated and appointed as its
attorney-in-fact to execute and deliver in Tenant’s name and behalf all such
further assignments thereof which conform with the provisions hereof.


 


Nothing contained herein
shall be construed to prevent Tenant from prosecuting in any condemnation
proceeding a claim for the value of any of Tenant’s usual trade fixtures
installed in the Premises by Tenant at Tenant’s expense and, for relocation and
moving expenses, provided that such action and any resulting award shall not
affect or diminish the amount of compensation otherwise recoverable by Landlord
from the taking authority.


 


ARTICLE VII


 


Default


 


7.1                                 Tenant’s Default


 


(a)                                  If
at any time subsequent to the date of this Lease any one or more of the
following events (herein sometimes called an “Event of Default”) shall occur:


 


(i)            Tenant
shall fail to pay the fixed rent, Additional Rent or other charges for which
provision is made herein on or before the date on which the same become due and
payable, and the same continues for five (5) business days after notice
from Landlord to Tenant


 


57

















 


thereof; or


 


(ii)           Landlord
having rightfully given the notice specified in subdivision (i) above
twice in any calendar year, Tenant shall thereafter in the same calendar year
fail to pay the fixed rent, Additional Rent or other charges on or before the
date on which the same become due and payable; or


 


(iii)          Tenant
shall assign its interest in this Lease or sublet any portion of the Premises
in violation of the requirements of Section 5.6 through 5.6.5 of this
Lease; or


 


(iv)          Tenant
shall neglect or fail to perform or observe any other covenant herein contained
on Tenant’s part to be performed or observed and Tenant shall fail to remedy
the same within thirty (30) days after notice to Tenant specifying such neglect
or failure, or if such failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty (30) day period, Tenant shall
fail to commence promptly to remedy the same and to prosecute such remedy to
completion with diligence and continuity; or


 


(v)           Tenant’s
leasehold interest in the Premises shall be taken on execution or by other
process of law directed against Tenant; or


 


(vi)          Tenant
shall make an assignment for the benefit of creditors or shall file a voluntary
petition in bankruptcy or shall be adjudicated bankrupt or insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for
itself under any present or future Federal, State or other statute, law or
regulation for the relief of debtors, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties, or shall admit in writing its
inability to pay its debts generally as they become due; or


 


(vii)         A
petition shall be filed against Tenant in bankruptcy or under any other law
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
Federal, State or other statute, law or regulation and shall remain undismissed
or unstayed for an aggregate of sixty (60) days (whether or not consecutive),
or if any debtor in possession (whether or not Tenant) trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or of
the Premises shall be appointed without the consent or acquiescence of Tenant
and such appointment shall remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive), or if any debtor in possession
(whether or not Tenant) trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Premises shall be appointed
without the consent or acquiescence of Tenant and such appointment shall remain
unvacated or unstayed 


 


58
















 


for an
aggregate of sixty (60) days (whether or not consecutive) then, and in any of
said cases (notwithstanding any license of a former breach of covenant or
waiver of the benefit hereof or consent in a former instance).


 


Landlord lawfully may,
immediately or at any time thereafter, and without demand or further notice
terminate this Lease by notice to Tenant, specifying a date not less than ten (10) days
after the giving of such notice on which this Lease shall terminate, and this
Lease shall come to an end on the date specified therein as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Lease Term (Tenant hereby waiving any rights of redemption),
and Tenant will then quit and surrender the Premises to Landlord, but Tenant
shall remain liable as hereinafter provided.


 


(b)                                 If
this Lease shall have been terminated as provided in this Article, then
Landlord may, without notice, re- enter the Premises, either by force, summary
proceedings, ejectment or otherwise, and remove and dispossess Tenant and all
other persons and any and all property from the same, as if this Lease had not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end.


 


(c)                                  In
the event that this Lease is terminated under any of the provisions contained
in Section 7.1 (a) or shall be otherwise terminated by breach of any
obligation of Tenant, Tenant covenants and agrees forthwith to pay and be
liable for, on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of rent and other charges reserved as
they would, under the terms of this Lease, become due if this Lease had not
been terminated or if Landlord had not entered or re-entered, as aforesaid, and
whether the Premises be relet or remain vacant, in whole or in part, or for a
period less than the remainder of the Term, and for the whole thereof, but in
the event the Premises be relet by Landlord, Tenant shall be entitled to a credit
in the net amount of rent and other charges received by Landlord in reletting,
after deduction of all reasonable out of pocket expenses incurred in reletting
the Premises (including, without limitation, remodeling costs, brokerage fees
and the like), and in collecting the rent in connection therewith, in the
following manner:


 


Amounts received by
Landlord after reletting shall first be applied against such Landlord’s
expenses, until the same are recovered, and until such recovery, Tenant shall
pay, as of each day when a payment would fall due under this Lease, the amount
which Tenant is obligated to pay under the terms of this Lease (Tenant’s
liability prior to any such reletting and such recovery not in any way to be
diminished as a result of the fact that such reletting might be for a rent
higher than the rent provided for in this Lease); when and if such expenses
have been completely recovered, the amounts received from reletting by Landlord
as have not previously been


 


59

















 


applied shall be credited
against Tenant’s obligations as of each day when a payment would fall due under
this Lease, and only the net amount thereof shall be payable by Tenant.
Further, amounts received by Landlord from such reletting for any period shall
be credited only against obligations of Tenant allocable to such period, and
shall not be credited against obligations of Tenant hereunder accruing
subsequent or prior to such period; nor shall any credit of any kind be due for
any period after the date when the term of this Lease is scheduled to expire
according to its terms.


 


Landlord agrees to use
reasonable efforts to relet the Premises after Tenant vacates the same in the
event this Lease is terminated based upon an Event of Default by Tenant
hereunder. The marketing of the Premises in a manner similar to the manner in
which Landlord markets other premises within Landlord’s control within the
Building shall be deemed to have satisfied Landlord’s obligation to use “reasonable
efforts” hereunder. In no event shall Landlord be required to (i) solicit
or entertain negotiations with any other prospective tenant for the Premises
until Landlord obtains full and complete possession of the Premises (including,
without limitation, the final and unappealable legal right to relet the
Premises free of any claim of Tenant), (ii) relet the Premises before
leasing other vacant space in the Building, or (iii) lease the Premises
for a rental less than the current fair market rent then prevailing for similar
office space in the Building.


 


(d)                                 (i)            Landlord may elect, as
an alternative, to have Tenant pay liquidated damages, which election may be
made by notice given to Tenant at any time after such termination and whether
or not Landlord shall have collected any damages as aforesaid, as liquidated
final damages and in lieu of all other damages beyond the date of such notice.
Upon such notice, Tenant shall promptly pay to Landlord, as liquidated damages,
in addition to any damages collected or due from Tenant for any period prior to
such notice and all expenses which Landlord may have incurred with respect to
the collection of such damages, such a sum as at the time of the giving of such
notice represents the amount of the excess, if any, of the total rent and other
benefits which would have accrued to Landlord under this Lease from the date of
such notice for what would be the then unexpired Lease Term if the Lease terms
had been fully complied with by Tenant over and above the then cash rental value
(in advance) of the Premises for the balance of the Lease Term.


 


(ii)           For the purposes of
this Article, if Landlord elects to require Tenant to pay damages in accordance
with the immediately preceding paragraph, the total rent shall be computed by
assuming that Tenant’s share of excess taxes, Tenant’s share of excess
operating costs and Tenant’s share of excess electrical costs would be, for the
balance of the unexpired Term from the date of such notice, the amount thereof
(if any) for the immediately preceding annual period payable by Tenant to
Landlord.


 


60

















 


(e)                                  In
case of any Event of Default, re-entry, dispossession by summary proceedings or
otherwise, Landlord may (i) re-let the Premises or any part or parts
thereof, either in the name of Landlord or otherwise, for a term or terms which
may at Landlord’s option be equal to or less than or exceed the period which
would otherwise have constituted the balance of the Term of this Lease and may
grant concessions or free rent to the extent that Landlord reasonably considers
advisable or necessary to re-let the same and (ii) may make such
alterations, repairs and decorations in the Premises as Landlord in its sole
but reasonable judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever
for failure to re-let the Premises, or, in the event that the Premises are
re-let, for failure to collect the rent under re-letting. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed, or
in the event of Landlord obtaining possession of the Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease.


 


(f)                                    The
specified remedies to which Landlord may resort hereunder are not intended to
be exclusive of any remedies or means of redress to which Landlord may at any
time be entitled lawfully, and Landlord may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as if specific
remedies were not herein provided for. Further, nothing contained in this Lease
shall limit or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, the
damages are to be proved, whether or not the amount be greater, equal to, or
less than the amount of the loss or damages referred to above.


 


7.2           Landlord’s
Default


 


Landlord shall in no
event be in default in the performance of any of Landlord’s obligations
hereunder unless and until Landlord shall have failed to perform such
obligations within thirty (30) days, after notice by Tenant to Landlord
specifying wherein Landlord has failed to perform any such obligation, or, if
such failure is of a nature that Landlord cannot reasonably remedy the same
within such thirty (30) day period, Landlord shall fail to commence promptly to
remedy the same within such thirty-day period and to prosecute such remedy to
completion with diligence. The Tenant shall not assert any right to deduct the
cost of repairs or any monetary claim against the Landlord from rent thereafter
due and payable, but shall look solely to the Landlord for satisfaction of such
claim.


 


61

















 


ARTICLE VIII


 


Miscellaneous


 


8.1           Extra Hazardous
Use


 


Tenant covenants and
agrees that Tenant will not do or permit anything to be done in or upon the
Premises, or bring in anything or keep anything therein, which shall increase
the rate of insurance on the Premises or on the Building above the standard
rate applicable to premises being occupied for the use to which Tenant has
agreed to devote the Premises; and Tenant further agrees that, in the event
that Tenant shall do any of the foregoing, Tenant will promptly pay to
Landlord, on demand, any such increase resulting therefrom, which shall be due
and payable as Additional Rent thereunder.


 


8.2           Waiver


 


Failure on the part of
Landlord or Tenant to complain of any action or non-action on the part of the
other, no matter how long the same may continue, shall never be a waiver by
Tenant or Landlord, respectively, of any of its rights hereunder. Further, no
waiver at any time of any of the provisions hereof by Landlord or Tenant shall
be construed as a waiver of any of the other provisions hereof, and a waiver at
any time of any of the provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. The consent or approval of Landlord
or Tenant to or of any action by the other requiring such consent or approval
shall not be construed to waive or render unnecessary Landlord’s or Tenant’s
consent or approval to or of subsequent similar act by the other.


 


No payment by Tenant, or
acceptance by Landlord, of a lesser amount than shall be due from Tenant to
Landlord shall be treated otherwise than as a payment on account. The
acceptance by Landlord of a check for a lesser amount with an endorsement or
statement thereon, or upon any letter accompanying such check, that such lesser
amount is payment in full, shall be given no effect, and Landlord may accept
such check without prejudice to any other rights or remedies which Landlord may
have against Tenant.


 


8.3           Cumulative Remedies


 


Except as expressly
provided in this Lease, the specific remedies to which Landlord or Tenant may
resort under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which such party may be
lawfully entitled in case of any breach or threatened breach by Tenant or
Landlord, as the case may be, of any provisions of this Lease. In addition to
the other remedies provided in this Lease, each of Tenant and Landlord shall be
entitled to the restraint by injunction of the violation or attempted or
threatened violation of any of the covenants, conditions or provisions of this
Lease or to a decree compelling specific performance of any such covenants,
conditions or provisions.


 


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8.4           Quiet Enjoyment


 


This Lease is subject and
subordinate to all matters of record. 
Provided no Event of Default then exists, Tenant, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during the Term
(exclusive of any period during which Tenant is holding over after the
termination or expiration of this Lease without the consent of Landlord),
without hindrance or ejection by any persons claiming by, through, or under
Landlord or claiming to have title to the Premises superior to Tenant, subject,
however, to the terms of this Lease; the foregoing covenant of quiet enjoyment
is in lieu of any other covenant, express or implied; and it is understood and
agreed that this covenant and any and all other covenants of Landlord contained
in this Lease shall be binding upon Landlord and Landlord’s successors,
including ground or master lessees, only with respect to breaches occurring
during Landlord’s or Landlord’s successors’ respective ownership of Landlord’s
interest hereunder, as the case may be.


 


Further, Tenant
specifically agrees to look solely to Landlord’s then equity interest in the
Building at the time owned, or in which Landlord holds an interest as ground
lessee, and Landlord’s interest in the proceeds of any fire or casualty
insurance policy, or any  liability
insurance policy including, without limitation, any self insurance (but in the
case of liability insurance and self-insurance only to the extent of an
unsatisfied loss event covered by Landlord’s indemnification obligation under Section 4.3
hereof), or condemnation award attributable thereto, for recovery of any
judgment from Landlord; it being specifically agreed that neither Landlord (original
or successor), nor any beneficiary of any trust of which any person holding
Landlord’s interest is trustee, nor any member, manager, partner, director or
stockholder, nor Landlord’s managing agent, shall ever be personally liable for
any such judgment, or for the payment of any monetary obligation to Tenant. The
provision contained in the foregoing sentence is not intended to, and shall
not, limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or Landlord’s successors in interest, or any action not
involving the personal liability of Landlord (original or successor), any
successor trustee to the persons named herein as Landlord, or any beneficiary
of any trust of which any person holding Landlord’s interest is trustee, or of
any manager, member, partner, director or stockholder of Landlord or of
Landlord’s managing agent to respond in monetary damages from Landlord’s assets
other than Landlord’s equity interest aforesaid in the Building, but in no
event shall Tenant have the right to terminate or cancel this Lease or to
withhold rent or to set-off any claim or damages against rent as a result of
any default by Landlord or breach by Landlord of its covenants or any
warranties or promises hereunder, except in the case of a wrongful eviction of
Tenant from the Premises (constructive or actual) by Landlord continuing after
notice to Landlord thereof and a reasonable opportunity for Landlord to cure
the same. In the event that Landlord shall be determined to have acted
unreasonably in withholding any consent or approval under this Lease, the sole
recourse and remedy of Tenant in respect thereof shall be to specifically
enforce Landlord’s obligation to grant such consent or approval, and in no
event shall the Landlord be responsible for any damages of whatever nature in
respect of its failure to give such consent or approval nor shall the same
otherwise affect the obligations of Tenant under 


 


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this Lease or act as any
termination of this Lease.


 


In no event shall
Landlord or Tenant ever be liable to the other party for any indirect or
consequential damages suffered from whatever cause; provided that the foregoing
shall not limit or alter any procedural right or remedy of Landlord under this
Lease nor shall the same apply to the obligations of Tenant with respect to any
hold over by Tenant after the expiration or earlier termination of this Lease.


 


8.5           Notice to Mortgagee and Ground Lessor


 


After receiving notice
from any person, firm or other entity that it holds a mortgage which includes
the Premises as part of the mortgaged premises, or that it is the ground lessor
under a lease with Landlord, as ground lessee, which includes the Premises as a
part of the demised premises, no notice from Tenant to Landlord shall be
effective unless and until a copy of the same is given to such holder or ground
lessor, and the curing of any of Landlord’s defaults by such holder or ground
lessor within a reasonable time thereafter (including a reasonable time to
obtain possession of the premises if the mortgagee or ground lessor elects to
do so) shall be treated as performance by Landlord. For the purposes of this Section 8.5
or Section 8.15, the term “mortgage” includes a mortgage on a leasehold
interest of Landlord (but not one on Tenant’s leasehold interest).


 


8.6           Assignment of Rents


 


With reference to any
assignment by Landlord of Landlord’s interest in this Lease, or the rents
payable hereunder, conditional in nature or otherwise, which assignment is made
to the holder of a mortgage or ground lease on property which includes the
Premises, Tenant agrees:


 


(a)                           That
the execution thereof by Landlord, and the acceptance thereof by the holder of
such mortgage or the ground lessor, shall never be treated as an assumption by
such holder or ground lessor of any of the obligations of Landlord hereunder,
unless such holder, or ground lessor, shall, by notice sent to Tenant,
specifically otherwise elect; and


 


(b)                          That,
except as aforesaid, such holder or ground lessor shall be treated as having
assumed Landlord’s obligations hereunder only upon foreclosure of such holder’s
mortgage and the taking of possession of the Premises, or, in the case of a
ground lessor, the assumption of Landlord’s position hereunder by such ground
lessor.


 


In no event shall the
acquisition of title to the Building and the land on which the same is located
by a purchaser which, simultaneously therewith, leases the entire Building or
such land back to the seller thereof be treated as an assumption by such
purchaser-lessor, by operation of law or otherwise, of Landlord’s obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord’s obligations
hereunder subject to the provisions of Section 8.4 hereof. In any 


 


64

















 


such event, this Lease
shall be subject and subordinate to the lease to such purchaser provided that
such purchaser agrees to recognize the right of Tenant to use and occupy the
Premises upon the payment of rent and other charges payable by Tenant under
this Lease and the performance by Tenant of Tenant’s obligations hereunder and
provided that Tenant agrees to attorn to such purchaser. For all purposes, such
seller-lessee, and its successors in title, shall be the landlord hereunder
unless and until Landlord’s position shall have been assumed by such
purchaser-lessor.


 


8.7           Surrender


 


No act or thing done by
Landlord during the Lease Term shall be deemed an acceptance of a surrender of
the Premises, and no agreement to accept such surrender shall be valid, unless
in writing signed by Landlord. No employee of Landlord or of Landlord’s agents
shall have any power to accept the keys of the Premises prior to the
termination of this Lease. The delivery of keys to any employee of Landlord or
of Landlord’s agents shall not operate as a termination of the Lease or a
surrender of the Premises.


 


8.8           Brokerage


 


(A)       Tenant
warrants and represents that Tenant has not dealt with any broker in connection
with the consummation of this Lease other than the brokers, person or firm, if
any, designated in Section 1.1 hereof (the “Recognized Brokers”); and in
the event any claim is made against the Landlord relative to dealings by Tenant
with brokers other than the Recognized Brokers, Tenant shall defend the claim
against Landlord with counsel of Tenant’s selection first approved by Landlord
(which approval will not be unreasonably withheld) and save harmless and
indemnify Landlord on account of loss, cost or damage which may arise by reason
of such claim.


 


(B)       Landlord
warrants and represents that Landlord has not dealt with any broker in
connection with the consummation of this Lease other than the Recognized
Brokers; and in the event any claim is made against the Tenant relative to
dealings by Landlord with brokers other than the Recognized Brokers, Landlord
shall defend the claim against Tenant with counsel of Landlord’s selection
first approved by Tenant (which approval will not be unreasonably withheld) and
save harmless and indemnify Tenant on account of loss, cost or damage which may
arise by reason of such claim. Landlord agrees that it shall be solely
responsible for the payment of brokerage commissions to the Recognized Brokers
for the Original Term of this Lease.


 


8.9           Invalidity of Particular Provisions


 


If any term or provision
of this Lease, or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.


 


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8.10         Provisions Binding, etc


 


The obligations of this
Lease shall run with the land, and except as herein otherwise provided, the
terms hereof shall be binding upon and shall inure to the benefit of the
successors and assigns, respectively, of Landlord and Tenant and, if Tenant
shall be an individual, upon and to his heirs, executors, administrators,
successors and assigns.  The reference contained
to successors and assigns of Tenant is not intended to constitute a consent to
subletting or assignment by Tenant.


 


8.11         Recording;
Confidentiality


 


Tenant agrees not to
record the within Lease, but each party hereto agrees, on the request of the other,
to execute a so-called Notice of Lease or short form lease in form recordable
and complying with applicable law and reasonably satisfactory to both Landlord’s
and Tenant’s attorneys. In no event shall such document set forth rent or other
charges payable by Tenant under this Lease; and any such document shall
expressly state that it is executed pursuant to the provisions contained in
this Lease, and is not intended to vary the terms and conditions of this Lease.


 


Each of Landlord and
Tenant shall be bound by that certain confidentiality agreement dated as of February 11,
2008, by and between Tenant and Boston Properties Limited Partnership.  Notwithstanding the terms of such agreement,
Landlord and Tenant each acknowledge and agree that the other shall have the
right to file this Lease with the Securities and Exchange Commission forthwith
after the mutual execution and delivery hereof if applicable laws, ordinances,
statutes, rules or regulations require such filing.  In addition, Landlord shall have the right,
from time to time during the Lease Term, to request and obtain from Tenant the
financial information and other information set forth in Section 8.16(A) and
(B) and Landlord shall have the right from time to time to disclose any
such financial information subject to the terms of said Section 8.16(A) and
(B).


 


8.12         Notices


 


Whenever, by the terms of
this Lease, notice shall or may be given either to Landlord or to Tenant, such
notice shall be in writing (and no inference shall be drawn from the fact that
certain provisions of this Lease require “written notice” where others simply
require “notice”) and shall be sent by overnight commercial courier (which
obtains a signature upon delivery) or by registered or certified mail postage
or delivery charges prepaid, as the case may be:


 


If intended for Landlord,
addressed to Landlord at the address set forth in Article I of this Lease
(or to such other address or addresses as may from time to time hereafter be
designated by Landlord by like notice) with a copy to Landlord, Attention:
General Counsel.


 


If intended for Tenant,
addressed to Tenant at the address set forth in Article I of 


 


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this Lease except that
from and after the Commencement Date the address of Tenant shall be the
Premises with a copy to Goulston & Storrs, 400 Atlantic Avenue,
Boston, Massachusetts 02110, Attention: 
Michael J. Moran (or to such other address or addresses as may from time
to time hereafter be designated by Tenant by like notice).


 


Except as otherwise
provided herein, all such notices shall be effective when received; provided,
that (i) if receipt is refused, notice shall be effective upon the first
occasion that such receipt is refused, (ii) if the notice is unable to be
delivered due to a change of address of which no notice was given, notice shall
be effective upon the date such delivery was attempted, (iii) if the
notice address is a post office box number, notice shall be effective the day
after such notice is sent as provided hereinabove or (iv) if the notice is
to a foreign address, notice shall be effective two (2) days after such
notice is sent as provided hereinabove.


 


Where provision is made
for the attention of an individual or department, the notice shall be effective
only if the wrapper in which such notice is sent is addressed to the attention
of such individual or department.


 


Any notice given by an
attorney on behalf of Landlord or by Landlord’s managing agent shall be
considered as given by Landlord and shall be fully effective.  Any notice given by an attorney on behalf of
Tenant shall be considered as given by Tenant and shall be fully effective.


 


Time is of the essence
with respect to any and all notices and periods for giving notice or taking any
action thereto under this Lease.


 


8.13         When Lease Becomes Binding


 


Employees or agents of
Landlord have no authority to make or agree to make a lease or any other
agreement or undertaking in connection herewith. The submission of this
document for examination and negotiation does not constitute an offer to lease,
or a reservation of, or option for, the Premises, and this document shall
become effective and binding only upon the execution and delivery hereof by
both Landlord and Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and may be
modified or altered only by written agreement between Landlord and Tenant, and
no act or omission of any employee or agent of Landlord or Tenant shall alter,
change or modify any of the provisions hereof.


 


8.14         Section Headings


 


The titles of the
Articles throughout this Lease are for convenience and reference only, and the
words contained therein shall in no way be held to explain, modify, amplify or
aid in the interpretation, construction or meaning of the provisions of this
Lease.  Wherever in this Lease it is
stated that any approval, consent, or the like shall not be unreasonably
withheld, such statement shall be read as meaning that the same shall not be unreasonably



 


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withheld, delayed, or
conditioned.


 


8.15         Rights of Mortgagee


 


This Lease shall be
subject and subordinate to any mortgage now or hereafter on the Site or the
Building, or both, and to each advance made or hereafter to be made under any
mortgage, and to all renewals, modifications, consolidations, replacements and
extensions thereof and all substitutions therefor provided that the holder of
such mortgage agrees to recognize the rights of Tenant under this Lease
(including, without limitation, the right to use and occupy the Premises) upon
the payment of rent and other charges payable by Tenant under this Lease and
the performance by Tenant of Tenant’s obligations hereunder. In confirmation of
such subordination and recognition, Tenant shall execute and deliver promptly
such commercially reasonable instruments of subordination and recognition as
such mortgagee may reasonably request subject to receipt of such instruments of
recognition from such mortgagee as Tenant may reasonably request (Tenant hereby
agreeing to pay any legal or other fees charged by the mortgagee in connection
with providing the same).  In the event
that any mortgagee or its respective successor in title shall succeed to the
interest of Landlord, then, this Lease shall nevertheless continue in full
force and effect and Tenant shall and does hereby agree to attorn to such
mortgagee or successor and to recognize such mortgagee or successor as its
landlord. If any holder of a mortgage which includes the Premises, executed and
recorded prior to the date of this Lease, shall so elect, this Lease and the
rights of Tenant hereunder, shall be superior in right to the rights of such
holder, with the same force and effect as if this Lease had been executed,
delivered and recorded, or a statutory notice hereof recorded, prior to the
execution, delivery and recording of any such mortgage. The election of any
such holder shall become effective upon either notice from such holder to
Tenant in the same fashion as notices from Landlord to Tenant are to be given
hereunder or by the recording in the appropriate registry or recorder’s office
of an instrument in which such holder subordinates its rights under such
mortgage to this Lease.


 


Landlord represents and
warrants that there is no mortgage or ground lease encumbering the Building or
the Site as of the date of this Lease.


 


 8.16                        Status
Reports and Financial Statements


 


(A)          Recognizing that either
party may find it necessary to establish to third parties, such as accountants,
banks, potential or existing mortgagees, potential purchasers or the like, the
then current status of performance hereunder, each party, on the request of the
other made from time to time, will promptly furnish to the other, or any
existing or potential holder of any mortgage encumbering the Premises, the
Building, the Site and/or the Complex or any potential purchaser of the
Premises, the Building, the Site and/or the Complex, (each an “Interested Party”),
a statement of the status of any matter pertaining to this Lease, including,
without limitation, acknowledgments that (or the extent to which) each party is
in compliance with its obligations under the terms of this Lease.  Any such status statement delivered by Tenant
pursuant to this Section 8.16(A) may be relied upon by any Interested
Party.


 


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(B)           For so long as Tenant
is a publicly-traded entity and timely files its financial statements with the
Securities And Exchange Commission under and with Forms 10Q and 10K, Tenant
shall have no obligation to deliver financial statements to Landlord.  In the event that Tenant ceases to be a
publicly-traded entity for reporting purposes, Tenant shall deliver to
Landlord, or any Interested Party designated by Landlord, audited financial
statements of Tenant, if Tenant has its financials audited or financial statements
certified by the Chief Financial Officer of Tenant (in any case such financial
statements shall be prepared in accordance with GAAP consistently applied)
including, but not limited to, a balance sheet, income statement and cash flow
statements which financial statements shall include sufficient detail and
information for Landlord to assess Tenant’s financial condition.  Such financial statements may, as requested
by Landlord, include financial statements for the past three (3) years (if
available), and any such status statement and/or financial statement delivered
by Tenant pursuant to this Section 8.16(B) may be relied upon by any
Interested Party.  Landlord shall keep
any non-public information provided by Tenant pursuant to this Section 8.16(B) confidential,
and shall not disclose the same other than (i) on a need to know basis to
Landlord’s officers, employees and consultants (or to any of the Interested
Parties), all of whom shall be instructed to keep such information
confidential, or (ii) to the extent required by applicable law or by any
administrative, governmental or judicial proceeding.


 


 8.17        Self-Help


 


(A)          If Tenant shall at any
time default in the performance of any obligation under this Lease after notice
to Tenant thereof and expiration of the applicable cure period, Landlord shall
have the right, but shall not be obligated, to enter upon the Premises and to
perform such obligation notwithstanding the fact that no specific provision for
such substituted performance by Landlord is made in this Lease with respect to
such default. In performing such obligation, Landlord may make any payment of
money or perform any other act. All reasonable, out of pocket sums so paid by
Landlord (together with interest at the rate of two and one-half percentage
points over the then prevailing prime rate in Boston as set by Bank of America,
N.A., or its successor (but in no event greater than the maximum rate permitted
by applicable law) and all costs and expenses in connection with the
performance of any such act by Landlord, shall be deemed to be Additional Rent
under this Lease and shall be payable to Landlord immediately on demand.
Landlord may exercise the foregoing rights without waiving any other of its
rights or releasing Tenant from any of its obligations under this Lease.


 


(B)           In the event (a) Landlord
fails to make such repairs as are required of Landlord under this Lease or to
perform any other obligations of Landlord hereunder within thirty (30) days (or
such shorter period as may be appropriate in an emergency) after written notice
from Tenant to Landlord and to the holder of any mortgage on the Property of
which Tenant has been given written notice by Landlord specifying the nature of
such repairs or other obligations or (b) if such repairs or other
obligations are of the type which cannot be made or performed within such
thirty (30) days after such written notice from 


 


69

















 


Tenant, then if Landlord
fails to commence making such repairs or to perform such obligations within
such thirty (30) day  period and
thereafter prosecute such repairs or other obligations to completion, then
thereafter at any time prior to Landlord commencing such repairs or other obligations,
Tenant may, but is not obligated to, make such repairs or perform such other
obligations and may make a demand on Landlord for payment of the reasonable out
of pocket cost thereof actually incurred by Tenant and Landlord shall pay the
reasonable out of pocket cost thereof; provided, however, if within thirty (30)
days after receipt of such demand, Landlord shall not have paid same, then
Tenant shall have the right either (i) to bring suit in a court of
competent jurisdiction in the Commonwealth of Massachusetts or (ii) to
arbitrate such claim pursuant to the provisions of subsection (C) below,
in either case seeking payment of the sum so claimed in Tenant’s demand.  However, in no event shall Tenant have the
right to offset against Annual Fixed Rent, or any Additional Rent or other
charges payable under this Lease. 
Further, Landlord’s failure to pay Tenant’s demand shall not be a
default of Landlord or give Tenant the right to terminate this Lease, Tenant’s
only right being to bring suit or arbitrate as aforesaid.  If either Tenant or Landlord elects to
arbitrate such claim, then as to that claim the electing party hereby waives
the right to bring suit on such claim other than to enforce the result of such
arbitration.


 


(C)           Any disputes relating
to this Section 8.17 may be submitted to arbitration in accordance with
the provisions of Massachusetts law, as from time to time amended.  Arbitration proceedings, including the
selection of an arbitrator, shall be conducted pursuant to the rules,
regulations and procedures from time to time in effect as promulgated by the
American Arbitration Association.  Prior
written notice of application by either party for arbitration shall be given to
the other at least ten (10) days before submission of the application to
the said Association’s office in the City of Boston.  The arbitrator shall hear the parties and
their evidence.  The decision of the
arbitrator shall be binding and conclusive, and judgment upon the award or
decision of the arbitrator may be entered in any court of law with jurisdiction
over the Building, and the parties consent to the jurisdiction of such court
and further agree that any process or notice of motion or other application to
the court or a judge thereof may be served outside Massachusetts by registered
mail or by personal service, provided a reasonable time for appearance is
allowed.  The costs and expenses of each
arbitration hereunder and their apportionment between the parties shall be
determined by the arbitrator in his award or decision.  No arbitrable dispute shall be deemed to have
arisen under this Lease prior to (i) the expiration of the period of
twenty (20) days after the date of the giving of written notice by the party
asserting the existence of the dispute together with a description thereof
sufficient for an understanding thereof; and (ii) where a Tenant payment
is in issue, the amount billed by Landlord having been paid by Tenant.


 


8.18         Holding Over


 


Any holding over by
Tenant after the expiration of the term of this Lease shall be treated as a
tenancy at sufferance and shall be on the terms and conditions as set forth in
this 


 


70

















 


Lease, as far as
applicable except that Tenant shall pay as a use and occupancy charge an amount
equal to the greater of (x) 200% of the Annual Fixed Rent and Additional
Rent calculated (on a daily basis) at the highest rate payable under the terms
of this Lease, or (y) the fair market rental value of the Premises, in
each case for the period measured from the day on which Tenant’s hold-over
commences and terminating on the day on which Tenant vacates the Premises. In
addition, if Tenant holds over in the Premises for a period exceeding thirty
(30) days after the expiration of the Term of the Lease, Tenant shall save
Landlord, its agents and employees harmless and will exonerate, defend and
indemnify Landlord, its agents and employees from and against any and all
damages which Landlord may suffer on account of Tenant’s hold-over in the
Premises after the expiration or prior termination of the term of this Lease.
Nothing in the foregoing nor any other term or provision of this Lease shall be
deemed to permit Tenant to retain possession of the Premises or hold over in
the Premises after the expiration or earlier termination of the Lease Term. All
property which remains in the Building or the Premises after the expiration or
termination of this Lease shall be conclusively deemed to be abandoned and may
either be retained by Landlord as its property or sold or otherwise disposed of
in such manner as Landlord may see fit. If any part thereof shall be sold, then
Landlord may receive the proceeds of such sale and apply the same, at its
option against the expenses of the sale, the cost of moving and storage, any
arrears of rent or other charges payable hereunder by Tenant to Landlord and
any damages to which Landlord may be entitled under this Lease and at law and
in equity.


 


8.19         Extension Options


 


(A)        On the conditions (which
conditions Landlord may waive by written notice to Tenant) that both at the time
of exercise of the applicable option to extend and as of the commencement of
the applicable Extended Term in question (i) there exists no Event of
Default (defined in Section 7.1) and there have been no more than two (2) default
occurrences during the Term, (ii) this Lease is still in full force and
effect, and (iii) Tenant has neither assigned this Lease nor sublet more
than one (1) specific floor in the Building (except for an assignment or
any subletting permitted without Landlord’s consent under Section 5.6.1
hereof and any subletting of a specific and complete floor for a term that
expires at least twelve (12) months before the expiration of the Original
Term), Tenant shall have the right to extend the Term hereof upon all the same
terms, conditions, covenants and agreements herein contained (except for the
Annual Fixed Rent which shall be adjusted during the option periods as
hereinbelow set forth) for two (2) successive period(s) of five (5) years
as hereinafter set forth. Each option period is sometimes herein referred to as
an “Extended Term.” Notwithstanding any implication to the contrary Landlord
has no obligation to make any additional payment to Tenant in respect of any
construction allowance or the like or to perform any work to the Premises as a
result of the exercise by Tenant of any such option.


 


(B)         If
Tenant desires to exercise the then applicable option to extend the Lease Term
(if any shall remain), then Tenant shall give written notice (the “Exercise
Notice”) to Landlord, not later than nine (9) months prior to the
expiration of the Term of this Lease 


 


71

















 


as it may have been previously extended exercising the then applicable
and available option to extend (the “Outside Exercise Date”), which election
shall be irrevocable (the “Exercise Notice”). Within ten (10) business
days after Landlord’s receipt of the Exercise Notice, or if Tenant delivers an
Exercise Notice earlier than the Outside Exercise Date, then, on or before the
date that is nine (9) months before the expiration of the Original Term,
Landlord shall provide Landlord’s quotation to Tenant of a proposed annual rent
for the Extended Term for the Premises (“Landlord’s Rent Quotation”). If at the
expiration of forty-five  (45) days after
the date when Landlord provides such quotation to Tenant (the “Negotiation
Period”), Landlord and Tenant have not reached agreement on a determination of
an annual rental for the applicable Extended Term and executed a written
instrument confirming the Annual Fixed Rent for the applicable Extended Term
pursuant to such agreement, then Tenant shall have the right, for thirty (30)
days following the expiration of the Negotiation Period, to make a request to
Landlord for a broker determination (the “Broker Determination”) of the
Prevailing Market Rent (as defined in Exhibit H) for the applicable
Extended Term for the Premises, which Broker Determination shall be made in the
manner set forth in Exhibit H. If Tenant timely shall have requested the
Broker Determination, then the Annual Fixed Rent for the applicable Extended
Term shall be ninety five percent (95%) of the Prevailing Market Rent as
determined by the Broker Determination. 
If Tenant does not timely request the Broker Determination, then the
Annual Fixed Rent during the applicable Extended Term shall be equal to
Landlord’s Rent Quotation.


 


(C)         Upon
the giving of the Exercise Notice by Tenant to Landlord exercising Tenant’s
option to extend the Lease Term in accordance with the provisions of subsection
(B) above, then this Lease and the Lease Term hereof shall automatically
be deemed extended, for the applicable Extended Term, without the necessity for
the execution of any additional documents, except that Landlord and Tenant
agree to enter into an instrument in writing setting forth the Annual Fixed
Rent for the applicable Extended Term as determined in the relevant manner set
forth in this Section 8.20; and in such event all references herein to the
Lease Term or the Term of this Lease shall be construed as referring to the
Original Term, as so extended, unless the context clearly otherwise requires,
and except that there shall be no further option to extend the Lease Term.


 


(D)        Notwithstanding anything
herein contained to the contrary, in no event shall Tenant have the right to
exercise more than one extension option at a time and, further, Tenant shall
not have the right to exercise its second extension option unless it has duly
exercised its first extension option and in no event shall the Lease Term
hereof be extended for more than ten (10) years after the expiration of the
Original Term hereof.


 


8.20         Security Deposit


 


(A)        On
or before the date that is seven (7) business days after the execution and
delivery of this Lease, Tenant shall pay to Landlord a security deposit in the
amount of Four Hundred Fifty Nine Thousand Nine Hundred Seventy Five Dollars
($459,975.00) and Landlord shall hold the same, throughout the Term of this
Lease (including the 


 


72

















 


Extended Terms, if exercised), unless reduced or sooner returned to
Tenant as provided in this Section, as security for the performance by Tenant
of all obligations on the part of Tenant to be performed under this Lease (the “Security
Deposit”).  Notwithstanding any other
provision of this Lease to the contrary, in no event shall Tenant or its
contractors perform any work in the Building until Tenant has delivered the
Security Deposit to Landlord.


 


(B)         The
Security Deposit shall be in the form of an irrevocable, unconditional,
negotiable letter of credit (herein called a “Letter of Credit”).  The Letter of Credit shall (i) be issued
by and drawn on Bank of America, N.A. or another bank reasonably approved by
Landlord and at a minimum having a corporate credit rating from Standard and
Poor’s Professional Rating Service of BBB- or a comparable minimum rating from
Moody’s Professional Rating Service, (ii) be substantially in the form
attached hereto as Exhibit E, (iii) permit one or more draws
thereunder to be made accompanied only by certification by Landlord or Landlord’s
managing agent that pursuant to the terms of this Lease, Landlord is entitled
to draw upon such Letter of Credit, (iv) permit transfers at any time
without charge to Landlord, (v) permit presentment in the continental
United States, and (vi) provide that any notice to Landlord be sent to the
notice address provided for Landlord in this Lease.  Time is of the essence with respect to all
time periods for Tenant’s action under this Section 8.21. The failure of
Tenant to provide any financial statements, documentation or any Letter of
Credit as and when required under this Lease (time being of the essence) shall
be a default of Tenant under this Lease, subject, however, to the notice and
cure provisions of Article VII hereof.


 


If the credit rating for
the issuer of any Letter of Credit falls below the standard set forth in (i) above
or if the financial condition of such issuer changes in any other material
adverse way, Landlord shall have the right to require that Tenant provide a
substitute letter of credit that complies in all respects with the requirements
of this Section, and Tenant’s failure to provide the same within thirty (30)
days following Landlord’s written demand therefor shall entitle Landlord to
immediately draw upon the Letter of Credit. The Letter of Credit shall be for a
term of two (2) years (or for one (1) year if the issuer thereof
regularly and customarily only issues letters of credit for a maximum term of
one (1) year) and shall in either case provide for automatic renewals
through the date which is ninety (90) days subsequent to the scheduled
expiration of this Lease (as the same may be extended) or if the issuer will
not grant automatic renewals, the applicable Letter of Credit shall be renewed
by Tenant each year and each such renewal shall be delivered to and received by
Landlord not later than thirty (30) days before the expiration of the then
current applicable Letter of Credit (herein called a “Renewal Presentation Date”).
In the event of a failure to so deliver any such renewal Letter of Credit on or
before the applicable Renewal Presentation Date, Landlord shall be entitled to
present the then existing applicable Letter of Credit for payment and to
receive the proceeds thereof, which proceeds shall be held as Tenant’s security
deposit, subject to the terms of this Section 8.21.


 


Any failure or refusal of
the issuer to honor the Letter of Credit shall be at Tenant’s sole


 


73

















 


risk and shall not
relieve Tenant of its obligations hereunder with regard to the security
deposit. Upon the occurrence of any Event of Default, Landlord shall have the
right from time to time without prejudice to any other remedy Landlord may have
on account thereof, to draw on all or any portion of such deposit held as a
Letter of Credit and to apply the proceeds of such Letter of Credit or any cash
held as such deposit, or any part thereof, to Landlord’s damages arising from
such Event of Default on the part of Tenant under the terms of this Lease. If
Landlord so applies all or any portion of such deposit, Tenant shall within
seven (7) days after notice from Landlord deposit cash with Landlord in an
amount sufficient to restore such deposit to the full amount stated in this Section 8.21.
While Landlord holds any cash deposit Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same with
Landlord’s other funds. Neither the holder of a mortgage nor the landlord in a
ground lease on property which includes the Premises shall ever be responsible
to Tenant for the return or application of any such deposit, whether or not it
succeeds to the position of Landlord hereunder, unless such deposit shall have
been received in hand by such holder or ground landlord.


 


(C)(i)       For purposes hereof, the “Applicable
Financial Test” shall mean Tenant shall have generated “Gross Revenues”
(hereinafter defined) of not less than One Hundred Fifty Million Dollars
($150,000,000.00).  “Gross Revenues”
shall mean and be as defined under GAAP.


 


Tenant shall have “Net
Income” (hereinafter defined) of not less than Fifteen Million Dollars
($15,000,000.00). “Net Income” shall mean and be as defined under GAAP; and


 


(ii)   For purposes hereof, “Tenant’s
Submitted Financial Documentation” shall mean financial statements (including,
but not limited to, income and expense statements and a balance sheet) for
Tenant’s most recently completed fiscal year certified by the Chief Financial
Officer of Tenant and such other financial information and documentation as
Landlord may reasonably request.


 


(iii)  Provided
and on the condition that, for a consecutive twelve (12) month period beginning
not earlier than the first day of the 37th full calendar month of
the Lease Term, Tenant submits to Landlord Tenant’s Submitted Financial
Documentation for such consecutive 12 month period demonstrating, in Landlord’s
reasonable judgment, Tenant’s satisfaction of all of the “Applicable Financial
Tests” (defined above) during and for said consecutive 12 month period, then
the amount of the Letter of Credit shall be reduced on a one time only basis to
$306,650.00 effective on the sixtieth (60th) day following
satisfaction of the Applicable Financial. 
If Tenant shall not satisfy the Applicable Financial for the reduction,
then there shall be no reduction in the Letter of Credit.


 


(iv)  There
shall be no further reduction in the Letter of Credit other than the one (1) time
reduction set forth in item (iii) above.


 


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(D)          It shall
be an express condition to the return of the Letter of Credit and any reduction
in the Letter of Credit that there has not been an Event of Default under Lease
as herein amended beyond applicable notice and cure periods.


 


(E)           Unless an Event of
Default then exists or Landlord has given Tenant notice of default under Section 7.1
hereof and Tenant has yet to cure the failure that is the subject of such
notice, Landlord shall return the deposit, or so much thereof as shall not have
theretofore been applied (reduced, or previously returned) in accordance with
the terms of this Section 8.21 to Tenant on the expiration or earlier
termination of the term of the Lease (as the same may have been extended) and
surrender possession of the Premises by Tenant to Landlord in the condition
required in the Lease (as herein amended) at such time.


 


8.21         Late Payment


 


If Landlord shall not
have received any payment or installment of Annual Fixed Rent or Additional
Rent (the “Outstanding Amount”) on or before the date on which the same first
becomes payable under this Lease (the “Due Date”), the amount of such payment
or installment shall incur a late charge equal to the sum of: (a) three
percent (3%) of the Outstanding Amount for administration and bookkeeping costs
associated with the last payment and (b) interest on the Outstanding
Amount from the Due Date through and including the date such payment or
installment is received by Landlord, at a rate equal to the lesser of (i) the
rate announced by Bank of America, N.A., (or its successor) from time to time
as its prime or base rate (or if such rate is no longer available, a comparable
rate reasonably selected by Landlord), plus two percent (2%), or (ii) the
maximum applicable legal rate, if any. Such interest shall be deemed Additional
Rent and shall be paid by Tenant to Landlord upon demand.


 


Landlord agrees to waive
the late charge due hereunder for the first late payment by Tenant under this
Lease, provided that Landlord receives such payment from Tenant within five (5) business
days after notice to Tenant of such nonpayment.


 


8.22         Tenant’s Payments


 


Each and every payment
and expenditure, other than Annual Fixed Rent, shall be deemed to be Additional
Rent or additional rent hereunder, whether or not the provisions requiring
payment of such amounts specifically so state, and shall be payable, unless
otherwise provided in this Lease, within thirty (30) days after written demand
by Landlord, and in the case of the non-payment of any such amount, Landlord
shall have, in addition to all of its other rights and remedies, all the rights
and remedies available to Landlord hereunder or by law in the case of
non-payment of Annual Fixed Rent. Unless expressly otherwise provided in this
Lease, the performance and observance by Tenant of all the terms, covenants and
conditions of this Lease to be performed and observed by Tenant shall be at
Tenant’s sole cost and expense. If Tenant has not objected to any statement of
Additional Rent which is rendered by Landlord to Tenant within ninety (90) days
after Landlord has rendered the same to Tenant, then the same shall be deemed
to be 


 


75

















 


a final account between
Landlord and Tenant not subject to any further dispute by either party. In the
event that Tenant shall seek Landlord’s consent or approval under this Lease,
then Tenant shall reimburse Landlord, upon demand, as Additional Rent, for all
reasonable costs and expenses, including legal and architectural costs and
expenses, incurred by Landlord in processing such request, whether or not such
consent or approval shall be given.


 


8.23         Waiver of Trial by Jury


 


(A)        To induce Landlord to
enter into this Lease, Tenant hereby waives any right to trial by jury in any
action, proceeding or counterclaim brought by either Landlord or Tenant on any
matters whatsoever arising out of or any way connected with this Lease, the
relationship of the Landlord and the Tenant, the Tenant’s use or occupancy of
the Premises and/or any claim of injury or damage, including but not limited
to, any summary process eviction action.


 


(B)         To induce Tenant to enter
into this Lease, Landlord hereby waives any right to trial by jury in any
action, proceeding or counterclaim brought by either Landlord or Tenant on any
matters whatsoever arising out of or any way connected with this Lease, the
relationship of the Landlord and the Tenant, the Tenant’s use or occupancy of
the Premises and/or any claim of injury or damage, including but not limited
to, any summary process eviction action.


 


8.24         Tenant’s Signage


 


Tenant shall have the
right to (i) install a sign in the landscaped area where the road forks to
the Building the exact location to be approved by Landlord, which approval shall
not be unreasonable withheld (the “Building Entrance Sign”) which sign
(inclusive of any monument or ballasts) shall not exceed fifteen (15) square
feet in size and (ii) erect an exterior sign on the Building (the “Building
Signage”) containing Tenant’s name in a location with visibility from Route 2
as first approved by Landlord provided that (a) Tenant complies with all
applicable “Governmental Requirements” and obtains all permits, approvals,
consents and the like required by the Governmental Requirements, (b)  the
size, graphics, design, proportions, lighting component, color and all other
characteristics and operating criteria of such signage shall be subject to the
prior approval of Landlord, which approval shall not be unreasonably withheld,
and shall be further subject to the requirements of the Town of Lexington
Zoning By-Law and any other applicable laws, and (c) Tenant shall be
solely responsible for all costs and expenses regarding the Building Signage
and the Building Entrance Sign including, without limitation, fabrication
costs, design costs, installation costs and all application, permit and
governmental approval costs.  Landlord
shall, at its expense, install the AMAG Pharmaceuticals name on the existing
free standing sign located at the Hayden Avenue entrance to the Site (the “Hayden
Avenue Entrance Sign”) in a design comparable to the existing graphics on such
sign.  Tenant acknowledges that rights to
the Hayden Avenue Entrance Sign are non-exclusive. Landlord agrees to cooperate
with Tenant regarding Tenant’s obtaining approvals of the Building Entrance
Sign and the Building Signage 


 


76

















 


including without
limitation, joining in any applications for any permits, approvals or
certificates from any governmental authorities required to be obtained by
Tenant, and shall sign such applications reasonably promptly after request by
Tenant provided that (i) the provisions of the Applicable Legal
Requirement shall require that Landlord join in such application, and (ii) Landlord
shall not be required to expend any monies, assume any costs or expenses or
undertake any liability.  Tenant shall,
at its sole cost and expense, be obligated to maintain, operate, repair and
replace the Building Signage and for any utilities’ costs to operate the
Building Signage. In no event shall any Building Signage identify more than one
(1) occupant of the Building and in no event shall any Building Entrance
Sign or any Hayden Avenue Entrance Sign identify more than two (2) occupants of
the Building. Upon the expiration or earlier termination of the Lease Term,
Tenant, at its expense shall remove the Building Signage and restore the
affected area of the Building to the condition immediately prior to such
installation.


 


8.25         Governing Law


 


This Lease shall be
governed exclusively by the provisions hereof and by the law of the
Commonwealth of Massachusetts, as the same may from time to time exist.


 


8.26         Rooftop Rights


 


Tenant shall be
permitted, at its sole cost and expense, to install telecommunications
equipment (the “Telecommunications Equipment”) on the roof of the Building, in
a location to be determined by Landlord in its reasonable discretion.  Nothing contained herein shall limit Tenant’s
right to install other equipment (such as, but not limited to, rooftop HVAC
units) on the roof of the Building, and Landlord agrees that Tenant shall have
such right subject to the provisions of Section 5.14 hereof.  The exact specifications of the
Telecommunications Equipment (including, without limitation, the size, height,
weight operating criteria and visibility), and the method of installing the
Telecommunications Equipment on the roof, shall be subject to Landlord’s prior
written approval, which shall not be unreasonably withheld or delayed. Tenant
shall use Landlord’s roof contractor for the installation of the
Telecommunications Equipment.


 


Tenant’s use of the
Telecommunications Equipment shall be upon all of the conditions of the Lease,
except as modified below:


 


(a)                                  It
is understood and agreed that Tenant shall be responsible, at its sole cost and
expense, for installing all necessary connections (the “Telecommunications
Connections”) between the Telecommunications Equipment and the Premises. In
addition to complying with the applicable construction and alterations
provisions of this Lease, Tenant shall not install or operate the
Telecommunications Connections in any portion of the Building until (x) Tenant
shall have obtained Landlord’s prior written approval, which approval will not
be unreasonably withheld or delayed, of Tenant’s plans and specifications for
the placement and installation of the Telecommunications Connections, and (y) Tenant
shall have obtained and delivered to Landlord copies of all required
governmental and quasi-governmental


 


77

















 


permits, special
permits, approvals, licenses and authorizations necessary for the lawful
installation, operation, use and maintenance of the Telecommunications
Connections and Telecommunications Equipment.


 


(b)                                 Tenant
shall have no obligation to pay Annual Fixed Rent in respect of the
Telecommunications Equipment or the Telecommunications Connections provided
that the same are used solely to provide service to Tenant’s business
operations in the Premises (as opposed to being utilized by the
telecommunications carrier to provide service to other tenants of the
Building).


 


(c)                                  Landlord
shall have no liability to Tenant for the installation and subsequent operation
of the Telecommunications Equipment or the Telecommunications Connections.


 


(d)                                 Landlord
shall have no obligation to provide any services to the Telecommunications
Equipment or to the Telecommunications Connections. Tenant shall, at its sole
cost and expense and otherwise in accordance with the provisions of this Section 8.27,
arrange for all utility services required for the operation of the
Telecommunications Equipment and the Telecommunications Connections.


 


(e)                                  Tenant
shall, at its sole cost and expense, be solely responsible for all maintenance
and repair to the Telecommunications Equipment and the Telecommunications
Connections.


 


(f)                                    Tenant
shall have no right to make any changes, alterations, signs, or other
improvements to the Telecommunications Equipment or the Telecommunications
Connections without Landlord’s prior written consent, which consent shall not
be unreasonably withheld or delayed.


 


(g)                                 Tenant
shall be responsible for the cost of repairing any damage to the Building or
the Property (including, but not limited to, the roof) caused (a) by
Tenant’s installation, use, operation, maintenance, repair and/or replacement
of the Telecommunications Equipment and the Telecommunications Connections or (b) any
entry in or onto the Building or Roof.


 


(h)                                 Except
for assignees of this Lease or subtenants of all or a portion of the Premises,
no other person, firm or entity (including, without limitation, other tenants,
licensees or occupants of the Building) shall have the right to connect to the
Telecommunications Equipment other than Tenant.


 


(i)                                     Tenant’s
use of the Telecommunications Equipment and the Telecommunications Connections
shall be at the sole risk of Tenant, and Landlord shall have no liability to
Tenant in the event that the Telecommunications Equipment and the Telecommunications
Connections are damaged for any reason, except to the


 


78
















 


extent arising
from the gross negligence or willful misconduct of Landlord or its agents,
employees or contractors.


 


(j)                                   Tenant
shall comply with all applicable laws, ordinances and regulations in Tenant’s
installation, maintenance, repair, replacement, operation and use of the
Telecommunications Equipment and the Telecommunications Connections.


 


(k)                                Landlord
shall have the right, upon no less than ninety (90) days’ notice to Tenant and
at Landlord’s sole cost and expense, to relocate the Telecommunications
Equipment and the Telecommunications Connections to another location on the
roof of the Building. Landlord and Tenant shall cooperate with each other in
good faith to schedule such relocation work on nights and weekends so as to
minimize interference with Tenant’s business operations.


 


(l)                                   In
addition to the indemnification provisions set forth in this Lease which shall
be applicable to the Telecommunications Equipment and the Telecommunications
Connections, Tenant shall, to the maximum extent permitted by law, indemnify,
defend, and hold Landlord, its agents, contractors and employees harmless from
any and all claims, losses, demands, actions or causes of actions suffered by
any person, firm, corporation, or other entity arising from Tenant’s use of the
Telecommunications Equipment and the Telecommunications Connections.


 


(m)                             Landlord
shall have the right to designate or identify the Telecommunications Equipment
with or by a lease or license number (or other marking) and to place such
number (or marking) on or near such Telecommunications Equipment.


 


(n)                                 It
is expressly understood and agreed that the Telecommunications Equipment shall
remain the property of Tenant upon the expiration or earlier termination of
this Lease and that Tenant shall have the right to remove the same.
Furthermore, Tenant shall be obligated to remove the same and to repair any
damage to the Site and Building (including, but not limited to, the roof)
caused by the installation or removal of the Telecommunications Equipment or
caused by any entry in or onto the Building or Roof.


 


(o)                               Tenant’s
rights to use the roof for its Telecommunications Equipment and
Telecommunications Connections are not exclusive and Landlord shall have the
right to or license others to install and operate Telecommunications Equipment
on areas of the roof not designated for Tenant’s use, provided that any such
other users shall agree not to interfere with the operation of Tenant’s
Telecommunications Equipment.


 


(p)                               Tenant
shall provide reasonable advance notice to Landlord of Tenant’s desire to
access the roof and Landlord shall have the right to have an employee or
representative of Landlord or Landlord’s property manager present.  Except in the event of emergency, all such
access shall only be from Monday through Friday 


 


79

















 


(holidays
excluded) during normal business hours. 
Should Landlord, in its discretion, grant a request by Tenant to access
the roof at other than during the aforesaid times, Landlord (or Landlord’s
managing agent) shall have the right to impose reasonable charges for the time
of its personnel.


 


80

















 


EXECUTED as a sealed
instrument in two or more counterparts each of which shall be deemed to be an original.


 


	
    WITNESS:

  	
   

  	
    LANDLORD:

  
	
   

  	
   

  	
   

  
	
    /s/ Stacey
  Baker

  	
   

  	
    /s/ David
  C. Provost

  
	
   

  	
   

  	
    David C.
  Provost for the Trustees of 92 

  
	
   

  	
   

  	
    Hayden
  Trust, pursuant to written 

  
	
   

  	
   

  	
    delegation,
  but not individually

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    TENANT:

  
	
   

  	
   

  	
   

  
	
    ATTEST:

  	
   

  	
    AMAG Pharmaceuticals, Inc.

  
	
   

  	
   

  	
   

  
	
    By:

  	
    /s/ Joseph
  L. Farmer

  	
   

  	
    By:

  	
    /s/ Brian
  J.G. Pereira

  
	
    Name:

  	
    Joseph L.
  Farmer

  	
   

  	
    Name:

  	
    Brian J. G.
  Pereira

  
	
    Title:

  	
    Secretary

  	
   

  	
    Title:

  	
    President

  
	
   

  	
   

  	
   

  	
    Hereto duly
  authorized

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    By:

  	
    /s/ David
  Arkowitz

  
	
   

  	
   

  	
    Name:

  	
    David
  Arkowitz

  
	
   

  	
   

  	
    Title:

  	
    Treasurer

  
	
   

  	
   

  	
   

  	
    Hereto duly
  authorized

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CORPORATE SEAL

  



 


81

















 


EXHIBIT A


 


DESCRIPTION OF
SITE


 


Those certain parcels of
land (together with the buildings and improvements thereon) situated on the
northeasterly side of Route 2 so-called, in Lexington, Middlesex County,
Massachusetts being shown as Parcel 1 and Parcel 2 on a plan entitled “Plan of
Land in Lexington, Mass.,” dated March 19, 1964, by Albert A. Miller and
Wilbur C. Nylander, Civil Engineers & Surveyors, recorded with
Middlesex South District Deeds, Book 10511, Page 298, bounded and
described as follows:


 


	
   

  	
  SOUTHWESTERLY

  	
  by Route 2 as shown on
  said plan by two lines measuring respectively 80.34 feet and 970.47 feet;

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERLY

  	
  by the 1974 State
  Highway Layout being a relocation of Spring Street, by two lines measuring
  respectively 159.76 feet and 54.99 feet;

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHERLY

  	
  on a curved line by the
  junction of said relocated Spring Street and an access road also part of the
  1964 State Highway Layout, all as shown on said plan, 57.08 feet;

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHEASTERLY

  	
  by said access road as
  shown on said plan by three lines measuring respectively 231.55 feet, 647.54
  feet and 7.13 feet;

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHEASTERLY

  	
  by the same by several
  lines measuring respectively

  
	
   

  	
  and EASTERLY

  	
  101.06 feet, 33.98
  feet, 19.62 feet, 57.07 feet and

  
	
   

  	
  17.46 feet.

  



 


Parcel 1 contains,
according to said plan, 45/100 acres, Parcel 2 contains 5-89/100 acres, and
both Parcels together contain according to said plan, 6.34 acres.


 


Said premises are subject
to easements, agreements and restrictions of record, if any, to the extent in
force and applicable.


 


For title see Deed
recorded with said registry of Deeds in Book 15217, page 429.


 


1

















 


THE FOLLOWING EXHIBITS TO
THE LEASE HAVE BEEN OMITTED IN ACCORDANCE WITH ITEM 601(B)(2) OF
REGULATION S-K:


 


	
  Exhibit A-1

  	
  —

  	
  Parking Plan

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  —

  	
  Tenant Plan and Working
  Drawing Requirements

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  —

  	
  Landlord’s Services

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  —

  	
  Floor Plans

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  —

  	
  List of Remaining
  Cafeteria and Data Room Equipment

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  —

  	
  Form of Lien
  Waivers

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  —

  	
  Form of Letter of
  Credit

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  —

  	
  Broker Determination

  
	
   

  	
   

  	
   

  
	
  Exhibit I

  	
  —

  	
  Form of Tenant’s
  Insurance Certificate(s)

  



 


AMAG Pharmaceuticals, Inc.
will furnish supplementally a copy of any omitted schedule or exhibit to the
Securities and Exchange Commission upon request, provided however that AMAG
Pharmaceuticals, Inc. may request confidential treatment pursuant to Rule 24b-2
of the Securities and Exchange Act of 1934, as amended for any schedule so
furnished.


 


1