**Exhibit 10.1**

 

Confidential Materials omitted and filed separately with theSecurities and Exchange Commission. Asterisks denote omissions.

 

200 WEST STREETWALTHAM, MASSACHUSETTS

 

TABLE OF CONTENTS

 
| Lease dated May 19, 2010                                               | 1                                        |
|-----------------------------------------------------------------------------|------------------------------------------|
|                                                                        |                                     |   |
| ARTICLE I                                                              |                                     |
| Basic Lease Provisions and  Enumerations of Exhibits                        | 1                                        |
| 1.1                                                                         | Introduction                             | 1 |
| 1.2                                                                         | Basic Data                               | 1 |
| 1.3                                                                         | Enumeration of Exhibits                  | 4 |
|                                                                        |                                     |   |
| ARTICLE II                                                             |                                     |
| Premises                                                                    | 5                                        |
| 2.1                                                                         | Demise and Lease of Initial Premises     | 5 |
| 2.2                                                                         | Expansion Rights                         | 6 |
| 2.3                                                                         | Appurtenant Rights and Reservations      | 6 |
|                                                                        |                                     |   |
| ARTICLE III                                                            |                                     |
| Lease Term and Extension Option                                             | 7                                        |
| 3.1                                                                         | Term                                     | 7 |
| 3.2                                                                         | Extension Option                         | 7 |
|                                                                        |                                     |   |
| ARTICLE IV                                                             |                                     |
| Condition of Premises; Signage                                              | 9                                        |
| 4.1                                                                         | Condition of Premises                    | 9 |
| 4.2                                                                         | Signage                                  | 9 |
|                                                                        |                                     |   |
| ARTICLE V                                                              |                                     |
| Annual Fixed Rent and Electricity                                           | 10                                       |
| 5.1                                                                         | Fixed Rent and Electricity Charges       | 10 |
| 5.2                                                                         | Tenant Electricity                       | 11 |
|                                                                        |                                     |   |
| ARTICLE VI                                                             |                                     |
| Taxes                                                                       |                                     | 14 |
| 6.1                                                                         | Definitions                              | 14 |
| 6.2                                                                         | Tenant’s Share of Real Estate Taxes | 15 |
|                                                                        |                                     |   |
| ARTICLE VII                                                            |                                     |
| Landlord’s Repairs and Services  and Tenant’s Escalation Payments | 16                                       |
| 7.1                                                                         | Structural Repairs                       | 16 |
| 7.2                                                                         | Other Repairs to be Made by Landlord     | 16 |
| 7.3                                                                         | Services to be Provided by Landlord      | 17 |

 

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| 7.4                                    | Operating Costs Defined                                 | 17     |
|----------------------------------------|---------------------------------------------------------|--------|
| 7.5                                    | Tenant’s Escalation Payments                       | 22     |
| 7.6                                    | No Damage                                               | 24     |
|                                   |                                                    |   |
| ARTICLE VIII                      |                                                    |
| Tenant’s Repairs                  | 26                                                      |
| 8.1                                    | Tenant’s Repairs and Maintenance                   | 26     |
|                                   |                                                    |   |
| ARTICLE IX                        |                                                    |
| Alterations                            | 27                                                      |
| 9.1                                    | Landlord’s Approval                                | 27     |
| 9.2                                    | Conformity of Work                                      | 28     |
| 9.3                                    | Performance of Work, Governmental Permits and Insurance | 28     |
| 9.4                                    | Liens                                                   | 29     |
| 9.5                                    | Nature of Alterations                                   | 29     |
| 9.6                                    | Increases in Taxes                                      | 30     |
| 9.7                                    | Alterations Permitted Without Landlord’s Consent   | 30     |
|                                   |                                                    |   |
| ARTICLE X                         |                                                    |
| Parking                                | 31                                                      |
| 10.1                                   | Tenant’s Parking                                   | 31     |
|                                   |                                                    |   |
| ARTICLE XI                        |                                                    |
| Certain Tenant and Landlord  Covenants | 32                                                      |
|                                   |                                                    |   |
| ARTICLE XII                       |                                                    |   |
| Assignment and Subletting              | 36                                                      |
| 12.1                                   | Restrictions on Transfer                                | 36     |
| 12.2                                   | Exceptions                                              | 36     |
| 12.3                                   | Landlord’s Termination Right                       | 37     |
| 12.4                                   | Consent of Landlord                                     | 38     |
| 12.5                                   | Tenant’s Notice                                    | 40     |
| 12.6                                   | Profit on Subleasing or Assignment                      | 40     |
| 12.7                                   | Additional Conditions                                   | 41     |
| 12.8                                   | Short-Term Subleases                                    | 42     |
|                                   |                                                    |   |
| ARTICLE XIII                      |                                                    |
| Indemnity And Insurance                | 43                                                      |
| 13.1                                   | Indemnity                                               | 43     |
| 13.2                                   | Tenant’s Risk                                      | 44     |
| 13.3                                   | Tenant’s Commercial General Liability Insurance    | 45     |
| 13.4                                   | Tenant’s Property Insurance                        | 45     |
| 13.5                                   | Tenant’s Other Insurance                           | 46     |
| 13.6                                   | Requirements for Tenant’s Insurance                | 47     |
| 13.7                                   | Additional Insureds                                     | 47     |
| 13.8                                   | Certificates of Insurance                               | 47     |
| 13.9                                   | Subtenants and Other Occupants                          | 48     |

 

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| 13.10                     | No Violation of Building Policies      | 48     |
|---------------------------|----------------------------------------|--------|
| 13.11                     | Tenant to Pay Premium Increases        | 48     |
| 13.12                     | Landlord’s Insurance              | 48     |
| 13.13                     | Waiver of Subrogation                  | 49     |
| 13.14                     | Tenant’s Work                     | 50     |
|                      |                                   |   |
| ARTICLE XIV          |                                   |
| Fire, Casualty and Taking | 50                                     |
| 14.1                      | Damage Resulting from Casualty         | 50     |
| 14.2                      | Uninsured Casualty                     | 52     |
| 14.3                      | Rights of Termination for Taking       | 52     |
| 14.4                      | Award                                  | 53     |
|                      |                                   |   |
| ARTICLE XV           |                                   |
| Default                   | 54                                     |
| 15.1                      | Tenant’s Default                  | 54     |
| 15.2                      | Termination; Re-Entry                  | 55     |
| 15.3                      | Continued Liability; Re-Letting        | 56     |
| 15.4                      | Liquidated Damages                     | 57     |
| 15.5                      | Waiver of Redemption                   | 58     |
| 15.6                      | Landlord’s Default                | 58     |
|                      |                                   |   |
| ARTICLE XVI          |                                   |
| Miscellaneous Provisions  | 58                                     |
| 16.1                      | Waiver                                 | 58     |
| 16.2                      | Cumulative Remedies                    | 59     |
| 16.3                      | Quiet Enjoyment                        | 59     |
| 16.4                      | Surrender                              | 60     |
| 16.5                      | Brokerage                              | 60     |
| 16.6                      | Invalidity of Particular Provisions    | 60     |
| 16.7                      | Provisions Binding, Etc.          | 60     |
| 16.8                      | Recording; Confidentiality             | 61     |
| 16.9                      | Notices and Time for Action            | 61     |
| 16.10                     | When Lease Becomes Binding             | 62     |
| 16.11                     | Paragraph Headings                     | 62     |
| 16.12                     | Rights of Mortgagee                    | 62     |
| 16.13                     | Rights of Ground Lessor                | 63     |
| 16.14                     | Notice to Mortgagee and Ground Lessor  | 63     |
| 16.15                     | Assignment of Rents                    | 63     |
| 16.16                     | Status Report and Financial Statements | 64     |
| 16.17                     | Self-Help                              | 65     |
| 16.18                     | Holding Over                           | 66     |
| 16.19                     | Entry by Landlord                      | 67     |
| 16.20                     | Tenant’s Payments                 | 67     |
| 16.21                     | Late Payment                           | 68     |
| 16.22                     | Counterparts                           | 68     |

 

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| 16.23             | Entire Agreement                           | 68     |
|-------------------|--------------------------------------------|--------|
| 16.24             | Limitation of Liability                    | 69     |
| 16.25             | No Partnership                             | 69     |
| 16.26             | Security Deposit                           | 69     |
| 16.27             | Waiver of Trial by Jury                    | 72     |
| 16.28             | Patriot Act and Executive Order 13224      | 72     |
| 16.29             | Governing Law                              | 74     |
| 16.30             | Tenant’s Telecommunications Equipment | 74     |
| 16.31             | Tenant’s Operational Equipment        | 77     |
| 16.32             | Emergency Generator                        | 79     |
| 16.33             | Waiver of Landlord’s Lien             | 81     |
|              |                                       |   |
| ARTICLE XVII |                                       |
| Expansion Rights  | 82                                         |
| 17.1              | Definitions                                | 82     |
| 17.2              | Third Floor Expansion Premises             | 83     |
| 17.3              | East Wing Expansion Premises               | 85     |
| 17.4              | Right of First Offer                       | 88     |

 

iv

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200 WEST STREETWALTHAM, MASSACHUSETTS

 

Lease dated May 19, 2010

 

THISINSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant arethe parties hereinafter named, and which relates to space in the building (the“Building”) known as, and having an address at, 200 West Street, Waltham,Massachusetts.

 

Theparties to this instrument hereby agree with each other as follows:

 

ARTICLE I

 

Basic Lease Provisions andEnumerations of Exhibits

 

1.1           Introduction

 

(A)          The following Sections 1.2 and 1.3 set forth thebasic data and identifying Exhibits elsewhere hereinafter referred to in thisLease, and, where appropriate, constitute definitions of the terms hereinafterlisted.

 

1.2           Basic Data

 
| Date:                                         |   | May 19,  2010                                                                                                          |
|-----------------------------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------|
|                                          |   |                                                                                                                        |
| Landlord:                                     |   | BOSTON  PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership                                                      |
|                                          |   |                                                                                                                        |
| Present  Mailing Address of Landlord:         |   | c/o  Boston Properties, Inc.  Prudential Tower  800 Boylston Street, Suite 1900  Boston, Massachusetts 02199-8103 |
|                                          |   |                                                                                                                        |
| Landlord’s  Construction Representative: |   | Richard  Monopoli and Michael Schumacher                                                                                    |
|                                          |   |                                                                                                                        |
| Tenant:                                       |   | A123  SYSTEMS, INC., a Delaware corporation                                                                            |
|                                          |   |                                                                                                                        |
| Present  Mailing Address of Tenant:           |   | Arsenal  on the Charles  321 Arsenal Street, 3rd Floor  Watertown, Massachusetts 02472                                      |
|                                          |   |                                                                                                                        |
| Tenant’s  Construction Representative:   |   | Kent  Gonzales and Jack Troast                                                                                              |

 

1

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| Lease  Term (sometimes called the “Original Lease Term”): |   | The  period beginning on the Commencement Date and ending the last day of the one  hundred twentieth (120th) full calendar month immediately following the  Commencement Date, unless extended or sooner terminated as hereinafter  provided.                                                                                                                                                                                                                                                      |
|---------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| Extension  Option:                                                  |   | One  (1) period of five (5) years as provided in and on the terms set  forth in Section 3.2 hereof.                                                                                                                                                                                                                                                                                                                                                                                 |
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| Lease  Year:                                                        |   | A  period of twelve (12) consecutive calendar months, commencing on the first  day of January in each year, except that the first Lease Year of the  Lease Term hereof shall be the period commencing on the Commencement Date and  ending on the succeeding December 31, and the last Lease Year of the  Lease Term hereof shall be the period commencing on January 1 of the  calendar year in which the Lease Term ends, and ending with the date on which  the Lease Term ends. |
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| Commencement  Date:                                                 |   | As  defined in Section 3.1 of this Lease.                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| Estimated  Commencement Date:                                       |   | April 1,  2011                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| The  Site:                                                          |   | That  certain parcel of land located on West Street, Waltham, Middlesex County,  Massachusetts, being more particularly described in Exhibit A attached  hereto.                                                                                                                                                                                                                                                                                                                              |
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| The  Building:                                                      |   | The  Building known as and numbered 200 West Street, Waltham, Massachusetts,  located on the Site, and containing the Total Rentable Floor Area set forth  below.                                                                                                                                                                                                                                                                                                                                  |
|                                                                |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| The  Complex:                                                       |   | The  Building together with all common areas, parking areas, garage, and structures  and the Site, as shown on the site plan attached hereto as Exhibit K.                                                                                                                                                                                                                                                                                                                                    |

 

2

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| Premises:                                                              |   | A  portion of the first (1st), second (2nd) and third (3rd) floors of the  Building, in accordance with the floor plans annexed hereto as Exhibit E  and incorporated herein by reference, as further defined and limited in  Section 2.1 hereof.                                                                                                                                                                                                                                                                                                                                                                                                                                               |
|------------------------------------------------------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| Rentable  Floor Area of the Premises:                                  |   | 87,924  square feet.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
|                                                                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| Annual  Fixed Rent:                                                    |   | (a) During  the period commencing on the Commencement Date and ending on the last day of  the sixtieth (60th) full calendar month immediately following the  Commencement Date, at the annual rate of $2,198,100.00 (being the product of  (x) $25.00 and (y) the Rentable Floor Area of the Premises (being  87,924 square feet)).

 

(b) During  the period commencing on the first day of the sixty-first (61st) full  calendar month immediately following the Commencement Date and ending on the  last day of the Original Lease Term, at the annual rate of $2,373,948.00 (being  the product of (x) $27.00 and (y) the Rentable Floor Area of the  Premises). |
|                                                                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| Tenant  Electricity:                                                   |   | As  provided in Section 5.2 hereof.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
|                                                                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| Additional  Rent:                                                      |   | All  charges and other sums payable by Tenant as set forth in this Lease, in  addition to Annual Fixed Rent.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
|                                                                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| Initial  Minimum Limits of Tenant’s Commercial General Liability: |   | $5,000,000.00  combined single limit per occurrence, provided that if the Rentable Floor  Area of the Premises should exceed 100,000 square feet, the aforesaid minimum  limit shall be increased to $10,000,000.00 (which such insurance limits may  be satisfied through a combination of primary and umbrella coverage).                                                                                                                                                                                                                                                                                                                                                                               |
|                                                                   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
| Total  Rentable Floor Area of the Building:                            |   | 257,384  square feet.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |

 

3

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| Number  of Parking Privileges:    |   | Four  (4) parking privileges for each 1,000 square feet of the Rentable Floor  Area of the Premises (as the same may be expanded pursuant to  Article XVII below), twenty-five percent (25%) of which will be located  in the parking structure located on the Site and the remainder of which will  be located on the surface parking areas located on the Site (all as shown on  Exhibit K attached hereto). |
|-----------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                          |
| Permitted  Use:                   |   | General  office use, light manufacturing, research labs and structures and such  accessory uses thereto as may from time to time be permitted by the Zoning  Ordinance for the City of Waltham.                                                                                                                                                                                                                               |
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                          |
| Broker:                           |   | T3  Advisors, LLC  230 CityPoint  Waltham, Massachusetts 02451                                                                                                                                                                                                                                                                                                                                                                |
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                          |
| Initial  Security Deposit Amount: |   | $1,000,000.00,  subject to reduction pursuant to Section 16.26                                                                                                                                                                                                                                                                                                                                                           |

 

1.3           Enumeration of Exhibits

 

Thefollowing Exhibits attached hereto are a part of this Lease, are incorporatedherein by reference, and are to be treated as a part of this Lease for allpurposes. Undertakings contained in such Exhibits are agreements on the part ofLandlord and Tenant, as the case may be, to perform the obligations statedtherein to be performed by Landlord and Tenant, as and where stipulatedtherein.

 
| Exhibit A   |   | — |   | Description  of the Site          |
|------------------|--------|--------|--------|-----------------------------------|
|             |   |   |   |                              |
| Exhibit B-1 |   | — |   | Landlord’s  Work             |
|             |   |   |   |                              |
| Exhibit B-2 |   | — |   | Base  Building Work               |
|             |   |   |   |                              |
| Exhibit B-3 |   | — |   | Work  Matrix                      |
|             |   |   |   |                              |
| Exhibit B-4 |   | — |   | Tenant  Plan Requirements         |
|             |   |   |   |                              |
| Exhibit B-5 |   | — |   | Construction  Management Services |
|             |   |   |   |                              |
| Exhibit B-6 |   | — |   | Tenant’s  Dry Room           |

 

4

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| Exhibit C |   | — |   | Landlord’s  Services                                        |
|----------------|--------|--------|--------|------------------------------------------------------------------|
|           |   |   |   |                                                             |
| Exhibit D |   | — |   | Building  Signage and Monument Signage                           |
|           |   |   |   |                                                             |
| Exhibit E |   | — |   | Floor  Plans                                                     |
|           |   |   |   |                                                             |
| Exhibit F |   | — |   | Third  Floor Expansion Premises and East Wing Expansion Premises |
|           |   |   |   |                                                             |
| Exhibit G |   | — |   | Form of  Commencement Date Agreement                        |
|           |   |   |   |                                                             |
| Exhibit H |   | — |   | Broker  Determination of Prevailing Market Rent                  |
|           |   |   |   |                                                             |
| Exhibit I |   | — |   | Form of  Letter of Credit                                   |
|           |   |   |   |                                                             |
| Exhibit J |   | — |   | Form of  Notice of Lease                                    |
|           |   |   |   |                                                             |
| Exhibit K |   | — |   | Site  Plan                                                       |
|           |   |   |   |                                                             |
| Exhibit L |   | — |   | Form of  Certificate of Insurance                           |
|           |   |   |   |                                                             |
| Exhibit M |   | — |   | Prior  Rights                                                    |
|           |   |   |   |                                                             |
| Exhibit N |   | — |   | Tenant’s  Operational Equipment                             |

 

ARTICLE II

 

Premises

 

2.1           Demise and Lease of InitialPremises

 

Landlordhereby demises and leases to Tenant, and Tenant hereby hires and accepts fromLandlord, the Premises in the Building. Tenant shall also have the exclusiveright to use the loading dock being provided by Landlord as part of the BaseBuilding Work (as that term is defined in Exhibit B-1 attached hereto),which such loading dock shall be deemed to be a part of the Premises for allintents and purposes under this Lease (although the same shall not be deemed tohave any rentable floor area). The Premises shall exclude exterior faces ofexterior walls, the common stairways and stairwells, elevators and elevatorwalls, mechanical rooms, electric and telephone closets, janitor closets, andpipes, ducts, shafts, conduits, wires and appurtenant fixtures servingexclusively or in common other parts of the Building, and if the Premisesincludes less than the entire rentable area of any floor, shall also excludethe common corridors, elevator lobbies and toilets located on such floor.

 

5

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2.2           Expansion Rights

 

Tenantmay further expand the Premises pursuant to expansion rights more particularlyset forth in Article XVII.

 

2.3           Appurtenant Rights andReservations

 

Subjectto Landlord’s right to change or alter any of the following in Landlord’sdiscretion as herein provided, Tenant shall have, as appurtenant to thePremises, the non-exclusive right to use in common with others, but not in amanner or extent that would materially interfere with the normal operation anduse of the Building as a multi-tenant office building and subject to reasonablerules of general applicability to tenants of the Building from time totime made by Landlord of which Tenant is given notice: (a) the commonlobbies, corridors, stairways, and elevators of the Building, and the pipes,ducts, shafts, conduits, wires and appurtenant meters and equipment serving thePremises in common with others, (b) the loading areas serving the Building(provided, however, that Tenant may only utilize the common loading areas forthe delivery and loading of materials of a type and nature consistent withgeneral office use; all other materials shall be delivered to and/or loaded atthe loading dock being provided for Tenant’s exclusive use underSection 2.1 above) and the common walkways and driveways necessary foraccess to the Building, (c) if the Premises include less than the entirerentable floor area of any floor, the common toilets, corridors and elevatorlobby of such floor, and (d) the cafeteria, if any, and fitness center(including machine weights, free weights and cardiovascular equipment) providedby Landlord for the use and enjoyment of tenants of the Complex (Landlordhereby agreeing, so long as Tenant leases and together with permitted assigneesand/or subtenants under Article XII below occupies at least 87,924 squarefeet of rentable floor area in the Building, (i) to operate a cafeteria inthe Complex and (ii) to consult with Tenant in good faith regarding theongoing contract with the cafeteria operator, provided, however, that the finaldecision as to all matters regarding the contract with such cafeteria operatorshall be made by Landlord in its reasonable discretion). Tenant shall have theright to contract separately with its own telecommunication service providerand Landlord will not unreasonably withhold consent to any request by Tenant toallow such provider to have access to the Building or to the Premises, providedthat Landlord may condition such access, without limitation of the foregoing,on Landlord’s approval of the identity of the service provider, its executionof an access and easement agreement satisfactory to Landlord and, shouldtelecommunications services be furnished by such service provider to bothTenant and other tenants and occupants in the Building, then subject to the paymentto Landlord by the service provider of fees assessed by Landlord in itsreasonable discretion.

 

Landlordreserves the right from time to time, without material interference withTenant’s use: (a) to install, use, maintain, repair, replace and relocatefor service to the Premises and other parts of the Building, or either, pipes,ducts, conduits, wires and appurtenant fixtures, wherever located in thePremises or the Building, and (b) to alter or relocate any other commonfacility, provided that substitutions are substantially equivalent or better.Installations, replacements and relocations referred to in clause(a) above shall be located so far as practicable in the central core areaof the Building, above ceiling surfaces, below floor surfaces or withinperimeter walls of the Premises. Except in the case of

 

6

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emergenciesor for normal cleaning and maintenance work, Landlord agrees to use its bestefforts to give Tenant reasonable advance notice of any of the foregoingactivities which require work in the Premises. In all cases, Landlord shall usecommercially reasonable efforts to minimize or avoid inconvenience to Tenant inconnection with its exercise of the rights granted herein (consistent with thenature of the rights being exercised).

 

ARTICLE III

 

Lease Term and ExtensionOption

 

3.1           Term

 

TheTerm of this Lease shall be the period specified in Section 1.2 hereof asthe “Lease Term,” unless sooner terminated or extended as herein provided. TheCommencement Date shall be as determined in accordance withSection 1.3(C) of Exhibit B-1 attached hereto.

 

Assoon as may be convenient after the date has been determined on which the Termcommences as aforesaid, Landlord and Tenant agree to join with each other inthe execution, in the form of Exhibit G hereto, of a written Declarationin which the commencement date shall be stated. If Tenant shall fail to executesuch Declaration, such commencement date shall be as reasonably determined byLandlord in accordance with the terms of this Lease.

 

3.2           Extension Option

 

(A)          On the conditions (which conditions Landlord maywaive by written notice to Tenant) that both at the time of exercise of theherein described option to extend and as of the commencement of the ExtendedTerm (i) there exists no monetary or material non-monetary “Event ofDefault” (defined in Section 15.1), (ii) this Lease is still in fullforce and effect, and (iii) Tenant has neither assigned this Lease norsublet more than fifty percent (50%) of the Rentable Floor Area of the Premises(except for an assignment or subletting permitted in accordance with Sections12.2 and 12.8 hereof), Tenant shall have the right to extend the Term hereofupon all the same terms, conditions, covenants and agreements herein contained(except for the Annual Fixed Rent and tax and operating cost bases, which shallbe adjusted during the option period as hereinbelow set forth and except thatthere shall be no further option to extend) for one (1) period of five(5) years as hereinafter set forth. Such option period is sometimes hereinreferred to as the “Extended Term.” Notwithstanding any implication to thecontrary, Landlord has no obligation to make any additional payment to Tenantin respect of any construction allowance or the like or to perform any work tothe Premises as a result of the exercise by Tenant of any such option.

 

(B)           If Tenant desires to exercise said option to extendthe Term, then Tenant shall give notice (the “Extension Term Exercise Notice”)to Landlord, not earlier than eighteen (18) months nor later than twelve (12)months prior to the expiration of the Original

 

7

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Lease Term, exercising such option to extend. Withinthirty (30) days after Landlord’s receipt of the Extension Term ExerciseNotice, Landlord shall provide Landlord’s quotation to Tenant of a proposedannual rent for the Extended Term (“Landlord’s Extension Term Rent Quotation”).If at the expiration of thirty (30) days after Tenant’s receipt of Landlord’sExtension Term Rent Quotation (the “Extension Term Negotiation Period”),Landlord and Tenant have not reached agreement on a determination of an annualrental for the Extended Term and executed a written instrument extending theTerm of this Lease pursuant to such agreement, then Tenant shall have theright, for thirty (30) days following the expiration of the Extension TermNegotiation Period, to make a request to Landlord for a broker determination(the “Broker Determination”) of the Prevailing Market Rent (as defined inExhibit H) for the Extended Term, which Broker Determination shall be madein the manner set forth in Exhibit H. If Tenant timely shall haverequested the Broker Determination, then the Annual Fixed Rent for the ExtendedTerm shall be an amount equal to ninety-five percent (95%) of the PrevailingMarket Rent as determined by the Broker Determination. If Tenant does nottimely request the Broker Determination, then Tenant shall be deemed to haveelected to withdraw its Extension Term Exercise Notice, in which event Tenant’soption to extend shall be deemed null and void and of no further force oreffect.

 

Notwithstandingthe time periods set forth in the immediately preceding paragraph within whichTenant must deliver its Extension Term Exercise Notice, if the Premises isexpanded pursuant to Article XVII below (or pursuant to a subsequentagreement between Landlord and Tenant) to consist of more than 97,242 but lessthan 200,000 square feet of rentable floor area, then if Tenant desires toexercise its option to extend the Term it shall give the Extension TermExercise Notice not earlier than twenty-one (21) nor later than fifteen (15)months prior to the expiration of the Original Lease Term.  If the Premises is expanded to consist of200,000 square feet of rentable floor area or more, then if Tenant desires toexercise its option to extend the Term it shall give the Extension TermExercise Notice not earlier than twenty-four (24) nor later than eighteen (18)months prior to the expiration of the Original Lease Term.  Notwithstanding the foregoing, Tenant shallnot lose its option to extend the Term if Tenant exercises an expansion optionthat causes it to exceed one of the above square footage thresholds after theapplicable notice period for such threshold has otherwise passed (i.e. ifTenant exercises an expansion option during the sixteenth (16th) month prior tolease expiration that increases the size of the Premises to 210,000 squarefeet, Tenant will still have the option to extend the Term notwithstanding thefact that the Premises is now of a size where notice would have had to havebeen provided eighteen (18)  months priorto the expiration of the Original Lease Term). In such event, Tenant shall beentitled to exercise its extension option within the time period it otherwisewould have been required to do so under this Section 3.2(B) but forsuch expansion.

 

(C)           Base Taxes (as that term is defined inSection 6.2(f) below) applicable during the Extended Term shall meanLandlord’s Tax Expenses for the then-current fiscal tax year as of thecommencement of the Extended Term. Base Operating Expenses (as that term isdefined in Section 7.4 below) during the Extended Term shall meanLandlord’s Operating Expenses for the calendar year in which such Extended Termcommences.

 

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(D)          Upon the first to occur of (i) the agreement byLandlord and Tenant during the Extension Term Negotiation Period on an AnnualFixed Rent for the Extended Term or (ii) the timely request by Tenant fora Broker Determination in accordance with the provisions of subsection (B) above,then this Lease and the Lease Term hereof shall automatically be deemedextended, for the Extended Term, without the necessity for the execution of anyadditional documents, except that Landlord and Tenant agree to enter into aninstrument in writing setting forth the Annual Fixed Rent for the Extended Termas determined in the relevant manner set forth in this Section 3.2; and insuch event all references herein to the Lease Term or the term of this Leaseshall be construed as referring to the Lease Term, as so extended, unless thecontext clearly otherwise requires, and except that there shall be no furtheroption to extend the Lease Term. Notwithstanding anything contained herein tothe contrary, in no event shall the Lease Term hereof be extended for more thanfive (5) years after the expiration of the Original Lease Term hereof.

 

(E)           Time is of the essence with respect to theprovisions of this Section 3.2

 

ARTICLE IV

 

Condition of Premises;Signage

 

4.1           Condition of Premises

 

Thecondition of the Premises upon Landlord’s delivery along with any work to beperformed by either Landlord or Tenant shall be as set forth in the WorkAgreement attached hereto as Exhibit B-1 and made a part hereof.

 

4.2           Signage

 

(A)          Premises Signage.  Landlord shall provide and install, atLandlord’s expense, letters or numerals at the main entrance to the Premises toidentify Tenant’s name and Building address; all such letters and numeralsshall be in the building standard graphics and no others shall be used orpermitted on the Premises.

 

(B)           Lobby Signage.  Landlord shall, during the Term of thisLease, provide Tenant with a listing of Tenant’s name on all tenant directoriesin the Building and, at Tenant’s request, the name of Tenant’s subtenants. Theinitial listing of Tenant’s name shall be at Landlord’s cost and expense. Anychanges, replacements or additions by Tenant to such directory shall be atTenant’s sole cost and expense.

 

(C)           Monument Signage.  Tenant shall have the right, effective as ofthe Commencement Date and at its sole cost and expense (but with no separatecharge by Landlord for the signage rights themselves), to have its name andcorporate logo on the existing monument located at the south side of theentrance to the driveway off of West Street (“Monument Signage”).  Tenant’s right to Monument Signage shall benon-exclusive.

 

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(D)          Building Signage.  Tenant shall have the right, effective as ofthe Commencement Date and at its sole cost and expense (but with no separatecharge by Landlord for the signage rights themselves), to design and installone (1) illuminated identification sign with Tenant’s name and corporatelogo on the exterior façade of the Building (the “Building Signage”), subjectto applicable zoning requirements and other applicable laws and to Tenantobtaining all necessary permits and approvals therefor (Landlord herebyagreeing to cooperate with Tenant, at no cost or expense to Landlord, inTenant’s obtaining of such permits and approvals). Tenant’s right to BuildingSignage shall be exclusive for the entire east wing of the Building (Landlordhereby reserving the right to grant signage rights to others on the west wingof the Building).

 

(E)           Conditions.  The location, design (including the manner ofillumination, in the case of the Building Signage), proportions and color ofthe Monument Signage and the Building Signage shall all be subject to the priorapproval of Landlord, which approval is hereby granted for the signs shown onExhibit D attached hereto (and shall otherwise not be unreasonablywithheld, conditioned or delayed with respect to any proposed signage that isconsistent in size, design and location with the signage shown on Exhibit D).Landlord shall reasonably cooperate with Tenant in obtaining any localapprovals required for the Building Signage or the Monument Signage (providedthat Landlord shall not be put to any cost or expense in connection therewith).Notwithstanding the foregoing provisions of this Section 4.2 to thecontrary, within ninety (90) days after the first to occur (if either) of (x) thedate on which the Term of this Lease is terminated due to a Tenant defaultpursuant to the terms and provisions of Section 15.2 below and (y) suchtime as Tenant has assigned this Lease or shall directly lease and occupy lessthan 67,402 square of rentable floor area in the east-wing of the Building(excluding assignments and subleases permitted in accordance with Sections 12.2and 12.8 below), then Tenant shall, at its cost and expense, remove theMonument Signage and the Building Signage and restore all damage to theBuilding and the Site caused by the installation and/or removal of suchMonument Signage or Building Signage. Such removal and restoration shall beperformed in accordance with the terms and conditions governing alterationspursuant to Article IX below. The right to the Building Signage grantedpursuant to this Section 4.2 is personal to A123 Systems, Inc. andmay not be transferred to any third party (other than to a Tenant Affiliate orPermitted Tenant Successor under Section 12.2 below). The right to theMonument Signage may be transferred (x) to a Tenant Affiliate or PermittedTenant Successor under Section 12.2 below and (y) subject toLandlord’s reasonable approval, to any other approved assignee or subtenant,but no more than one (1) time during the Lease Term.

 

ARTICLE V

 

Annual Fixed Rent andElectricity

 

5.1           Fixed Rent and ElectricityCharges

 

Tenantagrees to pay to Landlord, or as directed by Landlord, at Landlord’s PresentMailing Address specified in Section 1.2 hereof, or at such other place asLandlord shall

 

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fromtime to time designate by notice, (1)(a) on the Commencement Date, andthereafter monthly, in advance, on the first day of each and every calendarmonth during the Original Lease Term, a sum equal to one-twelfth (1/12th) ofthe Annual Fixed Rent specified in Section 1.2 hereof and (b) on theCommencement Date and thereafter monthly, in advance, on the first day of eachand every calendar month during the Original Lease Term, an amount estimated byLandlord from time to time to cover Tenant’s monthly payments for electricityunder Section 5.2 hereinbelow, and (2) on the first day of each andevery calendar month during the Extended Term (if exercised), a sum equal to(a) one-twelfth of the Annual Fixed Rent as determined in Section 3.2for the Extended Term plus (b) then applicable monthly electricity charges(subject to adjustment as provided in Section 5.2). Until notice of someother designation is given, fixed rent and all other charges for whichprovision is herein made shall be paid by remittance to or for the order ofBoston Properties Limited Partnership either (i) by mail to P.O. Box3557, Boston, Massachusetts 02241-3557, (ii) by wire transfer to Bank ofAmerica in Dallas, Texas, Bank Routing Number 0260-0959-3 or (iii) by ACHtransfer to Bank of America in Dallas, Texas, Bank Routing Number 111 000 012,and in the case of (ii) or (iii) referencing Account Number3756454460, Account Name of Boston Properties, LP, Tenant’s name and theProperty address.

 

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

 

AdditionalRent payable by Tenant on a monthly basis, as elsewhere provided in this Lease,likewise shall be prorated, and the first payment on account thereof shall bedetermined in similar fashion and shall commence on the Commencement Date andother provisions of this Lease calling for monthly payments shall be read asincorporating this undertaking by Tenant.

 

TheAnnual Fixed Rent and all other charges for which provision is made in thisLease shall be paid by Tenant to Landlord without setoff, deduction orabatement except as expressly otherwise provided in this Lease.

 

5.2           Tenant Electricity

 

(A)          As of the date of this Lease, separate check meters(“Main Check Meters”) have been installed to measure tenant electric usage oneach floor of the Building. If a Main Check Meter serves only the Premises orthe entire floor leased to a tenant, it is herein referred to as a “dedicated”Main Check Meter; if it serves the Premises in common with other premises, itis herein referred to as a “shared” Main Check Meter. Such Main Check Meter(s) shallonly measure electricity used for lights and electrical equipment utilized inthe Premises, and fan-powered and variable air volume boxes which are part ofthe HVAC system serving the Premises. Any further equipment (includingsupplemental

 

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HVAC equipment) installed by or for Tenant shallhave separate check meter(s) (“Supplemental Check Meters”) installed atTenant’s expense. On each floor there shall be one or more Main Check Meter(s) servingall of the floor such that the portions of the Premises located on full floorsshall be served by dedicated Main Check Meters, and on multi-tenant floorsLandlord may require that the tenants (at their sole cost and expense) installMain Check Meters relating to their premises (to the extent there are no MainCheck Meters already installed serving only such premises) and SupplementalCheck Meters to separately meter special usage within tenant premises such ascomputer rooms. With respect to any portion of the Premises that may in thefuture not be separately check metered on a dedicated Main Check Meter,Landlord will not unreasonably withhold its consent to Tenant to installdedicated Main Check Meter(s) serving solely such portion of the Premisesat Tenant’s sole cost and expense.

 

(B)           Tenant’s share of the costs of electricity shall bedetermined by Landlord on the following basis:

 

(i)            Landlord will cause thecheck meters serving the Premises to be read periodically, but not less oftenthan once every six (6) months during the first two (2) years of theTerm and once every twelve (12) months thereafter. Tenant shall have reasonableaccess to such check meters to read the same.

 

(ii)           For portions of the Premisesserved by dedicated Main Check Meter(s), and for all Supplemental CheckMeter(s) serving the Premises, Tenant’s allocable share of electricitycosts for the period (“Tenant’s Electricity Payment”) shall be determined bymultiplying the actual average cost per kilowatt hour by the number of kilowatthours utilized by Tenant for such period as indicated by the dedicated MainCheck Meter(s) and Supplemental Check Meter(s) for Tenant’s Premises.

 

(iii)          For portions of the Premisesserved by shared Main Check Meter(s), if any, the Tenant’s Electricity Paymentshall be determined by multiplying the cost per kilowatt hour by the number ofkilowatt hours utilized as indicated by such shared Main Check Meter(s), andmultiplying such total cost by a fraction, the numerator of which is therentable area leased to Tenant and the denominator of which is the totalrentable area under lease to tenants (inclusive of any vacant spaces whereelectricity is being used on a regular basis) served by such shared Main CheckMeter(s); provided, however, that if Landlord shall reasonably determine thatthe cost of electricity furnished to the Tenant at such portion of the Premisesexceeds the amount being paid by Tenant, then Landlord shall deliver to Tenantwritten documentation establishing Landlord’s basis for such determination andLandlord may charge Tenant for such excess

 

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and Tenant shall promptly pay the same upon billingtherefor as Additional Rent under the Lease, subject to Tenant’s right tochallenge such determination pursuant to Section 2.6.1.

 

(iv)          Where part or all of therentable area on a floor has been occupied for less than all of the period for whichadjustments are being made, appropriate and equitable modifications shall bemade to the allocation formula so that each tenant’s allocable share of costsequitably reflects its period of occupancy, provided that in no event shall thetotal of all costs as allocated to tenants (or to unoccupied space) be lessthan the total cost of electricity for such floor for said period.

 

(C)           Tenant shall make estimated payments on account ofTenant’s Electricity Payment, as reasonably estimated by Landlord, on a monthlybasis in accordance with Section 5.1 above. No later than one hundredtwenty (120) days after the end of each calendar year falling within the LeaseTerm, Landlord shall render Tenant a statement in reasonable detail certifiedby a representative of Landlord, showing for the preceding calendar year theTenant’s Electricity Payment. Said statement to be rendered to Tenant alsoshall show for such period the amounts already paid by Tenant on account ofTenant’s Electricity Payment and the amount of Tenant’s Electricity Paymentremaining due from, or overpaid by, Tenant for the period covered by thestatement. If such statement shows a balance remaining due to Landlord, Tenantshall pay same to Landlord on or before the thirtieth (30th) day following receiptby Tenant of said statement. Any balance shown as due to Tenant shall becredited against Annual Fixed Rent next due, or refunded to Tenant if the LeaseTerm has then expired and Tenant has no further obligation to Landlord. Allpayments by Tenant on account of Tenant’s Electricity Payment shall be deemedAdditional Rent and shall be made monthly at the time and in the fashion hereinprovided for the payment of Annual Fixed Rent. Tenant shall have the right toexamine Landlord’s records relating to Tenant’s Electricity Payment and todispute the amounts claimed to be owed by Landlord in accordance with theprovisions of Section 2.6.1 of this Lease.

 

(D)          All costs of electricity billed to Landlord, otherthan the costs of tenant electricity allocated pursuant to the proceduresestablished herein, shall be treated as part of Landlord’s Operating Expensesfor purposes of determining the allocation of those costs. Taxes imposed uponthe electricity furnished to the Building shall be included in the calculationof electricity charges payable under this Lease, however, there shall not beincluded in such electricity charges any tax imposed upon Landlord on accountof Landlord’s sale, use or resale of electrical energy to Tenant or othertenants in the Building (i.e., no double taxation due to the fact that Landlordis not a licensed reseller of electricity).

 

(E)           Landlord shall be responsible for the maintenance ofthe Main Check Meter(s) and Tenant shall be responsible for themaintenance of the Supplemental Check Meter(s).

 

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ARTICLE VI

 

Taxes

 

6.1           Definitions

 

Withreference to the real estate taxes referred to in this Article VI, it isagreed that terms used herein are defined as follows:

 

(a)           “Tax Year” means the12-month period beginning July 1 each year during the Lease Term or if theappropriate Governmental tax fiscal period shall begin on any date other thanJuly 1, such other date.

 

(b)           “Landlord’s Tax ExpensesAllocable to the Premises” means the same proportion of Landlord’s Tax Expensesas the Rentable Floor Area of the Premises bears to the Total Rentable FloorArea of the Building.

 

(c)           “Landlord’s Tax Expenses”with respect to any Tax Year means the aggregate “real estate taxes”(hereinafter defined) with respect to that Tax Year, reduced by any netabatement receipts with respect to that Tax Year.

 

(d)           “Real estate taxes” meansall taxes and special assessments of every kind and nature and user fees andother like fees assessed by any Governmental authority on the Building, theSite or the Complex which the Landlord shall be obligated to pay because of orin connection with the ownership, leasing and operation of the Complex, theBuilding and the Site and reasonable expenses of and fees for any formal orinformal proceedings for negotiation or abatement of taxes (collectively,“Abatement Expenses”), which Abatement Expenses shall be excluded from BaseTaxes. The amount of special taxes or special assessments to be included shallbe limited to the amount of the installment (plus any interest other thanpenalty interest payable thereon) of such special tax or special assessmentrequired to be paid during the year in respect of which such taxes are beingdetermined. There shall be excluded from such taxes all income, estate,succession, inheritance, transfer, gift, capital stock or any income taxesarising out of or related to ownership and operation of income-producing realestate, or any excise taxes imposed upon Landlord based upon gross or net rentalsor other income received by it or any increase in taxes to the extent resultingsolely from Landlord’s sale of, or otherwise transfer of its interest in, theComplex or the Building; provided, however, that if at any time during theLease Term the present system of ad valorem taxation of real property shall bechanged so that in lieu of, or in addition to, the whole or any part of the advalorem tax on real property, there shall be assessed on Landlord a capitallevy or other tax on the gross rents received with respect to the Complex orBuilding, or a Federal, State, County, Municipal, or other local income,franchise, excise or similar tax,

 

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assessment, levy or charge (distinct from any now ineffect in the jurisdiction in which the Property is located) measured by orbased, in whole or in part, upon any such gross rents, then any and all of suchtaxes, assessments, levies or charges, to the extent so measured or based,shall be deemed to be included within the term “real estate taxes” but only tothe extent that the same would be payable if the Site or Building were the onlyproperty of Landlord. Notwithstanding the foregoing, “real estate taxes” shallnot include and Tenant shall not be required to pay any portion of any tax orassessment expense or any increase therein (a) levied on Landlord’s rentalincome, unless such tax or assessment is imposed in lieu of real property taxesas set forth above; (b) in excess of the amount which would be payable ifsuch tax or assessment expense were paid in installments over the longestpermitted term; or (c) imposed on land and improvements other than theSite.

 

(e)           “Base Taxes” meansLandlord’s Tax Expenses for fiscal tax year 2011 (that is, the period beginningJuly 1, 2010 and ending June 30, 2011).

 

(f)            “Base Taxes Allocable to thePremises” means the same proportion of Base Taxes as the Rentable Floor Area ofthe Premises bears to the Total Rentable Floor Area of the Building.

 

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

 

Nothingcontained in this Section 6.2 shall entitle Landlord to collect,collectively from all of the tenants of the Complex, an amount exceeding onehundred percent (100%) of Landlord’s Tax Expenses incurred by Landlord withrespect to the pertinent Tax Year (any collected amount exceeding 100% ofLandlord’s Tax Expenses with respect to any such Tax Year being referred toherein as “Tax Collection Surplus”), and Landlord shall, except with respect toBase Taxes, credit any Tax Collection Surplus against the aggregate ofLandlord’s Tax Expenses incurred with respect to such Tax Year, which shallreduce the same for all purposes hereunder.

 

6.2           Tenant’s Share of RealEstate Taxes

 

Ifwith respect to any full Tax Year or fraction of a Tax Year falling within theLease Term Landlord’s Tax Expenses Allocable to the Premises for a full TaxYear exceed Base Taxes Allocable to the Premises or for any such fraction of aTax Year exceed the corresponding fraction of Base Taxes Allocable to thePremises (such amount being hereinafter referred to as the “Tax Excess”), thenTenant shall pay to Landlord, as Additional Rent, the amount of such TaxExcess. Payments by Tenant on account of the Tax Excess shall be made monthlyat the time and in the fashion herein provided for the payment of Annual FixedRent. The amount so to be paid to Landlord shall be an amount from time to timereasonably estimated by Landlord to be sufficient to provide Landlord,

 

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inthe aggregate, a sum equal to the Tax Excess, ten (10) days at leastbefore the day on which tax payments by Landlord would become delinquent. Notlater than ninety (90) days after Landlord’s Tax Expenses Allocable to thePremises are determinable for the first such Tax Year or fraction thereof andfor each succeeding Tax Year or fraction thereof during the Lease Term,Landlord shall render Tenant a statement in reasonable detail certified by arepresentative of Landlord showing for the preceding year or fraction thereof,as the case may be, real estate taxes on the Building and Lot, abatements andrefunds, if any, of any such taxes and assessments, expenditures incurred inseeking such abatement or refund, the amount of the Tax Excess, the amountthereof already paid by Tenant and the amount thereof overpaid by, or remainingdue from Tenant for the period covered by such statement. Within thirty (30)days after the receipt of such statement, Tenant shall pay any sum remainingdue. Any balance shown as due to Tenant shall be credited against Annual FixedRent next due, or refunded to Tenant if the Lease Term has then terminated orexpired and Tenant has no further obligation to Landlord. Expenditures forlegal fees and for other expenses incurred in obtaining an abatement or refundmay be charged against the abatement or refund before the adjustments are madefor the Tax Year.

 

Tothe extent that real estate taxes shall be payable to the taxing authority ininstallments with respect to periods less than a Tax Year, the statement to befurnished by Landlord shall be rendered and payments made on account of suchinstallments.

 

ARTICLE VII

 

Landlord’s Repairs andServices and Tenant’s Escalation Payments

 

7.1           Structural Repairs

 

Exceptfor (a) normal and reasonable wear and use and (b) damage caused byfire or casualty and by eminent domain, Landlord shall, throughout the LeaseTerm, at Landlord’s sole cost and expense, keep and maintain in good order,condition and repair the following portions of the Building: the structuralportions of the roof, the exterior and load bearing walls, the foundation, thestructural columns and floor slabs and other structural elements of theBuilding and the parking garage located on the Site; provided however, thatTenant shall pay to Landlord, as Additional Rent, the cost of any and all suchrepairs which may be required as a result of repairs, alterations, orinstallations made by Tenant or any subtenant, assignee, licensee orconcessionaire of Tenant or any agent, servant, employee or contractor of anyof them or to the extent of any loss, destruction or damage caused by theomission or negligence of Tenant, any assignee or subtenant or any agent,servant, employee, customer, visitor or contractor of any of them.

 

7.2           Other Repairs to be Made byLandlord

 

Exceptfor (a) normal and reasonable wear and use and (b) damage caused byfire or casualty and by eminent domain, and except as otherwise provided inthis Lease and subject to provisions for reimbursement by Tenant as containedin Section 7.5, Landlord

 

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agreesto keep and maintain in good order, condition and repair the common areas andfacilities of the Building, the Site and the Complex, including all paved areasand landscaped areas from time to time in existence, and all heating,ventilating, air conditioning, plumbing and other Building systems equipmentservicing the Premises (including all lines, pipes, wires, conduits and thelike except to the extent serving the Premises exclusively), except thatLandlord shall in no event be responsible to Tenant for (a) the conditionof glass in and about the Premises (other than for glass in exterior walls forwhich Landlord shall be responsible unless the damage thereto is attributableto Tenant’s negligence or misuse, in which event the responsibility thereforshall be Tenant’s), or (b) for any condition in the Premises or theBuilding caused by any act or neglect of Tenant or any agent, employee,contractor, assignee, subtenant, licensee, concessionaire or invitee of Tenant.Without limitation, Landlord shall not be responsible to make any improvementsor repairs to the Building or the Premises other than as expressly provided inSection 7.1 or in this Section 7.2, unless expressly otherwiseprovided in this Lease.

 

7.3           Services to be Provided byLandlord

 

Inaddition, and except as otherwise provided in this Lease and subject toprovisions for reimbursement by Tenant as contained in Section 7.6 andTenant’s responsibilities in regard to electricity as provided in Section 5.2,Landlord agrees to furnish services, utilities, facilities and supplies setforth in Exhibit C hereto equal in quality comparable to those customarilyprovided by landlords in high quality buildings in the Central Suburban 128Market. In addition, Landlord agrees to furnish, at Tenant’s expense,reasonable additional Building operation services which are usual and customaryin similar buildings in Central Suburban 128 Market, and such additionalspecial services as may be mutually agreed upon by Landlord and Tenant, uponreasonable and equitable rates from time to time established by Landlord.Tenant agrees to pay to Landlord, as Additional Rent, the cost of any suchadditional Building services requested by Tenant and for the cost of anyadditions, alterations, improvements or other work performed by Landlord in thePremises at the request of Tenant within thirty (30) days after being billedtherefor.

 

Notwithstandinganything contained in this Lease to the contrary, Landlord shall have noobligation to provide Tenant with cleaning and janitorial services (asdescribed in Exhibit C attached hereto) to any portion of the Premises notbeing used for general office purposes (it being understood and agreed thatTenant shall directly obtain such services on its own behalf and at its solecost and expense).

 

7.4           Operating Costs Defined

 

“OperatingExpenses Allocable to the Premises” means the same proportion of Landlord’sOperating Expenses (as hereinafter defined) as the Rentable Floor Area of thePremises bears to 95% of the Total Rentable Floor Area of the Building. “BaseOperating Expenses” means Landlord’s Operating Expenses for calendar year 2011(that is, the period beginning on January 1, 2011 and ending on December 31,2011). Base Operating

 

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Expensesshall not include (x) market-wide cost increases due to extraordinarycircumstances, including but not limited to, Force Majeure (as defined inSection 14.1), boycotts, strikes, conservation surcharges, embargoes orshortages which apply only to the Base Year but no other year, other than theyear immediately prior to the Base Year or the year immediately following theBase Year and (y) the cost of any Permitted Capital Expenditures (ashereinafter defined). “Base Operating Expenses Allocable to the Premises” means(i) the same proportion of Base Operating Expenses as the Rentable FloorArea of the Premises bears to 95% of the Total Rentable Floor Area of theBuilding.

 

“Landlord’sOperating Expenses” means the cost of operation of the Building and the Siteincurred by Landlord, including those incurred in discharging Landlord’sobligations under Sections 7.2 and 7.3. Such costs shall exclude payments ofdebt service and any other mortgage or ground lease charges, brokeragecommissions, real estate taxes (to the extent paid pursuant to Section 6.2hereof) and costs of special services rendered to tenants (including Tenant)for which a separate charge is made, but shall include, without limitation:

 

(a)           compensation,wages and all fringe benefits, worker’s compensation insurance premiums andpayroll taxes paid to, for or with respect to all persons for their services inthe operating, maintaining or cleaning of the Building or the Site;

 

(b)           payments underservice contracts with independent contractors for operating, maintaining or cleaningof the Building or the Site;

 

(c)           steam, water,sewer, gas, oil, electricity and telephone charges (excluding such utilitycharges separately chargeable to tenants for additional or separate servicesand electricity charges payable by Tenant pursuant to Section 5.2 above)and costs of maintaining letters of credit or other security as may be requiredby utility companies as a condition of providing such services;

 

(d)           cost ofmaintenance, cleaning and repairs (other than repairs not properly chargeableagainst income or reimbursed from contractors under guarantees);

 

(e)           cost ofoperating and maintaining a fitness center and food service facility in theBuilding, less any rent or other amounts received by Landlord from anythird-party operators of such facilities;

 

(f)            cost of snowremoval and care of landscaping;

 

(g)           cost ofbuilding and cleaning supplies and equipment;

 

(h)           premiums forinsurance carried with respect to the Building and the Site (including, withoutlimitation, liability insurance, insurance against loss in 

 

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case of fire or casualty and of monthly installmentsof Annual Fixed Rent and any Additional Rent which may be due under this Leaseand other leases of space in the Building for not more than twelve (12) monthsin the case of both Annual Fixed Rent and Additional Rent and, if there be anyfirst mortgage on the Property, including such insurance as may be required bythe holder of such first mortgage);

 

(i)            management fees atreasonable rates for self managed buildings in the Central Suburban 128 Marketconsistent with the type of occupancy and the services rendered, which suchmanagement fees shall not exceed three and one-half percent (3.5%) of the totalGross Rents for the Building (“Gross Rents for the Building” for the purposeshereof being defined as all annual fixed rent, Landlord’s Operating Expenses,with the exception of the aforesaid management fees, and Landlord’s TaxExpenses for the Building for the relevant calendar year) (it being understoodand agreed that in determining the amount of Landlord’s Operating Expenses forany calendar year or portion thereof falling within the Lease Term where themanagement fee is calculated based on a percentage of Gross Rents for theBuilding that is higher than the actual percentage used during the Base Year, themanagement fee for the Base Year shall be adjusted so that it shall be based onthe same percentage of Gross Rents for the Building used in the subsequentcalendar year at issue).

 

(j)            depreciation for capitalexpenditures made by Landlord during the Lease Term (x) to reduceOperating Expenses if Landlord reasonably shall have determined that the annualreduction in Operating Expenses shall exceed depreciation therefor or (y) tocomply with Legal Requirements that first become applicable to the Building orthe Property after Commencement Date (the capital expenditures described insubsections (x) and (y) being hereinafter referred to as “PermittedCapital Expenditures”) plus, in the case of (x) and (y), an interestfactor, reasonably determined by Landlord, as being the interest rate thencharged for long term mortgages by institutional lenders on like properties inthe Central Suburban 128 Market, and depreciation in the case of (x) and(y) shall be determined by dividing the original cost of such capitalexpenditure by the number of years of useful life of the capital item acquired,which useful life shall be determined reasonably by Landlord in accordance withgenerally accepted accounting principles and practices in effect at the time ofacquisition of the capital item;

 

(k)           the pro rata share allocableto the Building of imputed rental costs of maintaining a regional propertymanagement office of a reasonable size given the number and square footage ofproperties managed (and the fact that as of the date hereof, Landlord is aself-administered and self-managed real estate investment trust), which prorata share shall be equal to a fraction, the numerator of which is the TotalRentable Floor Area of

 

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the Building and the denominator of which is thetotal rentable floor area of all buildings managed by the staff of suchregional property management office; and

 

(l)            all other reasonable andnecessary expenses paid in connection with the operating, cleaning andmaintenance of the Building, the Site and said common areas and facilities andproperly chargeable against income.

 

Notwithstandingthe foregoing, the following shall be excluded from Landlord’s OperatingExpenses:

 

(i)            All capital expenditures anddepreciation, except as otherwise explicitly provided in this Section 7.4;

 

(ii)           Interest on indebtedness,debt amortization, ground rent, and refinancing costs for any mortgage orground lease of the Building or the Site;

 

(iii)          Legal, auditing, consultingand professional fees and other costs (other than those legal, auditing,consulting and professional fees and other costs incurred in connection withthe normal and routine maintenance and operation of the Complex), including,without limitation, those: (i) paid or incurred in connection withfinancings, refinancings or sales of any Landlord’s interest in the Building orthe Site, (ii) relating to any special reporting required by securitieslaws, (iii) relating to disputes with tenants or (iv) relating tolitigation;

 

(iv)          The cost of any item orservice to the extent reimbursed or reimbursable to Landlord by insurancerequired to be maintained under this Lease or by any third party;

 

(v)           The cost of repairs orreplacements incurred by reason of fire or other casualty or condemnation otherthan costs not in excess of the deductible on any insurance maintained byLandlord which provides a recovery for such repair or replacement;

 

(vi)          Any advertising, promotionalor marketing expenses for the Buildings, including, without limitation, leasingcommissions, attorneys’ fees, space planning costs and other costs and expensesincurred in connection with the lease, sublease and/or assignment negotiationsand transactions with present or prospective tenants or other occupants of theBuilding;

 

(vii)         The cost of any service ormaterials provided by any party related to Landlord (other than the managementfee, which shall be subject to the terms and provisions of Section 7.4(h) above),to the extent

 

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such costs exceed the reasonable cost for suchservice or materials absent such relationship in buildings similar to theBuilding in the Central Suburban 128 Market;

 

(viii)        Payments forrented equipment, the cost of which equipment would constitute a capitalexpenditure if the equipment were purchased to the extent that such paymentsexceed the amount which could have been included in Landlord’s OperatingExpenses had Landlord purchased such equipment rather than leasing suchequipment;

 

(ix)           Penalties,damages, and interest for late payment or violations of any obligations ofLandlord, including, without limitation, taxes, insurance, equipment leases andother past due amounts;

 

(x)            Costs arisingfrom Landlord’s political or charitable contributions;

 

(xi)                             The cost oftesting, remediation or removal of “Hazardous Materials” (as defined in Section 11.2)in the Building or on the Site required by “Hazardous Materials Laws” (asdefined in Section 11.2), provided however, that with respect to thetesting, remediation or removal of any material or substance which, as of theCommencement Date was not considered, as a matter of law, to be a HazardousMaterial, but which is subsequently determined to be a Hazardous Material as amatter of law, the costs thereof shall be included in Landlord’s OperatingExpenses;

 

(xii)                         Wages,salaries, or other compensation paid to any executive employees above the gradeof Regional Property Manager;

 

(xiii)                      The net (i.e.net of the reasonable costs of collection) amount recovered by Landlord underany warranty or service agreement from any contractor or service provider shallbe credited against Landlord’s Operating Expenses; and

 

(xiv)        Landlord’sgeneral corporate overhead and administrative services (except for propertymanagement services related to the operation of the Property, including,without limitation, risk management, accounting, security and energy managementservices).

 

Notwithstandingthe foregoing, in determining the amount of Landlord’s Operating Expenses forany calendar year or portion thereof falling within the Lease Term (including,without limitation, any Base Year applicable to a Premises Component), if lessthan ninety-five percent (95%) of the Total Rentable Floor Area of the Buildingshall have been occupied by tenants at any time during the period in question,then those components of Landlord’s Operating Expenses that vary based onoccupancy for such period shall be adjusted to equal the amount such componentsof Landlord’s Operating

 

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Expenseswould have been for such period had occupancy been ninety-five percent (95%)throughout such period. The foregoing calculations shall not entitle Landlordto collect, collectively from all of the tenants in the Complex, an amountexceeding one hundred percent (100%) of the Landlord’s Operating Expensesincurred by Landlord with respect to the pertinent calendar year (any collectedamount exceeding 100% of Operating Expenses with respect to any calendar yearbeing referred to herein as “Operating Expense Collection Surplus”), andLandlord shall, except with respect to Base Operating Expenses, credit anyOperating Expense Collection Surplus against the aggregate of OperatingExpenses incurred with respect to such calendar year, which shall reduce thesame for all purposes hereunder.

 

7.5           Tenant’s Escalation Payments

 

(A)          If with respect to any calendar year falling withinthe Lease Term, or fraction of a calendar year falling within the Lease Term atthe beginning or end thereof, the Operating Expenses Allocable to the Premises(as defined in Section 7.4) for a full calendar year exceed Base OperatingExpenses Allocable to the Premises (as defined in Section 7.4) or for anysuch fraction of a calendar year exceed the corresponding fraction of BaseOperating Expenses Allocable to the Premises (such amount being hereinafterreferred to as the “Operating Cost Excess”), then Tenant shall pay to Landlord,as Additional Rent, on or before the thirtieth (30th) day following receipt byTenant of the statement referred to below in this Section 7.5, the amountof such excess. Base Operating Expenses (as defined in Section 7.4) do notinclude the tenant electricity to be paid by Tenant as part of the Annual FixedRent.

 

(B)           Payments by Tenant on account of the Operating CostExcess shall be made monthly at the time and in the fashion herein provided forthe payment of Annual Fixed Rent. The amount so to be paid to Landlord shall bean amount from time to time reasonably estimated by Landlord to be sufficientto cover, in the aggregate, a sum equal to the Operating Cost Excess for eachcalendar year during the Lease Term.

 

(C)           No later than one hundred twenty (120) days afterthe end of the first calendar year or fraction thereof ending December 31and of each succeeding calendar year during the Lease Term or fraction thereofat the end of the Lease Term, Landlord shall render Tenant a statement inreasonable detail and according to usual accounting practices certified by arepresentative of Landlord, showing for the preceding calendar year or fractionthereof, as the case may be, the Landlord’s Operating Expenses and theOperating Expenses Allocable to the Premises. Said statement to be rendered toTenant also shall show for the preceding year or fraction thereof, as the casemay be, the amounts already paid by Tenant on account of Operating Cost Excessand the amount of Operating Cost Excess remaining due from, or overpaid by,Tenant for the year or other period covered by the statement.

 

Ifsuch statement shows a balance remaining due to Landlord, Tenant shall pay sameto Landlord on or before the thirtieth (30th) day following receipt by Tenantof said statement. Any balance shown as due to Tenant shall be credited againstAnnual Fixed

 

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Rentnext due, or refunded to Tenant if the Lease Term has then expired and Tenanthas no further obligation to Landlord.

 

Anypayment by Tenant for the Operating Cost Excess shall not be deemed to waiveany rights of Tenant to claim that the amount thereof was not determined inaccordance with the provisions of this Lease.

 

(D)          Subject to the provisions of this paragraph andprovided no uncured monetary Event of Default of Tenant exists, Tenant shallhave the right, at Tenant’s cost and expense, to examine all documentation andcalculations prepared in the determination of the Tax Excess, Operating CostExcess and Tenant’s proportionate share of electricity costs, as determinedpursuant to Section 5.2 (the “Electricity Excess”):

 

(1)           Such documentation and calculations shall be madeavailable to Tenant at the offices where Landlord keeps such records duringnormal business hours within a reasonable time after Landlord receives awritten request from Tenant to make such examination.

 

(2)           Tenant shall have the right to make such examinationno more than once in respect of any period for which Landlord has given Tenanta statement of the actual amount of Landlord’s Tax Expenses, Landlord’sOperating Expenses or the Electricity Excess, as applicable.

 

(3)           Except as provided by the last sentence of thisSection 7.5(D), any request for examination in respect of any Tax Year orcalendar year, as applicable, may be made no more than one hundred eighty (180)days after Landlord advises Tenant in writing of the actual amount ofLandlord’s Tax Expenses, Landlord’s Operating Expenses or the ElectricityExcess, as applicable in respect of such period and provides to Tenant theappropriate year-end statement required under Section 5.2, Section 6.3or Section 7.5, as applicable (provided, however, that if after any auditis performed hereunder, it is finally determined that Tenant has beenovercharged on account of Landlord’s Tax Expenses Allocable to the Premises,Operating Expenses Allocable to the Premises and/or the Electricity Excess bymore than three percent (3%) for the Tax Year or calendar year in question,Tenant may request to examine the documentation and calculations for the overchargeditem for the immediately preceding Tax Year or calendar year, as applicable).

 

(4)           In no event shall Tenant utilize the services of anyexaminer who is being paid by Tenant on a contingent fee basis, unless suchexaminer is being retained by Tenant on a national basis to examine paymentsunder Tenant’s other leases of space.

 

(5)           As a condition to performing any such examination,Tenant and its examiners shall be required to execute and deliver to Landlordan agreement, in form reasonably acceptable to Landlord, agreeing to keepconfidential any information which it discovers about Landlord or the Buildingsin connection

 

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with such examination, provided however, that Tenantshall be permitted to share such information with each of its permittedsubtenants so long as such subtenants execute and deliver to Landlord similarconfidentiality agreements.

 

(6)           If, after the audit by Tenant of Landlord’s booksand records pursuant to this Section 7.5 with respect to any calendaryear, it is finally determined that: (i) Tenant has made an overpayment onaccount of Landlord’s Tax Expenses Allocable to the Premises, OperatingExpenses Allocable to the Premises and/or the Electricity Excess, asapplicable, Landlord shall credit any such overpayment against the nextinstallment(s) of Annual Fixed Rent thereafter payable by Tenant, exceptthat if such overpayment is determined after the termination or expiration ofthe term of this Lease, Landlord shall promptly refund to Tenant the amount ofany such overpayment less any amounts then due from Tenant to Landlord; and(ii) Tenant has made an underpayment on account of Landlord’s Tax ExpensesAllocable to the Premises, Operating Expenses Allocable to the Premises and/orthe Electricity Excess, as applicable, Tenant shall, within forty-five (45)days of such determination, pay any such underpayment to Landlord.

 

(7)           If, after any such audit is performed, it is finallydetermined that Tenant has been overcharged on account of Landlord’s TaxExpenses Allocable to the Premises, Operating Expenses Allocable to thePremises and/or the Electricity Excess by more than three percent (3%) for theTax Year or calendar year in question, Landlord shall reimburse Tenant for thereasonable third-party costs incurred by Tenant in performing such audit.

 

Landlordshall have no right to correct any year end statement with respect to any TaxYear or calendar year after the date one (1) year after the end of theperiod in question. Notwithstanding any provision hereof to the contrary, ifLandlord provides Tenant with any such corrected statement, then Tenant shallhave one hundred eighty (180) days from the receipt of any such correctedstatement to request an examination as set forth in Section 7.5(D)(3) hereof(subject to the proviso set forth at the end of subsection (3) aboveregarding Tenant’s ability to request examinations for prior years).

 

7.6           No Damage

 

(A)          Landlord shall not be liable to Tenant for anycompensation or reduction of rent by reason of inconvenience or annoyance orfor loss of business arising from the necessity of Landlord or its agentsentering the Premises for any purposes in this Lease authorized, or forrepairing the Premises or any portion of the Building however the necessity mayoccur. In case Landlord is prevented or delayed from making any repairs,alterations or improvements, or furnishing any services or performing any othercovenant or duty to be performed on Landlord’s part, by reason of any causereasonably beyond Landlord’s control, including, without limitation, strike,lockout, breakdown, accident, order or regulation of or by any Governmentalauthority, or failure of supply, or inability by the exercise of reasonablediligence to obtain supplies, parts or employees necessary to furnish suchservices, or because of war or other emergency, or for any cause due to

 

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any act or neglect of Tenant or Tenant’s servants,agents, employees, licensees or any person claiming by, through or underTenant, Landlord shall not be liable to Tenant therefor, nor, except asexpressly otherwise provided in this Lease, shall Tenant be entitled to anyabatement or reduction of rent by reason thereof, or right to terminate this Lease,nor shall the same give rise to a claim in Tenant’s favor that such failureconstitutes actual or constructive, total or partial, eviction from thePremises, but Landlord shall nonetheless use commercially reasonably efforts tomitigate the adverse impact of any such event on Tenant’s use and enjoyment ofthe Premises to the extent it is within Landlord’s reasonable ability to do sounder the circumstances.

 

(B)           Landlord reserves the right to stop any service orutility system, when necessary by reason of accident or emergency, or untilnecessary repairs have been completed; provided, however, that in each instanceof stoppage, Landlord shall exercise reasonable diligence to eliminate thecause thereof. Except in case of emergency repairs, Landlord will give Tenantreasonable advance notice of any contemplated stoppage and will usereasonable efforts to avoid unnecessary inconvenience to Tenant by reasonthereof.

 

(C)           Notwithstanding anything to the contrary in thisLease contained, if due to (i) any repairs, alterations, replacements, orimprovements made by Landlord, (ii) Landlord’s failure to make anyrepairs, alterations, or improvements required to be made by Landlordhereunder, or to provide any service required to be provided by Landlordhereunder, or (iii) failure of electric supply, any portion of thePremises becomes untenantable so that for the Premises Untenantability CurePeriod, as hereinafter defined, the continued operation in the ordinary courseof Tenant’s business is materially adversely affected, then, provided thatTenant ceases to use the affected portion of the Premises during the entiretyof the Premises Untenantability Cure Period by reason of such untenantability,and that such untenantability and Landlord’s inability to cure such conditionis not caused by the fault or neglect of Tenant or Tenant’s agents, employeesor contractors, Annual Fixed Rent, Tax Excess and Operating Cost Excess shallthereafter be abated in proportion to such untenantability and its impact onthe continued operation in the ordinary course of Tenant’s business until theday such condition no longer has the material adverse effect referred to above.For the purposes hereof, the “Premises Untenantability Cure Period” shall bedefined as five (5) consecutive business days after Landlord’s receipt ofwritten notice from Tenant of the condition causing untenantability in thePremises, provided however, that the Premises Untenantability Cure Period shallbe ten (10) consecutive business days after Landlord’s receipt of writtennotice from Tenant of such condition causing untenantability in the Premises ifeither the condition was caused by causes beyond Landlord’s control or Landlordis unable to cure such condition as the result of causes beyond Landlord’scontrol.

 

Inaddition, if due to (i) any repairs, alterations, replacements, orimprovements made by Landlord, (ii) Landlord’s failure to make anyrepairs, alterations, or improvements required to be made by Landlordhereunder, or to provide any service required to be provided by Landlordhereunder, or (iii) failure of electric supply, the operation of Tenant’sbusiness in the Premises in the normal course is materially adversely affectedfor a period of five (5) consecutive months after Landlord’s receipt ofwritten notice of

 

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suchcondition from Tenant, then, provided that Tenant ceases to use the affectedportion of the Premises for the period of such untenantability and suchuntenantability and Landlord’s inability to cure such condition is not causedby the fault or neglect of Tenant, or Tenant’s agents, employees orcontractors, then Tenant may terminate this Lease by giving Landlord writtennotice as follows:

 

(i)            Said notice shall be givenafter said five (5) month period.

 

(ii)           Said notice shall set forthan effective date which is not earlier than thirty (30) days after Landlordreceives said notice.

 

(iii)          If said condition isremedied on or before the date thirty (30) days after the receipt of suchnotice, said notice shall have no further force and effect.

 

(iv)          If said condition is notremedied on or before the date thirty (30) days after the receipt of suchnotice for any reason other then Tenant’s fault, as aforesaid, the Lease shallterminate as of said effective date, and the Annual Fixed Rent and AdditionalRent due under the Lease shall be apportioned as of said effective date.

 

Theremedies set forth in this Section 7.6 shall be Tenant’s sole remedies forthe events described herein. The provisions of this subsection (C) shallnot apply in the event of untenantability caused by fire or other casualty, ortaking (which shall be subject to the terms and conditions of Article XIVbelow).

 

ARTICLE VIII

 

Tenant’s Repairs

 

8.1           Tenant’s Repairs andMaintenance

 

Tenantcovenants and agrees that, from and after the date that possession of thePremises is delivered to Tenant and until the end of the Lease Term, Tenantwill keep neat and clean and maintain in good order, condition and repair thePremises and every part thereof, excepting only for those repairs for whichLandlord is responsible under the terms of Article VII of this Lease anddamage by fire or casualty and as a consequence of the exercise of the power ofeminent domain. Tenant shall not permit or commit any waste, and Tenant shallbe responsible for the cost of repairs which may be made necessary by reason ofdamage to common areas in the Building or any other portion of the Site causedby Tenant, Tenant’s agents, contractors, employees, sublessees, licensees,concessionaires or invitees. Tenant shall maintain all its equipment, furnitureand furnishings in good order and repair.

 

Ifrepairs are required to be made by Tenant pursuant to the terms hereof,Landlord may demand that Tenant make the same forthwith, and if Tenant refusesor neglects to commence such repairs and complete the same with reasonabledispatch after such

 

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demand,Landlord may (but shall not be required to do so) make or cause such repairs tobe made pursuant to the provisions of Section 16.17 below.

 

ARTICLE IX

 

Alterations

 

9.1           Landlord’s Approval

 

Tenantcovenants and agrees not to make alterations, additions or improvements to thePremises, whether before or during the Lease Term, except in accordance withplans and specifications therefor first approved by Landlord in writing, whichapproval shall not be unreasonably withheld or delayed. Landlord shall not bedeemed unreasonable:

 

(a)           for withholding approval ofany alterations, additions or improvements which (i) in Landlord’s opinionwould reasonably be expected to adversely affect any structural or exteriorelement of the Building, any area or element outside of the Premises or anyfacility or base building mechanical system serving any area of the Buildingoutside of the Premises, or (ii) involve or affect the exterior design,size, height or other exterior dimensions of the Building, or (iii) areinconsistent in any material respect, in Landlord’s reasonable judgment, with alterationssatisfying Landlord’s standards for new alterations in the Building, or (iv) willrequire unusual expense to readapt the Premises to normal office use upon Leasetermination or expiration (including, without limitation, rooftop HVAC units,specialty equipment, ventilation shafts for Tenant’s equipment, halon systems, etc.)or increase the cost of construction or of insurance or taxes on the Buildingor of the services provided by Landlord herein unless Tenant first givesassurance acceptable to Landlord for payment of such increased cost and thatsuch readaptation will be made prior to termination and or expiration withoutexpense to Landlord (alterations, additions or improvements described in thisclause (iv) being sometimes collectively referred to as “SpecialImprovements”); or

 

(b)           for making its approval ofany Special Improvements conditional on Tenant’s agreement to restore thePremises to its condition prior to construction of such Special Improvements atthe expiration or earlier termination of the Lease Term, reasonable wear andtear excepted.

 

Landlord’sreview and approval of any such plans and specifications and consent to performwork described therein shall not be deemed an agreement by Landlord that suchplans, specifications and work conform with applicable Legal Requirements andrequirements of insurers of the Buildings and the other requirements of theLease with respect to Tenant’s insurance obligations (herein called “InsuranceRequirements”) nor deemed a waiver of Tenant’s obligations under this Leasewith respect to applicable Legal Requirements and Insurance Requirements norimpose any liability or obligation upon

 

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Landlordwith respect to the completeness, design sufficiency or compliance of suchplans, specifications and work with applicable Legal Requirements and InsuranceRequirements. Further, Tenant acknowledges that Tenant is acting for its ownbenefit and account, and that Tenant shall not be acting as Landlord’s agent inperforming any work in the Premises, accordingly, no contractor, subcontractoror supplier shall have a right to lien Landlord’s interest in the Property inconnection with any such work. Within thirty (30) days after receipt of aninvoice from Landlord (together with reasonable supporting back updocumentation), Tenant shall pay to Landlord as a fee for Landlord’s review ofany work or plans (excluding any review respecting initial improvementsperformed pursuant to Exhibit B-1 attached hereto or any otherimprovements for which a construction management fee has previously been paidbut including any review of plans or work relating to any assignment orsubletting), as Additional Rent, an amount equal to the sum of: (i) $150/hourfor time spent by senior staff, and $100/hour for time spent by junior staff,plus (ii) reasonable third party expenses incurred by Landlord to reviewTenant’s plans and Tenant’s work.

 

9.2           Conformity of Work

 

Tenantcovenants and agrees that any alterations, additions, improvements orinstallations made by it to or upon the Premises shall be done in a good andworkmanlike manner and in compliance with all applicable Legal Requirements andInsurance Requirements now or hereafter in force, that materials of goodquality (but in no event of lesser quality than reasonably appropriate for themaintenance of a consistently high quality building) shall be employed thereinand that the structure of the Building shall not be endangered or impairedthereby.

 

9.3           Performance of Work, GovernmentalPermits and Insurance

 

Allof Tenant’s alterations and additions and installation of furnishings shall becoordinated with any work being performed by or for Landlord and in such manneras to maintain harmonious labor relations and not to damage the Building orSite or interfere with Building construction or operation and, except forinstallation of furnishings, shall be performed by Landlord’s generalcontractor or by contractors or workers first approved by Landlord in itsreasonable discretion. Except for work by Landlord’s general contractor, Tenantshall procure all necessary governmental permits before making any repairs,alterations, other improvements or installations. Tenant agrees to saveharmless and indemnify Landlord from any and all injury, loss, claims or damageto any person or property occasioned by or arising out of the doing of any suchwork whether the same be performed prior to or during the Term of this Lease.At Landlord’s reasonable election, taking into account the scope and cost ofthe proposed alteration, Tenant shall cause its contractor to maintain apayment and performance bond in such amount and with such companies as Landlordshall reasonably approve. In addition, Tenant shall cause each contractor tocarry worker’s compensation insurance in statutory amounts covering theemployees of all contractors and subcontractors, and commercial generalliability insurance or comprehensive general liability insurance with a broadform comprehensive liability endorsement with such limits as Landlord mayrequire reasonably from time to

 

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timeduring the Term of this Lease, but in no event less than the minimum amount ofcommercial general liability insurance or comprehensive general liabilityinsurance Tenant is required to maintain as set forth in Section 1.2hereof and as the same may be modified as provided in Section 13.6 hereof(all such insurance to be written in companies approved reasonably by Landlordand insuring Landlord, Landlord’s managing agent and Tenant as additionalinsureds as well as contractors) and to deliver to Landlord certificates of allsuch insurance. Tenant shall also prepare and submit to Landlord a set ofas-built plans, in both print and electronic forms, showing such work performedby Tenant to the Premises promptly after any such alterations, improvements orinstallations are substantially complete and promptly after any wiring orcabling for Tenant’s computer, telephone and other communications systems is installedby Tenant or Tenant’s contractor. Without limiting any of Tenant’s obligationshereunder, except as otherwise provided in Exhibit B-1 attached hereto,Tenant shall be responsible, as Additional Rent, for the costs of anyalterations, additions or improvements in or to the Building that are requiredin order to comply with Legal Requirements as a result of any work performed byTenant. Landlord shall have the right to provide rules and regulations(which shall be applied in a non discriminatory manner) relative to theperformance of any alterations, additions, improvements and installations byTenant hereunder and Tenant shall abide by all such reasonable rules andregulations and shall cause all of its contractors to so abide including,without limitation, payment for the costs of using Building services. Tenantacknowledges and agrees that Landlord shall be the owner of any additions,alterations and improvements in the Premises or the Building to the extent paidfor by Landlord.

 

9.4           Liens

 

Tenantcovenants and agrees to pay promptly when due the entire cost of any work doneon the Premises by Tenant, its agents, employees or contractors, and not tocause or permit any liens for labor or materials performed or furnished inconnection therewith to attach to the Premises or the Building or the Site andpromptly to discharge (whether by bonding or otherwise) any such liens whichmay so attach.

 

9.5           Nature of Alterations

 

Allwork, construction, repairs, alterations, other improvements or installations madeto or upon the Premises, shall become part of the Premises and shall become theproperty of Landlord and remain upon and be surrendered with the Premises as apart thereof upon the expiration or earlier termination of the Lease Term,except as follows:

 

(a)           All furniture, equipment,other personal property, and trade fixtures (including, without limitation, anysatellite or microwave dish or any communications equipment, including, withoutlimitation, any telephone switch gear, and any security or monitoring equipmentwhether by law deemed to be a part of the realty or not, installed at any timeor times by Tenant or any person claiming under Tenant shall remain theproperty of Tenant or persons claiming under Tenant and may be removed byTenant

 

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or any person claiming under Tenant at any time ortimes during the Lease Term or any occupancy by Tenant thereafter and shall beremoved by Tenant at the expiration or earlier termination of the Lease Term ifso requested by Landlord. Tenant shall repair any damage to the Premisesoccasioned by the removal by Tenant or any person claiming under Tenant of anysuch property from the Premises.

 

(b)           At the expiration or earliertermination of the Lease Term, unless otherwise agreed in writing by Landlord,Tenant shall remove any wiring for Tenant’s computer, telephone and othercommunication systems and equipment whether located in the Premises or in anyother portion of the Building or the Site, including all risers and anyalterations, additions and improvements made with Landlord’s consent during theLease Term for which such removal was made a condition of such consent underSection 9.1 (b). Upon such removal Tenant shall restore the Premises totheir condition prior to such alterations, additions and improvements andrepair any damage occasioned by such removal and restoration.

 

(c)           If Tenant shall make anyalterations, additions or improvements to the Premises for which Landlord’sapproval is required under Section 9.1 (after giving effect to theprovisions of Section 9.7), without obtaining such approval, then atLandlord’s request at any time during the Lease Term, and at any event at theexpiration or earlier termination of the Lease Term, Tenant shall remove suchalterations, additions and improvements and restore the Premises to theircondition prior to same and repair any damage occasioned by such removal andrestoration. Nothing herein shall be deemed to be a consent to Tenant to makeany such alterations, additions or improvements, the provisions of Section 9.1being applicable to any such work.

 

9.6           Increases in Taxes

 

Tenantshall pay, as Additional Rent, one hundred percent (100%) of any increase inreal estate taxes on the Complex which shall, at any time after theCommencement Date, result from alterations, additions or improvements to thePremises made by Tenant if the taxing authority specifically determines suchincrease results from such alterations, additions or improvements made byTenant.

 

9.7           Alterations PermittedWithout Landlord’s Consent

 

Notwithstandingthe terms of Section 9.1, Tenant shall have the right, without obtainingthe prior consent of Landlord but upon notice to Landlord given ten (10) daysprior to the commencement of any work (which notice shall specify the nature ofthe work in reasonable detail), to make alterations, additions or improvementsto the Premises where:

 

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

 

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

 

(iii)          with the exception ofpainting and carpeting (which shall not be subject to the dollar limits setforth in this subsection (iii)), the cost of any individual alteration,addition or improvement shall not exceed $200,000.00 and the aggregate cost ofsaid alterations, additions or improvements made by Tenant during the LeaseTerm shall not exceed $1,000,000.00 in cost; and

 

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

 

provided,however, that Tenant shall, within thirty (30) days after the making of such changes,send to Landlord plans and specifications describing the same in reasonabledetail and provided further that Landlord, by notice to Tenant given at leastthirty (30) days prior to the expiration or earlier termination of the LeaseTerm, may, if any such alterations, addition or improvement constitutes aSpecial Improvement, require Tenant to restore the Premises to its conditionprior to construction of such Special Improvement (reasonable wear and tearexcepted) at the expiration or earlier termination of the Lease Term.

 

ARTICLE X

 

Parking

 

10.1         Tenant’s Parking

 

Landlordshall provide to Tenant monthly privileges in the number specified in Section 1.2for the parking of automobiles, in common with use by other tenants from timeto time of the Complex, and on a first-come, first-served basis, and Landlordshall not be obligated to furnish stalls or spaces on the Site specificallydesignated for Tenant’s use. Tenant covenants and agrees that it and allpersons claiming by, through and under it, shall at all times abide by allreasonable rules and regulations promulgated by Landlord with respect tothe use of the parking areas on the Site. The parking privileges granted hereinare non-transferable except to a permitted assignee or subtenant as provided inArticle XII below. Further, Landlord assumes no responsibility whatsoeverfor loss or damage due to fire, theft or otherwise to any automobile(s) parkedon the Site or to any personal property therein, however caused, and Tenantcovenants and agrees, upon request from Landlord from time to time, to notifyits officers, employees, agents and

 

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inviteesof such limitation of liability. Tenant acknowledges and agrees that a licenseonly is hereby granted, and no bailment is intended or shall be created.

 

ARTICLE XI

 

Certain Tenant and LandlordCovenants

 

Tenantcovenants and agrees to the following during the Lease Term and for suchfurther time as Tenant occupies any part of the Premises:

 

11.1         To pay when due all AnnualFixed Rent and Additional Rent and all charges for utility services rendered tothe Premises and service inspections therefor (except as is otherwise providedin Exhibit C) and, as further Additional Rent, all charges for additionaland special services rendered pursuant to Section 7.3.

 

11.2         (A)          To use and occupy thePremises for the Permitted Use only, and not to injure or deface the Premisesor the Property, not to permit in the Premises any auction sale, vendingmachine (other than vending machines for use by Tenant’s employees and businessinvitees) or flammable fluids or chemicals, or nuisance, or the emission fromthe Premises of any objectionable noise or odor, nor to permit in the Premisesanything which would in any way result in the leakage of fluid or the growth ofmold, and not to use or devote the Premises or any part thereof for any purposeother than the Permitted Use, nor any use thereof which is inconsistent withthe maintenance of the Building as office buildings of the first-class in thequality of their maintenance, use and occupancy, or which is improper,offensive, contrary to law or ordinance or liable to invalidate or increase thepremiums for any insurance on the Building or its contents or liable to rendernecessary any alteration or addition to the Building. Further, (i) Tenantshall not, nor shall Tenant permit its employees, invitees, agents, independentcontractors, contractors, assignees or subtenants to, keep, maintain, store ordispose of (into the sewage or waste disposal system or otherwise) or engage inany activity which might produce or generate any substance or fungalcontaminant which is or may hereafter be classified as a hazardous material,waste or substance (collectively “Hazardous Materials”), under federal, stateor local laws, rules and regulations, including, without limitation, 42U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et seq., 42U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. andMassachusetts General Laws, Chapter 21E and the rules and regulationspromulgated under any of the foregoing, as such laws, rules andregulations may be amended from time to time (collectively “Hazardous MaterialsLaws”), (ii) Tenant shall promptly notify Landlord of any incident in, onor about the Premises, the Buildings or the Site that would require the filingof a notice under any Hazardous Materials Laws, (iii) Tenant shall complyand shall cause its employees, invitees, agents, independent contractors,contractors, assignees and subtenants to comply with each of the foregoing and(iv) Landlord shall have the right to make such inspections (includingtesting) as Landlord shall elect from time to time to determine that Tenant iscomplying with the foregoing (provided that, except in cases of emergency,Landlord provides Tenant at least two (2) business days’ prior writtennotice of any such inspection). Notwithstanding the foregoing, Tenant may usenormal amounts and types of

 

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substances typically used for Tenant’s businessoperations, provided that Tenant uses such substances in the manner which theyare normally used, and in compliance with all Hazardous Materials Laws andother applicable laws, ordinances, bylaws, rules and regulations, andTenant obtains and complies with all permits required by Hazardous MaterialsLaws or any other laws, ordinances, bylaws, rules or regulations prior tothe use or presence of any such substances in the Premises.

 

(B)           Landlord represents and warrants to Tenant that, tothe best of Landlord’s actual knowledge as of the date of this Lease, there areno Hazardous Materials in the Building or on the Site which are or would berequired to be removed or otherwise abated in accordance with applicableHazardous Materials Laws. In addition, Landlord further represents and warrantsto Tenant that Landlord constructed the sub-slab ventilation system underneaththe Building in accordance with the specifications previously provided toTenant and covenants that the system will operate as designed during the Termof the Lease. Subject to the limitations of Section 16.24 hereof, Landlordshall use necessary and appropriate efforts to remove or abate, as required byapplicable Hazardous Materials Laws and without inclusion in OperatingExpenses, (x) Hazardous Materials on the Site or in the common areas, thestructural elements or the base building systems of the Building and (y) HazardousMaterials that are present in other areas of the Building as the result of theactions of Landlord, its employees, agents or contractors.  Notwithstanding the foregoing, Landlord’sobligation to remove or abate Hazardous Materials pursuant to this Section 11.2shall not apply to (i) requirements of Hazardous Materials Laws resultingfrom the use of Hazardous Materials, or additions, alterations or improvementsin the Premises (other than the Landlord’s Work and the Base Building Workunder Exhibit B-1 attached hereto), by Tenant or anyone claiming by,through or under Tenant, or (ii) Hazardous Materials which are in theBuilding or on the Site because of the action or inaction of any tenant oroccupant in the Building, including Tenant, or any employee, agent orcontractor thereof, or (iii) any tenant space in the Building, includingthe Premises, and any additions, alterations and improvements therein, unlessin the case of this clause (iii) such Hazardous Materials (1) existedin, at or on the Premises, the Building or the Site prior to the CommencementDate or migrated to the Premises, the Building or the Site from anotherproperty or (2) are present as the result of the action or inaction ofLandlord, its affiliates, employees, agents or contractors.  In connection with the foregoing, Landlordhereby agrees to use best efforts to enforce the terms of its leases with othertenants of the Building in the event of a violation of Hazardous Materials Lawsresulting from the action or inaction of any tenant or occupant of the Buildingor any employee, agent or contractor thereof; provided, however, that in noevent shall Landlord be liable to Tenant for any violation of HazardousMaterials Laws by any tenant or occupant of the Building.

 

Landlordshall provide Tenant with copies of all reports and all material correspondenceand documents relating to Landlord’s ongoing monitoring of the groundwater atthe Site (it being understood and agreed that the decision as to whether or notto continue such monitoring, except to the extent the same is or may berequired by Hazardous Materials Laws, shall be at Landlord’s sole discretion)or the environmental status of the Site.

 

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Landlordshall promptly inform Tenant of any incident, act or condition at the Siterequiring notice or action under Hazardous Material Laws.

 

Subjectto the limitations of Section 16.24 hereof, Landlord agrees to defend with counsel first approved by Tenant(counsel appointed by Landlord’s insurance carrier shall be deemed approved byTenant and for any other circumstances such approval shall not be unreasonablywithheld or delayed), indemnify and save Tenant harmless from liability, lossand damage to persons or property and from any claims, actions, proceedings andexpenses in connection therewith (including, without limitation, loss, damageor claims related to indoor air quality problems within the Premises to theextent resulting from Hazardous Materials that are present on the Site as ofthe Commencement Date) resulting from the failure of Landlord to fulfill itsobligations under this Section 11.2(B) or any breach of Landlord’srepresentations and warranties under this Section 11.2(B); provided,however, that in no event shall the foregoing indemnity render Landlord liablefor any loss or damage to Tenant’s Property (as that term is described inSection 13.4 below) and Landlord shall in no event be liable for indirector consequential damages.

 

11.3         Not to obstruct in anymanner any portion of the Building not hereby leased or any portion thereof orof the Site used by Tenant in common with others; not without prior consent ofLandlord (or as otherwise provided in this Lease) to permit the painting orplacing of any signs, curtains, blinds, shades, awnings, aerials or flagpoles,or the like, visible from outside the Premises; and to comply with allreasonable rules and regulations now or hereafter made by Landlord, ofwhich Tenant has been given notice, for the care and use of the Building andthe Site and their facilities and approaches, but Landlord shall not be liableto Tenant for the failure of other occupants of the Building to conform to suchrules and regulations. Landlord shall not enforce such rules andregulations other than in a non discriminatory manner.

 

11.4         To keep the Premisesequipped with all safety appliances required by law or ordinance or any otherregulation of any public authority because of any use made by Tenant other thannormal office use, and to procure all licenses and permits so required becauseof any use made by Tenant other than normal office use, and, if requested byLandlord, to do any work so required because of such use, it being understoodthat the foregoing provisions shall not be construed to broaden in any wayTenant’s Permitted Use.

 

11.5         Not to place a load upon anyfloor in the Premises exceeding an average rate of 70 pounds of live load(including partitions) per square foot of floor area; and not to move any safe,vault or other heavy equipment in, about or out of the Premises except in suchmanner and at such time as Landlord shall in each instance authorize. Tenant’sbusiness machines and mechanical equipment shall be placed and maintained byTenant at Tenant’s expense in settings sufficient to absorb and preventvibration or noise that may be transmitted to the Building structure or to anyother space in the Building.

 

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11.6         To pay promptly when due alltaxes which may be imposed upon personal property (including, withoutlimitation, fixtures and equipment) in the Premises to whomever assessed.

 

11.7         To pay, as Additional Rent,all reasonable out of pocket costs, counsel and other fees incurred by Landlordin connection with the successful enforcement by Landlord of any obligations ofTenant under this Lease or in connection with any bankruptcy case involvingTenant (Landlord hereby similarly agreeing to reimburse Tenant for allreasonable out-of-pocket costs, counsel and other fees incurred by Tenant inconnection with the successful enforcement by Tenant of any obligations ofLandlord under this Lease or in connection with any bankruptcy case involvingLandlord).

 

11.8         Not to do or permit anythingto be done in or upon the Premises, or bring in anything or keep anythingtherein, which shall increase the rate of insurance on the Premises or on theBuilding above the standard rate applicable to premises being occupied for theuse to which Tenant has agreed to devote the Premises; and Tenant furtheragrees that, in the event that Tenant shall do any of the foregoing, Tenantwill promptly pay to Landlord, on demand, any such increase resultingtherefrom, which shall be due and payable as Additional Rent hereunder.

 

11.9         To comply with allapplicable Legal Requirements now or hereafter in force which shall impose aduty on Landlord or Tenant relating to or as a result of the use or occupancyof the Premises; provided that Tenant shall not be required (i) to makeany alterations or additions to the base building systems or to the structure,roof, exterior and load bearing walls, foundation, structural floor slabs andother structural elements of the Building or (ii) to perform or satisfyany other obligation of Landlord under this Lease, unless the same are requiredby such Legal Requirements as a result of or in connection with Tenant’s use oroccupancy of the Premises beyond normal use of space of this kind. Tenant shallpromptly pay all fines, penalties and damages that may arise out of or beimposed because of its failure to comply with the provisions of this Section 11.9.

 

11.10       Any vendors engaged byTenant to perform services in or to the Premises including, without limitation,janitorial contractors and moving contractors shall be coordinated with anywork being performed by or for Landlord and in such manner as to maintainharmonious labor relations and to not unreasonably interfere with Buildingconstruction or operation, and shall be performed by vendors first approved byLandlord, which approval shall not be unreasonably withheld. Notwithstandingthe foregoing, the following vendors do not require Landlord’s approval:brokerage, legal, employment staffing, office and other supplies, furnitureproviders (but not installers), construction consultants not performing anyphysical work in the Building (but not architects) and food catering.

 

11.11       Landlord represents to theTenant that (a) the Permitted Use is permitted as of right at the Siteunder the Zoning Ordinance for the City of Waltham and complies with therequirements of all easement and encumbrance documents; (b) Landlord holdsfee simple title to the Site, subject to no mortgage; (c) Landlord hasfull power and authority to enter

 

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into this Lease and has obtained all consents andtaken all actions necessary in connection therewith; (d) no other partyhas any possessory right to the Premises or has claimed the same; and (e) tothe best of Landlord’s actual knowledge the base building core, shell, andsurrounding site work comply with all laws, regulations, and building codes,including without limitation, all laws governing nondiscrimination in publicaccommodations and commercial facilities, including without limitation, therequirements of the Americans with Disabilities Act (ADA) and all regulationsthereunder, applicable to the Building and the Site at the time of constructionand Landlord covenants to keep the same in compliance throughout the Term(provided, however, that notwithstanding the foregoing, in no event shallLandlord be liable to Tenant to the extent such non-compliance is caused byparties other than Landlord, its agents, employees or contractors, Landlordhereby agreeing to use reasonable efforts to enforce lease provisions regardingcompliance with laws against tenants of the Building as applicable).

 

ARTICLE XII

 

Assignment and Subletting

 

12.1         Restrictions on Transfer

 

Exceptas otherwise expressly provided herein, Tenant covenants and agrees that itshall not assign, mortgage, pledge, hypothecate or otherwise transfer thisLease and/or Tenant’s interest in this Lease or sublet (which term, withoutlimitation, shall include granting of concessions, licenses or the like) thewhole or any part of the Premises. Any assignment, mortgage, pledge,hypothecation, transfer or subletting not expressly permitted in or consented toby Landlord under this Article XII shall be void, ab initio; shall be ofno force and effect; and shall confer no rights on or in favor of thirdparties. In addition, Landlord shall be entitled to seek specific performanceof or other equitable relief with respect to the provisions hereof.

 

12.2         Exceptions

 

Notwithstandingthe foregoing provisions of Section 12.1 above and the provisions ofSection 12.3 and 12.4 below, but subject to the provisions of Sections12.5 and 12.6, Tenant shall have the right to assign this Lease or to subletthe Premises (in whole or in part) (i) to any controlling entity of Tenantor to any entity controlled by Tenant or to any entity under common controlwith Tenant (such parent or subsidiary entity or entity under common controlwith Tenant being hereinafter called a “Tenant Affiliate”) or (ii) to anyentity into which Tenant may be converted or with which it may merge, or to anyentity purchasing all or substantially all of Tenant’s assets (each, a“Permitted Tenant Successor”), provided that in the case of a Permitted TenantSuccessor, the entity to which this Lease is so assigned or which so subletsthe Premises has a net worth (e.g. assets on a pro forma basis using generallyaccepted accounting principles consistently applied and using the most recentfinancial statements) equal to the lesser of (1) the net

 

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worthof Tenant as of the date of this Lease or (2) the net worth of Tenantimmediately prior to such transaction.

 

Exceptin the case of a statutory merger, in which case the surviving entity in themerger shall be liable under this Lease, Tenant shall continue to remain fullyliable under this Lease, on a joint and several basis with the Tenant Affiliateor Permitted Tenant Successor. If any Tenant Affiliate to which this Lease isassigned or the Premises sublet (in whole or in part) shall cease to be such aTenant Affiliate, and if such cessation was contemplated at the time of theassignment or subletting, such cessation shall be considered an assignment orsubletting requiring Landlord’s consent.

 

12.3         Landlord’s Termination Right

 

Notwithstandingthe provisions of Section 12.1 above, in the event Tenant desires:

 

(a)           to assign this Lease; or

 

(b)           to sublet such portion (the“Sublease Portion”) of the Premises as (x) contains by itself at leastfifty percent (50%) of the Rentable Floor Area of the Premises or (y) wouldbring the total amount of the Premises then subleased (exclusive of anysubleases under Section 12.2 above) to fifty percent (50%) or more of theRentable Floor Area of the Premises; or

 

(c)           to sublet any SubleasePortion consisting of 5,000 square feet of rentable floor area or more for aterm equal to all or substantially all of the remaining Lease Term hereof (anysuch sublease under this subparagraph (c) or subparagraph (b) abovebeing hereinafter referred to as a “Major Sublease”),

 

thenTenant shall notify Landlord thereof in writing and Landlord shall have theright at its sole option, to be exercised within ten (10) business daysafter receipt of Tenant’s notice (the “Acceptance Period”), to terminate thisLease as of a date specified in a notice to Tenant, which date shall not beearlier than sixty (60) days nor later than one hundred and twenty (120) daysafter Landlord’s notice to Tenant; provided, however, that upon the terminationdate as set forth in Landlord’s notice, all obligations relating to the periodafter such termination date (but not those relating to the period before suchtermination date) shall cease and promptly upon being billed therefor byLandlord, Tenant shall make final payment of all rent and additional rent duefrom Tenant through the termination date.

 

Notwithstandingthe foregoing, in the event of a Major Sublease:

 

(i)            Landlord shall only have theright to so terminate this Lease with respect to the Sublease Portion and fromand after the termination date the Rentable Floor Area of the Premises shall bereduced to the rentable floor area of the remainder of the Premises and thedefinition of Rentable Floor Area of the Premises shall be so

 

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amended and after such termination all references inthis Lease to the “Premises” or the “Rentable Floor Area of the Premises” shallbe deemed to be references to the remainder of the Premises and accordinglyTenant’s payments for Annual Fixed Rent, operating costs, real estate taxes andelectricity shall be reduced on a pro rata basis to reflect the size of theremainder of the Premises;

 

(ii)           in the case of MajorSublease for less than all or substantially all of the then-remaining LeaseTerm, Landlord shall only have the right to suspend the term of this Lease protanto for the term of the proposed sublease (i.e. the Term of the Lease inrespect of the Sublease Portion shall be terminated for the term of theproposed sublease and then reinstated upon the expiration or earliertermination of such sublease term); and

 

(iii)          in the case of a proposedMajor Sublease which, when combined with other subleases of the Premises thenin effect (exclusive of any subleases under Section 12.2. above) reachesthe fifty percent (50%) of the Premises threshold set forth above for Landlordto recapture, Landlord may only exercise its recapture rights with respect tothe proposed Major Sublease, but may not exercise its recapture rights orterminate this Lease as to any subleases of the Premises previously enteredinto by Tenant.

 

Inthe event that Landlord shall not exercise its termination rights as aforesaid,or shall fail to give any or timely notice pursuant to this Section theprovisions of Sections 12.4-12.7 shall be applicable. In the case of a partialsubletting where Landlord has exercised its termination right pursuant to thisSection 12.3, Landlord shall be responsible, at its sole cost and expense,for all work necessary to separately physically demise that portion of thePremises which are being terminated from the remainder of the Premises.

 

ThisSection 12.3 shall not be applicable to an assignment or sublease pursuantto Section 12.2.

 

12.4         Consent of Landlord

 

Notwithstandingthe provisions of Section 12.1 above, but subject to the provisions ofthis Section 12.4 and the provisions of Sections 12.5, 12.6 and 12.7below, in the event that Landlord shall not have exercised the terminationright as set forth in Section 12.3, or shall have failed to give any ortimely notice under Section 12.3, then for a period of one hundred eighty(180) days (i) after the receipt of Landlord’s notice stating thatLandlord does not elect the termination right, or (ii) after theexpiration of the Acceptance Period, in the event Landlord shall not give anyor timely notice under Section 12.3 as the case may be, Tenant shall havethe right to assign this Lease or sublet the Premises in accordance with theProposed Transfer Notice provided that, in each instance, Tenant first obtainsthe express prior written consent of Landlord, which consent shall not be

 

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unreasonablywithheld or delayed. It is understood and agreed that Landlord’s consent shallbe deemed given hereunder if Landlord shall fail to respond to a ProposedTransfer Notice meeting the requirements of Section 12.5 below within ten(10) business days after receipt thereof from Tenant.

 

Withoutlimiting the foregoing standard, Landlord shall not be deemed to beunreasonably withholding its consent to such a proposed assignment orsubleasing if:

 

(a)           the proposed assignee orsubtenant is a tenant in the Building or is in active negotiation with Landlordand Landlord has existing space that satisfies such party’s needs, or

 

(b)           the proposed assignee orsubtenant is not of a character consistent with the operation of a first classoffice building (by way of example Landlord shall not be deemed to beunreasonably withholding its consent to an assignment or subleasing to anygovernmental or quasi-governmental agency), or

 

(c)           giving appropriate weight,if applicable, to the fact that Tenant will nevertheless remain liable underthis Lease, the proposed assignee or subtenant does not possess adequatefinancial capability to assure the performance of the Tenant obligations as andwhen due or required, or

 

(d)           the assignee or subtenantproposes to use the Premises (or part thereof) for a purpose other than thepurpose for which the Premises may be used as stated in Section 1.2hereof, or

 

(e)           the character of thebusiness to be conducted or the proposed use of the Premises by the proposedsubtenant or assignee shall (i) be likely to materially increaseLandlord’s Operating Expenses beyond that which Landlord now incurs for use byTenant; (ii) be likely to materially increase the burden on elevators orother Building systems or equipment over the burden prior to such proposedsubletting or assignment; or (iii) materially violate or be likely tomaterially violate any provisions or restrictions contained herein relating tothe use or occupancy of the Premises, or

 

(f)            there shall be existing amonetary or material non-monetary Event of Default (defined in Section 15.1),or

 

(g)           any part of the rent payableunder the proposed assignment or sublease shall be based in whole or in part onthe income or profits derived from the Premises or if any proposed assignmentor sublease shall potentially have any adverse effect on the real estateinvestment trust qualification requirements applicable to Landlord and itsaffiliates.

 

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12.5         Tenant’s Notice

 

Tenantshall give Landlord notice (the “Proposed Transfer Notice”) of any proposedsublease or assignment, and said notice shall specify the provisions of theproposed assignment or subletting, including (a) the name and address ofthe proposed assignee or subtenant, (b) in the case of a proposedassignment or subletting pursuant to Section 12.4, such information as tothe proposed assignee’s or proposed subtenant’s net worth and financialcapability and standing as may reasonably be required for Landlord to make thedetermination referred to in Section 12.4 above (provided, however, thatLandlord shall hold such information confidential having the right to releasesame to its officers, accountants, attorneys and mortgage lenders on aconfidential basis), (c) all of the terms and provisions upon which theproposed assignment or subletting is to be made, (d) in the case of aproposed assignment or subletting pursuant to Section 12.4, all otherinformation reasonably necessary to make the determination referred to inSection 12.4 above and (e) in the case of a proposed assignment orsubletting pursuant to Section 12.2 above, such information as may bereasonably required by Landlord to determine that such proposed assignment orsubletting complies with the requirements of said Section 12.2.

 

IfLandlord shall consent to the proposed assignment or subletting, as the casemay be, then, in such event, Tenant may thereafter sublease or assign pursuantto Tenant’s notice, as given hereunder; provided, however, that if suchassignment or sublease shall not be executed and delivered to Landlord withinone hundred eighty (180) days after the date of Landlord’s consent, the consentshall be deemed null and void and the provisions of Section 12.3 shall beapplicable.

 

12.6         Profit on Subleasing orAssignment

 

Inaddition, in the case of any assignment or subleasing as to which Landlord mayconsent (other than an assignment or subletting permitted under Section 12.2hereof) such consent shall be upon the express and further condition, covenantand agreement, and Tenant hereby covenants and agrees that, in addition to theAnnual Fixed Rent, Additional Rent and other charges to be paid pursuant tothis Lease, fifty percent (50%) of the “Assignment/Sublease Profits”(hereinafter defined), if any shall be paid to Landlord.

 

The“Assignment/Sublease Profits” shall be the excess, if any, of (a) the“Assignment/Sublease Net Revenues” as hereinafter defined over (b) theAnnual Fixed Rent, Additional Rent and other charges provided in this Lease(provided, however, that for the purpose of calculating the Assignment/SubleaseProfits in the case of a sublease, appropriate proportions in the applicableAnnual Fixed Rent, Additional Rent and other charges under this Lease shall bemade based on the percentage of the Premises subleased and on the terms of thesublease). The “Assignment/Sublease Net Revenues” shall be the fixed rent,Additional Rent and all other charges and sums payable either initially or overthe term of the sublease or assignment, less the reasonable costs of Tenantincurred in such subleasing or assignment (the definition of which shall belimited to brokerage

 

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commissions,advertising and marketing costs, rent concessions, attorneys’ fees, architectand construction management fees, and alteration allowances, in each caseactually paid), as set forth in a statement certified by an appropriate officerof Tenant and delivered to Landlord within thirty (30) days of the fullexecution of the sublease or assignment document, amortized over the term ofthe sublease or assignment.

 

Allpayments of the Assignment/Sublease Profits due Landlord shall be made withinten (10) days of receipt of same by Tenant.

 

12.7         Additional Conditions

 

(A)          It shall be a condition of the validity of anyassignment or subletting of right under Section 12.2 above, or consentedto under Section 12.4 above, that both Tenant and the assignee orsublessee enter into a separate written instrument directly with Landlord in aform and containing terms and provisions reasonably required by Landlord,including, without limitation, the agreement of the assignee or sublessee to bebound by all the obligations of the Tenant hereunder, including, withoutlimitation, the obligation (a) to pay the Annual Fixed Rent, AdditionalRent, and other amounts provided for under this Lease (but in the case of apartial subletting, such subtenant shall agree on a pro rata basis to be sobound) and (b) to comply with the provisions of Sections 12.1 through 12.7hereof. Such assignment or subletting shall not relieve the Tenant named hereinof any of the obligations of the Tenant hereunder and Tenant shall remain fullyand primarily liable therefor and the liability of Tenant and such assignee (orsubtenant, as the case may be) shall be joint and several. Further, andnotwithstanding the foregoing, the provisions hereof shall not constitute arecognition of the sublease or the subtenant thereunder, and at Landlord’soption, upon the termination or expiration of the Lease (whether suchtermination is based upon a cause beyond Tenant’s control, a default of Tenant,the agreement of Tenant and Landlord or any other reason), the sublease shallbe terminated.

 

(B)           As Additional Rent, Tenant shall pay to Landlord asa fee for Landlord’s review of any proposed assignment or sublease requested byTenant and the preparation of any associated documentation in connectiontherewith, within thirty (30) days after receipt of an invoice from Landlord,an amount equal to the sum of (i) $1,000.00 and/or (ii) reasonableout of pocket legal fees or other expenses incurred by Landlord in connectionwith such request.

 

(C)           If this Lease be assigned, or if the Premises or anypart thereof be sublet or occupied by anyone other than Tenant, Landlord mayupon prior notice to Tenant, at any time and from time to time, collect AnnualFixed Rent, Additional Rent, and other charges from the assignee, sublessee oroccupant and apply the net amount collected to the Annual Fixed Rent,Additional Rent and other charges herein reserved, but no such assignment,subletting, occupancy or collection shall be deemed a waiver of this covenant,or a waiver of the provisions of Sections 12.1 through 12.7 hereof, or theacceptance of the assignee, sublessee or occupant as a tenant or a release ofTenant from the further performance by Tenant of covenants on the part ofTenant herein contained, the Tenant herein named to remain primarily liableunder this Lease.

 

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(D)                               The consent by Landlord toan assignment or subletting under any of the provisions of Sections 12.2 or12.4 shall in no way be construed to relieve Tenant from obtaining the expressconsent in writing of Landlord to any further assignment or subletting.

 

(E)                                 Without limiting Tenant’sobligations under Article IX, Tenant shall be responsible, at Tenant’ssole cost and expense, for performing all work necessary to comply with LegalRequirements and Insurance Requirements in connection with any assignment orsubletting hereunder including, without limitation, any work in connection withsuch assignment or subletting.

 

(F)                                 In addition to the otherrequirements set forth in this Lease and notwithstanding any other provision ofthis Lease, partial sublettings of the Premises shall only be permitted underthe following terms and conditions: (i) the layout of both the subleasedpremises and the remainder of the Premises must comply with applicable laws,ordinances, rules and/or regulations and be reasonably approved byLandlord, including, without limitation, all requirements concerning access andegress; (ii) in the event the subleased premises are separately physicallydemised from the remainder of the Premises, and except as provided in Section 12.3,Tenant shall pay all costs of separately physically demising the subleasedpremises; and (iii) at any given time, there shall be no more than four(4) subleases in effect.

 

(G)                                Notwithstanding anything tothe contrary provided in Section 12.6 above, Landlord shall be entitled toone hundred percent (100%) of any Assignment/Sublease Profits reasonablyallocable (in Landlord’s reasonable determination consistent with Section 12.6)to any calendar month of the Term during which there is or was subsisting, atany time during said calendar month, a monetary or material non-monetary Eventof Default (as defined in Section 15.1).

 

12.8                           Short-TermSubleases

 

Itis acknowledged and agreed that Tenant may initially sublease all or someportion of the East Wing Expansion Premises (as that term is defined in Section 17.1below) in the event that Tenant elects to lease the same pursuant to Section 17.3below (any such subleases being hereinafter referred to as the “Initial EastWing Expansion Premises Subleases”). Notwithstanding anything contained in Sections 12.1-12.7 above to thecontrary, it is understood and agreed that (i) the provisions of Sections12.3, 12.6 and clause (iii) of Section 12.7(F) above shall notapply to any Initial East Wing Expansion Premises Subleases with a subleaseterm of two (2) years or less and (ii)  Landlord shall not beentitled to withhold its consent to any of the prospective Initial East WingExpansion Premises Subleases with a term of two (2) years or less on thegrounds that the proposed subtenant is a tenant in the Building or is in activenegotiation with Landlord or that the proposed subtenant does not possessadequate financial capability to assure the performance of the Tenantobligations as and when due or required.

 

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ARTICLE XIII

 

Indemnity And Insurance

 

13.1                           Indemnity

 

(A)                              Tenant’s Indemnity.  To the maximum extent permitted by law, butsubject to the limitations in Section 16.24 hereof, and to the extent notresulting from any act, omission, negligence or willful misconduct of the Landlord Parties (as hereinafterdefined), Tenant agrees to indemnify and save harmless the Landlord Partiesfrom and against all claims by third parties of whatever nature to the extentarising from or claimed to have arisen from (i) any act, omission ornegligence of the Tenant Parties (as hereinafter defined) occurring in thePremises, the Building or the Complex; (ii) any accident, injury or damagewhatsoever caused to any person, or to the property of any person, occurring inor about the Premises from the earlier of (A) the date on which any TenantParty first enters the Premises in accordance with the provisions of Exhibit B-1attached hereto or (B) the Commencement Date, and thereafter throughoutand until the end of the Lease Term, and after the end of the Lease Term for solong after the end of the Lease Term as Tenant or anyone acting by, through orunder Tenant is in occupancy of the Premises or any portion thereof; (iii) anyaccident, injury or damage whatsoever occurring outside the Premises but withinthe Building or the Complex, where such accident, injury or damage results, oris claimed to have resulted, from any act, omission or negligence on the partof any of the Tenant Parties; or (iv) any breach of this Lease by Tenant(but only to the extent a specific remedy for such breach is not otherwiseprovided for pursuant to the terms of this Lease); provided, however, that inno event shall Tenant be liable for any indirect or consequential damagesexcept (1) as provided in Section 16.18 below and (2) inconnection with Tenant’s use of Hazardous Materials in its businessoperations.  This indemnification shallnot be construed to deny or reduce any other rights or obligations of indemnitythat any of the Landlord Parties may have under this Lease or the common law.

 

(B)                                [intentionally omitted]

 

(C)                                No limitation.  The indemnification obligations under thisSection 13.1 shall not be limited in any way by any limitation on theamount or type of damages, compensation or benefits payable by or for Tenant orany subtenant or other occupant of the Premises under workers’ compensationacts, disability benefit acts, or other employee benefit acts. Tenant waivesany immunity from or limitation on its indemnity or contribution liability tothe Landlord Parties based upon such acts.

 

(D)                               Subtenants and otheroccupants.  Tenantshall require its subtenants and other occupants of the Premises to providesimilar indemnities to the Landlord Parties in a form acceptable to Landlord.

 

(E)                                 Landlord’s Indemnity.  To the maximum extent permitted by law, butsubject to the limitations in Section 16.24 and in Sections 13.2 and 13.13of this Article, and to the 

 

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extent not resulting from any act, omission, fault,negligence or willful misconduct of Tenant or its contractors, licensees,invitees, agents, servants or employees, Landlord agrees to indemnify and saveharmless Tenant from and against any claim by a third party arising from anyinjury to any person occurring in the Premises, the Building or the Complexafter the date that possession of the Premises is first delivered to Tenant anduntil the expiration or earlier termination of the Lease Term, to the extentsuch injury results from the negligent act or omission or willful misconduct ofLandlord or Landlord’s contractors, agents or employees, or from any breach ordefault by Landlord in the performance or observance of its covenants orobligations under this Lease (but only to the extent a specific remedy for suchbreach or default is not otherwise provided for pursuant to the terms of thisLease); provided, however, that in no event shall the aforesaid indemnityrender Landlord responsible or liable for any loss or damage to fixtures,personal property or other property of Tenant, and Landlord shall in no eventbe liable for any indirect or consequential damages.  Tenant shall provide notice of any such thirdparty claim to Landlord as soon as practicable. Landlord shall have the right, but not the duty, to defend theclaim.  The provisions of this Section 13.1(e) shallnot be applicable to the holder of any mortgage now or hereafter on theBuilding or the Site (whether or not such holder shall be a mortgagee in possessionof or shall have exercised any rights under a conditional, collateral or otherassignment of leases and/or rents respecting the Building or the Site, exceptto the extent of liability insurance maintained by such holder).

 

(F)                                 Costs.  The foregoing indemnity and hold harmlessagreement shall include indemnity for all costs, expenses and liabilities(including, without limitation, attorneys’ fees and disbursements) incurred bythe Landlord Parties in connection with any such claim or any action or proceedingbrought thereon, and the defense thereof. In addition, in the event that anyaction or proceeding shall be brought against one or more Landlord Parties byreason of any such claim, Tenant, upon request from the Landlord Party, shallresist and defend such action or proceeding on behalf of the Landlord Party bycounsel appointed by Tenant’s insurer (if such claim is covered by insurancewithout reservation) or otherwise by counsel reasonably satisfactory to theLandlord Party. The Landlord Parties shall not be bound by any compromise orsettlement of any such claim, action or proceeding without the prior writtenconsent of such Landlord Parties.

 

(G)                                Survival. The terms ofthis Section 13.1 shall survive any termination or expiration of thisLease.

 

13.2                           Tenant’s Risk

 

Tenantagrees to use and occupy the Premises, and to use such other portions of theBuilding and the Complex as Tenant is given the right to use by this Lease atTenant’s own risk. The Landlord Parties shall not be liable to the Tenant Partiesfor any damage, injury, loss, compensation, or claim (including, but notlimited to, claims for the interruption of or loss to a Tenant Party’sbusiness) based on, arising out of or resulting from any cause whatsoever,including, but not limited to, repairs to any portion of the Premises or theBuilding or the Complex, any fire, robbery, theft, mysterious 

 

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disappearance,or any other crime or casualty, the actions of any other tenants of the Buildingor of any other person or persons, or any leakage in any part or portion of thePremises or the Building or the Complex, or from water, rain or snow that mayleak into, or flow from any part of the Premises or the Building or theComplex, or from drains, pipes or plumbing fixtures in the Building or theComplex. Any goods, property or personal effects stored or placed in or aboutthe Premises shall be at the sole risk of the Tenant Party, and neither theLandlord Parties nor their insurers shall in any manner be held responsibletherefor. The Landlord Parties shall not be responsible or liable to a TenantParty, or to those claiming by, through or under a Tenant Party, for any lossor damage that may be occasioned by or through the acts or omissions of personsoccupying adjoining premises or any part of the premises adjacent to orconnecting with the Premises or any part of the Building or otherwise. Theprovisions of this section shall be applicable until the expiration or earliertermination of the Lease Term, and during such further period as Tenant may useor be in occupancy of any part of the Premises or of the Building.

 

13.3                           Tenant’sCommercial General Liability Insurance

 

Tenantagrees to maintain in full force on or before the earlier of (i) the dateon which any Tenant Party first enters the Premises for any reason or (ii) theCommencement Date, and thereafter throughout and until the end of the LeaseTerm, and after the end of the Lease Term for so long as Tenant or anyoneacting by, through or under Tenant is in occupancy of the Premises or anyportion thereafter, a policy of commercial general liability insurance, on anoccurrence basis, issued on a form at least as broad as Insurance ServicesOffice (“ISO”) Commercial General Liability Coverage “occurrence” form CG 00 0110 01 or another Commercial General Liability “occurrence” form providingequivalent coverage. Such insurance shall include broad form contractualliability coverage, specifically covering but not limited to the indemnificationobligations undertaken by Tenant in this Lease. The Initial Minimum Limits ofTenant’s Commercial General Liability Insurance shall be as stated in Section 1.2above (subject to increase as provided in said Section 1.2).  In addition, in the event Tenant hosts afunction in the Premises, Tenant agrees to obtain, and cause any persons orparties providing services for such function to obtain, the appropriateinsurance coverages as may be reasonably determined by Landlord (including hostliquor liability coverage, if applicable) and provide Landlord with evidence ofthe same upon request.

 

13.4                           Tenant’sProperty Insurance

 

Tenantshall maintain at all times during the Term of the Lease, and during suchearlier time as Tenant may be performing work in or to the Premises or haveproperty, fixtures, furniture, equipment, machinery, goods, supplies, wares ormerchandise on the Premises, and containing thereafter so long as Tenant is inoccupancy of any part of the Premises, business interruption insurance and insuranceagainst loss or damage covered by the so-called “all risk” type insurancecoverage (including during the course of construction) with respect to Tenant’sproperty, fixtures, furniture, equipment, machinery, goods, supplies, wares andmerchandise, and all alterations, improvements and other 

 

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modificationsmade by or on behalf of the Tenant in the Premises, and other property ofTenant located at the Premises, which are permitted to be removed by Tenant atthe expiration or earlier termination of the Lease Term except to the extentpaid for by Landlord (collectively “Tenant’s Property”). The businessinterruption insurance required by this Section 13.4 shall be in minimumamounts not less than the Annual Fixed Rent then in effect during any LeaseYear, plus any Additional Rent due and payable for the immediately precedingLease Year. The “all risk” insurance required by this section shall be in anamount at least equal to the full replacement cost of Tenant’s Property. Inaddition, during such time as Tenant is performing work in or to the Premises,Tenant, at Tenant’s expense, shall also maintain, or shall cause itscontractor(s) to maintain, “all risk” insurance in an amount not less thanthe full replacement cost of any such work. Landlord and such additionalpersons or entities as Landlord may reasonably request shall be named as losspayees, as their interests may appear, on the policy or policies required bythis Lease. In the event of loss or damage covered by the “all risk” insurancerequired by this Lease, the responsibilities for repairing or restoring theloss or damage shall be determined in accordance with Article XIV. To theextent that Landlord is obligated to pay for the repair or restoration of theloss or damage covered by the policy, Landlord shall be paid the proceeds ofthe “all risk” insurance covering the loss or damage. To the extent Tenant isobligated to pay for the repair or restoration of the loss or damage, coveredby the policy, Tenant shall be paid the proceeds of the “all risk” insurancecovering the loss or damage. If both Landlord and Tenant are obligated to payfor the repair or restoration of the loss or damage covered by the policy, theinsurance proceeds shall be paid to each of them in the pro rata proportion oftheir obligations to repair or restore the loss or damage. If the loss ordamage is not repaired or restored (for example, if the Lease is terminatedpursuant to Article XIV), the insurance proceeds shall be paid to Landlordand Tenant in the pro rata proportion of their relative contributions to thecost of the leasehold improvements pursuant to the terms of the policy.

 

13.5                           Tenant’s OtherInsurance

 

Tenantagrees to maintain in full force on or before the earlier of (i) the dateon which any Tenant Party first enters the Premises for any reason or (ii) theCommencement Date, and thereafter throughout the end of the Term, and after theend of the Term for so long after the end of the Term as Tenant or anyone actingby, through or under Tenant is in occupancy of the Premises or any portionthereafter, (1) comprehensive automobile liability insurance (covering anyautomobiles owned or operated by Tenant) issued on a form at least as broad asISO Business Auto Coverage form CA 00 01 07 97 or other form providingequivalent coverage; (2) workers’ compensation insurance; and (3) employer’sliability insurance. Such automobile liability insurance shall be in an amountnot less than One Million Dollars ($1,000,000) for each accident. Such workers’compensation insurance shall carry minimum limits as defined by the law of thejurisdiction in which the Premises are located (as the same may be amended fromtime to time). Such employer’s liability insurance shall be in an amount notless than One Million Dollars ($1,000,000) for each accident, One MillionDollars ($1,000,000) disease-policy limit, and One Million Dollars ($1,000,000)disease-each employee.

 

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13.6                           Requirements forTenant’s Insurance

 

Allinsurance required to be maintained by Tenant pursuant to this Lease shall bemaintained with responsible companies that are admitted to do business, and arein good standing in the Commonwealth of Massachusetts and that have a rating ofat least “A-” and are within a financial size category of not less than “Class VII”in the most current Best’s Key Rating Guide (or such similar rating as may bereasonably selected by Landlord if Best’s Key Rating Guide is no longer beingpublished). All such insurance shall: (1) be reasonably acceptable in formand content to Landlord; (2) be primary and noncontributory; and (3) containan endorsement providing that the insurer shall endeavor to provide Landlord atleast thirty (30) days’ prior written notice (by certified or registered mail,return receipt requested, or by fax or email) of any cancellation, failure torenew, reduction of amount of insurance, or material change in coverage. Nosuch policy shall contain any deductible or self-insured retention greater than$25,000.00 for commercial general liability insurance and $100,000.00 forproperty insurance. Such deductibles and self-insured retentions shall bedeemed to be “insurance” for purposes of the waiver in Section 13.13below. The minimum amounts of insurance required by this Lease shall not bereduced by the payment of claims or for any other reason. In the event Tenantshall fail to obtain or maintain any insurance meeting the requirements of thisArticle, Landlord may, at its option, on five (5) business days notice toTenant given at any time after Tenant has failed to provide any certificate ofinsurance required by this Article XIII, procure such policies for theaccount of Tenant, and the cost thereof shall be paid to Landlord within five(5) days after delivery to Tenant of bills therefor.

 

13.7                           AdditionalInsureds

 

Thecommercial general liability and auto insurance carried by Tenant pursuant tothis Lease, and any additional liability insurance carried by Tenant pursuantto Section 13.3 of this Lease, shall name Landlord, Landlord’s managingagent, and such other Persons as Landlord may reasonably request from time totime as additional insureds with respect to liability arising out of or relatedto this Lease or the operations of Tenant (collectively “Additional Insureds”).Such insurance shall provide primary coverage without contribution from anyother insurance carried by or for the benefit of Landlord, Landlord’s managingagent, or other Additional Insureds. Such insurance shall also waive any rightof subrogation against each Additional Insured.

 

13.8                           Certificates ofInsurance

 

Onor before the earlier of (i) the date on which any Tenant Party firstenters the Premises for any reason or (ii) the Commencement Date, Tenantshall furnish Landlord with certificates evidencing the insurance coveragerequired by this Lease, and renewal certificates shall be furnished to Landlordat least annually thereafter, and at renewal of each policy for which acertificate was furnished (acceptable forms of such certificates for liabilityand property insurance, respectively, are attached as Exhibit L). Failureby the Tenant to provide the certificates or letters required by this Section 13.8shall not be deemed to be a waiver of the requirements in this Section 13.8.Upon request by 

 

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Landlord,a true and complete copy of any insurance policy required by this Lease shallbe delivered to Landlord within ten (10) days following Landlord’s request.

 

13.9                           Subtenants andOther Occupants

 

Tenantshall require its subtenants and other occupants of the Premises to providewritten documentation evidencing the obligation of such subtenant or otheroccupant to indemnify the Landlord Parties to the same extent that Tenant isrequired to indemnify the Landlord Parties pursuant to Section 13.1 above,and to maintain insurance that meets the requirements of this Article, andotherwise to comply with the requirements of this Article. Tenant shall requireall such subtenants and occupants to supply certificates of insuranceevidencing that the insurance requirements of this Article have been metand shall forward such certificates to Landlord on or before the earlier of (i) thedate on which the subtenant or other occupant or any of their respective director indirect partners, officers, shareholders, directors, members, trustees,beneficiaries, servants, employees, principals, contractors, licensees, agents,invitees or representatives first enters the Premises or (ii) thecommencement of the sublease. Tenant shall be responsible for identifying andremedying any deficiencies in such certificates or policy provisions.

 

13.10                     No Violation ofBuilding Policies

 

Tenantshall not commit or permit any violation of the policies of fire, boiler,sprinkler, water damage or other insurance covering the Complex and/or thefixtures, equipment and property therein carried by Landlord, or do or permitanything to be done, or keep or permit anything to be kept, in the Premises, whichin case of any of the foregoing (i) would result in termination of anysuch policies, (ii) would adversely affect Landlord’s right of recoveryunder any of such policies, or (iii) would result in reputable andindependent insurance companies refusing to insure the Complex or the propertyof Landlord in amounts reasonably satisfactory to Landlord.

 

13.11                     Tenant to PayPremium Increases

 

Ifand solely to the extent that, because of anything done, caused or permitted tobe done, or omitted by Tenant (or its subtenant or other occupants of thePremises), the rates for liability, fire, boiler, sprinkler, water damage orother insurance on the Complex and equipment of Landlord or any other tenant orsubtenant in the Building shall be higher than they otherwise would be, Tenantshall reimburse Landlord and/or the other tenants and subtenants in theBuilding for the additional insurance premiums thereafter paid by Landlord orby any of the other tenants and subtenants in the Building which shall havebeen charged because of the aforesaid reasons, such reimbursement to be madefrom time to time on Landlord’s demand.

 

13.12                     Landlord’sInsurance

 

(A)                              Required insurance.  Landlord shall maintain insurance againstloss or damage with respect to the Building on an “all risk” type insuranceform, with customary exceptions, subject to such deductibles as Landlord mayreasonably determine, in an 

 

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amount equal to at least the replacement value ofthe Building. Landlord shall also maintain such insurance with respect to anyimprovements, alterations, and fixtures of Tenant located at the Premises tothe extent paid for by Landlord. The cost of such insurance shall be treated asa part of Operating Expenses for the Building. Such insurance shall bemaintained with an insurance company selected by Landlord. Payment for lossesthereunder shall be made solely to Landlord.

 

(B)                                Optional insurance.  Landlord may maintain such additionalinsurance with respect to the Building and the Development Area, including,without limitation, earthquake insurance, terrorism insurance, flood insurance,liability insurance and/or rent insurance, as Landlord may in its solediscretion elect. Landlord may also maintain such other insurance as may fromtime to time be required by the holder of any mortgage on the Building orProperty. The cost of all such additional insurance shall also be part of theOperating Expenses for the Building.

 

(C)                                Blanket and self-insurance.  Any or all of Landlord’s insurance may beprovided by blanket coverage maintained by Landlord or any affiliate ofLandlord under its insurance program for its portfolio of properties, or byLandlord or any affiliate of Landlord under a program of self-insurance, and insuch event Operating Expenses for the Building shall include the portion of thereasonable cost of blanket insurance or self-insurance that is allocated to theBuilding.

 

(D)                               No obligation.  Landlord shall not be obligated to insure,and shall not assume any liability of risk of loss for, Tenant’s Property,including any such property or work of Tenant’s subtenants or occupants.Landlord will also have no obligation to carry insurance against, nor beresponsible for, any loss suffered by Tenant, subtenants or other occupants dueto interruption of Tenant’s or any subtenant’s or occupant’s business.

 

13.13                     Waiver ofSubrogation

 

Theparties hereto waive and release any and all rights of recovery against theother, and agree not to seek to recover from the other or to make any claimagainst the other, and in the case of Landlord, against all “Tenant Parties”(hereinafter defined), and in the case of Tenant, against all “LandlordParties” (hereinafter defined), for any loss or damage incurred by thewaiving/releasing party to the extent such loss or damage is insured under anyinsurance policy required by this Lease or which would have been so insured hadthe party carried the insurance it was required to carry hereunder. Tenantshall obtain from its subtenants and other occupants of the Premises a similarwaiver and release of claims against any or all of Tenant or Landlord. Inaddition, the parties hereto (and in the case of Tenant, its subtenants andother occupants of the Premises) shall procure an appropriate clause in, orendorsement on, any liability or property insurance policy required by thisLease pursuant to which the insurance company waives subrogation. The insurancepolicies required by this Lease shall contain no provision that wouldinvalidate or restrict the parties’ waiver and release of the rights ofrecovery in this section. The parties hereto covenant that no insurer shallhold any right of subrogation against the parties hereto by virtue of suchinsurance policy.

 

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Theterm “Landlord Party” or “Landlord Parties” shall mean Landlord, any affiliateof Landlord, Landlord’s managing agents for the Building, each mortgagee (ifany), each ground lessor (if any), and each of their respective direct orindirect partners, officers, shareholders, directors, members, trustees,beneficiaries, servants, employees, principals, contractors, licensees, agentsor representatives. For the purposes of this Lease, the term “Tenant Party” or“Tenant Parties” shall mean Tenant, any affiliate of Tenant, any permittedsubtenant or any other permitted occupant of the Premises, and each of theirrespective direct or indirect partners, officers, shareholders, directors,members, trustees, beneficiaries, servants, employees, principals, contractors,licensees, agents, invitees or representatives.

 

13.14                     Tenant’s Work

 

Duringsuch times as Tenant is performing work or having work or services performed inor to the Premises, Tenant shall require its contractors, and theirsubcontractors of all tiers, to obtain and maintain commercial generalliability, automobile, workers compensation, employer’s liability, andequipment/property insurance in such amounts and on such terms as arecustomarily required of such contractors and subcontractors on similarprojects. The amounts and terms of all such insurance are subject to Landlord’swritten approval, which approval shall not be unreasonably withheld. Thecommercial general liability and auto insurance carried by Tenant’s contractorsand their subcontractors of all tiers pursuant to this section shall nameLandlord, Landlord’s managing agent, and such other persons as Landlord mayreasonably request from time to time as additional insureds with respect toliability arising out of or related to their work or services (collectively“Additional Insureds”). Such insurance shall provide primary coverage withoutcontribution from any other insurance carried by or for the benefit ofLandlord, Landlord’s managing agent, or other Additional Insureds. Such insuranceshall also waive any right of subrogation against each Additional Insured.Tenant shall obtain and submit to Landlord, prior to the earlier of (i) theentry onto the Premises by such contractors or subcontractors or (ii) commencementof the work or services, certificates of insurance evidencing compliance withthe requirements of this section.

 

ARTICLE XIV

 

Fire, Casualty and Taking

 

14.1                           DamageResulting from Casualty

 

Incase during the Lease Term the Building or the Site are damaged by fire or casualty,and such fire or casualty damage cannot, in the ordinary course, reasonably beexpected to be repaired within two hundred forty (240) days from the date ofsuch fire or casualty, Landlord may, at its election, terminate this Lease bynotice given to Tenant within sixty (60) days after the date of such fire orother casualty, specifying the effective date of termination. The effectivedate of termination specified by Landlord shall not be less than thirty (30)days nor more than forty-five (45) days after the date of notice of suchtermination. Unless terminated pursuant to the foregoing provisions, this Leaseshall 

 

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remainin full force and effect following any such damage subject, however, to the followingprovisions.

 

Ifduring the last eighteen (18) months of the Lease Term as it may have beenextended, the Building shall be damaged by fire or casualty and such fire orcasualty damage to the Premises cannot reasonably be expected to be repaired orrestored within one hundred fifty (150) days from the date of such casualty,then Tenant shall have the right, by giving notice to Landlord not later thanthirty (30) days after such damage, to terminate this Lease, whereupon thisLease shall terminate as of the date of such notice with the same force andeffect as if such date were the date originally established as the expirationdate hereof.

 

Ifthe Building or the Site or any part thereof are damaged by fire or casualtyand this Lease is not so terminated, or Landlord has no right to terminate thisLease, and in either such case the holder of any mortgage which includes theBuilding as a part of the mortgaged premises or any ground lessor of any groundlease which includes the Site as part of the demised premises allows the netinsurance proceeds to be applied to the restoration of the Building (and/or theSite), Landlord, promptly after such damage and the determination of the netamount of insurance proceeds available shall use due diligence to restore thePremises and the Building in the event of damage thereto (excluding Tenant’sProperty ) into proper condition for use and occupation and a just proportionof the Annual Fixed Rent, the Operating Cost Excess and the Tax Excessaccording to the nature and extent of the injury to the Premises shall beabated from the date of casualty until the Premises shall have been put byLandlord substantially into such condition and are made available for occupancyby Tenant. If such net insurance proceeds are not allowed by such mortgagee orground lessor to be applied to, or are otherwise insufficient for, therestoration of the Building (and/or the Site) and if Landlord does nototherwise elect to spend the additional funds necessary to fully restore theBuilding (and/or the Site), then Landlord shall give notice (“Landlord’sInsufficient Insurance Proceeds Notice”) to Tenant that Landlord does not electto fund the amount of the insufficiency and Tenant shall thereafter have theright to terminate this Lease by providing Landlord with a notice oftermination within thirty (30) days after Tenant’s receipt of Landlord’sInsufficient Insurance Proceeds Notice (the effective date of which terminationshall not be less than sixty (60) days after the date of such notice of suchtermination).

 

WhereLandlord is obligated or otherwise elects to effect restoration of thePremises, unless such restoration is completed within one (1) year fromthe date of the casualty or taking, such period to be subject, however, toextension where the delay in completion of such work is due to Force Majeure,as defined hereinbelow, (but in no event beyond eighteen (18) months from thedate of the casualty or taking), Tenant, as its sole and exclusive remedy,shall have the right to terminate this Lease at any time after the expirationof such one-year (as extended) period until the restoration is substantiallycompleted, such termination to take effect as of the thirtieth (30th) day afterthe date of receipt by Landlord of Tenant’s notice, with the same force andeffect as if such date were the date originally established as the expirationdate hereof unless, within such thirty (30) 

 

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dayperiod such restoration is substantially completed, in which case Tenant’snotice of termination shall be of no force and effect and this Lease and theLease Term shall continue in full force and effect. When used herein, “ForceMajeure” shall mean any prevention, delay or stoppage due to governmentalregulation, strikes, lockouts, acts of God, acts of war, terrorists acts, civilcommotions, unusual scarcity of or inability to obtain labor or materials,labor difficulties, casualty or other causes reasonably beyond Landlord’scontrol or attributable to Tenant’s action or inaction. A party shall have theright to invoke the benefit of the Force Majeure provisions of this Article XIVonly if (a) it advises the other party of the occurrence of the ForceMajeure event within three (3) business days after it becomes awarethereof and (b) such party uses commercially reasonable efforts tomitigate the impact of such Force Majeure event to the extent it within suchparty’s reasonable ability to do so under the circumstances).

 

14.2                           UninsuredCasualty

 

Notwithstandinganything to the contrary contained in this Lease, if the Building or thePremises shall be substantially damaged by fire or casualty as the result of arisk not covered by the forms of casualty insurance at the time required to bemaintained by Landlord pursuant to this Lease, and such fire or casualty damagecannot, in the ordinary course, reasonably be expected to be repaired withinone hundred fifty (150) days from the time that repair work would commence,Landlord may, at its election, terminate the Term of this Lease by notice toTenant given within sixty (60) days after such loss. If Landlord shall givesuch notice, then this Lease shall terminate as of the date of such notice withthe same force and effect as if such date were the date originally establishedas the expiration date hereof.

 

14.3                           Rights ofTermination for Taking

 

Ifthe Building, or such portion thereof as to render the balance (ifreconstructed to the maximum extent practicable in the circumstances)unsuitable for Tenant’s purposes, shall be taken by condemnation or right ofeminent domain, Landlord or Tenant shall have the right to terminate this Leaseby notice to the other of its desire to do so, provided that such notice isgiven not later than thirty (30) days after Tenant has been deprived ofpossession. If either party shall give such notice, then this Lease shallterminate as of the date of such notice with the same force and effect as ifsuch date were the date originally established as the expiration date hereof.

 

Further,if (i) so much of the Building shall be so taken that continued operationof the Building would be uneconomic as determined by Landlord in its reasonablediscretion or (ii) access to the Building shall be taken (such that Tenantand other tenants of the Building do not have any practical means of access totheir premises for purposes of use and occupancy of at least fifty percent(50%) of the Total Rentable Floor Area of the Building), Landlord shall havethe right to terminate this Lease by giving notice to Tenant of Landlord’sdesire to do so not later than thirty (30) days after Tenant has been deprivedof possession of the Premises (or such portion thereof as may be taken).Landlord agrees not to exercise such termination right in a discriminatorymanner insofar 

 

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asany election Landlord makes, or refrains from making, pursuant to anytermination right Landlord may have with respect to other tenants of theBuilding whose premises are similarly affected. If Landlord shall give suchnotice to Tenant hereunder, then this Lease shall terminate as of the date ofsuch notice with the same force and effect as if such date were the dateoriginally established as the expiration date hereof.

 

Shouldany part of the Premises be so taken or condemned during the Lease Term hereof,and should this Lease not be terminated in accordance with the foregoingprovisions, and the holder of any mortgage which includes the Premises as partof the mortgaged premises or any ground lessor of any ground lease whichincludes the Site as part of the demised premises allows the net condemnationproceeds to be applied to the restoration of the Building, Landlord agrees thatafter the determination of the net amount of condemnation proceeds available toLandlord, Landlord shall use due diligence to put what may remain of thePremises into proper condition for use and occupation as nearly like thecondition of the Premises prior to such taking as shall be practicable(excluding Tenant’s Property). If such net condemnation proceeds are notallowed by such mortgagee or ground lessor to be applied to, or are otherwiseinsufficient for, the restoration of the Building (and/or the Site) and ifLandlord does not otherwise elect to spend the additional funds necessary tofully restore the Building (and/or the Site), then Landlord shall give notice(“Landlord’s Insufficient Condemnation Proceeds Notice”) to Tenant thatLandlord does not elect to fund the amount of the insufficiency and Tenantshall thereafter have the right to terminate this Lease by providing Landlordwith a notice of termination within thirty (30) days after Tenant’s receipt ofLandlord’s Insufficient Condemnation Proceeds Notice (the effective date ofwhich termination shall not be less than sixty (60) days after the date of suchnotice of such termination).

 

Ifthe Premises shall be affected by any exercise of the power of eminent domainand neither Landlord nor Tenant shall terminate this Lease as provided above,then the Annual Fixed Rent, the Operating Cost Excess and the Tax Excess shallbe justly and equitably abated and reduced according to the nature and extentof the loss of use thereof suffered by Tenant; and in case of a taking whichpermanently reduces the Rentable Floor Area of the Premises, a just proportionof the Annual Fixed Rent, the Operating Cost Excess and the Tax Excess shall beabated for the remainder of the Lease Term.

 

14.4                           Award

 

Exceptas otherwise provided in this Section 14.4, Landlord shall have and herebyreserves and excepts, and Tenant hereby grants and assigns to Landlord, allrights to recover for damages to the Building, the Site and the Complex and theleasehold interest hereby created, and compensation accrued or hereafter toaccrue by reason of such taking, damage or destruction, as aforesaid, and byway of confirming the foregoing, Tenant hereby grants and assigns, andcovenants with Landlord to grant and assign to Landlord, all rights to suchdamages or compensation.

 

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However,nothing contained herein shall be construed to prevent Tenant from prosecutingin any such proceedings a claim for its trade fixtures so taken or relocation,moving and other dislocation expenses.

 

ARTICLE XV

 

Default

 

15.1                           Tenant’sDefault

 

ThisLease and the term of this Lease are subject to the limitation that Tenantshall be in default if, at any time during the Lease Term, any one or more ofthe following events (herein called an “Event of Default” a “default of Tenant”or similar reference) shall occur and not be cured prior to the expiration ofthe grace period (if any) herein provided, as follows:

 

(a)                                  Tenant shallfail to pay any installment of the Annual Fixed Rent, or any Additional Rent orany other monetary amount due under this Lease on or before the date on whichthe same becomes due and payable, and such failure continues for five (5) daysafter written notice from Landlord thereof; or

 

(b)                                 Landlord havingrightfully given the notice specified in (a) above to Tenant twice in anytwelve (12) month period, Tenant shall fail thereafter to pay the Annual FixedRent, Additional Rent or any other monetary amount due under this Lease on orbefore the date on which the same becomes due and payable; or

 

(c)                                  Tenant shallassign its interest in this Lease or sublet any portion of the Premises inviolation of the requirements of Article XII of this Lease; or

 

(d)                                 Tenant shallfail to perform or observe some term or condition of this Lease which, becauseof its character, would immediately and materially jeopardize Landlord’s interest(such as, but without limitation, failure to maintain general liabilityinsurance), and such failure continues for three (3) business days afterwritten notice from Landlord to Tenant thereof; or

 

(e)                                  Tenant shallfail to perform or observe any other material requirement, term, covenant orcondition of this Lease (not hereinabove in this Section 15.1 specificallyreferred to) on the part of Tenant to be performed or observed and such failureshall continue for thirty (30) days after written notice thereof from Landlordto Tenant, or if said default shall reasonably require longer than thirty (30)days to cure, if Tenant shall fail to commence to cure said default withinthirty (30) days after written notice thereof and/or fail to continuouslyprosecute the curing of the same to completion with due diligence; or

 

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(f)                                    The estatehereby created shall be taken on execution or by other process of law; or

 

(g)                                 Tenant shallmake an assignment or trust mortgage arrangement, so-called, for the benefit ofits creditors; or

 

(h)                                 Tenant shalljudicially be declared bankrupt or insolvent according to law; or

 

(i)                                     a receiver,guardian, conservator, trustee in involuntary bankruptcy or other similarofficer is appointed to take charge of all or any substantial part of Tenant’sproperty by a court of competent jurisdiction; or

 

(j)                                     any petitionshall be filed against Tenant in any court, whether or not pursuant to anystatute of the United States or of any State, in any bankruptcy,reorganization, composition, extension, arrangement or insolvency proceeding,and such proceedings shall not be fully and finally dismissed within sixty (60)days after the institution of the same; or

 

(k)                                  Tenant shallfile any petition in any court, whether or not pursuant to any statute of theUnited States or any State, in any bankruptcy, reorganization, composition,extension, arrangement or insolvency proceeding; or

 

(l)                                     Tenantotherwise abandons the Premises.

 

15.2                           Termination;Re-Entry

 

Uponthe happening of any one or more of the aforementioned Events of Default(notwithstanding any license of a former breach of covenant or waiver of thebenefit hereof or consent in a former instance), Landlord or Landlord’s agentsor servants may give to Tenant a notice (hereinafter called “notice oftermination”) terminating this Lease on a date specified in such notice oftermination (which shall be not less than five (5) days after the date ofthe mailing of such notice of termination), and this Lease and the Lease Term,as well as any and all of the right, title and interest of the Tenanthereunder, shall wholly cease and expire on the date set forth in such noticeof termination (Tenant hereby waiving any rights of redemption) in the samemanner and with the same force and effect as if such date were the dateoriginally specified herein for the expiration of the Lease Term, and Tenantshall then quit and surrender the Premises to Landlord.

 

Inaddition or as an alternative to the giving of such notice of termination,Landlord or Landlord’s agents or servants may, by any suitable action orproceeding at law, immediately or at any time thereafter re-enter the Premisesand remove therefrom Tenant, its agents, employees, servants, licensees, andany subtenants and other persons, and all or any of its or their propertytherefrom, and repossess and enjoy the Premises, together with all additions,alterations and improvements thereto; but, in any event under this Section 15.2,Tenant shall remain liable as hereinafter provided.

 

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Thewords “re-enter” and “re-entry” as used throughout this Article XV are notrestricted to their technical legal meanings.

 

15.3                           ContinuedLiability; Re-Letting

 

Ifthis Lease is terminated or if Landlord shall re-enter the Premises asaforesaid, or in the event of the termination of this Lease, or of re- entry,by or under any proceeding or action or any provision of law by reason of anEvent of Default hereunder on the part of Tenant, Tenant covenants and agreesforthwith to pay and be liable for, on the days originally fixed herein for thepayment thereof, amounts equal to the several installments of Annual FixedRent, all Additional Rent and other charges reserved as they would, under theterms of this Lease, become due if this Lease had not been terminated or ifLandlord had not entered or re-entered, as aforesaid, and whether the Premisesbe relet or remain vacant, in whole or in part, or for a period less than theremainder of the Lease Term, or for the whole thereof, but, in the event thePremises be relet by Landlord, Tenant shall be entitled to a credit in the netamount of rent and other charges received by Landlord in reletting, afterdeduction of all reasonable expenses incurred in reletting the Premises(including, without limitation, remodeling costs, brokerage fees and the like),and in collecting the rent in connection therewith, in the following manner:

 

Amountsreceived by Landlord after reletting shall first be applied against suchLandlord’s reasonable expenses, until the same are recovered, and until suchrecovery, Tenant shall pay, as of each day when a payment would fall due underthis Lease, the amount which Tenant is obligated to pay under the terms of thisLease (Tenant’s liability prior to any such reletting and such recovery not inany way to be diminished as a result of the fact that such reletting might befor a rent higher than the rent provided for in this Lease); when and if suchexpenses have been completely recovered, the amounts received from reletting byLandlord as have not previously been applied shall be credited against Tenant’sobligations as of each day when a payment would fall due under this Lease, andonly the net amount thereof shall be payable by Tenant. Further, Tenant shallnot be entitled to any credit of any kind for any period after the date whenthe term of this Lease is scheduled to expire according to its terms.

 

Landlordagrees to use reasonable efforts to relet the Premises after Tenant vacates thesame in the event this Lease is terminated based upon an Event of Default byTenant hereunder. The marketing of the Premises in a manner similar to themanner in which Landlord markets other premises within Landlord’s controlwithin the Complex shall be deemed to have satisfied Landlord’s obligation touse “reasonable efforts” hereunder. In no event shall Landlord be required to(i) solicit or entertain negotiations with any other prospective tenantfor the Premises until Landlord obtains full and complete possession of thePremises (including, without limitation, the final and unappealable legal rightto relet the Premises free of any claim of Tenant), (ii) relet thePremises before leasing other 

 

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vacantspace in the Complex, or (iii) lease the Premises for a rental less thanthe current fair market rent then prevailing for similar office space in theComplex.

 

15.4                           LiquidatedDamages

 

Landlordmay elect, as an alternative, to have Tenant pay liquidated damages, whichelection may be made by notice given to Tenant at any time after thetermination of this Lease under Section 15.2, above, and whether or notLandlord shall have collected any damages as hereinbefore provided in thisArticle XV, and in lieu of all other such damages beyond the date of suchnotice. Upon such notice, Tenant shall promptly pay to Landlord, as liquidateddamages, in addition to any damages collected or due from Tenant from anyperiod prior to such notice, such a sum as at the time of such noticerepresents the amount of the excess, if any, of (a) the discounted presentvalue, at a discount rate of six percent (6%), of the Annual Fixed Rent,Additional Rent and other charges which would have been payable by Tenant underthis Lease for the remainder of the Lease Term if the Lease terms had beenfully complied with by Tenant, over and above (b) the discounted presentvalue, at a discount rate of six percent (6%), of the Annual Fixed Rent,Additional Rent and other charges that would be received by Landlord if thePremises were re- leased at the time of such notice for the remainder of theLease Term at the fair market value (including provisions regarding periodicincreases in Annual Fixed Rent if such are applicable) prevailing at the timeof such notice.

 

Forthe purposes of this Article, if Landlord elects to require Tenant to payliquidated damages in accordance with this Section 15.4, the total rentshall be computed by assuming the Tax Excess under Section 6.1 and the OperatingCost Excess under Section 7.4 to be the same as were payable for thetwelve (12) calendar months (or if less than twelve (12) calendar months havebeen elapsed since the date hereof, the partial year) immediately precedingsuch termination of re-entry.

 

Nothingcontained in this Lease shall limit or prejudice the right of Landlord to provefor and obtain in proceedings for bankruptcy or insolvency by reason of thetermination of this Lease, an amount equal to the maximum allowed by anystatute or rule of law in effect at the time when, and governing theproceeds in which, the damages are to be proved, whether or not the amount begreater, equal to, or less than the amount of the loss or damages referred toabove.

 

Inlieu of any other damages or indemnity and in lieu of the recovery by Landlordof all sums payable under all the foregoing provisions of this Section 15.4,Landlord may elect to collect from Tenant, by notice to Tenant, at any timeafter this Lease is terminated under any of the provisions contained in thisArticle XV or otherwise terminated by breach of any obligation of Tenantand before full recovery under such foregoing provisions, and Tenant shallthereupon pay, as liquidated damages, an amount equal to the sum of (a) theAnnual Fixed Rent and all Additional Rent payable for the lesser of (i) thetwelve (12) months ended next prior to such termination and (ii) thenumber of full plus any partial months remaining in the Lease Term, plus (b) theamount of Annual 

 

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FixedRent and Additional Rent of any kind accrued and unpaid at the time of suchelection, plus (c) any and all expenses which the Landlord may haveincurred for and with respect to the collection of any such rent. Notwithstandingthe foregoing, Landlord shall not be entitled to collect liquidated damagesunder the provisions of this paragraph if such liquidated damages would exceedthe damages to which Landlord would have been entitled had it elected tocollect liquidated damages under the provisions of the first paragraph of thisSection 15.4.

 

15.5                           Waiver ofRedemption

 

Tenant,for itself and any and all persons claiming through or under Tenant, includingits creditors, upon the termination of this Lease and of the term of this Leasein accordance with the terms hereof, or in the event of entry of judgment forthe recovery of the possession of the Premises in any action or proceeding, orif Landlord shall enter the Premises by process of law or otherwise, herebywaives any right of redemption provided or permitted by any statute, law ordecision now or hereafter in force, and does hereby waive, surrender and giveup all rights or privileges which it or they may or might have under and byreason of any present or future law or decision, to redeem the Premises or fora continuation of this Lease for the term of this Lease hereby demised afterhaving been dispossessed or ejected therefrom by process of law, or otherwise.

 

15.6                           Landlord’sDefault

 

Landlordshall in no event be in default in the performance of any of Landlord’sobligations hereunder unless and until Landlord shall have failed to performsuch obligations within thirty (30) days, or such additional time as isreasonably required to correct any such default, after notice by Tenant toLandlord properly specifying wherein Landlord has failed to perform any suchobligation. The Tenant shall not assert any right to deduct the cost of repairsor any monetary claim against the Landlord from rent thereafter due andpayable, but shall look solely to the Landlord for satisfaction of such claim.

 

ARTICLE XVI

 

Miscellaneous Provisions

 

16.1                           Waiver

 

Failureon the part of Landlord or Tenant to complain of any action or non-action onthe part of the other, no matter how long the same may continue, shall never bea waiver by Tenant or Landlord, respectively, of any of its rights hereunder.

 

Further,no waiver at any time of any of the provisions hereof by Landlord or Tenantshall be construed as a waiver of any of the other provisions hereof, and awaiver at any time of any of the provisions hereof shall not be construed as awaiver at any subsequent time of the same provisions. The consent or approvalof Landlord or Tenant to or of any action by the other requiring such consentor approval shall not be construed to waive or 

 

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renderunnecessary Landlord’s or Tenant’s consent or approval to or of any subsequentsimilar act by the other.

 

Nopayment by Tenant, or acceptance by Landlord, of a lesser amount than shall bedue from Tenant to Landlord shall be treated otherwise than as a payment onaccount. The acceptance by Landlord of a check for a lesser amount with anendorsement or statement thereon, or upon any letter accompanying such check,that such lesser amount is payment in full, shall be given no effect, andLandlord may accept such check without prejudice to any other rights orremedies which Landlord may have against Tenant. Further, the acceptance byLandlord of Annual Fixed Rent, Additional Rent or any other charges paid byTenant under this Lease shall not be or be deemed to be a waiver by Landlord ofany default by Tenant, whether or not Landlord knows of such default, exceptfor such defaults as to which such payment relates.

 

16.2                           CumulativeRemedies

 

Exceptas expressly provided in this Lease, the specific remedies to which Landlordand Tenant may resort under the terms of this Lease are cumulative and are notintended to be exclusive of any other remedies or means of redress which theymay be lawfully entitled to seek in case of any breach or threatened breach ofany provisions of this Lease. In addition to the other remedies provided inthis Lease, Landlord shall be entitled to the restraint by injunction of theviolation or attempted or threatened violation of any of the covenants,conditions or provisions of this Lease or to seek specific performance of anysuch covenants, conditions or provisions, provided, however, that the foregoingshall not be construed as a confession of judgment by Tenant.

 

16.3                           Quiet Enjoyment

 

ThisLease is subject and subordinate to all matters of record. Landlord agreesthat, upon Tenant’s paying the Annual Fixed Rent, Additional Rent and othercharges herein reserved, and performing and observing the covenants, conditionsand agreements hereof upon the part of Tenant to be performed and observed,Tenant shall and may peaceably hold and enjoy the Premises during the term ofthis Lease (exclusive of any period during which Tenant is holding over afterthe termination or expiration of this Lease without the consent of Landlord),without interruption or disturbance from Landlord or persons claiming throughor under Landlord, subject, however, to the terms of this Lease. This covenantshall be construed as running with the land to and against subsequent ownersand successors in interest, and is not, nor shall it operate or be construedas, a personal covenant of Landlord, except to the extent of the Landlord’sinterest in the Premises, and this covenant and any and all other covenants ofLandlord contained in this Lease shall be binding upon Landlord and upon suchsubsequent owners and successors in interest of Landlord’s interest under thisLease including ground or master lessees, to the extent of their respectiveinterests, as and when they shall acquire same and then only for so long asthey shall retain such interest.

 

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16.4                           Surrender

 

(A)                              No act or thing done byLandlord during the Lease Term shall be deemed an acceptance of a surrender ofthe Premises, and no agreement to accept such surrender shall be valid, unlessin writing signed by Landlord. No employee of Landlord or of Landlord’s agentsshall have any power to accept the keys of the Premises as an acceptance of asurrender of the Premises prior to the termination of this Lease; provided,however, that the foregoing shall not apply to the delivery of keys to Landlordor its agents in its (or their) capacity as managing agent or for purpose of emergencyaccess. In any event, however, the delivery of keys to any employee of Landlordor of Landlord’s agents shall not operate as a termination of the Lease or asurrender of the Premises.

 

(B)                                Upon the expiration orearlier termination of the Lease Term, Tenant shall surrender the Premises toLandlord in the condition as required by Sections 8.1 and 9.5, first removingall goods and effects of Tenant and completing such other removals as may bepermitted or required pursuant to Section 9.5.

 

16.5                           Brokerage

 

Tenantand Landlord warrant and represent that neither party has dealt with any brokerin connection with the consummation of this Lease other than the broker, personor firm designated in Section 1.2 hereof; and in the event any claim ismade against either party relative to dealings with brokers other than thebroker designated in Section 1.2 hereof, the other party shall defend theclaim against such party with counsel of the other party’s selection and saveharmless and indemnify such party on account of loss, cost or damage which mayarise by reason of such claim. Landlord agrees that it shall be solelyresponsible for the payment of brokerage commissions to the broker, person orfirm designated in Section 1.2 hereof in connection with the OriginalLease Term.

 

16.6                           Invalidity ofParticular Provisions

 

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

 

16.7                           ProvisionsBinding, Etc.

 

Theobligations of this Lease shall run with the land, and except as hereinotherwise provided, the terms hereof shall be binding upon and shall inure tothe benefit of the successors and assigns, respectively, of Landlord and Tenantand, if Tenant shall be an individual, upon and to his heirs, executors,administrators, successors and assigns. Each term and each provision of thisLease to be performed by Tenant shall be construed to be both a covenant and acondition. The reference contained to successors and assigns of Tenant is notintended to constitute a consent to assignment by Tenant, but has reference 

 

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onlyto those instances in which Landlord may have later given consent to aparticular assignment as required by the provisions of Article XII hereof.

 

16.8                           Recording;Confidentiality

 

Eachof Landlord and Tenant agree not to record the within Lease, but each partyhereto agrees, on the request of the other, to execute a so-called Notice ofLease in the form attached hereto as Exhibit J.

 

Tenantagrees that this Lease and the terms contained herein will be treated asstrictly confidential and except as required by law or the requirements of anysecurities exchange listing the stock of Tenant (or except with the writtenconsent of Landlord), Tenant shall not disclose the same to any third partyexcept for Tenant’s advisors, brokers, partners, lenders, accountants andattorneys who have been advised of the confidentiality provisions containedherein and agree to be bound by the same; provided, Tenant shall be permittedat any time to disclose the terms of this Lease publicly to the extent requiredin connection with any filing made by Tenant with the United States Securitiesand Exchange Commission, which disclosure may require attaching a copy of thisLease to such filings.

 

16.9                           Notices andTime for Action

 

Whenever,by the terms of this Lease, notice shall or may be given either to Landlord orto Tenant, such notices shall be in writing and shall be sent by hand,registered or certified mail, or overnight or other commercial courier, postageor delivery charges, as the case may be, prepaid as follows:

 

Ifintended for Landlord, addressed to Landlord at the address set forth inArticle I of this Lease (or to such other address or addresses as may fromtime to time hereafter be designated by Landlord by like notice).

 

Ifintended for Tenant, addressed to Tenant at the address set forth in Article Iof this Lease except that from and after the Commencement Date the address ofTenant shall be the Premises (or to such other address or addresses as may fromtime to time hereafter be designated by Tenant by like notice).

 

Exceptas otherwise provided herein, all such notices shall be effective whenreceived; provided, that (i) if receipt is refused, notice shall beeffective upon the first occasion that such receipt is refused, (ii) ifthe notice is unable to be delivered due to a change of address of which nonotice was given, notice shall be effective upon the date such delivery wasattempted, (iii) if the notice address is a post office box number, noticeshall be effective the day after such notice is sent as provided hereinabove or(iv) if the notice is to a foreign address, notice shall be effective two(2) days after such notice is sent as provided hereinabove.

 

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

 

Whereprovision is made for the attention of an individual or department, the noticeshall be effective only if the wrapper in which such notice is sent isaddressed to the attention of such individual or department.

 

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

 

16.10                     When LeaseBecomes Binding

 

Employeesor agents of Landlord have no authority to make or agree to make a lease or anyother agreement or undertaking in connection herewith. The submission of thisdocument for examination and negotiation does not constitute an offer to lease,or a reservation of, or option for, the Premises, and this document shallbecome effective and binding only upon the execution and delivery hereof byboth Landlord and Tenant. All negotiations, considerations, representations andunderstandings between Landlord and Tenant are incorporated herein and may bemodified or altered only by written agreement between Landlord and Tenant, andno act or omission of any employee or agent of Landlord shall alter, change ormodify any of the provisions hereof.

 

16.11                     ParagraphHeadings

 

Theparagraph headings throughout this instrument are for convenience and referenceonly, and the words contained therein shall in no way be held to explain,modify, amplify or aid in the interpretation, construction or meaning of theprovisions of this Lease.

 

16.12                     Rights ofMortgagee

 

ThisLease shall be subject and subordinate to any mortgage now or hereafter placedon the Site or the Building, or both, and to all renewals, modifications,consolidations, replacements and extensions thereof and all substitutionstherefor, provided that the holder of such mortgage agrees to recognize theright of Tenant to use and occupy the Premises upon the payment of rent andother charges payable by Tenant under this Lease and the performance by Tenantof Tenant’s obligations hereunder. In confirmation of such subordination andrecognition, Tenant shall execute and deliver promptly such instruments ofsubordination as such mortgagee may reasonably request, subject to receipt ofsuch instruments of non disturbance from such mortgagee as Tenant mayreasonably request (Landlord hereby agreeing (a) to use best efforts toobtain such subordination instruments from such mortgagee and (b) to payany legal or other fees charged by the mortgagee in connection with providingthe same). In the event that any mortgagee or its respective successor in titleshall succeed to the interest of Landlord, then this Lease shall neverthelesscontinue in full force and effect and Tenant shall and 

 

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doeshereby agree to attorn to such mortgagee or successor and to recognize suchmortgagee or successor as its landlord.

 

Ifin connection with obtaining financing a bank, insurance company, pension trustor other institutional lender shall request reasonable modifications in thisLease as a condition to such financing, Tenant will not unreasonably withhold,delay or condition its consent thereto, provided that (i) suchmodifications do not increase the monetary obligations of Tenant hereunder ormaterially adversely affect the leasehold interest hereby created or Tenant’srights hereunder and (ii) Landlord shall be responsible for the payment ofall reasonable costs incurred by Tenant in complying with such request such as,for example, attorneys’ fees.

 

Landlordhereby represents and warrants that there is no mortgage currently encumberingthe Building or the Site.

 

16.13                     Rights ofGround Lessor

 

IfLandlord’s interest in property (whether land only or land and buildings) whichincludes the Premises is acquired by another party and simultaneously leasedback to Landlord herein, the holder of the ground lessor’s interest in suchlease shall enter into a recognition agreement with Tenant simultaneously withthe sale and leaseback, wherein the ground lessor will agree to recognize theright of Tenant to use and occupy the Premises upon the payment of Annual FixedRent, Additional Rent and other charges payable by Tenant under this Lease andthe performance by Tenant of Tenant’s obligations hereunder, and wherein Tenantshall agree to attorn to such ground lessor as its Landlord and to perform andobserve all of the tenant obligations hereunder, in the event such groundlessor succeeds to the interest of Landlord hereunder under such ground lease.

 

16.14                     Notice toMortgagee and Ground Lessor

 

Afterreceiving notice from any person, firm or other entity that it holds a mortgagewhich includes the Premises as part of the mortgaged premises, or that it is theground lessor under a lease with Landlord as ground lessee, which includes thePremises as a part of the demised premises, no notice from Tenant to Landlordshall be effective unless and until a copy of the same is given to such holderor ground lessor at the address as specified in said notice (as it may fromtime to time be changed), and the curing of any of Landlord’s defaults by suchholder or ground lessor within a reasonable time after such notice (including areasonable time to obtain possession of the premises if the mortgagee or groundlessor elects to do so) shall be treated as performance by Landlord. For thepurposes of this Section 16.14, the term “mortgage” includes a mortgage ona leasehold interest of Landlord (but not one on Tenant’s leasehold interest).

 

16.15                     Assignment ofRents

 

Withreference to any assignment by Landlord of Landlord’s interest in this Lease,or the rents payable hereunder, conditional in nature or otherwise, whichassignment is made to 

 

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theholder of a mortgage or ground lease on property which includes the Premises,Tenant agrees:

 

(a)                                  That theexecution thereof by Landlord, and the acceptance thereof by the holder of suchmortgage, or the ground lessor, shall never be treated as an assumption by suchholder or ground lessor of any of the obligations of Landlord hereunder, unlesssuch holder, or ground lessor, shall, by notice sent to Tenant or under anon-disturbance agreement or other agreement with Tenant, specificallyotherwise elect; and

 

(b)                                 That, except asaforesaid, such holder or ground lessor shall be treated as having assumedLandlord’s obligations hereunder only upon foreclosure of such holder’smortgage and the taking of possession of the Premises, or, in the case of aground lessor, the assumption of Landlord’s position hereunder by such groundlessor. In no event shall the acquisition of title to the Building and the landon which the same is located by a purchaser which, simultaneously therewith,leases the entire Building or such land back to the seller thereof be treatedas an assumption, by operation of law or otherwise, of Landlord’s obligationshereunder, but Tenant shall look solely to such seller-lessee, and itssuccessors from time to time in title, for performance of Landlord’sobligations hereunder. In any such event, this Lease shall be subject andsubordinate to the lease to such purchaser provided that such purchaser-lessoragrees to recognize the right of Tenant to use and occupy the Premises upon thepayment of rent and all other charges payable by Tenant under this Lease andthe performance by Tenant of Tenant’s obligations under this Lease. For allpurposes, such seller-lessee, and its successors in title, shall be thelandlord hereunder unless and until Landlord’s position shall have been assumedby such purchaser-lessor.

 

16.16                     Status Reportand Financial Statements

 

Recognizingthat the parties hereto may find it necessary to establish to third parties,such as accountants, banks, potential or existing mortgagees, potentialpurchasers or the like, the then current status of performance hereunder, eachparty (the “Non Requesting Party”) on the request of the other party (the“Requesting Party”) made from time to time, will promptly furnish to theRequesting Party, addressed to any existing or potential holder of any mortgageencumbering the Premises, the Buildings, the Site and/or the Complex or anypotential purchaser of the Premises, the Buildings, the Site and/or the Complex(each an “Interested Party”) a statement of the status of any reasonable matterpertaining to this Lease, including, without limitation, acknowledgments that(or the extent to which) each party is in compliance with its obligations underthe terms of this Lease; provided, however, that in the event that either partyis requested to provide more than one (1) such statement in any twelve(12) month period, the Requesting Party shall be responsible for the payment ofall reasonable costs incurred by the Non-Requesting Party in providing suchstatements, including, without limitation, attorneys’ fees.

 

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Inaddition, unless and for so long as Tenant is not a publicly traded entity withfinancial statements that are freely available to the public which arecertified to the governmental regulatory authorities, Tenant shall deliver toLandlord, or any Interested Party designated by Landlord, financial statementsof Tenant, as reasonably requested by Landlord including, but not limited to,financial statements for the past three (3) years.

 

Anysuch status statement and non publicly available financial statement, whichshall be certified by Tenant’s executives to the same extent as publiclyavailable financial statements of publicly traded entities, which are deliveredpursuant to this Section 16.16 may be relied upon by any Interested Party.

 

16.17                     Self-Help

 

(A)                              If Tenant shall at any timefail to make any payment or perform any act which Tenant is obligated to makeor perform under this Lease and (except in the case of emergency) if the samecontinues unpaid or unperformed beyond applicable grace periods, then Landlordmay, but shall not be obligated so to do, after ten (10) business days’written notice to and demand upon Tenant, or without notice to or demand uponTenant in the case of any emergency, and without waiving, or releasing Tenantfrom, any obligations of Tenant in this Lease contained, make such payment orperform such act which Tenant is obligated to perform under this Lease in suchmanner and to such extent as may be reasonably necessary, and, in exercisingany such rights, pay any costs and expenses, employ counsel and incur and payreasonable attorneys’ fees. All sums so paid by Landlord and all reasonable andnecessary costs and expenses of Landlord incidental thereto, together withinterest thereon at the annual rate equal to the sum of (a) the Base Ratefrom time to time announced by Bank of America, N.A (or its successor) as itsBase Rate and (b) two percent (2%) (but in no event greater than themaximum rate permitted by applicable law), from the date of the making of suchexpenditures by Landlord, shall be deemed to be Additional Rent and, except asotherwise in this Lease expressly provided, shall be payable to the Landlord ondemand, and if not promptly paid shall be added to any rent then due orthereafter becoming due under this Lease, and Tenant covenants to pay any suchsum or sums with interest as aforesaid, and Landlord shall have (in addition toany other right or remedy of Landlord) the same rights and remedies in theevent of the non-payment thereof by Tenant as in the case of default by Tenantin the payment of Annual Fixed Rent.

 

(B)                                If Landlord shall at anytime be in default pursuant to the terms and conditions of this Leaseattributable to its failure to perform any act which Landlord is obligated toperform under this Lease, and (except in the case of emergency) should suchfailure continue beyond applicable grace periods, Tenant may, but shall not beobligated so to do, after ten (10) business days’ written notice to anddemand upon Landlord explicitly setting forth the basis for Tenant’s claim ofdefault and specifying that Tenant intends to invoke Tenant’s rights under thisSection 16.17 (or without notice to or demand upon Landlord in the case ofany emergency) (“Tenant’s Self Help Notice”), and without waiving, or releasingLandlord from, any obligations of Landlord in this Lease contained, performsuch act which Landlord is obligated to perform under this Lease in such manner

 

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and to such extent as may be reasonably necessary.All sums reasonably so incurred and paid by Tenant and all reasonable andnecessary costs and expenses of Tenant incidental to Tenant’s proper exerciseof self help rights pursuant to this Section 16.17, together with interestthereon at the annual rate equal to the sum of (a) the Base Rate from timeto time announced by Bank of America, N.A (or its successor) as its Base Rateand (b) two percent (2%) (but in no event greater than the maximum ratepermitted by applicable law), from the date of the making of such expendituresby Tenant, shall be payable to the Tenant within thirty (30) days of Tenant’sfurnishing Landlord an invoice therefor, accompanied by reasonablesubstantiation, and Landlord covenants to pay any such sum or sums withinterest as aforesaid if not timely paid. If Landlord fails to reimburse Tenantfor the sums paid by Tenant within thirty (30) days of Tenant’s invoice(together with supporting documentation), and Landlord has not, within ten (10) businessdays of its receipt of such invoice, given written notice to Tenant objectingto such demand and stating that Landlord has filed suit in a court of competentjurisdiction to determine whether or not Tenant had validly exercised itsself-help right hereunder (or if Landlord has timely disputed Tenant’s invoice,has filed suit and has thereafter failed to pay Tenant the amount of any final,unappealable award against Landlord within thirty (30) days after the issuancethereof) then subject to the last sentence of this paragraph, Tenant shall havethe right to offset the amount of such sums demanded by Tenant against theAnnual Fixed Rent and Additional Rent payable under this Lease until offset infull. Notwithstanding the foregoing, Tenant shall have no right to reduce anymonthly installment of Annual Fixed Rent by more than fifteen percent (15%) ofthe amount of Annual Fixed Rent which would otherwise have been due and payableby Tenant to Landlord, unless the aggregate amount of such deductions over theremainder of the Lease Term (as the same may have been extended) will beinsufficient to fully reimburse Tenant for the amount demanded by Tenant, inwhich event Tenant may effect such offset by making deductions from eachmonthly installment of Annual Fixed Rent in equal monthly amounts over thebalance of the remainder of the Lease Term.

 

16.18                     Holding Over

 

(A)                              Any holding over by Tenantafter the expiration of the term of this Lease shall be treated as a tenancy atsufferance and shall be on the terms and conditions as set forth in this Lease,as far as applicable except that Tenant shall pay as a use and occupancy chargean amount equal to the greater of (x) 200% of the Annual Fixed Rent andAdditional Rent calculated (on a daily basis) at the rate payable under theterms of this Lease immediately prior to the commencement of such holding over,or (y) the fair market rental value of the Premises, in each case for theperiod measured from the day on which Tenant’s hold-over commences andterminating on the day on which Tenant vacates the Premises. Notwithstandingthe foregoing, for the first sixty (60) days of any holding over, thepercentage figure set forth above shall instead be 150%.

 

(B)                                In addition, Tenant shallsave Landlord, its agents and employees harmless and will exonerate, defend andindemnify Landlord, its agents and employees from and against any and alldamages which Landlord may suffer on account of Tenant’s hold-over in thePremises after the expiration or prior termination of the term of this Lease. 

 

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Notwithstanding the foregoing, however, Tenant shallnot be liable for indirect or consequential damages incurred by Landlord duringthe first thirty (30) days of any holding over by Tenant.

 

(C)                                Nothing in the foregoing norany other term or provision of this Lease shall be deemed to permit Tenant toretain possession of the Premises or hold over in the Premises after theexpiration or earlier termination of the Lease Term. All property which remainsin the Building or the Premises after the expiration or termination of thisLease shall be conclusively deemed to be abandoned and may either be retainedby Landlord as its property or sold or otherwise disposed of in such manner asLandlord may see fit. If any part thereof shall be sold, then Landlord mayreceive the proceeds of such sale and apply the same, at its option against theexpenses of the sale, the cost of moving and storage, any arrears of rent orother charges payable hereunder by Tenant to Landlord and any damages to whichLandlord may be entitled under this Lease and at law and in equity.

 

16.19                     Entry byLandlord

 

Landlord,and its duly authorized representatives, shall, upon reasonable prior notice(except in the case of emergency), have the right (i) to enter thePremises at all reasonable times (except at any time in the case of emergency)for the purposes of inspecting the condition of same and making such repairs,alterations, additions or improvements thereto as may be necessary if Tenantfails to do so as required hereunder (but the Landlord shall have no dutywhatsoever to make any such inspections, repairs, alterations, additions orimprovements except as otherwise provided in Sections 7.1 and 7.2 and Exhibit Cattached hereto), and (ii) to show the Premises to prospective tenantsduring the applicable time period after Tenant’s right to exercise itsextension option has lapsed under Section 3.2 above (or in the case of theExtended Term, if exercised, during the 18 months preceding the expiration ofthe Extended Term) and at any reasonable time during the Lease Term to show thePremises to prospective purchasers and mortgagees.

 

16.20                     Tenant’sPayments

 

Eachand every payment and expenditure, other than Annual Fixed Rent, shall bedeemed to be Additional Rent hereunder, whether or not the provisions requiringpayment of such amounts specifically so state, and shall be payable, unlessotherwise provided in this Lease, within thirty (30) days after written demandby Landlord, and in the case of the non-payment of any such amount, Landlordshall have, in addition to all of its other rights and remedies, all the rightsand remedies available to Landlord hereunder or by law in the case ofnon-payment of Annual Fixed Rent. Unless expressly otherwise provided in thisLease, the performance and observance by Tenant of all the terms, covenants andconditions of this Lease to be performed and observed by Tenant shall be atTenant’s sole cost and expense. Except as otherwise expressly provided inSection 7.6(D), if Tenant has not objected to any statement of AdditionalRent which is rendered by Landlord to Tenant within one hundred fifty (150)days after Landlord has rendered the same to Tenant, then the same shall bedeemed to be a final account between Landlord and 

 

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Tenantnot subject to any further dispute. In the event that Tenant shall seekLandlord’s consent or approval under this Lease, then Tenant shall reimburseLandlord, upon demand (accompanied by reasonable supporting documentation) asAdditional Rent, for all reasonable costs and expenses, including legal andarchitectural costs and expenses, and costs associated with any of Landlord’ssenior or junior staff at the rates set forth above in this Lease, reasonablyincurred by Landlord in processing such request, whether or not such consent orapproval shall be given.

 

16.21                     Late Payment

 

IfLandlord shall not have received any payment or installment of Annual FixedRent or Additional Rent (the “Outstanding Amount”) on or before the date onwhich the same first becomes payable under this Lease (the “Due Date”), theamount of such payment or installment shall incur a late charge equal to thesum of: (a) five percent (5%) of the Outstanding Amount for administrationand bookkeeping costs associated with the late payment and (b) interest onthe Outstanding Amount from the Due Date through and including the date suchpayment or installment is received by Landlord, at a rate equal to the lesserof (i) the rate announced by Bank of America, N.A. (or its successor) fromtime to time as its prime or base rate (or if such rate is no longer available,a comparable rate reasonably selected by Landlord), plus two percent (2%), or(ii) the maximum applicable legal rate, if any. However, not more thanonce per calendar year, the aforesaid late charge will not be imposed untilfive (5) days after written notice of such delinquency is given to Tenant,in which case the aforesaid late charge shall be due only if such delinquency failsto be cured within such five (5) day period. Additionally, in the casewhere Tenant is entitled to such additional five (5) day cure period afternotice, as provided above, interest on the Outstanding Amount shall not beginto accrue until the day following such five (5) day grace period. Theaforesaid late charge and interest accrued upon any Outstanding Amount shall bedeemed Additional Rent and shall be paid by Tenant to Landlord upon demand.

 

16.22                     Counterparts

 

ThisLease may be executed in several counterparts, each of which shall be deemed anoriginal, and such counterparts shall constitute but one and the sameinstrument.

 

16.23                     EntireAgreement

 

ThisLease constitutes the entire agreement between the parties hereto, Landlord’smanaging agent and their respective affiliates with respect to the subjectmatter hereof and thereof and supersedes all prior dealings between them withrespect to such subject matter, and there are no verbal or collateralunderstandings, agreements, representations or warranties not expressly setforth in this Lease. No subsequent alteration, amendment, change or addition tothis Lease shall be binding upon Landlord or Tenant, unless reduced to writingand signed by the party or parties to be charged therewith.

 

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16.24                     Limitation ofLiability

 

Tenantshall neither assert nor seek to enforce any claim for breach of this Leaseagainst any of Landlord’s assets other than Landlord’s interest in the Property(and the proceeds of any insurance claim or eminent domain proceeding inconnection therewith), and Tenant agrees to look solely to such interest forthe satisfaction of any liability of Landlord under this Lease, it beingspecifically agreed that neither Landlord, nor any successor holder ofLandlord’s interest hereunder, nor any beneficiary of any trust of which anyperson from time to time holding Landlord’s interest is trustee, nor any suchtrustee nor any member, manager, partner, director or stockholder, norLandlord’s managing agent, shall ever be personally liable for any suchliability. This paragraph shall not limit any right that Tenant might otherwisehave to obtain injunctive relief against Landlord or Landlord’ssuccessors-in-interest, or to take any other action which shall not involve thepersonal liability of Landlord, or of any successor holder of Landlord’sinterest hereunder, or of any beneficiary of any trust of which any person fromtime to time holding Landlord’s interest is trustee, or of any such trustee, orof any manager, member, partner, director or stockholder of Landlord orLandlord’s managing agent to respond in monetary damages from Landlord’s assetsother than Landlord’s interest in said Property (and the proceeds of anyinsurance claim or eminent domain proceeding in connection therewith), asaforesaid, but in no event shall Tenant have the right to terminate or cancelthis Lease or to withhold rent or to set-off any claim or damages against rentas a result of any default by Landlord or breach by Landlord of its covenantsor any warranties or promises hereunder, except in the case of a wrongfuleviction of Tenant from the demised premises (constructive or actual) byLandlord continuing after notice to Landlord thereof and a reasonableopportunity for Landlord to cure the same.

 

Inno event shall either party hereto ever be liable for any indirect orconsequential damages or loss of profits or the like, provided that theforegoing limitation of liability shall be inapplicable to Tenant’s obligationspursuant to Section 16.18 hereof (subject to the limitations set forth inSections 16.18(B) thereof).

 

16.25                     No Partnership

 

Therelationship of the parties hereto is that of landlord and tenant and nopartnership, joint venture or participation is hereby created.

 

16.26                     SecurityDeposit

 

(A)                              Concurrently with theexecution of this Lease, Tenant shall pay to Landlord a security deposit in theamount of the Initial Security Deposit Amount set forth in Section 1.2,and Landlord shall hold the same, throughout the Term of this Lease (includingthe Extended Term, if applicable), unless sooner returned to Tenant as providedin this Section 16.26, as security for the performance by Tenant of allobligations on the part of Tenant to be performed under this Lease. Suchdeposit shall be in the form of an irrevocable, unconditional, negotiableletter of credit or an amendment to the existing letter of credit currentlybeing held by Landlord pursuant to the Existing Lease which increases theamount secured thereby to the Initial Security Deposit Amount and modifies 

 

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any provision that refers specifically to theExisting Lease (in either event, the “Letter of Credit”). The Letter of Creditshall (i) be issued by and drawn on a bank reasonably approved by Landlordand at a minimum having a corporate credit rating from Standard and Poor’sProfessional Rating Service of BBB- or a comparable minimum rating from Moody’sProfessional Rating Service, (ii) be substantially in the form attachedhereto as Exhibit I, (iii) permit one or more draws thereunder to bemade accompanied only by certification by Landlord or Landlord’s managing agentthat pursuant to the terms of this Lease, Landlord is entitled to draw uponsuch Letter of Credit, (iv) permit transfers at any time without charge,(v) permit presentment in Boston, Massachusetts and (vi) provide thatany notice to Landlord be sent to the notice address provided for Landlord inthis Lease. If the credit rating for the issuer of such Letter of Credit fallsbelow the standard set forth in (i) above or if the financial condition ofsuch issuer changes in any other material adverse way, Landlord shall have theright to require that Tenant provide a substitute letter of credit that compliesin all respects with the requirements of this Section, and Tenant’s failure toprovide the same within ten (10) days following Landlord’s written demandtherefor shall entitle Landlord to immediately draw upon the Letter of Credit.Any such Letter of Credit shall be for a term of two (2) years (or for one(1) year if the issuer thereof regularly and customarily only issuesletters of credit for a maximum term of one (1) year) and shall in eithercase provide for automatic renewals through the date which is ninety (90) dayssubsequent to the scheduled expiration of this Lease (as the same may beextended) or if the issuer will not grant automatic renewals, the Letter ofCredit shall be renewed by Tenant each year and each such renewal shall be deliveredto and received by Landlord not later than thirty (30) days before theexpiration of the then current Letter of Credit (herein called a “RenewalPresentation Date”). In the event of a failure to so deliver any such renewalLetter of Credit on or before the applicable Renewal Presentation Date,Landlord shall be entitled to present the then existing Letter of Credit forpayment and to receive the proceeds thereof, which proceeds shall be held asTenant’s security deposit, subject to the terms of this Section 16.26. Anyfailure or refusal of the issuer to honor the Letter of Credit shall be atTenant’s sole risk and shall not relieve Tenant of its obligations hereunderwith regard to the security deposit. Upon the occurrence of any Event ofDefault, Landlord shall have the right from time to time without prejudice toany other remedy Landlord may have on account thereof, to draw on all or anyportion of such deposit held as a Letter of Credit and to apply the proceeds ofsuch Letter of Credit or any cash held as such deposit, or any part thereof, toLandlord’s damages arising from such Event of Default on the part of Tenantunder the terms of this Lease. If Landlord so applies all or any portion ofsuch deposit, Tenant shall within ten (10) days after notice from Landlorddeposit cash with Landlord in an amount sufficient to restore such deposit tothe full amount stated in this Section 16.26. While Landlord holds anycash deposit Landlord shall have no obligation to pay interest on the same andshall have the right to commingle the same with Landlord’s other funds. Neitherthe holder of a mortgage nor the Landlord in a ground lease on property whichincludes the Premises shall ever be responsible to Tenant for the return orapplication of any such deposit, whether or not it succeeds to the position ofLandlord hereunder, unless such deposit shall have been received in hand bysuch holder or ground Landlord.

 

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(B)                                Landlord shall return a TwoHundred Fifty Thousand and 00/100 Dollar ($250,000.00) portion of such depositto Tenant so that the remainder of such deposit shall be Seven Hundred FiftyThousand and 00/100 Dollars ($750,000.00) (or if such deposit is in the form ofa Letter of Credit, Landlord shall exchange the Letter of Credit for a Letterof Credit delivered by Tenant which reduces the amount secured by the Letter ofCredit by the amount stated hereinabove and otherwise in strict conformity withthe requirements herein) at the beginning of the sixty-first (61st) fullcalendar month immediately following the Commencement Date (the “FirstScheduled Reduction Date”) if (i) Tenant is not then in default under theterms of this Lease without the benefit of notice or grace, (ii) Landlordhas not applied such deposit or any portion thereof to Landlord’s damagesarising from any default on the part of Tenant, whether or not Tenant hasrestored the amount so applied by Landlord, (iii) there have not been morethan three (3) monetary or material non-monetary Events of Default thatoccurred during the Term, even if later cured, (iv) Tenant has notdeclared bankruptcy at any point during the Term and (v) Tenant hasdemonstrated a positive net income in accordance with generally acceptedaccounting principles for its most recent fiscal year prior to the FirstScheduled Reduction Date, as shown in its public filings for such fiscal year(or, in the event that Tenant is an entity other than a publicly held companywhose shares are traded on a national stock exchange, as shown in a certifiedcopy of its most recent audited financial statements covering such fiscalyear). In the event that Tenant does not meet all of the foregoing conditionsset forth in clauses (i) through (v) of the immediately precedingsentence at the beginning of the sixty-first (61st) full calendar monthimmediately following the Commencement Date, then the First Scheduled ReductionDate shall be deferred until such date as Tenant has met such conditions.

 

(C)                                Landlord shall return anadditional Two Hundred Fifty Thousand and 00/100 Dollar ($250,000.00) portionof such deposit to Tenant so that the remainder of such deposit shall be FiveHundred Thousand and 00/100 Dollars ($500,000.00) (or if such deposit is in theform of a Letter of Credit, Landlord shall exchange the Letter of Credit for aLetter of Credit delivered by Tenant which reduces the amount secured by theLetter of Credit by the amount stated hereinabove and otherwise in strictconformity with the requirements herein) at the beginning of the eighty-fifth(85th) full calendar month immediately following the Commencement Date (the“Second Scheduled Reduction Date”) if (i) Tenant is not then in defaultunder the terms of this Lease without the benefit of notice or grace, (ii) Landlordhas not applied such deposit or any portion thereof to Landlord’s damagesarising from any default on the part of Tenant, whether or not Tenant hasrestored the amount so applied by Landlord, (iii) there have not been morethan three (3) monetary or material non-monetary Events of Default thatoccurred during the Term, even if later cured, (iv) Tenant has notdeclared bankruptcy at any point during the Term and (v) Tenant hasdemonstrated a positive net income in accordance with generally acceptedaccounting principles for its most recent fiscal year prior to the SecondScheduled Reduction Date, as shown in its public filings for such fiscal year(or, in the event that Tenant is an entity other than a publicly held companywhose shares are traded on a national stock exchange, as shown in a certifiedcopy of its most recent audited financial statements covering such fiscalyear). In the event that Tenant does not meet all of the foregoing conditionsset forth in clauses (i) through (v) of the immediately 

 

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preceding sentence at the beginning of theeighty-fifth (85th) full calendar month immediately following the CommencementDate, then the Second Scheduled Reduction Date shall be deferred until suchdate as Tenant has met such conditions.

 

(D)                               If Tenant believes that ithas satisfied all the conditions precedent to a reduction in the amount of thesecurity deposit, then it shall request such reduction in writing to Landlord,which request shall certify to Landlord that all such conditions have beensatisfied. If Landlord agrees, in its reasonable determination, that all of theaforesaid conditions are met, the security deposit shall be so reduced inaccordance with this Section 16.26. No Letter of Credit shall automaticallyreduce, but any reduction in the amount thereof shall require Landlord’s priorwritten notice to the issuer of the Letter of Credit of the reduced amount.Promptly after Landlord’s receipt of Tenant’s request for a reduction asdescribed above, Landlord shall determine whether such a reduction is permittedin accordance with this Section 16.26, and if it is, Landlord shall notifythe issuer of the Letter of Credit of the amount to which the Letter of Creditshall be reduced.

 

(E)                                 Tenant not then being inmonetary or material non-monetary default and having performed all of itsmonetary or material non-monetary obligations under this Lease, including thepayment of all Annual Fixed Rent, Landlord shall promptly return the deposit,or so much thereof as shall not have theretofore been applied in accordancewith the terms of this Section 16.26, to Tenant on the expiration orearlier termination of the term of this Lease (as the same may have beenextended) and surrender possession of the Premises by Tenant to Landlord in thecondition required in the Lease at such time.

 

16.27                     Waiver of Trialby Jury

 

Toinduce Landlord to enter into this Lease, Tenant hereby waives any right totrial by jury in any action, proceeding or counterclaim brought by eitherLandlord or Tenant on any matters whatsoever arising out of or any wayconnected with this Lease, the relationship of the Landlord and the Tenant, theTenant’s use or occupancy of the Premises and/or any claim of injury or damage,including but not limited to, any summary process eviction action.

 

16.28                     Patriot Act andExecutive Order 13224

 

(A)                              As an inducement to Landlordto enter into this Lease, Tenant hereby represents and warrants that, toTenant’s knowledge: (i) Tenant is not, nor is it owned or controlleddirectly or indirectly by, any person, group, entity or nation named on anylist issued by the Office of Foreign Assets Control of the United StatesDepartment of the Treasury (“OFAC”) pursuant to Executive Order 13224 or anysimilar list or any law, order, rule or regulation or any Executive Orderof the President of the United States as a terrorist, “Specially DesignatedNational and Blocked Person” or other banned or blocked person (any suchperson, group, entity or nation being hereinafter referred to as a “ProhibitedPerson”); (ii) Tenant is not (nor is it owned or controlled, directly orindirectly, by any person, group, entity or nation which is) acting directly orindirectly for or on behalf of any Prohibited Person; and (iii) from andafter the effective date of the above-referenced 

 

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Executive Order, Tenant (and any person, group, orentity which Tenant controls, directly or indirectly) has not knowinglyconducted nor will knowingly conduct business nor has knowingly engaged norwill knowingly engage in any transaction or dealing with any Prohibited Personin violation of the U.S. Patriot Act or any OFAC rule or regulation,including without limitation any assignment of this Lease or any subletting ofall or any portion of the Premises or the making or receiving of anycontribution of funds, goods or services to or for the benefit of a ProhibitedPerson in violation of the U.S. Patriot Act or any OFAC rule orregulation. In connection with the foregoing, is expressly understood andagreed that (x) any breach by Tenant of the foregoing representations andwarranties shall be deemed a default by Tenant under Section 15.1(d) ofthis Lease and shall be covered by the indemnity provisions of Section 13.1(A) above,and (y) the representations and warranties contained in this subsectionshall be continuing in nature and shall survive the expiration or earliertermination of this Lease. Notwithstanding anything contained herein to thecontrary, for the purposes of this subsection (B) the phrase “owned orcontrolled directly or indirectly by any person, group, entity or nation” andall similar such phrases shall not include any holder of a direct or indirectinterest in a publicly traded company whose shares are listed and traded on aUnited States national stock exchange.

 

(B)                                As an inducement to Tenantto enter into this Lease, Landlord hereby represents and warrants that, toLandlord’s knowledge: (i) Landlord is not, nor is it owned or controlleddirectly or indirectly by, any person, group, entity or nation named on anylist issued by the Office of Foreign Assets Control of the United StatesDepartment of the Treasury (“OFAC”) pursuant to Executive Order 13224 or anysimilar list or by any law, order, rule or regulation or any ExecutiveOrder of the President of the United States as a terrorist, “SpeciallyDesignated National and Blocked Person” or other banned or blocked person (anysuch person, group, entity or nation being hereinafter referred to as a “ProhibitedPerson”); (ii) Landlord is not (nor is it owned or controlled, directly orindirectly, by any person, group, entity or nation which is) acting directly orindirectly for or on behalf of any Prohibited Person; and (iii) from andafter the effective date of the above-referenced Executive Order, Landlord (andany person, group, or entity which Landlord controls, directly or indirectly)has not knowingly conducted nor will knowingly conduct business nor hasknowingly engaged nor will knowingly engage in any transaction or dealing withany Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule orregulation, including without limitation, the making or receiving of anycontribution of funds, goods or services to or for the benefit of a ProhibitedPerson in violation of the U.S. Patriot Act or any OFAC rule orregulation. In connection with the foregoing, is expressly understood andagreed that the representations and warranties contained in this subsectionshall be continuing in nature and shall survive the expiration or earliertermination of this Lease. Notwithstanding anything contained herein to thecontrary, for the purposes of this subsection (B) the phrase “owned orcontrolled directly or indirectly by any person, group, entity or nation” andall similar such phrases shall not include (x) any shareholder of BostonProperties, Inc., (y) any holder of a direct or indirect interest ina publicly traded company whose shares are listed and traded on a United Statesnational stock exchange or (z) any limited partner, unit holder orshareholder owning an interest of five percent (5%) or less in BostonProperties Limited 

 

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Partnership or the holder of any direct or indirectinterest in Boston Properties Limited Partnership.

 

16.29                     Governing Law

 

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

 

16.30                     Tenant’sTelecommunications Equipment

 

Tenantshall be permitted, at its sole cost and expense, to install equipment fortelecommunications, data transmission and other similar technologies including,without limitation, antennas and satellite dishes (the “Tenant’sTelecommunications Equipment”) on the rooftop of the Building. The exactspecifications of the Tenant’s Telecommunications Equipment, the method ofinstalling the Tenant’s Telecommunications Equipment and the location on therooftop for the Tenant’s Telecommunications Equipment shall all be subject toLandlord’s prior written approval, which shall not be unreasonably withheld ordelayed. Tenant and Tenant’s contractors shall have reasonable access to theroof in order to inspect, service, repair, maintain and replace any Tenant’s TelecommunicationsEquipment located thereon, subject to Landlord’s reasonable rules andregulations of which Tenant has been given prior notice relative to the accessto and use of the rooftop. Tenant shall use Landlord’s roof contractor for theinstallation of flashing for any rooftop penetrations necessary for theplacement of the Tenant’s Telecommunications Equipment on the rooftop of theBuilding.

 

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

 

(a)                                  It isunderstood and agreed that Tenant shall be responsible, at its sole cost andexpense, for installing all necessary connections (the “Connections”) betweenthe Tenant’s Telecommunications Equipment and the Premises. In addition tocomplying with the applicable construction provisions of this Lease, Tenantshall not install or operate the Connections in any portion of the Buildinguntil (x) Tenant shall have obtained Landlord’s prior written approval,which approval will not be unreasonably withheld or delayed, of Tenant’s plansand specifications for the placement and installation of the Connections, and(y) Tenant shall have obtained and delivered to Landlord copies of allrequired governmental and quasi-governmental permits, approvals, licenses andauthorizations necessary for the lawful installation, operation and maintenanceof the Connections. Landlord shall inform Tenant at the time of its review ofthe Connections whether Landlord will require the same to be removed by Tenantupon the expiration or earlier termination of this Lease.

 

(b)                                 Tenant shallhave no obligation to pay Annual Fixed Rent, Tax Excess or Operating ExpenseExcess in respect of the Tenant’s Telecommunications 

 

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Equipment or the Connections provided that the sameare used solely to provide service to Tenant’s business operations in thePremises (as opposed to being utilized by the telecommunications carrier toprovide service to other tenants of the Complex).

 

(c)                                  Except asotherwise set forth in this Lease, Landlord shall have no liability to Tenantfor the installation and subsequent operation of the Tenant’sTelecommunications Equipment.

 

(d)                                 Landlord shallhave no obligation to provide any services to the Tenant’s TelecommunicationsEquipment, provided, however, Tenant shall have the right to accesstelephone/data closets and shafts and conduits in the Building, plenum areasand other pathways in the Building in order to connect the Tenant’s TelecommunicationsEquipment to the Premises, subject to Landlord’s right to reasonably approvesuch connections and to Landlord’s reasonable rules and regulations ofwhich Tenant has been given prior notice relative to the access to and the useof such areas within the Building. Tenant shall, at its sole cost and expenseand otherwise in accordance with the provisions of this Section 16.30,arrange for all utility services required for the operation of the Tenant’sTelecommunications Equipment.

 

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

 

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

 

(g)                                 Tenant shall beresponsible for the cost of repairing any damage to the Building or the Site causedby its use of the Tenant’s Telecommunications Equipment and the Connections orany work related thereto.

 

(h)                                 Except forassignees of this Lease or subtenants of all or a portion of the Premises, noother person, firm or entity (including, without limitation, other tenants,licensees or occupants of the Building) shall have the right to connect to theTenant’s Telecommunications Equipment other than Tenant.

 

(i)                                     To the maximumextent permitted by law, Tenant’s use of the Tenant’s Telecommunications Equipmentand the Connections shall be at the sole risk of Tenant, and Landlord shallhave no liability to Tenant in the event that the Tenant’s TelecommunicationsEquipment and the Connections are damaged for any reason.

 

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(j)                                     Tenant shallcomply with all applicable laws, ordinances and regulations in Tenant’s use ofthe Tenant’s Telecommunications Equipment and the Connections.

 

(k)                                  The Tenant’sTelecommunications Equipment and the Connections shall not interfere with the maintenance,use, occupancy or operation of the Building by Landlord or any other tenant,occupant or licensee of the Building (including, without limitation,interference with any communications equipment, telephones, radios, CATV, MATV,televisions, HVAC systems, elevators or computers in place as of the dateTenant installs Tenant’s Telecommunications Equipment and Connections). In theevent any such interference is not cured by Tenant within thirty (30) daysafter written notice thereof from Landlord to Tenant, Landlord shall have theright to require Tenant to relocate or remove the Tenant’s TelecommunicationsEquipment causing such disturbance.

 

(l)                                     Landlord shallhave the right, upon no less than ninety (90) days’ notice to Tenant and atLandlord’s sole cost and expense, to relocate the Tenant’s TelecommunicationsEquipment and the Connections to another location on the roof of the Buildingreasonably acceptable to Tenant provided that such relocation does notadversely affect Tenant’s use of Tenant’s Telecommunications Equipment andLandlord makes temporary arrangements for Tenant’s Telecommunications Equipmentto continue to operate during such relocation. Landlord and Tenant shallcooperate with each other in good faith to schedule such relocation work onnights and weekends so as to minimize interference with Tenant’s businessoperations. Any such relocation by Landlord shall not independently (in theabsence of another cause) be deemed to constitute a service interruption underSection 7.6(C) above.

 

(m)                               The Tenant’sTelecommunications Equipment and the Connections shall be deemed to be a partof the Premises for the purposes of the indemnity and insurance provisions ofArticle XIII above. In addition to and not in limitation of the foregoing,Tenant shall, to the maximum extent permitted by law, indemnify, defend, andhold Landlord, its agents, contractors and employees harmless from any and allclaims, losses, demands, actions or causes of actions suffered by any person,firm, corporation, or other entity arising from Tenant’s use of the Tenant’sTelecommunications Equipment and the Connections.

 

(n)                                 Landlord shallhave the right to designate or identify the Tenant’s TelecommunicationsEquipment and any related components or conduits with or by a lease or licensenumber (or other marking) and to place such number (or marking) on or near suchTenant’s Telecommunications Equipment.

 

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(o)                                 It is expresslyunderstood and agreed that the Tenant’s Telecommunications Equipment shallremain the property of Tenant and that Tenant shall be required to remove thesame upon the expiration or earlier termination of this Lease and to repair anydamage caused by the installation or removal of the Tenant’s TelecommunicationsEquipment.

 

Landlordshall use commercially reasonable efforts to insure that the placement andoperation of other telecommunications equipment on the rooftop of the Buildingdoes not interfere with the use and operation by Tenant of the Tenant’sTelecommunications Equipment and the Connections and shall impose and enforceupon other tenants or occupants of the Building installing telecommunicationsequipment on the roof requirements similar to those contained in subsection (k) above;provided, however, that Landlord shall not be liable to Tenant if any suchinterference actually occurs, so long as Landlord is using commerciallyreasonable efforts as aforesaid.

 

16.31                     Tenant’sOperational Equipment

 

Tenantshall be permitted, at its sole cost and expense, to install (i) up toseven (7) dedicated HEV and EV parking spaces with charging stations onthe Site in the locations shown on Exhibit N attached hereto and (ii) achemical storage shed on the Site in a location to be mutually agreed upon byLandlord and Tenant (said HEV and EV parking spaces with charging stations andchemical storage shed being hereinafter referred to collectively as “Tenant’sOperational Equipment”). The exact specifications of the Tenant’s OperationalEquipment and, the method of installing the Tenant’s Operational Equipmentshall all be subject to Landlord’s prior written approval, which shall not beunreasonably withheld or delayed. Tenant and Tenant’s contractors shall havereasonable access to the Site in order to inspect, service, repair, maintainand replace the Tenant’s Operational Equipment, subject to Landlord’sreasonable rules and regulations of which Tenant has been given priornotice relative to such access and use.

 

Tenant’suse of the Tenant’s Operational Equipment shall be upon all of the conditionsof the Lease, except as modified below:

 

(a)                                  Tenant shallhave no obligation to pay Annual Fixed Rent, Tax Excess or Operating ExpenseExcess in respect of the Tenant’s Operational Equipment.

 

(b)                                 Landlord shallhave no obligation to provide any services to the Tenant’s OperationalEquipment. Tenant shall, at its sole cost and expense and otherwise inaccordance with the provisions of this Section 16.31, arrange for allutility services required for the operation of the Tenant’s OperationalEquipment. In addition, Tenant shall, at its sole cost and expense, be solelyresponsible for all maintenance and repair to the Tenant’s OperationalEquipment.

 

(c)                                  Tenant shallhave no right to make any changes, alterations, signs, or other improvements tothe Tenant’s Operational Equipment without Landlord’s 

 

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prior written consent, which consent shall not beunreasonably withheld or delayed.

 

(d)                                 Tenant shall beresponsible for the cost of repairing any damage to the Building, the Site orthe Complex caused by its use of the Tenant’s Operational Equipment.

 

(e)                                  To the maximumextent permitted by law, Tenant’s use of the Tenant’s Operational Equipmentshall be at the sole risk of Tenant, and Landlord shall have no liability toTenant in the event that the Tenant’s Operational Equipment is damaged for anyreason.

 

(f)                                    Tenant shallcomply with all applicable laws, ordinances and regulations in Tenant’s use ofthe Tenant’s Operational Equipment, including, without limitation, allHazardous Materials Laws.

 

(g)                                 Landlord shallhave the right, upon no less than one hundred twenty (120) days notice toTenant and at Landlord’s sole cost and expense, to relocate any portion of theTenant’s Operational Equipment to another area on the Site. Landlord and Tenantshall cooperate with each other in good faith to schedule such relocation workon nights and weekends so as to minimize interference with Tenant’s businessoperations. Any such relocation by Landlord shall not independently (i.e., inthe absence of another cause) be deemed to constitute an event giving rise tothe provisions of Section 7.6(C) above.

 

(h)                                 The Tenant’sOperational Equipment shall be deemed to be a part of the Premises for the purposesof the indemnity and insurance provisions of Article XIII above.  In addition and not in limitation of theforegoing, Tenant shall, to the maximum extent permitted by law, indemnify,defend, and hold Landlord, its agents, contractors and employees harmless fromany and all claims, losses, demands, actions or causes of actions suffered byany person, firm, corporation, or other entity arising from Tenant’s use of theTenant’s Operational Equipment.

 

(i)                                     Landlord shallhave the right to designate or identify the Tenant’s Operational Equipment withor by a lease or license number (or other marking) and to place such number (ormarking) on or near such Tenant’s Operational Equipment.

 

Itis expressly understood and agreed that Tenant’s Operational Equipment shallremain the property of Tenant and that, as Special Improvements, Landlord mayrequire removal of the Tenant’s Operational Equipment pursuant to Section 9.1of this Lease, but that Tenant may elect to remove the Tenant’s OperationalEquipment any time during the Lease Term.

 

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Landlordand Tenant agree to cooperate with each other in good faith to accommodateTenant’s possible need for additional HEV and EV parking spaces in the future;provided, however, that Landlord shall not be liable to Tenant if Landlord isunable to accommodate such need so long as Landlord has acted in good faith asaforesaid.

 

16.32                     EmergencyGenerator

 

Tenantmay, at its sole cost and expense, install an emergency generator (the“Emergency Generator”) on the Site and certain connections between theEmergency Generator and the Premises (the “Generator Connections”).  The exact specifications of the EmergencyGenerator and the Generator Connections, the method of installing the EmergencyGenerator and the Generator Connections and the location on the Site for theEmergency Generator and the Generator Connections shall all be subject toLandlord’s prior written approval, which shall not be unreasonably withheld ordelayed with respect to a natural gas-powered generator to be installed on theroof of the Building (but which shall otherwise be in Landlord’s solediscretion). Tenant and Tenant’s contractors shall have reasonable access tothe Site in order to inspect, service, repair, maintain and replace theEmergency Generator and Generator Connections, subject to Landlord’s reasonablerules and regulations of which Tenant has been given prior notice relativeto such access and use.

 

Tenant’suse of the Emergency Generator shall be upon all of the conditions of theLease, except as modified below:

 

(a)                                  It isunderstood and agreed that Tenant shall be responsible, at its sole cost andexpense, for installing the Generator Connections.  In addition to complying with the applicableconstruction provisions of this Lease, Tenant shall not install or operate theGenerator Connections in any portion of the Building until (x) Tenantshall have obtained Landlord’s prior written approval, of the EmergencyGenerator and the Generator Connections, as provided above, and (y) Tenantshall have obtained and delivered to Landlord copies of all requiredgovernmental and quasi-governmental permits, approvals, licenses andauthorizations necessary for the lawful installation, operation and maintenanceof the Emergency Generator and the Generator Connections.

 

(b)                                 Tenant shallhave no obligation to pay Annual Fixed Rent, Tax Excess or Operating ExpenseExcess in respect of the Emergency Generator or the Generator Connections.

 

(c)                                  The EmergencyGenerator may be used to provide back-up power in the event of an outage forTenant’s lights and plugs in the Premises and dedicated heating, ventilationand air conditioning systems serving the Premises, or for the purposes ofrunning any life-safety systems or equipment.

 

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(d)                                 Landlord shallhave no obligation to provide any services to the Emergency Generator.  Tenant shall, at its sole cost and expenseand otherwise in accordance with the provisions of this Section 16.32,arrange for all utility services required for the operation of the EmergencyGenerator.

 

(e)                                  Tenant shall,at its sole cost and expense, be solely responsible for all maintenance andrepair to the Emergency Generator and the Generator Connections.  In connection therewith, Tenant shall provideLandlord with evidence on an annual basis of the existence of a maintenancecontract for the Emergency Generator with a service provider reasonablyacceptable to Landlord.

 

(f)                                    Tenant shallhave no right to make any changes, alterations, signs, or other improvements tothe Emergency Generator or the Generator Connections without Landlord’s priorwritten consent, which consent shall not be unreasonably withheld or delayed.

 

(g)                                 Tenant shall beresponsible for the cost of repairing any damage to the Building caused by itsuse of the Emergency Generator and the Generator Connections.

 

(h)                                 Except forassignees of this Lease or subtenants of all or a portion of the Premises, noother person, firm or entity (including, without limitation, other tenants,licensees or occupants of the Building) shall have the right to connect to theEmergency Generator other than Tenant.

 

(i)                                     To the maximumextent permitted by law, Tenant’s use of the Emergency Generator and the GeneratorConnections shall be at the sole risk of Tenant, and Landlord shall have noliability to Tenant in the event that the Emergency Generator or the GeneratorConnections are damaged for any reason.

 

(j)                                     Tenant shallcomply with all applicable laws, ordinances and regulations in Tenant’s use ofthe Emergency Generator and the Generator Connections.

 

(k)                                  Landlord shallhave the right, upon no less than ninety (90) days’ notice to Tenant and atLandlord’s sole cost and expense, to relocate the Emergency Generator and theGenerator Connections to another location on the roof of the Buildingreasonably acceptable to Tenant provided that such relocation does notadversely affect Tenant’s use of the Emergency Generator and the GeneratorConnections.  Landlord and Tenant shallcooperate with each other in good faith to schedule such relocation work onnights and weekends so as to minimize interference with Tenant’s businessoperations. Any such relocation by Landlord shall not 

 

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independently (in the absence of another cause) bedeemed to constitute a service interruption under Section 7.6(C) above.

 

(l)                                     The EmergencyGenerator and the Generator Connections shall be deemed to be a part of thePremises for the purposes of the indemnity and insurance provisions of Article XIIIabove.  In addition to and not inlimitation of the foregoing, Tenant shall, to the maximum extent permitted bylaw, indemnify, defend, and hold Landlord, its agents, contractors andemployees harmless from any and all claims, losses, demands, actions or causesof actions suffered by any person, firm, corporation, or other entity arisingfrom Tenant’s use of the Emergency Generator and the Generator Connections.

 

(m)                               Landlord shallhave the right to designate or identify the Emergency Generator with or by alease or license number (or other marking) and to place such number (ormarking) on or near such Emergency Generator.

 

Itis expressly understood and agreed that, as Special Improvements, Landlord mayrequire removal of the Emergency Generator and Generator Connections pursuantto Section 9.1 of this Lease, but that Tenant may elect to remove theEmergency Generator and Generator Connection at any time during the Lease Term.

 

16.33                     Waiver of Landlord’sLien

 

Fromtime to time upon Tenant’s reasonable written request, Landlord agrees tofurnish Tenant or any vendor or other supplier under any conditional sale,chattel mortgage or other security arrangement, any consignor, any holder ofreserved title or any holder of a security interest, with a waiver ofLandlord’s lien upon Tenant’s trade fixtures, furnishings, signs, equipment,machinery, inventory and personal property in or on the Premises.

 

Withoutlimiting the generality of the foregoing, Landlord is aware that Tenant intendsto apply for federal, state and local grants, loans, tax abatements andreductions and other incentives with respect to its business to be conducted atthe Premises. Landlord agrees to reasonably cooperate (at no out-of-pocketexpense to Landlord and without incurring any liability to Landlord on accountof such cooperation) with such activities. In connection with the foregoing, Landlord agrees, at the request ofTenant, to execute any commercially reasonable documentation related to theforegoing.  Further, and notwithstandinganything to the contrary set forth in this Lease, Tenant shall have the rightto pledge or otherwise grant a first priority security lien in any of Tenant’s Property(as defined in Section 13.4 above) to the United States Department ofEnergy, Massachusetts Clean Energy Technology Center and/or any other partyproviding financing to Tenant in connection with the conduct of Tenant’sbusiness in the Premises, and upon written request by Tenant, Landlord willexecute and deliver commercially reasonable instruments consenting to suchfinancing and/or waiving any statutory or contractual Landlord’s lien inTenant’s Property.

 

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ARTICLE XVII

 

Expansion Rights

 

17.1                           Definitions

 

Withreference to the rights and obligations of Tenant referred to in this Article XVII,it is agreed that the terms used herein are as defined as follows:

 

(a)                                  “Third FloorExpansion Premises” means the approximately 9,318 square feet of rentable floorarea located on the third (3rd) floor of the east wing of the Buildingcurrently occupied by ClickSquared, Inc. and shown on Exhibit Fattached hereto.

 

(b)                                 “East WingExpansion Premises” means, collectively, (i) the Third Floor ExpansionPremises (to the extent not previously leased by Tenant under Section 17.2below) and (ii) all office space on the fourth (4th) floor of the eastwing of the Building, all as shown on Exhibit F attached hereto.

 

(c)                                  “Available ROFOSpace” means any office space in the Building which, from time to time duringthe Lease Term, becomes “available for reletting” (as hereinafter defined),including, without limitation, the Third Floor Expansion Premises and the EastWing Expansion Premises to the extent not previously leased by Tenant underSections 17.2 or 17.3 below (but only after Landlord has leased such spaces tothird parties). Available ROFO Space shall be deemed “available for reletting”when Landlord reasonably determines, subject to the provisions of subsection(e) below, that the then current tenant or occupant of the Available ROFOSpace will vacate such space at the expiration or earlier termination of suchtenant’s lease; provided that in no event shall Landlord determine that anyAvailable ROFO Space is available for reletting (i) more than twelve (12)months prior to the expiration or earlier termination of the existing lease ofthe Available ROFO Space for any Available ROFO Space consisting of less than10,000 square feet of rentable floor area or (ii) more than eighteen (18)months prior to the expiration or earlier termination of the existing lease ofthe Available ROFO Space for any Available ROFO Space consisting of 10,000square feet of rentable floor area or more.

 

(d)                                 “ROFO Premises”means any Available ROFO Space incorporated by Tenant into the Premisespursuant to Section 17.4.

 

(e)                                  “Prior Rights”means:

 

(i)                                     with respect toall office space in the west wing of the Building, any rights of first offer,first refusal, expansion, renewal, extension or other rights to lease thatencumber what would otherwise have been Available ROFO Space which were either(1) granted prior to 

 

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the date hereof or (2) solely in the case ofextension and renewal rights, granted by Landlord at any time whether prior toor subsequent to the date hereof (i.e. regardless of whether the existingleases for such space currently provide the existing tenants thereunder withany such right to extend or renew);

 

(ii)                                  with respect toall office space in the east wing of the Building, any rights of first offer,first refusal, expansion, renewal, extension or other rights to lease thatencumber what would otherwise have been Available ROFO Space which rights weregranted prior to the date hereof (which such Prior Rights with respect to theoffice space in the east wing of the Building are, to the best of Landlord’sactual knowledge after due inquiry, as set forth on Exhibit M attachedhereto); and

 

(iii)                               with respect to(x) the Third Floor Expansion Premises and the East Wing ExpansionPremises, to the extent Tenant declines to exercise its rights with respect tosuch spaces under Sections 17.2 and 17.3 and (y) any Available ROFO Spacein the Building offered to Tenant under Section 17.4 but not leased byTenant pursuant thereto, any rights of first offer, first refusal, expansion,renewal, extension or other rights to lease that encumber what would otherwisehave been Available ROFO Space, which rights were granted following theexpiration of Tenant’s right to lease such space without Tenant having electedso to do.

 

17.2                           Third FloorExpansion Premises

 

(A)                              Promptly upon the fullexecution and delivery of this Lease, Landlord shall exercise its right toterminate its existing lease with ClickSquared, Inc. (the “ClickSquaredLease”) so that Tenant may expand into the Third Floor Expansion Premises, andupon the effective date of termination of the ClickSquared Lease, the ThirdFloor Expansion Premises shall automatically be deemed to be incorporated intothe Premises demised to Tenant hereunder. Landlord and Tenant shall execute an amendment to this Leaseincorporating such Third Floor Expansion Premises into the Premises upon theterms and conditions set forth in this Section 17.2 within ten (10) daysof the date of this Lease (provided that the failure of the parties to executesuch an amendment shall have no effect on the effectiveness of the expansion ofthe Premises to include the Third Floor Expansion Premises and the economicterms associated therewith, as set forth above).

 

Itis acknowledged and agreed that the ClickSquared Lease requires that a minimumof one hundred fifty (150) days’ notice of termination be provided to thetenant thereunder.

 

Notwithstandingthe foregoing, Landlord agrees to use commercially reasonable efforts tonegotiate with ClickSquared for an earlier effective date of termination(including by 

 

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relocatingClickSquared to another building owned by Landlord or its affiliates, if spaceacceptable to ClickSquared is available for occupancy within that time frame),it being understood and agreed that ClickSquared has no legal obligation tonegotiate with Landlord and Landlord shall have no liability to Tenant if anagreement cannot be reached with ClickSquared to vacate the Third FloorExpansion Premises any earlier than required by the terms of the ClickSquaredLease.

 

(B)                                If the date on which theThird Floor Expansion Premises is to be delivered to Tenant upon the expirationor earlier termination of the ClickSquared lease (the “Third Floor ExpansionPremises Commencement Date”) occurs during the first Lease Year, the ThirdFloor Expansion Premises shall be incorporated into the Premises on all of theterms and conditions as are applicable to the Premises originally demised toTenant under this Lease, including Annual Fixed Rent, Lease Term and theOriginal Allowance Rate (as that term is defined in Section 1.6(A) ofExhibit B-1 attached hereto); provided, however, that the tenant allowancefor the Third Floor Expansion Premises shall be pro-rated to the extent thatthe rent-paying portion of the Term for the Third Floor Expansion Premises isless than that for the Premises originally demised to Tenant.

 

(C)                                If the Third Floor ExpansionPremises Commencement Date occurs after the first Lease Year, the Third FloorExpansion Premises shall be incorporated into the Premises on all of the termsand conditions as are applicable to the Premises originally demised to Tenantunder this Lease, including the Lease Term but specifically excluding theAnnual Fixed Rent and the tenant improvement allowance (which shall bedetermined as set forth herein). Within fifteen (15) days after receipt byLandlord of Tenant’s Third Floor Expansion Premises Notice setting forth aThird Floor Expansion Premises Commencement Date after the first Lease Year,Landlord shall provide Tenant with written notice setting forth the Landlord’squotation of a proposed annual rent and tenant improvement allowance (if any)for the Third Floor Expansion Premises (“Landlord’s Third Floor ExpansionPremises Terms”). Tenant shall notify Landlord, within ten (10) businessdays of receipt of Landlord’s notice as aforesaid whether Tenant agrees ordisagrees with Landlord’s Third Floor Expansion Premises Terms. If Tenantdisagrees with Landlord’s Third Floor Expansion Premises Terms and the partiesdo not come to agreement on such terms within thirty (30) days after deliveryof such notice from Tenant, then either party may initiate a BrokerDetermination in accordance with the provisions of Exhibit H attachedhereto to determine the Prevailing Market Rent for the Third Floor ExpansionPremises, by giving notice to the other within an additional ten (10) daysafter the end of such thirty (30) day period.

 

(D)                               In the event thatClickSquared, Inc. and any parties claiming by, through or underClickSquared, Inc. wrongfully fail to deliver possession of such premisesat the time when ClickSquared, Inc.’s tenancy is scheduled to expire,Landlord shall use reasonable efforts and due diligence (which shall be limitedto the commencement and prosecution of an eviction proceeding within sixty (60)days after the date on which the hold-over commences, but shall not require thetaking of any appeal) to evict such occupant from such space and to recoverfrom such occupant any Hold-Over Premium (as defined below) payable by suchoccupant. In such event, the commencement of the term of 

 

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Tenant’s occupancy and lease of the Third FloorExpansion Premises shall, in the event of such holding over by such occupant,be deferred until possession of such space is delivered to Tenant. The failureof the then occupant of such premises to so vacate shall not constitute adefault or breach by Landlord and shall not give Tenant any right to terminatethis Lease or to deduct from, offset against or withhold Annual Fixed Rent orAdditional Rent (or any portions thereof); provided, however, that Tenant shallhave the right to require Landlord to pay to Tenant fifty percent (50%) of thenet (i.e. net of the costs and expenses, including, attorneys’ fees, incurredby Landlord in obtaining such Hold-Over Premium) amount of any Hold-Over Premiumreceived by Landlord from such hold-over occupant relative to periods from andafter the thirty-first (31st) day of any hold-over, when and if Landlordreceives any such payment. For the purposes hereof, the term “Hold-OverPremium” shall be defined as the amount (if any) which a hold-over occupant ofany portion of the Third Floor Expansion Premises is required to pay toLandlord in respect of its hold-over in the premises (whether characterized asrent, damages, or use and occupation) in excess of the amount of fixed rent andother charges which the tenant under whom such occupant claims would have beenrequired to pay to Landlord had the term of such tenant’s lease been extendedthroughout the period of such hold-over at the same rental rate as such tenantwas required to pay during the last month of its tenancy.

 

17.3                           East WingExpansion Premises

 

(A)                              On the conditions (whichconditions Landlord may waive by written notice to Tenant) that both at thetime that Tenant exercises its expansion option under this Section 17.3and as of the date upon which the East Wing Expansion Premises which Tenant haselected to lease pursuant to this Section 17.3 would have otherwise becomeincorporated into the Premises: (i) there exists no Event of Default, (ii) thisLease is still in full force and effect, and (iii) Tenant has neitherassigned this Lease nor sublet more than thirty-three percent (33%) of theRentable Floor Area of the Premises (excluding any assignment or sublettingpermitted in accordance with Sections 12.2 and 12.8 hereof), prior to acceptingany offer to lease any portion of the East Wing Expansion Premises to a thirdparty (other than the Third Floor Expansion Premises, with respect to whichLandlord may enter into a lease amendment or new lease with ClickSquared, Inc.,subject to Tenant’s rights under Section 17.2 above), Landlord will firstoffer such portion of the East Wing Expansion Premises to Tenant for leasepursuant to this Section 17.3.

 

(B)                                Landlord’s written notice toTenant (“Landlord’s East Wing Expansion Premises Notice”) offering Tenant anyportion of the East Wing Expansion Premises shall specify the location andrentable area of such portion of the East Wing Expansion Premises, Landlord’squotation of a proposed annual rent for the applicable portion of the East WingExpansion Premises, tenant improvement allowances (if any), and all othermaterial terms and conditions which will apply to the applicable portion of theEast Wing Expansion Premises (“Landlord’s East Wing Expansion Premises Terms”),provided that the term for such space shall be coterminous with the OriginalLease Term, subject to Section 17.3(D) below. Tenant must notifyLandlord, within five (5) business days of Landlord’s East Wing ExpansionPremises Notice given pursuant to this Section 17.3(B) 

 

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that (i) Tenant elects to lease all of the EastWing Expansion Premises designated in Landlord’s East Wing Expansion PremisesNotice, (ii) Tenant elects to lease all of the East Wing PremisesExpansion Premises designated in Landlord’s East Wing Expansion Premises Noticebut disagrees with Landlord’s East Wing Expansion Premises Terms (but only inthe case of any Landlord’s East Wing Expansion Premises Notice where the East WingExpansion Premises Commencement Date occurs after the first Lease Year) or(iii) Tenant rejects Landlord’s offer designated in Landlord’s East WingExpansion Premises Notice.

 

(C)                                If Tenant has timely electedto lease the East Wing Expansion Premises designated in Landlord’s East WingExpansion Premises Notice, the following terms and provisions shall apply:

 

(1)                                  If the East Wing ExpansionPremises Commencement Date as set forth in Landlord’s East Wing ExpansionPremises Notice occurs during the first Lease Year, the applicable portion ofthe East Wing Expansion Premises shall be incorporated into the Premises on allof the terms and conditions as are applicable to the Premises originallydemised to Tenant under this Lease, including Annual Fixed Rent, Lease Term andthe Original Allowance Rate (as that term is defined in Section 1.6(A) ofExhibit B-1 attached hereto); provided, however, that the tenant allowancefor the East Wing Expansion Premises shall be pro-rated to reflect the factthat the rent-paying portion of the Term for the East Wing Expansion Premises willbe less than that for the Premises originally demised to Tenant.

 

(2)                                  If the East Wing ExpansionPremises Commencement Date as set forth in Landlord’s East Wing ExpansionPremises Notice occurs after the first Lease Year, the applicable portion ofthe East Wing Expansion Premises shall be incorporated into the Premises on allof the terms and conditions as are applicable to the Premises originallydemised to Tenant under this Lease, including the Lease Term but specificallyexcluding the Annual Fixed Rent and the tenant improvement allowance whichshall either (i) be as set forth in Landlord’s East Wing ExpansionPremises Notice, if Tenant agrees with Landlord’s East Wing Expansion PremisesTerms or (ii) be determined in accordance with the procedures set forthbelow, if Tenant disagrees with Landlord’s East Wing Expansion Premises Terms.

 

(3)                                  If Tenant disagrees withLandlord’s East Wing Expansion Premises Terms and the parties do not come to agreementon such terms within thirty (30) days after delivery of such notice fromTenant, then either party may initiate a Broker Determination in accordancewith the provisions of Exhibit H attached hereto to determine thePrevailing Market Rent for the East Wing Expansion Premises, by giving noticeto the other within an additional ten (10) days after the end of suchthirty (30) day period.

 

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(4)           Upon the delivery by Tenant of Tenant’s noticeelecting to lease the East Wing Expansion Premises designated in Landlord’sEast Wing Expansion Premises Notice, the applicable portion of the East WingExpansion Premises shall automatically be deemed to be incorporated into thePremises demised to Tenant hereunder, and Landlord and Tenant shall execute anamendment to this Lease incorporating such portion of the East Wing ExpansionPremises into the Premises upon the terms and conditions set forth in thisSection 17.3  within ten(10) days (provided that the failure of the parties to execute such anamendment shall have no effect on the effectiveness of the expansion of thePremises to include the applicable portion of the East Wing Expansion Premisesand the economic terms associated therewith, as set forth above).

 

(D)          Notwithstanding anything to the contrary provided inSection 17.3(B) above, if the East Wing Expansion Premises shall beavailable for delivery to Tenant at any time during the last eighteen (18)months of the Original Lease Term, then: (a) if there is not availableextension option which can be exercised pursuant to Section 3.2, Tenantshall not be entitled to lease the East Wing Expansion Premises under thisSection 17.3, and (b) if there is an available extension option whichcan be exercised pursuant to Section 3.2, then the term for such East WingExpansion Premises shall not be coterminous with the Original Lease Term, butshall be for a term that expires at the expiration of the Extension Term, andin order to lease the East Wing Expansion Premises in accordance withSection 17.3(B) above, Tenant must elect to extend the Original LeaseTerm of the Lease for the entire Premises in accordance with the provisions ofSection 3.2, at the same time that Tenant elects to lease the East WingExpansion Premises hereunder.

 

(E)           If Tenant rejects Landlord’s offer as to the portionof the East Wing Expansion Premises designated in Landlord’s East WingExpansion Premises Notice, or fails to notify Landlord within said five(5) business day period that Tenant intends to lease such portion of theEast Wing Expansion Premises, Landlord shall be entitled to lease theapplicable portion of the East Wing Expansion Premises not elected by Tenant tobecome incorporated into the Premises on such terms and conditions as Landlordshall deem appropriate in its sole discretion, without again offering suchspace to Tenant for lease; provided, however, that (i) the terms of thisSection 17.3 shall continue to apply to the remainder of the East WingExpansion Premises, if any, not included in Landlord’s East Wing ExpansionPremises Notice and (ii) any portion of the East Wing Expansion Premisesincluded in Landlord’s East Wing Expansion Premises Notice which is not leasedby Tenant and which is subsequently leased to another tenant  shall be offered to Tenant underSection 17.4 below when such space next becomes available for reletting.

 

(F)           If Tenant shall timely exercise its rights underthis Section 17.3 with respect to the portion of the East Wing ExpansionPremises designated in Landlord’s East Wing Expansion Premises Notice and if,thereafter, the then occupant of such portion of the East Wing ExpansionPremises and any parties claiming by, through or under such occupant wrongfullyfail to deliver possession of such premises at the time when its tenancy isscheduled to expire, Landlord shall use reasonable efforts and due diligence(which shall be limited to the commencement and prosecution of an evictionproceeding 

 

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within sixty (60) days after the date on which thehold-over commences, but shall not require the taking of any appeal) to evictsuch occupant from such space and to recover from such occupant any Hold-OverPremium (as defined below) payable by such occupant. In such event, thecommencement of the term of Tenant’s occupancy and lease of such portion of theEast Wing Expansion Premises shall, in the event of such holding over by suchoccupant, be deferred until possession of such space is delivered to Tenant.The failure of the then occupant of such premises to so vacate shall notconstitute a default or breach by Landlord and shall not give Tenant any rightto terminate this Lease or to deduct from, offset against or withhold AnnualFixed Rent or Additional Rent (or any portions thereof); provided, however,that Tenant shall have the right to require Landlord to pay to Tenant fiftypercent (50%) of the net (i.e. net of the costs and expenses, including,attorneys’ fees, incurred by Landlord in obtaining such Hold-Over Premium)amount of any Hold-Over Premium received by Landlord from such hold-overoccupant relative to periods from and after the thirty-first (31st) day of anyhold-over, when and if Landlord receives any such payment. For the purposeshereof, the term “Hold-Over Premium” shall be defined as the amount (if any)which a hold-over occupant of any portion of the East Wing Expansion Premisescurrently occupied by ClickSquared, Inc. is required to pay to Landlord inrespect of its hold-over in the premises (whether characterized as rent,damages, or use and occupation) in excess of the amount of fixed rent and othercharges which the tenant under whom such occupant claims would have been requiredto pay to Landlord had the term of such tenant’s lease been extended throughoutthe period of such hold-over at the same rental rate as such tenant wasrequired to pay during the last month of its tenancy.

 

(G)           Time is of the essence of this Section 17.3.

 

17.4                           Right of FirstOffer

 

(A)          On the conditions (which conditions Landlord maywaive by written notice to Tenant) that both at the time that the AvailableROFO Space first becomes available and as of the date upon which the ROFOPremises which Tenant has elected to lease pursuant to this Section 17.4would have otherwise become incorporated into the Premises: (i) thereexists no Event of Default, (ii) this Lease is still in full force andeffect, and (iii) Tenant has neither assigned this Lease nor sublet morethan thirty-three percent (33%) of the Rentable Floor Area of the Premises(excluding any assignment or subletting permitted in accordance with Sections12.2 and 12.8 hereof), prior to accepting any offer to lease Available ROFOSpace to a third party other than a third party with Prior Rights, Landlordwill first offer such Available ROFO Space to Tenant for lease pursuant to thisSection 17.4.

 

(B)           Landlord’s written notice to Tenant (“Landlord’sROFO Notice”) offering Tenant any Available ROFO Space shall specify thelocation and rentable area of the Available ROFO Space, Landlord’s quotation ofa proposed annual rent for the Available ROFO Space (“Landlord’s ROFO SpaceRent Quotation”), Base Amounts for Operating Expenses and Taxes, tenant improvementallowances (if any), and all other material terms and conditions which willapply to the Available ROFO Space, provided that the 

 

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term for the Available ROFO Space shall becoterminous with the Original Lease Term or the Extension Term of this Lease,subject to Section 17.4(C) below. Tenant must notify Landlord, withintwenty (20) days of Landlord’s ROFO Notice given pursuant to thisSection 17.4(B) that (i) Tenant elects to lease all of the AvailableROFO Space, on the terms set forth in Landlord’s ROFO Notice, or(ii) Tenant rejects Landlord’s offer. If Tenant has accepted Landlord’sterms for such Available ROFO Space, Landlord and Tenant shall execute anamendment to this Lease incorporating the Available ROFO Space into thePremises upon the terms contained in Landlord’s ROFO Notice, and otherwise onsubstantially the same terms and conditions as contained in this Lease, withinten (10) days, but failure of the parties to execute such an amendmentshall have no effect on the effectiveness of the expansion of the Premises toinclude such Available ROFO Space and the economic terms associated therewith,as set forth above.

 

IfTenant rejects Landlord’s offer as to the Available ROFO Space, or fails tonotify Landlord within said twenty (20) day period that Tenant intends to leasesuch Available ROFO Space, Landlord shall be entitled to lease such AvailableROFO Space not elected by Tenant to become incorporated into the Premiseswithout again offering such space to Tenant for lease; provided, however, that(i) Landlord shall reoffer the applicable portion of the Available ROFOSpace  to Tenant in accordance with theterms and provisions of this Section 17.4 if (a) Landlord does notenter into a binding letter of intent (i.e., a letter of intent signed by bothLandlord and a prospective third party tenant reflecting the intent of the parties to proceed to negotiate a lease) tolease such space to a third party within one hundred eighty (180) days afterthe first to occur of (x) Tenant’s election to reject Landlord’s offer and(y) Tenant’s failure to notify Landlord within said twenty (20) day periodthat Tenant intends to lease such Available ROFO Space, or (b) if Landlordproposes to lease such space during such one hundred eighty (180) day periodfor a net effective rental rate which is less than ninety-five percent (95%) ofLandlord’s ROFO Space Rent Quotation, and (ii) the terms of thisSection 17.4 shall continue to apply to the remainder of the AvailableROFO Space, if any, not included in Landlord’s ROFO Notice and to AvailableROFO Space included in Landlord’s ROFO Notice and not leased by Tenant which issubsequently leased to another tenant in accordance with this Section 17.4and thereafter becomes available for reletting.

 

(C)           Notwithstanding anything to the contrary provided inSection 17.4(B) above, if the Available ROFO Space shall be availablefor delivery to Tenant at any time during the last eighteen (18) months of theOriginal Lease Term, then: (a) if there is not available extension optionwhich can be exercised pursuant to Section 3.2, Tenant shall not beentitled to lease the Available ROFO Space under this Section 17.4, and(b) if there is an available extension option which can be exercisedpursuant to Section 3.2, then the term for such Available ROFO Space shallnot be coterminous with the Original Lease Term, but shall be for a term thatexpires at the expiration of the Extension Term, and in order to lease theAvailable ROFO Space in accordance with Section 17.4(B) above, Tenantmust elect to extend the Original Lease Term of the Lease for the entirePremises in accordance with the provisions of Section 3.2, at the sametime that Tenant elects to lease the Available ROFO Space hereunder.

 

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(D)          If Tenant shall timely exercise its rights underthis Section 17.4 with respect to the Available ROFO Space designated inLandlord’s ROFO Notice and if, thereafter, the then occupant of the AvailableROFO Space with respect to which Tenant shall have so exercised such rightwrongfully fails to deliver possession of such premises at the time when itstenancy is scheduled to expire, Landlord shall use reasonable efforts and duediligence (which shall be limited to the commencement and prosecution of aneviction proceeding within sixty (60) days after the date on which thehold-over commences, but shall not require the taking of any appeal) to evictsuch occupant from such space and to recover from such occupant any Hold-OverPremium (as defined below) payable by such occupant. In such event, thecommencement of the term of Tenant’s occupancy and lease of such additionalspace shall, in the event of such holding over by such occupant, be deferred untilpossession of the additional space is delivered to Tenant. The failure of thethen occupant of such premises to so vacate shall not constitute a default orbreach by Landlord and shall not give Tenant any right to terminate this Leaseor to deduct from, offset against or withhold Annual Fixed Rent or AdditionalRent (or any portions thereof); provided, however, that Tenant shall have theright to require Landlord to pay to Tenant fifty percent (50%) of the net (i.e.net of the costs and expenses, including, attorneys’ fees, incurred by Landlordin obtaining such Hold-Over Premium) amount of any Hold-Over Premium receivedby Landlord from such hold-over occupant relative to periods from and after thethirty-first (31st) day of any hold-over, when and if Landlord receives anysuch payment. For the purposes hereof, the term “Hold-Over Premium” shall bedefined as the amount (if any) which a hold-over occupant of any portion of theAvailable ROFO Space is required to pay to Landlord in respect of its hold-overin the premises (whether characterized as rent, damages, or use and occupation)in excess of the amount of fixed rent and other charges which the tenant underwhom such occupant claims would have been required to pay to Landlord had theterm of such tenant’s lease been extended throughout the period of suchhold-over at the same rental rate as such tenant was required to pay during thelast month of its tenancy.

 

(E)           Time is of the essence of this Section 17.4.

 

(The remainder of this page isintentionally left blank.)

 

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EXECUTEDas a sealed instrument in two or more counterparts by persons or officershereunto duly authorized on the Date set forth in Section 1.2 above.

 

 
|    |                              | LANDLORD:                              |
|---------|-----------------------------------|----------------------------------------|
|    |                              |                                   |
|    |                              | BOSTON  PROPERTIES LIMITED PARTNERSHIP |
|    |                              |                                   |
|    |                              | By:                                    | Boston  Properties, Inc., its general partner |
|    |                              |                                   |   |
|    |                              |                                   | By: | /s/  Bryan J. Koop |
|    |                              |                                   | Name: | Bryan  J. Koop |
|    |                              |                                   | Title: | Senior  Vice President — Regional Manager |
|    |                              |                                   |   |   |
|    |                              | TENANT:                                |
|    |                              |                                   |   |
| ATTEST: |                              | A123  SYSTEMS, INC.                    |
|    |                              |                                   |
|    |                              |                                   |   |
| By:     | /s/  Eric Pyenson                 |                                   | By: | /s/  Michael Rubino |
| Name:   | Eric  Pyenson                     |                                   | Name: | Michael  Rubino |
| Title:  | Secretary  or Assistant Secretary |                                   | Title: | President  or Vice President |
|    |                              |                                   |   | Hereunto  duly authorized |
|    |                              |                                   |   |   |
|    |                              |                                   |   |   |
|    |                              |                                   | By: | /s/  Michael Rubino |
|    |                              |                                   | Name: | Michael  Rubino |
|    |                              |                                   | Title: | Treasurer  or Assistant Treasurer |
|    |                              |                                   |   | Hereunto  duly authorized |

 

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EXHIBIT A

 

DESCRIPTION OF SITE

 

Acertain parcel of land of West Street, Waltham, Middlesex County, as shown on aplan entitled “Atwater Lane, A Subdivision in Waltham, MA, Middlesex County,Lot Layout Plan,” dated July 22, 1988, recorded with Middlesex SouthRegistry of Deeds as Plan #6 of 1989 in Book 19575, Page 351, and shownthereon as Lot A, containing 142,769± square feet, according to said plan, andLot B, containing 501,550± square feet, according to said plan, and the parcelof land shown on said plan as Atwater Lane.

 

SaidLots A and B consist of the following:

 

PARCELI:

 

Acertain parcel of land situate on First Avenue and West Street, Waltham,Middlesex County, Massachusetts, and shown as Lots 13 and 14 on Plan entitled “Planof Land in Waltham, Mass.,” dated August 31, 1962, revisedOctober 26, 1962 and October 30, 1962, by Raymond C.Pressey, Inc., Registered Land Surveyors, recorded as Plan No. 10 of1963 in Book 10196, Page 40, bounded and described as follows:

 
| NORTHEASTERLY |   | by  the End of First Avenue by two lines measuring respectively forty-seven and  50/100 feet and seven and 53/100 feet;                                                                 |
|---------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|          |   |                                                                                                                                                                                    |
| NORTHWESTERLY |   | by  other land of the Grantors herein three hundred eighty-seven and 17/100 feet;                                                                                                       |
|          |   |                                                                                                                                                                                    |
| WESTERLY      |   | by  land now or formerly of United Electric Controls Company by two lines  measuring respectively one hundred seventy and 51/100 feet and five hundred  and twenty-one and 92/100 feet; |
|          |   |                                                                                                                                                                                    |
| NORTHEASTERLY |   | by  the same by a curved line measuring seventy-six and 05/100 feet;                                                                                                                    |
|          |   |                                                                                                                                                                                    |
| NORTHEASTERLY |   | by  the same by two lines measuring respectively one hundred forty-one and 17/100  feet and one hundred seventy feet;                                                                   |
|          |   |                                                                                                                                                                                    |
| WESTERLY      |   | by  West Street by two lines measuring respectively forty-five and 26/100 feet  and eleven and 16/100 feet;                                                                             |

 

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| SOUTHWESTERLY               |   | by  the line between Weston and Waltham and land believed to be now or formerly  of Ralph P. Hussey three hundred twenty-eight and 28/100 feet; |
|-----------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------|
|                        |   |                                                                                                                                            |
| SOUTHERLY                   |   | by  land of owners unknown one hundred four and 77/100 feet;                                                                                    |
|                        |   |                                                                                                                                            |
| WESTERLY                    |   | by  the same forty-eight and 80/100 feet;                                                                                                       |
|                        |   |                                                                                                                                            |
| SOUTHWESTERLY               |   | by  said line between Weston and Waltham, and land believed to be now or formerly  of said Hussey one hundred eighty-one and 61/100 feet;       |
|                        |   |                                                                                                                                            |
| SOUTHERLY                   |   | by  land believed to be now of formerly of Frederick C. Dumaine Jr. and another  one hundred seventeen and 30/100 feet;                         |
|                        |   |                                                                                                                                            |
| NORTHWESTERLY               |   | by  the same forty-four and 80/100 feet;                                                                                                        |
|                        |   |                                                                                                                                            |
| SOUTHWESTERLY               |   | by  said line between Weston and Waltham and other land of the Grantors herein  one hundred fifty four feet;                                    |
|                        |   |                                                                                                                                            |
| SOUTHEASTERLY  and EASTERLY |   | by  other land of the Grantors herein by two lines measuring respectively four  hundred ten and 53/100 feet and seventy-three feet;             |
|                        |   |                                                                                                                                            |
| NORTHERLY                   |   | by  land now or formerly of David Burstein et al., Trustees, one hundred sixteen  and 14/100 feet;                                              |
|                        |   |                                                                                                                                            |
| SOUTHEASTERLY               |   | by  the same two hundred ninety-one and 99/100 feet;                                                                                            |
|                        |   |                                                                                                                                            |
| NORTHEASTERLY               |   | by  the same three hundred fifty-five and 99/100 feet;                                                                                          |
|                        |   |                                                                                                                                            |
| SOUTHEASTERLY               |   | by  the same five hundred forty-eight and 31/100 feet.                                                                                          |

 

Containing397,490 square feet of land, according to said plan.

 

PARCELII:

 

Theparcel of land on West Street, Waltham, Middlesex County, Massachusetts, shownas Lot E containing 2.37 acres on a plan by Raymond C. Pressey, Inc.,Registered Land Surveyors, dated 1 October 1965 recorded as PlanNo. 1339 of 1965 in Book 10961, Page 438, and bounded and describedaccording to said plan as follows:

 

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| WESTERLY  |   | in  a curved line by West Street two hundred twenty-one and 05/100 (221.05) feet;                                                                                                                                                                           |
|-----------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                                                                                                                                                        |
| NORTHERLY |   | by  land of Leland L. Crowell and of Clifford Griggs, two hundred four and 98/100  (204.98) feet, and by Lot “A” on Plan No. 1530 of 1960 (being the second  parcel herein described) two hundred seventy-five and 40/100ths (275.40)  feet; |
|      |   |                                                                                                                                                                                                                                                        |
| EASTERLY  |   | by  Lot 13 on Plan 10 of 1963, Book 10196, Page 40, two hundred twenty-three  (223) feet; and                                                                                                                                                          |
|      |   |                                                                                                                                                                                                                                                        |
| SOUTHERLY |   | by  Lot D, being remaining land of the Grantor, four hundred forty-eight and  35/100ths (448.35) feet.                                                                                                                                                      |

 

Also,the parcel of land situated in Waltham, Middlesex County, Massachusetts, andshown as Lot A on plan entitled “Plan of Land in Waltham, Mass.” datedJune 29, 1960, by Raymond C. Pressey, Inc. recorded with said Deedsas Plan No. 1530 of 1960, Book 9693, Page 417, bounded and describedas follows:

 
| SOUTHERLY |   | by  Lot B on said Plan, two hundred seventy-five and 40/100 feet;                            |
|-----------|--------|----------------------------------------------------------------------------------------------|
|      |   |                                                                                         |
| WESTERLY  |   | by  land now or formerly, of Clifford Griggs, two hundred ten and no/100 feet;               |
|      |   |                                                                                         |
| NORTHERLY |   | by  land of Trustees of Waltham Properties Trust two hundred fifty-two and no/100  feet; and |
|      |   |                                                                                         |
| EASTERLY  |   | by  the same, one hundred seventy and 51/100 feet.                                           |

 

Containing49,400 square feet of land, according to said plan.

 

PARCELIII:

 

Theparcel of land on West Street, Waltham, Middlesex County, Massachusetts, shownas Lot D containing 3 acres on a plan by Raymond C. Pressey, Inc.,Registered Land Surveyors, dated 1 October 1965, recorded in MiddlesexSouth District Deeds in Book 10961, Page 438, and bounded and describedaccording to said plan as follows:

 
| WESTERLY |   | in  a curved line by West Street, three hundred fifty-one and 70/100ths (351.70)  feet; |
|----------|--------|-----------------------------------------------------------------------------------------|

 

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| NORTHERLY |   | by  Lot E, being land owned now or formerly by Little, Brown and Company (Inc),  four hundred forty eight and 35/100ths (448.35) feet; |
|-----------|--------|----------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                                   |
| EASTERLY  |   | by  Lot 13 on Plan 10 of 1963, Book 10196, Page 40, two hundred ninety-eight  and 92/100ths (298.92) feet;                        |
|      |   |                                                                                                                                   |
| EASTERLY  |   | by  the same in a curved line, seventy-six and 5/100ths (76.05) feet;                                                                  |
|      |   |                                                                                                                                   |
| SOUTHERLY |   | by  Lot 14 on Plan 10 of 1963, Book 10196, Page 40, three hundred eleven and  17/100ths (311.17) feet.                            |

 

TOGETHERWITH THE FOLLOWING APPURTENANT RIGHTS:

 

Rightto use twenty-foot wide utility easement as recited in deed datedAugust 12, 1960, recorded in Book 9693, Page 417.

 

Rightto use twenty-foot wide utility easement as recited in deed datedAugust 12, 1960, recorded in Book 9693, Page 420.

 

Easementreserved in Grant of Right and Easement for ten-foot wide water main datedSeptember 8, 1980, recorded in Book 14118, Page 227.

 

Rightto tie-in to water line as recited in Easement Agreement dated June 12,1996, recorded in Book 26436, Page 15.

 

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EXHIBIT B-1

 

LANDLORD’S WORK

 

1.0                                 Base BuildingWork

 

Landlord,at Landlord’s sole cost and expense, shall perform the improvements andmodifications to the Building described on Exhibit B-2 attached hereto(the “Base Building Work”) in accordance with the terms and provisions of thisExhibit B-1.

 

1.1                                 TenantImprovement Work

 

(A)                              Plans

 

(1)                                  *SchematicPlans*.

 

Itis acknowledged and agreed that on May 3, 2010, Tenant delivered toLandlord a full set of schematic drawings, together with a narrative of the mechanicalsystems (the “Schematic Plans”), for the work necessary to prepare the Premisesfor Tenant’s use and occupancy (all of the work designated on the work matrixattached hereto as Exhibit B-3 as being the Landlord’s responsibilitybeing hereinafter referred to as the “Tenant Improvement Work”) (the TenantImprovement Work, together with the Base Building Work, being sometimeshereinafter referred to collectively as the “Landlord’s Work”), such plans andspecifications to be prepared by an architect licensed by the Commonwealth ofMassachusetts and reasonably approved by Landlord (Landlord hereby approvingPackard Design and AHA Consulting Engineers). Landlord shall not unreasonablywithhold, delay or condition its consent to the Schematic Plans; provided thatnotwithstanding the requirement that Landlord act reasonably, Landlord’sdetermination of matters relating to aesthetic issues relating to alterationsor changes visible outside the Premises shall be in Landlord’s sole discretion(Landlord hereby agreeing not to withhold its consent to items such as rooftopequipment, loading dock penetrations, equipment pads and mechanical shafts, allof which are currently contemplated to be part of the Tenant Improvement Work,simply by virtue of the fact that the same will be visible outside thePremises).

 

Landlordagrees to respond to the Schematic Plans within ten (10) business daysafter receipt thereof.  If Landlorddisapproves of any element of the Schematic Plans, it shall do so in writingand with reasonable detail so that Tenant’s architect can incorporate allreasonable objections and conditions presented by Landlord into subsequentiterations of the plans hereunder.

 

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(2)                                  *InterimPlans*.

 

Onor before June 28, 2010 (the “Interim Plans Date”), Tenant shall deliverto Landlord a full set of design development plans and specifications for theTenant Improvement Work, such plans and specifications to be (i) preparedby an architect licensed by the Commonwealth of Massachusetts and reasonablyapproved by Landlord and (ii) in suitable form for filing with anapplication for a building permit with the City of Waltham. Such Interim Plansshall be of sufficient detail to enable Landlord to contract for and/or purchaselong lead items such as demolition work, structural steel and largemechanicals, etc. (subject to the provisions set forth below regardingTenant’s right to approve such long lead items).  Landlord shall not unreasonably withhold,delay or condition its consent to the Interim Plans provided that the same areconsistent with the Schematic Plans; provided further, however, thatnotwithstanding the requirement that Landlord act reasonably, Landlord’sdetermination of matters relating to aesthetic issues relating to alterationsor changes visible outside the Premises shall be in Landlord’s sole discretion(Landlord hereby agreeing not to withhold its consent to items such as rooftopequipment, loading dock penetrations, equipment pads and mechanical shafts, allof which are currently contemplated to be part of the Tenant Improvement Work,simply by virtue of the fact that the same will be visible outside thePremises).

 

Landlordagrees to respond to the Interim Plans within seven (7) business daysafter receipt thereof (but will use commercially reasonable best efforts torespond within seven (7) calendar days). If Landlord disapproves of any element of the Interim Plans, it shall doso in writing and with reasonable detail so that Tenant’s architect can incorporateall reasonable objections and conditions presented by Landlord into subsequentiterations of the plans hereunder.

 

(3)                                  *TenantPlans*.

 

Onor before July 30, 2010 (the “Tenant Plans Date”), Tenant shall deliver toLandlord a full set of construction plans and specifications for the TenantImprovement Work, such plans and specifications to be (i) prepared by anarchitect licensed by the Commonwealth of Massachusetts and reasonably approvedby Landlord and (ii) in suitable form for filing with an application foran amendment to the building permit (if required). Such Tenant Plans shallcontain at least the information required by, and shall conform to therequirements of, Exhibit B-4. Landlord shall not unreasonably withhold, delay or condition its consentto the Tenant Plans provided that the same (x) contain at least theinformation required by, and shall conform to the requirements of,Exhibit B-4 and (y) are consistent with the Interim Plans; providedfurther, however, that notwithstanding the requirement that Landlord actreasonably, Landlord’s determination of 

 

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mattersrelating to aesthetic issues relating to alterations or changes visible outsidethe Premises shall be in Landlord’s sole discretion (Landlord hereby agreeingnot to withhold its consent to items such as rooftop equipment, loading dockpenetrations, equipment pads and mechanical shafts, all of which are currentlycontemplated to be part of the Tenant Improvement Work, simply by virtue of thefact that the same will be visible outside the Premises).

 

Landlordagrees to respond to the Tenant Plans within ten (10) business days afterreceipt thereof. If Landlord disapproves any of the foregoing, it shall do soin writing and with reasonable detail and then Tenant shall have the plansrevised by its architect to incorporate all reasonable objections andconditions presented by Landlord and resubmitted to Landlord. Such processshall be followed until the Tenant Plans shall have been approved by Landlord.Landlord shall respond to the resubmission of any plans by Tenant within five(5) business days of Landlord’s receipt thereof (or such longer time asmay be reasonably necessary in the case of a major redesign).

 

(4)                                  *GeneralMatters*.

 

Inconnection with the foregoing, it is understood and agreed that Landlord’sapproval under this Section 1.1(A) is given solely for the benefit ofLandlord, and neither Tenant nor any third party shall have the right to relyupon Landlord’s approval of the Schematic Plans, the Interim Plans or theTenant Plans (hereinafter collectively referred to as the “Plans”) for anyother purpose whatsoever. Without limiting the foregoing, Tenant shall beresponsible for all elements of the design of the Plans (including, withoutlimitation, compliance with law, functionality of design, the structuralintegrity of the design, the configuration of the Premises and the placement ofTenant’s furniture, appliances and equipment), and Landlord’s approval of thePlans shall in no event relieve Tenant of the responsibility for such design.In addition, Tenant shall, on or before the Building Permit Application Date(as defined in Section 1.1(B)(3) below), execute and deliver toLandlord any affidavits and documentation provided to Tenant by Tenant’sarchitect and/or engineers preparing the Plans and/or by Landlord, and requiredin order to obtain all permits and approvals necessary for Landlord to commenceand complete the Tenant Improvement Work (excluding any operational permitsthat are required in order for Tenant to operate its business in the Premises,which such operational permits shall be Tenant’s sole responsibility to obtain)on a timely basis (“Permit Documentation”).

 

Landlord’sfailure to respond to any version of the Plans meeting the requirements of thisSection 1.1(A) within the applicable time periods set 

 

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forthherein shall be deemed to constitute Landlord’s approval thereof. To the extentthat Landlord has previously approved a particular element shown in an earlieriteration of the Plans (or such element has been deemed approved by virtue ofLandlord’s failure to respond to such Plans within the applicable time period),Landlord shall not have the right to disapprove such element in any subsequentPlans, provided that (i) such element has not been materially modified,(ii) such element was approved without objection or condition by Landlordin the earlier iteration of the Plans, and (iii) in the case of Plans thathad been deemed approved, the element was shown in sufficient detail in theearlier iteration of the Plans that Landlord could reasonably have responded tothe same at the time.

 

(B)                                ConstructionProcess

 

(1)                                  *Contractorand Subcontractor Selection*.

 

Itis understood and agreed that the general contractor will be selected prior tothe completion of the Interim Plans based solely on general conditions, fee andappropriate contingencies, and that the construction contract for the TenantImprovement Work will be a Guaranteed Maximum Price “GMP” contract to be pricedafter the general contractor has been selected based on the approved TenantPlans.

 

Landlordshall have the right to select the general contractor who will perform theTenant Improvement Work, subject to Tenant’s approval (not to be unreasonablywithheld, conditioned or delayed). Landlord and Tenant hereby agree that requests for proposals will besought from the following general contractors: Erland Construction, J. Calnan & Associates, Chapman Constructionand Integrated Builders.  In its requestsfor proposals, Landlord shall require the general contractors to provide safetyperformance information for both themselves and their proposed subcontractorsfor the major sub-trades (defined as subcontracts in excess of $50,000.00)regarding (i) incident rates for the past three years (number ofincidents/man hours worked), (ii) lost days resulting from safety-relatedissues per year over the past three years, (iii) overview of work safety plansand (iv) standard safety training programs for employees. Upon receipt ofproposals from the aforesaid general contractors, Landlord shall compare theproposals and submit the same to Tenant, together with Landlord’s designationof the proposal Landlord intends to accept together with a statement of thereasons Landlord so designated such proposal. Tenant shall respond in writing within five (5) business days afterreceipt of Landlord’s notice, either approving or disapproving of Landlord’sselection (and if the latter, specifying the reasons therefor and indicatingTenant’s selection).  Notwithstanding theforegoing requirement that Tenant have the right to approve the generalcontractor selected by 

 

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Landlordto perform the Tenant Improvement Work, Tenant shall have the right todisapprove of no more than three (3) of the four (4) generalcontractors from whom bids have been received on the grounds that such generalcontractors do not meet safety performance standards reasonably acceptable toTenant.  In the event that Tenant doesnot approve of any of the general contractors on the grounds that none of themmeet safety performance standards reasonably acceptable to Tenant, any delay inthe completion of the Tenant Improvement Work resulting from such failure toapprove a general contractor shall be deemed a Tenant Delay hereunder.

 

Landlordshall have the right to select the subcontractors for the major sub-trades(defined as subcontracts in excess of $50,000.00), subject to Tenant’s approval(not to be unreasonably withheld, conditioned or delayed).  Landlord shall require that the generalcontractor solicit and receive bids from no less than three(3) subcontractors with respect to all major sub-trades (which such bidsshall contain the safety performance information described above).  Upon the receipt of such subcontractor bids,Landlord shall require the general contractor to prepare a bid format whichcompares each bid, and shall deliver such bid format, together with copies ofthe bids themselves to Tenant (together with Landlord’s designation of the bidLandlord intends to accept).  Tenantshall respond in writing within three (3) business days after receipt ofLandlord’s notice, either approving or disapproving of Landlord’s selection(and if the latter, specifying the reasons therefor and indicating Tenant’sselection).  Notwithstanding theforegoing requirement that Tenant have the right to approve the subcontractorsselected by Landlord for the major sub-trades, Tenant shall have the right todisapprove of no more than two (2) of the three (3) subcontractorsfrom whom bids have been received on the grounds that such subcontractors donot meet safety performance standards reasonably acceptable to Tenant.  In the event that Tenant does not approve ofany of the subcontractors for a given major sub-trade on the grounds that noneof them meet safety performance standards reasonably acceptable to Tenant, anydelay in the completion of the Tenant Improvement Work resulting from suchfailure to approve a subcontractor shall be deemed a Tenant Delay hereunder.

 

(2)                                  *Pricing*.

 

Withineleven (11) business days after its receipt of the Interim Plans, Landlordshall furnish to Tenant a written estimate of all costs of the TenantImprovement Work shown on such Interim Plans that can be priced at that timebased on the level of completion of the Interim Plans.

 

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Withinfifteen (15) business days after its receipt of the Tenant Plans, Landlordshall furnish to Tenant a final guaranteed maximum price for the TenantImprovement Work as shown on the Tenant Plans.

 

(3)                                  Building PermitApplication Date; Long Lead Item Release Date; Authorization to Proceed Date.

 

Itis understood and agreed that (i) Landlord must file for a building permitby July 1, 2010 (the “Building Permit Application Date”) based on theInterim Plans in order to commence and complete construction of the TenantImprovement Work within the time periods contemplated by this Exhibit B-1,even though Landlord’s review of the Tenant Plans and the pricing of the TenantImprovement Work will not have been completed by such Building PermitApplication Date, and (ii) any delay in the performance of the TenantImprovement Work caused by the need to amend the application for a buildingpermit as the result of modification to the Interim Plans after the same havebeen approved by Landlord shall be deemed to be a Tenant Delay (as that term isdefined in Section 1.2 below) for the purposes of this Exhibit B-1.

 

Inconnection with its approval of the Interim Plans, Landlord shall provide areasonably detailed construction schedule, including identification ofmilestones and significant decision dates, and at such time shall also identifyand notify Tenant of any items contained in the Interim Plans which Landlordthen reasonably believes will constitute long lead items. Landlord will give toTenant Landlord’s best, good faith estimate of the period(s) of any delaywhich would be caused by a long-lead item. Within two (2) calendar days ofits receipt of Landlord’s written estimate of the cost of the TenantImprovement Work shown on the Interim Plans underSection 1.1(B)(2) above (the “Long Lead Item Release Date”), Tenantshall have the right to either (a) revise the Interim Plans to eliminateany such long-lead item or (b) authorize Landlord to construct the TenantImprovement Work in accordance with the approved Interim Plans including anysuch long-lead items (any such approved long-lead items being hereinaftercalled “Tenant Approved Long Lead Items”). Tenant acknowledges that certainTenant Approved Long Lead Items may still delay completion of the TenantImprovement Work and thus result in a Tenant Delay even if Tenant doesauthorize them on or before the Long Lead Item Release Date.

 

Withinfive (5) business days after the later to occur of (x) Tenant’s  receipt of Landlord’s approval of the TenantPlans and (y) Tenant’s receipt of the final guaranteed maximum price forthe Tenant Improvement Work shown on the Tenant Plans (the “Authorization toProceed Date”), Tenant shall give Landlord written authorization to 

 

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proceedwith Tenant Improvement Work in accordance with the approved Tenant Plans andthe bids from the subcontractors for the major sub-trades selected pursuant tothe provisions of sub-section (B)(1) above (“Notice to Proceed”).

 

(4)                                  *ChangeOrders*.

 

Tenantshall have the right, in accordance herewith, to submit for Landlord’s approvalchange proposals subsequent to Landlord’s approval of the Tenant Plans andTenant’s approval of the Tenant Plan Excess Costs, if any (each, a “ChangeProposal”). Landlord agrees to respond to any such Change Proposal within five(5) business days after the submission thereof by Tenant, advising Tenantof any anticipated increase in costs (“Change Order Costs”) associated withsuch Change Proposal, as well as an estimate of any delay which would likelyresult in the completion of the Landlord’s Work if a Change Proposal is madepursuant thereto (“Landlord’s Change Order Response”). With respect to ChangeProposals for which a response cannot reasonably be developed within five(5) business days, Landlord shall within the five business-day response periodadvise Tenant of the steps necessary in order for Landlord to evaluate theChange Order Proposal and the date upon which Landlord’s Change Order Responsewill be delivered. Tenant shall have the right within five (5) days afterreceiving Landlord’s Change Order Response (or Landlord’s notice that a ChangeProposal could not be evaluated within the five business-day response periodset forth above) to then approve or withdraw such Change Proposal. If Tenantfails to respond to Landlord’s Change Order Response within such five(5) day period, such Change Proposal shall be deemed withdrawn. If Tenantapproves such Change Proposal, then such Change Proposal shall be deemed a “ChangeOrder” hereunder and if the Change Order is made, then the Change Order Costsassociated with the Change Order shall be deemed additions to the Tenant PlanExcess Costs and shall be paid in the same manner as Tenant Plan Excess Costsare paid as set forth in Section 1.6.

 

(5)                                  *Responseto Requests for Information and Approvals*.

 

Exceptto the extent that another time period is expressly herein set forth, each ofLandlord and Tenant shall respond to any written request from the other forapprovals or information in connection with Tenant Improvement Work, withinthree (3) business days of the responding party’s receipt of such request.

 

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(6)                                  *Timeof the Essence*.

 

Timeis of the essence in connection with Landlord’s and Tenant’s obligations underthis Section 1.1.

 

(C)                                Construction ManagementFee

 

Landlordshall charge a construction management fee (the “Construction Management Fee”)for its management of the Tenant Improvement Work in accordance with the scopedescribed in Exhibit B-5 attached hereto in an amount equal to threepercent (3%) of the hard construction costs (but not design or other softcosts) of the Tenant Improvement Work; provided, however, that if Landlordshall Substantially Complete (as that term is defined in Section 1.3below) the Landlord’s Work on or before the Estimated Commencement Date as setforth in Section 1.2 of the Lease, then the Construction Management Feeshall be an amount equal to four percent (4%) of the hard construction costs(but not design or other soft costs) of the Tenant Improvement Work (it beingunderstood and agreed that if the Landlord’s Work is not SubstantiallyCompleted by the Estimated Commencement Date by reason of any Tenant Delay, asdefined in Section 1.2 below, or Landlord’s Force Majeure, as defined inSection 1.3 below, Landlord shall nonetheless be entitled to the fourpercent (4%) Construction Management Fee as aforesaid) . The ConstructionManagement Fee shall be deducted from the Landlord’s Contribution as set forthin Section 1.6(D) below and/or paid by Tenant as part of Tenant PlanExcess Costs as set forth in Section 1.6(E) below.

 

1.2                                 Delays

 

(A)                              Tenant Delay

 

A“Tenant Delay” shall be defined as the following:

 

(1)                                  Tenant’sfailure to deliver the Plans to Landlord by the applicable dates set forth inSection 1.1(A) above and to provide all required Permit Documentationto Landlord on or before the Building Permit Application Date, or (except tothe extent caused by a Landlord Delay, as hereinafter defined) to giveauthorization to Landlord to proceed with the Tenant Approved Long Lead Itemson or before the Long Lead Item Release Date or with the Tenant ImprovementWork on or before the Authorization to Proceed Date; or

 

(2)                                  Tenant’sfailure timely to respond to any written request from Landlord within the timeperiod specified therefor under this Exhibit B-1;

 

(3)                                  Tenant’sfailure to pay the Tenant Plan Excess Costs in accordance withSection 1.6;

 

(4)                                  Any delay dueto Tenant Approved Long Lead Items;

 

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(5)                                  Any delay dueto Change Orders; or

 

(6)                                  Except to theextent caused by a Landlord Delay, any other delays caused by Tenant, Tenant’scontractors, architects, engineers or anyone else engaged by Tenant inconnection with the preparation of the Premises for Tenant’s occupancy,including, without limitation, utility companies and other entities furnishingcommunications, data processing or other service, equipment, or furniture.

 

Inorder to invoke a Tenant Delay, Landlord must advise Tenant in writing of thealleged Tenant Delay within two (2) business days after Landlord becomesaware thereof.

 

(B)                                TenantObligations with Respect to Tenant Delays

 

(1)                                  Tenantcovenants that no Tenant Delay shall delay commencement of the Term or theobligation to pay Annual Fixed Rent or Additional Rent, regardless of thereason for such Tenant Delay or whether or not it is within the control ofTenant or any such employee. Landlord’s Work shall be deemed substantiallycompleted as of the date when Landlord’s Work would have been substantially completedbut for any Tenant Delays, as determined by Landlord in the exercise of itsgood faith business judgment.

 

(2)                                  Tenant shallreimburse Landlord the amount, if any, by which the cost of Landlord’s Work isincreased as the result of any Tenant Delay.

 

(3)                                  Any amounts duefrom Tenant to Landlord under this Section 1.2(B) shall be due andpayable within thirty (30) days of billing therefor, and shall be considered tobe Additional Rent. Nothing contained in this Section 1.2(B) shalllimit or qualify or prejudice any other covenants, agreements, terms,provisions and conditions contained in this Lease.

 

(C)                                Landlord Delay

 

A“Landlord Delay” shall mean Landlord’s failure timely to respond to any writtenrequest from Tenant within the time period specified therefor under thisExhibit B-1. In order to invoke a Landlord Delay, Tenant must adviseLandlord in writing of the alleged Landlord Delay within two (2) businessdays after Tenant becomes aware thereof.

 

1.3                                 SubstantialCompletion

 

(A)          Subject to any prevention, delay orstoppage due to Landlord’s Force Majeure (as hereinafter defined) orattributable to any Tenant Delays, Landlord shall use reasonable speed anddiligence in the construction of the Landlord’s Work so as to have the sameSubstantially Completed (as hereinafter defined) on or before the Estimated 

 

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Commencement Date as set forth in Section 1.2of the Lease, but Tenant shall have no claim against Landlord for failure tocomplete construction of the Landlord’s Work except as expressly set forth inSection 1.4 below.

 

Notwithstandingthe foregoing, it is understood and agreed that, subject to any prevention,delay or stoppage due to Landlord’s Force Majeure or attributable to anyTenant Delays, Landlord shall complete certain components of the TenantImprovement Work in accordance with the following schedule so that Tenant maycommence construction of its dry rooms located on the first (1st) and second(2nd) floors of the Building substantially as shown on Exhibit B-6attached hereto (it being understood and agreed that the exact dimensions ofsaid dry rooms will not be finalized until the Interim Plans have beenprepared) prior to Substantial Completion of the Landlord Work:

 
| ITEMS                                                                                                                  |   | INTERIM  COMPLETION DATE |
|------------------------------------------------------------------------------------------------------------------------|--------|--------------------------|
|                                                                                                                   |   |                     |
| 1st  Floor                                                                                                             |   | December 1,  2010   |
|                                                                                                                   |   |                     |
| ·      Utilities brought to within five (5) feet of  perimeter of room.             |   |                     |
| ·      Underground utilities (drainage) stubbed through  floor.                          |   |                     |
| ·      Trenching/repair for underground utilities                                        |   |                     |
| 2nd  Floor                                                                                                             |   | December 1,  2010   |
|                                                                                                                   |   |                     |
| ·      Utilities brought to within five (5) feet of  perimeter of room.             |   |                     |
| 1st  and 2nd Floors                                                                                                    |   | January 1,  2011    |
|                                                                                                                   |   |                     |
| ·      Final connections made to rooftop units.                                          |   |                     |
| ·      Final connections made between dry room “boxes”  and stubbed utilities. |   |                     |

 

Anydelay by Landlord in completing the foregoing items of work by the applicableInterim Completion Date set forth above (except to the extent such delay iscaused by Landlord’s Force Majeure or Tenant Delays) shall be deemed to delaythe Commencement Date and the Substantial Completion Date (even if the Landlord’sWork has otherwise been Substantially Completed by such time) if and solely tothe extent that such delay causes an actual delay in Tenant’s ability to beginits commissioning and start-up activity within the dry rooms as shown onExhibit B-6 on or before February 1, 2011.  In order to invoke the provisions of thisparagraph, Tenant must advise Landlord in writing within two (2) businessdays after Tenant becomes aware of any delay in Tenant’s ability to complete itswork on the dry room caused by Landlord’s failure to

 

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completethe foregoing items of work by the applicable Interim Completion Date set forthabove.

 

(B)           The “Actual Substantial Completion Date” shall bedefined as the date on which the Landlord’s Work has been SubstantiallyCompleted. “Substantial Completion” and “Substantially Completed” shall eachmean the date on which the Landlord’s Work has been completed except forso-called “punch-list” items of work and adjustment of equipment and fixturesthe incompleteness of which do not cause material interference with Tenant’suse of the Premises for the Permitted Uses. After Substantial Completion,Landlord shall proceed diligently to complete all “punch-list” items withinthirty (30) days after the occurrence of Substantial Completion (except forlong-lead items or items which can only be performed during certain seasons orweather, which items shall be completed diligently as soon as the season and/orweather permits).

 

(C)           Except as set forth inSection 1.3(E) below but subject to the provisions of Section 1.3(A) above,the Commencement Date shall be defined as the earlier of (x) theSubstantial Completion Date (as hereinafter defined) and (y) the date onwhich Tenant commences occupancy of any portion of such Premises for thePermitted Use. The “Substantial Completion Date” shall be defined as the laterto occur of (i) Actual Substantial Completion Date or (ii) the datewhen permission has been obtained from the applicable governmental authority(which such permission may be evidenced by the signature(s) of theappropriate municipal official(s) on the building permit for the Landlord’sWork) to the extent required by law, for occupancy by Tenant of the Premisesfor the Permitted Uses. Notwithstanding the foregoing, in the event thatLandlord is delayed in the performance of Landlord’s Work or cannot obtainpermission from the applicable governmental authority for the occupancy of thePremises by reason of any Tenant Delay, then the Substantial Completion Dateshall be deemed to be the date that Landlord would have achieved the ActualSubstantial Completion Date or obtained such governmental permission, but forsuch Tenant Delay. Tenant agrees that no Tenant Delay shall delay commencementof the Term or the obligation to pay rent, regardless of the reason for suchdelay or whether or not it is within the control of Tenant or any suchemployee. Nothing contained in this paragraph shall limit or qualify orprejudice any other covenants, agreements, terms, provisions and conditionscontained in this Lease.

 

(D)          When used in this Lease “Landlord’s Force Majeure”shall mean any prevention, delay or stoppage due to governmentalregulation, strikes, lockouts, acts of God, acts of war, terrorist acts, civilcommotions, unusual scarcity of or inability to obtain labor or materials (tothe extent that such scarcity or inability is the result of conditions notprevalent in the market, and otherwise unforeseen, as of the date of thisLease), labor difficulties, casualty or other causes reasonably beyond Landlord’scontrol; provided, however, that in no event shall the financial inability ofLandlord or Landlord’s general contractor constitute a cause beyond Landlord’sreasonable control. In order to invoke the Landlord’s Force Majeure provisionof this Exhibit B-1, Landlord must advise Tenant in writing of the allegedLandlord’s Force Majeure within three (3) business days after Landlordbecomes aware thereof. Landlord shall use commercially reasonable efforts to 

 

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mitigate the impact of Landlord’s Force Majeure onthe performance of Landlord’s Work, to the extent it is within Landlord’sreasonable ability to do so given the nature of the event giving rise to theLandlord’s Force Majeure.

 

(E)           Notwithstanding that the Estimated Commencement Dateis April 1, 2011. Landlord shall endeavor to Substantially Complete theTenant Improvement Work no earlier than March 1, 2011 so that Tenant maycommence occupancy of the Premises for the Permitted Uses, subject to (i) anyprevention, delay or stoppage due to Landlord’s Force Majeure orattributable to any Tenant Delays, (ii) Landlord’s receipt of allmunicipal approvals necessary to permit such occupancy (Landlord herebyagreeing to use commercially reasonable efforts to obtain such approvals) and(iii) Tenant having submitted Tenant Plans which enable Landlord to pursuea certificate of occupancy for the portion of the Premises located on the third(3rd) floor notwithstanding the fact that the remainder of the Premises may notbe Substantially Complete at such time (it being acknowledged and agreed thatthe foregoing may require Tenant to prepare and submit a separate set of TenantPlans for the portion of the Premises located on the third (3rd) floor andanother set of Tenant Plans for the remainder of the Premises), in the eventthat Tenant wants to preserve the ability to occupy the third (3rd) floorirrespective of the status of completion of the remainder of the Premises. Anysuch occupancy by Tenant shall be upon all of the terms and conditions of theLease (other than the payment of Annual Fixed Rent), but shall not impact thedetermination of the Commencement Date as set forth inSection 1.3(C) above.  Tenantfurther acknowledges that it may be occupying portions of the Premises whilethe Landlord’s Work is being completed in other portions of the Building andaccordingly that there may be some disruptions in Tenant’s occupancy,consistent with the nature of the work being performed.

 

Inaddition, Landlord shall permit Tenant access for installing Tenant’s tradefixtures, systems, equipment and furniture in portions of the Premises prior toSubstantial Completion when it can be done without material interference withremaining work and with the maintenance of harmonious labor relations. Any suchaccess by Tenant (including, without limitation, access for the construction byTenant of the dry room under Section 1.3(A) above) shall be upon allof the terms and conditions of the Lease (other than the payment of AnnualFixed Rent, the Tax Excess, the Operating Cost Excess and payments on accountof electricity under Section 5.2 of the Lease) and shall be at Tenant’ssole risk, and Landlord shall not be responsible for any injury to persons ordamage to property resulting from such early access by Tenant.

 

(F)           Except as set forth inSection 1.3(E) above, if prior to the date that the Landlord’s Workis in fact actually Substantially Complete, the Landlord’s Work is deemed to beSubstantially Complete pursuant to the provisions of this Section 1.3(i.e. and the Commencement Date has therefore occurred), Tenant shall not(except with Landlord’s consent) be entitled to take possession of the Premisesfor the Permitted Uses until the Landlord’s Work is in fact actuallySubstantially Complete.

 

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1.4                                 Tenant’sRemedies Based on Delays in Landlord’s Work

 

Ifthe Substantial Completion Date shall not have occurred by that date (the “FirstInterim Completion Date”) which is thirty (30) days from the EstimatedCommencement Date (which date shall be extended automatically for such periodsof time as Landlord is prevented in delivering the same by reason of Landlord’sForce Majeure or any Tenant Delay, without limiting Landlord’s other rights onaccount thereof), then the Annual Fixed Rent and payments on account of the TaxExcess and the Operating Cost Excess shall be abated, from and after theCommencement Date, by one (1) day for each one (1) day beyond theFirst Interim Completion Date that the Substantial Completion Date is delayed.

 

Ifthe Substantial Completion Date shall not have occurred by that date (the “SecondInterim Completion Date”) which is sixty (60) days from the EstimatedCommencement Date (which date shall be extended automatically for such periodsof time as Landlord is prevented in delivering the same by reason of Landlord’sForce Majeure or any Tenant Delay, without limiting Landlord’s other rights onaccount thereof), then the Annual Fixed Rent and payments on account of the TaxExcess and the Operating Cost Excess shall be abated, from and after theapplicable Commencement Date, for one and one-half (1 1⁄2) days for each one(1) day beyond the Second Interim Completion Date that the SubstantialCompletion Date is delayed.

 

Inaddition, if the Substantial Completion Date shall have not occurred by thatdate (the  “Outside Completion Date”)which is one hundred twenty (120) days from the Estimated Commencement Date(which date shall be extended automatically for such periods of time as Landlordis prevented in delivering the same by reason of Landlord’s Force Majeure orany Tenant Delay, without limiting Landlord’s other rights on account thereof),then Tenant shall have the right to terminate this Lease effective as of thethirtieth (30th) day after receipt by Landlord of a notice from Tenant given onor after the Outside Completion Date (as so extended) indicating Tenant’sdesire to so terminate; and upon the giving of such notice, the Term of theLease shall cease and come to an end without further liability or obligation onthe part of either party as of the expiration of the aforesaid thirty (30)business day period, unless the Substantial Completion Date shall in fact haveoccurred on or before such expiration date.

 

Theforegoing rent abatements and right of termination shall be Tenant’s sole andexclusive remedies at law or in equity or otherwise for the failure of theSubstantial Completion Date to have occurred within the time periods set forthabove.

 

1.5                                 Quality andPerformance of Work

 

(A)          All construction work required or permitted by theLease shall be done in a good and workmanlike manner and in compliance with allapplicable laws, ordinances, rules, regulations, statutes, by-laws, courtdecisions, and orders and requirements of all public authorities (“LegalRequirements”) and all Insurance Requirements (as defined in Section 

 

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9.1 of the Lease). Any work performed by or onbehalf of Tenant under the Lease shall be coordinated with any work beingperformed by or on behalf of Landlord and in such manner as to maintainharmonious labor relations.

 

(B)           Each party authorizes the other to rely inconnection with design and construction upon the written approval or otherwritten authorizations on the party’s behalf by any Construction Representativeof the party named in Section 1.2 of the Lease or any person hereafterdesignated in substitution or addition by notice to the party relying. Eachparty may inspect the work of the other at reasonable times and shall promptlygive notice of observed defects. Tenant acknowledges that Tenant is acting forits own benefit and account and that Tenant will not be acting as Landlord’sagent in performing any work that may be undertaken by or on behalf of Tenantunder this Lease, and accordingly, no contractor, subcontractor or supplier ofTenant shall have a right to lien Landlord’s interest in the Property inconnection with any such work.

 

(C)           Landlord warrants to Tenant that: (i) thematerials and equipment furnished in the performance of the Landlord’s Workwill be of good quality; (ii) the Landlord’s Work will be free fromdefects not inherent in the quality described in the applicable plans andspecifications therefor; and (iii) the Landlord’s Work and all componentsthereof shall be in good working order and condition, consistent with those ofClass A office buildings in the Central Suburban 128 Market. Any portionof the Landlord’s Work not conforming to the foregoing requirements will beconsidered defective. Landlord’s warranty hereunder shall not apply to theextent of damage or defect caused by (1) the negligent acts or omissionsor the willful misconduct of Tenant, its employees, agents, contractors,sublessees or permitted occupants under Article XII of the Lease(hereinafter, the “Tenant Parties”), (2) improper operation by any of theTenant Parties, or (3) normal wear and tear and normal usage.

 

Theforegoing warranty with respect to each component of the Landlord’s Work shallcommence on the date on which Landlord has Substantially Completed the Landlord’sWork and shall expire on the date which is fifty (50) weeks after thecommencement of the warranty on the Landlord’s Work (the “Warranty Period”),and Tenant shall be required to deliver notice to Landlord of any defects priorto the expiration of the Warranty Period in order to permit Landlord to takeaction to enforce Landlord’s warranty rights with respect to the Landlord’sWork. Landlord agrees that it shall correct any portion of the Landlord’s Workwhich during the Warranty Period is found not to be in accordance with thewarranties set forth in this subsection (C). Landlord shall use commerciallyreasonable efforts to enforce warranties from its general contractors,subcontractors, vendors and others on Tenant’s behalf.

 

(D)          Except for latent defects which could not reasonablyhave been discovered during the Warranty Period despite the exercise of duediligence and except to the extent to which Tenant shall have given Landlordnotice of respects in which Landlord has not performed Landlord’s constructionobligations under this Exhibit B-1 within the Warranty Period, Tenantshall be deemed conclusively to have approved Landlord’s 

 

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construction and shall have no claim that Landlordhas failed to perform any of Landlord’s obligations under thisExhibit B-1.

 

1.6                                 Landlord’sContribution; Tenant Plan Excess Costs

 

(A)          As an inducement to Tenant’s entering into theLease, Landlord shall provide to Tenant an allowance in an amount equal to theproduct of (i) $21.50 (the “Original Allowance Rate”) and (ii) theRentable Floor Area of the Premises (the “Landlord’s Contribution”) to be usedand applied by Landlord towards the cost of the Tenant Improvement Work. Forthe purposes hereof, the cost of the Tenant Improvement Work shall include thecost of leasehold improvements, architectural and engineering fees and tel/datacabling installation (provided, however, that the amount of the Landlord’sContribution that may be applied towards the reimbursement of architectural andengineering fees and tel/data cabling installation shall be capped at an amountequal to the product of (x) $4.00 and (y) the Rentable Floor Area ofthe Premises).

 

(B)           Landlord shall be under no obligation to apply anyportion of the Landlord’s Contribution for any purposes other than as providedin this Section 1.6. In addition, in the event that (i) Tenant hasreceived notice from Landlord that it is in default of its obligations underthis Lease and such default remains uncured or (ii) there are any lienswhich are not bonded to the reasonable satisfaction of Landlord against Tenant’sinterest in the Lease or against the Building or the Site arising out of anywork performed by Tenant (it being acknowledged and agreed for these purposesthat the Tenant Improvement Work being performed by Landlord shall not beconsidered “work performed by Tenant”) or any litigation in which Tenant is aparty, then, from and after the date of such event (“Event”), Landlord shallhave no further obligation to fund any portion of the Landlord’s Contributionand Tenant shall be obligated to pay, as Additional Rent, all costs of theTenant Improvement Work in excess of that portion of the Landlord’sContribution funded by Landlord through the date of the Event, subject toreimbursement by Landlord after the condition giving rise to the Event has beencured or otherwise rectified to Landlord’s reasonable satisfaction. Further,the Landlord’s Contribution shall only be applied towards the cost of leaseholdimprovements and, subject to the limitations set forth in subsection(A) above, architectural and engineering fees and tel/data cablinginstallation. In no event shall Landlord be required to make application of anyportion of the Landlord’s Contribution towards Tenant’s personal property,trade fixtures, trade equipment, furniture/furniture fronts or moving expensesor on account of any supervisory fees, overhead, management fees or otherpayments to Tenant, or any partner or affiliate of Tenant. In the event thatthe costs of the Tenant Improvement Work are less than the Landlord’sContribution, Tenant shall not be entitled to any payment or credit nor shallthere be any application of the same toward Annual Fixed Rent or AdditionalRent owed by Tenant under the Lease. Tenant acknowledges that any portion ofthe Landlord’s Contribution which has not been utilized on or before the datethat is one (1) year after the Substantial Completion Date shall beforfeited by Tenant. Landlord shall be entitled to deduct the ConstructionManagement Fee referenced in Section 1.1(C) above from the Landlord’sContribution.

 

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(C)           If and at such time as the costs of the TenantImprovement Work exceed the Landlord’s Contribution, such excess costs shallhereinafter be defined as “Tenant Plan Excess Costs” and shall be payableTenant as set forth in this Section 1.6(C).

 

Tothe extent, if any, that there are Tenant Plan Excess Costs, Tenant shall payLandlord, as Additional Rent, within ten (10) business days after billingtherefor, from time to time during the performance of the Tenant ImprovementWork, (but no more often than one (1) time per thirty (30) day period),the amount of the Tenant Plan Excess Costs incurred for the Tenant ImprovementWork performed during that period (including, without limitation, architecturaland engineering fees and tel/data cabling installation costs) after applicationof the full amount of the Landlord’s Contribution in accordance with theprovisions of this Section 1.6; provided however, that if the Tenant PlanExcess Costs are the result of a Change Order, then Tenant shall pay all suchTenant Plan Excess Costs to Landlord, as Additional Rent, at the time thatTenant approves such Change Order in accordance withSection 1.1(B)(4) above.

 

(D)          With respect to architectural and engineering feesand tel/data cabling installation costs, Tenant may from time to time requestdisbursements of the Landlord’s Contribution to pay such costs (or reimburseTenant for having paid such costs), up to the maximum amounts set forth insubsection (A) above, including with its request for payment a summary ofthe costs incurred and reasonable supporting documentation with respect thereto(which in the case of any payment for which Tenant seeks reimbursement shallinclude, without limitation, paid invoices, receipts and the like evidencingsuch payment, as well as lien waivers in recordable form reasonably acceptableto Landlord from all persons who might have a lien as a result of such work).Provided that the conditions to disbursement of the Landlord’s Contribution asset forth in this Section 1.6 have otherwise been satisfied, Landlordshall disburse the requested funds to Tenant within thirty (30) days afterTenant’s request therefor.

 

IfTenant has satisfied the conditions to disbursement of the Landlord’sContribution and Landlord fails to disburse the requested funds to Tenantwithin thirty (30) days of Tenant’s request therefor, and Landlord has not,within ten (10) business days of its receipt of Tenant’s demand, givenwritten notice to Tenant objecting to such demand and submitting the same toarbitration under Section 1.7 below (or if Landlord has timely disputedTenant’s demand, has submitted such dispute to arbitration in accordance withsaid Section 1.7 and has thereafter failed to pay Tenant the amount of anyfinal, unappealable arbitration award against Landlord within thirty (30) daysafter the issuance thereof) then subject to the last sentence of thisparagraph, Tenant shall have the right to offset the amount of such sumsdemanded by Tenant against the Annual Fixed Rent and Additional Rent payableunder the Lease until offset in full. Notwithstanding the foregoing, Tenantshall have no right to reduce any monthly installment of Annual Fixed Rent bymore than fifteen percent (15%) of the amount of Annual Fixed Rent which wouldotherwise have been due and payable by Tenant to Landlord, unless the aggregateamount of such deductions over the remainder of the Lease Term (as the same mayhave been extended) will be insufficient to fully reimburse Tenant for theamount demanded 

 

16

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byTenant, in which event Tenant may effect such offset by making deductions fromeach monthly installment of Annual Fixed Rent in equal monthly amounts over thebalance of the remainder of the Lease Term.

 

(E)           It is currently estimated that the total cost of alllabor, materials and other work necessary to design, permit and perform theBase Building Work will be approximately $850,000.00.  To the extent that the total cost of the BaseBuilding Work upon full completion thereof is less than $850,000.00, Landlordshall provide any such excess (the “Additional Contribution”) to Tenant as partof the Landlord’s Contribution, to be used and applied towards the cost of theTenant Improvement Work subject to and in accordance with the provisions ofthis Section 1.6 (including, without limitation, that cap on the amount ofthe Landlord’s Contribution that can be applied towards architectural andengineering fees and tel/data cabling costs, as set forth in subsection(A) above).  To the extent that theTenant Improvement Work has been fully paid for at the time the AdditionalContribution is made, Tenant may retain the same as reimbursement for anyTenant Plan Excess Costs previously funded by Tenant.  In connection with the foregoing, it isexpressly understood and agreed that Tenant shall have no right to theAdditional Contribution unless, and then only to the extent that, there areTenant Plan Excess Costs (i.e. if the amount of the Additional Contribution is$50,000.00 and the amount of Tenant Plan Excess Costs is $25,000.00, Tenant shallonly be entitled to $25,000.00 of the Additional Contribution).

 

1.7                                 Fast TrackArbitration

 

Anycontroversy, dispute or claim arising under this Exhibit B-1 shall besettled by arbitration in Boston, Massachusetts in accordance with theExpedited Arbitration Rules of the American Arbitration Association asthen in effect (unless the parties mutually agree otherwise). The decisionrendered by the arbitrator or arbitrators shall be final and conclusive uponLandlord and Tenant. To avail itself of the dispute resolution procedures ofthis Section 1.7, the party demanding arbitration shall file a writtennotice of such demand with the other party and with the American ArbitrationAssociation. In connection with resolution of disputes submitted to arbitrationhereunder, Landlord and Tenant hereby irrevocably waive any and all rights theymay have to resolve such dispute in a manner that is inconsistent with theprovisions of this Section 1.7. The costs and administration expenses ofeach arbitration hereunder shall be borne equally by the parties, and eachparty shall be responsible for its own attorneys’ fees and expert witnesses’fees.

 

Inconnection with the foregoing, it is expressly understood and agreed that theparties shall continue to perform their respective obligations under the Leaseand this Exhibit B-1 during the pendency of any arbitration proceedinghereunder (with any adjustments or reallocations to be made on account of suchcontinued performance as determined by the arbitrator in his or her award).

 

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EXHIBIT B-2

 

BASE BUILDING WORK

 

**Work Within Portions of Tenant Premises**

 

Passenger/ServiceElevator:  Landlordshall provide at its expense a passenger/service elevator with a minimumcapacity of 4,500 pounds servicing all four (4) floors in the East Wing,location of elevator to be mutually determined/acceptable. Landlord will beresponsible for construction of pit, all slab openings, reinforcement of slabopenings, any required override, elevator machine room on first floor(approximately 8’x8’), shaft walls, cab and controls. Shaft walls in the Tenantpremises will be drywalled, taped, primed, and ready for paint.

 

LoadingDock:  Landlord shall provide at itsexpense an exclusive loading dock for Tenant, location to bedetermined/mutually acceptable (provided, however, that such loading dock shallbe designed to accommodate trucks with a maximum length of fifty-three (53)feet without cab). Landlord work shall include the penetration of exterior wall,installation of one overhead rolling door (below the existing precast concretespandrel), installation of concrete/steel exterior dock, exterior canopy andcorresponding foundations as required, including any reconfiguration of parkingstriping/islands as necessary for safe truck access.

 

**Work within Building Common Areas**

 

FitnessCenter:  Landlord shall provide at itsexpense a common fitness center for the building located in the first floor ofthe west wing. The fitness center will be on the order of 800-1200sf. The newfitness center will include machine weights, free weights, and cardiovascularequipment. Locker room and showers to remain as existing.

 

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EXHIBIT B-3

 

WORK MATRIX

 
| **Scope of Work**                                                                           | ** ** | **Landlord Contractor** | ** ** | **Tenant Contractor** |
|---------------------------------------------------------------------------------------------|------------|-------------------------|------------|-----------------------|
| **A123 TENANT WORK (cost of all LL items from Tenant  Allowance)**                          |       |                    |       |                  |
| **General**                                                                                 |       |                    |       |                  |
| Tel/Data equipment, wiring & outlets                                               |       |                    |       | X                     |
| Card Access/Security                                                                        |       |                    |       | X                     |
| Audio Visual equipment, wiring and outlets                                                  |       |                    |       | X                     |
| Raceways/Power for items noted above                                                        |       | X                       |       |                  |
| Kitchen Millwork and Sinks                                                                  |       | X                       |       |                  |
| Built-in millwork at Mail, Copy, Storage and Board  Room                                    |       | X                       |       |                  |
| Lockers at 2nd floor Locker Room                                                            |       |                    |       | X                     |
| Design of Bldg. Electrical service upgrade                                                  |       |                    |       | X                     |
| Install electrical service upgrades (equip.  provided by Utility Co.)                       |       | X                       |       |                  |
| HVAC units for Dryrooms [**]                                                                |       |                    |       | X                     |
| Utilities to Dryroom HVAC units                                                             |       | X                       |       |                  |
| Rigging/Installation of HVAC units for Dryrooms                                             |       | X                       |       |                  |
| Roof-top dunnage required for Dryroom HVAC units                                            |       | X                       |       |                  |
| Ductwork between Dryroom HVAC units and Dryrooms                                            |       |                    |       | X                     |
| Structural modifications (shafts/dunnage) req’d  for utilities and Tenant Equipment    |       | X                       |       |                  |
| Dedicated Lab Waste drainage system equipment                                               |       |                    |       | X                     |
| Piping/Storage tank associated with Lab waste  drainage system                              |       | X                       |       |                  |
| Safety Showers (if req’d) and Eye Wash Stations                                        |       | X                       |       |                  |
| **FF&E**                                                                                |       |                    |       |                  |
| Kitchen appliances and/or Vending Machines                                                  |       |                    |       | X                     |
| Lab Benches/Fume Hoods                                                                      |       |                    |       | X                     |
| Lab Equipment                                                                               |       |                    |       | X                     |
| Disconnect/Rigging/Transport of Lab Equipment from  Watertown to Waltham                    |       |                    |       | X                     |
| Utilities (“laterals”) to Lab Benches, Fume Hoods  and Equipment (within 5’) |       | X                       |       |                  |
| Final utility connections to Lab Benches/Fume  Hoods                                        |       | X                       |       |                  |
| Final utility connections to Lab Equipment  relocated from Watertown                        |       | X                       |       |                  |
| Final utility connections to new Lab Equipment                                              |       |                    |       | X                     |
| Workstation Furniture and Conference  Room tables/chairs                               |       |                    |       | X                     |

 

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| **Scope of Work**                                                                     | ** ** | **Landlord Contractor** | ** ** | **Tenant Contractor** |
|---------------------------------------------------------------------------------------|------------|-------------------------|------------|-----------------------|
| Power for workstation furniture to junction box  below floor                          |       | X                       |       |                  |
| Wire workstation “whips” (provided by Tenant  Contractor) to junction boxes |       | X                       |       |                  |
| Final power and tel/data connections at  workstation furniture                        |       |                    |       | X                     |
| Start-up & Commissioning of Lab Equipment                                    |       |                    |       | X                     |
| **1st Floor**                                                                         |       |                    |       |                  |
| Removable façade panels (design TBD) for Equip.  delivery                        |       | X                       |       |                  |
| Interior fit-out of **[**]** including:                                               |       |                    |       |                  |
| Perimeter walls (including viewing windows)                                           |       |                    |       | X                     |
| Flooring                                                                              |       | X                       |       |                  |
| Ceilings                                                                              |       |                    |       | X                     |
| Doors                                                                                 |       |                    |       | X                     |
| Gowning Vestibule                                                                     |       |                    |       | X                     |
| Fire Protection System (wet)                                                          |       | X                       |       |                  |
| Lighting                                                                              |       | X                       |       |                  |
| Life Safety (exit signs) devices                                                      |       | X                       |       |                  |
| Utilities (“Mains”) to within 5’ of room perimeter                     |       | X                       |       |                  |
| Utilities (“Laterals”) within Dryroom                                       |       | X                       |       |                  |
| Underground utilities (drainage) stubbed through  floor                               |       | X                       |       |                  |
| Trenching/repair for underground utilities                                            |       | X                       |       |                  |
| Interior fit-out (floors, walls, ceilings, doors,  MEPFP) of the following rooms:     |       |                    |       |                  |
| Tech Area                                                                             |       | X                       |       |                  |
| Mtg/Conference Rooms                                                                  |       | X                       |       |                  |
| Machine Room                                                                          |       | X                       |       |                  |
| R&D Active Powder                                                                 |       | X                       |       |                  |
| R&D Wet Storage                                                                   |       | X                       |       |                  |
| In/Out Quality Check                                                                  |       | X                       |       |                  |
| Stock Storage                                                                         |       | X                       |       |                  |
| Chemical Storage                                                                      |       | X                       |       |                  |
| Chemical Waste                                                                        |       | X                       |       |                  |
| Clean Viewing Corridors                                                               |       | X                       |       |                  |
| Cathode and Anode Mixing                                                              |       | X                       |       |                  |
| Cell Testing                                                                          |       | X                       |       |                  |
| Unisex Toilet room                                                                    |       | X                       |       |                  |
| Reception                                                                             |       | X                       |       |                  |
| Locker Room                                                                           |       | X                       |       |                  |

 

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| **Scope of Work**                                                                 | ** ** | **Landlord Contractor** | ** ** | **Tenant Contractor** |
|-----------------------------------------------------------------------------------|------------|-------------------------|------------|-----------------------|
| Misc. mechanical/electrical/storage rooms                                         |       | X                       |       |                  |
| Specialty HVAC or Exhaust for above rooms                                         |       | X                       |       |                  |
| Exterior Fencing for equipment enclosure (if  required)                           |       | X                       |       |                  |
| Exterior equipment/storage tanks (if required)                                    |       |                    |       | X                     |
| Sitework/Landscape at exterior equipment enclosure                                |       | X                       |       |                  |
| Reconfigure existing elevator machine room                                        |       | X                       |       |                  |
| **2nd Floor**                                                                     |       |                    |       |                  |
| Interior fit-out of **[**]** including:                                           |       |                    |       |                  |
| Perimeter walls (including viewing windows)                                       |       |                    |       | X                     |
| Flooring                                                                          |       | X                       |       |                  |
| Ceilings                                                                          |       |                    |       | X                     |
| Doors                                                                             |       |                    |       | X                     |
| Gowning Vestibule                                                                 |       |                    |       | X                     |
| Fire Protection System (dry system with preaction)                                |       | X                       |       |                  |
| Ceiling-mounted lighting                                                          |       | X                       |       |                  |
| Life Safety (exit signs) devices                                                  |       | X                       |       |                  |
| Utilities (“Mains”) to within 5’ of room perimeter                 |       | X                       |       |                  |
| Utilities (“Laterals”) within Dryroom                                   |       | X                       |       |                  |
| Interior fit-out of **[**]** including:                                           |       |                    |       |                  |
| Perimeter walls (including viewing windows)                                       |       |                    |       | X                     |
| Flooring                                                                          |       | X                       |       |                  |
| Ceilings                                                                          |       |                    |       | X                     |
| Doors                                                                             |       |                    |       | X                     |
| Gowning Vestibule                                                                 |       |                    |       | X                     |
| Fire Protection System (dry system with preaction)                                |       | X                       |       |                  |
| Ceiling-mounted lighting                                                          |       | X                       |       |                  |
| Life Safety (exit signs) devices                                                  |       | X                       |       |                  |
| Utilities (“Mains”) to within 5’ of room perimeter                 |       | X                       |       |                  |
| Utilities (“Laterals”) within Dryroom                                   |       | X                       |       |                  |
| Interior fit-out (floors, walls, ceilings, doors,  MEPFP) of the following rooms: |       |                    |       |                  |
| Techs Touchdown                                                                   |       | X                       |       |                  |
| Conference Rooms                                                                  |       | X                       |       |                  |
| R&D Staff and Expansion Space                                                 |       | X                       |       |                  |
| Shared Labs                                                                       |       | X                       |       |                  |
| CPG Lab                                                                           |       | X                       |       |                  |
| Misc. Safety and Abuse rooms                                                      |       | X                       |       |                  |
| Misc. mechanical/electrical/storage rooms                                         |       | X                       |       |                  |

 

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| **Scope of Work**                                                                 | ** ** | **Landlord Contractor** | ** ** | **Tenant Contractor** |
|-----------------------------------------------------------------------------------|------------|-------------------------|------------|-----------------------|
| Kitchen/Copy Rooms                                                                |       | X                       |       |                  |
| **3rd Floor**                                                                     |       |                    |       |                  |
| Interior fit-out (floors, walls, ceilings, doors,  MEPFP) of the following rooms: |       |                    |       |                  |
| Board Room                                                                        |       | X                       |       |                  |
| Mail/Copy/Supply                                                                  |       | X                       |       |                  |
| Conference Rooms and Interview Room                                               |       | X                       |       |                  |
| Reception                                                                         |       | X                       |       |                  |
| General Office space for workstations                                             |       | X                       |       |                  |
| Kitchens                                                                          |       | X                       |       |                  |
| Misc. mechanical/electrical/storage rooms                                         |       | X                       |       |                  |
| Server Room (including any supplemental  cooling)                            |       | X                       |       |                  |
| Lactation Room                                                                    |       | X                       |       |                  |
| Reception Desk and Display millwork                                               |       | X                       |       |                  |

 

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EXHIBIT B-4

 

TENANT PLAN AND WORKING DRAWING REQUIREMENTS

 

1.                                       Floor planindicating location of partitions and doors (details required of partition anddoor types).

 

2.                                       Location ofstandard electrical convenience outlets and telephone outlets, excepting anysuch outlets existing as of the date of the Lease which are not beingrelocated.

 

3.                                       Location anddetails of special electrical outlets, including voltage, amperage, phase andNEMA configuration of outlets.

 

4.                                       Reflectedceiling plan showing layout of standard ceiling and lighting fixtures.Partitions to be shown lightly with switches located indicating fixtures to becontrolled.

 

5.                                       Locations anddetails of special ceiling conditions, lighting fixtures, speakers, etc.

 

6.                                       Location andheat load in BTU/Hr. of all special air conditioning and ventilating andexhaust requirements and all necessary HVAC mechanical drawings.

 

7.                                       Location anddetails of special structural requirements, e.g., slab penetrations and areaswith floor loadings exceeding a live load of 70 lbs./s.f.

 

8.                                       Locations anddetails of all plumbing fixtures; sinks, drinking fountains, etc.

 

9.                                       Location andspecifications of floor coverings, e.g., vinyl tile, carpet, ceramictile, etc.

 

10.                                 Finish scheduleplan indicating wall covering, paint or paneling with paint colors referencedto standard color system.

 

11.                                 Details andspecifications of special millwork, glass partitions, rolling doors andgrilles, blackboards, shelves, tenant-furnished equipment, etc.

 

12.                                 Hardwareschedule indicating door number keyed to plan, size, hardware requiredincluding butts, latchsets or locksets, closures, stops, and any special itemssuch as thresholds, soundproofing, etc. Keying schedule is required;provided, however, that such schedule shall not include keys to doors providingaccess to portions of the Premises which Tenant, in Tenant’s sole discretion,deems to require heightened security.

 

13.                                 Verifieddimensions of all built-in equipment (file cabinets, lockers, planfiles, etc.).

 

14.                                 Location of anyspecial soundproofing requirements.

 

15.                                 MEP/FP drawingsby an engineer licensed by the Commonwealth of Massachusetts.

 

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16.                                 All drawings tobe uniform size (30” X 42”) and shall incorporate the standard projectelectrical and plumbing symbols and be at a scale of 1/8” = 1’ or larger.

 

17.                                 Drawing submittalshall include the appropriate quantity required for Landlord to file for permitalong with four half size sets and one full size set for Landlord’s review anduse.

 

18.                                 Provide otherinformation reasonably necessary to obtain all permits and approvals for theperformance of Landlord’s Work.

 

19.                                 Upon completionof the work, Tenant shall provide Landlord with two hard copies and oneelectronic CAD file of updated architectural and mechanical drawings to reflectall project sketches and changes.

 

20.                                 Allrequirements of this Exhibit B-4 are applicable only for areas whererenovation or reconfiguration is intended.

 

21.                                 Identificationof base building impacts, including without limitation:

 

·                  Steel/heavy loads.

·                  Existing air-handling units.

·                  Roof details.

·                  Shafts on floors outside of the Premises.

·                  Increased electrical service.

 

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EXHIBIT B-5

 

CONSTRUCTION MANAGEMENT SERVICES

 

Preconstruction Phase

 

Landlordwill:

 

1.                                       At the outsetof the Project, Landlord will review the existing programming and participatein the start of the design work.  Advisethe Tenant as to whether any aspect of the work should be modified, withparticular attention paid to the proposed lease provisions.  In addition, Landlord will advise Tenant asto sustainable constructions operations and practices.

 

2.                                       Develop anddistribute the General Contractor RFP (which RFP shall include requirements forsustainable construction operations and practices) and then recommend theGeneral Contractor selection.

 

3.                                       Develop andexecute contracts with General Contractor and appropriate vendors.

 

4.                                       Develop acomprehensive budget for the Tenant and provide budget feedback for projectdesign decisions with the input of the selected General Contractor.

 

5.                                       Develop aProject Schedule, which coordinates all the elements of the architectural team,the Contractor and Tenant activities. Permitting activities andresponsibilities shall be included in the Project Schedule.

 

6.                                       Be available toassist Tenant in various meetings and presentations.

 

7.                                       Work with theArchitect to include the necessary technical detail and specification languagein plans being prepared by the Architect in order to avoid claims and changes.

 

8.                                       Work with theArchitect and Tenant’s other consultants (i.e., IT, FF&E, Security,A/V, etc.) to include necessary technical detail and specificationlanguage in plans being coordinated by the Architect.

 

9.                                       Participate incost reduction and value engineering processes, in conjunction with Tenant, theArchitect and design team (i.e., IT, FF&E, Security, A/V, etc.).

 

10.                                 Coordinate withTenant’s specialty contractors (Dry Rooms, etc.) in accordance with theterms and provisions of Exhibit B-1 to the Lease regarding the deliveryand installation of items for which Tenant is responsible underExhibit B-3 to the Lease.

 

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***Construction Phase***

 

Landlordwill:

 

1.                                       As an advisorto, and a representative of Tenant, provide administrative, management and relatedservices as required to coordinate work of the entire team. Landlord willconcentrate its efforts in the coordination of the Contractor, Subcontractor(s) and all other consultants contracted to perform services on theProject in order to complete the project in accordance with Tenant’s objectivesfor cost, time and quality.

 

2.                                       Assist Tenant’sspecialty vendors/contractors in coordinating with the Contractor to provideaccess to the Premises for the delivery and installation of equipment andcomponents.  Provide necessary assistanceand delivery of infrastructure in accordance with the terms and provisions ofExhibit B-1 to the Lease to support the assembly, installation andcompletion of the specialty work by Tenant’s contractors/vendors.

 

3.                                       Assist Tenant,Contractor and Architect in development of a schedule of values for paymentthat is realistic and in conformance with the expected cash flow of work.

 

4.                                       Schedule andconduct regular construction and progress meeting to discuss such matters asprocedures, progress problems, and scheduling. Prepare and distribute theAction Items List of these meetings to all parties in a prompt manner. TheContractor shall prepare meeting minutes for weekly construction progressmeetings.

 

5.                                       Develop andmaintain a Project Construction Schedule that incorporates the ConstructionSchedule prepared by the Contractor. Update monthly to show current conditionsand revisions required due to actual progress. Monitor the activities of theContractor, Subcontractor (s) and consultants on processing of shopdrawings, project data and samples, and delivery of products requiring longlead time procurement.

 

6.                                       Expedite andparticipate in Tenant’s review of project submittals when the Architectrequests such review.

 

7.                                       Oversee theContractor and the Architect in the process of (i) issuing Requests forInformation (RFIs) and associated documentation (sketches, etc.) and(ii) maintaining an RFI log to track and record responses.

 

8.                                       Endeavor toobtain satisfactory performance from the Contractor and eachSubcontractor.  Recommend courses ofaction to Tenant when the requirements of the contract are not being fulfilledand the non-performing party will not take satisfactory corrective action.

 

9.                                       Provide regularmonitoring of all Project costs, showing actual costs for activities inprogress and estimates for unaccomplished tasks. Identify variances betweenactual costs of labor and materials and other work requiring accountingrecords, such as preliminary change order requests.

 

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10.                                 Advise Tenantof necessary or desirable changes to the Project, assist in negotiation of theContractor’s proposals for these changes, submit recommendations of theArchitect and Tenant, and, if accepted, prepare or cause the Contractor toprepare change orders for the Architect’s approval and Tenant’s authorization.Establish and implement a change order system to monitor and report job costevents, including approved change orders, pending change orders and anticipatedchange orders. Establish a time line for the change order process that does notinterfere with the progress of the work and coordinate with Lease requirements.

 

11.                                 Develop andimplement procedures for prompt review and processing of applications forpayment from the Contractor for progress and final payments. Makerecommendations to Tenant for payment(s). Provide review and certification inconnection with the Contractor’s monthly application for payment and coordinatewith Lease requirements.

 

12.                                 Review theactivities and responsibilities of the Contractor in order to assist inmaintaining schedules, controlling costs, assuring quality, minimizingdisruption, monitoring compliance with the various contract requirements.

 

13.                                 Keep Tenant advisedon an on-going basis of all significant Project developments, includingconditions and circumstances that may cause delay in the Project Schedule orthat otherwise may be inconsistent with the Project requirements or Tenant’sexpectations. In these cases, provide Tenant with a proposed contingency toavoid or mitigate possible or actual delays or negative consequences.

 

14.                                 Assist Tenantin selecting and retaining professional services of testing laboratories, asrequired. Coordinate their services.

 

15.                                 Review andcoordinate quality assurance, testing and inspection programs. Develop andimplement procedures for consistent feedback to the Contractor andSubcontractor(s) of observations and recommendations of the Architect.

 

16.                                 Monitor theproper record keeping of all types by the Contractor, including progressprints, manuals, samples, cut sheets, handbooks, etc. related to thequality and nature of the construction in progress.  Insure that the same are being maintained onthe job site for the use of the Architect and Tenant.

 

17.                                 Assist indeveloping, in conjunction with the Architect, a punch list of those itemsremaining to be completed at the time of Substantial Completion. Recommend anamount sufficient to complete these items to be withheld from payment to theContractor to ensure the completion of this punch list and follow up withcorrective actions.

 

18.                                 At theconclusion of the Project, and after a Certificate of Substantial Completionand an Occupancy Permit are issued by the appropriate authorities, coordinatethe transfer to Tenant of all as-built drawings, warranties, O&M manualsand all other construction related documents and all materials necessary foroccupancy and full operation of the facility. Coordinate any training to be providedby the Contractor to Tenant’s employees.

 

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EXHIBIT B-6

 

TENANT’S DRY ROOM

 

[see attached]

 

[**]

 

A total of two pages were omitted and filed separately with theSecurities and Exchange Commission pursuant to a request for confidentialtreatment. 

 

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EXHIBIT C

 

LANDLORD’S SERVICES

 

I.              CLEANING

 

Cleaningand janitorial services shall be provided as needed Monday through Friday,exclusive of holidays observed by the cleaning company and Saturdays andSundays.

 

A.            OFFICE AREAS

 

Cleaningand janitorial services to be provided in the office areas shall include:

 

1.             Vacuuming, damp mopping ofresilient floors and trash removal.

 

2.             Dusting of horizontalsurfaces within normal reach (tenant equipment to remain in place).

 

3.             High dusting and dusting ofvertical blinds to be rendered as needed.

 

B.            LAVATORIES

 

Cleaningand janitorial services to be provided in the common area lavatories of thebuilding shall include:

 

1.             Dusting, damp mopping ofresilient floors, trash removal, sanitizing of basins, bowls and urinals aswell as cleaning of mirrors and bright work.

 

2.             Refilling of soap, towel,tissue and sanitary dispensers to be rendered as necessary.

 

3.             High dusting to be renderedas needed.

 

C.            MAIN LOBBIES, ELEVATORS,STAIRWELLS AND COMMON CORRIDORS

 

Cleaningand janitorial services to be provided in the common areas of the buildingshall include:

 

1.             Trash removal, vacuuming,dusting and damp mopping of resilient floors and cleaning and sanitizing ofwater fountains.

 

2.             High dusting to be renderedas needed.

 

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D.            WINDOW CLEANING

 

Allexterior windows shall be washed on the inside and outside surfaces atfrequency necessary to maintain a first class appearance.

 

II.            HVAC

 

A.            Heating, ventilating and airconditioning equipment will be provided with sufficient capacity to accommodatea maximum population density of one (1) person per one hundred fifty (150)square feet of useable floor area served, and a combined lighting and standardelectrical load of 3.0 watts per square foot of useable floor area. In theevent Tenant introduces into the Premises personnel or equipment whichoverloads the system’s ability to adequately perform its proper functions,Landlord shall so notify Tenant in writing and supplementary system(s) maybe required and installed by Landlord at Tenant’s expense, if within fifteen(15) days Tenant has not modified its use so as not to cause such overload.

 

Operatingcriteria of the basic system are in accordance with the Massachusetts EnergyCode and shall not be less than the following:

 

(i)            Cooling season indoor temperatures of not in excessof 73 - 79 degrees Fahrenheit when outdoor temperatures are 91 degreesFahrenheit ambient.

 

(ii)           Heating season minimum room temperature of 68 - 75degrees Fahrenheit when outdoor temperatures are 6 degrees Fahrenheit ambient.

 

B.            Landlord shall provideheating, ventilating and air conditioning as normal seasonal changes mayrequire during the hours of 8:00 a.m. to 6:00 p.m., Monday throughFriday (legal holidays in all cases excepted).

 

IfTenant shall require air conditioning (during the air conditioning season) orheating or ventilating during any other time period, Landlord shall uselandlord’s best efforts to furnish such services for the area or areasspecified by written request of Tenant delivered to the Building Superintendentor the Landlord before 3:00 p.m. of the business day preceding the extrausage. Landlord shall charge Tenant for such extra-hours usage at reasonablerates customary for first-class office buildings in the Boston Suburban market,and Tenant shall pay Landlord, as additional rent, upon receipt of billingtherefor.

 

III.           ELECTRICAL SERVICES

 

A.            Landlord shall provideelectric power for a combined load of 3.0 watts per square foot of useable areafor lighting and for office machines through standard receptacles for thetypical office space.

 

2

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B.            In the event that Tenant hasspecial equipment (such as computers and reproduction equipment) that requireseither 3-phase electric power or any voltage other than 120 volts, or for anyother usage in excess of 3.0 watts per square foot, Landlord may at its optionrequire the installation of separate metering (Tenant being solely responsiblefor the costs of any such separate meter and the installation thereof) anddirect billing to Tenant for the electric power required for any such specialequipment.

 

C.            Landlord will furnish andinstall, at Tenant’s expense, all replacement lighting tubes, lamps andballasts required by Tenant. Landlord will clean lighting fixtures on aregularly scheduled basis at Tenant’s expense.

 

IV.           ELEVATORS

 

Providepassenger elevator service.

 

V.            WATER

 

Providehot water for lavatory purposes and cold water for drinking, lavatory andtoilet purposes.

 

VI.           CARD ACCESS SYSTEM

 

Landlordwill provide a card access system at one entry door of the building.

 

3

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EXHIBIT D

 

BUILDING SIGNAGE AND MONUMENT SIGNAGE

 

 

1

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EXHIBIT E

 

FLOOR PLANS

 

1

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2

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3

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4

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EXHIBIT F

 

THIRD FLOOR EXPANSION PREMISES AND EAST WING EXPANSION PREMISES

 

1

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1

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2

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EXHIBIT G

 

DECLARATION AFFIXING THE COMMENCEMENT

DATE OF LEASE

 

THISAGREEMENT made this          day of                              ,2010, by and between **BOSTON PROPERTIESLIMITED PARTNERSHIP** (hereinafter “Landlord”) and **A123 SYSTEMS, INC.**(hereinafter “Tenant”).

 

W I T N E S S E T H T H A T:

 

1.             This Agreement is made pursuant toSection 3.1 of that certain Lease dated [***date***], between Landlord and Tenant (the “Lease”).

 

2.             It is hereby stipulated that theLease Term commenced on [***commencementdate***], (being the “Commencement Date” under the Lease), andshall end and expire on [***expirationdate***], unless sooner terminated or extended, as provided for inthe Lease.

 

WITNESSthe execution hereof under seal by persons hereunto duly authorized, the datefirst above written.

 
|    |                              | LANDLORD:                              |
|---------|-----------------------------------|----------------------------------------|
|    |                              |                                   |
|    |                              | BOSTON  PROPERTIES LIMITED PARTNERSHIP |
|    |                              |                                   |
|    |                              | By:                                    | Boston  Properties, Inc., its general partner |
|    |                              |                                   |   |
|    |                              |                                   | By: |   |
|    |                              |                                   | Name: |   |
|    |                              |                                   | Title: |   |
|    |                              |                                   |
|    |                              | TENANT:                                |
|    |                              |                                   |
| ATTEST: |                              | A123  SYSTEMS, INC.               |
|    |                              |                                   |
| By:     |                              |                                   | By: |   |
| Name:   |                              |                                   | Name: |   |
| Title:  | Secretary  or Assistant Secretary |                                   | Title: | President  or Vice President |
|    |                              |                                   | Hereunto  duly authorized |
|    |                              |                                   |
|    |                              | By:                                    |   |
|    |                              | Name:                                  |   |
|    |                              | Title:                                 | Treasurer  or Assistant Treasurer |
|    |                              |                                   | Hereunto  duly authorized |
|         |                                   |                                        |  |  |  |  |

 

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EXHIBIT H

 

BROKER DETERMINATION OF PREVAILING MARKET RENT

 

Wherein the Lease to which this Exhibit is attached provision is made for aBroker Determination of Prevailing Market Rent, the following procedures andrequirements shall apply:

 

1.             Tenant’s Request.  Tenant shall send a notice to Landlord by thetime set for such notice in the applicable section of the Lease, requesting aBroker Determination of the Prevailing Market Rent, which notice to beeffective must (i) make explicit reference to the Lease and to thespecific section of the Lease pursuant to which said request is being made,(ii) include the name of a broker selected by Tenant to act for Tenant,which broker shall be affiliated with a major commercial real estate brokeragefirm selected by Tenant and which broker shall have at least ten(10) years experience dealing in properties of a nature and type generallysimilar to the Building located in the Central Suburban 128 Market, and(iii) explicitly state that Landlord is required to notify Tenant withinthirty (30) days of an additional broker selected by Landlord.

 

2.             Landlord’s Response.  Within thirty (30) days after Landlord’sreceipt of Tenant’s notice requesting the Broker Determination and stating thename of the broker selected by Tenant, Landlord shall give written notice toTenant of Landlord’s selection of a broker having at least the affiliation andexperience referred to above.

 

3.             Selection of Third Broker.  Within ten (10) days thereafter the two(2) brokers so selected shall select a third such broker (the “ThirdBroker”) also having at least the affiliation and experience referred to above,provided, as a further qualification, that the Third Broker shall not be anindividual who is then under contract to represent either Landlord or Tenant.

 

4.             Rental Value Determination.  Within thirty (30) days after the selectionof the Third Broker, the three (3) brokers so selected, by majorityopinion, shall make a determination of the annual fair market rental value ofthe Premises for the period referred to in the Lease. Such annual fair marketrental value determination (i) shall require rent to commence upon thecommencement of the period in question, and may include provision for annualincreases in rent during said term if so determined, (ii) shall take intoaccount the as-is condition of the Premises and the amount, if any, thatLandlord will be making available to Tenant as a leasehold improvementsallowance, as specified in Landlord’s rent quotation as set forth in the Lease,(iii) shall take account of, and be expressed in relation to, theapplicable tax and operating cost bases expressly set forth in the Lease andprovisions for paying for so-called tenant electricity as contained in theLease and (iv) shall take into account all relevant factors as determinedby the brokers. The brokers shall advise Landlord and Tenant in writing by theexpiration of said thirty (30) day period of the annual fair market rentalvalue which as so determined shall be referred to as the Prevailing MarketRent.

 

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5.             Resolution of BrokerDeadlock.  If theBrokers are unable by the expiration of such thirty (30) day period to agree atleast by majority on a determination of annual fair market rental value, thenthe brokers designated by Landlord and Tenant shall submit their individualdeterminations of fair market rental value to the Third Broker within five(5) days after the expiration of such thirty (30) day period and the ThirdBroker shall select from these two individual determinations the one closest tothe Third Broker’s own individual determination of fair market rental value,and the determination so selected shall constitute and be referred to as thePrevailing Market Rent.

 

6.             Costs.  Each party shall pay the costs and expensesof the broker selected by it and each shall pay one half (1/2) of the costs andexpenses of the Third Broker.

 

7.             Failure to Select Broker orFailure of Broker to Serve.  If Tenant shall have requested a BrokerDetermination and Landlord shall not have designated a broker within the timeperiod provided therefor above, then Tenant’s Broker shall alone make thedetermination of Prevailing Market Rent in writing to Landlord and Tenantwithin thirty (30) days after the expiration of Landlord’s right to designate abroker hereunder. If Tenant and Landlord have both designated brokers but thetwo brokers so designated do not, within a period of fifteen (15) days afterthe appointment of the second broker, agree upon and designate the Third Brokerwilling so to act, the Tenant, the Landlord or either broker previouslydesignated may request the Boston Bar Association (or such organization as maysucceed to the Boston Bar Association) to designate the Third Broker willing soto act and a broker so appointed shall, for all purposes, have the samestanding and powers as though he had been seasonably appointed by the brokersfirst appointed. In case of the inability or refusal to serve of any persondesignated as a broker, or in case any broker for any reason ceases to be such,a broker to fill such vacancy shall be appointed by the Tenant, the Landlord,the brokers first appointed or the Boston Bar Association as the case may be,whichever made the original appointment, or if the person who made the originalappointment fails to fill such vacancy, upon application of any broker whocontinues to act or by the Landlord or Tenant such vacancy may be filled by theBoston Bar Association and any broker so appointed to fill such vacancy shall havethe same standing and powers as though originally appointed.

 

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EXHIBIT I

 

FORM OF LETTER OF CREDIT

 
| BENEFICIARY: | ISSUANCE  DATE:                                                                                                                                                                  |
|--------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|         |                                                                                                                                                                             |
|         |                         20      |
|         |                                                                                                                                                                             |
|         | IRREVOCABLE  STANDBY LETTER OF CREDIT NO.                                                                                                                                        |
|         |                                                                                                                                                                             |
| APPLICANT:   | MAXIMUM/AGGREGATE  CREDIT AMOUNT: US$                                                                                                                                            |
|         | USD:                                                                                                                                                                             |

 

LADIESAND GENTLEMEN:

 

Wehereby establish our irrevocable letter of credit in your favor for account ofthe applicant up to an aggregate amount not to exceed                                            and     /100 US Dollars (US$                                              )available by your draft(s) drawn on ourselves at sight accompanied by:

 

Yourstatement, signed by a purportedly authorized officer/official certifying thatthe Beneficiary is entitled to draw upon this Letter of Credit (in the amountof the draft submitted herewith) pursuant to the Lease (the “Lease”) dated                              by and between                             ,as Landlord, and                                        ,as Tenant, together with the original copy of this Letter of Credit and anyamendments thereto which have been accepted by you.

 

Draft(s) mustindicate name and issuing bank and credit number and must be presented at thisoffice.

 

Youshall have the right to make partial draws against this Letter of Credit, fromtime to time.

 

ThisLetter of Credit shall expire at our office on                      , 200   (the “StatedExpiration Date”). It is a condition of this Letter of Credit that the StatedExpiration Date shall be deemed automatically extended without amendment forsuccessive one (1) year period s from such Stated Expiration Date, unless atleast forty-five (45) days prior to such Stated Expiration Date ) (or anyanniversary thereof) we shall send you written notice at the address specifiedin this Letter of Credit (or at such other address of which you may havenotified us in writing) and the Applicant in writing by registered mail (returnreceipt) or overnight courier that we elect not to consider this Letter ofCredit extended for any such additional one (1) year period.

 

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ThisLetter of Credit is transferable at any time and from time to time without costto Beneficiary. JP Morgan Chase Bank only is authorized to act as theTransferring Bank. We shall not recognize any transfer of this Letter of Credituntil this original Letter of Credit together with any amendments and a signedand completed transfer form, attached hereto, is received by us. Thecorrectness of the signature and title of the person signing the transfer formsmust be verified by Beneficiary’s bank. In case of any transfer of this Letterof Credit, the draft and any required statement must be executed by theTransferee. This Letter of Credit may not be transferred to any person withwhich U.S. persons are prohibited from doing business under U.S. Foreign assetscontrol regulations or other applicable U.S. Laws and Regulations.

 

Ourcustomary and reasonable charges to transfer this Letter of Credit shall be forthe Applicant’s account.

 

Exceptas otherwise expressly stated herein, this Letter of Credit is subject to the “InternationalStandby Practice, International Chamber of Commerce, Publication No. 590.”

 

ThisLetter of Credit shall be governed by, and construed in accordance with thelaws of the state of New York, without regard to principles of conflict oflaws.

 

2

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EXHIBIT J

 

FORM OF NOTICE OF LEASE

 

**NOTICE OF LEASE**

 

Pursuantto Section 4 of Chapter 183 of the General Laws of Massachusetts, asamended, notice is hereby given of the following described lease (the “Lease”).Capitalized terms used, but not defined, in this Notice of Lease shall have therespective meanings given to them in the Lease.

 
| LANDLORD:                         |   | Boston  Properties Limited Partnership, a Delaware limited partnership                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
|-----------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| TENANT:                           |   | A123  Systems, Inc., a                        corporation                                                                                                                                                                                                                                                                                                                                                                                                                                          |
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| LEASE  EXECUTION DATE:            |   |                                        ,  2010                                                                                                                                                                                                                                                                                                                                                           |
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| PREMISES  AND EXPANSION PREMISES: |   | The  Initial Premises consists of a portion of the first (1st), second (2nd) and  third (3rd) floors of the Building, comprising 87,924 rentable square feet,  in accordance with the floor plans annexed to the Lease as Exhibit E and  incorporated therein by reference, as further defined and limited in  Section 2.1 of the Lease. The Building is known as and numbered 200 West  Street and is situated on that certain parcel of land located in Waltham,  Middlesex County, Massachusetts, being more particularly described in  Exhibit A attached hereto (the “Site”). |
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| TERM:                             |   | The  period commencing on the Commencement Date (as defined in the Lease) and  ending on the last day of the one hundred twentieth (120th) full calendar  month immediately following the Commencement Date.                                                                                                                                                                                                                                                                                                                                                                                                |
|                              |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| TENANT’S  EXTENSION OPTIONS: |   | Tenant  has the right to extend the term of the Lease for one (1) period of five  (5) years, as provided in and on the terms set forth in Section 3.2 of  the Lease.                                                                                                                                                                                                                                                                                                                                                                                                                              |

 

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| TENANT’S  EXPANSION OPTIONS:    |   | As  more particularly described in, and subject to the terms of, the Lease,  Tenant shall have the right to expand into certain space located on the third  (3rd) and fourth (4th) floors of the east wing of the Building.                                                                                                                                                                                                                                              |
|--------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| TENANT’S  RIGHT OF FIRST OFFER: |   | As  more particularly described in, and subject to the terms of, the Lease, prior  to accepting any offer to lease Available ROFO Space to a third party other  than a third party with Prior Rights, Landlord will first offer such  available ROFO Space to Tenant. Available ROFO Space consists of any office  space in the Building, which, from time to time during the Lease Term,  becomes “available for reletting”, as further defined in the Lease. |

 

ThisNotice of Lease has been executed merely to give notice of the Lease, and allof the terms, conditions and covenants thereof which are incorporated herein byreference. The parties do not intend this Notice of Lease to modify or amendthe terms, conditions and covenants of the Lease.

 

[Signature Page Follows.]

 

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EXECUTEDUNDER SEAL as of the date first above-written.

 

 
|   | LANDLORD:                              |
|--------|----------------------------------------|
|   |                                   |
|   | BOSTON  PROPERTIES LIMITED PARTNERSHIP |
|   |                                   |
|   | By:                                    | Boston  Properties, Inc., |
|   |                                   | its  general partner |
|   |                                   |   |
|   |                                   |   |
|   |                                   | By: |   |
|   |                                   | Name: |   |
|   |                                   | Title: |   |
|   |                                   |
|   |                                   |
|   | TENANT:                                |
|   |                                   |
|   | A123  SYSTEMS, INC.               |
|   |                                   |
|   |                                   |
|   | By:                                    |   |
|   | Name:                                  |   |
|   | Title:                                 | President  or Vice President |
|   |                                   | Hereunto  duly authorized |
|   |                                   |
|   |                                   |
|   | By:                                    |   |
|   | Name:                                  |   |
|   | Title:                                 | Treasurer  or Assistant Treasurer |
|   |                                   | Hereunto  duly authorized |
|   |                                   |

 

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**COMMONWEALTH OF MASSACHUSETTS**

 

                           ,ss.

 

Onthis            day of                      ,2010, before me, the undersigned notary public, personally appeared                              ,proved to me through satisfactory evidence of identification, which was                                      ,to be the person whose name is signed on the preceding or attached document,and acknowledged to me that he/she signed it voluntarily for its statedpurpose, as                              of A123 Systems, Inc.

 
|   |           |
|--------|----------------|
|   | Notary  Public |
|   | [Seal]         |

 

**COMMONWEALTH OF MASSACHUSETTS**

 

                                       ,ss.

 

Onthis            day of                      ,2010, before me, the undersigned notary public, personally appeared                              ,proved to me through satisfactory evidence of identification, which was                                      ,to be the person whose name is signed on the preceding or attached document,and acknowledged to me that he/she signed it voluntarily for its statedpurpose, as                              of Boston Properties, Inc., the general partner of Boston PropertiesLimited Partnership.

 
|   |           |
|--------|----------------|
|   | Notary  Public |
|   | [Seal]         |

 

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**EXHIBIT A TO NOTICE OF LEASE**

 

DESCRIPTION OF SITE

 

Acertain parcel of land of West Street, Waltham, Middlesex County, as shown on aplan entitled “Atwater Lane, A Subdivision in Waltham, MA, Middlesex County,Lot Layout Plan,” dated July 22, 1988, recorded with Middlesex SouthRegistry of Deeds as Plan #6 of 1989 in Book 19575, Page 351, and shownthereon as Lot A, containing 142,769± square feet, according to said plan, andLot B, containing 501,550± square feet, according to said plan, and the parcelof land shown on said plan as Atwater Lane.

 

SaidLots A and B consist of the following:

 

PARCELI:

 

Acertain parcel of land situate on First Avenue and West Street, Waltham, MiddlesexCounty, Massachusetts, and shown as Lots 13 and 14 on Plan entitled “Plan ofLand in Waltham, Mass.,” dated August 31, 1962, revised October 26,1962 and October 30, 1962, by Raymond C. Pressey, Inc., RegisteredLand Surveyors, recorded as Plan No. 10 of 1963 in Book 10196,Page 40, bounded and described as follows:

 
| NORTHEASTERLY |   | by  the End of First Avenue by two lines measuring respectively forty-seven and  50/100 feet and seven and 53/100 feet;                                                                 |
|---------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|          |   |                                                                                                                                                                                    |
| NORTHWESTERLY |   | by  other land of the Grantors herein three hundred eighty-seven and 17/100 feet;                                                                                                       |
|          |   |                                                                                                                                                                                    |
| WESTERLY      |   | by  land now or formerly of United Electric Controls Company by two lines  measuring respectively one hundred seventy and 51/100 feet and five hundred  and twenty-one and 92/100 feet; |
|          |   |                                                                                                                                                                                    |
| NORTHEASTERLY |   | by  the same by a curved line measuring seventy-six and 05/100 feet;                                                                                                                    |
|          |   |                                                                                                                                                                                    |
| NORTHEASTERLY |   | by  the same by two lines measuring respectively one hundred forty-one and 17/100  feet and one hundred seventy feet;                                                                   |
|          |   |                                                                                                                                                                                    |
| WESTERLY      |   | by  West Street by two lines measuring respectively forty-five and 26/100 feet  and eleven and 16/100 feet;                                                                             |

 

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| SOUTHWESTERLY               |   | by  the line between Weston and Waltham and land believed to be now or formerly  of Ralph P. Hussey three hundred twenty-eight and 28/100 feet; |
|-----------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------|
|                        |   |                                                                                                                                            |
| SOUTHERLY                   |   | by  land of owners unknown one hundred four and 77/100 feet;                                                                                    |
|                        |   |                                                                                                                                            |
| WESTERLY                    |   | by  the same forty-eight and 80/100 feet;                                                                                                       |
|                        |   |                                                                                                                                            |
| SOUTHWESTERLY               |   | by  said line between Weston and Waltham, and land believed to be now or formerly  of said Hussey one hundred eighty-one and 61/100 feet;       |
|                        |   |                                                                                                                                            |
| SOUTHERLY                   |   | by  land believed to be now of formerly of Frederick C. Dumaine Jr. and another  one hundred seventeen and 30/100 feet;                         |
|                        |   |                                                                                                                                            |
| NORTHWESTERLY               |   | by  the same forty-four and 80/100 feet;                                                                                                        |
|                        |   |                                                                                                                                            |
| SOUTHWESTERLY               |   | by  said line between Weston and Waltham and other land of the Grantors herein  one hundred fifty four feet;                                    |
|                        |   |                                                                                                                                            |
| SOUTHEASTERLY  and EASTERLY |   | by  other land of the Grantors herein by two lines measuring respectively four  hundred ten and 53/100 feet and seventy-three feet;             |
|                        |   |                                                                                                                                            |
| NORTHERLY                   |   | by  land now or formerly of David Burstein et al., Trustees, one hundred sixteen  and 14/100 feet;                                              |
|                        |   |                                                                                                                                            |
| SOUTHEASTERLY               |   | by  the same two hundred ninety-one and 99/100 feet;                                                                                            |
|                        |   |                                                                                                                                            |
| NORTHEASTERLY               |   | by  the same three hundred fifty-five and 99/100 feet;                                                                                          |
|                        |   |                                                                                                                                            |
| SOUTHEASTERLY               |   | by  the same five hundred forty-eight and 31/100 feet.                                                                                          |

 

Containing397,490 square feet of land, according to said plan.

 

PARCELII:

 

Theparcel of land on West Street, Waltham, Middlesex County, Massachusetts, shownas Lot E containing 2.37 acres on a plan by Raymond C. Pressey, Inc.,Registered Land Surveyors, dated 1 October 1965 recorded as PlanNo. 1339 of 1965 in Book 10961, Page 438, and bounded and describedaccording to said plan as follows:

 

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| WESTERLY  |   | in  a curved line by West Street two hundred twenty-one and 05/100 (221.05) feet;                                                                                                                                                                           |
|-----------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                                                                                                                                                        |
| NORTHERLY |   | by  land of Leland L. Crowell and of Clifford Griggs, two hundred four and 98/100  (204.98) feet, and by Lot “A” on Plan No. 1530 of 1960 (being the second  parcel herein described) two hundred seventy-five and 40/100ths (275.40)  feet; |
|      |   |                                                                                                                                                                                                                                                        |
| EASTERLY  |   | by  Lot 13 on Plan 10 of 1963, Book 10196, Page 40, two hundred twenty-three  (223) feet; and                                                                                                                                                          |
|      |   |                                                                                                                                                                                                                                                        |
| SOUTHERLY |   | by  Lot D, being remaining land of the Grantor, four hundred forty-eight and  35/100ths (448.35) feet.                                                                                                                                                      |

 

Also,the parcel of land situated in Waltham, Middlesex County, Massachusetts, andshown as Lot A on plan entitled “Plan of Land in Waltham, Mass.” datedJune 29, 1960, by Raymond C. Pressey, Inc. recorded with said Deedsas Plan No. 1530 of 1960, Book 9693, Page 417, bounded and described asfollows:

 
| SOUTHERLY |   | by  Lot B on said Plan, two hundred seventy-five and 40/100 feet;                            |
|-----------|--------|----------------------------------------------------------------------------------------------|
|      |   |                                                                                         |
| WESTERLY  |   | by  land now or formerly, of Clifford Griggs, two hundred ten and no/100 feet;               |
|      |   |                                                                                         |
| NORTHERLY |   | by  land of Trustees of Waltham Properties Trust two hundred fifty-two and no/100  feet; and |
|      |   |                                                                                         |
| EASTERLY  |   | by  the same, one hundred seventy and 51/100 feet.                                           |

 

Containing49,400 square feet of land, according to said plan.

 

PARCELIII:

 

Theparcel of land on West Street, Waltham, Middlesex County, Massachusetts, shownas Lot D containing 3 acres on a plan by Raymond C. Pressey, Inc.,Registered Land Surveyors, dated 1 October 1965, recorded in MiddlesexSouth District Deeds in Book 10961, Page 438, and bounded and describedaccording to said plan as follows:

 
| WESTERLY |   | in  a curved line by West Street, three hundred fifty-one and 70/100ths (351.70)  feet; |
|----------|--------|-----------------------------------------------------------------------------------------|

 

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| NORTHERLY |   | by  Lot E, being land owned now or formerly by Little, Brown and Company (Inc),  four hundred forty eight and 35/100ths (448.35) feet; |
|-----------|--------|----------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                                   |
| EASTERLY  |   | by  Lot 13 on Plan 10 of 1963, Book 10196, Page 40, two hundred ninety-eight  and 92/100ths (298.92) feet;                        |
|      |   |                                                                                                                                   |
| EASTERLY  |   | by  the same in a curved line, seventy-six and 5/100ths (76.05) feet;                                                                  |
|      |   |                                                                                                                                   |
| SOUTHERLY |   | by  Lot 14 on Plan 10 of 1963, Book 10196, Page 40, three hundred eleven and  17/100ths (311.17) feet.                            |

 

TOGETHERWITH THE FOLLOWING APPURTENANT RIGHTS:

 

Rightto use twenty-foot wide utility easement as recited in deed datedAugust 12, 1960, recorded in Book 9693, Page 417.

 

Rightto use twenty-foot wide utility easement as recited in deed datedAugust 12, 1960, recorded in Book 9693, Page 420.

 

Easementreserved in Grant of Right and Easement for ten-foot wide water main datedSeptember 8, 1980, recorded in Book 14118, Page 227.

 

Rightto tie-in to water line as recited in Easement Agreement dated June 12,1996, recorded in Book 26436, Page 15.

 

8

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EXHIBIT K

 

SITE PLAN

 

1

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EXHIBIT L

 

FORM OF CERTIFICATE OFINSURANCE

 

1

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2

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EXHIBIT M

 

PRIOR RIGHTS

 
| **Tenant**     | ** ** | **RSF** | ** ** | **LED**   | ** ** | **Renewal Option** | ** ** | **ROFO** | ** ** |
|----------------|------------|---------|------------|-----------|------------|--------------------|------------|----------|------------|
|           |       |    |       |      |       |               |       |     |       |
| Click  Squared |       | 8,652   |       | 8/31/2011 |       | None               |       | None     |       |

 

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EXHIBIT N

 

TENANT’S OPERATIONAL EQUIPMENT

 

1

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