Exhibit 10.28


 


TENANT: THE FIRST MARBLEHEAD CORPORATION


 


LEASE OF


 


WELLINGTON BUSINESS PARK


 


ONE CABOT ROAD, MEDFORD, MASSACHUSETTS


 

















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  
	
  ARTICLE I BASIC PROVISIONS

  	
  1

  
	
  1.1   INTRODUCTION

  	
  1

  
	
  1.2   BASIC DATA

  	
  1

  
	
  1.3   ADDITIONAL DEFINITIONS

  	
  2

  
	
  ARTICLE II PREMISES AND APPURTENANT RIGHTS

  	
  3

  
	
  2.1   LEASE OF PREMISES

  	
  3

  
	
  2.2   APPURTENANT RIGHTS AND RESERVATIONS

  	
  3

  
	
  2.3   OPTION FOR ADDITIONAL PARKING

  	
  5

  
	
  2.4   OPTION TO EXTEND

  	
  6

  
	
  2.5   EXPANSION OPTION

  	
  7

  
	
  2.6   RIGHT OF FIRST OFFER

  	
  8

  
	
  2.7   STORAGE SPACE

  	
  8

  
	
  ARTICLE III BASIC RENT

  	
  9

  
	
  3.1   PAYMENT

  	
  9

  
	
  ARTICLE IV COMMENCEMENT DATE AND CONDITION

  	
  10

  
	
  4.1   COMMENCEMENT DATE

  	
  10

  
	
  4.2   PREPARATION OF THE PREMISES

  	
  10

  
	
  4.3   CONDITION; LANDLORD’S PERFORMANCE

  	
  12

  
	
  4.4   TENANT’S DELAYS

  	
  12

  
	
  ARTICLE V USE OF PREMISES

  	
  13

  
	
  5.1   PERMITTED USE

  	
  13

  
	
  5.2   INSTALLATIONS AND ALTERATIONS BY TENANT

  	
  14

  
	
  5.3   HAZARDOUS MATERIALS

  	
  15

  
	
  ARTICLE VI ASSIGNMENT AND SUBLETTING

  	
  16

  
	
  6.1   PROHIBITION

  	
  16

  
	
  6.2   EXCESS PAYMENTS

  	
  17

  
	
  6.3   ACCEPTANCE OF RENT

  	
  18

  
	
  6.4   ADDITIONAL REQUIREMENTS

  	
  18

  
	
  ARTICLE VII RESPONSIBILITY FOR REPAIRS AND CONDITION
  OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD

  	
  18

  
	
  7.1   LANDLORD REPAIRS

  	
  18

  
	
  7.2   TENANT’S AGREEMENT

  	
  19

  
	
  7.3   FLOOR LOAD—HEAVY MACHINERY

  	
  19

  
	
  7.4   BUILDING SERVICES

  	
  20

  
	
  7.5   ELECTRICITY

  	
  21

  
	
  ARTICLE VIII REAL ESTATE TAXES

  	
  23

  
	
  8.1   PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES

  	
  23

  
	
  8.2   ABATEMENT

  	
  24

  
	
  8.3   ALTERNATE TAXES

  	
  24

  
	
  ARTICLE IX OPERATING EXPENSES

  	
  25

  
	
  9.1   DEFINITIONS

  	
  25

  
	
  9.2   TENANT’S PAYMENTS

  	
  25

  
	
  ARTICLE X INDEMNITY AND PUBLIC LIABILITY INSURANCE

  	
  26

  
	
  10.1   TENANT’S INDEMNITY

  	
  26

  
	
  10.2   LANDLORD’S INDEMNITY

  	
  27

  
	
  10.3   GENERAL LIABILITY INSURANCE

  	
  27

  
	
  10.4   TENANT’S RISK AND PROPERTY DAMAGE
  INSURANCE

  	
  27

  
	
  10.5   INJURY CAUSED BY THIRD PARTIES

  	
  27

  
	
  10.6   CERTIFICATES OF INSURANCE

  	
  27

  
	
  ARTICLE XI LANDLORD’S ACCESS TO PREMISES

  	
  28

  
	
  11.1   LANDLORD’S RIGHTS

  	
  28

  



 

















 


	
  ARTICLE XII FIRE, EMINENT DOMAIN, ETC.

  	
  28

  
	
  12.1   ABATEMENT OF RENT

  	
  28

  
	
  12.2   LANDLORD’S RIGHT OF TERMINATION

  	
  28

  
	
  12.3   RESTORATION

  	
  29

  
	
  12.4   AWARD

  	
  29

  
	
  ARTICLE XIII DEFAULT

  	
  29

  
	
  13.1   TENANT’S DEFAULT

  	
  29

  
	
  13.2   LANDLORD’S DEFAULT

  	
  33

  
	
  ARTICLE XIV MISCELLANEOUS PROVISIONS

  	
  33

  
	
  14.1   EXTRA HAZARDOUS USE

  	
  33

  
	
  14.2   WAIVER

  	
  34

  
	
  14.3   COVENANT OF QUIET ENJOYMENT

  	
  34

  
	
  14.4   LANDLORD’S LIABILITY

  	
  34

  
	
  14.5   NOTICE TO MORTGAGEE OR GROUND LESSOR

  	
  35

  
	
  14.6   ASSIGNMENT OF RENTS AND TRANSFER OF TITLE

  	
  35

  
	
  14.7   RULES AND REGULATIONS

  	
  36

  
	
  14.8   ADDITIONAL CHARGES

  	
  36

  
	
  14.9   INVALIDITY OF PARTICULAR PROVISIONS

  	
  36

  
	
  14.10   PROVISIONS BINDING, ETC.

  	
  36

  
	
  14.11   RECORDING

  	
  36

  
	
  14.12   NOTICES

  	
  36

  
	
  14.13   WHEN LEASE BECOMES BINDING

  	
  36

  
	
  14.14   PARAGRAPH HEADINGS AND INTERPRETATION OF
  SECTIONS

  	
  37

  
	
  14.15   RIGHTS OF MORTGAGEE OR GROUND LESSOR

  	
  37

  
	
  14.16   ESTOPPEL CERTIFICATE

  	
  37

  
	
  14.17   INTENTIONALLY OMITTED

  	
  38

  
	
  14.18   REMEDYING DEFAULTS

  	
  38

  
	
  14.19   HOLDING OVER

  	
  38

  
	
  14.20   WAIVER OF SUBROGATION

  	
  38

  
	
  14.21   SURRENDER OF PREMISES

  	
  38

  
	
  14.22   INTENTIONALLY OMITTED

  	
  39

  
	
  14.23   BROKERAGE

  	
  39

  
	
  14.24   GOVERNING LAW

  	
  39

  
	
  14.25   BLINDS AND DRAPES

  	
  39

  



 

















 


LEASE


 


THIS INSTRUMENT IS A LEASE,
dated as of August 13, 2004, in which the Landlord and the Tenant are the
parties hereinafter named, and which relates to space in the building (the “Building”)
located at One Cabot Road, Medford, Massachusetts. The parties to this
instrument hereby agree with each other as follows:


 


ARTICLE I


BASIC PROVISIONS


 


1.1  INTRODUCTION.  The following set forth basic data and, where
appropriate, constitute definitions of the terms hereinafter listed.


 


1.2  BASIC DATA.


 


Landlord: Cabot Road
Partners, LLC, a Delaware limited liability company.


 


	
  Landlord’s Original Address:

  	
  c/o Berkeley Investments, Inc.,

  121 High Street,

  Boston, Massachusetts 02110

  



 


Tenant: The First Marblehead
Corporation


 


	
  Tenant’s Original Address:

  	
  The Prudential Tower

  800 Boylston Street, 34th Floor

  Boston, MA 02199-8157

  



 


Guarantor: None


 


Basic Rent: The Basic Rent
is as follows:


 


	
  Rental
  Period

  	
   

  	
  Annual
  Basic Rent

  	
   

  	
  Monthly
  Payment

  	
   

  
	
  Months 1-9

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  Months 10-24

  	
   

  	
  $

  	
  2,593,424.00

  	
   

  	
  $

  	
  216,118.66

  	
   

  
	
  Months 25-36

  	
   

  	
  $

  	
  2,661,672.00

  	
   

  	
  $

  	
  221,806.00

  	
   

  
	
  Months 37-84

  	
   

  	
  $

  	
  2,934,664.00

  	
   

  	
  $

  	
  244,555.33

  	
   

  



 


Premises: The entire second
floor and a portion of the third floor of the Building as shown on Exhibit FP annexed hereto, subject to
the provisions of Section 2.1 regarding the Third Floor Space (as defined
in Section 2.4).


 


Premises Rentable Area:
Agreed to be 136,496 rentable square feet.


 


Permitted Uses: General
office use, call center use, data center use, and other uses incidental to the
foregoing uses (including, without limitation, ancillary office kitchen/pantry
use), but specifically excluding medical or dental offices, utility company
offices, employment agencies (other than executive or professional search
firms) and governmental or quasi-governmental offices.


 


Escalation Factor: .442, as
computed in accordance with the Escalation Factor Computation.


 


Initial 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, except
that if the Commencement Date shall be other than the first day of a calendar
month, the expiration of the Initial Term shall be at the close of the day on
the last day of the calendar month in which such anniversary shall fall.


 


Base Operating Expenses:
Operating Expenses for the calendar year ending December 31, 2005.


 


1

















 


Base Taxes: Taxes for the
calendar year ending December 31, 2005, as the same may be reduced by the
proportional amount of any abatement net of expenses applicable to any tax
fiscal year included within the aforesaid calendar year. Landlord represents
that, as of the date of this Lease, the Property constitutes a single tax lot.


 


Security Deposit: None


 


Broker: The Codman Company &
GVA Thompson Doyle Hennessey & Everest


 


1.3  ADDITIONAL
DEFINITIONS.


 


Agent: Berkeley Management, Inc.
or such other person or entity from time to time designated by Landlord.


 


Bankruptcy Code: As defined
in Section 13.1.


 


Building Rentable Area:
308,496 rentable square feet.


 


Business Days: All days
except Saturday, Sunday, New Year’s Day, Martin Luther King’s Birthday,
Presidents’ Day, Patriot’s Day, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day (and the following
day when any such day occurs on Sunday or prior day if Saturday) and such other
days that tenants occupying at least 50% of Building Rentable Area recognize as
holidays for their general office staff.


 


Commencement Date: As
defined in Section 4.1.


 


Default of Tenant: As
defined in Section 13.1.


 


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.


 


Escalation Charges: The
amounts prescribed in Sections 8.1 and 9.2.


 


Escalation Factor
Computation: Premises Rentable Area divided by Building Rentable Area.


 


Event of Bankruptcy: 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 Public Liability
Insurance: $5,000,000 per occurrence (combined single limit) for property
damage, bodily injury or death.


 


Land: The parcel of land
upon which the Building and the related sidewalks and parking facilities are
constructed, as shown on the site plan attached hereto and made a part hereof
as Exhibit PP. If Landlord
shall elect to construct another building on the Land, then the definition of
Land hereunder


 


2

















 


shall exclude the property on which such
building and the improvements related to such building are located.


 


Operating Expenses: As
determined in accordance with Section 9.1.


 


Operating Year: As defined
in Section 9.1.


 


Premises Usable Area: The
carpetable area contained within the Premises.


 


Property: The Building and
the Land.


 


Rent Commencement Date: The
date that is nine months after the Commencement Date.


 


Scheduled Commencement Date:
December 1, 2004.


 


Tax Year: As defined in Section 8.1.


 


Taxes: As determined in
accordance with Section 8.1.


 


Tenant’s Plans: As defined
in Section 4.2.


 


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


 


Term of this Lease: The Initial
Term and any extension thereof in accordance with the provisions hereof.


 


ARTICLE II


PREMISES AND APPURTENANT RIGHTS


 


2.1  LEASE OF
PREMISES.  Landlord hereby
demises and leases to Tenant for the Term of this Lease and upon the terms and
conditions hereinafter set forth, and Tenant hereby leases from Landlord, the
Premises. Notwithstanding the foregoing, Tenant acknowledges that the portion
of the Premises on the third floor (the “Third Floor Space”) is currently
leased to a third party pursuant to a separate lease. It shall be a condition
precedent to the occurrence of the Commencement Date of this Lease and to the
parties’ respective obligations under this Lease that (a) Landlord and
such tenant of the Third Floor Space enter into an agreement satisfactory to
Landlord to terminate such lease, and (b) such tenant has surrendered and
vacated the Third Floor Space, except for certain items of movable personal
property that will not affect or delay Landlord’s Work in the Premises. If such
condition precedent has not occurred on or before the date that is twenty
(20) days after the date of this Lease, either Landlord or Tenant shall
have the right to terminate this Lease by written notice to the other given
within five (5) Business Days after the expiration of such twenty
(20) day period.


 


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 others (i) public or common lobbies,
hallways, stairways and elevators and common walkways necessary for access to
the Building, and if the portion of the Premises on any floor includes less
than the entire floor, the common toilets, corridors and elevator lobby on 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 Land and
designated by Landlord from time to time for the non-exclusive use of tenants
and other occupants of the Building (the areas described in clauses (i) and
(ii) are hereinafter collectively referred to as the “Common Areas”); but
such rights shall always be subject to reasonable rules and regulations
from time to time established by Landlord pursuant to Section 14.7 and to
the right of Landlord to designate and change from time to time areas and
facilities so to be used, provided that such changes shall not unreasonably,
adversely affect Tenant’s access to or use and occupancy of the Premises and
shall not result in a permanent reduction in the number of elevators serving
the Premises.


 


3

















 


(b)           Excepted and excluded from
the Premises are the ceiling, floor, perimeter walls and exterior windows
(except the inner surfaces 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 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 and so as to require only a de minimus reduction in the Premises
Usable Area) interior storm windows, sun control devices, and utility lines,
equipment, stacks, pipes, conduits, ducts and the like. Tenant shall have the
right, subject to the other terms and conditions of this Lease, including,
without limitation, the provisions of Section 5.2, to place pipes, wires
and other typical office infrastructure serving the Premises above the ceiling.
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.


 


(c)           As of the Execution Date of
this Lease, there are approximately 3.0 parking spaces in the parking areas
designated for use by the tenants of the Building for every 1,000 square feet
of Building Rentable Area. Tenant’s Share of such parking spaces shall equal
409 spaces, of which, 81 spaces shall be available in the garage on a
non-exclusive, unreserved basis. Nothing contained in the Lease shall prohibit
or otherwise restrict Landlord from changing from time to time, without notice
to Tenant, the location, layout or type of such parking areas, provided that
Landlord shall not reduce the total number of parking spaces available for
Tenants’ use. Subject to reasonable rules from time to time made by
Landlord of which Tenant is given notice, Tenant shall have the right, in
common with all other tenants of the Building, to use such parking areas,
without charge, on a first-come, first-served basis. Notwithstanding the
foregoing, if, after the date of this Lease, Landlord shall reserve any parking
spaces for any other tenant of the Building, including pursuant to an amendment
to the existing lease for a tenant in possession as of the date of this Lease,
then Landlord shall reserve for Tenant the number of parking spaces that is
equal to, on a proportionate basis, to the number of parking spaces reserved
for such other tenant, and such reserved spaces shall constitute part of Tenant’s
409 spaces; for illustration purposes, if Landlord gives to a tenant 4 reserved
parking spaces, and such reserved parking spaces constitute ten percent (10%)
of the parking spaces allocable to the tenant under its lease, then Landlord
shall give to Tenant 41 reserved parking spaces. In addition, Landlord shall
maintain a sticker system, or other similar program selected by Landlord in its
sole discretion, in order to restrict the use of the parking areas of the
Property by authorized vehicles only. As part of any such system, Landlord
shall use reasonable efforts to make sure unauthorized vehicles are not using
the parking areas.


 


(d)           So long as the Building is
at least seventy-five percent (75%) occupied, Landlord agrees to operate a
fitness center in the Building (the “Fitness Center”) in accordance with the
provisions of this Section 2.2(d). Tenant and Tenant’s employees and
invitees shall have the right to use the Fitness Center, subject to Landlord’s
right to change from time to time the type and location of the Fitness Center
and, if at any time the Building is less than seventy-five percent (75%)
occupied, to cease operation of the Fitness Center. The use of the Fitness
Center by Tenant and its employees and invitees shall be at the sole risk of
Tenant and/or such employees and invitees, and Landlord shall have no risk or
obligation therefor. As an ongoing condition to Tenant’s right to use the
Fitness Center, Tenant covenants with Landlord to maintain at all times a list
of persons who are using, or who have requested permission to use, the Fitness
Center, and to keep on file for Landlord’s inspection a duly executed and
witnessed release and indemnification agreement from each such person, in such
form as Landlord may from time to time approve or require. Access to the Fitness
Center shall be controlled by key card security.


 


(e)           So long as the Building is
at least seventy-five percent (75%) occupied, Landlord agrees to operate a
cafeteria in the Building (the “Cafeteria”) in accordance with the provisions
of this Section 2.2(e). Tenant and Tenant’s employees and invitees shall
have the right to use the Cafeteria,


 


4

















 


subject to Landlord’s right to change from
time to time the type and location of the Cafeteria and, if at any time the
Building is less than seventy-five percent (75%) occupied, to cease operation
of the Cafeteria. Landlord agrees to cause the Cafeteria and to cause the
operator to operate, manage and maintain the Cafeteria in a condition in
keeping with other cafeterias in similar first-class buildings in the
Medford/Charlestown area.


 


2.3  OPTION FOR
ADDITIONAL PARKING. 
Notwithstanding anything to the contrary contained in the Lease,
provided that (a) this Lease is then in full force and effect, (b) no
Default of Tenant shall have occurred that remains uncured, and (c) the
originally-named Tenant, The First Marblehead Corporation, or any successor
entity for which Landlord’s consent is not required under Section 6.1(b) below,
is then occupying at least eighty-five percent (85%) of the Premises for the
Permitted Use, upon written notice from Tenant to Landlord, Landlord hereby
consents to Tenant undertaking to construct or cause to be constructed
additional parking spaces on the Property in the location set forth in Exhibit AP attached hereto (the “Additional
Parking”), for use by Tenant’s employees, subject to the terms and conditions
of this Section 2.3, and subject to the rights previously given to another
tenant in the Building to build an additional 70 spaces in such location.


 


Tenant acknowledges that
Landlord has made no representations or warranties regarding the feasibility
of, or requirements for, the use of the Property for the Additional Parking,
for all of which Tenant hereby assumes sole responsibility. Tenant shall, at
Tenant’s sole cost and expense, obtain all required waivers, permits and
approvals of applicable governmental entities and other third parties prior to
commencing any such construction and shall provide copies thereof to Landlord.
Tenant shall consult with Landlord and keep Landlord informed concerning the
process of obtaining any required waivers, permits and approvals and Landlord
shall have the right to participate with Tenant in such process. Tenant’s
construction of the Additional Parking shall be subject to all of the
applicable terms and conditions of this Lease regarding alterations, including,
without limitation, the applicable provisions of Section 5.2 and Exhibits
TW and IR. Without limiting the generality of the foregoing, Tenant shall
submit all plans for construction to Landlord for its approval, and shall
perform the construction using a contractor first approved by Landlord. Tenant
shall perform such construction subject to and in accordance all applicable
laws, codes, rules, regulations, permits and approvals, including, without
limitation any Environmental Laws. Landlord’s approval of Tenant’s plans and
Tenant’s general contractor shall not impose upon Landlord any responsibility
or liability whatsoever to Tenant, including, without limitation, as a result
of, or arising out of, the defaults or other acts or omissions of the general
contractor.


 


After construction of the
Additional Parking, Tenant shall be solely responsible, at Tenant’s sole cost
and expense, to maintain and repair the Additional Parking, in good order
condition and repair, including, without limitation, any necessary snow
removal. If Landlord shall request by written notice to Tenant at the time that
Landlord approves the plans for such Additional Parking, Tenant shall promptly,
and in all cases prior to the expiration of such Term, remove the improvements
constituting the Additional Parking and restore such portion of the Property to
the condition existing immediately prior to the construction thereof, at Tenant’s
sole cost and expense.


 


If at any time during the
Term, Landlord intends to develop the portion of the Property on which Tenant
has the right to construct the Additional Parking, Landlord may deliver a
written notice to Tenant in which Landlord either (a) requires that Tenant
remove the then existing improvements to the Property that constitute the
Additional Parking, at Tenant’s sole cost and expense, within ninety
(90) days after the date of such notice, or (b) informs Tenant that,
if it has not yet constructed the Additional Parking, Tenant shall have no
further right to construct the Additional Parking. If Tenant has previously
constructed the Additional Parking, Tenant shall cause such improvements to be
removed within such ninety day period.


 


5














 


2.4  OPTION TO
EXTEND.


 


(a)           Provided that, at the time
of each such exercise, (i) this Lease is in full force and effect, (ii) no
Default of Tenant shall have occurred and be continuing (either at the time of
exercise or at the commencement of an Extended Term), and (iii) Tenant
shall not have assigned this Lease or vacated or sublet more than 20,000
rentable square feet in the Premises, other than in connection with a transfer
for which Landlord’s consent is not required under Article VI (any of
which conditions described in clauses (i), (ii), and (iii) may be waived
by Landlord at any time in Landlord’s sole discretion), Tenant shall have the
right and option to extend the Term of this Lease with respect to either the
entire Premises, or only the portion of the Premises on the second floor, or
only the portion of the Premises on the third floor, for two extended terms
(each an “Extended Term”) of five (5) years each by giving written notice
to Landlord not later than twelve (12) months prior to the expiration date
of the then current Term. The effective giving of such notice of extension by
Tenant shall automatically extend the Term of this Lease for the applicable
Extended Term, and no instrument of renewal or extension need be executed. In
the event that Tenant fails timely to give such notice to Landlord, or if
Tenant shall elect to extend the Term solely with respect to the second floor
space or the third floor space, then this Lease shall automatically terminate
with respect to the remainder of the Premises at the end of the Initial Term,
or the first Extended Term, as applicable, and Tenant shall have no further
option to extend the Term of this Lease with respect to such portion of the
Premises. Each Extended Term shall commence on the day immediately succeeding
the expiration date of the Initial Term, or the expiration of the first
Extended Term, as applicable, and shall end on the day immediately preceding
the fifth (5th) anniversary of the first day of the Extended Term. The Extended
Terms shall be on all the terms and conditions of this Lease, except: (i) during
the second Extended Term, Tenant shall have no further option to extend the
Term, (ii) the Basic Rent for each Extended Term shall be ninety-five
percent (95%) of the Fair Market Rental Value of the Premises as of the
commencement of the Extended Term, taking into account all relevant factors,
determined pursuant to paragraph (b) below; and (iii) if Tenant
shall elect in such notice of extension to extend the Term for only the second
floor space or the third floor space, the Premises thereafter shall solely
refer to such space.


 


(b)           Promptly after receiving
Tenant’s notice extending the Term of this Lease pursuant to paragraph (a) above,
but in no event sooner than eleven months prior to the end of the then current
Term, Landlord shall provide Tenant with Landlord’s good faith estimate of the
Fair Market Rental Value of the Premises for the upcoming Extended Term based
upon rents being paid by tenants entering into leases for first-class office similar
in size, build-out, amenities and term in the Medford/Charlestown area. If
Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental
Value as set forth in Landlord’s notice referred to above, and the parties are
unable to reach agreement thereon within thirty (30) days after the
delivery of such notice by Landlord, then either party may submit the
determination of the Fair Market Rental Value of the Premises to arbitration by
giving notice to the other party naming the initiating party’s arbitrator
within ten (10) days after the expiration of such thirty (30) day
period. Within fifteen (15) days after receiving a notice of initiation of
arbitration, the responding party shall appoint its own arbitrator by notifying
the initiating party of the responding party’s arbitrator. If the second
arbitrator shall not have been so appointed within such fifteen (15) day
period, the Fair Market Rental Value of the Premises shall be determined by the
initiating party’s arbitrator. If the second arbitrator shall have been so
appointed, then the two arbitrators thus appointed shall make their own
determination of Fair Market Rental Value and shall meet and confer in an
effort to reconcile their respective determinations. If, within thirty (30) days
after the appointment of the second arbitrator, the two arbitrators have not
reached agreement, and if the difference between the two (2) determinations
is less than ten percent (10%), then the average of the two determinations
shall be the Fair Market Rental Value. If, however, the difference between the
two (2) determinations is ten percent (10%) or more, then the two
arbitrators shall, within ten (10) days after the expiration of such
thirty (30) day period, appoint a third arbitrator; in the event the two
initial arbitrators are unable timely to agree on the third arbitrator, then
either may, on behalf of


 


6

















 


both, request such appointment by the
American Arbitration Association, or its successor, or, on its failure, refusal
or inability to act, by a court of competent jurisdiction. In such event, the
third arbitrator shall conduct its own independent investigation of the
applicable Fair Market Rental Value within fifteen (15) days of his/her
appointment; neither Landlord’s arbitrator nor Tenant’s arbitrator shall notify
the third arbitrator of its determination. After the third arbitrator has
completed its determination, the third arbitrator shall notify Landlord and
Tenant of the date on which said arbitrator will discloses its determination,
which date shall be at least five (5) days after the giving of such
notice. Such disclosure shall take place in Landlord’s office unless otherwise
mutually agreed by the parties. In such case, the Fair Market Rental Value
shall be the rent proposed by either Landlord’s arbitrator or Tenant’s
arbitrator, whichever value is closer to the determination of the third
arbitrator; if the two are equidistant from the third arbitrator, the Fair
Market Rental Value shall be equal to the third arbitrator’s determination. All
arbitrators shall be appraisers or other qualified real estate professionals
who are independent from the parties who have had at least ten (10) years
commercial real estate experience in the greater Boston area. Each party shall
pay the fees of its own arbitrator, and the fees of the third arbitrator shall
be shared equally by the parties.


 


2.5  EXPANSION
OPTION.


 


(a)           Subject to the terms and
conditions of this Section 2.5 and subject to the pre-existing rights of
Transystems, Inc., as shown on Exhibit FO,
Tenant shall have the right to expand the Premises to include 16,640 rentable
square feet of space on the first floor of the Building, in the location shown
on Exhibit FP-1 (“Expansion Premises”), provided and on condition that (i) this
Lease is in full force and effect, (ii) no Default of Tenant shall have
occurred and be continuing (either at the time of exercise or at upon the
Expansion Premises Commencement Date), (iii) Tenant shall not have
assigned this Lease or vacated or sublet more than 20,000 rentable square feet
in the Premises, other than in connection with a transfer for which Landlord’s
consent is not required under Article VI (any of which conditions
described in clauses (i), (ii), and (iii) may be waived by Landlord at any
time in Landlord’s sole discretion). If Tenant shall give Landlord written
notice no later than the date that is twelve months after the date of this
Lease electing to so expand the Premises, then Landlord shall deliver possession
of the Expansion Premises to Tenant on the Expansion Premises Commencement Date
(as defined below). If Tenant shall fail to timely deliver such notice electing
to so expand the Premises, Tenant shall be deemed to have waived such right,
and Landlord shall thereafter be free to lease all or any portion of the
Expansion Premises to such parties and on such terms as Landlord shall
determine in its sole discretion, subject to the provisions of Section 2.6
below.


 


(b)           Promptly after the date of
Tenant’s notice, Landlord shall commence and use commercially reasonable
efforts to perform certain improvements to the Expansion Premises in order to
fit out the space in accordance with a Building standard level of finish
consistent with the level of finish for Landlord’s Work in the remainder of the
Premises, and a ratio of twenty percent (20%) office space to eighty percent
(80%) open space. Such work shall be performed in accordance with and subject
to the requirements for Plans, timing of Landlord’s Work, Tenant Delay,
punchlist, warranty, and other requirements applicable to the initial Premises
set forth in Article IV below. The date that Landlord has substantially
completed such work and delivered the Expansion Premises to Tenant is
hereinafter referred to as the “Expansion Premises Commencement Date”. Landlord
shall use commercially reasonable efforts to deliver the Expansion Premises to
Tenant on or before the date that is five (5) months after the date of
Tenant’s notice. As of the Expansion Premises Commencement Date, the Premises
under this Lease shall be expanded to include the Expansion Premises. Once
incorporated into the Premises, Tenant’s rights and obligations with respect to
the Expansion Premises shall be subject to and with the benefit of all of the terms
and conditions of this Lease, except that: (i) the Basic Rent per square
foot applicable to the Expansion Premises shall equal the Basic Rent per square
foot for the remainder of the Premises; (ii) the Term of the Lease with
respect to the Expansion Premises shall be coterminous with the remainder of
the Premises; (iii) Tenant shall commence


 


7

















 


payment of such additional amount of Basic
Rent with respect to the First Expansion Premises on the Expansion Premises
Commencement Date; and (iv) the Escalation Factor shall be revised to
reflect the addition of the Expansion Premises to the Premises in accordance
with the Escalation Factor Computation. Promptly after the Expansion Premises
Commencement Date, Landlord and Tenant agree to enter into an amendment to this
Lease memorializing the addition of the Expansion Premises to this Lease and
the amendment to the applicable defined terms hereunder, including, without
limitation, Premises, Basic Rent, Term and Escalation Factor, but failure of
the parties to execute such an amendment shall have no effect on the expansion
of the Premises to include the Expansion Premises, and the economic terms
associated therewith, as set forth above.


 


2.6  RIGHT OF
FIRST OFFER.


 


(a)           Subject to the terms and
conditions of this Section 2.6 and subject to the pre-existing rights of
the tenants or other occupants of the Building set forth in Exhibit FO, Tenant shall have a “Right
of First Offer” to lease any office space that is available for lease to third
parties in the Building during the Term of this Lease (the “First Offer Space”),
including, without limitation, office space leased to a third party after
Tenant has elected not to exercise, and/or has failed to exercise, whichever the
case may be, such rights under this Section 2.6 with respect to said
space, provided and on condition that (i) this Lease is in full force and
effect, (ii) no Default of Tenant shall have occurred and be continuing
(either at the time of exercise or upon the commencement date of the Term for
the First Offer Space), (iii) Tenant shall not have assigned this Lease or
vacated or sublet more than 20,000 rentable square feet in the Premises, other
than in connection with a transfer for which Landlord’s consent is not required
under Article VI (any of which conditions described in clauses (i), (ii),
and (iii) may be waived by Landlord at any time in Landlord’s sole
discretion).


 


(b)           Landlord will notify Tenant
of its plans to lease any portion of the First Offer Space to any unrelated
third party. Landlord’s notice shall specify the square footage of the space
and its location, the date of availability, the term of the lease for such
space, the Basic Rent for such space, and all other material terms and conditions
which will apply to such space. Notwithstanding the foregoing, if Landlord
shall offer such space to Tenant during the first twelve months after the
Commencement Date, such First Offer Space shall be upon the same terms and
conditions as set forth for the Expansion Premises under Section 2.5
above. Tenant will notify Landlord within ten (10) Business Days of
Landlord’s notice if Tenant wishes to lease such First Offer Space from
Landlord on the terms and conditions so specified and otherwise on substantially
the same terms and conditions as contained in this Lease. If Tenant notifies
Landlord that it wishes to lease the First Offer Space, Landlord and Tenant
shall execute a lease agreement or amendment to this Lease within ten (10) Business
Days incorporating substantially such terms and conditions. If Tenant fails to
notify Landlord within said seven day period that Tenant intends to lease such
First Offer Space or fails to execute a lease agreement for such First Offer
Space within ten (10) Business Days of Tenant’s notice of intent to
Landlord, Landlord shall be entitled to lease such space to any third party on
terms and conditions acceptable to Landlord in its sole discretion.
Notwithstanding the foregoing, if Tenant shall not exercise its Right of First
Offer and Landlord intends to lease the First Offer Space for a net effective
rent (taking into consideration any difference in the improvements allowance or
other economic concessions offered to such third party but not to Tenant) that
is less than ninety percent (90%) of the net effective rent contained in
Landlord’s notice to Tenant, prior to leasing such First Offer Space to any
unrelated third party, Landlord shall again offer the First Offer Space to
Tenant, at such revised terms and conditions offered to such third party, and
Tenant shall again have a Right of First Offer pursuant to this Section 2.6.


 


2.7  STORAGE
SPACE.


 


(a)           Landlord shall lease to
Tenant and Tenant shall accept from Landlord certain storage space consisting
of approximately 1,000 rentable square feet on the garage level of the Building
(the “Storage


 


8

















 


Area”), located as shown on Exhibit FP-2,
attached hereto and made a part hereof. The Storage Area shall be used by
Tenant solely for storage purposes as an ancillary use in connection with
Tenant’s use of the Premises. The Storage Area shall be held by Tenant
commencing on the Commencement Date and continuing thereafter throughout the
Term of this Lease, subject to this Section 2.7. There shall be no
additional charges due in respect of Tenant’s use of the Storage Space.


 


(b)           During the term of this
Lease, the Storage Area shall be occupied by Tenant in accordance with and
subject to all of the terms and conditions of this Lease. Without limiting the
generality of the foregoing (i) Tenant shall extend the coverage of the
insurance provided for by Article X of this Lease to the Storage Area; (ii) Tenant
shall maintain the Storage Area and repair any damage to the Storage Area
caused by Tenant, its agents, contractors or employees; (iii) Landlord
shall retain access to the Storage Area and shall be entitled to enter the
Storage Area in accordance with the terms and conditions of Article XI;
and (iv) upon expiration or earlier termination of this Lease, Tenant
shall quit and surrender the same to Landlord, broom clean, and with any damage
due to Tenant’s use thereof repaired. Landlord may require Tenant at its own
expense to secure the Storage Area, but Tenant shall make no other changes to
the Storage Area without Landlord’s prior written approval. Tenant agrees that
it is accepting the Storage Area in “as is” condition without representation or
warranty by Landlord.


 


ARTICLE III


BASIC RENT


 


3.1  PAYMENT.


 


(a)           Tenant agrees to pay to
Landlord, or as directed by Landlord, commencing on the Rent Commencement Date
without offset, abatement (except as expressly provided in this Lease),
deduction or demand, the Basic Rent. In addition, within ten (10) days
after receipt of written notice from Landlord, which notice shall be given no
earlier than the date that is three (3) months prior to the Rent
Commencement Date, Tenant shall deposit with Landlord the sum of $216,118.66 as
a deposit of the first month’s Basic Rent which shall be applied by Landlord on
behalf of the Tenant to the payment of the first month’s Basic Rent when due
and payable. Such Basic Rent shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month (except as
hereinabove provided) during the Term of this Lease, at the following address:
Cabot Road Partners, L.L.C., P. O. Box 31367, Hartford, Connecticut 06150-1367,
or at such other place as Landlord shall from time to time designate by notice,
by check drawn on a bank which is a member of the Boston or New York Clearing
House. Until notice of some other designation is given, Basic Rent and all
other charges for which provision is herein made shall be paid by remittance
payable to the Agent, and all remittances so received as aforesaid, or by any
subsequently designated recipient, shall be treated as a payment to Landlord.
Landlord and Tenant agree that all amounts due from Tenant under or in respect
of this Lease, whether labeled Basic Rent, Escalation Charges, additional
charges 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 Basic Rent commences on a day
other than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be payable on the date Basic Rent commences and
shall be equal to a proportionate part of the monthly installment of Basic Rent
for the partial month in which Basic Rent commences plus the installment of
Basic Rent for the succeeding calendar month. Rental and any other sums due
hereunder not paid within five (5) Business Days after the date due more
than once in any twelve month period shall bear interest for each month or
fraction thereof from the due date until paid computed at the annual rate of
three percentage points over the so-called prime rate then currently from time
to time charged to its most favored corporate customers by Bank of America or
its successors, or at any applicable lesser maximum legally permissible rate
for debts of this nature.


 


9

















 


ARTICLE IV


COMMENCEMENT DATE AND CONDITION


 


4.1  COMMENCEMENT
DATE.  The “Commencement Date”
shall be the last to occur of:


 


(a)   the day following the
Substantial Completion Date, as defined in Section 4.2, or


 


(b)   the Scheduled Commencement
Date set forth in Section 1.3 hereof.


 


Notwithstanding the foregoing, if Tenant’s
personnel shall occupy all or any part of the Premises for the conduct of its
business (as opposed to entry to prepare the same for occupancy) prior to the
Commencement Date as determined pursuant to the preceding sentence, except any
such entry for the purpose of setting up and operating a data center at the
Premises, such date of occupancy shall, for all purposes of this Lease, be the
Commencement Date. Promptly upon the occurrence of the Commencement Date,
Landlord and Tenant shall execute and deliver a letter designating the
Commencement Date, but the failure by either party to execute and deliver such
a letter shall have no effect on the Commencement Date, as hereinabove
determined. Landlord shall permit Tenant reasonable access to the Premises
prior to the Commencement Date so that Tenant may install furniture, equipment,
cabling and fixtures, and operate a data center (the “Data Center”) in the
Premises, and perform such other actions as Tenant deems desirable to prepare
for occupancy of the Premises on the Commencement Date. Any such access shall
be subject to and upon all of the terms and conditions of this Lease other than
the payment of Basic Rent and Escalation Charges.


 


4.2  PREPARATION
OF THE PREMISES.


 


(a)


 


(i)            Within ten (10) Business
Days after Tenant has given to Landlord sufficient information concerning (A) telephone/data
wiring and cabling to workstations, (B) program information for
power/data, and (C) systems tie-in information from the Cavan Group,
Landlord shall cause the construction drawings for the improvements to the
portion of the Premises that will constitute the Data Center (the “Data Center
Plans”) to be prepared in accordance with the space plan and work
specifications attached hereto and made a part hereof as Exhibit SP-1 (the “Data Center Space
Plan”), and in compliance with all applicable laws, regulations and ordinances,
including without limitation the Americans With Disabilities Act of 1990. The
Data Center Plans shall be submitted to Tenant within said ten (10) Business
Day period for its approval, which shall not be unreasonably withheld. Tenant
shall notify Landlord of its approval or disapproval of the Data Center Plans
within five (5) Business Days after receipt thereof. Any disapproval shall
be accompanied by a specific statement of the reasons therefor. Within ten (10) Business
Days after receipt of Tenant’s disapproval, Landlord shall revise the Data
Center Plans and resubmit them to Tenant, which shall have three (3) Business
Days after receipt of the resubmission to review and respond thereto.


 


(ii)           Within thirty (30) days
after Tenant has given to Landlord sufficient information concerning (A) telephone/data
wiring and cabling to workstations, (B) program information for
power/data, and (C) systems tie-in information from the Cavan Group,
Landlord shall cause the construction drawings for the interior finish and
other tenant improvements to the Premises (the “Premises Plans”) to be prepared
in accordance with Building standard tenant finish as described in Exhibit BS, the space and work
specifications attached hereto and made a part hereof as Exhibit SP-2 (the “Premises Space
Plan”), and in compliance with all applicable laws, regulations and ordinances,
including without limitation the Americans With Disabilities Act of 1990. The
Premises Plans shall be submitted to Tenant within said thirty (30) day
period for its approval, which shall not be unreasonably withheld. Tenant shall
notify Landlord of its approval or disapproval of the Premises Plans within
five (5) Business Days after receipt thereof. Any disapproval shall be
accompanied by a specific statement of the reasons therefor. Within ten (10) Business
Days after


 


10

















 


receipt of Tenant’s
disapproval, Landlord shall revise the Premises Plans and resubmit them to
Tenant, which shall have three (3) Business Days after receipt of the
resubmission to review and respond thereto.


 


(iii)          The final approved Premises
Plans and Data Center Plans hereunder shall be referred to collectively as the “Approved
Plans.” Landlord shall be responsible for the architect’s fees in connection
with the preparation of the Data Center Space Plan and the Premises Space Plan
up to an amount equal to $13,649.60. In addition, Landlord shall be solely
responsible for the architect’s fees in connection with the preparation of the
Approved Plans.


 


(b)           Promptly after approval of
the Approved Plans, Landlord shall obtain all necessary permits and approvals
and commence and exercise all reasonable efforts to complete the work described
in the Approved Plans (“Landlord’s Work”). Landlord’s Work shall be performed
at Landlord’s sole cost and expense, subject to the provisions of
paragraph (c) below. Landlord agrees to complete Landlord’s Work in a
good and workmanlike manner and in compliance with all applicable laws,
regulations and ordinances, including without limitation the Americans With
Disabilities Act of 1990. Landlord agrees to use reasonable efforts to
substantially complete the portion of Landlord’s Work as set forth in the Data
Center Plans on or before the date (the “Scheduled Data Center Completion Date”)
that is forty-five (45) days after the Data Center Plans have been
approved and Landlord has obtained all applicable permits and approvals
required to perform such work, subject to Tenant Delay and Force Majeure.
Landlord agrees to use reasonable efforts to substantially complete the
remainder of Landlord’s Work by the Scheduled Commencement Date subject to
Tenant Delay and Force Majeure. If Landlord has not substantially completed the
portion of Landlord’s Work for the Data Center on or before the Scheduled Data
Center Completion Date, except as a result of Force Majeure or Tenant Delay, Tenant
shall be entitled to an abatement of one (1) day of Basic Rent (but not
Additional Rent or other charges) applicable to the Data Center for every one (1) day
delay in the occurrence of the substantial completion of such portion of
Landlord’s Work after the Scheduled Data Center Completion Date. If Landlord
has not substantially completed the remainder of Landlord’s Work on or before February 1,
2005, except as a result of Force Majeure or Tenant Delay, Tenant shall be
entitled to an abatement of one (1) day of Basic Rent (but not Additional
Rent or other charges) applicable to the entire Premises for every one (1) day
delay in the occurrence of the substantial completion of the remainder of
Landlord’s Work after February 1, 2005. If Landlord has not substantially
completed Landlord’s Work as of April 1, 2005, subject to Force Majeure
and Tenant Delay, Tenant shall have the right to terminate this Lease by
written notice to Landlord given on or before April 10, 2005. The
foregoing rights in the event of a delay in the substantial completion of
Landlord’s Work shall be Tenant’s sole and exclusive remedies for such delay.


 


(c)           The term “Change Order” as
used in this Lease shall mean any change to the approved Plans requested by
Tenant and Approved by Landlord, which shall not be unreasonably withheld,
conditioned or delayed. Within five (5) Business Days after receipt by
Landlord of a Change Order request, Landlord shall provide to Tenant a notice
of the estimated adjustment, if any, in the cost of Landlord’s Work and the
estimated delay, if any, in the substantial completion of Landlord’s Work
beyond the scheduled Substantial Completion Date (as the same may have been
previously modified by a prior Change Order) resulting from the Change Order.
Within three (3) Business Days after receipt of Landlord’s notice, Tenant
shall have the option to cancel the Change Order in writing to the Landlord
within said three (3) Business Day period. The estimated adjustment in the
cost of Landlord’s Work shall be determined by (i) adding the
architectural and engineering fees (if any) associated with reviewing and
revising the Plans in connection with the Change Order, the cost of the
materials and labor attributable to the Change Order, the contractor’s overhead
and profit attributable to the work described in the Change Order (which shall
be calculated at the same rate used in the construction contract for Landlord’s
Work), the increased costs (if any) of various trade contractors due to delay
in completing Landlord’s Work, and the costs (if any) associated with the
cancellation of materials already


 


11

















 


ordered, and (ii) subtracting from such
costs the cost of materials and labor attributable to the work (if any) not
being done, the contractor’s overhead and profit on the such materials and
labor, the cost of the cancelled materials, and the cost of any other savings
attributable to the Change Order. In the event there is a net increase in the
cost of Landlord’s Work as a result of the Change Order, then Tenant shall pay
to Landlord the amount of the net increase (less the amount of any retainage
contained in Landlord’s construction contract) in two (2) equal
installments, the first of which shall be paid within twenty (20) days
after Tenant shall have approved the Change Order and the second of which shall
be paid within thirty (30) days after the work described on the Change
Order has been substantially completed; Tenant agrees to pay the retainage to
Landlord simultaneously with the payment of the 2nd installment.


 


(d)           The Premises shall be deemed
ready for occupancy on the first day on which (i) Landlord’s Work has been
completed, except for minor items of work (and, if applicable, adjustment of
equipment and fixtures) which can be completed after occupancy has been taken
without causing unreasonable interference with Tenant’s use and enjoyment of
the Premises (i.e. so-called “punchlist” items), (ii) the Building systems
serving the Premises are in good working order and otherwise in the condition
required to be maintained by Landlord under this Lease, and (iii) Landlord
has obtained a permanent certificate of occupancy for the Premises permitting
Tenant to use the Premises for the Permitted Use. Such date is hereinafter
called the “Substantial Completion Date.” Within five (5) Business Days
after the occurrence of the Substantial Completion Date, Landlord and Tenant
shall inspect the Premises and shall prepare a punchlist of remaining items to
be completed. Landlord shall complete all punchlist items as soon as conditions
permit, and in all events within sixty (60) days, and Tenant shall afford
Landlord access to the Premises for such purposes.


 


4.3  CONDITION;
LANDLORD’S PERFORMANCE.  In
addition to the punchlist described in Section 4.2(d), Tenant shall have
the right to give Landlord a notice, not later than twelve (12) calendar
months after the Commencement Date, of (i) any respects in which Landlord
has not performed Landlord’s Work fully, properly and in accordance with the terms
of this Lease, or (ii) any respects in which Landlord’s Work is not in
good working order and condition, or (iii) any defects in workmanship and
materials in Landlord’s Work. Except as identified in any such notice from
Tenant to Landlord, Tenant shall have no right to make any claim that Landlord
has failed to perform any of Landlord’s Work fully, properly and in accordance
with the terms of this Lease or to require Landlord to perform any further
Landlord’s Work. Landlord shall complete, repair and/or replace such items as
soon as conditions permit, and in all events within sixty (60) days after
written notice from Tenant and Tenant shall afford Landlord access to the
Premises for such purposes. Except for Landlord’s Work, the Premises are being
leased in their present condition, and except as set forth in the immediately
preceding sentence, are being leased AS IS, WITHOUT REPRESENTATION OR WARRANTY
by Landlord.


 


4.4  TENANT’S
DELAYS.  The delays referred
to in paragraph (a) are herein referred to collectively and
individually as “Tenant’s Delay”:


 


(a)           If a delay shall occur in
the Substantial Completion Date beyond the Scheduled Commencement Date as the
result of:


 


(i)            any delay by Tenant in
approving the Data Center Plans and/or the Premises Plans beyond the periods
set forth in Section 4.2 above; or


 


(ii)           any request by Tenant that
Landlord delay the commencement or completion of Landlord’s Work for any
reason; or


 


(iii)          any reasonably necessary
displacement of any of Landlord’s Work from its place in Landlord’s
construction schedule resulting from any of the causes for delay referred to in
this paragraph (a) and the fitting of such Landlord’s Work back into
such schedule; and


 


12

















 


if Landlord shall notify
Tenant of such delay within two (2) days of the commencement of such delay
(which notice shall include the estimated duration of such delay), then such
delay shall constitute a Tenant Delay; provided, however, if Landlord fails to
give Tenant notice of a delay within said two (2) day period, then such
delay shall not constitute a Tenant Delay for the purposes of this Lease. The
parties agree that the Substantial Completion Date shall be deemed accelerated
by the actual number of days of delay attributable to Tenant Delays.


 


(b)           In addition, if Landlord
notifies Tenant in a Change Order of an estimated delay in the substantial
completion of Landlord’s Work beyond the scheduled Substantial Completion Date
due to the work described in said Change Order, and if a delay actually occurs,
then such delay shall constitute a Tenant Delay and the Substantial Completion
Date shall be deemed accelerated by the actual number of days of delay
attributable to such Change Order.


 


ARTICLE V


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 purpose.


 


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


 


(i)            Service and utility areas
(whether or not a part of the premises) shall be used only for the particular
purpose for which they were designed. Subject to the other terms and provisions
of this Lease, Tenant may install at its own cost and expense so-called
hot-cold water fountains, coffee makers, microwaves and so-called Dwyer
refrigerator-sink-stove combinations for the preparation of beverages and
foods, provided that no cooking, frying, etc., are carried on in the Premises
which require special exhaust venting. Tenant hereby acknowledges that the
Building is not engineered to provide any such special venting.


 


(ii)           Tenant shall cause all
freight to be delivered to or removed from the Building and the Premises in
accordance with reasonable rules and regulations established by Landlord
in accordance with Section 14.7;


 


(iii)          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 signs, symbol, advertisement or the like, except as provided
in this clause (iii). Landlord shall not unreasonably withhold or delay
its consent with respect to the installation of signs or lettering on the entry
doors to the Premises provided such signs conform to then Building standards
adopted by Landlord in its sole discretion; Tenant shall submit to Landlord a
plan or sketch of the sign (including size, color, material, location and
method of affixation) to be placed on or at such entry doors in connection with
Tenant’s request for Landlord’s consent. Landlord shall pay for the cost of any
Building-standard suite entry signage selected by Tenant, and Tenant shall pay
for any additional costs and expenses with respect to any above
Building-standard signage selected by Tenant and approved by Landlord as
aforesaid. Landlord agrees to maintain a tenant directory in the lobby of the
Building in which will be placed Tenant’s name and the location of the Premises
in the Building, and a directory on each floor with the names of up to five of
Tenant’s departments.


 


In
addition, subject to the approval of applicable governmental authorities,
Landlord hereby consents to the installation of Tenant’s sign on the exterior
of the east side of the Building, as conceptually depicted and in the location
specified on Exhibit ES,
which shall be purchased and installed at Tenant’s sole cost and expense. Upon
the expiration or earlier termination of this Lease, Tenant shall remove the
sign (but not the supports) from the exterior of the Building,


 


13

















 


remove the supports for such
Building sign (unless other directed by Landlord), repair any damage to the
Building’s exterior caused by such removal, and restore the exterior of the
Building to the condition existing prior to the placement of such sign and
support on the Building, reasonable wear and tear and damage by fire or other
casualty excepted.


 


Landlord
hereby agrees further to place Tenant’s name on the monument sign at the
entrance to the Building, which signage shall be consistent with the Building
standard graphics and lettering for the monument sign;


 


(iv)          Notwithstanding any
provision of this Lease, Tenant shall not use, or suffer or permit the use or
occupancy of, or suffer or permit anything to be done in or anything to be
brought into or kept in or about the Premises of the Building or any part
thereof (including, without limitation, any materials appliances or equipment
used in the construction or other preparation of the Premises and furniture and
carpeting): (a) for any unlawful purposes or in any unlawful manner; (b) which,
in the reasonable judgment of Landlord shall in any way materially impair,
interfere with or otherwise diminish the quality of any of the Building
services or the proper and economic heating, cleaning, ventilating, air
conditioning or other servicing of the Building, or Premises, or with the use
or occupancy of any of the other areas of the Building, which is consistent
with the maintenance of the Building as an office building of the first class
in the quality of its maintenance, use, or occupancy;


 


(v)           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, or otherwise interfere with the business of, any other
tenant or tenants or other persons in the Building;


 


(vi)          Tenant shall comply with the
requirements of all applicable governmental laws, rules and regulations, including
without limitation the Americans With Disabilities Act of 1990, to the extent
such compliance is required as a result of the specific manner in which Tenant
is using the Premises, Tenant’s layout of the Premises, or any alterations or
improvements performed by Tenant subsequent to the completion of Landlord’s
Work; and


 


(vii)         If any governmental license
or permit shall be required for the proper and lawful conduct of Tenant’s
business, and if the failure to secure such licenses or permit would in any way
affect Landlord, the Premises, the Building or Tenant’s ability to perform any
of its obligations under this Lease, Tenant, at Tenant’s expense, shall duly
procure and thereafter maintain such license and, upon request by Landlord,
submit the same to inspection by Landlord. Tenant, at Tenant’s expense, shall
at all times comply with the terms and conditions of each such license or
permit. Tenant shall furnish all data and information to governmental
authorities and Landlord as required in accordance with legal, regulatory,
licensing or other similar requirements as they relate to Tenant’s use or
occupancy of the Premises or the Building.


 


(c)           Landlord shall comply with
the requirements of all applicable governmental laws, rules and
regulations, including without limitation the Americans With Disabilities Act
of 1990, applicable to the Building and, to the extent Tenant is not obligated
to comply therewith under clause (vi) of Section 5.1(b), to the
Premises; provided, however, Landlord’s failure to comply with such laws, rules and
regulations with respect to any portion of the Property outside the Premises
shall not constitute a default under Section 13.2 unless (i) such
failure unreasonably interferes with Tenant’s access to the Premises or with
Tenant’s use and enjoyment of the Premises and/or the Common Areas or (ii) Tenant
may be subject to a fine, penalty or enforcement action as a result of such
failure.


 


5.2  INSTALLATIONS
AND ALTERATIONS BY TENANT.


 


(a)           Except as expressly provided
herein, Tenant shall make no alterations, additions (including, for the
purposes hereof, wall-to-wall carpeting), or improvements in or to the Premises
(including any


 


14

















 


initial improvements necessary for Tenant’s
occupancy) without Landlord’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed with respect to non-structural
alterations that do not adversely affect any of the Building systems. Landlord’s
consent shall not be required for (i) any purely cosmetic alteration that
does not affect any Building system, and (ii) any non-structural
alteration that does not affect any Building system and costs less than $50,000
in any one instance. Any alterations, additions or improvements for which
Landlord’s consent is required shall (i) be in accordance with complete
plans and specifications meeting the requirements set forth in Exhibit PR
and approved by Landlord, (ii) be in accordance with the standards set
forth in Exhibit BS attached hereto, (iii) be made only in accordance
with the procedures set forth in Exhibit TW attached hereto by contractors
or mechanics approved by Landlord, (iv) be made at Tenant’s sole expense
and at such reasonable times and in such reasonable manner as Landlord may from
time to time designate and (v) upon installation, become part of the
Premises and the property of Landlord, provided that Landlord reserves the
right, at the time that Landlord consents to such alterations, to require the
removal of any non-standard office alterations upon the expiration or earlier
termination of the Term of this Lease. Notwithstanding the foregoing, Tenant
shall not be required to remove any items of Landlord’s Work installed as part
of Tenant’s initial occupancy of the Premises, nor any wiring or cabling
installed by Tenant from time to time during the Term.


 


(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 of this Lease, 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. To the maximum extent permitted
by law, at 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 previous sentence.
Whenever and as often as any mechanic’s lien shall have been filed against the
Property based upon any act or interest of Tenant or of anyone claiming through
Tenant, Tenant shall forthwith take such action by bonding, deposit or payment
as will remove or satisfy the lien.


 


(d)           In the course of any work
being performed by Tenant, (other than “field installations” of Tenant’s
Removable Property and the installation of any wiring and cabling), Landlord
reserves the right to require Tenant to employ union labor compatible with that
being employed by Landlord for work in or to the Building, 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 or construction in the
Building pursuant to arrangements made by Landlord.


 


5.3  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 all applicable Environmental Laws.


 


15














 


(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 concerning
Hazardous Materials which relates to the Premises or the Property, and (ii) any
Environmental Condition, of which Tenant is aware, on the Premises, or
elsewhere on the Property if caused by Tenant or anyone claiming by through or
under Tenant.


 


(e)           Landlord covenants that, as
of the Commencement Date, the Premises shall be free of Hazardous Materials.


 


ARTICLE VI


ASSIGNMENT AND SUBLETTING


 


6.1  PROHIBITION.


 


(a)           Except as otherwise provided
in this Article VI, Tenant covenants and agrees that whether voluntarily,
involuntarily, by operation of law or otherwise 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 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
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 Basic Rent, Escalation Charges or other charges due under
this Lease; and/or (y) a third party undertakes or is granted 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 VI.
The provisions of this paragraph (a) shall apply to a transfer (by
one or more transfers) of a majority of the stock or partnership interests or
other evidences of ownership of Tenant as if such transfer were an assignment
of this Lease, except any such transfer occurring on a recognized public stock
exchange, or any such transfer complying with the provisions of paragraph (b) below.


 


(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 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 either such event:


 


(i)            the successor to Tenant’s
interest under this Lease pursuant to clause (x) above has a net
worth computed in accordance with generally accepted accounting principles
consistently applied at least equal to the net worth of Tenant herein named on
the date of this Lease, and proof reasonably satisfactory to Landlord of such
net worth shall have been delivered to Landlord at least 10 days prior to
the effective date of any such transaction (subject to any confidentiality
requirements of applicable laws, in which case such disclosure may be made within
ten (10) days subsequent to such transaction), and


 


16

















 


(ii)           any assignee agrees directly
with Landlord, by written instrument in form satisfactory to Landlord, to be
bound by all the obligations of Tenant hereunder including, without limitation,
the covenant against further assignment and subletting.


 


(c)           Provided that Tenant is not
in default of any of Tenant’s obligations under this Lease beyond applicable
notice and cure periods, Landlord’s consent to a proposed assignment or
sublease shall not be unreasonably withheld or delayed, and shall be given or
withheld within twenty (20) days after receipt of all information required
from Tenant hereunder, provided and upon condition that:


 


(i)            In Landlord’s reasonable
judgment the proposed assignee or subtenant is engaged in a business which is
in keeping with the then standards of the Building and Property and the
proposed use is limited to the Permitted Use;


 


(ii)           The proposed assignee or
subtenant is a reputable person or entity with sufficient financial worth
considering the responsibility involved, based on evidence provided by Tenant
(and others) to Landlord, as determined by Landlord in its reasonable
discretion;


 


(iii)          Neither (A) the
proposed assignee or sublessee nor (B) any person or entity which,
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed assignee or sublessee or any person or entity who controls
the proposed assignee or sublessee, is then an occupant of any part of the
Property, provided that Landlord then has comparable space to lease to such
party;


 


(iv)          The proposed assignee or
sublessee is not a person or entity to or from whom Landlord has sent or
received a letter of intent or other written expression of interest in the
prior ninety (90) day period for the lease of space at the Property
comparable in terms of size and finish as the Premises (or the applicable
portion of the Premises to be sublet); and


 


(v)           The proposed sublease or
assignment shall be in form reasonably satisfactory to Landlord and shall
comply with the applicable provisions of this Article 6.


 


(d)           If Landlord shall refuse
consent to a request to assign or sublease, Landlord’s notice shall set forth
the reasons for denying such consent. If Landlord shall fail to respond to
Tenant within such twenty (20) day period, and if such failure shall
continue for an additional ten (10) days after an additional written
notice from Tenant, which notice shall specifically reference this Section 6.1
and shall state, in bold, uppercase, prominent letters that failure to respond
within such ten (10) day period shall be deemed approval by Landlord of
such request, then Landlord shall be deemed to have approved the proposed
assignment or sublease.


 


6.2  EXCESS
PAYMENTS.  If Tenant assigns
this Lease or sublets the Premises or any portion thereof, except pursuant to
the provisions of Section 6.1(b) above, Tenant shall pay to Landlord
as additional rent fifty percent (50%) 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 (including, without limitation,
the cost of any leasehold improvements provided for such assignee or subtenant
and the value of any reasonable and customary free rent, work allowance or
other concessions provided to such party), exceeds (b) the allocable
portion of the applicable Basic Rent and Escalation Charges attributable to the
portion of the Premises so sublet or assigned. After Tenant has fully recovered
its reasonable expenses, Tenant shall commence paying to Landlord its share of
such excess payments to the extent Tenant actually receives such payment; such
payments shall be made on the date the corresponding payments under this Lease
are due. Notwithstanding the foregoing, the provisions of this Section 6.2
shall impose no obligation on Landlord to consent to an assignment of the Lease
or a subletting of all or a portion of the Premises.


 


17

















 


6.3  ACCEPTANCE OF
RENT.  If, in violation of
this Article 6, this Lease be assigned, or if the Premises or any part
thereof be sublet or occupied by anyone other than Tenant, 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 subletting or occupancy shall not in any way diminish
the prohibition stated in paragraph (a) of this Section 6.1 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. No such assignment,
subletting, or occupancy shall affect or be contrary to Permitted Uses. Any
assignment, subletting or occupancy shall be void ab initio, if the same shall fail to require that such
assignee, subtenant or occupant agree therein 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, except, in
the case of a subtenant, limited to the portion of the Premises proposed to be
sublet.


 


6.4  ADDITIONAL
REQUIREMENTS.  Tenant shall
reimburse Landlord on demand, as Additional Rent, for any reasonable
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 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. Any sublease shall provide that: (i) the
term of the sublease ends 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.


 


ARTICLE VII


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,
consistent with similar first-class office buildings in the Medford/Charlestown
area, (i) the Building, including, without limitation, roof, foundation,
exterior walls, exterior windows, structure, elevators, and all base building
systems (but specifically excluding any supplemental heating, ventilation or
air conditioning equipment or systems installed at Tenant’s request or
installed, whether or not by or on behalf of Tenant, as a result of
requirements in excess of Building standard design criteria), (ii) all
Common Areas (interior and exterior), and (iii) all signage (other than
any signs installed by Tenant), except that Landlord shall in no event be
responsible to Tenant for the repair of glass in the Premises (excluding
exterior windows), the doors leading to the Premises, or any condition in the
Premises or the Building caused by any act or neglect of Tenant, or its
invitees or contractors other than as set forth in Article XII. Landlord
shall also keep and maintain all Common Areas 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. Notwithstanding the
foregoing, but subject to the provisions of Section 14.20, Landlord shall
be responsible for the cost of repairs which may be made necessary by


 


18

















 


reason of damage to the Premises caused
solely by any negligent or willful act of Landlord, or its contractors or
invitees. 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, under the provisions of this Section 7.1
or elsewhere in this Lease, Landlord has undertaken to make 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’S
AGREEMENT.


 


(a)           Subject to Landlord’s
obligations set forth in Section 7.1 above, Tenant will keep neat and
clean and maintain in good order, condition and repair the Premises and every
part thereof, 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 shall surrender the Premises, at the end of the
Term, in such condition. Without limitation, Tenant shall continually during
the Term of this Lease maintain the Premises in accordance with standards
recommended by the Boston Board of Fire Underwriters to the extent said
compliance is required as a result of the specific manner in which Tenant is
using the Premises, Tenant’s layout of the Premises, or any alterations or
improvements performed by Tenant subsequent to the completion of Landlord’s
Work. To the extent that the Premises constitute a “Place of Public
Accommodation” within the meaning of the Americans with Disabilities Act of
1990, Tenant shall be responsible, subject to the requirements of Section 5.2,
for making the repairs within the Premises that are necessary to comply with
any provisions of such Act that are enacted, or become effective, or become
applicable to the Premises after the Commencement Date. Notwithstanding the
foregoing, to the maximum extent this provision may be enforceable according to
law and is not otherwise contrary to public policy, Tenant shall be responsible
for the cost of repairs which may be made necessary by reason of damage to the
Building caused solely by any negligent or willful act of Tenant, or its
contractors or invitees (including any damage by fire or other casualty arising
therefrom), provided that the liability of Tenant under this sentence shall be
limited as and to the extend provide in Section 14.20.


 


(b)           If repairs are required to
be made by Tenant pursuant to the terms hereof, Landlord may demand by written
notice that Tenant make the same forthwith, and if Tenant refuses or neglects
to commence such repairs and complete the same within the cure period provided
in Section 13.1 (except in the case of emergency in which event Landlord
may make such repairs immediately), Landlord may (but shall not be required to
do so) make or cause such repairs to be made.


 


7.3  FLOOR
LOAD—HEAVY MACHINERY.


 


(a)           Tenant shall not place a
load upon any floor in the Premises exceeding 100 lbs. per square foot of
Premises Usable Area in the west wing and 125 lbs. per square foot of Premises
Usable Area in the east wing or the maximum which such floor was designed to
carry and which is allowed by law. Landlord reserves the right to employ Landlord’s
structural engineer, at Tenant’s expense, 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 shall not be unreasonably withheld,
conditioned or delayed, but which consent may include a requirement to provide
reasonable insurance, naming Landlord as an insured, in such amounts as
Landlord may deem reasonable.


 


19

















 


(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.


 


7.4  BUILDING
SERVICES.


 


(a)           Landlord shall, on Business
Days from 8:00 a.m. to 6:00 p.m., furnish heating and cooling as
normal seasonal changes may require at least equal to 1cfm per square foot of
Premises Usable Area with 20% outdoor air to maintain 69-74 degree Fahrenheit
Temperature, under normal business operation at an occupancy of not more than
one person per 100 square feet of Premises Usable Area and a combined lighting
and standard electrical load not exceeding 3.0 watts per square foot of
Premises Usable Area, with the use of venetian blinds on the windows. If Tenant
shall require air conditioning, heating or ventilation outside the hours and days
above specified, Tenant shall give Landlord at least 24 hours’ prior
notice of such requirement. Landlord shall furnish such service and Tenant
shall pay therefor such charges as may from time to time be in effect. Such
charge is currently $50.00 per hour per floor. Notwithstanding the foregoing,
Landlord shall provide heating and cooling from 8:00 a.m. to 1:00 p.m.,
on no more than twenty-six (26) Saturdays per calendar year, solely to the
portion of the Premises on the second floor of the Building, provided and on
condition that Tenant notifies Landlord in writing that it will require such
heating or cooling not less than 24 hours prior to the applicable
Saturday. 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, at Tenant’s expense.


 


(b)           Landlord shall also provide:


 


(i)            Passenger elevator service
in common with Landlord and other tenants in the Building.


 


(ii)           Hot water for lavatory and
kitchen purposes and cold water (at temperatures supplied by the City of
Medford) for drinking, kitchen and lavatory and toilet purposes at a central
service area on each floor. If Tenant uses water for any purpose other than for
ordinary office kitchen, 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 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 default in making such payment Landlord may pay such
charges and collect the same from Tenant as an additional charge.


 


20

















 


(iii)          Cleaning and janitorial
services on Business Days to (x) the Premises, provided the same are kept
in order by Tenant and no extra services are necessary by reason of any special
installations made by Tenant, and (y) the Common Areas, substantially in
accordance with the cleaning standards set forth in Exhibit CS attached
hereto.


 


(iv)          Free access to the Premises
at all times, 24/7, subject to reasonable security restrictions from time to
time in effect, and subject always to restrictions based on emergency
conditions.


 


(v)           Backup power for normal
office use to the Premises through three 2,000 kva generators. Landlord shall
perform scheduled preventative maintenance twice per year during the Term.
Preventative maintenance will be performed to one generator at a time while the
remaining two are on line and available. In addition, the generators will be
exercised every two weeks during off hours by running each one for a half hour.


 


(vi)          Illuminate the parking areas
and the sidewalks after dusk, and illuminate the interior Common Areas.


 


(c)           Landlord or Agent from time
to time may provide one or more uniformed attendants in or about the lobby of
the Building. Such attendant(s) serve functions such as assisting visitors
and invitees of tenants and others in the Building, monitoring fire control and
alarm equipment, and summoning emergency services to the Building as and when
needed. Tenant expressly acknowledges and agrees that: (i) such attendants
are not police officers, they are unarmed, and they are not trained in
situations involving potentially physical confrontation; and (ii) such
attendants have been provided as an amenity to tenants of the Building for the
sole purposes set forth above, and not for the purpose of securing any
individual tenant premises or guaranteeing the physical safety of Tenant’s
Premises or of Tenant’s employees, agents, contractors or invitees. If and to
the extent that Tenant desires to provide additional 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 X hereof, to the
extent permissible by applicable law, 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 acknowledges that the Building is
located in an urban area, and that crimes against property and persons do
occasionally occur. 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.


 


7.5  ELECTRICITY.


 


(a)           Landlord shall furnish
electricity to the Premises for lights, outlets and supplemental HVAC service
dedicated to Tenant’s Premises to meet a so-called “connected load” requirement
not to exceed six (6.0) watts at 277/480 volts per square foot of Premises
Usable Area. Tenant agrees in its use of the Premises not to exceed such
requirement and that its total connected lighting load will not exceed the
maximum from time to time permitted under applicable governmental regulations.
Landlord shall purchase and install, at Tenant’s expense (without mark-up or
service charge), all replacement lamps, tubes, bulbs, starters and ballasts;
provided, however, Landlord agrees to purchase and install, at Landlord’s
expense, any lamps, tubes, bulbs, starters and ballasts during the first three (3) months
of the Term. In order to assure that the foregoing requirements are not
exceeded and to avert possible adverse affect on the Building’s electrical
system, Tenant shall not, without Landlord’s prior consent, connect any
fixtures, appliances or equipment to the Building’s electrical distribution
system other than typewriters, printers, fax machines, pencil sharpeners, desk
top calculators, dictaphones, photocopiers,


 


21

















 


personal computers, word processors, radios
and other similar small electrical equipment normally found in business
offices.


 


(b)           Tenant shall be responsible
for the payment of all electricity used and consumed in the Premises,
including, without limitation for lights, outlets and supplemental HVAC service
dedicated to Tenant’s Premises, provided however, once Tenant has installed the
equipment in the Data Center, and such equipment is in operation, Tenant shall
pay for all electricity used in the Data Center, allocated by Landlord on a per
square foot basis to the Data Center. Landlord shall install a separate check
meter measuring the electricity used and consumed in the Premises, and from
time to time, but not more than once per calendar month, Landlord shall invoice
Tenant for electricity used and consumed in the Premises, at Landlord’s cost
therefore, without markup. Tenant shall pay Landlord the invoiced amount 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.


 


(c)           Landlord shall have the
right to discontinue furnishing electricity to the Premises at any time upon
not less than thirty (30) days’ notice to Tenant provided that Landlord
shall, at Landlord’s expense, separately meter the Premises directly to the
applicable public utility company. If Landlord exercises such right, from and
after the effective date of such discontinuance, Landlord shall not be
obligated to furnish electricity to the Premises, and Landlord shall permit
Landlord’s existing wires, risers, conduits and other electrical equipment of
Landlord to be used to supply electricity to Tenant provided that the limits
set forth in paragraph (a) shall not be exceeded, and Tenant shall be
responsible for payment of all electricity charges directly to such utility.


 


(d)           Notwithstanding anything to
the contrary in this Article 7 or in this Lease contained, Landlord may
institute, and Tenant shall comply with, such policies, programs and measures as
may be reasonably necessary, required, or expedient for the conservation and/or
preservation of energy or energy services, or as may be reasonably necessary or
required to comply with applicable codes, rules, regulations or standards.


 


(e)           When necessary by reason of
accident or emergency, or for repair, alterations, replacements or improvements
which in the reasonable judgment of Landlord are desirable or necessary to be
made, or of difficulty or inability in securing supplies or labor, or of
strikes, or of any other cause beyond the reasonable control of Landlord,
whether such other cause be similar or dissimilar to those hereinabove
specifically mentioned until said cause has been removed, Landlord reserves the
right to interrupt, curtail, stop or suspend (i) the furnishing of
heating, elevator, air conditioning, and cleaning services and (ii) the
operation of plumbing and electric systems. Landlord shall exercise reasonable
diligence to eliminate the cause of any such interruption, curtailment, stoppage or
suspension, and perform any such repair or replacement in such a manner so as
to minimize any unreasonably interference with Tenant’s use of the Premises,
but there shall be no diminution or abatement of rent or other compensation due
from Landlord to Tenant hereunder, nor shall this Lease be affected or any of
the Tenant’s obligations hereunder reduced, and the Landlord shall have no
responsibility or liability for any such interruption, curtailment, stoppage,
or suspension of services or systems. Except as set forth in paragraph (f) 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 Section 7.6 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.


 


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7.6  INTERRUPTION
OF SERVICES.  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 because of a failure of the Building’s
systems or a failure of Landlord to perform its obligations set forth herein,
or as a result of the acts or negligence of Landlord or any third party under
Landlord’s control, including without limitation, any tenant of the Building
(any such interruption of an Essential Service being hereinafter referred to as
a “Service Interruption”), and (ii) such
Service Interruption continues for more than three (3) consecutive
Business Days after Landlord shall have received notice thereof from Tenant,
and (iii) 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 and Escalation Charges for
each day during which such Service Interruption continues after such three (3) 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
Escalation Charges shall only be proportionate to the nature and extent of the
interruption of Tenant’s normal operations or ability to use the Premises.
Except if and to the extent any such failure of Landlord constitutes a default
of Landlord pursuant to Section 13.2 below, the rights granted to Tenant
under this Section 7.6 shall be Tenant’s sole and exclusive remedy
resulting from a failure of Landlord to provide services. For purposes hereof,
the term “Essential Services”
shall mean the following services: access to the Premises, water and
sewer/septic service, HVAC 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 (iii) hereof shall have been satisfied and
only during such times as each of such conditions shall exist.


 


ARTICLE VIII


REAL ESTATE TAXES


 


8.1  PAYMENTS ON
ACCOUNT OF REAL ESTATE TAXES.


 


(a)           For the purposes of this
Article, the term “Tax Year” shall mean each calendar year during the Term of
this Lease; and the term “Taxes” shall mean (i) all taxes, excises,
assessments (special or otherwise), levies, fees and all payments or
obligations to any governmental body or any 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, and (ii) the reasonable out-of-pocket expenses actually
incurred by Landlord in connection with any proceeding for abatement of any of
the foregoing items included in Taxes, provided Landlord prevails in such
abatement proceeding. Supplementing the foregoing sentence, Landlord agrees to
pay any special taxes or special assessments over the longest period permitted
and to include in the Taxes for any Tax Year only the installment amount of
such special taxes or special assessments (plus any interest, other than
penalty interest, payable thereon) required to be paid during the Tax Year in
question. There shall be excluded from Taxes all income, estate, succession,
inheritance and transfer taxes of Landlord. If and to the extent the Building
at any time becomes part of a larger project or development, and Taxes are not
separately allocated by the taxing authority among the various buildings in
such project or development, Landlord shall, in accordance with commercially
reasonable practices, allocate to the Building for each calendar year or
portion thereof during the Term an equitable portion of such Taxes.


 


(b)           Commencing January 1,
2006, in the event that for any reason, Taxes during any Tax Year shall exceed
Base Taxes, Tenant shall pay to Landlord, as an Escalation Charge, an amount
equal to (i) the excess of Taxes over Base Taxes for such Tax Year
multiplied by (ii) the Escalation Factor, such


 


23

















 


amount to be apportioned for any fraction of
a Tax Year in which the Commencement Date falls or the Term of this Lease ends.


 


(c)           Estimated payments by Tenant
on account of Taxes shall be made monthly on the first day of each and every
calendar month during the Term of this Lease and otherwise in the manner herein
provided for the payment of Basic Rent based on Landlord’s good faith estimate
of such Taxes for such Tax Year. The monthly amount so to be paid to Landlord
shall be sufficient to provide Landlord by the time real estate tax payments
are due a sum equal to Tenant’s required payments, as estimated by Landlord
from time to time, on account of Taxes for the then current Tax Year. Promptly
after the end of each calendar year and 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 along with copies of such tax bills. If
estimated payments theretofore made by Tenant for the Tax Year covered by such
bills exceed the required payments on account thereof for such Year, Landlord
shall credit the amount of overpayment against subsequent obligations of Tenant
on account of Basic Rent or Escalation Charges (or refund such overpayment
within thirty (30) days after the end of the Term 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 Year are greater than estimated
payments theretofore made on account thereof for such Year, Tenant shall make
payment to Landlord within thirty (30) days after being so advised by
Landlord.


 


8.2  ABATEMENT.  Upon the written request of Tenant, Landlord
will consider in good faith whether to contest or seek abatement of any Taxes
affecting the Premises. In the event Landlord receives a request from tenants
(including Tenant) occupying at least 60% of the rentable area of the Building,
Landlord shall contest or seek abatement of Taxes affecting the Premises. If
Landlord shall receive any tax refund or reimbursement of Taxes or sum in lieu
thereof with respect to any Tax Year, then out of any balance remaining thereof
after deducting Landlord’s expenses reasonably incurred in obtaining the same,
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) multiplied by the Escalation Factor; provided, that
in no event shall Tenant be entitled to receive more than the amount of any
payments actually made by Tenant on account of Taxes for such Tax Year pursuant
to Section 8.1 or to receive any payment if Taxes for any Tax Year are
less than Base Taxes.


 


8.3  ALTERNATE
TAXES.


 


(a)           If some method or type of
taxation shall replace the current method of assessment of real estate taxes in
whole or part, or the type thereof, or if additional types of taxes are imposed
upon the Property or Landlord, Tenant agrees that such taxes shall be deemed to
be and shall be Taxes hereunder and Tenant shall pay an equitable share of the
same as an additional charge computed in a fashion consistent with the method
of computation herein provided, to the end that Tenant’s share thereof shall
be, to the maximum extent practicable, comparable to that which Tenant would
bear under the foregoing provisions. In calculating the alternative tax,
Landlord shall assume that the Building and the Property are the only real
estate owned by Landlord.


 


(b)           If a tax (other than a
Federal or State net income tax) is assessed on account of the rents or other
charges payable by Tenant to Landlord under this Lease, Tenant agrees to pay
the same as an additional charge within ten (10) days after billing
therefor, unless applicable law prohibits the payment of such tax by Tenant.


 


24














 


ARTICLE IX


OPERATING EXPENSES


 


9.1  DEFINITIONS.  For the purposes of this Article, the
following terms shall have the following respective meanings:


 


Operating
Year: Each calendar year in which any part of the Term of this Lease shall
fall.


 


Operating
Expenses: The aggregate costs or expenses incurred by Landlord with respect to
the operation, administration, cleaning, repair, maintenance and management of
the Property including, without limitation, those items enumerated in Exhibit OC
annexed hereto, provided that, if during any portion of the Operating Year for
which Operating Expenses are being computed, the Building was not operated or
less than 95% of Building Rentable Area was occupied by tenants or if Landlord
is not supplying all tenants with the services and utilities being supplied
hereunder, actual Operating Expenses incurred shall be reasonably projected by
Landlord to the estimated Operating Expenses that would have been incurred if
the Building were fully occupied for such Year and such services and utilities
were being supplied to all tenants, and such projected amount shall, for the
purposes hereof, be deemed to be the Operating Expenses for such Year. If and
to the extent the Building becomes at any time part of a larger project or
development, and if services (e.g. snow removal and landscaping) which are then
Operating Expenses under this Lease are provided by Landlord to the exterior
common areas which are shared in common among the buildings in such project or
development, then Landlord shall, in accordance with commercially reasonable
practices, allocate to each building within the project or development
(including the Building) its equitable share of the cost of such services for
each calendar year.


 


9.2  TENANT’S
PAYMENTS.


 


(a)           Commencing on January 1,
2006, in the event that Operating Expenses for any Operating Year shall exceed
Base Operating Expenses, Tenant shall pay to Landlord, as an Escalation Charge,
an amount equal to (i) the excess of Operating Expenses for such Operating
Year over Base Operating Expenses, multiplied by (ii) the Escalation
Factor, such amount to be apportioned for any Operating Year in which the
Commencement Date falls or the Term of this Lease ends. Notwithstanding the
foregoing, Tenant’s share of Controllable operating Expenses (defined below) as
determined in accordance with this Section 9.2(a) shall not increase
by more than five percent (5%) over Tenant’s share of Controllable Operating
Expenses in the previous calendar year, including over Base Operating Expenses.
The term “Controllable Operating Expenses”
means the items of Operating Expenses for payroll, cleaning, and service
contracts for the Property, including electrical, HVAC, elevator, janitorial,
life/safety and landscaping contracts.


 


(b)           Estimated payments by Tenant
on account of Operating Expenses shall be made monthly on the first day of each
and every calendar month during the Term of this Lease based on Landlord’s good
faith estimate of Operating Expenses for such Operating Year (taking into consideration
the Operating Expenses for the prior Operating Year and any reasonably
anticipated increases), and otherwise in the manner 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 with a sum
equal to Tenant’s required payments, as estimated by Landlord from time to time
during each Operating Year (but not more than twice in any one 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 Operating Expenses for such Year. Landlord shall use reasonable
efforts to deliver such accounting within one hundred twenty (120) days
after the end of such Operating Year. If estimated payments theretofore made
for such Year by Tenant exceed Tenant’s required payment on account thereof for
such Year, according to such statement, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant with respect to Basic Rent
and Escalation Charges (or within thirty (30) days, refund such
overpayment if the Term of this Lease has ended and Tenant has no


 


25

















 


further obligation to Landlord); but, if the
required payments on account thereof for such Year are greater than the
estimated payments (if any) theretofore made on account thereof for such Year,
Tenant shall make payment to Landlord within 30 days after being so advised
by Landlord.


 


(c)           Tenant shall have the right
to examine, copy and audit Landlord’s books and records establishing Operating
Expenses for any Operating Year for a period of one (1) year following the
date that Tenant receives the statement of Operating Expenses for such
Operating Year from Landlord. Tenant shall give Landlord not less than ten (10) Business
Days’ prior notice of its intention to examine and audit such books and
records, and such examination and audit shall take place at such place within
Massachusetts as Landlord routinely maintains such books and records. As a
condition to performing any such examination, Tenant’s examiners shall be
required to execute and deliver to Landlord an agreement, in form reasonably
acceptable to Landlord, Tenant and such examiners, agreeing (i) to keep
confidential (with customary exceptions) any information which it discovers
about Landlord or the Building in connection therewith that is not otherwise “public”
information and (ii) to refrain from soliciting other tenants in the
Building. Such examination may be made only by Tenant, its employees and/or by
an independent certified public accounting firm approved by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed. Without limiting
Landlord’s approval rights, Landlord may withhold its approval of any examiner
that is being compensated on a contingent fee basis. All costs of the
examination and audit shall be borne by Tenant. If, pursuant to the audit, the
payments made for such Operating Year by Tenant exceed Tenant’s required
payment on account thereof for such Operating Year, 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
payments made by Tenant for such Operating Year are less than Tenant’s required
payment as established by the examination and audit, Tenant shall pay the
deficiency to Landlord within thirty (30) days after conclusion of the
examination and audit, and the obligation to make such payment for any period
within the Term shall survive expiration of the Term. If Tenant’s audit
demonstrates that Landlord’s annual statement of Operating Expenses overstated
Operating Expenses for such Operating Year by more than five percent (5%), then
Landlord shall pay Tenant’s out-of-pocket costs to perform such audit. If
Tenant does not elect to exercise its right to examine and audit Landlord’s
books and records for any Operating Year within the time period provided for by
this paragraph, Tenant shall have no further right to challenge Landlord’s
statement of Operating Expenses. If Landlord shall dispute Tenant’s accounting
and such dispute has not been settled by agreement, either party may submit the
dispute to arbitration in accordance with the commercial arbitration rules of
the American Arbitration Association within 90 days after giving of such
accounting. The decision of the arbitrators shall be final and binding on
Landlord and Tenant and judgment thereon may be entered in any court of
competent jurisdiction. Pending resolution by agreement or arbitration, Tenant
shall make any payment due shown by such accounting to be without prejudice to
Tenant’s position.


 


ARTICLE X


INDEMNITY AND PUBLIC LIABILITY INSURANCE


 


10.1  TENANT’S
INDEMNITY.  Except to the
extent arising from the negligence or willful misconduct of Landlord or its
agents or employees, to the maximum extent this agreement may be made effective
according to law, and subject to the provisions of Section 14.20, Tenant
agrees to indemnify and save harmless Landlord from and against all claims,
loss, cost, damage or expense 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 occurring outside of the Premises but on the Property where such
accident, damage or injury results or is claimed to have resulted from the
negligence or willful misconduct of Tenant or Tenant’s agents or employees or
independent contractors; or (iii) in connection with the use or management
of the Premises or of any business therein, or any thing or work whatsoever
done, or any condition created


 


26

















 


(other than by Landlord) in
the Premises; and, in any case, occurring after the date of this Lease until
the end 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 proceeding
brought thereon, and the defense thereof, including, without limitation,
reasonable attorneys’ fees and costs at both the trial and appellate levels.


 


10.2  LANDLORD’S
INDEMNITY.  Except to the
extent Tenant is required to indemnify Landlord pursuant to Section 10.1
above, to the maximum extent this agreement may be made effective according to
law, and subject to the provisions of Section 14.20, Landlord agrees to
indemnify and save harmless Tenant from and against all claims, loss, cost,
damage or expense of whatever nature arising from any accident, injury or
damage occurring on the Property where such accident, damage or injury results
or is claimed to have resulted from the negligence or willful misconduct of
Landlord or Landlord’s agents or employees or independent contractors; and, in
any case, occurring after the date of this Lease until the end 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 proceeding brought thereon, and the defense
thereof, including, without limitation, reasonable attorneys’ fees and costs at
both the trial and appellate levels.


 


10.3  GENERAL
LIABILITY 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 any Mortgagee whose identity 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.
Each such policy shall be written on an “occurrence” basis, and shall be in at
least the amounts of the Initial Public Liability Insurance specified in Section 1.3
or such greater amounts as are customary for prudent property owners in the
area in which the Property is located, as Landlord shall from time to time
request, but not more than once in any five year period (other than pursuant to
the reasonable request of any institutional mortgagee of the Property), with
deductibles not to exceed $10,000.00 for any one occurrence, and a certificate
thereof shall be delivered to Landlord.


 


10.4  TENANT’S RISK
AND PROPERTY DAMAGE INSURANCE. 
To the maximum extent this agreement may be made effective according to
law, neither Landlord nor Landlord’s insurers shall have any responsibility or
liability for any loss of or damage to Tenant’s Removable Property. Tenant
shall carry “Special Form” property insurance on a “replacement cost” basis,
with deductibles not to exceed $10,000.00 for any one occurrence insuring
Tenant’s Removable Property. The provisions of this Section 10.4 shall be
applicable from and after the execution of this Lease and until the end of the
Term of this Lease, and during such further period as Tenant may use or be in
occupancy of any part of the Premises or of the Building.


 


10.5  INJURY CAUSED
BY THIRD PARTIES.  To the maximum
extent this agreement may be made effective according to law, Tenant agrees
that Landlord shall not be responsible or liable to Tenant, or to those
claiming by, through or under Tenant, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the
Premises or any part of the Property or otherwise.


 


10.6  CERTIFICATES
OF INSURANCE.  Such insurance
shall be effected with insurers with a Best Rating of at least A-:VIII,
authorized to do business in the state wherein the Building is situated.


 


27

















 


Such insurance shall provide
that the insurer will endeavor to notify the holder of cancellation, but not
modification, of the policies listed on the certificate at least thirty
(30) days in advance by written notice to the named insured therein;
provided however, the failure to so notify shall not impose any liability on
the insurer. Notwithstanding the foregoing, Tenant agrees to notify Landlord of
any such cancellation or modification at least twenty (20) days before the
occurrence thereof. On or before the time Tenant and/or its contractors enter
the premises in accordance with this Lease and thereafter not less than fifteen
(15) days prior to the expiration date of each expiring policy,
certificates of the policies provided for in this Article X issued by the
respective insurers, together with evidence satisfactory to Landlord of the
payment of all premiums for such policies, shall be delivered by Tenant to
Landlord and upon request of Landlord, be delivered by Tenant to the holder of
any mortgage affecting the Premises.


 


10.7  LANDLORD’S
INSURANCE.  At all times
throughout the term, Landlord shall carry and maintain (a) commercial
general liability insurance applicable to the Building and the Property and its
appurtenances in at least the amounts required to be maintained by Tenant from
time to time, which insurance shall also insure Landlord’s indemnification
obligations under this Lease, and (b) “Special Form” property insurance on
a “replacement cost” basis insuring the Building above foundation walls
(including work, installations, improvements and betterments in the Premises),
the other improvements constructed on the Property, and all of Landlord’s
personal property on the Property and in the Building. Such insurance shall be
effected with insurers with a Best Rating of at least A-:VIII, authorized to do
business in the state wherein the Building is situated.


 


ARTICLE XI


LANDLORD’S ACCESS TO PREMISES


 


11.1  LANDLORD’S
RIGHTS.  Landlord and/or Agent
shall have the right to enter the Premises at all reasonable hours upon
reasonable prior notice (except in case of emergency) and at any time for an
emergency for the purpose of inspecting or making repairs to the same, and
Landlord and/or Agent shall also have the right to make access available at all
reasonable hours to prospective or existing mortgagees, purchasers or, in the
last twelve months of the Term, to tenants of all or any part of the Property.


 


ARTICLE XII


FIRE, EMINENT DOMAIN, ETC.


 


12.1  ABATEMENT OF
RENT.  If the Premises or the
Building shall be damaged by fire or casualty, Basic Rent and Escalation
Charges payable by Tenant shall abate proportionately for the period in which,
by reason of such damage, all or a portion of the Premises is rendered
untenantable having regard to the extent to which Tenant may be required to
discontinue Tenant’s use of all or a portion of the Premises, but such
abatement or reduction shall end if and when Landlord shall have substantially
restored the Premises (including any alterations, additions or improvements
made by Tenant pursuant to Section 5.2, to the extent that the same have
become the property of Landlord) to the condition in which they were prior to
such damage. If the Premises shall be affected by any exercise of the power of
eminent domain, Basic Rent and Escalation Charges 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 such fire, casualty or eminent domain.


 


12.2  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 Landlord’s
architect estimates that repair of such damage cannot be completed within
180 days from the date such restoration work would commence), or if any
part of the Building is taken by any exercise of the right of eminent domain
which would leave the remainder of the Building


 


28

















 


unsuitable or uneconomic for
use as an office building comparable to its use on the Commencement Date, 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 sixty (60) days after the occurrence
of such casualty or the effective date of such taking, whereupon this Lease
shall terminate 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.


 


12.3  TENANT’S
RIGHT OF TERMINATION; RESTORATION. 
In the event of (a) any fire or other casualty affecting the
Premises, or any portion of the Building that unreasonably adversely affects
Tenant’s use and occupancy of the Premises, and Landlord’s architect estimates
that repair of such damage cannot be completed within 180 days from the
date such restoration work would commence, or (b) a taking of any portion
of the Premises, the Building, and/or the Property that adversely affects
Tenant’s access to, and/or Tenant’s use and occupancy of, the Premises, Tenant
may elect to terminate this Lease by written notice to Landlord, delivered
within thirty (30) days after the date of such fire or other casualty, or
within thirty (30) days after notice of such taking. If this Lease shall
not be so terminated by Tenant, or by Landlord pursuant to Section 12.2,
Landlord shall thereafter use due diligence to restore the Premises, the
Building and/or the Property (including any alterations, additions or
improvements made by Tenant pursuant to Section 5.2, to the extent that
the same have become the property of Landlord) to the condition in which they
were prior to such damage or taking, provided that Landlord’s obligation shall
be limited to the amount of insurance proceeds (and any deductible amount)
available therefor (provided that Landlord maintains the insurance required to
be maintained by Landlord under this Lease), or any award available for such
taking in the event of a taking. If, for any reason, such restoration shall not
be substantially completed within two hundred seventy (270) days after the
date of such damage or taking (which 270-day period may be extended for such
periods of time as Landlord is prevented from proceeding with or completing
such restoration for any cause beyond Landlord’s reasonable control, but in no
event for more than an additional ninety (90) days), then 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). Upon the giving of such notice, this Lease shall cease and come to
an end thirty (30) days after the giving of such notice, without further
liability or obligation on the part of either party, unless, within such 30-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.


 


12.4  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 such taking,
damage or destruction, 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. 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 XIII


DEFAULT


 


13.1  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, Escalation Charges, additional charges or other charges hereunder
when due and such failure shall continue for five (5) full Business Days
after


 


29

















 


written notice from
Landlord, provided, however, if, in any twelve-month period, Landlord has given
to Tenant two (2) notices of a monetary default under this
clause (i), then, with respect to any subsequent failure to pay that
occurs during such twelve (12) month period after the giving of the second
(2nd) notice, Landlord shall not be obligated to give, and Tenant shall not be
entitled to receive, a notice, and a Default of Tenant shall be deemed to have
occurred immediately upon such subsequent failure; 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 as soon as
practicable and in any event 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; 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);


 


then in any such case 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, Landlord
being under no obligation to accept any cure of such Default of Tenant offered
by Tenant during such period prior to the effective date of such termination,
such period being provided solely to accommodate Tenant’s vacating of the
Premises. This Lease shall come to an end on the date of such notice 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.


 


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(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 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 60-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 10
Business Days from the date of the assumption; and (y) cure all
nonmonetary Defaults of Tenant hereunder within the time periods set forth
above in Section 13.1(a) from the date of the assumption;


 


(B)           compensate Landlord and any
other person or entity, or provide Landlord with Adequate Assurance that within
a reasonable period of time after the date of the assumption, it will
compensate Landlord and such other person or entity, for any actual 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; and


 


(C)           provide Landlord with
Adequate Assurance of Future Performance (as defined below) of all of Tenant’s
obligations under this Lease.


 


(c)           Intentionally Omitted.


 


(d)           For purposes only of
paragraph (b), 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, computed in accordance
with Articles 8 and 9;


 


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


 


(iii)          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 have sufficient funds to fulfill Tenant’s
obligations hereunder; and


 


(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, with respect
to an assignment to a person or entity that proposes to use the Premises for
purposes other than the Permitted Uses, if Landlord determines, in the exercise
of its reasonable business judgment, that the assignment of this Lease will not
result in a breach by Landlord of its obligations under 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


 


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to obtain consents or 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, that shows 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;


 


(g)           If this Lease shall have
been terminated as provided in this Article, or if any execution or attachment
shall be issued against Tenant or any of Tenant’s property whereupon the
Premises shall be taken or occupied by someone other than Tenant, 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.


 


(h)           In the event of any
termination, Tenant shall pay the Basic Rent, Escalation Charges and other sums
payable hereunder 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, the Basic Rent, Escalation Charges and other sums that would be
payable hereunder if such termination had not occurred, less the net proceeds,
if any, of any reletting of the Premises, after deducting all reasonable
expenses in connection with such reletting, including, without limitation, all
reasonable repossession costs, brokerage commissions, legal expenses, attorneys’
fees, advertising, alteration costs and expenses of preparation for such
reletting. Tenant shall pay such damages to Landlord monthly on the days which
the Basic Rent would have been payable hereunder if this Lease had not been
terminated.


 


(i)            At any time after such
termination, 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, Escalation
Charges and other sums as hereinbefore provided 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, discounted to present value using a discount rate
equal to the average yield to maturity of United States treasury instruments
having a maturity comparable to time period between the date of such
termination or reentry and the original expiration date of the Term of this
Lease.


 


(j)            In case of any Default by
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) may make such reasonable
alterations, repairs and decorations in the Premises as Landlord in its sole
judgment 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. Landlord shall in no event be liable in any way whatsoever for
failure to re-let the Premises, or, in the event that the Premises are re-let,
for failure to collect the rent under such re-letting. Tenant hereby expressly
waives any and all


 


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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. The
foregoing notwithstanding, in the event of termination of this Lease or
repossession of the Premises after a Default of Tenant, and provided Tenant has
not refused to reasonably work with Landlord in surrendering possession of the
Premises as required herein after such termination or repossession, Landlord
shall use commercially reasonable efforts to mitigate its damages hereunder,
provided that Landlord (i) shall not be obligated to show preference for
reletting the Premises over any other vacant space in the Building; (ii) may
divide the Premises, or to consolidate portions of the Premises with other
spaces, in order to facilitate such reletting, as Landlord deems appropriate,
(iii)may relet the whole or any portion of the Premises for any period, to any
tenant, and for any use and purpose, and upon such terms as it deems
appropriate, and may grant any rental or other lease concessions as it
reasonably deems advisable under prevailing market conditions, including free
rent; and (iv) Landlord’s obligation to mitigate damages shall be deemed
satisfied by its providing adequate information to a commercial broker as to
the availability of such space (based on a customary brokerage fee being earned
by such broker), having the Premises available for inspection by prospective
tenants during reasonable business hours, and by acceptance of a commercially
reasonable offer for the Premises (or reasonable portion thereof) from a
creditworthy person or entity based on a form of lease agreement which is
substantially the same as the form utilized for other space tenants in the
Building, without material change therefrom (and Landlord shall be under no
obligation to accept any offer other than a commercially reasonable offer from
a creditworthy person or entity at then going rental rates for the Building).


 


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


 


(l)            All reasonable costs and
expenses incurred by or on behalf of Landlord (including, without limitation,
attorneys’ fees and expenses at both the trial and appellate levels) in
enforcing its rights hereunder or occasioned by any Default of Tenant shall be
paid by Tenant.


 


13.2  LANDLORD’S
DEFAULT.  Landlord shall in no
event be in default in the performance of any of Landlord’s obligations
hereunder unless and until Landlord shall have failed to perform such
obligations within thirty (30) days, 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. The
foregoing shall not derogate from the rights and remedies provided to Tenant in
Section 7.6. Without limiting any other rights that Tenant may have under
this Lease, at law or in equity, Tenant expressly agrees that this Lease shall
be construed as though Landlord’s covenants contained herein are independent
and not dependent.


 


ARTICLE XIV


MISCELLANEOUS PROVISIONS


 


14.1  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
Permitted Uses; and Tenant further agrees that, in the event that Tenant shall
do any of the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as an
additional charge hereunder. Landlord represents that, as of the date of this
Lease, Tenant’s use of the Premises for the


 


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Permitted
Use, in accordance with the terms of this Lease, shall not require any increase
in the insurance premiums for the Premises or the Property.


 


14.2  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.


 


14.3  COVENANT OF
QUIET ENJOYMENT.  Tenant,
subject to the terms and provisions of this Lease, on payment of the Basic
Rent, Escalation Charges and additional charges and observing, keeping and
performing all of the other terms and provisions of this Lease on Tenant’s part
to be observed, kept and performed, shall lawfully, peaceably and quietly have,
hold, occupy and 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.


 


14.4  LANDLORD’S
LIABILITY.


 


(a)           Tenant specifically agrees
to look solely to Landlord’s interest in the Property, and the insurance and
sale proceeds, condemnation awards, rent and other income therefrom, for
recovery of any judgment from Landlord; it being specifically agreed that
neither Landlord (original or successor) nor any partner of Landlord (nor any
principal of any such partner) shall ever 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 Landlord’s successors in interest, or to take any
action not involving the personal liability of Landlord (original or
successor).


 


(b)           With respect to any services
or utilities to be furnished by Landlord to Tenant, Landlord shall in no event
be liable for failure to furnish the same when prevented from doing so by
strike, lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or failure whenever and for so
long as may be necessary by reason of the making of repairs or changes which
Landlord is required or is permitted by this Lease or by law to make or in good
faith deems necessary, or inability by the exercise of reasonable diligence to
obtain supplies, parts or employees necessary to furnish such services, or
because of war or other emergency, or for any other cause beyond Landlord’s
reasonable control, or for any cause due to any act or neglect of Tenant or
Tenant’s servants, agents, employees, licensees or any person claiming by,
through or under Tenant. Notwithstanding the foregoing, (A) Landlord shall
exercise reasonable diligence to eliminate the cause of any such interruption,
curtailment, stoppage or suspension, (B) Landlord shall secure, to
the extent commercially reasonable, other means of providing such services or
utilities on a temporary basis, and (C) Landlord shall perform any such
repair or replacement in such a manner so as to minimize any


 


34

















 


unreasonably interference with Tenant’s use
of the Premises. Landlord hereby acknowledges and agrees that the foregoing
provisions shall not derogate from Tenant’s remedies set forth in Section 7.6.


 


(c)           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. Except to the
extent arising as a result of any holdover of Tenant in the Premises, in no
event shall Tenant ever be liable to Landlord for any loss of business or any
other indirect or consequential damages suffered by Landlord from whatever
cause.


 


(d)           Whenever Tenant requests
Landlord’s consent or approval (whether or not provided for herein), Tenant shall
pay to Landlord, on demand, as an additional charge, any expenses incurred by
Landlord (including without limitation legal fees and costs, if any) in
connection therewith without limitation.


 


(e)           With respect to any repairs
or restoration which are required or permitted to be made by Landlord, the same
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. Landlord shall use commercially reasonable efforts to
perform any such work in a manner that will not unreasonably interfere with
Tenant’s use and occupancy of the Premises, and shall diligently pursue such
work to completion.


 


14.5  NOTICE TO
MORTGAGEE OR GROUND LESSOR. 
After receiving notice from any person, firm or other entity that it
holds a mortgage or a ground lease which includes the Premises, Tenant shall
give a copy of any notice of default of Landlord to such holder or ground
lessor (provided Tenant shall have been furnished with the name and address of
such holder or ground lessor), and the curing of any of Landlord’s defaults by
such holder or ground lessor shall be treated as performance by Landlord.


 


14.6  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 that, 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 seller-lessee provided
such purchaser-lessor enters into a non-disturbance agreement with Tenant, as
required by the provisions of Section 14.15. 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, upon assumption by such transferee of Landlord’s
obligations hereunder, Landlord shall thereafter be entirely freed and relieved
from the performance and observance of all covenants and obligations hereunder.


 


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14.7  RULES AND
REGULATIONS.  Tenant shall
abide by 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 applicable to other tenants of the Building. The current rules and
regulations in effect for the Building are attached hereto and made a part
hereof as Exhibit RR.
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 this Lease, the provisions of this
Lease shall prevail.


 


14.8  ADDITIONAL
CHARGES.  If Tenant shall fail
to pay when due any sums under this Lease designated as an Escalation Charge or
additional charge, Landlord shall have the same rights and remedies as Landlord
has hereunder for failure to pay Basic Rent.


 


14.9  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.


 


14.10  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, however, only such assigns as may be
permitted hereunder) and, if Tenant shall be an individual, upon and to his
heirs, executors, administrators, successors and permitted assigns. The
reference contained to successors and assigns of Tenant is not intended to
constitute a consent to assignment by Tenant.


 


14.11  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
so-called notice of lease in recordable form, complying with applicable law and
reasonably satisfactory to Landlord’s attorneys. 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.


 


14.12  NOTICES.  Whenever, by the terms of this Lease, notices
shall or may be given either to Landlord or to Tenant, such notice shall be in
writing and shall be sent by registered, certified or express mail, or by a
recognized commercial courier or delivery service, postage or delivery charges
prepaid, return receipt requested:


 


If intended for Landlord,
addressed to Landlord c/o Berkeley Investments, Inc., 121 High Street,
Boston, Massachusetts 02110 and marked “ATTN: Steve Brooks (or to such other
address or addresses as may from time to time hereafter be designated by
Landlord by like notice); or


 


If intended for Tenant,
addressed to Tenant at Tenant’s Original Address until the Commencement Date
and thereafter to the Premises, to the attention of the Chief Executive Officer
(or to such other address or addresses as may from time to time hereafter be
designated by Tenant by like notice).


 


All such notices shall be effective when
within three (3) days after depositing in the United States Mail or upon
delivery to such courier or the next day after deposit with such overnight delivery
service within the Continental United States.


 


14.13  WHEN LEASE
BECOMES BINDING.  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,


 


36

















 


and this document shall
become effective and binding only upon the execution and delivery hereof by
both Landlord and Tenant. All negotiations, considerations, representations and
understandings between Landlord and Tenant are incorporated herein and this
Lease expressly supersedes any 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.


 


14.14  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 the provisions hereof shall not be construed or interpreted for
or against either party, regardless of any rules of construction or
interpretation. 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. Tenant represents that (i) it has had the opportunity to review
this Lease and the terms and conditions herein set forth with sophisticated
legal counsel of Tenant’s choosing, and (ii) it has had the opportunity to
discuss and negotiate such terms and conditions with Landlord or Landlord’s
counsel, and (iii) this Lease as executed represents the results of such
review, discussions and negotiations.


 


14.15  RIGHTS OF
MORTGAGEE OR GROUND LESSOR.


 


(a)           This Lease shall be
subordinate to any mortgage or ground lease from time to time encumbering the
Premises, whether executed and delivered prior to or subsequent to the date of
this Lease, provided and on condition that the holder of such mortgage or
ground lease shall execute a subordination, non-disturbance and attornment
agreement (“SNDA”) in form and substance reasonably satisfactory to Tenant and
such holder; said SNDA shall provide, in part, that Tenant’s right to
possession of the Premises shall not be disturbed, and Tenant’s other rights
hereunder shall not be adversely affected by, any the exercise of any rights
under said mortgage or ground lease, whichever is applicable (including,
without limitation a foreclosure of such mortgage or encumbrance or a
termination of such ground lease) so long as there is no Default of Tenant under
this Lease. If this Lease is subordinated to any mortgage or ground lease and
the holder thereof (or successor) shall succeed to the interest of Landlord,
Tenant shall attorn to such holder in accordance with the terms of said SNDA
and this Lease shall continue in full force and effect between such holder (or
successor) (such holder hereinafter referred to as the “Successor Landlord”)
and Tenant.


 


(b)           This Lease is contingent
upon the execution and delivery of the SNDA by the holder(s) of the
existing mortgage(s) within forty-five (45) days after the execution
of this Lease. If such contingency is not satisfied within said forty-five
(45) day period, then Tenant shall have the right to terminate this Lease
by notice given to Landlord at any time after said forty-five (45) day
period. Said termination notice shall be effective on the tenth (10th) day
after the giving of such notice, unless this contingency is satisfied on or
before said tenth (10th) day.


 


14.16  ESTOPPEL
CERTIFICATE.  Recognizing that
both parties may find it necessary to establish to third parties, such as
accountants, banks, mortgagees, ground lessors, or the like, the then current
status of performance hereunder, either party, on the request of the other made
from time to time, will promptly furnish to Landlord, or the holder of any
mortgage or ground lease encumbering the Premises, or to Tenant, as the case
may be, a statement of the status of any matter pertaining to


 


37

















 


this Lease, including,
without limitation, acknowledgments that (or the extent to which) each party is
in compliance with its obligations under the terms of this Lease.


 


14.17  INTENTIONALLY
OMITTED.


 


14.18  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 so-called base rate in effect
from time to time at Bank of America, N.A. (but in no event more than 18% per
annum), as an additional charge.


 


14.19  HOLDING OVER.


 


(a)           Provided that no Default of
Tenant has occurred and is continuing, either at the time of exercise or the
time such extension commences, Tenant shall have the one-time option to extend
the Term of this Lease for an additional six (6) months after the
expiration of the Lease (the “Holdover Term”), upon all of the terms and
conditions of this Lease, by providing written notice to Landlord not later
than twelve (12) months prior to the expiration of the Term of this Lease.
The giving of such notice of extension by Tenant shall automatically extend the
Term of this Lease for the Holdover Term, and no instrument of renewal or
extension need be executed. In the event that Tenant fails to give such notice
to Landlord, this Lease shall automatically terminate at the end of the Term
then in effect, and Tenant shall have no further option to extend the Term of
this Lease.


 


(b)           Any holding over by Tenant
after the expiration of the Term of this Lease not effected by Tenant in
accordance with Paragraph (a) shall be treated as a daily tenancy at
sufferance at a rate equal to one and a half times the Basic Rent then in
effect plus Escalation Charges and other additional charges herein provided
(prorated on a daily basis) and shall otherwise be on the terms and conditions
set forth in this Lease as far as applicable. Without limiting the foregoing,
Tenant shall also be responsible for, and indemnify and hold Landlord harmless
from and against, all lost, cost and damage suffered by Landlord (including
without limitation loss of rental or loss of a tenant) as a result of any such
holding over.


 


14.20  WAIVER OF
SUBROGATION.  Notwithstanding
anything to the contrary contained in the Lease, insofar as, and to the extent
that, the following provision shall not make it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in the
locality in which the Property is located (even though extra premium may result
therefrom) Landlord and Tenant: (i) mutually agree that, with respect to
any damage to property, the loss from which is covered by insurance then being
carried by them, respectively, or would have been covered by insurance if said
party had maintained the insurance required under this Lease, the one carrying,
or obligated to carry, such insurance and suffering such loss releases the
other of and from, and forever waives, any and all claims with respect to such
loss, but only to the extent of the limits of insurance carried or required
with respect thereto, less the amount of any deductible; and (ii) mutually
agree that any property damage insurance carried by either shall provide for
the waiver by the insurance carrier of any right of subrogation against the
other.


 


14.21  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, excepting only (i) ordinary
wear and use and (ii) damage by fire or other casualty or as a result of
any exercise of the right of eminent domain. Tenant shall remove all of Tenant’s
Removable Property and shall repair any damages to the Premises or the Building
caused by such


 


38

















 


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.


 


14.22  INTENTIONALLY
OMITTED.


 


14.23  BROKERAGE.  Tenant warrants and represents that Tenant
has dealt with no broker in connection with the consummation of this Lease
other than the Brokers 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 (except any claim by the
Brokers).


 


14.24  GOVERNING
LAW.  This Lease shall be
governed exclusively by the provisions hereof and by the laws of the
Commonwealth of Massachusetts, as the same may from time to time exist.


 


14.25  BLINDS AND
DRAPES.  No blinds may be put
on or in any window or elsewhere if visible from the exterior of the Building,
nor may the building standard drapes or blinds be removed by Tenant. Tenant may
hangs its own drapes, provided that they shall not in any way interfere with
the building standard drapery or blinds or be visible from the exterior of the
Building and that such drapes are so hung and installed that when drawn, the
building standard drapery or blinds are automatically also drawn. Neither
Landlord’s name, nor the name of the Building, or the name of any other
structure erected therein shall be used without Landlord’s consent in any
advertising material (except on business stationery or as an address in
advertising matter), nor shall any such name, as aforesaid, be used in any
undignified, confusing, detrimental or misleading manner.


 


IN WITNESS WHEREOF, Landlord
and Tenant have caused this Lease to be duly executed, under seal, by persons
hereunto duly authorized, in multiple copies, each to be considered an original
hereof, as of the date first set forth above.


 


	
   

  	
   

  	
   

  	
  LANDLORD: CABOT ROAD PARTNERS, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  BERKELEY INVESTMENTS, INC., its general partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/ STEVE BROOKS

  	
   

  	
  By:

  	
  /s/ DONALD CUFF

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  	
  THE FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
  By:

  	
  /s/ ANDREW J. HAWLEY

  
	
   

  	
   

  	
   

  	
   

  	
  (Vice) President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Assistant) Treasurer

  



 


39

















 


EXHIBIT FP


(Floor Plan of the Premises)


 


[schematic diagrams of
second and third floors]


 


40

















 


EXHIBIT FP-1


(Floor Plan of the Expansion Premises)


 


[schematic diagram of first
refusal space—approximately 16,640 RSF]


 


41














 


EXHIBIT FP-2


(Floor Plan of the Storage Area)


 


[schematic diagram of
storage space—approximately 1,000 SF]


 


42

















 


EXHIBIT PP


(Plan of the Property)


 


[schematic diagram of site,
including bounding roadways]


 


43

















 


EXHIBIT OC


(Items Included in Operating Expenses)


 


Without limitation,
Operating Expenses shall include:


 


1.               All expenses (including any
sales or use tax) incurred by Landlord or Landlord’s agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and similar taxes, workmen’s compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and expenses imposed on
Landlord or Landlord’s agents pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord’s agents in connection
with the operation, administration, repair, maintenance, cleaning, management
and protection of the Property, and its mechanical systems including, without
limitation, day and night supervisors, property manager, accountants,
bookkeepers, janitors, carpenters, engineers, mechanics, electricians and
plumbers and personnel engaged in supervision of any of the persons mentioned
above; provided that, if any such employee is also employed on other property
of Landlord, such compensation shall be suitably prorated among the Property
and such other properties;


 


2.               The cost incurred by
Landlord of services, materials and supplies furnished or used in the
operation, administration, repair, maintenance, cleaning, management and protection
of the Property, including, without limitation, fees, if any, imposed upon
Landlord, or charged to the Property, by the state or municipality in which the
Property is located on account of the need of the Property for increased or
augmented public safety services;


 


3.               The cost of replacements for
tools and other similar equipment used in the repair, maintenance, cleaning and
protection of the Property, provided that, in the case of any such equipment
used jointly on other property of Landlord, such costs shall be suitably
prorated among the Property and such other properties;


 


4.               Where the Property is
managed by Landlord or an affiliate of Landlord, a sum equal to the amounts
customarily charged by management firms in the Boston area for similar properties,
but in no event more than four percent (4%) of gross annual income, whether or
not actually paid, or where managed by other than Landlord or an affiliate
thereof, the amounts accrued for management (not exceeding four percent of
gross annual income), together with, in either case, amounts accrued for legal
and other professional fees relating to the Property, but excluding such fees
and commissions paid in connection with services rendered for securing or
renewing leases and for matters not related to the normal administration and
operation of the Building;


 


5.               Premiums for insurance
against damage or loss to the Building from such hazards as shall from time to
time be generally required by institutional mortgagees in the Boston area for
similar properties, including, but not by way of limitation, insurance covering
loss of rent attributable to any such hazards, and public liability insurance
and premiums for fidelity bonds covering persons having custody or control over
funds or other property of Landlord relating to the Property;


 


6.               If, during the Term of this
Lease, Landlord shall make a capital expenditure for the purpose of complying
with any legal requirement enacted or promulgated after the date of this Lease
or for the purpose of updating any Building system in order to reduce Operating
Expenses, the total cost of which is not properly includable in Operating
Expenses for the Operating Year in which it was made, there shall nevertheless
be included in such Operating Expenses for the Operating Year in which it was
made and in Operating Expenses for each succeeding


 


44

















 


Operating Year the annual
charge-off of such capital expenditure; provided, however, with respect to
those capital expenditures incurred to reduce Operating Expenses, the annual
charge-off included in the Operating Expenses for any Operating Year shall not
exceed the actual savings realized by Landlord. Annual charge-off shall be
determined by dividing the original capital expenditure plus an interest factor, reasonably
determined by Landlord as being the interest rate then being charged for
long-term mortgages by institutional lenders on like properties within the
locality in which the Building is located, by the number of years of useful
life of the improvement made with the capital expenditure (except that with
respect to a capital expenditure for the purpose of saving Operating Expenses,
the number of years may be less than the useful life of the improvement to the
extent of such savings); and the useful life shall be otherwise determined
reasonably by Landlord in accordance with generally accepted accounting
principles and practices in effect at the time of making such expenditure; and


 


7.               Costs incurred by Landlord
for electricity, fuel, water and sewer use charges, and all other utilities
supplied to the Property, except for those paid for directly by tenants of the
Property.


 


Operating Expenses shall not
include, and therefore Landlord is not entitled to be reimbursed under this Lease
for, the following items: (i) depreciation on the Building or any other
improvement on the Property; (ii) costs of planning, designing, improving
or altering any tenant’s space; (iii) costs of relocating any tenant; (iv) expenses
of advertising, marketing and leasing space in the Building, including finders’
fees and real estate broker commissions, legal fees, fit-up costs,
contributions, credits, and buy-out costs; (v) costs for which Landlord is
otherwise reimbursed, but only to the extent of such other reimbursement, such
as, for example, expenses reimbursed by another tenant under the provisions of
such other tenant’s lease; (vi) costs of any work or service performed for
any other tenant to the extent such work or service is in excess of any work or
service which Landlord is obligated to furnish to Tenant; (vii) Landlord’s
general overhead and administrative expenses (exclusive of the management fee
referenced above); (viii) court costs and legal fees; (ix) wages of
any employee above the property manager; (x) except as otherwise expressly
permitted under clause 6 above, all expenditures that are considered to be
capital expenditures under GAAP; (xi) costs of repairs covered by warranty
or guaranty; (xii) costs of repairs and replacements incurred by reason of
fire or other casualty or caused by the exercise of the right of eminent domain
to the extent Landlord is reimbursed for such expenses from insurance proceeds
or any condemnation award and, with respect to those repairs and replacements
for which Landlord is not reimbursed, such costs shall be excluded to the
extent they would otherwise be excluded under this Exhibit OC;
(xiii) costs related to the financing or refinancing of the Building or
Property, including points, commissions and legal fees; (xiv) costs of
complying with any laws, including, without limitation, environmental laws in
effect as of the Commencement Date of this Lease; (xvi) contributions for
off site improvements; (xvii) contributions to reserves; (xviii) all
interest and amortization payments, and all fines and penalties; (xix) any
cost or charge billed to Landlord pursuant to a service contract, which cost or
charge, if incurred directly by Landlord, would be excluded from the Operating
Expenses; (xx) all rent paid under any other ground or superior lease of
the Building or Property; (xxiii) Taxes and all costs to contest Taxes;
(xxiv) any costs and expenses related to the cafeteria in the Building to
the extent reimbursed directly by the operator of such cafeteria or otherwise
offset by the income received by Landlord for such cafeteria; and
(xxv) any capital expenditures, except to the extent expressly permitted
under paragraph 6 above.


 


In the event any employee
whose wages (including fringe benefits and employment taxes) are included in
the Operating Expenses does not devote his/her entire time to the Building
and/or Property, then said wages shall be included only in proportion to the
amount of time spent working at the Building and/or Property. In addition, if
any service is provided by an affiliate or subsidiary of Landlord or managing
agent, the cost of such service shall not exceed the reasonable and customary
cost charged by an independent, reputable third party performing the same
services.


 


45

















 


EXHIBIT CS


(Cleaning Specifications)


 


A.    General


 


1.               All stone, ceramic, tile,
marble, terrazzo and other unwaxed flooring to be swept nightly on Business
Days, using approved dust-down preparation; wash flooring once a month.


 


2.               All linoleum, rubber,
asphalt tile and other similar types of flooring (that may be waxed) to be
swept nightly on Business Days, using approved dust-down preparation. Waxing,
if any, shall be done at Tenant’s expense.


 


3.               All carpeting and rugs to be
carpet swept or vacuum cleaned nightly on Business Days, as may be required.


 


4.               Hand dust and wipe clean all
furniture, files, fixtures and window sills nightly on Business Days;


 


5.               Dust interior of all waste
paper disposal cans and baskets nightly on Business Days; damp dust as
necessary.


 


6.               Wash clean all water coolers
nightly on Business Days;


 


7.               Dust all door and other
ventilating louvers within reach, as necessary.


 


8.               Dust all telephones as
necessary.


 


9.               Sweep all private stairway
structures nightly on Business Days.


 


10.         Wipe clean all bright work
weekly.


 


11.         Interior and exterior of
metal elevator car and hatch doors, including saddles, to be properly cleaned
and treated as necessary.


 


12.         The parties agree and
acknowledge that, despite reasonable precautions in selecting cleaning and
maintenance contractors and personnel, any property or equipment in the
premises of a delicate, fragile or vulnerable nature may nevertheless be
damaged in the course of cleaning and maintenance services being performed.
Accordingly, Tenant shall take reasonable protective precautions with such
property and equipment (including, without limitation, computers, or other data
processing components or equipment and optical or electronic equipment, etc.),
e.g. housing the property and equipment in a separate, locked room, so as to
render it inaccessible to the Building’s cleaning personnel.


 


B.    Lavatories
(Building)


 


1.               Sweep and wash all lavatory
floors nightly on Business Days, wash and polish all mirrors, powder shelves,
bright work and enameled surfaces in lavatories, weekly.


 


2.               Scour, wash and disinfect
all basins, bowls and urinals throughout all lavatories nightly on Business
Days.


 


3.               Wash all toilet seats
nightly on Business Days.


 


4.               Hand dust and clean all
partitions, tile wall dispensers and receptacles in all lavatories nightly on
Business Days.


 


5.               Empty paper towel
receptacles and transport wastepaper from the demised premises nightly on
Business Days.


 


6.               Fill toilet tissue holders
nightly on Business Days.


 


46

















 


7.               Empty sanitary disposal
receptacles nightly on Business Days.


 


8.               Wash interior of waste cans
and receptacles at least once a week.


 


9.               Thoroughly wash all wall
tile and stall surfaces as often as necessary but in no event less than once
every two weeks.


 


10.         Fill soap dispensers and
paper towel dispensers.


 


C.             High
Dusting


 


Do
all high dusting quarterly, which includes the following:


 


1.               Dust clean all vertical
surfaces, such as walls, partitions, doors and bucks and other surfaces not
reached in nightly cleaning.


 


2.               Dust clean all pipes,
ventilating and air conditioning louvers, ducts, high moldings and other high
areas not reached in nightly cleaning.


 


3.               Dust all lighting fixtures,
including glass or plastic enclosures (exterior only).


 


D.    Window Cleaning


 


1.               All windows to be cleaned
inside and outside, two times a year.


 


2.               Tenants’ entrance doors and
lobby glass to be spot-cleaned daily on Business Days.


 


3.               All other Tenant interior
partition glass and glass doors are to be cleaned at Tenant’s request and cost.


 


E.     Day Porters


 


1.               Service, during Business
Days all public and operating space throughout the Building.


 


2.               Keep elevator cars clean and
neat during the day on Business Days.


 


3.               Insert toilet tissue in
lavatories as necessary on Business Days.


 


4.               Keep staircases policed as
necessary on Business Days.


 


5.               Fill soap dispensers and
paper towel dispensers on Business Days.


 


6.               Police all Buildings’ men’s
and ladies’ toilets during the day on Business Days.


 


F.     Exterminating Services


 


Provide exterminating services by a licensed operator once a month
throughout public space and vacant tenant space in the Building.


 


47

















 


EXHIBIT TW


(Tenant’s Work Requirements)


 


A.    General


 


1.               All alterations,
installations or improvements (“Alterations”) to be made by Tenant in, to or
about the Premises shall be made in accordance with the requirements of this Exhibit and
by contractors or mechanics approved by Landlord.


 


2.               Tenant shall, prior to the
commencement of any work, submit for Landlord’s written approval, complete
plans for the Alterations, which plans meet the requirements set forth in Exhibit PR.
Drawings are to be complete with full details and specifications for all of the
Alterations.


 


3.               Alterations must comply with
the Building Codes in effect for the City of Medford and the requirements, rules and
regulations and any other governmental agencies having jurisdiction.


 


4.               No work shall be permitted
to commence without the Landlord being furnished with a valid permit from the
City of Medford Building Department and/or other agencies having jurisdiction.


 


5.               All demolition, removals or
other categories of work that in Landlord’s reasonable judgment may inconvenience
other tenants or disturb Building operations, must be scheduled and performed
before 8:00 a.m. or after 6:00 p.m. and Tenant shall provide the
Building manager with at least 48 hours’ notice prior to proceeding with
such work.


 


6.               All inquiries, submissions,
approvals and all other matters shall be processed through the Building
manager, and shall be in writing.


 


B.    Prior to Commencement of Work


 


1.               Tenant shall submit to the
Building manager a written request to perform the work. The request shall include
the following enclosures:


 


(i)             A list of Tenant’s
contractors and/or subcontractors for Landlord’s approval, including afterhours
emergency contractor numbers.


 


(ii)          Four complete sets of plans
and specifications properly stamped by a registered architect and/or
professional engineer and meeting the requirements set forth in Exhibit PR.


 


(iii)       A properly executed building
permit application form.


 


(iv)      Four executed copies of the
Insurance Requirements agreement in the form attached to these Tenant’s Work
Requirements from Tenant’s contractor and if requested by Landlord from the
contractor’s subcontractors.


 


(v)         Contractor’s and
subcontractor’s insurance certificates including an indemnity in accordance
with the Insurance Requirements agreement.


 


2.               Within ten (10) business
days, Landlord will return the following to Tenant:


 


(i)             Two sets of plans approved
or a disapproval with specific comments as to the reasons therefor (such
approval or comments shall not constitute a waiver of Building Department
approval or approval of other governmental agencies).


 


(ii)          Two fully executed copies of
the Insurance Requirements agreement.


 


3.               Tenant shall obtain a
building permit from the Building Department and necessary permits from other
governmental agencies. Tenant shall be responsible for keeping current all
permits. Tenant shall submit copies of all approved plans and permits to
Landlord and shall post the


 


48

















 


original permit on the
Premises prior to the commencement of any work. All work, if performed by a
contractor or subcontractor, shall be subject to reasonable supervision and
inspection by Landlord’s representative. Such supervision and inspection, to
the extent that the work may affect the Building’s mechanical and electrical
systems, shall be at Tenant’s sole expense and Tenant shall pay Landlord’s
reasonable charges for such supervision and inspection.


 


C.    Requirements and Procedures


 


1.               All structural and floor
loading requirements shall be subject to the prior approval of Landlord’s
structural engineer, with cost of such review to be paid by Tenant.


 


2.               All mechanical (HVAC,
plumbing and sprinkler) and electrical requirements shall be subject to the
approval of Landlord’s mechanical and electrical engineers and all mechanical
and electrical work shall be performed by contractors approved by Landlord.
When necessary, Landlord will require engineering and shop drawings, which
drawings must be approved by Landlord before work is started. Drawings are to be
prepared by Tenant and all approvals shall be obtained by Tenant.


 


3.               Elevator service for
construction work shall be charged to Tenant at standard Building rates which
will include the cost of operators and supervisory staff. Prior arrangements
for elevator use shall be made in writing at least 48 hours in advance
with Building manager by Tenant. No material or equipment shall be carried
under or on top of elevators. If an operating engineer or master mechanic is
required by any union regulations, such engineer or master mechanic shall be
paid for by Tenant.


 


4.               If shutdown of risers and
mains for electrical, HVAC, sprinkler and plumbing work is required, such work
shall be supervised by Landlord’s representative at Tenant’s cost. No work will
be performed in Building’s mechanical or electrical equipment rooms without
Landlord’s approval and under Landlord’s supervision.


 


5.               Tenant’s contractor shall:


 


(i)             have a responsible
superintendent or foreman on the Premises at all times;


 


(ii)          police the job at all times,
continually keeping the Premises orderly;


 


(iii)       maintain cleanliness and
protection of all areas, at all times, including elevators and lobbies,
building Common Areas, and loading areas.


 


(iv)      protect the front and top of
all peripheral HVAC units and thoroughly clean them at the completion of work;


 


(v)         block off supply and return
grills, diffusers and ducts to keep dust from entering into the Building air
conditioning system;


 


(vi)      avoid the disturbance of
other tenants; and


 


(vii)   fully abide by all building
rules, policies and regulations.


 


6.               If Tenant’s contractor is
negligent in any of its responsibilities and if, after notice to Tenant no
corrective action is taken, Landlord may, but shall not be obligated to, engage
other contractors to perform the Alterations. Tenant shall be charged for
corrective work.


 


7.               All equipment and
installations must be equal to the standards set forth in Exhibit BS. Any
deviation from such standards will be permitted only if indicated or specified
on the plans and specifications and approved by Landlord.


 


49

















 


8.               A properly executed air
balancing report signed by an independent professional engineer shall be
submitted to Landlord upon the completion of all HVAC work for approval.


 


9.               Upon completion of the
Alterations and prior to taking occupancy, Tenant shall submit to Landlord a
permanent certificate of occupancy and final approval by the other governmental
agencies having jurisdiction.


 


10.         Tenant shall submit to Landlord
a final “as-built” set of sepia drawings showing all items of the Alterations
in full detail.


 


11.         Additional and differing
provisions in the Lease, if any, will be applicable and will take precedence.


 


12.         Any plan or design approval
rights reserved to or exercised by Landlord hereunder are for the sole and
exclusive benefit of Landlord to ensure compatibility of such work with
Building systems and Building standards, and such approval does not constitute
any representation or warranty whatsoever as to the adequacy, correctness,
efficiency or compliance with applicable law of such plan or design or the work
shown thereon.


 


50














 


EXHIBIT IR


(Contractor’s Insurance Requirements)


 


Building: One Cabot Road, Medford,
Massachusetts


 


Tenant:


 


Premises:


 


The undersigned contractor
or subcontractor (“Contractor”) has been hired by the tenant or occupant
(hereinafter called “Tenant”) of the Building named above or by Tenant’s
contractor to perform certain work (“Work”) for Tenant in the Premises
identified above. Contractor and Tenant have requested the undersigned landlord
(“Landlord”) to grant Contractor access to the Building and its facilities in
connection with the performance of the Work and Landlord agrees to grant such
access to Contractor upon and subject to the following terms and conditions:


 


1.               Contractor agrees to
indemnify and save harmless the Landlord (and, if Landlord is a general or
limited partnership, each of the partners thereof), Agent, Berkeley Investment, Inc.
and their respective officers, employees and agents and their affiliates,
subsidiaries and partners, and each of them, from and with respect to any
claims, demands, suits, liabilities, losses and expenses, including reasonable
attorneys’ fees, arising out of or in connection with the Work (and/or imposed
by law upon any or all of them) because of personal injuries, including death
at any time resulting therefrom and loss of or damage to property, including
consequential damages, whether such injuries to person or property are claimed
to be due to negligence of the Contractor, Tenant, Landlord or any other party
entitled to be indemnified as aforesaid except to the extent specifically
prohibited by law (and any such prohibition shall not void this Agreement but
shall be applied only to the minimum extent required by law).


 


2.               Contractor shall provide and
maintain at its own expense, until completion of the Work, the following
insurance:


 


(a)          Workmen’s Compensation and
Employers, Liability Insurance covering each and every workman employed in,
about or upon the Work, as provided for in each and every statute applicable to
Workmen’s Compensation and Employers’ Liability Insurance.


 


(b)         Comprehensive General
Liability Insurance including coverages for Products/Completed Operations,
Broad Form Property Damage and Contractual Liability (to specifically
include coverage for the indemnification clause of this Agreement), all listing
Landlord as an additional insured, for not less than the following limits:


 


	
  Personal Injury:

  	
  $1,000,000 per person

  $2,000,000 per occurrence

  
	
   

  	
   

  
	
  Property Damage:

  	
  $1,000,000 per occurrence

  $2,000,000 aggregate

  



 


(c)          Comprehensive Automobile
Liability Insurance (covering all owned, non-owned and/or hired motor vehicles
to be used in connection with the Work) for not less than the following limits:


 


	
  Bodily Injury:

  	
  $1,000,000 per person

  $2,000,000 per occurrence

  
	
   

  	
   

  
	
  Property Damage:

  	
  $1,000,000 per occurrence

  $2,000,000 aggregate

  



 


Contractor shall furnish a
certificate from its insurance carrier or carriers to the Building office
before commencing the Work, showing that it has complied with the above
requirements regarding


 


51

















 


insurance and providing that
the insurer will give Landlord ten (10) days’ prior written notice of the
cancellation of any of the foregoing policies.


 


3.               Contractor shall require all
of its subcontractors engaged in the Work to provide the following insurance:


 


(a)          Comprehensive General
Liability Insurance including Protective and Contractual Liability coverages
with limits of liability at least equal to the limits stated in
paragraph 2(b).


 


(b)         Comprehensive Automobile
Liability Insurance (covering all owned, non-owned and/or hired motor vehicles
to be used in connection with the Work) with limits of liability at least equal
to the limits stated in paragraph 2(c).


 


Upon the request of
Landlord, Contractor shall require all of its subcontractors engaged in the
Work to execute an Insurance Requirements agreement in the same form as this
Agreement.


 


Agreed to and executed this     day
of
                               
,
              .


 


	
   

  	
   

  	
  Contractor:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  



 


52

















 


EXHIBIT BS


(Building Standards)


 


TURNKEY EXHIBIT


Building Standard Materials and Turnkey Scope


 


Landlord will provide a
turnkey buildout of Tenant’s Premises at Landlord’s expense substantially in
accordance with the following scope definition and floor plans dated August 5,
2004 and labeled Schematic Design prepared by Fuller Associates (“Preliminary
Plan”) attached hereto and incorporated herein as part of this Exhibit BS.
The tenant improvements will be constructed with the building standard
materials described below. Quantities will be defined by the Delineation of
Turn-key Scope and Tenant Responsibility Matrix and approved Tenant plans.


 


	
   

  	
   

  	
   

  	
  Turn-key

  Scope

  	
   

  	
  Tenant

  Cost

  	
   

  
	
  Preparation
  of Premises for Tenant Improvements

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Landlord to remove at
  Landlord’s expense existing tenant improvements, including all existing
  tele/data cabling, as required to provide the new tenant improvements
  described herein.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Landlord to furnish and
  install at Landlord’s expense all partitions to demise the Premises, 21/2" metal studs at 16" on center with one
  (1) layer of 5/8" gypsum board on one side and one
  (1) layer of 5/8" gypsum board on the other. Demising
  partitions will extend from floor to underside of structure above, insulated
  transfer ducts to be provided subject to requirements of the building air
  conditioning system, and the partition will be filled with 3" compressed
  fiberglass sound insulation.

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  c.

  	
  Landlord to provide all
  material and labor at Landlord’s expense to segregate the fire protection,
  HVAC, fire alarm, and electrical systems as required due to the demising of
  the Premises.

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  d.

  	
  Landlord to demolish and
  dispose of existing systems furniture and other equipment and debris
  remaining in the Premises.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Finish
  Carpentry

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Provide new standard color
  plastic laminate exterior and interior finish upper and lower cabinets with
  adjustable interior shelves at Pantries, Cafes and Kitchen.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  A closet shelf and coat
  rod will be provided at each coat room and/or closet.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Standard color plastic
  laminate exterior and interior finish upper and lower cabinets with
  adjustable interior shelves at Copy/Fax, areas and Mail Rooms.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  Tenant to supply systems
  furniture.

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  e.

  	
  Reception desk.

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  f.

  	
  Provide new standard color
  plastic laminate phone carrels and coat rack at Training area Phones/Coats.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  g.

  	
  Demo and dispose of
  ceilings in the existing auditorium and boardroom on the second floor.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  h.

  	
  Repair window sills where
  damaged or altered for walls that have been demolished.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rough
  Carpentry

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  One (1) 4'x 8'
  plywood backboard mounted partition in MIS rooms to be provided for Tenant’s
  tele/data and security system equipment.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Blocking within partitions
  to be provided as required for Turnkey work.

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


53

















 


	
  c.

  	
  Raised flooring at 3rd
  floor auditorium as required for elevated seating.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  Provide design and support
  of dense file system at File Room, 2W.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Doors &
  Frames & Hardware

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Tenant standard doors
  shall consist of the following:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  All doors within a single
  premises will be 3'0" × 8'0" solid core wood doors or equivalent
  with mahogany veneer (finish to match doors on 2nd Floor), 13/4" thick and shall receive a factory clear
  finish. Oak doors refinished to mahogany will not be accepted. Door frames
  will be hollow metal.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Hardware will include four
  (4) butts, one (1) standard duty mortise latch set, and one
  (1) floor-mounted door stop. Standard duty mortise locksets to be
  provided at doors to the common corridor. All office doors to receive one
  (1) coat hook. Landlord will be responsible to match existing hardware
  and replace any missing hardware.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Closers to be provided at
  doors to the common corridor, cafes, pantries, copy/fax areas and IT rooms.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  Landlord will provide
  entry doors as shown on plans.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  e.

  	
  Where doors have had
  multiple hardware/locks removed, door shall be replaced with a new door and
  appropriate door hardware. Plating of core holes will not be acceptable.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Partitions

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The following building
  standard materials will be provided by Landlord:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Interior partitions (i.e.
  partitions within the a single Premises) will be 21/2" metals studs 24" on center with one
  (1) layer of 5/8" gypsum board on each side. Partitions will
  be built to 6" above the ceiling.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Walls that are existing to
  remain shall be patched and repaired to receive new finishes.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ceiling

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Building standard ceilings
  shall be 2'0" × 2'0" reveal edge textured acoustic lay-in tile,
  Celotex LeBaron, or equal. Ceiling grid shall match existing.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  ACT shall be consistent
  throughout. Patterned or embossed ACT shall be replaced to match existing
  tile in open areas.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Flooring

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Landlord will provide a
  $25/sy allowance for the total installed cost of the carpet, exclusive of any
  floor leveling or preparation that may be required.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Standard VCT will be
  provided in pantries, kitchen and kitchen areas of cafes. It shall also be
  provided at storage and file rooms, as copy/fax rooms.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Existing VCT that remains
  as shown on plans shall be stripped and re-sealed.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  Anti-static VCT to be
  provided in new MIS or IS rooms, as shown on plans.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  e.

  	
  4" vinyl base will be
  provided on all partitions.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  f.

  	
  Base building restrooms
  contained within the Premises are to receive new carpet (where carpet currently
  exists) complementary to Tenant finishes and existing restroom fixtures.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Painting
  and Wall Covering

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  All wall surfaces and
  ceiling soffits shall receive two (2) coats of eggshell finish latex
  paint. Color selection will be made from a mutually agreed upon color palette
  with not more than one (1) color per office.

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


54

















 


	
  b.

  	
  All existing interior
  hollow metal door frames will receive two (2) coats of semi-gloss
  enamel.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Base building restrooms
  contained within the Premises are to receive new wall finishes complementary
  to Tenant finishes and existing restroom fixtures.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialties

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Fire extinguishers and
  cabinets to be provided as required per Code.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Perimeter blinds to be in
  good working order with missing slats replaced.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Damaged window sills
  repaired and sills washed down throughout.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  In-ceiling, electric
  projection screens shall be provided at all training and conference rooms
  seating 8 or more.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  e.

  	
  LL to confirm as
  functional and/or repair as needed the automatic blackout shades in the third
  floor auditorium space. LL to provide any equipment required to operate said
  shades in a complete and functional manner.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Appliances

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Appliances to be provided
  as shown on plans.

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fire
  Protection

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  All existing fire
  sprinkler heads to be reused and relocated to center of ceiling tiles as
  required by reflected ceiling plan. New heads with swing arms to be provided
  as required per Code.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Existing Inergen system to
  be tested, adjusted and recharged as necessary for reuse at existing Data
  Center room.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Deactivated Intergen
  system to be tested, adjusted and tanks provided and charged as necessary to
  reactive for reuse at existing room.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Plumbing

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  Landlord will provide a
  stainless steel sink with hot and cold water at the pantries, kitchen, cafes
  and servery. A point of use hot water heater will be sized for the sink
  requirement and installed in an adjacent base cabinet. Tees for connection of
  water purification systems, refrigerators, and ice makers shall be provided
  at the sink.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  New restrooms are to be
  provided on Floors 2 and 3 as shown on plans, fixtures and level of finish to
  match base building standard.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HVAC

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Landlord will provide
  a fully functional HVAC system that will include the following:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  HVAC system consists of
  air handling units and interior VAV boxes. One (1) VAV box and one
  (1) DDC sensor will be provided per 1,500 square feet of interior usable
  space, mail room, and each conference room. One (1) DDC sensor to be
  provided for each 800 useable square feet of space abutting the exterior
  windows. VAV boxes to be located so to not be above private offices or
  conference rooms.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Supply air on the interior
  shall be provided through low pressure duct work, ceiling- mounted diffusers,
  with concealed spline (or equal). Return air will be into a ceiling return
  air plenum through ceiling- mounted grills, (or equal).

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Provide supplemental
  cooling to Data Center, Engineering, Development Staging, IT and MIS Rooms,
  as shown on drawings.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  Provide supplemental
  cooling to Printing rooms (2W, west of Café)

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


55

















 


	
  Electrical

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Landlord will provide
  a fully functional generator based electrical system based on the following:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  The lighting will be
  (2) 2x2 recessed direct/indirect fluorescent parabolic fixtures.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  One (1) switch or
  occupancy sensor will be provided in each individual room, as required by
  Code.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  c.

  	
  Provide occupancy
  sensors/switching in open areas, as required by Code.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  d.

  	
  Duplex outlets to be provided
  in open areas as required for cleaning. Two duplex outlets to be provided at
  each office and enclosed room. Furniture feeds to be provided as required on
  Fit Plan.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  e.

  	
  Provide dedicated,
  grounded, surge protected power as required at Data Center, Engineering,
  Development Staging, IT and MIS Rooms and Printing Areas, as shown on
  drawings.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  f.

  	
  One (1) flush
  poke-through receptacle providing both electrical and tele/data feeds to be
  provided in Conference Rooms.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  g.

  	
  If required, transformers
  and panelboards located in electrical closet located within the base building
  electrical closets to supply the Premises.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  h.

  	
  All exit signs, fire alarm
  devices, emergency egress lighting, and wiring required per Code will be
  provided. Existing fire alarm panel to be reused.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  i.

  	
  Provide floor cores and
  conduit as required to supply conference room floor outlets and systems
  furniture connections where wiring is not contained within the Premises
  (e.g., Second floor space).

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecom,
  Security, and Audio/Visual Systems

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  a.

  	
  One (1) plaster ring
  with pull string to above the finish ceiling to be provided at each private
  office, interview room, reception desk, copier and LAN room. Two
  (2) plaster rings with pull strings to above the finish ceiling to be
  provided at conference room.

  	
   

  	
  X

  	
   

  	
   

  	
   

  
	
  b.

  	
  Tel/Data wiring

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Security

  	
   

  	
   

  	
   

  	
  X

  	
   

  
	
  a.

  	
  One (1) plaster ring
  with pull string to above the finish ceiling to be provided at each card
  reader, camera location or door contact as designated on plan.

  	
   

  	
  X

  	
   

  	
   

  	
   

  



 


56

















 


EXHIBIT PR


(Tenant Plan Requirements)


 


Whenever Tenant shall be
required by the terms of the Lease to submit plans to Landlord in connection
with any improvement or alteration to the Premises, such plans shall include at
least the following:


 


1.               Floor plan indicating
location of partitions and doors (details required of partition and door types)
and a furniture plan indicating the proposed use of the Premises.


 


2.               Location of standard
electrical convenience outlets and telephone outlets.


 


3.               Location and details of
special electrical outlets; e.g., photocopiers, etc.


 


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


 


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


 


6.               Location and specifications
of floor covering, paint or paneling with paint colors referenced to standard
color system.


 


7.               Finish schedule plan
indicating wall covering, paint, or paneling with paint colors referenced to
standard color system.


 


8.               Details and specifications
of special millwork, glass partitions, rolling doors and grilles, blackboards,
shelves, etc.


 


9.               Hardware schedule indicating
door number keyed to plan, size, hardware required including butts, latchets or
locksets, closures, stops, and any special items such as thresholds,
soundproofing, etc. Keying schedule is required.


 


10.         Verified dimensions of all
built-in equipment (file cabinets, lockers, plan files, etc.)


 


11.         Location and weights of
storage files.


 


12.         Location of any special
soundproofing requirements.


 


13.         Location and details of
special floor areas exceeding 50 pounds of live load per square foot.


 


14.         All structural, mechanical,
plumbing and electrical drawings, to be prepared by the base building
consulting engineers, necessary to complete the Premises in accordance with
Tenant’s Plans.


 


15.         All drawings to be uniform
size (30" × 46") and shall incorporate the standard project
electrical and plumbing symbols and be at a scale of 1/8" = 1' or larger.


 


16.         All drawing shall be stamped
by an architect (or, where applicable, an engineer) licensed in the
Commonwealth of Massachusetts and without limiting the foregoing, shall be
sufficient in all respects for submission to the City of Medford Inspectional
Services Department in connection with a building permit application.


 


17.         Landlord’s approval of the
plans, drawings, specifications or other submissions in respect of any work,
addition, alteration or improvement to be undertaken by or on behalf of Tenant
shall create no liability or responsibility on the part of Landlord for their
completeness, design sufficiency or compliance with requirements of any
applicable laws, rules or regulations of any governmental or
quasi-governmental agency, board or authority.


 


57

















 


EXHIBIT CL


(Commencement Letter)


 


CABOT ROAD PARTNERS LLC


121 High Street


Boston, MA 02110


 


[Name of Contact]


[Name of Tenant]


One Cabot Road


Medford, MA


 


	
  RE:

  	
  [Name of Tenant]

  
	
   

  	
  [Premises Rentable Area and Floor] One Cabot Road, Medford

  



 


Dear [Name of Contact]:


 


Reference is made to that
certain Lease [and Leasehold Improvements Agreement], both dated as of                    
, 19    , between Cabot Road Partners LLC as Landlord and
                    
as Tenant, with respect to approximately square feet of space on the            
floor of One Cabot Road, Medford, Massachusetts.


 


In accordance with Section 4.1
of the Lease, this is to confirm that the Commencement Date of the term of such
Lease occurred on                     
, that the Rent Commencement Date shall occur on
                          
and that the Initial Term of such Lease shall expire on                              
.. If the foregoing is in accordance with your understanding, would you kindly
execute this letter in the space provided below, and return the same to us for
execution by Landlord, whereupon it will become a binding agreement between us.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LANDLORD: CABOT ROAD PARTNERS, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  (Vice) President

  



 


58

















 


	
  Attest:

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  (Assistant) Treasurer

  
	
  Accepted and Agreed:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Name of Tenant]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  	
   

  	
   

  



 


59














 


EXHIBIT AP


LOCATION OF ADDITIONAL PARKING SITE


 


60

















 


EXHIBIT SP-1


DATA CENTER SPACE PLAN


 


[schematic diagram of
third-floor data center]


 


61

















 


EXHIBIT SP-2


PREMISES SPACE PLAN


 


[schematic diagrams of
second and third floor space plans]


 


62

















 


EXHIBIT ES


PLAN OF TENANT’S EXTERIOR SIGNAGE


 


[schematic diagram of
exterior sign location]


 


63

















 


EXHIBIT RR


RULES AND REGULATIONS


 


1.     The sidewalks, halls,
passages, exits and entrances of the Building shall not be obstructed by Tenant
or used by it for any purpose other than for ingress to and egress from the
Premises. The halls, passages, exits, entrances, elevators and stairways are
not for the use of the general public, and Landlord shall in all cases retain
the right to control and prevent access thereto of all persons whose presence
in the judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building and its tenants, provided that nothing
herein confined shall be construed to prevent such access to person with whom
Tenant normally deals in the ordinary course of its business, unless such
persons are engaged in illegal activities. Tenant shall not go upon the roof of
the Building, except in areas that Landlord may designate as “Common Areas”
from time to time.


 


2.     The Premises shall not be
used for lodging or sleeping and no cooking shall be done or permitted by
Tenant on the Premises except that the preparation of coffee, tea, hot
chocolate and similar items for Tenant and its employees shall be permitted.


 


3.     Tenant shall not employ any
person or persons other than the cleaning contractor of Landlord for the
purpose of cleaning the Premises, unless otherwise agreed to by Landlord in
writing, except with the written consent of Landlord. No person or persons
other than those approved by Landlord shall be permitted to enter the Building
for the purpose of cleaning same. Tenant shall not cause any unnecessary labor
by reason of Tenant’s carelessness or indifference in the preservation of good
order and cleanliness.


 


4.     No additional locking
devices shall be installed without the proper written consent of Landlord.
Landlord may make reasonable charge for removal of any additional lock and bolt
installed on any door of the Premises without the prior consent of Landlord.
Tenant shall, upon the termination of its tenancy deliver to Landlord all keys
to doors in the Building and the Premises that have been furnished to Tenant.


 


5.     The freight elevator shall
be available for use by Tenant, subject to such reasonable scheduling as
Landlord shall deem appropriate. The persons employed by Tenant to move
equipment or other items in or out of the Building must be acceptable to
Landlord. Landlord shall have the right to prescribe the weight, size and
position of all equipment, materials, supplies, furniture or other property
brought into the Building. Landlord will not be responsible for loss of or
damage to any such property from any cause, and all damage done to the Building
by moving or maintaining Tenant’s property shall be repaired at the expense of
Tenant.


 


6.     Tenant shall not use or keep
in the Premises or the Building any kerosene, gasoline or flammable or
combustible fluid or use any method of heating or air conditioning other than
that supplied by Landlord. Tenant shall not use, keep or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business
in the Building.


 


7.     In case of invasion, mob,
riot, public excitement or other circumstances rendering such action advisable
in Landlord’s opinion, Landlord reserves the right to prevent access to the
Building during the continuance of same by such action as Landlord may deem
appropriate, including closing entrances to the Building.


 


8.     Tenant shall see that the
doors of the Premises are closed and securely locked at such time as Tenant’s
employees leave the Premises.


 


9.     The toilet rooms, toilets,
urinals, wash bowels and other apparatus shall not be used for any purpose
other than that from which they were constructed, no foreign substance of any
kind whatsoever 


 


64

















 


shall be deposited therein, and any damage
resulting to same from Tenant’s misuse shall be paid for by Tenant.


 


10.   Tenant shall not install any
radio or television antenna, loudspeaker or other device on the roof or
exterior walls of the Building.


 


11.   Tenant shall not use in any
space, or in the Common Areas of the Building, any handtrucks except those equipped
with rubber tires and side guards or such other material handling-equipment as
Landlord may approve. No other vehicles of any kind shall be brought by Tenant
into the Building or kept in or about the Premises.


 


12.   Tenant shall store all its
trash and garbage within the Premises until daily removal of same by Landlord
to such location in the Building as may be designated from time to time by
Landlord. No material shall be placed in the Building trash boxes or
receptacles if such material is of such nature that may not be disposed of in
the ordinary and customary manner of removing and disposing of trash and
garbage in the municipality in which the Building is located without being in
violation of any law or ordinance governing such disposal. All trash other than
ordinary office trash will be removed only by special request and at the
expense of the Tenant.


 


13.   All loading and unloading of
merchandise, supplies, materials, garbage and refuse and delivery of same to
the Premises shall be made only through such entryways and elevators as
Landlord shall designate.


 


14.   Canvassing, soliciting,
peddling or distribution of handbills or any other written material in the
Building is prohibited, and Tenant shall cooperate to prevent same, reporting
any such activity to the Landlord.


 


15.   Tenant shall not permit the
use or the operation of any coin-operated machines on the Premises including,
without limitation, vending machines, video games, pinball machines, or pay
telephones, without the prior written consent of Landlord.


 


16.   Landlord may direct the use
of all pest extermination and scavenger contractors at such intervals as
Landlord may require.


 


17.   Tenant shall ensure that all
work by Tenant’s contractors and/or vendors affecting any area of the Building
other than the Tenant’s Premises shall be coordinated with reasonable advanced
notice with the Landlord. If requested by Landlord, all such contractors and/or
vendors shall be required to provide to Landlord a certificate of insurance,
naming Landlord as additionally insured.


 


18.   Landlord reserves the right
to select the name of the Building and to make such change or changes of name
as it may deem appropriate from time to time, and Tenant shall not refer to the
Building by any name other than (i) the names as selected by Landlord (as
same may be changed from time to time), (ii) the post office address,
approved by the United States Postal Service. Tenant shall not use the name of
the Building in any respect other than as an address of its operation in the Building
without the prior written consent of Landlord.


 


19.   Except with the prior
written consent of Landlord, Tenant shall not place any sign on the Building or
any store front or in any window.


 


20.   The requirements of Tenant
will be attended to only upon application by telephone or in person at the
office of the Building. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special instructions from
Landlord.


 


21.   Landlord may waive any one
or more of these Rules and Regulations for the benefit of any particular
tenant or tenants, but no such waiver by Landlord shall be construed as a
waiver of these Rules and Regulations in favor of any other tenant or
tenants, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the Building.


 


65

















 


22.   Whenever the word “Tenant”
occurs in these Rules and Regulations, it is understood and agreed that it
shall mean Tenant’s associates, agents, assigns, clerks, employees, visitors,
vendors and contractors. Wherever the word “Landlord” occurs in these Rules and
Regulations, it is understood and agreed that it shall mean Landlord’s assigns,
agents, clerks, employees and visitors.


 


23.   Landlord shall provide
Tenant with space on the Building’s directory, located in the lobby, based upon
the Tenant’s pro rata share. No subheadings shall be allowed for subtenants
unless a sublease approved by Landlord has been executed by that individual.


 


24.   These Rules and
Regulations are in addition to, and shall not be construed in any way to
modify, alter or amend, in whole or part, the terms, covenants, agreements and
conditions of any lease of premises in the Building.


 


25.   Landlord reserves the right
to make such other and reasonable Rules and Regulations as in its judgment
may from time tot time be needed for the safety, care, operating efficiency and
cleanliness of the Building, and for the preservation of good order therein.


 


66

















 


EXHIBIT FO


(Superior Expansion Rights)


 


1.     TranSystems—Right of First
Refusal on 16,640 square feet on the first floor.


 


2.     Cross Country—Right of First
Offer on 29,757 square feet on the third floor.


 


3.     Partners Healthcare—Right of
First Offer on 77,380 square feet on the fourth floor.


 


67














 


AMENDMENT OF LEASE


 


This
AMENDMENT OF LEASE (this “Amendment”) dated as of the 31st day of August, 2007 by and between CABOT ROAD
OWNER – VEF VI, LLC, a Delaware limited liability company having an address c/o
Apollo Real Estate, 3340 Peachtree Road, N.E., Tower Place 100, Suite 1660,
Atlanta, Georgia 30326, as Landlord (the “Landlord”), and THE FIRST MARBLEHEAD
CORPORATION, a Delaware corporation, having an address at The Prudential Tower,
800 Boylston Street, 34th Floor, Boston, Massachusetts 02199-8157, as
Tenant (“Tenant”).


 


BACKGROUND


 


Landlord
and Tenant are holders of the landlord’s and tenant’s interests, respectively,
under a Lease dated August 13, 2004 (the “Lease”) for the entire second
floor and a portion of the third floor of the building (the “Building”) located
at One Cabot Road in Medford, Massachusetts, consisting of approximately
136,496 rentable square feet of space (the “Original Premises”).  The parties desire to amend the Lease to
reflect the addition of certain space on the first floor of the Building to the
Original Premises under the Lease under the terms described herein, and to
amend the Lease in certain other respects, all as hereinafter set forth.  Capitalized terms not defined herein shall have
the same meaning ascribed to them in the Lease.


 


WITNESSETH:


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree to amend the Lease as
follows:


 


1.             Addition of First Floor Premises. 
Landlord hereby demises and leases to Tenant, and Tenant hereby leases
from Landlord, the space shown on Exhibit A hereto as the “First
Floor Premises” (the “First Floor Premises”) on the terms and conditions
contained in the Lease, as amended by this Amendment. Effective as of October 1,
2007 (the “First Floor Premises Commencement Date”), the First Floor Premises
shall be added to the Original Premises under the Lease.  The parties agree that the First Floor
Premises consists of approximately 16,640 rentable square feet of space.


 


2.             As Is Delivery Condition of First Floor Premises. 
The First Floor Premises shall be leased to Tenant as of the First Floor
Premises Commencement Date in “as is” condition, without any obligation on the
part of Landlord to perform any construction therein or to prepare the same for
Tenant’s occupancy or otherwise (other than the installation of the electric
meter pursuant to Paragraph 10 of this Amendment).


 

















 


3.             Amendments to Section 1.2 of Lease As of the Date
Hereof.  Effective as of the date hereof, the terms “Landlord”
and “Landlord’s Original Address” set forth in Section 1.2 of the Lease
shall be amended to have the following meanings under the Lease:


 


	
  Landlord:

  	
  Cabot Road Owner – VEF VI,
  LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
  Landlord’s
  Original Address:

  	
  c/o
  Apollo Real Estate

  3340
  Peachtree Road, N.E.

  Tower
  Place 100, Suite 1660

  Atlanta,
  Georgia  30326

  Attention:  Howard C. Huang

  



 


4.             Amendments to Section 1.2 of Lease as of First
Floor Premises Commencement Date.  Effective as
of the First Floor Premises Commencement Date, Section 1.2 of the Lease
shall be amended as follows:


 


(a)           The definition of “Basic Rent” shall be amended by
providing the following at the end of the current definition therefore:


 


“Annual Basic Rent for First Floor Premises only


 


For the period commencing on the First Floor Premises Commencement Date
and ending on March 31, 2012: 
$399,360 per annum ($33,280 per month)


 


Notwithstanding the above, Tenant shall not be obligated to pay the
portion of Annual Basic Rent for the First Floor Premises for the month of
October, 2007.”


 


(b)           The definition of “Premises” shall be deleted and
shall be replaced with the following:


 


“Premises:  The entire second
floor (the “Second Floor Premises”), a portion of the first floor (the “First
Floor Premises”) and a portion of the third floor of the Building (the “Third
Floor Premises”), all as shown on Exhibit FP annexed hereto.”


 


(c)           The definition of “Premises Rentable Area” shall be
deleted and shall be replaced with the following:


 


“Premises Rentable Area:  Agreed
to be 153,136 rentable square feet.”


 


(d)           The definition of “Escalation Factor” shall be amended
by providing the following at the end of the current definition therefore:


 


“Escalation Factor For First Floor Premises Only:  .054”


 


2

















 


(e)           The definition of “Initial Term” shall be amended by
deleting the current definition thereof and by replacing it with the following:


 


“Initial Term For Third Floor Premises and Second Floor Premises:  The period commencing on March 5, 2005
and ending on March 31, 2012.


 


Initial Term For First Floor Premises: 
That period commencing on October 1, 2007 and ending on March 31,
2012.”


 


(f)            The definition of “Base Operating Expenses” with respect
to the First Floor Premises only shall be: 
“Operating Expenses for the calendar year ending December 31, 2007.”


 


(g)           The definition of “Base Taxes” with respect to the
First Floor Premises only shall be:  “Taxes
for the tax fiscal year beginning on July 1, 2007 and ending on June 30,
2008, as the same may be reduced by the proportional amount of abatement net of
expenses applicable to such tax fiscal year.”


 


5.             Section 1.3 of Lease as of First Floor Premises
Commencement Date.  Effective as of the First Floor Premises
Commencement Date, Section 1.3 of the Lease shall be amended as follows:


 


(a)           The definition of “Agent” is deleted in its entirety
and the following is substituted therefor: 
“Agent:  First Winthrop, LP, or
such other person or entity from time to time designated by Landlord”.


 


(b)           The definition of “Rent Commencement Date” with
respect to the First Floor Premises only shall be:  “November 1, 2007”.


 


6.             Deletion of Expansion Option.  Section 2.5
of the Lease entitled, “EXPANSION OPTION”, is hereby deleted and shall no
longer have any force or effect.


 


7.             Inapplicability of Certain Lease Provisions to First
Floor Premises.  Sections 2.1, 4.1, 4.2, 4.3, 4.4 and Exhibit BS
shall not applicable to Tenant’s leasing of the First Floor Premises.


 


8.             Amendments to Section 3.1 and 14.12 of Lease.


 


(a)           Section 3.1(a) of the Lease is hereby
amended by deleting the rent payment address in the third sentence therefor and
by substituting therefore the following address:  “Cabot Road – VEF Advisors LLC, P.O. Box
842731, Boston, MA 02284-2731”.


 


(b)           Section 14.12 of the Lease, entitled “Notices”,
is hereby amended by deleting the notice address for Landlord and by
substituting therefore the following address: 
“c/o Apollo Real Estate, Tower Place 100, Suite 1660, 3340
Peachtree Road,


 


3

















 


N.E., Atlanta, GA 30326, with a copy to One Cabot
Road, c/o Winthrop Management LP, 7 Bulfinch Place, Suite 500, Boston,
MA  02114-9507.”


 


9.             Supplement to Exhibit FP to Lease.  Effective as of the First Floor Premises
Commencement Date, Exhibit FP to the Lease shall be amended by adding
thereto Exhibit FP Supplement that is attached to this Amendment.


 


10.           Tenant’s Payments for Electricity For First Floor
Premises.  Pursuant to Section 7.5(b) of the
Lease, Tenant shall be responsible for the payment of all electricity used and
consumed in the First Floor Premises, including, without limitation, for
lights, outlets and supplemental HVAC service dedicated to the First Floor
Premises.  Landlord shall install a
separate check meter measuring the electricity used and consumed in the First
Floor Premises, and, from time to time, but not more than once per calendar
month, Landlord shall invoice Tenant for electricity used and consumed in the
First Floor Premises, at Landlord’s cost therefore, without mark-up.  Tenant shall pay Landlord the invoiced amount
as Additional Rent under the Lease within thirty (30) days after receipt of
each such invoice.  The obligation to pay
for electricity used and consumed in the First Floor Premises during the last
month of the Term of the Lease shall survive expiration of the Term.


 


11.           Amendment of Section 2.2 of the Lease Regarding
Parking Spaces.  Effective as of the First Floor Premises
Commencement Date, Section 2.2(c) to the Lease is hereby amended by
deleting the second sentence thereof and by substituting the following
therefor:


 


“Tenant’s share of such parking spaces shall equal 459 spaces, of which
91 spaces shall be available in the garage on a non-exclusive, unreserved
basis.”


 


12.           Amendment of Section 2.4 of the Lease Regarding
the Option to Extend.  Effective as of the First Floor Premises
Commencement Date, Section 2.4(a)(iii) to the Lease is hereby amended
by deleting the term “20,000” and substituting the term “23,000” therefor.


 


13.           Amendment of Section 2.6 of the Lease Regarding
the Right of First Offer.  Effective as of the First
Floor Premises Commencement Date, Section 2.6(a)(iii) to the Lease is
hereby amended by deleting the term “20,000” and substituting the term “23,000”
therefor.


 


14.           Applicability of Lease Provisions to First Floor
Premises:  Effective as of the First Floor Premises
Commencement Date, except to the extent otherwise expressly provided in this
Amendment or except to the extent inconsistent with the terms of this
Amendment, all terms and provisions of the Lease shall be applicable to Tenant’s
leasing of the First Floor Premises.


 


15.           Leasehold Improvements; First Floor Premises Allowance to Tenant; Additional First Floor Allowance.


 


(a)           Attached hereto as Schedule 1 is a detailed, schematic floor
plan for the First Floor Premises.  By
its execution of this Amendment, Landlord hereby approves the schematic floor
plan, and Landlord hereby acknowledges and agrees that the leasehold
improvements to the First Floor Premises shown on the approved schematic floor
plan


 


4

















 


constitute standard office alterations, and Tenant is not required to
remove the same upon the expiration or earlier termination of the Term of the
Lease.  In connection with the
construction of such leasehold improvements, Tenant agrees to comply with the
provisions of Section 5.2 of the Lease and any other applicable provisions
thereof.


 


(b)           Landlord
shall reimburse Tenant an amount not to exceed $499,200.00 (the “First Floor
Premises Allowance”) for the cost of construction by Tenant of its initial
leasehold improvements in the First Floor Premises performed on or before December 31,
2008.  Such reimbursement by Landlord
shall be made from time to time within thirty (30) days of receipt by Landlord
from Tenant of the AIA requisition form submitted by Tenant’s contractor with
an architect’s certificate, attached to which shall be such documentation
required from Tenant’s contractor, including, without limitation, lien waivers
from the contractor and major subcontractors. 
Landlord hereby acknowledges and agrees that the First Floor Premises
Allowance can be used to pay any “soft” and/or “hard” costs incurred by Tenant
in connection with such construction.


 


(c)           In addition to the First Floor Premises
Allowance, Landlord will make available to Tenant an Additional First Floor
Premises Allowance not to exceed $166,400.00 (the “Additional First Floor
Allowance”) for the construction of improvements in the First Floor Premises if
requested by Tenant prior to November 1, 2007. 
Disbursement of the Additional First Floor Allowance shall be subject to
the provisions of the Paragraph 13(b). 
Landlord hereby acknowledges and agrees that the Additional First Floor
Allowance can be used to pay any “soft” and/or “hard” costs incurred by Tenant
in connection with such construction.  If
Tenant requests all or any portion of the Additional First Floor Allowance,
then the Basic Rent shall be increased, effective as of November 1, 2007, by an amount equal to the monthly
payment required to repay in full, on a direct reduction basis, a loan in an
amount equal to the total amount of such Additional First Floor Allowance
requested by Tenant by Landlord pursuant to this Paragraph 13(c), with interest
at the rate of eight percent (8%) per annum, in equal monthly installments on
the first day of each calendar month from November 1, 2007 through March 31,
2012.


 


16.           Brokerage.  Tenant and Landlord each represents and
warrants to the other that it dealt with no brokers in connection with this
Amendment other than Grubb & Ellis Company and The Codman Company
(collectively, “the Brokers”) and agrees to defend, with counsel approved by
the other, indemnify and save the other harmless from and against any and all
cost, expense or liability in the event such representation is false or alleged
to be false.  Landlord agrees that it
shall pay and be solely liable for the fees charged by the Brokers in connection
with this transaction to the extent provided in separate agreements between
Landlord and the Brokers.


 


17.           Continued Effectiveness of Lease.  Except as expressly amended hereby, the Lease
shall continue in full force and effect as heretofore.


 


[SIGNATURES APPEAR
ON FOLLOWING PAGE]


 


5

















 


WITNESS
the execution hereof as an instrument as of the date first above written.


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CABOT
  ROAD OWNER – VEF VI, LLC, a Delaware Limited Liability Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:
  Value Enhancement Fund VI, L.P., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:
  VEF Group Management, LLC, its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Howard C. Huang

  
	
   

  	
   

  	
   

  	
   

  	
  Name:
  Howard C. Huang

  
	
   

  	
   

  	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE
  FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Anne P. Bowen

  
	
   

  	
   

  	
   

  	
  Name:
  Anne P. Bowen

  
	
   

  	
   

  	
   

  	
  Title:
  Executive Vice President

  
								



 


6

















 


Exhibit A and Exhibit FP Supplement


 


Attach plan showing perimeter outline of First Floor Premises.


 


[schematic diagram of first floor premises]