exv10w1







Exhibit 10.1




LEASE




BETWEEN



AMERESCO, INC., AS TENANT



AND


BCIA NEW ENGLAND HOLDINGS LLC, AS LANDLORD



POINT WEST PLACE, FRAMINGHAM, MASSACHUSETTS


The submission of an unsigned copy of this document to Tenant for Tenant’s consideration does not
constitute an offer to lease the Premises or an option to or for the Premises. This document shall
become effective and binding only upon the execution and delivery of this Lease by both Landlord
and Tenant.









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE 1
	 	 	 	 
	BASIC DATA: DEFINITIONS
	 	 	1	 
	1.1 Basic Data
	 	 	1	 
	1.2 Definitions
	 	 	2	 
	1.3 Enumeration of Exhibits
	 	 	5	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	PREMISES AND APPURTENANT RIGHTS
	 	 	6	 
	2.1 Lease of Premises
	 	 	6	 
	2.2 Appurtenant Rights and Reservations
	 	 	6	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	BASIC RENT
	 	 	7	 
	3.1 Payment
	 	 	7	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	TENANTS WORK
	 	 	8	 
	4.1 Tenant’s Work
	 	 	8	 
	4.2 Condition
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	USE OF PREMISES
	 	 	10	 
	5.1 Permitted Use
	 	 	10	 
	5.2 Installations and Alterations by Tenant
	 	 	10	 
	5.3 Extra Hazardous Use
	 	 	12	 
	5.4 Hazardous Materials
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	ASSIGNMENT AND SUBLETTING
	 	 	13	 
	6.1 Prohibition
	 	 	13	 
	6.2 Acceptance of Rent
	 	 	14	 
	6.3 Excess Payments
	 	 	14	 
	6.4 Landlord’s Recapture Right
	 	 	14	 
	6.5 Further Requirements
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES; SERVICES TO BE FURNISHED BY
LANDLORD
	 	 	15	 
	7.1 Landlord Repairs
	 	 	15	 
	7.2 Tenant Repairs
	 	 	16	 
	7.3 Floor Load — Heavy Machinery
	 	 	16	 
	7.4 Utility Services
	 	 	17	 
	7.5 Other Services
	 	 	18	 
	7.6 Interruption of Service
	 	 	18	 






(i)









 






	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE 8
	 	 	 	 
	REAL ESTATE TAXES
	 	 	19	 
	8.1 Payments on Account of Real Estate Taxes
	 	 	19	 
	8.2 Abatement
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	OPERATING AND UTILITY EXPENSES
	 	 	21	 
	9.1 Definitions
	 	 	21	 
	9.2 Tenant’s Payment of Operating Expenses
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	INDEMNITY AND PUBLIC LIABILITY INSURANCE
	 	 	22	 
	10.1 Tenant’s Indemnity
	 	 	22	 
	10.2 Tenant Insurance
	 	 	22	 
	10.3 Tenant’s Risk
	 	 	23	 
	10.4 Waiver of Subrogation
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	FIRE, EMINENT DOMAIN, ETC
	 	 	23	 
	11.1 Landlord’s Right of Termination
	 	 	23	 
	11.2 Restoration; Tenant’s Right of Termination
	 	 	24	 
	11.3 Landlord’s Insurance
	 	 	24	 
	11.4 Abatement of Rent
	 	 	24	 
	11.5 Condemnation Award
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	HOLDING OVER; SURRENDER
	 	 	25	 
	12.1 Holding Over
	 	 	25	 
	12.2 Surrender of Premises
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 13
	 	 	 	 
	RIGHTS OF MORTGAGEES; TRANSFER OF TITLE
	 	 	26	 
	13.1 Rights of Mortgagees
	 	 	26	 
	13.2 Assignment of Rents and Transfer of Title
	 	 	26	 
	13.3 Notice to Mortgagee
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 14
	 	 	 	 
	DEFAULT; REMEDIES
	 	 	27	 
	14.1 Tenant’s Default
	 	 	27	 
	14.2 Landlord’s Remedies
	 	 	30	 
	14.3 Additional Rent
	 	 	31	 
	14.4 Remedying Defaults
	 	 	31	 
	14.5 Remedies Cumulative
	 	 	31	 
	14.6 Attorneys’ Fees
	 	 	32	 
	14.7 Waiver
	 	 	32	 
	14.8 Security Deposit
	 	 	32	 
	14.9 Landlord’s Default
	 	 	33	 






(ii)









 






	 	 	 	 	 
	 	 	PAGE	 
	ARTICLE 15
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	33	 
	15.1 Rights of Access
	 	 	33	 
	15.2 Covenant of Quiet Enjoyment
	 	 	33	 
	15.3 Landlord’s Liability
	 	 	33	 
	15.4 Estoppel Certificate
	 	 	34	 
	15.5 Relocation
	 	 	34	 
	15.6 Brokerage
	 	 	34	 
	15.7 Roles and Regulations
	 	 	34	 
	15.8 Invalidity of Particular Provisions
	 	 	34	 
	15.9 Provisions Binding, Etc
	 	 	34	 
	15.10 Recording
	 	 	35	 
	15.11 Notice
	 	 	35	 
	15.12 When Lease Becomes Binding: Entire Agreement; Modification
	 	 	35	 
	15.13 Paragraph Headings and Interpretation of Sections
	 	 	36	 
	15.14 Dispute Resolution
	 	 	36	 
	15.15 Financial Statements
	 	 	36	 
	15.16 Waiver of Jury Trial
	 	 	36	 
	15.17 Time Is of the Essence
	 	 	36	 
	15.18 Multiple Counterparts
	 	 	36	 
	15.19 Governing Law
	 	 	36	 
	 
	 	 	 	 
	EXHIBIT A
	 	 	 	 
	Location Plan of Premises
	 	 	A-l	 
	 
	 	 	 	 
	EXHIBIT A-l
	 	 	 	 
	Expansion Premises
	 	 	A-l-1	 
	 
	 	 	 	 
	EXHIBIT B
	 	 	 	 
	Site Plan of Building
	 	 	B-l	 
	 
	 	 	 	 
	EXHIBIT C
	 	 	 	 
	Intentionally Omitted
	 	 	C-l	 
	 
	 	 	 	 
	EXHIBIT D
	 	 	 	 
	Operating Expenses
	 	 	D-l	 
	 
	 	 	 	 
	EXHIBIT E
	 	 	 	 
	Rules and Regulations of Building
	 	 	E-1	 











(iii)









 








LEASE




     THIS LEASE is dated as of November 20, 2000, between the Landlord and the Tenant named below,
and is of space in the Building described below.



ARTICLE 1

BASIC DATA; DEFINITIONS




     1.1 Basic Data. Each reference in this Lease to any of the following terms shall be
construed to incorporate the data for that term set forth in this Section:



     Landlord: BCIA New England Holdings LLC, a Delaware limited liability company



     Landlord’s Address: c/o Boston Capital Institutional Advisors LLC, One Boston Place, Boston,
MA 02108



     Tenant: Ameresco, Inc., a Delaware corporation



     Tenant’s Address: 1400 Main Street, Suite 200, Waltham, MA 02451



     Property: The land located in Framingham, Massachusetts, together with the Building and other
improvements thereon, all as shown on the site plan attached hereto as Exhibit B.



     Building: The five-story building commonly known and numbered as 111 Speen Street, shown on
the site plan attached hereto as Exhibit B.



     Building Rentable Area: Agreed to be 107,984 square feet.



     Premises: The portion of the Building located on the fourth floor and shown on the location
plan attached hereto as Exhibit A.



     Expansion Premises: The portion of the Building, located on the fourth floor, and shown on
the location plan attached hereto as 

Exhibit A-1.



     Premises Rentable Area: Agreed to be 11,684 square feet, subject to the provisions of Section
2.1(b).



     Commencement Date: January 1, 2001.



     Basic Rent: Subject to the addition of the Expansion Premises pursuant to Section 2.1(b), the
Basic Rent is as follows:



 









 





	 	 	 	 	 	 	 	 	 
	RENTAL PERIOD	 	ANNUAL BASIC RENT	 	MONTHLY PAYMENT
	From January 1, 2001 through
December 31, 2002
	 	$	321,310.00	 	 	$	26,775.83	 
	 
	 	 	 	 	 	 	 	 
	From January 1, 2003 through the
end of the initial Term.
	 	$	438,150.00	 	 	$	36,512.50	 






     Base Year for Operating Expenses: Calendar year 2000.



     Base Year for Taxes: The twelve month period beginning July 1, 2000.



     Tenant’s Proportionate Share: 10.82% (which is based on the ratio of (a) Premises Rentable
Area to (b) Building Rentable Area ).



     Security Deposit: $0.00.



     Term: Seven (7) years, commencing on the Commencement Date and expiring at the close of the
day immediately preceding the seventh anniversary of the Commencement Date. The Term shall include
any extension thereof that is expressly provided for by this Lease and that is effected strictly in
accordance with this Lease; if no extension of the Term is expressly provided for by this Lease, no
right to extend the Term shall be implied by this provision.



     Initial General Liability Insurance: $2,000,000.00 per occurrence/$3,000,000.00 aggregate
(combined single limit) for property damage, bodily injury or death.



     Permitted Uses: Executive and general offices.



     Tenant’s Share of Parking Spaces: The number of parking spaces equal to 4.0 spaces for every
1,000 square foot of Premises Rentable Area.



     Cost of Tenant’s Electricity for Lights & Plugs: $11,684.00 per year as such amount may be
adjusted in accordance with Section 2.1(b) and Section 7.4 (based on $1.00 per square foot of
Premises Rentable Area).



     Landlord’s Contribution: $100,000.00.



     Landlord’s Construction Representative: David Wamester.



     Tenant’s Construction Representative: Peter N. Christakis



     1.2 Definitions. When used in this Lease, the capitalized terms set forth below shall
bear the meanings set forth below.



     Adequate Assurance: As defined in Section 14.1.



     Adequate Assurance of Future Performance: As defined in Section 14.1.



2









 





     Additional Rent: All charges and sums payable by Tenant as set forth in this Lease, other
than and in addition to Basic Rent.



     Agent: BCIA Property Management LLC, or such other person or entity from time to time
designated by Landlord.



     Alterations: As defined in Section 5.2.



     Bankruptcy Code: As defined in Section 14.1.



     Base Operating Expenses: Actual Operating Expenses for the Base Year for Operating Expenses.



     Base Taxes: Actual Taxes assessed for the Base Year for Taxes.



     Base Year for Operating Expenses: As defined in Section 1.1.



     Base Year for Taxes: As defined in Section 1.1.



     Basic Rent: As defined in Section 1.1.



     Building: As defined in Section 1.1.



     Building Rentable Area: As defined in Section 1.1.



     Business Day: All days except Saturdays, Sundays, and other days when national banks in the
state in which the property is located are not open for business.



     Commencement Date: As defined in Section 1.1.



     Common Facilities: As defined in Section 2.2.



     Cost of Tenant’s Electricity for Lights & Plugs: As defined in Section 1.1.



     Default of Tenant: As defined in Section 14.1.



     Environmental Condition: Any disposal, release or threat of release of Hazardous Materials
on, from or about the Building or the Property or storage of Hazardous Materials on, from or about
the Building or the Property.



     Environmental Laws: Any federal, state and/or local statute, ordinance, bylaw, code, rule
and/or regulation now or hereafter enacted, pertaining to any aspect of the environment or human
health, including, without limitation, Chapter 21C, Chapter 21D, and Chapter 21E of the General
Laws of Massachusetts and the regulations promulgated by the Massachusetts Department of
Environmental Protection, the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §
6901 et seq., the Toxic Substances Control Act, 15 U.S.C. §2061 et seq., the Federal Clean Water
Act, 33 U.S.C. §1251, and the Federal Clean Air Act, 42 U.S.C. §7401 et seq.



3









 





     Essential Services: As defined in Section 7.6.



     Event of Bankruptcy: As defined in Section 14.1.



     Expansion Premises: As defined in Section 1.1.



     Expansion Premises Commencement Date: As defined in Section 2.1(b).



     Expansion Premises Contribution: As defined in Section 2.1(b).



     Force Majeure: Collectively and individually, strikes or other labor trouble, fire or other
casualty, acts of God, governmental preemption of priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor resulting therefrom, or
any other cause, whether similar or dissimilar, beyond the reasonable control of the party required
to perform an obligation.



     Holder: As defined in Section 13.1.



     Hazardous Materials: Shall mean each and every element, compound, chemical mixture,
contaminant, pollutant, material, waste or other substance which is defined, determined or
identified as hazardous or toxic under any Environmental Law, including, without limitation, any
“oil,” “hazardous material,” “hazardous waste,” “hazardous substance” or “chemical substance or
mixture”, as the foregoing terms (in quotations) are defined in any Environmental Laws.



     Initial General Liability Insurance: As defined in Section 1.1.



     Land: The land that constitutes a portion of the Property.



     Landlord: As defined in Section 1.1.



     Landlord’s Construction Representative: As defined in Section 1.1.



     Landlord’s Contribution: As defined in Section 1.1.



     Landlord’s Address: As defined in Section 1.1.



     Mortgage: As defined in Section 13.1.



     Operating Expenses: As defined in Section 9.1.



     Operating Year: As defined in Section 9.1.



     Permitted Uses: As defined in Section 1.1.



     Plans: As defined in Section 4.2.



     Premises: As defined in Section 1.1.



4









 





     Premises Rentable Area: As defined in Section 1.1.



     Property: As defined in Section 1.1.



     Recapture Date: As defined in Section 6.4.



     Rules and Regulations : As defined in Section 2.2.



     Security Deposit: As defined in Section 1.1.



     Service Interruption: As defined in Section 7.6.



     Successor: As defined in Section 13.1.



     Taxes: As defined in Section 8.1.



     Tax Year: As defined in Section 8.1.



     Tenant: As defined in Section 1.1.



     Tenant’s Address: As defined in Section 1.1.



     Tenant’s Construction Representative: As defined in Section 1.1.



     Tenant’s Plans: As defined in Section 4.1.



     Tenant’s Proportionate Share: As defined in Section 1.1.



     Tenant’s Removable Property: As defined in Section 5.2.



     Term: As defined in Section 1.1.



     Tenant’s Share of Parking Spaces: As defined is Section 1.1.



     Tenant’s Work: As defined in Section 4.2.



     Termination Date: As defined in Section 15.5.



     1.3 Enumeration of Exhibits. The following Exhibits are a part of this Lease, are
incorporated herein by reference attached hereto, and are to be treated as a part of this Lease for
all purposes. Undertakings contained in such Exhibits are agreements on the part of Landlord and
Tenant, as the case may be, to perform the obligations stated therein.



	 	 	 
	Exhibit A

	 	Location Plan of the Premises
	Exhibit A-1

	 	Location of the Expansion Premises
	Exhibit B

	 	Site Plan of Buildings
	Exhibit C

	 	Intentionally Omitted
	Exhibit D

	 	Operating Expenses
	Exhibit E

	 	Rules and Regulations






5









 





ARTICLE 2

PREMISES AND APPURTENANT RIGHTS




     2.1 Lease of Premises.



          (a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for
the Term and upon the terms and conditions hereinafter set forth.




          (b) If at any time during the Term of this Lease, Landlord shall determine that the Expansion
Premises are available for lease, Landlord shall tender the Expansion Premises to Tenant by written
notice to Tenant, and, without any further requirement or obligations on the part of Landlord to be
fulfilled or performed, the Expansion Premises shall be added to and considered part of the
Premises for all purposes under this Lease, including, without limitation, the increased payment of
Basic Rent and Additional Rent on account of the Expansion Premises, on the date which is the
earlier of thirty (30) days after the date of Landlord’s notice or the date that the prior occupant
of the Premises has vacated the Expansion Premises (the “Expansion Premises Commencement Date”).
The Expansion Premises shall be delivered to Tenant and Tenant shall accept the Expansion Premises
in their AS IS condition, WITHOUT REPRESENTATION OR WARRANTY. Tenant shall execute and deliver to
Landlord, promptly upon request by Landlord, a written amendment to this Lease confirming the
Expansion Premises Commencement Date, the revised Premises Rentable Area as determined by
Landlord’s architect, Basic Rent, Tenant’s Proportionate Share, Tenant’s Share of Parking Spaces,
the Expansion Premises Contribution, and such other information as may be requested by Landlord,
but the failure by Tenant to execute such confirmation shall have no effect on the Expansion
Premises Commencement Date as determined above.




          (c) If Tenant desires to perform any work in the Expansion Premises (“Expansion Premises
Work”) to prepare the Expansion Premises for Tenant’s use and occupancy, such Expansion Premises
Work shall be subject to all of the terms and conditions of this Lease, including without
limitation, Section 4.1 and Section 5.2. Landlord shall reimburse Tenant for the actual costs of
the Expansion Premises Work, including, without limitation, a construction review fee payable to
Landlord in the amount of two percent (2% ) of the total cost and expenses associated with the
Expansion Premises Work, up to an amount equal to five dollars ($5.00) per square foot of Expansion
Premises Rentable Area (“Expansion Premises Contribution”). To the extent that the cost of the
Expansion Premises Work exceeds the Expansion Premises Contribution, Tenant shall be entirely
responsible for such excess. The Expansion Premises Contribution shall be payable by Landlord to
Tenant (or, at Landlord’s election, directly to Tenant’s contractor) within thirty (30) days after
written request from Tenant, which shall be accompanied by (i) invoices paid by Tenant, (ii) final
lien waivers and (iii) a certificate signed by Tenant’s architect or engineer and an officer of
Tenant certifying that the Expansion Premises Work has been completed substantially in accordance
with the plans approved by Landlord.




     2.2 Appurtenant Rights and Reservations.



          (a) Tenant shall have, as appurtenant to the Premises, the non-exclusive right to use, and
permit its invitees to use in common with Landlord and others, (i) public or common






6









 







lobbies, hallways, stairways, elevators and common walkways necessary for access to the
Building and the Premises, and if the portion of the Premises on any floor includes less than the
entire floor, the common toilets, corridors and elevator lobby of such floor; and (ii) the access
roads, driveways, parking areas, loading areas, pedestrian sidewalks, landscaped areas, trash
enclosures, recreation areas and other areas or facilities, if any, which are located in or on the
Property and designated by Landlord from time to time for the non-exclusive use of tenants and
other occupants of the Building (the “Common Facilities”); but such rights shall always be subject
to reasonable rules and regulations from time to time established by Landlord pursuant to Section
15.7 (the “Rules and Regulations”) and to the right of Landlord to designate and change from time
to time areas and facilities so to be used.




          (b) Excepted and excluded from the Premises and the Common Facilities are the ceiling, floor,
perimeter walls and exterior windows (except the inner surface of each thereof), and any space in
the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, but the entry doors (and related glass and finish
work) to the Premises are a part thereof. Landlord shall have the right to place in the Premises
(but in such manner as to reduce to a minimum interference with Tenant’s use of the Premises)
interior storm windows, sun control devices, utility lines, equipment, stacks, pipes, conduits,
ducts and the like. In the event that Tenant shall install any hung ceilings or walls in the
Premises, Tenant shall install and maintain, as Landlord may require, proper access panels therein
to afford access to any facilities above the ceiling or within or behind the walls. Tenant shall
be entitled to install any such ceilings or walls only in compliance with the other terms and
conditions of this Lease.




          (c) Tenant shall also have the right (subject to the Rules and Regulations) to use, on a
non-exclusive, unreserved basis, Tenant’s Share of Parking Spaces. One of Tenant’s Share of
Parking Spaces shall be available for Tenant’s use, on a non-exclusive, unreserved basis, in the
parking garage on the Property. The remainder of Tenant’s Share of Parking Spaces shall be made
available in the surface parking on the Property.




          (d) Landlord shall cause Tenant’s name to be listed on the building directory in the Building
lobby.




ARTICLE 3

BASIC RENT




     3.1 Payment.



          (a) Tenant agrees to pay the Basic Rent and Additional Rent to Landlord, or as directed by
Landlord, commencing on the Commencement Date, without offset, abatement (except as provided in
Section 11.1), deduction or demand. Basic Rent shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during the Term of this Lease, to
Landlord at Landlord’s Address or at such other place as Landlord shall from time to time designate
by notice, in lawful money of the United States. In the event that any installment of Basic Rent
or any regularly scheduled payment of Additional Rent is not paid when due, Tenant shall pay, in
addition to any charges under Section 14.4, at Landlord’s request an administrative fee equal to 5%
of the overdue payment. Landlord and Tenant agree that all






7









 







amounts due from Tenant under or in respect of this Lease, whether labeled Basic Rent,
Additional Rent or otherwise, shall be considered as rental reserved under this Lease for all
purposes, including without limitation regulations promulgated pursuant to the Bankruptcy Code, and
including further without limitation Section 502(b) thereof.




          (b) Basic Rent for any partial month shall be pro-rated on a daily basis, and if the first day
on which Tenant must pay Basic Rent shall be other than the first day of a calendar month, the
first payment which Tenant shall make to Landlord shall be equal to a proportionate part of the
monthly installment of Basic Rent for the partial month from the first day on which Tenant must pay
Basic Rent to the last day of the month in which such day occurs, plus the installment of Basic
Rent for the succeeding calendar month.




ARTICLE 4

TENANTS WORK




     4.1 Tenant’s Work.



          (a) Tenant is currently preparing, at its sole cost and expense, plans and specifications for
the improvements Tenant desires to make in connection with Tenant’s occupancy of the Premises (the
“Tenant’s Plans”). Landlord shall approve or disapprove of Tenant’s Plans within ten (10) Business
Days after receiving them. Any disapproval by Landlord of Tenant’s Plans shall be accompanied by a
reasonably specific statement of reasons therefor. At Tenant’s sole cost and expense, Tenant shall
cause Tenant’s Plans to be revised in a manner sufficient to remedy Landlord’s objections and/or
respond to Landlord’s concerns and shall resubmit the revised Tenant’s Plans to Landlord, and
Landlord shall either approve or disapprove of the revised Tenant’s Plans within five (5) Business
Days following the date of resubmission. If Landlord shall again disapprove of Tenant’s Plans,
Tenant shall again revise such plans and resubmit them to Landlord pursuant to the foregoing
procedures until Tenant’s Plans have been approved by Landlord. Tenant’s Plans shall be stamped by
a Massachusetts-registered architect and engineer, such architect and engineer being subject to
Landlord’s approval in Landlord’s reasonable discretion, and shall comply with all applicable laws,
ordinances and regulations (including, without limitation, the applicable requirements of the
Americans with Disabilities Act of 1990, as amended from time to time, and the regulations
promulgated thereunder) and the requirements of the Rules and Regulations and shall be in a form
satisfactory to appropriate governmental authorities responsible for issuing permits, approvals and
licenses required for construction. Landlord will not approve any alterations or additions that
require unusual expense to readapt the Premises to normal office use on expiration or termination
of this Lease or increase the cost of insurance on the Building, unless Tenant first gives
assurances acceptable to Landlord that such readaptation will be made prior to such expiration or
termination without expense to Landlord and for payment of any such increased cost. Landlord’s
approval of any Tenant’s Plans shall not impose upon Landlord any responsibility or liability
whatsoever to Tenant.




          (b) Promptly after the Commencement Date and after the approval of Tenant’s Plans, Tenant
shall commence and exercise all reasonable efforts to complete the work specified therein
(“Tenant’s Work”). All of Tenant’s Work shall be completed in accordance with the approved
Tenant’s Plans and the requirements for alterations and improvements made






8









 







by or on behalf of Tenant set forth in this Lease and in the Rules and Regulations. Copies of
all permits and approvals required for Tenant’s Work shall be furnished to Landlord promptly upon
receipt thereof. Tenant’s Work shall be performed by a general contractor approved by Landlord,
which approval shall not be unreasonably withheld or delayed, under a written construction
contract. The approval by Landlord of Tenant’s general contractor shall not impose upon Landlord
any responsibility or liability whatsoever to Tenant as a result of, or arising out of, the
defaults or other acts or omissions of the general contractor. A copy of all required bonds and
certificates of insurance required by this Lease shall be furnished to Landlord prior to
commencement of construction and installation of Tenant’s Work. In addition, Landlord may monitor
the progress of Tenant’s Work, including, without limitation, attend any weekly or other periodic
job meetings. Landlord shall provide Tenant with reasonable prior notice before it enters the
Premises to review Tenant’s Work, except in the event of an emergency, when no such notice shall be
required. Tenant shall pay to Landlord a construction review fee in the amount of two percent (2%)
of the total cost and expenses associated with Tenant’s Work, one-half payable (based on the
estimated costs and expenses) upon commencement of Tenant’s Work and the balance (based on the
actual cost and expenses of Tenant’s Work) within thirty (30) days after substantial completion of
Tenant’s Work. Any review and monitoring of Tenant’s Work by Landlord shall not impose upon
Landlord any responsibility or liability whatsoever to Tenant as a result of, or arising out of,
Tenant’s Work. Within forty-five (45) days after completion of any Tenant’s Work, Tenant shall
provide to Landlord “as-built” plans of the Tenant’s Work along with final lien waivers from
Tenant’s contractors. Tenant shall provide Landlord with copies of the certificate of occupancy
for any Tenant’s Work that requires a certificate of occupancy reasonably promptly after completion
of such Tenant’s Work. Nothing herein shall be construed as permitting Tenant to occupy all or any
portion of the Premises for which Tenant has not obtained a certificate of occupancy or otherwise
failed to comply with applicable legal requirements.




          (c) Provided that Tenant substantially completes Tenant’s Work on or before July 1, 2001,
Landlord shall reimburse Tenant from Landlord’s Contribution for the costs incurred by Tenant with
respect to the performance of Tenant’s Work (the “Costs of Tenant’s Work”) up to $50,000.00. To
the extent that the Cost of Tenant’s Work exceeds $50,000.00, Tenant shall be entirely responsible
for such excess. Such portion of Landlord’s Contribution shall be payable by Landlord to Tenant
within thirty (30) days after written request from Tenant, which shall be accompanied by (i)
invoices paid by Tenant, (ii) final lien waivers and (iii) a certificate signed by Tenant’s
architect or engineer and an officer of Tenant certifying that Tenant’s Work has been completed
substantially in accordance with Tenant’s Plans. During the period commencing on January 1, 2003
and ending on July 1, 2003, the remaining portion of Landlord’s Contribution shall be made
available by Landlord as reimbursement for any Alterations (as defined in Section 5.2) performed by
Tenant or to be performed by Tenant in the Premises prior to July 1, 2003 (other than Tenant’s Work
and/or the Expansion Premises Work), provided that no Default of Tenant then exists and Tenant has
complied with the requirements of this Article 4 and the other terms and conditions of this Lease
with respect to such Alterations.




     4.2 Condition. The Premises are being leased in their present condition, AS IS,
WITHOUT REPRESENTATION OR WARRANTY by Landlord. Landlord shall have no obligation to perform any
alterations or to make any improvements to the Premises to prepare



9









 




them for Tenant’s occupancy. Tenant acknowledges that Tenant has inspected the Premises and
Common Facilities and has found the same satisfactory.




ARTICLE 5

USE OF PREMISES




     5.1 Permitted Use.



          (a) Tenant agrees that the Premises shall be used and occupied by Tenant only for Permitted
Uses and for no other use without Landlord’s express written consent.




          (b) Tenant agrees to conform to the following provisions during the Term of this Lease:





          (i) Tenant shall cause all freight to be delivered to or removed from the Building and
the Premises in accordance with the Rules and Regulations established by Landlord therefor;




          (ii) Tenant will not place on the exterior of the Premises (including both interior and
exterior surfaces of doors and interior surfaces of windows) or on any part of the Building
outside the Premises, any sign, symbol, advertisement or the like visible to public view
outside of the Premises. Landlord will not withhold consent for signs or lettering on the
entry doors to the Premises provided such signs conform to sign standards for the building
adopted by Landlord in its sole discretion and Tenant has submitted to Landlord a plan or
sketch in reasonable detail (showing, without limitation, size, color, location, materials
and method of affixation) of the sign to be placed on such entry doors. Landlord agrees,
however, to maintain a tenant directory in the lobby of the Building (and, in the case of
multi-tenant floors, in that floor’s elevator lobby) in which will be placed Tenant’s name
and the location of the Premises in the Building;




          (iii) Tenant shall not perform any act or carry on any practice which may injure the
Premises, or any other part of the Building, or cause any offensive odors or loud noise or
constitute a nuisance or a menace to any other tenant or tenants or other persons in the
Building;




          (iv) Tenant shall, in its use of the Premises, comply with the requirements of all
applicable governmental laws, rules and regulations, including, without limitation, the
Americans With Disabilities Act of 1990 and the regulations of the Massachusetts
Architectural Access Board; and




          (v) Tenant shall not abandon the Premises.



     5.2 Installations and Alterations by Tenant.



          (a) Tenant shall make no alterations, additions (including, for the purposes hereof,
wall-to-wall carpeting), or improvements (collectively, “Alterations”) in or to the Premises
(including any Alterations, other than Landlord’s Work, necessary for Tenant’s initial occupancy of
the Premises) without Landlord’s prior written consent, which consent shall not be






10









 







unreasonably withheld or delayed with respect to non-structural Alterations that do not affect
or involve the Building’s electrical, plumbing or mechanical systems or any other Building systems.
Any Alterations shall be in accordance with the Rules and Regulations in effect with respect
thereto and with plans and specifications meeting the requirements set forth in the Rules and
Regulations and approved in advance by Landlord. All work shall be (i) be performed in a good and
workmanlike manner and in compliance with all applicable laws, ordinances and regulations; (ii) be
made at Tenant’s sole cost and expense subject to reimbursement from Landlord’s Contribution in
accordance with Section 4.1(c), if any then remaining; (iii) become part of the Premises and the
property of Landlord; and (iv) be coordinated with any work being performed by Landlord in such a
manner as not to damage the Building or interfere with the construction or operation of the
Building. At Landlord’s request, Tenant shall, before its work is started, secure assurances
satisfactory to Landlord in its reasonable discretion protecting Landlord against claims arising
out of the furnishing of labor and materials for the Alterations.




     If any Alterations shall involve the removal of fixtures, equipment or other property in the
Premises which are not Tenant’s Removable Property, such fixtures, equipment or property shall be
promptly replaced by Tenant at its expense with new fixtures, equipment or property of like utility
and of at least equal quality.



          (b) All articles of personal property and all business fixtures, machinery and equipment and
furniture owned or installed by Tenant solely at its expense in the Premises (“Tenant’s Removable
Property”) shall remain the property of Tenant and may be removed by Tenant at any time prior to
the expiration or earlier termination of the Term, provided that Tenant, at its expense, shall
repair any damage to the Building caused by such removal.




          (c) Notice is hereby given that Landlord shall not be liable for any labor or materials
furnished or to be furnished to Tenant upon credit, and that no mechanic’s or other lien for any
such labor or materials shall attach to or affect the reversion or other estate or interest of
Landlord in and to the Premises, the Building or the Property. To the maximum extent permitted by
law, before such time as any contractor commences to perform work on behalf of Tenant, such
contractor (and any subcontractors) shall furnish a written statement acknowledging the provisions
set forth in the prior clause. Tenant agrees to pay promptly when due the entire cost of any work
done on behalf of Tenant, its agents, employees or independent contractors, and not to cause or
permit any liens for labor or materials performed or furnished in connection therewith to attach to
all or any part of the Property and immediately to discharge any such liens which may so attach.
If, notwithstanding the foregoing, any lien is filed against all or any part of the Property for
work claimed to have been done for, or materials claimed to have been furnished to, Tenant or its
agents, employees or independent contractors, Tenant, at its sole cost and expense, shall cause
such lien to be dissolved promptly after receipt of notice that such lien has been filed, by the
payment thereof or by the filing of a bond sufficient to accomplish the foregoing. If Tenant shall
fail to discharge any such lien, Landlord may, at its option, discharge such lien and treat the
cost thereof (including attorneys’ fees incurred in connection therewith) as Additional Rent
payable upon demand, it being expressly agreed that such discharge by Landlord shall not be deemed
to waive or release the default of Tenant in not discharging such lien. Tenant shall indemnify and
hold Landlord harmless from and against any and all expenses, liens, claims, liabilities and
damages based on or arising, directly or indirectly, by reason of the making of any




11









 




alterations, additions or improvements by or on behalf of Tenant to the Premises under this
Section, which obligation shall survive the expiration or termination of this Lease.




          (d) In the course of any work being performed by Tenant (including, without limitation, the
“field installation” of any Tenant’s Removable Property), Tenant agrees to use labor compatible
with that being employed by Landlord for work in the Building or on the Property or other buildings
owned by Landlord or its affiliates (which term, for purposes hereof, shall include, without
limitation, entities which control or are under common control with or are controlled by Landlord
or, if Landlord is a partnership or limited liability company, by any partner or member of
Landlord) and not to employ or permit the use of any labor or otherwise take any action which might
result in a labor dispute involving personnel providing services in the Building or on the Property
pursuant to arrangements made by Landlord.




     5.3 Extra Hazardous Use. Tenant covenants and agrees that Tenant will not do or
permit anything to be done in or upon the Premises, or bring in anything or keep anything therein,
which shall increase the rate of property or liability insurance on the Premises or the Property
above the standard rate applicable to Premises being occupied for the Permitted Uses. If the
premium or rates payable with respect to any policy or policies of insurance purchased by Landlord
or Agent with respect to the Property increases as a result of any act or activity on or use of the
Premises during the Term or payment by the insurer of any claim arising from any act or neglect of
Tenant, its employees, agents, contractors or invitees, Tenant shall pay such increase, from time
to time, within fifteen (15) days after demand therefor by Landlord, as Additional Rent.



     5.4 Hazardous Materials.



          (a) Tenant may use chemicals such as adhesives, lubricants, ink, solvents and cleaning fluids
of the kind and in amounts and in the manner customarily found and used in business offices in
order to conduct its business at the Premises and to maintain and operate the business machines
located in the Premises. Tenant shall not use, store, handle, treat, transport, release or dispose
of any other Hazardous Materials on or about the Premises or the Property without Landlord’s prior
written consent, which Landlord may withhold or condition in Landlord’s sole discretion.




          (b) Any handling, treatment, transportation, storage, disposal or use of Hazardous Materials
by Tenant in or about the Premises or the Property and Tenant’s use of the Premises shall comply
with ail applicable Environmental Laws.




          (c) Tenant shall indemnify, defend upon demand with counsel reasonably acceptable to Landlord,
and hold Landlord harmless from and against, any liabilities, losses claims, damages, interest,
penalties, fines, attorneys’ fees, experts’ fees, court costs, remediation costs, and other
expenses which result from the use, storage, handling, treatment, transportation, release, threat
of release or disposal of Hazardous Materials in or about the Premises or the Property by Tenant or
Tenant’s agents, employees, contractors or invitees.




          (d) Tenant shall give written notice to Landlord as soon as reasonably practicable of (i) any
communication received by Tenant from any governmental authority




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concerning Hazardous Materials which relates to the Premises or the Property, and (ii) any
Environmental Condition of which Tenant is aware.




ARTICLE 6

ASSIGNMENT AND SUBLETTING




     6.1 Prohibition.



          (a) Tenant covenants and agrees that neither this Lease nor the term and estate hereby
granted, nor any interest herein or therein, will be assigned, mortgaged, pledged, encumbered or
otherwise transferred, whether voluntarily, involuntarily, by operation of law or otherwise, and
that neither the Premises nor any part thereof will be encumbered in any manner by reason of any
act or omission on the part of Tenant, or used or occupied or permitted to be used or occupied, by
anyone other than Tenant, or for any use or purpose other than a Permitted Use, or be sublet (which
term, without limitation, shall include granting of concessions, licenses and the like) in whole or
in part, or be offered or advertised for assignment or subletting by Tenant or any person acting on
behalf of Tenant, without, in each case, the prior written consent of Landlord. Without limiting
the foregoing, any agreement pursuant to which: (x) Tenant is relieved from the obligation to pay,
or a third party agrees to pay on Tenant’s behalf, all or any portion of the Basic Rent or
Additional Rent under this Lease; and/or (y) a third party undertakes or is granted by or on behalf
of Tenant the right to assign or attempt to assign this Lease or sublet or attempt to sublet all or
any portion of the Premises, shall for all purposes hereof be deemed to be an assignment of this
Lease and subject to the provisions of this Article 6. The provisions of this paragraph (a) shall
apply to a transfer (by one or more transfers) of a controlling portion of or interest in the stock
or partnership or membership interests or other evidences of equity interests of Tenant as if such
transfer were an assignment of this Lease; provided that if equity interests in Tenant at any time
are or become traded on a public stock exchange, the transfer of equity interests in Tenant on a
public stock exchange shall not be deemed an assignment within the meaning of this Article.




          (b) The provisions of paragraph (a) shall not apply to either (x) transactions with an entity
into or with which Tenant is merged or consolidated, or to which all or substantially all of
Tenant’s assets are transferred, or (y) transactions with any entity which controls or is
controlled by Tenant or is under common control with Tenant; provided that in any such event:





          (i) the successor to Tenant has a net worth, computed in accordance with generally
accepted accounting principles consistently applied, at least equal to the greater of (1)
the net worth of Tenant immediately prior to such merger, consolidation or transfer, or (2)
the net worth of Tenant herein named on the date of this Lease,




          (ii) proof satisfactory to Landlord of such net worth shall have been delivered to
Landlord at least ten (10) days prior to the effective date of any such transaction, and




          (iii) the assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord in its reasonable discretion, to be bound by all the



13









 







obligations of Tenant hereunder, including, without limitation, the covenant against
further assignment and subletting.



     6.2 Acceptance of Rent. If this Lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anyone other than Tenant, whether or not in violation of the terms
and conditions of the Lease, Landlord may, at any time and from time to time, collect rent and
other charges from the assignee, subtenant or occupant, and apply the net amount collected to the
rent and other charges herein reserved, but no such assignment, subletting, occupancy, collection
or modification of any provisions of this Lease shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as a tenant or a release of Tenant from the
further performance of covenants on the part of Tenant to be performed hereunder. Any consent by
Landlord to a particular assignment, subletting or occupancy or other act for which Landlord’s
consent is required under paragraph (a) of Section 6.1 shall not in any way diminish the
prohibition stated in paragraph (a) of Section 6.1 as to any further such assignment, subletting or
occupancy or other act or the continuing liability of the original named Tenant. No assignment or
subletting hereunder shall relieve Tenant from its obligations hereunder, and Tenant shall remain
fully and primarily liable therefor. Landlord may revoke any consent by Landlord to a particular
assignment, subletting or occupancy if the assignment or sublease does not provide that the
assignee, subtenant or other occupant agrees to be independently bound by and upon all of the
covenants, agreements, terms, provisions and conditions set forth in this Lease on the part of
Tenant to be kept and performed.



     6.3 Excess Payments. If Tenant assigns this Lease or sublets the Premises or any
portion thereof, Tenant shall pay to Landlord as Additional Rent sixty percent (60%) of the amount,
if any, by which (a) any and all compensation received by Tenant as a result of such assignment or
subletting, net of reasonable expenses actually incurred by Tenant in connection with such
assignment or subletting, exceeds (b) in the case of an assignment, the Basic Rent and Additional
Rent under this Lease, and in the case of a subletting, the portion of the Basic Rent and
Additional Rent allocable to the portion of the Premises subject to such subletting. Such payments
shall be made on the date the corresponding payments under this Lease are due. Notwithstanding the
foregoing, the provisions of this Section shall impose no obligation on Landlord to consent to an
assignment of this Lease or a subletting of all or a portion of the Premises.



     6.4 Landlord’s Recapture Right. Notwithstanding anything herein to the contrary, in
addition to withholding or granting consent with respect to any proposed assignment of this Lease
or proposed sublease of all or a portion of the Premises, Landlord shall have the right, to be
exercised in writing within thirty (30) days after written notice from Tenant seeking Landlord’s
consent to assign this Lease or sublease all or any portion of the Premises, to terminate this
Lease (in the event of a proposed assignment) or recapture that portion of the Premises to be
subleased (in the event of a proposed sublease). In the case of a proposed assignment, this Lease
shall terminate as of the date (the “Recapture Date”) which is the later of (a) sixty (60) days
after the date of Landlord’s election, and (b) the proposed effective date of such assignment or
sublease, as if such date were the last day of the Term of this Lease. If Landlord exercises the
rights under this Section in connection with a proposed sublease, this Lease shall be deemed
amended to eliminate the proposed sublease premises from the Premises



14









 




as of the Recapture Date, and thereafter all Basic Rent and Additional Rent shall be
appropriately prorated to reflect the reduction of the Premises as of the Recapture Date.




     6.5 Further Requirements. Tenant shall reimburse Landlord on demand, as Additional
Rent, for any out-of-pocket costs (including reasonable attorneys’ fees and expenses) incurred by
Landlord in connection with any actual or proposed assignment or sublease or other act described in
paragraph (a) of Section 6.1, whether or not consummated, including the costs of making
investigations as to the acceptability of the proposed assignee or subtenant. Any sublease to
which Landlord gives its consent shall not be valid or binding on Landlord unless and until Tenant
and the sublessee execute a consent agreement in form and substance satisfactory to Landlord in its
reasonable discretion and a fully executed counterpart of such sublease has been delivered to
Landlord. In the event that Landlord consents to any sublease under the provisions of this
Article, the sublease shall provide that: (i) the term of the sublease must end no later than one
day before the last day of the Term of this Lease; (ii) such sublease is subject and subordinate to
this Lease; (iii) Landlord may enforce the provisions of the sublease, including collection of
rents; and (iv) in the event of termination of this Lease or reentry or repossession of the
Premises by Landlord, Landlord may, at its sole discretion and option, take over all of the right,
title and interest of Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord’s option, attorn to Landlord, but nevertheless Landlord shall not (A) be liable for any
previous act or omission of Tenant under such sublease; (B) be subject to any defense or offset
previously accrued in favor of the subtenant against Tenant; or (C) be bound by any previous
modification of such sublease made without Landlord’s written consent or by any previous prepayment
of more than one month’s rent.



ARTICLE 7

RESPONSIBILITY FOR REPAIRS AND CONDITION

OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD




     7.1 Landlord Repairs.



          (a) Except as otherwise provided in this Lease, Landlord agrees to keep in good order,
condition and repair the roof, public areas, exterior walls (including exterior glass) and
structure of the Building (including all plumbing, mechanical and electrical systems installed by
Landlord, but specifically excluding any supplemental heating, ventilation or air conditioning
equipment or systems installed at Tenant’s request or as a result of Tenant’s requirements in
excess of building standard design criteria), all insofar as they affect the Premises, except that
Landlord shall in no event be responsible to Tenant for the repair of glass in the Premises, the
doors (or related glass and finish work) leading to the Premises, or any condition in the Premises
or the Building caused by any act or neglect of Tenant, its invitees or contractors. Landlord
shall also keep and maintain all Common Facilities in a good and clean order, condition and repair,
free of snow and ice and accumulation of dirt and rubbish, and shall keep and maintain all
landscaped areas on the Property in a neat and orderly condition. Landlord shall not be
responsible to make any improvements or repairs to the Building other than as expressly in this
Section 7.1 provided, unless expressly provided otherwise in this Lease.




          (b) Landlord shall never be liable for any failure to make repairs which Landlord has
undertaken to make under the provisions of this Section 7.1 or elsewhere in this






15









 







Lease, unless Tenant has given notice to Landlord of the need to make such repairs, and
Landlord has failed to commence to make such repairs within a reasonable time after receipt of such
notice, or fails to proceed with reasonable diligence to complete such repairs.




     7.2 Tenant Repairs.



          (a) Tenant will keep the Premises and every part thereof neat and clean, and will maintain the
same in good order, condition and repair, excepting only those repairs for which Landlord is
responsible under the terms of this Lease, reasonable wear and tear of the Premises, and damage by
fire or other casualty or as a consequence of the exercise of the power of eminent domain; and
Tenant shall surrender the Premises, at the end of the Term, in such condition. Without
limitation, Tenant shall comply with all laws, codes and ordinances from time to time in effect and
all directions, rules and regulations of governmental agencies having jurisdiction, and the
standards recommended by the local Board of Fire Underwriters applicable to Tenant’s use and
occupancy of the Premises, and shall, at Tenant’s expense, obtain all permits, licenses and the
like required thereby. Subject to Section 10.4 regarding waiver of subrogation, Tenant shall be
responsible for the cost of repairs which may be made necessary by reason of damage to the Building
caused by any act or neglect of Tenant, or its contractors or invitees (including any damage by
fire or other casualty arising therefrom).




          (b) If repairs are required to be made by Tenant pursuant to the terms hereof, and Tenant
fails to make the repairs, upon not less than ten (10) days’ prior written notice (except that no
notice shall be required in the event of an emergency), Landlord may make or cause such repairs to
be made (but shall not be required to do so), and the provisions of Section 14.4 shall be
applicable to the costs thereof. Landlord shall not be responsible to Tenant for any loss or
damage whatsoever that may accrue to Tenant’s stock or business by reason of Landlord’s making such
repairs.




     7.3 Floor Load — Heavy Machinery.



          (a) Tenant shall not place a load upon any floor in the Premises exceeding the floor load per
square foot of area which such floor was designed to carry and which is allowed by law. Landlord
reserves the right to prescribe the weight and position of all business machines and mechanical
equipment, including safes, which shall be placed so as to distribute the weight. Business
machines and mechanical equipment shall be placed and maintained by Tenant at Tenant’s expense in
settings sufficient, in Landlord’s judgment, to absorb and prevent vibration, noise and annoyance.
Tenant shall not move any safe, heavy machinery, heavy equipment, freight, bulky matter or fixtures
into or out of the Building without Landlord’s prior consent, which consent may include a
requirement to provide insurance, naming Landlord as an insured, in such amounts as Landlord may
deem reasonable.




          (b) If any such safe, machinery, equipment, freight, bulky matter or fixtures requires special
handling, Tenant agrees to employ only persons holding a Master Rigger’s License to do such work,
and that all work in connection therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant, and Tenant will exonerate, indemnify
and save Landlord harmless against and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving.







16









 








     7.4 Utility Services.



          (a) Landlord shall, on Business Days from 8:00 a.m. to 6:00 p.m. and Saturdays from 8:00 a.m.
to 1:00 p.m., furnish heating and cooling as normal seasonal changes may require to provide
reasonably comfortable space temperature and ventilation for occupants of the Premises under normal
business operation and an electrical load not exceeding watts per square foot of Premises Rentable
Area. If Tenant shall require air conditioning, heating or ventilation outside the hours and days
above specified, Landlord may furnish such service and Tenant shall pay therefor such charges as
may from time to time be in effect for the Building upon demand as Additional Rent. In the event
Tenant introduces into the Premises personnel or equipment which overloads the capacity of the
Building system or in any other way interferes with the system’s ability to perform adequately its
proper functions, supplementary systems may, if and as needed, at Landlord’s option, be provided by
Landlord, and the cost of such supplementary systems shall be payable by Tenant to Landlord upon
demand as Additional Rent.




          (b) Tenant shall be responsible for the payment of all utilities used and consumed in the
Premises. Tenant shall pay for all separately metered utilities used and consumed in the Premises
directly to the provider thereof. Landlord shall charge Tenant the Cost of Tenant’s Electricity
for Lights and Plugs set forth in Section 1.1 above, plus Tenant’s Proportionate Share of the
electricity and natural gas used in connection with the HVAC system for the Building. From time to
time, but not more than once per calendar month, Landlord shall invoice Tenant for electricity used
and consumed in the Premises as measured by the applicable method described above. Tenant shall
pay Landlord such amounts as Additional Rent hereunder within thirty (30) days after receipt of
each such invoice. The obligation to pay for electricity used and consumed in the Premises during
the last month of the Term hereof shall survive expiration of the Term.




          Landlord shall purchase and install, at Tenant’s expense, all lamps, tubes, bulbs, starters and
ballasts. In order to assure that the foregoing requirements are not exceeded and to avert
possible adverse effect on the Building’s electric system, Tenant shall not, without Landlord’s
prior consent, connect any fixtures, appliances or equipment to the Building’s electric
distribution system other than personal computers, facsimile transceivers, typewriters, pencil
sharpeners, adding machines, photocopiers, word and data processors, clocks, radios, hand-held or
desk top calculators, dictaphones, desktop computers and other similar small electrical equipment
normally found in business offices and not drawing more than 15 amps at 120/208 volts.




          (c) From time to time during the Term of this Lease, Landlord shall have the right to have an
electrical consultant selected by Landlord make a survey of Tenant’s electric usage, the result of
which survey shall be conclusively binding upon Landlord and Tenant. In the event that such survey
shows that Tenant has exceeded the requirements set forth in paragraph (b), in addition to any
other rights Landlord may have hereunder, Tenant shall, upon demand, reimburse Landlord for the
cost of such survey and the cost, as determined by such consultant, of electricity usage in excess
of such requirements as Additional Rent.




17









 





     7.5 Other Services.



     Landlord shall also provide:



          (a) Passenger elevator service from the existing passenger elevator system in common with
Landlord and others entitled thereto.




          (b) Warm water for lavatory purposes and cold water (at temperatures supplied by the city in
which the Property is located) for drinking, lavatory and toilet purposes. If Tenant uses water
for any purpose other than for ordinary lavatory and drinking purposes, Landlord may assess a
reasonable charge for the additional water so used, or install a water meter and thereby measure
Tenant’s water consumption for all purposes. In the latter event, Tenant shall pay the cost of the
meter and the cost of installation thereof as Additional Rent upon demand and shall keep such meter
and installation equipment in good working order and repair. Tenant agrees to pay for water
consumed, as shown on such meter, together with the sewer charge based on such meter charges, as
and when bills are rendered, and in the event Tenant fails timely to make any such payment,
Landlord may pay such charges and collect the same from Tenant upon demand as Additional Rent.




          (c) Cleaning and janitorial services to the Premises, provided the same are kept in order by
Tenant, substantially in accordance with the cleaning standards from time to time in effect for the
Building.




          (d) Access to the Premises at all times, subject to security precautions from time to time in
effect, if any, and subject always to restrictions based on emergency conditions.



If and to the extent that Tenant desires to provide security for the Premises or for such persons
or their property, Tenant shall be responsible for so doing, after having first consulted with
Landlord and after obtaining Landlord’s consent, which shall not be unreasonably withheld.
Landlord expressly disclaims any and all responsibility and/or liability for the physical safety of
Tenant’s property, and for that of Tenant’s employees, agents, contractors and invitees, and,
without in any way limiting the operation of Article 10 hereof, Tenant, for itself and its agents,
contractors, invitees and employees, hereby expressly waives any claim, action, cause of action or
other right which may accrue or arise as a result of any damage or injury to the person or property
of Tenant or any such agent, invitee, contractor or employee. Tenant agrees that, as between
Landlord and Tenant, it is Tenant’s responsibility to advise its employees, agents, contractors and
invitees as to necessary and appropriate safety precautions.




     7.6 Interruption of Service.



          (a) Landlord reserves the right to curtail, suspend, interrupt and/or stop the supply of
water, sewage, electrical current, cleaning, and other services, and to curtail, suspend, interrupt
and/or stop use of entrances and/or lobbies serving access to the Building, or other portions of
the Property, without thereby incurring any liability to Tenant, when necessary by reason of
accident or emergency, or for repairs, alterations, replacements or improvements in the judgment of
Landlord reasonably exercised desirable or necessary, or when prevented from supplying such
services or use due to any act or neglect of Tenant or Tenant’s agents employees, contractors or
invitees or any person claiming by, through or under Tenant or by Force Majeure,






18









 







including, but not limited to, strikes, lockouts, difficulty in obtaining materials,
accidents, laws or orders, or inability, by exercise of reasonable diligence, to obtain
electricity, water, gas, steam, coal, oil or other suitable fuel or power. Except as set forth in
paragraph (b) below, no diminution or abatement of rent or other compensation, nor any direct,
indirect or consequential damages shall or will be claimed by Tenant as a result of, nor shall this
Lease or any of the obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment, suspension or stoppage in the furnishing of the foregoing services or
use, irrespective of the cause thereof. Except as set forth in paragraph (b) below, failure or
omission on the part of Landlord to furnish any of the foregoing services or use as provided in
this paragraph shall not be construed as an eviction of Tenant, actual or constructive, nor entitle
Tenant to an abatement of rent, nor to render the Landlord liable in damages, nor release Tenant
from prompt fulfillment of any of its covenants under this Lease.




          (b) Notwithstanding anything contained in this Lease to the contrary, if (i) an interruption
or curtailment, suspension or stoppage of an Essential Service (as said term is hereinafter
defined) shall occur, except any of the same due to any act or neglect of Tenant or Tenant’s agents
employees, contractors or invitees or any person claiming by, through or under Tenant (any such
interruption of an Essential Service being hereinafter referred to as a “Service Interruption”),
and (ii) such Service Interruption occurs or continues as a result of the negligence or a wrongful
conduct of the Landlord or Landlord’s agents, servants, employees or contractors, and (iii) such
Service Interruption continues for more than thirty (30) Business Days after Landlord shall have
received notice thereof from Tenant, and (iv) as a result of such Service Interruption, the conduct
of Tenant’s normal operations in the Premises are materially and adversely affected, then there
shall be an abatement of one day’s Basic Rent for each day during which such Service Interruption
continues after such thirty (30) Business Day period; provided, however, that if any part of the
Premises is reasonably useable for Tenant’s normal business operations or if Tenant conducts all or
any part of its operations in any portion of the Premises notwithstanding such Service
Interruption, then the amount of each daily abatement of Basic Rent and Additional Rent shall only
be proportionate to the nature and extent of the interruption of Tenant’s normal operations or
ability to use the Premises. The rights granted to Tenant under this paragraph (b) shall be
Tenant’s sole and exclusive remedy resulting from a failure of Landlord to provide services, and
Landlord shall not otherwise be liable for any loss or damage suffered or sustained by Tenant
resulting from any failure or cessation of services. For purposes hereof, the term “Essential
Services” shall mean the following services: access to the Premises, water and sewer/septic
service and electricity, but only to the extent that Landlord has an obligation to provide same to
Tenant under this Lease. Any abatement of Basic Rent under this paragraph shall apply only with
respect to Basic Rent allocable to the period after each of the conditions set forth in subsections
(i) through (iv) hereof shall have been satisfied and only during such times as each of such
conditions shall exist.




ARTICLE 8

REAL ESTATE TAXES




     8.1 Payments on Account of Real Estate Taxes.



          (a) “Tax Year” shall mean a twelve-month period commencing on July 1 and falling wholly or
partially within the Term, and “Taxes” shall mean (i) all taxes, assessments






19









 







(special or otherwise), levies, fees and all other government levies, exactions and charges of
every kind and nature, general and special, ordinary and extraordinary, foreseen and unforeseen,
which are, at any time prior to or during the Term, imposed or levied upon or assessed against the
Property or any portion thereof, or against any Basic Rent, Additional Rent or other rent of any
kind or nature payable to Landlord by anyone on account of the ownership, leasing or operation of
the Property, or which arise on account of or in respect of the ownership, development, leasing,
operation or use of the Property or any portion thereof; (ii) all gross receipts taxes or similar
taxes imposed or levied upon, assessed against or measured by any Base Rent, Additional Rent or
other rent of any kind or nature or other sum payable to Landlord by anyone on account of the
ownership, development, leasing, operation, or use of the Property or any portion thereof; (iii)
all value added, use and similar taxes at any time levied, assessed or payable on account of the
ownership, development, leasing, operation, or use of the Property or any portion thereof; and (iv)
reasonable expenses of any proceeding for abatement of any of the foregoing items included in
Taxes, provided Landlord prevails in such abatement proceeding; but the amount of special taxes or
special assessments included in Taxes shall be limited to the amount of the installment (plus any
interest, other than penalty interest, payable thereon) of such special tax or special assessment
required to be paid during the year in respect of which such Taxes are being determined. There
shall be excluded from Taxes all income, estate, succession, inheritance and transfer taxes of
Landlord; provided, however, that if at any time during the Term the present system of ad valorem
taxation of real property shall be changed so that a capital levy, franchise, income, profits,
sales, rental, use and occupancy, or other tax or charge shall in whole or in part be substituted
for, or added to, such ad valorem tax and levied against, or be payable by, Landlord with respect
to the Property or any portion thereof, such tax or charge shall be included in the term “Taxes”
for the purposes of this Article.




          (b) In the event that Taxes during any Tax Year shall exceed Base Taxes, Tenant shall pay to
Landlord, as Additional Rent, an amount equal to (i) the excess of Taxes for such Tax Year over
Base Taxes, multiplied by (ii) Tenant’s Proportionate Share, such amount to be apportioned for any
portion of a Tax Year in which the Commencement Date falls or the Term expires.




          (c) Estimated payments by Tenant on account of Taxes shall be made on the First day of each
and every calendar month during the Term of this Lease, in the fashion herein provided for the
payment of Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to provide
Landlord by the time real estate tax payments are due with a sum equal to Tenant’s required
payment, as reasonably estimated by Landlord from time to time, on account of Taxes for the then
current Tax Year. Promptly after receipt by Landlord of bills for such Taxes, Landlord shall
advise Tenant of the amount thereof and the computation of Tenant’s payment on account thereof. If
estimated payments theretofore made by Tenant for the Tax Year covered by such bills exceed the
required payment on account thereof for such Tax Year, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant on account of Taxes (or promptly refund such
overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord);
but if the required payments on account thereof for such Tax Year are greater than estimated
payments theretofore made on account thereof for such Tax Year, Tenant shall pay the difference to
Landlord within thirty (30) days after being so advised by Landlord, and the obligation to make
such payment for any period within the Term shall survive expiration of the Term.







20









 








     8.2 Abatement. If Landlord shall receive any tax refund or reimbursement of Taxes or
sum in lieu thereof with respect to any Tax Year all or any portion of which falls within the Term,
then out of any balance remaining thereof after deducting Landlord’s expenses in obtaining such
refund, Landlord shall pay to Tenant, provided there does not then exist a Default of Tenant, an
amount equal to such refund or reimbursement or sum in lieu thereof (exclusive of any interest, and
apportioned if such refund is for a Tax Year a portion of which falls outside the Term,) multiplied
by Tenant’s Proportionate Share; provided, that in no event shall Tenant be entitled to receive
more than the payments made by Tenant on account of Taxes for such Tax Year pursuant to paragraph
(b) of Section 8.1 or to receive any payments or abatement of Basic Rent if Taxes for any year are
less than Base Taxes or if Base Taxes are abated. If Landlord shall receive a tax refund or
reimbursement with respect to the Base Taxes, Landlord shall advise Tenant of the amount thereof
and Tenant shall pay to Landlord, within thirty (30) days after being so advised by Landlord, the
difference between the reduced Base Taxes and the amounts previously paid by Tenant for each
applicable prior Tax Year in the Term, and the obligation to make such payment for any period
within the Term shall survive expiration of the Term.



ARTICLE 9

OPERATING AND UTILITY EXPENSES




     9.1 Definitions. “Operating Year” shall mean each calendar year all or any part of
which falls within the Term, and “Operating Expenses” shall mean the aggregate costs and expenses
incurred by Landlord with respect to the operation, administration, cleaning, repair, maintenance
and management of the Property, all as set forth in Exhibit D attached hereto, provided that if
during any portion of the Operating Year for which Operating Expenses are being computed, less than
all of the Building was occupied by tenants or Landlord was not supplying all tenants with the
services being supplied under this Lease, actual Operating Expenses incurred shall be extrapolated
reasonably by Landlord on an item by item basis to the estimated Operating Expenses that would have
been incurred if the Building were fully occupied for such Operating Year and such services were
being supplied to all tenants, and such extrapolated amount shall, for the purposes hereof, be
deemed to be the Operating Expenses for such Operating Year.



     9.2 Tenant’s Payment of Operating Expenses.



          (a) In the event that for any Operating Year Operating Expenses shall exceed Base Operating
Expenses, Tenant shall pay to Landlord, as Additional Rent, an amount equal to (i) such excess
Operating Expenses multiplied by (ii) Tenant’s Proportionate Share, such amount to be apportioned
for any portion of an Operating Year in which the Commencement Date falls or the Term of this Lease
ends.




          (b) Estimated payments by Tenant on account of Operating Expenses shall be made on the first
day of each and every calendar month during the Term of this Lease, in the fashion herein provided
for the payment of Basic Rent. The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal to Tenant’s required payment, as
reasonably estimated by Landlord from time to time during each Operating Year, on account of
Operating Expenses for such Operating Year. After the end of each Operating Year, Landlord shall
submit to Tenant a reasonably detailed accounting of




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Operating Expenses for such Operating Year, and Landlord shall certify to the accuracy
thereof. If estimated payments theretofore made for such Operating Year by Tenant exceed Tenant’s
required payment on account thereof for such Operating Year according to such statement, Landlord
shall credit the amount of overpayment against subsequent obligations of Tenant with respect to
Operating Expenses (or promptly refund such overpayment if the Term of this Lease has ended and
Tenant has no further obligation to Landlord); but if the required payments on account thereof for
such Operating Year are greater than the estimated payments (if any) theretofore made on account
thereof for such Operating Year, Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord, and the obligation to make such payment for any period within
the Term shall survive expiration of the Term.




ARTICLE 10

INDEMNITY AND PUBLIC LIABILITY INSURANCE




     10.1 Tenant’s Indemnity. Except to the extent arising from the gross negligence or
willful misconduct of Landlord or its agents or employees, Tenant agrees to indemnify and save
harmless Landlord and Landlord’s partners, members, shareholders, officers, directors, managers,
employees, agents and contractors from and against all claims, losses, cost, damages, liability or
expenses of whatever nature arising: (i) from any accident, injury or damage whatsoever to any
person, or to the property of any person, occurring in or about the Premises; (ii) from any
accident, injury or damage whatsoever to any person, or to property of any person, occurring
outside of the Premises but on or about the Property, where such accident, damage or injury results
or is claimed to have resulted from any act or omission on the part of Tenant or Tenant’s agents,
employees, contractors, invitees or sublessees; or (iii) the use or occupancy of the Premises or of
any business conducted therein, and, in any case, occurring after the Commencement Date until the
expiration of the Term of this Lease and thereafter so long as Tenant is in occupancy of any part
of the Premises. This indemnity and hold harmless agreement shall include indemnity against all
losses, costs, damages, expenses and liabilities incurred in or in connection with any such claim
or any proceeding brought thereon, and the defense thereof, including, without limitation,
reasonable attorneys’ fees and costs at both the trial and appellate levels.



     10.2 Tenant Insurance. Tenant agrees to maintain in full force from the date upon
which Tenant first enters the Premises for any reason, throughout the Term of this Lease, and
thereafter so long as Tenant is in occupancy of any part of the Premises, a policy of commercial
general liability and property damage insurance (including broad form contractual liability,
independent contractor’s hazard and completed operations coverage) under which Tenant is named as
an insured and Landlord, Agent (and such other persons as are in privity of estate with Landlord as
may be set out in a notice from time to time) are named as additional insureds, and under which the
insurer agrees to indemnify and hold Landlord, Agent and those in privity of estate with Landlord,
harmless from and against all cost, expense and/or liability arising out of or based upon any and
all claims, accidents, injuries and damages set forth in Section 10.1. Tenant may satisfy such
insurance requirements by including the Premises in a so-called “blanket” and/or “umbrella”
insurance policy, provided that the amount of coverage allocated to the Premises shall fulfill the
requirements set forth herein. Each policy required hereunder shall be non-cancelable and
non-amendable with respect to Landlord, Agent and Landlord’s said designees without thirty (30)
days’ prior notice, shall be written on an “occurrence” basis, and



22









 




shall be in at least the amounts of the Initial General Liability Insurance specified in
Section 1.1 or such greater amounts as Landlord in its reasonable discretion shall from time to
time request, and a duplicate original or certificates thereof satisfactory to Landlord, together
with, if requested by Landlord, a photocopy of the entire policy, shall be delivered to Landlord.




     10.3 Tenant’s Risk. Tenant agrees to use and occupy the Premises and to use such
other portions of the Property as Tenant is herein given the right to use at Tenant’s own risk.
Landlord shall not be liable to Tenant, its employees, agents, invitees or contractors for any
damage, injury, loss, compensation, or claim (including, but not limited to, claims for the
interruption of or loss to Tenant’s business) based on, arising out of or resulting from any cause
whatsoever, including, but not limited to, repairs to any portion of the Premises or the Property,
any fire, robbery, theft, mysterious disappearance and/or any other crime or casualty, the actions
of any other tenants of the Building or of any other person or persons, or any leakage in any part
or portion of the Premises or the Building, or from water, rain or snow that may leak into, or flow
from any part of the Premises or the Building, or from drains, pipes or plumbing fixtures in the
Building, unless due to the gross negligence or willful misconduct of Landlord or Landlord’s
agents, contractors or employees. Any goods, property or personal effects stored or placed in or
about the Premises shall be at the sole risk of Tenant, and neither Landlord nor Landlord’s
insurers shall in any manner be held responsible therefor. Notwithstanding the foregoing, Landlord
shall not be released from liability for any injury, loss, damages or liability to the extent
arising from any gross negligence or willful misconduct of Landlord, its servants, employees or
agents acting within the scope of their authority on or about the Premises; provided, however, that
in no event shall Landlord, its servants, employees or agents have any liability to Tenant based on
any loss with respect to or interruption in the operation of Tenant’s business. Tenant shall carry
“all-risk” property insurance on a “replacement cost” basis, insuring Tenant’s Removable Property
and any Alterations made by Tenant pursuant to Section 5.2, to the extent that the same have not
become the property of Landlord.



     10.4 Waiver of Subrogation. The parties hereto shall each procure an appropriate
clause in, or endorsement on, any property insurance policy on the Premises or any personal
property, fixtures or equipment located thereon or therein, pursuant to which the insurer waives
subrogation or consents to a waiver of right of recovery in favor of either party, its respective
agents or employees. Having obtained such clauses and/or endorsements, each party hereby agrees
that it will not make any claim against or seek to recover from the other or its agents or
employees for any loss or damage to its property or the property of others resulting from fire or
other perils covered by such property insurance.



ARTICLE 11

FIRE, EMINENT DOMAIN, ETC.




     11.1 Landlord’s Right of Termination. If the Premises or the Building are
substantially damaged by fire or casualty (the term “substantially damaged” meaning damage of such
a character that the same cannot, in the ordinary course, reasonably be expected to be repaired
within sixty (60) days from the time that repair work would commence), or if any part of the
Building is taken by any exercise of the right of eminent domain, then Landlord shall have the
right to terminate this Lease (even if Landlord’s entire interest in the Premises may have been
divested) by giving notice of Landlord’s election so to do within ninety (90) days after the



23









 




occurrence of such casualty or the effective date of such taking, whereupon this Lease shall
terminate thirty (30) days after the date of such notice with the same force and effect as if such
date were the date originally established as the expiration date hereof.




     11.2 Restoration; Tenant’s Right of Termination. If the Premises or the Building are
damaged by fire or other casualty, and this Lease is not terminated pursuant to Section 12.1,
Landlord shall thereafter use reasonable efforts to restore the Building and the Premises
(excluding any Alterations made by Tenant pursuant to Section 5.2) to proper condition for Tenant’s
use and occupation, provided that Landlord’s obligation shall be limited to the amount of insurance
proceeds available therefor. If, for any reason, such restoration shall not be substantially
completed within six months after the expiration of the ninety-day period referred to in Section
11.1 (which six-month period may be extended for such periods of time as Landlord is prevented from
proceeding with or completing such restoration due to Force Majeure, but in no event for more than
an additional three months), Tenant shall have the right to terminate this Lease by giving notice
to Landlord thereof within thirty (30) days after the expiration of such period (as so extended)
provided that such restoration is not completed within such period. This Lease shall cease and
come to an end without further liability or obligation on the part of either party thirty (30) days
after such giving of notice by Tenant unless, within such thirty-day period, Landlord substantially
completes such restoration. Such right of termination shall be Tenant’s sole and exclusive remedy
at law or in equity for Landlord’s failure so to complete such restoration, and time shall be of
the essence with respect thereto.



     11.3 Landlord’s Insurance. Landlord agrees to maintain in full force and effect,
during the Term of this Lease, property damage insurance with such deductibles and in such amounts
as may from time to time be carried by reasonably prudent owners of similar buildings in the area
in which the Property is located, provided that in no event shall Landlord be required to carry
other than fire and extended coverage insurance or insurance in amounts greater than 80% of the
actual insurable cash value of the Building (excluding footings and foundations). Landlord may
satisfy such insurance requirements by including the Property in a so-called “blanket” insurance
policy, provided that the amount of coverage allocated to the Property shall fulfill the foregoing
requirements,



     11.4 Abatement of Rent. If the Premises or the Building are damaged by fire or other
casualty, Basic Rent and Additional Rent payable by Tenant shall abate proportionately for the
period during which, by reason of such damage, there is substantial interference with Tenant’s use
of the Premises, having regard for the extent to which Tenant may be required to discontinue
Tenant’s use of all or an undamaged portion of the Premises due to such damage, but such abatement
or reduction shall end if and when Landlord shall have substantially completed sufficient
restoration that Tenant is reasonably able to use the Premises and the Premises are in
substantially the condition in which they were prior to such damage (excluding any Alterations made
by Tenant pursuant to Section 5.2). If the Premises shall be affected by any exercise of the power
of eminent domain, Basic Rent and Additional Rent payable by Tenant shall be justly and equitably
abated and reduced according to the nature and extent of the loss of use thereof suffered by
Tenant. In no event shall Landlord have any liability for damages to Tenant for inconvenience,
annoyance, or interruption of business arising from any fire or other casualty or eminent domain.



24









 





     11.5 Condemnation Award. Landlord shall have and hereby reserves and excepts, and
Tenant hereby grants and assigns to Landlord, all rights to recover for damages to the Property and
the leasehold interest hereby created, and to compensation accrued or hereafter to accrue by reason
of any taking, by exercise of the right of eminent domain, and by way of confirming the foregoing,
Tenant hereby grants and assigns, and covenants with Landlord to grant and assign to Landlord, all
rights to such damages or compensation, and covenants to deliver such further assignments and
assurances thereof as Landlord may from time to time request, and Tenant hereby irrevocably
appoints Landlord its attorney-in-fact to execute and deliver in Tenant’s name all such assignments
and assurances. Nothing contained herein shall be construed to prevent Tenant from prosecuting in
any condemnation proceedings a claim for the value of any of Tenant’s Removable Property installed
in the Premises by Tenant at Tenant’s expense and for relocation expenses, provided that such
action shall not affect the amount of compensation otherwise recoverable by Landlord from the
taking authority.



ARTICLE 12

HOLDING OVER; SURRENDER




     12.1 Holding Over. Any holding over by Tenant after the expiration of the Term of
this Lease shall be treated as a daily tenancy at sufferance at a equal to two (2) times the Basic
Rent then in effect plus the Additional Rent herein provided (prorated on a daily basis).


Tenant shall also pay to Landlord all damages, direct and/or indirect, sustained by reason of any
such holding over. In all other respects, such holding over shall be on the terms and conditions
set forth in this Lease as far as applicable. Landlord may, but shall not be required to, and only
on written notice to Tenant after the expiration of the Term hereof, elect to treat such holding
over as a renewal of one (1) year, to be on the terms and conditions set forth in this Section.




     12.2 Surrender of Premises. Upon the expiration or earlier termination of the Term of
this Lease, Tenant shall peaceably quit and surrender to Landlord the Premises in neat and clean
condition and in good order, condition and repair, together with all alterations, additions and
improvements which may have been made or installed in, on or to the Premises prior to or during the
Term of this Lease (except as hereinafter provided), excepting only ordinary wear and use and
damage by fire or other casualty for which, under other provisions of this Lease, Tenant has no
responsibility to repair or restore. Tenant shall remove all of Tenant’s Removable Property and,
to the extent specified by Landlord at the time that Landlord gives its consent thereto, all
alterations and additions made by Tenant and all partitions wholly within the Premises unless
installed initially by Landlord in preparing the Premises for Tenant’s occupancy; and shall repair
any damages to the Premises or the Building caused by such removal. Any Tenant’s Removable
Property which shall remain in the Building or on the Premises after the expiration or termination
of the Term of this Lease shall be deemed conclusively to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in such manner as Landlord may see fit,
at Tenant’s sole cost and expense.



25









 





ARTICLE 13

RIGHTS OF MORTGAGEES; TRANSFER OF TITLE




     13.1 Rights of Mortgagees. This Lease shall be subject and subordinate to the lien
and terms of any mortgage, deed of trust or ground lease or similar encumbrance (collectively, a
“Mortgage”, and the holder thereof from time to time the “Holder”) from time to time encumbering
the Premises, whether executed and delivered prior to or subsequent to the date of this Lease,
unless the Holder shall elect otherwise. If this Lease is subordinate to any Mortgage and the
Holder or any other party shall succeed to the interest of Landlord pursuant to the Mortgage (such
Holder or other party, a “Successor”), at the election of the Holder or Successor, Tenant shall
attorn to the or Successor and this Lease shall continue in full force and effect between the
Holder or Successor and Tenant. Tenant agrees to execute such instruments of subordination or
attornment in confirmation of the foregoing agreement as the Holder or Successor reasonably may
request, and Tenant hereby appoints the Holder or Successor as Tenant’s attorney-in-fact to execute
such subordination or attornment agreement upon default of Tenant in complying with the Holder’s or
Successor’s request.



     13.2 Assignment of Rents and Transfer of Title.



          (a) With reference to any assignment by Landlord of Landlord’s interest in this Lease, or the
rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder
of a mortgage on property which includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder unless such holder shall,
by notice sent to Tenant, specifically otherwise elect and, except as aforesaid, such holder shall
be treated as having assumed Landlord’s obligations hereunder only upon foreclosure of such
holder’s mortgage and the taking of possession of the Premises.




          (b) In no event shall the acquisition of Landlord’s interest in the Property by a purchaser
which, simultaneously therewith, leases Landlord’s entire interest in the Property back to the
seller thereof be treated as an assumption by operation of law or otherwise, of Landlord’s
obligations hereunder, but Tenant shall look solely to such seller-lessee, and its successors from
time to time in title, for performance of Landlord’s obligations hereunder. In any such event,
this Lease shall be subject and subordinate to the lease to such purchaser. For all purposes, such
seller-lessee, and its successors in title, shall be the Landlord hereunder unless and until
Landlord’s position shall have been assumed by such purchaser-lessor.




          (c) Except as provided in paragraph (b) of this Section, in the event of any transfer of title
to the Property by Landlord, Landlord shall thereafter be entirely freed and relieved from the
performance and observance of all covenants and obligations hereunder.




     13.3 Notice to Mortgagee. After receiving notice from Landlord of any Holder of a
Mortgage which includes the Premises, no notice from Tenant to Landlord alleging any default by
Landlord shall be effective unless and until a copy of the same is given to such Holder (provided
Tenant shall have been furnished with the name and address of such Holder), and the curing of any
of Landlord’s defaults by such Holder shall be treated as performance by Landlord.



26









 





ARTICLE 14

DEFAULT; REMEDIES




     14.1 Tenant’s Default.



          (a) If at any time subsequent to the date of this Lease any one or more of the following
events (herein referred to as a “Default of Tenant”) shall happen:





          (i) Tenant shall fail to pay the Basic Rent or Additional Rent hereunder when due and
such failure shall continue for ten (10) days after notice to Tenant from Landlord; or




          (ii) Tenant shall neglect or fail to perform or observe any other covenant herein
contained on Tenant’s part to be performed or observed and Tenant shall fail to remedy the
same within thirty (30) days after notice to Tenant specifying such neglect or failure, or
if such failure is of such a nature that Tenant cannot reasonably remedy the same within
such thirty (30) day period, Tenant shall fail to commence promptly (and in any event within
such thirty (30) day period) to remedy the same and to prosecute such remedy to completion
with diligence and continuity (and in any event, within ninety (90) days after the notice
described in this subparagraph (ii)); or




          (iii) Tenant’s leasehold interest in the Premises shall be taken on execution or by
other process of law directed against Tenant; or




          (iv) Tenant shall make an assignment for the benefit of creditors or shall be
adjudicated insolvent, or shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief for
itself under any present or future Federal, State or other statute, law or regulation for
the relief of debtors (other than the Bankruptcy Code, as hereinafter defined), or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of
Tenant or of all or any substantial part of its properties, or shall admit in writing its
inability to pay its debts generally as they become due; or




          (v) An Event of Bankruptcy (as hereinafter defined) shall occur with respect to Tenant;
or




          (vi) A petition shall be filed against Tenant under any law (other than the Bankruptcy
Code) seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future Federal, State or other statute,
law or regulation and shall remain undismissed or unstayed for an aggregate of sixty (60)
days (whether or not consecutive), or if any trustee, conservator, receiver or liquidator of
Tenant or of all or any substantial part of its properties shall be appointed without the
consent or acquiescence of Tenant and such appointment shall remain unvacated or unstayed
for an aggregate of sixty (60) days (whether or not consecutive);




          (vii) If: (x) Tenant shall fail to pay the Basic Rent or Additional Rent hereunder
when due or shall fail to perform or observe any other covenant herein



27









 







contained on Tenant’s part to be performed or observed and Tenant shall cure any such
failure within the applicable grace period set forth in clauses (i) or (ii) above; or (y) a
Default of Tenant of the kind set forth in clauses (i) or (ii) above shall occur and
Landlord shall, in its sole discretion, permit Tenant to cure such Default of Tenant after
the applicable grace period has expired; and the same or a similar failure shall
occur more than once within the next 365 days (whether or not such similar failure is cured
within the applicable grace period); or




          (viii) The occurrence of any of the events described in paragraphs (a)(iv)-(a)(vi) with
respect to any guarantor of all or any portions of Tenant’s obligations under this Lease;


then in any such case Landlord may terminate this Lease as hereinafter provided.




          (b) For purposes of clause (a)(v) above, an “Event of Bankruptcy” means the filing of a
voluntary petition by Tenant, or the entry of an order for relief against Tenant, under Chapter 7,
11, or 13 of the Bankruptcy Code, and the term “Bankruptcy Code” means 11 U.S.C § 101, et
seq.. If an Event of Bankruptcy occurs, then the trustee of Tenant’s bankruptcy estate or
Tenant as debtor-in-possession may (subject to final approval of the court) assume this Lease, and
may subsequently assign it, only if it does the following within sixty (60) days after the date of
the filing of the voluntary petition, the entry of the order for relief (or such additional time as
a court of competent jurisdiction may grant, for cause, upon a motion made within the original
sixty-day period):





          (i) file a motion to assume the Lease with the appropriate court;




          (ii) satisfy all of the following conditions, which Landlord and Tenant acknowledge to
be commercially reasonable:




	 	(A)	 	cure all Defaults of Tenant under this Lease or provide
Landlord with Adequate Assurance (as defined below) that it will (x) cure all
monetary Defaults of Tenant hereunder within ten (10) days from the date of the
assumption; and (y) cure all nonmonetary Defaults of Tenant hereunder within
thirty (30) days from the date of the assumption;
	 
	 	(B)	 	compensate Landlord and any other person or entity, or provide
Landlord with Adequate Assurance that within ten (10) days after the date of
the assumption, it will compensate Landlord and such other person or entity,
for any pecuniary loss that Landlord and such other person or entity incurred
as a result of any Default of Tenant, the trustee, or the debtor-in-possession;
	 
	 	(C)	 	provide Landlord with Adequate Assurance of Future Performance
(as defined below) of all of Tenant’s obligations under this Lease; and
	 
	 	(D)	 	deliver to Landlord a written statement that the conditions
herein have been satisfied.










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          (c) For purposes only of the foregoing paragraph (b), and in addition to any other
requirements under the Bankruptcy Code, any future federal bankruptcy law and applicable case law,
“Adequate Assurance” means at least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:





          (i) entering an order segregating sufficient cash to pay Landlord and any other person
or entity under paragraph (b) above, and




          (ii) granting to Landlord a valid first lien and security interest (in form acceptable
to Landlord) in all property comprising the Tenant’s “property of the estate,” as that term
is defined in Section 541 of the Bankruptcy Code, which lien and security interest secures
the trustee’s or debtor-in-possession’s obligation to cure the monetary and nonmonetary
defaults under the Lease within the periods set forth in paragraph (b) above.



          (d) For purposes only of paragraph (b) above, and in addition to any other requirements under
the Bankruptcy Code, any future federal bankruptcy law and applicable case law, “Adequate Assurance
of Future Performance” means at least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:





          (i) the trustee or debtor-in-possession depositing with Landlord, as security for the
timely payment of rent and other monetary obligations, an amount equal to the sum of two (2)
months’ Basic Rent plus an amount equal to two (2) months’ installments on account of
Operating Expenses and Taxes;




          (ii) the trustee or the debtor-in-possession agreeing to pay in advance, on each day
that the Basic Rent is payable, the monthly installments on account of Operating Expenses
and Taxes;




          (iii) the trustee or debtor-in-possession providing adequate assurance of the source of
the rent and other consideration due under this Lease;




          (iv) Tenant’s bankruptcy estate and the trustee or debtor-in-possession providing
Adequate Assurance that the bankruptcy estate (and any successor after the conclusion of the
Tenant’s bankruptcy proceedings) will continue to have sufficient unencumbered assets after
the payment of all secured obligations and administrative expenses to assure Landlord that
the bankruptcy estate (and any successor after the conclusion of the Tenant’s bankruptcy
proceedings) will have sufficient funds to fulfill Tenant’s obligations hereunder.



          (e) If the trustee or the debtor-in-possession assumes the Lease under paragraph (b) above and
applicable bankruptcy law, it may assign its interest in this Lease only if the proposed assignee
first provides Landlord with Adequate Assurance of Future Performance of all of Tenant’s
obligations under the Lease, and if Landlord determines, in the exercise of its reasonable business
judgment, that the assignment of this Lease will not breach any other lease, or any mortgage,
financing agreement, or other agreement relating to the Property by which Landlord or the Property
is then bound (and Landlord shall not be required to obtain consents or






29









 







waivers from any third party required under any lease, mortgage, financing agreement, or other
such agreement by which Landlord is then bound).




          (f) For purposes only of paragraph (e) above, and in addition to any other requirements under
the Bankruptcy Code, any future federal bankruptcy law and applicable case law, “Adequate Assurance
of Future Performance” means at least the satisfaction of the following conditions, which Landlord
and Tenant acknowledge to be commercially reasonable:





          (i) the proposed assignee submitting a current financial statement, audited by a
certified public accountant, that allows a net worth and working capital in amounts
determined in the reasonable business judgment of Landlord to be sufficient to assure the
future performance by the assignee of Tenant’s obligation under this Lease; and




          (ii) if requested by Landlord in the exercise of its reasonable business judgment, the
proposed assignee obtaining a guarantee (in form and substance satisfactory to Landlord)
from one or more persons who satisfy Landlord’s standards of creditworthiness.



     14.2 Landlord’s Remedies.



          (a) Upon the occurrence of a Default of Tenant, Landlord may terminate this Lease by notice to
Tenant, specifying a date not less than five (5) days after the giving of such notice on which this
Lease shall terminate and this Lease shall come to an end on the date specified therein as fully
and completely as if such date were the date herein originally fixed for the expiration of the Term
of this Lease, and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided.




          (b) If this Lease shall have been terminated as provided in this Article, then Landlord may
re-enter the Premises, either by summary proceedings, ejectment or otherwise, and remove and
dispossess Tenant and all other persons and any and all property from the same, as if this Lease
had not been made.




          (c) If this Lease shall have been terminated as provided in this Article, Tenant shall pay the
Basic Rent and Additional Rent up to the time of such termination, and thereafter Tenant, until the
end of what would have been the Term of this Lease in the absence of such termination, and whether
or not the Premises shall have been relet, shall be liable to Landlord for, and shall pay to
Landlord, as liquidated current damages: (x) the Basic Rent and Additional Rent payable hereunder
if such termination had not occurred, less the net proceeds, if any, of any reletting of the
Premises, after deducting all expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal expenses, attorneys’ fees,
advertising, expenses of employees, alteration costs and expenses of preparation for such
reletting; and (y) if this Lease provides that Tenant was entitled to occupy the Premises for any
period of time without paying Basic Rent, the amount of Basic Rent that Tenant would have paid for
any such period. Tenant shall pay the portion of such current damages referred to in clause (x)
above to Landlord monthly on the days which the Basic Rent would have been




30









 




payable hereunder if this Lease had not been terminated, and Tenant shall pay the portion of
such current damages referred to in clause (y) above to Landlord upon such termination.




          (d) At any time after termination of this Lease as provided in this Article, whether or not
Landlord shall have collected any such current damages, as liquidated final damages and in lieu of
all such current damages beyond the date of such demand, at Landlord’s election Tenant shall pay to
Landlord an amount equal to the excess, if any, of the Basic Rent and Additional Rent which would
be payable hereunder from the date of such demand assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Taxes and Operating Expenses would be the same
as the payments required for the immediately preceding Operating or Tax Year for what would be the
then unexpired Term of this Lease if the same remained in effect, over the then fair net rental
value of the Premises for the same period.




          (e) In case of any Default of Tenant, re-entry, expiration and dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or any part or parts thereof, either
in the name of Landlord or otherwise, for a term or terms which may at Landlord’s option be equal
to or less than or exceed the period which would otherwise have constituted the balance of the Term
of this Lease and may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to re-let the same and (ii) make such alterations, repairs and decorations
in the Premises as Landlord considers advisable and necessary for the purpose of reletting the
Premises; and the making of such alterations, repairs and decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed, or in the event of Landlord obtaining possession of the
Premises, by reason of the violation by Tenant of any of the covenants and conditions of this
Lease.




     14.3 Additional Rent. If Tenant shall fail to pay when due any sums under this Lease
designated as Additional Rent, Landlord shall have the same rights and remedies as Landlord has
hereunder for failure to pay Basic Rent.



     14.4 Remedying Defaults. Landlord shall have the right, but shall not be required, to
pay such sums or do any act which requires the expenditure of monies which may be necessary or
appropriate by reason of the failure or neglect of Tenant to perform any of the provisions of this
Lease, and in the event of the exercise of such right by Landlord, Tenant agrees to pay to Landlord
forthwith upon demand all such sums, together with interest thereon at a rate equal to 3% over the
base rate in effect from time to time at The First National Bank of Boston or its successor (but in
no event less than 18% per annum), as Additional Rent. Any payment of Basic Rent and Additional
Rent payable hereunder not paid when due shall, at the option of Landlord, bear interest at a rate
equal to 3% over the base rate in effect from time to time at The First National Bank of Boston or
its successor (but in no event less than 18% per annum) from the due date thereof and shall be
payable forthwith on demand by Landlord, as Additional Rent.



     14.5 Remedies Cumulative. The specified remedies to which Landlord may resort
hereunder are not intended to be exclusive of any remedies or means of redress to which Landlord
may at any time be entitled lawfully, and Landlord may invoke any remedy (including



31









 




the remedy of specific performance) allowed at law or in equity as if specific remedies were
not herein provided for.




     14.6 Attorneys’ Fees. Reasonable attorneys’ fees and expenses incurred by or on
behalf of Landlord in enforcing its rights hereunder or occasioned by any Default of Tenant shall
be paid by Tenant.



     14.7 Waiver.



          (a) Failure on the part of Landlord or Tenant to complain of any action or non-action on the
part of the other, no matter how long the same may continue, shall never be a waiver by Tenant or
Landlord, respectively, of any of the other’s rights hereunder. Further, no waiver at any time of
any of the provisions hereof by Landlord or Tenant shall be construed as a waiver of any of the
other provisions hereof, and a waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same provisions. The consent or approval of
Landlord or Tenant to or of any action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord’s or Tenant’s consent or approval to or of any
subsequent similar act by the other.




          (b) No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be due from
Tenant to Landlord shall be treated otherwise than as a payment on account of the earliest
installment of any payment due from Tenant under the provisions hereof. The acceptance by Landlord
of a check for a lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies which Landlord may
have against Tenant.




     14.8 Security Deposit. If a security deposit is specified in Section 1.1 hereof,
Tenant agrees that the same will be paid upon execution and delivery of this Lease, and that
Landlord shall hold the same throughout the Term of this Lease as security for the performance by
Tenant of all obligations on the part of Tenant hereunder. Landlord shall have the right from time
to time, without prejudice to any other remedy Landlord may have on account thereof, to apply such
deposit, or any part thereof, to Landlord’s damages arising from, or to cure, any Default of
Tenant. If Landlord shall so apply any or all of such deposit, Tenant shall immediately upon
demand deposit with Landlord the amount so applied to be held as security hereunder. Landlord
shall return the deposit, or so much thereof as shall not have theretofore been applied in
accordance with the terms of this Section, to Tenant on the expiration or earlier termination of
the Term of this Lease and surrender of possession of the Premises by Tenant to Landlord at such
time, provided that there is then existing no Default of Tenant (nor any circumstance which, with
the passage of time or the giving of notice, or both, would constitute a Default of Tenant). While
Landlord holds such deposit, Landlord shall have no obligation to pay interest on the same and
shall have the right to commingle the same with Landlord’s other funds. If Landlord conveys
Landlord’s interest under this Lease, the deposit, or any part thereof not previously applied, may
be turned over by Landlord to Landlord’s grantee, and, if so turned over, Tenant agrees to look
solely to such grantee for proper application of the deposit in accordance with the terms of this
Section, and the return thereof in accordance herewith. The holder of a mortgage shall not be
responsible to Tenant for the return or application of any such deposit, whether or



32









 




not it succeeds to the position of Landlord hereunder, unless such deposit shall have been
received in hand by such holder.




     14.9 Landlord’s Default. Landlord shall in no event be in default under this Lease
unless Landlord shall neglect or fail to perform any of its obligations hereunder and shall fail to
remedy the same within thirty (30) days after notice to Landlord specifying such neglect or
failure, or if such failure is of such a nature that Landlord cannot reasonably remedy the same
within such thirty (30) day period, Landlord shall fail to commence promptly (and in any event
within such thirty (30) day period) to remedy the same and to prosecute such remedy to completion
with diligence and continuity.



ARTICLE 15

MISCELLANEOUS PROVISIONS




     15.1 Rights of Access. Landlord and Agent shall have the right to enter the Premises
at all reasonable hours for the purpose of inspecting the Premises, doing maintenance or making
repairs or otherwise exercising its rights or fulfilling its obligations under this Lease, and
Landlord and Agent also shall have the right to make access available at all reasonable hours to
prospective or existing mortgagees, purchasers or tenants of any part of the Property.



     15.2 Covenant of Quiet Enjoyment. Subject to the terms and conditions of this Lease,
on payment of the Basic Rent and Additional Rent and observing, keeping and performing all of the
other terms and conditions of this Lease on Tenant’s part to be observed, kept and performed,
Tenant shall lawfully, peaceably and quietly enjoy the Premises during the term hereof, without
hindrance or ejection by any persons lawfully claiming under Landlord to have title to the Premises
superior to Tenant. The foregoing covenant of quiet enjoyment is in lieu of any other covenant,
express or implied.



     15.3 Landlord’s Liability.



          (a) Tenant agrees to look solely to Landlord’s equity interest in the Property at the time of
recovery for recovery of any judgment against Landlord, and agrees that neither Landlord nor any
successor of Landlord shall be personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief
against Landlord or any successor of Landlord, or to take any action not involving the personal
liability of Landlord or any successor of Landlord to respond in monetary damages from Landlord’s
assets other than Landlord’s equity interest in the Property.




          (b) In no event shall Landlord ever be liable to Tenant for any loss of business or any other
indirect or consequential damages suffered by Tenant from whatever cause.




          (c) Where provision is made in this Lease for Landlord’s consent, and Tenant shall request
such consent, and Landlord shall fail or refuse to give such consent, Tenant shall not be entitled
to any damages for any withholding by Landlord of its consent, it being intended that Tenant’s sole
remedy shall be an action for specific performance or injunction, and that such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not to unreasonably
withhold its consent. Furthermore, whenever Tenant requests Landlord’s




33









 




consent or approval (whether or not provided for herein), Tenant shall pay to Landlord, on
demand, as Additional Rent, any reasonable expenses incurred by Landlord (including without
limitation reasonable attorneys’ fees and costs, if any) in connection therewith.




          (d) Any repairs or restoration required or permitted to be made by Landlord under this Lease
may be made during normal business hours, and Landlord shall have no liability for damages to
Tenant for inconvenience, annoyance or interruption of business arising therefrom.




     15.4 Estoppel Certificate. Tenant shall, at any time and from time to time, upon not
less than ten (10) business days prior written notice by Landlord, execute, acknowledge and deliver
to Landlord an estoppel certificate containing such statements of fact as Landlord reasonably
requests.



     15.5 Relocation. Landlord reserves the right to relocate Tenant, upon prior written
notice, to other comparable space within the Building at Landlord’s sole cost and expense at any
time during the Lease Term; provided, however, that Landlord shall pay all reasonable costs of
moving Tenant to such other space including the breakdown, move and set-up of furniture and
equipment, moving files, and replacing stationery and signage with substantially equivalent
materials.



     15.6 Brokerage. Tenant warrants and represents that Tenant has dealt with no broker
in connection with the consummation of this Lease and, in the event of any brokerage claims against
Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same and indemnify
Landlord against any such claim.



     15.7 Roles and Regulations. Tenant shall abide by the Rules and Regulations from time
to time established by Landlord, it being agreed that such Rules and Regulations will be
established and applied by Landlord in a non-discriminatory fashion, such that all Rules and
Regulations shall be generally applicable to other tenants of the Building of similar nature to the
Tenant named herein. Landlord agrees to use reasonable efforts to insure that any such Rules and
Regulations are uniformly enforced, but Landlord shall not be liable to Tenant for violation of the
same by any other tenant or occupant of the Building, or persons having business with them. In the
event that there shall be a conflict between such Rules and Regulations and the provisions of this
Lease, the provisions of this Lease shall control. The Rules and Regulations currently in effect
are set forth in Exhibit E.



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



     15.9 Provisions Binding, Etc. Except as herein otherwise provided, the terms hereof
shall be binding upon and shall inure to the benefit of the successors and assigns, respectively,
of Landlord and Tenant (except in the case of Tenant, only such successors and assigns as
may be



34









 




permitted hereunder) and, if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted assigns. Each term and each provision of this Lease to be
performed by Tenant shall be construed to be both a covenant and a condition. Any reference in
this Lease to successors and assigns of Tenant shall not be construed to constitute a consent to
assignment by Tenant.




     15.10 Recording. Tenant agrees not to record this Lease, but, if the Term of this
Lease (including any extended term) is seven (7) years or longer, each party hereto agrees, on the
request of the other, to execute a notice of lease in recordable form and complying with applicable
law. In no event shall such document set forth the rent or other charges payable by Tenant under
this Lease; and any such document shall expressly state that it is executed pursuant to the
provisions contained in this Lease, and is not intended to vary the terms and conditions of this
Lease. At Landlord’s request, promptly upon expiration of or earlier termination of the Term,
Tenant shall execute and deliver to Landlord a release of any document recorded in the real
property records for the location of the Property evidencing this Lease, and Tenant hereby appoints
Landlord Tenant’s attorney-in-fact, coupled with an interest, to execute any such document if
Tenant fails to respond to Landlord’s request to do so within fifteen (15) days. The obligations
of Tenant under this Section shall survive the expiration or any earlier termination of the Term.



     15.11 Notice. All notices or other communications required hereunder shall be in
writing and shall be deemed duly given if delivered in person (with receipt therefor), if sent by
reputable overnight delivery or courier service (e.g., Federal Express) providing for receipted
delivery, or if sent by certified or registered mail, return receipt requested, postage prepaid, to
the following address:



          (a) if to Landlord at Landlord’s Address, to the attention of Karl W. Weller.




          (b) if to Tenant, at Tenant’s Address, to the attention of John D. Martin, and after the
Commencement Date, at the Premises.




     Where receipt of notice or other communication shall be conclusively established by either (i)
return of a return receipt indicating that the notice has been delivered; or (ii) return of the
letter containing the notice with an indication from the courier or postal service that the
addressee has refused to accept delivery of the notice. Either party may change its address for
the giving of notices by notice given in accordance with this Section.



     15.12 When Lease Becomes Binding; Entire Agreement; Modification. The submission of
this document for examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises, and this document shall become effective and binding
only upon the execution and delivery hereof by both Landlord and Tenant. This Lease is the entire
agreement between Landlord and Tenant, and this Lease expressly supersedes any negotiations,
considerations, representations and understandings and proposals or other written documents
relating hereto. This Lease may be modified or altered only by written agreement between Landlord
and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof.



35









 





     15.13 Paragraph Headings and Interpretation of Sections. The paragraph headings
throughout this instrument are for convenience and reference only, and the words contained therein
shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease. The provisions of this Lease shall be construed as a
whole, according to their common meaning (except where a precise legal interpretation is clearly
evidenced), and not for or against either party. Use in this Lease of the words “including,” “such
as” or words of similar import, when followed by any general term, statement or matter, shall not
be construed to limit such term, statement or matter to the specified item(s), whether or not
language of non-limitation, such as “without limitation” or “including, but not limited to,” or
words of similar import, are used with reference thereto, but rather shall be deemed to refer to
all other terms or matters that could fall within a reasonably broad scope of such term, statement
or matter.



     15.14 Dispute Resolution. In the event of a dispute between Landlord and Tenant
pursuant to this Lease (other than a dispute relating to the payment of Basic Rent and Additional
Rent the parties agree that prior to pursuing other available remedies (excluding giving notices of
default), they will attempt to directly negotiate resolution of their dispute. If negotiation is
unsuccessful, then they agree to participate in at least three hours of mediation to be facilitated
by a mediator mutually acceptable to them under the mediation procedures set by the mediator. The
mediation session shall be conducted within thirty (30) days of the date on which the mediator
receives the request to mediate. The costs of such mediation shall be shared equally by the
parties.



     15.15 Financial Statements. Tenant shall, without charge therefor, at any time,
within ten (10) days following a request by Landlord, deliver to Landlord, or to any other party
designated by Landlord, a true and accurate copy of Tenant’s most recent financial statements. All
requests made by Tenant regarding subleases or assignments must be accompanied by the most recent
financial statement of Tenant’s prospective subtenant or prospective assignee.



     15.16 Waiver of Jury Trial. Landlord and Tenant hereby each waive trial by jury in
any action, proceeding or counterclaim brought by either against the other, on or in respect of any
matter whatsoever arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant or Tenant’s use or occupancy of the Premises.



     15.17 Time Is of the Essence. Time is of the essence of each provision of this Lease.



     15.18 Multiple Counterparts. This Lease may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall constitute one and the
same document.



     15.19 Governing Law. This Lease shall be governed by the laws of the state in which
the Property is located.



36









 





     IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed, under
seal, by persons hereunto duly authorized, as of the date first set forth above.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	BCIA NEW ENGLAND HOLDINGS LLC, a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	BCIA NEW ENGLAND HOLDINGS MASTER LLC, 	 	 
	 	 	 	 	a Delaware limited liability company, its
Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	BCIA NEW ENGLAND HOLDINGS MANAGER LLC, 	 	 
	 	 	 	 	 	 	a Delaware limited
liability company, its Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	BCIA NEW ENGLAND HOLDINGS MANAGER CORP., a Delaware corporation, its Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	/s/ Karl W. Weller 	 	 
	 

	 	 	 	 	 	 	 	Name:
	 	 

KARL W. WELLER
	 	 
	 

	 	 	 	 	 	 	 	Title:
	 	EXECUTIVE VICE PRESIDENT	 	 






	 	 	 	 	 	 	 	 	 
	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AMERESCO, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	/s/ John D. Martin 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	JOHN D. MARTIN	 	 
	 

	 	 	 	Title:
	 	SENIOR VICE PRESIDENT AND	 	 
	 

	 	 	 	 	 	CHIEF FINANCIAL OFFICER	 	 







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