**Exhibit 10.2**

 

**FLANDERS 155 LLC**

 

**155 Flanders Road**

 

**Westborough, Massachusetts**

 

**Lease to**

 

**A123 SYSTEMS, INC.**

 

THESUBMISSION OF THIS LEASE FOR EXAMINATION, REVIEW, NEGOTIATION AND/OR SIGNATURESHALL NOT CONSTITUTE AN OFFER OR AN OPTION TO LEASE OR A RESERVATION OF THEPREMISES AND IS SUBJECT TO WITHDRAWAL OR MODIFICATION AT ANY TIME BY EITHERPARTY.  THIS LEASE SHALL BECOME EFFECTIVEAND BINDING ONLY IF AND WHEN IT SHALL BE EXECUTED AND DELIVERED BY BOTHLANDLORD AND TENANT.

 

----

 

**Table Of Contents By Articles AndSections**

 
| **ARTICLE**                                                                      | ** ** | **SECTION** | ** **                              | **PAGE**   |
|----------------------------------------------------------------------------------|------------|-------------|-----------------------------------------|------------|
| ** **                                                                       | ** ** | ** **  | ** **                              | ** ** |
| ARTICLE 1  Reference Data and Definitions                                   |       | 1           |
|                                                                             |       |        |
|                                                                             |       | 1.01        | Reference Data                          |       | 1 |
|                                                                             |       | 1.02        | General Provisions                      |       | 3 |
|                                                                             |       | 1.03        | Terms Defined                           |       | 4 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 2  Premises                                                         |       | 11          |
|                                                                             |       |        |
|                                                                             |       | 2.01        | Premises                                |       | 11 |
|                                                                             |       | 2.02        | Appurtenances                           |       | 11 |
|                                                                             |       | 2.03        | Reservations By Landlord                |       | 11 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 3  Term                                                             |       | 11          |
|                                                                             |       |        |
|                                                                             |       | 3.01        | Term Commencement                       |       | 11 |
|                                                                             |       | 3.02        | Termination                             |       | 11 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 4  Rent                                                             |       | 12          |
|                                                                             |       |        |
|                                                                             |       | 4.01        | Basic Rent                              |       | 12 |
|                                                                             |       | 4.02        | Computation of Basic Rent               |       | 12 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 5  Use of Premises                                                  |       | 12          |
|                                                                             |       |        |
|                                                                             |       | 5.01        | Use Restricted                          |       | 12 |
|                                                                             |       | 5.02        | Rules and Regulations              |       | 12 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 6  Taxes; Operating Expenses; Estimated Cost of Electrical Services |       | 12          |
|                                                                             |       |        |
|                                                                             |       | 6.01        | Expenses and Taxes                      |       | 12 |
|                                                                             |       | 6.02        | Annual Statement of Additional Rent Due |       | 13 |
|                                                                             |       | 6.03        | Monthly Payments of Additional Rent     |       | 13 |
|                                                                             |       | 6.04        | Accounting Periods                      |       | 13 |
|                                                                             |       | 6.05        | Abatement of Taxes                      |       | 13 |
|                                                                             |       | 6.06        | Electric and Gas Service                |       | 14 |
|                                                                             |       | 6.07        | Late Payment of Rent and Late Charges   |       | 14 |
|                                                                             |       | 6.08        | Tenant Audit Right                      |       | 15 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 7  Improvements, Repairs, Additions, Replacements                   |       | 16          |
|                                                                             |       |        |
|                                                                             |       | 7.01        | Preparation of the Premises             |       | 16 |
|                                                                             |       | 7.02        | Alterations and Improvements            |       | 16 |
|                                                                             |       | 7.03        | Maintenance By Tenant                   |       | 18 |
|                                                                             |       | 7.04        | Redelivery                              |       | 18 |
|                                                                             |       |        |                                    |       |   |
| ARTICLE 8  Landlord’s Obligations                                      |       | 18          |
|                                                                             |       |        |
|                                                                             |       | 8.01        | Maintenance By Landlord                 |       | 18 |

 

----

 
| **ARTICLE**                                                        | ** ** | **SECTION** | ** **                               | **PAGE**   |
|--------------------------------------------------------------------|------------|-------------|------------------------------------------|------------|
| ** **                                                         | ** ** | ** **  | ** **                               | ** ** |
|                                                               |       | 8.02        | Limitations on Landlord’s Liability |       | 19 |
|                                                               |       | 8.03        | Tenant’s Right to Self Help         |       | 19 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 9  Tenant’s Particular Covenants                 |       | 19          |
|                                                               |       |        |
|                                                               |       | 9.01        | Pay Rent                                 |       | 19 |
|                                                               |       | 9.02        | Occupancy of the Premises                |       | 19 |
|                                                               |       | 9.03        | Safety                                   |       | 20 |
|                                                               |       | 9.04        | Equipment                                |       | 20 |
|                                                               |       | 9.05        | Electrical Requirements                  |       | 20 |
|                                                               |       | 9.06        | Pay Taxes                                |       | 20 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 10  Requirements of Public Authority                  |       | 20          |
|                                                               |       |        |
|                                                               |       | 10.01       | Legal Requirements                       |       | 20 |
|                                                               |       | 10.02       | Contests                                 |       | 21 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 11  Covenant Against Liens                            |       | 22          |
|                                                               |       |        |
|                                                               |       | 11.01       | Mechanics’ Liens                    |       | 22 |
|                                                               |       | 11.02       | Right to Discharge                       |       | 22 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 12  Access to Premises                                |       | 22          |
|                                                               |       |        |
|                                                               |       | 12.01       | Access                                   |       | 22 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 13  Assignment and Subletting: Occupancy Arrangements |       | 23          |
|                                                               |       |        |
|                                                               |       | 13.01       | Subletting and Assignment                |       | 23 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 14  Indemnity                                         |       | 24          |
|                                                               |       |        |
|                                                               |       | 14.01       | Tenant’s Indemnity                  |       | 24 |
|                                                               |       | 14.02       | Landlord’s Liability                |       | 25 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 15  Insurance                                         |       | 25          |
|                                                               |       |        |
|                                                               |       | 15.01       | Liability Insurance                      |       | 25 |
|                                                               |       | 15.02       | Casualty Insurance                       |       | 25 |
|                                                               |       | 15.03       | Certificates                             |       | 25 |
|                                                               |       | 15.04       | Landlord Insurance                       |       | 26 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 16  Waiver of Subrogation                             |       | 26          |
|                                                               |       |        |
|                                                               |       | 16.01       | Waiver of Subrogation                    |       | 26 |
|                                                               |       | 16.02       | Waiver of Rights                         |       | 26 |
|                                                               |       |        |                                     |       |   |
| ARTICLE 17  Damage or Destruction                             |       | 26          |
|                                                               |       |        |
|                                                               |       | 17.01       | Damage by Fire, Casualty, Eminent Domain |       | 26 |

 

ii

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| **ARTICLE**                                                   | ** ** | **SECTION** | ** **                                                   | **PAGE** |
|---------------------------------------------------------------|------------|-------------|--------------------------------------------------------------|----------|
|                                                          |       |        |                                                         |     |
|                                                          |       | 17.02       | Restoration                                                  |     | 28 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 18  Eminent Domain                               |       | 28          |
|                                                          |       |        |
|                                                          |       | 18.01       | Total Taking                                                 |     | 28 |
|                                                          |       | 18.02       | Partial Taking                                               |     | 28 |
|                                                          |       | 18.03       | Awards and Proceeds                                          |     | 28 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 19  Quiet Enjoyment; Mortgagee’s Rights     |       | 29          |
|                                                          |       |        |
|                                                          |       | 19.01       | Landlord’s Covenant                                     |     | 29 |
|                                                          |       | 19.02       | Superiority of Lease: Option to Subordinate                  |     | 29 |
|                                                          |       | 19.03       | Notice to Mortgagee                                          |     | 29 |
|                                                          |       | 19.04       | Other Provisions Regarding Mortgagees                        |     | 29 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 20  Defaults; Events of Default                  |       | 30          |
|                                                          |       |        |
|                                                          |       | 20.01       | Defaults                                                     |     | 30 |
|                                                          |       | 20.02       | Extended Cure Period                                         |     | 30 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 21  Insolvency                                   |       | 31          |
|                                                          |       |        |
|                                                          |       | 21.01       | Insolvency                                                   |     | 31 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 22  Landlord’s Remedies; Damages on Default |       | 31          |
|                                                          |       |        |
|                                                          |       | 22.01       | Landlord’s Remedies                                     |     | 31 |
|                                                          |       | 22.02       | Surrender                                                    |     | 31 |
|                                                          |       | 22.03       | Right to Relet                                               |     | 31 |
|                                                          |       | 22.04       | Survival of Covenants                                        |     | 32 |
|                                                          |       | 22.05       | Right to Equitable Relief                                    |     | 33 |
|                                                          |       | 22.06       | Landlord’s Right to Self Help; Interest on Overdue Rent |     | 33 |
|                                                          |       | 22.07       | Payment of Landlord’s Cost of Enforcement               |     | 33 |
|                                                          |       | 22.08       | Further Remedies                                             |     | 33 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 23  Waivers; Landlord Default                    |       | 34          |
|                                                          |       |        |
|                                                          |       | 23.01       | No Waivers                                                   |     | 34 |
|                                                          |       | 23.02       | Landlord Default                                             |     | 34 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 24  Security Deposit                             |       | 34          |
|                                                          |       |        |
|                                                          |       | 24.01       | Security Deposit                                             |     | 34 |
|                                                          |       |        |                                                         |     |   |
| ARTICLE 25  General Provisions                           |       | 35          |
|                                                          |       |        |
|                                                          |       | 25.01       | Force Majeure                                                |     | 35 |
|                                                          |       | 25.02       | Notices and Communications                                   |     | 35 |

 

iii

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| **ARTICLE**                       | ** ** | **SECTION** | ** **                                              | **PAGE**   |
|-----------------------------------|------------|-------------|---------------------------------------------------------|------------|
| ** **                        | ** ** | ** **  | ** **                                              | ** ** |
|                              |       |        |                                                    |       |   |
|                              |       | 25.03       | Tenant Estoppel Certificate                             |       | 35 |
|                              |       | 25.04       | Governing Law                                           |       | 36 |
|                              |       | 25.05       | Partial Invalidity                                      |       | 36 |
|                              |       | 25.06       | Notice of Lease                                         |       | 36 |
|                              |       | 25.07       | Interpretation                                          |       | 36 |
|                              |       | 25.08       | Bind and Inure; Limitation of Landlord’s Liability |       | 36 |
|                              |       | 25.09       | Parties                                                 |       | 37 |
|                              |       |        |                                                    |       |   |
| ARTICLE 26  Miscellaneous    |       | 37          |
|                              |       |        |
|                              |       | 26.01       | Holdover                                                |       | 37 |
|                              |       | 26.02       | Reciprocal Litigation Costs                             |       | 37 |
|                              |       | 26.03       | Brokerage                                               |       | 37 |
|                              |       | 26.04       | Landlord’s Expenses Regarding Consents             |       | 37 |
|                              |       | 26.05       | Financial Statements                                    |       | 38 |
|                              |       | 26.06       | Signage                                                 |       | 38 |
|                              |       | 26.07       | Option to Extend Term                                   |       | 38 |
|                              |       | 26.08       | Tenant’s Option to Terminate                       |       | 39 |
|                              |       | 26.09       | Expansion; Right of First Offer                         |       | 39 |
|                              |       | 26.10       | HVAC                                                    |       | 41 |
|                              |       | 26.11       | Generator                                               |       | 42 |
|                              |       | 26.12       | LN2 Tank                                                |       | 42 |
|                              |       | 26.13       | Test Trailer                                            |       | 42 |
|                              |       | 26.14       | Patio                                                   |       | 42 |
|                              |       | 26.15       | Smoking Area                                            |       | 42 |
|                              |       | 26.16       | Loading                                                 |       | 42 |
|                              |       | 26.17       | Parking                                                 |       | 43 |
|                              |       | 26.18       | Roof                                                    |       | 43 |
|                              |       | 26.19       | Compliance with Laws                                    |       | 43 |
|                              |       | 26.20       | Environmental                                           |       | 43 |
|                              |       | 26.21       | Expedited Arbitration                                   |       | 43 |
|                              |       | 26.22       | Landlord Cooperation                                    |       | 45 |
|                              |       |        |                                                    |       |   |
| ARTICLE 27  Entire Agreement |       | 45          |
|                              |       |        |
|                              |       | 27.01       | Entire Agreement                                        |       | 45 |

 

iv

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**LEASE EXHIBITS**

 
| **Exhibit A:** |   | Legal  Description                                         |   | 47     |
|---------------------|--------|------------------------------------------------------------|--------|--------|
| ** **          |   |                                                       |   |   |
| **Exhibit B:** |   | Plan  Showing Tenant’s Space                          |   | 48     |
| ** **          |   |                                                       |   |   |
| **Exhibit C:** |   | Tenant  Allowance and Landlord’s Work Obligations     |   | 49     |
| ** **          |   |                                                       |   |   |
| **Exhibit D:** |   | Services  to be Provided by Landlord as Operating Expenses |   | 52     |
| ** **          |   |                                                       |   |   |
| **Exhibit E:** |   | Rules and  Regulations                                |   | 53     |
| ** **          |   |                                                       |   |   |
| **Exhibit F:** |   | Tenant  Estoppel Certificate                               |   | 55     |
| ** **          |   |                                                       |   |   |
| **Exhibit G:** |   | Agreement  of Subordination Nondisturbance and Attornment  |   | 58     |
| ** **          |   |                                                       |   |   |
| **Exhibit H:** |   | Certificate  of Vote                                       |   | 62     |
| ** **          |   |                                                       |   |   |
| **Exhibit I:** |   | Parking                                                    |   | 63     |
| ** **          |   |                                                       |   |   |
| **Exhibit J:** |   | Trash  Removal                                             |   | 64     |
| ** **          |   |                                                       |   |   |
| **Exhibit K:** |   | Tenant  Improvement Plans                                  |   | 65     |

 

v

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**LEASE**

 

**STANDARD FORM**

 

THISLEASE by and between FLANDERS 155 LLC, a Massachusetts limited liabilitycompany, (“Landlord”) having a principal place of business at 116 FlandersRoad, Suite 2000, Westborough, Massachusetts 01581, and A123 SYSTEMS, INC., aduly organized and existing Delaware corporation (“Tenant”) having a principalplace of business at 321 Arsenal Street, Watertown, Massachusetts 02472 (TenantAddress).

 

**WI T N E S S E T H :**

 

**ARTICLE 1********Reference Data and Definitions**

 

**1.01****       ****ReferenceData**

 
| LANDLORD:                                        |   | Flanders  155 LLC                                                                                                           |
|--------------------------------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------|
|                                             |   |                                                                                                                        |
| LANDLORD’S  REPRESENTATIVE:                 |   | Mr.  Marc R. Verreault  Senior Vice President, Finance  Flanders 155 LLC                                                    |
|                                             |   |                                                                                                                        |
| LANDLORD’S  ADDRESS:  (FOR PAYMENT OF RENT) |   | Flanders  155 LLC  116 Flanders Road, Suite 2000  Westborough, Massachusetts 01581                                          |
|                                             |   |                                                                                                                        |
| LANDLORD’S  ADDRESS   (FOR NOTICE):         |   | Mr.  Christopher F. Egan and  Mr. Marc R. Verreault  Flanders 155 LLC  116 Flanders Road, Suite 2000  Westborough, MA 01581 |
|                                             |   |                                                                                                                        |
| With a copy to:                   |   | Joseph  Jenkins, Esquire  116 Flanders Road, Suite 1100  Westborough, MA 01581                                              |
|                                             |   | Telephone:                                                                                                                  | 508-898-3900 |
|                                             |   | Facsimile:                                                                                                                  | 508-898-9777 |
|                                             |   |                                                                                                                        |
| LANDLORD’S  PHONE NUMBER:                   |   | 508-898-3800                                                                                                                |

 

1

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| LANDLORD’S  FACSIMILE NUMBER:            |       | 508-898-3005                                                                        |
|-----------------------------------------------|------------|-------------------------------------------------------------------------------------|
|                                          |       |                                                                                |
| TENANT:                                       |       | A123  Systems, Inc.                                                                 |
|                                          |       |                                                                                |
| TENANT’S  ADDRESS:                       |       | A123  Systems, Inc.  321 Arsenal Street  Watertown, MA 02472  Attn: General Counsel |
|                                          |       | Telephone:                                                                          | 617-778-5700 |
|                                          |       | Facsimile:                                                                          | 617-924-8910 |
|                                          |       |                                                                                |
| With a copy to:      |       | Wilmer  Cutler Pickering Hale and Dorr LLP  60 State Street  Boston, MA 02109       |
|                                          |       | Telephone:                                                                          | 617-526-6000 |
|                                          |       | Facsimile:                                                                          | 617-526-5000 |
|                                          |       | Email:  paul.jakubowski@wilmerhale.com                                         |
|                                          |       |                                                                                |
| TENANT’S  REPRESENTATIVE:                |       | John  Pinho, Director of Facilities                                                 |
|                                          |       |                                                                                |
| PREMISES:                                     |       | The  portion of the Building shown on Exhibit B attached hereto.               |
|                                          |       |                                                                                |
| RENTABLE  AREA  OF PREMISES:                  | ** ** | 66,863  Square Feet.                                                                |
|                                          | ** ** | ** **                                                                          |
| RENTABLE  AREA  OF THE BUILDING:              | ** ** | 88,983  Square Feet.                                                                |
|                                          | ** ** | ** **                                                                          |
| TERM  COMMENCEMENT DATE:                      |       | The  Term Commencement Date shall be as defined in Section 7.01.                    |
|                                          |       |                                                                                |
| BASIC  RENT COMMENCEMENT DATE:                |       | The  Basic Rent Commencement Date shall be February 1, 2011.                        |
|                                          |       |                                                                                |
| STATED  EXPIRATION  DATE:                     |       | The  Stated Expiration Date shall be January 31, 2021.                              |

 

2

----

 
| BASIC  RENT: |   | SEE  SCHEDULE BELOW: |
|--------------|--------|----------------------|

 
| **FROM**                   | ** ** | **TO**             | ** ** | **MONTHLY RENT** | ** ** | **ANNUAL RENT** | ** ** |
|----------------------------|------------|--------------------|------------|-----------------------|------------|----------------------|------------|
| The Term Commencement Date |       | January  31, 2011  |       | $                     | 0.00       |                 | $          | 0.00 |   |
| February 1, 2011           |       | December  31, 2015 |       | $                     | 33,425.00  |                 | $          | 401,100.00 |   |
| January 1, 2016            |       | January  31, 2021  |       | $                     | 38,995.83  |                 | $          | 467,950.00 |   |

 
| TENANT’S  SHARE: |   | 75.24%                                                                                                                                                                                                                                                                                 |
|-----------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                  |   |                                                                                                                                                                                                                                                                                   |
| GUARANTOR:            |   | None                                                                                                                                                                                                                                                                                   |
|                  |   |                                                                                                                                                                                                                                                                                   |
| PERMITTED  USES:      |   | Research  and development, design, fabrication, component assembly, installation and  testing of electric hybrid automotive and power solutions and  administrative/general office use, warehousing, distribution and other lawful  uses related to Tenant’s business operations. |
|                  |   |                                                                                                                                                                                                                                                                                   |
| SECURITY  DEPOSIT:    |   | $155,983.32                                                                                                                                                                                                                                                                            |

 

**1.02****       ****GeneralProvisions.**

 

Forall purposes of the Lease unless otherwise expressed and provided herein ortherein or unless the context otherwise requires:

 

(a)           The words herein,hereof, hereunder and other words of similar import refer to theLease as a whole and not to any particular article, section or othersubdivision of this Lease.

 

(b)           A pronoun inone gender includes and applies to the other gender as well.

 

(c)           Each definitionstated in Section 1.01 or 1.03 of this Lease applies equally to the singularand the plural forms of the term or expression defined.

 

(d)           Any referenceto a document defined in Section 1.03 of this Lease is to such document asoriginally executed, or, if modified, amended or supplemented in accordancewith the provisions of this Lease, to such document as so modified, amended orsupplemented and in effect at the relevant time of reference thereto.

 

(e)           All accountingterms not otherwise defined herein have the meanings assigned to them inaccordance with generally accepted accounting principles.

 

3

----

 

(f)            All referencesin Section 1.01 hereof are subject to the specified definitions thereof (ifany) in Section 1.03 hereof.

 

**1.03****       ****TermsDefined.**

 

Eachterm or expression set forth above in Section 1.01 hereof or below in thisSection 1.03 has the meaning stated immediately after it.

 

**AdditionalLandlord’s Work****.**  The work to be done by Landlord, entitled AdditionalLandlord Work, as described in Exhibit C.

 

**Additional Rent**.  All sums which Tenant shall be obligated topay hereunder other than Basic Rent.

 

**Affiliate**.  With respect to any specified Person, anyother Person directly or indirectly controlling or controlled by or underdirect or indirect common control with such specified Person.  For the purposes of this definition, the term“control”, when used with respect to any specified Person, means the power todirect the management and policies of such Person, directly or indirectly,whether through the ownership of voting securities, by contract or otherwise,and the terms “controlling” and “controlled by” have meanings correlative tothe foregoing.

 

**Authorizations**.  All franchises, licenses, permits and othergovernmental consents issued by Governmental Authorities pursuant to LegalRequirements which are or may be required for the use and occupancy of thePremises or the conduct or continuation of a Permitted Use therein.

 

**Building**. The Building located at155 Flanders Road, Westborough, Massachusetts.

 

**Calendar Year**.  The First Calendar Year, the Last CalendarYear and each full calendar year (January 1 through December 31) occurringduring the Lease Term.

 

**Common Areas**.  All areas devoted to the common use ofoccupants of the Building or the provision of Services to the Building,including but not limited to two (2) electrical rooms.  In the event Tenant exercises its expansionright pursuant to Section 26.09, the entire Building shall be for Tenant’s soleuse and there shall be no Common Areas within the Building.

 

**Control**.  As defined in the definition of Affiliate.

 

**Corporation**.  A corporation, company, association, limitedliability company, business trust or similar organization wherever formed.

 

**Default**.  Any event or condition specified in Article20 hereof so long as any applicable requirement for the giving of notice orlapse of time or both have not been fulfilled.

 

**Event of Default**.  Any event or condition specified in (a)Article 20 hereof (if all applicable periods for cure after the giving ofnotice or lapse of time or both have expired) or (b) in Article 21 hereof.

 

4

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**First Calendar Year**.  The partial Calendar Year period commencingon the Term Commencement Date and ending on the next succeeding December 31.

 

**Force Majeure**.  Acts of God, strikes, lockouts, labortroubles,  inability to procurematerials, failure of power, restrictive Legal Requirements, riots andinsurrection, acts of public enemy, wars, earthquakes, hurricanes and othernatural disasters, fires, explosions, other causes beyond a party’s reasonablecontrol, or any act, failure to act or Default of the other party to thisLease;  provided, however, lack of moneyshall not be deemed such a cause.

 

**Governmental Authority**.  United States of America, the Commonwealth ofMassachusetts, the Town of Westborough, County of Worcester, and any politicalsubdivision thereof and any agency, department, commission, board, bureau orinstrumentality of any of them.

 

**Insolvency**.  The occurrence with respect to any Person ofone or more of the following events: the death, dissolution, termination ofexistence (other than by merger or consolidation), insolvency, appointment of areceiver for all or substantially all of the property of such Person, themaking of a fraudulent conveyance or the execution of an assignment or trustmortgage for the benefit of creditors by such Person, or the filing of apetition in bankruptcy or the commencement of any proceedings by or againstsuch Person under a bankruptcy, insolvency or other law relating to the reliefor the adjustment of indebtedness, rehabilitation or reorganization of debtors;provided that if such petition or commencement is involuntarily made againstsuch a Person and is dismissed within sixty (60) days of the date of suchfiling or commencement, such event shall not constitute an Insolvencyhereunder.

 

**Insurance Requirements**.  All terms of any policy of insurancemaintained by Landlord or Tenant and applicable to (or affecting any condition,operation, use or occupancy of) the Building or the Premises or any part orparts of either and all requirements of the issuer of any such policy and allorders, rules, regulations and other requirements of the National Board of FireUnderwriters (or any other body exercising similar functions).

 

**Land**.  The land located at 155 Flanders Road,Westborough, Massachusetts, County of Worcester, Commonwealth of Massachusetts,described in Exhibit A.

 

**Last Calendar Year**.  The partial Calendar Year commencing onJanuary 1 of the Calendar Year in which the Lease Termination Date occurs andending on the Lease Termination Date.

 

**Lease Term**.  The period commencing on the TermCommencement Date and ending on the Lease Termination Date.

 

**Lease Termination Date**.  The earliest to occur of (1) the StatedExpiration Date, (2) the termination of this Lease by Landlord as the result ofan Event of Default, (3) the termination of this Lease pursuant to Article 17(Damage or Destruction) or Article 18 (Eminent Domain) hereof, or (4) thetermination of this Lease pursuant to Section 26.08 (Tenant’s Option toTerminate).

 

**Lease Year**.  A period commencing on the Term CommencementDate (or an anniversary thereof) and ending on the day before the nextsucceeding anniversary thereof.  Forexample, the first Lease Year is

 

5

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aperiod commencing on the Term Commencement Date and ending on the day beforethe first anniversary thereof.  The lastLease Year shall end on the Lease Termination Date.

 

**Legal Requirements**.  All laws, statutes, codes, ordinances (andall rules and regulations thereunder), all executive orders and otheradministrative orders, judgments, decrees, injunctions and other judicialorders of or by any Governmental Authority which may at any time be applicableto the Building or the Premises or to any condition or use thereof and theprovisions of all Authorizations.

 

**Occupancy Arrangement**.  With respect to the Premises or any portionthereof, and whether (a) written or unwritten or (b) for all or any portion ofthe Lease Term, an assignment, a sublease, a tenancy at will, a tenancy atsufferance, or any other arrangement (including but not limited to a license orconcession) pursuant to which a Person occupies, or shall have the right tooccupy, the Premises for any purpose.

 

**Operating Expenses**.  All reasonable expenses, costs, anddisbursements of every kind and nature which Landlord incurs during the Term inconnection with the operation and maintenance of the Building (including allfacilities in operation on the Term Commencement Date and such additionalfacilities which are necessary or beneficial for the operation of theBuilding), including, but not limited to (a) wages, salaries, fees and costs toLandlord of all Persons at or below the grade of Property manager engaged inconnection therewith, including taxes, insurance, and benefits relating thereto(but with respect to employees who are engaged both at the Building and otherbuildings, all such costs shall be appropriately allocated); (b) the cost of(i) all supplies and materials, electricity and lighting, (ii) water, heat, airconditioning, and ventilating, (iii) all maintenance, janitorial, and serviceagreements, (iv) all insurance, including the cost of casualty and liabilityinsurance, (v) repairs and maintenance including, without limitation, Landlord’scosts and expenses of performing its obligations under Section 8.01 butexcluding costs and expenses which may be capital in nature except to theextent permitted under clause (vi) following, (vi) capital expenditures whichare primarily for the purpose of reducing Operating Expenses or which may berequired by a Governmental Authority, amortized over the reasonable life of thecapital items with the reasonable life and amortization schedule beingdetermined by Landlord in accordance with generally accepted accountingprinciples (provided that in the event the reasonably estimated annual savingsarising from the installation of any such capital improvement intended toreduce Operating Expenses shall exceed such annual amortization, OperatingExpenses shall include, in lieu of such amortization, such estimated annualsavings until the cost of such improvement shall have been completelyamortized), (vii) pursuing an application for an abatement of taxes pursuant toSection 6.05 hereof to the extent not deducted from the abatement, if any,received; (viii) an allocable portion of Landlord’s independent auditor andcentral accounting expenses; (c) management fees at the rate of 3.5% of grosscollections; and (d) the cost to Landlord of operating, repairing andmaintaining exterior common areas and facilities, including those serviceslisted on “Exhibit D” attached hereto, which may not be located entirely on theLand but which may be used for parking or for landscaping, security andmaintenance for common roadways and open areas.

 

Notwithstandinganything to the contrary set forth in this Lease, Operating Expenses shall notinclude the following:

 

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(i)            any ground orunderlying lease rental;

 

(ii)           bad debtexpenses and interest, principal, points and fees on debts or amortization onany mortgage or other debt instrument encumbering the Building or the Land;

 

(iii)          costs which maybe considered capital improvements, capital repairs, capital changes (includingcapital improvements to the Building systems) or any other capital costs asdetermined under generally accepted accounting principles except for capitalexpenditures expressly permitted pursuant to clause (vi) in the precedingparagraph and except that, notwithstanding any other provisions of this to thecontrary, the cost of replacing any HVAC Equipment shall be an Operating Expensein the year incurred;

 

(iv)         rentals foritems which if purchased, rather than rented, would constitute a capital cost;

 

(v)          costs incurredby Landlord to the extent that Landlord is reimbursed by insurance proceeds oris otherwise reimbursed;

 

(vi)         depreciation,amortization and interest payments, except on equipment, materials, tools,supplies and vendor type equipment purchased by Landlord to enable Landlord tosupply services Landlord might otherwise contract for with a third party wheresuch depreciation, amortization and interest payments would otherwise have beenincluded in the charge for such third party’s services, all as determined inaccordance with generally accepted accounting principles, consistently applied,and when depreciation or amortization is permitted or required, the item shallbe amortized over its reasonably anticipated useful life;

 

(vii)        advertising andpromotional expenditures, and costs of acquisition and maintenance ofadvertising signs in or on the Building identifying the owner of the Buildingor solely other tenants;

 

(viii)       marketingcosts, including leasing commissions, attorneys’ fees (in connection with thenegotiation and preparation of letters, deal memos, letters of intent, leases,subleases and/or assignments), space planning costs, and other costs andexpenses incurred in connection with lease, sublease and/or assignmentnegotiations and transactions with present or prospective tenants or otheroccupants of the Building;

 

(ix)          costs,including permit, license and inspection costs, incurred with respect to theinstallation of other tenants’ or other occupants’ improvements or incurred inrenovating or otherwise improving, decorating, painting or redecorating vacantspace for tenants or other occupants of the Building;

 

(x)           expenses inconnection with services or other benefits which are not available to Tenant orfor which Tenant is charged for directly;

 

(xi)          costs incurredby Landlord due to the violation by Landlord or any other tenant of the termsand conditions of any lease of space in the Building;

 

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(xii)         management feespaid or charged by Landlord in connection with the management of the Buildingto the extent such management fee is in excess of the management fee specifiedin clause (c) in the preceding paragraph;

 

(xiii)        rent for anyoffice space occupied by Building management personnel;

 

(xiv)        amounts paid toLandlord or to subsidiaries or affiliates of Landlord for goods and/or servicesin the Building to the extent the same exceeds the costs of such goods and/orservices rendered by unaffiliated third parties on a competitive basis;

 

(xv)         Landlord’sgeneral corporate overhead and general and administrative expenses;

 

(xvi)        anycompensation paid to clerks, attendants or other persons in commercialconcessions operated by Landlord;

 

(xvii)       servicesprovided, taxes attributable to, and costs incurred in connection with theoperation of any retail, restaurant and garage operations for the Building, andany replacement garages and any shuttle services;

 

(xviii)      costs incurredin connection with upgrading the Building to comply with laws, rules,regulations and codes with which compliance was first required prior to theTerm Commencement Date;

 

(xix)        all assessmentsand premiums which can be paid by Landlord in installments shall be paid byLandlord in the maximum number of installments permitted by law and notincluded as Operating Expenses except in the year in which the assessment orpremium installment is actually incurred;

 

(xx)         costs arisingfrom the negligence or willful misconduct of Landlord or other tenants oroccupants of the Building or their respective agents, employees, licensees,vendors, contractors or providers of materials or services;

 

(xxi)        costs arisingfrom Landlord’s charitable or political contributions;

 

(xxii)       costs to repairany work required to be performed by Landlord under Exhibit C, during the firsttwelve (12) month-period after completion by Landlord of such work;

 

(xxiii)      costs for sculpture,paintings or other objects of art;

 

(xxiv)      costsassociated with the operation of the business of the entity which constitutesLandlord as the same are distinguished from the costs of operation of theBuilding, including entity (as opposed to property) accounting and legalmatters, costs of defending any lawsuits with any mortgagee (except as theactions of Tenant may be in issue), costs of selling, syndicating, financing,mortgaging or hypothecating any of Landlord’s interest in the Building, costs incurredin connection with any disputes between Landlord and its employees, betweenLandlord and Building management, or between Landlord and other tenants oroccupants;

 

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OperatingExpenses shall be determined using the accrual basis of accounting. If at anytime during the Term, less than one hundred percent (100%) of the Rentable Areaof the project is occupied, Operating Expenses that by their nature vary withoccupancy levels shall be adjusted by the Landlord to reasonably approximatethe Operating Expenses which would be incurred if the project had been at leastone hundred percent (100%) occupied.

 

**Partial Taking**.  Any Taking which is not a Total Taking.

 

**Permitted Exceptions**.  Any liens or encumbrances on the Premises inthe nature of (a) liens for taxes assessed but not yet due and payable, (b)easements, reservations, restrictions and rights of way encumbering oraffecting the Land on the date of this Lease, (c) the rights of Landlord,Tenant and any other Person to whom Landlord has granted such rights toexercise in common with respect to the Land and the Common Areas the rightsgranted to Tenant hereunder, (d) mortgages of record, and (e) Title Conditions.

 

**Person**.  An individual, a Corporation, a company, avoluntary association, a partnership, a trust, an unincorporated organizationor a government or any agency, instrumentality or political subdivisionthereof.

 

**Predelivery Landlord’s Work****.**** **Thework completed by Landlord prior to the Term Commencement Date, as described inSection 7.01 and Exhibit C.

 

**Premises**. The space in the Buildingshown on Exhibit B hereto.

 

**Proceeds**.  With respect to any Taking or occurrencedescribed in Article 17 hereof, with respect to which any Person is obligatedto pay any amount to or for the account of Landlord, the aggregate of (i) allsums payable or receivable under or in respect of any insurance policy, and(ii) all sums or awards payable in respect to a Taking.

 

**Rent**.  Basic Rent and all Additional Rent.

 

**Rentable Area of the Premises**.  The number of square feet stated in Section1.01, whether the same should be more or less as a result of minor variationsresulting from actual construction and completion of the Premises so long assuch work is done in accordance with the terms and provisions hereof.  The calculation was made according to thefollowing formula:

 

(i)            On singletenant floors, the usable area measured from the outside surfaces of the outer wallsof the Building, plus Tenant’s Share of interior Common Areas.

 

(ii)           On multi tenantfloors, the usable area measured from the outside surface of the outer walls ofthe Building to the midpoint of all demising walls of the space being measuredplus the area of each corridor adjacent to and required as the result of thelayout of the space being measured, measured from the midpoint of the adjacentdemising walls, plus Tenant’s Share of interior Common Areas.

 

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**Rules and Regulations**.  Reasonable rules and regulations promulgatedby Landlord and uniformly applicable to Persons occupying the Buildingregulating the details of the operation and use of the Building.  The initial Rules and Regulations areattached hereto as Exhibit E.

 

**Stated Expiration Date**.  The Stated Expiration Date as stated inSection 1.01.

 

**Taking**.  The taking or condemnation of title to all orany part of the Land or the possession or use of the Building or the Premisesby a Person for any public use or purpose or any proceeding or negotiations whichmight result in such a taking or any sale or lease in lieu of or inanticipation of such a taking.

 

**Taxes**.  All taxes, special or general assessments,water rents, rates and charges, sewer rents and other impositions and chargesimposed by Governmental Authorities of every kind and nature whatsoever,extraordinary as well as ordinary, and each and every installment thereof whichshall or may during the term of this Lease be charged, levied, laid, assessed,imposed, become due and payable or become liens upon or for or with respect tothe Land or any part thereof or the Building or the Premises, appurtenances orequipment owned by Landlord thereon or therein or any part thereof or on thisLease under or by virtue of all present or future Legal Requirements or a taxbased on a percentage, fraction or capitalized value of the Rent (whether inlieu of or in addition to the taxes hereinbefore described).  Taxes shall not include inheritance, estate,excise, succession, transfer, gift, franchise, income, gross receipt, or profittaxes except to the extent such are in lieu of or in substitution for Taxes asnow imposed on the Building, the Land, the Premises or this Lease.  If for any year Taxes have been reduced orabated, or are subsequently reduced or abated, because of vacancies in theBuilding, Taxes for such year shall be adjusted by Landlord to reasonablyapproximate the amount Taxes would have been had such vacancies not existed.

 

**Tenant**.  As defined in the preamble hereof.

 

**Tenant’s Share**.  Tenant’s Share shall be equal to the RentableArea of the Premises divided by the Rentable Area of the Building.

 

**Term Commencement Date**.  The Term Commencement Date stated in Section1.01.

 

**Title Conditions**.  All covenants, agreements, restrictions,easements and declarations of record on the date hereof so far as the same maybe from time to time in force and applicable.

 

**Total Taking**.  (i) a Taking of: (a) the fee interest in allor substantially all of the Building or (b) such title to, easement in, over,under or such rights to occupy and use any part or parts of the Building to theexclusion of Landlord as shall have the effect, in the good faith judgment ofthe Landlord, of rendering the portion of the Building remaining after suchTaking (even if restoration were made) unsuitable for the continued use andoccupancy thereof for the Permitted Uses or (ii) a Taking of all orsubstantially all of the Premises or such title to or easement in, on or overthe Premises to the exclusion of Tenant which in the good faith judgment of theLandlord prohibits access to the Premises or the exercise by Tenant of anyrights under this Lease.

 

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**ARTICLE 2Premises**

 

**2.01****                       ****Premises.**

 

Landlordhereby leases and lets to Tenant, and Tenant hereby takes and hires fromLandlord, upon and subject to the terms, conditions, covenants and provisionshereof, the Premises subject to the Permitted Exceptions.  Landlord reserves the right to install withinor without the Premises pipes, ducts, vents, flues, conduits, wires andappurtenant fixtures which service other parts of the Building; provided thatsuch work shall be done in such a manner that it does not materially interferewith Tenant’s use of the Premises.

 

**2.02****                       ****Appurtenances.**

 

Tenant,in common with others entitled thereto from time to time, may use the CommonAreas for the purposes for which they were designed.

 

Landlordreserves the right, from time to time, to grant easements affecting the Land,to change or alter the boundaries of the Land and to alter, and grant to othersthe right to use, the entrances, parking areas and driveways on the Land, allfor purposes of developing and using properties adjacent to the Land, so longas the same do not materially interfere with Tenant’s use of the Premises orthe Common Areas or reduce the number or convenience of parking spacesavailable for Tenant.

 

**2.03****                       ****ReservationsBy Landlord.**

 

Landlordreserves the right, exercisable at any time and from time to time without thesame constituting an actual or constructive eviction and without incurring anyliability therefor or otherwise affecting Tenant’s obligations under thisLease, to make changes, alterations, additions, improvements, repairs orreplacements to the Building and the Common Areas as long as such work does notmaterially interfere with Tenant’s business, including, without limitation,elimination of Common Areas and changing the size, arrangement and location of,and eliminating, entrances, lobbies, driveways, parking areas, doors,corridors, elevators, stairs and restrooms.

 

**ARTICLE 3Term**

 

**3.01****                       ****TermCommencement.**

 

TheLease Term shall commence on the Term Commencement Date.  Tenant shall be granted full access to thePremises on the Term Commencement Date.

 

**3.02****                       ****Termination.**

 

TheLease Term shall end on the Lease Termination Date, subject to extension inaccordance with Section 26.07 and termination in accordance with Section 26.08.

 

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**ARTICLE 4Rent**

 

**4.01****                       ****BasicRent.**

 

Tenantshall pay Landlord for the Premises, without offset or deduction and withoutprevious demand therefor, the Basic Rent as annual rent for each LeaseYear.  Commencing on the Basic RentCommencement Date, Basic Rent shall be paid in equal monthly installments inadvance on the first day of each calendar month during the Lease Term.  Basic Rent for partial months at thebeginning or end of the Lease Term shall be pro rated.

 

**4.02****                       ****Computationof Basic Rent.**

 

TheBasic Rent for each Lease Year shall be as stated in Article 1.01 hereof.

 

BasicRent shall be exclusive of (and in addition to) amounts due hereunder for Taxesand Operating Expenses.

 

**ARTICLE 5Use of Premises**

 

**5.01****                       ****UseRestricted.**

 

ThePremises may be used for the Permitted Uses as stated in Article 1.01 hereofand for no other purpose.  Noimprovements may be made in or to the Premises except as otherwise provided inthis Lease.

 

**5.02****                       ****Rulesand Regulations.**

 

Tenantshall comply with Rules and Regulations established from time to time byLandlord.  Landlord shall not be liableto Tenant for (a) the failure of other tenants to comply with such Rules andRegulations, (b) the failure of other tenants to comply with any term or provisionof their respective leases or (c) any nuisance or wrongful, negligent,improper, offensive or unlawful act or omission of any such other tenant.  Landlord shall not enforce such rules andregulations other than in a non-discriminatory manner.

 

**ARTICLE 6Taxes; Operating Expenses;Estimated Cost of Electrical Services**

 

**6.01****                       ****Expensesand Taxes.**

 

Withrespect to each Calendar Year of the Lease Term, Tenant shall pay Tenant’sShare of Operating Expenses and Taxes. Amounts due under this Section 6.01 shall be due as provided in Section6.03 hereof.

 

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**6.02****                       ****AnnualStatement of Additional Rent Due.**

 

Landlordshall render to Tenant a statement, showing (i) for the Calendar Year soindicated (a) Taxes and (b) Operating Expenses and (ii) for the then currentCalendar Year, an estimate for (a) Operating Expenses, (b) Taxes and (c) Tenant’sobligation under Section 6.01.

 

**6.03****                       ****MonthlyPayments of Additional Rent.**

 

Tenantshall pay to Landlord in advance for each calendar month of the Lease Termfalling between receipt by Tenant of the statement described in Section 6.02and receipt by Tenant of the next such statement, as Additional Rent, an amountequal to 1/12th of Tenant’s estimated obligation under Section 6.01 shownthereon.  The amount due under thisSection 6.03 shall be paid with Tenant’s monthly payments of Basic Rent andshall be credited by Landlord to Tenant’s obligations under Section 6.01.  If the total amount paid hereunder exceedsthe amount due under Section 6.01, such excess shall be credited to Tenant byLandlord against the monthly installments of Additional Rent next falling dueor shall be refunded to Tenant upon the expiration or termination of this Lease; provided, however, that if this Lease is terminated on account of an Event ofDefault, then Landlord may apply the excess payment against amounts owed byTenant under Section 22.04.  If the totalamount paid is less than the amount due under Section 6.01, Tenant shall pay toLandlord the balance within thirty (30) days after delivery by Landlord of suchstatement.

 

**6.04****                       ****AccountingPeriods.**

 

Landlordshall have the right from time to time to change the periods of accountinghereunder to any other annual period than a Calendar Year, and upon any suchchange, all items referred to in this Article 6 shall be appropriatelyapportioned.  In all statements renderedunder Section 6.02, amounts for periods partially within and partially withoutthe accounting periods shall be appropriately apportioned, and any items whichare not determinable at the time of a statement shall be included therein onthe basis of Landlord’s estimate and with respect thereof Landlord shall renderto Tenant promptly after determination a supplemental statement and an appropriateadjustment shall be made according thereto.

 

**6.05****                       ****Abatementof Taxes.**

 

Landlordmay at any time and from time to time make application to the appropriateGovernmental Authority for an abatement of Taxes.  If (i) such an application is successful and(ii) Tenant has made any payment in respect of Taxes pursuant to this Article 6for the period with respect to which the abatement was granted, Landlord shall(a) deduct from the amount of the abatement all reasonable expenses incurred byit in connection with the application, (b) recompute Tenant’s obligation withrespect to Taxes under Section 6.01 and refund any overpayment to Tenant and(c) retain the balance, if any.

 

Ifat least twenty (20) days prior to the last day for filing an application forabatement of Taxes for any tax year, Tenant shall give notice to Landlord thatit desires to file an application for abatement of such Taxes or to otherwisecontest the assessed valuation of the Premises for such tax year, and if withinfive (5) days after the receipt of such notice Landlord does not give noticeback to Tenant that

 

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Landlordshall itself file such application or commence such contest, then Tenant shallhave the right either in its own name or in the name of Landlord but at its owncost and expense to file such application or commence such contest.  If within five (5) days after receipt byLandlord of such notice from Tenant, Landlord shall give Tenant notice thatLandlord shall itself file such application or commence such contest, thenLandlord shall do so prior to the expiration of the time for the filing of thesame at its own cost and expense.  IfLandlord shall not give such notice, then Tenant shall file the same orcommence such contest prior to the expiration of the time for filing orcommencing the same at its own cost and expense.  In any event, if any abatement by whomeverprosecuted shall be obtained, the cost and expense of obtaining the same shallbe the first charge upon such abatement and shall be reimbursed to the partyexpending the same from the proceeds thereof, prior to any otherdistribution.  If Tenant shall file anapplication for abatement or commence such contest pursuant to the provisionsof this paragraph, Tenant shall prosecute the same to final determination withreasonable diligence and shall not, without Landlord’s consent (which shall notbe unreasonably withheld), settle, compromise or discontinue the same exceptthat Tenant may discontinue the prosecution of the same at any time aftergiving Landlord notice thereof and a reasonable opportunity to assumeprosecution of the same.  If Landlordshall file an application for abatement or commence such contest, Landlordshall prosecute the same to final determination with reasonable diligence andshall not without Tenant’s consent (which shall not be unreasonably withheld),settle, compromise, or discontinue the same except that Landlord maydiscontinue the prosecution of the same at any time after giving Tenant noticethereof and a reasonable opportunity to assume prosecution of the same.  If either party shall file an application foran abatement or commence such contest, the other will cooperate and furnish anypertinent information in its files reasonably required by the prosecutingparty.  In every case, any abatement,refund, rebate or credit received shall be paid first to the party whichprosecuted such abatement in the amount of the costs and expenses expended byit in such connection, and the balance to each party in the proportion that itpaid the tax or assessment being abated, refunded, rebated or credited.  Landlord shall pay any sums due to Tenantfrom any abatement after receipt of the same even if this Lease shall have expired.  Tenant shall timely pay all sums payableunder this Lease in respect of taxes and assessments notwithstanding thependency of an abatement proceeding or any such contest, unless and to theextent legally permitted to do otherwise.

 

**6.06****                       ****Electricand Gas Service.**

 

Commencingon the Term Commencement Date and for the entirety of the Lease Term, Tenantshall arrange to obtain electricity and gas for the Premises at Tenant’sexpense from such source or sources as Landlord shall designate as the sourceor sources therefor for the Building from time to time.  Tenant shall pay or cause to be paid when dueall charges for gas and electricity used in or upon the Premises during theterm of this Lease which shall be separately metered for such utilities consumedin or from the Premises. Subject only to Landlord’s obligations under ExhibitC, Landlord shall have no obligation with respect to electricity and gas forthe Premises.

 

**6.07****                       ****LatePayment of Rent and Late Charges.**

 

Tenant’sfailure to pay Rent, Additional Rent, or any other payments due under thisLease when due under this Lease may cause Landlord to incur unanticipatedcosts.  The exact amount of such costsare impractical or extremely difficult to ascertain.  Such costs may include, but are not limitedto,

 

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processingand accounting charges and late charges that may be imposed on Landlord by anyground lease, mortgage, or deed of trust encumbering the Land or Building.

 

Therefore,if Landlord does not receive the Rent, Additional Rent, or any other paymentsdue under this Lease in full within five (5) days after the due date, Tenantshall pay Landlord a late charge, which shall constitute liquidated damages,equal to five percent (5%) of each unpaid portion (“Late Charge”), which shallbe paid to Landlord together with such Rent, Additional Rent, or other Leasecosts then in arrears.  Notwithstandinganything to the contrary contained herein, so long as Tenant has not been indefault in the payment of Rent, Additional Rent and other Lease costs more thanonce in any twelve (12) consecutive month period, no such Late Charge shallaccrue.

 

Theparties agree that such Late Charge represents a fair and reasonable estimateof the cost Landlord will incur by reason of such late payment.

 

Foreach Tenant payment check to Landlord that is returned by a bank for anyreason, Tenant shall pay both a Late Charge (if applicable) and a returnedcheck charge (“Returned Check Charge”) of an amount equal to that charged byLandlord’s bank at the time.

 

AllLate Charges and any Returned Check Charge shall then become Additional Rentand shall be due and payable immediately along with such other Rent, AdditionalRent, or other Lease costs then in arrears.

 

Moneypaid by Tenant to Landlord shall be applied to Tenant’s account in thefollowing order:  (i) to any unpaidAdditional Rent, including, without limitation, Late Charges, Returned CheckCharges, legal fees and/or court costs legally chargeable to Tenant, OperatingExpenses and Taxes; and then (ii) to unpaid Basic Rent.

 

Nothingherein contained shall be construed so as to compel Landlord to accept anypayment of Rent, Additional Rent, or other Lease costs in arrears or LateCharge or Returned Check Charge should Landlord elect to apply its rights andremedies available under this Lease or at law or in equity in the case of anEvent of Default hereunder by Tenant. Landlord’s acceptance of Rent, Additional Rent, or other Lease costs inarrears or Late Charge or Returned Check Charge pursuant to this clause shallnot constitute a waiver of Landlord’s rights and remedies available under thisLease at law or in equity.

 

**6.08****                       ****TenantAudit Right.**

 

Tenantshall have the right, on reasonable notice to Landlord and at reasonable times,to inspect and review Landlord’s books and records with respect to OperatingExpenses, provided that Tenant shall conduct such inspection and review for anyyear no later than six (6) months after delivery of the statement of OperatingExpenses for such year and provided that Tenant shall timely pay all sums duewith respect to Operating Expenses notwithstanding that it shall elect toperform such an inspection and review. Such payment may be made without prejudice to Tenant’s rights under thisparagraph.  If it shall be determinedthat Tenant shall have overpaid any sums on account of Operating Expenses,Landlord shall promptly refund the same. If the audit discloses any overpayment on the part of Tenant, thenTenant shall be entitled to a credit on the next succeeding installment of rentfor an amount equal to the overcharge plus interest on the amount of suchovercharge from the date on which

 

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Tenantreceived the statement of Operating Expenses until the date Tenant completesthe audit at a rate of 18% per annum, and such credit shall be extended tosucceeding installments of rent in the event such overcharge exceeds the amountof the next succeeding such installment and, in the event the term of thisLease has expired or been earlier terminated, then Tenant shall be entitled toa refund of such excess from Landlord within thirty (30) days after completionof the audit.  In addition, in the eventsuch audit by Tenant discloses such an overcharge in excess of the ten percent(10%) of the amount payable in accordance with Article 6 of this Lease, thenLandlord shall pay to Tenant the reasonable costs and expenses of such audit,such costs not to exceed thirty-three percent (33%) of the total amount of theovercharge.

 

**ARTICLE 7Improvements, Repairs, Additions, Replacements**

 

**7.01****                       ****Preparationof the Premises.**

 

TheTerm Commencement Date shall be the date of this Lease.  Tenant shall accept the Premises in its “asis” condition, and Landlord shall have no obligation to perform any work orconstruction to prepare the Premises for Tenant, except that Landlord shalldeliver the Premises to Tenant (i) broom clean, (ii) free of all occupants, and(iii) in the condition required under this Lease. Landlord has completed thePredelivery Landlord’s Work described on Exhibit C.

 

**7.02****                       ****Alterationsand Improvements.**

 

Tenantmay make (a) cosmetic alterations or improvements (i.e., painting, carpeting,flooring, etc) regardless of cost; (b) any other non-structural alterations,additions or improvements having a cost, when aggregated with all workperformed at substantially the same time, of $100,000.00 or less, withoutLandlord’s prior consent and Tenant may make non-structural alterations,additions or improvements having a cost, when aggregated with all work performedat substantially the same time, in excess of $100,000.00, with Landlord’s priorwritten consent, which consent shall not be unreasonably withheld or delayed,and then only in accordance with plans and specifications therefor firstapproved by Landlord (the “Tenant Improvements Plans”), such approval not to beunreasonably withheld.

 

Landlordshall review Tenant’s proposed Tenant Improvements Plans and shall notifyTenant in writing within fifteen (15) business days after Landlord’s receipt ofsame as to whether Landlord approves the Tenant Improvements Plans (whichapproval shall not be unreasonably withheld, conditioned or delayed).  If Landlord fails to respond to Tenant’srequest for review and approval of Tenant’s proposed Tenant Improvements Planswithin fifteen (15) business days after receipt of Tenant’s request, Tenantmust send a second notice to Landlord, which such second notice must state thatit is the second notice to Landlord in connection with Tenant’s request forapproval of the Tenant Improvement Plans and that Landlord’s failure to respondto such second notice within five (5) days after receipt thereof shall bedeemed Landlord’s approval of the Tenant Improvement Plans.  If Landlord fails to respond to Tenant’ssecond notice within such five (5) day period, the Tenant Improvement Plansshall be deemed approved by Landlord.

 

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IfLandlord does not approve the Tenant Improvements Plans, such written noticefrom Landlord to Tenant shall provide Landlord’s specific and detailed commentsand suggestions which, if incorporated into the Tenant Improvements Plans,would render the Tenant Improvements Plans acceptable to Landlord.  Landlord and Tenant shall cooperate with oneanother in good faith to reach agreement regarding the Tenant ImprovementsPlans as soon as practicable.  In theevent Landlord and Tenant are unable, after complying with the foregoing termsand provisions in this Section 7.02, to reach agreement regarding the TenantImprovements Plans within ten (10) business days after the date on whichLandlord delivers to Tenant Landlord’s specific and detailed comments andsuggestions relating to the Tenant Improvements Plans pursuant to this Section7.02, then until such time as Landlord and Tenant succeed in reaching agreementrelative to the Tenant Improvements Plans, either Landlord or Tenant shall beentitled to submit the issue(s) in dispute to expedited arbitration inaccordance with the terms and provisions of Section 26.21 of the Lease.  Landlord hereby approves the plans shown onExhibit K, attached hereto, and agrees that it will approve the TenantImprovement Plans as long as such plans are consistent with the attached plans.  Without limitation, Landlord may withholdapproval of any alterations or additions which would (a) require unusualexpense to readapt the Premises to normal office, research and development,warehousing, and distribution uses upon termination of this Lease or (b)increase the cost of insurance; provided, however, that Landlord shall not beentitled to withhold Landlord’s approval of such alterations or additions forthe reasons described in clauses (a) or (b) if Tenant agrees to reimburseLandlord for such unusual expenses or the amount of the increase in the cost ofinsurance, if any, associated with Tenant’s alterations or additions.

 

Notwithstandinganything to the contrary contained herein, Landlord acknowledges that Tenant,at Tenant’s sole cost, shall have the option to install its own security systemin the Building.

 

Allof Tenant’s alterations and additions and installation of furnishings shall becoordinated with any work being performed by Landlord and in such manner as tomaintain harmonious labor relations and not to damage the Building or thePremises or interfere with Building operation and, except for installation offurnishings, shall be performed by general contractors and subcontractors firstapproved by Landlord, such approval not to be unreasonably withheld.  Landlord hereby approves as a generalcontractor Builders Systems Inc., 135 Southbridge Street, Box 635, Auburn, MA01501 (508-798-8797.  Except for workdone by or through Landlord, Tenant before its work is started shall: secureall licenses and permits necessary therefor; deliver to Landlord a statement ofthe names of all its contractors and subcontractors and the estimated cost ofall labor and material to be furnished by them; and cause each contractor tocarry workers’ compensation insurance in statutory amounts covering all thecontractor’s and subcontractor’s employees and commercial general liabilityinsurance with such limits as Landlord may reasonably require, but in no eventless than $1,000,000.00 and property damage insurance with limits of not lessthan $1,000,000.00 and have deductibles of no more than $5,000.00 (all suchinsurance to be written by companies approved by Landlord and insuring Tenantand Landlord and its managing agent and its mortgagees, as well as thecontractors), and to deliver to Landlord certificates of all suchinsurance.  Tenant agrees to pay promptlywhen due the entire cost of any work done in the Premises by Tenant, itsagents, employees or independent contractors, and not to cause or permit anyliens therewith to attach to the Premises and immediately to discharge any suchliens which may so attach.  Allconstruction work done by Tenant, its agents,

 

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employeesor independent contractors shall be done in a good and workmanlike manner andin compliance with all Legal Requirements and Insurance Requirements.

 

Promptlyafter completion of any work, whether or not Landlord’s consent was required,Tenant shall furnish as built plans therefor to Landlord.

 

Ator prior to expiration of the Term, Tenant shall remove (a) all alterations andimprovements designated for removal by Landlord at the time it approves thesame and (b) all alterations and improvements not approved by Landlord(including alterations and improvements for which Landlord’s approval was notrequired) or to which Landlord has objected but have been permitted underSection 26.21 which Landlord shall designate for removal by notice prior toexpiration of the Term.  Removal shallinclude restoration of all affected areas to the condition prior to suchalterations and improvements.

 

**7.03****                       ****MaintenanceBy Tenant.**

 

Exceptfor Landlord’s obligations under Section 8.01, Tenant shall, at all timesduring the Lease Term, and at its own cost and expense, (a) keep and maintainthe Premises in good repair and condition (reasonable wear and tear and damageby fire or casualty only excepted) and (b) use all reasonable precautions toprevent waste, damage or injury thereto.

 

**7.04****                       ****Redelivery.**

 

Onthe Lease Termination Date, without limiting its other obligations under thisLease, Tenant shall surrender all keys to the Premises, remove all of its tradefixtures, equipment and personal property in the Premises and all of Tenant’ssigns and quit and surrender the Premises free and clear of all tenants andoccupants and liens and encumbrances arising through Tenant.  Tenant shall, subject to the provisions ofArticles 17 and 18 hereof, surrender the Premises to Landlord broom clean andin good condition and repair (reasonable wear and tear and damage by fire or casualtyonly excepted) with all damage occasioned by Tenant’s removal of Tenant’s tradefixtures, equipment or equipment repaired at Tenant’s cost to Landlord’sreasonable satisfaction.  Any propertynot so removed shall be deemed abandoned and may be removed and disposed of byLandlord in such manner as it shall determine. Tenant shall pay Landlord the entire cost and expense incurred by it ineffecting such removal and disposition and in making any incidental repairs andreplacements.

 

**ARTICLE 8Landlord’s Obligations**

 

**8.01****                       ****MaintenanceBy Landlord.**

 

Subjectto Sections 17 and 18, Landlord shall maintain the exterior walls (exclusive ofthe glass and doors and exclusive of the interior surface of the exteriorwalls, all of which Tenant shall maintain and repair), roof, foundation, andstructural supports of the Building. Landlord shall also maintain the Common Areas, plumbing, electrical andmechanical systems (exclusive of the chiller referred to in Exhibit C and inclusiveof the HVAC Equipment unless Tenant elects to maintain such HVAC Equipmentitself and notifies Landlord of the same).

 

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**8.02****                       ****Limitationson Landlord’s Liability.**

 

Landlordshall not be liable in damages, and shall not be in default hereunder, for anyfailure or delay in complying with any of its obligations hereunder when suchfailure or delay is occasioned by Force Majeure or by the act or Default ofTenant.  No such failure or delay shallbe held or pleaded as eviction or disturbance in any manner whatsoever ofTenant’s possession or give Tenant any right to terminate this Lease or giverise to any claim for set off or any abatement or Rent or of any of Tenant’sobligations under this Lease except as set forth in Section 8.03.

 

**8.03****                       ****Tenant’sRight to Self Help.**

 

IfLandlord shall default in the performance of any of its obligations under thisLease, and if Landlord shall not cure such default within a thirty (30) dayperiod after notice from Tenant specifying the default (or, if such defaultcannot by its nature be cured within such thirty (30) day period and Landlordshall not within such period commence to cure such default and thereafterprosecute the curing of such default to completion with due diligence), Tenantmay, at its option (but shall not be obligated to), at any time after ten (10)days after giving to Landlord a further notice of default specifically referringto this Section 8.03, cure such default for the account of Landlord; provided,however, that in cases of emergencies that pose an immediate material threat toperson, property, or Tenant’s business operation, Tenant may, at its option(but shall not be obligated to), cure such default for the account of Landlordimmediately after giving Landlord telephone, facsimile, or electronic notice ofTenant’s intent to exercise of its right to self-help hereunder.  Any reasonable amount paid or any reasonablecontractual liability incurred by Tenant in exercising its right to self-helphereunder shall be deemed paid or incurred for the account of Landlord, and, ifLandlord shall not reimburse Tenant within thirty (30) days after demand forany amount paid for the account of Landlord hereunder, Tenant shall have theright to deduct any amount (with interest on such amount at ten percent (10%)per annum) still owing from future payments of Basic Rent hereunder but suchdeduction shall not exceed fifteen percent (15%) of the Basic Rent payable forany month (or such higher amount as shall be required for Tenant to recoup suchamount ratably over the remainder of the Lease Term).

 

**ARTICLE 9Tenant’s Particular Covenants**

 

**9.01****                       ****PayRent.**

 

Tenantshall pay when due all Rent and Additional Rent, including, without limitation,all charges for utility services rendered to the Premises.

 

**9.02****                       ****Occupancyof the Premises.**

 

Tenantshall occupy the Premises continuously from the Term Commencement Date for thePermitted Uses only.  Tenant shall not(i) injure or deface the Premises or the Building, (ii) install any exteriorsign except as set forth in Section 26.06, (iii) permit in the Premises anyflammable fluids or chemicals not reasonably related to the Permitted Uses, or(iv) permit any nuisance or any use thereof

 

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whichis improper, offensive, contrary to any Legal Requirement or InsuranceRequirement or liable to render necessary any alteration or addition to theBuilding.

 

Tenantshall not permit any noise, vibration or odor to emit from the Premises whichin Landlord’s sole discretion is offensive or inappropriate for a buildingcomparable to the Building.

 

**9.03****                       ****Safety.**

 

Tenantshall keep the Premises equipped with all safety appliances required by LegalRequirements or Insurance Requirements because of any use made by Tenant.  Tenant shall procure all Authorizations sorequired because of such use and, if requested by Landlord, shall do any workso required because of such use, it being understood that the foregoingprovision shall not be construed to broaden in any way the Permitted Uses.  Notwithstanding anything to the contrarycontained in this Lease, however, Tenant shall not be responsible forcompliance with any such laws, regulations, or the like requiring (a)structural repairs or modifications; or (b) repairs or modifications to theutility or building service equipment; or (c) installation of new buildingservice equipment, such as fire detection or suppression equipment, unless suchrepairs, modifications, or installations shall arise from (i) Tenant’sparticular use of the Premises, or (ii) the negligence or default of Tenant or any agent, employee, orcontractor of Tenant, or (iii) any work performed by Tenant.

 

**9.04****                       ****Equipment.**

 

Tenantshall not place a load upon the floor of the Premises exceeding the live loadfor which the floor has been designed and shall not move any safe or otherheavy equipment in, about or out of the Premises except in such a manner and atsuch a time as Landlord shall in each instance authorize.

 

**9.05****                       ****ElectricalRequirements**

 

Tenant’suse of electrical energy in the Premises shall not exceed the capacity of thePremises electrical systems.

 

**9.06****                       ****PayTaxes.**

 

Tenantshall pay promptly when due all Taxes upon personal property (including,without limitation, fixtures and equipment) in the Premises to whomsoeverassessed.

 

**ARTICLE 10Requirements of Public Authority**

 

**10.01****                ****LegalRequirements.**

 

Tenantshall, at its own cost and expense, promptly observe and comply with all LegalRequirements.  Notwithstanding anythingto the contrary contained in this Lease, however, Tenant shall not beresponsible for compliance with any such laws, regulations, or the like requiring(a) structural repairs or modifications; or (b) repairs or modifications to theutility or building service equipment; or (c) installation of new buildingservice equipment, such as fire detection or suppression

 

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equipment,unless such repairs, modifications, or installations shall arise from (i)Tenant’s particular use of the Premises, or (ii)  the negligence or default of Tenant or anyagent, employee, or contractor of Tenant, or (iii) any work performed byTenant.  Tenant shall pay all costs,expenses, liabilities, losses, damages, fines, penalties, claims and demands,that may in any manner arise out of or be imposed because of the failure ofTenant to comply with the covenants of this Article 10. The Landlord shall notbe responsible or liable for any loss or interruption of Tenant’s business, orany costs of compliance, caused by the enforcement of any Legal Requirementswhich are related to Tenant’s use of the Premises or the Common Areas.

 

Tenantshall not dump, flush, or in any way introduce any Hazardous Substances or anyother toxic substances into the septic, sewage or other waste disposal systemor generate, store or dispose of Hazardous Substances in or on the Premises orthe Land, or dispose of Hazardous Substances from the Premises or the Land toany other location without the prior consent of Landlord, which consent shallnot be unreasonably withheld, and then only in compliance with the ResourceConservation and Recovery Act of 1976, as amended, 42 U.S.C.§6901 et seq., theMassachusetts Hazardous Waste Management Act, M.G.L. c.21C., as amended, theMassachusetts Oil and Hazardous Material Release Prevention and Response Act,M.G.L. c.21E, as amended, and all other applicable codes, regulations,ordinances and laws.  Tenant shall notifyLandlord of any incident which would require the filing of a notice underM.G.L. c.21E and shall comply with the orders and regulations of allgovernmental authorities with respect to zoning, building, fire, health andother codes, regulations, ordinances or laws applicable to the Premises or theLand.  “Hazardous Substances” as used inthis Section shall mean “hazardous substances” as defined in the ComprehensiveEnvironmental Response Compensation and Liability Act of 1980, as amended, 42U.S.C. §9601 and regulations adopted pursuant to such Act.

 

Landlord may, if it soelects, make any of the repairs, alterations, additions or replacements whichotherwise would be Tenant’s responsibility under this Section which affect theBuilding structure or the Building systems, and Tenant shall reimburse Landlordfor the cost thereof within twenty (20) days of Landlord’s invoice therefor.

 

Tenantwill provide Landlord, from time to time upon Landlord’s request, with allnon-proprietary records and information regarding any Hazardous Substancemaintained on the Premises by Tenant, but in any event shall provide a listidentifying all Hazardous Substances maintained on the Premises by Tenant.

 

Landlordshall have the right to make such inspections as Landlord shall reasonablyelect from time to time to determine if Tenant is complying with this Sectionor with Tenant’s obligations elsewhere under this Lease, which inspectionsshall be at Tenant’s expense if any such inspection shall show that Tenant hasnot complied with its obligations herein.

 

**10.02****                ****Contests.**

 

Tenantshall have the right to contest by appropriate legal proceedings diligentlyconducted in good faith, in the name of Tenant or Landlord (if legallyrequired), or both (if legally required), without cost, expense, liability ordamage to Landlord, the validity or application of any Legal

 

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Requirement,and, if compliance with any of the terms of any such Legal Requirement maylegally be delayed pending the prosecution of any such proceeding, Tenant maydelay such compliance therewith until the final determination of suchproceeding.

 

**ARTICLE 11Covenant Against Liens**

 

**11.01****                ****Mechanics’Liens.**

 

Landlord’sright, title and interest in the Premises shall not be subject to or liable forliens of mechanics or materialmen for work done on behalf of Tenant inconnection with improvements to the Premises. Notwithstanding such restriction, if because of any act or omission ofTenant, any mechanics’ lien or other lien, charge or order for payment of moneyshall be filed against any portion of the Premises, Tenant shall, at its owncost and expense, cause the same to be discharged of record within fifteen (15)days after the filing thereof.

 

**11.02****                ****Rightto Discharge.**

 

Withoutotherwise limiting any other remedy of Landlord for default hereunder, ifTenant shall fail to cause such liens to be discharged of record within theaforesaid fifteen (15) day period, then Landlord shall have the right to causethe same to be discharged.  All amountspaid by Landlord to cause such liens to be discharged shall constituteAdditional Rent.

 

**ARTICLE 12Access to Premises**

 

**12.01****                ****Access.**

 

Landlordcovenants and agrees, except in emergency situations, that Tenant shall haveaccess to and the right to use the Premises at all times, twenty-four (24)hours per day and three hundred sixty-five (365) days per year during theTerm.  Landlord and Landlord’s agents anddesignees shall have the right, but not the obligation, to enter upon thePremises during ordinary business hours upon twenty-four hours prior notice toTenant from Landlord, to perform its obligations hereunder, to examine same andto exhibit the Premises to prospective purchasers, mortgagees,  tenants or other persons or agents asLandlord shall designate from time to time, except that no prior notice shallbe required in an emergency.  Tenant orTenant’s representatives shall have the right to accompany Landlord at alltimes during the periods Landlord accesses the Premises pursuant to thisSection.  Landlord shall keepconfidential any confidential or proprietary information of which Landlordbecomes aware during any such period of access.

 

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**ARTICLE 13Assignment and Subletting: Occupancy Arrangements**

 

**13.01****                ****Sublettingand Assignment.**

 

Tenantshall not enter into any Occupancy Arrangement, either voluntarily or byoperation of law without the prior consent of Landlord, which consent will notbe unreasonably withheld.  Withoutlimiting the generality of the foregoing, in no event shall Tenant enter intonegotiations to sublet all or any part of the Premises or to assign this Lease,offer to so sublet or assign or so sublet or assign to any tenant or occupantof the Building or to any party with whom Landlord is then negotiating withrespect to space in the Building.

 

IfTenant intends to enter into an Occupancy Arrangement, Tenant shall so notifyLandlord in writing, stating the name of (and providing a financial statementwith respect to) the Person with whom Tenant intends to enter into suchArrangement, the material terms of the Occupancy Arrangement and a precisedescription of the portion of the Premises intended to be subject thereto.  Within twenty-one (21) days of receipt ofsuch writing, Landlord shall either (i) consent to such Occupancy Arrangement,such consent not to be unreasonably withheld, or (ii) deny consent to suchOccupancy Arrangement.  Landlord’sfailure to respond within such twenty-one (21) day period shall be deemedconsent to the Occupancy Arrangement.  IfTenant proposes to assign this Lease or sublet more than fifty percent (50%) ofthe Premises for substantially the remainder of the Term, other than in atransaction under which Landlord’s consent is not required, Landlord may electto terminate this Lease in the case of an assignment or, in case of a sublease,terminate this Lease with respect to the portion of the Premises intended to besubject thereto, such election to be made by notice within such twenty-one (21)day period, such termination to be effective as of the date such assignment orsublease would have commenced.  IfLandlord so terminates this Lease in whole or in part, all Rent shall beadjusted as of the day the Premises (or portion thereof) are redelivered toLandlord.  Any portion of the Premises soredelivered shall be in its then as-is condition.  If Landlord elects to terminate this Lease inwhole or in part pursuant to the foregoing, Landlord shall be responsible, atits sole cost and expense, for constructing and installing any demising wallsnecessary to demise the recaptured portion of the Premises from the portion ofthe Premises retained by Tenant.

 

Ifthe Landlord consents to an Occupancy Arrangement, Tenant shall (i) enter intosuch Occupancy Arrangement on the terms described to Landlord within thirty(30) days of Landlord’s consent or comply again with the terms of this Sectionand (ii) remain liable for the payment and performance of the terms andcovenants of this Lease.  If Tenantenters into such an Occupancy Arrangement, Tenant shall pay to Landlord whenreceived fifty percent (50%) of the excess, if any, of amounts received inrespect of such Occupancy Arrangement over the Rent.  For the purpose of the preceding sentence, amountsreceived by Tenant in respect of such Occupancy Arrangement shall be deemed toinclude (a) any costs assumed or paid by the subtenant or assignee thereunder(such as brokerage commissions, tenant improvements and other expenses) whichare normally are paid by landlords or sub-landlords in comparable transactionsand (b) any sums paid for the sale, rental or use of any of Tenant’s personalproperty (in case of a sale only, reduced by Tenant’s depreciated basis thereoffor federal income tax purposes).  Incalculating any excess rent payable by Tenant to Landlord pursuant to thisprovision, Tenant shall first be entitled to deduct brokerage commissionsand/or legal

 

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feespaid by Tenant in connection with the assignment or sublease and any costsincurred by Tenant to prepare the Premises of occupancy by such subtenant orassignee.

 

Landlord’sconsent shall not be required with respect to (i) any transfers of direct orindirect ownership interests in Tenant or its Affiliates in the public markets,(ii) any assignment or subletting to a parent, subsidiary or other Affiliate,(iii) any assignment or subletting in connection with a sale of substantiallyall the assets of Tenant or a merger, consolidation, reorganization or othercorporate transaction provided that in the case of transactions described inclause (iii), the successor entity has at least the same tangible net worth asTenant immediately prior to such transaction, provided, however, that if the successorto Tenant does not have a tangible net worth computed in accordance withgenerally accepted accounting principles at least equal to the lesser of Tenant’stangible net worth as of the date hereof or immediately prior to suchtransaction, Tenant shall either (a) obtain Landlord’s prior written consent tosuch transaction, as provided above, or (b) increase the Security Deposit underSection 24.01 by an amount equal to the sum of three (3) months’ Basic Rentthen in effect under the Term****(iv) any collateralassignment as security in connection with a financing transaction, or (v) anyassignment or subletting to a joint venture party or other party with whomTenant or any of its Affiliates have a contractual or other businessrelationship.  Landlord’s consent shallbe required for any other assignment or subletting but shall not beunreasonably withheld, conditioned or delayed. Moreover, Landlord’s consent shall be deemed granted to the extentLandlord fails to respond to any request for consent, sent in accordance withSection 25.02, within thirty (30) business days following delivery of therequest and applicable information relating to the assignment or subletting.

 

**ARTICLE 14Indemnity**

 

**14.01****                ****Tenant’sIndemnity.**

 

Tothe fullest extent permitted by law, Tenant shall indemnify and save harmlessLandlord from and against any and all liability, damage, penalties or judgmentsand from and against any claims, actions, proceedings and expenses and costs inconnection therewith, including reasonable counsel fees, arising from (a) anEvent of Default, (b) injury to person or property sustained by anyone in andabout the Premises, or (c) from injury to person or property occurring outsidethe Premises but within the Building or on the Land, to the extent such injuryresults, or is claimed to have resulted, from any negligent act or omission, ornegligence on the part of Tenant, or Tenant’s contractors, licensees, agents,servants, employees, or customers, or anyone claiming by or through Tenant,except to the extent that such claims, actions, proceedings and expenses andcosts are caused solely by the negligent acts or omissions of Landlord.  Tenant shall, at its own cost and expense,defend any and all suits or actions (just or unjust) in which Landlord may beimpleaded with others upon any such above mentioned matter, claim or claims,except as may result from the acts as set forth in Section 14.02.  All merchandise, furniture, fixtures andproperty of every kind, nature and description of Tenant or Tenant’s employees,agents, contractors, invitees, visitors, or guests which may be in or upon thePremises or the Building during the Lease Term shall be at the sole risk andhazard of Tenant, and if the whole or any part thereof shall be damaged,destroyed, stolen or removed by reason of any cause or reason whatsoever, otherthan the negligence or willful misconduct of Landlord, no part of said damageor loss shall be charged to or borne by Landlord.

 

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**14.02****                ****Landlord’sLiability.**

 

Tothe fullest extent permitted by law, Landlord shall indemnify and save harmlessTenant from and against any and all liability, damage, penalties or judgmentsand from and against any claims, actions, proceedings and expenses and costs inconnection therewith, including reasonable counsel fees, arising from (a) adefault by Landlord which has not been cured within the applicable grace periodor (b) injury to person or property sustained by anyone in and about theBuilding, or the Premises, or the Land to the extent such injury results, or isclaimed to have resulted, from any negligent act or omission, or negligence onthe part of Landlord, or Landlord’s contractors,  agents, or employees, except to the extentthat such claims, actions, proceedings and expenses and costs are caused solelyby the negligent acts or omissions of Tenant. Landlord shall, at its own cost and expense, defend any and all suits oractions (just or unjust) in which Tenant may be impleaded with others upon anysuch above mentioned matter, claim or claims, except as may result from theacts as set forth in Section 14.01.

 

**ARTICLE 15Insurance**

 

**15.01****                ****LiabilityInsurance.**

 

Tenant,at its expense, shall maintain in force during the Lease Term commercialgeneral liability insurance in a good and solvent insurance company orcompanies licensed to do business in the Commonwealth of Massachusetts selectedby Tenant and reasonably satisfactory to Landlord in an amount reasonablyrequired by Landlord from time to time but in any event not less than FiveMillion Dollars ($5,000,000.00) per occurrence with respect to bodily injury orproperty damage and Five Million Dollars ($5,000,000.00)  in the aggregate (which such insurance limitsmay be satisfied through a combination of primary and umbrella coverage).  Such policy or policies shall includeLandlord and Landlord’s managing agent and mortgagees as additional insureds.

 

Tenantshall also maintain in force during the Lease Term worker’s compensationinsurance with statutory limits covering all of Tenant’s employees working atthe Premises.

 

**15.02****                ****CasualtyInsurance.**

 

UnlessLandlord shall elect to insure the same, Tenant shall cause all alterations andimprovements to the Premises made by Tenant (“Tenant Improvements”) after theBasic Rent Commencement Date to be insured for the benefit of Landlord andTenant, as their respective interests may appear, against loss or damage underall risk coverage satisfactory to Landlord in an amount equal to thereplacement value thereof.

 

**15.03****                ****Certificates.**

 

Tenantshall deliver certificates of the insurance required under Sections 15.01 and15.02 to Landlord as of the date hereof and thereafter promptly upon renewal ofany such policy.  Any policy of insurancerequired hereunder shall not be cancelable without thirty (30) days’ writtennotice to Landlord.

 

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**15.04****                ****LandlordInsurance.**

 

Landlordshall maintain in full force from the date upon which Tenant first enters thePremises for any reason, throughout the Term, a policy of insurance upon theBuilding (inclusive of Tenant Improvements installed prior to the Basic RentCommencement Date, but exclusive of Tenant Improvements installedthereafter)  insuring against all risksof physical loss or damage under an All Risk coverage endorsement in an amountat least equal to the full replacement value of the property insured, with anAgreed Amount endorsement to satisfy co-insurance requirements, as well asinsurance against breakdown of boilers and other Building machinery ascustomarily insured against.  Landlordshall supply to Tenant from time to time upon request of Tenant certificates ofall such insurance issued by or on behalf of the insurers named therein by aduly authorized agent.  All policies ofinsurance maintained by Landlord shall contain the same waiver of subrogationprovisions for the benefit of Tenant as Tenant is required to obtain in itsinsurance policies for the benefit of Landlord.

 

**ARTICLE 16Waiver of Subrogation**

 

**16.01****                ****Waiverof Subrogation.**

 

Allproperty insurance policies carried by either party covering the Premises,including but not limited to contents, shall expressly waive any right on thepart of the insurer to make any claim against the other party.  The parties hereto agree that their policieswill include such waiver clause or endorsement.

 

**16.02****                ****Waiverof Rights.**

 

Eachof Landlord and Tenant, on behalf of itself and its insurers, hereby waives allclaims, causes of action and rights of recovery against the other and the other’srespective partners, agents, officers and employees, for any damage to ordestruction of property or business which shall occur on or about the Buildingor Land and shall result from any of the perils insured under any and allpolicies of insurance maintained, or required to be maintained, by the waivingparty, regardless of cause, including the negligence and intentional wrongdoingof either party and their respective agents, officers and employees but only tothe extent of recovery (or the estimated extent of recovery had the requiredinsurance been maintained), if any, under such policy or policies of insurance;provided however, that this waiver shall be ineffective in the event any suchinsurer would be relieved from the obligation to make payment pursuant to apolicy of insurance by reason of this waiver.

 

**ARTICLE 17Damage or Destruction**

 

**17.01****                ****Damageby Fire, Casualty, Eminent Domain.**

 

Incase of damage to the Premises by fire or casualty or action of publicauthority in consequence thereof, Landlord shall restore the Premises(inclusive of Tenant Improvements installed prior to the Basic RentCommencement Date) to the same condition it was in prior to the damage,including any alterations or improvements made by parties other than Landlord (butsubject to the last

 

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sentenceof this paragraph hereof), provided, however, that in no event shall Landlordbe required to expend in the repair of the Premises and any other portions ofthe Building sustaining such damage more than the proceeds of such insurancemade available to it by its mortgagee. The work shall be commenced within thirty (30) days after receipt of theinsurance proceeds and completed with due diligence except for delays due togovernmental regulation, unusual scarcity of or inability to obtain labor ormaterials, or causes beyond Landlord’s reasonable control, and Landlord shallbe entitled to receive and retain the proceeds of all insurance against thedamage.  If insurance is not carriedagainst the damage, or if the available insurance proceeds, in Landlord’s solejudgment, would be insufficient to cover the cost of repair to the Premises(inclusive of Tenant Improvements installed prior to the Basic RentCommencement Date), Landlord shall either restore the Premises (inclusive ofTenant Improvements installed prior to the Basic Rent Commencement Date) to thesame condition it was in prior to the damage or taking, including anyalterations or improvements made by parties other than Landlord, or terminatethis Lease by giving Tenant, within sixty (60) days after the damage, at leastfifteen (15) days prior notice specifying the termination date.  Landlord acknowledges that Tenant may requestthat the Premises be restored pursuant to this Section 17.01 to a different,but better, condition than the prior condition of the Premises; provided,however, that if the cost of restoring the Premises to a different conditionexceeds the cost of restoring the Premises to its existing condition, thenTenant shall pay the difference in such costs to the extent not covered byinsurance proceeds to Landlord prior to commencement of restoration.

 

Inthe event that the Building is damaged or destroyed to the extent that Landlordshall reasonably determine that the same cannot, with reasonable diligence, befully repaired or restored by Landlord within a period of nine (9) months afterthe date of receipt of insurance proceeds, Landlord and Tenant each shall havethe option to terminate this Lease. Landlord shall notify Tenant in writing within thirty (30) days afterthe date of such damage or destruction of its determination whether or not theBuilding can be fully repaired or restored within such nine (9) month period (“DeterminationNotice”).  In the event Landlorddetermines that restoration cannot be effected within such nine (9) monthperiod, Landlord or Tenant each shall have the option to terminate this Leaseby giving notice to the other party of such termination within seven (7) daysafter the date of the Determination Notice, which notice shall specify atermination date not less than forty-five (45) days nor more than sixty (60)days following the date of the notice (“Termination Notice”).  Failure to send the Termination Notice in atimely manner shall be conclusively presumed to be a waiver of such option toterminate.  If Landlord determines thatthe Building can be fully repaired or restored within such nine (9) monthperiod, or if it is determined that such repair or restoration cannot be madewithin such period but neither Landlord or Tenant elects to terminate, thisLease shall remain in full force and effect.

 

Ifthe Premises are materially damaged by fire or other casualty during the lasttwenty-four (24) months of the Term and Tenant has not exercised its Termextension rights under this Lease and the estimated restoration period exceedsthe lesser of (i) ninety (90) days or (ii) twenty-five percent (25%) of theremaining Term, then either Landlord or Tenant shall have the right, exercisableby notice delivered within thirty (30) days after the date of such fire orother casualty,  to terminate this Lease,effective as of the date of delivery of such notice.

 

Incase the Premises are rendered untenantable by fire or other casualty or actionof public authority in consequence thereof, and this Lease is not terminated asherein provided, a just proportion

 

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ofthe Rent and real estate taxes, according to the nature of the injury, shall beabated until the repair is completed.

 

**17.02****                ****Restoration.**

 

Landlordmay, but shall not be required to, repair or restore any Tenant Improvementsmade after the Basic Rent Commencement Date, but if Tenant requests thatLandlord do so and Landlord agrees to do so, Tenant shall make the insuranceproceeds applicable thereto available to Landlord, and if the insuranceproceeds will be insufficient to pay the cost thereof, Tenant shall pay theamount of insufficiency to Landlord prior to commencement of restoration ofsuch Tenant Improvements by Landlord.  IfLandlord agrees to restore any Tenant Improvements made after the Basic RentCommencement Date, the nine (9) month period described in Section 17.01 shallbe increased to take into account the additional time required to restore suchTenant Improvements, such additional time not to exceed three (3) months.  Landlord shall not be required to rebuild,repair, or replace any part of Tenant’s furniture, furnishings or fixtures orequipment. Landlord shall use diligent efforts to minimize impact on Tenantduring restoration, but shall not be liable for any inconvenience or annoyanceto Tenant or injury to the business of Tenant resulting in any way from suchdamage or the repair thereof unless Landlord fails to exercise such diligentefforts.

 

**ARTICLE 18Eminent Domain**

 

**18.01****                ****TotalTaking.**

 

Ifthe Premises or the Building should be the subject of a Total Taking, then thisLease shall terminate as of the date when physical possession of the Buildingor the Premises is taken by the condemning authority.

 

**18.02****                ****PartialTaking.**

 

Ifthere shall occur a Partial Taking, Rent shall be abated by an amountrepresenting that part of the Rent properly allocable to the portion of thePremises so taken and Landlord shall, at Landlord’s sole expense, restore andreconstruct the Building (to the extent of the net proceeds made available toLandlord) and the Premises to substantially their former condition to theextent that the same, in Landlord’s judgment, may be feasible.  The Landlord shall have no liability forinterruption of Tenant’s business.

 

**18.03****                ****Awardsand Proceeds.**

 

AllProceeds payable in respect of a Taking shall be the property of Landlord.  Tenant hereby assigns to Landlord all rightsof Tenant in or to such Proceeds, provided that Tenant shall be entitled toseparately petition the condemning authority for any separate award for itsmoving expenses and trade fixtures but only if such a separate award will notdiminish the amount of Proceeds payable to Landlord.

 

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**ARTICLE 19**

**Quiet Enjoyment; Mortgagee’sRights**

 

**19.01****                ****Landlord’sCovenant.**

 

Providedthat an Event of Default has not occurred and is not then continuing, Tenantshall, subject to the Permitted Exceptions, quietly have and enjoy the Premisesduring the Lease Term, without hindrance or molestation from any Personlawfully claiming by, through or under Landlord.

 

**19.02****                ****Superiorityof Lease:  Option to Subordinate.**

 

TheBuilding is not subject to a mortgage as of the date hereof.  In the event that the Building shall becomesubject to any mortgage or deed of trust lien, and the holder thereof desiresto subordinate this Lease,  Landlord,Tenant and applicable lender shall enter into a subordination, non-disturbanceand attornment agreement (“SNDA”) in form and substance reasonably acceptableto Tenant (Tenant hereby agrees that the form attached hereto as Exhibit Gis acceptable).  Tenant agrees to executeand deliver any appropriate instruments necessary to carry out the agreementscontained in this Section 19.02.

 

**19.03****                ****Noticeto Mortgagee.**

 

Noact or failure to act on the part of Landlord which would entitle Tenant underthe terms of this Lease, or by law, to be relieved of Tenant’s obligationshereunder or to terminate this Lease, shall result in a release or terminationof such obligations or a termination of this Lease unless (i) Tenant shallhave first given written notice of Landlord’s act or failure to act to Landlord’smortgagees of which Tenant has been given notice by Landlord (if any)specifying the act or failure to act on the part of Landlord which could orwould give rise to Tenant’s rights, and (ii) such mortgagees, afterreceipt of such notice, have had the opportunity to cure such default within areasonable time thereafter (not to exceed sixty (60) days after the date ofsuch notice); but nothing contained in this Section 19.03 shall be deemedto impose any obligation on any such mortgagees to correct or cure any suchcondition.

 

**19.04****                ****OtherProvisions Regarding Mortgagees.**

 

Ifthis Lease or the Rent due hereunder is assigned to a mortgagee as collateralsecurity for a loan, no such mortgagee shall be deemed to have assumed any ofLandlord’s obligations hereunder solely as a result of such assignment.  A mortgagee to whom this Lease has been so assignedshall be deemed to have assumed such obligations only if (i) by the termsof the instrument of assignment such mortgagee specifically elects to assumesuch obligations or (ii) such mortgagee has (a) foreclosed itsmortgage, (b) accepted a deed in lieu thereof, (c) taken possessionof the Premises by entry or otherwise, or (d) assumed such obligations byway of an SNDA or other agreement with Tenant. Even if such mortgagee assumes the obligations of Landlord hereunder,but except to the extent provided in an SNDA or other agreement between themortgagee and Tenant, (i) any such obligation under Section 24.01 toreturn the Security Deposit to Tenant shall be limited to the amount actuallyreceived by the mortgagee with respect thereto, and (ii) such mortgageewill be liable for breaches of any of Landlord’s obligations hereunder only tothe extent such breaches occur during the period of ownership by the mortgageeafter foreclosure (or any conveyance by a deed in lieu thereof), all as set 

 

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forthin Section 25.08. hereof.  If Tenantis not a public company, Tenant shall from time to time, at the request ofLandlord or any of Landlord’s mortgagees, provide Landlord and such mortgageewith financial information pertaining to Tenant as Landlord or such mortgageemay reasonably request.

 

**ARTICLE 20**

**Defaults; Events of Default**

 

**20.01****                ****Defaults.**

 

Thefollowing shall, if any requirement for notice or lapse of time or both has notbeen met, constitute Defaults, and, if such requirement for notice or lapse oftime have been met, constitute Events of Default hereunder:

 

(1)                                  Occurrence ofany event set forth in Article 21 hereof;

 

(2)                                  The failure ofTenant to pay Rent when the same shall be due and payable and the continuanceof such failure for a period of five (5) days after Landlord shall giveTenant notice specifying such failure, provided, however, that if Tenant hasfailed to timely pay Rent more than two (2) times in a twelve (12) monthperiod, Tenant shall not be entitled to further notice from Landlord;

 

(3)                                  The failure ofTenant to observe any covenant made by it in Sections 13.01, 15.01 and 25.03hereof;

 

(4)                                  The failure ofTenant to keep, observe or perform any of the other covenants, conditions andagreements herein contained on Tenant’s part to be kept, observed or performedand the continuance of such failure without the curing of same for a period ofthirty (30) days after receipt by Tenant of notice in writing from Landlordspecifying in reasonable detail the nature of such failure.

 

**20.02****                ****ExtendedCure Period.**

 

Inthe event that the Default under Section 20.01(4) is of such a naturethat it cannot be cured within such thirty (30) day period, then such Defaultshall not be deemed to be an Event of Default so long as Tenant, afterreceiving such notice, proceeds to cure the Default as soon as reasonablypossible and continues to take all steps reasonably necessary to complete thesame within a period of time which, under all prevailing circumstances, shallbe reasonable.  No such Default shall bedeemed to be an Event of Default if and so long as Tenant shall be soproceeding to cure the same in good faith or be delayed in or prevented fromcuring the same by reason of Force Majeure.

 

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**ARTICLE 21**

**Insolvency**

 

**21.01****                ****Insolvency.**

 

If(1) there occurs with respect to Tenant an Insolvency or (2) anyexecution or attachment is issued against Tenant or any of its property and asa result thereof the Premises are taken or occupied by some Person other thanTenant, except as may herein be permitted, then an Event of Default hereundershall be deemed to have occurred so that the provisions of Article 22hereof shall become effective and Landlord shall have the rights and remediesprovided for therein.

 

**ARTICLE 22**

**Landlord’s Remedies; Damages onDefault**

 

**22.01****                ****Landlord’sRemedies.**

 

Ifan Event of Default shall occur and be continuing, Landlord may, at its option,give to Tenant a notice terminating this Lease upon a date specified in suchnotice, or Landlord may enter the Premises for the purpose of terminating thisLease, and upon the date specified in said notice or upon such entry the termand estate hereby vested in Tenant shall cease and any and all other right, titleand interest of Tenant hereunder shall likewise cease without further notice orlapse of time, as fully and with like effect as if the entire Lease Term hadlapsed, but Tenant shall continue to be liable to Landlord as hereinafterprovided.

 

Ifsuch Event of Default results from Tenant’s failure to pay any sums payableunder Section 7.01, Landlord may, at its option, in addition to or in lieuof the other remedies available to Landlord, refuse Tenant access to thePremises.

 

**22.02****                ****Surrender.**

 

Uponany termination of this Lease as the result of an Event of Default, Tenantshall quit and peacefully surrender the Premises to Landlord.  Upon or at any time after any suchtermination, Landlord may without further notice enter the Premises and possessitself thereof by summary proceedings or otherwise, and may dispossess Tenantand remove Tenant and all other Persons and property from the Premises and mayhave, hold and enjoy the Premises and the right to receive all rental income ofand from the same.

 

**22.03****                ****Rightto Relet.**

 

Atany time from time to time after any termination of this Lease as the result ofan Event of Default, Landlord may relet the Premises or any part thereof, inthe name of Landlord or otherwise, for such term or terms (which may be greateror less than the period which would otherwise have constituted the balance ofthe Lease Term) and on such conditions (which may include concessions or freerent) as Landlord, in its reasonable discretion, may determine and may collectand receive the rents therefor.  Landlordshall in no way be responsible or liable for any failure to relet the Premisesor any part thereof, or for any failure to collect any rent due upon any suchreletting.

 

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**22.04****                ****Survivalof Covenants.**

 

Notermination of this Lease as the result of an Event of Default shall relieveTenant of its liability and obligations under this Lease and such liability andobligations shall survive any such termination. Tenant shall indemnify and hold Landlord harmless from all loss, cost,expense, damage or liability arising out of or in connection with suchtermination.

 

Inthe event of any such termination, Tenant shall pay to the Landlord the Rent upto the date of such termination.  Tenantshall also pay to Landlord, on demand, as and for liquidated and agreed damagesfor Tenant’s Default, the present value of the difference between

 

(1)                                  the aggregateRent which would have been payable under this Lease by Tenant from the date ofsuch termination until the Stated Expiration Date, and

 

(2)                                  the fair andreasonable rental value of the Premises for the same period excluding Landlord’sreasonable estimate of expenses to be incurred in connection with reletting thePremises, including, without limitation, all repossession costs, brokeragecommissions, legal expenses, reasonable attorney’s fees, alteration costs andexpenses of preparation for such reletting.

 

Ifthe Premises or any part thereof shall be relet by Landlord before presentationof proof of such liquidated damages to any court, commission or tribunal, theamount of rent reserved upon such reletting shall be, prima facie, thefair and reasonable rental value for the part or the whole of the Premises sorelet during the term of the reletting.

 

Asadditional and cumulative obligations after any such termination, Tenant shallalso pay punctually to Landlord all the sums and shall perform all theobligations which Tenant covenants in this Lease to pay and to perform in thesame manner and to the same extent and at the same time as if this Lease hadnot been terminated.  In calculating theamounts to be paid by Tenant pursuant to the preceding sentence, Tenant shallbe credited with any amount paid to Landlord pursuant to the second paragraphof this Section 22.04 and also with the net proceeds of any rent obtainedby Landlord by reletting the Premises, after deducting all Landlord’sreasonable expenses in connection with such reletting, including, withoutlimitation, all repossession costs,  feesfor legal services and expenses of preparing the Premises for such reletting,all to the extent Landlord has not been previously compensated therefor byTenant, it being agreed by Tenant that Landlord may (i) relet the Premisesor any part or parts thereof for a term or terms which may at Landlord’s optionbe equal to or less than or exceed the period which would otherwise haveconstituted the balance of the term hereof and may grant such concessions andfree rent as Landlord in its reasonable judgment considers advisable ornecessary to relet the same and (ii) make such alterations, repairs anddecorations in the Premises as Landlord in its reasonable judgment considersadvisable or necessary to relet the same, and no action of Landlord inaccordance with the foregoing or failure to relet or to collect rent underreletting shall operate or be construed to release or reduce Tenant’s liabilityas aforesaid.

 

Nothingherein contained shall limit or prejudice the right of Landlord to prove forand 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 

 

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theproceedings in which, such damages are to be proved, whether or not such amountbe greater, equal to, or less than the amount of the difference referred toabove.

 

**22.05****                ****Rightto Equitable Relief.**

 

Ifthere shall occur a Default or threatened Default, Landlord shall be entitledto enjoin such Default or threatened Default and shall have the right to invokeany right and remedy allowed at law or in equity or by statute or otherwise asthough re-entry, summary proceedings, and other remedies were not provided forin this Lease.

 

**22.06****                ****Landlord’sRight to Self Help;  Interest on OverdueRent.**

 

Ifan Event of Default shall occur and be continuing, Landlord shall have theright, but shall not be obligated, to enter upon the Premises and toperform  the defaulted obligation notwithstandingthe fact that no specific provision for such substituted performance byLandlord is made in this Lease with respect to such Event of Default.  In performing such obligation, Landlord maymake any payment of money or perform any other act.  The aggregate of (i) all sums so paid byLandlord, (ii) interest (at the rate of 1 1/2% per month or the highestrate permitted by law, whichever is less) on such sums and (iii) allnecessary incidental costs and expenses in connection with the performance ofany such act by Landlord, shall be deemed to be Rent under this Lease and shallbe payable to Landlord immediately upon demand. Landlord may exercise the foregoing rights without waiving any other ofits rights or releasing Tenant from any of its obligations under this Lease.

 

AllRent not paid when due shall bear interest at the rate provided in thepreceding paragraph, payable on demand.

 

**22.07****                ****Paymentof Landlord’s Cost of Enforcement.**

 

Tenantshall pay, on demand, Landlord’s expenses, including reasonable attorney’sfees, incurred in enforcing any obligation of Tenant under this Lease or incuring any default by Tenant under this Lease as provided in Section 22.06.

 

**22.08****                ****FurtherRemedies.**

 

Uponany termination of this Lease pursuant to Section 22.01, or at any timethereafter, Landlord may, in addition to and without prejudice to any otherrights and remedies Landlord shall have at law or in equity, re enter thePremises, and recover possession thereof and may dispossess any or alloccupants of the Premises in the manner prescribed by the statute relating tosummary proceedings, or similar statute(s); but Tenant in such case shallremain liable to Landlord as hereinbefore provided.

 

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**ARTICLE 23**

**Waivers; Landlord Default**

 

**23.01****                ****NoWaivers.**

 

Failureof Landlord to complain of any act or omission on the part of Tenant no matterhow long the same may continue, shall not be deemed to be a waiver by saidLandlord of any of its rights hereunder. No waiver by Landlord of any provision of this Lease shall be deemed awaiver of a breach of the same or any other provision.  No acceptance by Landlord of any partialpayment shall constitute an accord or satisfaction but shall only be deemed apartial payment on account.

 

**23.02****                ****LandlordDefault**

 

Landlordshall be deemed to be in default of this Lease if Landlord shall be in defaultin the prompt and full performance of any other of its promises, covenants oragreements contained in this Lease and such default in performance continuesfor more than thirty (30) days after written notice thereof from Tenant toLandlord specifying the particulars of such default or breach of performance;provided, however, that if the default complained of, other than for thepayment of monies, is of such a nature that the same cannot be rectified orcured within such thirty (30) day period, then such default shall be deemed tobe rectified or cured if Landlord, within such thirty (30) day period, shallhave commenced such cure and shall continue thereafter with due diligence tocause such cure to be completed.  Uponany default of this Lease by Landlord, Tenant shall be entitled to pursue anyand all remedies available to Tenant at law or in equity.

 

**ARTICLE 24**

**Security Deposit**

 

**24.01****                ****SecurityDeposit.**

 

Tenanthas deposited the Security Deposit with Landlord.  Landlord shall hold the Security Deposit assecurity for the full and faithful payment or performance by Tenant of itsobligations under this Lease and not as a prepayment of Rent. Landlord maycommingle the Security Deposit with other funds of Landlord and shall not beliable to Tenant for the payment of interest thereon or profits therefrom.Landlord may expend such amounts from the Security Deposit as may be necessaryto cure any Default and, in such case, Tenant shall pay to Landlord the amountso expended, on demand.  Landlord mayassign the Security Deposit to any subsequent owner of the Building andthereafter Landlord shall have no further liability to Tenant with respectthereto.  As soon as reasonablypracticable after the Lease Termination Date, Landlord shall (i) inspectthe Premises, (ii) make such payments from the Security Deposit as may berequired to cure any outstanding Default hereunder and (iii) if no Defaultis then continuing, pay the balance of the Security Deposit to Tenant.

 

TheSecurity Deposit may be in the form of an irrevocable, unconditional,negotiable letter of credit (the “Letter of Credit”). The Letter of Creditshall: (a) be in the  amountrequired hereby; (b) be in form and substance satisfactory to Landlord; (c) nameLandlord as its beneficiary; (d) be drawn on an FDIC insured financialinstitution reasonably satisfactory to the Landlord; (e) expire no earlierthan sixty (60) days after the Termination Date of this Lease (f) betransferable by Landlord as beneficiary 

 

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uponpresentation of the letter of credit, a transfer certificate in the formattached to the letter of credit and the payment by Landlord of a transferadministrative fee acceptable to Landlord set forth on the face of the letterof credit.  If any reasonable transferfee is required in connection with the sale of the Building by Landlord,Landlord shall be solely responsible for payment of such fee. If Landlord shallreasonably determine at any time that the issuer is no longer satisfactory,Tenant shall provide a replacement Letter of Credit complying with theforegoing within thirty (30) days after notice from Landlord.

 

**ARTICLE 25**

**General Provisions**

 

**25.01****                ****ForceMajeure.**

 

Inthe event that Landlord or Tenant shall be delayed, hindered in or preventedfrom the performance of any act required hereunder by reason of Force Majeure,then performance of such act shall be excused for the period of the delay andthe period for the performance of any such act shall be extended for a periodequivalent to the period of such delay.

 

**25.02****                ****Noticesand Communications.**

 

Allnotices, demands, requests, consents, approvals and other communications providedfor or permitted under this Lease shall be in writing, either delivered by handor sent by registered or certified mail, postage prepaid or by a recognizedcourier which maintains delivery records, to the following address:

 

(a)                                  if to Landlordat the address stated in Section 1.01 hereof, or at such other address asLandlord shall have designated in writing to the Tenant, with a copy to suchPersons as Landlord shall have designated in writing to Tenant; or

 

(b)                                 if to Tenant atthe address stated in Section 1.01 hereof, or at such other address asTenant shall have designated in writing to Landlord, with a copy to suchpersons as Tenant shall have designated in writing to Landlord.

 

Anynotice provided for herein shall become effective only upon and at the time ofreceipt by the Person to whom it is given, unless such notice is mailed byregistered or certified mail, in which case it shall be deemed to be receivedon (i) the third Business Day following the mailing thereof or (ii) theday of its receipt, if a Business Day, or the next succeeding Business Day,whichever of (i) or (ii) shall be the earlier.

 

**25.03****                ****TenantEstoppel Certificate.**

 

Tenantshall, without charge, at any time and from time to time hereafter, withinfifteen (15) days after written request of Landlord, certify by writteninstrument in the form of Exhibit F, duly executed and acknowledged toLandlord or any mortgagee or purchaser, or proposed mortgagee or proposedpurchaser, or any Person specified in such request; (a) as to whether thisLease has been supplemented or amended, and if so, the substance and manner ofsuch supplement or amendment, (b) 

 

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asto the existence of any Default or Event of Default, (c) as to theexistence of any offsets, counterclaims or defenses thereto on the part ofTenant, (d) as to the Term Commencement Date and Stated Expiration Date,and (e) as to the other matters set forth in Exhibit F and any othermatters as Landlord may reasonably request. Any such certificate may be relied upon by Landlord and any other Personto whom the same may be exhibited or delivered, and the contents of suchcertificate shall be binding on the party executing same.

 

**25.04****                ****GoverningLaw.**

 

ThisLease and the performance thereof shall be governed, interpreted, construed andregulated by the laws of The Commonwealth of Massachusetts.

 

**25.05****                ****PartialInvalidity.**

 

Ifany term, covenant, condition or provision of this Lease or the applicationthereof to any person or circumstance shall, at any time or to any extent, beinvalid or unenforceable, the remainder of this Lease, or the application ofsuch term or provision to persons or circumstances other than those as to whichit is held invalid or unenforceable, shall not be affected thereby, and eachterm, covenant, condition and provision of this Lease shall be valid and beenforced to the fullest extent permitted by law.

 

**25.06****                ****Noticeof Lease.**

 

Theparties will at any time, at the request of either one, promptly executeduplicate originals of an instrument, in recordable form, which will constitutea Notice of Lease, setting forth a description of the Premises and the LeaseTerm.  The cost of review and recordingshall be borne by Tenant.

 

**25.07****                ****Interpretation.**

 

TheSection headings used herein are for reference and convenience only andshall not enter into the interpretation hereof. This Lease may be executed in several counterparts, each of which shallbe an original, but all of which shall constitute one and the same instrument.

 

**25.08****                ****Bindand Inure; Limitation of Landlord’s Liability.**

 

Theobligations of this Lease shall run with the land, and this Lease shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns. No owner of the Land and Building shall beliable under this Lease except for breaches of Landlord’s obligations occurringwhile owner of the Land and Building. The obligations of Landlord shall be binding upon the assets of Landlordwhich comprise the Land and Building but not upon other assets ofLandlord.  No individual partner,trustee, stockholder, officer, director, employee or beneficiary of Landlordshall be personally liable under this Lease and Tenant shall look solely to Landlord’sinterest in the Land and Building in pursuit of its remedies upon an event ofdefault hereunder, and the general assets of Landlord and its partners,trustees, stockholders, officers, employees or beneficiaries of Landlord shallnot be subject to levy, execution or other enforcement procedure for thesatisfaction of the remedies of Tenant.

 

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**25.09****                ****Parties.**

 

Exceptas herein otherwise expressly provided, the covenants, conditions andagreements contained in this Lease shall be binding upon the heirs, successorsand assigns of the Parties hereto.

 

**ARTICLE 26**

**Miscellaneous**

 

**26.01****                ****Holdover.**

 

In the event Tenant shall fail to vacate the Premises by the LeaseTermination Date, Tenant shall pay Basic Rent to Landlord in an amount equal toone and one-half (1.5) times the monthly Basic Rent for each month or portionthereof that Tenant remains in possession (the “Holdover Rental Rate”). Tenantshall also pay all Additional Rent provided herein.  The Holdover Rental Rate shall be paidmonthly in advance to Landlord.  Indetermining the Holdover Rental Rate Landlord shall charge one and one-half(1.5) times the monthly Basic Rent in effect for the last full calendar monthof the Lease Term.  In addition to theHoldover Rental Rate, Landlord shall be entitled to seek to recover fulldamages sustained as a result of said holdover if such holdover is greater thanthirty (30) days after the Lease Termination Date.

 

**26.02****                ****ReciprocalLitigation Costs**

 

Inthe event of any litigation between Landlord and Tenant, the unsuccessful partyas determined by a court of competent jurisdiction shall reimburse thesuccessful party for all reasonable legal fees and expenses incurred by thesuccessful party in prosecuting or defending any such action.

 

**26.03****                ****Brokerage.**

 

Tenantwarrants and represents to Landlord that it has had no dealings with any brokeror agent in connection with this Lease other than T3 Realty Advisors, LLC andcovenants to defend, with counsel approved by Landlord, hold harmless andindemnify Landlord from and against any and all cost, expense or liability forany compensation, commissions and charges claimed by any broker or agent otherthan T3 Realty Advisors, LLC based upon dealings with Tenant.  Landlord shall pay T3 Realty Advisors, LLC acommission based on a standard Industrial schedule.

 

Inthe event Tenant exercises its Right of First Offer during the original leaseterm on the additional 22,000 square feet and a mutually acceptable leaseamendment is executed between Landlord and Tenant incorporating this additionalsquare footage into the Lease, and T3 Realty Advisors, LLC remains the brokerof record, T3 Realty Advisors, LLC shall be paid an additional commission bythe Landlord based on a standard industrial schedule.

 

**26.04****                ****Landlord’sExpenses Regarding Consents.**

 

Tenantshall reimburse Landlord promptly on demand for all reasonable legal and otherout-of-pocket expenses incurred by Landlord in connection with all requests byTenant for consent or 

 

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approvalhereunder, except that there shall be no charge to Tenant for Landlord’s reviewof the initial Tenant Improvement Plans.

 

**26.05****                ****FinancialStatements.**

 

IfTenant is not a public company, within ten (10) days after request by Landlordfrom time to time, Tenant shall deliver to Landlord Tenant’s audited financialstatements (which shall be for the latest available year and in any event for ayear ended not more than fifteen (15) months prior to Landlord’s request).  Such financial statements may be delivered toLandlord’s mortgagees and lenders and prospective mortgagees, lenders,investors and purchasers.

 

**26.06****                ****Signage.**

 

Landlordwill permit Tenant to install, at Tenant’s sole cost and expense, exteriorbuilding signage on the I-495 (east) side of the Building as well as monumentsignage at the main entrance off Flanders Road and on the exterior of the Building above the mainentrance.  Landlord will provideappropriate directional signage for deliveries. All signage shall be subject to Landlord’s reasonable prior approval,such approval not to be unreasonably withheld, and in accordance with LegalRequirements.

 

**26.07****                ****Optionto Extend Term.**

 

Tenantshall have the option to extend the term of this Lease for one (1) five (5)year extension term (“Extension Term”) provided (i) no Event of Default shallexist at the time such option is exercised (ii) Tenant has not assigned thisLease or sublet the Premises at the time such option is exercised, and (iii)Tenant shall give written notice to Landlord of its exercise of such option notless than nine (9) months prior to expiration of the original term, **time being of the essence for the giving of suchnotice**.  The giving of suchnotice by Tenant shall automatically extend the Term of this Lease for theExtension Term and no instrument of renewal need be executed.  All of the terms and provisions of this Leaseshall be applicable during the Extension Term except (a) Tenant shall have nooption to extend the term of the Lease beyond the Extension Term, (b) the BasicRent for the Extension Term shall be the greater of the Basic Rent in effectimmediately prior to the Extension Term or ninety-five percent (95%) of thethen Market Rent (defined below) as of the first day of the Extension Term.

 

“MarketRent” shall be computed as of the applicable date at the then current rentalsbeing charged to new tenants for comparable space located in the vicinity ofthe Building, taking into account and giving effect to, in determiningcomparability, without limitation, such considerations as size, location, andlease term.

 

Landlordshall initially designate the Market Rent and shall furnish data in support ofsuch designation.  If Tenant disagreeswith Landlord’s designation of Market Rent, then Tenant shall have the right,by written notice given within twenty-one (21) days after Tenant has beennotified of Landlord’s designation, to submit such Market Rent to arbitrationas follows.  Market Rent shall bedetermined by arbitrators, one to be chosen by Tenant, one to be chosen byLandlord and a third to be selected, if necessary, as below provided.  If within twenty (20) days after Tenant’snotice, the parties 

 

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agreeupon a single arbitrator, Market Rent shall be determined by sucharbitrator.  The unanimous writtendecision of the two first chosen arbitrators without selection andparticipation of a third arbitrator, or otherwise the written decision of amajority of the three arbitrators chosen and selected as provided herein, shallbe conclusive and binding upon Landlord and Tenant.  Landlord and Tenant shall each notify theother of its chosen arbitrator within twenty-one (21) days following the callfor arbitration and, unless such two arbitrators shall have reached a unanimousdecision within thirty (30) days after their designation, then they shall sonotify the then President of the Boston Bar Association and request him toselect an impartial third arbitrator, who shall be another office buildingowner, a real estate counselor or a broker dealing with like types ofproperties, to determine Market Rent as herein defined.  Such third arbitrator and the first twochosen shall hear the parties and their evidence and render their decisionwithin thirty (30) days following the conclusion of such hearing and notifyLandlord and Tenant thereof. Landlord and Tenant shall bear the expense of thethird arbitrator (if any) equally. If the dispute between the parties as toMarket Rent has not been resolved before the commencement of Tenant’sobligation to pay rent under the Lease in Market Rent, then Tenant shall payrent under the Lease in respect of the Premises based upon the Market Rentdesignated by Landlord until either the agreement of the parties as to theMarket Rent or the decision of the arbitrators, as the case may be, at whichtime Tenant shall pay any underpayment of rent to Landlord, or Landlord shallrefund any overpayment of rent to Tenant.

 

**26.08****                ****Tenant’sOption to Terminate.**

 

Tenantshall have the right, on the date which is the fifth (5th) anniversary of the BasicRent Commencement Date (the “Termination Date”), to terminate this Lease.  Such option shall be exercised by Tenantgiving Landlord notice (the “Termination Notice”) of its intention so toterminate, which notice shall be given not less than twelve (12) months priorto the Termination Date, **time being of theessence for the giving of such notice**.  If Tenant exercises its termination option asaforesaid, then this Lease shall terminate as of the Termination Date just asif such date were the date of expiration of the Term, provided, however, thatTenant shall pay to Landlord, and as a condition to the effectiveness of theTermination Notice, a payment (the “Termination Payment”) equal to thefollowing unamortized transaction costs: leasing commissions, the Allowance (asdefined in Exhibit C), costs of the Predelivery Landlord’s Work and theAdditional Landlord’s Work, reasonable attorney’s fees, reasonablearchitectural and engineering fees, all amortized on a level payment directreduction basis over the original Term, with interest at the rate of ten percent(10%) interest per annum, plus an amount equal to six (6) months of the BasicRent at the rate provided for the last five (5) years of the Lease Term.  The Termination Payment shall be due with theTermination Notice.  At the request ofeither party, the amount of the Termination Payment shall be memorialized inwriting once all costs have been finally determined.

 

**26.09****                ****Expansion;Right of First Offer.**

 

(a)           Inthe event Tenant requests expansion into the remaining 22,000 square foot space(the “Expansion Space”) currently leased (the “Bel Lease”) by Bel Power (“Bel”)prior to Bel’s lease expiration date of February 28, 2014 (the “Bel ExpirationDate”), Landlord shall use its best efforts (but without liability if it shallbe unsuccessful) to enter into an early termination with Bel and, if Landlordis successful, this Lease shall be amended to incorporate the Expansion Spaceon all of the 

 

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sameterms and conditions as are applicable to the Premises, and the Term of theLease for the Expansion Space shall be coterminous with the Lease Term exceptthat (i) the Expansion Space shall be leased AS IS with no Landlordconstruction obligations and no allowance except that Landlord shall completethe Bel Power Space Environmental Work in the Expansion Space shown on ExhibitC prior to Tenant’s occupancy thereof and (ii) for the period prior to February28, 2014, the Basic Rent shall be the per square foot Basic Rent in effect fromtime to time under this Lease, adjusted to compensate Landlord for the net costto Landlord of effecting such early termination (including any reduction ofrent arising therefrom), if any, but in no event shall the Basic Rent for theExpansion Space for the period from the Expansion Space Rent Commencement Date(as hereinafter defined) to February 28, 2014 exceed the basic rent that wouldhave been payable under the Bel Lease during such period; and from and afterMarch 1, 2014 through the Stated Expiration Date (as the same may be extendedor terminated), the Basic Rent for the Expansion Space shall be the per footBasic Rent in effect from time to time under this Lease.  Landlord’s obligation to use its best effortsto enter into an early termination of the Bel Lease pursuant to this Section26.09(a) shall not include any obligation to make any termination or otherpayment to Bel unless Tenant provides the funds therefor.

 

The “Expansion Space Rent Commencement Date” shallbe the date upon which the Expansion Space is delivered to Tenant broom cleanand free of all occupants with the Bel Power Space Environmental Work shown onExhibit C complete.

 

(b)           ProvidedTenant has not committed more than two (2) Events of Default in the precedingeighteen (18) month period prior to exercise, Tenant shall have a continuingright of first offer to lease the Expansion Space on the following terms andconditions:

 

(i)                                     Prior tooffering the Expansion Space for lease to third parties, Landlord shall firstadvise Tenant in writing (the “Offer Notice”) of the terms and conditions uponwhich Landlord is prepared to lease the Expansion Space, including term, rent,additional rent and, if applicable, tenant improvement and allowance packages,free rent and any other relevant terms (the “Offered Terms”);

 

(ii)                                  Tenant shallaccept or reject the offer made in the Offer Notice within fifteen (15) daysafter the date of delivery of the Offer Notice (Tenant’s failure to accept suchoffer in writing within such fifteen-day period shall be deemed an election toreject such offer);

 

(iii)                               In the eventTenant timely accepts the offer set forth in the Offer Notice, Landlord andTenant shall within fifteen (15) days after the date of acceptance enter intoan amendment to this Lease incorporating the Expansion Space into the Premiseson the Offered Terms, except that if the Offered Terms for the Expansion Spaceinclude a term that would expire before the expiration date of the  Lease Term, then the term for the ExpansionSpace shall be extended to be made coterminous with the  Lease Term, and the Rent for such extendedperiod shall be the Rent in effect for the final year as set forth in theOffered Terms;

 

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(iv)                              In the eventTenant rejects or is deemed to have rejected the offer set forth in the OfferNotice, Landlord shall be free for a period of 210 days after the date ofrejection or deemed rejection (the “Marketing Period”) to lease the ExpansionSpace to a third party or parties on terms not materially more favorable to suchparty or parties than the Offered Terms (with respect to rental rate, “materially”as used herein shall mean a net effective rental rate that is more than tenpercent (10%) lower than the net effective rental rate set forth in the OfferNotice); and

 

(v)                                 In the eventLandlord has not by expiration of the Marketing Period executed a lease with athird party complying with the provisions of clause (iv) above, then Tenant’sright of first offer shall again apply to the Expansion Space.

 

(c)           Notwithstandinganything to the contrary contained herein, if, prior to the Bel ExpirationDate, Bel desires to assign its interest under the Bel Lease or sublease all ora portion of the Expansion Space to a third-party, Landlord shall notify Tenantof the proposed Bel assignment or subletting within two (2) business days afterLandlord receives notice thereof from Bel. If Tenant notifies Landlord within five (5) days after receipt of noticefrom Landlord that Tenant desires to expand into the Expansion Space (or the portionthereof available), Landlord shall terminate the lease with Bel in the case ofan assignment or, in case of a sublease, terminate the Bel Lease with respectto the portion of the Expansion Space intended to be subject thereto, suchtermination to be effective as of the date such assignment or sublease wouldhave commenced.  If Landlord terminatesthe Bel Lease in whole or in part pursuant to the foregoing, Tenant shall leasethe Expansion Space (or portion thereof) as of the Expansion Space Rent CommencementDate on the terms and conditions set forth in Section 26.09(a) above.

 

(d)           Notwithstandinganything to the contrary contained herein or in the Bel Lease, if Bel agrees toassign its interest under the Bel Lease or sublease the Expansion Space to Tenant,no consent of Landlord shall be required and, if the Bel Lease is assigned toTenant, Landlord shall execute such release of Bel of Bel’s obligations underthe Bel Lease for the period following assignment as may reasonably berequested by Bel. Landlord shall not be required to complete the Bel PowerSpace Environmental Work in the Expansion Space shown on Exhibit C. Upon theexpiration of the assignment or subletting arrangement with Bel on the BelExpiration Date, this Lease shall be amended to incorporate the Expansion Spaceon all of the same terms and conditions as are applicable to the Premises, andthe Basic Rent for the Expansion Space shall be the per square foot rental ratethen in effect under this Lease for the remainder of the Premises, and (iii)the term of the lease for the Expansion Space shall be coterminous with theLease Term (as the same may be extended or terminated).

 

**26.10****                ****HVAC.**

 

Tenantshall have the right to operate the multiple gas fired roof top units withsupplemental gas fired hanging heaters at the Premises twenty-four (24) hoursper day, seven (7) days per week.  Tenantshall have full control of the temperature within the Premises.  Subject to Landlord’s review and approval ofthe HVAC Equipment specifications and Tenant’s installation plans by aqualified contractor or vendor selected by Tenant in its sole discretion, suchapproval not to be unreasonably 

 

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withheld,Tenant shall be permitted to replace, at Tenant’s sole cost, the heating,ventilating, and air conditioning systems and appurtenances (“HVAC Equipment”)serving the Premises throughout the Lease Term with equal or betterequipment.  Any such installation of HVACEquipment by Tenant during the Term shall be performed in a manner that doesnot void the current roof warranty of the Building.  Tenant shall be responsible for the cost ofreplacement of HVAC Equipment throughout the Lease Term; provided, however,that Landlord shall not be permitted to seek reimbursement from Tenant forreplacement of any HVAC Equipment that is not beyond its useful life unlesssuch HVAC Equipment is malfunctioning or non-functional.

 

**26.11****                ****Generator.**

 

Tenant,at Tenant’s sole cost, shall have the right to install a generator on an existingpad on the south side of the Building, with Landlord approval, not to beunreasonably withheld.

 

**26.12****                ****LN2Tank.**

 

Landlordshall endeavor (at no cost to Landlord) to arrange for the use by Tenant of anexisting LN2 tank at the Building that is operated and leased by anothertenant.   If Tenant is permitted use ofsuch tank, Tenant shall have the right but not the obligation to change thesize of the tank.  Use of the tank shallbe subject to Landlord’s review and approval, not to be unreasonably withheld.

 

**26.13****                ****TestTrailer.**

 

Subjectto Landlord’s approval, which shall not be unreasonably withheld, andcompliance by Tenant with all applicable Legal Requirements, Tenant, at itsexpense, shall have the right to install a test trailer (the “Test Trailer”) onthe Premises, to be located at the rear of Building in the parking lot or onexisting concrete slab.  Tenant, at itsexpense, will install power to this Test Trailer

 

**26.14****                ****Patio.**

 

Subjectto Landlord’s approval, which shall not be unreasonably withheld, andcompliance by Tenant will all applicable Legal Requirements, Tenant shall havethe right to construct a patio for outdoor seating located near rear employeeentrance.

 

**26.15****                ****SmokingArea.**

 

Subjectto Landlord’s approval, which shall not be unreasonably withheld, andcompliance by Tenant will all applicable Legal Requirements, Tenant shall havethe right to install an outdoor covered smoking area located near employeeentrance.

 

**26.16****                ****Loading.**

 

Tenantshall have the exclusive use of all loading docks within its Premises.  Landlord shall allow Tenant to construct ametal structure around four (4) of the loading docks to create a secure andweather resistant enclosure large enough to house 53 foot tractor trailers.  Construction and use of this 

 

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structureshall be subject to all applicable Legal Requirements and Landlord’s review andapproval, not to be unreasonably withheld.

 

**26.17****                ****Parking.**

 

Tenantshall be provided parking in common with the other tenants at the Building onan open lot adjacent to the Building in accordance with the terms of “Exhibit I”attached hereto.

 

**26.18****                ****Roof.**

 

Landlordrepresents and warrants that the roof of the Building was replaced with a SikaSarnafil 60 mil, fully adhered white PVC roof in April, 2009.  Landlord shall provide to Tenant, upon Tenant’srequest, a copy of the twenty (20) year manufacturer warranty obtained inconnection with this roof replacement.

 

**26.19****                ****Compliancewith Laws.**

 

Landlordrepresents and warrants to Tenant that as of the date hereof (a) the baseBuilding core, shell and surrounding site work comply in all material respectswith all applicable zoning, land use and environmental laws, regulations,agreements and building codes, including without limitation, the requirementsof the Americans with Disabilities Act (ADA) and all regulations thereunder,and the requirements of all easement and encumbrance documents and, subject toTenant’s obligations under this Lease, Landlord covenants to keep the samematerially, in compliance throughout the Term; (b) the Permitted Uses arepermitted as of right on the parcel described on “Exhibit A”; (c) Landlordholds fee simple title to the parcel described on “Exhibit A”, subject to nomortgage; (d) Landlord has full power and authority to enter into this Leaseand has obtained all consents and taken all actions necessary in connectiontherewith; and (e) no other party has any possessory right to the Premises orhas claimed the same.

 

**26.20****                ****Environmental.**

 

Landlordcovenants that it has provided to Tenant all reports and material documentsrelating to the environmental status of the Land and the Building in Landlord’spossession.  Prior to the TermCommencement Date, Landlord shall perform the environmental testing provided inExhibit C.

 

**26.21****                ****ExpeditedArbitration.**

 

Wheneverthis Lease calls for expedited arbitration, such arbitration shall be conductedunder this Section 26.21.  An arbitrationunder this Section 26.21 (“Expedited Arbitration”) shall be conducted by oneneutral Arbitrator (who shall be retired judge experienced in resolvingcommercial real property disputes in Massachusetts and who shall be independentand unaffiliated with either party) mutually agreed upon by the parties, or ifthey cannot agree on a single arbitrator within five (5) business days afterthis Section 26.21 is invoked, then by JAMS, which shall select such singlearbitrator from a list of no more than five (5) names submitted by each partyto the Expedited Arbitration.  TheArbitrator so selected shall then hold a hearing within five (5) business daysafter notification to him of his selection, at which each party may present itsposition on the issue in 

 

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question,with any written documents and testimony of witnesses that such party believesis necessary to support its position; provided, however, no party shall bepermitted to present more than eight (8) hours of witness testimony andargument to the Arbitrator, unless both parties agree otherwise.  There shall be no discovery proceduresallowed in connection with such Expedited Arbitration, and no party shall haveany contact with the Arbitrator except at the hearing.  The Arbitrator shall render his decision onthe issue by a written notice to the parties involved within five (5) businessdays after concluding the hearing (which may be adjourned by the Arbitrator inhis reasonable discretion).  The decisionof the Arbitrator shall be final and binding on and non-appealable by the partiesfor the purposes of this Agreement and may be enforced by a court of competentjurisdiction.  Except as providedotherwise herein, such Expedited Arbitration shall be conducted in accordancewith the Commercial Arbitration Rules of JAMS or the American ArbitrationAssociation.  If JAMS shall cease toexist and/or shall decline to serve under this Agreement as to any matter underdispute that has been submitted to Expedited Arbitration, then the partiesshall mutually select an alternative qualified arbitrator, and in the absenceof an agreement with respect thereto within five (5) business days, eitherparty shall have the right, upon written notice to the other party, to apply tothe President of the Boston Bar Association for the selection of an independent,unaffiliated and qualified arbitrator. If awarded by the Arbitrator, the prevailing party in any decision ofthe Arbitrator under this Section 26.21 shall be reimbursed its reasonablecosts and expenses in participating in such proceeding by the other partiesthereto, including all fees charged by the Arbitrator.  Neither party shall have previously employedor shall have had a prior contractual relationship with any Arbitrator that ischosen pursuant to this Section 26.21. The provisions of this Section 26.21 shall only be applicable to mattersor events expressly provided for in this Lease to be resolved by expeditedarbitration and not otherwise.

 

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**26.22****                ****LandlordCooperation.**

 

Landlord is aware that Tenant intends to apply forfederal, state and local grants, loans, tax abatements and reductions and otherincentives with respect to its business to be conducted at the Premises.Landlord agrees to reasonably cooperate (at no out-of-pocket expense toLandlord and without incurring any liability to Landlord on account of suchcooperation) with such activities and in no way object to or impede suchactivities.  In connection with theforegoing, Landlord agrees, at the request of Tenant, to execute anycommercially reasonable documentation related to the foregoing.  Further,and notwithstanding anything to the contrary set forth in this Lease, Tenantshall have the right to pledge or otherwise grant a first priority securitylien or other interest in any of Tenant’s furniture, fixtures, equipment orother personal property (“Tenant’s Property”) to the United States Departmentof Energy, 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 anddeliver commercially reasonable instrument(s) consenting tosuch financing and/or waiving any statutory or contractual Landlord’s lien inTenant’s Property.

 

**ARTICLE 27**

**Entire Agreement**

 

**27.01****                ****EntireAgreement.**

 

Nooral statement or prior written matter shall have any force or effect.  This Agreement shall not be modified orcanceled except by writing subscribed to by all parties.

 

Norepresentations, inducement, promises or agreements, oral or otherwise, betweenLandlord and Tenant or any of their respective brokers, employees or agents,not embodied herein, shall be of any force or effect.

 

Thesubmission of this Lease for examination, review, negotiation and/or signatureshall not constitute an offer or an option to lease or a reservation of thePremises and is subject to withdrawal or modification at any time by eitherparty.  This Lease shall become effectiveand binding only if and when it shall be executed and delivered by bothLandlord and Tenant.

 

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Executedas a sealed instrument as of the 16th  day of July,2010.

 

 
| ** ** | **LANDLORD:**          |
|------------|------------------------|
| ** ** | ** **             |
| ** ** | **FLANDERS 155 LLC**   |
| ** ** | ** **             |
|       | By:                    | Carruth  Capital, LLC |
|       |                   | Its  Manager |
|       |                   |   |
|       |                   |
|       | By:                    | /s/  Christopher F. Egan |
|       |                   | Christopher  F. Egan, President and Managing Member of Carruth Capital, LLC, not  individually and without personal liability |
|       |                   |   |
|       |                   |   |
| ** ** | **TENANT:**            |
| ** ** | ** **             |
| ** ** | **A123 SYSTEMS, INC.** |
| ** ** | ** **             |
| ** ** | ** **             |
|       | By:                    | /s/  Michael Rubino |
|       | Printed  Name:         | Michael  Rubino |
|       | Title:                 | Chief  Financial Officer |
|            |                        |  |  |

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT A**

 

**LEGAL DESCRIPTION**

 

Allthat certain parcel(s) of land situate in Westborough in the County ofWorcester and said Commonwealth of Massachusetts bounded and described asfollows:

 

FlandersRoad, Interstate Route 495 and Walkup Drive. All of said boundaries are determined by the Court to be located asshown on Subdivision plan #36263-E drawn by Guerard Survey Co. &Associates, Surveyors, dated February 5, 1980, as modified and approved by theCourt, filed in the Land Registration Office, a copy of a portion of which isfiled with Land Registration Certificate #9810. Being Lot 4 on said plan.

 

Saidlot is conveyed subject to the provisions and agreements as stated in Document#36573, and to an easement relating to the placement of underground electricand telephone wires set forth in a deed from High Voltage EngineeringCorporation to Helix Technology Corporation as stated in Document #32784.

 

Fortitle, see Worcester Land Court Book 65, Page 12821, Certificate of Title#12821.

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT B**

 

**PLAN SHOWING TENANT’S SPACE**

 

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FLANDERS155 LLC155 Flanders RoadWestborough, Massachusetts

 

**EXHIBIT CTENANT ALLOWANCE AND LANDLORD’S WORK OBLIGATIONS**

 

**TENANT ALLOWANCE:**

 

Tenantshall accept Premises in “AS IS” condition except Landlord shall (a) provide abase building allowance in the amount of One Hundred Thirty-One Thousand EightHundred Twenty Six Dollars and No Cents ($131,826.00) (the “Allowance”), and(b) complete the Predelivery  Landlord’sWork prior to the Term Commencement Date. The Allowance may be used throughout the Lease Term at Tenant’sdiscretion and may be used by Tenant to complete certain Building repairs inconnection with damage from a previous tenant including the following: (i)patch drywall and paint, (ii) replace ceiling tiles, (iii) replace damagedfloor tiles, (iv) pour concrete slab in chemical storage room, (v) remove andreplace the mold-affected drywall, and (vi) replace a missing cove base.  Landlord shall pay the Allowance to Tenantwithin thirty (30) days after request therefor accompanied by evidence thatTenant has incurred in connection with its preparation of the Premises costs atleast equal to the sum requested accompanied by lien waivers acceptable toLandlord.  If Landlord fails to pay therequested Allowance within such thirty-day period and after an additional five(5) business days notice, Tenant shall be entitled to offset the amount of theunpaid Allowance against Rent.

 

**LANDLORD’S WORK OBLIGATIONS:**

 

**Pre-DeliveryWork**

 

Priorto the date hereof, Landlord, at its sole cost, has ensured that all systemsare in good working order and has performed the following environmental work(collectively, the “Predelivery Work”):

 

**I.****             ****Microbial/AsbestosTesting**

 

1.             Visualobservation of drywall and building finishes

 

2.             Obtain eight(8) air samples for determining non-viable mold

 

3.             Performmoisture testing of drywall within twenty (20) rooms

 

4.             Obtain five (5)drywall samples for lab analysis

 

5.             Obtain six (6)air samples for asbestos sampling

 

6.             Complete areport of findings upon receipt of lab analysis

 

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**II.****           ****EnvironmentalTesting/Chemical Storage Room**

 

1.             Remove concretefloor at Landlord’s expense

 

2.             Obtain three(3) sub-slab soil samples using hand auger

 

3.             Analyze samplesper Massachusetts Contingency Plan requirements (14 metals, VOC’s, EPH, VPH)

 

4.             Complete datareview and evaluation report

 

**III.****          ****EnvironmentalTesting/Septic System**

 

1.             Install onemonitoring well (well completed by Soil Exploration Corp. while on site)

 

2.             Analyze soilsamples per Massachusetts Contingency Plan requirements (14 metals, VOC’s, EPH,VPH)

 

3.             Obtain watersample and analyze per Massachusetts Contingency Plan requirements (14 metals,VOC’s, EPH, VPH)

 

4.             Complete datareview and evaluation report

 

**AdditionalLandlords Work****:**Within ninety (90) daysafter notice from Tenant, Landlord, at Landlord’s sole cost, shall beresponsible for providing a fully operational 40 ton chilled water system orremoving the same as directed by Tenant (the “Additional Landlord’s Work”).

 

**BelPower Space Environmental Work****: **Except as provided in Section 26.09(d), Landlord shall, at its solecost, complete environmental testing of the space currently leased by Bel Power, identified as REC #3, in theEnvironmental Site Assessment prepared April 22, 2009, and perform all requiredmitigation to achieve or confirm a level of no significant risk to humanhealth, safety, and the environment arising therefrom, including remediationfor fungi, mold, mildew or other microbial matter, and provide documentation ofcompletion of such work to Tenant within thirty (30) days after Bel Powervacates the space (the “Bel Power Space Environmental Work”).

 

Theenvironmental work comprising Landlord’s Predelivery Work and Bel Power SpaceEnvironmental Work as described  aboveshall be performed by a Licensed Site Professional, as defined under 310 CMR40.000.  Landlord shall provide Tenanttwo business days advance notice before performing subsurface investigations orany required remedial work.  Landlordshall allow Tenant’s authorized representative to accompany Landlord or itsrepresentative when any such work is being performed.  Landlord shall promptly deliver to Tenant acopy of all final 

 

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andverified data, drilling logs, sampling results, reports and amounts relating tothe Predelivery Landlord’s Work and Additional Landlord’s Work requiredhereunder.

 

**ElectricalUpgrade****:**Landlord will provide anallowance in the amount of $500,000.00 (the “Electrical Allowance”) towardsTenant’s cost of upgrading the electrical service to the Building.  Landlord will pay the Electrical Allowance toTenant within thirty (30) days after request therefor accompanied by evidencethat Tenant has incurred such cost and lien waivers acceptable toLandlord.  If Landlord fails to pay therequested allowance within such thirty-day period and after an additional five(5) business days’ notice stating that the unpaid Electrical Allowance amountwill be set off against Rent, Tenant shall be entitled to offset the amount ofthe unpaid Electrical Allowance against Rent.

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT D**

 

**SERVICES TO BE PROVIDED BY LANDLORD**

 

**(AS OPERATING EXPENSES)**

 

A.            Proper care ofgrounds surrounding the Building, including care of lawns and shrubs andincluding removal of litter.

 

B.            Maintaining andcleaning the sidewalks and parking areas in front of and around the Buildingincluding snow removal.

 

C.            Provision ofadequate lighting for the parking areas servicing the Building.

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT E**

 

**RULES AND REGULATIONS**

 

1.             Heating, lighting andplumbing: The Landlord should be notified at once of any trouble with heating,lighting or plumbing fixtures.  Tenantsmust not leave the doors of the Premises unlocked at night.

 

2.             The sidewalks, entrances,halls and stairways shall not be obstructed by any Tenant or used for anypurposes other than  ingress and egressto and from their respective Premises, and no articles or rubbish shall be lefttherein.

 

3.             No toilet fixture shall beused for any purpose other than that for which it is intended, and nosweepings, rubbish, rags, ashes or other substances shall be thrown therein.

 

4.             Except as provided inSection 26.06 of the Lease, lettering on outside windows, doors, tablets andbuilding directory shall be subject to the approval of the Landlord, not to beunreasonably withheld.

 

5.             No animals or birds shall bekept in or about the Building.

 

6.             All freight, furniture, etc.must be received and delivered through entrances to the Building designated forsuch purpose unless otherwise authorized by the Landlord.

 

7.             Nothing shall be thrown fromor taken in through the windows, nor shall anything be left outside theBuilding on the window sills of the Premises.

 

8.             The Landlord, its agents andemployees shall have access upon 24 hours prior notice to Tenant to performtheir duties in the maintenance and operation of the Premises, except no priornotice shall be required in an emergency.

 

9.             No Tenant shall use anymethod of heating (including space heaters) other than that provided for in theTenant’s Lease without the consent of the Landlord.

 

10.           Any damage caused to theBuilding or the Premises or to any person or property herein as a result of anybreach of any of the rules and regulations by the Tenant shall be borne by theTenant.

 

11.           Trash removal shall beperformed in accordance with Exhibit K.

 

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12.           The Landlord reserves theright to make any such other and further rules and regulations as, in itsjudgment, may from time to time be necessary for maintaining the safety andcleanliness of the Premises and Building for the preservation of good ordertherein.

 

13.           Tenant shallnot permit its employees to smoke in any area in the Building or on the Land,except smoking areas designated by Landlord.

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT F**

 

**TENANT ESTOPPEL CERTIFICATE**

 

To:          <>(“Lender”)

                <>

 

                <>

 

                Attn:  <>

 

Re:          Lease Agreement dated                                  andamended                                  (“Lease”), between FLANDERS 155 LLC, as “Landlord”, and A123 SYSTEMS, INC., as “Tenant,”guaranteed by N/A (“Guarantor”) for leased premises known as  155 Flanders Road, Westborough, Massachusetts01581 (the “Premises”) commonly known as 155 Flanders Road, Westborough,Massachusetts 01581 (the Property”).

 

1.             Tenant hereby certifies thatthe following representations with respect to the Lease are accurate andcomplete as of the date hereof:

 
| a.     | Dates  of all amendments, letter agreements, modifications and waivers related to  the Lease |                                                                    |                                                                                                                                                                                          |
|--------|----------------------------------------------------------------------------------------------|-------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| b.     | Commencement  Date                                                                           |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| c.     | Expiration  Date                                                                             |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| d.     | Current  Annual Base Rent                                                                    |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         | Adjustment  Date       Rental Amount |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| e.     | Fixed  or CPI Rent Increases                                                                 |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| f.     | Square  Footage of Premises                                                                  |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| g.     | Security  Deposit Paid to Landlord                                                           |                                                                    |                                                                                                                                                                                          |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| h.     | Renewal  Options                                                                             |                                                                    | <>  Additional Term for <>years at  $                      per year |
|   |                                                                                         |                                                                    |                                                                                                                                                                                          |
| i.     | Termination  Options                                                                         |                                                                    | Termination  Date                       Fees Payable                                      |

 

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2.             Tenant further certifies toLender that:

 

a.             the Lease is presently infull force and effect and represents the entire agreement between Tenant andLandlord with respect to the Premises;

 

b.             the Lease has not beenassigned and the Premises have not been sublet by Tenant except for                      ;

 

c.             Tenant has accepted and isoccupying the Premises, all construction required by the Lease has beencompleted and any payment, credits or abatements required to be given byLandlord to Tenant have been given except for                              ;

 

d.             no installment of rent orother charges under the Lease other than current monthly rent has been paidmore than 30 days in advance and Tenant is not in arrears on any rental paymentor other charges;

 

e.             Landlord has no obligationto segregate the security deposit or to pay interest thereon;

 

f.              To Tenant’s knowledge,Landlord is not in default under the Lease and no event has occurred which,with the giving of notice or passage of time, or both, could result in adefault by Landlord;

 

g.             To Tenant’s knowledge,Tenant has no existing defenses, offsets, liens, claims or credits against thepayment obligations under the Lease;

 

h.             Tenant has not been grantedany options or rights to terminate the Lease earlier than the Expiration Dateexcept as stated in the Lease;

 

i.              Tenant has not been grantedany options or rights of first refusal to purchase the Premises or theProperty;

 

j.              Tenant has not receivednotice of violation of any federal, state, county or municipal laws,regulations, ordinances, orders or directives relating to the use or conditionof the Premises or the Property; and

 

k.             Except to the extent used inconnection with the operation of Tenant’s business in compliance with the Leaseand applicable laws, no hazardous wastes or toxic substances, as defined by allapplicable federal, state or local statutes, rules or regulations have beendisposed, stored or treated on or about the Premises or the Property by Tenant.

 

3.             This certification is madewith the knowledge that Lender is about to provide Landlord with financingwhich shall be secured by a Deed of Trust (or Mortgage), Security Agreement andAssignment of Rents, Leases and Contracts (“Mortgage”) upon the 

 

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Property. Tenant acknowledges that Landlord’s interest in the Lease is being dulyassigned to Lender as security for Lender’s loan to Landlord.  All rent payments under the Lease shallcontinue to be paid to Landlord in accordance with the terms of the Lease untilTenant is notified otherwise in writing by Lender or its successors andassigns. Tenant further acknowledges and agrees that Lender and Lender’srespective successors and assigns holding the Mortgage at any time after thedate of this certificate shall have the right to rely on the informationcontained in this certificate.  Theundersigned is authorized to execute this Tenant Estoppel Certificate on behalfof Tenant.

 
|   | TENANT              |
|--------|---------------------|
|   |                |
|   | A123  SYSTEMS, INC. |
|   |                |
|   |                |
|   | By:                 |   |
|   |                |
|   | Printed  Name:      |   |
|   |                |
|   | Title:              |   |
|   |                |
|   | Date:               |   |
|        |                     |  |  |  |

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT G**

 

**AGREEMENT OF SUBORDINATIONNON-DISTURBANCE AND ATTORNMENT**

 

THISAGREEMENT is dated the          day of                                    ,between <> (“Lender”) and A123 SYSTEMS, INC., a Delaware corporation (“Tenant”).

 

RECITALS:

 

A.            Tenant has executed thatcertain lease dated                                            (the “Lease”) with FLANDERS 155 LLC, as Landlord (“Landlord”) covering thepremises described in the Lease (“Premises”) in that certain building locatedat 155 Flanders Road, Westborough, Massachusetts 01581 (the “Property”) andmore particularly described in Exhibit A attached hereto and made a parthereof, by this reference; and

 

B.            Lender has made or hasagreed to make a mortgage loan to Landlord secured by a mortgage or deed oftrust encumbering the Property which includes an assignment of Landlord’sinterest in the Lease (the “Mortgage”); and

 

C.            Tenant and Lender desire toconfirm their understanding with respect to the Lease and the Mortgage.

 

NOW,THEREFORE, in consideration of the covenants, terms, conditions, agreementscontained herein, the parties hereto agree as follows:

 

1.             The Lease and anyextensions, modifications or renewals thereof, including but not limited to anyoption to purchase or right of first refusal to purchase the Property or anyportion thereof, if any, is and shall continue to be subject and subordinate inall respects to the Mortgage and the lien created thereby, and to any advancementsmade thereunder and to any consolidations, extensions, modifications orrenewals thereof.

 

2.             Tenant agrees to deliver toLender, in the manner set forth in paragraph 7, a copy of any notice of defaultsent to Landlord by Tenant.  If Landlordfails to cure such default within the time provided in the Lease, Lender shallhave the right, but not the obligation to cure such default on behalf ofLandlord within thirty (30) calendar days after the time provided for Landlordto cure such default in the Lease or within a reasonable period (not to exceedsixty (60) calendar days) if such default cannot be cured within that time,provided Lender is proceeding with due diligence to cure such default.  In such event Tenant shall not terminate theLease while such remedies are being diligently pursued by 

 

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Lender. Tenant hereby agrees that no action taken by Lender to enforce anyrights under the Mortgage or related security documents, by reason of anydefault thereunder (including, without limitation, the appointment of areceiver, any action to appoint a receiver or to obtain the right to possessionof the Property by foreclosure, deed in lieu of foreclosure, or otherwise (“Foreclosure”),or any demand for rent under any assignment of rents or leases) shall give riseto any right of Tenant to terminate the Lease nor shall such action invalidateor constitute a breach of any of the terms of the Lease.

 

3.             As long as no Event ofDefault exists, Tenant’s possession and occupancy of the Premises shall not bedisturbed by Lender during the term of the Lease or any extension thereof andLender (and any purchaser at Foreclosure or subsequent transferee) shallrecognize all of Tenant’s rights under the Lease.

 

4.             If Lender succeeds to theinterest of Landlord under the Lease, subject to Tenant’s performance of itsobligations under the Lease, the Lease will continue in full force andeffect.  Thereupon, Lender shallrecognize the Lease and Tenant’s rights thereunder and Tenant shall make fulland complete attornment to Lender as substitute Landlord upon the same terms,covenants and conditions as provided in the Lease, except for any option topurchase or right of first refusal to purchase the Property as may be providedin the Lease.  Further, Tenant agreesthat any such option or right of first refusal to purchase the Property or anyportion thereof, as may be provided in the Lease shall not apply to and shallnot in any way impair or delay any Foreclosure, as defined herein.

 

5.             Tenant agrees that, ifLender or a purchaser on Foreclosure (whichever is applicable “Purchaser”)shallsucceed to the interest of Landlord under the Lease, Purchaser shall not be:

 

(a)           liable for any prior act or omission of Landlord orany prior Landlord or consequential damages arising therefrom except that thePurchaser shall remedy any continuing maintenance defaults of which Tenantshall have given Lender notice of default and opportunity to cure pursuant toSection 2 above; or

 

(b)           subject to any offsets or defenses which Tenantmight have as to Landlord or any prior Landlord except as set forth in ExhibitC of the Lease and except to the extent the cause therefor is continuingprovided Tenant shall have given Lender notice of default and opportunity tocure pursuant to Section 2 above; or

 

(c)           required or obligated to credit Tenant with any rentor additional rent for any rental period beyond the then current month whichTenant might have paid Landlord; or

 

(d)           bound by any material amendments or modifications ofthe Lease such as those affecting rent, term or permitted use made withoutLender’s prior written consent; or

 

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(e)           liable for refund of all or any part of any securitydeposit unless such security deposit shall have been actually received byLender.

 

6.             The provisions of thisAgreement shall be binding upon and inure to the benefit of the parties heretoand their respective successors and assigns. The words, “Lender,” “Landlord” and “Tenant” shall include theirrespective heirs, legatees, executors, administrators, beneficiaries,successors and assigns.

 

7.             All notices, and all othercommunication with respect to this Agreement, shall be directed asfollows:  if to Lender,                                                                  (“Lender’s Address”) or such other address as Lender may designate in writingto Tenant and, if to Tenant, at the address set forth in the Lease or at suchother address as Tenant may designate in writing to Lender.  All notices shall be in writing and shall be(a) hand-delivered, (b) sent by United States express mail or by privateovernight courier, or (c) served by certified mail postage prepaid, returnreceipt requested, to the appropriate address set forth above.  Notices served as provided in (a) and (b)shall be deemed to be effective upon delivery. Any notice served by certified mail shall be deposited in the United Statesmail with postage thereon fully prepaid and shall be deemed effective on theday of actual delivery as shown by the addressee’s return receipt or theexpiration of three business days after the date of mailing, whichever isearlier in time.

 

8.             This Agreement contains theentire agreement between the parties and no modifications shall be binding uponany party hereto unless set forth in a document duly executed by or on behalfof such party.

 

9.             This Agreement may beexecuted in multiple counterparts, all of which shall be deemed originals andwith the same effect as if all parties had signed the same document.  All of such counterparts shall be construedtogether and shall constitute one instrument.

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayand year first above written.

 
| LENDER:        |                        | TENANT:             |           |
|----------------|-----------------------------|---------------------|----------------|
|           |                        |                |           |
| <>  |                        | A123  SYSTEMS, INC. |           |
|           |                        |                |           |
|           |                        |                |           |
| By:            |                        |                | By:            |   |
|           |                        |                |           |   |
| By:            |                        |                | Printed  Name: |   |
|           |                        |                |           |   |
|           | Its  Authorized Signatories |                | Title:         |   |
|                |                             |                     |                |  |  |  |

 

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**FLANDERS 155 LLC**

**155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT H**

 

**CERTIFICATE OF VOTE**

 

Ameeting of The Board of Directors of A123 Systems, Inc., was held on May 6,2010 at the office located at 321 Arsenal Street, Watertown, Massachusetts02472.

 

MichaelRubino, the Chief Financial Officer of the Corporation, presided at the meetingand declared that a quorum of the Board of Directors was present and inattendance.

 

Uponmotion duly made and seconded, the Board of Directors unanimously

 

VOTED:                 That Michael Rubino, Chief Financial Officerof A123 Systems, Inc., be and is hereby authorized, in name of, and on behalfof the said Corporation, with respect to all real estate of said Corporationnow, or at any time hereafter, leased by said Corporation, to sign, seal,acknowledge, and bind said Corporation regarding any and all leases, releases,notes, assignments, agreements, notices, estoppels, affidavits specificallyincluding property located at 155 Flanders Road, Westborough, Massachusetts,and all such instruments as he may by his execution thereof approve, saidauthority to remain in full force and effect until notice of revocation thereofshall be recorded in each Registry of Deeds wherein this Vote shall berecorded.

 
| **A TRUE COPY:** |                                         |
|------------------|----------------------------------------------|
|             | Eric  J. Pyenson, **Assistant****Secretary** |

 

***ATTEST:***

 

I,Eric J. Pyenson, Assistant Secretary, hereby certify that I am the duly electedand qualified Assistant Secretary for the above named Corporation and that theabove is a true copy of the Vote that was passed, and that Michael Rubino isthe duly elected and qualified Chief Financial Officer of the Corporation.

 
| ***ATTEST:*** |                                    |
|---------------|-----------------------------------------|
|          | Eric J. Pyenson,**Assistant Secretary** |

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT I**

 

**PARKING**

 

Tenant,upon the commencement of its occupancy of the Premises, shall have the right touse for its designated employees, as appurtenant to the Premises no more thanone hundred ninety four (194) unassigned parking spaces in the Building’sparking areas (reduced by the number of spaces which Tenant shall utilizepursuant to the last paragraph hereof). Tenant shall use the parking areassolely for parking registered passenger vehicles.  Storage trailers, storage containers, busses,motor homes, trucks and like vehicles are not permitted, except for suchvehicles or containers as specifically approved by Landlord in writing fromtime to time, such approval not to be unreasonably withheld, and in compliancewith the provisions of this Lease Landlord shall in no event be required toenforce such rights on Tenant’s behalf. Use of such spaces may not be sold, assigned, licensed or otherwisegiven to any person for any compensation or fee or otherwise.  The use of such parking spaces by Tenant maybe regulated by reasonable rules and regulations issued by the Landlord fromtime to time.  Landlord reserves theright, after reasonable written notice to Tenant, at any time and from time totime to change the location of any parking space or spaces designated forTenant’s use pursuant to this Exhibit I provided there is no material adverseeffect on Tenant’s use and enjoyment of the Premises or parking areas.

 

Subjectto the compliance with all applicable Legal Requirements and Landlord’sreasonable approval, Tenant shall have the right to install outdoor electricalpower  in order to provide electric /hybrid vehicle recharging stations as the locations depicted on the attachedplan.

 

Notwithstandinganything to the contrary contained herein, Landlord hereby approves the locationsof the electric vehicle, customer, and ADA parking spaces show on the planattached hereto as Schedule I-1.

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT J**

 

**TRASH REMOVAL**

 

Tenant,at its expense, shall contract with a trash hauling service to provide acovered trash container (“Dumpster”) and trash removal services, subject to thefollowing paragraph of this Exhibit J. The contractor and the dumpster shall be subject to Landlord’s approval,such approval not to be unreasonably withheld. Tenant shall comply with all rules and regulations related to trashstorage and removal promulgated by Landlord from time to time.  The dumpster shall be placed in a locationdesignated by Landlord, which designation may be changed by Landlord from timeto time.  The dumpster shall be in goodcondition, freshly painted with working covers and doors, and shall be clearlymarked with the name of the hauling company and its telephone number.  The dumpster shall not be overfilled andshall remain closed at all times.  Notrash shall be placed outside the dumpster. Paper, packaging materials and small items shall be placed in trash bagsto prevent spillage when the container is open or emptied.  The dumpster shall be emptied on a frequencydetermined by Landlord from time to time to be appropriate for Tenant’sactivities.

 

Notwithstandinganything to the contrary contained herein, Landlord hereby agrees that Tenantshall be permitted to operate a trash compactor in lieu of contracting with atrash hauling service to provide a Dumpster set forth in the foregoingparagraph.

 

Inthe event Tenant shall fail to comply with any of its obligations under thisExhibit J or the rules and regulations referred to herein, without limiting anyof Landlord’s other rights or remedies under this Lease, Landlord may, withoutnotice to Tenant, cure Tenant’s default hereunder and charge Tenant forLandlord’s cost of performing the same as Additional Rent.  Such cost shall be paid by Tenant to Landlordimmediately upon billing therefor.

 

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**FLANDERS 155 LLC155 Flanders RoadWestborough, Massachusetts**

 

**EXHIBIT K**

 

**TENANT IMPROVEMENT PLANS**

 

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