exv10w1






Exhibit 10.1




RESERVOIR PLACE

WALTHAM, MASSACHUSETTS




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	LEASE
DATED May 29, 2009
	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE I
	 	 	 	 	1	 
	Basic Lease Provisions and Enumerations of Exhibits
	 	 	1	 
	1.1
	 	Introduction	 	 	1	 
	1.2
	 	Basic Data	 	 	1	 
	1.3
	 	Enumeration of Exhibits	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	 	 	 	6	 
	Premises
	 	 	6	 
	2.1
	 	Demise and Lease of Initial Premises	 	 	6	 
	2.2
	 	Must Take Premises and Expansion Rights	 	 	6	 
	2.3
	 	Appurtenant Rights and Reservations	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 	8	 
	Lease Term and Extension Options
	 	 	8	 
	3.1
	 	Term	 	 	8	 
	3.2
	 	Extension Option	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 	10	 
	Condition of Premises; Alterations
	 	 	10	 
	4.1
	 	Condition of Premises	 	 	10	 
	4.2
	 	Signage	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	 	 	 	11	 
	Annual Fixed Rent and Electricity
	 	 	11	 
	5.1
	 	Fixed Rent and Electricity Charges	 	 	11	 
	5.2
	 	Tenant Electricity	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	 	 	 	13	 
	Taxes
	 	 	 	 13	 
	6.1
	 	Introduction	 	 	13	 
	6.2
	 	Definitions	 	 	14	 
	6.3
	 	Tenant’s Share of Real Estate Taxes	 	 	16	 






i









 






	 	 	 	 	 	 	 
	ARTICLE VII
	 	 	 	 	16	 
	Landlord’s Repairs and Services and Tenant’s Escalation Payments
	 	 	16	 
	7.1
	 	Structural Repairs	 	 	16	 
	7.2
	 	Other Repairs to be Made by Landlord	 	 	17	 
	7.3
	 	Services to be Provided by Landlord	 	 	17	 
	7.4
	 	Introduction to Operating Costs	 	 	18	 
	7.5
	 	Operating Costs Defined	 	 	18	 
	7.6
	 	Tenant’s Escalation Payments	 	 	23	 
	7.7
	 	No Damage	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	 	 	 	27	 
	Tenant’s Repairs
	 	 	27	 
	8.1
	 	Tenant’s Repairs and Maintenance	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	 	 	 	27	 
	Alterations
	 	 	27	 
	9.1
	 	Landlord’s Approval	 	 	27	 
	9.2
	 	Conformity of Work	 	 	29	 
	9.3
	 	Performance of Work, Governmental Permits and Insurance	 	 	29	 
	9.4
	 	Liens	 	 	30	 
	9.5
	 	Nature of Alterations	 	 	30	 
	9.6
	 	Increases in Taxes	 	 	31	 
	9.7
	 	Alterations Permitted Without Landlord’s Consent	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	 	 	 	32	 
	Parking
	 	 	32	 
	10.1
	 	Tenant’s Parking	 	 	32	 
	10.2
	 	Parking Shortages	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE XI
	 	 	 	 	35	 
	Certain Tenant Covenants
	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE XII
	 	 	 	 	38	 
	Assignment and Subletting
	 	 	38	 
	12.1
	 	Restrictions on Transfer	 	 	38	 
	12.2
	 	Exceptions	 	 	38	 
	12.3
	 	Landlord’s Termination Right	 	 	39	 
	12.4
	 	Consent of Landlord	 	 	40	 
	12.5
	 	Tenant’s Notice	 	 	42	 
	12.6
	 	Profit on Subleasing or Assignment	 	 	42	 
	12.7
	 	Additional Conditions	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE XIII
	 	 	 	 	44	 
	Indemnity And Commercial General Liability Insurance
	 	 	44	 
	13.1
	 	Indemnity	 	 	44	 
	13.2
	 	Commercial General Liability Insurance	 	 	45	 
	13.3
	 	Tenant’s Property Insurance	 	 	46	 






ii









 






	 	 	 	 	 	 	 
	13.4
	 	Non-Subrogation	 	 	46	 
	13.5
	 	Tenant’s Risk	 	 	47	 
	13.6
	 	Landlord’s Insurance	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE XIV
	 	 	 	 	47	 
	Fire, Casualty and Taking
	 	 	47	 
	14.1
	 	Damage Resulting from Casualty	 	 	47	 
	14.2
	 	Uninsured Casualty	 	 	49	 
	14.3
	 	Rights of Termination for Taking	 	 	49	 
	14.4
	 	Award	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE XV
	 	 	 	 	51	 
	Default
	 	 	51	 
	15.1
	 	Tenant’s Default	 	 	51	 
	15.2
	 	Termination; Re-Entry	 	 	52	 
	15.3
	 	Continued Liability; Re-Letting	 	 	53	 
	15.4
	 	Liquidated Damages	 	 	53	 
	15.5
	 	Waiver of Redemption	 	 	55	 
	15.6
	 	Landlord’s Default	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE XVI
	 	 	 	 	55	 
	Miscellaneous Provisions
	 	 	55	 
	16.1
	 	Waiver	 	 	55	 
	16.2
	 	Cumulative Remedies	 	 	56	 
	16.3
	 	Quiet Enjoyment	 	 	56	 
	16.4
	 	Surrender	 	 	56	 
	16.5
	 	Brokerage	 	 	57	 
	16.6
	 	Invalidity of Particular Provisions	 	 	57	 
	16.7
	 	Provisions Binding, Etc.	 	 	57	 
	16.8
	 	Recording; Confidentiality	 	 	57	 
	16.9
	 	Notices and Time for Action	 	 	58	 
	16.10
	 	When Lease Becomes Binding	 	 	59	 
	16.11
	 	Paragraph Headings	 	 	59	 
	16.12
	 	Rights of Mortgagee	 	 	59	 
	16.13
	 	Rights of Ground Lessor	 	 	60	 
	16.14
	 	Notice to Mortgagee and Ground Lessor	 	 	60	 
	16.15
	 	Assignment of Rents	 	 	60	 
	16.16
	 	Status Report and Financial Statements	 	 	61	 
	16.17
	 	Self-Help	 	 	62	 
	16.18
	 	Holding Over	 	 	63	 
	16.19
	 	Entry by Landlord	 	 	64	 
	16.20
	 	Tenant’s Payments	 	 	64	 
	16.21
	 	Late Payment	 	 	64	 
	16.22
	 	Counterparts	 	 	65	 
	16.23
	 	Entire Agreement	 	 	65	 
	16.24
	 	Limitation of Liability	 	 	65	 
	16.25
	 	No Partnership	 	 	66	 






iii









 






	 	 	 	 	 	 	 
	16.26
	 	Security Deposit	 	 	66	 
	16.27
	 	Waiver of Trial by Jury	 	 	68	 
	16.28
	 	Patriot Act and Executive Order 13224	 	 	69	 
	16.29
	 	Governing Law	 	 	70	 
	16.30
	 	Emergency Generator	 	 	70	 
	16.31
	 	Tenant’s Telecommunications Equipment	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE XVII
	 	 	 	 	75	 
	Must Take Premises and Expansion Rights
	 	 	75	 
	17.1
	 	Definitions	 	 	75	 
	17.2
	 	Must Take Premises	 	 	77	 
	17.3
	 	Right of First Offer	 	 	78	 
	1.1
	 	Landlord’s Work	 	 	1	 
	1.2
	 	Substantial Completion	 	 	7	 
	1.3
	 	Tenant’s Remedies Based on Delays in Landlord’s Work	 	 	9	 
	1.4
	 	Quality and Performance of Work	 	 	10	 
	1.5
	 	Landlord’s Contribution; Tenant Plan Excess Costs	 	 	12	 
	1.6
	 	Fast Track Arbitration	 	 	15	 







iv











 





RESERVOIR PLACE

WALTHAM, MASSACHUSETTS




Lease dated May 29, 2009




     THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant are the parties
hereinafter named, and which relates to space in the building (the “Building”) known as Reservoir
Place Main, and having an address at, 1601 Trapelo Road, Waltham, Massachusetts.



     The parties to this instrument hereby agree with each other as follows:



ARTICLE I




Basic Lease Provisions and Enumerations of Exhibits





	1.1	 	Introduction
	 
		 	(A) Tenant is presently in occupancy of the Initial Premises pursuant to (i) that certain
lease dated July 9, 2002, as amended by First Amendment to Lease dated June 29, 2005, Second
Amendment to Lease dated July 24, 2006, Third Amendment to Lease dated February 27, 2007,
Fourth Amendment to Lease dated November 26, 2007 and Fifth Amendment to Lease dated April
14, 2008 (collectively, the “Existing Lease”) and (ii) that certain License Agreement dated
May 7, 2009 (the “License Agreement”). Upon the Commencement Date under this Lease, this
Lease shall supersede the Existing Lease and the License Agreement, and the Existing Lease
and the License Agreement shall each be deemed terminated as of the date immediately prior
to the Commencement Date. Any obligations or liabilities of Tenant that, pursuant to the
Existing Lease and/or the License Agreement, survive the expiration or earlier termination
of the Existing Lease and/or the License Agreement shall be and are assumed by Tenant under
this Lease.
	 
		 	(B) The following Sections 1.2 and 1.3 set forth the basic data and identifying Exhibits
elsewhere hereinafter referred to in this Lease, and, where appropriate, constitute
definitions of the terms hereinafter listed.
	 
	1.2	 	Basic Data





	 	 	 
	Date:

	 	May 29, 2009
	 
	 	 
	Landlord:

	 	BOSTON PROPERTIES LIMITED

PARTNERSHIP, a Delaware limited

partnership
	 
	 	 
	Present Mailing Address of Landlord:

	 	c/o Boston Properties Limited Partnership









Page 1 









 








	 	 	 
	 

	 	Prudential Tower 

800 Boylston Street, Suite 1900

Boston, Massachusetts 02199-8103
	 
	 	 
	Landlord’s Construction Representative:

	 	Michael Bowers
	 
	 	 
	Tenant:

	 	CONSTANT CONTACT, INC., a
Delaware corporation
	 
	 	 
	Present Mailing Address of Tenant:

	 	1601 Trapelo Road

Waltham, Massachusetts 02451
	 
	 	 
	Tenant’s Construction Representative:

	 	Robert Nicoson and Thomas C. Howd
	 
	 	 
	Lease Term (sometimes called the
“Original Lease Term”):

	 	The period beginning on the
Commencement Date with respect to
the Initial Premises and ending
on September 30, 2015, unless
extended or sooner terminated as
hereinafter provided.
	 
	 	 
	Extension Option:

	 	One (1) period of five (5) years
as provided in and on the terms
set forth in Section 3.2 hereof.
	 
	 	 
	Lease Year:

	 	A period of twelve (12)
consecutive calendar months,
commencing on the first day of
January in each year, except that
the first Lease Year of the Lease
Term hereof shall be the period
commencing on the Commencement
Date and ending on the succeeding
December 31, and the last Lease
Year of the Lease Term hereof
shall be the period commencing on
January 1 of the calendar year in
which the Lease Term ends, and
ending with the date on which the
Lease Term ends.
	 
	 	 
	Commencement Date:

	 	The date of this Lease with
respect to the Initial Premises,
and as to other Premises
Components, the date upon which
such Premises Component is
incorporated into the Premises
pursuant to this Lease.
	 
	 	 
	The Site:

	 	That certain parcel of land
located on Trapelo Road, Waltham,
Middlesex








Page 2 









 








	 	 	 
	 

	 	County, Massachusetts,
being more particularly described
in Exhibit A attached hereto.
	 
	 	 
	The Building:

	 	The Building known as Reservoir
Place Main, and numbered 1601
Trapelo Road, Waltham,
Massachusetts, located on the
Site, as shown on the site plan
attached hereto as Exhibit K, and
containing the Total Rentable
Floor Area set forth below.
	 
	 	 
	The Additional Building:

	 	The other building known as
Reservoir Place South located on
the Site, as shown on the site
plan attached hereto as Exhibit
K, and containing the Total
Rentable Floor Area set forth
below.
	 
	 	 
	The Buildings:

	 	The Building and the Additional
Building.
	 
	 	 
	The Complex:

	 	The Building and the Additional
Building together with all common
areas, parking areas, garage, and
structures and the Site, as shown
on the site plan attached hereto
as Exhibit K.
	 
	 	 
	Initial Premises:

	 	A portion of the third
(3rd) floor of the
Building, in accordance with the
floor plans annexed hereto as
Exhibit E and incorporated herein
by reference, as further defined
and limited in Section 2.1
hereof.
	 
	 	 
	Must Take Premises:

	 	Portions of the second
(2nd) and third
(3rd) floors of the
Building, in accordance with the
floor plans annexed hereto as
Exhibit E and incorporated herein
by reference, as further defined
and limited in Section 17.2
hereof.
	 
	 	 
	Premises Component:

	 	Initially only the Initial
Premises but, from and after the
incorporation into the Premises
of other rentable area in the
Building, any specified portion
of the rentable area of the
Premises as to which specific
terms and conditions of this
Lease may apply, but which may
not necessarily








Page 3 









 








	 	 	 
	 

	 	apply to other
portions of the Premises.
	 
	 	 
	Premises:

	 	Collectively, all Premises
Components which, in the
aggregate, comprise all of the
rentable area in the Building
which shall, from time to time,
be demised to Tenant pursuant to
this Lease.
	 
	 	 
	Rentable Floor Area of the Initial
Premises:

	 	85,583 square feet.
	 
	 	 
	Annual Fixed Rent:

	 	See Exhibits B-1 and B-2.
	 
	 	 
	Tenant Electricity:

	 	As provided in Section 5.2 hereof.
	 
	 	 
	Additional Rent:

	 	All charges and other sums
payable by Tenant as set forth in
this Lease, in addition to Annual
Fixed Rent.
	 
	 	 
	Initial Minimum Limits of Tenant’s
Commercial General Liability:

	 	$5,000,000.00 combined single
limit per occurrence, provided
that if the Rentable Floor Area
of the Premises should exceed
100,000 square feet, the
aforesaid minimum limit shall be
increased to $10,000,000.00
(which such insurance limits may
be satisfied through a
combination of primary and
umbrella coverage).
	 
	 	 
	Total Rentable Floor Area of the
Building:

	 	368,257 square feet.
	 
	 	 
	Total Rentable Floor Area of the
Additional Building:

	 	161,734 square feet.
	 
	 	 
	Total Rentable Floor Area of the
Buildings:

	 	529,991 square feet.
	 
	 	 
	Number of Parking Privileges:

	 	Five (5) parking privileges for
each 1,000 square feet of
rentable floor area of the
Initial Premises and the Must
Take Premises leased by Tenant,
of which (i) the sum of (x)
eighty-nine (89) plus (y) one (1)
parking privilege for each 1,000
square feet of rentable floor
area of the Must Take Premises
will be located in the








Page 4 









 








	 	 	 
	 

	 	garage
below the Building and (ii) the
remainder of the parking
privileges associated with the
Initial Premises and the Must
Take Premises will be located on
the outdoor surface lot, all as
subject to and in accordance with
the provisions of Article X
below.
	 
	 	 
	Permitted Use:

	 	General office use and such
ancillary uses thereto as may
from time to time be permitted by
the Zoning Ordinance for the City
of Waltham.
	 
	 	 
	Broker:

	 	McCall & Almy

One Post Office Square

Boston, Massachusetts 02109
	 
	 	 
	Initial Security Deposit Amount:

	 	$750,000.00, subject to reduction
pursuant to Section 16.26.







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





	 	 	 	 	 
	Exhibit A

	 	—
	 	Description of the Site
	 
	 	 	 	 
	Exhibit B-1

	 	—
	 	Schedule of Initial Premises Components, Commencement Dates and Rent Schedule
	 
	 	 	 	 
	Exhibit B-2

	 	—
	 	Schedule of Must Take Premises Components, Anticipated Availability and
Commencement Dates and Rent Schedule
	 
	 	 	 	 
	Exhibit C

	 	—
	 	Landlord’s Work
	 
	 	 	 	 
	Exhibit C-1

	 	—
	 	Tenant Plan Requirements
	 
	 	 	 	 
	Exhibit D

	 	—
	 	Landlord’s Services
	 
	 	 	 	 
	Exhibit D-1

	 	—
	 	Overtime HVAC Charges
	 
	 	 	 	 
	Exhibit E

	 	—
	 	Floor Plans









Page 5 











 





	 	 	 	 	 
	Exhibit F

	 	—
	 	Intentionally Omitted
	 
	 	 	 	 
	Exhibit G

	 	—
	 	Form of Commencement Date Agreement
	 
	 	 	 	 
	Exhibit H

	 	—
	 	Broker Determination of Prevailing Market Rent
	 
	 	 	 	 
	Exhibit I

	 	—
	 	Form of Letter of Credit
	 
	 	 	 	 
	Exhibit J

	 	—
	 	Form of Notice of Lease
	 
	 	 	 	 
	Exhibit K

	 	—
	 	Site Plans
	 
	 	 	 	 
	Exhibit L

	 	—
	 	Impact Signage and Building Signage
	 
	 	 	 	 
	Exhibit M

	 	—
	 	Second Floor Tenants’ Prior Rights






ARTICLE II




Premises





	2.1	 	Demise and Lease of Initial Premises
	 
	 	 	Landlord hereby demises and leases to Tenant, and Tenant hereby hires and accepts from
Landlord, the Initial Premises in the Building. All of the Premises in the Building shall
exclude exterior faces of exterior walls, the common stairways and stairwells, elevators and
elevator walls, mechanical rooms, electric and telephone closets, janitor closets, and
pipes, ducts, shafts, conduits, wires and appurtenant fixtures serving exclusively or in
common other parts of the Building, and if any Premises includes less than the entire
rentable area of any floor, shall also exclude the common corridors, elevator lobbies and
toilets located on such floor. In connection with the foregoing, it is understood and agreed
that the Rentable Floor Area of the Premises shall not increase in the event that Tenant
shall elect to demolish the third (3rd) floor conference rooms and/or the third
(3rd) floor corridor.
	 
	2.2	 	Must Take Premises and Expansion Rights
	 
	 	 	The provisions of Article XVII of this Lease contain the terms and conditions upon which the
Must Take Premises shall become incorporated into the Premises under this Lease. Tenant may
further expand the Premises pursuant to expansion rights more particularly set forth in
Article XVII.
	 
	2.3	 	Appurtenant Rights and Reservations
	 
	 	 	Subject to Landlord’s right to change or alter any of the following in Landlord’s discretion
as herein provided, Tenant shall have, as appurtenant to the Premises, the non-exclusive
right to use in common with others, but not in a manner or extent that would materially




Page 6









 






	 	 	interfere with the normal operation and use of the Building as a multi-tenant office
building and subject to reasonable rules of general applicability to tenants of the Building
from time to time made by Landlord of which Tenant is given notice: (a) the common lobbies,
corridors, stairways, and elevators of the Building, and the pipes, ducts, shafts, conduits,
wires and appurtenant meters and equipment serving the Premises in common with others, (b)
the loading areas serving the Building and the common walkways and driveways necessary for
access to the Building, (c) if the Premises include less than the entire rentable floor area
of any floor, the common toilets, corridors and elevator lobby of such floor, and (d) the
cafeteria and fitness center, if any, provided by Landlord for the use and enjoyment of
tenants of the Complex (Landlord hereby agreeing to operate a cafeteria in the Complex so
long as Tenant leases and together with permitted assignees and/or subtenants under Article
XII below occupies at least 83,000 square feet of rentable floor area in the Building).
Tenant shall have the right to contract separately with its own telecommunication service
provider and Landlord will not unreasonably withhold consent to any request by Tenant to
allow such provider to have access to the Building or to the Premises, provided that
Landlord may condition such access, without limitation of the foregoing, on Landlord’s
approval of the identity of the service provider, its execution of an access and easement
agreement satisfactory to Landlord and, should telecommunications services be furnished by
such service provider to both Tenant and other tenants and occupants in the Building, then
subject to the payment to Landlord by the service provider of fees assessed by Landlord in
its reasonable discretion.






	 	 	Landlord reserves the right from time to time, without material interference with Tenant’s
use: (a) to install, use, maintain, repair, replace and relocate for service to the Premises
and other parts of the Building, or either, pipes, ducts, conduits, wires and appurtenant
fixtures, wherever located in the Premises or the Building, and (b) to alter or relocate any
other common facility, provided that substitutions are substantially equivalent or better.
Installations, replacements and relocations referred to in clause (a) above shall be located
so far as practicable in the central core area of the Building, above ceiling surfaces,
below floor surfaces or within perimeter walls of the Premises. Except in the case of
emergencies or for normal cleaning and maintenance work, Landlord agrees to use its best
efforts to give Tenant reasonable advance notice of any of the foregoing activities which
require work in the Premises. In all cases, Landlord shall use commercially reasonable
efforts to minimize or avoid inconvenience to Tenant in connection with its exercise of the
rights granted herein (consistent with the nature of the rights being exercised).






	 	2.3.1	 	From the date of this Lease through October 31, 2009, Tenant shall have the
non-exclusive right to use any of the conference rooms located on the first
(1st), second (2nd) and third (3rd) floors of the
Building. Effective as of November 1, 2009 and continuing for so long as Tenant leases
the Initial Premises and the 11,731 square feet of rentable floor area on the third
(3rd) floor of the Building designated as Must Take Premises on Exhibit B-2,
Tenant shall have the exclusive right to use the conference rooms located on the third
(3rd) floor of the Building for any purpose and in any configuration as
Tenant may determine, and Landlord acknowledges that Tenant may in the future demolish
the conference




Page 7









 






	 	 	 	rooms on the third (3rd) floor and agrees that Tenant shall have no
obligation to restore such conference rooms at the end of the Lease Term. As of such
date, Tenant shall no longer have the right to use any of the conference rooms
located on the first (1st) and second (2nd) floors of the
Building (provided, however, that Tenant may from time to time request to use such
conference rooms to the extent the third (3rd) floor conference rooms are
in use, and Landlord shall grant such requests provided that by 4:00 p.m. on the
business day immediately prior to the day on which Tenant has requested to use such
conference room, Landlord has not received any request from another tenant of the
Buildings to use such conference room at the same time Tenant had requested).





ARTICLE III




Lease Term and Extension Options





	3.1	 	Term
	 
	 	 	The Term of this Lease shall be the period specified in Section 1.2 hereof as the “Lease
Term,” unless sooner terminated or extended as herein provided. The Commencement Date with
respect to the Initial Premises shall be as set forth on Exhibit B-1 attached hereto and the
Commencement Date with respect to the individual Premises Components of the Must Take
Premises shall be as set forth on Exhibit B-2 attached hereto.
	 
	 	 	Upon the expansion of the Premises to include any Must Take Premises or other Premises
Components hereinafter incorporated into the Premises, Landlord and Tenant agree to join
with each other in the execution, in the form of Exhibit G hereto, of a written Declaration
in which the commencement date with respect to such Premises Component shall be stated. If
Tenant shall fail to execute such Declaration, such commencement date shall be as reasonably
determined by Landlord in accordance with the terms of this Lease.
	 
	3.2	 	Extension Option






(A) On the conditions (which conditions Landlord may waive by written notice to Tenant) that
both at the time of exercise of the herein described option to extend and as of the
commencement of the Extended Term (i) there exists no monetary or material non-monetary
“Event of Default” (defined in Section 15.1), (ii) this Lease is still in full force and
effect, and (iii) Tenant has neither assigned this Lease nor sublet more than fifty percent
(50%) of the Rentable Floor Area of the Premises (except for an assignment or subletting
permitted without Landlord’s consent under Section 12.2 hereof), Tenant shall have the right
to extend the Term hereof upon all the same terms, conditions, covenants and agreements
herein contained (except for the Annual Fixed Rent and tax and operating cost bases, which
shall be adjusted during the option period as hereinbelow set forth and except that there
shall be no further option to extend) for one (1) period of five (5) years as hereinafter
set forth. Such option period is sometimes herein referred to as the “Extended Term.”
Notwithstanding any implication to the contrary, Landlord has no



Page 8









 







obligation to make any additional payment to Tenant in respect of any construction allowance
or the like or to perform any work to the Premises as a result of the exercise by Tenant of
any such option.




(B) If Tenant desires to exercise said option to extend the Term, then Tenant shall give
notice (the “Extension Term Exercise Notice”) to Landlord, not earlier than twenty one (21)
months nor later than eighteen (18) months prior to the expiration of the Original Lease
Term, exercising such option to extend. Within thirty (30) days after Landlord’s receipt of
the Extension Term Exercise Notice, Landlord shall provide Landlord’s quotation to Tenant of
a proposed annual rent for the Extended Term (“Landlord’s Extension Term Rent Quotation”).
If at the expiration of thirty (30) days after Tenant’s receipt of Landlord’s Extension Term
Rent Quotation (the “Extension Term Negotiation Period”), Landlord and Tenant have not
reached agreement on a determination of an annual rental for the Extended Term and executed
a written instrument extending the Term of this Lease pursuant to such agreement, then
Tenant shall have the right, for thirty (30) days following the expiration of the Extension
Term Negotiation Period, to make a request to Landlord for a broker determination (the
“Broker Determination”) of the Prevailing Market Rent (as defined in Exhibit H) for the
Extended Term, which Broker Determination shall be made in the manner set forth in Exhibit
H. If Tenant timely shall have requested the Broker Determination, then the Annual Fixed
Rent for the Extended Term shall be the greater of (x) the Prevailing Market Rent as
determined by the Broker Determination and (y) $32.50 per square foot of the Rentable Floor
Area of the Premises. If Tenant does not timely request the Broker Determination, then
Tenant shall be deemed to have elected to withdraw its Extension Term Exercise Notice, in
which event Tenant’s option to extend shall be deemed null and void and of no further force
or effect.




(C) Base Taxes (as that term is defined in Section 6.2(f) below) applicable during the
Extended Term shall mean Landlord’s Tax Expenses for the then-current fiscal tax year as of
the commencement of the Extended Term. Base Operating Expenses (as that term is defined in
Section 7.5 below) during the Extended Term shall mean Landlord’s Operating Expenses for the
calendar year in which such Extended Term commences.




(D) Upon the first to occur of (i) the agreement by Landlord and Tenant during the Extension
Term Negotiation Period on an Annual Fixed Rent for the Extended Term or (ii) the timely
request by Tenant for a Broker Determination in accordance with the provisions of subsection
(B) above, then this Lease and the Lease Term hereof shall automatically be deemed extended,
for the Extended Term, without the necessity for the execution of any additional documents,
except that Landlord and Tenant agree to enter into an instrument in writing setting forth
the Annual Fixed Rent for the Extended Term as determined in the relevant manner set forth
in this Section 3.2; and in such event all references herein to the Lease Term or the term
of this Lease shall be construed as referring to the Lease Term, as so extended, unless the
context clearly otherwise requires, and except that there shall be no further option to
extend the Lease Term. Notwithstanding anything contained herein to the contrary, in no
event shall the Lease Term hereof be extended for more than five (5) years after the
expiration of the Original
Lease Term hereof.




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



Page 9









 





ARTICLE IV




Condition of Premises; Alterations





	4.1	 	Condition of Premises






(A) Tenant shall accept the Initial Premises in its “as-is” condition without any obligation
on Landlord’s part to perform any additions, alterations, improvements, demolition or other
work therein or pertaining thereto (subject to the provisions of Exhibit C attached hereto
regarding the provision by Landlord of the Initial Premises Allowance, as that term is
defined in said Exhibit C).




(B) The condition of the Must Take Premises upon Landlord’s delivery, along with any work to
be performed by either Landlord or Tenant, shall be as set forth in Exhibit C.




	4.2	 	Signage






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




(B) Lobby Signage. Landlord shall, during the Term of this Lease, provide Tenant
with a listing of Tenant’s name on all tenant directories in the Building and, at Tenant’s
request, the name of Tenant’s subtenants. The initial listing of Tenant’s name shall be at
Landlord’s cost and expense. Any changes, replacements or additions by Tenant to such
directory shall be at Tenant’s sole cost and expense. In addition, Tenant shall have the
non-exclusive right effective as of the Commencement Date for the Initial Premises
(irrespective of the fact that as of such date Tenant shall not initially meet the occupancy
threshold set forth in subsection (D) below) to include Tenant’s name and third
(3rd) floor location on “Impact Signage” to be installed by Landlord at Tenant’s
cost and expense in the central elevator lobby of the Building.




(C) Building Signage. Tenant shall have the non-exclusive right effective as of the
Commencement Date for the Initial Premises (irrespective of the fact that as of such date
Tenant shall not initially meet the occupancy threshold set forth in subsection (D) below),
at its sole cost and expense (but with no separate charge by Landlord for the signage rights
themselves), to design and install one (1) illuminated identification sign with Tenant’s
name and corporate logo on the exterior façade of the Building (the “Building Signage”),
subject to applicable zoning requirements and other applicable laws and to Tenant obtaining
all necessary permits and approvals therefor (Landlord hereby agreeing to cooperate with
Tenant, at no cost or expense to Landlord, in Tenant’s obtaining of such permits and
approvals).



Page 10









 






(D) Conditions. The location, design (including the manner of illumination, in the
case of the Building signage), proportions and color of the Impact Signage and the Building
Signage shall all be subject to the prior approval of Landlord, which approval is hereby
granted for the signs shown on Exhibit L attached hereto (and shall otherwise not be
unreasonably withheld, conditioned or delayed with respect to any proposed signage that is
consistent in size, design and location with the signage shown on Exhibit L).
Notwithstanding the foregoing provisions of this Section 4.2 to the contrary, within ninety
(90) days after the first to occur (if either) of (x) the date on which the Term of this
Lease is terminated due to a Tenant default pursuant to the terms and provisions of Section
15.2 below and (y) such time as Tenant has assigned this Lease or subleased more than
thirty-three percent (33%) of the then Premises (excluding assignments and subleases
permitted under Section 12.2 below), then Tenant shall, at its cost and expense, remove the
Impact Signage and the Building Signage and restore all damage to the Building caused by the
installation and/or removal of such Impact Signage or Building Signage. Such removal and
restoration shall be performed in accordance with the terms and conditions governing
alterations pursuant to Article IX below. The right to the Building Signage granted pursuant
to this Section 4.2 is personal to Constant Contact, Inc. and may not be transferred to any
third party (other than in connection with an assignment or sublease under Section 12.2
below, and in such event only on the condition that the Building Signage not be modified or
altered as the result of the transfer at issue).



ARTICLE V




Annual Fixed Rent and Electricity





	5.1	 	Fixed Rent and Electricity Charges
	 
	 	 	With respect to each Premises Component, Tenant agrees to pay to Landlord, or as directed by
Landlord, at Landlord’s Present Mailing Address specified in Section 1.2 hereof, or at such
other place as Landlord shall from time to time designate by notice, (1)(a) on the
Commencement Date for such Premises Component, and thereafter monthly, in advance, on the
first day of each and every calendar month during the Original Lease Term, a sum equal to
one-twelfth (1/12th) of the Annual Fixed Rent specified in Section 1.2 hereof and
(b) on the Commencement Date for such Premises Component and thereafter monthly, in advance,
on the first day of each and every calendar month during the Original Lease Term, an amount
estimated by Landlord from time to time to cover Tenant’s monthly payments for electricity
under Section 5.2 hereinbelow, and (2) on the first day of each and every calendar month
during the Extended Term (if exercised), a sum equal to (a) one-twelfth of the Annual Fixed
Rent as determined in Section 3.2 for the Extended Term plus (b) then applicable monthly
electricity charges (subject to adjustment as provided in Section 5.2). Until notice of some
other designation is given, fixed rent and all other charges for which provision is herein
made shall be paid by remittance to or for the order of Boston Properties Limited
Partnership either (i) by mail to P.O. Box 3557, Boston, Massachusetts 02241-3557, (ii) by
wire transfer to Bank of America in Dallas, Texas, Bank Routing Number 0260-0959-




Page 11









 












	 	 	3 or (iii) by ACH transfer to Bank of America in Dallas, Texas, Bank Routing Number 111 000
012, and in the case of (ii) or (iii) referencing Account Number 3756454460, Account Name of
Boston Properties, LP, Tenant’s name and the Property address.
	 
	 	 	Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at such rate on
a pro rata basis, and, if the applicable Commencement Date shall be other than the first day
of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to
Landlord shall be a payment equal to a proportionate part of such monthly Annual Fixed Rent
for the partial month from the applicable Commencement Date to the first day of the
succeeding calendar month.
	 
	 	 	Additional Rent payable by Tenant on a monthly basis, as elsewhere provided in this Lease,
likewise shall be prorated, and the first payment on account thereof shall be determined in
similar fashion and shall commence on the applicable Commencement Date and other provisions
of this Lease calling for monthly payments shall be read as incorporating this undertaking
by Tenant.
	 
	 	 	The Annual Fixed Rent and all other charges for which provision is made in this Lease shall
be paid by Tenant to Landlord without setoff, deduction or abatement except as expressly
otherwise provided in this Lease.
	 
	5.2	 	Tenant Electricity
	 
	 	 	Tenant shall pay to Landlord, as Additional Rent, Tenant’s Proportionate Share (hereinafter
defined) of the cost incurred by the Landlord in furnishing electricity and heating,
ventilating and air conditioning (“HVAC”) to the Building and the Site, including common
areas and facilities and space occupied by tenants, (but expressly excluding utility charges
separately chargeable to tenants for additional or special services), and Tenant shall pay
on account thereof, at the time that monthly installments of Annual Fixed Rent are due and
payable, as Additional Rent, an amount equal to 1/12th (prorated for any partial
month) of the amount reasonably estimated by Landlord from time to time as the Tenant’s
Proportionate Share of the annual cost thereof. If with respect to any calendar year falling
within the Lease Term or fraction of a calendar year falling within the Lease Term at the
beginning or end thereof, the Tenant’s Proportionate Share of the cost of furnishing
electricity and HVAC to the Building and the Site exceeds the amounts payable on account
thereof, then Tenant shall pay to Landlord, as Additional Rent, on or before the thirtieth
(30th) day following receipt by Tenant of the statement referred to below in this
Section 5.2, Tenant’s Proportionate Share of the amount of such excess.
	 
	 	 	For the purposes of this Section 5.2:






	 	(i)	 	the Tenant’s Proportionate Share of and with respect to the
electricity and HVAC for the Building shall be a fraction, the numerator of
which is the Rentable Floor Area of the Premises and the denominator of which
is the total rentable floor area of the Building from time to time under lease
to tenants; provided, however, that if at any time during the Lease Term




Page 12









 






	 	 	 	more than 60,041 square feet of the Total Rentable Floor Area of the
Building are not under lease to tenants, then for the purposes of
determining Tenant’s Proportionate Share of and with respect to the
electricity and HVAC for the Building, the denominator under this clause (i)
shall be deemed to be 308,216 square feet irrespective of the total rentable
floor area of the Building then under lease to tenants; and






	 	(ii)	 	the Tenant’s Proportionate Share of and with respect to the
electricity for the Site (e.g. outdoor lighting, etc.) shall be a fraction, the
numerator of which is the Rentable Floor Area of the Premises and the
denominator of which is the total rentable floor area of the Buildings from
time to time under lease to tenants; provided, however, that if at any time
more than 100,474 square feet of the Total Rentable Floor Area of the Buildings
are not under lease to tenants, then for the purposes of determining Tenant’s
Proportionate Share of and with respect to the electricity for the Site, the
denominator under this clause (ii) shall be deemed to be 429,516 square feet
irrespective of the total rentable floor area of the Buildings then under lease
to tenants.






	 	 	Not later than one hundred twenty (120) days after the end of the first calendar year or
fraction thereof ending December 31 and of each succeeding calendar year during the Term or
fraction thereof at the end of the Term, Landlord shall render Tenant a reasonably detailed
accounting certified by a representative of Landlord showing for the preceding calendar
year, or fraction thereof, as the case may be, the costs of furnishing electricity and HVAC
to the Building and the Site. Said statement to be rendered to Tenant also shall show for
the preceding year or fraction thereof, as the case may be, the amount already paid by
Tenant on account of electricity and HVAC, and the amount remaining due from, or overpaid
by, Tenant for the year or other period covered by the statement. Tenant shall pay any
underpayment to Landlord within thirty (30) days after receipt of such statement. Any
overpayment by Tenant shall be credited against Annual Fixed Rent next due, or refunded to
Tenant if the Lease Term has then terminated or expired and Tenant has no further obligation
to Landlord.





ARTICLE VI




Taxes





	6.1	 	Introduction
	 
	 	 	It is intended that this Article VI set forth the methodology for fulfillment of Tenant’s
obligation to contribute its allocable share of the amount by which Landlord’s Tax Expenses
(as hereinafter defined) exceed Base Taxes (as hereinafter defined). Due to the fact that
the Premises is contemplated to eventually be comprised of a number of Premises Components,
each of which may have different Base Taxes allocable thereto (because among other reasons
of the various dates upon which they are to respectively be incorporated into the Premises),
Tenant’s obligations under this Article VI must be




Page 13









 






	 	 	calculated for each such Premises Component, and then aggregated, so that the appropriate
Tax Excess (as hereinafter defined) can be established, as more particularly set forth
below.






	6.2	 	Definitions
	 
	 	 	With reference to the real estate taxes referred to in this Article VI, it is agreed that
terms used herein are defined as follows:






	 	(a)	 	“Tax Year” means the 12-month period beginning July 1 each year
during the Lease Term or if the appropriate Governmental tax fiscal period
shall begin on any date other than July 1, such other date.
	 
	 	(b)	 	“Landlord’s Tax Expenses Allocable to the Premises” means the
aggregate of Landlord’s Tax Expenses allocable to all of the Premises
Components which collectively comprise the Premises.
	 
	 	(c)	 	“Landlord’s Tax Expenses Allocable to a Premises Component”
means (i) the same proportion of Landlord’s Tax Expenses for and pertaining to
the Buildings as the Rentable Floor Area of the Premises Component bears to the
Total Rentable Floor Area of the Buildings plus (ii) the same
proportion of Landlord’s Tax Expenses for and pertaining to the Site as the
Rentable Floor Area of the Premises Component bears to the Total Rentable Floor
Area of the Buildings.
	 
	 	(d)	 	“Landlord’s Tax Expenses” with respect to any Tax Year means
the aggregate “real estate taxes” (hereinafter defined) with respect to that
Tax Year, reduced by any net abatement receipts with respect to that Tax Year.
	 
	 	(e)	 	“Real estate taxes” means all taxes and special assessments of
every kind and nature and user fees and other like fees assessed by any
Governmental authority on the Buildings or Site which the Landlord shall be
obligated to pay because of or in connection with the ownership, leasing and
operation of the Complex, the Buildings and the Property and reasonable
expenses of and fees for any formal or informal proceedings for negotiation or
abatement of taxes (collectively, “Abatement Expenses”), which Abatement
Expenses shall be excluded from Base Taxes. The amount of special taxes or
special assessments to be included shall be limited to the amount of the
installment (plus any interest other than penalty interest payable thereon) of
such special tax or special assessment required to be paid during the year in
respect of which such taxes are being determined. There shall be excluded from
such taxes all income, estate, succession, inheritance, transfer, gift, capital
stock or any income taxes arising out of or related to ownership and operation
of income-producing real estate, or any excise taxes imposed upon Landlord
based upon gross or net rentals or other income received by it; provided,
however, that if at any time during the Lease Term the present system of ad
valorem taxation of real property




Page 14









 






	 	 	 	shall be changed so that in lieu of, or in addition to, the whole or any
part of the ad valorem tax on real property, there shall be assessed on
Landlord a capital levy or other tax on the gross rents received with
respect to the Complex or Buildings or Property, or a Federal, State,
County, Municipal, or other local income, franchise, excise or similar tax,
assessment, levy or charge (distinct from any now in effect in the
jurisdiction in which the Property is located) measured by or based, in
whole or in part, upon any such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or based, shall be
deemed to be included within the term “real estate taxes” but only to the
extent that the same would be payable if the Site or Buildings were the only
property of Landlord. Notwithstanding the foregoing, “real estate taxes”
shall not include and Tenant shall not be required to pay any portion of any
tax or assessment expense or any increase therein (a) levied on Landlord’s
rental income, unless such tax or assessment is imposed in lieu of real
property taxes as set forth above; (b) in excess of the amount which would
be payable if such tax or assessment expense were paid in installments over
the longest permitted term; or (c) imposed on land and improvements other
than the Site.






	 	(f)	 	“Base Taxes,” when referring to the applicable Premises
Component, means Landlord’s Tax Expenses (hereinbefore defined) for the Tax
Year that Exhibit B-1 or Exhibit B-2, as applicable, specifies as the base
fiscal tax year for such Premises Component.
	 
	 	(g)	 	“Base Taxes Allocable to a Premises Component” means (i) the
same proportion of Base Taxes for and pertaining to the Buildings as the
Rentable Floor Area of such Premises Component bears to the Total Rentable
Floor Area of the Buildings plus (ii) the same proportion of Base Taxes
for and pertaining to the Site as the Rentable Floor Area of such Premises
Component bears to the Total Rentable Floor Area of the Buildings.
	 
	 	(h)	 	“Base Taxes Allocable to the Premises” means the aggregate of
Base Taxes Allocable to a Premises Component for all of the Premises Components
which collectively comprise the Premises.
	 
	 	(i)	 	If during the Lease Term the Tax Year is changed by applicable
law to less than a full 12-month period, the Base Taxes and Base Taxes
Allocable to the Premises shall each be proportionately reduced.






	 	 	Nothing contained in this Section 6.2 shall entitle Landlord to collect, collectively from
all of the tenants of the Complex, an amount exceeding one hundred percent (100%) of
Landlord’s Tax Expenses incurred by Landlord with respect to the pertinent Tax Year (any
collected amount exceeding 100% of Landlord’s Tax Expenses with respect to any such Tax Year
being referred to herein as “Tax Collection Surplus”), and Landlord shall,




Page 15









 






	 	 	except with respect to Base Taxes, credit any Tax Collection Surplus against the aggregate
of Landlord’s Tax Expenses incurred with respect to such Tax Year, which shall reduce the
same for all purposes hereunder.






	6.3	 	Tenant’s Share of Real Estate Taxes
	 
	 	 	If with respect to any full Tax Year or fraction of a Tax Year falling within the Lease Term
Landlord’s Tax Expenses Allocable to the Premises for a full Tax Year exceed Base Taxes
Allocable to the Premises or for any such fraction of a Tax Year exceed the corresponding
fraction of Base Taxes Allocable to the Premises (such amount being hereinafter referred to
as the “Tax Excess”), then Tenant shall pay to Landlord, as Additional Rent, the amount of
such Tax Excess. Payments by Tenant on account of the Tax Excess shall be made monthly at
the time and in the fashion herein provided for the payment of Annual Fixed Rent. The amount
so to be paid to Landlord shall be an amount from time to time reasonably estimated by
Landlord to be sufficient to provide Landlord, in the aggregate, a sum equal to the Tax
Excess, ten (10) days at least before the day on which tax payments by Landlord would become
delinquent. Not later than ninety (90) days after Landlord’s Tax Expenses Allocable to the
Premises are determinable for the first such Tax Year or fraction thereof and for each
succeeding Tax Year or fraction thereof during the Lease Term, Landlord shall render Tenant
a statement in reasonable detail certified by a representative of Landlord showing for the
preceding year or fraction thereof, as the case may be, real estate taxes on the Building
and Lot, abatements and refunds, if any, of any such taxes and assessments, expenditures
incurred in seeking such abatement or refund, the amount of the Tax Excess, the amount
thereof already paid by Tenant and the amount thereof overpaid by, or remaining due from
Tenant for the period covered by such statement. Within thirty (30) days after the receipt
of such statement, Tenant shall pay any sum remaining due. Any balance shown as due to
Tenant shall be credited against Annual Fixed Rent next due, or refunded to Tenant if the
Lease Term has then terminated or expired and Tenant has no further obligation to Landlord.
Expenditures for legal fees and for other expenses incurred in obtaining an abatement or
refund may be charged against the abatement or refund before the adjustments are made for
the Tax Year.
	 
	 	 	To the extent that real estate taxes shall be payable to the taxing authority in
installments with respect to periods less than a Tax Year, the statement to be furnished by
Landlord shall be rendered and payments made on account of such installments.





ARTICLE VII




Landlord’s Repairs and Services and Tenant’s Escalation Payments





	7.1	 	Structural Repairs
	 
	 	 	Except for (a) normal and reasonable wear and use and (b) damage caused by fire or casualty
and by eminent domain, Landlord shall, throughout the Lease Term, at Landlord’s sole cost
and expense, keep and maintain in good order, condition and repair




Page 16









 






	 	 	the following portions of the Building: the structural portions of the roof, the exterior
and load bearing walls, the foundation, the structural columns and floor slabs and other
structural elements of the Building and the parking garage located underneath the Building;
provided however, that Tenant shall pay to Landlord, as Additional Rent, the cost of any
and all such repairs which may be required as a result of repairs, alterations, or
installations made by Tenant or any subtenant, assignee, licensee or concessionaire of
Tenant or any agent, servant, employee or contractor of any of them or to the extent of any
loss, destruction or damage caused by the omission or negligence of Tenant, any assignee or
subtenant or any agent, servant, employee, customer, visitor or contractor of any of them.






	7.2	 	Other Repairs to be Made by Landlord
	 
	 	 	Except for (a) normal and reasonable wear and use and (b) damage caused by fire or casualty
and by eminent domain, and except as otherwise provided in this Lease and subject to
provisions for reimbursement by Tenant as contained in Section 7.5, Landlord agrees to keep
and maintain in good order, condition and repair the common areas and facilities of the
Building, the Site and the Complex, including all paved areas, landscaped areas and tennis
courts from time to time in existence, and all heating, ventilating, air conditioning,
plumbing and other Building systems equipment servicing the Premises (including all lines,
pipes, wires, conduits and the like except to the extent serving the Premises exclusively),
except that Landlord shall in no event be responsible to Tenant for (a) the condition of
glass in and about the Premises (other than for glass in exterior walls for which Landlord
shall be responsible unless the damage thereto is attributable to Tenant’s negligence or
misuse, in which event the responsibility therefor shall be Tenant’s), or (b) for any
condition in the Premises or the Building caused by any act or neglect of Tenant or any
agent, employee, contractor, assignee, subtenant, licensee, concessionaire or invitee of
Tenant. Without limitation, Landlord shall not be responsible to make any improvements or
repairs to the Building or the Premises other than as expressly provided in Section 7.1 or
in this Section 7.2, unless expressly otherwise provided in this Lease.
	 
	7.3	 	Services to be Provided by Landlord
	 
	 	 	In addition, and except as otherwise provided in this Lease and subject to provisions for
reimbursement by Tenant as contained in Section 7.6 and Tenant’s responsibilities in regard
to electricity as provided in Section 5.2, Landlord agrees to furnish services, utilities,
facilities and supplies set forth in Exhibit D hereto equal in quality comparable to those
customarily provided by landlords in high quality buildings in the Central Suburban 128
Market. In addition, Landlord agrees to furnish, at Tenant’s expense, reasonable additional
Building operation services which are usual and customary in similar buildings in Central
Suburban 128 Market, and such additional special services as may be mutually agreed upon by
Landlord and Tenant, upon reasonable and equitable rates from time to time established by
Landlord. Tenant agrees to pay to Landlord, as Additional Rent, the cost of any such
additional Building services requested by Tenant and for the cost of any additions,
alterations, improvements or other work performed by Landlord in the Premises at the request
of Tenant within thirty (30) days after being
billed therefor.




Page 17









 












	7.4	 	Introduction to Operating Costs
	 
	 	 	It is intended that, based on calculations guided by the definitions set forth in Section
7.5 below, Section 7.6 shall provide for Tenant to be financially responsible for its
allocable share of the amount by which Landlord’s Operating Expenses (as hereinafter
defined) exceed Base Operating Expenses (as hereinafter defined). Due to the fact that the
Premises is contemplated to eventually be comprised of a number of Premises Components, each
of which may have different Base Operating Expenses allocable thereto (because among other
reasons of the various dates upon which they are to respectively be incorporated into the
Premises), Tenant’s obligations under Sections 7.5 and 7.6 must be calculated for each such
Premises Component, and then aggregated, so that the appropriate Operating Cost Excess (as
hereinafter defined) can be established, as more particularly set forth below.
	 
	7.5	 	Operating Costs Defined
	 
	 	 	“Operating Expenses Allocable to the Premises” means the aggregate of Operating Expenses
Allocable to all of the Premises Components which collectively comprise the Premises.
“Operating Expenses Allocable to a Premises Component” means (i) the same proportion of
Landlord’s Operating Expenses (as hereinafter defined) for and pertaining to the Buildings
as Rentable Floor Area of the Premises Component bears to the Total Rentable Floor Area of
the Buildings plus (ii) the same proportion of Landlord’s Operating Expenses for and
pertaining to the Site as the Rentable Floor Area of the Premises Component bears to the
Total Rentable Floor Area of the Buildings. “Base Operating Expenses” means Landlord’s
Operating Expenses for the calendar year that is the period beginning January 1 and ending
December 31 that Exhibit B-1 or Exhibit B-2, as applicable, specifies as the base escalation
year for such Premises Component. Base Operating Expenses shall not include (x) market-wide
cost increases due to extraordinary circumstances, including but not limited to, Force
Majeure (as defined in Section 14.1), boycotts, strikes, conservation surcharges, embargoes
or shortages which apply only to the Base Year but no other year, other than the year
immediately prior to the Base Year or the year immediately following the Base Year and (y)
the cost of any Permitted Capital Expenditures (as hereinafter defined). “Base Operating
Expenses Allocable to a Premises Component” means (i) the same proportion of Base Operating
Expenses for and pertaining to the Buildings as the Rentable Floor Area of the Premises
Component bears to the Total Rentable Office Floor Area of the Buildings plus (ii)
the same proportion of Base Operating Expenses for and pertaining to the Site as the
Rentable Floor Area of the Premises Component bears to the Total Rentable Floor Area of the
Buildings. “Base Operating Expenses Allocable to the Premises” means the aggregate of Base
Operating Expenses allocable to all of the Premises Components which collectively comprise
the Premises.
	 
	 	 	“Landlord’s Operating Expenses” means the cost of operation of the Buildings and the Site
incurred by Landlord, including those incurred in discharging Landlord’s obligations under
Sections 7.2 and 7.3. Such costs shall exclude payments of debt service and any




Page 18









 






	 	 	other mortgage or ground lease charges, brokerage commissions, real estate taxes (to the
extent paid pursuant to Section 6.2 hereof) and costs of special services rendered to
tenants (including Tenant) for which a separate charge is made, but shall include, without
limitation:






	 	(a)	 	compensation, wages and all fringe benefits, worker’s
compensation insurance premiums and payroll taxes paid to, for or with respect
to all persons for their services in the operating, maintaining or cleaning of
the Buildings or the Site;
	 
	 	(b)	 	payments under service contracts with independent contractors
for operating, maintaining or cleaning of the Buildings or the Site;
	 
	 	(c)	 	steam, water, sewer, gas, oil, electricity and telephone
charges (excluding such utility charges separately chargeable to tenants for
additional or separate services and electricity charges payable by Tenant
pursuant to Section 5.2 above) and costs of maintaining letters of credit or
other security as may be required by utility companies as a condition of
providing such services;
	 
	 	(d)	 	cost of maintenance, cleaning and repairs (other than repairs
not properly chargeable against income or reimbursed from contractors under
guarantees);
	 
	 	(e)	 	cost of snow removal and care of landscaping;
	 
	 	(f)	 	cost of building and cleaning supplies and equipment;
	 
	 	(g)	 	premiums for insurance carried with respect to the Buildings
and the Site (including, without limitation, liability insurance, insurance
against loss in case of fire or casualty and of monthly installments of Annual
Fixed Rent and any Additional Rent which may be due under this Lease and other
leases of space in the Building for not more than twelve (12) months in the
case of both Annual Fixed Rent and Additional Rent and, if there be any first
mortgage on the Property, including such insurance as may be required by the
holder of such first mortgage);
	 
	 	(h)	 	management fees at reasonable rates for self managed buildings
in the Central Suburban 128 Market consistent with the type of occupancy and
the services rendered, which such management fees shall not exceed three and
one-half percent (3.5%) of the total Gross Rents for the Buildings (“Gross
Rents for the Buildings” for the purposes hereof being defined as all annual
fixed rent, Landlord’s Operating Expenses, with the exception of the aforesaid
management fees, and Landlord’s Tax Expenses for the Buildings for the relevant
calendar year) (it being understood and agreed that in determining the amount
of Landlord’s Operating Expenses for any




Page 19









 












	 	 	 	calendar year or portion thereof falling within the Lease Term where the
management fee is calculated based on a percentage of Gross Rents for the
Building that is higher than the actual percentage used during the Base
Year, the management fee for the Base Year shall be adjusted so that it
shall be based on the same percentage of Gross Rents for the Building used
in the subsequent calendar year at issue).
	 
	 	(i)	 	depreciation for capital expenditures made by Landlord during
the Lease Term (x) to reduce Operating Expenses if Landlord reasonably shall
have determined that the annual reduction in Operating Expenses shall exceed
depreciation therefor or (y) to comply with applicable Legal Requirements or
(z) to maintain the Building in a quality comparable to that of other high
quality office buildings in the Central Suburban 128 Market, (but excluding,
without limitation, capital expenditures made by Landlord to construct or
install the Alternative Parking under Section 10.2 below) (the capital
expenditures described in subsections (x), (y) and (z) being hereinafter
referred to as “Permitted Capital Expenditures”) plus, in the case of (x), (y)
and (z), an interest factor, reasonably determined by Landlord, as being the
interest rate then charged for long term mortgages by institutional lenders on
like properties within the general locality in which the Building is located,
and depreciation in the case of (x), (y) and (z) shall be determined by
dividing the original cost of such capital expenditure by the number of years
of useful life of the capital item acquired, which useful life shall be
determined reasonably by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of acquisition of the
capital item;
	 
	 	(j)	 	the pro rata share allocable to the Building of imputed rental
costs of maintaining a regional property management office in the Complex of a
reasonable size given the number and square footage of properties managed (and
the fact that as of the date hereof, Landlord is a self-administered and
self-managed real estate investment trust), which pro rata share shall be equal
to a fraction, the numerator of which is the Total Rentable Floor Area of the
Building and the denominator of which is the total rentable floor area of all
buildings managed by the staff of such regional property management office; and
	 
	 	(k)	 	all other reasonable and necessary expenses paid in connection
with the operating, cleaning and maintenance of the Buildings, the Site and
said common areas and facilities and properly chargeable against income.






	 	 	Notwithstanding the foregoing, the following shall be excluded from Landlord’s Operating
Expenses:






	 	(i)	 	All capital expenditures and depreciation,
except as otherwise explicitly provided in this Section 7.5;




Page 20









 












	 	(ii)	 	Interest on indebtedness, debt amortization,
ground rent, and refinancing costs for any mortgage or ground lease of
the Buildings or the Site;
	 
	 	(iii)	 	Legal, auditing, consulting and professional
fees and other costs (other than those legal, auditing, consulting and
professional fees and other costs incurred in connection with the
normal and routine maintenance and operation of the Complex),
including, without limitation, those: (i) paid or incurred in
connection with financings, refinancings or sales of any Landlord’s
interest in the Buildings or the Site, (ii) relating to any special
reporting required by securities laws, (iii) relating to disputes with
tenants or (iv) relating to litigation;
	 
	 	(iv)	 	The cost of any item or service to the extent
reimbursed or reimbursable to Landlord by insurance required to be
maintained under this Lease or by any third party;
	 
	 	(v)	 	The cost of repairs or replacements incurred by
reason of fire or other casualty or condemnation other than costs not
in excess of the deductible on any insurance maintained by Landlord
which provides a recovery for such repair or replacement;
	 
	 	(vi)	 	Any advertising, promotional or marketing
expenses for the Buildings, including, without limitation, leasing
commissions, attorneys’ fees, space planning costs and other costs and
expenses incurred in connection with the lease, sublease and/or
assignment negotiations and transactions with present or prospective
tenants or other occupants of the Buildings;
	 
	 	(vii)	 	The cost of any service or materials provided
by any party related to Landlord (other than the management fee, which
shall be subject to the terms and provisions of Section 7.5(h) above),
to the extent such costs exceed the reasonable cost for such service or
materials absent such relationship in buildings similar to the
Buildings in the Central Suburban 128 Market;
	 
	 	(viii)	 	Payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased to the
extent that such payments exceed the amount which could have been
included in Landlord’s Operating Expenses had Landlord purchased such
equipment rather than leasing such equipment;
	 
	 	(ix)	 	Penalties, damages, and interest for late
payment or violations of




Page 21









 






	 	 	 	any obligations of Landlord, including, without limitation, taxes,
insurance, equipment leases and other past due amounts;






	 	(x)	 	Costs arising from Landlord’s political or
charitable contributions;
	 
	 	(xi)	 	The cost of testing, remediation or removal of
“Hazardous Materials” (as defined in Section 12.2) in the Buildings or
on the Site required by “Hazardous Materials Laws” (as defined in
Section 12.2), provided however, that with respect to the testing,
remediation or removal of any material or substance which, as of the
Commencement Date was not considered, as a matter of law, to be a
Hazardous Material, but which is subsequently determined to be a
Hazardous Material as a matter of law, the costs thereof shall be
included in Landlord’s Operating Expenses;
	 
	 	(xii)	 	Wages, salaries, or other compensation paid to
any executive employees above the grade of Regional Property Manager;
	 
	 	(xiii)	 	The net (i.e. net of the reasonable costs of collection) amount
recovered by Landlord under any warranty or service agreement from any
contractor or service provider shall be credited against Landlord’s
Operating Expenses; and
	 
	 	(xiv)	 	Landlord’s general corporate overhead and
administrative services (except for property management services
related to the operation of the Property, including, without
limitation, risk management, accounting, security and energy management
services).






	 	 	Notwithstanding the foregoing, in determining the amount of Landlord’s Operating Expenses
for any calendar year or portion thereof falling within the Lease Term (including, without
limitation, any Base Year applicable to a Premises Component), if less than ninety-five
percent (95%) of the Total Rentable Floor Area of the Buildings shall have been occupied by
tenants at any time during the period in question, then those components of Landlord’s
Operating Expenses that vary based on occupancy for such period shall be adjusted to equal
the amount such components of Landlord’s Operating Expenses would have been for such period
had occupancy been ninety-five percent (95%) throughout such period. The foregoing
calculations shall not entitle Landlord to collect, collectively from all of the tenants in
the Complex, an amount exceeding one hundred percent (100%) of the Landlord’s Operating
Expenses incurred by Landlord with respect to the pertinent calendar year (any collected
amount exceeding 100% of Operating Expenses with respect to any calendar year being referred
to herein as “Operating Expense Collection Surplus”), and Landlord shall, except with
respect to Base Operating Expenses, credit any Operating Expense Collection Surplus against
the aggregate of Operating Expenses incurred with respect to such calendar year, which shall
reduce the same for all purposes hereunder.




Page 22









 












	7.6	 	Tenant’s Escalation Payments






(A) If with respect to any calendar year falling within the Lease Term, or fraction of a
calendar year falling within the Lease Term at the beginning or end thereof, the Operating
Expenses Allocable to the Premises (as defined in Section 7.4) for a full calendar year
exceed Base Operating Expenses Allocable to the Premises (as defined in Section 7.4) or for
any such fraction of a calendar year exceed the corresponding fraction of Base Operating
Expenses Allocable to the Premises (such amount being hereinafter referred to as the
“Operating Cost Excess”), then Tenant shall pay to Landlord, as Additional Rent, on or
before the thirtieth (30th) day following receipt by Tenant of the statement
referred to below in this Section 7.5, the amount of such excess. Base Operating Expenses
(as defined in Section 7.4) do not include the tenant electricity to be paid by
Tenant as part of the Annual Fixed Rent.




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




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




If such statement shows a balance remaining due to Landlord, Tenant shall pay same to
Landlord on or before the thirtieth (30th) day following receipt by Tenant of
said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed
Rent next due, or refunded to Tenant if the Lease Term has then expired and Tenant has no
further obligation to Landlord.




Any payment by Tenant for the Operating Cost Excess shall not be deemed to waive any rights
of Tenant to claim that the amount thereof was not determined in accordance with the
provisions of this Lease.




(D) Subject to the provisions of this paragraph, Tenant shall have the right, at Tenant’s
cost and expense, to examine all documentation and calculations prepared in the
determination of the Tax Excess, Operating Cost Excess and Tenant’s proportionate share of
electricity and HVAC costs, as determined pursuant to Section 5.2 (the “Electricity
Excess”):



Page 23









 






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




(2) Tenant shall have the right to make such examination no more than once in
respect of any period for which Landlord has given Tenant a statement of the actual
amount of Landlord’s Tax Expenses, Landlord’s Operating Expenses or the Electricity
Excess, as applicable.




(3) Except as provided by the last sentence of this Section 7.6, any request for
examination in respect of any Tax Year or calendar year, as applicable, may be made
no more than one hundred eighty (180) days after Landlord advises Tenant in writing
of the actual amount of Landlord’s Tax Expenses, Landlord’s Operating Expenses or
the Electricity Excess, as applicable in respect of such period and provides to
Tenant the appropriate year-end statement required under Section 5.2, Section 6.3 or
Section 7.6, as applicable (provided, however, that if after any audit is performed
hereunder, it is finally determined that Tenant has been overcharged on account of
Landlord’s Tax Expenses Allocable to the Premises, Operating Expenses Allocable to
the Premises and/or the Electricity Excess by more than three percent (3%) for the
Tax Year or calendar year in question, Tenant may request to examine the
documentation and calculations for the overcharged item for the immediately
preceding Tax Year or calendar year, as applicable).




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




(5) As a condition to performing any such examination, Tenant and its examiners
shall be required to execute and deliver to Landlord an agreement, in form
reasonably acceptable to Landlord, agreeing to keep confidential any information
which it discovers about Landlord or the Buildings in connection with such
examination, provided however, that Tenant shall be permitted to share such
information with each of its permitted subtenants so long as such subtenants execute
and deliver to Landlord similar confidentiality agreements.




(6) If, after the audit by Tenant of Landlord’s books and records pursuant to this
Section 7.6 with respect to any calendar year, it is finally determined that: (i)
Tenant has made an overpayment on account of Landlord’s Tax Expenses Allocable to
the Premises, Operating Expenses Allocable to the Premises and/or the Electricity
Excess, as applicable, Landlord shall credit any such overpayment against the next
installment(s) of Annual Fixed Rent thereafter payable by Tenant, except that if
such overpayment is determined after the termination or expiration



Page 24









 







of the term of this Lease, Landlord shall promptly refund to Tenant the amount of
any such overpayment less any amounts then due from Tenant to Landlord; and (ii)
Tenant has made an underpayment on account of Landlord’s Tax Expenses Allocable to
the Premises, Operating Expenses Allocable to the Premises and/or the Electricity
Excess, as applicable, Tenant shall, within forty-five (45) days of such
determination, pay any such underpayment to Landlord.




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




	 	 	Landlord shall have no right to correct any year end statement with respect to any Tax Year
or calendar year after the date one (1) year after the end of the period in question.
Notwithstanding any provision hereof to the contrary, if Landlord provides Tenant with any
such corrected statement, then Tenant shall have one hundred eighty (180) days from the
receipt of any such corrected statement to request an examination as set forth in Section
7.6(D)(3) hereof (subject to the proviso set forth at the end of subsection (3) above
regarding Tenant’s ability to request examinations for prior years).
	 
	7.7	 	No Damage






(A) Landlord shall not be liable to Tenant for any compensation or reduction of rent by
reason of inconvenience or annoyance or for loss of business arising from the necessity of
Landlord or its agents entering the Premises for any purposes in this Lease authorized, or
for repairing the Premises or any portion of the Buildings however the necessity may occur.
In case Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any services or performing any other covenant or duty to be
performed on Landlord’s part, by reason of any cause reasonably beyond Landlord’s control,
including, without limitation, strike, lockout, breakdown, accident, order or regulation of
or by any Governmental authority, or failure of supply, 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 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, Landlord shall not be liable to Tenant therefor, nor, except as
expressly otherwise provided in this Lease, shall Tenant be entitled to any abatement or
reduction of rent by reason thereof, or right to terminate this Lease, nor shall the same
give rise to a claim in Tenant’s favor that such failure constitutes actual or constructive,
total or partial, eviction from the Premises, but Landlord shall nonetheless use
commercially reasonably efforts to mitigate the adverse impact of any such event on Tenant’s
use and enjoyment of the Premises to the extent it is within Landlord’s reasonable ability
to do so under the circumstances.




(B) Landlord reserves the right to stop any service or utility system, when necessary by
reason of accident or emergency, or until necessary repairs have been completed;



Page 25









 







provided, however, that in each instance of stoppage, Landlord shall exercise reasonable
diligence to eliminate the cause thereof. Except in case of emergency repairs, Landlord will
give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to Tenant by reason thereof.




(C) Notwithstanding anything to the contrary in this Lease contained, if due to (i) any
repairs, alterations, replacements, or improvements made by Landlord, (ii) Landlord’s
failure to make any repairs, alterations, or improvements required to be made by Landlord
hereunder, or to provide any service required to be provided by Landlord hereunder, or (iii)
failure of electric supply, any portion of the Premises becomes untenantable so that for the
Premises Untenantability Cure Period, as hereinafter defined, the continued operation in the
ordinary course of Tenant’s business is materially adversely affected, then, provided that
Tenant ceases to use the affected portion of the Premises during the entirety of the
Premises Untenantability Cure Period by reason of such untenantability, and that such
untenantability and Landlord’s inability to cure such condition is not caused by the fault
or neglect of Tenant or Tenant’s agents, employees or contractors, Annual Fixed Rent, Tax
Excess and Operating Cost Excess shall thereafter be abated in proportion to such
untenantability and its impact on the continued operation in the ordinary course of Tenant’s
business until the day such condition no longer has the material adverse effect referred to
above. For the purposes hereof, the “Premises Untenantability Cure Period” shall be defined
as five (5) consecutive business days after Landlord’s receipt of written notice from Tenant
of the condition causing untenantability in the Premises, provided however, that the
Premises Untenantability Cure Period shall be ten (10) consecutive business days after
Landlord’s receipt of written notice from Tenant of such condition causing untenantability
in the Premises if either the condition was caused by causes beyond Landlord’s control or
Landlord is unable to cure such condition as the result of causes beyond Landlord’s control.




In addition, if due to (i) any repairs, alterations, replacements, or improvements made by
Landlord, (ii) Landlord’s failure to make any repairs, alterations, or improvements required
to be made by Landlord hereunder, or to provide any service required to be provided by
Landlord hereunder, or (iii) failure of electric supply, the operation of Tenant’s business
in the Premises in the normal course is materially adversely affected for a period of five
(5) consecutive months after Landlord’s receipt of written notice of such condition from
Tenant, then, provided that Tenant ceases to use the affected portion of the Premises for
the period of such untenantability and such untenantability and Landlord’s inability to cure
such condition is not caused by the fault or neglect of Tenant, or Tenant’s agents,
employees or contractors, then Tenant may terminate this Lease by giving Landlord written
notice as follows:




	 	(i)	 	Said notice shall be given after said five (5)
month period.
	 
	 	(ii)	 	Said notice shall set forth an effective date
which is not earlier than thirty (30) days after Landlord receives said
notice.
	 
	 	(iii)	 	If said condition is remedied on or before the
date thirty (30) days




Page 26









 






	 	 	 	after the receipt of such notice, said notice shall have no further
force and effect.






	 	(iv)	 	If said condition is not remedied on or before
the date thirty (30) days after the receipt of such notice for any
reason other then Tenant’s fault, as aforesaid, the Lease shall
terminate as of said effective date, and the Annual Fixed Rent and
Additional Rent due under the Lease shall be apportioned as of said
effective date.






	 	 	The remedies set forth in this Section 7.7 shall be Tenant’s sole remedies for the events
described herein. The provisions of this subsection (C) shall not apply in the event of
untenantability caused by fire or other casualty, or taking (which shall be subject to the
terms and conditions of Article XIV below).





ARTICLE VIII




Tenant’s Repairs





	8.1	 	Tenant’s Repairs and Maintenance
	 
	 	 	Tenant covenants and agrees that, from and after the date that possession of the Premises is
delivered to Tenant and until the end of the Lease Term, Tenant will keep neat and clean and
maintain in good order, condition and repair the Premises and every part thereof, excepting
only for those repairs for which Landlord is responsible under the terms of Article VII of
this Lease and damage by fire or casualty and as a consequence of the exercise of the power
of eminent domain. Tenant shall not permit or commit any waste, and Tenant shall be
responsible for the cost of repairs which may be made necessary by reason of damage to
common areas in the Building, the Additional Building or any other portion of the Site
caused by Tenant, Tenant’s agents, contractors, employees, sublessees, licensees,
concessionaires or invitees. Tenant shall maintain all its equipment, furniture and
furnishings in good order and repair.
	 
	 	 	If repairs are required to be made by Tenant pursuant to the terms hereof, Landlord may
demand that Tenant make the same forthwith, and if Tenant refuses or neglects to commence
such repairs and complete the same with reasonable dispatch after such demand, Landlord may
(but shall not be required to do so) make or cause such repairs to be made pursuant to the
provisions of Section 16.17 below.





ARTICLE IX




Alterations





	9.1	 	Landlord’s Approval
	 
	 	 	Tenant covenants and agrees not to make alterations, additions or improvements to the
Premises, whether before or during the Lease Term, except in accordance with plans and




Page 27









 












	 	 	specifications therefor first approved by Landlord in writing, which approval shall not be
unreasonably withheld or delayed. Landlord shall not be deemed unreasonable:






	 	(a)	 	for withholding approval of any alterations, additions or
improvements which (i) in Landlord’s opinion would reasonably be expected to
adversely affect any structural or exterior element of the Buildings, any area
or element outside of the Premises or any facility or base building mechanical
system serving any area of the Buildings outside of the Premises, or (ii)
involve or affect the exterior design, size, height or other exterior
dimensions of the Buildings, or (iii) are inconsistent in any material respect,
in Landlord’s reasonable judgment, with alterations satisfying Landlord’s
standards for new alterations in the Buildings, or (iv) will require unusual
expense to readapt the Premises to normal office use upon Lease termination or
expiration or increase the cost of construction or of insurance or taxes on the
Buildings or of the services provided by Landlord herein unless Tenant first
gives assurance acceptable to Landlord for payment of such increased cost and
that such readaptation will be made prior to termination and or expiration
without expense to Landlord (alterations, additions or improvements described
in this clause (iv) being sometimes collectively referred to as “Special
Improvements”); or
	 
	 	(b)	 	for making its approval of any Special Improvements conditional
on Tenant’s agreement to restore the Premises to its condition prior to
construction of such Special Improvements at the expiration or earlier
termination of the Lease Term, reasonable wear and tear excepted.






	 	 	Landlord’s review and approval of any such plans and specifications and consent to perform
work described therein shall not be deemed an agreement by Landlord that such plans,
specifications and work conform with applicable Legal Requirements and requirements of
insurers of the Buildings and the other requirements of the Lease with respect to Tenant’s
insurance obligations (herein called “Insurance Requirements”) nor deemed a waiver of
Tenant’s obligations under this Lease with respect to applicable Legal Requirements and
Insurance Requirements nor impose any liability or obligation upon Landlord with respect to
the completeness, design sufficiency or compliance of such plans, specifications and work
with applicable Legal Requirements and Insurance Requirements. Further, Tenant acknowledges
that Tenant is acting for its own benefit and account, and that Tenant shall not be acting
as Landlord’s agent in performing any work in the Premises, accordingly, no contractor,
subcontractor or supplier shall have a right to lien Landlord’s interest in the Property in
connection with any such work. Within thirty (30) days after receipt of an invoice from
Landlord (together with reasonable supporting back-up documentation), Tenant shall pay to
Landlord as a fee for Landlord’s review of any work or plans (excluding any review
respecting initial improvements performed pursuant to Section 4.1 hereof or any other
improvements for which a construction management fee has previously been paid but including
any review of plans or work relating to any assignment or subletting), as Additional Rent,
an amount equal to the sum of: (i) $150/hour for time spent by senior staff, and $100/hour
for time spent by junior




Page 28









 






	 	 	staff, plus (ii) reasonable third party expenses incurred by Landlord to review Tenant’s
plans and Tenant’s work.






	9.2	 	Conformity of Work
	 
	 	 	Tenant covenants and agrees that any alterations, additions, improvements or installations
made by it to or upon the Premises shall be done in a good and workmanlike manner and in
compliance with all applicable Legal Requirements and Insurance Requirements now or
hereafter in force, that materials of good quality (but in no event of lesser quality than
reasonably appropriate for the maintenance of a consistently high quality building) shall be
employed therein and that the structure of the Buildings shall not be endangered or impaired
thereby.
	 
	9.3	 	Performance of Work, Governmental Permits and Insurance. 
	 
	 	 	All of Tenant’s alterations and additions and installation of furnishings shall be
coordinated with any work being performed by or for Landlord and in such manner as to
maintain harmonious labor relations and not to damage the Buildings or Site or interfere
with Building construction or operation and, except for installation of furnishings, shall
be performed by Landlord’s general contractor or by contractors or workers first approved by
Landlord in its reasonable discretion. Except for work by Landlord’s general contractor,
Tenant shall procure all necessary governmental permits before making any repairs,
alterations, other improvements or installations. Tenant agrees to save harmless and
indemnify Landlord from any and all injury, loss, claims or damage to any person or property
occasioned by or arising out of the doing of any such work whether the same be performed
prior to or during the Term of this Lease. At Landlord’s reasonable election, taking into
account the scope and cost of the proposed alteration, Tenant shall cause its contractor to
maintain a payment and performance bond in such amount and with such companies as Landlord
shall reasonably approve. In addition, Tenant shall cause each contractor to carry worker’s
compensation insurance in statutory amounts covering the employees of all contractors and
subcontractors, and commercial general liability insurance or comprehensive general
liability insurance with a broad form comprehensive liability endorsement with such limits
as Landlord may require reasonably from time to time during the Term of this Lease, but in
no event less than the minimum amount of commercial general liability insurance or
comprehensive general liability insurance Tenant is required to maintain as set forth in
Section 1.2 hereof and as the same may be modified as provided in Section 13.2 hereof (all
such insurance to be written in companies approved reasonably by Landlord and insuring
Landlord, Landlord’s managing agent and Tenant as additional insureds as well as
contractors) and to deliver to Landlord certificates of all such insurance. Tenant shall
also prepare and submit to Landlord a set of as-built plans, in both print and electronic
forms, showing such work performed by Tenant to the Premises promptly after any such
alterations, improvements or installations are substantially complete and promptly after any
wiring or cabling for Tenant’s computer, telephone and other communications systems is
installed by Tenant or Tenant’s contractor. Without limiting any of Tenant’s obligations
hereunder except as otherwise provided in Sections 4.1(B), (C) and (D) above, Tenant shall
be responsible, as Additional Rent, for the costs of any alterations, additions or
improvements in or to the




Page 29









 






	 	 	Building that are required in order to comply with Legal Requirements as a result of any
work performed by Tenant. Landlord shall have the right to provide rules and regulations
(which shall be applied in a non-discriminatory manner) relative to the performance of any
alterations, additions, improvements and installations by Tenant hereunder and Tenant shall
abide by all such reasonable rules and regulations and shall cause all of its contractors to
so abide including, without limitation, payment for the costs of using Building services.
Tenant acknowledges and agrees that Landlord shall be the owner of any additions,
alterations and improvements in the Premises or the Buildings to the extent paid for by
Landlord.






	9.4	 	Liens
	 
	 	 	Tenant covenants and agrees to pay promptly when due the entire cost of any work done on the
Premises by Tenant, its agents, employees or contractors, and not to cause or permit any
liens for labor or materials performed or furnished in connection therewith to attach to the
Premises or the Buildings or the Site and promptly to discharge (whether by bonding or
otherwise) any such liens which may so attach.
	 
	9.5	 	Nature of Alterations
	 
	 	 	All work, construction, repairs, alterations, other improvements or installations made to or
upon the Premises (including, but not limited to, the construction performed by Landlord
under Article IV and any alteration by Tenant of the third (3rd) floor corridor),
shall become part of the Premises and shall become the property of Landlord and remain upon
and be surrendered with the Premises as a part thereof upon the expiration or earlier
termination of the Lease Term, except as follows:






	 	(a)	 	All furniture, equipment, other personal property, and trade
fixtures (including, without limitation, any satellite or microwave dish or any
communications equipment (including, without limitation, any telephone switch
gear), and any security or monitoring equipment, including, without limitation,
the Emergency Generator and Generator Connection, as set forth in Section
16.30) whether by law deemed to be a part of the realty or not, installed at
any time or times by Tenant or any person claiming under Tenant shall remain
the property of Tenant or persons claiming under Tenant and may be removed by
Tenant or any person claiming under Tenant at any time or times during the
Lease Term or any occupancy by Tenant thereafter and shall be removed by Tenant
at the expiration or earlier termination of the Lease Term if so requested by
Landlord. Tenant shall repair any damage to the Premises occasioned by the
removal by Tenant or any person claiming under Tenant of any such property from
the Premises.
	 
	 	(b)	 	At the expiration or earlier termination of the Lease Term,
unless otherwise agreed in writing by Landlord, Tenant shall remove any wiring
for Tenant’s computer, telephone and other communication systems and equipment
whether located in the Premises or in any other portion of the




Page 30









 












	 	 	 	Buildings or the Site, including all risers and any alterations, additions
and improvements made with Landlord’s consent during the Lease Term for
which such removal was made a condition of such consent under Section 9.1
(b). Upon such removal Tenant shall restore the Premises to their condition
prior to such alterations, additions and improvements and repair any damage
occasioned by such removal and restoration.
	 
	 	(c)	 	If Tenant shall make any alterations, additions or improvements
to the Premises for which Landlord’s approval is required under Section 9.1
(after giving effect to the provisions of Section 9.7), without obtaining such
approval, then at Landlord’s request at any time during the Lease Term, and at
any event at the expiration or earlier termination of the Lease Term, Tenant
shall remove such alterations, additions and improvements and restore the
Premises to their condition prior to same and repair any damage occasioned by
such removal and restoration. Nothing herein shall be deemed to be a consent to
Tenant to make any such alterations, additions or improvements, the provisions
of Section 9.1 being applicable to any such work.
	 
	 	(d)	 	Tenant shall have no obligation to restore demolished
conference rooms or alterations of the third (3rd) floor corridor to
their condition prior to such demolition or alteration (i.e., Tenant shall not
be required to reinstall the conference rooms and/or the corridor if Tenant
elects to demolish the same).






	9.6	 	Increases in Taxes
	 
	 	 	Tenant shall pay, as Additional Rent, one hundred percent (100%) of any increase in real
estate taxes on the Complex which shall, at any time after the Commencement Date, result
from alterations, additions or improvements to the Premises made by Tenant if the taxing
authority specifically determines such increase results from such alterations, additions or
improvements made by Tenant.
	 
	9.7	 	Alterations Permitted Without Landlord’s Consent
	 
	 	 	Notwithstanding the terms of Section 9.1, Tenant shall have the right, without obtaining the
prior consent of Landlord but upon notice to Landlord given ten (10) days prior to the
commencement of any work (which notice shall specify the nature of the work in reasonable
detail), to make alterations, additions or improvements to the Premises where:






	 	(i)	 	the same are within the interior of the Premises within the
Building, and do not affect the exterior of the Premises and the Buildings
(including no signs on windows);
	 
	 	(ii)	 	the same do not affect the roof, any structural element of the
Buildings, the mechanical, electrical, plumbing, heating, ventilating,
air-conditioning and fire protection systems of the Buildings;






Page 31











 






	 	(iii)	 	with the exception of painting and carpeting (which shall
not be subject to the dollar limits set forth in this subsection (iii)), the
cost of any individual alteration, addition or improvement shall not exceed
$250,000.00 and the aggregate cost of said alterations, additions or
improvements made by Tenant during the Lease Term shall not exceed
$1,000,000.00 in cost; and
	 
	 	(iv)	 	Tenant shall comply with the provisions of this Lease and if
such work increases the cost of insurance or taxes or of services, Tenant shall
pay for any such increase in cost;






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



ARTICLE X




Parking





	10.1	 	Tenant’s Parking
	 
	 	 	Landlord shall provide to Tenant monthly privileges in the number specified in Section 1.2
for the parking of automobiles, in common with use by other tenants from time to time of the
Complex, and on a first-come, first-served basis, and Landlord shall not be obligated to
furnish stalls or spaces on the Site specifically designated for Tenant’s use. Tenant
covenants and agrees that it and all persons claiming by, through and under it, shall at all
times abide by all reasonable rules and regulations promulgated by Landlord with respect to
the use of the parking areas on the Site. The parking privileges granted herein are
non-transferable except to a permitted assignee or subtenant as provided in Article XII
below. Further, Landlord assumes no responsibility whatsoever for loss or damage due to
fire, theft or otherwise to any automobile(s) parked on the Site or to any personal property
therein, however caused, and Tenant covenants and agrees, upon request from Landlord from
time to time, to notify its officers, employees, agents and invitees of such limitation of
liability. Tenant acknowledges and agrees that a license only is hereby granted, and no
bailment is intended or shall be created.
	 
	10.2	 	Parking Shortages






(A) In the event that during the Lease Term there shall occur a Parking Shortage (as defined
below), Landlord shall provide Tenant with additional parking privileges in the garage
located underneath the Building as necessary to alleviate the Parking Shortage (it



Page 32









 







being understood and agreed that the number of garage parking privileges to be issued to
Tenant and the increase in the Tenant’s ratio of parking privileges shall be as determined
by Landlord in its reasonable discretion as being, in Landlord’s view, adequate to alleviate
the Parking Shortage). Such additional parking privileges shall be provided to Tenant free
of charge.




(B) If such Parking Shortage shall continue despite the issuance of such additional parking
privileges to Tenant, Landlord shall, at its sole cost and expense, use commercially
reasonable best efforts to endeavor to obtain the necessary permits and approvals for and to
(x) restripe the existing surface parking areas serving the Complex (the “Restriped
Parking”) and/or (y) create additional surface parking on the Site (such as in the location
of the existing tennis courts) (the “Additional Surface Parking,” and, collectively with the
Restriped Parking, the “Alternative Parking”) in order to provide the additional parking
privileges necessary to alleviate the Parking Shortage. Landlord shall have the right in its
reasonable discretion to determine what mode of Alternative Parking to pursue (i.e., the
Restriped Parking or the Additional Surface Parking, or some combination of the two).




(C) In the event that (i) Landlord is unable to obtain the permits and approvals to create
Alternative Parking or (ii) a Parking Shortage shall continue to exist despite Landlord’s
having implemented the measures described in subsections (A) and (B) above, then Landlord
shall use commercially reasonable best efforts to endeavor to obtain the necessary permits
and approvals to institute a managed parking program exclusively for Tenant within the
garage located underneath the Building (the “Managed Parking Program”). In the event that
Landlord and Tenant mutually determine (each acting reasonably and in good faith) that
locating the Managed Parking Program within the garage would not be feasible, Landlord and
Tenant shall mutually agree (each acting reasonably and in good faith) upon a location of
such Managed Parking Program in reasonable proximity to the Building. In addition, Landlord
shall use commercially reasonable best efforts to endeavor to obtain the necessary permits
and approvals to implement the Managed Parking Program on a temporary basis during its
pursuit of the permits and approvals for the Alternative Parking to alleviate any Parking
Shortage that exists during the pendency of the permitting process. All costs associated
with the Managed Parking Program (including, without limitation, the cost of securing
permits and approvals and the cost of providing the valet service), whenever and wherever
implemented, shall be payable by Tenant as Additional Rent hereunder and not as part of
Landlord’s Operating Expenses.




(D) For the purposes hereof, a “Parking Shortage” shall be defined as an overuse of the
surface parking areas of the Site such that Tenant is unable to utilize the Number of
Parking Privileges for such surface parking areas provided to Tenant hereunder, as
determined in accordance with the following procedure:




	 	(i)	 	In the event that Landlord receives four (4) complaints from
tenants of the Complex (which may include Tenant) over a period of two (2)
weeks indicating that they are unable to find surface parking spaces at the




Page 33









 






	 	 	 	Complex, Landlord shall perform and complete a parking survey of the
 Complex within two (2) weeks of its receipt of the last such complaint and
shall provide Tenant with a copy of such survey within one (1) week of its
completion.
	 
	 	(ii)	 	If the parking survey indicates that fewer than fifteen (15) of
the total number of surface parking spaces on the Site are available for tenant
parking on more than four (4) business days over a period of two (2) weeks,
then Landlord shall attempt to ascertain whether the cause of the problem is a
particular tenant’s overuse of the number of parking privileges provided to
such tenant under the terms of its lease and shall take reasonable measures to
enforce the terms of such lease and rectify the situation.
	 
	 	(iii)	 	In the event that the overuse cannot be readily addressed by
Landlord, then a Parking Shortage shall be deemed to exist and shall trigger
Landlord’s obligations under this Section 10.2 to take the steps set forth in
subsections (A), (B) and (C) above to alleviate the Parking Shortage.






Notwithstanding anything contained herein to the contrary, under no circumstances shall
Landlord be required to endeavor to obtain the Alternative Parking in the event of a Parking
Shortage that occurs during the last eighteen (18) months of the Lease Term unless and until
Tenant shall validly exercise its then-current extension option under Section 3.2 below (it
being understood and agreed in connection with the foregoing that (x) Landlord shall have no
obligation to endeavor to obtain the Alternative Parking in the event that Tenant shall have
no further rights to extend the Lease Term and (y) Landlord shall nonetheless be required to
endeavor to implement the Managed Parking Program, at Tenant’s sole cost and expense, to
address the Parking Shortage irrespective of the amount of time remaining in the Lease
Term).




(E) Tenant acknowledges and agrees that there may be a temporary disruption in parking in
connection with the creation of Alternative Parking and /or the conversion to a Managed
Parking Program, and Tenant shall reasonably cooperate with Landlord during such creation
and/or conversion construction (Landlord hereby agreeing to use reasonable efforts to
minimize such disruption).




(F) Notwithstanding anything contained in this Lease to the contrary, Tenant’s use of
parking privileges in excess of the Number of Parking Privileges provided to it hereunder
shall never be deemed to constitute an Event of Default under Section 15.1 nor give rise to
any right of Landlord to terminate this Lease or to seek monetary damages on account of such
overuse of parking privileges; provided, however, that if a Parking Shortage occurs as a
result of such overuse by Tenant and such Parking Shortage cannot be addressed by the
methods set forth herein, Landlord shall retain its right to seek specific performance to
compel Tenant to cease such action.




(G) Notwithstanding anything contained in this Lease to the contrary, in no event



Page 34









 







shall Landlord be deemed to be in default of its obligations hereunder in the event that
Landlord is unable to obtain rights to create Alternative Parking and/or the Managed Parking
Program, so long as Landlord has used commercially reasonable best efforts as aforesaid. In
connection with its effort to obtain permits and approvals for the Alternative Parking
and/or the Managed Parking Program, it is expressly understood and agreed that Landlord
shall not be obligated to accept conditions, restrictions or limitations that would
materially adversely affect Landlord’s ownership, management or operation of the Complex as
determined by Landlord in its reasonable discretion. Without limiting the generality of the
foregoing, it is further understood and agreed that Landlord may cease its efforts to obtain
permits and approvals for the Alternative Parking and/or the Managed Parking Program (which
shall include, without limitation, electing not to raise the issue before the full Waltham
City Council if Landlord concludes in its reasonable judgment after informal discussions
with individual members of the City Council and/or consultants that the City Council is not
amenable to any petition to modify the existing approved site plan) at any time if Landlord
determines in good faith but in its sole discretion that the petition(s) to obtain permits
and approvals for the Alternative Parking and/or the Managed Parking Program is not likely
to be successful or would have a material, adverse effect on Landlord’s ownership,
management or operation of the Complex.




In addition, Landlord shall never be deemed to be in default of its obligations hereunder by
virtue of its inability to address a Parking Shortage on the Site to the extent such Parking
Shortage is caused by the use of parking spaces by Tenant or any assignee or subtenant in a
ratio greater than five (5) parking privileges for each 1,000 square feet of rentable floor
area of the applicable portion of the Premises (it being further understood and agreed that
Landlord shall be under no obligation whatsoever under this Section 10.2 or otherwise to
address a Parking Shortage at the Site to the extent such Parking Shortage is caused by the
use of parking spaces by any assignee or subtenant of Tenant’s, other than an assignee or
subtenant under Section 12.2 below, in a ratio greater than five (5) parking privileges for
each 1,000 square feet of rentable floor area of the applicable portion of the Premises).



ARTICLE XI




Certain Tenant Covenants





Tenant covenants and agrees to the following during the Lease Term and for such further time
as Tenant occupies any part of the Premises:




	11.1	 	To pay when due all Annual Fixed Rent and Additional Rent and all charges for utility
services rendered to the Premises and service inspections therefor (except as is otherwise
provided in Exhibit D) and, as further Additional Rent, all charges for additional and special
services rendered pursuant to Section 7.3.
	 
	11.2	 	To use and occupy the Premises for the Permitted Use only, and not to injure or deface the
Premises or the Property, not to permit in the Premises any auction sale, vending





Page 35









 











	 	 	machine (other than vending machines for use by Tenant’s employees and business
invitees) or flammable fluids or chemicals, or nuisance, or the emission from the Premises
of any objectionable noise or odor, nor to permit in the Premises anything which would in
any way result in the leakage of fluid or the growth of mold, and not to use or devote the
Premises or any part thereof for any purpose other than the Permitted Use, nor any use
thereof which is inconsistent with the maintenance of the Buildings as office buildings of
the first-class in the quality of their maintenance, use and occupancy, or which is
improper, offensive, contrary to law or ordinance or liable to invalidate or increase the
premiums for any insurance on the Buildings or its contents or liable to render necessary
any alteration or addition to the Buildings. Further, (i) Tenant shall not, nor shall Tenant
permit its employees, invitees, agents, independent contractors, contractors, assignees or
subtenants to, keep, maintain, store or dispose of (into the sewage or waste disposal system
or otherwise) or engage in any activity which might produce or generate any substance which
is or may hereafter be classified as a hazardous material, waste or substance (collectively
“Hazardous Materials”), under federal, state or local laws, rules and regulations,
including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C. Section 9601 et
seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section 1802 et seq. and Massachusetts
General Laws, Chapter 21E and the rules and regulations promulgated under any of the
foregoing, as such laws, rules and regulations may be amended from time to time
(collectively “Hazardous Materials Laws”), (ii) Tenant shall promptly notify Landlord of any
incident in, on or about the Premises, the Buildings or the Site that would require the
filing of a notice under any Hazardous Materials Laws, (iii) Tenant shall comply and shall
cause its employees, invitees, agents, independent contractors, contractors, assignees and
subtenants to comply with each of the foregoing and (iv) Landlord shall have the right to
make such inspections (including testing) as Landlord shall elect from time to time to
determine that Tenant is complying with the foregoing (provided that, except in cases of
emergency, Landlord provides Tenant at least two (2) business days’ prior written notice of
any such inspection). Notwithstanding the foregoing, Tenant may use normal amounts and types
of substances typically used for office uses and normal amounts and types of substances
typically used in generators of the same type as the Emergency Generator, provided that
Tenant uses such substances in the manner which they are normally used, and in compliance
with all Hazardous Materials Laws and other applicable laws, ordinances, bylaws, rules and
regulations, and Tenant obtains and complies with all permits required by Hazardous
Materials Laws or any other laws, ordinances, bylaws, rules or regulations prior to the use
or presence of any such substances in the Premises.
	 
	11.3	 	Not to obstruct in any manner any portion of the Buildings not hereby leased or any portion
thereof or of the Site used by Tenant in common with others; not without prior consent of
Landlord (or as otherwise provided in this Lease) to permit the painting or placing of any
signs, curtains, blinds, shades, awnings, aerials or flagpoles, or the like, visible from
outside the Premises; and to comply with all reasonable rules and regulations now or hereafter
made by Landlord, of which Tenant has been given notice, for the care and use of the Buildings
and the Site and their facilities and approaches, but Landlord shall not be liable to Tenant
for the failure of other occupants of the Buildings to conform to such rules and regulations.
Landlord shall not enforce such rules and regulations other than in a non-discriminatory
manner.




Page 36









 






	11.4	 	To keep the Premises equipped with all safety appliances required by law or ordinance or any
other regulation of any public authority because of any use made by Tenant other than normal
office use, and to procure all licenses and permits so required because of any use made by
Tenant other than normal office use, and, if requested by Landlord, to do any work so required
because of such use, it being understood that the foregoing provisions shall not be construed
to broaden in any way Tenant’s Permitted Use.
	 
	11.5	 	Not to place a load upon any floor in the Premises exceeding an average rate of 70 pounds of
live load (including partitions) per square foot of floor area; and not to move any safe,
vault or other heavy equipment in, about or out of the Premises except in such manner and at
such time as Landlord shall in each instance authorize. Tenant’s business machines and
mechanical equipment shall be placed and maintained by Tenant at Tenant’s expense in settings
sufficient to absorb and prevent vibration or noise that may be transmitted to the Building
structure or to any other space in the Buildings.
	 
	11.6	 	To pay promptly when due all taxes which may be imposed upon personal property (including,
without limitation, fixtures and equipment) in the Premises to whomever assessed.
	 
	11.7	 	To pay, as Additional Rent, all reasonable out-of-pocket costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by Landlord of any
obligations of Tenant under this Lease or in connection with any bankruptcy case involving
Tenant (Landlord hereby similarly agreeing to reimburse Tenant for all reasonable
out-of-pocket costs, counsel and other fees incurred by Tenant in connection with the
successful enforcement by Tenant of any obligations of Landlord under this Lease or in
connection with any bankruptcy case involving Landlord).
	 
	11.8	 	Not to 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 insurance on the Premises or on the
Buildings above the standard rate applicable to premises being occupied for the use to which
Tenant has agreed to devote the Premises; 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 Additional Rent
hereunder.
	 
	11.9	 	To comply with all applicable Legal Requirements now or hereafter in force which shall impose
a duty on Landlord or Tenant relating to or as a result of the use or occupancy of the
Premises; provided that Tenant shall not be required (i) to make any alterations or additions
to the base building systems or to the structure, roof, exterior and load bearing walls,
foundation, structural floor slabs and other structural elements of the Buildings or (ii) to
perform or satisfy any other obligation of Landlord under this Lease, unless the same are
required by such Legal Requirements as a result of or in connection with Tenant’s use or
occupancy of the Premises beyond normal use of space of this kind. Tenant shall promptly pay
all fines, penalties and damages that may arise out of or be imposed because of its failure to
comply with the provisions of this Section 11.9.




Page 37









 






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





ARTICLE XII




Assignment and Subletting





	12.1	 	Restrictions on Transfer
	 
	 	 	Except as otherwise expressly provided herein, Tenant covenants and agrees that it shall not
assign, mortgage, pledge, hypothecate or otherwise transfer this Lease and/or Tenant’s
interest in this Lease or sublet (which term, without limitation, shall include granting of
concessions, licenses or the like) the whole or any part of the Premises. Any assignment,
mortgage, pledge, hypothecation, transfer or subletting not expressly permitted in or
consented to by Landlord under this Article XII shall be void, ab initio; shall be of no
force and effect; and shall confer no rights on or in favor of third parties. In addition,
Landlord shall be entitled to seek specific performance of or other equitable relief with
respect to the provisions hereof.
	 
	12.2	 	Exceptions
	 
	 	 	Notwithstanding the foregoing provisions of Section 12.1 above and the provisions of Section
12.3 and 12.4 below, but subject to the provisions of Sections 12.5 and 12.6, Tenant shall
have the right to assign this Lease or to sublet the Premises (in whole or in part) (i) to
any controlling entity of Tenant or to any entity controlled by Tenant or to any entity
under common control with Tenant (such parent or subsidiary entity or entity under common
control with Tenant being hereinafter called a “Tenant Affiliate”) or (ii) to any entity
into which Tenant may be converted or with which it may merge, or to any entity purchasing
all or substantially all of Tenant’s assets (each, a “Permitted Tenant Successor”), provided
that in the case of a Permitted Tenant Successor, the entity to which this Lease is so
assigned or which so sublets the Premises either:






	 	(x)	 	has a net worth (e.g. assets on a pro forma basis using
generally accepted accounting principles consistently applied and using the
most recent financial statements) equal to the lesser of (1) the net worth of
Tenant as of the date of this Lease or (2) the net worth of Tenant immediately
prior to such transaction; or




Page 38









 






	 	(y)	 	if such entity does not meet the net worth test set forth in
clause (x) above, such entity increases the security deposit then being held by
Landlord under Section 16.26 below to an amount equal to six (6) months of
Annual Fixed Rent for the Premises (which for the purposes hereof shall be
deemed to consist of the greater of (a) the entirety of the Initial Premises
and the Must Take Premises or (b) the premises actually then demised to Tenant
under this Lease) at the then-current rates payable under this Lease.






If any Tenant Affiliate to which this Lease is assigned or the Premises sublet (in whole or
in part) shall cease to be such a Tenant Affiliate, and if such cessation was contemplated
at the time of the assignment or subletting, such cessation shall be considered an
assignment or subletting requiring Landlord’s consent.




	12.3	 	Landlord’s Termination Right
	 
	 	 	Notwithstanding the provisions of Section 12.1 above, in the event Tenant desires:






	 	(a)	 	to assign this Lease; or
	 
	 	(b)	 	to sublet such portion (the “Sublease Portion”) of the Premises
as (x) contains by itself at least fifty percent (50%) of the Rentable Floor
Area of the Premises or (y) would bring the total amount of the Premises then
subleased (exclusive of any subleases under Section 12.2 above) to fifty
percent (50%) or more of the Rentable Floor Area of the Premises; or
	 
	 	(c)	 	to sublet any Sublease Portion for a term equal to all or
substantially all of the remaining Lease Term hereof (any such sublease under
this subparagraph (c) or subparagraph (b) above being hereinafter referred to
as a “Major Sublease”),






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




Notwithstanding the foregoing, in the event of a Major Sublease:




	 	(i)	 	Landlord shall only have the right to so terminate this Lease with respect 




Page 39









 






	 	 	 	to the Sublease Portion and from and after the termination date the
Rentable Floor Area of the Premises shall be reduced to the rentable floor
area of the remainder of the Premises and the definition of Rentable Floor
Area of the Premises shall be so amended and after such termination all
references in this Lease to the “Premises” or the “Rentable Floor Area of
the Premises” shall be deemed to be references to the remainder of the
Premises and accordingly Tenant’s payments for Annual Fixed Rent, operating
costs, real estate taxes and electricity shall be reduced on a pro rata
basis to reflect the size of the remainder of the Premises;
	 
	 	(ii)	 	in the case of Major Sublease for less than all or
substantially all of the then-remaining Lease Term, Landlord shall only have
the right to suspend the term of this Lease pro tanto for the term of the
proposed sublease (i.e. the Term of the Lease in respect of the Sublease
Portion shall be terminated for the term of the proposed sublease and then
reinstated upon the expiration or earlier termination of such sublease term);
and
	 
	 	(iii)	 	in the case of a proposed Major Sublease which, when combined
with other subleases of the Premises then in effect (exclusive of any subleases
under Section 12.2. above) reaches the fifty percent (50%) of the Premises
threshold set forth above for Landlord to recapture, Landlord may only exercise
its recapture rights with respect to the proposed Major Sublease, but may not
exercise its recapture rights or terminate this Lease as to any subleases of
the Premises previously entered into by Tenant.






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




This Section 12.3 shall not be applicable to an assignment or sublease pursuant to Section
12.2.




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




Page 40









 






	 	 	unreasonably withheld or delayed. It is understood and agreed that Landlord’s consent
shall be deemed given hereunder if Landlord shall fail to respond to a Proposed Transfer
Notice meeting the requirements of Section 12.5 below within ten (10) business days after
receipt thereof from Tenant.
	 
	 	 	Without limiting the foregoing standard, Landlord shall not be deemed to be unreasonably
withholding its consent to such a proposed assignment or subleasing if:






	 	(a)	 	the proposed assignee or subtenant is a tenant in the Building,
the Additional Building or the building known as Reservoir Place North and
numbered 170 Tracer Lane, Waltham, Massachusetts or is in active negotiation
with the landlord of the building in question (but with respect to the 170
Tracer Lane building, only if the landlord of such building and the landlord of
the Building are affiliated with each other), and Landlord (or such affiliated
landlord) has existing space that satisfies such party’s needs), or
	 
	 	(b)	 	the proposed assignee or subtenant is not of a character
consistent with the operation of a first class office building (by way of
example Landlord shall not be deemed to be unreasonably withholding its consent
to an assignment or subleasing to any governmental or quasi-governmental
agency), or
	 
	 	(c)	 	giving appropriate weight, if applicable, to the fact that
Tenant will nevertheless remain liable under this Lease, the proposed assignee
or subtenant does not possess adequate financial capability to assure the
performance of the Tenant obligations as and when due or required, or
	 
	 	(d)	 	the assignee or subtenant proposes to use the Premises (or part
thereof) for a purpose other than the purpose for which the Premises may be
used as stated in Section 1.2 hereof, or
	 
	 	(e)	 	the character of the business to be conducted or the proposed
use of the Premises by the proposed subtenant or assignee shall (i) be likely
to materially increase Landlord’s Operating Expenses beyond that which Landlord
now incurs for use by Tenant; (ii) be likely to materially increase the burden
on elevators or other Buildings systems or equipment over the burden prior to
such proposed subletting or assignment; or (iii) materially violate or be
likely to materially violate any provisions or restrictions contained herein
relating to the use or occupancy of the Premises, or
	 
	 	(f)	 	there shall be existing a monetary or material non-monetary
Event of Default (defined in Section 15.1), or
	 
	 	(g)	 	any part of the rent payable under the proposed assignment or
sublease shall be based in whole or in part on the income or profits derived from 




Page 41









 






	 	 	 	the Premises or if any proposed assignment or sublease shall potentially
have any adverse effect on the real estate investment trust qualification
requirements applicable to Landlord and its affiliates.






	12.5	 	Tenant’s Notice
	 
	 	 	Tenant shall give Landlord notice (the “Proposed Transfer Notice”) of any proposed sublease
or assignment, and said notice shall specify the provisions of the proposed assignment or
subletting, including (a) the name and address of the proposed assignee or subtenant, (b) in
the case of a proposed assignment or subletting pursuant to Section 12.4, such information
as to the proposed assignee’s or proposed subtenant’s net worth and financial capability and
standing as may reasonably be required for Landlord to make the determination referred to in
Section 12.4 above (provided, however, that Landlord shall hold such information
confidential having the right to release same to its officers, accountants, attorneys and
mortgage lenders on a confidential basis), (c) all of the terms and provisions upon which
the proposed assignment or subletting is to be made, (d) in the case of a proposed
assignment or subletting pursuant to Section 12.4, all other information reasonably
necessary to make the determination referred to in Section 12.4 above and (e) in the case of
a proposed assignment or subletting pursuant to Section 12.2 above, such information as may
be reasonably required by Landlord to determine that such proposed assignment or subletting
complies with the requirements of said Section 12.2.
	 
	 	 	If Landlord shall consent to the proposed assignment or subletting, as the case may be,
then, in such event, Tenant may thereafter sublease or assign pursuant to Tenant’s notice,
as given hereunder; provided, however, that if such assignment or sublease shall not be
executed and delivered to Landlord within one hundred eighty (180) days after the date of
Landlord’s consent, the consent shall be deemed null and void and the provisions of Section
12.3 shall be applicable.
	 
	12.6	 	Profit on Subleasing or Assignment
	 
	 	 	In addition, in the case of any assignment or subleasing as to which Landlord may consent
(other than an assignment or subletting permitted under Section 12.2 hereof) such consent
shall be upon the express and further condition, covenant and agreement, and Tenant hereby
covenants and agrees that, in addition to the Annual Fixed Rent, Additional Rent and other
charges to be paid pursuant to this Lease, fifty percent (50%) of the “Assignment/Sublease
Profits” (hereinafter defined), if any shall be paid to Landlord.
	 
	 	 	The “Assignment/Sublease Profits” shall be the excess, if any, of (a) the
“Assignment/Sublease Net Revenues” as hereinafter defined over (b) the Annual Fixed Rent,
Additional Rent and other charges provided in this Lease (provided, however, that for the
purpose of calculating the Assignment/Sublease Profits in the case of a sublease,
appropriate proportions in the applicable Annual Fixed Rent, Additional Rent and other
charges under this Lease shall be made based on the percentage of the Premises subleased and
on the terms of the sublease). The “Assignment/Sublease Net Revenues” shall be the




Page 42









 






	 	 	fixed rent, Additional Rent and all other charges and sums payable either initially or over
 the term of the sublease or assignment, less the reasonable costs of Tenant incurred in such
subleasing or assignment (the definition of which shall be limited to brokerage commissions,
rent concessions, attorneys’ fees, architect and construction management fees, and
alteration allowances, in each case actually paid), as set forth in a statement certified by
an appropriate officer of Tenant and delivered to Landlord within thirty (30) days of the
full execution of the sublease or assignment document, amortized over the term of the
sublease or assignment.
	 
	 	 	All payments of the Assignment/Sublease Profits due Landlord shall be made within ten (10)
days of receipt of same by Tenant.
	 
	12.7	 	Additional Conditions






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




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




(C) If this Lease be assigned, or if the Premises or any part thereof be sublet or occupied
by anyone other than Tenant, Landlord may upon prior notice to Tenant, at any time and from
time to time, collect Annual Fixed Rent, Additional Rent, and other charges from the
assignee, sublessee or occupant and apply the net amount collected to the Annual Fixed Rent,
Additional Rent and other charges herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this covenant, or a waiver of the
provisions of Sections 12.1 through 12.7 hereof, or the acceptance of the assignee,
sublessee or occupant as a tenant or a release of Tenant from



Page 43









 







the further performance by Tenant of covenants on the part of Tenant herein contained,
the Tenant herein named to remain primarily liable under this Lease.




(D) The consent by Landlord to an assignment or subletting under any of the provisions of
Sections 12.2 or 12.4 shall in no way be construed to relieve Tenant from obtaining the
express consent in writing of Landlord to any further assignment or subletting.




(E) Without limiting Tenant’s obligations under Article IX, Tenant shall be responsible, at
Tenant’s sole cost and expense, for performing all work necessary to comply with Legal
Requirements and Insurance Requirements in connection with any assignment or subletting
hereunder including, without limitation, any work in connection with such assignment or
subletting.




(F) In addition to the other requirements set forth in this Lease and notwithstanding any
other provision of this Lease, partial sublettings of the Premises shall only be permitted
under the following terms and conditions: (i) the layout of both the subleased premises and
the remainder of the Premises must comply with applicable laws, ordinances, rules and/or
regulations and be reasonably approved by Landlord, including, without limitation, all
requirements concerning access and egress; (ii) in the event the subleased premises are
separately physically demised from the remainder of the Premises, and except as provided in
Section 12.3, Tenant shall pay all costs of separately physically demising the subleased
premises (it being understood and agreed that any subleased premises of 10,000 square feet
of rentable floor area or more must be separately demised); and (iii) at any given time,
there shall be no more than (a) two (2) subleases in effect on the second (2nd)
floor of the Premises and (b) ten (10) subleases in effect on the third (3rd)
floor of the Premises (or such proportionately lesser amount as may be reasonably
appropriate until such time as Tenant is leasing the entirety of the Initial Premises and
the Must Take Premises).




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



ARTICLE XIII




Indemnity And Commercial General Liability Insurance





	13.1	 	Indemnity






(A) Tenant’s Indemnity. To the maximum extent this agreement may be made effective
according to law, but subject to Section 16.24 hereof, and to the extent not



Page 44









 







resulting from any negligence or misconduct of Landlord or its contractors, agents,
licensees, servants or employees, Tenant agrees to indemnify and save harmless Landlord and
Landlord’s managing agent, beneficiaries, partners, subsidiaries, officers, directors,
agents and employees (“Landlord Parties”) from and against all claims of whatever nature to
the extent arising from or claimed to have arisen from: any act, omission or negligence of
Tenant, or Tenant’s contractors, licensees, invitees, agents, independent contractors or
employees occurring in the Premises, in the Buildings or on the Site; any accident, injury
or damage whatsoever caused to any person, or to the property of any person, occurring in or
about the Premises after the date that possession of the Premises is first delivered to
Tenant and until the end of the Lease Term and thereafter, provided that during any such
period after the Lease Term Tenant or anyone acting by, through or under Tenant is in
occupancy of the Premises or any portion thereof; or any accident, injury or damage
occurring outside the Premises but within the Buildings or in the Complex, to the extent
such accident, injury or damage results, or is claimed to have resulted, from an act,
omission or negligence on the part of Tenant or Tenant’s contractors, licensees, invitees,
agents, independent contractors or employees; provided, however, that in no event shall
Tenant be liable for any indirect or consequential damages except under Section 16.18 hereof
(subject to the limitations set forth in Section 16.18(B) and (C)).




This indemnity and hold harmless agreement shall include indemnity against all costs,
expenses and liabilities incurred in or in connection with any such claim or proceeding
brought thereon, and the defense thereof.




(B) Landlord’s Indemnity. To the maximum extent this agreement may be made effective
according to law, but subject to Section 16.24 hereof, and to the extent not resulting from
any negligence or misconduct of Tenant or its contractors, agents, licensees, invitees,
servants or employees, Landlord agrees to indemnify and save harmless Tenant from and
against any claim arising from any injury to any person occurring in the Premises, in the
Buildings or on the Site after the date that possession of the Premises is first delivered
to Tenant and until the expiration or earlier termination of the Lease Term, to the extent
such injury results from the negligent act or omission of Landlord or Landlord’s
contractors, agents or employees; provided, however that in no event shall the aforesaid
indemnity render Landlord responsible or liable for any loss or damage to fixtures or
personal property of Tenant and Landlord shall in no event be liable for any indirect or
consequential damages; and provided, further, that the provisions of this Section shall not
be applicable to the holder of any mortgage now or hereafter on the Site or the Buildings
(whether or not such holder shall be a mortgagee in possession of or shall have exercised
any rights under a conditional, collateral or other assignment of leases and/or rents
respecting, the Site and/or Buildings).




	13.2	 	Commercial General Liability Insurance
	 
	 	 	Tenant agrees to maintain in full force from the date upon the earlier of (i) the date on
which Tenant first enters the Premises for any reason, or (ii) the Commencement Date
throughout the Lease 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 or 




Page 45









 






	 	 	comprehensive general liability insurance written on an occurrence basis with a broad
form comprehensive liability endorsement under which Tenant is the named insured and
Landlord and Landlord’s managing agent (and such other persons as are in privity of estate
with Landlord and Landlord’s managing agent as may be set out in notice from time to time)
are named as additional insureds, in the broadest form of such coverage from time to time
available in the jurisdiction in which the Premises are located. Any policy which Tenant is
required to maintain under this Lease shall be non-cancelable and non-amendable with respect
to Landlord and Landlord’s said designees without twenty (20) days’ prior notice to
Landlord, and a duplicate original or certificate thereof, in a form reasonably acceptable
to Landlord, shall be delivered to Landlord. The minimum limits of liability of such
insurance shall be as specified in Section 1.2 and from time to time during the Lease Term
for such higher limits, if any, as are carried customarily in the Central Suburban 128
Market with respect to similar properties. In addition, in the event Tenant hosts a function
in the Premises, Tenant agrees to obtain and maintain, and cause any persons or parties
providing services for such function to obtain, the appropriate insurance coverages as
determined by Landlord (including liquor liability, if applicable) and provide Landlord with
evidence of the same. All insurance required to be maintained by Tenant pursuant to this
Lease shall be maintained with responsible companies qualified to do business, and in good
standing, in the Commonwealth of Massachusetts and which have a rating of at least “A” and
are within a financial size category of not less than “Class X” in the most current Best’s
Key Rating Guide or such similar rating as may be reasonably selected by Landlord if such
Guide is no longer published.






	13.3	 	Tenant’s Property Insurance
	 
	 	 	Tenant, at Tenant’s expense, shall maintain at all times during the Term of the Lease
business interruption insurance and insurance against loss or damage covered by so-called
“all risk” type insurance coverage with respect to Tenant’s fixtures, equipment, goods,
wares and merchandise, and all alterations, improvements and other modifications made by or
on behalf of Tenant and other property of Tenant located at the Premises, which are
permitted to be removed by Tenant at the expiration of the Lease Term except to the extent
paid for by Landlord (collectively “Tenant’s Property”). Such insurance shall be in an
amount at least equal to the full replacement cost of Tenant’s Property. Tenant shall
maintain all of its equipment, furniture and furnishings in good order and repair. In
addition, during such time as Tenant is performing work in or to the Premises, Tenant, at
Tenant’s expense, shall also maintain builder’s risk insurance for the full insurable value
of such work.
	 
	13.4	 	Non-Subrogation
	 
	 	 	Any insurance carried by either party with respect to the Premises or property therein or
occurrences thereon shall, if it can be so written without additional premium or with an
additional premium which the other party agrees to pay, include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the extent rights
have been waived by the insured prior to occurrence of injury or loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby waives any rights of




Page 46









 






	 	 	recovery against the other for injury or loss due to hazards covered by such insurance (or
which would have been covered had such party carried the insurance required to be carried by
it under the Lease) to the extent of the indemnification received under such insurance
policy. This waiver of rights by Tenant shall apply to, and be for the benefit of, the
Landlord Parties, and this waiver of rights by Landlord shall apply to, and be for the
benefit of, any subtenant of Tenant so long as such subtenant similarly waives such rights
for the benefit of Landlord and the Landlord Parties.






	13.5	 	Tenant’s Risk
	 
	 	 	To the maximum extent that this agreement may be made effective according to law, Tenant
agrees to use and occupy the Premises and to use such other portions of the Building, the
Site and the Property as Tenant is herein given the right to use at Tenant’s own risk; and
Landlord shall have no responsibility or liability for any loss of or damage to fixtures or
other personal property of Tenant.
	 
	13.6	 	Landlord’s Insurance
	 
	 	 	Landlord shall carry at all times during the Term of this Lease (i) commercial general
liability insurance with respect to the Buildings in an amount not less than $5,000,000.00
combined single limit per occurrence and, (ii) insurance against loss or damage with respect
to the Building covered by the so-called “all risk” type insurance coverage with customary
exceptions in an amount equal to at least the replacement value of the Building. Landlord
may also maintain such other insurance as may from time to time be required by a mortgagee
holding a mortgage lien on the Building. Further, Landlord may also maintain such insurance
against loss of annual fixed rent and additional rent and such other risks and perils as
Landlord deems proper. Any and all such insurance (i) may be maintained under a blanket
policy affecting other properties of Landlord and/or its affiliated business organizations,
(ii) may be written with deductibles as may be reasonably determined by Landlord and (iii)
shall be subject to escalation reimbursement in accordance with Article VII.





ARTICLE XIV




Fire, Casualty and Taking





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




Page 47









 






	 	 	remain in full force and effect following any such damage subject, however, to the
following provisions.
	 
	 	 	If during the last eighteen (18) months of the Lease Term as it may have been extended, the
Building shall be damaged by fire or casualty and such fire or casualty damage to the
Premises cannot reasonably be expected to be repaired or restored within one hundred fifty
(150) days from the date of such casualty, then Tenant shall have the right, by giving
notice to Landlord not later than thirty (30) days after such damage, to terminate this
Lease, whereupon this Lease shall terminate as of 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.
	 
	 	 	If the Building or the Site or any part thereof are damaged by fire or casualty and this
Lease is not so terminated, or Landlord has no right to terminate this Lease, and in either
such case the holder of any mortgage which includes the Building as a part of the mortgaged
premises or any ground lessor of any ground lease which includes the Site as part of the
demised premises allows the net insurance proceeds to be applied to the restoration of the
Building (and/or the Site), Landlord, promptly after such damage and the determination of
the net amount of insurance proceeds available shall use due diligence to restore the
Premises and the Building in the event of damage thereto (excluding Tenant’s Property ) into
proper condition for use and occupation and a just proportion of the Annual Fixed Rent, the
Operating Cost Excess and the Tax Excess according to the nature and extent of the injury to
the Premises shall be abated from the date of casualty until the Premises shall have been
put by Landlord substantially into such condition and are made available for occupancy by
Tenant. If such net insurance proceeds are not allowed by such mortgagee or ground lessor to
be applied to, or are otherwise insufficient for, the restoration of the Building (and/or
the Site) and if Landlord does not otherwise elect to spend the additional funds necessary
to fully restore the Building (and/or the Site), then Landlord shall give notice
(“Landlord’s Insufficient Insurance Proceeds Notice”) to Tenant that Landlord does not elect
to fund the amount of the insufficiency and Tenant shall thereafter have the right to
terminate this Lease by providing Landlord with a notice of termination within thirty (30)
days after Tenant’s receipt of Landlord’s Insufficient Insurance Proceeds Notice (the
effective date of which termination shall not be less than sixty (60) days after the date of
such notice of such termination).
	 
	 	 	Where Landlord is obligated or otherwise elects to effect restoration of the Premises,
unless such restoration is completed within one (1) year from the date of the casualty or
taking, such period to be subject, however, to extension where the delay in completion of
such work is due to Force Majeure, as defined hereinbelow, (but in no event beyond eighteen
(18) months from the date of the casualty or taking), Tenant, as its sole and exclusive
remedy, shall have the right to terminate this Lease at any time after the expiration of
such one-year (as extended) period until the restoration is substantially completed, such
termination to take effect as of the thirtieth (30th) day after the date of
receipt by Landlord of Tenant’s notice, with the same force and effect as if such date were
the date originally established as the expiration date hereof unless, within such thirty
(30) 




Page 48









 






	 	 	day period such restoration is substantially completed, in which case Tenant’s notice of
termination shall be of no force and effect and this Lease and the Lease Term shall continue
in full force and effect. When used herein, “Force Majeure” shall mean any prevention, delay
or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war,
terrorists acts, civil commotions, unusual scarcity of or inability to obtain labor or
materials, labor difficulties, casualty or other causes reasonably beyond Landlord’s control
or attributable to Tenant’s action or inaction. A party shall have the right to invoke the
benefit of the Force Majeure provisions of this Article XIV only if (a) it advises the other
party of the occurrence of the Force Majeure event within three (3) business days after it
becomes aware thereof and (b) such party uses commercially reasonable efforts to mitigate
the impact of such Force Majeure event to the extent it within such party’s reasonable
ability to do so under the circumstances).
	 
	14.2	 	Uninsured Casualty
	 
	 	 	Notwithstanding anything to the contrary contained in this Lease, if the Building or the
Premises shall be substantially damaged by fire or casualty as the result of a risk not
covered by the forms of casualty insurance at the time required to be maintained by Landlord
pursuant to this Lease, and such fire or casualty damage cannot, in the ordinary course,
reasonably be expected to be repaired within one hundred fifty (150) days from the time that
repair work would commence, Landlord may, at its election, terminate the Term of this Lease
by notice to Tenant given within sixty (60) days after such loss. If Landlord shall give
such notice, then this Lease shall terminate as of 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.
	 
	14.3	 	Rights of Termination for Taking
	 
	 	 	If the Building, or such portion thereof as to render the balance (if reconstructed to the
maximum extent practicable in the circumstances) unsuitable for Tenant’s purposes, shall be
taken by condemnation or right of eminent domain, Landlord or Tenant shall have the right to
terminate this Lease by notice to the other of its desire to do so, provided that such
notice is given not later than thirty (30) days after Tenant has been deprived of
possession. If either party shall give such notice, then this Lease shall terminate as of
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.
	 
	 	 	Further, if (i) so much of the Building shall be so taken that continued operation of the
Building would be uneconomic as determined by Landlord in its reasonable discretion or (ii)
access to the Building shall be taken (such that Tenant and other tenants of the Building do
not have any practical means of access to their premises for purposes of use and occupancy
of at least fifty percent (50%) of the Total Rentable Floor Area of the Building), Landlord
shall have the right to terminate this Lease by giving notice to Tenant of Landlord’s desire
to do so not later than thirty (30) days after Tenant has been deprived of possession of the
Premises (or such portion thereof as may be taken). Landlord agrees not to exercise such
termination right in a discriminatory manner insofar as any election Landlord makes, or
refrains from making, pursuant to any termination 




Page 49









 






	 	 	right Landlord may have with respect to
other tenants of the Building whose premises are
similarly affected. If Landlord shall give such notice to Tenant hereunder, then this Lease
shall terminate as of 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.
	 
	 	 	Should any part of the Premises be so taken or condemned during the Lease Term hereof, and
should this Lease not be terminated in accordance with the foregoing provisions, and the
holder of any mortgage which includes the Premises as part of the mortgaged premises or any
ground lessor of any ground lease which includes the Site as part of the demised premises
allows the net condemnation proceeds to be applied to the restoration of the Building,
Landlord agrees that after the determination of the net amount of condemnation proceeds
available to Landlord, Landlord shall use due diligence to put what may remain of the
Premises into proper condition for use and occupation as nearly like the condition of the
Premises prior to such taking as shall be practicable (excluding Tenant’s Property). If such
net condemnation proceeds are not allowed by such mortgagee or ground lessor to be applied
to, or are otherwise insufficient for, the restoration of the Building (and/or the Site) and
if Landlord does not otherwise elect to spend the additional funds necessary to fully
restore the Building (and/or the Site), then Landlord shall give notice (“Landlord’s
Insufficient Condemnation Proceeds Notice”) to Tenant that Landlord does not elect to fund
the amount of the insufficiency and Tenant shall thereafter have the right to terminate this
Lease by providing Landlord with a notice of termination within thirty (30) days after
Tenant’s receipt of Landlord’s Insufficient Condemnation Proceeds Notice (the effective date
of which termination shall not be less than sixty (60) days after the date of such notice of
such termination).
	 
	 	 	If the Premises shall be affected by any exercise of the power of eminent domain and neither
Landlord nor Tenant shall terminate this Lease as provided above, then the Annual Fixed
Rent, the Operating Cost Excess and the Tax Excess shall be justly and equitably abated and
reduced according to the nature and extent of the loss of use thereof suffered by Tenant;
and in case of a taking which permanently reduces the Rentable Floor Area of the Premises, a
just proportion of the Annual Fixed Rent, the Operating Cost Excess and the Tax Excess shall
be abated for the remainder of the Lease Term.
	 
	14.4	 	Award
	 
	 	 	Except as otherwise provided in this Section 14.4, Landlord shall have and hereby reserves
and excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover for
damages to the Building, the Site and the Complex and the leasehold interest hereby created,
and compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, as aforesaid, 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.
	 
	 	 	However, nothing contained herein shall be construed to prevent Tenant from prosecuting in
any such proceedings a claim for its trade fixtures so taken or relocation, moving and other
dislocation expenses.




Page 50









 











ARTICLE XV




Default





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






	 	(a)	 	Tenant shall fail to pay any installment of the Annual Fixed
Rent, or any Additional Rent or any other monetary amount due under this Lease
on or before the date on which the same becomes due and payable, and such
failure continues for five (5) days after written notice from Landlord thereof;
or
	 
	 	(b)	 	Landlord having rightfully given the notice specified in (a)
above to Tenant twice in any twelve (12) month period, Tenant shall fail
thereafter to pay the Annual Fixed Rent, Additional Rent or any other monetary
amount due under this Lease on or before the date on which the same becomes due
and payable; or
	 
	 	(c)	 	Tenant shall assign its interest in this Lease or sublet any
portion of the Premises in violation of the requirements of Article XII of this
Lease; or
	 
	 	(d)	 	Tenant shall fail to perform or observe some term or condition
of this Lease which, because of its character, would immediately and materially
jeopardize Landlord’s interest (such as, but without limitation, failure to
maintain general liability insurance), and such failure continues for three (3)
business days after written notice from Landlord to Tenant thereof; or
	 
	 	(e)	 	Tenant shall fail to perform or observe any other material
requirement, term, covenant or condition of this Lease (not hereinabove in this
Section 15.1 specifically referred to) on the part of Tenant to be performed or
observed and such failure shall continue for thirty (30) days after written
notice thereof from Landlord to Tenant, or if said default shall reasonably
require longer than thirty (30) days to cure, if Tenant shall fail to commence
to cure said default within thirty (30) days after written notice thereof
and/or fail to continuously prosecute the curing of the same to completion with
due diligence; or
	 
	 	(f)	 	The estate hereby created shall be taken on execution or by
other process of law; or
	 
	 	(g)	 	Tenant shall make an assignment or trust mortgage arrangement,
so-called, for the benefit of its creditors; or




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	 	(h)	 	Tenant shall judicially be declared bankrupt or insolvent
according to law; or
	 
	 	(i)	 	a receiver, guardian, conservator, trustee in involuntary
bankruptcy or other similar officer is appointed to take charge of all or any
substantial part of Tenant’s property by a court of competent jurisdiction; or
	 
	 	(j)	 	any petition shall be filed against Tenant in any court,
whether or not pursuant to any statute of the United States or of any State, in
any bankruptcy, reorganization, composition, extension, arrangement or
insolvency proceeding, and such proceedings shall not be fully and finally
dismissed within sixty (60) days after the institution of the same; or
	 
	 	(k)	 	Tenant shall file any petition in any court, whether or not
pursuant to any statute of the United States or any State, in any bankruptcy,
reorganization, composition, extension, arrangement or insolvency proceeding;
or
	 
	 	(l)	 	Tenant otherwise abandons the Premises.






	15.2	 	Termination; Re-Entry
	 
	 	 	Upon the happening of any one or more of the aforementioned Events of Default
(notwithstanding any license of a former breach of covenant or waiver of the benefit hereof
or consent in a former instance), Landlord or Landlord’s agents or servants may give to
Tenant a notice (hereinafter called “notice of termination”) terminating this Lease on a
date specified in such notice of termination (which shall be not less than five (5) days
after the date of the mailing of such notice of termination), and this Lease and the Lease
Term, as well as any and all of the right, title and interest of the Tenant hereunder, shall
wholly cease and expire on the date set forth in such notice of termination (Tenant hereby
waiving any rights of redemption) in the same manner and with the same force and effect as
if such date were the date originally specified herein for the expiration of the Lease Term,
and Tenant shall then quit and surrender the Premises to Landlord.
	 
	 	 	In addition or as an alternative to the giving of such notice of termination, Landlord or
Landlord’s agents or servants may, by any suitable action or proceeding at law, immediately
or at any time thereafter re-enter the Premises and remove therefrom Tenant, its agents,
employees, servants, licensees, and any subtenants and other persons, and all or any of its
or their property therefrom, and repossess and enjoy the Premises, together with all
additions, alterations and improvements thereto; but, in any event under this Section 15.2,
Tenant shall remain liable as hereinafter provided.
	 
	 	 	The words “re-enter” and “re-entry” as used throughout this Article XV are not restricted to
their technical legal meanings.






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	15.3	 	Continued Liability; Re-Letting
	 
	 	 	If this Lease is terminated or if Landlord shall re-enter the Premises as aforesaid, or in
the event of the termination of this Lease, or of re-entry, by or under any proceeding or
action or any provision of law by reason of an Event of Default hereunder on the part of
Tenant, Tenant covenants and agrees forthwith to pay and be liable for, on the days
originally fixed herein for the payment thereof, amounts equal to the several installments
of Annual Fixed Rent, all Additional Rent and other charges reserved as they would, under
the terms of this Lease, become due if this Lease had not been terminated or if Landlord had
not entered or re-entered, as aforesaid, and whether the Premises be relet or remain vacant,
in whole or in part, or for a period less than the remainder of the Lease Term, or for the
whole thereof, but, in the event the Premises be relet by Landlord, Tenant shall be entitled
to a credit in the net amount of rent and other charges received by Landlord in reletting,
after deduction of all reasonable expenses incurred in reletting the Premises (including,
without limitation, remodeling costs, brokerage fees and the like), and in collecting the
rent in connection therewith, in the following manner:






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






	 	 	Landlord agrees to use reasonable efforts to relet the Premises after Tenant vacates the
same in the event this Lease is terminated based upon an Event of Default by Tenant
hereunder. The marketing of the Premises in a manner similar to the manner in which Landlord
markets other premises within Landlord’s control within the Complex shall be deemed to have
satisfied Landlord’s obligation to use “reasonable efforts” hereunder. In no event shall
Landlord be required to (i) solicit or entertain negotiations with any other prospective
tenant for the Premises until Landlord obtains full and complete possession of the Premises
(including, without limitation, the final and unappealable legal right to relet the Premises
free of any claim of Tenant), (ii) relet the Premises before leasing other vacant space in
the Complex, or (iii) lease the Premises for a rental less than the current fair market rent
then prevailing for similar office space in the Complex.
	 
	15.4	 	Liquidated Damages
	 
	 	 	Landlord may elect, as an alternative, to have Tenant pay liquidated damages, which election
may be made by notice given to Tenant at any time after the termination of this




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	 	 	Lease under Section 15.2, above, and whether or not Landlord shall have collected any
damages as hereinbefore provided in this Article XV, and in lieu of all other such damages
beyond the date of such notice. Upon such notice, Tenant shall promptly pay to Landlord, as
liquidated damages, in addition to any damages collected or due from Tenant from any period
prior to such notice, such a sum as at the time of such notice represents the amount of the
excess, if any, of (a) the discounted present value, at a discount rate of six percent (6%),
of the Annual Fixed Rent, Additional Rent and other charges which would have been payable by
Tenant under this Lease for the remainder of the Lease Term if the Lease terms had been
fully complied with by Tenant, over and above (b) the discounted present value, at a
discount rate of six percent (6%), of the Annual Fixed Rent, Additional Rent and other
charges that would be received by Landlord if the Premises were re- leased at the time of
such notice for the remainder of the Lease Term at the fair market value (including
provisions regarding periodic increases in Annual Fixed Rent if such are applicable)
prevailing at the time of such notice.
	 
	 	 	For the purposes of this Article, if Landlord elects to require Tenant to pay liquidated
damages in accordance with this Section 15.4, the total rent shall be computed by assuming
the Tax Excess under Section 6.1 and the Operating Cost Excess under Section 7.4 to be the
same as were payable for the twelve (12) calendar months (or if less than twelve (12)
calendar months have been elapsed since the date hereof, the partial year) immediately
preceding such termination of re-entry.
	 
	 	 	Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for
and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the
time when, and governing the proceeds in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages referred to
above.
	 
	 	 	In lieu of any other damages or indemnity and in lieu of the recovery by Landlord of all
sums payable under all the foregoing provisions of this Section 15.4, Landlord may elect to
collect from Tenant, by notice to Tenant, at any time after this Lease is terminated under
any of the provisions contained in this Article XV or otherwise terminated by breach of any
obligation of Tenant and before full recovery under such foregoing provisions, and Tenant
shall thereupon pay, as liquidated damages, an amount equal to the sum of (a) the Annual
Fixed Rent and all Additional Rent payable for the lesser of (i) the twelve (12) months
ended next prior to such termination and (ii) the number of full plus any partial months
remaining in the Lease Term, plus (b) the amount of Annual Fixed Rent and Additional Rent of
any kind accrued and unpaid at the time of such election, plus (c) any and all expenses
which the Landlord may have incurred for and with respect to the collection of any such
rent. Notwithstanding the foregoing, Landlord shall not be entitled to collect liquidated
damages under the provisions of this paragraph if such liquidated damages would exceed the
damages to which Landlord would have been entitled had it elected to collect liquidated
damages under the provisions of the first paragraph of this Section 15.4.




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	15.5	 	Waiver of Redemption
	 
	 	 	Tenant, for itself and any and all persons claiming through or under Tenant, including its
creditors, upon the termination of this Lease and of the term of this Lease in accordance
with the terms hereof, or in the event of entry of judgment for the recovery of the
possession of the Premises in any action or proceeding, or if Landlord shall enter the
Premises by process of law or otherwise, hereby waives any right of redemption provided or
permitted by any statute, law or decision now or hereafter in force, and does hereby waive,
surrender and give up all rights or privileges which it or they may or might have under and
by reason of any present or future law or decision, to redeem the Premises or for a
continuation of this Lease for the term of this Lease hereby demised after having been
dispossessed or ejected therefrom by process of law, or otherwise.
	 
	15.6	 	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 such additional time as is reasonably required to correct any such
default, after notice by Tenant to Landlord properly specifying wherein Landlord has failed
to perform any such obligation. The Tenant shall not assert any right to deduct the cost of
repairs or any monetary claim against the Landlord from rent thereafter due and payable, but
shall look solely to the Landlord for satisfaction of such claim.





ARTICLE XVI




Miscellaneous Provisions





	16.1	 	Waiver
	 
	 	 	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 its 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.
	 
	 	 	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. The acceptance
by Landlord of a check for a lesser amount with an endorsement or statement




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	 	 	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. Further, the acceptance by
Landlord of Annual Fixed Rent, Additional Rent or any other charges paid by Tenant under
this Lease shall not be or be deemed to be a waiver by Landlord of any default by Tenant,
whether or not Landlord knows of such default, except for such defaults as to which such
payment relates.
	 
	16.2	 	Cumulative Remedies
	 
	 	 	Except as expressly provided in this Lease, the specific remedies to which Landlord and
Tenant may resort under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress which they may be lawfully entitled to
seek in case of any breach or threatened breach of any provisions of this Lease. In addition
to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by
injunction of the violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to seek specific performance of any such
covenants, conditions or provisions, provided, however, that the foregoing shall not be
construed as a confession of judgment by Tenant.
	 
	16.3	 	Quiet Enjoyment
	 
	 	 	This Lease is subject and subordinate to all matters of record. Landlord agrees that, upon
Tenant’s paying the Annual Fixed Rent, Additional Rent and other charges herein reserved,
and performing and observing the covenants, conditions and agreements hereof upon the part
of Tenant to be performed and observed, Tenant shall and may peaceably hold and enjoy the
Premises during the term of this Lease (exclusive of any period during which Tenant is
holding over after the termination or expiration of this Lease without the consent of
Landlord), without interruption or disturbance from Landlord or persons claiming through or
under Landlord, subject, however, to the terms of this Lease. This covenant shall be
construed as running with the land to and against subsequent owners and successors in
interest, and is not, nor shall it operate or be construed as, a personal covenant of
Landlord, except to the extent of the Landlord’s interest in the Premises, and this covenant
and any and all other covenants of Landlord contained in this Lease shall be binding upon
Landlord and upon such subsequent owners and successors in interest of Landlord’s interest
under this Lease including ground or master lessees, to the extent of their respective
interests, as and when they shall acquire same and then only for so long as they shall
retain such interest.
	 
	16.4	 	Surrender
	 
		 	(A) No act or thing done by Landlord during the Lease Term shall be deemed an acceptance of
a surrender of the Premises, and no agreement to accept such surrender shall be valid,
unless in writing signed by Landlord. No employee of Landlord or of Landlord’s agents shall
have any power to accept the keys of the Premises as an acceptance of a surrender of the
Premises prior to the termination of this Lease; provided, however, that the foregoing shall
not apply to the delivery of keys to Landlord or its




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	 	 	agents in its (or their) capacity as managing agent or for purpose of emergency access. In
any event, however, the delivery of keys to any employee of Landlord or of Landlord’s agents
shall not operate as a termination of the Lease or a surrender of the Premises.
	 
		 	(B) Upon the expiration or earlier termination of the Lease Term, Tenant shall surrender the
Premises to Landlord in the condition as required by Sections 8.1 and 9.5, first removing
all goods and effects of Tenant and completing such other removals as may be permitted or
required pursuant to Section 9.5.
	 
	16.5	 	Brokerage
	 
	 	 	Tenant and Landlord warrant and represent that neither party has dealt with any broker in
connection with the consummation of this Lease other than the broker, person or firm
designated in Section 1.2 hereof; and in the event any claim is made against either party
relative to dealings with brokers other than the broker designated in Section 1.2 hereof,
the other party shall defend the claim against such party with counsel of the other party’s
selection and save harmless and indemnify such party on account of loss, cost or damage
which may arise by reason of such claim. Landlord agrees that it shall be solely responsible
for the payment of brokerage commissions to the broker, person or firm designated in Section
1.2 hereof in connection with the Original Lease Term.
	 
	16.6	 	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.
	 
	16.7	 	Provisions Binding, Etc.
	 
	 	 	The obligations of this Lease shall run with the land, and 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 and, if Tenant shall be an
individual, upon and to his heirs, executors, administrators, successors and assigns. Each
term and each provision of this Lease to be performed by Tenant shall be construed to be
both a covenant and a condition. The reference contained to successors and assigns of Tenant
is not intended to constitute a consent to assignment by Tenant, but has reference only to
those instances in which Landlord may have later given consent to a particular assignment as
required by the provisions of Article XII hereof.
	 
	16.8	 	Recording; Confidentiality
	 
	 	 	Each of Landlord and Tenant agree not to record the within Lease, but each party hereto
agrees, on the request of the other, to execute a so-called Notice of Lease in the form
attached hereto as Exhibit J.




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	 	 	Tenant agrees that this Lease and the terms contained herein will be treated as strictly
confidential and except as required by law or the requirements of any securities exchange
listing the stock of Tenant (or except with the written consent of Landlord), Tenant shall
not disclose the same to any third party except for Tenant’s advisors, brokers, partners,
lenders, accountants and attorneys who have been advised of the confidentiality provisions
contained herein and agree to be bound by the same; provided, Tenant shall be permitted at
any time to disclose the terms of this Lease publicly to the extent required in connection
with any filing made by Tenant with the United States Securities and Exchange Commission,
which disclosure may require attaching a copy of this Lease to such filings.
	 
	16.9	 	Notices and Time for Action
	 
	 	 	Whenever, by the terms of this Lease, notice shall or may be given either to Landlord or to
Tenant, such notices shall be in writing and shall be sent by hand, registered or certified
mail, or overnight or other commercial courier, postage or delivery charges, as the case may
be, prepaid as follows:






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






	 	 	Except as otherwise provided herein, all such notices shall be effective when received;
provided, that (i) if receipt is refused, notice shall be effective upon the first occasion
that such receipt is refused, (ii) if the notice is unable to be delivered due to a change
of address of which no notice was given, notice shall be effective upon the date such
delivery was attempted, (iii) if the notice address is a post office box number, notice
shall be effective the day after such notice is sent as provided hereinabove or (iv) if the
notice is to a foreign address, notice shall be effective two (2) days after such notice is
sent as provided hereinabove.
	 
	 	 	Any notice given by an attorney on behalf of Landlord or by Landlord’s managing agent shall
be considered as given by Landlord and shall be fully effective. Any notice given by an
attorney on behalf of Tenant shall be considered as given by Tenant and shall be fully
effective.
	 
	 	 	Where provision is made for the attention of an individual or department, the notice shall
be effective only if the wrapper in which such notice is sent is addressed to the attention
of such individual or department.
	 
	 	 	Time is of the essence with respect to any and all notices and periods for giving of notice
or taking any action thereto under this Lease.




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	16.10	 	When Lease Becomes Binding
	 
	 	 	Employees or agents of Landlord have no authority to make or agree to make a lease or any
other agreement or undertaking in connection herewith. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises, and this document shall become effective and binding only upon the
execution and delivery hereof by both Landlord and Tenant. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated herein and
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.
	 
	16.11	 	Paragraph Headings
	 
	 	 	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.
	 
	16.12	 	Rights of Mortgagee
	 
	 	 	This Lease shall be subject and subordinate to any mortgage now or hereafter placed on the
Site or the Building, or both, and to all renewals, modifications, consolidations,
replacements and extensions thereof and all substitutions therefor, provided that the holder
of such mortgage agrees to recognize the right of Tenant to use and occupy the Premises upon
the payment of rent and other charges payable by Tenant under this Lease and the performance
by Tenant of Tenant’s obligations hereunder. In confirmation of such subordination and
recognition, Tenant shall execute and deliver promptly such instruments of subordination as
such mortgagee may reasonably request, subject to receipt of such instruments of
non-disturbance from such mortgagee as Tenant may reasonably request (Landlord hereby
agreeing to pay any legal or other fees charged by the mortgagee in connection with
providing the same). In the event that any mortgagee or its respective successor in title
shall succeed to the interest of Landlord, then this Lease shall nevertheless continue in
full force and effect and Tenant shall and does hereby agree to attorn to such mortgagee or
successor and to recognize such mortgagee or successor as its landlord. If any holder of a
mortgage which includes the Premises, executed and recorded prior to the Date of this Lease,
shall so elect, this Lease, and the rights of Tenant hereunder, shall be superior in right
to the rights of such holder, with the same force and effect as if this Lease had been
executed, delivered and recorded, or a statutory Notice hereof recorded, prior to the
execution, delivery and recording of any such mortgage. The election of any such holder
shall become effective upon either notice from such holder to Tenant in the same fashion as
notices from Landlord to Tenant are to be given hereunder or by the recording in the
appropriate registry or recorder’s office of an instrument in which such holder subordinates
its rights under such mortgage to this Lease.
	 
	 	 	If in connection with obtaining financing a bank, insurance company, pension trust or




Page 59 









 






	 	 	other institutional lender shall request reasonable modifications in this Lease as a
condition to such financing, Tenant will not unreasonably withhold, delay or condition its
consent thereto, provided that (i) such modifications do not increase the monetary
obligations of Tenant hereunder or materially adversely affect the leasehold interest hereby
created or Tenant’s rights hereunder and (ii) Landlord shall be responsible for the payment
of all reasonable costs incurred by Tenant in complying with such request such as, for
example, attorneys’ fees.
	 
	16.13	 	Rights of Ground Lessor
	 
	 	 	If Landlord’s interest in property (whether land only or land and buildings) which includes
the Premises is acquired by another party and simultaneously leased back to Landlord herein,
the holder of the ground lessor’s interest in such lease shall enter into a recognition
agreement with Tenant simultaneously with the sale and leaseback, wherein the ground lessor
will agree to recognize the right of Tenant to use and occupy the Premises upon the payment
of Annual Fixed Rent, Additional Rent and other charges payable by Tenant under this Lease
and the performance by Tenant of Tenant’s obligations hereunder, and wherein Tenant shall
agree to attorn to such ground lessor as its Landlord and to perform and observe all of the
tenant obligations hereunder, in the event such ground lessor succeeds to the interest of
Landlord hereunder under such ground lease.
	 
	16.14	 	Notice to Mortgagee and Ground Lessor
	 
	 	 	After receiving notice from any person, firm or other entity that it holds a mortgage which
includes the Premises as part of the mortgaged premises, or that it is the ground lessor
under a lease with Landlord as ground lessee, which includes the Premises as a part of the
demised premises, no notice from Tenant to Landlord shall be effective unless and until a
copy of the same is given to such holder or ground lessor at the address as specified in
said notice (as it may from time to time be changed), and the curing of any of Landlord’s
defaults by such holder or ground lessor within a reasonable time after such notice
(including a reasonable time to obtain possession of the premises if the mortgagee or ground
lessor elects to do so) shall be treated as performance by Landlord. For the purposes of
this Section 16.14, the term “mortgage” includes a mortgage on a leasehold interest of
Landlord (but not one on Tenant’s leasehold interest).
	 
	16.15	 	Assignment of Rents
	 
	 	 	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 or ground lease on property which includes the Premises, Tenant agrees:






	 	(a)	 	That the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, or the ground lessor, shall never be
treated as an assumption by such holder or ground lessor of any of the
obligations of Landlord hereunder, unless such holder, or ground lessor, shall,
by notice




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	 	 	 	sent to Tenant or under a non-disturbance agreement or other agreement with
Tenant, specifically otherwise elect; and






	 	(b)	 	That, except as aforesaid, such holder or ground lessor 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, or, in the case of a ground lessor, the assumption of Landlord’s
position hereunder by such ground lessor. In no event shall the acquisition of
title to the Building and the land on which the same is located by a purchaser
which, simultaneously therewith, leases the entire Building or such land back
to the seller thereof be treated as an assumption, by operation of law or
otherwise, of Landlord’s obligations hereunder, but Tenant shall look solely to
such seller-lessee, and its successors from time to time in title, for
performance of Landlord’s obligations hereunder. In any such event, this Lease
shall be subject and subordinate to the lease to such purchaser provided that
such purchaser-lessor agrees to recognize the right of Tenant to use and occupy
the Premises upon the payment of rent and all other charges payable by Tenant
under this Lease and the performance by Tenant of Tenant’s obligations under
this Lease. 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.






	16.16	 	Status Report and Financial Statements
	 
	 	 	Recognizing that the parties hereto may find it necessary to establish to third parties,
such as accountants, banks, potential or existing mortgagees, potential purchasers or the
like, the then current status of performance hereunder, each party (the “Non-Requesting
Party”) on the request of the other party (the “Requesting Party”) made from time to time,
will promptly furnish to the Requesting Party, addressed to any existing or potential holder
of any mortgage encumbering the Premises, the Buildings, the Site and/or the Complex or any
potential purchaser of the Premises, the Buildings, the Site and/or the Complex (each an
“Interested Party”) a statement of the status of any reasonable matter pertaining to 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; provided,
however, that in the event that either party is requested to provide more than one (1) such
statement in any twelve (12) month period, the Requesting Party shall be responsible for the
payment of all reasonable costs incurred by the Non-Requesting Party in providing such
statements, including, without limitation, attorneys’ fees.
	 
	 	 	In addition, unless and for so long as Tenant is not a publicly-traded entity with financial
statements that are freely available to the public which are certified to the governmental
regulatory authorities, Tenant shall deliver to Landlord, or any Interested Party designated
by Landlord, financial statements of Tenant, as reasonably requested by Landlord including,
but not limited to, financial statements for the past three (3) years.
	 
	 	 	Any such status statement and non-publicly available financial statement, which shall be




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	 	 	certified by Tenant’s executives to the same extent as publicly-available financial
statements of publicly-traded entities, which are delivered pursuant to this Section 16.16
may be relied upon by any Interested Party.






	16.17	 	Self-Help
	 
		 	(A) If Tenant shall at any time fail to make any payment or perform any act which Tenant is
obligated to make or perform under this Lease and (except in the case of emergency) if the
same continues unpaid or unperformed beyond applicable grace periods, then Landlord may, but
shall not be obligated so to do, after ten (10) business days’ written notice to and demand
upon Tenant, or without notice to or demand upon Tenant in the case of any emergency, and
without waiving, or releasing Tenant from, any obligations of Tenant in this Lease
contained, make such payment or perform such act which Tenant is obligated to perform under
this Lease in such manner and to such extent as may be reasonably necessary, and, in
exercising any such rights, pay any costs and expenses, employ counsel and incur and pay
reasonable attorneys’ fees. All sums so paid by Landlord and all reasonable and necessary
costs and expenses of Landlord incidental thereto, together with interest thereon at the
annual rate equal to the sum of (a) the Base Rate from time to time announced by Bank of
America, N.A (or its successor) as its Base Rate and (b) two percent (2%) (but in no event
greater than the maximum rate permitted by applicable law), from the date of the making of
such expenditures by Landlord, shall be deemed to be Additional Rent and, except as
otherwise in this Lease expressly provided, shall be payable to the Landlord on demand, and
if not promptly paid shall be added to any rent then due or thereafter becoming due under
this Lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid, and
Landlord shall have (in addition to any other right or remedy of Landlord) the same rights
and remedies in the event of the non-payment thereof by Tenant as in the case of default by
Tenant in the payment of Annual Fixed Rent.
	 
		 	(B) If Landlord shall at any time be in default pursuant to the terms and conditions of this
Lease attributable to its failure to perform any act which Landlord is obligated to perform
under this Lease, and (except in the case of emergency) should such failure continue beyond
applicable grace periods, Tenant may, but shall not be obligated so to do, after ten (10)
business days’ written notice to and demand upon Landlord explicitly setting forth the basis
for Tenant’s claim of default and specifying that Tenant intends to invoke Tenant’s rights
under this Section 16.17 (or without notice to or demand upon Landlord in the case of any
emergency) (“Tenant’s Self-Help Notice”), and without waiving, or releasing Landlord from,
any obligations of Landlord in this Lease contained, perform such act which Landlord is
obligated to perform under this Lease in such manner and to such extent as may be reasonably
necessary. All sums reasonably so incurred and paid by Tenant and all reasonable and
necessary costs and expenses of Tenant incidental to Tenant’s proper exercise of self-help
rights pursuant to this Section 16.17, together with interest thereon at the annual rate
equal to the sum of (a) the Base Rate from time to time announced by Bank of America, N.A
(or its successor) as its Base Rate and (b) two percent (2%) (but in no event greater than
the maximum rate permitted by applicable law), from the date of the making of such
expenditures by Tenant, shall be payable to the Tenant within thirty (30) days of Tenant’s
furnishing Landlord an invoice therefor,




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	 	 	accompanied by reasonable substantiation, and Landlord covenants to pay any such sum or sums
with interest as aforesaid if not timely paid. If Landlord fails to reimburse Tenant for the
sums paid by Tenant within thirty (30) days of Tenant’s invoice (together with supporting
documentation), and Landlord has not, within ten (10) business days of its receipt of such
invoice, given written notice to Tenant objecting to such demand and stating that Landlord
has filed suit in a court of competent jurisdiction to determine whether or not Tenant had
validly exercised its self-help right hereunder (or if Landlord has timely disputed Tenant’s
invoice, has filed suit and has thereafter failed to pay Tenant the amount of any final,
unappealable award against Landlord within thirty (30) days after the issuance thereof) then
subject to the last sentence of this paragraph, Tenant shall have the right to offset the
amount of such sums demanded by Tenant against the Annual Fixed Rent and Additional Rent
payable under this Lease until offset in full. Notwithstanding the foregoing, Tenant shall
have no right to reduce any monthly installment of Annual Fixed Rent by more than fifteen
percent (15%) of the amount of Annual Fixed Rent which would otherwise have been due and
payable by Tenant to Landlord, unless the aggregate amount of such deductions over the
remainder of the Lease Term (as the same may have been extended) will be insufficient to
fully reimburse Tenant for the amount demanded by Tenant, in which event Tenant may effect
such offset by making deductions from each monthly installment of Annual Fixed Rent in equal
monthly amounts over the balance of the remainder of the Lease Term.






	16.18	 	Holding Over
	 
		 	(A) Any holding over by Tenant after the expiration of the term of this Lease shall be
treated as a tenancy at sufferance and shall be on the terms and conditions as set forth in
this Lease, as far as applicable except that Tenant shall pay as a use and occupancy charge
an amount equal to the greater of (x) 150% of the Annual Fixed Rent and Additional Rent
calculated (on a daily basis) at the rate payable under the terms of this Lease immediately
prior to the commencement of such holding over, or (y) the fair market rental value of the
Premises, in each case for the period measured from the day on which Tenant’s hold-over
commences and terminating on the day on which Tenant vacates the Premises. Notwithstanding
the foregoing, for the first thirty (30) days of any holding over, the percentage figure set
forth above shall instead be 125%.
	 
		 	(B) In addition, Tenant shall save Landlord, its agents and employees harmless and will
exonerate, defend and indemnify Landlord, its agents and employees from and against any and
all damages which Landlord may suffer on account of Tenant’s hold-over in the Premises after
the expiration or prior termination of the term of this Lease. Notwithstanding the
foregoing, however, Tenant shall not be liable for indirect or consequential damages
incurred by Landlord during the first thirty (30) days of any holding over by Tenant.
	 
		 	(C) Nothing in the foregoing nor any other term or provision of this Lease shall be deemed
to permit Tenant to retain possession of the Premises or hold over in the Premises after the
expiration or earlier termination of the Lease Term. All property which remains in the
Building or the Premises after the expiration or termination of this Lease shall be
conclusively deemed to be abandoned and may either be retained by Landlord as




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	 	 	its property or sold or otherwise disposed of in such manner as Landlord may see fit. If any
part thereof shall be sold, then Landlord may receive the proceeds of such sale and apply
the same, at its option against the expenses of the sale, the cost of moving and storage,
any arrears of rent or other charges payable hereunder by Tenant to Landlord and any damages
to which Landlord may be entitled under this Lease and at law and in equity.
	 
	16.19	 	Entry by Landlord
	 
	 	 	Landlord, and its duly authorized representatives, shall, upon reasonable prior notice
(except in the case of emergency), have the right (i) to enter the Premises at all
reasonable times (except at any time in the case of emergency) for the purposes of
inspecting the condition of same and making such repairs, alterations, additions or
improvements thereto as may be necessary if Tenant fails to do so as required hereunder (but
the Landlord shall have no duty whatsoever to make any such inspections, repairs,
alterations, additions or improvements except as otherwise provided in Sections 7.1 and 7.2
and Exhibit C attached hereto), and (ii) to show the Premises to prospective tenants during
the eighteen (18) months preceding expiration of the term of this Lease as it may have been
extended and at any reasonable time during the Lease Term to show the Premises to
prospective purchasers and mortgagees.
	 
	16.20	 	Tenant’s Payments
	 
	 	 	Each and every payment and expenditure, other than Annual Fixed Rent, shall be deemed to be
Additional Rent hereunder, whether or not the provisions requiring payment of such amounts
specifically so state, and shall be payable, unless otherwise provided in this Lease, within
thirty (30) days after written demand by Landlord, and in the case of the non-payment of any
such amount, Landlord shall have, in addition to all of its other rights and remedies, all
the rights and remedies available to Landlord hereunder or by law in the case of non-payment
of Annual Fixed Rent. Unless expressly otherwise provided in this Lease, the performance and
observance by Tenant of all the terms, covenants and conditions of this Lease to be
performed and observed by Tenant shall be at Tenant’s sole cost and expense. Except as
otherwise expressly provided in Section 7.6(D), if Tenant has not objected to any statement
of Additional Rent which is rendered by Landlord to Tenant within one hundred fifty (150)
days after Landlord has rendered the same to Tenant, then the same shall be deemed to be a
final account between Landlord and Tenant not subject to any further dispute. In the event
that Tenant shall seek Landlord’s consent or approval under this Lease, then Tenant shall
reimburse Landlord, upon demand (accompanied by reasonable supporting documentation) as
Additional Rent, for all reasonable costs and expenses, including legal and architectural
costs and expenses, and costs associated with any of Landlord’s senior or junior staff at
the rates set forth above in this Lease, reasonably incurred by Landlord in processing such
request, whether or not such consent or approval shall be given.
	 
	16.21	 	Late Payment
	 
	 	 	If Landlord shall not have received any payment or installment of Annual Fixed Rent or




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






	16.22	 	Counterparts
	 
	 	 	This Lease may be executed in several counterparts, each of which shall be deemed an
original, and such counterparts shall constitute but one and the same instrument.
	 
	16.23	 	Entire Agreement
	 
	 	 	This Lease constitutes the entire agreement between the parties hereto, Landlord’s managing
agent and their respective affiliates with respect to the subject matter hereof and thereof
and supersedes all prior dealings between them with respect to such subject matter, and
there are no verbal or collateral understandings, agreements, representations or warranties
not expressly set forth in this Lease. No subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant, unless reduced to writing
and signed by the party or parties to be charged therewith.
	 
	16.24	 	Limitation of Liability
	 
	 	 	Tenant shall neither assert nor seek to enforce any claim for breach of this Lease against
any of Landlord’s assets other than Landlord’s interest in the Property (and the proceeds of
any insurance claim or eminent domain proceeding in connection therewith), and Tenant agrees
to look solely to such interest for the satisfaction of any liability of Landlord under this
Lease, it being specifically agreed that neither Landlord, nor any successor holder of
Landlord’s interest hereunder, nor any beneficiary of any trust of which any person from
time to time holding Landlord’s interest is trustee, nor any such trustee nor any member,
manager, partner, director or stockholder, nor Landlord’s managing agent, shall ever be
personally liable for any such liability. This paragraph 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 other action which




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	 	 	shall not involve the personal liability of Landlord, or of any successor holder of
Landlord’s interest hereunder, or of any beneficiary of any trust of which any person from
time to time holding Landlord’s interest is trustee, or of any such trustee, or of any
manager, member, partner, director or stockholder of Landlord or Landlord’s managing agent
to respond in monetary damages from Landlord’s assets other than Landlord’s interest in said
Property (and the proceeds of any insurance claim or eminent domain proceeding in connection
therewith), as aforesaid, but in no event shall Tenant have the right to terminate or cancel
this Lease or to withhold rent or to set-off any claim or damages against rent as a result
of any default by Landlord or breach by Landlord of its covenants or any warranties or
promises hereunder, except in the case of a wrongful eviction of Tenant from the demised
premises (constructive or actual) by Landlord continuing after notice to Landlord thereof
and a reasonable opportunity for Landlord to cure the same.






	 	 	In no event shall either party hereto ever be liable for any indirect or consequential
damages or loss of profits or the like, provided that the foregoing limitation of liability
shall be inapplicable to Tenant’s obligations pursuant to Section 16.18 hereof (subject to
the limitations set forth in Sections 16.18(B) thereof).
	 
	16.25	 	No Partnership
	 
	 	 	The relationship of the parties hereto is that of landlord and tenant and no partnership,
joint venture or participation is hereby created.
	 
	16.26	 	Security Deposit
	 
		 	(A) Concurrently with the execution of this Lease, Tenant shall pay to Landlord a security
deposit in the amount of the Initial Security Deposit Amount set forth in Section 1.2, and
Landlord shall hold the same, throughout the Term of this Lease (including the Extended
Term, if applicable), unless sooner returned to Tenant as provided in this Section 16.26, as
security for the performance by Tenant of all obligations on the part of Tenant to be
performed under this Lease. Such deposit shall be in the form of an irrevocable,
unconditional, negotiable letter of credit or an amendment to the existing letter of credit
currently being held by Landlord pursuant to the Existing Lease which increases the amount
secured thereby to the Initial Security Deposit Amount and modifies any provision that
refers specifically to the Existing Lease (in either event, the “Letter of Credit”). The
Letter of Credit shall (i) be issued by and drawn on a bank reasonably approved by Landlord
and at a minimum having a corporate credit rating from Standard and Poor’s Professional
Rating Service of BBB- or a comparable minimum rating from Moody’s Professional Rating
Service, (ii) be substantially in the form attached hereto as Exhibit I, (iii) permit one or
more draws thereunder to be made accompanied only by certification by Landlord or Landlord’s
managing agent that pursuant to the terms of this Lease, Landlord is entitled to draw upon
such Letter of Credit, (iv) permit transfers at any time without charge, (v) permit
presentment in Boston, Massachusetts and (vi) provide that any notice to Landlord be sent to
the notice address provided for Landlord in this Lease. If the credit rating for the issuer
of such Letter of Credit falls below the standard set forth in (i) above or if the financial
condition of such




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	 	 	issuer changes in any other material adverse way, Landlord shall have the right to require that Tenant provide a
substitute letter of credit that complies in all respects with the requirements of this
Section, and Tenant’s failure to provide the same within ten (10) days following Landlord’s
written demand therefor shall entitle Landlord to immediately draw upon the Letter of
Credit. Any such Letter of Credit shall be for a term of two (2) years (or for one (1) year
if the issuer thereof regularly and customarily only issues letters of credit for a maximum
term of one (1) year) and shall in either case provide for automatic renewals through the
date which is ninety (90) days subsequent to the scheduled expiration of this Lease (as the
same may be extended) or if the issuer will not grant automatic renewals, the Letter of
Credit shall be renewed by Tenant each year and each such renewal shall be delivered to and
received by Landlord not later than thirty (30) days before the expiration of the then
current Letter of Credit (herein called a “Renewal Presentation Date”). In the event of a
failure to so deliver any such renewal Letter of Credit on or before the applicable Renewal
Presentation Date, Landlord shall be entitled to present the then existing Letter of Credit
for payment and to receive the proceeds thereof, which proceeds shall be held as Tenant’s
security deposit, subject to the terms of this Section 16.26. Any failure or refusal of the
issuer to honor the Letter of Credit shall be at Tenant’s sole risk and shall not relieve
Tenant of its obligations hereunder with regard to the security deposit. Upon the occurrence
of any Event of Default, Landlord shall have the right from time to time without prejudice
to any other remedy Landlord may have on account thereof, to draw on all or any portion of
such deposit held as a Letter of Credit and to apply the proceeds of such Letter of Credit
or any cash held as such deposit, or any part thereof, to Landlord’s damages arising from
such Event of Default on the part of Tenant under the terms of this Lease. If Landlord so
applies all or any portion of such deposit, Tenant shall within ten (10) days after notice
from Landlord deposit cash with Landlord in an amount sufficient to restore such deposit to
the full amount stated in this Section 16.26. While Landlord holds any cash deposit Landlord
shall have no obligation to pay interest on the same and shall have the right to commingle
the same with Landlord’s other funds. Neither the holder of a mortgage nor the Landlord in a
ground lease on property which includes the Premises shall ever be responsible to Tenant for
the return or application of any such deposit, whether or not it succeeds to the position of
Landlord hereunder, unless such deposit shall have been received in hand by such holder or
ground Landlord.
	 
		 	(B) Landlord shall return One Hundred Fifty Thousand and 00/100 Dollar ($150,000.00) portion
of such deposit to Tenant so that the remainder of such deposit shall be Six Hundred
Thousand and 00/100 Dollars ($600,000.00) (or if such deposit is in the form of a Letter of
Credit, Landlord shall exchange the Letter of Credit for a Letter of Credit delivered by
Tenant which reduces the amount secured by the Letter of Credit by the amount stated
hereinabove and otherwise in strict conformity with the requirements herein) on October 1,
2012 (the “Scheduled Reduction Date”) if (i) Tenant is not then in default under the terms
of this Lease without the benefit of notice or grace, (ii) Landlord has not applied such
deposit or any portion thereof to Landlord’s damages arising from any default on the part of
Tenant, whether or not Tenant has restored the amount so applied by Landlord, (iii) there
have not been more than three (3) monetary or material non-monetary Events of Default that
occurred during the Term, even if later cured and




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		 	(iv) Tenant then fulfills the Minimum Revenue Criteria (as defined in Section 16.26(C)
below). In the event that Tenant does not meet all of the foregoing conditions set forth in
clauses (i) through (iv) of the immediately preceding sentence on October 1, 2012, then the
Scheduled Reduction Date shall be deferred until such date as Tenant has met such
conditions.
	 
		 	(C) For purposes of this Section 16.26, the “Minimum Revenue Criteria” shall be considered
to have been satisfied if, taking into account the last four (4) full fiscal quarters
immediately preceding the Scheduled Reduction Date (as the same may be deferred in
accordance with the last sentence of subsection (B) above), based on the information
contained in the unaudited financial statements set forth in the most recent Form 10Q, Form
10K and/or Form 8K, as applicable, filed by Tenant with the Securities and Exchange
Commission for each such fiscal quarter, Tenant’s total revenue equals or exceeds One
Hundred Million and 00/100 Dollars ($100,000,000.00) and Tenant’s earnings before interest,
taxes, depreciation, amortization and non-cash based stock compensation equals or exceeds
Ten Million and 00/100 Dollars ($10,000,000.00). In the event that, at any time, Tenant is
an entity other than a publicly-held company whose shares are traded on a national stock
exchange, Tenant shall provide Landlord with a certified copy of its most recent audited
financial statements, and a reasonably equivalent criteria acceptable to Landlord shall be
used to determine Tenant’s total revenue in a similar fashion, based on such audited annual
financial statements.
	 
		 	(D) If Tenant believes that it has satisfied all the conditions precedent to a reduction in
the amount of the security deposit, then it shall request such reduction in writing to
Landlord, which request shall certify to Landlord that all such conditions have been
satisfied. If Landlord agrees, in its reasonable determination, that all of the aforesaid
conditions are met, the security deposit shall be so reduced in accordance with this Section
16.26. No Letter of Credit shall automatically reduce, but any reduction in the amount
thereof shall require Landlord’s prior written notice to the issuer of the Letter of Credit
of the reduced amount. Promptly after Landlord’s receipt of Tenant’s request for a reduction
as described above, Landlord shall determine whether such a reduction is permitted in
accordance with this Section 16.26, and if it is, Landlord shall notify the issuer of the
Letter of Credit of the amount to which the Letter of Credit shall be reduced.
	 
		 	(E) Tenant not then being in monetary or material non-monetary default and having performed
all of its monetary or material non-monetary obligations under this Lease, including the
payment of all Annual Fixed Rent, Landlord shall promptly return the deposit, or so much
thereof as shall not have theretofore been applied in accordance with the terms of this
Section 16.26, to Tenant on the expiration or earlier termination of the term of this Lease
(as the same may have been extended) and surrender possession of the Premises by Tenant to
Landlord in the condition required in the Lease at such time.
	 
	16.27	 	Waiver of Trial by Jury
	 
	 	 	To induce Landlord to enter into this Lease, Tenant hereby waives any right to trial by jury
in any action, proceeding or counterclaim brought by either Landlord or Tenant on any
matters whatsoever arising out of or any way connected with this Lease, the




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	 	 	relationship of the Landlord and the Tenant, the Tenant’s use or occupancy of the Premises
and/or any claim of injury or damage, including but not limited to, any summary process
eviction action.
	 
	16.28	 	Patriot Act and Executive Order 13224
	 
		 	(A) As an inducement to Landlord to enter into this Lease, Tenant hereby represents and
warrants that, to Tenant’s knowledge: (i) Tenant is not, nor is it owned or controlled
directly or indirectly by, any person, group, entity or nation named on any list issued by
the Office of Foreign Assets Control of the United States Department of the Treasury
(“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or
regulation or any Executive Order of the President of the United States as a terrorist,
“Specially Designated National and Blocked Person” or other banned or blocked person (any
such person, group, entity or nation being hereinafter referred to as a “Prohibited
Person”); (ii) Tenant is not (nor is it owned or controlled, directly or indirectly, by any
person, group, entity or nation which is) acting directly or indirectly for or on behalf of
any Prohibited Person; and (iii) from and after the effective date of the above-referenced
Executive Order, Tenant (and any person, group, or entity which Tenant controls, directly or
indirectly) has not knowingly conducted nor will knowingly conduct business nor has
knowingly engaged nor will knowingly engage in any transaction or dealing with any
Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation,
including without limitation any assignment of this Lease or any subletting of all or any
portion of the Premises or the making or receiving of any contribution of funds, goods or
services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act
or any OFAC rule or regulation. In connection with the foregoing, is expressly understood
and agreed that (x) any breach by Tenant of the foregoing representations and warranties
shall be deemed a default by Tenant under Section 15.1(d) of this Lease and shall be covered
by the indemnity provisions of Section 13.1(A) above, and (y) the representations and
warranties contained in this subsection shall be continuing in nature and shall survive the
expiration or earlier termination of this Lease. Notwithstanding anything contained herein
to the contrary, for the purposes of this subsection (B) the phrase “owned or controlled
directly or indirectly by any person, group, entity or nation” and all similar such phrases
shall not include any holder of a direct or indirect interest in a publicly traded company
whose shares are listed and traded on a United States national stock exchange.
	 
		 	(B) As an inducement to Tenant to enter into this Lease, Landlord hereby represents and
warrants that, to Landlord’s knowledge: (i) Landlord is not, nor is it owned or controlled
directly or indirectly by, any person, group, entity or nation named on any list issued by
the Office of Foreign Assets Control of the United States Department of the Treasury
(“OFAC”) pursuant to Executive Order 13224 or any similar list or by any law, order, rule or
regulation or any Executive Order of the President of the United States as a terrorist,
“Specially Designated National and Blocked Person” or other banned or blocked person (any
such person, group, entity or nation being hereinafter referred to as a “Prohibited
Person”); (ii) Landlord is not (nor is it owned or controlled, directly or indirectly, by
any person, group, entity or nation which is) acting directly or indirectly for or on behalf
of any Prohibited Person; and (iii) from and after the effective date of the




Page 69 









 






	 	 	above-referenced Executive Order, Landlord (and any person, group, or entity which Landlord
controls, directly or indirectly) has not knowingly conducted nor will knowingly conduct
business nor has knowingly engaged nor will knowingly engage in any transaction or dealing
with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or
regulation, including without limitation, the making or receiving of any contribution of
funds, goods or services to or for the benefit of a Prohibited Person in violation of the
U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, is
expressly understood and agreed that the representations and warranties contained in this
subsection shall be continuing in nature and shall survive the expiration or earlier
termination of this Lease. Notwithstanding anything contained herein to the contrary, for
the purposes of this subsection (B) the phrase “owned or controlled directly or indirectly
by any person, group, entity or nation” and all similar such phrases shall not include (x)
any shareholder of Boston Properties, Inc., (y) any holder of a direct or indirect interest
in a publicly traded company whose shares are listed and traded on a United States national
stock exchange or (z) any limited partner, unit holder or shareholder owning an interest of
five percent (5%) or less in Boston Properties Limited Partnership or the holder of any
direct or indirect interest in Boston Properties Limited Partnership.






	16.29	 	Governing Law
	 
	 	 	This Lease shall be governed exclusively by the provisions hereof and by the law of The
Commonwealth of Massachusetts, as the same may from time to time exist.
	 
	16.30	 	Emergency Generator
	 
	 	 	As of the date of this Lease, Tenant has installed an emergency generator and diesel fuel
tank (collectively, the “Emergency Generator”) in the garage located underneath the Building
and certain connections between the Emergency Generator and the Premises (the “Generator
Connections”). To the best of Landlord’s actual knowledge as of the date of this Lease
(without investigation or inquiry), Landlord is unaware of any non-compliance of the
Emergency Generator or the Generator Connections with the applicable provisions of this
Lease (although it is Landlord’s understanding that the Emergency Generator and Generator
Connections have not yet had a final inspection by the City of Waltham).
	 
	 	 	Tenant’s use of the Emergency Generator shall be upon all of the conditions of the Lease,
except as modified below:






	 	(a)	 	Tenant shall have no obligation to pay Annual Fixed Rent, Tax
Excess or Operating Expense Excess in respect of the Emergency Generator or the
Generator Connections.
	 
	 	(b)	 	The Emergency Generator shall be used solely to provide back-up
power in the event of an outage for Tenant’s lights and plugs in the Premises
and dedicated heating, ventilation and air conditioning systems serving the
Premises, but not for the purposes of running any life-safety systems or




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	 	 	 	equipment (it being understood and agreed that such dedicated HVAC systems
may not function during such an outage, even if connected to the Emergency
Generator, to the extent that the base building systems are not
functioning).
	 
	 	(c)	 	Landlord shall have no obligation to provide any services to
the Emergency Generator. Tenant shall, at its sole cost and expense and
otherwise in accordance with the provisions of this Section 16.30, arrange for
all utility services required for the operation of the Emergency Generator.
	 
	 	(d)	 	Tenant shall, at its sole cost and expense, be solely
responsible for all maintenance and repair to the Emergency Generator and the
Generator Connections. In connection therewith, Tenant shall provide Landlord
within thirty (30) days after request therefor with evidence of the existence
of a maintenance contract for the Emergency Generator with a service provider
reasonably acceptable to Landlord.
	 
	 	(e)	 	Tenant shall have no right to make any changes, alterations,
signs, or other improvements to the Emergency Generator or the Generator
Connections without Landlord’s prior written consent, which consent shall not
be unreasonably withheld or delayed.
	 
	 	(f)	 	Tenant shall be responsible for the cost of repairing any
damage to the Building caused by its use of the Emergency Generator and the
Generator Connections.
	 
	 	(g)	 	Except for assignees of this Lease or subtenants of all or a
portion of the Premises, no other person, firm or entity (including, without
limitation, other tenants, licensees or occupants of the Building) shall have
the right to connect to the Emergency Generator other than Tenant.
	 
	 	(h)	 	To the maximum extent permitted by law, Tenant’s use of the
Emergency Generator and the Generator Connections shall be at the sole risk of
Tenant, and Landlord shall have no liability to Tenant in the event that the
Emergency Generator or the Generator Connections are damaged for any reason.
	 
	 	(i)	 	Tenant shall comply with all applicable laws, ordinances and
regulations in Tenant’s use of the Emergency Generator and the Generator
Connections.
	 
	 	(j)	 	Landlord shall have the right, exercisable no more than one (1)
time during the Lease Term upon no less than one hundred twenty (120) days
notice to Tenant and at Landlord’s sole cost and expense, to relocate the
Emergency Generator and the Generator Connections to another area in




Page 71 









 






	 	 	 	the vicinity of the Building. Landlord and Tenant shall cooperate with each
other in good faith to schedule such relocation work on nights and weekends
so as to minimize interference with Tenant’s business operations. Any such
relocation by Landlord shall not independently (i.e., in the absence of
another cause) be deemed to constitute a failure of electric supply under
Section 7.6(C) above.
	 
	 	(k)	 	In addition to the indemnification provisions set forth in this
Lease which shall be applicable to the Emergency Generator and the Generator
Connections, Tenant shall, to the maximum extent permitted by law, indemnify,
defend, and hold Landlord, its agents, contractors and employees harmless from
any and all claims, losses, demands, actions or causes of actions suffered by
any person, firm, corporation, or other entity arising from Tenant’s use of the
Emergency Generator and the Generator Connections.
	 
	 	(l)	 	Landlord shall have the right to designate or identify the
Emergency Generator with or by a lease or license number (or other marking) and
to place such number (or marking) on or near such Emergency Generator.






	 	 	It is expressly understood and agreed that, as Special Improvements, Landlord may require
removal of the Emergency Generator and Generator Connections pursuant to Section 9.1 of this
Lease, but that Tenant may elect to remove the Emergency Generator and Generator Connections
any time during the Lease Term.
	 
	16.31	 	Tenant’s Telecommunications Equipment
	 
	 	 	Tenant shall be permitted, at its sole cost and expense, to install equipment for
telecommunications, data transmission and other similar technologies (the “Tenant’s
Telecommunications Equipment”) on the rooftop of the Building. The exact specifications of
the Tenant’s Telecommunications Equipment, the method of installing the Tenant’s
Telecommunications Equipment and the location on the rooftop for the Tenant’s
Telecommunications Equipment shall all be subject to Landlord’s prior written approval,
which shall not be unreasonably withheld or delayed. Tenant and Tenant’s contractors shall
have reasonable access to the roof in order to inspect, service, repair, maintain and
replace any Tenant’s Telecommunications Equipment located thereon, subject to Landlord’s
reasonable rules and regulations of which Tenant has been given prior notice relative to the
access to and use of the rooftop. Tenant shall use Landlord’s roof contractor for the
installation of flashing for any rooftop penetrations necessary for the placement of the
Tenant’s Telecommunications Equipment on the rooftop of the Building.
	 
	 	 	Tenant’s use of the Tenant’s Telecommunications Equipment shall be upon all of the
conditions of the Lease, except as modified below:






	 	(a)	 	It is understood and agreed that Tenant shall be responsible, at its sole cost
and expense, for installing all necessary connections (the “Connections”) between the




Page 72









 












	 	 	 	Tenant’s Telecommunications Equipment and the Premises. In addition to complying
with the applicable construction provisions of this Lease, Tenant shall not install
or operate the Connections in any portion of the Building until (x) Tenant shall
have obtained Landlord’s prior written approval, which approval will not be
unreasonably withheld or delayed, of Tenant’s plans and specifications for the
placement and installation of the Connections, and (y) Tenant shall have obtained
and delivered to Landlord copies of all required governmental and quasi-governmental
permits, approvals, licenses and authorizations necessary for the lawful
installation, operation and maintenance of the Connections. Landlord shall inform
Tenant at the time of its review of the Connections whether Landlord will require
the same to be removed by Tenant upon the expiration or earlier termination of this
Lease.
	 
	 	(b)	 	Tenant shall have no obligation to pay Annual Fixed Rent, Tax Excess or
Operating Expense Excess in respect of the Tenant’s Telecommunications Equipment or the
Connections provided that the same are used solely to provide service to Tenant’s
business operations in the Premises (as opposed to being utilized by the
telecommunications carrier to provide service to other tenants of the Complex).






	 	(c)	 	Except as otherwise set forth in this Lease, Landlord shall have no liability
to Tenant for the installation and subsequent operation of the Tenant’s
Telecommunications Equipment.
	 
	 	(d)	 	Landlord shall have no obligation to provide any services to the Tenant’s
Telecommunications Equipment, provided, however, Tenant shall have the right to access
telephone/data closets and shafts and conduits in the Building, plenum areas and other
pathways in the Building in order to connect the Tenant’s Telecommunications Equipment
to the Premises, subject to Landlord’s right to reasonably approve such connections and
to Landlord’s reasonable rules and regulations of which Tenant has been given prior
notice relative to the access to and the use of such areas within the Building. Tenant
shall, at its sole cost and expense and otherwise in accordance with the provisions of
this Section 16.31, arrange for all utility services required for the operation of the
Tenant’s Telecommunications Equipment.
	 
	 	(e)	 	Tenant shall, at its sole cost and expense, be solely responsible for all
maintenance and repair to the Tenant’s Telecommunications Equipment and the
Connections.
	 
	 	(f)	 	Tenant shall have no right to make any changes, alterations, signs, or other
improvements to the Tenant’s Telecommunications Equipment or the Connections without
Landlord’s prior written consent, which consent shall not be unreasonably withheld or
delayed.
	 
	 	(g)	 	Tenant shall be responsible for the cost of repairing any damage to the
Building or




Page 73









 












	 	 	 	the Site caused by its use of the Tenant’s Telecommunications Equipment and the
Connections or any work related thereto.
	 
	 	(h)	 	Except for assignees of this Lease or subtenants of all or a portion of the
Premises, no other person, firm or entity (including, without limitation, other
tenants, licensees or occupants of the Building) shall have the right to connect to the
Tenant’s Telecommunications Equipment other than Tenant.
	 
	 	(i)	 	To the maximum extent permitted by law, Tenant’s use of the Tenant’s
Telecommunications Equipment and the Connections shall be at the sole risk of Tenant,
and Landlord shall have no liability to Tenant in the event that the Tenant’s
Telecommunications Equipment and the Connections are damaged for any reason.
	 
	 	(j)	 	Tenant shall comply with all applicable laws, ordinances and regulations in
Tenant’s use of the Tenant’s Telecommunications Equipment and the Connections.
	 
	 	(k)	 	The Tenant’s Telecommunications Equipment and the Connections shall not
interfere with the maintenance, use, occupancy or operation of the Building by Landlord
or any other tenant, occupant or licensee of the Building (including, without
limitation, interference with any communications equipment, telephones, radios, CATV,
MATV, televisions, HVAC systems, elevators or computers in place as of the date Tenant
installs Tenant’s Telecommunications Equipment and Connections). In the event any such
interference is not cured by Tenant within thirty (30) days after written notice
thereof from Landlord to Tenant, Landlord shall have the right to require Tenant to
relocate or remove the Tenant’s Telecommunications Equipment causing such disturbance.
	 
	 	(l)	 	Landlord shall have the right, upon no less than ninety (90) days’ notice to
Tenant and at Landlord’s sole cost and expense, to relocate the Tenant’s
Telecommunications Equipment and the Connections to another location on the roof of the
Building reasonably acceptable to Tenant provided that such relocation does not
adversely affect Tenant’s use of Tenant’s Telecommunications Equipment and Landlord
makes temporary arrangements for Tenant’s Telecommunications Equipment to continue to
operate during such relocation. Landlord and Tenant shall cooperate with each other in
good faith to schedule such relocation work on nights and weekends so as to minimize
interference with Tenant’s business operations. Any such relocation by Landlord shall
not independently (in the absence of another cause) be deemed to constitute a service
interruption under Section 7.6(C) above.
	 
	 	(m)	 	In addition to the indemnification provisions set forth in this Lease which
shall be applicable to the Tenant’s Telecommunications Equipment and the Connections,
Tenant shall, to the maximum extent permitted by law, indemnify, defend, and hold
Landlord, its agents, contractors and employees harmless from any and all





Page 74









 











	 	 	 	claims, losses, demands, actions or causes of actions suffered by any person, firm,
corporation, or other entity arising from Tenant’s use of the Tenant’s
Telecommunications Equipment and the Connections.
	 
	 	(n)	 	Landlord shall have the right to designate or identify the Tenant’s
Telecommunications Equipment and any related components or conduits with or by a lease
or license number (or other marking) and to place such number (or marking) on or near
such Tenant’s Telecommunications Equipment.
	 
	 	(o)	 	It is expressly understood and agreed that the Tenant’s Telecommunications
Equipment shall remain the property of Tenant and that Tenant shall be required to
remove the same upon the expiration or earlier termination of this Lease and to repair
any damage caused by the installation or removal of the Tenant’s Telecommunications
Equipment.






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





ARTICLE XVII




Must Take Premises and Expansion Rights





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






     (a) “Must Take Premises” means, collectively, the spaces designated on Exhibit B-2
attached hereto and incorporated herein by reference, in accordance with the floor plans
attached hereto as Exhibit E and incorporated herein by reference. In connection with the
foregoing, it is understood and agreed that the 10,353 square feet of rentable floor area on
the third (3rd) floor of the Building currently occupied by XO Communications as
shown on Exhibit B-2 shall constitute Must Take Premises only if XO Communications elects
not to exercise its extension option as per its existing lease or if Landlord shall
otherwise obtain possession of such space prior to December 31, 2010.




     (b) “Available ROFO Space” means any office space in the Building or the Additional
Building which, from time to time during the Lease Term, becomes “available for reletting”
(as hereinafter defined). Available ROFO Space shall be deemed “available for reletting”
when Landlord reasonably determines, subject to the provisions of



Page 75









 






subsection (d) below, that the then current tenant or occupant of the Available ROFO
Space will vacate such space at the expiration or earlier termination of such tenant’s
lease; provided that in no event shall Landlord determine that any Available ROFO Space is
available for reletting (i) more than twelve (12) months prior to the expiration or earlier
termination of the existing lease of the Available ROFO Space for any Available ROFO Space
consisting of less than 40,000 square feet of rentable floor area or (ii) more than eighteen
(18) months prior to the expiration or earlier termination of the existing lease of the
Available ROFO Space for any Available ROFO Space consisting of 40,000 square feet of
rentable floor area or more.




     (c) “ROFO Premises” means any Available ROFO Space incorporated by Tenant into the
Premises pursuant to Section 17.3.




     (d) “Prior Rights” means:




	 	(i)	 	with respect to all office space on the first
(1st) floor of the Building, any rights of first offer,
first refusal, expansion, renewal, extension or other rights to lease
that encumber what would otherwise have been Available ROFO Space which
were either (1) granted prior to the date hereof or (2) solely in the
case of extension and renewal rights, granted by Landlord at any time
whether prior to or subsequent to the date hereof (i.e. regardless of
whether the existing leases for such space currently provide the
existing tenants thereunder with any such right to extend or renew);
	 
	 	(ii)	 	with respect to all office space on the second
(2nd) floor of the Building, any rights of first offer,
first refusal, expansion, renewal, extension or other rights to lease
that encumber what would otherwise have been Available ROFO Space which
rights were granted prior to the date hereof (which such Prior Rights
with respect to the office space on the second (2nd) floor
of the Building are, to the best of Landlord’s actual knowledge after
due inquiry, as set forth on Exhibit M attached hereto);
	 
	 	(iii)	 	with respect to any Available ROFO Space in
the Building offered to Tenant under Section 17.3 but not leased by
Tenant pursuant thereto, any rights of first offer, first refusal,
expansion, renewal, extension or other rights to lease that encumber
what would otherwise have been Available ROFO Space, which rights were
granted following the expiration of Tenant’s right to lease such space
without Tenant having elected so to do; and




Page 76 









 






	 	(iv)	 	with respect to all office space in the
Additional Building, any rights of first offer, first refusal,
expansion, renewal, extension or other rights to lease that encumber
what would otherwise have been Available ROFO Space which rights were
either (1) granted prior to the date hereof, or (2) solely in the case
of extension and renewal rights, granted by Landlord at any time
whether prior to or subsequent to the date hereof (i.e. regardless of
whether the existing leases for such space currently provide the
existing tenants thereunder with any such right to extend or renew), or
(3) solely in the case of NRT New England, Network Appliance and
Metavante (and their respective successors and assigns), which rights
were granted by Landlord at any time whether prior or subsequent to the
date hereof (i.e. regardless of whether the existing leases with NRT
New England, Network Appliance and Metavante currently provide such
tenant with any such right to extend, renew, expand, etc.).






     (e) “Current Term” means, as of the date in question, the Initial Lease Term or
Extension Term that is then subsisting.




	17.2	 	Must Take Premises.
	 
		 	(A) The Must Take Premises is comprised of the individual Premises Components set forth on
Exhibit B-2. Each Premises Component of the Must Take Premises shall be added to and become
part of the Premises on the date specified in Exhibit B-2 as the Commencement Date therefor
(as determined in accordance with the terms and conditions of Exhibit C). The terms and
conditions which shall apply to such Must Take Premises are as set forth in Exhibit B-2, and
otherwise as provided in this Lease.
	 
		 	(B) Notwithstanding the fact that the incorporation of the Must Take Premises shall be
self-executing, the parties hereby agree to properly execute a lease amendment reflecting
the addition of each Premises Component of the Must Take Premises to the Premises.
	 
		 	(C) If the prior occupant of any Premises Component of Must Take Premises wrongfully fails
to deliver possession of such premises at the time when its tenancy is scheduled to expire,
Landlord shall use reasonable efforts and due diligence (which shall be limited to the
commencement and prosecution of an eviction proceeding within sixty (60) days after the date
on which the hold-over commences, but shall not require the taking of any appeal) to evict
such occupant from such space. In such event, the commencement of the term of Tenant’s
occupancy and lease of such additional space shall, in the event of such holding over by
such occupant, be deferred until possession of the additional space is delivered to Tenant
in accordance with the provisions of Exhibit C attached hereto. The failure of the then
occupant of such premises to so vacate shall not constitute a default or breach by Landlord
and shall not give Tenant any right to




Page 77 









 












	 	 	terminate this Lease or to deduct from, offset against or withhold Annual Fixed Rent or
Additional Rent (or any portions thereof) (subject to the provisions of Section 1.3 of said
Exhibit C).
	 
	17.3	 	Right of First Offer.
	 
		 	(A) On the conditions (which conditions Landlord may waive by written notice to Tenant) that
both at the time that the Available ROFO Space first becomes available and as of the date
upon which the ROFO Premises which Tenant has elected to lease pursuant to this Section 17.3
would have otherwise become incorporated into the Premises: (i) there exists no Event of
Default, (ii) this Lease is still in full force and effect, and (iii) Tenant has neither
assigned this Lease nor sublet more than thirty-three percent (33%) of the Rentable Floor
Area of the Premises (excluding any assignment or subletting permitted without Landlord’s
consent under Section 12.2 hereof), prior to accepting any offer to lease Available ROFO
Space to a third party other than a third party with Prior Rights, Landlord will first offer
such Available ROFO Space to Tenant for lease pursuant to this Section 17.3.
	 
		 	(B) Landlord’s written notice to Tenant (“Landlord’s ROFO Notice”) offering Tenant any
Available ROFO Space shall specify the location and rentable area of the Available ROFO
Space, Landlord’s quotation of a proposed annual rent for the Available ROFO Space
(“Landlord’s ROFO Space Rent Quotation”), Base Amounts for Operating Expenses and Taxes,
tenant improvement allowances (if any), and all other material terms and conditions which
will apply to the Available ROFO Space, provided that the term for the Available ROFO Space
shall be co-terminous with the Initial Term or the Extension Term of this Lease, subject to
Section 17.3(C) below. Tenant must notify Landlord, within ten (10) business days of
Landlord’s ROFO Notice given pursuant to this Section 17.3(B), that (i) Tenant elects to
lease all of the Available ROFO Space, on the terms set forth in Landlord’s ROFO Notice, or
(ii) Tenant elects to lease all of the Available ROFO Space, but that Tenant disputes
Landlord’s Available ROFO Space Rent Quotation; or (iii) Tenant rejects Landlord’s offer. If
Tenant elects to lease any Available ROFO Space as aforesaid, but disputes Landlord’s ROFO
Space Rent Quotation and the parties do not agree on a mutually agreeable annual rent within
thirty (30) days after delivery of such notice from Tenant, then either party may initiate a
Broker Determination to determine the Prevailing Market Rent for the Available ROFO Space in
question, by giving notice to the other within an additional thirty (30) days after the end
of such thirty (30) day period. If Tenant has accepted Landlord’s terms for such Available
ROFO Space, or upon determination of the Prevailing Market Rent through a Broker
Determination, Landlord and Tenant shall execute an amendment to this Lease incorporating
the Available ROFO Space into the Premises upon the terms contained in Landlord’s ROFO
Notice, and otherwise on substantially the same terms and conditions as contained in this
Lease, within ten (10) days, but failure of the parties to execute such an amendment shall
have no effect on the effectiveness of the expansion of the Premises to include such
Available ROFO Space and the economic terms associated therewith, as set forth above. If
Tenant rejects Landlord’s offer as to all, or a portion of the Available ROFO Space to the
extent permissible as aforesaid, or fails to notify Landlord within said ten (10) day period
that Tenant intends to lease such Available ROFO Space, Landlord




Page 78 









 






	 	 	shall be entitled to lease any such Available ROFO Space not elected by Tenant to become
incorporated into the Premises to any third party, on such terms and conditions and for such
rent, as Landlord determines in its sole discretion, and Tenant shall thereafter have no
further rights under this Section 17.3 with respect to such Available ROFO Space; provided,
however, that if during the Lease Term any Available ROFO Space in the Building (but not in
the Additional Building) with respect to which Tenant failed or declined to exercise its
right of first offer hereunder subsequently becomes available after Landlord has leased the
same to a third party, Landlord shall again be obligated to offer to lease such Available
ROFO Premises in the Building to Tenant pursuant to the provisions of this Section 17.3 and
the terms of this Section shall continue to apply to such Available ROFO Space.
	 
		 	(C) Notwithstanding anything to the contrary provided in Section 17.3(B) above, if the
Available ROFO Space shall be available for delivery to Tenant at any time during the last
eighteen (18) months of the Initial Term, then: (a) if there is not available extension
option which can be exercised pursuant to Section 3.2, Tenant shall not be entitled to lease
the Available ROFO Space under this Section 17.3, and (b) if there is an available extension
option which can be exercised pursuant to Section 3.2, then the term for such Available ROFO
Space shall not be coterminous with the Initial Term, but shall be for a term that expires
at the expiration of the Extension Term, and in order to lease the Available ROFO Space in
accordance with Section 17.3(B) above, Tenant must elect to extend the Initial Term of the
Lease for the entire Premises in accordance with the provisions of Section 3.2, at the same
time that Tenant elects to lease the Available ROFO Space hereunder.
	 
		 	(D) If Tenant shall timely exercise its rights under this Section 17.3 with respect to the
Available ROFO Space designated in Landlord’s ROFO Notice and if, thereafter, the then
occupant of the Available ROFO Space with respect to which Tenant shall have so exercised
such right wrongfully fails to deliver possession of such premises at the time when its
tenancy is scheduled to expire, Landlord shall use reasonable efforts and due diligence
(which shall be limited to the commencement and prosecution of an eviction proceeding within
sixty (60) days after the date on which the hold-over commences, but shall not require the
taking of any appeal) to evict such occupant from such space and to recover from such
occupant any Hold-Over Premium (as defined below) payable by such occupant. In such event,
the commencement of the term of Tenant’s occupancy and lease of such additional space shall,
in the event of such holding over by such occupant, be deferred until possession of the
additional space is delivered to Tenant. The failure of the then occupant of such premises
to so vacate shall not constitute a default or breach by Landlord and shall not give Tenant
any right to terminate this Lease or to deduct from, offset against or withhold Annual Fixed
Rent or Additional Rent (or any portions thereof); provided, however, that Tenant shall have
the right to require Landlord to pay to Tenant fifty percent (50%) of the net (i.e. net of
the costs and expenses, including, attorneys’ fees, incurred by Landlord in obtaining such
Hold-Over Premium) amount of any Hold-Over Premium received by Landlord from such hold-over
occupant relative to periods from and after the thirty-first (31st) day of any
hold-over, when and if Landlord receives any such payment. For the purposes hereof, the term
“Hold-Over Premium”




Page 79









 






	 	 	shall be defined as the amount (if any) which a hold-over occupant of any portion of the
Available ROFO Space is required to pay to Landlord in respect of its hold-over in the
premises (whether characterized as rent, damages, or use and occupation) in excess of the
amount of fixed rent and other charges which the tenant under whom such occupant claims
would have been required to pay to Landlord had the term of such tenant’s lease been
extended throughout the period of such hold-over at the same rental rate as such tenant was
required to pay during the last month of its tenancy.






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





(The remainder of this page is intentionally left blank.)





Page 80











 





     EXECUTED as a sealed instrument in two or more counterparts by persons or officers hereunto
duly authorized on the Date set forth in Section 1.2 above.



	 	 	 	 	 
	 	LANDLORD:



BOSTON PROPERTIES LIMITED PARTNERSHIP

 	 
	 	By:  	Boston Properties, Inc.,
 	 
	 	 	its general partner 	 



	 	 	 	 	 
	 	 	 
	 	By:  	
/s/ David C. Provost 	 
	 	 	Name:  	David C. Provost 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	TENANT:

	 	 
	ATTEST:	 	 	 	CONSTANT CONTACT, INC.,	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Robert P. Nault 	 	 	 	By:	 	/s/ Gail F. Goodman 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Robert P. Nault 

	 	 	 	 	 	Name:
	 	Gail F. Goodman 
	 	 
	 

	 	Title:
	 	Secretary
	 	 	 	 	 	Title:
	 	 President

Hereunto duly authorized	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Steven R. Wasserman 	 
	 	 	Name:  	Steven R. Wasserman 	 
	 	 	Title:  	Treasurer 
 Hereunto duly authorized 	 
	 



Page 81





 









 








EXHIBIT A




DESCRIPTION OF SITE





     A parcel of land (the “Land”) in Waltham and Lexington, Middlesex County, Massachusetts
containing 34.372 acres and shown on that certain plan entitled “Plan of Land in Waltham and
Lexington, Middlesex Co., Mass.,” dated March 6, 1986, prepared by Land Surveys Incorporated,
recorded with the Middlesex South District Registry of Deeds (the “Registry”) in Book 17090, Page
End (the “Plan”), bounded and described as follows:



	 	 	 
	EASTERLY

	 	by the Northern Circumferential Highway (Route 128) by two lines measuring 1,067.16 feet and 127.72 feet;
	 
	 	 
	SOUTHEASTERLY 

AND SOUTHERLY

	 	by the ramp to Trapelo Road and Trapelo Road by five lines measuring 309.05 feet, 262.57 feet, 122.01 feet,
78.18 feet, and 8.38 feet;
	 
	 	 
	NORTHWESTERLY

	 	by land N/F Reservoir Place Realty Trust, 110 feet;
	 
	 	 
	SOUTHERLY

	 	by land N/F Reservoir Place Realty Trust, 96.07 feet, and by land N/F William and Louise Butler, 99 feet;
	 
	 	 
	NORTHWESTERLY

	 	by land N/F Thomas P. and Sandra H. Kehoe, 105 feet;
	 
	 	 
	SOUTHERLY

	 	62 feet,
	 
	 	 
	SOUTHEASTERLY

	 	39.27 feet and 160 feet, and
	 
	 	 
	NORTH-EASTERLY

	 	39.27 feet, all by land of N/F Thomas P, and Sandra H. Kehoe;
	 
	 	 
	SOUTHWESTERLY

	 	by Trapelo Road, 95 feet;
	 
	 	 
	NORTHWESTERLY

	 	39.27 feet and 100 feet, and
	 
	 	 
	SOUTHWESTERLY

	 	102.57 feet, all by land N/F Leonard and Evalyn Weld;
	 
	 	 
	NORTHWESTERLY

	 	275 feet, and
	 
	 	 
	SOUTHWESTERLY

	 	122.35, by land N/F Robert L. and Barbara T. Anderson;
	 
	 	 
	NORTHWESTERLY

	 	by two lines measuring 235.15 feet and 284.27 feet, by lands N/F Edward J. and Beverly J. Mirabito, Carol Lane,
N/F Charles J. Senior, Jr., N/F Donald and Shirley Gibbs, N/F Raymond R. and Bridget Picard, and N/F Henry F.
Miller;
	 
	 	 
	WESTERLY

	 	by five lines measuring 580.06 feet, 25 feet, 128.21 feet, 344.66 feet and 9.12 feet, by lands N/F Henry P,
Miller, N/F John H. and Nancy






Exhibit A




Page 1 of 2




 









 





	 	 	 
	 

	 	Russell, N/F Frederick and Anne Creamer, N/F J.S.C. Realty Trust, N/F
Santo and Catherine Lafauci, N/F Jean Yves and Annette Morin, N/F
Helen K. Hickey, Priscilla Lane, N/F Stanley C. and Louise H. Whynock,
and the City of Waltham;
	 
	 	 
	NORTHEASTERLY

	 	692.16 feet by land N/F The C-R Trust;
	 
	 	 
	EASTERLY

	 	137.39 feet by Route 128;
	 
	 	 
	SOUTHWESTERLY

	 	by two lines measuring 336.67 feet and 286.94 feet by land
N/F Tracer Lane Trust;
	 
	 	 
	EASTERLY

	 	by two lines measuring 506.14 feet and 325.94 feet, by land
N/F Tracer Lane Trust;
	 
	 	 
	NORTHERLY

	 	45 feet,
	 
	 	 
	WESTERLY

	 	27 feet, and
	 
	 	 
	NORTHERLY

	 	555.01 feet, all by land N/F Tracer Lane Trust.






     Together with the right, in common with others, to use Tracer Lane, a private way, throughout
its entire length over the Land, for access to and from Trapelo Road, a public way, and for all
other purposes for which public ways are normally used in the City of Waltham and the Town of
Lexington, as shown on the Plan.



     Together with the appurtenant right in common with others to use that portion of the Land
located within the easement granted to Boston Edison Company by a Grant of Easement dated October
2, 1946 and recorded in the Registry in Book 7098, Page 118, for all purposes allowed under an
Agreement with Boston Edison Company and Albamont Properties, Inc. dated January 31, 1975 and
recorded in the Registry in Book 12771, Page 538.



     Together with the appurtenant right and easement, in common with others, to discharge surface
water contained in an Easement Indenture among Tracerlab, Inc. et al. dated January 9, 1957 and
recorded in the Registry in Book 8892, Page 112.



     Together with the appurtenant rights and easements, in common with others, granted to the
owner of the Land in (a) an Indenture among Boston Edison Company et al. Dated September 19, 1966
and recorded in the Registry in Book 11258, Page 79, (b) a Utilities Maintenance Agreement among
LFE Inc. et al dated September 19, 1966 and recorded in the Registry in Book 11258, Page 92, and
(c) an Easement Indenture among 128 Realty Corporation et al. dated September 19, 1966 and recorded
in the Registry in Book 11258, Page 061.



     Together with the right and easement, in common with others, granted the owner of the Land in
an Agreement dated May 12,1975 and recorded in the Registry in Book 12892, Page 410.



Together with the right to terminate the Agreement between Leonard N. Weld et ux. dated April
9,1974 and recorded in the Registry in Book 12627, Page 235.



Exhibit A




Page 2 of 2





 











 





EXHIBIT B-1




SCHEDULE OF INITIAL PREMISES COMPONENTS,

COMMENCEMENT DATES AND RENT SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Base Rental Rate	 	Year	 	Year
	3

	 	27,094 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— September 30,
2010: $24.00
per RSF per
annum
	 	 	2005	 	 	 	2006	 
	 

	 	 	 	 	 	October 1, 2010 —
September 30,
2011: $30.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30,
2012: $31.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2012 —
September 30,
2013: $32.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30,
2014: $33.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30,
2015: $34.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	3

	 	4,876 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— June 30,
2009: $26.00 per
RSF per
annum
	 	 	2007	 	 	 	2008	 
	 

	 	 	 	 	 	July 1, 2009 —
September 30,
2010: $27.00 per
RSF per
annum
	 	 	2007	 	 	 	2008	 
	 

	 	 	 	 	 	October 1, 2010 —
September 30,
2011: $30.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30,
2012: $31.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 





Exhibit B-1





Page 1 of 5









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Base Rental Rate	 	Year	 	Year
	 

	 	 	 	 	 	October 1, 2012 —
September 30,
2013: $32.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30,
2014: $33.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30,
2015: $34.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	3

	 	8,400 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— July 31,
2009: $30.00 per
RSF per
annum
	 	 	2007	 	 	 	2008	 
	 

	 	 	 	 	 	August 1, 2009 —
September 30,
2010: $31.00 per
RSF per
annum
	 	 	2007	 	 	 	2008	 
	 

	 	 	 	 	 	October 1, 2010 —
September 30,
2011: $30.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30,
2012: $31.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2012 —
September 30,
2013: $32.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30,
2014: $33.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30,
2015: $34.00 per
RSF per
annum
	 	 	2010	 	 	 	2011	 
	3

	 	25,661 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— September 30,
2009: $33.50 per
RSF per
annum
	 	 	2008	 	 	 	2008	 
	 

	 	 	 	 	 	October 1, 2009 —
September 30, 2010: $34.50 per RSF per
annum
	 	 	2008	 	 	 	2008	 





Exhibit B-1





Page 2 of 5









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Base Rental Rate	 	Year	 	Year
	 

	 	 	 	 	 	October 1, 2010 —
September 30, 2011: $30.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30, 2012: $31.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2012 —
September 30, 2013: $32.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30, 2014: $33.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30, 2015: $34.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	3

	 	2,591 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— September 30, 2009: $28.00 per RSF per
annum
	 	 	2008	 	 	 	2008	 
	 

	 	 	 	 	 	October 1, 2009 —
September 30, 2010: $29.00 per RSF per
annum
	 	 	2008	 	 	 	2008	 
	 

	 	 	 	 	 	October 1, 2010 —
September 30, 2011: $30.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30, 2012: $31.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2012 —
September 30, 2013: $32.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30, 2014: $33.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30, 2015: $34.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 






Exhibit B-1




Page 3 of 5









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Base Rental Rate	 	Year	 	Year
	3

	 	4,422 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— September 30, 2010: $28.00 per RSF per
annum
	 	 	2008	 	 	 	2009	 
	 

	 	 	 	 	 	October 1, 2010 —
September 30, 2011: $30.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30, 2012: $31.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2012 —
September 30, 2013: $32.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30, 2014: $33.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30, 2015: $34.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	3

	 	10,335 RSF
	 	Lease Execution Date
	 	Lease Execution Date
— September 30, 2010: $28.00 per RSF per
annum
	 	 	2008	 	 	 	2009	 
	 

	 	 	 	 	 	October 1, 2010 —
September 30, 2011: $30.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2011 —
September 30, 2012: $31.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2012 —
September 30, 2013: $32.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2013 —
September 30, 2014: $33.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	October 1, 2014 —
September 30, 2015: $34.00 per RSF per
annum
	 	 	2010	 	 	 	2011	 





Exhibit B-1





Page 4 of 5









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Base Rental Rate	 	Year	 	Year
	3

	 	2,204 RSF
	 	Lease Execution Date
	 	Lease Execution Date —
the day immediately
preceding the Rent
Commencement Date for
such Premises
Component as
determined pursuant to
Exhibit C: $0.00 per RSF per annum
	 	 	2010	 	 	 	2011	 
	 

	 	 	 	 	 	Rent Commencement Date
— September 30,
2015: $32.50 per annum
	 	 	2010	 	 	 	2011	 







Exhibit B-1




Page 5 of 5









 








EXHIBIT B-2




SCHEDULE OF MUST TAKE PREMISES COMPONENTS,

ANTICIPATED AVAILABILITY AND COMMENCEMENT DATES AND RENT SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	Anticipated	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Availability	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Date	 	Base Rental Rate	 	Year	 	Year
	3

	 	11,731 RSF
	 	April 1, 2009
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 
	2

	 	5,566 RSF
	 	April 1, 2009
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 
	3

	 	7,750 RSF
	 	November 1, 2009
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 
	3

	 	10,353 RSF
	 	July 1, 2010
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 
	3

	 	1,055 RSF
	 	August 1, 2010
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 





Exhibit B-2





Page 1 of 2









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Base	 	 
	 	 	 	 	 	 	 	 	 	 	Operating	 	Base
	 	 	Floor	 	Anticipated	 	 	 	 	 	Expense	 	Tax
	 	 	Square	 	Availability	 	Commencement	 	 	 	Calendar	 	Fiscal
	Floor	 	Footage	 	Date	 	Date	 	Base Rental Rate	 	Year	 	Year
	3

	 	5,780 RSF
	 	August 1, 2010
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 
	2

	 	10,609 RSF
	 	January 1, 2012
	 	As determined
pursuant to Exhibit
C.
	 	Commencement Date
— September 30,
2015: $32.50 per
RSF per annum
	 	 	2010	 	 	 	2011	 





Exhibit B-2






Page 2 of 2











 





EXHIBIT C




LANDLORD’S WORK





	1.1	 	Landlord’s Work






	 	(A)	 	Introduction






It is intended that this Exhibit C set forth the methodology for the performance by Landlord
of certain work to prepare each individual Premises Component of Must Take Premises for
Tenant’s occupancy and certain additional work in the Initial Premises (collectively, the
“Landlord’s Work”). In connection with the foregoing, it is understood and agreed that the
Landlord’s Work for each Premises Component of Must Take Premises and for the Initial
Premises shall all be treated as separate projects and that the obligations of both Landlord
and Tenant under this Exhibit C shall apply separately to each such portion of the
Landlord’s Work, subject to and in accordance with the terms and provisions set forth below.




In addition, it is further understood and agreed that the time periods set forth in this
Section 1.1 and in Sections 1.2 and 1.3 below are premised on the assumption that the work
to be shown in the Tenant Plans (as that term is defined below) shall consist of leasehold
improvements of a nature and scope consistent with the current build-out of the Initial
Premises or with that customarily found in typical Class A office space in the Central
Suburban 128 Market.




	 	(B)	 	Plans






	 	(1)	 	Tenant Plans. On or before that date which is sixty (60)
days prior to the Anticipated Availability Date set forth on Exhibit B-2
attached hereto with respect to each individual Premises Component of Must Take
Premises (such date being hereinafter referred to as the “Tenant Plans Date”),
Tenant shall deliver to Landlord a full set of construction plans and
specifications for the Landlord’s Work for such individual Premises Component,
such plans and specifications to be (i) prepared by an architect licensed by the
Commonwealth of Massachusetts and reasonably approved by Landlord (Landlord
hereby approving Visnick & Caulfield) and (ii) in suitable form for filing with
an application for a building permit with the City of Waltham. Such plans and
specifications (the “Tenant Plans”) shall contain at least the information
required by, and shall conform to the requirements of, Exhibit C-1. Landlord
shall not unreasonably withhold, delay or condition its consent to the Tenant
Plans provided that the same contain at least the information required by, and
shall conform to the requirements of, Exhibit C-1; provided further, however,
that notwithstanding the requirement that Landlord act reasonably, Landlord’s
determination of matters relating to aesthetic issues relating to alterations or
changes visible outside the Premises shall be in Landlord’s sole discretion.





Exhibit C




Page 1 of 15









 









	 	 	 	In connection with the foregoing, it is understood and agreed that Landlord
intends to file for a building permit no less than thirty (30) days prior to
the Anticipated Availability Date for each individual Premises Component of
Must Take Premises based on the Tenant Plans to be submitted by Tenant on or
before the Tenant Plans Date in order to commence and complete construction
of the Landlord’s Work on or before the Estimated Commencement Date for such
Premises Component as determined pursuant to Section 1.1(B)(3) of this
Exhibit C, and any delay caused by the need to amend the application for a
building permit as the result of modification to the Tenant Plans after the
Tenant Plans Date shall be deemed to be a Tenant Delay (as that term is
defined in subsection (C) below) for the purposes of this Exhibit C.
	 
	 	(2)	 	Development of Tenant Plans and Pricing and Delivery
Date. It is Tenant’s goal to obtain Landlord’s approval of the Tenant Plans
by or shortly after the Tenant Plans Date. To that end, Tenant anticipates
submitting to Landlord for review and approval prior to the Tenant Plans Date
various early iterations of floor plans, schematic plans and specifications to
solicit Landlord’s input as to the plans themselves as well as pricing and
construction schedule. Landlord shall not unreasonably withhold, condition or
delay its approval of Tenant’s submissions provided that the same depict
leasehold improvements of a nature and scope consistent with the current
build-out of the Initial Premises or with that customarily found in typical
Class A office space in the Central Suburban 128 Market; provided, however, that
notwithstanding the requirement that Landlord act reasonably, Landlord’s
determination of matters relating to aesthetic issues relating to alterations or
changes visible outside the Premises shall be in Landlord’s sole discretion.
During this period, Landlord shall also assist Tenant in developing pricing
information relating to Tenant’s proposed improvements and estimating the
construction period for the proposed improvements, including identifying any
long lead-time items.
	 
	 	(3)	 	Landlord’s Review. Landlord agrees to respond to the
Tenant Plans and all earlier iterations thereof submitted under Section
1.1(B)(2) above within eight (8) business days after receipt thereof. If
Landlord disapproves any of the foregoing, it shall do so in writing and with
reasonable detail and then Tenant shall have the plans revised by its architect
to incorporate all reasonable objections and conditions presented by Landlord
and resubmitted to Landlord. Such process shall be followed until the Tenant
Plans shall have been approved by Landlord. Landlord shall respond to the
resubmission of any plans by Tenant within three (3) business days of Landlord’s
receipt thereof (or such longer time as may be reasonably necessary in the case
of a major redesign).
	 
	 	 	 	In connection with its review and approval of the Tenant Plans, Landlord
shall within its eight (8) business day review period reasonably estimate a
proposed date by which it expects to achieve “Substantial Completion” (as
hereinafter defined) of the proposed improvements, and such estimated date
shall constitute the “Estimated Commencement Date” for the Premises Component





Exhibit C




Page 2 of 15









 






	 	 	 	at issue. Landlord shall provide a reasonably detailed construction schedule
with its notification to Tenant of the Estimated Commencement Date, and at
such time shall also identify and notify Tenant of any items contained in the
Tenant Plans which Landlord then reasonably believes will constitute long
lead items. Landlord will give to Tenant Landlord’s best, good faith estimate
of the period(s) of any delay which would be caused by a long-lead item. On
or before the Authorization to Proceed Date (as that term is defined in
Section 1.1(C)(2) below), Tenant shall have the right to either (a) revise
the Tenant Plans to eliminate any such long-lead item or (b) authorize
Landlord to construct the Landlord’s Work in accordance with the approved
Tenant Plans including any such long-lead items (any such approved long-lead
items being hereinafter called “Tenant Approved Long Lead Items”). Tenant
acknowledges that certain Tenant Approved Long Lead Items may still delay
completion of the Landlord’s Work and thus result in a Tenant Delay even if
Tenant does authorize them on or before the Authorization to Proceed Date.
	 
	 	 	 	Landlord’s failure to respond to any Tenant Plans meeting the requirements of
this Section 1.1(B) within the applicable time periods set forth herein shall
be deemed to constitute Landlord’s approval thereof. To the extent that
Landlord has previously approved a particular element shown in an earlier
iteration of the Tenant Plans (or such element has been deemed approved by
virtue of Landlord’s failure to respond to such Tenant Plans within the
applicable time period), Landlord shall not have the right to disapprove such
element in any subsequent plans, provided that (i) such element has not been
modified, (ii) such element was approved without objection or condition by
Landlord in the earlier iteration of the plans, and (iii) in the case of
plans that had been deemed approved, the element was shown in sufficient
detail in the earlier iteration of the plans that Landlord could reasonably
have responded to the same at the time.
	 
	 	(4)	 	General Matters. In connection with the foregoing, it is
understood and agreed that Landlord’s approval under this Section 1.1(B) is
given solely for the benefit of Landlord, and neither Tenant nor any third party
shall have the right to rely upon Landlord’s approval of the Tenant Plans for
any other purpose whatsoever. Without limiting the foregoing, Tenant shall be
responsible for all elements of the design of the Tenant Plans (including,
without limitation, compliance with law, functionality of design, the structural
integrity of the design, the configuration of the Premises and the placement of
Tenant’s furniture, appliances and equipment), and Landlord’s approval of the
Tenant Plans shall in no event relieve Tenant of the responsibility for such
design. Landlord shall have no obligation to perform the Landlord’s Work until
the Tenant Plans shall have been presented to it and approved by it. In
addition, Tenant shall, on or before the Authorization to Proceed Date (as
hereinafter defined), execute and deliver to Landlord any affidavits and
documentation provided to Tenant by Tenant’s architect and/or engineers
preparing the Tenant Plans and/or by Landlord, and required in order to obtain
all permits and approvals necessary for Landlord to commence and complete the
Landlord’s Work on a timely basis (“Permit Documentation”).





Exhibit C




Page 3 of 15









 












	 	(C)	 	Construction Process






	 	(1)	 	Pricing.
	 
	 	 	 	Within thirty (30) days after its approval of the Tenant Plans, Landlord
shall furnish to Tenant a written estimate of all costs of the component of
the Landlord’s Work shown on such Tenant Plans, based on the pricing
information that Landlord has gathered to date as part of the bid process
described below. In connection with the foregoing, it is understood and
agreed that Landlord and Tenant shall consult and jointly make the
determination, each acting reasonably and in good faith, as to whether to bid
the component of the Landlord’s Work at issue as a Guaranteed Maximum Price
“GMP” contract or a lump-sum contract based on the level of completion of the
Tenant Plans (i.e. if such Tenant Plans are sufficiently detailed so that the
project can be bid out at the subcontractor level).
	 
	 	 	 	Landlord shall have the right to select the general contractor who will
perform each component of the Landlord’s Work, subject to Tenant’s approval
(not to be unreasonably withheld, conditioned or delayed). Landlord shall
solicit bids from at least four (4) qualified general contractors licensed by
the Commonwealth of Massachusetts as may be deemed appropriate by Landlord
and Tenant, both acting reasonably and in good faith, with Landlord proposing
at least three (3) of the general contractors and Tenant proposing one (1).
When bids are solicited, upon the receipt of bids, Landlord shall prepare a
bid format which compares each bid, and shall deliver such bid format,
together with copies of the bids themselves to Tenant (together with
Landlord’s designation of the bid Landlord intends to accept).
	 
	 	 	 	Notwithstanding the foregoing requirement that Tenant have the right to
approve the general contractor selected by Landlord to perform the Landlord’s
Work, Tenant may not object to the selection of any general contractor who
will be able to complete the Landlord’s Work for any Premises Component on or
before the Estimated Commencement Date for such Premises Component and whose
bid for the Landlord’s Work does not exceed the lowest bid received by more
than ten percent (10%). In the event that Tenant does not approve of a
general contractor selected by Landlord who can complete the Landlord’s Work
for any Premises Component on or before the Estimated Commencement Date for
such Premises Component but whose bid exceeds the lowest received bid by more
than ten percent (10%), any delay in the completion of the Landlord’s Work
for such Premises Component resulting from such failure to approve Landlord’s
selected general contractor shall be deemed a Tenant Delay hereunder.
	 
	 	(2)	 	Authorization to Proceed Date.
	 
	 	 	 	Tenant shall, on or before that date which is thirty (30) days prior to the
Anticipated Availability Date for each individual Premises Component (each





Exhibit C




Page 4 of 15









 






	 	 	 	such date being hereinafter referred to as an “Authorization to Proceed
Date”), give Landlord written authorization to proceed with Landlord’s Work
in accordance with the approved Tenant Plans for such Premises Component and
the bid from the general contractor selected pursuant to the provisions of
sub-section (C)(1) above (“Notice to Proceed”).
	 
	 	(3)	 	Change Orders.
	 
	 	 	 	Tenant shall have the right, in accordance herewith, to submit for Landlord’s
approval change proposals subsequent to Landlord’s approval of the Tenant
Plans and Tenant’s approval of the Tenant Plan Excess Costs, if any (each, a
“Change Proposal”). Landlord agrees to respond to any such Change Proposal
within ten (10) days after the submission thereof by Tenant, advising Tenant
of any anticipated increase in costs (“Change Order Costs”) associated with
such Change Proposal, as well as an estimate of any delay which would likely
result in the completion of the Landlord’s Work if a Change Proposal is made
pursuant thereto (“Landlord’s Change Order Response”). With respect to Change
Proposals for which a response cannot reasonably be developed within ten (10)
days, Landlord shall within the ten-day response period advise Tenant of the
steps necessary in order for Landlord to evaluate the Change Order Proposal
and the date upon which Landlord’s Change Order Response will be delivered.
Tenant shall have the right within five (5) days after receiving Landlord’s
Change Order Response (or Landlord’s notice that a Change Proposal could not
be evaluated within the ten-day response period set forth above) to then
approve or withdraw such Change Proposal. If Tenant fails to respond to
Landlord’s Change Order Response within such five (5) day period, such Change
Proposal shall be deemed withdrawn. If Tenant approves such Change Proposal,
then such Change Proposal shall be deemed a “Change Order” hereunder and if
the Change Order is made, then the Change Order Costs associated with the
Change Order shall be deemed additions to the Tenant Plan Excess Costs and
shall be paid in the same manner as Tenant Plan Excess Costs are paid as set
forth in Section 1.5.
	 
	 	(4)	 	Response to Requests for Information and Approvals.
	 
	 	 	 	Except to the extent that another time period is expressly herein set forth,
each of Landlord and Tenant shall respond to any written request from the
other for approvals or information in connection with Landlord’s Work, within
three (3) business days of the responding party’s receipt of such request.
	 
	 	(5)	 	Time of the Essence.
	 
	 	 	 	Time is of the essence in connection with Landlord’s and Tenant’s obligations
under this Section 1.1.






	 	(D)	 	Tenant Delay






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





Exhibit C




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	 	(a)	 	Tenant’s failure to deliver the
Tenant Plans to Landlord and to provide all required Permit
Documentation to Landlord on or before the Tenant Plans Date, or
(except to the extent caused by a Landlord Delay, as hereinafter
defined) to give authorization to Landlord to proceed with the
Tenant Improvement Work on or before the Authorization to Proceed
Date; or
	 
	 	(b)	 	Tenant’s failure timely to respond
to any written request from Landlord within the time period
specified therefor under this Exhibit C;
	 
	 	(c)	 	Tenant’s failure to pay the Tenant
Plan Excess Costs in accordance with Section 1.5;
	 
	 	(d)	 	Any delay due to Tenant Approved
Long Lead Items;
	 
	 	(e)	 	Any delay due to Change Orders; or
	 
	 	(f)	 	Except to the extent caused by a
Landlord Delay, any other delays caused by Tenant, Tenant’s
contractors, architects, engineers or anyone else engaged by
Tenant in connection with the preparation of the Premises for
Tenant’s occupancy, including, without limitation, utility
companies and other entities furnishing communications, data
processing or other service, equipment, or furniture.






	 	 	 	In order to invoke a Tenant Delay, Landlord must advise Tenant in writing of
the alleged Tenant Delay within two (2) business days after Landlord becomes
aware thereof.
	 
	 	(2)	 	Tenant Obligations with Respect to Tenant Delays.






	 	(a)	 	Tenant covenants that no Tenant Delay shall delay
commencement of the Term or the obligation to pay Annual Fixed Rent or
Additional Rent, regardless of the reason for such Tenant Delay or
whether or not it is within the control of Tenant or any such employee.
Landlord’s Work shall be deemed substantially completed as of the date
when Landlord’s Work would have been substantially completed but for any
Tenant Delays, as determined by Landlord in the exercise of its good
faith business judgment.
	 
	 	(b)	 	Tenant shall reimburse Landlord the amount, if
any, by which the cost of Landlord’s Work is increased as the result of
any Tenant Delay.
	 
	 	(c)	 	Any amounts due from Tenant to Landlord under
this Section 1.1(D)(2) shall be due and payable within thirty (30) days
of billing





Exhibit C




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	 	 	 	therefor, and shall be considered to be Additional Rent. Nothing
contained in this Section 1.1(D)(2) shall limit or qualify or
prejudice any other covenants, agreements, terms, provisions and
conditions contained in this Lease.






	 	(E)	 	Landlord Delay






A “Landlord Delay” shall mean Landlord’s failure timely to respond to any written request
from Tenant within the time period specified therefor under this Exhibit C. In order to
invoke a Landlord Delay, Tenant must advise Landlord in writing of the alleged Landlord
Delay within two (2) business days after Tenant becomes aware thereof.




	 	(F)	 	Construction Management Fee






Landlord shall charge a construction management fee (the “Construction Management Fee”) for
its management of the Landlord’s Work in an amount equal to four percent (4%) of the hard
construction costs (but not design or other soft costs) of each separate component of the
Landlord’s Work. The Construction Management Fee for any component of the Landlord’s Work
shall be deducted from the Landlord’s Contribution as set forth in Section 1.5(D) below
and/or paid by Tenant as part of Tenant Plan Excess Costs as set forth in Section 1.5(E)
below.




	 	(G)	 	Applicability to Initial Premises






It is understood and agreed that the time periods set forth in this Section 1.1 shall be
inapplicable to the Landlord’s Work being performed in the Initial Premises (other than for
the purposes of determining the Rent Commencement Date under Section 1.2(G) below for the
2,204 square feet of space located on the third (3rd) floor of the Building
listed on Exhibit B-1 as the last Premises Component of the Initial Premises); provided,
however, that the same processes shall otherwise be followed in terms of the submission,
approval and pricing of Tenant Plans, long-lead items, Change Proposals, etc.




	1.2	 	Substantial Completion
	 
	 	 	(A) Subject to any prevention, delay or stoppage due to Landlord’s Force Majeure (as
hereinafter defined) or attributable to any Tenant Delays, Landlord shall use reasonable
speed and diligence in the construction of the Landlord’s Work for each Premises Component
of the Must Take Premises so as to have the same Substantially Completed (as hereinafter
defined) on or before the Estimated Commencement Date for such Premises Component as
determined pursuant to Section 1.1(B)(3) of this Exhibit C, but Tenant shall have no claim
against Landlord for failure to complete construction of the Landlord’s Work except as
expressly set forth in Section 1.3 below.
	 
	 	 	(B) The “Actual Substantial Completion Date” shall be defined as the date on which the
Landlord’s Work for each Premises Component has been Substantially Completed. “Substantial
Completion” and “Substantially Completed” shall each mean the date on which the Landlord’s
Work for each Premises Component has been completed except for so-called “punch-list” items
of work and adjustment of equipment and fixtures the incompleteness of





Exhibit C




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	 	 	which do not cause material interference with Tenant’s use of the Premises Component for the
Permitted Uses. After Substantial Completion, Landlord shall proceed diligently to complete
all “punch-list” items within thirty (30) days after the occurrence of Substantial
Completion (except for long-lead items or items which can only be performed during certain
seasons or weather, which items shall be completed diligently as soon as the season and/or
weather permits).
	 
	 	 	(C) Except as set forth in Section 1.2(G) below, the Commencement Date for each individual
Premises Component of Must Take Premises shall be defined as the earlier of (x) the
Substantial Completion Date (as hereinafter defined) and (y) the date on which Tenant
commences occupancy of any portion of such Premises Component for the Permitted Use. The
“Substantial Completion Date” shall be defined as the later to occur of (i) Actual
Substantial Completion Date or (ii) the date when permission has been obtained from the
applicable governmental authority (which such permission may be evidenced by the
signature(s) of the appropriate municipal official(s) on the building permit for the
Landlord’s Work) to the extent required by law, for occupancy by Tenant of the Premises
Component for the Permitted Uses. Notwithstanding the foregoing, in the event that Landlord
is delayed in the performance of Landlord’s Work or cannot obtain permission from the
applicable governmental authority for the occupancy of the Premises by reason of any Tenant
Delay, then the Substantial Completion Date shall be deemed to be the date that Landlord
would have achieved the Actual Substantial Completion Date or obtained such governmental
permission, but for such Tenant Delay. Tenant agrees that no Tenant Delay shall delay
commencement of the Term or the obligation to pay rent, regardless of the reason for such
delay or whether or not it is within the control of Tenant or any such employee. Nothing
contained in this paragraph shall limit or qualify or prejudice any other covenants,
agreements, terms, provisions and conditions contained in this Lease.
	 
	 	 	(D) When used in this Lease “Landlord’s Force Majeure” shall mean any prevention, delay or
stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war,
terrorist acts, civil commotions, unusual scarcity of or inability to obtain labor or
materials (to the extent that such scarcity or inability is the result of conditions not
prevalent in the market, and otherwise unforeseen, as of the date of this Lease), labor
difficulties, casualty or other causes reasonably beyond Landlord’s control; provided,
however, that in no event shall the financial inability of Landlord or Landlord’s general
contractor constitute a cause beyond Landlord’s reasonable control. In order to invoke the
Landlord’s Force Majeure provision of this Exhibit C, Landlord must advise Tenant in writing
of the alleged Landlord’s Force Majeure within three (3) business days after Landlord
becomes aware thereof. Landlord shall use commercially reasonable efforts to mitigate the
impact of Landlord’s Force Majeure on the performance of Landlord’s Work and Tenant’s use of
the Premises (including the Premises Component at issue), to the extent it is within
Landlord’s reasonable ability to do so given the nature of the event giving rise to the
Landlord’s Force Majeure.
	 
	 	 	(E) Landlord shall permit Tenant access for installing Tenant’s trade fixtures in portions
of each Premises Component prior to Substantial Completion (but in no event prior to the
Anticipated Availability Date for a given Premises Component) when it can be done without
material interference with remaining work and with the maintenance of harmonious labor
relations. Any such access by Tenant shall be upon all of the terms and conditions of the
Lease (other than the payment of Annual Fixed Rent, the Tax Excess, the Operating Cost





Exhibit C



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	 	 	Excess and payments on account of electricity under Section 5.2 of the Lease with respect to
the Premises Component at issue) and shall be at Tenant’s sole risk, and Landlord shall not
be responsible for any injury to persons or damage to property resulting from such early
access by Tenant.
	 
	 	 	(F) If, prior to the date that the Premises Component at issue is in fact actually
Substantially Complete, such Premises Component is deemed to be Substantially Complete
pursuant to the provisions of this Section 1.2 (i.e. and the Commencement Date has therefore
occurred), Tenant shall not (except with Landlord’s consent) be entitled to take possession
of the Premises Component for the Permitted Uses until the Premises Component is in fact
actually Substantially Complete.
	 
	 	 	(G) Notwithstanding anything contained in this Exhibit C to the contrary, it is understood
and agreed that the Commencement Date for the 11,731 square feet of rentable floor area on
the third (3rd) floor of the Building and the 5,566 square feet of rentable floor
area on the second (2nd) floor of the Building listed on Exhibit B-2 as the first
two individual Premises Components of the Must Take Premises shall be the earlier to occur
of (x) the applicable Substantial Completion Date for such Premises Components and (y)
September 1, 2009 (irrespective of the status of completion of the Landlord’s Work therein
as of such September 1, 2009 date).
	 
	 	 	In addition, notwithstanding anything contained in this Exhibit C to the contrary, it is
further understood and agreed that the Rent Commencement Date for the 2,204 square feet of
rentable floor area on the third (3rd) floor of the Building listed on Exhibit
B-1 as the last individual Premises Component of the Initial Premises shall be the earlier
to occur of (x) the Substantial Completion Date for such Premises Component and (y)
September 1, 2009 (irrespective of the status of completion of the Landlord’s Work therein
as of such September 1, 2009 date).
	 
	 	 	(H) The provisions of this Section 1.2 shall be inapplicable to the portion of the
Landlord’s Work being performed in the Initial Premises (Landlord nonetheless confirming its
obligation to proceed with reasonable speed and diligence in the construction of such work).
Tenant acknowledges that the Landlord’s Work in the Initial Premises will be performed while
Tenant is in occupancy thereof and accordingly that there may be some interference with
Tenant’s use and occupancy thereof while such Landlord’s Work is being performed, Landlord
and Tenant agree to cooperate with each other in good faith so that Landlord may proceed
with the Landlord’s Work in the Initial Premises in as efficient and expeditious a manner as
possible and so as to minimize any material interference with Tenant’s conduct of business
in the Initial Premises, consistent with the nature of the work being performed.
	 
	1.3	 	Tenant’s Remedies Based on Delays in Landlord’s Work
	 
	 	 	If the Substantial Completion Date for any Premises Component of Must Take Premises shall
not have occurred by that date (the “First Interim Completion Date”) which is thirty (30)
days from the Estimated Commencement Date for such Premises Component as determined pursuant
to Section 1.1 (B)(3) of this Exhibit C (which date shall be extended automatically for such
periods of time as Landlord is prevented in delivering the same by reason of





Exhibit C



Page 9 of 15









 






	 	 	Landlord’s Force Majeure or any Tenant Delay, without limiting Landlord’s other rights on
account thereof), then the Annual Fixed Rent and payments on account of the Tax Excess and
the Operating Cost Excess for such Premises Component shall be abated, from and after the
applicable Commencement Date, by one (1) day for each one (1) day beyond the First Interim
Completion Date that the Substantial Completion Date for such Premises Component is delayed.
	 
	 	 	If the Substantial Completion Date for any Premises Component of Must Take Premises shall
not have occurred by that date (the “Second Interim Completion Date”) which is ninety (90)
days from the Estimated Commencement Date for such Premises Component as determined pursuant
to Section 1.1(B)(3) of this Exhibit C (which date shall be extended automatically for such
periods of time as Landlord is prevented in delivering the same by reason of Landlord’s
Force Majeure or any Tenant Delay, without limiting Landlord’s other rights on account
thereof), then the Annual Fixed Rent and payments on account of the Tax Excess and the
Operating Cost Excess for such Premises Component shall be abated, from and after the
applicable Commencement Date, for two (2) days for each one (1) day beyond the Second
Interim Completion Date that the Substantial Completion Date for such Premises Component is
delayed.
	 
	 	 	In addition, if the Substantial Completion Date for any Premises Component of Must Take
Premises shall not have occurred by that date (the “Outside Completion Date”) which is one
hundred eighty (180) days from the Estimated Commencement Date for such Premises Component
as determined pursuant to Section 1.1(B)(3) of this Exhibit C (which date shall be extended
automatically for such periods of time as Landlord is prevented in delivering the same by
reason of Landlord’s Force Majeure or any Tenant Delay, without limiting Landlord’s other
rights on account thereof), then Tenant shall have the right to terminate this Lease solely
with respect to the Premises Component at issue effective as of the thirtieth
(30th) day after receipt by Landlord of a notice from Tenant given on or after
the Outside Completion Date (as so extended) indicating Tenant’s desire to so terminate; and
upon the giving of such notice, the Term of the Lease solely with respect to such Premises
Component shall cease and come to an end without further liability or obligation on the part
of either party as of the expiration of the aforesaid thirty (30) business day period,
unless the Substantial Completion Date shall in fact have occurred on or before such
expiration date.
	 
	 	 	The foregoing rent abatements and right of termination shall be Tenant’s sole and exclusive
remedies at law or in equity or otherwise for the failure of the Substantial Completion Date
to have occurred within the time periods set forth above.
	 
	 	 	Notwithstanding the foregoing, it is understood and agreed that the provisions of this
Section 1.3 shall be inapplicable to the Landlord’s Work being performed in the first two
Premises Components of Must Take Premises listed on Exhibit B-2 (the 11,731 square feet of
rentable floor area located on the third (3rd) floor and the 5,566 square feet of
rentable floor area located on the second (2nd) floor) or to the Landlord’s Work
being performed in the Initial Premises.
	 
	1.4	 	Quality and Performance of Work
	 
	 	 	(A) All construction work required or permitted by the Lease shall be done in a good and





Exhibit C



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	 	 	workmanlike manner and in compliance with all applicable laws, ordinances, rules,
regulations, statutes, by-laws, court decisions, and orders and requirements of all public
authorities (“Legal Requirements”) and all Insurance Requirements (as defined in Section 9.1
of the Lease). Any work performed by or on behalf of Tenant under the Lease shall be
coordinated with any work being performed by or on behalf of Landlord and in such manner as
to maintain harmonious labor relations.
	 
	 	 	(B) Each party authorizes the other to rely in connection with design and construction upon
the written approval or other written authorizations on the party’s behalf by any
Construction Representative of the party named in Section 1.2 of the Lease or any person
hereafter designated in substitution or addition by notice to the party relying. Each party
may inspect the work of the other at reasonable times and shall promptly give notice of
observed defects. Tenant acknowledges that Tenant is acting for its own benefit and account
and that Tenant will not be acting as Landlord’s agent in performing any work that may be
undertaken by or on behalf of Tenant under this Lease, and accordingly, no contractor,
subcontractor or supplier of Tenant shall have a right to lien Landlord’s interest in the
Property in connection with any such work.
	 
	 	 	(C) Landlord warrants to Tenant that: (i) the materials and equipment furnished in the
performance of the Landlord’s Work will be of good quality; (ii) the Landlord’s Work will be
free from defects not inherent in the quality described in the applicable plans and
specifications therefor; and (iii) the Landlord’s Work and all components thereof shall be
in good working order and condition, consistent with those of Class A office buildings in
the Central Suburban 128 Market. Any portion of the Landlord’s Work not conforming to the
foregoing requirements will be considered defective. Landlord’s warranty hereunder shall not
apply to the extent of damage or defect caused by (1) the negligent acts or omissions or the
willful misconduct of Tenant, its employees, agents, contractors, sublessees or permitted
occupants under Article XII of the Lease (hereinafter, the “Tenant Parties”), (2) improper
operation by any of the Tenant Parties, or (3) normal wear and tear and normal usage.
	 
	 	 	The foregoing warranty with respect to each component of the Landlord’s Work shall commence
on the date on which Landlord has Substantially Completed the Landlord’s Work with respect
to the individual Premises Component at issue and shall expire on the date which is fifty
(50) weeks after the commencement of the warranty on the Landlord’s Work for such Premises
Component (the “Warranty Period”), and Tenant shall be required to deliver notice to
Landlord of any defects prior to the expiration of the applicable Warranty Period in order
to permit Landlord to take action to enforce Landlord’s warranty rights with respect to the
Landlord’s Work. Landlord agrees that it shall correct any portion of the Landlord’s Work
which during the applicable Warranty Period is found not to be in accordance with the
warranties set forth in this subsection (C). Landlord shall use commercially reasonable
efforts to enforce warranties from its general contractors, subcontractors, vendors and
others on Tenant’s behalf.
	 
	 	 	(D) Except for latent defects which could not reasonably have been discovered during the
applicable Warranty Period despite the exercise of due diligence and except to the extent to
which Tenant shall have given Landlord notice of respects in which Landlord has not
performed Landlord’s construction obligations under this Exhibit C within the applicable
Warranty Period, Tenant shall be deemed conclusively to have approved Landlord’s





Exhibit C



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	 	 	construction and shall have no claim that Landlord has failed to perform any of Landlord’s
obligations under this Exhibit C.
	 
	1.5	 	Landlord’s Contribution; Tenant Plan Excess Costs 
	 
	 	 	(A) As an inducement to Tenant’s entering into the Lease, Landlord shall provide to Tenant
an allowance in an amount equal to the product of (i) $12.50 and (ii) the Rentable Floor
Area of the Initial Premises (the “Initial Premises Allowance”) to be used and applied by
Landlord towards the cost of the Landlord’s Work in the Initial Premises. For the purposes
hereof, the cost of the Landlord’s Work in the Initial Premises shall include the cost of
leasehold improvements (including, without limitation, the costs of demolishing the common
corridor system of the third (3rd) floor of the Building, should Tenant elect as
such), architectural and engineering fees and tel/data cabling installation (provided,
however, that the amount of the Initial Premises Allowance that may be applied towards the
reimbursement of architectural and engineering fees and tel/data cabling installation shall
be capped at an amount equal to the product of (x) $5.00 and (y) the Rentable Floor Area of
the Initial Premises).
	 
	 	 	Notwithstanding anything contained herein to the contrary, it is understood and agreed that
the 2,204 square feet of rentable floor area currently occupied by Tenant under the License
Agreement (the “Licensed Premises”) shall not be deemed to be a part of the Rentable Floor
Area of the Initial Premises for the purposes of this Section 1.5, but instead shall be
deemed to be part of the Must Take Premises for such purposes.
	 
	 	 	(B) In addition, as a further inducement to Tenant’s entering into the Lease, Landlord shall
provide to Tenant an allowance in an amount equal to the product of (i) $26.50 and (ii) the
rentable floor area of the individual Premises Components that comprise the Must Take
Premises (the “Must Take Premises Allowance”) to be used and applied by Landlord towards the
cost of the Landlord’s Work in the Must Take Premises. For the purposes hereof, the cost of
the Landlord’s Work in the Must Take Premises shall include the cost of leasehold
improvements, architectural and engineering fees and tel/data cabling installation
(provided, however, that the amount of the Must Take Premises Allowance that may be applied
towards the reimbursement of architectural and engineering fees and tel/data cabling
installation shall be capped at an amount equal to the product of (x) $5.00 and (y) the
rentable floor area of the individual Premises Components that comprise the Must Take
Premises), but shall not include the costs of demolishing the data center (including any
raised floor and plumbing, if required by the applicable Tenant Plans) in the 10,353 square
feet of rentable floor area currently occupied by XO Communications on the third
(3rd) floor of the Building, which such costs shall be borne solely by Landlord.
	 
	 	 	(C) The Initial Premises Allowance and the Must Take Premises Allowance (hereinafter
collectively referred to as the “Landlord’s Contribution”) may be pooled so that Tenant may
utilize the Initial Premises Allowance towards the cost of the Landlord’s Work in the Must
Take Premises and/or may utilize the Must Take Premises Allowance towards the cost of the
Landlord’s Work in the Initial Premises; provided, however, that the limits set forth in
subsections (A) and (B) above regarding the amount of the Initial Premises Allowance and the
Must Take Premises Allowance that can be applied towards the reimbursement of architectural
and engineering fees and tel/data cabling installation may not be pooled and
shall continue to apply independently to the Initial Premises and the Must Take Premises.





Exhibit C



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	 	 	Notwithstanding the foregoing, an amount of the Landlord’s Contribution equal to the product
of (x) $11.40 and (y) the rentable floor area of each individual Premises Component of Must
Take Premises (which such amount shall be exclusive of the $5.00 per square foot of rentable
floor area of the Premises Component that may be utilized towards the architectural and
engineering fees and tel/data cabling installation as set forth in subsection (B) above)
shall be reserved solely for use in each such individual Premises Component of Must Take
Premises and may not be utilized in other Premises Components even if Tenant does not fully
utilize it in the individual Premises Component at issue; provided, however, that no such
amount shall be required to be reserved for use in the Licensed Premises. Such amount shall
hereinafter be referred to as the “Reserved Allowance.”
	 
	 	 	Subject to the provisions of this subsection (C) and to the provisions of the penultimate
sentence of subsection (D) below, in the event that Tenant does not utilize the portion of
the Landlord’s Contribution allocable to the Initial Premises or any individual Premises
Component of Must Take Premises at such time as the Landlord’s Work is initially performed
in such portion of the Premises, Tenant may nonetheless utilize any remaining portions of
the Landlord’s Contribution to subsequent items of Landlord’s Work performed in such portion
of the Premises.
	 
	 	 	(D) Landlord shall be under no obligation to apply any portion of the Landlord’s
Contribution for any purposes other than as provided in this Section 1.5. In addition, in
the event that (i) Tenant has received notice from Landlord that it is in default of its
obligations under this Lease and such default remains uncured or (ii) there are any liens
which are not bonded to the reasonable satisfaction of Landlord against Tenant’s interest in
the Lease or against the Building or the Site arising out of any work performed by Tenant
(it being acknowledged and agreed for these purposes that the Landlord’s Work being
performed by Landlord shall not be considered “work performed by Tenant”) or any litigation
in which Tenant is a party, then, from and after the date of such event (“Event”), Landlord
shall have no further obligation to fund any portion of the Landlord’s Contribution and
Tenant shall be obligated to pay, as Additional Rent, all costs of the Landlord’s Work in
excess of that portion of the Landlord’s Contribution funded by Landlord through the date of
the Event, subject to reimbursement by Landlord after the condition giving rise to the Event
has been cured or otherwise rectified to Landlord’s reasonable satisfaction. Further, the
Landlord’s Contribution shall only be applied towards the cost of leasehold improvements
and, subject to the limitations set forth in subsections (A) and (B) above, architectural
and engineering fees and tel/data cabling installation. In no event shall Landlord be
required to make application of any portion of the Landlord’s Contribution towards Tenant’s
personal property, trade fixtures, trade equipment, furniture/furniture fronts or moving
expenses or on account of any supervisory fees, overhead, management fees or other payments
to Tenant, or any partner or affiliate of Tenant. In the event that the costs of the
Landlord’s Work are less than the Landlord’s Contribution, Tenant shall not be entitled to
any payment or credit nor shall there be any application of the same toward Annual Fixed
Rent or Additional Rent owed by Tenant under the Lease. Tenant acknowledges that any portion
of the Landlord’s Contribution which has not been utilized on or before July 1, 2013 shall
be forfeited by Tenant. Landlord shall be entitled to deduct the Construction Management Fee
referenced in Section 1.1(E) above from the Landlord’s Contribution.






Exhibit C



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	 	 	(E) Subject to the provisions of subsection (C) above regarding the Reserved Allowance, if
and at such time as the costs of the Landlord’s Work exceed the Landlord’s Contribution,
such excess costs shall hereinafter be defined as “Tenant Plan Excess Costs” and shall be
payable Tenant as set forth in this Section 1.5(E). By way of example, if the Landlord’s
Work has been performed in the Initial Premises and three Premises Components of Must Take
Premises and the entirety of the Landlord’s Contribution (less the Reserved Allowance
applicable to the remaining Premises Components of Must Take Premises) has been utilized in
connection therewith, then all costs of the Landlord’s Work in excess of the remaining
Reserved Allowance shall be considered to be Tenant Plan Excess Costs.
	 
	 	 	To the extent, if any, that there are Tenant Plan Excess Costs, Tenant shall pay Landlord,
as Additional Rent, within ten (10) business days after billing therefor, from time to time
during the performance of the applicable component of the Landlord’s Work, in the proportion
that Tenant Plan Excess Costs for such component of the Landlord’s Work bears to the overall
cost of such component (including, without limitation, architectural and engineering fees
and tel/data cabling installation costs); provided however, that if the Tenant Plan Excess
Costs are the result of a Change Order, then Tenant shall pay all such Tenant Plan Excess
Costs to Landlord, as Additional Rent, at the time that Tenant approves such Change Order in
accordance with Section 1.1(C)(3) above.
	 
	 	 	(F) With respect to architectural and engineering fees and tel/data cabling installation
costs, Tenant may from time to time request disbursements of the Landlord’s Contribution to
pay such costs (or reimburse Tenant for having paid such costs), up to the maximum amounts
set forth in subsections (A) and (B) above, including with its request for payment a summary
of the costs incurred and reasonable supporting documentation with respect thereto (which in
the case of any payment for which Tenant seeks reimbursement shall include, without
limitation, paid invoices, receipts and the like evidencing such payment, as well as lien
waivers in recordable form reasonably acceptable to Landlord from all persons who might have
a lien as a result of such work). Provided that the conditions to disbursement of the
Landlord’s Contribution as set forth in this Section 1.5 have otherwise been satisfied,
Landlord shall disburse the requested funds to Tenant within thirty (30) days after Tenant’s
request therefor.
	 
	 	 	If Tenant has satisfied the conditions to disbursement of the Landlord’s Contribution and
Landlord fails to disburse the requested funds to Tenant within thirty (30) days of Tenant’s
request therefor, and Landlord has not, within ten (10) business days of its receipt of
Tenant’s demand, given written notice to Tenant objecting to such demand and submitting the
same to arbitration under Section 1.6 below (or if Landlord has timely disputed Tenant’s
demand, has submitted such dispute to arbitration in accordance with said Section 1.6 and
has thereafter failed to pay Tenant the amount of any final, unappealable arbitration award
against Landlord within thirty (30) days after the issuance thereof) then subject to the
last sentence of this paragraph, Tenant shall have the right to offset the amount of such
sums demanded by Tenant against the Annual Fixed Rent and Additional Rent payable under the
Lease until offset in full. Notwithstanding the foregoing, Tenant shall have no right to
reduce any monthly installment of Annual Fixed Rent by more than fifteen percent (15%) of
the amount of Annual Fixed Rent which would otherwise have been due and payable by Tenant to
Landlord, unless the aggregate amount of such deductions over the remainder of the Lease





Exhibit C



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	 	 	Term (as the same may have been extended) will be insufficient to fully reimburse Tenant for
the amount demanded by Tenant, in which event Tenant may effect such offset by making
deductions from each monthly installment of Annual Fixed Rent in equal monthly amounts over
the balance of the remainder of the Lease Term.
	 
	1.6	 	Fast Track Arbitration 
	 
	 	 	Any controversy, dispute or claim arising under this Exhibit C shall be settled by
arbitration in Boston, Massachusetts in accordance with the Expedited Arbitration Rules of
the American Arbitration Association as then in effect (unless the parties mutually agree
otherwise). The decision rendered by the arbitrator or arbitrators shall be final and
conclusive upon Landlord and Tenant. To avail itself of the dispute resolution procedures of
this Section 1.6, the party demanding arbitration shall file a written notice of such demand
with the other party and with the American Arbitration Association. In connection with
resolution of disputes submitted to arbitration hereunder, Landlord and Tenant hereby
irrevocably waive any and all rights they may have to resolve such dispute in a manner that
is inconsistent with the provisions of this Section 1.6. The costs and administration
expenses of each arbitration hereunder shall be borne equally by the parties, and each party
shall be responsible for its own attorneys’ fees and expert witnesses’ fees.
	 
	 	 	In connection with the foregoing, it is expressly understood and agreed that the parties
shall continue to perform their respective obligations under the Lease and this Exhibit C
during the pendency of any arbitration proceeding hereunder (with any adjustments or
reallocations to be made on account of such continued performance as determined by the
arbitrator in his or her award).






Exhibit C




Page 15 of 15








 





EXHIBIT C-1




TENANT PLAN AND WORKING DRAWING REQUIREMENTS





	1.	 	Floor plan indicating location of partitions and doors (details required of partition and
door types).
	 
	2.	 	Location of standard electrical convenience outlets and telephone outlets.
	 
	3.	 	Location and details of special electrical outlets, including voltage, amperage, phase and
NEMA configuration of outlets.
	 
	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 heat load in BTU/Hr. of all special air conditioning and ventilating
requirements and all necessary HVAC mechanical drawings.
	 
	7.	 	Location and details of special structural requirements, e.g., slab penetrations and areas
with floor loadings exceeding a live load of 70 lbs./s.f.
	 
	8.	 	Locations and details of all plumbing fixtures; sinks, drinking fountains, etc.
	 
	9.	 	Location and specifications of floor coverings, e.g., vinyl tile, carpet, ceramic tile, etc.
	 
	10.	 	Finish schedule plan indicating wall covering, paint or paneling with paint colors referenced
to standard color system.
	 
	11.	 	Details and specifications of special millwork, glass partitions, rolling doors and grilles,
blackboards, shelves, etc.
	 
	12.	 	Hardware schedule indicating door number keyed to plan, size, hardware required including
butts, latchsets or locksets, closures, stops, and any special items such as thresholds,
soundproofing, etc. Keying schedule is required.
	 
	13.	 	Verified dimensions of all built-in equipment (file cabinets, lockers, plan files, etc.).
	 
	14.	 	Location of any special soundproofing requirements.
	 
	15.	 	MEP/FP drawings by an engineer licensed by the Commonwealth of Massachusetts.
	 
	16.	 	All drawings to be uniform size (30” X 42”) and shall incorporate the standard project
electrical and plumbing symbols and be at a scale of 1/8” = 1’ or larger.
	 
	17.	 	Drawing submittal shall include the appropriate quantity required for Landlord to file for





Exhibit C-1




Page 1 of 2




 









 






	 	 	permit along with four half size sets and one full size set for Landlord’s review and use.
	 
	18.	 	Provide all other information necessary to obtain all permits and approvals for Landlord’s
Work.
	 
	19.	 	Upon completion of the work, Tenant shall provide Landlord with two hard copies and one
electronic CAD file of updated architectural and mechanical drawings to reflect all project
sketches and changes.
	 
	20.	 	All requirements of this Exhibit C-1 are applicable only for areas where renovation or
reconfiguration is intended.





Exhibit C-1




Page 2 of 2




 









 





EXHIBIT D




LANDLORD’S SERVICES





	I.	 	CLEANING






Cleaning and janitorial services shall be provided as set forth below.




	 	A.	 	OFFICE AREAS






Daily: (Monday through Friday, inclusive, holidays excepted)




	 	1.	 	Empty all waste receptacles and remove waste
materials from the Premises; wash receptacles as necessary.
	 
	 	2.	 	Sweep and dust mop all uncarpeted areas using a
dust-treated mop.
	 
	 	3.	 	Vacuum all rugs and carpeted areas.
	 
	 	4.	 	Hand dust and wipe clean with treated cloths all
exposed horizontal surfaces, including furniture, office equipment,
windowsills, door ledges, chair rails and convector tops, within normal
reach (tenant equipment to remain in place).
	 
	 	5.	 	Wash clean all water fountains and sanitize.
	 
	 	6.	 	Wipe clean all chrome and other bright work.
	 
	 	7.	 	Hand dust grill work within normal reach.
	 
	 	8.	 	Main doors to Premises shall be locked and lights
shut off upon completion of cleaning (assuming Premises is otherwise
vacant).






Weekly:




	 	1.	 	Dust coat racks and the like.
	 
	 	2.	 	Spot clean entrance doors, light switches and
doorways.






Quarterly:




	 	1.	 	Render high dusting not reached in daily cleaning
to include:






	 	(a)	 	Dusting of all pictures, frames, charts,
graphs and similar wall hangings.
	 
	 	(b)	 	Dusting of all vertical surfaces, such as
walls, partitions, doors and door frames.





Exhibit D




Page 1 of 4




 









 






	 	(c)	 	Dusting of all vertical blinds.
	 
	 	(d)	 	Dusting of all ventilating, air
conditioning, louvers and grills.






	 	2.	 	Spray buff all resilient floors.






	 	B.	 	LAVATORIES






Daily: (Monday through Friday, inclusive, holidays excepted)




	 	1.	 	Sweep and damp mop.
	 
	 	2.	 	Clean all mirrors, powder shelves, dispensers and
receptacles, bright work, flushometers, piping and toilet seat hinges.
	 
	 	3.	 	Wash both sides of all toilet seats.
	 
	 	4.	 	Wash all basins, bowls and urinals.
	 
	 	5.	 	Dust and clean all powder room fixtures.
	 
	 	6.	 	Empty and clean paper towel and sanitary disposal
receptacles.
	 
	 	7.	 	Remove waste paper and refuse.
	 
	 	8.	 	Refill tissue holders, soap dispensers, towel
dispenser, sanitary dispensers; materials to be furnished by Landlord.






Monthly:




	 	1.	 	Machine scrub lavatory floors.
	 
	 	2.	 	Wash all partitions and tile walls in lavatories.
	 
	 	3.	 	Dust all lighting fixtures and grills in
lavatories.






	 	C.	 	MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS






Daily: (Monday through Friday, inclusive, holidays excepted)




	 	1.	 	Sweep and damp mop all floors, empty and clean
waste receptacles, dispose of waste.
	 
	 	2.	 	Clean elevators, wash or vacuum floors, wipe down
walls and doors.
	 
	 	3.	 	Spot clean any metal work inside lobbies.





Exhibit D




Page 2 of 4




 









 






	 	4.	 	Spot clean any metal work surrounding building
entrance doors.
	 
	 	5.	 	Sweep all stairwells and dust handrails.






Monthly:




	 	1.	 	All resilient tile floors in public areas to be
spray buffed.






	 	D.	 	WINDOW CLEANING
	 
	 	 	 	All exterior windows shall be washed on the inside and outside surfaces at a
frequency necessary to maintain a first class appearance and, in any event,
no less than one (1) time per year for inside surfaces and two (2) times a
year for outside surfaces.






	II.	 	HVAC






	 	A.	 	Heating, ventilating and air conditioning equipment will be
provided with sufficient capacity to accommodate a maximum population density of
one (1) person per one hundred fifty (150) square feet of useable floor area
served, and a combined lighting and standard electrical load of 4.5 watts per
square foot of useable floor area. In the event Tenant introduces into the
Premises personnel or equipment which overloads the system’s ability to
adequately perform its proper functions, Landlord shall so notify Tenant in
writing and supplementary system(s) may be required and installed by Landlord at
Tenant’s expense, if within fifteen (15) days Tenant has not modified its use so
as not to cause such overload.
	 
	 	 	 	Operating criteria of the basic system shall not be less than the following:






	 	(i)	 	Cooling season indoor temperatures
of not in excess of 73-78 degrees Fahrenheit when outdoor
temperatures are 91 degrees Fahrenheit ambient.
	 
	 	(ii)	 	Heating season minimum room
temperature of 68-75 degrees Fahrenheit when outdoor
temperatures are 6 degrees Fahrenheit ambient.






	 	B.	 	Landlord shall provide heating, ventilating and air conditioning
as normal seasonal changes may require during the hours of 8:00 a.m. to 6:00
p.m. Monday through Friday (legal holidays in all cases excepted).
	 
	 	 	 	If Tenant shall require air conditioning (during the air conditioning season)
or heating or ventilating during any other time period, Landlord shall use
Landlord’s best efforts to furnish such services for the area or areas
specified by written request of Tenant delivered to the Building
Superintendent or the





Exhibit D




Page 3 of 4




 









 






	 	 	 	Landlord before 3:00 p.m. of the business day preceding the extra usage.
Landlord shall charge Tenant for such extra-hours usage at rates to be
calculated in accordance with Exhibit D-1 attached hereto, and Tenant shall
pay Landlord, as Additional Rent, upon receipt of billing therefor.






	III.	 	ELECTRICAL SERVICES






	 	A.	 	Landlord shall provide electric power for a combined load of 4.5
watts per square foot of useable area for lighting and for office machines
through standard receptacles for the typical office space.
	 
	 	B.	 	In the event that Tenant has special equipment (such as computers
and reproduction equipment) that requires either 3-phase electric power or any
voltage other than 120 volts, or for any other usage in excess of 4.5 watts per
square foot, Landlord may at its option require the installation of separate
check metering (Tenant being solely responsible for the costs of any such check
meter and the installation thereof) and direct billing to Tenant for the
electric power required for any such special equipment.
	 
	 	C.	 	Landlord will furnish and install, at Tenant’s expense, all
replacement lighting tubes, lamps and ballasts required by Tenant. Landlord will
clean lighting fixtures on a regularly scheduled basis at Tenant’s expense.






	IV.	 	ELEVATORS
	 
	 	 	Provide passenger elevator service twenty-four (24) hours per day, seven (7) days per week,
fifty-two (52) weeks per year during the Lease Term (subject to events of Landlord’s Force
Majeure and to Landlord’s right to periodically shut down elevators for repairs and
maintenance; it being understood and agreed in connection with the foregoing that elevator
service will be disrupted in the event of power outages at the Building).
	 
	V.	 	WATER
	 
	 	 	Provide hot water for lavatory purposes and cold water for drinking, lavatory and toilet
purposes.
	 
	VI.	 	CARD ACCESS SYSTEM
	 
	 	 	Landlord will provide a card access system at one entry door of the building.





Exhibit D




Page 4 of 4




 









 





EXHIBIT D-1




HVAC OVERTIME CHARGES




[Intentionally Omitted]




Exhibit D-1




Page 1 of 1




 









 





EXHIBIT E




FLOOR PLANS




[Intentionally Omitted]




Exhibit E




Page 1 of 1




 









 





EXHIBIT F




[Intentionally Omitted]




Exhibit F




Page 1 of 1





 











 





EXHIBIT G




FORM OF COMMENCEMENT DATE AGREEMENT




DECLARATION AFFIXING THE COMMENCEMENT DATE

WITH RESPECT TO A PREMISES COMPONENT



THIS AGREEMENT made this       day of                      200   , by and between the BOSTON PROPERTIES LIMITED
PARTNERSHIP (hereinafter “Landlord”) and CONSTANT CONTACT, INC. (hereinafter “Tenant”).




WITNESSETH THAT:





	1.	 	This Agreement is made pursuant to Section       of that certain Lease dated                     , between the
parties aforenamed as Landlord and Tenant (the “Lease”).
	 
	2.	 	It is hereby stipulated that the Premises Component comprised of                      is incorporated
into the Premises commencing on                     , and that the Term with respect thereto shall end
and expire on the scheduled expiration date under the Lease, unless sooner terminated or
extended, as provided for in the Lease.





     WITNESS the execution hereof under seal by persons hereunto duly authorized, the date first
above written.



	 	 	 	 	 
	 	LANDLORD:



BOSTON PROPERTIES LIMITED PARTNERSHIP



By: Boston Properties, Inc.,

       its general partner

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	CONSTANT CONTACT, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	Secretary or Assistant Secretary
	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	Hereunto duly authorized	 	 






Exhibit G





Page 1 of 2










 





COMMONWEALTH OF MASSACHUSETTS




COUNTY OF MIDDLESEX



On this ___ day of                     , 200___, before me, the undersigned notary public, personally
appeared                                         , proved to me through satisfactory evidence of
identification, which were                                         , to be the person whose name is signed on the
preceding or attached document in my presence.




	 	 	 	 	 
	 	 	 
	
 	 	 
	NOTARY PUBLIC 	 	 
	My Commission Expires: 	 	 
	 



COMMONWEALTH OF MASSACHUSETTS




COUNTY OF MIDDLESEX





On this ___ day of                     , 200___, before me, the undersigned notary public, personally
appeared                                           , proved to me through satisfactory evidence of
identification, which were                                           , to be the person whose name is signed on the
preceding or attached document, and who swore or affirmed to me that the contents of the documents
are truthful and accurate to the best of [his] [her] knowledge and belief.



	 	 	 	 	 
	 	 	 
	
 	 	 
	NOTARY PUBLIC 	 	 
	My Commission Expires: 	 	 
	 



Exhibit G

Page 2 of 2





 









 








EXHIBIT H




BROKER DETERMINATION OF PREVAILING MARKET RENT





     Where in the Lease to which this Exhibit is attached provision is made for a Broker
Determination of Prevailing Market Rent, the following procedures and requirements shall apply:




	1.	 	Tenant’s Request. Tenant shall send a notice to Landlord by the time set for such
notice in the applicable section of the Lease, requesting a Broker Determination of the
Prevailing Market Rent, which notice to be effective must (i) make explicit reference to the
Lease and to the specific section of the Lease pursuant to which said request is being made,
(ii) include the name of a broker selected by Tenant to act for Tenant, which broker shall be
affiliated with a major commercial real estate brokerage firm selected by Tenant and which
broker shall have at least ten (10) years experience dealing in properties of a nature and
type generally similar to the Building located in the Central Suburban 128 Market, and (iii)
explicitly state that Landlord is required to notify Tenant within thirty (30) days of an
additional broker selected by Landlord.
	 
	2.	 	Landlord’s Response. Within thirty (30) days after Landlord’s receipt of Tenant’s
notice requesting the Broker Determination and stating the name of the broker selected by
Tenant, Landlord shall give written notice to Tenant of Landlord’s selection of a broker
having at least the affiliation and experience referred to above.
	 
	3.	 	Selection of Third Broker. Within ten (10) days thereafter the two (2) brokers so
selected shall select a third such broker (the “Third Broker”) also having at least the
affiliation and experience referred to above, provided, as a further qualification, that the
Third Broker shall not be an individual who is then under contract to represent either
Landlord or Tenant.
	 
	4.	 	Rental Value Determination. Within thirty (30) days after the selection of the Third
Broker, the three (3) brokers so selected, by majority opinion, shall make a determination of
the annual fair market rental value of the Premises for the period referred to in the Lease.
Such annual fair market rental value determination (i) shall require rent to commence upon the
commencement of the period in question, and may include provision for annual increases in rent
during said term if so determined, (ii) shall take into account the as-is condition of the
Premises and the amount, if any, that Landlord will be making available to Tenant as a
leasehold improvements allowance, as specified in Landlord’s rent quotation as set forth in
the Lease, (iii) shall take account of, and be expressed in relation to, the applicable tax
and operating cost bases expressly set forth in the Lease and provisions for paying for
so-called tenant electricity as contained in the Lease and (iv) shall take into account all
relevant factors as determined by the brokers. The brokers shall advise Landlord and Tenant in
writing by the expiration of said thirty (30) day period of the annual fair market rental
value which as so determined shall be referred to as the Prevailing Market Rent.
	 
	5.	 	Resolution of Broker Deadlock. If the Brokers are unable by the expiration of such
thirty (30) day period to agree at least by majority on a determination of annual fair market
rental value, then the brokers designated by Landlord and Tenant shall submit their individual
determinations of fair market rental value to the Third Broker within five (5) days after the






Exhibit H

Page 1 of 2



 









 





	 	 	expiration of such thirty (30) day period and the Third Broker shall select from these two
individual determinations the one closest to the Third Broker’s own individual determination
of fair market rental value, and the determination so selected shall constitute and be
referred to as the Prevailing Market Rent.






	6.	 	Costs. Each party shall pay the costs and expenses of the broker selected by it and
each shall pay one half (1/2) of the costs and expenses of the Third Broker.
	 
	7.	 	Failure to Select Broker or Failure of Broker to Serve. If Tenant shall have
requested a Broker Determination and Landlord shall not have designated a broker within the
time period provided therefor above, then Tenant’s Broker shall alone make the determination
of Prevailing Market Rent in writing to Landlord and Tenant within thirty (30) days after the
expiration of Landlord’s right to designate a broker hereunder. If Tenant and Landlord have
both designated brokers but the two brokers so designated do not, within a period of fifteen
(15) days after the appointment of the second broker, agree upon and designate the Third
Broker willing so to act, the Tenant, the Landlord or either broker previously designated may
request the Boston Bar Association (or such organization as may succeed to the Boston Bar
Association) to designate the Third Broker willing so to act and a broker so appointed shall,
for all purposes, have the same standing and powers as though he had been seasonably appointed
by the brokers first appointed. In case of the inability or refusal to serve of any person
designated as a broker, or in case any broker for any reason ceases to be such, a broker to
fill such vacancy shall be appointed by the Tenant, the Landlord, the brokers first appointed
or the Boston Bar Association as the case may be, whichever made the original appointment, or
if the person who made the original appointment fails to fill such vacancy, upon application
of any broker who continues to act or by the Landlord or Tenant such vacancy may be filled by
the Boston Bar Association and any broker so appointed to fill such vacancy shall have the
same standing and powers as though originally appointed.





Exhibit H

Page 2 of 2





 











 





EXHIBIT I




FORM OF LETTER OF CREDIT




	 	 	 	 	 
	BENEFICIARY:

	 	 
	 	ISSUANCE DATE:
	 
	 	 	 	 
	 

	 	 	 	                     200     
	 
	 	 	 	 
	 


	 	 
	 	IRREVOCABLE STANDBY
	 


	 	 
	 	LETTER OF CREDIT NO.           
	 


	 	 	 	 
	 


	 	 	 	 
	 
	 	 	 	 
	APPLICANT:

	 	 	 	MAXIMUM/AGGREGATE
	 

	 	 	 	CREDIT AMOUNT: US$                    
	 

	 	 	 	      USD:                                         
	 


	 	 	 	 





LADIES AND GENTLEMEN:




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



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



     Draft(s) must indicate name and issuing bank and credit number and must be presented at this
office.



     You shall have the right to make partial draws against this Letter of Credit, from time to
time.



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



Exhibit I




Page 1 of 2









 








     This Letter of Credit is transferable at any time and from time to time without cost to
Beneficiary. JP Morgan Chase Bank only is authorized to act as the Transferring Bank. We shall not
recognize any transfer of this Letter of Credit until this original Letter of Credit together with
any amendments and a signed and completed transfer form, attached hereto, is received by us. The
correctness of the signature and title of the person signing the transfer forms must be verified by
Beneficiary’s bank. In case of any transfer of this Letter of Credit, the draft and any required
statement must be executed by the Transferee. This Letter of Credit may not be transferred to any
person with which U.S. persons are prohibited from doing business under U.S. Foreign assets control
regulations or other applicable U.S. Laws and Regulations.



     Our customary and reasonable charges to transfer this Letter of Credit shall be for the
Applicant’s account.



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



     This Letter of Credit shall be governed by, and construed in accordance with the laws of the
state of New York, without regard to principles of conflict of laws.



Exhibit I




Page 2 of 2









 








EXHIBIT J




FORM OF NOTICE OF LEASE




NOTICE OF LEASE




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



	 	 	 
	LANDLORD:

	 	Boston Properties Limited Partnership, a Delaware limited partnership
	 
	 	 
	TENANT:

	 	Constant Contact, Inc., a Delaware corporation
	 
	 	 
	LEASE
EXECUTION
DATE:

	 	May        , 2009
	 
	 	 
	PREMISES AND
EXPANSION
PREMISES:

	 	The Initial Premises consists of a portion of the third (3rd) floor of the Building, comprising 85,583
rentable square feet, in accordance with the floor plans annexed to the Lease as Exhibit E and incorporated
therein by reference, as further defined and limited in Section 2.1 of the Lease. The Must Take Premises consists
of portions of the second (2nd) and third (3rd) floors of the Building, comprising an
additional 52,844 rentable square feet, in accordance with the floor plans annexed to the Lease as Exhibit E and
incorporated therein by reference, as further defined and limited in Section 17.2 of the Lease. The Building is
commonly known as Reservoir Place Main, is numbered 1601 Trapelo Road and is situated on that certain parcel of
land located in Waltham, Middlesex County, Massachusetts, being more particularly described in Exhibit A attached
hereto (the “Site”).
	 
	 	 
	TERM:

	 	Commencing as of the date hereof, and, unless extended or sooner terminated pursuant to the provisions of the
Lease, ending on September 30, 2015.
	 
	 	 
	TENANT’S
EXTENSION
OPTIONS:

	 	Tenant has the right to extend the term of the Lease for one (1) period of five (5) years, as provided in and on
the terms set forth in Section 3.2 of the Lease.
	 
	 	 
	TENANT’S
RIGHT OF
FIRST OFFER:

	 	As more particularly described in, and subject to the terms of, the Lease, prior to accepting any offer to lease
Available ROFO Space to a third party other than a third party with Prior Rights, Landlord will first offer such
available ROFO Space to Tenant. Available ROFO Space consists of any office space on the first (1st)
or second (2nd) floors of the Building, or on any floor of the





Exhibit J



Page 1 of 8









 






	 	 	 
	 

	 	Additional Building, which, from time to time during the Lease Term, becomes
“available for reletting”, as further defined in the Lease. The Additional
Building is commonly known as Reservoir Place South and is located on the
Site.






     This Notice of Lease has been executed merely to give notice of the Lease, and all of the
terms, conditions and covenants thereof which are incorporated herein by reference. The parties do
not intend this Notice of Lease to modify or amend the terms, conditions and covenants of the
Lease.



[Signature Page Follows.]




Exhibit J




Page 2 of 8









 





     EXECUTED UNDER SEAL as of the date first above-written.



	 	 	 	 	 
	 	BORROWER:



BOSTON PROPERTIES LIMITED PARTNERSHIP

 	 
	 	By:  	            Boston Properties, Inc., 
its general partner
 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TENANT:



CONSTANT CONTACT, INC.,

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	President or Vice President

Hereunto duly authorized 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	Treasurer or Assistant Treasurer

Hereunto duly authorized 	 
	 



Exhibit J





Page 3 of 8











 





COMMONWEALTH OF MASSACHUSETTS



                    , ss.




     On this                 day of                     , 2009, before me, the undersigned notary public, personally
appeared                                         , proved to me through satisfactory evidence of identification,
which was                                         , to be the person whose name is signed on the preceding or attached
document, and acknowledged to me that he/she signed it voluntarily for its stated purpose, as
                                         of Constant Contact, Inc..



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	[Seal] 	 
	 



COMMONWEALTH OF MASSACHUSETTS



                    , ss.





     On this                 day of                     , 2009, before me, the undersigned notary public, personally
appeared                                         , proved to me through satisfactory evidence of identification,
which was                                         , to be the person whose name is signed on the preceding or attached
document, and acknowledged to me that he/she signed it voluntarily for its stated purpose, as
                                         of Constant Contact, Inc..



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	[Seal] 	 
	 



Exhibit J

Page 4 of 8




 









 








COMMONWEALTH OF MASSACHUSETTS



                                        , ss.





     On this                      day of                                         , 2009,
before me, the undersigned notary public, personally
appeared                                         , proved to me through satisfactory evidence of identification,
which was                                         , to be the person whose name is signed on the preceding or attached
document, and acknowledged to me that he/she signed it voluntarily for its stated purpose, as
                                         of Boston Properties, Inc., the general partner of Boston Properties Limited
Partnership.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Notary Public 	 
	 	[Seal] 	 
	 



Exhibit J

Page 5 of 8




 









 








EXHIBIT A TO NOTICE OF LEASE




LEGAL DESCRIPTION





     A parcel of land (the “Land”) in Waltham and Lexington, Middlesex County, Massachusetts
containing 34.372 acres and shown on that certain plan entitled “Plan of Land in Waltham and
Lexington, Middlesex Co., Mass.,” dated March 6, 1986, prepared by Land Surveys Incorporated,
recorded with the Middlesex South District Registry of Deeds (the “Registry”) in Book 17090, Page
End (the “Plan”), bounded and described as follows:



	 	 	 
	EASTERLY

	 	by the Northern Circumferential Highway (Route 128) by two lines measuring 1,067.16 feet and 127.72 feet;
	 
	 	 
	SOUTHEASTERLY 

AND SOUTHERLY

	 	by the ramp to Trapelo Road and Trapelo Road by five lines measuring 309.05 feet, 262.57 feet, 122.01 feet,
78.18 feet, and 8.38 feet;
	 
	 	 
	NORTHWESTERLY

	 	by land N/F Reservoir Place Realty Trust, 110 feet;
	 
	 	 
	SOUTHERLY

	 	by land N/F Reservoir Place Realty Trust, 96.07 feet, and by land N/F William and Louise Butler, 99 feet;
	 
	 	 
	NORTHWESTERLY

	 	by land N/F Thomas P. and Sandra H. Kehoe, 105 feet;
	 
	 	 
	SOUTHERLY

	 	62 feet,
	 
	 	 
	SOUTHEASTERLY

	 	39.27 feet and 160 feet, and
	 
	 	 
	NORTH-EASTERLY

	 	39.27 feet, all by land of N/F Thomas P, and Sandra H. Kehoe;
	 
	 	 
	SOUTHWESTERLY

	 	by Trapelo Road, 95 feet;
	 
	 	 
	NORTHWESTERLY

	 	39.27 feet and 100 feet, and
	 
	 	 
	SOUTHWESTERLY

	 	102.57 feet, all by land N/F Leonard and Evalyn Weld;
	 
	 	 
	NORTHWESTERLY

	 	275 feet, and
	 
	 	 
	SOUTHWESTERLY

	 	122.35, by land N/F Robert L. and Barbara T. Anderson;
	 
	 	 
	NORTHWESTERLY

	 	by two lines measuring 235.15 feet and 284.27 feet, by lands N/F Edward J. and
Beverly J. Mirabito, Carol Lane, N/F Charles J. Senior, Jr., N/F Donald and Shirley Gibbs, N/F
Raymond R. and Bridget Picard, and N/F Henry F. Miller;






Exhibit J

Page 6 of 8




 









 








	 	 	 
	WESTERLY

	 	by five lines measuring 580.06 feet, 25 feet, 128.21 feet,
344.66 feet and 9.12 feet, by lands N/F Henry P, Miller, N/F
John H. and Nancy Russell, N/F Frederick and Anne Creamer,
N/F J.S.C. Realty Trust, N/F Santo and Catherine Lafauci,
N/F Jean Yves and Annette Morin, N/F Helen K. Hickey,
Priscilla Lane, N/F Stanley C. and Louise H. Whynock, and
the City of Waltham;
	 
	 	 
	NORTHEASTERLY

	 	692.16 feet by land N/F The C-R Trust;
	 
	 	 
	EASTERLY

	 	137.39 feet by Route 128;
	 
	 	 
	SOUTHWESTERLY

	 	by two lines measuring 336.67 feet and 286.94 feet by land
N/F Tracer Lane Trust;
	 
	 	 
	EASTERLY

	 	by two lines measuring 506.14 feet and 325.94 feet, by land
N/F Tracer Lane Trust;
	 
	 	 
	NORTHERLY

	 	45 feet,
	 
	 	 
	WESTERLY

	 	27 feet, and
	 
	 	 
	NORTHERLY

	 	555.01 feet, all by land N/F Tracer Lane Trust.






     Together with the right, in common with others, to use Tracer Lane, a private way, throughout
its entire length over the Land, for access to and from Trapelo Road, a public way, and for all
other purposes for which public ways are normally used in the City of Waltham and the Town of
Lexington, as shown on the Plan.



     Together with the appurtenant right in common with others to use that portion of the Land
located within the easement granted to Boston Edison Company by a Grant of Easement dated October
2, 1946 and recorded in the Registry in Book 7098, Page 118, for all purposes allowed under an
Agreement with Boston Edison Company and Albamont Properties, Inc. dated January 31, 1975 and
recorded in the Registry in Book 12771, Page 538.



     Together with the appurtenant right and easement, in common with others, to discharge surface
water contained in an Easement Indenture among Tracerlab, Inc. et al. dated January 9, 1957 and
recorded in the Registry in Book 8892, Page 112.



     Together with the appurtenant rights and easements, in common with others, granted to the owner of
the Land in (a) an Indenture among Boston Edison Company et al. Dated September 19, 1966 and
recorded in the Registry in Book 11258, Page 79, (b) a Utilities Maintenance Agreement among LFE
Inc. et al dated September 19, 1966 and recorded in the Registry in Book 11258, Page 92, and (c) an
Easement Indenture among 128 Realty Corporation et al. dated September 19, 1966 and recorded in the
Registry in Book 11258, Page 061.



     Together with the right and easement, in common with others, granted the owner of the Land in
an Agreement dated May 12,1975 and recorded in the Registry in Book 12892, Page 410.



Exhibit J

Page 7 of 8




 









 







Together with the right to terminate the Agreement between Leonard N. Weld et ux. dated April 9,
1974 and recorded in the Registry in Book 12627, Page 235




Exhibit J

Page 8 of 8






 









 








EXHIBIT K




SITE PLAN









Exhibit K


Page 1 of 1





 









 








EXHIBIT L




IMPACT SIGNAGE AND BUILDING SIGNAGE




[Intentionally Omitted]




Exhibit L

Page 1 of 1




 









 








EXHIBIT M




SECOND FLOOR TENANTS’ PRIOR RIGHTS




	 	 	 	 	 	 	 	 	 
	Tenant	 	SF	 	LED	 	Renewal Option	 	ROFO
	 	 	 	 	 	 	 	 	 
	Morse Barnes Brown & Pendleton
	 	18,785
	 	3/31/2012
	 	1, 5 year
	 	Yes — 5,156 SF, Ongoing
	 	 	 	 	 	 	 	 	 
	Tapestry Networks
	 	10,389
	 	7/31/2010
	 	1, 3 year
	 	None
	 	 	 	 	 	 	 	 	 
	Columbia Capital
	 	1,805
	 	2/28/2010
	 	1, 2 year
	 	None
	 	 	 	 	 	 	 	 	 
	Fidelis Security Systems
	 	3,921
	 	5/31/2013
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	Chen PR
	 	3,500
	 	6/30/2010
	 	1, 3 year
	 	None
	 	 	 	 	 	 	 	 	 
	Hitachi Computer Products
	 	2,517
	 	6/30/2010
	 	1, 3 year
	 	None
	 	 	 	 	 	 	 	 	 
	Ensign-Bickford Industries
	 	4,043
	 	9/30/2011
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	Enlight Inc
	 	3,740
	 	1/31/2010
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	Whats What, LLC
	 	3,542
	 	4/30/2012
	 	1, 3 year
	 	None
	 	 	 	 	 	 	 	 	 
	Fujitsu
	 	2,140
	 	12/31/2010
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	NRT New England
	 	1,960
	 	5/31/2010
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	Observant
	 	6,593
	 	6/30/2011
	 	1, 3 year
	 	None
	 	 	 	 	 	 	 	 	 
	ATS Realty
	 	4,489
	 	4/30/2012
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	Logix
	 	5,283
	 	10/31/2015
	 	1, 5 year
	 	None
	 	 	 	 	 	 	 	 	 
	Streetlight Concepts, LLC
	 	1,800
	 	11/30/2012
	 	1, 3 year
	 	None






Exhibit M

Page 1 of 1