Exhibit
10.1


 


SUBLEASE AGREEMENT


 


This Sublease Agreement
(this “Sublease”), made as of the 9th day of December, 2008,
by and between EXACT SCIENCES CORPORATION, a Delaware corporation, having an
office at 100 Campus Drive, Marlborough, Massachusetts (hereinafter referred to
as “Sublandlord”), and QTEROS, INC., a Delaware corporation having an
office at 100 Venture Way, Hadley, Massachusetts 01035 (hereinafter referred to
as “Subtenant”);


 


W  I  T  N  E  S
S  E  T  H :


 


WHEREAS, pursuant to that
certain Office Lease, dated January 23, 2003, executed by and between
Marlborough Campus Limited Partnership, a Massachusetts limited partnership
(hereinafter referred to as “Marlborough Campus”), as Landlord, and
Sublandlord, as Tenant, as amended by that certain First Amendment to Lease
dated August 28, 2003, and that certain Second Amendment to Lease dated January 20,
2005 (as amended, the “Overlease”), Marlborough Campus leased to
Sublandlord certain premises located at 100 Campus Drive, Marlborough,
Massachusetts (hereinafter referred to as the “Building”), upon and
subject to the terms and conditions set forth in the Overlease a copy of which
is attached hereto as Exhibit E, and incorporated herein by
reference;


 


WHEREAS, Bel Marlborough I,
LLC (hereinafter referred to as “Overlandlord”) is the current owner of the
Building and the successor in interest to the rights and obligations of
Marlborough Campus as Landlord under the Overlease; and


 


WHEREAS, Subtenant desires
to sublet the Premises (defined below) from Sublandlord, and Sublandlord
desires to sublet said Premises to Subtenant, upon and subject the terms and
conditions set forth below, and pursuant to the terms of that certain Tri-Party
and Consent Agreement between Overlandlord, Subtenant, and Sublandlord dated as
of the date hereof (the “Tri-Party Agreement”), Overlandlord is willing to
consent to such sublet and enter into a non-disturbance agreement with
Subtenant in connection therewith;


 


NOW, THEREFORE, the parties
hereto, for themselves, their successors and assigns, mutually covenant and
agree as follows:


 


1.             Capitalized Terms.  Any
capitalized terms not otherwise defined in this Sublease shall have the
meanings ascribed thereto in the Overlease.


 


2.             Demise and Use of Premises. 
Sublandlord does hereby sublease to Subtenant, and Subtenant does hereby
sublease from Sublandlord, for the term and upon the conditions hereinafter
provided, a portion of the premises leased to Sublandlord under the terms of
the Overlease, consisting of 25,537 square feet of rentable area constituting
substantially all of the sixth (6th) floor of the Building more particularly
delineated on Exhibit A attached hereto and made part hereof (the “Premises”),
together with the right to use the common areas and facilities as contemplated
by Section 1.3 of the Overlease. 
Subject to the provisions of Section 35 of this Sublease, Subtenant
shall use the Premises for the purposes set forth in Section 7 of the “Summary
of Basic Lease Information” attached to and made a part of the Overlease, and for
a 


 

















 


wet lab pilot plant for the fermentation of biomass to ethanol, and in
connection therewith shall be permitted to use all chemicals and gases set
forth on Exhibit C, attached hereto and incorporated herein by
reference, provided that at all times (i) Subtenant complies with all
local, state, and federal laws and regulations relating thereto and (ii) Subtenant
otherwise does not violate the provisions of the Overlease.  The foregoing sentence is expressly made part
of the Permitted Use referenced in Section 5.1 of the Overlease.


 


3.             Condition of the Premises. 
Sublandlord shall deliver the Premises in its “broom clean”, “as is”, “where
is” condition on the Term Commencement Date (as defined below) with all
furniture and equipment removed therefrom except for: (a) the Subleased
Furniture, as defined in Section 28 below; and (b) any furniture or
equipment which Subtenant has purchased from Sublandlord shown as Purchased
Items on Exhibit B, attached hereto and incorporated herein by
reference.  Subtenant represents that it
has thoroughly examined the Building and the Premises and that the same are
accepted by Subtenant in their “broom clean”, “as is”, “where is” condition.


 


4.             Term.  The term of this Sublease
shall commence on December 9, 2008 (except in the event of a casualty to
the Premises) (which date of commencement shall hereafter be called the “Term
Commencement Date”), and shall end on July 31, 2010, or on such earlier
date upon which said term may expire or be terminated pursuant to any of the conditions
or limitations or other provisions of this Sublease or pursuant to law (which
date for the termination of the term hereof shall hereafter be called the “Termination
Date”); provided that, notwithstanding the foregoing or any other provision
contained herein to the contrary, the term of this Sublease shall not commence
unless and until Overlandlord, Sublandlord, and Subtenant have executed the
Tri-Party Agreement.  For purposes of
this Sublease, Termination Date shall be used interchangeably with the term “Lease
Expiration Date” or “Expiration Date” as used in the Overlease.  Subtenant shall have no options to extend or
renew the term hereof.


 


5.             Yearly Base Rent.  The
Subtenant shall pay to the Sublandlord from and after the Term Commencement
Date, as Yearly Base Rent, the sum of $625,656.50 payable in equal consecutive
monthly installments of $52,138.04 (the “Monthly Base Rent”) each in advance on
the first (1st) business day of each calendar month during the term of this
Sublease.  The Yearly Base Rent is based
upon an annual rate of $24.50 per square foot on the area of the sublet
Premises.  If the Term Commencement Date
is a day other than the first day of a calendar month, then the Subtenant shall
pay upon the Term Commencement Date a portion of the Yearly Base Rent pro rated
on a per diem basis from the Term Commencement Date to the end of the month in
which the Term Commencement Date occurs.


 


6.             Additional Rent.  In
addition to Yearly Base Rent, Subtenant shall pay to Sublandlord, on account of
Operating Expenses and real estate taxes as contemplated by Article 4 of
the Overlease, from and after the Term Commencement Date, Subtenant’s
Proportionate Share, as defined below, of any increase in Tax Expenses and
Operating Expenses which Sublandlord is obligated to pay to Overlandlord under
the terms of the Overlease as follows:  (A) Subtenant
shall pay Subtenant’s Proportionate Share of any increases in Tax Expenses
which Sublandlord is obligated to pay to Overlandlord above Tax Expenses for
the fiscal year ending 


 

















 


June 30,
2009 and (B) Subtenant shall pay Subtenant’s Proportionate Share of any
increase in Operating Expenses which Sublandlord is obligated to pay to
Overlandlord under the terms of the Overlease above Operating Expenses for
calendar year 2008.  Subtenant’s Base
Year as to Operating Expenses is calendar year 2008 and Subtenant’s Base Year
as to Tax Expenses is fiscal year 2009 (ending June 30, 2009).  For purposes of this Sublease, “Subtenant’s
Proportionate Share” shall be 68.33% (based on 25,537/37,371) of any Additional
Rent billed to Sublandlord by Overlandlord on or after (i) January 1,
2009 as to Operating Expenses and (ii) July 1, 2009 as to Tax
Expenses.  For the avoidance of doubt,
Subtenant shall pay 100% of increases in Additional Rent with respect to the
subleased Premises for the time periods stated in this Section 6.  For purposes of calculating Additional Rent
under the Overlease, Subtenant’s Share (analogous to Tenant’s Share under the
Overlease) shall be 4.81% (based on 25,537/530,845) and Subtenant’s Building
Share shall be 17.45% (based on 25,537/146,326).


 


7.             Electricity.    Electricity for the Premises
is separately metered and Subtenant shall pay to Sublandlord, from and after
the Term Commencement Date, Subtenant’s proportionate share of Sublandlord’s
electricity costs as provided in this Section 7.  From the Term Commencement Date through the
Freezer Farm Vacate Date (as defined in Section 30(b)), Subtenant shall
pay the full amount billed for meters #7-7368, #7-5896 and #7-6623, and from
the Freezer Farm Vacate Date until the Termination Date, Subtenant will pay the
full amount billed for the aforementioned meters plus the full amount billed
for meters #7-5869 and #7-5894.  From the
Term Commencement Date through the Freezer Farm Vacate Date, Sublandlord will
be responsible for the cost of electricity associated with meters #7-5869 and
#7-5894.  Sublandlord will bill Subtenant
for all electricity costs on a monthly basis and Subtenant will pay such sums
to Sublandlord within ten (10) days after receipt of such bill.  Any costs involved with installing additional
electric power supply to the Premises shall be the sole responsibility of
Subtenant, and Subtenant shall be solely responsible for the cost of removing
the same and repairing the Premises as needed upon the termination of this
Sublease and/or surrender of the Premises.


 


8.             Security Deposit. 
Within five (5) business days after the Freezer Farm Vacate Date,
Subtenant shall provide to Sublandlord an irrevocable, standby letter of credit
(the “LOC”) from a national commercial bank reasonably acceptable to
Sublandlord in the amount of $52,138.04 naming Sublandlord as beneficiary,
which shall be held by Sublandlord as a security deposit (the “Security Deposit”)
without liability for interest, as security for the performance of Subtenant’s
obligations under this Sublease.  The
Security Deposit shall be applied pursuant to Sections 21.1 and 21.2 of the
Overlease, which are incorporated herein by reference, with the additional
amendments thereto stated in this Section 8.  The first sentence of Section 21.1 of
the Overlease is hereby amended by deleting the following clause: “in the
amount set forth in the Summary”.  The
fifth sentence of Section 21.2 of the Overlease is hereby deleted in its
entirety.  Subtenant shall bear all costs
associated with the initial issuance, renewal, or transfer of the LOC until the
Termination Date.  The last sentence of Section 21.2(i) of
the Overlease is hereby amended by replacing “August 15, 2004” with “September 15,
2010.”  The text of the certificate
referenced in Section 21.2(iii) of the Overlease is hereby deleted
and replaced in its entirety with the following:  “The undersigned in entitled to draw on this
letter of credit pursuant to that certain Sublease Agreement dated as of December 9th,
2008 between Exact Sciences Corporation, Sublandlord, and Qteros, Inc.,
Subtenant, as amended from time to time.”


 

















 


9.             Insurance and Waiver of Subrogation. 
During the term hereof, Subtenant shall obtain and maintain all
insurance types and coverage as specified in the Overlease to be obtained and
maintained by Sublandlord, as lessee, in amounts not less than those specified
in the Overlease.  During the term
hereof, Sublandlord shall continue to maintain all insurance types and coverage
as so specified in Section 10.3 of the Overlease.  All such policies of insurance maintained by
Subtenant shall name Overlandlord and Sublandlord as additional insureds and
Overlandlord’s lender as a loss payee thereunder and all such policies of
insurance maintained by Sublandlord shall name Subtenant as additional insured
in addition to Overlandlord and Overlandlord’s lender.  Subtenant’s insurance shall be primary over
Overlandlord’s and Sublandlord’s insurance with respect to the Premises, except
that Sublandlord’s insurance shall be primary for the Freezer Farm, as defined
in Section 30(b) below, until the occurrence of the Freezer Farm
Vacate Date, and Sublandlord’s insurance shall be primary for the Licensed Office
Space until such time as Sublandlord has completely vacated said Licensed
Office Space; notwithstanding the foregoing, Sublandlord shall continue to
maintain all insurance coverages required under the Overlease.  Notwithstanding the foregoing or any other
provision contained herein to the contrary, Sublandlord and Subtenant each
hereby waive any and all claims they may have against each other in connection
with any losses or damage they may suffer which are caused by the other party,
to the extent that such losses or damage are covered by the injured party’s
insurance, and Sublandlord and Subtenant each agree to obtain, from their
respective insurers, a provision acknowledging this waiver and agreeing that
their respective insurance carriers will not be subrogated to the rights of the
injured party to the extent that these rights have been waived.


 


10.           Indemnification
of the Overlandlord, Sublandlord and Subtenant. 
Notwithstanding any other provision of this Sublease or the Overlease to
the contrary:


 


(a)           Subtenant will save Overlandlord and Sublandlord harmless, and will
exonerate and indemnify Overlandlord and Sublandlord, from and against any and
all claims, liabilities or penalties asserted by or on behalf of any person,
firm, company, corporation or public authority against Sublandlord or
Overlandlord arising on or after the Term Commencement Date (the “Claims
Against Sublandlord”), to the extent such Claims Against Sublandlord or
Overlandlord are not covered by insurance carried by Sublandlord:


 


(i)            On account of or based upon any injury to
person, or loss of or damage to property sustained or occurring on the Premises
(other than the Freezer Farm prior to the Freezer Farm Vacate Date, or the
Licensed Office Space prior to Sublandlord’s vacating said Licensed Office
Space in full) on account of or based upon the act, omission, fault, negligence
or misconduct of any person whomsoever (other than Overlandlord and Sublandlord
or their respective agents, contractors or employees);


 


(ii)           On account of or based upon any injury to person or loss of or damage
to property, sustained or occurring elsewhere (other than on the Premises) in
or about the Building (and, in particular, without limiting the generality of
the foregoing on or about the elevators, stairways, public corridors,
sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
approaches, areaways, roof, or other appurtenances and facilities used in
connection with the Building or the Premises) arising out of the 


 

















 


negligent act or omission or
willful misconduct of Subtenant, its agents, employees or invitees;


 


(iii)          On account of or based upon (including monies due on account of) any
work or thing whatsoever done (other than by Overlandlord or Sublandlord or
their respective contractors, agents or employees of either) on the Premises
during the term of this Sublease and during the period of time, if any, prior
to the Term Commencement Date that Subtenant may have been given access to the
Premises; and


 


(iv)          On account of or resulting from the failure of Subtenant to perform and
discharge any of its covenants and obligations under this Sublease.


 


(b)           Sublandlord will save Subtenant harmless, and will exonerate and
indemnify Subtenant and Overlandlord from and against, any and all claims, liabilities
or penalties asserted by or on behalf of any person, firm, corporation or
public authority against Subtenant or Overlandlord arising on or after the Term
Commencement Date (the “Claims Against Subtenant”), to the extent such Claims
Against Subtenant are not covered by insurance carried by Subtenant:


 


(i)            On account of or based upon any injury to
person, or loss of or damage to property sustained or occurring on or in the
Freezer Farm, prior to the Freezer Farm Vacate Date, or the Licensed Office
Space, prior to Sublandlord’s vacating said Licensed Office Space in full, on
account of or based upon the act, omission, fault, negligence or misconduct of
any person whomsoever (other than Subtenant or their respective agents,
contractors or employees);


 


(ii)           On account of or based upon any injury to person or loss of or damage
to property, sustained or occurring elsewhere (other than on the Premises) in
or about the Building (and, in particular, without limiting the generality of
the foregoing on or about the elevators, stairways, public corridors,
sidewalks, concourses, arcades, malls, galleries, vehicular tunnels,
approaches, areaways, roof, or other appurtenances and facilities used in
connection with the Building or the Premises) arising out of the negligent act
or omission or willful misconduct of Sublandlord, its agents, employees or
invitees;


 


(iii)          On account of or based upon (including monies due on account of) any
work or thing whatsoever done (other than by Subtenant or their respective
contractors, agents or employees) on or in the Freezer Farm prior to the
Freezer Farm Vacate Date and in the Licensed Office Space prior to Sublandlord’s
vacating said Licensed Office Space; and


 


(iv)          On account of or resulting from the failure of Sublandlord to perform
and discharge any of its covenants and obligations under this Sublease or the
Overlease.


 


(c)           If either of the Overlandlord or the Sublandlord shall, without fault
on its part, be made a party of any litigation commenced by or against the
Subtenant, then the Subtenant shall protect, indemnify and hold the
Overlandlord or the Sublandlord harmless and 


 

















 


shall pay all costs, expenses and reasonable legal fees incurred or
paid by the Overlandlord or the Sublandlord in connection with such litigation.  The Subtenant shall also pay all costs,
expenses and reasonable legal fees (on a solicitor and his client basis) that
may be incurred or paid by the Overlandlord or the Sublandlord in enforcing the
terms, covenants and conditions in this Sublease unless a Court shall decide
otherwise.


 


(d)           If the Subtenant shall, without fault on its part, be made a party of
any litigation commenced by or against the Sublandlord, then the Sublandlord
shall protect, indemnify and hold the Subtenant harmless from and against and
shall pay all costs, expenses and reasonable legal fees incurred or paid by the
Subtenant in connection with such litigation. 
The Sublandlord shall also pay all costs, expenses and reasonable legal
fees (on a solicitor and his client basis) that may be incurred or paid by the
Subtenant in enforcing the terms, covenants and conditions in this Sublease
unless a Court shall decide otherwise.


 


(e)           Subtenant shall neither do nor permit anything to be done which would
cause a default under the Overlease, or termination or forfeiture by reason of
any right of termination or forfeiture, reserved or vested in the Overlandlord
under the Overlease, and Subtenant shall indemnify and hold Sublandlord
harmless from and against all claims of any kind whatsoever by reason of breach
or default on the part of Subtenant, or termination or forfeiture which is the
consequence of any such breach or default.


 


(f)            Sublandlord shall neither do nor permit
anything to be done which would cause a default under the Overlease, or termination
or forfeiture by reason of any right of termination or forfeiture, reserved or
vested in the Overlandlord under the Overlease, and Sublandlord shall indemnify
and hold Subtenant harmless from and against all claims of any kind whatsoever
by reason of breach or default on the part of Sublandlord, or termination or
forfeiture which is the consequence of any such breach or default.


 


11.           Terms
of Overlease.  Except as expressly otherwise provided in
this Section 11 and in Sections 12, 13, 14, and 15, as between the parties
hereto, all of the terms, provisions, covenants and conditions of the Overlease
are incorporated herein by reference and hereby made a part of this
Sublease.  However, for purposes of such
incorporation by reference, all references to Landlord and Tenant shall be
deemed references to Sublandlord and Subtenant, respectively, all references to
the Premises or the Demised Premises shall be deemed references to the Premises
as defined in this Sublease, and all references to the term of the Overlease
shall be deemed references to the term of this Sublease.  Subtenant shall be entitled to the same
notice and cure periods, less three (3) business days, as Sublandlord is
afforded pursuant to Sections 19.1.1, 19.1.2 and 19.1.3 of the Overlease.  Any notice right provided to Subtenant under
this Section 11 is to be provided by Sublandlord; Overlandlord does not
have any obligation to notify Subtenant if notice under the Overlease is
delivered to Sublandlord in accordance therewith.  Sublandlord shall have all of the rights of
the Overlandlord under the Overlease as against Subtenant and Subtenant shall
be entitled to all the rights and privileges conferred on Sublandlord as Tenant
under the Overlease, and, as between the parties hereto, Subtenant agrees to
observe and perform all of the terms, covenants and conditions on Sublandlord’s
part to be observed and performed under the Overlease, except as otherwise
provided in this Sublease.


 

















 


12.           Overlandlord’s
Services and Obligations under the Overlease.  Notwithstanding anything in
this Sublease to the contrary, including without limitation Section 11
hereof, Subtenant agrees that Sublandlord shall not be obligated to furnish for
Subtenant any services of any nature whatsoever, including, without limitation,
climate control, elevator service, cleaning services, security, electrical
energy and miscellaneous power services, water and other public utilities and
construction of any improvements at the Premises, or to perform any of
Overlandlord’s obligations under the Overlease, however, in the event that
Overlandlord fails to furnish any services required by it to be furnished under
the terms of the Overlease, Sublandlord agrees to use commercially reasonable
efforts to cause Overlandlord to furnish said services.


 


13.           Sublandlord’s
Approval of the Subtenant’s Alterations and Improvements. 
Sublandlord hereby consents to Subtenant making the alterations to the
Premises described in the Plans and Specifications described on Exhibit D,
attached hereto and incorporated herein by reference (the “Initial Alterations”)
and to the performance of said Initial Alterations by SPEC Process Engineering &
Construction, Inc. (“SPEC”), and acknowledges and agrees that,
notwithstanding any provision contained in the Overlease or elsewhere to the
contrary, including without limitation, the provisions of Section 8.5 of
the Overlease, pursuant to the Tri-Party Agreement, Subtenant shall have no
obligation to remove any of said Initial Alterations or restore the Premises to
their condition prior to the making of said Initial Alterations at the
expiration or earlier termination of this Sublease , except in the event of a
termination of this Sublease caused by the Subtenant.


 


14.           Certain
Overlease Provisions Not Incorporated.  The following provisions of
the Overlease are expressly not incorporated into this Sublease:  Sections 2.2, 2.4, 3, 4, 5, 6, 8, 10, and 11
of the Summary of Basic Lease Information; Section 1.1, the first and
second sentences of Section 1.4, Article 2, Article 3, Sections
4.1, 4.2.1, 4.2.5.4, 4.2.6, 4.7, 5.5, 10.6, 21.3, Article 22, Sections
29.14 and 29.16, 29.22, 29.31, Article 30, Article 31, Exhibit A,
Exhibit C, Exhibit G, and Exhibit H of the Lease; all of the
provisions of the First Amendment except for Sections 3 and 6; and all of the
provisions of the Second Amendment, except for Sections 2(a), 9, and 11, and Exhibit A-1.  With respect to Article 27 and Sections
29.28 and 29.32 of the Overlease and Section 3(c) of the First Amendment,
Subtenant acknowledges that Overlandlord retains the rights stated therein as
Landlord, but for purposes of this Sublease, Sublandlord expressly waives any
such rights as Landlord thereunder as between Sublandlord and Subtenant.  Subtenant acknowledges that it has received a
true and complete copy of the Overlease, that it has reviewed the Overlease,
and that it is familiar with the contents thereof.  In the event that this Sublease contains
provisions that modify, amend, or conflict with the terms of the Overlease, the
terms of this Sublease shall control. Sublandlord and Subtenant acknowledge and
agree that with regard to Hazardous Materials, Section 35 of this Sublease
shall control over Subtenant’s use and occupancy of the Premises and Section 29
of the Overlease shall control over Sublandlord’s use, occupancy and existing
obligations as to the Premises, as applicable.


 


15.           Assigning
and Subletting.  Notwithstanding anything to the contrary in Article 14
of the Overlease as incorporated herein by reference, Subtenant covenants and
agrees that neither this Sublease nor the term hereof and leasehold hereby
granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred, voluntarily, by operation of law
or otherwise, and that neither the Premises, nor any part thereof will be 


 

















 


encumbered
in any manner by reason of any act or omission on the part of Subtenant, or
used or occupied, or permitted to be used or occupied, or utilized for desk
space or for mailing privileges, by anyone other than Subtenant (or Sublandlord
as provided in Section 29 hereof), or for any use or purposes other than
as permitted hereunder, or be sublet or offered or advertised for subletting
without the prior written consent of Sublandlord and Overlandlord, in each
instance, which consent shall be subject to the terms and conditions of the
Overlease; provided, however, that the consent of Sublandlord shall not be
unreasonably withheld or delayed.


 


16.           Notice.  Any
and all communications delivered hereunder shall be in writing and delivered or
served in accordance with Section 29.16 of the Overlease addressed as
follows, or to such other address and attention as any of the above shall
notify the others in writing in accordance with the notice provisions of this
Section:


 


If to Overlandlord:               If before March 20, 2009:


 


Eaton
Vance Management

255 State Street

Boston, MA 02109

Attention:  Director of Asset Management


 


If
on or after March 20, 2009:


 


Eaton
Vance Management

2 International Place

Boston, MA 02110

Attention: Director of Asset Management


 


With
a copy to:


 


If
before March 20, 2009:


 


Eaton
Vance Management

255 State Street

Boston, MA 02109

Attention: Legal Department


 

















 


If
on or after March 20, 2009:


 


Eaton
Vance Management

2 International Place

Boston, MA 02110

Attention: Legal Department


 


If to Sublandlord:                 100 Campus Drive

Marlborough, Massachusetts  01752

Attention:  Chuck Carelli


 


with a copy to:                        Goodwin Procter  LLP

Exchange Place

Boston, Massachusetts 02109

Attention: Edward A. King, Esq.


 


If to Subtenant:                      100 Campus Drive

Marlborough, Massachusetts

Attention: Laura Patrick, Office Manager


 


With a copy to:                      QTEROS, Inc.

100 Venture Way

Hadley, MA 01035

Attention: Laura Patrick, Office Manager


 


17.           Successors
and Assigns.  This Sublease and everything herein contained
shall extend to and bind and inure to the benefit of the Sublandlord and its
successors and assigns and the Subtenant and its permitted successors and
assigns.  No rights shall inure to the
benefit of any assignee, subtenant or occupant unless the provisions of Article 14
of the Overlease and Section 15 of this Sublease are complied with.


 


18.           Miscellaneous. 
Neither Sublandlord nor Subtenant nor any agent or representative of
either party has made or is making, and neither party in executing and
delivering this Sublease is relying upon, any warranties, representations,
promises or statements whatsoever, except to the extent expressly set forth in
this Sublease.  All understandings and agreements,
if any, heretofore had between the parties are merged into this Sublease, which
alone fully and completely expresses the agreement of the parties.  No surrender of possession of the Premises or
of any part thereof or of any remainder of the term of this Sublease shall
release Subtenant from any of its obligations hereunder unless accepted by
Sublandlord in writing.  The receipt and
retention by Sublandlord of Yearly Fixed Rent from anyone other than Subtenant
shall not be deemed a waiver of the breach by Subtenant of any covenant, agreement,
term or provision of this Sublease, or as the acceptance of such other person
as a tenant, or as a release of Subtenant from the covenants, agreements,
terms, provisions and conditions herein contained.  The receipt and retention by Sublandlord of Yearly
Fixed Rent or Additional Rent with knowledge of the breach of any covenant,
agreement, term, provision or condition herein contained shall not be deemed a
waiver of such breach.  This Sublease
shall be governed by, and construed in accordance with the laws of The
Commonwealth of Massachusetts.


 
















 


19.           Quiet
Enjoyment.  So long as Subtenant is not in default
(beyond any applicable notice and cure period) under this Sublease, its quiet
enjoyment of the Premises shall not be disturbed or interfered with by
Sublandlord or anyone claiming by, through or under Sublandlord.


 


20.           Overlandlord’s
Consent.  It is hereby acknowledged by Sublandlord and
Subtenant that except as otherwise provided in the Tri-Party Agreement,
Overlandlord’s consent to this Sublease shall not create any contractual
liability or duty on the part of Overlandlord or its agent to the Subtenant,
and shall not in any manner increase, decrease or otherwise affect the rights
and obligations of Overlandlord and Sublandlord, as the lessee under the
Overlease, with respect to the Premises.


 


21.           Sublandlord’s
Consent.  Whenever Sublandlord’s consent is required
under this Sublease, Sublandlord’s rejection of a request made by Subtenant
shall not deemed unreasonable, in any case, if such rejection is based on
Overlandlord’s rejection of such request.


 


22.           Brokers. 
Sublandlord and Subtenant each hereby represent and warrant that it has
not dealt with any brokers other than Cushman & Wakefield and T3
Realty Advisors in connection with this Sublease for the Premises, and that
Subtenant shall not be responsible for any brokerage fees which shall be due in
connection therewith.  Each party shall
indemnify the other against any cost or liability resulting from the
indemnifying party’s breach of the foregoing representation and warranty.


 


23.           Place
for Payments.  All payments required to be made by the
Subtenant herein shall be made to Sublandlord, at Sublandlord’s office
specified in Section 16 hereof, or to such agent or agents of Sublandlord
or at such other place as Sublandlord shall hereafter from time to time direct
in writing.


 


24.           Termination
of Overlease.  In the event of a default under the Overlease
that results in the termination of the Overlease, the Office Lease by and
between Overlandlord, as landlord, and Subtenant, as tenant, as referenced in
the Tri-Party Agreement, shall commence as of the date of such termination.


 


25.           Representations
and Warranties.


 


(a)           Sublandlord represents and warrants to Subtenant that (i) the
Overlease is in full force and effect on and as of the date hereof; (ii) Sublandlord
has performed all obligations required by it to be performed under the
Overlease; (iii) Sublandlord has never used substances which produce or
emit radiation in or on the Premises; (iv) to Sublandlord’s knowledge,
Sublandlord is not now and has never been in default under the Overlease; and (v) Sublandlord
has the full power and authority to enter into this Sublease with Subtenant and
to perform its obligations hereunder.


 

















 


(b)           Subtenant represents and warrants to Sublandlord that Subtenant has the
full power and authority to enter into this Sublease with Sublandlord and to
perform its obligations hereunder.


 


26.           Sublandlord’s
Obligations.  Provided Subtenant is not in default
hereunder, Sublandlord hereby agrees to make all payments of rent and other
amounts required to:  (i)  be paid
to Overlandlord under the Overlease; (ii) perform all other obligations
imposed upon Sublandlord by the Overlease which are not assumed by Subtenant
hereunder; and (iii) indemnify Subtenant against and hold it harmless from
any and all reasonable costs and expenses incurred by Subtenant or asserted
against it, including without limitation reasonable attorneys’ fees and court
costs, as a result of any breach by Sublandlord of its representations or
warranties made to Subtenant hereunder or to Overlandlord under the Overlease,
or any failure of Sublandlord to perform its obligations hereunder, provided
such failure is not a direct result of the intentional action or negligence of
Subtenant or its agents, employees or contractors.


 


27.           Parking. 
Pursuant to the terms of the Overlease, Sublandlord has rights to use
100 parking spots at the Property. 
Subtenant shall therefore have the right to its proportionate share of
those 100 parking spots, which equals 68 parking spots (which shall be reduced
to 63 parking spots pursuant to Section 30(a)(vi) of this
Sublease).  In all other respects, the
terms of Article 28 of the Overlease shall govern parking.


 


28.           Furniture.  All
furniture shown as “Subleased Furniture” on Exhibit B attached
hereto and incorporated herein by reference (the “Subleased Furniture”) is
hereby subleased to Subtenant by Sublandlord for no additional charge,
commencing on the Term Commencement Date, pursuant to the terms of Section 1.4
of the Overlease, which is incorporated herein by reference.  All other furniture and equipment located in
the Premises and not separately purchased by Subtenant from Sublandlord (shown
as “Purchased Items” on Exhibit B hereto) shall be removed by
Sublandlord prior to the Term Commencement Date.  Sublandlord shall deliver the Subleased
Furniture to Subtenant in its “as is” condition on the Term Commencement Date,
and prior thereto, Subtenant and Sublandlord shall conduct a “walk-through”
inspection of the Premises to verify that Sublandlord has fully complied with
the provisions of this Section 28 and of Section 1.4 of the
Overlease.  In the event of a termination
of this Sublease prior to the Termination 
Date, Subtenant shall be required to remove all of the furniture from the
Premises, including the Subleased Furniture.


 


29.           Access
Prior to Commencement.  Upon advance notice to Paul Sullivan of
Lincoln Property Services at (508) 303-6900, Subtenant shall be permitted to
enter the Premises for purposes of limited construction commencing on the Term
Commencement Date.  Subtenant shall take
steps necessary to ensure minimal disruption to Sublandlord during construction
and shall ensure that Sublandlord has reasonable notice if Sublandlord needs to
move its personnel or equipment within the Premises to accommodate such
construction by Subtenant.  During such
time as Subtenant is making the Initial Alternations or at any time when
Subtenant or its agents are performing any other construction on the Premises,
Subtenant shall carry a builder’s all-risk insurance policy and comprehensive
commercial general liability insurance policy in the amount of not less than
$4,000,000 per occurrence, which policy shall name Sublandlord and 


 

















 


Overlandlord
as additional insureds.  Subtenant shall
provide Sublandlord and Overlandlord with a Certificate of Insurance evidencing
the same, in form satisfactory to Overlandlord, prior to commencement of any
work.  Subtenant shall indemnify
Sublandlord and Overlandlord for any loss or damage caused by the act, omission
or negligence of Subtenant or its invitees or contractors during any such
construction.


 


30.           License
for Continued Use of Premises.


 


(a)           Subtenant hereby grants to Sublandlord an exclusive license to use and
occupy the areas (totaling approximately 2,000 square feet) designated as “Licensed
Office Space” on Exhibit A (the “Licensed Office Space”) for office
purposes by no more than five (5) of Sublandlord’s employees (the “Exact
Employees”), for the period commencing on the Term Commencement Date, and
ending on July 31, 2010, (the “Office License Term”), on and subject to
the following terms and conditions:  (i) Sublandlord
shall be permitted to keep in the Licensed Office Space, desks, chairs, office
equipment and supplies belonging to Sublandlord for up to five (5) employees
together with dedicated telephone, facsimile, and internet service for said
employees; (ii) Sublandlord shall be permitted to keep computers in the IT
closet, and Sublandlord and/or its external information technology service
personnel shall have non-exclusive access to said computers at all times by way
of badge access, and Sublandlord will provide monthly reports to Subtenant
showing which individuals had access to the IT closet; (iii) Subtenant
shall be permitted non-exclusive access to the portion of the Premises which
will enable Sublandlord’s employees and guests and other invitees to use the
restrooms during the Office License Term; (iv) the Exact Employees and any
of their guests, invitees, and agents shall have the non-exclusive right to
travel to and from the Licensed Office Space and the Common Areas through the
area shown as “Lobby Area” on Exhibit A attached hereto; (v) the
Licensed Office Space shall include a dedicated conference room and some
reasonable storage space; (vi) Sublandlord shall have the right to use
five (5) parking spots adjacent to the Building; and (vii) Sublandlord
shall have badge access to the Licensed Office Space, but Subtenant shall not
have access to the Licensed Office Space provided, however, that Subtenant and
Sublandlord (and Overlandlord) shall have access to any portion of the Premises
(including any licensed space) for emergency purposes.  The parties agree that Subtenant shall
install the wall shown as “Dividing Wall” on Exhibit A-1 attached
hereto and the door shown as “Internal Door” on Exhibit A-1,
promptly following the Term Commencement Date. 
The license described in this Section 30(a) shall terminate
upon either (x) a termination of the Overlease, or (y) a default by
Sublandlord under this Sublease, provided that Subtenant shall have delivered
written notice of such default to Sublandlord and Sublandlord shall have failed
to cure said default within ten (10) business days of delivery of such
notice.


 


(b)           Subtenant also grants to Sublandlord an exclusive license for the use
and occupancy of that portion of the Premises shown as “Freezer Farm” on the
attached Exhibit A (the “Freezer Farm”) for the purpose of storing
and utilizing the freezers located therein (the “Freezers”), until the later to
occur of: (i) December 31, 2008 or (ii) the date on which
Sublandlord has vacated the Freezer Farm entirely including removal of all
equipment therefrom and has delivered same to Subtenant in broom clean
condition and Sublandlord has performed all obligations required of it to be
performed under Section 29.31.7 of the Overlease (the “Freezer Farm Vacate
Date”).  Sublandlord shall remove the
Freezers in accordance with all applicable 


 

















 


federal, state, or local laws or regulations, by no later than December 31,
2008, but shall have until January 15, 2009 to complete its obligations
under Section 29.31.7 of the Overlease with respect to the Freezer Farm
and shall provide copies of the de-commissioning certificate and any reports
related thereto to Subtenant and Overlandlord promptly after receipt.  Sublandlord will use commercially reasonable
efforts to remove the Freezers by December 15, 2008, but Sublandlord’s
failure to remove said Freezers by December 15, 2008 shall not be a breach
of, or default under, this Sublease. 
Notwithstanding any provision contained herein to the contrary,
Sublandlord shall pay Subtenant a penalty of $500.00 per day for each day
beyond January 15, 2009, which elapses without the conditions set forth in
clause (ii) of this Section 30(b) having been met, and Subtenant
shall be entitled to deduct the accrued and unpaid dollar amount of such
penalty from each payment of Monthly Base Rent due from Subtenant to
Sublandlord hereunder provided that in no event shall such penalty exceed the
cost of removing the Freezers and complying with the obligations under Section 29.31.7
of the Overlease.  In the event that
Sublandlord has failed to remove the Freezers from the Freezer Farm by January 15,
2009, then Subtenant shall enter the Freezer Farm and remove the Freezers,
provided Subtenant uses reasonable care and does not commit waste in so
doing.  In the event Subtenant performs
the removal obligations as set forth herein, Subtenant shall do so in
accordance with Sections 15.2 and 29.31.7 of the Overlease, as modified by the
terms herein.  In the event that any
environmental contamination created or caused by Sublandlord’s possession or
use of the Premises (the “Contamination”) is discovered during Subtenant’s
performance of the obligations of this Section 30, Overlandlord and
Sublandlord shall hold Subtenant harmless and shall release Subtenant from all
liability created or caused by the Contamination.  Subtenant shall be responsible for payment of
up to $35,000 for costs associated with the performance of the obligations set
forth above (“Subtenant’s Contribution”), with the exception of damage to the
Premises or the Property caused by Subtenant’s removal of the Freezers from the
Freezer Farm for which Subtenant shall remain responsible for restoration of
any such damage.  In the event
Overlandlord is unable to cause Sublandlord to perform its obligations under
the Overlease, Overlandlord shall remediate the Premises, including any Contamination,
but hereby reserves all remedies Overlandlord may have against Sublandlord
under all applicable laws.  Subtenant
understands that Subtenant’s Initial Alterations as related to the Freezer Farm
shall not commence until Sublandlord, Subtenant, and/or Overlandlord has
performed, to Overlandlord’s satisfaction, all obligations under section
29.31.7 of the Overlease.  Sublandlord
hereby waives any and all rights, to the maximum extent permitted by applicable
law, necessary to permit Subtenant to exercise its rights to remove the
Freezers set forth in this Section 30(b).


 


31.           Bankruptcy
Provisions.  Sublandlord shall immediately notify
Subtenant in the event that Sublandlord files for bankruptcy, and Sublandlord
hereby authorizes Subtenant to file pleadings in any such bankruptcy on behalf
of Subtenant.


 


32.           Confidential
Information. Sublandlord and
Subtenant acknowledge and agree that during the course of this Sublease each
party may disclose to the other, intentionally or unintentionally, by act or
omission, certain confidential, technical and business information which the
disclosing party desires the receiving party to treat as “Confidential
Information”, as defined below, and that both Sublandlord and Subtenant may be
a disclosing party or a receiving party of such Confidential Information, as
defined below.  As used herein, the term “Confidential
Information” shall mean any information disclosed previously or in the future
by either party to 


 

















 


the
other party, either directly or indirectly, in writing, orally or by inspection
of tangible objects (including without limitation documents, prototypes,
samples, plans and equipment), which is designated, orally or in writing, as “Confidential,”
“Proprietary” or some similar designation. Confidential Information may also
include information disclosed to a disclosing party by third parties.  Confidential Information shall not, however,
include any information which (a) at the time of disclosure is, or
thereafter becomes, through no act or failure to act on the receiving party’s
part, published information generally known on a non-confidential basis in the
parties’ industry; (b) becomes publicly known and made generally available
after disclosure by the disclosing party to the receiving party through no
action or inaction of the receiving party; (c) corresponds in substance to
that developed by the receiving party and is already in the possession of the
receiving party prior to the time of disclosure by the disclosing party as
shown by the receiving party’s files and records; (d) corresponds in
substance to information that is obtained by the receiving party from a third
party without a breach of such third party’s obligations of confidentiality; (e) is
independently developed by the receiving party without use of or reference to
the disclosing party’s Confidential Information, as shown by documents and
other competent evidence in the receiving party’s possession; or (f) is
required by law, court order or other governmental order or request to be
disclosed by the receiving party, provided that the receiving party gives the
disclosing party prompt written notice of such requirement prior to such
disclosure and reasonable assistance in obtaining an order protecting the
information from public disclosure, and uses all reasonable efforts to limit
the disclosure and maintain the confidentiality of the information to the
extent possible.


 


33.           Non-Use
and Non-Disclosure.  Each party agrees not to use any Confidential
Information of the other party for any purpose whatsoever except as
contemplated by this Sublease.  Each
party agrees not to disclose any Confidential Information of the other party to
third parties or to its employees, except to those employees of the receiving
party who are permitted to use the Premises hereunder.  Both parties agree not to reverse engineer,
disassemble or decompile any prototypes, software or other tangible objects
which embody the other party’s Confidential Information and which are provided
to the party hereunder.


 


34.           Maintenance
of Confidentiality.  Each party agrees to take reasonable measures
to protect the secrecy of and avoid disclosure and unauthorized use of the
Confidential Information of the other party. 
Without limiting the foregoing, each party agrees to take at least those
measures that it takes to protect its own most highly confidential information
and to ensure that its employees who have access to Confidential Information of
the other party have signed a non-use and non-disclosure agreement with
provisions containing content similar to the non-use and non-disclosure
provisions hereof, prior to any disclosure of Confidential Information to such
employees.  Without limiting the
generality of the foregoing, (a) Sublandlord shall ensure that the Exact
Employees have all signed the type of non-use and non-disclosure agreement
described in the foregoing sentence (the “Non-Disclosure Agreements”) prior to
the Term Commencement Date, and any third party information technology service
personnel and/or any auditing personnel who will have access to the Premises
shall sign Non-Disclosure Agreements, to the extent their employers allow or
approve of such Non-Disclosure Agreements, prior to being given such access,
and (b) Subtenant shall ensure that all of Subtenant’s employees who will
have access to the Premises shall have signed Non-Disclosure Agreements prior
to such employees commencing work at the Premises.  The parties agree not to make any copies of
the 


 

















 


Confidential
Information of the other party unless the same are previously approved in
writing by the other party.  Each party
agrees to reproduce the other party’s proprietary rights notices on any such
approved copies, in the same manner in which such notices were set forth in or
on the original.


 


35.           Hazardous
Materials.  Sublandlord and Subtenant agree as follows with
respect to the existence or use of “Hazardous Material” in or on the Premises
or Project.


 


(a)           Subtenant, at its sole cost and expense, shall comply with all laws,
statutes, ordinances, rules and regulations of any local, state or federal
governmental authority (including, without limitation, the Fire Department of
the City of Marlborough, and the Local Emergency Planning Committee, if any)
having jurisdiction concerning environmental, health and safety matters
(collectively, “Environmental Laws”), including,
but not limited to, any discharge into the air, surface, water, sewers, soil or
groundwater of any Hazardous Material (as defined in Section 35(c),
below), whether within or outside the Premises, within the Project.  Notwithstanding the foregoing, nothing
contained in this Sublease requires, or shall be construed to require,
Subtenant to incur any liability related to or arising from environmental
conditions (except to the extent set forth in Section 4.2.3(V) of
the Overlease): (i) for which the Sublandlord is responsible pursuant
to the  express terms of the Overlease, (ii) which
existed within the Premises or the Project prior to the date Subtenant takes
possession of the Premises pursuant to this Sublease, or which result from
Sublandlord’s use or occupancy as contemplated by Section 30 of this
Sublease subsequent to the Term Commencement Date, (iii) which are
unrelated to the acts or omissions of Subtenant, its employees, officers,
contractors, representatives or agents (individually and/or collectively, “Tenant
Party”), or (iv) which were caused solely by a third party which is not a
Tenant Party.


 


(b)           Subtenant shall not cause or permit any Hazardous Material to be
brought upon, handled, kept, stored or used in or about the Premises or
otherwise in the Project by Subtenant, its agents, employees, contractors or
invitees, except for Hazardous Materials which are typically used in the
operation of offices, and except for Hazardous Material which are used by
Subtenant in connection with the Permitted Use and which are specifically
identified by name and acceptable quantity on Exhibit C  attached hereto, provided that all such materials are
stored, used and disposed of in strict compliance with all applicable
Environmental Laws and with good scientific and medical practice, and provided
further that all such materials shall be removed from the Premises and the
Project prior to the expiration or earlier termination of this Sublease in
accordance with all applicable laws at the sole cost and expense of Subtenant.  Subject to the provisions of this Section 35,
Subtenant shall update Overlandlord in writing with any requested increases in
quantity, changes and/or additions to Exhibit C  (the
“New Materials”) made after the date of this Sublease, and subject to the
provisions of this Section 35, the update shall be deemed to be
incorporated into Exhibit C if Overlandlord provides its written
approval of Subtenant’s use of the New Materials, a copy of which approval
Subtenant shall provide to Sublandlord. 
If Overlandlord shall fail to provide its written approval of the New
Materials, at Subtenant’s reasonable request, Overlandlord and Subtenant shall
meet to determine what protocols Subtenant may institute in order to satisfy
any concerns raised by Overlandlord, and Subtenant shall either (i) implement
any such protocols reasonably suggested by Overlandlord and/or Overlandlord’s
consultants, or (ii) not utilize the particular New Material(s) to
which 


 

















 


Overlandlord has objected and ensure the same do not enter the Premises
and the Project.  Notwithstanding
anything to the contrary,  Subtenant  shall not cause or permit any radioactive
materials or radioactive isotopes to be brought upon, handled, kept, stored or
used in or about the Premises or otherwise in the Project by Subtenant, its
agents, employees, contractors or invitees without the prior written consent of
Overlandlord.  Notwithstanding the
foregoing, with respect to any of Subtenant’s Hazardous Material which
Subtenant does not properly handle, store or dispose of in compliance with all
applicable Environmental Laws and good scientific and medical practice,
Subtenant shall, upon written notice from Overlandlord, no longer have the
right to bring such material into the buildings or the Project until Subtenant
has demonstrated, to Overlandlord’s reasonable satisfaction, that Subtenant has
implemented programs to thereafter properly handle, store or dispose of such
material.


 


(c)           As used herein, the term “Hazardous Material” means any flammable
substances, explosives, and radioactive materials,  and any hazardous or toxic substance,
material or waste or petroleum derivative which is or becomes regulated by any
Environmental Law, specifically including live organisms, viruses and fungi,
medical waste, and so-called “biohazard” materials.  The term “Hazardous Material” includes,
without limitation, any material or substance which is (i) designated as a
“hazardous substance” pursuant to Section 1311 of the Federal Water
Pollution Control Act (33 U.S.C. Section 1317), (ii) defined as a “hazardous
waste” pursuant to Section 1004 of the Federal Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903),
(iii) defined as a “hazardous substance” pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv) defined
as “hazardous substance” or “oil” under Chapter 21E of the General Laws of
Massachusetts, or (v) a so-called “biohazard” or medical waste, or is
contaminated with blood or other bodily fluids; and “Environmental Laws”
include, without limitation, the laws listed in the preceding clauses (i) through
(iv).


 


(d)           Any increase in the premium for necessary insurance on the Premises or
the Project which arises from Subtenant’s use and/or storage of these Hazardous
Materials shall be solely at Subtenant’s expense.  Subtenant shall procure and maintain at its
sole expense such additional insurance as may be necessary to comply with any
requirement of any Federal, State or local government agency with jurisdiction.


 


(e)           Subtenant hereby covenants and agrees to indemnify, defend and hold
Sublandlord and Overlandlord harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (collectively “Losses”)
which Sublandlord or Overlandlord may reasonably incur arising out of
contamination of real estate, the Premises, the Project, or other property not
a part of the Premises, which contamination arises as a result of: (i) the
presence of Hazardous Material in the Premises or the Project, the presence of
which is caused or permitted by Subtenant, its agents, employees, contractors
or invitees, or (ii) from a breach by Subtenant of its obligations under
this Section 35; provided that, notwithstanding the foregoing or any other
provision contained in this Sublease to the contrary, Subtenant shall have no
liability for any Losses which Sublandlord or Overlandlord may incur now or
hereafter arising from Sublandlord’s use and occupancy of the Premises and the
Project or performance of any of its obligations under the terms of the
Overlease or hereunder (unless otherwise set forth herein).  This indemnification of Sublandlord and
Overlandlord by Subtenant includes, without limitation, 


 

















 


reasonable costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision
because of Hazardous Material present in the soil or ground water on or under
the Premises based upon the circumstances identified in the first sentence of
this Section 35(e).  The
indemnification and hold harmless obligations of Subtenant under this Section 35(e) shall
survive any termination of this Sublease. 
Without limiting the foregoing, if the presence of any Hazardous
Material in the buildings or otherwise in the Project caused or permitted by
Subtenant results in any contamination of the Premises, Subtenant shall give
immediate notice thereof to Overlandlord and Sublandlord and shall promptly
take all actions at its sole expense as are necessary to return the Premises to
a condition which complies with all Environmental Laws; provided that
Overlandlord’s approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld so long as such actions, in Overlandlord’s
reasonable discretion, would not potentially have any materially adverse
long-term or short-term effect on the Premises, and, in any event, Overlandlord
shall not withhold its approval of any proposed actions which are required by
applicable Environmental Laws. 
Notwithstanding anything to the contrary in the Sublease contained, the
foregoing indemnity shall not apply to: (i) any Hazardous Materials which
exist in the Premises or elsewhere in the Project prior to and as of the
execution date of this Sublease, or (ii) any Hazardous Materials
introduced to the Project by other tenants within their respective premises, or
(iii) any Hazardous Materials the presence of which were not caused or
permitted by the acts or omissions of Subtenant, its employees, agents,
consultants and/or contractors.


 


(f)            Notwithstanding anything to the contrary in
this Lease, if Subtenant fails to cure any breach or default of this Section 35
within five (5) business days after written notice from Sublandlord (or if
such default cannot be cured within said five day period, to commence to cure
said period during said five day period and diligently proceed to cure such
default within thirty (30) days), such failure shall constitute a default under
this Sublease, and in the event of such a default, in addition to any other
remedies available to Sublandlord under this Sublease, Sublandlord may
terminate this Sublease upon ten (10) days written notice to  Subtenant.


 


(g)           Subtenant shall, after Subtenant, and anyone claiming by, through or
under Subtenant, vacate the Premises, and immediately prior to the time that
Subtenant  delivers the Premises to
Overlandlord:  (i) cause the
Premises to be decommissioned in accordance with the regulations of the U.S.
Nuclear Regulatory Commission and/or the Massachusetts Department of Public
Health for the control of radiation; (ii) provide a written report by a
licensed industrial hygienist or equivalent to confirm that the Premises
contain no contaminants per the National Institute of Health (or its successor
organization) rules and regulations on bio-safety as administered by the
Department of Health; and (iii) provide a copy of its most current
chemical waste removal manifest and a certification from an officer of  Subtenant that no chemicals remain in the
Premises.


 


(h)           Overlandlord and Sublandlord shall have the right from time to time to
conduct (or retain one or more consultants to conduct) environmental audits of
the Premises to ensure and verify Subtenant’s compliance with this Section 35,
upon three (3) business days advance written notice to Subtenant.  Subtenant agrees to cooperate with the person
or entity conducting said audit and to supply all information reasonably
requested in connection therewith. 
Subtenant shall pay the cost of such audit if such audit discloses that
Subtenant has 


 

















 


materially violated any of the provisions of this Section 35;  otherwise, the cost of said audit shall be
paid for by Overlandlord.


 


(i)            Subtenant shall not dispose of any Hazardous
Materials at the Project (including, without limitation, placing, or permitting
any Hazardous Materials to be placed into the sewer system servicing the
Project), except as permitted by law in approved and environmentally safe
containers which Subtenant will dispose of off-site.  Subtenant shall give Overlandlord written
notice annually (and from time to time, if changed) of the name, address and telephone
number of the contractor that will be responsible for removal of all Hazardous
Materials disposed of by Subtenant from the Premises and/or the Project.


 


(j)            Subtenant shall provide Overlandlord with a
copy of its Chemical Hygiene Plan (as set forth in OSHA 1910.1450) annually, or
more often as and when it is amended.


 


36.           Survival.  The
provisions of Sections 32-34, and 36 hereof shall survive the expiration or
earlier termination of this Sublease.


 


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IN
WITNESS WHEREOF, Sublandlord and Subtenant have duly executed this Sublease, as
an instrument under seal, as of the day and year first above written.


 


	
   

  	
  SUBLANDLORD:

  
	
   

  	
   

  
	
   

  	
  EXACT
  SCIENCES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Charles R. Carelli, Jr.

  
	
   

  	
  Name:  Charles
  R. Carelli, Jr.

  
	
   

  	
  Title:  Vice
  President, Chief Financial Officer,

  
	
   

  	
  Treasurer and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUBTENANT:

  
	
   

  	
   

  
	
   

  	
  QTEROS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephan Rogers

  
	
   

  	
  Name:  Stephan
  Rogers

  
	
   

  	
  Title:  Chief
  Operating Officer