Exhibit 10.29


 


ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT


 


THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this
“Agreement”) is made as of this 23rd day of December, 2008, by and between INTERNODED, INC., a Delaware corporation (“Assignor”), TANGOE, INC., a
Delaware corporation (“Assignee”), and 1440 MAIN STREET LLC,
a Massachusetts limited liability company (“Landlord”).


 


RECITALS OF FACT


 


A.            Assignor is the present “Tenant”
under that certain Lease Agreement dated in August 2007 and commencing November 5,
2007 by and between Assignor and Landlord (the “Lease”).


 


B.            The Lease affects that certain
approximately 5,345 rentable square feet of space located on the second floor
of the property commonly known as 1440 Main Street, Waltham, Massachusetts (the
“Premises”), which Premises comprise a
portion of the real property described in the Lease (the “Property”).


 


C.            Assignor desires to assign to
Assignee and Assignee desires to accept from Assignor the assignment of the
leasehold interest and all other rights created under the Lease (the “Assignment”), effective as of the date of this Agreement
(hereinafter the “Effective Date”),
subject to the terms and conditions set forth herein.


 


D.            Landlord wishes to consent to the
Assignment, on the terms and conditions of this Agreement.


 


E.             The parties have agreed to execute
this Agreement in connection with the transfer of certain assets of Assignor to
Assignee as more fully described in the Asset Purchase Agreement dated December    ,
2008 by and between Assignor and Assignee (the “Purchase
Agreement”).


 


AGREEMENT


 


IN
CONSIDERATION of the premises and covenants set forth in the Purchase
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by all parties, the parties hereby agree
as follows:


 


1.             Assignment.  Effective as of the Effective Date, Assignor
hereby sells, assigns, transfers, conveys and delivers to Assignee, its
successors and assigns, all of Assignor’s right, title and interest in, to and
under (a) the Lease; (b) the Premises, (c) all security deposits
and prepaid rentals with respect to the Lease (d) any other portion of the
Property, Premises, alterations thereto or improvements thereon, in which
Assignor has any right or interest under the Lease or any associated or
collateral agreements; and (e) all incidental and appurtenant rights which
Assignor may have or possess in connection with the Lease, the Premises or the
Property.  Assignor represents that
Assignor has delivered true, correct and complete copies of the Lease to
Assignee attached as Exhibit A hereto.


 

















 


2.             Assumption.  Effective as of the Effective Date, Assignee
hereby assumes each and every obligation, duty and liability of “Tenant”
arising under the Lease accruing after the Effective Date.


 


3.             Representations, Warranties and
Covenants.  The covenants,
representations, warranties and indemnities of Assignor and Assignee in the
Purchase Agreement shall not be limited by anything contained in this
Agreement, and in the event of any conflict between the provision of this
Agreement and the representations and warranties of Assignor and/or Assignee in
the Purchase Agreement, the representations and warranties of the Assignor
and/or Assignee in the Purchase Agreement shall prevail.


 


4.             Landlord’s Consent.  Landlord hereby consents to the terms of this
Agreement without waiver of the restriction concerning further assignment.


 


5.             Further Action.  Assignor hereby covenants that Assignor will,
at any time and from time to time, upon written request therefor, execute and
deliver to Assignee or Assignee’s successors and assigns, any new or
confirmatory instruments which Assignee or Assignee’s successors and assigns
may reasonably request in order to fully assign and transfer to and vest in
Assignee or Assignee’s successors and assigns and to protect Assignee or
Assignee’s successors’ and assigns’ right, title and interest in and to the
Lease assigned hereby.


 


6.             Miscellaneous.  This Agreement shall be governed by the laws
of the state in which the Premises is located. 
This Agreement may not be amended except by a document signed by all
parties hereto.


 


7.             Counterparts.  This Agreement may be executed in any number
of counterparts and delivered via facsimile or other electronic means, each of
which when so executed and delivered shall be deemed an original and all of
which when taken together shall constitute but one and the same instrument.


 


[Signature Page Follows]


 

















 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.


 


	
  ASSIGNOR:

  	
  INTERNODED,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Julie Palen

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ASSIGNEE:

  	
  TANGOE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Albert
  R. Subbloie

  
	
   

  	
   

  	
  Name:
  Albert R. Subbloie, Jr.

  
	
   

  	
   

  	
  Title:
  President & CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LANDLORD:

  	
  1440
  MAIN STREET LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature
Page to Assignment and Assumption of Lease Agreement


 

















 


EXHIBIT A


 


[LEASE AND AMENDMENTS]


 

















 


LEASE


 


between


 


1440 Main Street LLC


 


as Landlord


 


and


 


Internoded, Inc.


 


as Tenant


 


of


 


Premises located at:


 


1440 Main Street, Waltham, Massachusetts


 


August    , 2007


 

















 


LEASE


 


THIS
LEASE (this “Lease”) is entered into as of July     ,
2007 by and between 1440 Main Street LLC, a Massachusetts limited liability
company (the “Landlord”), with a principal place
of business at c/o Crosspoint Associates, Inc. 217 West Central Street,
Natick, Massachusetts 01760 and Internoded, Inc., a Massachusetts
corporation (the “Tenant”), with
a principal place of business at 200 West Street, Waltham, Massachusetts.


 


In
consideration of the mutual covenants herein set forth, the Landlord and the
Tenant do hereby agree to the terms and conditions set forth in this Lease.


 


1.                                       DEFINITIONS.


 


The
following terms have the meanings indicated or referred to below.


 


“Additional Rent” means all charges payable by the Tenant
pursuant to this Lease other than Annual Fixed Rent, including, without implied
limitation, the Tenant’s Tax Expense Allocable to the Premises payable pursuant
to Section 3.2; the Tenant’s
Operating Expenses Allocable to the Premises payable pursuant to Section 3.3; and amounts payable for special services
pursuant to Section 3.5.


 


“Annual Fixed Rent” - See Section 3.1.


 


“Base Building Systems” - See Section 5.2.


 


“Building(s)” means the presently existing building(s) on
the Land, as shown on the Site Plan, and any additions to the existing
Building.


 


“Commencement Date” - See Section 2.5.


 


“Environment” shall mean soil, surface waters, groundwaters,
land, stream sediments, surface or subsurface strata, ambient air, and any
environmental medium.


 


“Environmental Laws” means all federal, state or local laws,
ordinances, rules, regulations, or policies whether now or hereafter enacted,
applicable to the Premises and/or the Tenant’s use or occupancy of the Premises
or the Tenant’s activities on or about the Premises, and governing the use,
clean-up, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of Hazardous Materials, including, without
limitation: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Sec. 9601, et  seq.) as amended
by the Superfund Amendment and Reauthorization Act; the Solid Waste Disposal
Act (42 U.S.C. Sec. 6901 et  seq.); the Hazardous Materials
Transportation Act (49 U.S.C. Sec. 1801, et  seq.); the Toxic
Substances Control Act; the Resource Conservation and Recovery Act; the Federal
Clean Water Act; Massachusetts General Laws Chapter 21C and 21E; and any
amendments thereto and any regulations adopted and publications promulgated
pursuant thereto, or any other environmental or health and safety-related law,
regulation, rule, ordinance, or by-law at the federal, state, or local level,
applicable to the Premises and/or Tenant’s use or 


 

















 


occupancy
of the Premises or the Tenant’s activities on or about the Premises, whether
existing as of the date hereof, previously enforced, or subsequently enacted.


 


“External Causes” means any of the following: Acts of God,
war, civil commotion, fire, flood or other casualty, strikes or other
extraordinary labor difficulties, shortages of labor materials or equipment in
the ordinary course of trade, government order or regulations or other cause
not reasonably within the control of the party in question, and not due to the
fault or neglect of such party, excluding, however, inability to pay
obligations as they become due.


 


“Good Standing” shall have the following meaning: Tenant
shall be deemed to be in “Good Standing” if, as of a given point in time: (a) there
exists no Event of Default; (b) this Lease is in full force and effect, (c) the
Tenant shall not have assigned this Lease other than as an Affiliated
Assignment as hereinafter defined, and there shall not then be in effect any
sublease or subleases other than an Affiliate Transfer either (i) with
respect to more than thirty-three percent (33%) of the original Premises or (ii) having
a term of more than three (3) years, and (d) not more than two cured
and/or uncured Events of Default of a material nature shall have occurred
during the final twelve (12) months of the Term of this Lease (any of which
conditions described in clauses (a), (b), (c) and (d) may be waived
by the Landlord in writing at any time in Landlord’s sole discretion).


 


“Hazardous Materials” means any pollutants, contaminants,
hazardous wastes, toxic substances, oil or petroleum products, or hazardous
substances as defined in or pursuant to any Environmental Law, including,
without limitation, any asbestos, PCB’s, any toxic, noxious, or radioactive
substances, methane, volatile hydrocarbons, industrial solvents, petroleum
products, or any other materials or substances which could cause or constitute
a health, safety or other environmental hazard to any person or property.


 


“Interest Rate” means the variable rate of interest from time
to time announced by Bank of America (or its successor) as its base rate or, if
such rate can no longer be determined, the variable rate of interest from time
to time announced by a major commercial bank with administrative offices in
Boston, Massachusetts selected by the Landlord as its base or prime rate.


 


“Land” means the land situated in Waltham, Massachusetts,
described in Exhibit B.


 


“Landlord Responsible Parties” - See Section 7.1.


 


“Landlord’s Address” - See Exhibit A.


 


“Lease Year” means each period of one year during the Term
commencing on the Commencement Date or on any anniversary thereof, or, if the
Commencement Date does not fall on the first day of a calendar month, the first
Lease Year shall consist of the partial calendar month following the
Commencement Date and the succeeding 12 full calendar months, and each
succeeding Lease Year shall consist of a one-year period commencing on the
first day of the calendar month following the calendar month in which the
Commencement Date fell.


 

















 


“Major Alterations” - See Section 4.1.


 


“Minor Alterations” - See Section 4.1.


 


“Permitted Uses” - See Exhibit A.


 


“Premises” means THAT PORTION of the Building on the second
floor shown on the floor plan attached hereto as Exhibit D,
consisting of 5,345 square feet of Rentable Floor Area.


 


“Property” means the Land and the Building(s). The Landlord
hereby reserves the right at any time and from time to time to make
alterations, modifications, additions, reductions, expansions or additions to,
and to build additional stories on any Building(s) on the Property and to
build other buildings or improvements on the Property and to make alterations
thereof, additions thereto and reductions therefrom and to build additional
stories on any such buildings and to construct deck or elevated parking
facilities.


 


“Property Common Areas” means the parking lot, walkways,
driveways, sidewalks and landscaped areas located on those portions of the
Property outside of the Building from time to time, and those portions of the
Building, if any, which serve the Property as a whole from time to time, such
as but not limited to any café or cafeteria and those areas required for access
to the Premises, such as stairways, hallways and elevators.


 


“Release” shall mean any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing, or dumping into the Environment.


 


“Rentable Floor Area” means the area within the Building
pursuant to which rental calculations are made.


 


“Rules and Regulations” - See Section 6.3.


 


“Site Plan” means the site plan of the Property attached
hereto as Exhibit C.


 


“Tenant Responsible Parties” means the Tenant and Tenant’s
agents, contractors, licensees, servants, employees, sublessees, assignees and
others for whom the Tenant is legally responsible.


 


“Tenant’s Address for Notices” - See Exhibit A.


 


“Tenant’s Plans” - See Section 2.9.


 


“Tenant’s Proportionate Share” - The Rentable Floor Area of
the Premises (agreed to be 5,345 square feet) divided by the total Rentable
Floor Area of the Building, agreed to be currently 63,704, with the resulting
Tenant’s Proportionate Share at present of eight and four-tenths percent ( 8.4
%).


 

















 


“Tenant’s Work” - See Section 2.9.


 


“Term” means the term as set forth in Exhibit A.


 


“Threat of Release” shall mean a substantial likelihood of a
Release which requires action to prevent or mitigate damage to the Environment
which may result from such Release.


 


2.                                      PREMISES
AND TERM.


 


2.1                               PREMISES.


 


The
Landlord hereby leases to the Tenant, and the Tenant hereby leases from the
Landlord, for the Term, the Premises. 
The Tenant acknowledges that there have been no representations or
warranties made by or on behalf of the Landlord with respect to the Premises or
the Property, or with respect to the suitability of either of them for the
conduct of the Tenant’s business.


 


2.2                               APPURTENANT
RIGHTS.


 


The
Tenant shall have, as appurtenant to the Premises, the nonexclusive right to
use the Property Common Areas in common with others, subject to the Rules and
Regulations.


 


2.3                               LANDLORD’S
RESERVATIONS.


 


All
Property Common Areas shall be subject to the exclusive control and management
of the Landlord, expressly reserving to Landlord, without limitation except as
hereinafter set forth, the right to reduce, expand or change the boundary lines
of the Property Common Area and to erect and install within the Property common
Areas kiosks, planters, pools, sculptures or otherwise.  The Landlord shall give the Tenant reasonable
prior notice (except in the event of emergency) before exercising its rights
under this Section 2.3 which require
access to and/or through the Premises, and the Landlord shall, in any event,
exercise diligent, commercially reasonable efforts to minimize any interference
with the Tenant’s use of the Premises and to avoid undue interference with the
Tenant’s use of the Property Common Areas in connection with exercising its
rights under this Section 2.3.  In no event shall the Premises be decreased
in size or otherwise altered in a fashion that would adversely affect the
Tenant’s use thereof as a result of the Landlord’s exercise of such
rights.  In no event shall the entrance
and/or access to the Premises be changed without the Tenant’s approval, which
approval shall not be unreasonably withheld or delayed.  The Landlord further expressly reserves the
right to access to and/or through the Premises upon no less than 24 hour prior
notice (except that no prior notice shall be required in an emergency) for
purposes of inspecting the Premises and otherwise exercising the Landlord’s
rights as granted hereunder and performing any obligations which have been
undertaken by the Landlord under this Lease, provided that the Landlord uses
diligent, commercially reasonable efforts to minimize interference with the
Tenant’s use of the Premises in connection therewith.


 


2.4                               PARKING.


 


The
Landlord shall provide parking based on a ratio of approximately 3.35 parking
spaces for every one thousand (1,000) rentable square feet of the Premises for
use at all 


 

















 


times
by the Tenant’s employees, business invitees and visitors in the parking lots
on the Land.  The Tenant’s use of the
parking lots shall be in common with the Landlord and others entitled thereto
from time to time, and the Tenant’s parking spaces shall not be reserved
spaces.  The Tenant agrees that it and
all persons claiming by, through and under it, shall at all times abide by the Rules and
Regulations which pertain to the use of the parking facilities.


 


2.5                               COMMENCEMENT
DATE.


 


The
“Commencement Date” shall be upon substantial completion of Landlord’s Work as
hereinafter defined.


 


2.6                               PREPARATION
OF THE PREMISES.


 


(a) 
Landlord’s Work.  Promptly
following the execution of this Lease, the Landlord, at the Landlord’s expense,
shall perform the work described in Exhibit G
attached hereto (“Landlord’s Work”).  The Landlord shall obtain all necessary
permits and other governmental approvals in connection with the Landlord’s Work
prior to commencement of the Landlord’s Work. 
Promptly after execution of this Lease, the Landlord shall commence and
complete the Landlord’s Work on or before the Commencement Date, subject to
External Causes.


 


Landlord’s
Work may vary from the requirements of Exhibit G
if the variance is (i) necessary or advisable due to (A) the job
conditions or good construction practices, (B) the building permits for
such work, or (C) applicable legal requirements, (ii) non-substantial
or (iii) of greater utility or value than that which it replaces;


 


All
of Landlord’s Work shall be performed by the general contractor selected by the
Landlord in its sole discretion. 
Landlord will provide turnkey construction consistent with Exhibit G, and Landlord will
pay the costs of labor and materials incurred in connection with the
performance of the construction of the Premises described in Exhibit G, including the costs
of permits and insurance as well as architectural and engineering services
rendered in the preparation and design of construction drawings and
specifications.  The space planning design,
construction drawings and specifications will be provided by Landlord at no
cost to Tenant.


 


Tenant
may inspect Landlord’s Work at reasonable times and will promptly give notice
of observed defects in materials or workmanship.  Landlord will promptly correct such defects.


 


The
Premises shall be deemed ready for occupancy on the earlier of:


 


(i)                                     the date upon
which Tenant takes possession of any portion of the Premises for any purpose
other than preparing the Premises for occupancy, or


 


(ii)                                  the date upon
which Landlord’s Work is substantially completed.


 


The
Landlord will complete Landlord’s Work prior to September 1, 2007.  Landlord’s Work shall be deemed to be
substantially completed if only minor portions of Landlord’s Work, minor
adjustments, cosmetic finishing work or minor “punch list” items remain
incomplete.  By no 


 

















 


later
than thirty (30) days after completion of Landlord’s Work, the Tenant shall
furnish to the Landlord a punch list of such items of construction of Landlord’s
Work which are then incomplete or defective and which require correction by
Landlord’s Contractor.  The Landlord
agrees to cause such punch list items to be corrected within thirty (30) days
of receipt of the punch list, or such longer period as is reasonably required if
the nature of the corrective work cannot be performed within thirty (30)
days.  If Landlord’s Work is delayed for
any of the reasons set forth in parts (i) through (v) below, Landlord’s
Work shall be deemed to have been substantially completed at the time it would
have been completed if not for such delay: (i) a default by Tenant under
the terms of this Lease; (ii) changes to any of the plans or
specifications for Landlord’s Work requested by Tenant and agreed to by
Landlord (which delay, shall be identified by Landlord at the time of
approval); (iii) a request by Tenant for materials, fixtures or
installations other than those in Landlord’s building standard or those
contained in the plans and specifications set forth in Exhibit G
; (iv) the performance of any work or installations by Tenant or
contractors hired by Tenant; or (v) any other act or omission caused by or
on behalf of Tenant, its contractors, agents, servants or employees which delay
the construction.


 


Landlord’s
Work shall comply with all applicable laws and regulations including Title III
of the Americans with Disabilities Act of 1990.


 


(b)                                 Tenant’s Plans.  Tenant may currently be preparing or in the
future may prepare, at its sole cost and expense, plans and specifications for
non-structural improvements Tenant desires to make in connection with Tenant’s
occupancy of the Premises (the “Tenant’s Plans”).  When completed, Tenant’s Plans shall be
submitted to Landlord for its approval. 
Under no circumstances shall any proposed plans be approved that involve
any structural alterations to the building. 
At the Tenant’s sole cost and expense, the Tenant shall cause the Tenant’s
Plans to be revised in a manner sufficient to remedy the Landlord’s reasonable
objections and/or respond to the Landlord’s reasonable concerns and for such
revised plans to be redelivered to the Landlord, and the Landlord shall either
approve or disapprove the Tenant’s revised plans within five (5) business
days following the date of submission. 
If the Landlord shall again disapprove Tenant’s Plans, the Tenant shall
revise such plans and redeliver them to the Landlord pursuant to the prior two
sentences until the Tenant’s Plans have been approved by the Landlord.  The Tenant’s Plans shall be stamped by a
Massachusetts-registered architect and engineer, such architect and engineer
being subject to the Landlord’s reasonable approval, which shall not be
unreasonably withheld or delayed, and shall comply with all applicable laws,
ordinances and regulations (including, without limitation, the applicable
requirements of the Americans with Disabilities Act of 1990, and the
regulations promulgated thereunder) and shall be in a form satisfactory to
appropriate governmental authorities responsible for issuing permits, approvals
and licenses required for construction. 
The Landlord will not approve any alterations or additions requiring
unusual expense to readapt the Premises to normal office, research and
development or laboratory use on termination of this Lease or increasing the
cost of insurance on the Building, unless the Tenant first gives assurances
acceptable to the Landlord for payment of such increased cost and that such
re-adaptation will be made prior to such termination without expense to the
Landlord.  The approval alone of any
Tenant’s Plans shall not impose upon the Landlord any responsibility or
liability whatsoever to the Tenant.  In
connection with its approval of the Tenant’s Plans, Landlord reserves the right
to require Tenant, at Tenant’s expense, to restore the 


 

















 


Premises
to its original condition and configuration and shall specify in writing those
portions of Tenant’s work which must be removed at the expiration of the Term
of this Lease as part of Tenant’s surrender and yield-up of the Premises.


 


(c)                                  Tenant’s Work.  Promptly after approval of Tenant’s Plans,
the Tenant shall commence and exercise all reasonable efforts to complete the
work specified therein (‘Tenant’s Work”).  All Tenant’s Work shall be completed in
accordance with the approved Tenant’s Plans and the requirements for
alterations and improvements made by or on behalf of Tenant set forth in this
Lease.  Copies of all permits and
approvals required for Tenant’s Work shall be furnished to the Landlord
promptly upon receipt thereof.  Tenant’s
Work shall be performed by a general contractor approved by the Landlord, under
a written construction contract providing for payment, performance and lien
bonds in the full amount of the contract sum; provided, however, that the
Tenant may have Tenant’s Work competitively bid by several general contractors
approved in advance by the Landlord and the Tenant may select among such
general contractors the general contractor that will perform Tenant’s
Work.  The approval by the Landlord of
the Tenant’s general contractor shall not impose upon the Landlord any
responsibility or liability whatsoever to the Tenant as a result of, or arising
out of, the defaults or other acts or omissions of the general contractor.  A copy of all required bonds and certificates
of insurance required by this Lease shall be furnished to the Landlord prior to
commencement of construction and installation of Tenant’s Work.  In addition, the Landlord may monitor the
progress of Tenant’s Work, including, without limitation, attend any weekly or
other periodic job meetings.  The
Landlord shall provide the Tenant with no less than twenty four hours prior
notice before it enters the Premises to review Tenant’s Work, except in the
event of an emergency, when no such notice shall be required.  Any review and monitoring of Tenant’s Work by
the Landlord shall not impose upon the Landlord any responsibility or liability
whatsoever to the Tenant as a result of, or arising out of, Tenant’s Work.  Within forty-five (45) days of completion of
any Tenant’s Work in accordance with the approved plans and specifications, the
Tenant shall provide to the Landlord “as-built” plans showing precisely how and
where Tenant’s Work was actually installed. 
The Tenant shall provide the Landlord with copies of any certificates of
occupancy for any Tenant’s Work that requires a certificate of occupancy
reasonably promptly after completion of any portion of Tenant’s Work.  Nothing herein shall be construed as
permitting the Tenant to occupy all or any portion of the Premises for which
the Tenant has not obtained a certificate of occupancy or otherwise failed to
comply with legal requirements as set forth herein.


 


(d)                                 Within thirty
(30) days of taking occupancy of the Leased Premises, Tenant shall deliver to
Landlord a copy of the occupancy permit for the Leased Premises, as issued by
the local building department.


 


3.                                      RENT
AND OTHER PAYMENTS; SECURITY DEPOSIT.


 


3.1                               ANNUAL
FIXED RENT.


 


From
and after ninety (90) days following the Commencement Date (“Rent Commencement
Date”), the Tenant shall pay, without notice or demand, monthly installments of
one-twelfth (l/12th) of the Annual Fixed Rent in effect and applicable to the
Premises in advance on the first day of each calendar month during the Term
(except for any monthly rental payment 


 

















 


due
for any partial month which shall be paid on the Rent Commencement Date) for
each full calendar month of the Term and of the corresponding fraction of said
one-twelfth (l/12th) for any fraction of a calendar month at the beginning or
end of the Term.  The Annual Fixed Rent
applicable to the Premises during the Term is defined in Exhibit A.


 


3.2                               REAL
ESTATE TAXES.


 


During
the Term, the Tenant shall pay to the Landlord, as Additional Rent, Tenant’s
Tax Expense Allocable to the Premises (as such term is hereinafter defined), in
accordance with this Section 3.2.  The capitalized terms used in this Section 3.2
are defined as follows:


 


(a)                                  ‘Tax Year” means the 12-month period beginning July 1
each year or if the appropriate governmental tax fiscal period shall begin on
any date other than July 1, such other date.  The “Base Tax Year”
shall be the Tax Year commencing July 1, 2007.


 


(b)                                 “Tenant’s Tax Expense Allocable to the Premises” means, for
any Tax Year, the Real Estate Taxes for the Tax Year in excess of the Base Tax
Year, multiplied by Tenant’s Proportionate Share.


 


(c)                                  “Real Estate Taxes” means all taxes and special assessments
payable by Landlord of every kind and nature assessed by any governmental
authority on the Property and reasonable expenses of any proceedings for
abatement, including appeals thereof, less the amount of any abatement or
refund received with respect to any period during the Term (or less a prorated
portion thereof, if only a portion of the period is within the Term) after a deduction
of the reasonable expenses of the proceedings for such abatement, including
appeal proceedings deemed necessary by Landlord in its reasonable
discretion.  The amount of special taxes
or special assessments to be included shall be limited to the amount of the
installment (plus any interest thereon) of such special tax or special
assessment (which shall be payable over the longest period permitted by law)
required to be paid during the Tax Year in respect of which such taxes are
being determined.  There shall be
excluded from such taxes all income, estate, succession, inheritance, excess
profit, franchise and transfer taxes; provided, however, that if at any time
during the Term the present system of ad valorem taxation of real
property shall be changed so that in lieu of the whole or any part of the ad
valorem tax on real property, there shall be assessed on the Landlord a capital
levy or other tax on the gross rents received with respect to the Property, or
a federal, state, county, municipal, or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct from any now in effect)
based, in whole or in part, upon any such gross rents, then any and all of such
taxes, assessments, levies or charges, to the extent so based, shall be deemed
to be included within the term “Real Estate Taxes.”


 


Payments
by the Tenant on account of the Tenant’s Tax Expense Allocable to the Premises
shall be made monthly at the time and in the fashion herein provided for the
payment of Annual Fixed Rent and shall be equal to one-twelfth (1/12) of the
Tenant’s Tax Expense Allocable to the Premises for the current Tax Year as
reasonably estimated by the Landlord.


 

















 


Annually,
the Landlord shall render to the Tenant a statement in reasonable detail showing
for the preceding calendar year or fraction thereof, as the case may be, Real
Estate Taxes on the Property and any abatements or refunds of such taxes
received during such period with respect to any period included wholly or
partially within the Term, together with, copies of all applicable tax bills
for the Property, and the Landlord’s calculations of Tenant’s Tax Expense
Allocable to the Premises.  The Landlord
shall to render the statement not later than one hundred twenty (120) days
after the end of each calendar year or fraction thereof during the Term or
fraction thereof at the end of the Term. 
Expenses incurred in obtaining any tax abatement or refund may be
charged against such tax abatement or refund before the adjustments are made
for the Tax Year, unless previously included in Real Estate Taxes used to
calculate Tenant’s Tax Expense Allocable to the Premises.  If at the time such statement is rendered it
is determined with respect to any Tax Year that the Tenant has paid (i) less
than the Tenant’s Tax Expense Allocable to the Premises or (ii) more than
the Tenant’s Tax Expense Allocable to the Premises, then, in the case of (i),
the Tenant shall pay to the Landlord, as Additional Rent, within thirty (30)
days of such statement the amount of such underpayment and, in the case of
(ii), the Landlord shall credit the amount of such overpayment against the
monthly installments of the Tenant’s Tax Expense Allocable to the Premises next
thereafter coming due.  If the Term has
expired and the Tenant has no further obligation to the Landlord, however, the
Landlord shall refund such overpayment to the Tenant within thirty (30)
days.  To the extent that Real Estate
Taxes may be payable to the taxing authority in installments with respect to
periods less than a Tax Year, the statement to be furnished by the Landlord
shall be rendered and payments made on account of such installments.


 


3.3                               OPERATING
EXPENSES.


 


During
the Term the Tenant shall pay to the Landlord, as Additional Rent, the Tenant’s
Operating Expenses Allocable to the Premises, as hereinafter defined, in
accordance with this Section 3.3.  The capitalized terms used in this Section 3.3 are defined as follows:


 


(a)                                  “Tenant’s Operating Expenses Allocable to the Premises”
means, for any calendar year, the Operating Expenses for the Property for such
calendar year in excess of the Operating Expenses for the Property for calendar
year 2007, in each case grossed-up to reflect 95% occupancy, multiplied by
Tenant’s Proportionate Share.


 


(b)                                 “Operating Expenses” means the any and all of Landlord’s
costs of operating, managing, cleaning, equipping, policing, replacing,
repairing, lighting, heating, cooling, providing sanitation and sewer and other
services, maintaining and repairing the Property, which shall include, without
limitation: the cost of providing or causing to be provided the services to be
provided hereunder; all utility costs, including but not limited to heating,
ventilation and air conditioning (HVAC), sprinklering and cleaning charges
associated with the Property Common Areas; electricity for the operation of any
machine, appliance or device used for the operation of the Premises or Building
and lighting of all Property Common Areas including outside lighting, the
lighting of enclosed Property Common Areas and lighting of signs; surcharges
levied upon or against parking spaces or areas, mass or public transportation,
payments towards mass transit or car pooling facilities or otherwise as
required by local, state or federal governmental authorities; costs and
expenses in connection with maintaining federal, state or local governmental
ambient


 






 










 


air and environmental standards; the cost and
expense of landscaping, gardening and planting, irrigating, cleaning, painting
(including line painting), decorating, paving, lighting, sanitary control,
removal of snow, ice, trash, garbage and other refuse, including costs relating
to trash compactors; maintenance, repair and replacement of parking areas,
sidewalks, curbs, guardrails, bumpers, fences, screens, flagpoles and bicycle
racks and costs incurred in the expansion of the access road(s) to the
Property, maintenance, repair and replacement of utility systems serving the
Property Common Areas including but not limited to water, sanitary sewer,
drainage and storm water lines and other utility lines, pipes and conduits; the
cost of maintaining restrooms included in the Property Common Areas; premiums
for insurance with respect to the property which shall include any and all
insurance that Landlord shall deem to be reasonable, including, but not limited
to, all risk, general liability, excess liability, rent loss, business
interruption, boiler and equipment, and flood and earthquake; the amount
deductible from any insurance claim of the Landlord (but only in the event of
an actual claim paid and settled); wages, salaries, fees and cost to Landlord
of all Persons engaged in connection therewith including, without limitation,
such portion of the Landlord’s property manager’s and tenant coordinator’s
salary attributable to the building and anyone directly engaged in operating,
maintaining or cleaning the Property including the parking facilities located
thereon, including taxes, insurance, and benefits relating thereto, but
excluding salaries of other management level employees of Landlord who are not
entirely engaged at the Premises , and such expenses shall be fairly allocated
in the event any such person works on other sites as well as on the Premises;
the cost of maintaining a business office; accounting and auditing fees;
administrative costs; reasonable management fees; steam, water and sewer
charges, but specifically excluding such utility charges either separately
metered or separately chargeable to tenants or Tenant whether for additional or
special services or otherwise; (the cost of maintaining the septic system;)
costs of building and cleaning supplies; rental or leasing costs for equipment
used in operating, cleaning, maintaining or repairing the Property; security,
if any; cost of maintenance, repairs and replacements, including, without
limitation, the cost of capital improvements or replacements in excess of the
amortization therefor on a straight-line basis over the useful life of the item
as determined by Landlord in its reasonable discretion, together with interest
on the unamortized balance at Landlord’s actual borrowing rate on funds
borrowed for the purpose of constructing such capital improvements or
replacements or at the Interest Rate if there is no such borrowing; payments
under service contracts with independent contractors for services provided in
connection with the operation, cleaning, maintenance, and repair of the
Property, but only to the extent that such expenses would otherwise be properly
included in Operating Expenses hereunder and specifically excluding the
cleaning and janitorial services for the Premises contracted for Tenant by the
Landlord, which shall be billed separately and apart from other operating
expenses and paid for directly by Tenant; and all other reasonable expenses
paid in connection with operation, cleaning, maintenance and repair of the
Property.  Notwithstanding the foregoing,
Operating Expenses shall not include the items specified in Exhibit F.


 


Payments by the Tenant on
account of the Tenant’s Operating Expenses Allocable to the Premises shall be
made monthly at the time and in the fashion herein provided for the payment of
Annual Fixed Rent.  The amount so to be
paid to the Landlord shall be an amount 


 

















 


from time to time reasonably estimated by the
Landlord to be sufficient to aggregate a sum equal to the Tenant’s Operating
Expenses Allocable to the Premises for each calendar year.


 


Annually, or upon the
transfer of ownership in the Property, the Landlord shall render to the Tenant
a statement in reasonable detail (including with respect to the allocation of
Operating Expenses for the Property among the Buildings and Property Common
Areas expense), showing for the preceding calendar year or fraction thereof, or
the year-to-date of ownership transfer, as the case may be, the Operating
Expenses for the Property and the Tenant’s Operating Expenses Allocable to the
Premises.  The Landlord shall deliver the
annual statement not later than one hundred twenty (120) days after the end of
each calendar year or fraction thereof during the Term or fraction thereof at
the end of the Term.  If at the time such
annual statement or any such statement in connection with the transfer of the
Property is rendered it is determined with respect to any calendar year or the
year-to-date of ownership transfer, as the case may be, that the Tenant has
paid (i) less than the Tenant’s Operating Expenses Allocable to the
Premises or (ii) more than the Tenant’s Operating Expenses Allocable to
the Premises, then, in the case of (i), the Tenant shall pay to the Landlord,
as Additional Rent, within thirty (30) days of such annual statement the amounts
of such underpayment, or in the case of ownership transfer Tenant shall pay
directly to the prior landlord within thirty (30) days of the statement
rendered in connection with said transfer the amounts of such underpayment and,
in the case of (ii), the Landlord shall credit the amount of such overpayment
against the monthly installments of the Tenant’s Operating Expenses Allocable
to the Premises next thereafter coming due. 
If the Term has expired and the Tenant has no further obligation to the
Landlord, however, the Landlord shall refund such overpayment to the Tenant
within thirty (30) days.


 


The Tenant, its accountants
and representatives, shall have the right, at the Tenant’s expense, on not less
than five (5) business days’ prior written request by the Tenant to the
Landlord, to examine, audit and copy (at the Tenant’s expense) at the Landlord’s
offices during normal business hours, the Landlord’s books and records
pertaining to the Operating Expenses and/or Real Estate Taxes for the Property,
to enable the Tenant to verify the accuracy of the Operating Expenses and/or
Real Estate Taxes for the Property shown on a Landlord’s statement for the
prior year.  Any such audit shall be
conducted within 120 days from Tenant’s receipt of Landlord’s statement showing
in reasonable detail the expenses incurred during the preceding calendar year
or fraction thereof.  The Landlord agrees
to keep its books in accordance with generally accepted accounting principles
consistently applied and in such manner as shall reasonably make possible the
verification of the Operating Expenses and Real Estate Taxes for the
Property.  The costs of any audit
referred to herein shall be borne by the Tenant.  Landlord reserves the right to dispute the
results of Tenant’s audit or examination.


 


3.4                               UTILITY
CHARGES.


 


During the Term, the Tenant
shall pay on or before the date the same are due directly to the provider of
the service, all separately metered charges for steam, heat, gas, water, sewer,
electricity, fuel and other services and utilities furnished to the
Premises.  If any of such services are
not separately metered to Tenant, then Tenant shall pay its pro rata share, as
reasonably determined by the Landlord, of such services within ten (10) days
after receiving invoices therefore from Landlord.


 

















 


3.5                               ABOVE-STANDARD
SERVICES.


 


If the Landlord elects to
provide any services to the Tenant as requested by Tenant in addition to those
expressly provided for herein, the Tenant shall pay to the Landlord,  as Additional Rent, the amount billed by the
Landlord for such services at the Landlord’s standard rates as from time to
time in effect and reasonably established. 
If the Tenant has requested that such services be provided on a regular
basis, the Tenant shall, if requested by the Landlord, pay for such services at
the time and in the fashion in which Tenant’s Operating Expenses Allocable to
the Premises are payable.  Otherwise, the
Tenant shall pay for such additional services within thirty (30) days after
receipt of an invoice from the Landlord.


 


3.6                               NO
OFFSETS.


 


Annual Fixed Rent and
Additional Rent shall be paid by the Tenant without any offset, abatement or
deduction whatsoever.


 


3.7                               RENT.


 


The total rent payable under
this Lease shall be deemed to include the aggregate of (i) the Annual
Fixed Rent, (ii) Additional Rent and (iii) all other rent, charges,
fees, and costs allocable to Tenant pursuant to the terms of this Lease.


 


3.8                               SECURITY
DEPOSIT.


 


(a)                                  In this Section 3.8, the following
definitions apply:


 


“Original Amount” means
$60,000.00.


 


“Letter of Credit” means any
original Letter of Credit, and any substitute, replacement, or additional
letter of credit.


 


(b)                                 Simultaneously
with the execution of this Lease, the Tenant shall deliver to and deposit with
the Landlord a security deposit (the “Security Deposit”)
consisting of cash or an irrevocable, unconditional, absolutely “clean” Letter
of Credit in the face amount equal to the Original Amount running to the
Landlord as the sole beneficiary, which Letter of Credit shall in all ways be
satisfactory to the Landlord in its reasonable discretion.  Any Letter of Credit shall have a stated
duration of and shall be effective for at least one year with provision for
automatic successive annual one-year extensions during the Lease Term and for
sixty days thereafter provided that Tenant may replace said letter of credit by
no later than sixty days before its termination.  Tenant shall keep the Letter of Credit in
force throughout the Lease Term and for sixty days after the expiration date or
the earlier termination of the Term, except that if such earlier termination is
based on the Tenant’s default, the Tenant shall keep the Letter of Credit in
force until sixty days after the date when the Term would have expired had it
not been earlier terminated.  Tenant
shall deliver to the Landlord a renewal Letter of Credit no later than thirty
days prior to the expiration date of any Letter of Credit issued under this Section 3.8, and if the Tenant
fails to do so, the Landlord may draw the entire amount of the expiring Letter
of Credit and hold the proceeds in cash as the Security Deposit.  If the 


 

















 


Security
Deposit consists of a Letter of Credit, the Letter of Credit shall be issued by
a Boston commercial bank (or other bank satisfactory to and approved by the
Landlord) which has capital assets of at least $250,000,000 and capital
reserves of at least $7,000,000, and which is a member of the Federal Reserve
System.


 


(c)                                  If, and as soon
as, there shall exist an Event of Default under this Lease (and on the occasion
of each Event of Default if there shall be more than one), the Landlord may
draw upon the Security Deposit at any time and from time to time in such amount
or amounts as may be necessary to cure the default(s) or to reimburse the
Landlord for any sum(s) which the Landlord may have spent to cure the
default(s), and if the Landlord has terminated this Lease due to the Tenant’s
default(s), the Landlord may also draw upon the Security Deposit in such amount
(or all) as may be necessary to obtain any amounts from time to time owed to
the Landlord by the Tenant after termination. 
In the case of each such drawing (except a drawing occurring after
termination or expiration of this Lease), the Tenant shall, on demand, cause
the Security Deposit to be reinstated to the full amount that was required by
this Lease prior to the drawing by causing a similar Letter of Credit,
aggregating said full amount, to be issued to the Landlord.  If at the end of the Lease Term, no Event of
Default shall exist, the Security Deposit, or any balance thereof, shall be
returned to the Tenant or if at the end of the Term of this Lease, an Event of
Default shall exist, then any portion of the Security Deposit not necessary to
cure said Event of Default shall be returned to Tenant but not otherwise.  The Landlord shall be entitled to commingle
the proceeds of any Letter of Credit provided to the Landlord as the Security
Deposit with other funds of the Landlord, and shall not be obligated to pay
interest on the deposit to the Tenant. 
If the Landlord conveys the Landlord’s interest under this Lease, the
Security Deposit, or any part thereof not previously applied, may be turned
over by the Landlord to the Landlord’s transferee, and, if so turned over, the
Tenant agrees to look solely to such transferee for proper application of the
Security Deposit in accordance with the terms of this Lease and the return
thereof in accordance therewith.


 


(d)                                 Upon the
request of the Landlord, from time to time, the Tenant shall make arrangements
satisfactory to the Landlord in its reasonable discretion for the transfer of
Letter of Credit to any successor landlord or mortgagee of the Property, and
from any such mortgagee to the Landlord or any successor mortgagee provided
that Tenant shall not be responsible to pay any fee required in connection with
any such transfer of the Letter of Credit due to the request of the Landlord
more often than annually during the term of this Lease.


 


3.9                               INTENTIONALLY
OMITTED.


 


4.                                      ALTERATIONS.


 


4.1                               CONSENT
REQUIRED FOR TENANT’S ALTERNATIONS.


 


The Tenant shall not make
alterations or additions to the Premises, unless the Tenant shall have first
obtained the Landlord’s prior written consent thereto and approval of the 


 

















 


plans and specifications in each case, which consent
shall not be unreasonably withheld, except that the Landlord’s prior written
consent shall not be required for Minor Alterations.  For purposes hereof, “Minor
Alterations” shall consist of alterations and additions to the
Premises that are not alterations or additions to the exterior of the Premises
including, without limitation, the roof thereof, structural alterations or
additions or alterations or additions to the Base Building Systems (as
hereinafter defined) and that will not cost more than $2,500.00 to perform,
provided that Tenant on each occasion notifies Landlord in advance of all
alterations and on each occasion supplies plans and specs, whether or not they
are deemed herein to be Minor Alterations. 
Prior to commencing any alterations or additions, Tenant shall submit to
Landlord copies of all permits, approvals and plans relating to the performance
of such work.  In the case of Minor
Alterations, such plans may be “schematic plans” and need not have been
prepared or certified by an engineer or architect.  Upon commencing any alterations or additions,
the Tenant shall diligently prosecute the same until completion.  The Tenant shall, in all events, deliver a
complete set of as-built plans to the Landlord upon completion of any
alterations or additions, other than for Minor Alterations.


 


Notwithstanding the
foregoing, if any additions, alterations or improvements shall change the
general character of the Premises or substantially change the basic structure
of the Premises or any other improvement included therein or adversely affect
the value of the Property, the Tenant may make such alterations, addition or
improvement only with the prior written approval of the Landlord.


 


4.2                               OWNERSHIP
OF ALTERATIONS.


 


Except as otherwise
expressly provided in this Section 4.2,
all alterations and additions shall be part of the Premises and owned by the
Landlord, unless at the time of the Landlord’s approval of the plans and
specifications therefor, the Landlord shall specify in writing that such
alterations or additions may or shall be removed upon termination or expiration
of this Lease.  By no later than twenty
(20) days prior to the anticipated time of commencement of work on any such
alteration or addition, Tenant may submit a written request to Landlord seeking
Landlord’s determination whether such item is to be removed at the expiration
or earlier termination of this Lease, and Landlord will respond reasonably to
such request in writing within ten (10) days after receipt of such
request.  All equipment and personal
property not attached to the Premises and trade fixtures susceptible of being
removed from the Premises without substantial injury thereto shall remain the
property of the Tenant and shall be removed by the Tenant upon termination or
expiration of this Lease.  The Tenant
shall repair any damage caused by the removal of any alterations, additions,
trade fixtures or personal property from the Premises.


 


4.3                               CONSTRUCTION
REQUIREMENTS FOR ALTERATIONS.


 


All construction work by the
Tenant shall be done at the Tenant’s sole cost and expense except as expressly
otherwise set forth herein and in a good and workmanlike manner, employing only
materials of equal or better quality than those installed in the Premises as of
the Commencement Date, and in compliance with all applicable laws and all
lawful ordinances, regulations and orders of governmental authority and
insurers of the Premises and the Rules and Regulations.  The Landlord or the Landlord’s authorized
agent may (but without any implied 


 

















 


obligation to do so) inspect the work of the Tenant
at reasonable times.  Except for
installation of furnishings and Minor Alterations, all of the Tenant’s
alterations and additions and installation of furnishings shall be performed by
contractors or workers first approved by the Landlord, which approval the
Landlord agrees not to unreasonably withhold or delay.  The Tenant, before starting any work, shall
secure all licenses and permits necessary therefor and, except as to any Minor
Alterations, shall deliver to the Landlord a copy of all such licenses and
permits (and, upon completion, a copy of the certificate of occupancy (if
required by applicable law)).  The Tenant
also shall deliver to the Landlord a copy of the building permit and
certificate of occupancy for any Minor Alternations for which they are required
by applicable law.  The Tenant shall
cause each contractor to carry worker’s compensation insurance in statutory
amounts covering all the contractors’ and subcontractors’ employees and
comprehensive general public liability insurance with limits not less than
$1,000,000 (individual)/$3,000,000 (occurrence) (all such insurance to be
written in companies approved reasonably by the Landlord and naming as
additional insureds the Landlord, the Landlord’s managing agent, any mortgagee
of whose identity the Tenant shall have been given notice, and the Tenant, as
well as the contractors, and to deliver to the Landlord certificates of all
such insurance.  Each policy of general
public liability insurance shall be non-cancelable and non-amendable with
respect to the Landlord, and any such mortgagees without 30 days’ prior notice
to the Landlord, and such mortgagees.  At
the Landlord’s request, the Tenant shall, before work is started on any
improvements or alterations made by the Tenant, secure assurances satisfactory
to the Landlord protecting the Landlord against claims arising out of the
furnishing of labor and materials therefor. 
In the course of any work being performed by the Tenant or about the
Property, the Tenant agrees to use labor compatible with that being employed by
the Landlord for work on the Property and not to employ or permit the use of
any labor or otherwise take any action which might result in a labor dispute
involving personnel providing services on the Property.


 


4.4                               PAYMENT
FOR TENANT ALTERATIONS.


 


The Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by the
Tenant, its agents, employees or independent contractors, and to prevent any
liens for labor or materials performed or furnished in connection therewith
from attaching to the Premises or the Property and promptly to discharge
(whether by payment, bonding off or otherwise) any such liens which may so
attach.  If any such lien shall be filed
against the Premises or the Property and the Tenant shall fail to cause such
lien to be discharged within five (5) business days after receipt of
notice of the filing thereof, the Landlord may cause such lien to be discharged
by payment, bond or otherwise, without investigation as to the validity thereof
or as to any offsets or defenses which the Tenant may have with respect to the
amount claimed.  The Tenant shall
reimburse the Landlord, upon demand, as Additional Rent, for any reasonable
cost so incurred, including, without limitation, reasonable attorneys’ fees in
connection therewith, it being expressly agreed that such discharge by Landlord
shall not be deemed to waive or release the default of the Tenant in not
discharging such lien.  Tenant shall
indemnify and hold the Landlord harmless from and against any and all expenses,
liens, claims, liabilities and damages based on or arising, directly or
indirectly, by reason of the making of any alterations, additions or
improvements by or on behalf of the Tenant, which obligation shall survive the
expiration or termination of this Lease.


 

















 


4.5                               AS
IS.


 


Tenant is leasing the
Premises in an “AS IS” condition, without any warranties, express or implied,
with regard to the condition of the Premises, and the Landlord shall not make,
is not hereby making and has not made any covenants, guaranties,
representations or warranties, express, implied or by law, oral or written, of
any kind or character, as to the nature, condition, construction, workmanship,
state of repair, development, function, valuation, profitability, income,
operations, expenses, tax consequences, title, availability of access, ingress
or egress, compliance with laws, rules, regulations and ordinances,
habitability, merchantability, or fitness, suitability or feasibility for any
purpose of the Property; all of the foregoing being hereby expressly disclaimed
by the Landlord and waived by the Tenant. 
The Tenant has entered into this Lease without relying on any statement
or representation by the Landlord or its agents.  The Tenant represents and warrants that the
Tenant has relied solely on its own expertise and that of its consultants in
leasing the Premises.


 


5.                                      RESPONSIBILITY
FOR CONDITION OF PREMISES; LANDLORD’S SERVICES.


 


5.1                               MAINTENANCE
AND REPAIR OBLIGATIONS OF THE LANDLORD.


 


(a) Except as otherwise
provided in Article 8, the Landlord
shall maintain, clean, repair and make all necessary replacements to (i) the
Property Common Areas, and (ii) the roof, floor slabs, structural
supports, structure of the building (including the plumbing, mechanical, HVAC
(including air conditioning) and electrical systems serving other portions of
the Property in addition to the Premises as they may be expanded hereunder from
time to time) and exterior walls of the Premises, in each case as may be
necessary to keep and maintain the same in good order, condition and repair.


 


5.2                               MAINTENANCE
AND REPAIR OBLIGATIONS OF TENANT; SURRENDER.


 


The Tenant shall keep neat
and clean and maintain in good order, condition and repair the Premises,
excepting only reasonable wear and tear and damage by fire or other casualty
and as a consequence of the exercise of the power of eminent domain, and those
repairs for which the Landlord expressly is responsible pursuant to Section 5.1.  The
Tenant covenants and agrees that, upon the termination or expiration of this
Lease, the Tenant shall surrender the Premises and, to the extent required or
permitted by Section 4.2, all alterations
and additions thereto made by Tenant during the Term of this Lease, broom swept
clean and in the aforesaid condition, first removing all goods and effects of
the Tenant and, to the extent required or permitted by Section 4.2,
all alterations and additions made by the Tenant and repairing any damage
caused by such removal and restoring the Premises.  The Tenant shall not permit or commit any
waste, and the Tenant shall be responsible for the cost of repairs which may be
made necessary by reason of damage to the roof and exterior walls of the
Premises and Property Common Areas reasonable wear and tear excepted, by Tenant’s
contractors, licensees, invitees, agents, servants or employees or others for
whom the Tenant is legally responsible (collectively, with the Tenant, (‘Tenant’s Responsible Parties”), which shall be payable to the
Landlord upon demand as Additional Rent.


 

















 


5.3                               LANDLORD’S
SERVICES; LANDLORD DELAY; INTERRUPTION.


 


The Landlord shall provide
lighting, maintenance and snow removal for the Property Common Areas and
landscaping maintenance services in and for the Property so as to maintain the
Property in good and operational condition similar to that of comparable
properties, well maintained, in the area in which the Property is located.  The cost of all such services shall be included
in Operating Expenses.  Landlord shall
provide heating and cooling as may be required to provide reasonably
comfortable space temperature and ventilation for occupants of the Premises
during the hours of operation of 8:00 a.m. to 6 p.m., Monday through
Friday and of 9:00 a.m. to 12:00 p.m. on Saturday.  Landlord shall also provide hot water for
lavatory purposes and cold water for drinking, lavatory and toilet
purposes.  The cost of such heating,
cooling, hot water and cold water shall be paid by Tenant, except for that
which is used in the Property Common Areas, which cost shall be included in
Operating Expenses.  In case the 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 the Landlord’s part by reason of any External Cause, the Landlord shall not
be liable to the Tenant therefor, nor, except as expressly otherwise provided
in this Lease, shall the Tenant be entitled to any abatement or reduction of
rent by reason thereof, nor shall the same give rise to a claim in the Tenant’s
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Premises.  The Landlord
also reserves the right to take any steps necessary to comply with applicable
law, ordinances, codes and regulations. 
In no event shall the Landlord be liable to the Tenant for, nor, except
as expressly otherwise provided in this Lease, shall the Tenant be entitled to
any abatement or reduction of rent by reason of the unavailability of heat,
light or any utility or any service, nor shall the same give rise to any claim
in the Tenant’s favor that the same constitutes actual or constructive, total,
or partial, eviction from the Premises.


 


5.4                               ADA
COMPLIANCE.


 


The Tenant and the Landlord
acknowledge that, in accordance with the provisions of the Americans with
Disabilities Act of 1990 (42 U.S.C. §12101, as amended) and the regulations
promulgated thereunder (the “ADA”),
responsibility for compliance with the terms and conditions of the ADA may be
allocated as between the Landlord and the Tenant.  The Landlord and the Tenant therefore agree
that the Landlord shall be responsible for compliance with the ADA with respect
to the Property Common Areas, including, but not limited to, the sidewalks,
parking areas, exterior walkways, access into the building, interior stairways,
hallways and elevators and, except as set forth above, the Tenant shall be
responsible for compliance with the ADA with respect to the Premises.


 


5.5                               SIGNAGE.


 


The Landlord shall provide,
at its sole cost and expense, (a) a principal sign for the Tenant’s
business on the principal entranceway into the Premises from the main lobby in
the Building and on the Lobby Directory. 
The location, design and installation of such sign shall be determined
by Landlord in its sole discretion, reasonably exercised.


 


5.6                               TRASH
REMOVAL.


 


The Landlord shall
coordinate the removal of all of the Tenant’s trash and refuse associated with
the Permitted Use from the Premises to the trash receptacles on site designated
by Landlord and shall arrange for regular removal thereof so as to keep and
maintain the 


 

















 


Premises and the Property in neat, clean and good
condition.  The cost of said trash
removal from the Premises and the Property will be billed to and paid for by
Tenant separately and apart from Operating Expenses.  Notwithstanding the foregoing, the Tenant
shall be responsible for proper disposal off the Property of all Hazardous
Materials used or brought onto the Premises or the Property by the Tenant or
any Tenant Responsible Party.


 


6.                                      CERTAIN
COVENANTS.


 


6.1                               PERMITTED
USES.


 


The Tenant shall occupy the
Premises only for the Permitted Uses, and shall not injure or deface the
Premises or the Property, nor permit in the Premises any auction sale.  The Tenant shall not permit in the Premises
any nuisance, or the emission from the Premises of any objectionable noise,
odor or vibration, nor do or permit any act or thing on the Premises or the
Property which is contrary to any requirement of law, or which constitutes a
public or private nuisance, or which might impair the value of the Property, or
which is liable to invalidate or increase premiums for any insurance on the
Premises or the Property or their contents (unless the Tenant agrees to pay the
Landlord for the total increased cost of such premiums), or which is liable to
render necessary any alteration or addition to the Premises or the Property,
nor commit or permit any waste in or with respect to the Premises or the
Property.


 


6.2                               LAWS
AND REGULATIONS AND OTHER COMPLIANCE; LIENS.


 


The Tenant shall comply with
all applicable laws, statutes, codes, ordinances, orders, judgments, decrees,
injunctions, regulations, rules, permits, licenses, authorizations, directions
and requirements of all governments, departments, commissions, boards, courts,
authorities, agencies, officials and officers, foreseen or unforeseen, ordinary
or extraordinary in effect from time to time applicable with respect to the
Tenant’s use and occupancy of the Premises, including, without limitation, by
making, any alterations to the Premises required as a result of the Tenant’s
specific use and occupancy, subject to the provisions of this Lease regarding
alterations by the Tenant.  Without
limitation of the foregoing, the Tenant shall comply with applicable local,
state and federal laws, ordinances, regulations and orders relating to
industrial hygiene, environmental protection, and public health and safety and
any applicable permits, licenses, and other governmental or regulatory
approvals regarding the discharge or emission of regulated materials or wastes
in connection with Tenant’s specific operations and occupancy at the
Premises.  Tenant shall pay all costs
related to such compliance, where such compliance requirements are triggered by
Tenant’s specific use and are not triggered by the inherent character of the
space as used for office and warehouse uses, respectively.  The Tenant shall comply with all instruments
of record which now or at any time hereafter may be applicable to the Premises
or any part thereof, or any of the adjoining sidewalks, curbs, fences and
vaults, if any, or the ownership or use of any thereof, of which Tenant has
received actual written notice, provided that the same do not materially adversely
affect the rights and remedies of Tenant pursuant to this Lease; conform to all
requirements of all policies of insurance covering the Premises or insuring the
Landlord or the Tenant in connection therewith and the standards recommended by
the Boston Board of Fire Underwriters applicable to the Tenant’s use and
occupancy of the Premises; and not do or permit to be done on or in connection
with the Leased Premises any act or thing which might impose any liability or
responsibility upon the Landlord


 






 










 


except those arising from Permitted Uses expressly
permitted hereunder, in which case such uses may be exercised but Tenant hereby
agrees mat it assumes any and all liability or responsibility therefor; and not
to subject the Leased Premises to any mortgage, lien, encumbrance or charge,
and to discharge any such mortgage, lien, encumbrance or charge which may
arise.  The Tenant shall, at the Tenant’s
sole cost and expense, obtain all permits, licenses and approvals required by
any governmental authority for the Tenant’s specific use and activities for
Permitted Uses on the Premises.


 


6.3                               RULES
AND REGULATIONS.


 


The Tenant shall not
unreasonably obstruct in any manner any portion of the Property not hereby
leased; and shall comply with all reasonable rules and regulations of
uniform application to all occupants of the Property now or hereafter made by
the Landlord, of which the Tenant has been given notice, for the care and use
of the Buildings, and the Property Common Areas (the “Rules and
Regulations”).  The initial Rules and
Regulations are attached hereto as Exhibit E.  The Landlord shall not be liable to the
Tenant for the failure of other occupants of the Property to conform to any of
the Rules and Regulations, but the Landlord shall enforce such Rules and
Regulations in a non-discriminatory and uniform manner.


 


6.4                               SAFETY
COMPLIANCE.


 


The Tenant shall keep the
Premises equipped with all safety appliances required by law or ordinance or
any other regulations of any public authority or reasonable insurance
underwriting requirements of which the Tenant has been given reasonable prior
notice and procure all licenses and permits so required because of such use
and, if requested by the Landlord, do any work so required because of such use
and such requirements, it being understood that the foregoing provisions shall
not be construed to broaden in any way the Tenant’s Permitted Uses.


 


6.5                               LANDLORD’S
ENTRY.


 


The Tenant shall permit the
Landlord, its agents and any mortgagee, upon no less than 24 hours prior notice
except in the case of emergencies, to enter the Premises at all reasonable
hours for the purpose of inspecting or of making repairs to the same, and for
the purpose of showing the Premises to prospective purchasers, investors and
mortgagees during normal business hours, and to prospective tenants during the
last twelve (12) months of the Term.  In
connection with such entry, the Landlord shall exercise reasonable efforts to
minimize any interference with the Tenant’s use of the Premises.  All parties entering the Premises in
accordance with this Section 6.5 shall comply with any confidentiality
obligations imposed by Tenant.


 


6.6                               PERSONAL
PROPERTY TAX.


 


The Tenant shall pay
promptly when due all taxes which may be imposed upon the Tenant’s personal
property (including, without limitation, fixtures and equipment) in the
Premises to whomever assessed.


 

















 


6.7                               ASSIGNMENT
AND SUBLEASES.


 


(a)                                  The Tenant
covenants and agrees that neither this Lease nor the term and estate hereby
granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred, whether voluntarily,
involuntarily, by operation of law or otherwise, and that neither the Premises
nor any part thereof will be encumbered in any manner by reason of any act or
omission on the part of the Tenant, or used or occupied or permitted to be used
or occupied, by anyone other than the Tenant, or for any use or purpose other
than a Permitted Use, or be sublet (which term, without limitation, shall
include granting of concessions, licenses and the like), or be offered or
advertised for assignment or subletting by the Tenant or any person acting on
behalf of the Tenant, without, in each case, the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed and, in the event that the Landlord consents to any subletting, no
subtenant in any event shall be permitted to further assign, sublet or
otherwise transfer its interest under this Lease, except in accordance with this
section in any manner described in this paragraph (a).  Any reasonable costs incurred by Landlord
associated with the Landlord’s approval of any sublease or assignment shall be
wholly paid for by the Tenant In determining whether or not to consent to any
proposed assignment, transfer or sublease, the Landlord shall review all
relevant factors, including, but in no way limited to whether the assignee,
subtenant or other successor to the Tenant’s interest herein has a net worth,
computed in accordance with generally accepted accounting principles
consistently applied, at least equal to the greater of (1) the net worth
of the Tenant immediately prior to such assignment, sublease or transfer, or (2) the
net worth of the Tenant herein named on the date of this Lease. At the time
that a completed final but unsigned sublease document, the terms and contents
of which are agreed to by the parties thereto, is submitted to Landlord by
Tenant for consent, the Landlord shall have 15 business days to provide notice
that it consents to or rejects said sublease. 
Notwithstanding the foregoing, there shall be no partial assignment or
sublet of this lease.  Notwithstanding
the provisions hereof, in the event that Tenant desires to vacate the Building
and proposes a Sublease for the space that Tenant then occupies, Landlord shall
have the option (but not the obligation) to terminate the Lease with respect to
the Premises effective upon the date of such proposed Sublease and continuing
for the Term by giving Tenant notice of such termination within 10 business
days after Landlord’s receipt of Tenant’s request, provided that if Landlord
terminates this Lease, it shall recapture the Premises subject to any approved
Subleases then in place.  If Tenant’s
aggregate monthly rent and other charges payable to Tenant under and in
connection with such sublease (including without limitation any amounts paid
for leasehold improvements or on account of Tenant’s costs associated with such
Sublease) exceed the monthly rent and other charges payable hereunder with
respect to the space in question, Tenant shall pay to Landlord, as an
additional charge, one half the surplus of the amount of such excess on a
monthly basis net of reasonable transaction costs including but not limited to
brokerage commissions, legal fees, and architectural and engineering costs,
etc.. If the amount of rent and other charges payable under a sublease or the
comparable value given is not readily ascertainable, such amount may, at
Landlord’s option, be deemed to equal the fair market rent then obtainable for
the space in question.  Notwithstanding
any assignment or sublease, the original Tenant named herein shall remain
directly and primarily obligated under this Lease.  Subject to the provisions of paragraph (b) hereof,
Landlord hereby agrees that Tenant shall have the right to assign its interest
in this Lease or sublet all or part of the leased Premises without Landlord’s
consent, at any time and for 


 

















 


any of the then remaining portions of the unexpired
term of this Lease to any parent, subsidiary, affiliate or any other entity in
connection with a merger, consolidation or acquisition of Tenant provided that
the assignee has a net worth of equal or greater value than Tenant.  Notwithstanding any such permitted assignment
or subletting, Tenant shall remain primarily and fully liable for the
obligations of Tenant hereunder, including, without limitations, the obligation
to pay Rent and other amounts provided for in this Lease.


 


(b)                                 Acceptance of
Rent.  If this Lease be assigned, or
if the Premises or any part thereof be sublet or occupied by anyone other than
the Tenant, whether or not in violation of the terms and conditions of this
Lease, the Landlord may, at any time and from time to time, collect rent and
other charges from the assignee, subtenant or occupant, and apply the net
amount collected to the rent and other charges herein reserved, but no such
assignment, subletting, occupancy, collection or modification of any provisions
of this Lease shall be deemed a waiver of this covenant, or the acceptance of
the assignee, subtenant or occupant as a tenant or a release of the Tenant from
the further performance of covenants on the part of the Tenant to be performed
hereunder.  Any consent by the Landlord
to a particular subletting or occupancy shall not in any way diminish the
prohibition stated in paragraph (a) or
the continuing liability of the original named Tenant.  No assignment or subletting hereunder shall
relieve the Tenant from its obligations hereunder, and the Tenant shall remain
fully and primarily liable therefor.  No
assignment or subletting shall expand the signage rights provided for by this
Lease.


 


(c)                                  In the event
Landlord consents to any assignment or subletting one half of any rent payable
to Tenant in excess of the Annual Fixed and Additional Rent (i.e.  Tax Increases and Operating Cost Increase
payable by Tenant under this Lease) shall be the sole property of Landlord,
payable as Additional Rent upon demand of Landlord; however, prior to
calculating the amount of such excess rent to be shared by Landlord and Tenant,
Tenant shall be entitled to net out (and retain) as amortized over the
remaining term of the Lease reasonable transaction costs.


 


7.                                      INDEMNITY
AND INSURANCE.


 


7.1                               TENANT’S
INDEMNITY.


 


To the maximum extent this
agreement may be made effective according to law, and except as otherwise
expressly provided in this Lease, the Tenant agrees to indemnify and save
harmless the Landlord from and against all claims, loss, or damage of whatever
nature to the extent (except to the extent that the same results from the gross
negligence or intentional misconduct of Landlord, or the Landlord Responsible
Parties (as hereinafter defined):  (i) arising
from any negligent act or omission relating to an express obligation under this
Lease or willful misconduct of any Tenant Responsible Party or any accident,
injury to or death of persons or loss of or damage to property whatsoever, in
each case occurring during the Term and thereafter, so long as the Tenant is in
occupancy of any part of the Premises, and in each case occurring in the
Premises, or (ii) arising from any accident, injury or damage occurring
outside the Premises but in or on the Property Common Areas, or any other areas
within the Buildings or on the Land, where such accident, injury or damage
results, from the Tenant’s use or occupancy of the Premises or from any act or
omission relating to an express obligation under this Lease on the 


 

















 


part of any Tenant Responsible Party; provided that
the foregoing indemnity shall not include any cost or damage to the extent
arising from the negligence or willful misconduct of the Landlord or the
Landlord’s contractors, licensees, invitees, agents, servants or employees or
others for whom the Landlord is legally responsible (collectively, with the
Landlord, “Landlord Responsible Parties”).  This indemnity and hold harmless agreement
shall include indemnity against reasonable attorneys’ fees and all other costs,
expenses and liabilities incurred or in connection with any such claim or
proceeding brought thereon, and the defense thereof.


 


7.2                               LIABILITY
INSURANCE.


 


The Tenant agrees to
maintain in full force from the date upon which the Tenant first enters the
Premises for any reason, throughout the Term, and thereafter, so long as the
Tenant is in occupancy of any part of the Premises:


 


(a)                                  a policy of
comprehensive general liability insurance under which the Landlord (and the
Landlord’s managing agent and any holder of a mortgage on the Property of whom
the Tenant is notified in writing by the Landlord) are named as additional
insureds, and under which the insurer provides a contractual liability
endorsement insuring against all cost, expense and liability arising out of or
based upon any and all claims, accidents, injuries and damages described in Section 7.1, in the broadest form of such coverage from
time to time available at normal rates; and


 


(b)                                 workers’
compensation insurance as required by state law.


 


Each such policy shall be
noncancellable and nonamendable with respect to the Landlord, its managing
agent and such mortgagees, without thirty (30) days’ prior written notice to
the Landlord, its managing agent and such mortgagees and, at the election of
the Landlord, either a certificate of insurance or a duplicate original policy
shall be delivered to the Landlord prior to the Commencement Date or any entry
into the Premises by the Tenant prior to the Commencement Date, and in any
event, not less than thirty (30) days prior to expiration.  The minimum limits of liability of such
comprehensive general liability insurance shall be Three Million Dollars
($3,000,000.00) for combined bodily injury (or death) and damage to property
(per occurrence), or such higher amount as the Landlord reasonably may require
from time to time, taking into account amounts commonly carried by similar
tenants in similar buildings in the vicinity of the Property.  Such liability limits may be satisfied by
adding Tenant’s so-called “umbrella” liability coverage to its base general
liability insurance.  The Landlord shall
carry such liability insurance with respect to operations at the Property as
may from time to time reasonably be deemed prudent by the Landlord or required
by any mortgagee holding a first mortgage thereon.  All such insurance shall be written by
companies of recognized financial standing which are authorized to do an
insurance business in Massachusetts. 
Such insurance may be obtained by the Tenant by endorsement on its
blanket insurance policies. Every such policy shall contain, to the extent
obtainable at normal rates, an agreement by the insurer that any loss otherwise
payable thereunder shall be payable notwithstanding any act or negligence of
the Landlord, or the Tenant which might, absent such agreement, result in a
forfeiture of all or a part of such insurance payment and notwithstanding (i) the
occupation or use of the Premises for purposes more hazardous than permitted by
the terms of such policy, (ii) any foreclosure or other 


 

















 


action or proceeding taken by any of the Landlord’s
mortgagees of which the Tenant has notice pursuant to any provision of any such
mortgagees’ mortgage upon the happening of an event of default, as defined
therein, or (iii) any change in title or ownership of the Property. The
Tenant shall deliver to the Landlord promptly after the execution and delivery
of this Lease the original or duplicate policies or certificates of the
insurance required to be carried by Tenant hereunder, and the Tenant shall,
within thirty (30) days prior to the expiration of any such insurance, deliver
other original or duplicate policies or other certificates of insurance
evidencing the renewal of such insurance. 
The Tenant shall not obtain or carry separate insurance concurrent in
form or contributing in the event of loss with that required hereunder unless
the Landlord is included therein as a named insured.  The Tenant shall promptly notify the Landlord
whenever any such separate insurance is obtained and shall deliver to the Landlord
the policy or policies or certificates evidencing the same.


 


Should the Tenant fail to
effect, maintain or renew any insurance provided for in this Section, or to pay
the premium therefor, or to deliver to the Landlord any of such policies or
certificates, then and in any of said events the Landlord, at its option, but
without obligation so to do, may, upon five (5) days notice to the Tenant
of its intention to do so, procure such insurance, and any sums expended to
procure such insurance shall be Additional Rent hereunder and shall be repaid
by the Tenant within five (5) days following the date on which the Tenant
receives notice that such expenditure has been made by the Landlord.


 


7.3                               TENANT’S
RISK.


 


The Tenant agrees to use and
occupy the Premises and to use such other portions of the Property as the
Tenant is herein given the right to use at the Tenant’s own risk.  The Landlord shall not be liable to the
Tenant, its employees, agents, invitees or contractors for any damage, injury,
loss, compensation, or claim (including, but not limited to, claims for the
interruption of or loss to the Tenant’s business) except to the extent that the
same arises from the gross negligence or intentional misconduct of the
Landlord, based on, arising out of or resulting from any cause whatsoever,
including, but not limited to, repairs to any portion of the Premises or the
Property, any fire, robbery, theft, mysterious disappearance and/or any other
crime or casualty, the actions of any other tenants of the Property or of any
other person or persons, or any leakage in any part or portion of the Premises
or the other Buildings, or from water, rain or snow that may leak into, or flow
from any part of the Premises or the other Buildings, or from drains, pipes or
plumbing fixtures in the Premises or the other Buildings.  Any goods, property or personal effects
stored or placed in or about the Premises shall be at the sole risk of the
Tenant, and neither the Landlord nor the Landlord’s insurers shall in any
manner be held responsible therefor, except to the extent that the same arises
from the gross negligence or intentional misconduct of Landlord.  Notwithstanding the foregoing, the Landlord
shall not be released from liability for any injury, loss, damages or liability
to the extent arising from any gross negligence or willful misconduct of the
Landlord Responsible Parties; provided, however, that in no event shall the
Landlord have any liability to the Tenant based on any loss with respect to or
interruption in the operation of the Tenant’s business, except and only to the
extent expressly so provided in this Lease. 
The Tenant shall carry “all-risk” property insurance on a “replacement
cost” basis, insuring the Tenant’s removable property and any alterations made
by the Tenant pursuant to Article 4,
to the extent that the same have not become the property of the Landlord.


 

















 


7.4                               PROPERTY
INSURANCE.


 


The Landlord shall carry
such property insurance upon and with respect to the Premises (including the
improvements to be made to the Premises pursuant to Section 2.9 of this
Lease) and the Property Common Areas as may from time to time reasonably be
deemed prudent by the Landlord or required by any mortgagee holding a first
mortgage thereon, and in any event, an “all risk” property insurance policy (or
its equivalent from time to time), on a full replacement cost basis, subject to
a commercially reasonable deductible and exclusive of foundations, site
preparation and other nonrecurring construction costs.  The Landlord’s insurance pursuant to this Section 7.4 may be in the form of a blanket policy, so
long as it provides for an agreed amount with respect to the Premises and the
Property Common Areas.  The Tenant shall
carry property insurance upon and with respect to all of its tenant
improvements (other than, the tenant improvements to be made to the Premises
pursuant to Section 2.9 of this Lease, which shall be Landlord’s
responsibility to insure), fixtures, equipment and personal property located on
the Premises, insuring against loss by fire and other risks which are required
to be insured against by the Landlord.


 


7.5                               WAIVER
OF SUBROGATION.


 


Any insurance carried by
either party under this Lease with respect to the Buildings, the Land, the
Premises, parking facilities or any property therein or occurrences thereon
shall, without further request by either party, if it can be so written without
additional premium, or with an additional premium which the other party elects
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, including, without limitation, injury or loss caused
by negligence of such other party, due to hazards covered by insurance
containing such clause or endorsement to the extent of the indemnification
received thereunder.


 


7.6                               INDEMNITY
PROCEDURAL PROVISIONS.


 


The following provisions
shall apply to the indemnities provided for by this Lease.  For purposes of this section, the party
obligated to provide an indemnity hereunder is referred to as the “Indemnitor”,
and the party benefited by the indemnity is referred to as the “Indemnified
Party.”


 


(a)                                  An Indemnitor
shall have no obligation of indemnity hereunder with respect to any claim,
suit, indemnity or proceeding hereunder unless a reasonably prompt written
notice is given to the Indemnitor by the Indemnified Party after the
Indemnified Party receives actual notice of the making of any claim or the
commencement of any suit, action or proceeding giving rise or potentially
giving rise to the liability of the Indemnitor hereunder (an “Indemnified Claim”).


 


(b)                                 The Indemnitor
shall be entitled to participate in, and assume sole control over, the defense
of any such Indemnified Claim with counsel at its own expense; provided,
however, that (i) the Indemnified Party shall be entitled to participate
in the defense and to employ counsel at its own expense to assist in such
defense; and (ii) the Indemnitor shall obtain 


 

















 


the prior written approval of the Indemnified Party,
which shall not be unreasonably withheld or delayed, before entering into any
settlement or ceasing to defend against any such Indemnified Claim, if pursuant
to or as a result of such settlement or cessation, injunctive or other
equitable relief would be imposed against the Indemnified Party.  After written notice by the Indemnitor to the
Indemnified Party of the Indemnitor’s election to assume control of the defense
of any such Indemnified Claim pursuant to the terms hereof, the Indemnitor
shall not be liable to any Indemnified Party hereunder for any expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation, provided, however, that
if the Indemnitor fails to take reasonable steps necessary to defend diligently
such Indemnified Claim within twenty (20) calendar days after receiving written
notice from an Indemnified Party that such Indemnified Party believes that the
Indemnitor has failed to take such steps, such Indemnified Party may assume its
own defense, and the Indemnitor will be liable for all reasonable costs and expenses
paid or incurred in connection therewith. 
Without the prior written consent of the Indemnified Party, the
Indemnitor will not enter into a settlement of any Indemnified Claim that would
lead to liability or create any financial or other obligation on the part of
the Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder.  If a firm
offer is made to settle an Indemnified Claim without leading to liability or
the creation of a financial or other obligation on the part of an Indemnified
Party, and the Indemnitor desires to accept and agree to such offer, the
Indemnitor will give written notice to such Indemnified Party to that
effect.  If such Indemnified Party fails
to consent to such firm offer within ten (10) calendar days after its
receipt of such notice, such Indemnified Party may continue to contest or
defend such Indemnified Claim and, in such event, the maximum liability of the
Indemnitor as to such Indemnified Claim will not exceed the amount of such
settlement offer, plus reasonable costs and expenses (not including expenses of
settlement) paid or incurred by such Indemnified Party through the end of such
ten (10) calendar day period.  In no
event shall any Indemnified Party settle any claim for which any Indemnified
Party seeks indemnification hereunder without the prior written consent of the
Indemnitor.


 


(c)                                  In any
proceeding involving the Indemnified Claim of any third party, the Indemnitor
and each Indemnified Party shall cooperate fully in the defense of any such
claim.  Without limiting the generality
of the foregoing, each Indemnified Party shall furnish the Indemnitor such
documentary or other evidence as is then in its possession as may be reasonably
requested by the Indemnitor for the purpose of defending any such Indemnified
Claim.


 


(d)                                 Any notices to
an Indemnified Party hereunder shall be given pursuant to the notices provision
hereof.


 


8.                                      CASUALTY
AND EMINENT DOMAIN.


 


8.1                               RESTORATION
FOLLOWING CASUALTIES.


 


If, during the Term, a
portion of the Premises or any of the Property Common Areas shall be damaged by
fire or other casualty (“Damaged Area”),
subject to the exceptions and limitations provided below, the Landlord shall
proceed promptly to exercise diligent efforts to restore the Damaged Area to
substantially the condition thereof at the time of such damage, but the
Landlord shall not be responsible for delay in the Landlord’s receipt of
insurance 


 

















 


proceeds or any delay in such restoration which may
result from any External Cause.  Provided
that Landlord has complied with Section 7.4 hereof, the Landlord shall
have no obligation to expend in the reconstruction of the Damaged Area more
than the actual amount of the insurance proceeds actually received by the
Landlord with respect to the fire or other casualty plus the amount of any
deductible.  Any restoration of the
Damaged Area shall be altered to the extent necessary to comply with then
current laws and applicable codes. 
Further, the Landlord shall have no obligation to repair or restore any
tenant improvements made by the Tenant (other than the improvements made to the
Premises pursuant to Section 2.9 hereof and then only to the extent such
improvements are insured and that adequate insurance proceeds are released to
Landlord to pay for such repairs or restoration) or any of the Tenant’s trade
fixtures or personal property.


 


8.2                               TERMINATION
ELECTIONS.


 


In the event that (a) at
any time during the Term the Premises is damaged by fire or other casualty such
that the damage cannot be substantially restored within one hundred twenty
(120) days after the casualty, or (b) at any time during the last year of
the Term the Premises are damaged by fire or other casualty such that the
damage cannot be substantially restored within one hundred twenty (120) days
after the casualty (either such event, a “Substantial Casualty”),
Landlord shall have the right, at any time within thirty (30) days after the
casualty to terminate this Lease by giving written notice to the Tenant, and,
in addition, if the Landlord’s mortgagee or other lender refuses in the event
of a Substantial Casualty to make the insurance proceeds available to the
Landlord for repair and restoration, the Landlord shall have the right, at any
time within thirty (30) days after receiving notice from the mortgagee or other
lender of its refusal to release the insurance proceeds, but in no event later
than thirty (30) days following the casualty, to terminate this Lease by giving
written notice to the Tenant.


 


8.3                               CASUALTY
AT EXPIRATION OF LEASE.


 


Notwithstanding anything to
the contrary contained in this Lease, if the Premises shall be damaged by fire
or casualty in such a manner that the Premises cannot, in the ordinary course,
reasonably be expected to be repaired within sixty (60) days from the commencement
of repair work and such damage occurs within the last twelve (12) months of the
Term (as the same may have been extended prior to such fire or casualty),
either party shall have the right, by giving notice to the other not later than
forty-five (45) days after such damage, to terminate this Lease, whereupon this
Lease shall terminate as of the date of such notice.


 


8.4                               EMINENT
DOMAIN.


 


Except as hereinafter
provided, if the Premises, or such portion thereof (or the access thereto
unless comparable replacement access is provided) shall be taken by
condemnation or right of eminent domain as to materially impair (if
reconstructed to the maximum extent practicable in the circumstances) the
continued conduct of the Tenant’s business at the Premises, or the Property
Common Areas, or such portion thereof as to render the Premises inaccessible
such that the continued conduct of the Tenant’s business at the Premises is
materially impaired, and the Landlord has no reasonable means of remedying or
replacing said problem within one hundred eighty (180) days after the date of
such taking, the Tenant or Landlord shall have the right to terminate this
Lease by notice to the other of its desire to do so, 


 

















 


provided that such notice is given not later than
forty-five (45) days after the effective date of such taking.  If so much of the Premises, or so much of the
Property Common Areas, shall be so taken that it would be appropriate to raze
the Premises, or due to the lack of sufficient proceeds from the eminent domain
taking not retained by any mortgagee, what may remain of the Premises and the
Property cannot be put into a condition such that the continued conduct of the
Tenant’s business is not materially impaired, then each of the Landlord and the
Tenant may terminate this Lease by giving notice to the other of its desire to
do so not later than forty five (45) days after the effective date of such
taking.


 


Should any part of the
Premises or the Property be so taken or condemned during the Term, and should
this Lease be not terminated in accordance with the foregoing provisions, the
Landlord agrees to use diligent efforts to put what may remain of the Premises
and the Property into proper condition for use and occupation as nearly like
the condition of the Premises and the Property prior to such taking as shall be
practicable, subject, however, to applicable laws and codes then in existence,
and so long as the proceeds actually received by the Landlord from the eminent
domain taking are sufficient therefor. 
In no event shall the Landlord be obligated to expend more than the
amount of proceeds from the eminent domain taking actually received by the
Landlord on such work.


 


8.5                               RENT
AFTER CASUALTY OR TAKING.


 


If the Premises shall be
damaged by fire or other casualty or taking (and prior to any termination of
this Lease pursuant to this Article 8), the Annual Fixed Rent and
Additional Rent shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by the Tenant.  In the event of a taking which permanently
reduces the area of the Premises or the Property Common Areas, a just
proportion of the Annual Fixed Rent shall be abated for the remainder of the
Term, provided that if any such taking in excess of 20% of said areas occurs
which renders it unusable, Tenant shall have the right to terminate the Lease
with prior written notice to Landlord.


 


8.6                               TAKING
AWARD.


 


Except as otherwise provided
in this Section 8.6, the Landlord shall
have and hereby reserves and excepts, and the Tenant hereby grants and assigns
to the Landlord, all rights to recover for any damages to the Premises and/or
any other part of the Property, and the leasehold interest hereby created, and
to compensation accrued or hereafter to accrue by reason of any such taking, as
aforesaid, and by way of confirming the foregoing, subject to this Section 8.6, the Tenant hereby grants and assigns to
the Landlord, all rights to such damages or compensation.  Nothing contained herein shall be construed
to prevent the Tenant from prosecuting in any condemnation proceedings a claim
for relocation expenses, trade fixtures, equipment and other personal property
of the Tenant that is part of a separate award to the Tenant and which does not
diminish the award payable to the Landlord as a result of the taking.


 


9.                                    DEFAULT.


 


9.1                               TENANT’S
DEFAULT.


 


Each of the following shall
constitute an Event of Default:


 

















 


(a)                                  Failure on the
part of the Tenant to pay the Annual Fixed Rent, Additional Rent or other
charges for which provision is made herein on or before the date on which the
same becomes due and payable, if such conditions continues for ten (10) days
after notice from Landlord to Tenant thereof.


 


(b)                                 Failure on the
part of the Tenant to perform or observe any other term or condition contained
in this Lease if the Tenant shall not cure such failure within thirty (30) days
after notice from the Landlord to the Tenant thereof, provided that in the case
of breaches of obligations under this Lease which are susceptible to cure but
cannot be cured within thirty (30) days through the exercise of due diligence,
so long as the Tenant commences such cure within thirty (30) days and the
Tenant diligently and continuously pursues such cure to completion, such breach
shall not be deemed to create an Event of Default;


 


(c)                                  The taking of
the estate hereby created on execution or by other process of law; or if the
Tenant shall make an assignment for the benefit of creditors or shall be
adjudicated insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future Federal,
State or other statute, law or regulation for the relief of debtors (other than
the appointment of any trustee, receiver or liquidator of the Tenant or of all
or any substantial part of its properties, or shall admit in writing its
inability to pay its debts generally as they become due; or the filing of a
voluntary petition by the Tenant, or the entry of an order for relief against
the Tenant, under Chapter 7, 11, or 13 of 11 U.S.C. §101 et seq., as
amended or replaced from time to time (the “Bankruptcy
Code”); or a petition shall be filed against the Tenant under any
law (other than the Bankruptcy Code) seeking any reorganization, arrangement,
composition readjustment, liquidation, dissolution, or similar relief under any
present or future Federal State or other statute, law or regulation and shall
remain undismissed or unstayed for an aggregate of ninety (90) days (whether or
not consecutive), or if any trustee, conservator receiver or liquidator of the
Tenant or of all or any substantial part of its properties shall be appointed
without the consent or acquiescence of the Tenant and such appointment shall
remain unvacated or unstayed for an aggregate of ninety (90) days (whether or
not consecutive).


 


If an Event of Default shall
occur, then, in any such case the Landlord lawfully may, immediately or at any
time thereafter, give notice to the Tenant specifying the Event of Default, and
this Lease shall come to an end on the date specified therein as fully and
completely as if such date were the date herein originally fixed for the
expiration of the Lease Term, and the Tenant will then quit and surrender the
Premises to the Landlord, but the Tenant shall remain liable as hereinafter
provided.


 


9.2                               DAMAGES.


 


In the event that this Lease
is terminated, at the Landlord’s election, the Tenant covenants to pay to the
Landlord forthwith on the Landlord’s demand as compensation, an amount (the “Lump Sum Payment”) equal to the excess, if any, of the
discounted present value (discounted at an annualized rate of three percent
(3%)) of the total rent reserved for the remainder of the Term over the then
discounted present fair rental value of the Premises for the remainder of the
Term.  In calculating the rent reserved,
there shall be included, in addition to the Annual Fixed


 














 


Rent and all Additional Rent, the value of all other
considerations agreed to be paid or performed by the Tenant over the remainder
of the Term. Without in anyway limiting the foregoing and in addition thereto,
at the Landlord’s election, the Tenant shall pay punctually to the Landlord all
the sums (“Periodic Payments”) and perform
all the obligations which the 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 the Tenant under the foregoing covenant,
the Tenant shall be credited with the amount of the Lump Sum Payment allocable
to the Specific Periodic Payment and the net proceeds of any rent obtained by
reletting the Premises, after deducting all the Landlord’s expenses in
connection with such reletting, including, without limitation, all repossession
costs, brokerage commissions, reasonable fees for legal services and expenses
of reasonably preparing the Premises for such reletting.  The Landlord may (i) relet the Premises,
or any part or parts thereof, for a term or terms which may, at the Landlord’s
option, exceed or be equal to or less than the period which would otherwise
have constituted the balance of the Term, and may grant such concessions and
free rent as the Landlord considers necessary to relet the same and (ii) make
such alterations, repairs and improvements in the Premises as the Landlord
considers necessary to relet the same. 
Landlord shall use reasonable efforts to mitigate its damages in the
event of a termination pursuant hereto.


 


9.3                               CUMULATIVE
RIGHTS.


 


The specific remedies to
which the 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
the Tenant of any provisions of this Lease. 
Nothing contained in this Lease shall limit or prejudice the right of
the Landlord to prove for and obtain in proceedings for bankruptcy, insolvency
or like proceedings by reason of the termination of this Lease, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, the damages are to be proved,
whether or not the amount be greater, equal to, or less than the amount of the
loss or damages referred to above.


 


9.4                               LANDLORD’S
SELF-HELP.


 


If the Tenant shall at any
time default in the performance of any obligation under this Lease, the
Landlord shall have the right, but not the obligation, if Tenant fails to
commence curing the default within not less than ten (10) days’ written
notice from Landlord to the Tenant (except in case of emergency, in which case
no notice need be given), to perform such obligation, and the costs to the
Landlord thereof shall be payable by the Tenant to the Landlord upon demand as
Additional Rent.  The Landlord may
exercise its rights under this Section without waiving any other of its
rights or releasing the Tenant from any of its obligations under this Lease.


 


9.5                               ENFORCEMENT
EXPENSES.


 


Each party shall promptly
reimburse the other party for all costs and expenses, including without
limitation reasonable legal fees, incurred by the other party in enforcing its
remedies under this Lease following the other party’s failure to comply with
its obligations hereunder (in the case of the Tenant, whether or not such
failure constitutes an Event of Default 


 

















 


on the part of the Tenant) together with interest at
the Interest Rate from the date paid by the enforcing party.


 


9.6                               LATE
CHARGES AND INTEREST ON OVERDUE PAYMENTS.


 


In the event that any
payment of Annual Fixed Rent or Additional Rent shall not be paid on the date
the same is due, regardless of whether the same constitutes an Event of
Default, there shall become due to the Landlord from the Tenant, as Additional
Rent and as compensation for the Landlord’s extra administrative costs in
investigating the circumstances of late rent, a late charge of seven and
one-half percent (7.5%) of the amount overdue. 
In addition, any Annual Fixed Rent and Additional Rent not paid within
five (5) days of when due shall bear interest from the date due to the
Landlord until paid at the variable rate (the “Default Interest
Rate”) equal to the higher of (i) the rate from time to time at
which interest accrues on amounts not paid when due under the terms of the
Landlord’s first mortgage financing for the Premises, as from time to time in
effect, and (ii) one hundred and fifty percent (150%) of the Interest
Rate, but in no event higher than the maximum rate permitted by law.


 


9.7                               CONSEQUENTIAL
DAMAGES.


 


Notwithstanding anything in
this Lease to the contrary, in no event shall either party be liable to the
other under this Lease for incidental, indirect, special or consequential
damages of any kind or nature regardless of the form of action through which
such damages are sought except in the event that Tenant holds over in the
Premises beyond the expiration or earlier termination of the Term.


 


10.                               ENVIRONMENTAL
MATTERS.


 


10.1                        TENANT’S
USE OF HAZARDOUS MATERIALS.


 


(a)                                  Tenant may use
chemicals such as lubricants, solvents and cleaning fluids of the kind and in
amounts and in the manner customarily found and used in conjunction with the
Permitted Use in order to conduct its business at the Premises and to maintain
and operate customary machinery located in the Premises in connection therewith
(all such chemicals being referred to herein as the “Permitted
Materials”).  Tenant shall not
use, store, handle, treat, transport, release or dispose of any other Hazardous
Materials on or about the Premises or the Property without Landlord’s prior
written consent, which Landlord may withhold or condition in Landlord’s sole
discretion.  Any handling, treatment,
transportation, storage, disposal or use of Hazardous Materials by the Tenant
in or about the Premises or the Property shall comply with all applicable
Environmental Laws.  The Tenant shall not
dispose of any Hazardous Materials on the Property, and shall not dispose of
Hazardous Materials in any trash receptacles or other facilities or areas on
the Property.  Neither the Premises, nor
any other part of the Property shall be used in any manner by the Tenant for
the storage of any Hazardous Materials, except for the temporary storage of the
Permitted Materials on the Premises, provided the Permitted Materials are
properly stored in a manner and location complying with all applicable
Environmental Laws.  The Tenant shall be
responsible for obtaining any required authorizations, licenses or permits and
paying any fees and providing any testing required by any governmental
authority in connection with the Permitted Materials.  No portion of the Premises or the Property
shall be 


 

















 


used by the Tenant as a landfill or a dump.  The Tenant shall not install any underground
tanks of any type.  The Tenant shall not
bring any Hazardous Materials onto the Premises or the Property, except for the
Permitted Materials, and if so brought or found thereon, the Tenant, at its
sole cost and expense, shall immediately remove, properly dispose of, and
diligently undertake all required cleanup procedures with respect to the same
pursuant to all applicable Environmental Laws.


 


(b )                              The Landlord
and the Landlord’s representatives shall have the right, but not the
obligation, during normal business hours upon twenty four (24) hours prior
notice (except in the case of an emergency) to enter the Premises for the
purpose of inspecting the storage, use and disposal of Hazardous Materials and
to ensure compliance with all Environmental Laws.  Should it be determined, in the Landlord’s
reasonable opinion, that any Hazardous Materials are being improperly stored,
used or disposed of, the Tenant shall immediately take such corrective action,
as reasonably requested by the Landlord. 
Should the Tenant fail to commence such corrective action as promptly as
is reasonably possible, but in no event less than ten (10) business days
after receiving notice following the Tenant’s receipt of Landlord’s written
notice thereof (except that only notice as may be practical shall be required
in an emergency), the Landlord shall have the right to perform the corrective
action, and the Tenant shall reimburse Landlord upon demand as Additional Rent
for any and all costs associated with the corrective action.  If, at any time during or after the Term, the
Premises or any other part of the Property are deemed by a governmental agency
to be in violation of any Environmental Law as a result of the Tenant’s
Permitted Materials or any other Hazardous Materials produced, stored or
brought onto the Premises, or the Tenant’s use or occupancy of, or activity on
or about the Premises or the Property, then the Tenant shall diligently
institute and prosecute to completion remediation and cleanup procedures in
full compliance with all Environmental Laws.


 


(c )                               Tenant shall
give written notice to Landlord as soon as reasonably practicable of (i) any
communication received by Tenant from any governmental authority concerning
Hazardous Materials which relates to the Premises or the Property, and (ii) any
Environmental Condition of which Tenant is aware to the extent the
Environmental Condition is on the Premises, and of which Tenant has actual
knowledge to the extent the Environmental Condition is on the Property in a
location other than the Premises.  For
purposes hereof, “Environmental Condition”
shall mean any disposal, release or threat of release of Hazardous Materials
on, from or about the Premises or the Property or storage of Hazardous
Materials on the Property.  The Tenant
shall provide to the Landlord, as and when required by the Landlord (which may
be required by Landlord whenever it has reasonable cause to so require and,
otherwise, no more often than once in any twelve (12) month period), evidence
that the Tenant is using such Hazardous Materials in compliance with all
Environmental Laws, and the Tenant shall comply with reasonable safeguards
established by the Landlord for the Property Common Areas with respect to the
delivery and transportation of the Hazardous Materials to the Premises.


 


10.2                        TENANT’S
ENVIRONMENTAL INDEMNIFICATION.


 


The Tenant agrees to
indemnify, defend and hold harmless the Landlord and its’ shareholders,
officers, directors, employees, agents, successors and assigns (together, the “Landlord Indemnitees”), from and against any and all claims,
demands, liabilities, damages, 


 

















 


losses, deficiencies, and expenses (including,
without limitation, reasonable legal, accounting, consulting, engineering, and
other expenses), which may be imposed upon, incurred by, or asserted against
any of the Landlord Indemnitees by any other party or parties (including,
without limitation, a governmental entity), arising out of, in connection with,
or relating to the subject matter of:


 


(a )                               any actual or
alleged Release or Threat of Release of any Hazardous Material at or from the
Premises in connection with the use and possession of the Premises by the
Tenant or any assignee or subtenant of the Tenant, or in connection with any
operations of the Tenant or any assignee or subtenant of the Tenant at the
Premises, including without limitation, a Release or Threat of Release of
Hazardous Material which was first located at the Premises and was subsequently
transported to another location; or


 


(b )                              any actual or
alleged violation of an Environmental Law in connection with the use and
possession of the Premises by the Tenant or any assignee or subtenant of the
Tenant, or with any operations of the Tenant or any assignee or subtenant of
the Tenant thereon.


 


The provisions of this Section shall
survive the expiration or earlier termination of the Term.


 


10.3                        LANDLORD’S
ENVIRONMENTAL INDEMNIFICATION.


 


The Landlord agrees to
indemnify, defend and hold harmless the Tenant and its shareholders, officers,
directors, employees, agents, successors and assigns (together, the ‘Tenant Indemnitees”) from and against any and all claims,
demands, liabilities, damages, losses, deficiencies and expenses (including
without limitation reasonable legal, accounting, consulting, engineering, and
other expenses), which may be imposed upon, incurred by, or asserted against
any of the Tenant Indemnitees by any other party or parties (including, without
limitation, a governmental entity), arising out of, in connection with, or
relating to the subject matter of:


 


(a)                                  any actual or
alleged Release or Threat of Release of any Hazardous Material at or from the
Property in connection with the use and/or possession of the Property by the
Landlord, and any predecessor, assignee or subtenant of the Landlord, or in
connection with any operations of the Landlord any predecessor, assignee or
subtenant of the Landlord), including without limitation, a Release or Threat
of Release of Hazardous Material which was first located at the Property and
was subsequently transported to another location; or


 


(b)                                 any actual or
alleged violation of an Environmental Law in connection with the use and/or
possession of the Property by the Landlord and any predecessor, assignee or
subtenant of the Landlord), or with any operations of the Landlord (and any
predecessor, assignee or subtenant of the Landlord) thereon.


 


The provisions of this Section shall
survive the expiration or earlier termination of the Term.


 

















 


11.                             MORTGAGEES’
RIGHTS.


 


11.1                        SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT.


 


This Lease shall be subject
and subordinate to any future mortgage on the Property, provided that the
Tenant receives as part of such subordination an agreement of non-disturbance
and attornment from the holder in form and substance acceptable to any such
mortgagee.  The Tenant agrees on request
of the Landlord to execute, acknowledge and deliver from time to time any
reasonable documentation necessary to effectuate the provisions of this Section 11.1, and shall execute and return such
document within ten (10) days of receipt thereof the failure of which
shall constitute a default hereunder, upon the expiration often (10) days
after Landlord has given Tenant notice of such failure unless Tenant shall have
complied within said ten (10) days. 
Landlord shall exercise commercially reasonable efforts to obtain a
non-disturbance agreement from the then current mortgagee of the Property, if
any.  Any subordination requested from a
future mortgagee of the Premises must include a standard and customary form of
non-disturbance agreement for the benefit of Tenant.


 


11.2                        ESTOPPEL
CERTIFICATES.


 


The Tenant shall from time
to time, upon not less than ten (10) days’ prior written request by the
Landlord, execute, acknowledge and deliver to the Landlord a written
certification, with a true and correct copy of this Lease attached thereto, (i) that
this Lease is unmodified and in full force and effect (or, if there have been
any modifications, that the same is in full force and effect as modified and
stating the modifications); (ii) that the Tenant has no knowledge of any
defenses, offsets or counterclaims against its obligations to pay the Annual
Fixed Rent and Additional Rent and to perform its other covenants under this
Lease (or if there are any defenses, offsets, or counterclaims, setting them
forth in reasonable detail); (iii) that there are no known uncured
defaults of the Landlord or the Tenant under this Lease (or if there are known
defaults, setting them forth in reasonable detail); (iv) the dates to
which the Annual Fixed Rent, Additional Rent and other charges have been paid; (v) that
the Tenant has accepted and is in full possession of the Premises (to the
extent that the same is true); (vi) the Term, the Commencement Date, and
any other relevant dates, and that the Tenant has been in occupancy since the
Commencement Date and paying rent since the specified date; (vii) that,
except as set forth in this lease, no monetary or other considerations, including,
but not limited to, rental concessions, special tenant improvements or Landlord’s
assumption of prior lease obligations of Tenant have been granted to Tenant by
Landlord for entering into this Lease; (viii) the extent to which the
Tenant has exercised the options set forth in the Lease; and (ix) such
other matters with respect to the Tenant and this Lease as the Landlord may
request and as are customarily to be included in such certifications.  Failure by Tenant to comply with the terms of
this Section 11.2 shall constitute a default hereunder upon the expiration
of ten (10) days after Landlord has given Tenant notice of such failure
unless the Tenant shall have complied within said ten (10) days.  On the Commencement Date, either party shall,
at the request of the other, promptly execute, acknowledge and deliver to the
other a statement in writing that the Commencement Date has occurred.


 

















 


12.                               MISCELLANEOUS.


 


12.1                        NOTICES.


 


Whenever any notice,
approval, consent, request, election, offer or acceptance is given or made
pursuant to this Lease, it shall be in writing. 
Communications and payments shall be addressed, if to the Landlord, at
both the Landlord’s Address and the Landlord’s Counsel Address for Notices as
set forth in Exhibit A or at such other
address as may have been specified by prior notice to the Tenant; and if to the
Tenant, at the Tenant’s Address for Notices, but in each case also at the
Tenant’s Counsel Address for Notices, or at such other place as may have been
specified by prior notice to the Landlord. 
Any communication so addressed shall be deemed duly given on the earlier
of (i) the date received or (ii) on the third business day following
the day of mailing if mailed by registered or certified mail, postage prepaid,
return receipt requested, or (iii) on the first business day following the
day sent, if sent by Federal Express or similar nationally recognized,
overnight commercial carrier requiring a return receipt, with all charges
prepaid.  If the Landlord by notice to
the Tenant at any time designates some other person to receive payments or
notices, all payments or notices thereafter by the Tenant shall be paid or
given to the agent designated until notice to the contrary is received by the
Tenant from the Landlord.


 


12.2                        SUCCESSORS
AND LIMITATION ON LIABILITY OF THE LANDLORD.


 


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, subject to the limitations on the Tenant’s rights set forth herein
above, and except that the Landlord and each successor landlord shall be liable
only for obligations accruing during the period of its ownership.  The obligations of the Landlord shall be binding
upon the assets of the Landlord consisting of its equity ownership of the
Property but not upon the Landlord personally or the other assets of the
Landlord, and neither the Tenant, nor anyone claiming by, under or through the
Tenant, shall be entitled to obtain any judgment creating personal liability on
the part of the Landlord or enforcing any obligations of the Landlord against
any assets of the Landlord other than its equity ownership of the Property.


 


12.3                        WAIVERS.


 


The failure of the Landlord
or the Tenant to seek redress for violation of, or to insist upon strict
performance of, any covenant or condition of this Lease, shall not be deemed a
waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation.  The receipt by the
Landlord of Annual Fixed Rent or Additional Rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of such breach.  No provision of this Lease shall be deemed to
have been waived by either party, unless such waiver be in writing signed by
such party.  No consent or waiver,
express or implied by either party 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.


 

















 


12.4                        ACCEPTANCE
OF PARTIAL PAYMENTS OF RENT.


 


No acceptance by the
Landlord of a lesser sum than the Annual Fixed Rent and Additional Rent then
due shall be deemed to be other than a partial 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 the
Landlord may accept such check or payment without prejudice to the Landlord’s
right to recover the balance of such installment or pursue any other remedy in
this Lease provided.  The delivery of
keys to any employee of the Landlord or to the Landlord’s agent or any employee
thereof shall not operate as a termination of this Lease or a surrender of the
Premises.


 


12.5                        INTERPRETATION
AND 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.  The titles of the Articles and Sections are
for convenience only and not to be considered in construing this Lease.  This Lease contains all of the agreements of
the parties with respect to the subject matter thereof and supersedes all prior
dealings between them with respect to such subject matter.


 


12.6                        QUIET
ENJOYMENT.


 


So long as the Tenant pays
Annual Fixed Rent and Additional Rent, performs all other Tenant covenants of
this Lease and observes all conditions hereof, the Tenant shall peaceably and
quietly have, hold and enjoy the Premises free of any claims by, through or
under the Landlord, subject to Landlord’s right to terminate this Lease
pursuant to Article 8.  Tenant
acknowledges that Landlord has informed it that Landlord may expand the
building in which the Premises are located in accordance with Landlord’s
reservations set forth in Section 2.3 of this Lease, and Tenant hereby
accepts the fact that there may be noise and other disruptions incident to any
such construction.  Tenant hereby agrees
that such construction work and noise shall not be a default of this Lease so
long as the construction and noise do not materially interfere with Tenant’s
access to the Premises or materially impair Tenant’s use of the Premises.  Landlord will exercise reasonable efforts to
minimize any such disruptions; however, the exercise of such efforts shall not
include a requirement that the construction work take place at other than
regular business hours.


 


12.7                        BROKERAGE.


 


The Tenant and Landlord both
represent and warrant to the other that it has had no dealings with any broker
or agent in connection with this Lease other than Grubb & Ellis and
Richards Barry Joyce & Partners and each shall indemnify and hold the
other harmless from claims for any brokerage commission predicated upon prior
dealings with the Landlord or Tenant, respectively, by any broker other than
the brokers named in this Section. 
Landlord shall pay Grubb & Ellis and Richards Barry Joyce &
Partners a commission based on a separate letter agreement.


 

















 


12.8                        SURRENDER
OF PREMISES AND HOLDING OVER.


 


The Tenant shall surrender
possession of the Premises on the last day of the Term and the Tenant waives
the right to any notice of termination or notice to quit.  The Tenant covenants that upon the expiration
or sooner termination of this Lease, it shall, without notice, deliver up and
surrender possession of the Premises in the same condition in which the Tenant
has agreed to keep the same during the continuance of this Lease and in
accordance with the terms hereof, reasonable wear and tear and damage by fire
or other casualty or as a consequence of the exercise of eminent domain
excepted, first removing therefrom all goods and effects of the Tenant and, to
the extent required or permitted under Section 4.2,
any leasehold improvements, and repairing all damage caused by such
removal.  Upon the expiration of this
Lease, or, if the Premises should be abandoned by the Tenant, at the time of
such expiration or abandonment, if the Tenant or the Tenant’s agents,
subtenants or any other person should leave any property of any kind or
character on or in the Premises, the fact of such leaving of property on or in
the Premises shall be conclusive evidence of intent by the Tenant, and
individuals and entities deriving their rights through the Tenant, to abandon
such property so left in or upon the Premises, and such leaving shall
constitute abandonment of the property. 
Landlord shall have the right and authority without notice to the Tenant
or anyone else, to remove and destroy, or to sell or authorize disposal of such
property, or any part thereof, without being in any way liable to the Tenant
therefor and the proceeds thereof shall belong to the Landlord as compensation
for the removal and disposition of such property.


 


If the Tenant fails to
surrender possession of the Premises upon the expiration or sooner termination
of this Lease, the Tenant shall pay to Landlord, as rent for any period after
the expiration or sooner termination of this Lease an amount equal to 150% the
Annual Fixed Rent and the Additional Rent required to be paid under this Lease
as of the expiration or termination of the Term.  Acceptance by the Landlord of such payments
shall not constitute a consent to a holdover hereunder or result in a renewal
or extension of the Tenant’s rights of occupancy.  Such payments shall be in addition to and
shall not affect or limit the Landlord’s right of re-entry, Landlord’s right to
collect such damages as may be available at law, or any other rights of the
Landlord under this Lease or as provided by law.


 


12.9                        EXHIBITS.


 


Exhibits A through Exhibit I attached to this
Lease are hereby incorporated in and made a part of this Lease.


 


12.10                 OPTION
TO EXTEND.


 


The Tenant herein is granted
the right to extend the Term hereof for one (1) five year term (the “Extended
Term”), provided, however, that the Tenant shall be in Good Standing and shall
meet all of the following conditions:


 


(a)                                  Tenant shall
have given written notice to Landlord of its intent to so extend prior to
twelve (12) months before the termination of the then current term.


 

















 


(b)                                 Any extension
of the Term shall be under the same terms and conditions as the Original Term
or as specifically outlined as pertinent to any Extended Term.


 


(c)                                  The Tenant
herein shall not be in default (or beyond any applicable grace period therefor)
of any of the terms or conditions of this Lease, either at the time stipulated
for notice of intent to extend or at the commencement of the Extended Term.


 


(d)                                 Tenant shall
not have made more than one Late Payment of Rent or Additional Rent in any
twelve (12) month period during the Term immediately preceding the exercise of
Tenant’s option to extend.


 


Upon the Tenant’s giving such notice referred to in
(a), above, this Lease and the Term hereof shall be extended for the Extended
Term without the necessity of execution of any additional documents.  The Extended Term shall be upon all the
terms, conditions and provisions of this Lease, except that the Annual Fixed
Rent during the Extended Term shall be the fair market rental value (the “Fair
Rental Value”) of the Premises as of the commencement of such Extended Term,
determined by the Landlord in its sole discretion, taking into consideration
the then prevailing market rate for office space in the greater Boston,
Massachusetts “Metro West” Area (Waltham sub-market) comparable to the Premises
in terms of size of space, location of the Building, finish, building quality
and otherwise on the terms and conditions of this Lease, but in no event less
than the Annual Fixed Rent due during the last year of the initial Term and the
Tenant shall have no option to extend the Term for any further Extended Term
beyond the one provided for by this Section 12.10 Said Fair Rental Value
shall be determined by Landlord and Landlord shall notify Tenant of same within
180 days after Tenant’s exercise of the option to extend.  In the event Tenant rejects or is deemed to
reject Landlord’s estimate of the Fair Rental Value, then the Tenant’s option
to extend shall be deemed waived and this Lease shall terminate as of the Term
Expiration Date. In the event that Landlord markets the Premises for lease at
any time within 60 days after such waiver or rejection by Tenant, Landlord
shall initiate such marketing at the aforementioned Fair Rental Value. However,
Landlord shall not be required to accept an offer at Fair Rental Value if
Landlord, in its sole discretion, deems the proposed tenant unsuitable.
Furthermore, landlord shall have the right to thereafter reduce the asking
rental rate if it deems such appropriate in its sole discretion.  In no event shall the Annual Fixed Rent for
the Extended Term be any less than the aggregate of the Annual Fixed Rent and
the Additional Rent paid by Tenant in the last year of the previous Term.


 


12.11                 RELOCATION.


 


After the initial twelve
months of the Term, Landlord shall have the one-time right to relocate Tenant
into space within the Building. Landlord shall provide Tenant with nine (9) month’s
prior written notice of any such relocation. Location of the new premises must
be approved by the Tenant, which approval shall not to be unreasonably
withheld, conditioned or delayed. 
Landlord will be responsible for all relocation costs associated with
the relocation.  The new premises
designated by Landlord must provide Tenant with reasonably comparable size,
finish, quality, and window line to the Premises.  Additionally, Tenant’s Annual Fixed Rent 


 

















 


(regardless of the size of the new premises) shall
not increase if larger, but the Annual Fixed Rent shall decrease if the new
premises is slightly smaller.


 


12.12                 NO
AGREEMENT UNTIL SIGNED.


 


The submission of this Lease
or a summary of some or all of its provisions for examination does not
constitute a reservation of or option for the Premises or an offer to lease and
no legal obligations shall arise with respect to the Premises or other matters
herein until this Lease is executed and delivered by Landlord and Tenant.


 


12.13                 FINANCIAL
INFORMATION.


 


Tenant will cooperate with
Landlord’s request that Tenant provide reasonable information about its own
financial status for the Landlord’s own benefit or the benefit of lenders,
prospective lenders of Landlord’s and prospective purchasers whenever Landlord
may so request.  Such information shall
include, but not be limited to financial statements, certified as true and
correct by an independent Certified Public Account.


 


12.14                 NOTICE.


 


Any and all notices or other
communications required or permitted by this Agreement to be served on or given
to any party hereto by any other party hereto shall be in writing and shall be
deemed duly served and given when personally delivered to the party to whom it
is directed, or in lieu of personal service, three (3) days after deposit
in the United States Mail, first class, certified, postage prepaid, or one day
after deposit with a reputable overnight courier, addressed to the respective
parties at the addresses set forth herein.


 


12.15                 INTENTIONALLY
OMITTED.


 


EXECUTED as an instrument under seal as of the day
and year first set forth above.


 


	
   

  	
  LANDLORD:

  
	
   

  	
  1440 MAIN STREET LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/James F. Carlin

  
	
   

  	
   

  	
  Name: James F. Carlin

  
	
   

  	
   

  	
  Title: Member-Manager

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
  INTERNODED, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Custie Crampton

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:  CTO

  



 






 










 


EXHIBIT A


 


Basic Lease Terms


 


	
  Annual Fixed Rent: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Lease
  Year 1:

  	
   

  	
  $21.00 per Rentable Square Foot, or $112,245.00,
  payable in equal monthly installments of $9,353.75 in accordance with the
  provisions hereof.

  
	
   

  	
   

  	
   

  
	
  Lease
  Year 2: 

  	
   

  	
  $26.00 per Rentable Square Foot, or $138,970.00,
  payable in equal monthly installments of $11,580.83 in accordance with the
  provisions hereof.

  
	
   

  	
   

  	
   

  
	
  Lease
  Year 3: 

  	
   

  	
  $28.00 per Rentable Square Foot, or $149,660.00,
  payable in equal monthly installments of $12,471.67 in accordance with the
  provisions hereof.

  
	
   

  	
   

  	
   

  
	
  Lease
  Year 4: 

  	
   

  	
  $30.00 per Rentable Square Foot, or $160,350.00,
  payable in equal monthly installments of $13,362.50 in accordance with the
  provisions hereof.

  
	
   

  	
   

  	
   

  
	
  Lease
  Year 5: 

  	
   

  	
  $31.00 per Rentable Square Foot, or $165,695.00,
  payable in equal monthly installments of $13,807.92 in accordance with the
  provisions hereof.

  
	
   

  	
   

  	
   

  
	
  Initial Term:

  	
   

  	
  Five years and three months commencing on the
  Commencement Date (as defined in Section 2.6
  of the Lease) and expiring on the last day of the calendar month in which the
  5th anniversary of the Commencement Date falls (unless sooner terminated
  pursuant to the Lease).

  
	
   

  	
   

  	
   

  
	
  Landlord’s 

  Address:

  	
   

  	
  1440 Main Street LLC 

  c/o Crosspoint Associates, Inc.  

  217 West Central Street 

  Natick, Massachusetts  01760 

  Attention:  John W. Hueber

  and James F. Carlin, III

  
	
   

  	
   

  	
   

  
	
  Landlord’s Counsel 

  Address for Notices:

  	
   

  	
  Kotin, Crabtree & Strong, LLP 

  One Bowdoin Square 

  Boston, Massachusetts  02114 

  Attn:  Dolph J. Vanderpol, Esquire

  
	
   

  	
   

  	
   

  
	
  Premises:

  	
   

  	
  A portion of the second floor of the Building
  located at 1440 Main Street, Waltham, Massachusetts, consisting of

  



 

















 


	
   

  	
   

  	
  5,345 rentable square feet as shown on the floor
  plan attached as Exhibit D.

  
	
   

  	
   

  	
   

  
	
  Rentable Floor Area 

  of the Premises:

  	
   

  	
  5,345 rentable square feet 

  
	
   

  	
   

  	
   

  
	
  Permitted Uses:

  	
   

  	
  General office use

  
	
   

  	
   

  	
   

  
	
  Tenant’s 

  Address for Notices:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tenant’s Counsel 

  Address for Notices:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Landlord’s Broker:

  	
   

  	
  Grubb & Ellis Co.

  
	
   

  	
   

  	
   

  
	
  Tenant’s Broker:

  	
   

  	
  Richards Barry Joyce & Partners

  



 

















 


EXHIBIT B


 


Legal Description of the
Land


 

















 


EXHIBIT A


 


A certain parcel of land, together with all
buildings and improvements thereon, situated on Main Street in Waltham,
Middlesex County, Massachusetts being shown as Lot 1 on a plan entitled “Plan
of Land in Waltham, Mass.” dated February 12,1980 prepared by Norwood
Engineering Co., Civil Engineers and Land Surveyors, being Plan No. 544 of
1980, recorded with the Middlesex South District Registry of Deeds in Book
13969, Page 184 (hereinafter the “Plan”) and being bounded and described
according to said Plan as follows:


 


NORTHEASTERLY by said Main Street by two lines
measuring respectively 147.92 feet and 161.89 feet;


 


SOUTHEASTERLY by Lot 2 on said Plan, 205.90 feet;


 


SOUTHERLY by said Lot 2 on, 44.98 feet;


 


SOUTHEASTERLY by said Lot 2, 53.00 feet;


 


SOUTHWESTERLY by land marked on said Plan “Massachusetts
Broken Stone Company” by two lines measuring respectively 228.36 feet and
163.69 feet;


 


NORTHWESTERLY by land marked on said Plan “Sylcon
Realty Trust”, 78.94 feet;


 


NORTHEASTERLY by land marked on said Plan “James T.
and Edna H. Farter”, 20.00 feet; and


 


NORTHWESTERLY by said Falter land, 162.97 feet


 


Containing according to said plan 98,658 square feet
±


 


APPURTENANT RIGHTS:


 


Together with the right to use the 50’ Right of Way
for access and egress to and from Main Street and to access the parking on Lot
3, all as set forth in Relocation of Right of Way and Easement Agreement by and
among Double “S” Realty Co., Inc.; Massachusetts Broken Stone Company, and
The Massachusetts Medical Society, dated May 15, 1980, recorded in Book
13969, Page 186, and Agreement by and between Massachusetts Broken Stone
Company and The Massachusetts Medical Society, dated March 1,1982,
recorded in Book 14570, Page 305.


 


Together with the exclusive right to use 50 parking
spaces and non-exclusive right to use 9 parking spaces, the right to access
said parking spaces and the right to maintain a sign, all as set forth in the
Easement Agreement between Charles J. Schreiber, Jr., Trustee of 1440 Main
Street Associates Nominee Trust, and Harvey Industries, Inc., recorded in
Book 30978, Page 322.


 

















 


EXHIBIT C


 


Site Plan


 

















 





 






 










 


EXHIBIT D


 


Floor Plan


 





 

















 


EXHIBIT E


 


RULES AND REGULATIONS


 


The following rules and regulations have been
established for the safety, comfort and general wellbeing of the tenants of the
Building as well as for the neat, orderly and attractive appearance and
maintenance of the Building.  They are
not intended to modify or vary the terms of your lease.


 


Tenant agrees to observe the rights reserved to
Landlord in the Lease and agrees, for itself, its employees, agents, clients,
customers, invites and guests, to comply with the following rules and
regulations and with such reasonable modifications thereof and additions
thereto as Landlord may make from time to time for the Building.


 


1.                                       Any sign,
lettering, curtain, picture, notice, or advertisement installed within Tenant’s
Building (including but not limited to Tenant Identification signs on doors to
the Building) which is visible outside of the Building shall be installed at
Tenant’s cost and in such manner, character and style as Landlord may approve
in writing.  No sign, lettering, picture,
notice or advertisement shall be placed on any outside window or in any
position so as to be visible from outside the Building or from any atrium
lobbies of the Building.


 


2.                                       Tenant shall
not use pictures or illustrations of the Building in advertising or other
publicity, without prior written consent of Landlord.


 


3.                                       Tenant, its
customers, invitees, licensees and guest shall not obstruct sidewalks,
entrances, passages, courts, corridors, vestibules, halls, elevators and
stairways in and about the Building. 
Tenant shall not place objects against glass partitions or doors or
windows or adjacent to any open common space which would be unsightly from the
Building corridors or from the exterior of the Building, and will promptly
remove the same upon notice from Landlord.


 


4.                                       Tenant shall
not make noises, cause disturbances, create vibrations, odors or noxious fumes
or use or operate any electrical or electronic devices or other devises that
emit sound waves or are dangerous to other tenants and occupants of the
Building or that would interfere with the operation of any device or equipment
or radio or television broadcasting or reception from or within the Building or
elsewhere, or with the operation of roads or highways in the vicinity of the
Building and shall not place or install any projections, antennae, aerials or
similar devices inside or outside of the Building.


 


5.                                       Tenant shall
not make any room-to-room canvass to solicit business from other tenants in the
Building and shall not exhibit, sell or offer to sell, use, rent or exchange
any item or services in or from the Building unless ordinarily embraced within
Tenant’s use of the Building as specified in its lease.


 

















 


6.                                       Tenants shall
not waste electricity or water and agrees to cooperate fully with Landlord to
assure the most effective operation of the Building’s heating and air
conditioning and shall refrain from attempting to adjust any controls.  Tenant shall keep public corridor doors
closed.


 


7.                                       Landlord should
be notified at once of any trouble with heating, lighting or plumbing
fixtures.  Tenants must not leave windows
of leased premises open or unlocked and must not leave the doors of the
Building unlocked at night.


 


8.                                       No water and
wash closets shall be used for any purpose other than that for 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 borne by the tenant
causing it.


 


9.                                       Door keys or
pass cards for doors in the Building will be furnished at commencement of the
Lease by Landlord.  Tenant shall not
affix additional locks on doors and shall purchase duplicate keys or pass cards
only from Landlord.  When the Lease is
terminated, Tenant shall return all keys to Landlord and will provide to
Landlord the means to opening any safes, cabinets or vaults left in the
Premises.


 


10.                                 Tenant assumes
full responsibility for protecting its space from theft, robbery and pilferage,
which includes keeping doors locked and other means of entry to Premises closed
and secured.


 


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


 


12.                                 Peddlers,
solicitors and beggars shall be reported to the office of the Building or as
Landlord otherwise requests.  No person
shall loiter in the halls, corridors, lavatories or basement areas.


 


13.                                 Tenant shall
not install, nor operate machinery or any mechanical devices of a nature not
directly related to Tenant’s ordinary use of the Building without the written
permission of Landlord.


 


14.                                 No wires for
telephone service, electric lights, messenger service or for any other purpose
shall be put in the premises without the consent of Landlord.


 


15.                                 No person or
contractor not employed by Landlord shall be used to perform window washing,
cleaning, decorating, repair of other work in the Building without consent from
Landlord.


 


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


 

















 


17.                                 Tenant may not
(without Landlord’s approval therefor, which approval will be signified on
Tenant Plans submitted pursuant to the Lease) and Tenant shall not permit or
suffer anyone to:


 


(a)                                  Cook in the
Building;


 


(b)                                 Place vending
or dispensing machines of any kind in or about the Building;


 


(c)                                  At any time
sell, purchase or give away or permit the sale, purchase or gift of food in any
form.


 


18.                                 Tenant shall
not:


 


(a)                                  Use the
Building for lodging, manufacturing, or for any immoral or illegal purposes.


 


(b)                                 Use the
Building to engage in the manufacture or sale of, or permit the use of, any
spirituous, fermented, intoxicating or alcoholic beverages on the Premises.


 


(c)                                  Use the
Building to engage in the manufacture or sale of, or permit the use of, any
illegal drugs on the Premises.


 


19.                                 In no event
shall any person bring into the Building flammables such as gasoline, kerosene,
naphtha and benzene, or explosives or firearms or any other article of
intrinsically dangerous nature.  If by
reason of the failure of Tenant to comply with the provisions of this
paragraph, any insurance premium payable by Landlord for all or any part of the
Building shall at any time be increased above normal insurance premiums for
insurance not covering the items aforesaid, Landlord shall require Tenant to
make immediate payment for the while of the increased insurance premium.


 


20.                                 Tenant shall
comply with all applicable federal, state and municipal laws, ordinances and
regulations and building rules, and shall not directly or indirectly make any
use of the Building which may be prohibited thereby or which shall be dangerous
to person property or shall increase the cost of insurance or require
additional insurance coverage.


 


21.                                 If Tenant
desires signal, communication, alarm or other utility or service connection
installed or changed, the same shall be made at the expense of Tenant, with
approval and under direction of the Landlord.


 


22.                                 Bicycles shall
not be permitted in the Building in other than Landlord-designated locations.


 


23.                                 Tenant shall
cooperate and participate in all security programs affecting the Building.


 


24.                                 In the event
Landlord allows one or more tenants in the Building to do any act prohibited
herein, Landlord shall not be precluded from denying any other tenant the right
to do any such act.


 

















 


25.                                 Tenant or the
employees, agents, servants, visitors or licensees of Tenant shall not at
anytime place, leave or discard any rubbish, paper articles, or objects of any
kind whatsoever outside the doors of the Building or in the corridors or
passageways of the Building.  No animals
(except such animals used by the blind) or birds shall be brought or kept in or
about the Building.


 


26.                                 Tenant shall
not mark, paint, drill into or in any way deface any part of the Building or the
Building.  Nor boring, driving of nails
or screws, cutting or stringing of wires shall be permitted, except with prior
written consent of Landlord may direct. 
Tenant shall not install any resilient tile or similar floor covering in
the Building except with the prior approval of Landlord.  The use of cement or other similar adhesive
materials is expressly prohibited.


 


27.                                 Landlord shall
have the right to limit or control the number and format of listings on the
main Building directory.


 


28.                                 All freight, furniture,
etc., must be received and delivered through the entrances designated by
Landlord for deliveries unless otherwise authorized by Landlord, and an
appointment must be made with Landlord to move furniture into or from the
Building, but special arrangement must be made with Landlord for the moving of
all safes.


 


29.                                 Entry and
exiting to and from the Building and use of all roads, driveways and walkways
shall be subject to such traffic and use rules and regulations as Landlord
may promulgate and provide to Tenant from time to time.


 


30.                                 No vehicle is
to be left in the parking lot overnight or on weekends without the express
permission of the Landlord or its representative.  Tenant must contact Landlord’s representative
in advance when seeking permission to leave any vehicle in the parking lot
overnight or on weekends.  Any vehicle
parked overnight or on weekends without permission may be towed at Landlord’s
sole discretion and at the violator’s expense.


 


31.                                 Any “No Parking”
signs on the Property shall be strictly observed; offenders may be towed
without notice and at their expense.


 


32.                                 Tenant shall
not permit trucks, vans, trailers or automobiles to park, stand or otherwise
block or impair the access of adjacent tenants.


 


33.                                 Tenant will be
responsible for the cost of removal and disposal of unusually large or heavy
loads of rubbish such as obsolete files, wooden packing cases and the
like.  Tenant will also be responsible
for the coordination and cost of the removal of any and all hazardous materials
brought onto the site by the Tenant or produced as a byproduct of the Tenant’s
business.


 

















 


34.                                 The Building
has been designated a “No Smoking” Building. 
Tenant, its employees, invitees and all other shall refrain from smoking
in the Premises and Common Areas of the Building.


 


35.                                 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
Lessee.


 


36.                                 Landlord
reserves the right to make any such other and further rules and
regulations as in its judgment may from time to time be necessary for the
safety, care and cleanliness of the Premises and Building and for the
preservation of good order therein.


 

















 


EXHIBIT F


 


Exclusions from Operating
Expenses


 


(1)                                  costs of
repairs or replacements to the extent reimbursed by insurance, other tenants of
the Property or other third parties or resulting from eminent domain takings to
the extent covered by the award;


 


(2)                                  Real Estate
Taxes on the Property, and any associated costs which have been previously
included in Operating Expenses (whether under the same or a different
category);


 


(3)                                  financing and
refinancing costs in respect of any mortgage or ground lease placed upon the
Property, including debt service, amortization, points and commissions in
connection therewith and rent or other charges payable under any ground or
underlying lease (including, without limitation, the Master Lease);


 


(4)                                  costs of
selling or syndicating any of Landlord’s interest in the Premises and/or the
Property;


 


(5)                                  brokerage fees
or commissions;


 


(6)                                  interest or
penalties for any delinquent payments by Landlord unless and to the extent
resulting from the Tenant’s failure to pay, when and as due, the Tenant’s
Operating Expenses or Taxes Allocable to the Premises (in which case the Tenant
shall be responsible for 100% of such interest or penalties);


 


(7)                                  the cost of
making leasehold improvements and decorations to any leasable space including,
without limitation, to prepare the same for occupancy by a tenant thereof, or
thereafter for the benefit of a particular tenant or tenants;


 


(8)                                  any
expenditures on account of Landlord’s acquisition of air or similar development
rights unless said development rights provide additional parking or amenities for
the benefit of all Tenants;


 


(9)                                  the cost of
capital improvements or replacements in excess of the amortization therefor on
a straight-line basis over the useful life of the item as determined by
Landlord in its reasonable discretion, together with interest on the
unamortized balance at Landlord’s actual borrowing rate on funds borrowed for
the purpose of constructing such capital improvements or replacements or at the
Interest Rate if there is no such borrowing;


 


(10)                            costs of
constructing additions to any existing buildings on the Property, or new
buildings on the Property, or otherwise further developing additional rentable
space on the Property;


 


(11)                            Landlord’s
depreciation of the Buildings or other improvements or amortization of personal
property or equipment, except as provided in clause (12) above;


 

















 


(12)                            the cost of
providing any service to Tenant for which Landlord shall receive direct payment
from the Tenant, including, but not limited to utilities paid by Tenant;


 


(13)                            salaries of
executives or principals of Landlord; and


 


(14)                            cleaning and
janitorial services contracted by Landlord on behalf of Tenant, which shall be
billed separately and apart from operating expenses and paid for directly by
Tenant.


 


(15)                            the restoration
or repair of any casualty damage to be covered under the required insurance
coverage;


 


(16)                            repairs,
replacement or maintenance incurred as a result of the gross negligence of the
Landlord, its agents or employees or other Tenant’s of the Building.


 

















 


EXHIBIT H


 


W9 Form


 

















 


EXHIBIT G


 


Landlord’s Work


 


Landlord shall perform the following scope of work
at the Landlord’s sole cost and expense, which shall be limited to the
following:


 


Demolition


 


1)                                      Remove
approximately 840 sf of vinyl tile


2)                                      Remove
electrical outlets, switches and lights as necessary


3)                                      Remove
countertop around front conference room.


 


New Work


 


1)                                      Supply and
Install interior walls for three (3) offices and one (1) server/storage
room.


 


Doors & Glazing


 


1)                                      Supply and
Install five (5) new interior doors


2)                                      Supply and
Install three (3) sidelights


3)                                      Supply and
Install all necessary hardware


4)                                      Supply and
Install two (2) full view vision panels in double doors as indicated on
floor plan.


 


Acoustical Ceiling


 


1)                                      Rework existing
ceiling grid and tiles around new offices and storage/server room


 


Painting


 


1)                                      Supply and
Apply building-standard paint throughout the entire Premises


2)                                      Supply and
Apply building-standard stain and poly to five (5) interior doors


 


Flooring


 


1)                                      Install
building-standard carpet throughout the entire back area of the Premises
(currently the cafeteria)


2)                                      Supply and
Install new building-standard vinyl base throughout the entire back area of the
premises (currently the cafeteria)


 


Mechanical


 


1) Rework and Relocate sprinkler heads as indicated on floor plan


 


HVAC


 


1)                                      Supply and
Install Liebert HVAC system in data room


2)                                      Rework and
Relocate HVAC ductwork and diffusers as indicated on floor plan


3)                                      Supply and
Install new building-standard thermostats as needed


 


Plumbing


 


1)                                      Supply and
Install connections for ice and soda machines


2)                                      Supply and
Install new building-standard 10 gallon hot water heater


 

















 


Electrical


 


3)                                      Supply and
Install six (6) workstation feeds


 


4)                                      Supply and
Install approximately thirty (30) duplex outlets as indicated on floor plan


 


5)                                      Supply and
Install approximately eight (8) building-standard single pole switches as
indicated on floor plan


 


6)                                      Supply and
Install approximately two (2) building-standard double pole switches as
indicated on floor plan


 


7)                                      Supply and
Install approximately six (6) workboxes with pull strings as indicated on
floor plan


 


8)                                      Supply and
Install two (2) new building-standard fire alarm horn/strobe units as
indicated on floor plan


 


9)                                      Supply and
Install approximately sixteen (16) new building-standard 2X2 parabolic light
fixtures as indicated on floor plan.


 


10)                                Supply and
Install approximately six (6) new building-standard emergency lights as
indicated on floor plan


 

















 


EXHIBIT I


 


COMMENCEMENT CERTIFICATE


 


This agreement is made by and between  1440 Main Street LLC (“Landlord”) and
Internoded, Inc.  (“Tenant”).


 


WHEREAS, Landlord and Tenant have entered into a
Lease dated August               ,
2007 for Premises designated on Exhibit A attached to the Lease and
located at 1440 Main Street, Waltham, MA 02451.


 


WHEREAS, the Commencement Date as defined in Article 2
of the Lease, has occurred; and,


 


WHEREAS, pursuant to the Lease, Landlord and Tenant
desire to confirm various dates relating to the Lease.


 


NOW, THEREFORE, Landlord and Tenant agree and
acknowledge that the information set forth below is true and accurate.


 


Commencement Date:


 


Initial Term Expiration Date:


 


First Extension Term Exercise Date:


 


First Extension Term Commencement Date:


 


First Extension Term Expiration Date:


 


	
  Rentable Area of the Premises:

  	
   

  	
  5,345 square feet Tenant’s

  
	
   

  	
   

  	
   

  
	
  Tenant’s Proportionate Share:

  	
   

  	
  8.4 %

  



 


The execution of the Agreement shall not constitute
an exercise by Tenant of its option with respect to the Extension Term.


 


EXECUTED
as a sealed instrument on the date first set forth above.


 


	
  LANDLORD: 1440 MAIN STREET LLC

  	
   

  	
  TENANT: INTERNODED, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
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  Title:

  	
   

  	
   

  	
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  Date:

  	
   

  	
   

  	
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