Exhibit 10.27





Exhibit 10.27




FIRST AMENDMENT TO LEASE




ATLANTIC-PHILADELPHIA REALTY LLC, LANDLORD

AND

HEARTWARE, INC., TENANT




This First Amendment to Lease (this “First Amendment”), dated August 19, 2008, is entered
into by and between ATLANTIC-PHILADELPHIA REALTY LLC, c/o Atlantic Management Corporation, 205
Newbury Street, Framingham, MA 01701 (hereinafter referred to as the “Landlord”), and HeartWare,
Inc., (hereinafter referred to as “Tenant”).



W I T N E S S E T H:




WHEREAS, HeartWare, Inc., and Atlantic-Philadelphia Realty LLC executed a lease dated December
27, 2006 (the “Initial Lease”), of certain premises situated on the First Floor of the building
located at 205 Newbury Street, Framingham, Massachusetts (the “Premises”); and




WHEREAS, the Tenant desires to expand its premises; and



WHEREAS, the Tenant has agreed to relocate from its current premises to an alternative
location on the First Floor of the Building; and



WHEREAS, the parties have agreed to amend the defined terms and other sections of the Lease to
reflect certain agreements regarding the termination of Tenant’s current premises, additional rent
obligations, floor plan, square footage, tenant’s proportionate share, rent and term commencement
date, occupancy date, termination date, annual base rent, option notice, notices, and Landlord’s
work, all as further defined below; and



WHEREAS, the parties desire to amend the Lease to set forth the terms and conditions of their
agreements as set forth above and in certain other respects, all as hereinafter set forth;


 


 









 





NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:



1. Effective Date; Relocation Date. This First Amendment shall be effective upon the execution
of it by both Landlord and Tenant; its provisions related to the time on and after the Relocation
Date (defined below) shall be operative on and after the Relocation Date.



a. The “Relocation Date” is that date on which Tenant shall have vacated the existing Premises
in broom clean condition, reasonable wear and tear excepted, free of all Tenant’s personal
property; the Relocation Date shall be deemed to be no earlier than five (5) days after Landlord
gives Tenant notice (“Relocation Premises Completion Notice”) that the Relocation Premises (defined
below) are ready for Tenant’s occupancy.



b. If the Relocation Date would otherwise occur prior to January 1, 2009, then Tenant may elect
that it be deemed to be January 1, 2009; such election shall be automatic unless Tenant gives
Landlord notice that it does not so elect, such notice to be given to Landlord within five (5) days
after the Relocation Premises Completion Notice.



c. If the Relocation Date shall not have occurred prior to January 15, 2009, then Tenant shall
have no further obligation to pay rent on its existing premises, and shall begin paying rent on the
Relocation Premises on and after the actual Relocation Date.



2. Termination of Current Premises. Tenant shall be released from all terms and conditions
for its current premises under this Lease upon the occurrence of the following events:



a. Tenant pays all base rent obligations and all additional rent obligations then accrued, if
any, through the Relocation Date (subject to future adjustments pursuant to Section 4.5 of the
Lease); and



b. Tenant vacates the Premises on or before the Relocation Date in broom clean condition,
reasonable wear and tear excepted, free of all Tenant’s personal property.


 


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3. Amendment of Article 1 of the Lease. Section 1.1 of the Lease is hereby amended as
follows:



a. The subject “TENANT SPACE’ is hereby amended by deleting all references to “Exhibit B” and
“Suite #101”, and replacing with “Exhibit B-1” and “Suite #’s 103 and 104 (as shown on Exhibit B-1,
and which is sometimes referred to in this instrument as the ‘Relocation Premises’)”.




b. The subject “RENTABLE FLOOR AREA OF TENANT SPACE” is hereby amended by deleting all
reference to “3,530 rentable square feet” and replacing with “7,040 rentable square feet”.



c. The subject “TENANT’S PROPORTIONATE SHARE” is hereby amended by deleting all reference to
“6.2%” and replacing with “8.1%”



d. The subject “RENT AND TERM COMMENCEMENT DATE” is hereby amended by deleting in its entirety
and replacing with “Relocation Date.”;



e. The subject “OCCUPANCY DATE” is hereby amended by deleting it in its entirety and replacing
with “Relocation Date.”



f. The subject “TERM” is hereby amended by replacing “Four (4) Years” with “As to the
Relocation Premises, four (4) Years, beginning with the Relocation Date.”



g. The subject “TERMINATION DATE” is hereby amended by deleting it in its entirety and
replacing it with “four (4) years from the Relocation Date”.


 


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h. The subjects “ANNUAL FIXED RENT” and “MONTHLY FIXED RENT” are hereby amended by deleting
them in their entirety and substituting the following:




“ANNUAL BASE RENT:




For the period beginning the 1st month through the 12th
month of the lease term:
$22.00 per sq. ft. x 7,040 sq. ft. = $154,880.00 per year or $12,906.66 per
month;




For the period beginning the 13th month through the
24th month of the lease term:
$22.50 per sq. ft. x 7,040 sq. ft. = $158,400.00 per year or $13,200.00 per
month;




For the period beginning the 25th month through the
36th month of the lease term:
$23.00 per sq. ft. x 7,040 sq. ft. = $161,920.00 per year or $13,493.33 pr
month;




For the period beginning the 37th month through the
48th month of the lease term:
$23.50 per sq. ft. x 7,040 sq. ft. = $165,440.00 per year or $13,786.66 per
month.”



i. The subject “PERMITTED USES” is hereby amended by deleting it in its entirety and replacing
it with “First Class General Office Space, including an electronics laboratory substantially as
shown on the plans in Exhibit F-1.



j. The subject “PARKING” is hereby amended by deleting it in its entirety and replacing it
with “Tenant will receive 27 parking spaces, on a first come first serve basis”.



4. Further Amendment to Article 1 of the Lease. Section 1.2 — Exhibits is amended by deleting
“Exhibit B — Floor Plan Showing Tenant’s Space” and replacing with “Exhibit B-1 — Floor Plan Showing
Tenant’s Space”, attached hereto and made a part hereof; and deleting “Exhibit F — Landlord’s Work”
and replacing with “Exhibit F-1 — Landlord’s Work”, attached hereto and made a part hereof.


 


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5. Further Amendment to Article 1 of the Lease. Article 1 is hereby further amended by adding
the following new Section:




“1.4 Data Certificate




Parties agree and acknowledge to execute within thirty (30) days after the Relocation
Date, the attached ‘Exhibit G’ — Data Certificate’ which shall provide, at a minimum,
confirmation of Relocation Date and Termination Date of the Lease.”



6. Amendment of Article 2 of the Lease. Section 2.4 Term is hereby amended, on and after the
Relocation Date, by deleting the entire second sentence.



7. Amendment of Article 2 of the Lease. Section 2.5 Option to Renew is hereby amended by
deleting subsection (d) in the first paragraph and replacing with: “Tenant shall have exercised
this Option at least nine (9) months prior to the expiration of the Lease Term, then the Tenant may
renew this Lease as set forth below.”



8. Amendment of Article 10 of the Lease. Section 10.5 Notices is hereby amended by deleting
all references to “Heartware, Inc., 3351 Executive Way, Miramar, Florida 33025” and replacing with
“Heartware, Inc., 14000 N.W. 57th Ct., Miami Lakes, Florida 33014, Attn: CEO, with a copy
to Heartware, Inc., 14000 N.W. 57th Ct., Miami Lakes, Florida 33014, Attn.: CFO”.



9. Amendment of Article 3 of the Lease. Section 3.1 Preparation of Premises for Occupancy
is hereby amended by deleting all references to “Exhibit F — Landlord’s Work” and replacing with
“Exhibit F-1 — Landlord’s Work”, attached hereto and made a part hereof.


 


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10. Early Occupancy. Tenant or its agents may enter the Relocation Premises prior to the
Relocation Premises Completion Notice to perform such work as it may desire provided that such work
does not prevent Landlord’s Work. Such entry shall be deemed under all the terms, covenants and
conditions of this Lease, except the covenant to pay rent. If Landlord determines that
the performance by Tenant or its agents of any such work is preventing the performance of
Landlord’s Work, then, upon notice to Tenant, Tenant shall cease such work until the receipt of the
Relocation Premises Completion Notice or other notification that Tenant may once again enter the
Relocation Premises in order to perform such work.



11. Brokerage. Landlord confirms that it is responsible for brokerage fees in connection with
the Relocation Premises, pursuant to separate agreement with R. W. Holmes Realty Co., Inc., the
broker named in Section 1.1 of the Lease. Tenant confirms that it has dealt with no broker(s) in
connection with the Relocation Premises transaction, other than such broker.



12. No Other Amendments. Except as otherwise provided herein, the Lease is hereby ratified and
confirmed and shall remain unmodified and in full force and effect.



Executed as a sealed instrument by the duly authorized signatories of the parties hereto in
two or more counterparts as of the day and year first above written.



	 	 	 	 	 	 	 
	Witness:	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 
	Lause A. Murphy
 


	 	 	 	 	 	 
	Name:	 	ATLANTIC-PHILADELPHIA REALTY LLC	 	 
	 	 	By Its Agent, Atlantic Management Corporation	 	 
	 
	 	 	 	 	 	 
	Marianne Nelson	 	/s/ David A. Capobianco	 	 
	 	 	 	 	 
	Name:	 	David A. Capobianco — C. O. O.	 	 
	 
	 	 	 	 	 	 
	[ILLEGIBLE]	 	TENANT:	 	 
	 

Name:

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[ILLEGIBLE]	 	HEARTWARE, INC.	 	 
	 

Name:

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Douglas Godshall
 

Douglas Godshall
	 	 







 


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Exhibit B-1




Plan Showing Tenant’s Space




[see attached — which includes space formerly known as Suites 103 and 104 which is to be included

in the Relocation Premises that shall be known as Suite 103]




 


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Exhibit B






 


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Exhibit F-1




Landlord’s Work





	(1)	 	Build out Relocation Premises according to plans attached (the “Plans”) including adding air
conditioning duct to IT closet as shown in Plans;







	(2)	 	Update Kitchen area with new cabinets and additional counter space of quality and style which
is similar to that shown on Exhibit H; Counter top to be formica as selected by Tenant.







	(3)	 	Paint and Carpet Premises; in same colors and finishes as the current premises but the
electronics lab and IT closet shall have tile floors, where indicated in the Plans. Tile shall
be Mannington Commercial; Mineral White (#171) or if #171 is unavailable, then Tenant shall
have opportunity to select an alternative;







	(4)	 	Repair any broken window blinds and replace any that cannot be repaired, with blinds of
same, original style and quality; and







	(5)	 	Deliver the Relocation Premises and make a good faith effot the ensure that (a) IT racks of
the prior tenant in place and in good usable condition, and (b) wiring of the prior tenant in
place, connected and in good working condition [such racks and wiring shall be the property of
Tenant].







 


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Exhibit H:




Cabinet example









	 	 	 	 	 
	Doors feature solid oak frames and
raised panel square veneer center
panel
Cabinets feature heavy duty drawer box
Cabinet interiors feature scratch
resistant, easy to clean finish
Fully concealed adjustable hinges
Ready to install — instructions and
mounting hardware included with every
cabinet

	 	Cabinet Material:

Base Cabinet Type:

Number of Doors:

Number of Drawers:

Number of Shelves:

Finished / Unfinished Exterior:

Finished / Unfinished Interior:

Fully Assembled:

Ready to Install:

Warranty:

Height (Inches):

Width (Inches):

Depth (Inches):

Full Overlay Construction:
	 	Oak

Double Door

2

2

1

Finished

Finished

Yes

Yes

Limited Lifetime

35

36

23 3/4

No






To include new knobs and drawer pulls.




 


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Exhibit G




Data Certificate




The Landlord and Tenant hereby agree and certify to one another the following:




1. The Relocation Date of the Lease is February 1, 2009.




2. The Termination Date is January 31, 2013.



LANDLORD:



ATLANTIC-PHILADELPHIA REALTY LLC

By Its Managing Agent,

Atlantic Management Corp.




	 	 	 	 	 	 	 
	By:	 	/s/ Douglas Godshall	 	 
	 	 	 	 	 
	 

	 	Its:
	 	C. O. O.	 	 
	 
	 	 	 	 	 	 
	TENANT:	 	 
	 
	 	 	 	 	 	 
	HEARTWARE, INC.	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Douglas Godshall	 	 
	 	 	 	 	 
	 

	 	Its:
	 	Douglas Godshall	 	 







 


 









 







LEASE




ARTICLE 1 — REFERENCE DATA 





	1.1 Subjects Referred To





Each reference in this Lease to any of the following subjects shall be construed to
incorporate the date stated for that subject in this Section 1.1:



	 	 	 
	DATE:

	 	December 27, 2006
	 
	 	 
	LANDLORD:

	 	Atlantic-Philadelphia Realty LLC
	 
	 	 
	LANDLORD ADDRESS:

	 	c/o Atlantic Management Corporation 

205 Newbury Street 

Framingham, Massachusetts 01701
	 
	 	 
	BUILDING:

	 	The building situated on Newbury Street, Framingham, Middlesex County, Massachusetts,
known as #205 Newbury Street (the “Premises”), upon the Lot (the “Lot”) more
particularly described on Exhibit A attached hereto and made a part hereof.
	 
	 	 
	TENANT:

	 	HeartWare, Inc.
	 
	 	 
	TENANT SPACE:

	 	Those premises to be used as OFFICE SPACE located on the first (1st) floor of the
Premises, as shown on floor plan attached here to as Exhibit B and identified as
Suite #101.
	 
	 	 
	RENTABLE FLOOR AREA OF 

TENANT SPACE:

	 	3,530 rentable square feet 
	 
	 	 
	TOTAL RENTABLE FLOOR AREA OF
THE BUILDING:

	 	56,865 square feet 
	 
	 	 
	TENANT’S PROPORTIONATE SHARE:

	 	6.2% 
	 
	 	 
	TERM:

	 	Four (4) Years
	 
	 	 
	RENT AND TERM 

COMMENCEMENT DATE:

	 	January 15, 2007
	 
	 	 
	OCCUPANCY DATE:

	 	January  15, 2007





 


 









 





	 	 	 
	TERMINATION DATE:

	 	January 31, 2011
	 
	 	 
	ANNUAL FIXED RENT:

	 	The sum of $21.50/Sq.Ft., which equates to an Annual Fixed Rent of $75,895.00 per annum.
	 
	 	 
	MONTHLY FIXED RENT:

	 	Tenant shall
 pay the Annual Fixed Rent of $75,895.00 in EQUAL MONTHLY installments of
$6,324.58. All such monthly installments are due ON OR BEFORE THE 1ST of each month, beginning
with the first payment due on the Commencement Date.
	 
	 	 
	OPTION:

	 	Tenant shall have one (1) option to extend the term of this Lease for an additional three years.
	 
	 	 
	SECURITY DEPOSIT:

	 	Tenant shall deposit the sum equal to one (1) month’s rent or $6,324.58, which shall be held
by Landlord as a Security Deposit. Said deposit shall be held by Landlord in a non-interest
bearing account and shall be due and payable by Tenant upon execution of this Lease.
	 
	 	 
	BASE YEAR FOR CALCULATING LANDLORD’S
OPERATING EXPENSE:

	 	2007
	 
	 	 
	PERMITTED USES:

	 	First Class General Office Space
	 
	 	 
	PUBLIC LIABILITY INSURANCE BODILY INJURY:

	 	$1,000,000 Combined Single Limit Coverage 
	 
	 	 
	BROKER:

	 	R.W. Holmes Realty Co., Inc.
	 
	 	 
	PARKING:

	 	Tenant will receive 3.8 parking spaces per 1,000 square feet of rented space, or 13 parking
spaces, on a first come first serve basis.





 


 









 





	 1.2 Exhibits






The Exhibits listed below in this Section 1.2 are incorporated in this Lease by reference and
are to be construed as part of this Lease:




Exhibit A — Description of Lot

Exhibit B — Floor Plan Showing Tenant’s Space

Exhibit C — Landlord’s Services
 Exhibit
D — Rules and Regulations
 Exhibit
E — Estoppel Certificate 
Exhibit
F — Landlord’s Work




	 1.3 Table of Contents by Article and Section:







	1.	 	Reference Data







	 	1.1	 	Subjects Referred To

	 
	 	1.2	 	Exhibits

	 
	 	1.3	 	Table of Contents







	2.	 	Premises and Term







	 	2.1	 	Premises

	 
	 	2.2	 	Common Facilities

	 
	 	2.3	 	Landlord’s Reservations

	 
	 	2.4	 	Term

	 
	 	2.5	 	Option to Renew

	 
	 	2.6	 	Holdover Penalty







	3.	 	Alteration







	 	3.1	 	Preparation of Premises for Occupancy

	 
	 	3.2	 	Tenant Changes and Additions

	 
	 	3.3	 	General Provisions Applicable to Construction







	4.	 	Rent







	 	4.1	 	Fixed Rent

	 
	 	4.2	 	Operating Expenses Including Real Estate Taxes

	 
	 	4.3	 	Lot

	 
	 	4.4	 	Accounting

	 
	 	4.5	 	Payment of Additional Rent







	5.	 	Landlord’s Covenants







	 	5.1	 	Landlord’s Covenants

	 
	 	5.2	 	Interruptions







	6.	 	Tenant’s Covenants







	 	6.1	 	Tenant’s Covenants







	7.	 	Casualty and Taking







	 	7.1	 	Casualty and Taking

	 
	 	7.2	 	Reservations of Award












 








	8.	 	Right of Mortgage







	 	8.1	 	Subordination

	 
	 	8.2	 	Entry Other Than For Foreclosure

	 
	 	8.3	 	Entry For Foreclosure

	 
	 	8.4	 	No Prepayment

	 
	 	8.5	 	No Release or Termination

	 
	 	8.6	 	No Modification, Etc.

	 
	 	8.7	 	Continuing Offer

	 
	 	8.8	 	Implementation

	 
	 	8.9	 	Financing







	9.	 	Defaults







	 	9.1	 	Events of Default

	 
	 	9.2	 	Tenant’s Obligations After Termination

	 
	 	9.3	 	Landlord’s Default







	10.	 	Miscellaneous







	 	10.1	 	Measurement

	 
	 	10.2	 	Titles

	 
	 	10.3	 	Notice of Lease

	 
	 	10.4	 	Consent

	 
	 	10.5	 	Notice

	 
	 	10.6	 	Bind and Inure

	 
	 	10.7	 	No Surrender

	 
	 	10.8	 	No Waiver, Etc.

	 
	 	10.9	 	No Accord and Satisfaction

	 
	 	10.10	 	Cumulative Remedies

	 
	 	10.11	 	Partial Invalidity

	 
	 	10.12	 	Landlord’s Rights to Cure Tenant’s Default

	 
	 	10.13	 	Estoppel Certificate

	 
	 	10.14	 	Waiver of Subrogation

	 
	 	10.15	 	Brokerage

	 
	 	10.16	 	Security Deposit







	11.	 	Arbitration







 


 









 






ARTICLE 2 — PREMISES AND TERM




2.1 Premises




Landlord hereby leases to Tenant, subject to and with the benefit of the provisions of this
Lease, Tenant’s Space in the Building on the Lot referred to in Section 4.3 below and described in
Exhibit A, excluding exterior faces of exterior walls, the common stairways, stairwells, elevators
and elevator wells, 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 central core area of
such floor. Tenant’s Space, with said exclusions, is hereinafter sometimes referred to as the
“Premises”. Tenant shall have access to the Premises twenty four hours a day, seven days a week.



2.2 Common Facilities




Tenant shall have, as appurtenant to the Premises, rights to use in common with others now or
hereafter entitled thereto, subject to reasonable rules of general applicability to Tenants of the
Building from time to time made by Landlord of which Tenant is given notice: (1) the common
facilities of the Building and Lot including common walkways, driveways, lobbies, hallways, ramps,
stairways, elevators, loading platform and the parking area; (2) the common pipes, ducts, conduits,
wires and appurtenant equipment serving the Premises; and (3) if the Premises include less than the
entire rentable area of any floor, the common toilets and other common facilities in the central
core area of such floor.



2.3 Landlord’s Reservations




Landlord reserves the right, from time to time, without unreasonable interference with
Tenant’s use: (1) to install, repair, replace, use, maintain and relocate for service to the
Premises and to other parts of the Building, pipes, ducts, conduits, wires and appurtenant fixtures
wherever located in the Building, and (2) to alter or relocate any other common facility, provided
that the substitution are substantially equivalent or better. Installations, replacements and
relocations referred to in this Section 2.3 shall be located as far as practicable in the central
core area, above ceiling surfaces, below floor surfaces or within the perimeter walls of the
Premises.



2.4 Term




To have and to hold for a period commencing on with the scheduled Term Commencement Date and
continuing for the Term unless sooner terminated as provided in Section 7.1 or in Article 9 below.
Notwithstanding anything contained in this Lease to the contrary, if Landlord’s Work (as
subsequently defined) is not completed by the scheduled Term Commencement Date, then the Term
Commencement Date and the Rent Commencement Date shall be adjusted so as to commence five days
after Landlord receives all governmental approvals reflecting that the Landlord’s Work (as
subsequently defined) has been completed according to the appropriate regulations and the Premises
is ready for Tenant to occupy and use the Premises to conduct business.


 


 









 





2.5 Option to Renew




(a) Subject to the conditions set forth below, Tenant is granted an Option to Renew this Lease
for one (1) consecutive (additional) term of three (3) years (the “Renewal Term”), such Renewal
Term commencing on the day following the expiration of this Lease. Said Option to Renew this Lease
shall be on the same terms and conditions and provisions and covenants as set forth herein (except
as specifically set forth hereunder). The Renewal Term shall be subject to and provided that Tenant
(a) is not is default beyond the expiration
of any applicable cure period or the monetary covenant, or a material non-monetary covenant under
this Lease; (b) this Lease is still in full force and effect; (c) Tenant shall not have sublet,
assigned, or otherwise transferred all or any portion of its interest under this Lease in violation
of the terms of this Lease; and (d) Tenant shall have exercised this Option at least seven (7)
months prior to the expiration of the Lease Term, then the Tenant may renew this Lease as set forth
below.



(b) The Base Rent during the Renewal Term shall be equal to the greater of the
Tenant’s then current rental rate, or the fair market value rent. For the purpose of this Section,
fair market value rent shall mean the Base Rent plus such additional financial terms in the nature
of rent and rent adjustments customarily then being included in leases for comparable premises
within a one mile radius of the Property. Tenant shall, during the Renewal Term, pay its
proportionate share of Landlord’s Operating Expenses and its proportionate share of Real Estate
Taxes. Said fair market value rent for the Premises shall be agreed upon by Landlord and Tenant;
provided, however, if Landlord and Tenant are unable to agree on said fair market value rent within
thirty (30) days of the date of the date of Tenant’s notice to extend, said fair value effective
rent shall be conclusively determined by three (3) appraisers. Within fifteen (15) days of the
expiration of such thirty (30) day period, Landlord and Tenant shall each select an appraiser, who
shall select a third. Should the two appraisers fail to agree on a third within fifteen (15) days
of the date on which such appraisers have been appointed, or if either Landlord or Tenant shall
fail to appoint an appraiser within the time provided, such appraiser shall be appointed by the
American Institute of Appraisers. Each party shall bear the cost of the appraiser selected by such
party, and the cost of the third appraiser shall be shared equally by Landlord and Tenant. If the
three appraisers are unable to agree upon such fair market effective rent within fifteen (15) days
of the appointment of the third appraiser, the fair market effective rent shall be that determined
by the appraiser not selected by either Landlord or Tenant.



(c) Except as provided above, all of the terms, covenants and agreements contained in this
Lease shall continue during the Renewal Term.



2.6 Hold-Over Penalty




Tenant shall be liable to pay one and one-half times (1.50 times) the Base Rental Amount for
any hold-over period in the event Tenant fails to vacate on or before the applicable Expiration
Date.


 


 









 





ARTICLE 3 — ALTERATIONS




3.1 Preparation of Premises for Occupancy




Tenant shall accept the Premises in their “as is” and present condition, except that prior to
the Term Commencement Date, Landlord, at its expenses, shall perform the work
described on Exhibit F to Tenant’s satisfaction (“Landlord’s Work”). In connection with the
foregoing, Landlord represent, warrants and covenants that as of the date hereof, (a) the Premises
(including without limitation all structural and nonstructural systems, equipment and apparatus
therein and/or appurtenant thereto) is in good working order and condition and (b) the Premises is
in compliance with all local, state and federal laws, statutes, ordinances and regulations and the
Premises shall remain in such good working order and condition, and the Premises shall remain in
such condition and in such compliance up to and including the Term Commencement Date.



3.2 Tenant Changes and Additions




Tenant may, from time to time, after commencement of the Term, make changes and additions to
the Premises in accordance with plans and specifications therefore first being approved by
Landlord, which Landlord will not approve if they will require unusual expense to readapt the
Premises to normal office use on lease termination or will increase the cost of insurance or taxes
on the Building or of Landlord’s services called for by Section 5.1, unless Tenant first gives
assurances acceptable to Landlord for payment of such increased cost and that such readaptation
will be made prior to such termination without expense to Landlord. In the event such changes
and/or additions are cosmetic in nature and cost less than $25,000, then Landlord’s consent shall
not be required. All such changes and additions shall be part of the Building except Tenant’s
business equipment, business furnishings and other special items relating to Tenant’s business.
Such other special items shall include only those items which the parties agree in writing at the
time of approval shall be removed by Tenant on termination of the Lease, or which Landlord agrees
in writing that Tenant may elect to remove or leave, provided that the Building is not damaged by
removal nor reduced below the then building standard. All of Tenant’s changes and additions and
installations 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 Building or Lot or
interfere with Building operation and, except for installation of furnishings, shall be performed
by Landlord’s general contractor or by contractors or workmen first approved by Landlord. Except
for work by Landlord’s general contractor, Tenant, before its work is started shall: (a) secure all
licenses and permits necessary therefore, (b) 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, (c) cause each contractor to carry workmen’s compensation insurance in statutory amounts
covering all of the contractor’s and subcontractor’s employees, comprehensive public liability
insurance with limits in no event less than $1,000,000 combined single limited coverage and
property damage insurance with limits of not less than $1,000,000 (all such insurance to be written
insuring Landlord and Tenant as well as the contractor, and (d) deliver to Landlord certificates of
all such insurance. Tenant agrees to pay promptly, when due, the entire cost of any work done on
the Premises by Tenant, its agent, 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. Tenant agrees to immediately discharge any such liens which may be so attached.




 


 









 







3.4 General Provisions Applicable to Construction




All construction work required or permitted by this Lease, whether by Landlord or Tenant,
shall be done in a good and workmanlike manner and in compliance with all applicable laws and all
lawful ordinances, regulations and orders of governmental authority and insurers of the Building.
Either party may inspect the work of the other at reasonable times, and shall promptly give notice
of observed defects.



ARTICLE 4 — RENT




4.1 Fixed Rent




Tenant agrees to pay, without any offset or deduction whatever except as made in accordance
with the provisions of this Leased, Annual Fixed Rent at the rate set forth in Section 1.1 above in
equal monthly installments (“Monthly Fixed Rent”) at the rate set forth in Section 1.1 above, on
the first day of each calendar month including in the Term hereof and for any portion of a calendar
month at the beginning or the end of the Term, unless otherwise excluded hereunder, at the rate
payable in advance for such portion.



4.2 Operating Expenses — Including Real Estate Taxes





	 	(a)	 	If, with respect to any calendar year of the Term after the Base Year for
calculating Landlord’s Operating Expenses set forth in Section 1.1, or fraction
thereof, Landlord’s Operating Expenses for the Building and Lot either:







	 	(i)	 	for a full calendar year exceed Landlord’s Initial Operating
Expenses, as defined below (as the same may be reduced from time to time pursuant
to the following sentence), or for any fraction of a calendar year exceed the
corresponding fraction of such Landlord’s Initial Operating Expenses; or







	 	(ii)	 	for a full calendar year are less than Landlord’s Initial Operating
Expenses (as the same may be reduced from time to time pursuant to the following
sentence), or for any fraction of a calendar year are less than the corresponding
fraction of such Landlord’s Initial Operating Expenses;







then, on or before the thirtieth (30th) day following receipt by Tenant of the
statement referred to below in this Section 4.2, Tenant shall, in the case of (i) pay
to Landlord, as additional rent, Landlord’s Operating Expenses allocable to the
Premises, as defined below in this Section 4.2, or in the case of (ii) Landlord
shall, if the Tenant is paying previously a monthly estimated operating expense
charge, credit over the next year such amount against monthly installments of
operating expense next coming due.








 


 









 











	 	(b)	 	Within one hundred twenty days from the end of the calendar year, Landlord shall
render to Tenant an audited statement (“Statement”) in reasonable detail and
according to usual accounting practices showing for the preceding calendar year or
fraction thereof, as the case may be, Landlord’s Operating Expenses for the Building
and Lot, excluding costs of special services rendered to tenants (including Tenant)
for which a special charge is made, but including without limitation: real estate
taxes on the Building and Lot; installments and interest on assessments for public
betterments or public improvements, whether or not deductible from any condemnation
award, such assessments to be paid over the longest period permitted by law; expenses
of any proceedings for abatement of taxes and assessments with respect to any
calendar year or fraction of a calendar year; premiums for insurance of any kind
normally carried by owners of similar properties (including insurance in case of fire
or casualty against loss of up to eighteen monthly installments of fixed and
additional rent) or, if there be any mortgage of the Lot or Building, or both, the
insurance as may be required by the holder of the mortgage; compensation and all
fringe benefits, workmen’s compensation insurance premiums and payroll taxes paid by
Landlord to, for or with respect to all persons substantially engaged in the
operating, maintaining or cleaning of the Building or Lot; steam, water, sewer,
electric, gas and telephone charges not chargeable to tenants; cost of building and
cleaning supplies and equipment; and cost of maintenance, cleaning and repairs (other
than repairs not properly chargeable against income or for which Landlord has
received reimbursement from contractors under guaranties); cost of snow removal and
care of landscaping; payments under service contracts with independent contractors;
management fees at a rate of five percent (5%) of total rent from all tenants; and
all other reasonable and necessary expenses paid in connection with the operation,
cleaning and maintenance of the Building and Lot and properly chargeable against
income. Notwithstanding any provision to the contrary contained herein, Landlord’s
Operating Expenses shall not include (a) costs and expenses of a capital nature,
including but not limited to, original or new construction or installation of any
capital investments, or improvements, unless such capital investments or improvements
are intended to reduce operating expenses, in which event Landlord shall be entitled
to charge the amortized value of such capital investments or improvements; (b) any
amounts incurred for labor, materials or services that are not directly employed or
used in the performance of Landlord’s obligations under this Section; (c) any cost or
expense for which Landlord or the Building is reimbursed by other parties; (d) any
repairs to the Common Area necessitated by any construction in the Building; (e)
costs and expenses incurred to the extent that the same are attributable to
Landlord’s negligence or breach of its obligations under this Lease or any other
lease or premises in the Building; (f) costs and expenses relating to or arising from
correcting defects in, or the inadequacy of the construction of, the Building or
other improvements located in the Building; (g) costs of alterations or improvements
to the premises of other tenants in the Building; (h) interests, principal payments,
and other costs of any indebtedness encumbering the Building or any portion thereof;
(i) legal fees, space-planner’s fees, architectural fees, engineering fees, real
estate commissions, and marketing and advertising expenses incurred in connection
with the development, leasing, and construction of the Building or any portion





 


 









 







 thereof; (j) any bad debt losses, rent losses or reserves
for bad debt or rent losses; (k) costs of selling, syndicating, financing,
mortgaging, hypothecating, or ground leasing any of Landlord’s interest in the
Building; (l) the wages of employees who do not devote the majority of their time to
the Building; provided, however, the costs associated with such employees who do not
devote the majority of their time to the Building may be prorated and such an amount
may be included as a Landlord’s Operating Expense to the extent that such employees
devote their time to the Building; (m) the cost of utility installation and tap-in
charges; (n) any investigation, monitoring, remediation or other cost or expense
arising from or relating to the existence of Hazardous Substances in, on or under the
Building; (o) the costs of compliance with applicable legal requirements (including,
without limitation, the cost of curing violations of or contesting such legal
requirements); (p) any costs which would have been reimbursed or paid for by
insurance proceeds had Landlord maintained the insurance required under this Lease
and the amount of any judgment or other charge entered or costs assessed against
Landlord in excess of the policy limits of the insurance maintained by Landlord
pursuant to this Lease; (q) Landlord’s advertising, entertainment and promotional
costs for the Building (including, without limitation, holiday decorations); (r)
costs of acquiring, leasing, restoring, insuring or displaying sculptures, paintings
and other objects of art located within or outside the Building; (s) reserves for
anticipated future expenses; or (t) any costs or expense to the extent that such cost
or expense either exceeds the prevailing market rate for such product or service or
relates to a type, quality or quantity of service or product not customarily included
within common area charges in other Building of comparable size, quality and location
to the Building. The term “capital expenditure” as used herein shall mean an
expenditure that (i) adds to the value of the component of the Common Area in
question, or (ii) appreciably prolongs the useful life of the component of the Common
Area in question, but shall specifically exclude expenditures that only serve to keep
such component of the Common Area in an ordinarily efficient operating condition. In
addition, if any tenant or other occupant of the Building pays directly for costs
which would otherwise be included in the Landlord’s Operating Expenses, then the
costs associated with or attributable to any of the foregoing shall be excluded from
Landlord’s Operating Expenses.




	 	(c)	 	If some other method or type of assessment or taxation shall replace the
current method of assessment or the type of real estate taxes, Tenant agrees to pay
an equitable share of the same computed in a fashion consistent with the method of
computation herein provided, to the end that Tenant’s share thereof shall be, to the
maximum extent practicable, comparable to that which Tenant would bear under the
foregoing provisions. If a tax (other than a Federal or State net income tax) is
assessed on account of the rents or other charges payable by Tenant to Landlord under
this Lease, the Tenant agrees to pay the same within ten (10) days after billing
therefore, unless applicable law prohibits the payment of such tax by Tenant.





 


 









 







	 	(d)	 	Landlord’s Initial Operating Expenses shall be Landlord’s expenses for the
Base Year for Calculating Landlord’s Base Operating Expenses set forth in Section
1.1. Landlord’s Operating Expenses Allocable to the Premises for any particular year
shall be determined by multiplying the difference between Landlord’s Operating
Expenses for the Building and Lot for the items covered by the foregoing statement
for such year and Landlord’s Initial Operating Expenses times a fraction, the
numerator of which is the Rentable Floor Area of Tenant’s Space and the denominator
of which is the Total Rentable Floor Area of the Building (“Tenant’s Proportionate
Share”). In case of special services which are not rendered to all areas on a
comparable basis, the proportion allocable to the Premises shall be the same
proportion which Rentable Floor Area of Tenant’s Space bears to the total rentable
floor area of the Building to which such service is so rendered (such latter area to
be determined in the same manner as the Total Rentable Floor Area of the Building).







	 	(e)	 	If Tenant questions a component of the Landlord’s Operating Expenses as
provided by Landlord, Landlord shall, within one (1) month of Tenant’s request
therefore, provide Tenant with a copy of the actual invoices or other documentation
reasonably acceptable to Tenant substantiating such component.







	 	(f)	 	Landlord shall maintain accurate, detailed records of Landlord’s Operating
Expenses at Landlord’s office identified on page 1 of this Lease for at least two (2)
years after delivery of the Statement to Tenant. During the six (6) months after a
Statement is submitted to Tenant, Tenant may, upon ten (10) days’ prior written
notice to Landlord, inspect and/or audit Landlord’s records of Landlord’s Operating
Expenses for the period covered by such Statement. If the audit shows that Tenant
paid less of Tenant’s pro rata share of Landlord’s Operating Expenses than was
actually due, Tenant shall pay the amount of the deficiency to Landlord within one
(1) month after Tenant’s receipt of such audit.  If the audit shows that Tenant paid
more of Tenant’s pro rate share of Landlord’s Operating Expenses than was actually
due, Landlord shall, at Tenant’s election, pay said excess to Tenant within one (1)
month after completion of such audit or credit such excess to Tenant’s next
installment of Base Rent due. If such audit shows that such Statement contains
an overstatement of Landlord’s Operating Expenses exceeding five percent (5%) of the
actual Landlord’s Operating expenses for the period covered by such Statement, then
the reasonable third party fees and expenses actually incurred by Tenant in
conducting such audit shall be paid by Landlord; otherwise, such fees and expenses
shall be paid by Tenant. If Landlord protests the conclusions of such audit, Landlord
may contest Tenant’s determination by giving Tenant written notice within one (1)
month following Landlord’s receipt of the audit report. If Landlord and Tenant
cannot mutually agree as to Tenant’s pro rate  share of Landlord’s Operating Expenses
due within one (1) month after Tenant’s receipt of Landlord’s notice of protest,
Landlord and Tenant shall jointly choose an independent Certified Public
Accountant, whose determination shall be binding upon the parties hereto. If
Landlord and Tenant fail to agree upon an independent Certified Public Accountant,
the parties agree to proceed forthwith to arbitrate the issue in accordance with the
Commercial
Arbitration Rules of the American Arbitration Association. The cost of the independent
Certified Public Accountant or the cost of arbitration shall be borne equally by the
parties, but the cost of the audit shall be borne by either Landlord or Tenant as
aforesaid.





 


 









 







4.3 Lot




“Lot” means all the land described in Exhibit A, or any part(s) thereof, plus any addition(s)
thereto resulting from the change of any abutting street line.



4.4 Accounting




Landlord shall have the right, from time to time, to change the periods of accounting under
Section 4.2 to any annual period other than a calendar year, and upon any such change, all items
referred to in said Section 4.2 shall be appropriately apportioned. In all statements rendered
under Section 4.2 amounts for periods partially within and partially without the accounting periods
shall be appropriately apportioned. Any costs which are not determinable at the time of a statement
shall be included therein on the basis of Landlord’s estimate, and Landlord shall render promptly
after determination of such costs a supplemental statement and appropriate adjustment shall be
according thereto.



4.5 Payment of Additional Rent




Except as otherwise specifically provided in this Lease, any sum, amount, item or charge
designated or considered as additional rent in this Lease shall be paid by Tenant to Landlord on
the first day of the month following the date on which Landlord notifies Tenant of the amount
payable, or on the thirtieth day after the giving of such notice, whichever shall be later. Any
such notice shall specify, in reasonable detail, the basis of such additional rent. On the first
day of each month following the thirtieth day in which notice of additional rent is given, Tenant
shall pay to Landlord one-twelfth (1/12) of the amount reasonably estimated by Landlord to be the
amount of additional rent which shall be payable by the Lessee for the then current year.
Reasonably estimated amounts shall, where possible, be based on actual cost experience. When the
actual, rather than reasonably estimated, amount(s) of such additional rent has been ascertained,
Landlord shall notify Tenant of the amount due, if any, giving credit for the monthly payments
theretofore made by Tenant and crediting the overage, if any, against additional rent to become
due. Tenant shall pay any balance due within thirty (30) days after Landlord’s notice.



ARTICLE 5 — LANDLORD’S COVENANTS




5.1 Landlord’s Covenants





	 	(a)	 	to furnish, through Landlord’s employees or independent contractors, the services
listed in Exhibit C attached hereto and made a part hereof; and







	 	(b)	 	to furnish, through Landlord’s employees or independent contractors,
reasonable additional building operation services upon reasonable advance request of
Tenant at equitable rates from time to time established by Landlord to be paid for by
Tenant; and







 


 









 







	 	(c)	 	except as otherwise provided in Article 7, to make such repairs to the roof,
exterior walls and glass, floor slabs and common areas and facilities of the Building as
may be necessary to keep them in serviceable and good and working condition; and







	 	(d)	 	that Landlord is the fee owner of the Building and the Lot and has the right to
enter into this Lease and that Tenant, on paying the rent and performing its
obligations in this Lease, shall peacefully and quietly have, hold and enjoy the
Premises throughout the Term, subject to all the terms and provisions hereof; and







	 	(e)	 	to defend, save harmless and indemnify Tenant from any liability or injury, loss,
accident or damage to any person or property and from any claims, actions, proceedings
and expenses and costs in connection therewith (including, without
limitation, reasonable counsel fees), (i) arising from the omission, fault, willful act,
negligence or other misconduct of Landlord or from any use made or thing done or
occurring on the Premises not due to the omission, fault, willful act, negligence or
other misconduct of Tenant, or (ii) resulting from the failure of Landlord to perform
and discharge its covenants and obligations under this Lease.






5.2 Interruptions





	 	(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 power
losses and shortages, the necessity of Landlord’s entering the Premises for any of the
purposes in this Lease authorized, or for repairing the Premises or any portion of the
Building or Lot however the necessity may occur except as a result of Landlord’s
negligence, omission, fault, willful act or other misconduct. In case Landlord is
prevented or delayed from making any repairs, alterations or improvements, or furnishing
any services or performing any other covenant or duty to be performed on Landlord’s
part, by reason of any cause reasonably beyond Landlord’s control. Landlord shall not be
liable to Tenant therefore, nor, except as expressly provided in Section 7.1, shall
Tenant be entitled to any abatement or reduction of rent by reason thereof, 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.











 


 









 











	 	(b)	 	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(s) thereof. Except in case of emergency
repairs, Landlord will give Tenant reasonable advance efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.






ARTICLE 6 — TENANT’S COVENANTS




6.1 Tenant’s Covenants




Tenant Covenants during the Term hereof and such further time as Tenant occupies any part of
the Premises:




	 	(a)	 	to pay when due all fixed rent and additional rent, all taxes which may be
imposed on Tenant’s personal property on the Premises (including, without limitation,
Tenant’s fixtures and equipment) regardless to whomever assessed, and all charges by
Landlord or by public utility companies for telephone, electricity, gas and any other
utility services and service inspections therefore, and all charges by public utility
companies for installation of metering devices (which charges, if not separately metered
or otherwise apportionable, shall be apportioned on a floor area basis for
multi-tenanted floors) (electricity charges for the Premises, however, are separately
metered and Tenant shall be responsible for paying such charges directly to the supplier
thereof), and all charges of Landlord for services rendered pursuant to Section 5.1; and







	 	(b)	 	except as otherwise provided in Article 7 and Section 5.1 (c), to keep the
Premises in good order, repair and condition, reasonable wear and damage by fire and
casualty only excepted, and at the expiration or termination of this Lease peaceable to
yield up the Premises and all changes and additions therein in such order, repair and
condition, first removing all goods, effects and fixtures of Tenant and any items the
removal of which is required by any agreement made pursuant to Section 3.2 hereof, or
specified therein to be removed at Tenant’s election and which Tenant elects to remove,
and repairing all damage caused by such removal and restoring the Premises and leaving
them clean and neat; and







	 	(c)	 	not inure or deface the Premises, Building or Lot, nor to permit in the Premises
any auction sale, or nuisance, or the emission from the Premises of any objectionable
noise or odor, nor to use or devote the Premises or any part thereof for any purpose
other than the Permitted Uses, nor any use thereof which is improper, offensive,
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; and





 


 









 











	 	(d)	 	not to obstruct in any manner any portion of the Building not hereby leased or
any portion thereof or of the Lot used by Tenant in common with others; not without
prior consent of Landlord to permit the painting or placing of any signs or the placing
of any curtains, blinds, shades, awnings, aerials or flagpoles, or the like, visible
from outside the Premises; and to comply with the Rules and Regulations set forth in
Exhibit D attached hereto, and all other reasonable rules and/or regulations hereafter
made by Landlord, of which Tenant has been given notice, for the case and use of the
Building and Lot and their facilities and approaches; Landlord shall not be liable to
Tenant for the failure of other tenants of the Building to conform to such Rules and
Regulations; and







	 	(e)	 	to keep the Premises equipped with all safety appliances required by law or
ordinance or any other regulation of any public authority because of any use made by
Tenant other than normal office use, and to procure all licenses and permits so
required because of such use and, if requested by Landlord, to do any work so required
because of such use, it being understood that the foregoing provisions shall not be
construed to broaden in any way Tenant’s Permitted Uses; and







	 	(f)	 	not without prior consent of Landlord to assign this Lease or sublet the
Premises; as additional rent, to reimburse Landlord promptly for reasonable legal and
other expenses incurred by Landlord in connection with any request by Tenant for
consent to a assignment or subletting up to $1,000; no assignment or subletting and no
consent of Landlord thereto shall affect the continuing primary liability of Tenant
(which, following assignment, shall be joint and several with the assignee); no consent
to any of the foregoing in a specific instance shall operate as a waiver in any
subsequent instance; and not withstanding Landlord’s consent, no assignment
shall be binding upon Landlord or any of Landlord’s mortgagees, unless Tenant shall
deliver to Landlord an instrument in recordable form which contains a covenant of
assumption by the assignee running to Landlord and all persons claiming by, through or
under Landlord, but the failure or refusal of the assignee to execute such instrument
of assumption shall not release or discharge assignee from its liability as Tenant
hereunder nor shall execution of such instrument of assumption affect the continuing
primary liability of Tenant; Landlord agrees not to unreasonably withhold or delay its
consent to an assignment or subletting, provided, however, that with respect to
any assignment or subletting, the following provisions shall apply:







	 	(1)	 	Tenant shall give Landlord written notice of the assignment or
subletting no less than 45 days prior to the effective date thereof, which notice
shall set forth the identity of the proposed transferee, and the nature of the
proposed transferee’s business to be carried on in the Premises.











 


 









 











	 	(2)	 	Tenant shall furnish Landlord (a) no less than 30 days prior to the
effective date of the assignment or subletting, with a current financial
statement of the proposed transferee reasonably acceptable to Landlord, and (b)
within three (3) days following Landlord’s demand, with all other information
reasonably requested by Landlord with respect to such transferee.







In any case, where the Landlord shall consent to such assignment, other transfer or
subletting, the Tenant originally named herein shall remain fully liable for Tenant
obligations hereunder, including, without limitation, the obligation to pay the rent and
other amounts provided under this Lease, and the Tenant also hereby agrees to pay to the
Landlord, within fifteen (15) days of billing therefore, all legal and other fees incurred
by the Landlord in connection with reviewing and approving any such assignment, other
transfer or subletting up to $1,000. Any Assignment or subletting, whether or not Landlord’s
prior consent is required, shall be subject to any successor using the Premises for the same
use as Tenant’s use, or for a modified use only if acceptable to Landlord. The Tenant shall
give written notice to the Landlord of the terms of any such proposed assignment or
sublease, and the Landlord shall be entitled to 50% of all net profits from any such
sublease or assignment. Net profit shall be calculated by first allowing Tenant to recover
any reasonable construction and commission inducement(s) given to the subtenant or assignee.
It shall be a condition of the validity of any permitted assignment or other transfer or
subletting that the assignee or transferee or subtenant agree directly with the Landlord, in
form satisfactory to the Landlord, to be bound by all Tenant obligations hereunder,
including, without limitation, the obligation to pay rent and other amounts provided for
under this Lease and the covenant against further assignment or other transfer or
subletting.




	 	(g)	 	to defend, with counsel reasonably satisfactory to Landlord, save harmless and
indemnify Landlord from any liability or injury, loss, accident or damage to any person
or property and from any claims, actions, proceedings and expenses and costs in
connection therewith (including without limitation reasonable counsel fees), (i)
arising from the omission, fault, willful act, negligence or other misconduct of Tenant
or from any use made or thing done or occurring on the Premises not due to the
omission, fault, willful act, negligence or other misconduct of Landlord, or (ii)
resulting from the failure of Tenant to perform and discharge its covenants and
obligations under this Lease; and







	 	(h)	 	to maintain public liability insurance on the Premises in the amounts which
shall, at the beginning of the Term, be at least equal to the limits set forth in
Section 1.1, and, from time to time during the Term, shall be for such higher amounts,
if any, as are customarily carried in the area in which the Premises are located on
property similar to the Premises and used for similar purposes, and to furnish Landlord
with certificates thereof: and







	 	(i)	 	to keep all Tenant’s employees working in the Premises covered by workmen’s
compensation insurance in statutory amounts and to furnish Landlord with
certificates thereof, if such workmen’s compensation insurance is required under state
law; and





 


 









 











	 	(j)	 	to permit Landlord and Landlord’s agents to examine the Premises at reasonable
times and upon reasonable notice, and, if Landlord shall so elect, to make any repairs
or replacements Landlord may deem necessary to avert an emergency, to remove, at
Tenant’s expense, any changes, additions, signs, curtains, blinds, shades, awning(s),
aerials, flagpoles, or the like, not consented to in writing, and to show the Premises
to prospective tenants during six (6) months preceding the expiration of the Term
hereof and to prospective purchasers and mortgagees at all reasonable times upon
reasonable appointment with Tenant; and







	 	(k)	 	not to place a load upon the Premises exceeding an average rate of 80 pounds of
live load per square foot of floor area; 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 times 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 leased space in the Building shall be placed and maintained
by Tenant in settings of cork, rubber, spring or other type of vibration eliminators
sufficient to eliminate all such vibrations or noise; and







	 	(1)	 	all the furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming by, through or under
Tenant which, during the continuance of this Lease or any occupancy of the Premises by
Tenant or anyone claiming under Tenant, may be on the Premises or elsewhere in the
Building, shall be at the sole risk and hazard of Tenant, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of pipes, steam pipes or other pipes, by theft or from any other cause, no
part of said loss or damage is to be charged to or borne by Landlord; and







	 	(m)	 	not to suffer or permit any liens to stand against the Premises by reason of
work, labor services or materials done for or at the request of Tenant; Tenant shall
cause any such liens to be immediately discharged within thirty (30) days after the
date of any such lien(s) being filed thereof; and







	 	(n)	 	in case Landlord shall, without any fault on its part, be made party to any
litigation commenced by or against Tenant or by or against any parties in possession of
the Premises or any party thereof claiming under Tenant, to pay, as additional rent,
all costs including, without limitation, reasonable attorney fees, incurred by or
imposed upon Landlord in connection with such litigation, and also to pay, as
additional rent, all such costs and fees incurred by Landlord in connection with the
successful enforcement by Landlord of any obligations of Tenant under this Lease,
however, Landlord shall pay to Tenant all such
costs, fees and attorneys fees incurred by Tenant in connection with any action in
which Tenant prevails incurred as a result of the Lease; and





 


 









 











	 	(o)	 	not to allow any of the Tenant’s employees, agents, etc., to park illegally, i.e.
in fire lanes, traffic lanes, spaces marked for visitors, handicapped or reserved
parking, etc.; and







	 	(p)	 	not to allow any of Tenant’s employees, agents, etc. to smoke anywhere in the
building, including the Leased Premises, hallways, corridors, bathrooms, etc., as the
Building is a “Smoke Free” building.






ARTICLE 7 — CASUALTY AND TAKING




7.1 Casualty and Taking





	 	(a)	 	In case during the Term all or any substantial part of the Premises are damaged
materially by fire or other casualty or by action of public or other authority in
consequence thereof, or are taken by eminent domain or Landlord receives compensable
damage by reason of anything lawfully done in pursuance of public or other authority (a
“Material Event” subject to Section 7.1(c) below), this Lease shall terminate at
Landlord’s or Tenant’s election, which may be made notwithstanding that Landlord’s
entire interest may have been divested, by notice given to the other within sixty (60)
days after the notice given by Landlord pursuant to Section 7.1(c) hereof, which notice
shall specify the effective date of termination. Tenant shall also have the right to
terminate as described above (i) in the event of substantial damage to or taking of the
Building or Lot that renders Tenant unable to conduct its business in the Premises, or
(ii) in the event of damage to the Premises in the last ninety (90) days of the Term,
which damage renders the Premises untenantable for more than fifteen (15) days.







	 	(b)	 	In case, during the Term, all or any substantial part of the Building or the Lot
are damaged materially by fire or other casualty or by action of public or other
authority in consequence thereof, or are taken by eminent domain or Landlord receives
compensable damage by reason of anything lawfully done in pursuance of public or
other authority (a “Material Event” subjection to Section 7.1(c) below), this Lease
shall terminate at Landlord’s election, which may be made notwithstanding that
Landlord’s entire interest may have been divested, by notice given to Tenant within
sixty (60) days after the occurrence of the notice given by Landlord pursuant to Section
7.1(c) hereof, which notice shall specify the effective date of termination.





 


 









 











	 	(c)	 	The effective date of any termination by Landlord or Tenant under this Section
7.1 shall not be less than fifteen (15) days nor more than thirty (30) days after the
date of such notice of termination. For all purposes of this Section 7.1., no
damage or taking shall be considered a “Material Event” unless the time needed for
Landlord to do the construction work necessary to put the Premises, Building or Lot or
the remainder in proper condition for use and occupancy is reasonably estimated by
Landlord to exceed six (6) months, or if more than thirty percent (30%) of the Lot, the
Building or the Premises are so taken. In case of any such damage or taking, Landlord
shall notify Tenant within thirty (30) days after the occurrence thereof of Landlord’s
estimate of the time needed to do the construction work necessary to put the Premises,
Building or Lot or the remainder in proper condition for use and occupancy, or of the
percentage of the Building, Lot or Premises taken.







	 	(d)	 	If in any such case, the Premises are rendered unfit for use and occupancy and
the Lease is not so terminated, Landlord shall use due diligence (following the
expiration of all periods in which either party may terminate this Lease pursuant to the
foregoing provisions of this Section 7.1) to put the Premises, or in case of taking
what may remain thereof (excluding any items installed or paid for by Tenant that Tenant
may be required to remove pursuant to Section 3.2), into proper condition for use and
occupancy and a just proportion of the fixed rent and additional rent according to the
nature and extent of the injury shall be abated until the Premises or such remainder
shall have been put by Landlord in such condition, and in case of a taking that
permanently reduces the area of the Premises, a just proportion of the fixed rent and
additional rent shall be abated for the remainder of the Term.






7.2 Reservation of Award




Landlord reserves to itself all rights to receive awards made for damages to the Premises and
Building and Lot 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 releases and assigns to Landlord all Tenant’s rights to such awards, and
covenants to deliver such further assignments and assurances thereof as Landlord may from time to
time request, hereby irrevocably designating and appointing Landlord as its attorney-in-fact to
execute and deliver in Tenant’s name and behalf all such further assignment thereof. It is agreed
and understood, however, that Landlord does not reserve to itself, and Tenant does not assign to
Landlord, any damages payable for (i) movable trade fixtures installed by Tenant or anyone claiming
under Tenant at its own expense or fixtures or items the removal of which is required or permitted
by any agreement made pursuant to Section 3.2, (ii) relocation expenses recoverable by Tenant from
such authority in a separate action, or (iii) any award that does not affect or reduces Landlord’s
award.


 


 









 





ARTICLE 8 — RIGHTS OF MORTGAGEE




8.1 Subordination




The Lease shall be subject and subordinate to any first mortgage on the Building, now or at
any time hereafter in effect, unless the holder of such mortgage elects by notice to Tenant to have
this Lease superior to its mortgage. In addition, Landlord shall have the option to subordinate
this Lease to any other mortgage or deed of trust that includes the Premises as part of the
mortgaged premises, provided that the holder thereof enters into an agreement with Tenant by the
terms of which (i) in the event of acquisition of title by such holder through foreclosure
proceedings or otherwise, and provided Tenant is not in default hereunder, the holder will agree to
recognize the rights of Tenant under this Lease and to accept Tenant as tenant of the Premises
under the terms and conditions of this Lease, and (ii) Tenant will agree to recognize the holder of
such mortgage as Landlord in such event. This agreement shall be made to expressly bind and insure
to the benefit of the successors and assigns of Tenant and of the holder and of anyone purchasing
said Premises at any foreclosure sale. Any such mortgage to which this Lease shall be subordinated
may contain such terms, provisions and conditions as the holder deems usual or customary. The Lot
or Building, or both, are separately and together hereinafter in this Article 8 referred to as “the
mortgaged premises”. The word “mortgagee” as used in this Lease shall include the holder for the
time being whenever the context permits.



8.2 Entry Other Than For Foreclosure




Upon entry and taking possession of the mortgaged premises for any purpose other than
foreclosure, the holder of a mortgage shall have all right of Landlord, and, during the period of
such possession, the duty to perform all of Landlord’s obligations under this Lease. No such holder
shall otherwise be liable to perform any other of Landlord’s covenants and obligations under this
Lease.  At all times prior to any foreclosure or loss of possession, Landlord remains liable for
the performance of Landlord’s obligations.



8.3 Entry For Foreclosure




Except as otherwise provided in Section 8.2 hereof, no such holder of a mortgage shall be
liable, either as mortgagee or as holder of a collateral assignment of this Lease, to perform, or
be liable in damages for failure to perform, any of the obligations of Landlord unless and until
such holder shall enter and take possession of the mortgaged premises for the purpose of
foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage, subject to the
provisions of Section 8.6 and subject to and with the benefit of the provisions of Section 10.6,
such holder shall be liable to perform all of the subsequent obligations of Landlord, provided that
a discontinuance of any foreclosure proceeding shall be deemed a conveyance under said provisions
to the owner of the equity of the mortgaged premises. At all times prior to any foreclosure or loss
of possession, Landlord remains liable for the performance of Landlord’s obligations.


 


 









 





8.4 No Prepayment




No fixed rent, additional rent, or any other charge shall be paid more than ten (10) days
prior to the due dates thereof except for payment of the Security Deposit and Tenant’s share of
Landlord’s Operating Expenses and other expenses required to be paid accordingly under the Lease,
and payments made in violation of this provision shall (except to the extent that such payments are
actually received by a mortgagee in possession or in the process of foreclosing its mortgage) be a
nullity as against such mortgagee, and Tenant shall be liable for the amount of such payments to
such mortgagee.



8.5 No Release or Termination




No act or failure to act on the part of Landlord that would entitle Tenant under the terms of
this Lease or by law to be relieved of Tenant’s obligations hereunder or to terminate this Lease
shall result in a release or termination of such obligations or a termination of this Lease unless
(i) Tenant shall have first given written notice of Landlord’s act or failure to act to Landlord’s
mortgagee(s) of record, if any, specifying the act or failure to act on the part of Landlord that
could or would give basis to Tenant’s rights, and (ii) such mortgagee(s), after receipt of such
notice, have failed or refused to correct or cure the condition complained of within a reasonable
time thereafter; but nothing contained in this Section 8.5 shall be deemed to impose any obligation
on any such mortgagee to correct or cure any such condition. “Reasonable time” as used above means
and includes a reasonable time to obtain possession of the mortgaged premises, if the mortgagee
elects to do so, and a reasonable time to correct or cure the condition if such condition is
determined to exist, but in no event shall reasonable time exceed sixty (60) days.



8.6 No Modification Etc.




No assignment of this Lease, no agreement to make or accept any surrender, termination or
cancellation of this Lease and no agreement to modify this Lease so as to reduce the rent, change
the Term, or otherwise materially change the rights of Landlord under this Lease or to relieve
Tenant of any obligations or liability under this Lease, shall be valid unless consented to in
writing by Landlord’s mortgagees of record, if any. Landlord will notify Tenant whenever Landlord
places a mortgage on the property of which the Premises are a part, and Landlord will be
responsible for obtaining any mortgagee consent required hereunder.



8.7 Continuing Offer




The covenants and agreements contained in this Lease with respect to the rights, powers and
benefits of a mortgagee (particularly, without limiting the generality of the foregoing, the
covenants and agreements contained in this Article 8) constitute a continuing offer to any person,
corporation or other entity that by accepting or requiring an assignment of this Lease or by entry
or foreclosure assumes the obligations herein set forth with respect to such mortgagee; such
mortgagee is hereby constituted a part to this Lease as an obligee hereunder to the same extent as
though its name were written hereon as such, and such mortgagee shall be entitled to enforce such
provisions in its own name.




 


 









 







8.8 Implementation




Tenant agrees, on request of Landlord, to execute and deliver from time to time any agreement
which may reasonably be deemed necessary to implement the provisions of this Article 8.



8.9 Financing




In the event that any actual or proposed holder of a first mortgage on the Building or Lot
shall demand that this Lease be modified or amended in any respect, Tenant agrees to so modify or
amend this Lease within thirty (30) days after Landlord’s request, so long as such modification or
amendment does not materially adversely affect Tenant’s rights or obligations under this Lease in
Tenant’s reasonable opinion.



ARTICLE 9 — DEFAULTS 




9.1 Events of Default





	 	(a)	 	If Landlord contends that Tenant has neglected or failed to perform any of
Tenant’s covenants, agreements or obligations hereunder, Landlord shall notify Tenant in
writing accordingly, specifying the alleged neglect or failure. Such notice having been
given by Landlord, Tenant shall:







	 	(1)	 	in the case of alleged failure to pay fixed rent, make payment in
FULL within seven (7) days after notice thereof; and







	 	(2)	 	in the case of alleged neglect or failure to perform any of
Tenant’s covenants, agreements or obligations hereunder, other than the
obligation to pay fixed rent:







	 	(i)	 	correct the matters complained of in such notice
within thirty (30) days after notice thereof (or, if more than thirty (30)
days are reasonably required to complete such correction, begin such
correction within such thirty (30) days and thereafter prosecute the
correction to such default to completion with due diligence), or







	 	(ii)	 	notify Landlord within such thirty (30) day period
that Tenant disputes the matters contained in such notice and at the same
time serve on Landlord a copy of a demand for arbitration of the matter
disputed and otherwise proceed to arbitration under Article 11 hereof. If
the decision of the arbitrator pursuant to Article 11 is adverse to
Tenant, in whole or in part, Tenant shall forthwith begin to correct the
matters complained of by Landlord or that portion thereof as to which the
decision shall have been adverse to Tenant, and Tenant shall complete the
same within thirty (30) days after
such decision, or if more than thirty (30) days are reasonably required to
complete such correction, begin such correction within such thirty (30)
days and thereafter prosecute the correction of such default to completion
with due diligence. If so requested by either party, the arbitrator shall
establish the time in excess of thirty (30) days reasonably required for
such completion and the same shall be completed within such time, subject
to unavoidable delay.





 


 









 











	 	(b)	 	In the event that:







	 	(1)	 	Tenant fails to comply with subparagraph (1) above with respect to
fixed rent defaults or Tenant fails to comply with either subclause (i) or (ii)
or subparagraph (2) above with respect to non-performance of any other covenant,
agreement or obligation contained herein; or







	 	(2)	 	any assignment shall be made by Tenant or any guarantor of Tenant
for the benefit of creditors; or







	 	(3)	 	Tenant’s leasehold interest shall be taken on execution; or







	 	(4)	 	a lien or other involuntary encumbrance is filed against
Tenant’s leasehold interest or Tenant’s other property, including said leasehold
interest, and is not discharged within ten (10) days thereafter; or







	 	(5)	 	a petition is filed by Tenant or any guarantor of Tenant for
adjustment as a bankrupt, or for reorganization or an arrangement under any
provision of the Bankruptcy Act as then in force and effect; or







	 	(6)	 	an involuntary petition under any of the provisions of said
Bankruptcy Act is filed against Tenant or any guarantor of Tenant and such
involuntary petition is not dismissed within sixty (30) days thereafter;







then, and in any of such case(s), Landlord and the agent and servants of Landlord may,
in addition to and not in derogation of any remedies for any preceding breach of
covenant, immediately or at any time thereafter and without demand or notice and with
or without process of law (forcibly, if necessary) enter into and upon the Premises or
any part thereof in the name of the whole or mail a notice of termination addressed to
Tenant at the Premises, and repossess the same as of Landlord’s former estate and
expel Tenant and those claiming through or under Tenant and remove Tenant and its
effect(s) (forcibly, if necessary) without being deemed guilty and manner of trespass
and without prejudice to any remedies which might otherwise be used for arrears of
rent or prior breach of covenant, and upon such entry or mailing as aforesaid, this
Lease shall terminate.


 


 









 





9.2 Tenant’s Obligations After Termination





	 	(a)	 	In the event that this Lease is terminated under any of the provisions of Section
9.1 or is otherwise terminated for breach of any obligation of Tenant, Tenant
covenants to pay forthwith to Landlord, as compensation, the excess of the total rent
reserved for the residue of the Term (discounted over the balance of the Term at a
rate of seven percent (7%)) over the fair market rental value of the Premises for said
residue of the Term. In calculating the rent reserved there shall be included, in
addition to the fixed rent and all additional rent, the value of all other
considerations agreed to be paid or performed by Tenant for said residue. Tenant
further covenants as an additional and cumulative obligation after any such
termination to pay punctually to Landlord all the sums and perform all the obligations
which Tenant covenants in this Lease to pay and to perform in the same manner and to
the same extent and at the same time as if this Lease had not been terminated. In
calculating the amounts to be paid by Tenant under paragraph 9.2(b) below, Tenant
shall be credited with any amount paid to Landlord as compensation in accordance with
this Section 9.2 and also with the net proceeds of any rent obtained by Landlord by
reletting the Premises, after deducting all of Landlord’s expenses in connection with
such reletting, including, without limitation, all repossession costs, brokerage
commissions, fees for legal services and expense of preparing the Premises for such
reletting. Landlord shall have a duty to mitigate its damages. Tenant agrees that
Landlord may (i) relet the Premises or any part or parts thereof for a term or terms
which may, at Landlord’s option, be equal to, less than or greater than the period
which would otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord, in its sole judgment, considers advisable or
necessary to relet the same, and (ii) make such alterations, repairs and decorations
in or to the Premises as Landlord, in its sole judgment, considers advisable or
necessary to relet the same. Any action of Landlord in accordance with this Section
9.2 or any failure of Landlord to relet or to collect rent after reletting shall not
operate or be construed to release or reduce Tenant’s liability as aforesaid.







	 	(b)	 	In lieu of any other damages or indemnity and in lieu of full recovery by
Landlord of all sums payable under paragraph 9.2(a) above, Landlord may, by written
notice to Tenant, at any time after this Lease is terminated under any of the
provisions contained in Section 9.1 or is otherwise terminated for breach of any
obligation of Tenant and before such full recovery, elect to recover, and Tenant shall
thereupon pay, as liquidated damages, an amount equal to the aggregate of the fixed
rent and additional rent accrued under Article IV in the twelve (12) months ended next
prior to such termination plus the amount of fixed rent and additional rent of any kind
accrued and unpaid at the time of termination and less the amount of any recovery by
Landlord under paragraph 9.2(a) up to the time of payment of such liquidated damages
and Landlord shall have no further right to recover any other damages from Tenant as a
result of any default, termination or any other provision under the Lease.











 


 









 











	 	(c)	 	Nothing contained in this Lease shall limit or prejudice the right of Landlord to
prove for an 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 than, equal to, or less
than the amount of the loss or damaged referred to above.






9.3 Landlord’s Default




If Landlord violates or fails to perform or otherwise breaches any agreement, term, covenant
or condition herein contained, Landlord shall not be deemed to be in default hereunder unless its
default shall continue for thirty (30) days after written notice thereof has been given by Tenant
to Landlord specifying the nature of the alleged default, or such additional time as is reasonably
required to correct its default, provided that Landlord shall, subject to its arbitration rights
set forth below, begin such correction within such thirty (30) days period and thereafter prosecute
the curing of such default to completion with due diligence. Landlord shall have the right to
dispute Tenant’s allegation of default using the arbitration procedures set forth in Article 11.



Upon the occurrence of an event of default by Landlord, Tenant shall have the following
rights:




	 	(i)	 	To seek injunctive relief or specific performance to cure such default and to
seek reimbursement for those costs incurred by Tenant in curing any such default of
Landlord, including, without limitation, any fines, fees, reasonable attorneys fees and
any other charges, payments, costs and expenses so incurred by Tenant and any losses or
damages suffered by Tenant as a result of such default.







	 	(ii)	 	To terminate this Lease and the term hereby created, whereupon Tenant shall be
entitled to recover the Security Deposit and any rent paid in advance to Landlord
hereunder.






ARTICLE 10 — MISCELLANEOUS




10.1 Measurement




For all purposes of this Lease, all floor areas shall be computed generally in accordance with
the current standard method of floor measurement of office buildings used in the greater Boston
area. In such computation, common areas shall be included to the extent therein provided
notwithstanding their exclusion from the Premises.


 


 









 





10.2 Titles




The titles of the Articles and Sections contained herein are for convenience only and are not
to be considered in construing this Lease.



10.3 Notice of Lease




Upon request of either party, both parties shall execute and deliver after the Lease Term
begins, a Notice of Lease satisfactory in form to Landlord and appropriate for recording at the
Registry of Deeds, if applicable, and, if this Lease is terminated before the Lease Term expires, a
Termination of Lease or such other form shall be executed by Tenant and Landlord acknowledging the
date of Termination, in form satisfactory to Landlord and appropriate for recording, if applicable.



10.4 Consent




Except where otherwise provided herein, whenever any approval, consent, authorization or the
like by Landlord or Tenant is expressly required by this Lease, the approval, consent,
authorization or the like shall not be unreasonably delayed or withheld.



10.5 Notices




Whenever any notice, approval, consent, request or election is given or made pursuant to this
Lease, it shall be in writing. Communications and payments shall be addressed if to Landlord at the
Address of Landlord set forth in Section 1.1 hereof or at such other address as may have been
specified by prior notice from Landlord to Tenant. If said communication or payment is to Tenant,
to the Tenant at the Premises or at such other address as may have been specified by prior notice
to Landlord. Any communication or notice so addressed shall be deemed duly served if mailed by
registered or certified mail, return receipt requested. Any notice delivered to Tenant by Landlord
duplicate copy shall also be sent to:




Michael Steinberg, Esq.

HeartWare, Inc.

3351 Executive Way

Miramar, Florida 33025



10.6 Bind and Inure




The obligations of this Lease shall run with the land, and this Lease shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, except
that only the original Landlord named herein shall be liable for obligations accruing before the
beginning of the Term, and thereafter the original Landlord named herein and each successive owner
of the Premises shall be liable only for the obligations accruing during this period of its
ownership except for the Security Deposit. Whenever the Premises are owned by a trustee or
trustees, the obligations of Landlord shall be binding upon Landlord’s trust estate, but not upon
any trustee or beneficiary of the trust individually.




 


 









 







10.7 No Surrender




The delivery of keys to any employee or Landlord or to Landlord’s agent or any employee
thereof shall not operate as a termination of this Lease or a surrender of the Premises.



10.8 No Waiver, etc.




The failure of Landlord or of Tenant to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this Lease or any of the Rules and Regulations
attached hereto shall not be deemed a waiver of such violation nor prevent a subsequent act that
would have originally constituted a violation from having all the force and effect of an original
violation. The failure of Landlord to enforce any of said Rules and Regulations against any other
tenant in the Building shall not be deemed a waiver of any such Rules or Regulations. The receipt
by Landlord of fixed rent or additional rent with knowledge of the breach of any covenant of this
Lease shall not be deemed to be a waiver in writing signed by the Party so waiving. No consent or
waiver, expressed or implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same or any other
agreement or duty.



10.9 No Accord and Satisfaction




No acceptance by Landlord of a lesser sum than the fixed rent and additional rent then due
shall be deemed to be other than on account of the earliest installment of such rent due, nor shall
any endorsement or statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of such installment or pursue any other remedy
provided in this Lease.



10.10 Cumulative Remedies




The specific remedies to which Landlord 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
it may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions
of this Lease. In addition to the other remedies provided in this Lease, 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.



10.11 Partial Invalidity




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


 


 









 





10.12 Right to Cure Default





	 	(a)	 	If Tenant shall at any time default in the performance of any obligation under
this Lease and Landlord has delivered to Tenant notice of such default as provided
herein, 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
provisions for such substituted performance by Landlord is made in this Lease with
respect to such default. Except in case of emergency, these rights shall be exercised
only after thirty (30) days prior written notice from Landlord to Tenant of Landlord’s
intention to do so. In performing such obligation, Landlord may make any reasonable
payment of money or perform any other act. All sums so paid by Landlord, together with
interest at the rate of twelve percent (12%) per annum, and all necessary incidental
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 within
thirty (30) days of receipt of an invoice stating the cost and expenses incurred and the
services performed. Landlord may exercise the foregoing rights without waiving any other
of its rights or releasing Tenant from any of its obligations under this Lease.






10.13 Estoppel Certificate




Both parties
 agree, from time to time, upon not less than fifteen (15) days prior written
request by the other party, to execute, acknowledge and deliver to the other party a statement in
writing certifying that this Lease is unmodified and in full force and effect and that Tenant has
no defenses, offsets or counterclaims against its obligations to pay the fixed rent and additional
rent and to perform its other covenants under this Lease and that there are no uncured defaults of
Landlord or Tenant under this Lease (or, if there have been any modifications, that the same is in
full force and effect as modified and stating the modifications and, if there are any defenses,
offsets, counterclaims or defaults, setting them forth in reasonable detail), and the dates to
which the fixed rent, additional rent and other charges have been paid. Any such statement
delivered pursuant to this Section 10.13 may be relied upon by any prospective purchaser or
mortgagee of the Premises or any prospective assignee of any mortgagee of the Premises. Tenant
agrees to execute one or more Estoppel Certificates substantially in the form attached hereto as
Exhibit E as so requested by Landlord.


 


 









 





10.14 Waiver of Subrogation




Any insurance carried by either party with respect to the Premises and property therein or
occurrences thereon shall, if the other party so requests and if it can be so written
without additional premium, or with an additional premium with the other party agrees to pay,
include a clause or endorsement denying to the insurer rights of subrogation against the other
party to the extent rights have been waived by the insured prior to occurrence of injury or loss.
Each party, notwithstanding any provisions of this Lease to the contrary, hereby waives any rights
of recovery against the other for injury or loss due to hazards covered by insurance contained in
such clause of endorsement to the extent of the indemnification received thereunder.



10.15 Brokerage




Tenant warrants and represents that it has dealt with no broker(s) in connection with this
transaction other than the broker named in Section 1.1 hereof. Tenant agrees to defend, indemnify
and save Landlord from and against any and all claims for a commission or other type broker’s fee
arising as a result of this Lease, other than from the aforesaid broker’s.



10.16 Security Deposit




Upon the execution of this Lease, Tenant shall pay the Security Deposit set forth in Section
1.1 to Landlord, which shall be held as security for Tenant’s performance under this Lease. The
Security Deposit shall be refunded to Tenant at the end of the Term, subject to Tenant’s
satisfactory compliance with the conditions of this Lease and Landlord’s approval of the Premises
after Tenant has vacated same which shall occur within thirty (30) days after the end of the Term.
Tenant hereby agrees not to look to the mortgagee, as mortgagee, mortgagee in possession, or
successor in title to the property, for accountability for any security deposit required by
Landlord hereunder, unless said sums have actually been received by said mortgagee as security for
Tenant’s performance of this Lease. Unless Landlord has given Tenant notice of the transfer of any
security deposit, Tenant will continue to have the right to look to Landlord for the return of any
security deposit.



ARTICLE 11 — ARBITRATION




In the event of a dispute between Landlord and Tenant with respect to any matter set forth in
Section 9.1(a)(2)(ii) or 9.3 hereof, such dispute shall be arbitrated by three (3) arbitrators
appointed as follows: Landlord and Tenant shall each appoint a fit and impartial person as
arbitrator who shall have at least ten (10) years experience in the Boston Metropolitan Area in a
calling connected with the subject matter of the dispute. Written notice of such appointment shall
be given by each party to the other within fifteen (15) days of the date upon which written notice
is given by one party to the other demanding arbitration and the arbitrators so appointed shall
appoint a third arbitrator with like experience as stated above. If the arbitrators fail to agree
upon a third arbitrator within fifteen (15) days of the date upon which the later of such written
notices of appointment of the first two arbitrators is given, such third arbitrator shall be
appointed by Justice of the Superior Court of the Commonwealth of Massachusetts, Middlesex County
District, upon ten (10) days notice of the institution of proceedings for such Court appointment,
or by any
other Court sitting in said Middlesex County succeeding to the jurisdiction and functions exercised
by the Superior Court of the Commonwealth of Massachusetts. Any award that shall be made in such
arbitration by the arbitrators, or a majority of them, shall be binding and shall have the same
force and effect as a judgment made in a court of competent jurisdiction and both Landlord and
Tenant shall have the right to apply to the aforesaid Superior Court, or to any other court sitting
in Middlesex County succeeding to the jurisdiction and functions exercised by said Superior Court,
for a decree, judgment or order upon said arbitration or award upon ten (10) days notice to the
other party. The fees, costs and expenses of arbitration, other than fees for attorneys for the
parties, expert witnesses and other witness fees, shall be borne equally between the parties unless
the arbitrators determine that some other division shall under the circumstances be more equitable.


 


 









 





EXECUTED as a sealed instrument, in two or more counterparts which constitute only one
instrument, on the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	LANDLORD:	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ATLANTIC-PHILADELPHIA REALTY LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	BY:	 	/s/ David A. Capobianco	 	BY:	 	/s/ Douglas Godshall	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Print Name:
	 	David A. Capobianco
	 	 	 	Print Name:
	 	Douglas Godshall	 	 
	 

	 	Title:
	 	Manager
	 	 	 	Title:
	 	President CEO	 	 







 


 









 







EXHIBIT A




Description of Lot




That certain parcel of land on Newbury Street in Framingham, Middlesex County, Massachusetts,
shown as Lots 2, 3 and 4 on a plan entitled “PLAN OF LAND IN FRAMINGHAM, MASS.”, dated April 2,
1984, prepared by McCarthy & Sullivan Engineering, Inc., recorded with the Middlesex South District
Registry of Deeds as Plan No. 524 of 1984 in Book 15583, Page 165 (the “Plan”), bounded and
described according to the Plan as follows:



	 	 	 
	WESTERLY:

	 	by Newbury Street by two courses together totaling two
hundred twenty-two and 19/100 (222.19) feet;
	 
	 	 
	NORTHEASTERLY:

	 	by an existing thirty-foot drain easement two hundred
forty-nine and 68/100 (249.68) feet;
	 
	 	 
	SOUTHEASTERLY:

	 	by land now or formerly of Zayre Eighth Realty Corp., two
hundred sixty-three and 84/100 (263.84) feet;
	 
	 	 
	NORTHEASTERLY:

	 	by land now or formerly of said Zayre, by two courses
together totalling two hundred fifteen and 80/100 (215.80)
feet;
	 
	 	 
	EASTERLY:

	 	by land now or formerly of Worcester Terminal Corporation
one hundred forty-three and 90/100 (143.90) feet;
	 
	 	 
	SOUTHWESTERLY:

	 	by land now or formerly of said Worcester and land now or
formerly of Rudolph F. and Ruth E. Recke, four hundred six
and 18/100 (406.18) feet;
	 
	 	 
	WESTERLY:

	 	by Newbury Street one hundred fifty-six (156.00) feet;
	 
	 	 
	NORTHEASTERLY:

	 	by Lot 5 on said Plan, one hundred twenty (120.00) feet;
	 
	 	 
	SOUTHEASTERLY:

	 	by Lot 5 on said Plan, sixty-two (62.00) feet; and
	 
	 	 
	SOUTHWESTERLY:

	 	by Lot 5 on said Plan, one hundred thirty-six and 56/100
	(136.56)
feet.
	 	 






Said property being known and numbered as 205 Newbury Street. Framingham, Mass.





 


 









 







EXHIBIT B




Floor Plan of Tenant’s Space — SEE ATTACHED





 


 









 







Exhibit B










 


 









 







EXHIBIT C 





SERVICES BY LANDLORD




	1.	 	A heating and air conditioning system which will keep the entire Premises, other than storage
areas, file rooms, closets, etc., at a comfortable temperature for general office use, during
normal office/business operating hours.







If Tenant shall require heating or air conditioning outside said normal office/business
operating hours, Landlord may furnish such services and Tenant shall pay for any charges
related to same as may from time to time be in effect.




In the event Tenant introduces into the Premises any type of equipment which overloads the
capacity of any building system(s) or in any other way interferes with any such system(s)
to perform adequately, supplemental system(s) may, at Landlord’s option, be provided by
Landlord at Tenant’s sole cost and expense.




	2.	 	(a) Overhead fluorescent light fixtures.







(b) Replacement of fluorescent tubes and starters, as needed.




	3.	 	Hot and cold water for lavatory and drinking purposes.

	 
	4.	 	Toilet supplies in lavatories, including soap, paper or cloth towels and toilet tissue.

	 
	5.	 	Janitor services in accordance with the following schedule and to be accomplished after
normal business hours (after 6:00 P.M.):







	 	a)	 	Entrance Door glass will be cleaned nightly.

	 
	 	b)	 	Entrance Floor will be cleaned and/or polished nightly.

	 
	 	c)	 	Broadloom Carpet areas will be vacuumed nightly. Will be shampooed
upon request, at additional cost to Tenant.

	 
	 	d)	 	Wastepaper Containers will be emptied nightly. Plastic liner bags for
wastepaper containers will be provided and liners will be changed once a week.

	 
	 	e)	 	Water Fountains will be
 cleaned/polished and sanitized nightly.











 


 









 





	 
	 	f)	 	Washrooms will be cleaned and serviced nightly. This will include
refilling paper towels, toilet tissue and soap dispensers. Emptying and cleaning of
all used towel and trash containers. Clean all stainless steel fixtures. Clean
toilets. Wash and sanitize all wash basins and shelves. Clean all mirrors. Remove all
disfigurations, such as ink marks, drawings, etc. from all stool partitions and walls.
Floors will be mopped nightly.

	 
	 	g)	 	Scuff Marks will be removed nightly from all scuff plates on doors.

	 
	 	h)	 	Tile Floors will be swept nightly and a treated dust preventable mop.
All corridors and office floors will be cleaned or polished, as needed, nightly.
Floors will be stripped as necessary.

	 
	 	i)	 	Time of Operation — Services to be performed five (5) nights
per week after end of normal working hours (after 6:00 p.m.)







	6.	 	Proper care of grounds surrounding the leased premises, including care of lawns and shrubs
and including maintaining such grounds neat, clean and free of litter.







	7.	 	Maintain and keep clean the sidewalks and parking areas in front of and around the building
and remove all snow therefrom.







	8.	 	Maintain the Premises and Building in accordance with other first class office buildings in the
Framingham Area.







 


 









 







EXHIBIT D




RULES AND REGULATIONS





	1.	 	The Landlord should be notified at once of any trouble with heating, lighting or plumbing
fixtures. Tenants will make reasonable efforts to not leave windows of premises open or
unlocked and not to leave the doors of the premises unlocked at night.







	2.	 	The sidewalks, entries, halls and stairways shall not be obstructed by any of the tenants or
used by them for any other purpose than for ingress and egress to and from their respective
premises, and no articles or rubbish, of any kind, shall be left therein.







	3.	 	No toilet fixture shall be used for any purpose other than that which it is intended and no
sweepings, rubbish, rags, ashes, or other substances shall be thrown therein; any damage
resulting from so doing shall be born by the tenant causing.







	4.	 	The weight and position of all safes shall be subject to the approval of Landlord.







	5.	 	Lettering on doors, tablets and building directory shall be subject to the approval of
Landlord. No lettering shall be allowed on outside windows.







	6.	 	No wires for telephone service, electric lights, messenger service or any other purpose shall
be put in the premises without the prior consent of Landlord, which consent shall not be
unreasonably delayed or withheld.







	7.	 	No glass in doors or elsewhere through which light is admitted into any part of the building
shall be covered, nor such light obstructed.







	8.	 	No animals or birds shall be kept in or about the building.







	9.	 	All freight, furniture, etc., must be received and delivered through the SIDE entrance unless
otherwise pre-authorized by Landlord and an appointment MUST be made with the Landlord to move
furniture into or from the building, but special arrangements MUST be made with the Landlord
for the moving of all safes.







	10.	 	Nothing shall be thrown or taken from the windows or doors or in the corridors, nor shall
anything be left outside the building on the window sills of the premises.







	11.	 	No person shall loiter in the halls, corridors or lavoratories.







	12.	 	The Landlord, its employees and other proper persons employed by Landlord shall have access,
at all reasonable times, to perform their duties in the upkeep and care of the leased
premises.











 


 









 











	13.	 	No tenant shall use any method of heating other than that provided for in the tenant’s
lease, without special arrangements pre-authorized by Landlord.







	14.	 	The Landlord reserves the right to make any such other further rules and regulations as in
its judgment may, from time to time, be needful for the safety, care and cleanliness of the
premises and building and for the preservation of good order therein. Landlord shall uniformly
enforce all rules and regulations.







	15.	 	Any damage done to the building or premises or person or property therein, in consequence of
any breach of any of the rules and regulations, shall be borne by the tenant, if tenant is
responsible for such damage(s).







	16.	 	No person shall smoke in ANY of the common areas, halls, corridors, lavatories, stairwells,
entry ways of the building, or in tenants respective leased premises the Building is a “Smoke
Free” building.







	17.	 	Tenants, and all of their employees, agents, etc., shall not park illegally; i.e. no parking
in fire lands, traffic lanes, visitor or handicapped spaces, reserved spaces, etc. Tenants so
parked may be towed and the owner of any towed vehicle will be solely responsible for the
costs incurred for same.







	18.	 	During the applicable holiday season, no “live” plants, trees, etc., shall be place in or
near the premises or anywhere in the Building by tenants.







 


 









 







EXHIBIT E 




ESTOPPEL CERTIFICATE




	 	 	 	 	 
	TO:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






	 	 	 
	RE:

	 	Lease Dated:
	 

	 	Lease Amendments (if any) Dated:
	 

	 	Landlord: Atlantic-Philadelphia Realty LLC
	 

	 	Demised Premises:






Gentlemen:



The undersigned (“Tenant”) is the Tenant under the above-captioned Lease (said Lease, together
with all amendments thereto (if any) hereafter the “Lease”), and, understanding that the Lender
will rely on the representations and agreements below in granting a loan (the “Loan”) to the
above-named Landlord to be secured by a mortgage upon the premises of which the Demised Premises
are a part, hereby acknowledges, certifies and represents to the Lender that:




	1.	 	A true and accurate copy of the Lease is attached hereto. The Lease represents the entire
understanding between Landlord and Tenant with respect to the leasing of the Demised Premises
and, except as modified by the Lease Amendments noted above (if any), has not been otherwise
altered, modified or amended. The Lease has been duly authorized, executed and delivered by
Tenant, is in full force and effect in accordance with its terms, and constitutes a legally
valid instrument, binding and enforceable against Tenant in accordance with its terms, subject
only to applicable limitations imposed by laws relating to bankruptcy and creditors’ rights.







	2.	 	Tenant
has accepted possession of the Demised Premises and is in occupancy
 under the Lease. The initial term of the Lease commenced on  _____  and expires on
_____. Tenant has
 _____ 
right to extend the
original term of the Lease as set forth in the Lease (or has no right, whichever is
applicable) and Tenant has no right to acquire or purchase the Demised Premises or any portion
thereof or interest therein.





 


 









 











	3.	 	The obligation to pay rent under the Lease commenced on All rent payable by Tenant through
the date of this letter has been paid. Rent has not been paid for any period beyond the now
current monthly rent due, except as expressly provided in the
Lease including but not limited to the Security Deposit and Tenant’s proportionate share of
Landlord’s Operating Expenses. To the best of Tenant’s knowledge, there exists no default
with respect to any of the terms, covenants and conditions of the Lease by the Landlord or
the Tenant to be performed, and there is no condition or event which could ripen into a
default upon the lapse of time or the giving of notice. There are no offsets, deductions,
or credits against the rents due and payable under the Lease.






WITNESS the execution hereof under seal this
 _____ 
day of



	 	 	 	 	 
	TENANT:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 
	BY:
	 	 	 	 
	 

	 	 

(duly authorized)
	 	 
	 	Print/Type Name & Title:	 	 
	 
	 	 	 	 
	 	 	 	 
	 
	 	 	 	 
	 	 	 	 







 


 









 







EXHIBIT F


DESCRIPTION OF LANDLORD’S WORK




Landlord will create the space to be as shown on the attached plan, by building and
relocating the walls as shown on the plan, and will paint and carpet the Premises.