**Exhibit 10.31**

LEASE BY AND BETWEEN

THE REALTY ASSOCIATESFUND VI, L.P.

AND

NITROMED, INC.

at

45-55 Hayden Avenue

Lexington, Massachusetts

Dated

February 23, 2007

The mailing, delivery or negotiation of this Leaseshall not be deemed an offer to enter into any transaction or to enter into anyrelationship, whether on the terms contained herein or on any other terms.  This Lease shall not be binding upon Landlordor Tenant, nor shall Landlord or Tenant have any obligations or liabilitieswith respect thereto, or with respect to the premises, unless and untilLandlord and Tenant have signed counterparts and executed and delivered suchcounterparts of this Lease to the other party. Until such execution and delivery of this Lease by Landlord and Tenant,Landlord or Tenant may terminate all negotiation and discussion of the subjectmatter hereof, without causes and for any reason, without recourse orliability.

 

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TABLE OF CONTENTS
| 1.     |   | Basic Lease Provisions.                                   |   |   |
|--------|--------|-----------------------------------------------------------|--------|--------|
|   |   |                                                      |   |   |
| 2.     |   | Premises                                                  |   |   |
|   |   |                                                      |   |   |
| 3.     |   | Term                                                      |   |   |
|   |   |                                                      |   |   |
| 4.     |   | Rent.                                                     |   |   |
|   |   |                                                      |   |   |
| 5.     |   | Security Deposit                                          |   |   |
|   |   |                                                      |   |   |
| 6.     |   | Permitted Use.                                            |   |   |
|   |   |                                                      |   |   |
| 7.     |   | Maintenance, Repairs and Alterations.                     |   |   |
|   |   |                                                      |   |   |
| 8.     |   | Insurance.                                                |   |   |
|   |   |                                                      |   |   |
| 9.     |   | Damage or Destruction.                                    |   |   |
|   |   |                                                      |   |   |
| 10.    |   | Real and Personal Property Taxes.                         |   |   |
|   |   |                                                      |   |   |
| 11.    |   | Utilities.                                                |   |   |
|   |   |                                                      |   |   |
| 12.    |   | Assignment and Subletting.                                |   |   |
|   |   |                                                      |   |   |
| 13.    |   | Default; Remedies.                                        |   |   |
|   |   |                                                      |   |   |
| 14.    |   | Landlord’s Right to Cure Default; Payments by Tenant |   |   |
|   |   |                                                      |   |   |
| 15.    |   | Condemnation                                              |   |   |
|   |   |                                                      |   |   |
| 16.    |   | Vehicle Parking.                                          |   |   |
|   |   |                                                      |   |   |
| 17.    |   | Broker’s Fee                                         |   |   |
|   |   |                                                      |   |   |
| 18.    |   | Estoppel Certificate.                                     |   |   |
|   |   |                                                      |   |   |
| 19.    |   | Financial Information                                     |   |   |
|   |   |                                                      |   |   |
| 20.    |   | Landlord’s Liability                                 |   |   |
|   |   |                                                      |   |   |
| 21.    |   | Indemnity                                                 |   |   |
|   |   |                                                      |   |   |
| 22.    |   | Exemption of Landlord from Liability                      |   |   |
|   |   |                                                      |   |   |
| 23.    |   | Hazardous Substances.                                     |   |   |

 

i

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| 24.    |   | Intentionally Omitted.                  |
|--------|--------|-----------------------------------------|
|   |   |                                    |
| 25.    |   | Tenant Improvements                     |
|   |   |                                    |
| 26.    |   | Subordination and Rights of Mortgagees. |
|   |   |                                    |
| 27.    |   | Option to Extend                        |
|   |   |                                    |
| 28.    |   | Landlord Reservations                   |
|   |   |                                    |
| 29.    |   | Changes to Property                     |
|   |   |                                    |
| 30.    |   | Intentionally Omitted                   |
|   |   |                                    |
| 31.    |   | Holding Over                            |
|   |   |                                    |
| 32.    |   | Landlord’s Access                  |
|   |   |                                    |
| 33.    |   | Security Measures                       |
|   |   |                                    |
| 34.    |   | Easements                               |
|   |   |                                    |
| 35.    |   | Transportation Management               |
|   |   |                                    |
| 36.    |   | Severability                            |
|   |   |                                    |
| 37.    |   | Time of Essence                         |
|   |   |                                    |
| 38.    |   | Definition of Additional Rent           |
|   |   |                                    |
| 39.    |   | Incorporation of Prior Agreements       |
|   |   |                                    |
| 40.    |   | Amendments                              |
|   |   |                                    |
| 41.    |   | Notices                                 |
|   |   |                                    |
| 42.    |   | Waivers                                 |
|   |   |                                    |
| 43.    |   | Covenants                               |
|   |   |                                    |
| 44.    |   | Binding Effect; Choice of Law           |
|   |   |                                    |
| 45.    |   | Attorneys’ Fees                    |
|   |   |                                    |
| 46.    |   | Auctions                                |
|   |   |                                    |
| 47.    |   | Signs                                   |
|   |   |                                    |
| 48.    |   | Merger                                  |

ii

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| 49.    |   | Quiet Possession                 |       |       |
|--------|--------|----------------------------------|------------|------------|
|   |   |                             |       |       |
| 50.    |   | Authority                        |       |       |
|   |   |                             |       |       |
| 51.    |   | Conflict                         |       |       |
|   |   |                             |       |       |
| 52.    |   | Multiple Parties                 |       |       |
|   |   |                             |       |       |
| 53.    |   | Interpretation                   |       |       |
|   |   |                             |       |       |
| 54.    |   | Prohibition Against Recording    |       |       |
|   |   |                             |       |       |
| 55.    |   | Relationship of Parties          |       |       |
|   |   |                             |       |       |
| 56.    |   | Rules and Regulations            |       |       |
|   |   |                             |       |       |
| 57.    |   | Right to Lease                   |       |       |
|   |   |                             |       |       |
| 58.    |   | Intentionally Omitted            |       |       |
|   |   |                             |       |       |
| 59.    |   | Intentionally Omitted            |       |       |
|   |   |                             |       |       |
| 60.    |   | Attachments                      |       |       |
|   |   |                             |       |       |
| 61.    |   | Costs Related to Tenant Requests |       |       |
|   |   |                             |       |       |
| 62.    |   | Confidentiality                  |       |       |
|   |   |                             |       |       |
| 63.    |   | Waiver Of Jury Trial             |       |       |
|   |   |                             |       |       |
| 64.    |   | Access To Premises               | ** ** | ** ** |

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**INDEXTO DEFINED TERMS**
| Term                             | ** ** | **Section** |
|----------------------------------|------------|-------------|
| Alterations                      |       | 7.3(a)      |
| Bankruptcy Code                  |       | 13.1(e)     |
| Base Rent                        |       | 1.14        |
| Building                         |       | 1.3         |
| Changes                          |       | 29          |
| Comparison Year                  |       | 4.2(b)      |
| Commencement  Date               |       | 1.11        |
| Common Areas                     |       | 2.2         |
| Condemnation                     |       | 15          |
| Damages                          |       | 21          |
| Expiration Date                  |       | 1.13        |
| Extended Term                    |       | 27          |
| Force Majeure                    |       | 13.3        |
| Grossed Up  Operating Expenses   |       | 4.2         |
| HVAC                             |       | 4.2(c)      |
| Hazardous  Substance             |       | 23.1        |
| Holder                           |       | 26.1        |
| Indemnified  Matter              |       | 21          |
| Indemnified  Parties             |       | 21          |
| Land                             |       | 1.4         |
| Landlord                         |       | 1.1         |
| Mortgage                         |       | 26.1        |
| Net Worth                        |       | 12.2        |
| Number of Tenant  Parking Spaces |       | 1.19        |
| Operating  Expense Base Year     |       | 1.18        |
| Operating  Expenses              |       | 4.2(c)      |
| Option                           |       | 27          |
| Permitted Use                    |       | 1.9         |
| Premises                         |       | 1.2         |
| Property                         |       | 1.5         |
| Real Estate  Broker              |       | 1.20        |
| Real Property  Taxes             |       | 10.2        |
| Rent  Commencement Date          |       | 1.12        |
| Rentable Area of  Building       |       | 1.8         |
| Rentable Area of  Premises       |       | 1.7         |
| Requisition                      |       | 3.1(c)(2)   |
| Rules                            |       | 16.1        |
| SNDA                             |       | 26.2        |
| Security Deposit                 |       | 1.16        |
| Supplemental  Systems            |       | 11.5        |
| Tax Base Year                    |       | 1.18        |
| Tenant                           |       | 1.1         |

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| Tenant Parties         |   | 21   |
|------------------------|--------|------|
| Tenant’s Property |   | 9.5  |
| Tenant’s Share    |   | 1.17 |
| Term                   |   | 1.10 |
| Transfer               |   | 12.1 |
| Transfer Premium       |   | 12.6 |
| Work Letter            |   | 3.2  |

 

 

v

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**LEASE**

# **1.             Basic Lease Provisions.**

**1.1          Parties:**  This Lease, dated as of February     ,2007, made by and between The Realty Associates Fund VI, L.P., a Delawarelimited partnership (“**Landlord**”)and NitroMed, Inc., a Delaware corporation (“**Tenant**”).

**1.2          Premises:**  A portion of the third (3rd) floor of the Building, consisting of19,815 rentable square feet, as shown on Exhibit A attached hereto.

**1.3          Building:**  Together, the two connected buildings knownas and numbered 45-55 Hayden Avenue, Lexington, Massachusetts.

**1.4          Land:** The Land upon which the Building is located as it may be enlarged orreduced from time to time.

**1.5          Property:** The Land and the Building.

**1.6          Intentionally Omitted.**

**1.7          Rentable Area of Premises:**Agreed to be19,815 square feet.

**1.8          Rentable Area of Building:** Agreed to be190,079 square feet.

**1.9          Permitted Use:**  General office use, subject to therequirements and limitations contained in Section 6.

**1.10        Term:** The period commencing on theCommencement Date and ending on the Expiration Date.

**1.11        Commencement Date:** The Commencement Dateshall be the earlier of (i) the day immediately following the SubstantialCompletion Date, or (ii) the first day on which Tenant occupies all or anyportion of the Premises for the conduct of Tenant’s business.

**1.12        Rent Commencement Date:** The CommencementDate.

**1.13        Expiration Date:** 11:59 p.m., local time, onthe day immediately preceding the sixty-sixth (66th) monthly anniversary of theCommencement Date or, if the Commencement Date is not the first day of acalendar month, then the last day of the sixty-sixth (66th) full calendar monthfollowing the calendar month in which the Commencement Date occurs.

**1.14        Base Rent:**  Subject to Section 4.1, the Base Rent is asfollows:

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| **RENTAL PERIOD (Months)** | ** ** | ** ** | ** ** | **ANNUAL BASE RENT** | ** ** | **MONTHLY PAYMENT** | ** ** | **BASE RENT PER  SQUARE FOOT** | ** ** |
|--------------------------------------|------------|------------|------------|--------------------------------|------------|--------------------------|------------|-----------------------------------------------|------------|
| Lease Months  1-12                   |       | $          | 535,005.00 |                           | $          | 44,583.75                |       | $                                             | 27.00      |   |
| Lease Months  13-24                  |       | $          | 544,912.50 |                           | $          | 45,409.38                |       | $                                             | 27.50      |   |
| Lease Months  25-36                  |       | $          | 564,727.50 |                           | $          | 47,060.63                |       | $                                             | 28.50      |   |
| Lease Months  37-48                  |       | $          | 584,542.50 |                           | $          | 48,711.88                |       | $                                             | 29.50      |   |
| Lease Months  49-60                  |       | $          | 594,450.00 |                           | $          | 49,537.50                |       | $                                             | 30.00      |   |
| Lease Months 61-66                   |       | $          | 614,265.00 |                           | $          | 51,188.75                |       | $                                             | 31.00      |   |

 

**1.15       ****IntentionallyOmitted**

**1.16        Security Deposit:**  $189,761.65.

**1.17        Tenant’s Share:** 10.42%

**1.18        Tax Base Year:** Fiscal Year 2008.

**OperatingExpense Base Year**: Calendar Year 2007.

**1.19       ****Number ofTenant Parking Spaces:** Fifty-nine (59) spaces (3 per 1,000 squarefeet of rentable area), to be used in common and on an unassigned basis.

**1.20        Real Estate Broker:** Richards Barry Joyce& Partners, LLC

**1.21        Attachments toLease:**

ExhibitA — Layout Plan

ExhibitA-1 — Work Letter

ExhibitA-2 — Temporary Premises

ExhibitB — Verification Letter

ExhibitC — Rules and Regulations

Exhibit D — CleaningSpecifications

**1.22        Address for****Notices:**
|        | **Landlord:** | The Realty Associates Fund VI, L.P.   |
|--------|---------------|---------------------------------------|
|   | ** **    | c/o Jones Lang LaSalle  Americas, Inc |
|   | ** **    | 55 Hayden Avenue                      |
|   | ** **    | Lexington, Massachusetts  02421       |
|   | ** **    | Telephone No. (781)  778-2563         |
|   | ** **    | Fax No. (781) 676-7719                |
|   | ** **    | Attention: Property Manager           |

 

2

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|   | ** **          |                                     |
|--------|---------------------|------------------------------------------|
|   | **With a copy to:** | TA Associates Realty                     |
|   |                | 28 State Street, 10th Floor         |
|   |                | Boston, Massachusetts 02109              |
|   |                | Telephone No. (617) 476-2700             |
|   |                | Fax No. (617) 476-2799                   |
|   |                | Attention: Hayden Asset Manager          |
|   |                |                                     |
|   | **and:**            | Stephen T. Langer, Esq.                  |
|   |                | Langer & McLaughlin, LLP             |
|   |                | 137 Newbury Street                       |
|   |                | Boston, MA 02116                         |
|   |                | Telephone No. (617) 536-9050             |
|   |                | Fax No. (617) 536-9040                   |
|   |                |                                     |
|   | **Tenant:**         |                                     |
|   |                | NitroMed, Inc.                           |
|   |                | 125 Spring Street                        |
|   |                | Lexington, MA                            |
|   |                | Attn: James G. Ham, III, Vice President/ |
|   |                |                                     | Chief Financial Officer |
|   |                | Telephone No. (781) 266-4129             |
|   |                | Fax No. (781) 274-8080                   |
|   |                |                                     |
|   | **With a copy to:** | Cynthia B. Keliher, Esq.                 |
|   |                | McCarter & English, LLP              |
|   |                | 225 Franklin Street                      |
|   |                | Boston, Massachusetts 02110              |
|   |                | Telephone No. (617) 345-7000             |
|   |                | Fax No. (617) 345-7050                   |

 

# **2.             Premises**

**2.1          Lease ofPremises.**  Landlord hereby leases to Tenant, and Tenanthereby leases from Landlord, upon all of the conditions set forth herein, thePremises, together with certain rights to the Common Areas as hereinafterspecified.

**2.2          Common Areas-Defined.** The term “**CommonAreas**” is defined as all areas and facilities outside the Premisesand within the exterior boundary line of the Property that are designated byLandlord from time to time for the general non-exclusive use of Landlord,Tenant and the other tenants of the Property and their respective employees,suppliers, customers and invitees, including, but not limited to, commonentrances, lobbies, corridors, stairwells, public restrooms, elevators, parkingareas, loading and unloading areas, roadways and sidewalks.  Landlord may also designate other land andimprovements outside the boundaries of the Property in which Landlord hasrights to be a part of the Common Areas, provided that such other land andimprovements have a reasonable and functional relationship to the Property.

3

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**3.             Term.**

**3.1          (a) Term, Commencement Date, RentCommencement Date and Expiration Date.** TheTerm, Commencement Date, Rent Commencement Date and Expiration Date of thisLease are as specified in **Sections 1.10,1.11, 1.12 and 1.13**, respectively. As used in this Lease, “**Lease Year**” shall mean each period of oneyear during the Term commencing on the Commencement Date or on any anniversarythereof, provided that the first Lease Year shall consist of the period betweenthe Commencement Date and the last day of the calendar month in which theCommencement Date occurs and the succeeding twelve full calendar months, andeach succeeding Lease Year shall consist of a one-year period (or part thereofwith respect to the last Lease Year) commencing on the first day of thecalendar month following the calendar month in which the Commencement Datefell.

Tenantshall, within fifteen (15) days after Landlord’s written request, complete andexecute the Verification Letter attached hereto as Exhibit B, or proposeappropriate modification to accurately reflect the factual state of affairs,and deliver it to Landlord.  Tenant’sfailure to execute the Verification Letter or propose such modifications withinsaid fifteen (15) day period shall constitute Tenant’s acknowledgment of thetruth of the facts contained in the letter delivered by Landlord to Tenant.However, Landlord’s failure to prepare or deliver a Verification Letter shallhave no effect on the Term, Commencement Date, Rent Commencement Date orExpiration Date.

**3.2          Preparation of the****Premises.**

### (a)           Attached to thisLease as Exhibit A is a “Layout Plan,” dated December 21, 2006, showinggenerally the improvements to be made by Landlord to prepare the Premises forTenant’s occupancy. The Layout Plan attached as Exhibit A has beenapproved by Tenant.  Landlord will havefurther plans (the “**Plans**”)prepared consistent with the Layout Plan, and in accordance with Buildingstandards and otherwise with information provided to Landlord by Tenant. ThePlans shall be submitted to Tenant for its approval, which shall not beunreasonably withheld or delayed. Failure by Tenant to disapprove anysubmission or resubmission of the Plans within five (5) business days aftersubmission or any resubmission shall constitute approval thereof. Anydisapproval shall be accompanied by a specific statement of the reasonstherefor.

### (b)           Awork letter (the “**Work Letter**”)describing the work to be performed by Landlord pursuant to the Plans (“**Landlord’s Work**”) is attached hereto as Exhibit A-1.Landlord shall undertake Landlord’s Work at Landlord’s sole cost and expenseand in accordance with the Work Letter and applicable laws, codes andregulations. Except as specifically set forth in the Work Letter, Landlord’sWork shall not include any furniture, fixtures or equipment for Tenant’sbusiness or any wiring for Tenant’s equipment. Subject to the provisions of **Section 3.3(b)**below, Landlord shall use commercially reasonable efforts to achieve SubstantialCompletion on or before the sixtieth (60th) day following the date hereof, but Landlord shall haveno liability for failure to do so, and Tenant shall have no claim againstLandlord, except for the right to terminate this Lease as provided in **Section 3.3(c)**below.  The Landlord’s Work shall bedeemed Substantially Complete on the first day as of which (i) Landlord’s Workhas been completed, including, to the extent applicable, the SubstantialCompletion Punch List (as hereinafter defined) (as certified in writing byLandlord’s Architect),

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### except for items of work (and, if applicable,adjustment of equipment and fixtures) which can be completed after occupancyhas been taken without unreasonable interference with Tenant’s use of thePremises (the “Final Punch List”), and (ii) a certificate of occupancy has been issued bythe Town of Lexington for the Premises (or Landlord has obtained otherwritten confirmation from a responsible official of the Town of Lexington thatthe requirements for such a certificate have been satisfied and that acertificate will issue in the ordinary course), and (iii) the utilities servingthe Premises are operational, and (iv) Tenant has been given written notice ofthe occurrence of the matters described in the foregoing clauses (i), (ii) and(iii). Such date is hereinafter called the “**SubstantialCompletion Date**.”  Upon receipt of such notice, Tenant shall beentitled to inspect the Premises with a representative of Landlord or Landlord’scontractor for the purpose of preparing the Final Punch List. Landlord shallcomplete as soon as conditions permit all Final Punch List items, and Tenantshall afford Landlord access to the Premises for such purposes. Landlord shalluse commercially reasonable efforts to complete all Final Punch List itemswithin 45 days after the Substantial Completion Date. In the course ofcompleting either the Substantial Completion Punch List or the Final Punch Listin accordance with this **Article 3**, Landlord shall use commercially reasonable effortsto avoid unreasonable interference with Tenant’s operations in the Premises.

**3.3          Condition; Landlord’s Performance**                (a) Tenant shall give Landlordwritten notice, not later than forty-five (45) days after the SubstantialCompletion Date, of any respects in which Landlord has not performed Landlord’sWork fully, properly and in accordance with the terms of this Lease (except forlatent defects and matters that could not be discovered by normal use or areasonably careful visual inspection). Except as identified in any such noticefrom Tenant to Landlord, Tenant shall have no right to make any claim thatLandlord has failed to perform any of Landlord’s Work fully, properly and inaccordance with the terms of this Lease, or to require Landlord to perform anyfurther Landlord’s Work.  Except forLandlord’s Work, the Premises are being leased in their present condition, ASIS, WITHOUT REPRESENTATION OR WARRANTY by Landlord. Tenant acknowledges that ithas inspected the Premises and Common Areas and, subject to completion ofLandlord’s Work, has found the same satisfactory.

(b) Landlord acknowledges that Tenant has advisedLandlord that, due to its existing tenancy conditions, Tenant must vacate itscurrent leased premises on or before March 31, 2007. Notwithstanding anythingto the contrary in **Section 3.2(b)**,Landlord will use commercially reasonable efforts (excluding overtime labor orother premium services) to Substantially Complete Landlord’s Work and make thePremises ready for occupancy on or before March 31, 2007, but Landlord makes nocommitment that it will be able to do so, and Landlord will have no liabilityor penalty (except for any delay in the Commencement Date or any offset to aTenant Delay that may apply in accordance with **Section 3.4**) ifLandlord’s Work is not Substantially Complete and the Premises are not readyfor Occupancy by March 31, 2007.  Nolater than March 9, 2007, authorized representatives from Landlord and Tenantwill meet at Landlord’s office in Boston (or at another mutually agreeablelocation) to review the then status of the Landlord’s Work (the “Status Meeting”),at which time Landlord will identify in writing those items of Landlord’s Workwhich, despite the use of commercially reasonable efforts, will not beSubstantially Complete by March 31, 2007 (collectively, the “SubstantialCompletion Punch

5

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List”).  Basedon the Substantial Completion Punch List, Tenant, no later than March 15, 2007,will identify, in writing, (i) those items (the “Priority Items”) of Landlord’sWork which Tenant requests be completed by March 31, 2007 and (ii) those itemsof Landlord’s Work which Tenant requests be completed by the SubstantialCompletion Date. Tenant acknowledges that, due to subcontractor availability,materials availability or other matters beyond the reasonable control ofLandlord or its contractor, it is possible that not every Priority Itemrequested by Tenant can be accommodated. Landlord will review Tenant’s requestdescribed in clause (i) and advise Tenant within three (3) business days of (A)the then estimated costs associated with completing such Priority Items byMarch 31, 2007 (including without limitation the estimated costs of materialfabrication or delivery, or the re-sequencing or reallocation of work and/orlabor priorities), and (B) if applicable, any Priority Item(s) that Landlordand its contractor do not believe can be accommodated by March 31, 2007. Withrespect to those Priority Items that can be accommodated, Landlord will(subject to Tenant’s approval of the estimated costs of the Priority Items asset forth above, within two (2) business days after receipt of the notice fromLandlord described in the immediately preceding sentence) use overtime labor oruse such other premium services as may be appropriate to Substantially Completesuch Priority Items  by March 31, 2007,provided that Tenant shall be solely responsible for any and all costsassociated therewith.  With respect tothose items of Landlord’s Work referred to in the foregoing clause (ii),Landlord shall use commercially reasonable efforts to complete such work by theSubstantial Completion Date.  Anyovertime labor or premium services costs (including without limitation the costof expedited material fabrication or delivery, and any costs or delays incurredas a result of re-sequencing work or reallocation of labor priorities) due inaccordance with **Section 3.3(b)(i)** shall be paid byTenant as additional rent within thirty (30) days after Tenant’s receipt of anitemized bill from Landlord. Tenant acknowledges that requesting that theLandlord’s contractor change priorities to meet the Substantial CompletionPunchlist may result in other portions of Landlord’s Work (that would otherwisehave been completed) being delayed. Notwithstanding the foregoing, if, for anyreason other than a Tenant’s Delay, the Priority Items have not beenSubstantially Completed by March 31, 2007, then Landlord will provide forTenant’s temporary use space in the Building (the “Temporary Premises”) fromApril 1, 2007 until such time as Landlord’s Work is Substantially Complete andthe Premises are ready for occupancy. The Temporary Premises will containapproximately 5,690 rentable square feet of space (as shown on Exhibit A-2),and be delivered in their “As Is” condition. Tenant will be responsible for thecost of relocating Tenant’s property, furnishings and equipment from theTemporary Premises to the Premises following the Substantial Completion Date.During such time as Tenant occupies the Temporary Premises, the TemporaryPremises shall be deemed to be the Premises for all purposes of this Lease(including without limitation all indemnification and insurance requirements),except that (i) Tenant shall not be required to pay Base Rent for the TemporaryPremises, (ii) Tenant’s Share of Operating Expenses and Real Property Taxesshall be based on the square footage of the Temporary Premises during suchperiod and (iii) the Commencement Date shall not be deemed to have occurredsolely by virtue of such occupancy.

(c)           Notwithstanding anything to thecontrary in this Lease, if the Substantial Completion Date has not occurred bythe ninetieth (90th)day after the date hereof (the “**Construction Deadline,**”which shall be extended for the period of any Tenant’s Delays or ForceMajeure), then Tenant shall have the option, as its sole and exclusive remedyat law or in equity, upon notice to Landlord given within ten (10) days after theConstruction Deadline (as so

6

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extended), toterminate this Lease.  In the event ofsuch termination, this Lease shall be without further force or effect upon thethirtieth (30th)day after the Landlord receives such notice, unless the Substantial CompletionDate occurs prior to such thirtieth (30th) day. In the event of such termination, Landlord shallreturn to Tenant any security deposit or Base Rent that Tenant may have paid toLandlord hereunder, and Landlord shall have no further obligation or liabilityto Tenant in connection with this Lease or the Premises.

## **3.4          Tenant’s Delays.**

### (a)           If a delay shalloccur in the Substantial Completion Date, and such delay would not haveoccurred but for the occurrence of any of the following:

#### (i)                                     any request byTenant that Landlord delay the commencement or completion of Landlord’s Workfor any reason;

#### (ii)                                  any change by Tenantin the Layout Plan, or in any other Plans or specifications, after initialapproval thereof by Tenant, or any request by Tenant for work that isinconsistent with the Layout Plan as approved, or any request for items ormaterials not specifically reflected on materials submitted by Tenant toLandlord and agreed to by Landlord prior to the date hereof (including therequest by Tenant for so-called “long lead-time” items);

#### (iii)                               any other act oromission of Tenant or its officers, agents, employees or contractors;

#### (iv)                              any re-sequencing or anychange in labor or materials priorities as a result of a request by Tenantdescribed in Section 3.3(b); or

#### (v)                                 any reasonablynecessary displacement of any of Landlord’s Work from its place in Landlord’sconstruction schedule resulting from any of the causes for delay referred to inthis **paragraph (a)** and the fitting of suchLandlord’s Work back into such schedule;

then Tenant shall, from time to time and withinthirty (30) days after demand therefor, pay to Landlord for each day of suchdelay the amount of Base Rent, Additional Rent and other charges that wouldhave been payable hereunder had the Rent Commencement Date occurred immediatelyprior to such delay. If any of the circumstances described in clauses (i)through (v) above occur, and Landlord is aware that such occurrence isreasonably likely to result in a delay in the Substantial Completion Date, thenLandlord shall so advise Tenant, and shall give Tenant the Landlord’s then goodfaith estimate of the likely duration of such delay. Such estimate will not bebinding on Landlord and shall not limit any subsequent claim of a Tenant’sDelay. Landlord will use reasonable efforts to advise Tenant periodically ifcircumstances change or if Landlord becomes aware of any change in theestimated duration of any delay described herein. The period of any Tenant’sDelay shall not include any delay attributable solely to the negligent orwillful and wrongful act or omission of Landlord, including without limitationLandlord’s disregard of any deadlines set forth in this Lease or any workletter. In the event of any dispute regarding the duration of any Tenant’sDelay, the parties agree that such dispute shall be resolved througharbitration, with a single arbitrator (with opportunity for review, as setforth in such procedures), in accordance with the procedures established by theReal Estate Bar Association for Massachusetts (REBA Dispute Resolution, Inc.).

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### (b)           Ifa delay in the Substantial Completion Date, or if any substantial portion ofsuch delay, is the result of Force Majeure, and such Force Majeure delay wouldnot have occurred but for a delay described in **paragraph (a)**, such Force Majeure delay shall be added tothe delay described in **paragraph (a)**.

### (c)           Thedelays referred to in **paragraphs (a)**and**(b)** are herein referred to collectively and individually as“**Tenant’s Delay**” or “**Tenant Delay**.” The Construction Deadlineshall be extended one day for each day of Tenant’s Delays.

## **3.5          Early Access****.**  At such time as Landlord’s contractor reasonablydetermines that such access will not interfere with the timely and efficientcompletion of Landlord’s Work, Tenant shall have access to the Premises (and,if applicable, the Temporary Premises) prior to the Commencement Date solelyfor the purpose of installation of furniture, equipment, and telephone/datawiring, provided that such access shall be subject to all of the terms andconditions of this Lease, other than the payment of Base Rent or any additionalrent or electrical charges. Landlord will in any event afford Tenant’sinformation systems consultants access to the Premises at least seven (7) daysprior to the earlier of (i) March 31, 2007 or (ii) the then-estimatedSubstantial Completion Date. Subject to the preceding sentence, Tenant’s accessshall be subject to reasonable scheduling, and shall in any event be subject toother requirements of Landlord and Landlord’s contractor, and Tenant shalldeliver to Landlord certificates of liability, casualty and workmen’scompensation insurance prior to having any such access. Any interference withLandlord’s Work as a result of Tenant’s early access shall constitute a TenantDelay. Both Landlord’s and Tenants contractors shall use commerciallyreasonable efforts to accommodate one another’s requirements to complete workin a timely and professional manner.

# **4.             Rent.**

## **4.1          Base Rent****.**  Tenant shall pay toLandlord the Base Rent set forth in **Section 1.14**, without offset or deductioncommencing on the Rent Commencement Date and thereafter on the first day ofeach calendar month. So long as (i) this Lease shall be in full force andeffect and (ii) there shall exist no Event of Default on the part of Tenant(nor any event or circumstance which, with the passage of time or the giving ofnotice, or both, would constitute an Event of Default), Landlord will waivepayment of Base Rent (but not Additional Rent, utility charges or any otheramounts due or payable hereunder) on 4,815 rentable square feet of PremisesArea for the period commencing on the Commencement Date and expiring on the 365th day following the Commencement Date (e.g.Tenant shall only be responsible during such period for Base Rent on 15,000rentable square feet of Premises Area (19,815 r.s.f. - 4,815 r.s.f. = 15,000r.s.f. x $27.00/r.s.f./annum = $405,000/year or $33,750/month)). If theCommencement Date is not the first day of a calendar month, the partial monthwill be added to the first full twelve months of the Term, and Base Rent shallcommence on the Commencement Date and shall be payable for the remainder of thepartial month at the rate set forth in **Section1.14** for such period.  BaseRent for any period during the term hereof which is for less than one monthshall be prorated based upon the actual number of days of the calendar monthinvolved.  Base Rent and all otheramounts payable to Landlord hereunder shall be payable to Landlord in lawfulmoney of the United States, and Tenant shall be responsible for delivering saidamounts to Landlord at the

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## address stated herein or to such other personor to such other place in the continental United States as Landlord maydesignate in writing.Landlord and Tenant agree that all amountsdue from Tenant under or in respect of this Lease, whether labeled Base Rent,additional rent, additional charges or otherwise, shall be considered as rentalreserved under this Lease for all purposes, including without limitationregulations promulgated pursuant to the Bankruptcy Code, and including furtherwithout limitation Section 502(b) thereof.

## **4.2          OperatingExpense Increases.** Tenant shall pay to Landlord during the term hereof, in addition to theBase Rent, Tenant’s Share of the amount by which all Operating Expenses foreach Comparison Year exceed the amount of all Operating Expenses for theOperating Expense Base Year.  If lessthan 95% of the rentable square feet in the Building is occupied by tenants orLandlord is not supplying services to tenants occupying 95% of the rentablesquare feet of the Building at any time during any calendar year (including theOperating Expense Base Year), Operating Expenses for such calendar year shallbe reasonably extrapolated by Landlord to the amount of Operating Expenses thatwould normally be expected to be incurred had 95% of the Building’s rentablesquare feet been occupied and had Landlord been supplying services to tenantsoccupying 95% of the Building’s rentable square feet throughout such calendaryear (hereinafter the “**Grossed Up OperatingExpenses**”), and such amount shall be the Operating Expenses for suchcalendar year. Landlord’s good faith estimate of Grossed Up Operating Expensesshall not be subject to challenge or recalculation by Tenant, except asotherwise set forth in **Section 4.2(h)**.  Tenant’s Share of Operating Expense increasesshall be determined in accordance with the following provisions:

### (a)           “**Tenant’s Share**” is defined as the percentage set forth in **Section 1.17**, which percentage has been determined bydividing the Rentable Area of Premises by the Rentable Area of Building, andmultiplying the resulting quotient by one hundred (100). In the event that theRentable Area of Premises or the Rentable Area of Building changes, Tenant’sShare shall be adjusted in the year the change occurs, and Tenant’s Share forsuch year shall be determined on the basis of the days during such year thateach Tenant’s Share was in effect.

### (b)           For purposes ofdetermining Tenant’s Share of Operating Expense increases, “**Comparison Year**” is defined as each calendar year during theterm of this Lease after the Operating Expense Base Year. In the event of anypartial Comparison Years during the Term, Tenant’s Share of the OperatingExpense increases therefor shall be prorated according to that portion of suchComparison Year as to which Tenant is responsible for a share of such increase.  For purposes of determining Tenant’s Share ofReal Property Tax increases, “Comparison Year” is defined as each tax fiscalyear during the term of this Lease after the Tax Base Year. Tenant’s Share ofReal Property Tax increases for any partial Comparison Years during the Termshall be prorated according to that portion of such Comparison Year as to whichTenant is responsible for a share of such increase.

### (c)           “**Operating Expenses**” shall mean, except as expressly providedherein, all costs, expenses and fees incurred by Landlord in connection with orattributable to the Property, including but not limited to, the followingitems: (i) all costs, expenses and fees associated with or attributable to theownership, management, operation, repair, maintenance, improvement, alterationand replacement of the Property, or any part thereof, including but not limitedto, the following: (A) all surfaces, coverings, decorative items, carpets,drapes, window

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### coverings, parking areas, loading and unloading areas, trash areas,roadways, sidewalks, stairways, landscaped areas, striping, bumpers, irrigationsystems, lighting facilities, building exteriors and roofs, fences and gates;(B) all heating, ventilating and air conditioning equipment (“HVAC”), plumbing,mechanical, electrical systems, life safety systems and equipment,telecommunication equipment, elevators, escalators, tenant directories, firedetection systems including sprinkler system maintenance and repair; (ii) thecost of trash disposal, janitorial services and security services and systems;(iii) the cost of all insurance purchased by Landlord pursuant to **Section 8**of this Lease, including any deductibles; (iv) thecost of water, sewer, gas, electricity, and other utilities available at theProperty and paid by Landlord; (v) the cost of labor, salaries and applicablefringe benefits incurred by Landlord with respect to the Property; (vi) thecost (purchase or rental) of materials, supplies and tools used in operating,managing, maintaining, repairing and/or cleaning the Property; (vii) the costof reasonable accounting fees, management fees, legal fees and consulting feesattributable to the ownership, operation, management, maintenance and repair ofthe Property plus the cost of any space at the Property occupied by theproperty manager, provided that if the Property is managed by Landlord or anaffiliate of Landlord, the management fee so included in Operating Expensesshall not exceed an amount equal to four percent (4%) of the gross rentalreceipts of the Property (excluding for this purpose capital expenses, Landlord’smarkups and amounts separately reimbursed by tenants); (viii) the cost ofreplacing, modifying and/or adding improvements or equipment mandated by anylaw, statute, regulation or directive of any governmental agency and anyrepairs, disposals or removals necessitated thereby (including, but not limitedto, the cost of complying with the Americans With Disabilities Act), so long asthe cost is not incurred to cure a violation of such requirement that existedon the date of this Lease; (ix) payments made by Landlord under any easement,license, operating agreement, declaration, restrictive covenant, or instrumentpertaining to the payment or sharing of costs among property owners; (x) anybusiness property taxes or personal property taxes imposed upon the fixtures,machinery, equipment, furniture and personal property used in connection withthe operation of the Property; (xi) the cost of all business licenses, anygross receipt taxes based on rental income or other payments received byLandlord, commercial rental taxes or any similar taxes or fees; (xii) all costsand expenses associated with or related to the implementation or support byLandlord of any vanpool or other traffic management or transportation demandmanagement or similar program, such as but not limited to the 128 BusinessCouncil or LEXPRESS, if and to the extent required by any governmental agencyor board, or if Landlord is subsidizing such cost for tenants of the Property;(xiii) fees assessed by any air quality management district or othergovernmental or quasi-governmental entity regulating pollution; and (xiv) thecost of any other service provided by Landlord to all tenants of the Buildingor any cost that is elsewhere stated in this Lease to be an Operating Expense. With respect to the foregoing subparagraphs (i) -(xiv), if any such costs associated therewith relate to other properties ofLandlord, such costs shall be allocated by Landlord among the Property and suchother properties.

### (d)           Operating Expenses shall not includeany expenses paid by any tenant directly to third parties, or as to whichLandlord is otherwise reimbursed by any third party or by insuranceproceeds.  The following costs and expensesshall also be excluded from the definition of “Operation Expenses” for purposesof this Lease:

(i)            Repairsor other work occasioned by fire, windstorm or other casualty to the extentthat Landlord is reimbursed by insurance or would have been

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reimbursed if Landlord had carried insurancespecifically required of landlord under Section 8 below (but the amount of anydeductible paid shall be included),

(ii)           Leasingcommissions, attorneys’ fees, accountant’s fees, costs and disbursements andother expenses incurred in connection with negotiations or disputes withpresent or prospective tenants or other occupants, or associated with theenforcement of any leases;

(iii)          Costs(including permit, license and inspection fees) incurred in renovating orotherwise improving or decorating, painting, or redecorating space for newtenants or existing tenants in connection with extensions of the terms of theirrespective tenancies;

(iv)          Depreciationand amortization on the Building (except that the foregoing shall not limitLandlord’s rights to amortize certain capital expenses as provided inSubsection 4.2(e) below);

(v)           expensesfor the repair, maintenance or operation of any parking garage (includingwithout limitation salaries and benefits of attendants, and the cost utilities)to the extent that Landlord receives separately stated income from such parkinggarage;

(v)           Costs(including the amortization thereof) of any repairs, improvements, alterations,or equipment that would be properly classified as a capital expenditureaccording to generallyaccepted accounting principles, except as otherwiseexpressly included in the definition of “Operating Expenses” under Subsection4.2(e) below;

(vii)         Costsof services provided free of direct charge to other tenants but not offeredfree of direct charge to Tenant;

(viii)        Costsincurred to remedy any violation of the terms and conditions of any lease orany governmental law or regulation, which violation existed on the date of thisLease, as determined by written admission, stipulation, final judgment, orarbitration award, except to the extent that such costs reflect costs thatwould have been incurred by Landlord absent such violation;

(ix)           Overheadand profit increment paid to Landlord or its subsidiaries or affiliates formanagement or other services on or to the Property or for supplies or othermaterials, to the extent that the costs of such materials, services, orsupplies exceed the costs normally payable for like services, supplies ormaterials provided by unaffiliated parties on a competitive basis (taking intoaccount the market factors in effect on the date any relevant contracts werenegotiated) in comparable office buildings in the greater Route 128/Route 2office market;

(x)            Principal,interest or other financing charges (including points and fees) on debt securedby any mortgages or deeds of trust;

(xi)           Landlord’sgeneral corporate overhead and general administrative expenses unrelated to theProperty;

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(xii)          Thecost of any work required in order to rectify design and/or constructiondefects and bring the Building into compliance with building and safety coderequirements applicable to the Building at the time of its construction;

(xiii)         Advertisingand promotional expenditures for leasing space at the Property;

(xiv)        Costsfor purchasing paintings, sculpture, and other objects of “fine art” that wouldbe considered unusually or unreasonably expensive in comparison with that foundin other first-class suburban office parks and buildings in the Route 2/Route128 office market (provided, however, that the cost of customary and reasonableartwork, wall hangings and decorations, and the reasonable costs of installing,protecting, and maintaining any such items of artwork, may be included in “OperatingExpenses”);

(xv)         Thecosts and expenses incurred by Landlord in operating any retail stores, hotelsor similar amenities in the Building;

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

(xvii)       Rentalunder any ground lease or underlying lease;

(xviii)      The cost of abating, removing,remediating, or cleaning up any unlawful levels of asbestos or other HazardousMaterials, except that Operating Expenses may include the costs attributable tothose actions taken by Landlord to comply with any environmental requirementsin connection with the ordinary operation and maintenance of the Property; and

(xix)         Reserves.

(e)           If the cost incurred in making a capitalimprovement or replacing (as opposed to repairing) any capital equipment iseither (i) required to meet the requirements of any applicable laws, codes,ordinances or regulations, or (ii) reasonably deemed by Landlord to be likelyto reduce Operating Expenses or to increase the operating efficiency of theBuilding, consistent with sound property management practices and proceduresand, in either case such cost is not fully deductible as an expense in the yearincurred in accordance with generally accepted accounting principles, the costshall be amortized in accordance with generally accepted accounting principlesover the useful life of the capital improvement or equipment, as reasonablydetermined by Landlord, together with a reasonable interest factor on theunamortized cost of such item. In no event shall the expiration or earliertermination of the Term of this Lease shorten the useful life of any suchimprovement or replacement. Any costs described in clause (i) above shall notinclude any cost necessary to cure a violation of such laws, codes, ordinancesor regulations that existed on the date hereof. The cost of any capital repairsshall also be amortized according to the foregoing provisions.

### (f)            Real Property Taxesshall be paid in accordance with **Section 10**below and shall not be included in Operating Expenses.

### (g)           Tenant’s Share ofOperating Expense increases shall be payable by Tenant within twenty (20) daysafter a reasonably detailed statement of actual expenses is presented to 

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Tenant by Landlord.  At Landlord’s option, however, Landlord may,from time to time, estimate what Tenant’s Share of Operating Expense increaseswill, and the same shall be payable by Tenant in monthly installments duringeach Comparison Year of the Lease Term, on the same day as the Base Rent is duehereunder.  In the event that Tenant paysLandlord’s estimate of Tenant’s Share of Operating Expense increases, Landlordshall use its best efforts to deliver to Tenant within one hundred eighty (180)days after the expiration of each Comparison Year a reasonably detailedstatement showing Tenant’s Share of the actual Operating Expense increasesincurred during such year.  Landlord’sfailure to deliver the statement to Tenant within said period shall notconstitute Landlord’s waiver of its right to collect said amounts or otherwiseprejudice Landlord’s rights hereunder. If Tenant’s payments under this **Section4.2(f)** during said Comparison Year exceed Tenant’s Share asindicated on said statement, Tenant shall be entitled to credit the amount ofsuch overpayment against Tenant’s Share of Operating Expense increases nextfalling due (or refund within thirty (30) days the amount of such overpaymentif the Term of this Lease has ended and Tenant has no further obligation to Landlord).  If Tenant’s payments under this **Section 4.2(f)** during said Comparison Yearwere less than Tenant’s Share as indicated on said statement, Tenant shall payto Landlord the amount of the deficiency within thirty (30) days after deliveryby Landlord to Tenant of said statement. Landlord agrees that Tenant shall notbe responsible to pay any amounts due on account of Operating Expenses that arenot billed by Landlord to Tenant within two (2) years after the last day of theComparison Year in which such Expenses were incurred, or if later, within two(2) years after the date on which any third-party costs are billed to Landlord(including corrections or revisions to billings previously sent to Landlord).Landlord and Tenant shall forthwith adjust between them by cash payment anybalance determined to exist with respect to that portion of the last ComparisonYear for which Tenant is responsible for Operating Expense increases,notwithstanding that the Lease term may have terminated before the end of suchComparison Year; and this provision shall survive the expiration or earliertermination of the Lease.

                                (h)           Provided there then exists no Eventof Default on the part of Tenant hereunder, if Tenant shall so request withinsixty (60) days after receipt of any statement presented by Landlord hereunder,and upon reasonable advance written notice from Tenant, Landlord shall permitTenant, at Tenant’s expense and during normal business hours, to reviewLandlord’s ledger and supporting records relating to Operating Expenses for theComparison Year in respect of which such statement was prepared for the purposeof verifying any accounting that Landlord is required to give hereunder. Anythird party agent retained by Tenant to perform such a review shall have expertisein and familiarity with general industry practice with respect to the operationof and accounting for a first class office building and such agent’scompensation shall in no way be contingent upon or correspond to the financialimpact on Tenant resulting from the review. In making any such examination,Tenant agrees, and shall cause its auditors, accountants and any otheremployees, agents or contractors having access to such information to agree, tokeep strictly confidential (i) any and all information contained in suchrecords, and (ii) the circumstances and details pertaining to such examination,including without limitation the nature of any dispute in respect of OperatingExpenses and the nature or details of any settlement thereof; and Tenant will confirmand cause its auditors, accountants, employees, agents and contractors toconfirm such agreement in writing, if so requested by Landlord, prior to suchexamination. Landlord’s accounting shall be binding and conclusive upon Tenantunless, (i) Tenant has within such 60-day period, advised Landlord of Tenant’sdesire to review Landlord’s records, and (ii) within thirty (30) daysafter completion of such 

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review, Tenant shallnotify Landlord in writing that Tenant disputes the correctness of such accounting,specifying the particular respects in which the accounting is claimed to beincorrect. If such dispute has not been resolved by agreement within thirty(30) days after Tenant’s notice of such dispute, then Tenant may, within ten(10) days after the expiration of such 30-day period, submit the matter toarbitration in accordance with the Commercial Arbitration Rules of the AmericanArbitration Association, except that there shall be only one arbitrator, whoshall have had at least ten (10) years’ experience as a certified propertymanager in buildings similar to the Building and in the same general locationand market, and who has not at any time been employed by either party hereto orany affiliate of either party. Such arbitrator shall be reasonably agreed uponby Landlord and Tenant, in good faith, upon receipt of Tenant’s submission, andthe fees of such arbitrator shall be paid by Tenant (subject to reimbursementas provided below). If the parties are unable within ten (10) business days toagree on an acceptable arbitrator, either party may request that the thenpresident of the Real Estate Finance Association of the Greater Boston RealEstate Board designate an arbitrator meeting the qualifications herein. IfTenant shall fail to submit the matter to arbitration within such 10-dayperiod, then the accounting shall be conclusively deemed to be correct. Pendingresolution by agreement or arbitration, and as a condition to Tenant’s rightshereunder, Tenant shall continue to make any payments claimed by Landlord to bedue on account of Operating Expenses, such payment to be without prejudice toTenant’s position. Any decision by an arbitrator shall be final and binding onthe parties. If the dispute shall be resolved in Tenant’s favor, Landlord shallforthwith credit the amount overpaid by Tenant against amounts subsequentlycoming due on account of Operating Expenses (or refund within thirty (30) daysthe amount of such overpayment if the Term of this Lease has ended and Tenanthas no further obligation to Landlord), and Landlord shall reimburse Tenant forthe actual out-of-pocket third party costs incurred by Tenant in connectionwith such arbitrator. If the arbitrator shall determine that Tenant wasovercharged Operating Expenses by more than five percent (5%), Landlord shallreimburse Tenant for the actual out-of-pocket third party costs reasonably paidby Tenant in connection with such review.

(i)            The computation of Tenant’s Share ofOperating Expense increases is intended to provide a formula for the sharing ofcosts by Landlord and Tenant and will not necessarily result in thereimbursement to Landlord of the exact costs it has incurred.

**5.             SecurityDeposit**.  (a)  Tenant shall deliver to Landlord at the timeof execution of this Lease by Tenant the security deposit set forth in **Section 1.16** as security for Tenant’sfaithful performance of Tenant’s obligations hereunder. If Tenant fails to payBase Rent or other charges due hereunder, and such failure continues beyond theexpiration of applicable notice and grace periods, or otherwise defaults withrespect to any provision of this Lease, which default continues beyond theexpiration of applicable notice and grace periods, Landlord may (but shall haveno obligation to) use all or any portion of said deposit for the payment of anyBase Rent or other charge due hereunder, to pay any other sum to which Landlordmay become obligated by reason of Tenant’s default, or to compensate Landlordfor any loss or damage which Landlord may suffer thereby.  Provided that (i) Tenant has properly electedto exercise its option to extend the Term of this Lease for the Extended Termas provided in **Section 27**, and as of the firstday of the Extended there exists no Event of Default on the part of Tenantunder this Lease (nor any event or circumstance which, with the giving ofnotice or the passage of time, would constitute an Event of Default) and thisLease is then in full force and effect, then Tenant shall be entitled to reducethe face amount of the security deposit (or the letter of credit referred tobelow) as of 

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the first day of the Extended Term to an amount equalto two (2) months’ Base Rent (at the rate in effect for the first year of theExtended Term), and (unless the Landlord has then elected to keep the securitydeposit in the form of cash) Landlord shall accept a substitute letter ofcredit for such reduced amounts or an endorsement to the then existing letterof credit. If Landlord so uses or applies all or any portion of the securitydeposit hereunder, Tenant shall within twenty (20) days after written demandtherefor deposit cash with Landlord in an amount sufficient to restore saiddeposit to its full amount. Landlord shall not be required to keep saidsecurity deposit separate from its general accounts. If Tenant performs all ofTenant’s obligations hereunder, said deposit, or so much thereof as shall notthen have been applied by Landlord, shall be returned, without payment ofinterest or other amount for its use, to Tenant (or, at Landlord’s option, tothe last assignee, if any, of Tenant’s interest hereunder) within a reasonabletime after the expiration of the Term hereof, and after Tenant has vacated anddelivered the Premises as required hereunder. Landlord may retain an amountreasonably calculated to be sufficient to pay any final amount of Taxes orOperating Expenses for the Comparison Year in which the Term ends, providedthat the amount so retained shall not exceed 107% of the Tenant’s actual shareof Taxes and Operating Expenses for the immediately prior Comparison Year. Notrust relationship is created herein between Landlord and Tenant with respectto said security deposit. Tenant acknowledges that the security deposit is notan advance payment of any kind or a measure of or limit on Landlord’s damagesin the event of Tenant’s default. Any application of the security deposit byLandlord shall be without prejudice to any other right or remedy.IfLandlord conveys Landlord’s interest under this Lease, the security deposit, orany part thereof not previously applied, may be turned over by Landlord toLandlord’s grantee, and, if so turned over, Tenant agrees to look solely tosuch grantee for proper application of the security deposit in accordance withthe terms of this **Section 5**, and the return thereofin accordance herewith. The holder of a mortgage shall not be responsible toTenant for the return or application of any such deposit, whether or not itsucceeds to the position of Landlord hereunder, unless such deposit shall havebeen received in hand by such holder. Tenant hereby waives the provisions of any law which isinconsistent with this **Section 5**.

(b)           Landlord and Tenant agree that,instead of a cash security deposit, Tenant will satisfy the security depositrequirement under this Lease by delivering to Landlord, upon execution of thisLease by Tenant, a clean irrevocable standby letter of credit in favor ofLandlord in the amount of the security deposit referred to in **Section 1.16**.  Anysuch letter of credit shall be drawn on a Massachusetts or New York bank havingoffices in Boston, Massachusetts reasonably approved by Landlord from time totime, and shall be in form and substance reasonably acceptable toLandlord.  In the event of a materialadverse change in the financial position of any bank which has issued a letterof credit hereunder, Landlord reserves the right, on any scheduled expirationor renewal date of any such letter (or immediately, in the event that Landlordreasonably determines that the condition of the issuing bank is in imminentdanger of insolvency), to request that Tenant change the issuing bank toanother bank reasonably approved by Landlord. Regardless of whether Landlordshall have previously requested that Tenant change issuing banks, if the bankon which the original letter of credit or any replacement letter is drawn isdeclared insolvent or placed into conservatorship or receivership, Tenantshall, within 20 days thereafter, replace the then-outstanding letter of creditwith a like letter of credit from another bank acceptable to Landlord. In theevent of a reduction in the required amount of the security deposit pursuant toparagraph (a) hereof, Tenant shall obtain and deliver to Landlord (at Tenant’sexpense) an endorsement to the then-existing letter of credit reflecting such 

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reduction in amount or a substitution thereof. The letter of creditshall in all events be assignable by Landlord to any successor without cost orcharge to Landlord.

(c)           The letter of credit shall contain aso-called “Evergreen” clause, whereby the issuing bank agrees to automaticallyextend the term of the letter of credit from year to year throughout theInitial Term and any Extended Term, with a final expiry date no sooner thanthirty (30) days beyond the Initial Term (or any Extended Term, as the case maybe) unless, not less than sixty (60) days prior to the date on which the letterwould expire absent such extension, the issuing bank gives written notice toLandlord, by commercial overnight delivery or by certified or registered mail,of non-extension.  In the event of noticefrom the issuing bank of non-extension, Tenant shall, not later than twenty(20) business days prior to the date on which the outstanding letter shallexpire without extension, obtain a replacement letter of credit from aMassachusetts or New York bank reasonably acceptable to Landlord, under all ofthe terms and conditions set forth above. Upon the occurrence of any failure or default on the part of Tenanthereunder, Landlord may at its election draw all or a portion of the letter ofcredit, and within twenty (20) days Tenant shall cause the issuing bank toreplenish the letter of credit to the original full amount.  Upon the failure of Tenant to replace anysuch letter at least twenty (20) days prior to its expiration or to replenishany funds as herein required, and upon written certification thereof byLandlord to the issuing bank, Landlord may at its election draw the full amountor any part thereof, and either (x) hold, use and apply the proceeds thereof asif such proceeds were originally deposited with Landlord in cash under thisSection, or (y) use such proceeds (or any excess proceeds after application) toobtain from another bank a replacement letter of credit, and the cost of suchreplacement shall be deducted from the available balance and reimbursed byTenant. Tenant hereby agrees, if so requested by Landlord, to enter into aletter of credit agreement with the bank so designated by Landlord, failingwhich Landlord may do so in Tenant’s name and behalf.  The order in which Landlord applies theproceeds of the cash security deposit and the proceeds of the letter of creditshall be determined by Landlord from time to time in its sole discretion.

(d)           From and after the time at whichLandlord shall have drawn all or any portion of the proceeds of such a letterof credit, Landlord shall have the right from time to time without prejudice toany other remedy Landlord may have on account thereof, to apply such proceeds,or any part thereof, to Landlord’s damages arising from any then existing orsubsequently occurring default by Tenant hereunder.  While Landlord holds any unapplied proceeds,Landlord may commingle the same as hereinabove provided, and shall not berequired to pay interest thereon.  Therethen existing no Event of Default by Tenant hereunder (nor any event orcircumstance which, with the giving of notice or the passage of time, or both,would constitute an Event of Default), at the expiration of the Term of thisLease and delivery of the Premises to Landlord in accordance herewith andpayment of all amounts then due and coming due, Landlord shall return to Tenantthe proceeds thereof (or, if not drawn upon, any letter of credit), or so muchthereof as shall not have theretofore been applied or returned in accordancewith the terms of this Section, within a reasonable time after the expirationof the Term hereof, and after Tenant has vacated and delivered the Premises asrequired hereunder. Landlord may retain an amount (to be in the form of aletter of credit or cash, at Tenant’s election) reasonably calculated byLandlord (taking into account information then available for prior years) to besufficient to pay any final amount of Taxes or Operating Expenses for theComparison Year in

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which the Termends, provided that the amount so retained shall not exceed 107% of the Tenant’sactual share of Taxes and Operating Expenses for the immediately priorComparison Year.  If Landlord conveysLandlord’s interest under this Lease, the proceeds (or, if not drawn upon, anyletter of credit), or any part thereof not previously applied, may be turnedover or endorsed by Landlord to Landlord’s grantee, and, if actually turnedover, Tenant agrees to look solely to such grantee for proper application ofthe proceeds in accordance with the terms of this Section, and the returnthereof in accordance herewith.  Theholder of a mortgage shall not be responsible to Tenant for the return of anyletter of credit or application of any such proceeds, whether or not itsucceeds to the position of Landlord hereunder, unless such proceeds or letterof credit shall have actually been received by such holder.

# **6.             PermittedUse.**

**                6.1          Permitted Use**.  The Premises shall be used and occupied onlyfor the Permitted Use set forth in **Section 1.9** and for no other purpose.  If **Section 1.9** gives Tenant the right to use thePremises for general office use, by way of example and not limitation, generaloffice use shall not include medical or dental office use or any similar use,offices of a governmental agency or authority, clinic or laboratory use,classroom use, or any other use not characterized by applicable zoning and landuse restrictions as general office use, or any use which would require Landlordor Tenant to obtain a conditional use permit, special permit or variance fromany federal, state or local authority. Notwithstanding any Permitted Use setforth in **Section 1.9**,Tenant shall not use the Premises for any purpose that would violate theBuilding’s certificate of occupancy, any conditional use permit, special permitor variance applicable to the Property or violate any covenants, conditions orother restrictions applicable to the Building or the Property.  No exclusive use has been granted to Tenanthereunder.

                **6.2          Compliance with Law**.  Except as otherwise set forth below, Tenantshall, at Tenant’s sole expense, promptly comply with all applicable laws andordinances, governmental rules, regulations, and orders, certificates ofoccupancy, conditional use or other permits, variances, covenants andrestrictions of record, the reasonable recommendations of Landlord’s engineersor other consultants, and all requirements of any fire insurance underwriters,rating bureaus or government agencies, now in effect or which may hereaftercome into effect, whether or not they reflect a change in policy from that nowexisting, during the Term or any part of the Term hereof, relating in anymanner to the Premises and the occupation and use by Tenant of the Premises (*i.e.*, a use giving rise to legal or other requirements otherthan those applicable to commercial business offices generally).  Except as otherwise set forth below, Tenantshall, at Tenant’s sole expense, comply with those requirements of theAmericans With Disabilities Act that relate to the Premises or to Tenant’sspecific use of the Premises (or that apply by reason of any work performed inthe Premises by Tenant or the special needs of any employee, agent, contractoror invitee of Tenant), and with all federal, state and local laws andregulations governing occupational safety and health.  Tenant shall conduct its business and use thePremises in a lawful manner and shall not use or permit the use of the Premisesor the Common Areas in any manner that will tend to create waste or a nuisanceor shall tend to disturb other occupants of the Building.  Tenant shall obtain, at its sole expense, anypermit or other governmental authorization required to operate its businessfrom the Premises. Landlord shall not be liable for the failure of any othertenant or person to abide by the requirements of this Section 6 or to otherwisecomply with applicable laws and regulations and, to the extent permitted bylaw, 

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Tenant shall not be excused from the performance ofits obligations under this Lease due to such a failure. Notwithstanding any ofthe foregoing to the contrary, Tenantshall not be required to make any alterations, modifications, renovations,additions or improvements to the Premises that are mandated by such laws,regulations or insurance requirements for all buildings of the nature of theBuilding generally, except to the extent that such requirements would not havebeen applicable (or that such work would not have been required) but for anyact, omission of, or special requirements of, Tenant or its agents, employees,contractors or invitees as aforesaid. Such alterations, modifications,renovations, additions or improvements shall be Landlord’s responsibility atLandlord’s cost and expense (provided that the same may be included inOperating Expenses). Furthermore,Landlord shall be responsible for the cost of correcting or changing any systemor structural element of the Property, including the Premises, the need forwhich arises solely from a violation of any governmental law orregulation, if such violation existed on the date of this Lease, as determinedby written admission, stipulation, final judgment, or arbitration award.

                **6.3          Condition of Premises****.** Tenant hereby accepts the Premises and the Building intheir condition existing as of the date this Lease is executed by Landlord andTenant, subject to all applicable federal, state and local laws, ordinances,regulations and permits governing the use of the Premises, the Building’scertificate of occupancy, any applicable permits, approvals or variances, andany easements, covenants or restrictions affecting the use of the Premises orthe Property.  Tenant acknowledges thatit has satisfied itself by its own independent investigation that the Premisesand the Property are suitable for its intended use, and that neither Landlordnor Landlord’s agents has made any representation or warranty as to the presentor future suitability of the Premises, or the Building or the Property for theconduct of Tenant’s business.

# **7.             Maintenance,Repairs and Alterations.**

                **7.1          Landlord’sObligations.**  (a) Landlord shall keep the Building and Common Areas (including the parkingareas, walkways, driveways, landscaping and exterior lighting, structures,floors, subfloors, slabs, glass, ceilings, common or party walls, as well asthe roof and exterior of the Building, and the plumbing, heating, lighting andother building standard electrical equipment, ventilating equipment, airconditioning equipment, and the elevators or escalators and life safetysystems, but excluding the interior of the Premises and space leased to otheroccupants of the Building) in good condition and repair.  If Tenant becomes aware that plumbing, pipes,electrical wiring, or HVAC ducts or vents within the Premises (that are notpart of any separate system or equipment installed by or for Tenant) are inneed of repair, Tenant shall notify Landlord promptly upon becoming aware ofthe same, and Landlord shall cause the repairs to be completed within areasonable time and the cost thereof shall be included in OperatingExpenses.  Except as provided in **Section 9.3**, there shall be no abatement of rent orliability to Tenant on account of any injury or interference with Tenant’sbusiness with respect to any improvements, alterations or repairs made byLandlord to the Property or any part thereof. To the extent permitted by law,and except as expressly provided in paragraph (b) below, Tenant expresslywaives the benefits of any statute now or hereafter in effect which wouldotherwise afford Tenant the right to make repairs at Landlord’s expense or toterminate this Lease because of Landlord’s failure to keep the Property in goodorder, condition and repair.  Landlordshall never be liable for any failure to make repairs which Landlord hasundertaken to make under the provisions of this **Section 7.1**or elsewhere in this Lease, unless Tenant has given notice to 

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Landlord of the need to make such repairs, andLandlord has failed to commence to make such repairs within thirty (30) daysafter receipt of suchnotice (provided that, in the case of any failure posing an imminent threat toTenant’s property or to the safety of occupants, Tenant shall so adviseLandlord and such 30-day period will be shortened to that which is commerciallyreasonable under the particular circumstances), or fails thereafter to proceedwith reasonable diligence to complete such repairs.

(b)  If (i) Landlord fails to make any repair tothe Premises after receipt of notice of the need therefor and within the timeperiod described in paragraph (a) above, and (ii) as a result of such failurethere is interference with Tenant’s ability to use the Premises for thereasonable conduct of Tenant’s business, and (iii) such failure to repairinvolves only an area within the Premises and does not involve the structure ofthe Building or any of the electrical, mechanical or plumbing systems in theBuilding that serve areas other than the Premises, then Tenant may giveLandlord a second notice of such failure and stating that Tenant intends tocure such failure. A copy of such notice shall be delivered to Landlord’smanaging agent (in addition to any other parties required hereunder), and theenvelope in which any such notice or copy is delivered shall be markedin prominent lettering “NOTICE OF FAILURE — IMMEDIATE RESPONSE REQUIRED.” If Landlord shall fail to advise Tenantwithin five (5) additional business days after receipt of such notice thatLandlord has commenced to restore such services or utilities, then Tenant may(as its sole remedy) commence and thereafter diligently pursue the same tocompletion (provided that, in the case of any failure posing an imminent threatto Tenant’s property or to the safety of occupants, Tenant shall so adviseLandlord and Tenant shall not be required to wait for such additional 5-dayperiod before commencing repairs). Tenant shall undertake any such work usingqualified contractors and suppliers, and in complete accordance with allapplicable laws, codes and ordinances. Once Tenant commences such restoration,Tenant shall not discontinue or abandon the same without Landlord’s consent,which shall not be unreasonably withheld. Landlord shall reimburse Tenant forthe actual and reasonable out-of-pocket cost to Tenant of completing suchrestoration, within thirty (30) days after receipt from Tenant of invoicesevidencing the same. Tenant shall in no event have the right to deduct oroffset any such amounts from payments of rent, additional rent or any otheramount payable by Tenant under this Lease.

## **7.2          Tenant’sObligations.**

(a)           Subject to Landlord’s maintenance andrepair obligations set forth in **Section 7.1**,and to the requirements of **Section 7.3**,Tenant shall be responsible for keeping the Premises in good condition andrepair, at Tenant’s sole expense.  By wayof example, and not limitation, Tenant shall be responsible, at Tenant’s soleexpense, for repairing and/or replacing carpet, marble, tile or other flooring,paint, wall coverings, corridor and interior doors and door hardware, telephoneand computer equipment, interior glass, window treatments, ceiling tiles,shelving, cabinets, millwork and other tenant improvements made by or forTenant.  In addition, Tenant shall beresponsible for the installation, maintenance and repair of all of Tenant’srequired telephone, computer, and related cabling from the telephone terminalroom on the floor on which the Premises is located to and throughout the Premises,and Tenant shall be responsible for any loss, cost, damage, liability andexpense (including without limitation reasonable attorneys’ fees) arising outof or related to the installation, maintenance, repair and replacement of suchcabling.  If Tenant fails to keep thePremises in good condition and repair, Landlord may,

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but shall not beobligated to, make any necessary repairs. If Landlord makes such repairs, Landlord may bill Tenant for the cost ofthe repairs as additional rent, and said additional rent shall be payable byTenant within thirty (30) days after receipt of Landlord’s invoice therefor.

(b)           On the last day of the Term hereof,or on any sooner termination, Tenant shall surrender the Premises, togetherwith any Alterations made by Tenant in accordance with this Lease and whichTenant is not obligated to remove pursuant to **Section 7.3**,to Landlord in the condition in which Tenant is required to keep the Premisespursuant to **Section 7.2(a)**,ordinary wear and tear and damage by fire or other casualty excepted, clean andfree of debris and Tenant’s personal property. Tenant shall repair any damage to the Premises occasioned by theinstallation or removal of Tenant’s personal property, trade fixtures,furnishings and equipment and any Alterations that Landlord requires Tenant toremove pursuant to **Section 7.3**.  Unless Landlord otherwise requires pursuantto **Section 7.3**, Tenant shall leavethe electrical distribution systems, plumbing systems, lighting fixtures, HVACducts and vents, window treatments, wall coverings, carpets and other floorcoverings, doors and door hardware, millwork, ceilings and other tenant improvementsat the Premises and in good condition, ordinary wear and tear and damage bycasualty excepted. The parties hereby acknowledge and agree that, except withrespect to specialty items or features such as extensive glazed partitions,Tenant shall not be obligated to remove any portion of the Landlord’s Work fromPremises upon the expiration or earlier termination of the Lease.Notwithstanding the foregoing, Tenant shall not pull or otherwise remove anycomputer network cabling, telephone cabling or similar items which Tenant hasinstalled in the Premises, without Landlord’s prior written consent, whichshall not be unreasonably withheld, conditioned or delayed.  In the event of any such removal, Tenantshall repair any damage to the Premises occasioned thereby.

## **7.3         ****Alterations and Additions.**

(a)           Except as provided herein, Tenantshall not, without Landlord’s prior written consent, make any alterations,improvements, additions, utility installations or repairs (hereinaftercollectively referred to as “Alterations”) in, on or about the Premises or theProperty.  Alterations shall include, butshall not be limited to, the installation or alteration of security or fireprotection systems, communication systems, millwork, shelving, file retrievalor storage systems, carpeting or other floor covering, window and wallcoverings, electrical distribution systems, lighting fixtures, telephone orcomputer system wiring, HVAC and plumbing. Landlord agrees that its consentshall not be unreasonably withheld, conditioned or delayed as to non-structuralAlterations proposed by Tenant that do not affect the electrical, mechanical orplumbing systems of the Building or the Premises. As to Alterations for whichLandlord’s consent is given hereunder, if Tenant so requests at the time of itsrequest for consent, Landlord shall, at the time of giving such consent, adviseTenant as to whether Landlord will require the removal of such Alterations andthe restoration of the Premises and the Building to their prior condition atthe expiration or earlier termination of this Lease, such removal andrestoration to be at Tenant’s expense. As to any other Alterations, at theexpiration of the Term, Landlord may require the removal of any Alterationsinstalled by Tenant and the restoration of the Premises and the Building totheir prior condition, at Tenant’s expense. If, as a result of any Alteration made by Tenant, Landlord is obligatedto comply with the Americans With Disabilities Act or any other law orregulation and such compliance requires Landlord to make any improvement oralteration to any portion of the Building, as a condition to Landlord’sconsent, Landlord shall 

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have the right to requireTenant to pay to Landlord prior to the construction of any Alteration byTenant, the entire cost of any improvement or alteration Landlord is obligatedto complete by such law or regulation. With respect to any Alterations for which Landlord’s approval isrequired, Tenant shall reimburse Landlord for the actual and reasonableoverhead and other costs it incurs in reviewing the plans for the Alterationsand in monitoring the construction of the Alterations.  Should Landlord permit Tenant to make suchAlterations, Tenant shall use only such contractor as has been expresslyapproved by Landlord, which approval shall not be unreasonably withheld, andwith respect to any Alterations (or any group or series of related alterationscomprising one project) costing twenty-five thousand dollars ($25,000) or more,Landlord may require Tenant to provide to Landlord, at Tenant’s sole cost andexpense, a lien and completion bond in an amount equal to one and one-halftimes the estimated cost of such Alterations, to insure Landlord against anyliability for mechanic’s and materialmen’s liens and to insure completion ofthe work.  Should Tenant make anyAlterations without the prior approval of Landlord, or use a contractor notexpressly approved by Landlord, Landlord may, at any time during the term ofthis Lease, require that Tenant remove all or part of the Alterations andreturn the Premises to the condition it was in prior to the making of theAlterations.  In the event Tenant makesany Alterations, Tenant agrees to obtain or cause its contractor to obtain,prior to the commencement of any work, “builder’s all risk” insurance in anamount reasonably approved by Landlord and workers compensation insurance.

(b)           Any request for Landlord’s consent toAlterations in or about the Premises that Tenant shall desire to make shall bepresented to Landlord in written form, with plans and specifications which aresufficiently detailed to obtain a building permit (if and to the extentnecessary in light of the Alterations being proposed).  If Landlord consents to an Alteration, theconsent shall be deemed conditioned upon Tenant acquiring a building permit (ifnecessary) and any other licenses, permits, approvals or authorizationsrequired therefor from the applicable governmental agencies, furnishing copiesthereof to Landlord prior to the commencement of the work, and compliance byTenant with all conditions of said permits, licenses, approvals andauthorizations in a prompt and expeditious manner. Tenant shall provideLandlord with as-built plans and specifications for any Alterations made to thePremises.

(c)           Tenant shall pay, when due, allclaims for labor or materials furnished or alleged to have been furnished to orfor Tenant at or for use in the Premises, which claims are or may be secured byany mechanic’s or materialmen’s lien against the Premises or the Building, or anyinterest therein.  If Tenant shall, ingood faith, contest the validity of any such lien, Tenant shall furnish toLandlord a surety bond satisfactory to Landlord in an amount equal to not lessthan one and one half (11⁄2) times the amount of such contested lien claimindemnifying Landlord against liability arising out of such lien or claim.  Such bond shall be sufficient in form andamount to free the Property from the effect of such lien.  In addition, Landlord may require Tenant topay Landlord’s reasonable attorneys’ fees and costs in participating in suchaction.

(d)           Tenant shall give Landlord not lessthan ten (10) days’ advance written notice prior to the commencement of anywork in the Premises by Tenant, and Landlord shall have the right to post noticesof non-responsibility in or on the Premises or the Property.

(e)           All Alterations(whether or not such Alterations constitute trade fixtures of Tenant) which maybe made to the Premises by Tenant shall be paid for by Tenant, at Tenant’s 

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sole expense, and shallbe made and done in a good and workmanlike manner and with new materialsreasonably satisfactory to Landlord, and such Alterations shall be the propertyof Landlord and remain upon and be surrendered with the Premises at theexpiration of the Lease Term, unless Landlord requires their removal pursuantto **Section 7.3(a)**. Tenant’spersonal property and equipment, other than that which is affixed to thePremises so that it cannot be removed without material damage to the Premisesor the Property, shall remain the property of Tenant and may be removed byTenant subject to the provisions of **Section7.2(b).**

                **7.4          Failure of Tenant to Remove Property.**  If this Lease expires or is otherwiseterminated, and Tenant fails to remove its property as required by **Section 7.2(b)**, inaddition to any other remedies available to Landlord under this Lease, andsubject to any other right or remedy Landlord may have under applicable law,Landlord may remove any property of Tenant from the Premises and store the sameelsewhere at the expense and risk of Tenant. If such property is not claimedwithin thirty (30) days, Landlord may at its option dispose of the same in anymanner Landlord in its sole discretion deems appropriate. All of Landlord’scosts and expenses of removal and storage (and other amounts owed by Tenant toLandlord) shall be paid by Tenant within thirty (30) days after Tenant’sreceipt of an invoice therefor, and any proceeds realized by Landlord may beapplied to Landlord’s costs and expenses and other amounts owed by Tenant toLandlord.

# **8.             Insurance.**

## **8.1          Insurance-Tenant.**

### (a)           Tenant shall obtainand keep in force during the Term of this Lease a commercial general liabilitypolicy of insurance with coverages reasonably acceptable to Landlord, whichshall without limitation protect Tenant and Landlord, any lender of Landlordand such other persons as Landlord may reasonably request as additionalinsureds, against claims for bodily injury, personal injury and property damagebased upon, involving or arising out of the ownership, use, occupancy ormaintenance of the Premises and all areas appurtenant thereto. Such insuranceshall be on an occurrence basis providing single limit coverage in an amountnot less than $2,000,000 per occurrence with an “Additional Insured-Managersand Landlords of Premises Endorsement” and contain the “Amendment of thePollution Exclusion” for damage caused by heat, smoke or fumes from a hostilefire.  The policy shall not contain anyintra-insured exclusions as between insured persons or organizations, but shallinclude coverage for liability assumed under this Lease (as the same may beamended or modified from time to time) as an “insured contract.”

### (b)           Tenant shall obtainand keep in force during the term of this Lease “special form” propertyinsurance with coverages acceptable to Landlord, in Landlord’s sole discretion.Said insurance shall be written on a one hundred percent (100%) replacementcost basis on Tenant’s personal property, all tenant improvements installed atthe Premises by Landlord or Tenant, Tenant’s trade fixtures and otherproperty.  Such policies shall provideprotection against any peril included within the classification “fire andextended coverage,” or “special form coverage” against vandalism and maliciousmischief, theft, sprinkler leakage, earthquake damage and flood damage.  If this Lease is terminated as the result ofa casualty in accordance with **Section 9**,the proceeds of said insurance attributable to the replacement of all tenantimprovements at the Premises shall be paid to Landlord.

###  

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### (c)           Tenant shall, at alltimes during the term hereof, maintain in effect workers’ compensationinsurance as required by applicable law and business interruption and extraexpense insurance satisfactory to Landlord.

### (d)           From time to time,upon not less than thirty (30) days prior written notice to Tenant, Landlordmay require Tenant to carry such additional insurance or higher coverageamounts as landlords of comparable buildings in the geographical area of theProperty are requiring of their tenants.

### (e)           Tenant shall havethe right to provide its required insurance coverage pursuant to blanketpolicies obtained by the Tenant.

## **8.2         ****Insurance-Landlord.**

### (c)           Landlord shallobtain and keep in force a policy of general liability insurance providingcoverage to Landlord with respect to liability arising out of the ownership,operation and management of the Property.

### (d)           Landlord shall alsoobtain and keep in force during the Term of this Lease a commerciallyreasonable policy or policies of insurance covering loss or damage to theProperty (excluding any alterations or improvements made by Tenant).  The terms and conditions of said policies andthe perils and risks covered thereby shall be determined by Landlord, from timeto time, in Landlord’s sole discretion. In addition, at Landlord’s option, Landlord shall obtain and keep inforce, during the term of this Lease, a policy of rental interruptioninsurance, with loss payable to Landlord, which insurance shall, at Landlord’soption, also cover all Operating Expenses. At Landlord’s option, Landlord may obtain insurance coverages and/orbonds related to the operation of the parking areas. In addition, Landlordshall have the right to obtain such additional insurance as is customarilycarried by prudent and sophisticated owners or operators of other comparableoffice buildings in the geographical area of the Property.  Tenant will not be named as an additionalinsured in any insurance policies carried by Landlord and shall have no rightto any proceeds therefrom.  The policiespurchased by Landlord shall contain such deductibles as Landlord may reasonablydetermine.  In addition to amountspayable by Tenant in accordance with **Section 4.2**,Tenant shall pay any increase in the property insurance premiums for theProperty over what was payable immediately prior to the increase to the extentthe increase is specified by Landlord’s insurance carrier as being caused bythe nature of Tenant’s occupancy or any act or omission of Tenant.

**8.3          InsurancePolicies****.**  Tenant shall deliver to Landlord certificatesevidencing the issuance and validity of the insurance policies required under **Section 8.1** not later than fifteen (15) days prior to theCommencement Date of this Lease, and Landlord shall have the right, uponrequest, to receive the actual policies in order to verify that the terms andconditions of said policies conform to the requirements hereof.  Tenant’s insurance policies shall not becancelable or subject to reduction of coverage or other modification exceptafter thirty (30) days prior written notice to Landlord.  Tenant shall, at least thirty (30) days priorto the expiration of such policies, furnish Landlord with certificatesevidencing renewal thereof.  Tenant’sinsurance policies shall be issued by insurance companies authorized to dobusiness in the state in which the Property is located, and said companiesshall maintain during the policy term a “General Policyholder’s Rating” of atleast A-X (or such other rating as may be required by any lender

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having a lien on the Property) as set forth in themost recent edition of “Best Insurance Reports.”  All insurance obtained by Tenant shall beprimary to and not contributory with any similar insurance carried by Landlord,whose insurance shall be considered excess insurance only.  Landlord, and at Landlord’s option, theholder of any mortgage or deed of trust encumbering the Building and any personor entity managing the Building on behalf of Landlord, shall be named as anadditional insured on all insurance policies Tenant is obligated to obtain by **Section 8.1** above. Tenant’s insurance policies shall not include deductibles in excess ofFive Thousand Dollars ($5,000).

**8.4          Waiverof Claims and Subrogation****.**  Landlordwaives any and all rights of recovery against Tenant for or arising out ofdamage to, or destruction of, the Property. Landlord’s waiver shall not relieve Tenant from liability under **Section 21** below except to the extentLandlord’s insurance company actually satisfies Tenant’s obligations under **Section 21** in accordance with therequirements of **Section 21**. Tenantwaives any and all rights of recovery against Landlord, Landlord’s employees,agents and contractors for liability or damages if such liability or damage iscovered by Tenant’s insurance policies then in force or the insurance policiesTenant is required to obtain by **Section 8.1**(whether or not the insurance Tenant is required to obtain by **Section 8.1** is then in force and effect),whichever is broader. Tenant’s waiver shall not relieve Landlord from liabilityunder **Section 21** below except tothe extent Tenant’s insurance company actually pays or reimburses Tenant forTenant’s loss. Each party shall cause the insurance policies it obtains inaccordance with this Section 8 to provide that the insurance company consentsto the foregoing waivers by the parties and that it waives all right ofrecovery by subrogation against the other party in connection with anyliability or damage covered by any policy or policies covering the insuredparty.

**8.5          Coverage.**  Landlord makes no representation to Tenantthat the limits or forms of coverage specified above or approved by Landlordare adequate to insure Tenant’s property or Tenant’s obligations under thisLease, and the limits of any insurance carried by Tenant shall not limit Tenant’sobligations or liability under any indemnity provision included in this Leaseor under any other provision of this Lease.

# **9.             Damage orDestruction.**

**9.1          Effect of Damage or Destruction.**   (a) If all or part of theBuilding is damaged by fire, earthquake, flood, explosion, the elements, riot,the release or existence of Hazardous Substances (as defined below) or by anyother cause whatsoever (hereinafter collectively referred to as “damages”), butthe damages are not material (as defined in **Section 9.2**below), Landlord shall promptly and diligently pursue appropriate insuranceclaims and settlements, and following receipt of proceeds from appropriateinsurance policies, Landlord shall diligently commence and complete repair ofthe damage to the Building within a commercially reasonable time, and thisLease shall remain in full force and effect. If all or part of the Building isdestroyed or materially damaged (as defined in Section 9.2 below), Landlordshall have the right, in its sole and complete discretion, to repair or torebuild the Building or to terminate this Lease. Landlord shall within sixty(60) days after the occurrence of such material damage or destruction notifyTenant (a “**Landlord Election Notice**”) inwriting of Landlord’s intention to repair or to rebuild or to

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terminate thisLease.  Except for the rent abatementreferred to in Section 7.3, Tenant shall in no event be entitled tocompensation or damages on account of annoyance or inconvenience in making anyrepairs, or on account of construction, or on account of Landlord’s election toterminate this Lease.

(b)           Notwithstanding the foregoing, if thePremises are destroyed or materially damaged as aforesaid and Landlord in goodfaith determines that the Premises cannot be rebuilt or repaired within twohundred seventy (270) days from the timethat repair work would commence, without payment of overtime or otherpremiums, and such damage will render the entire Premises Untenantable duringsaid two hundred seventy (270) day period, Landlord shall in the Landlord’sElection Notice advise Tenant thereof, and Tenant shall thereafter have aperiod of fifteen (15) days within which Tenant may elect to terminate thisLease, such termination to be effective upon written notice to Landlord. If Landlorddoes not give a Landlord’s Election Notice within the 60-day period referred toin paragraph (a) above,then Tenant may give Landlord a notice of such failure, which shall clearlystate that failure to give the Landlord’s Election Notice may result in atermination of this Lease.. A copy of such notice from Tenant shall bedelivered to Landlord’s managing agent (in addition to any other partiesrequired hereunder), and the envelope in which any such notice or copy isdelivered shall be marked in prominent lettering “NOTICE OF FAILURE —IMMEDIATE RESPONSE REQUIRED.” If theLandlord does not give a Landlord’s Election Notice within ten (10) days afterthe receipt of Tenant’s notice, then Tenant shall thereafter have aperiod of fifteen (15) days within which Tenant may elect to terminate thisLease, such termination to be effective upon written notice to Landlord.  As used in this Article 9, the term “Premises”shall mean the Premises itself and such portions of the common areas andfacilities of the Building as are necessary to provide reasonably safe accessto the Premises and to provide those building services, such as parkingfacilities, utilities, elevator and HVAC service, that Landlord is required toprovide hereunder. In addition, if Tenant does not so elect to terminate thisLease within such 15-day period, and if Landlord’s restoration work in thePremises is not substantially completed within two hundred seventy (270) daysafter the date of the occurrence of the damage or destruction (which 270-dayperiod shall be extended (i) for such time as Landlord is prevented or delayedby acts or omissions of Tenant, or (ii) for such time as Landlord is preventedor delayed by any Force Majeure, then Tenant may again elect to terminate thisLease, any such termination to be effective on the forty-fifth (45th) day after written notice to Landlord ofsuch termination (unless restoration work to the Premises is substantiallycompleted within such 45-day period).

(c)           Subject to **Section 9.3**below, if Landlord or Tenant terminates this Lease in accordance with this **Section 9.1**, Tenant shall continue to pay all Base Rent,Operating Expense increases and other amounts due hereunder which arise priorto the date of termination.

**9.2          Definitionof Material Damage****.**  Damage to the Building or the Premises shallbe deemed material if, in Landlord’s reasonable judgment, the uninsured cost ofrepairing the damage will exceed Twenty-Five Thousand Dollars ($25,000).  If insurance proceeds are available toLandlord in an amount which is sufficient to pay the entire cost of repairingall of the damage to the Premises or the Building (subject to any applicabledeductible), the damage shall be deemed material if the cost of repairing thedamage exceeds One Hundred Thousand Dollars ($100,000).  Damage to the Premises or the Building shallalso be deemed material if (a) the

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Premises or the Building, as the case may be, cannotbe rebuilt or repaired to substantially the same condition it was in prior tothe damage due to laws or regulations in effect at the time the repairs will bemade, (b) the holder of any mortgage or deed of trust encumbering the Propertyrequires that insurance proceeds available to repair the damage in excess ofTwenty-Five Thousand Dollars ($25,000) be applied to the repayment of theindebtedness secured by the mortgage or the deed of trust, or (c) the damageoccurs during the last twelve (12) months of the Lease Term.

**9.3          Abatementof Rent****.**  If Landlord elects to repair damage to theProperty and all or part of the Premises will be unusable or inaccessible toTenant in the ordinary conduct of its business until the damage is repaired,Tenant’s Base Rent and Tenant’s Share of Operating Expense increases and Tenant’sShare of Real Property Taxes shall be abated until the repairs are completed inproportion to the amount of the Premises which is unusable or inaccessible toTenant in the ordinary conduct of its business. Notwithstanding the foregoing, there shall be no abatement of Base Rent,Tenant’s Share of Operating Expense increases or Tenant’s Share of RealProperty Taxes by reason of any portion of the Premises being unusable orinaccessible for a period equal to three (3) consecutive business days or less.

**9.4          Tenant’sActs.**  If such damageor destruction occurs as a result of the negligence or the intentional acts ofTenant or Tenant’s employees, agents, contractors or invitees, and the proceedsof insurance which are actually received by Landlord or its mortgagee (or, ifLandlord was not carrying the insurance that Landlord is required to carryunder this Lease, then the proceeds that would have been received if Landlordwere carrying all such insurance)**are notsufficient to pay for the repair of all of the damage, Tenant shall pay, atTenant’s sole cost and expense, to Landlord within thirty (30) days afterwritten demand, the difference between the cost of repairing the damage and theinsurance proceeds received by Landlord.

**9.5          Tenant’sProperty.**  As morefully set forth in **Section 22**,Landlord shall not be liable to Tenant or its employees, agents, contractors,invitees or customers for loss or damage to merchandise, tenant improvements,fixtures, automobiles, furniture, equipment, computers, files or other property(hereinafter in this **Section 9.5**collectively “Tenant’s Property”) located at the Property, unless damaged dueto the gross negligence or willful misconduct of Landlord, its employees oragents.  Tenant shall repair or replaceall of Tenant’s property at Tenant’s sole cost and expense.  Tenant acknowledges that it is Tenant’s soleresponsibility to obtain adequate insurance coverage to compensate Tenant fordamage to Tenant’s property.

**9.6          Waiver.**  Landlord and Tenant hereby waive theprovisions of any present or future statutes which relate to the termination ofleases when leased property is damaged or destroyed and agree that such eventshall be governed by the terms of this Lease.

# **10.          Real andPersonal Property Taxes.**

**10.1        Paymentof Taxes.**  Tenant shall pay to Landlord during the Termof this Lease, in addition to Base Rent and Tenant’s Share of Operating Expenseincreases, Tenant’s Share of the amount by which all “Real Property Taxes” (asdefined in **Section 10.2** below) for eachComparison Year exceeds the amount of all Real Property Taxes for the Tax BaseYear.  Tenant’s Share of Real PropertyTax increases shall be payable by Tenant at the same time, in

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the same manner and under the same terms andconditions as Tenant pays Tenant’s Share of Operating Expense increases asprovided in **Section 4.2(f)** of this Lease.  Except as expressly provided in **Section 10.4** below, if the Real Property Taxes incurredduring any Comparison Year are less than the Real Property Taxes incurredduring the Tax Base Year, Tenant shall not be entitled to receive any credit,offset, reduction or benefit as a result of said occurrence.

**10.2        Definitionof “Real Property Tax”.** As used herein, the term “**Real Property Taxes**”shall mean (i) all taxes, assessments (special or otherwise), levies, feesand all other government levies, exactions and charges of every kind andnature, general and special, ordinary and extraordinary, foreseen andunforeseen, which are, at any time prior to or during the Term, imposed orlevied upon or assessed against the Property or any portion thereof, or againstany Base Rent, additional rent or other rent of any kind or nature payable toLandlord by anyone on account of the ownership, leasing or operation of theProperty, or which arise on account of or in respect of the ownership,development, leasing, operation or use of the Property or any portion thereof;(ii) all gross receipts taxes or similar taxes imposed or levied upon,assessed against or measured by any Base Rent, additional rent or other rent ofany  kind or nature or other sum payableto Landlord by anyone on account of the ownership, development, leasing,operation, or use of the Property or any portion thereof; (iii) all valueadded, use and similar taxes at any time levied, assessed or payable on accountof the ownership, development, leasing, operation, or use of the Property orany portion thereof; and (iv) reasonable expenses of any proceeding forabatement of any of the foregoing items included in Real Property Taxes,provided Landlord prevails in such abatement proceeding; but the amount ofspecial taxes or special assessments included in Real Property Taxes shall belimited to the amount of the installment (plus any interest, other than penaltyinterest, payable thereon) of such special tax or special assessment requiredto be paid during the year in respect of which such Real Property Taxes arebeing determined. There shall be excluded from Real Property Taxes all income,estate, succession, inheritance and transfer taxes of Landlord or any taxdefined as an Operating Expense by **Section 4.2(c)**;provided, however, that if at any time during the Term the present system of advalorem taxation of real property shall be changed so that a capital levy,franchise, income, profits, sales, rental, use and occupancy, or other tax orcharge shall in whole or in part be substituted for, or added to, such advalorem tax and levied against, or be payable by, Landlord with respect to theProperty or any portion thereof, such tax or charge shall be included in theterm “**Real Property Taxes**” for the purposesof this Lease.

**10.3        PersonalProperty Taxes.**  Tenantshall pay prior to delinquency all taxes assessed against and levied upon tradefixtures, furnishings, equipment and all other personal property of Tenantcontained in the Premises or related to Tenant’s use of the Premises.  If any of Tenant’s personal property shall beassessed with Landlord’s real or personal property, Tenant shall pay toLandlord the taxes attributable to Tenant within thirty (30) days after receiptof a written statement from Landlord setting forth the taxes applicable toTenant’s property.

**10.4        Reassessments.**  From time to time Landlord may challenge theassessed value of the Building and Land as determined by applicable taxingauthorities and/or Landlord may attempt to cause the Real Property Taxes to bereduced on other grounds.  If Landlord issuccessful in causing the Real Property Taxes to be reduced or in obtaining arefund, rebate, credit or similar benefit (hereinafter in this **Section 10.4** collectively referred to as a “**reduction**”), Landlord shall, afterdeducting the costs reasonably incurred by Landlord in

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causing the reduction to be made, credit thereduction(s) to Real Property Taxes for the calendar year to which a reductionapplies and to recalculate the Real Property Taxes owed by Tenant for yearsafter the year in which the reduction applies based on the reduced RealProperty Taxes (if a reduction applies to Tenant’s Tax Base Year, the Tax BaseYear Real Property Taxes shall be reduced by the amount of the reduction andTenant’s Share of Real Property Tax increases shall be recalculated for allComparison Years following the year of the reduction based on the lower TaxBase Year amount).  After deductingLandlord’s reasonably incurred expenses as hereinabove provided, Landlordshall, within thirty (30) days after Landlord actually receives net proceedsthereof, refund to Tenant Tenant’s Share of the reduction of Real PropertyTaxes (exclusive of interest) for the years to which any reductions apply.

# **11.          Utilities.**

**11.1        ServicesProvided by Landlord.**  Subject to all governmental rules,regulations and guidelines applicable thereto, Landlord shall use commerciallyreasonable efforts to provide:

a.             heating, ventilation and airconditioning to the Common Areas and the Premises during the times described in**Section 11.4**, and sufficient tomaintain reasonably comfortable temperature and conditions;

b.             electricity within the Premises at alevel sufficient to reasonably accommodate normal business office uses with theimprovements to be made by Landlord as part of Landlord’s Work as reflected onthe Plans approved by Landlord, and in the Common Areas, and the replacement oflight bulbs and/or fluorescent tubes and ballasts for standard overheadfixtures in the Common Areas (Landlord will replace light bulbs and/orfluorescent tubes and ballasts for standard overhead fixtures in the Premisesat Tenant’s expense);

c.             domestic water supply to thePremises (at the temperature and pressure provided by the applicable utilitycompany), and hot and cold water to the Common Areas for reasonable and normaldrinking and lavatory use;

d.             building standard janitorialservices (including window cleaning), substantially consistent with thestandards set forth in Exhibit A-3;

e.             maintenance of the Common Areas, as described in Section7.1, including reasonable landscaping and snow and ice removal;

f.              at least one (1) passenger elevator during normalBuilding hours; and

g.             access to the Premises, including parking areas,twenty-four hours per day, three hundred sixty-five days per year, subject toreasonable security systems and precautions from time to time in effect, andsubject always to emergency conditions.

**11.2        IntentionallyOmitted.**

**11.3        ServicesExclusive to Tenant.**  Tenant shall pay directly to the providerthereof, on or before the date when due and in addition to payments of BaseRent and other additional

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rent provided for herein,the costs of all electricity used in the Premises (including, but not limitedto, for HVAC), water, gas, heat, heat pump fuel, telephone and any otherutilities and services supplied and/or metered exclusively to the Premises orto Tenant, together with any taxes thereon. Tenant acknowledges that, as of thedate hereof, electricity provided to the Premises is measured by a submeter,and that natural gas, water and sewer service are all metered to theBuilding.  If Landlord measureselectricity or any other utility usage in the Premises by a submeter, Tenantshall pay the costs as shown on such submeter to Landlord, as additional rent,at Landlord’s actual cost for such services, without mark-up, within thirty(30) days after receipt of an invoice therefor. If any such services are notseparately metered or submetered to the Premises, Tenant shall pay Tenant’sShare thereof as an Operating Expense.

**11.4        Hoursof Service.**  Buildingservices described in **Section 11.1(a)-(c)**and **(e)-(f)**shall be provided Monday throughFriday from 8:00 a.m. to 6:00 p.m. and Saturdays from 9:00 a.m. to 1:00p.m.  Janitorial services described in **Section 11.1(d)** shall be provided Monday throughFriday.  Other Building services, if any,shall not be provided at other times or on nationally recognized holidays.Nationally recognized holidays are: New Years Day, Martin Luther King Jr. Day,Presidents’ Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Dayand Christmas Day (and the following day when any such day occurs on Sunday)and such other days that may hereafter be designated as national holidays.

**11.5        ExcessUsage by Tenant.** Notwithstanding the Permitted Use set forthin **Section 1.9**, Tenant shall not useBuilding utilities or services in excess of those used by the average officebuilding tenant using its premises for ordinary office use; provided, however,that the parties hereby acknowledge and agree that Tenant may use the Buildingutilities or services for the Permitted Use, as contemplated by the Layout Planattached hereto as Exhibit A, and Landlord agrees that the HVAC capacityof the Building and the Premises upon completion of the Landlord’s Work inaccordance with the Plans will be adequate for normal office use in thePremises as reflected on the Plans, given an occupancy not exceeding one personper 125 square feet of usable area in the Premises.  Tenant shall not install at the Premisesoffice machines, lighting fixtures or other equipment which will generate aboveaverage heat, noise or vibration at the Premises or which will adversely affectthe Building’s HVAC or other systems. If the Premises include or if Tenanthereafter installs any computer, telecommunications or other so-called “specialpurpose” room or area, other than the “computer room” currently identified onthe Layout Plan attached hereto as Exhibit A, Tenant shall at its solecost and expense, provide such supplemental heating, ventilation and airconditioning equipment and systems (the **“Supplemental Systems”**)as may be required to keep such room or area at the proper temperature andenvironmental conditions. All Supplemental Systems shall be subject to Landlord’sprior review and consent and other conditions in **Article 7**,and if approved, shall be maintained, repaired and replaced as necessary byTenant, so as not to impose any additional load on the Building systems. Tenantshall pay, as additional rent, the cost of electricity, water and othermaterials necessary for the proper operation of Supplemental Systems, as wellas any costs or expenses incurred by Landlord to provide additional capacityfor Building systems to accommodate or provide the same. Without limiting theforegoing, if Tenant does use Building utilities or services in excess of thoseused by the average office building tenant, Landlord shall have the right (butno obligation), in addition to any other rights or remedies it may have underthis Lease, to (a) at Tenant’s expense, install additional equipment and/orseparate metering devices at the Premises, and to charge Tenant therefor andfor such usage, (b) require Tenant to

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install Supplemental Systems as provided above, (c)require Tenant to pay to Landlord all costs, expenses and damages incurred byLandlord as a result of such usage, and/or (d) require Tenant to stop usingexcess utilities or services.

**11.6        Interruptions.** (a)  Except as expressly provided below, Tenant agreesthat Landlord shall not be liable to Tenant for its failure to furnish gas,electricity, telephone service, water, HVAC or any other utility services orbuilding services when such failure is occasioned, in whole or in part, byrepairs, replacements, or improvements, by any strike, lockout or other labortrouble, by inability to secure electricity, gas, water, telephone service orother utility at the Building, by any accident, casualty or event arising fromany cause whatsoever, including the negligence of Landlord, its employees,agents and contractors, by act, negligence or default of Tenant or any otherperson or entity, or by any other cause and, to the extent permitted by law,such failures shall never be deemed to constitute an eviction or disturbance ofTenant’s use and possession of the Premises or relieve Tenant from theobligation of paying rent or performing any of its obligations under thisLease.  Furthermore, Landlord shall notbe liable under any circumstances for loss of property or for injury to, orinterference with, Tenant’s business, including, without limitation, loss ofprofits, however occurring, through or in connection with or incidental to afailure to furnish any such services or utilities.  Landlord may comply with voluntary controlsor guidelines promulgated by any governmental entity relating to the use orconservation of energy, water, gas, light or electricity or the reduction ofautomobile or other emissions without creating any liability of Landlord toTenant under this Lease.

(b)           Notwithstanding the foregoing to thecontrary, if, due to any act or omission of Landlord or Landlord’s agents oremployees, Tenant is prevented from receiving essential services or utilitiesthat Landlord is obligated to perform or deliver under this Lease, and suchinterruption of essential services or utilities renders all or a materialportion of the Premises “Untenantable” (meaning that Tenant is unable to useand occupy the Premises or such portion in a reasonably safe manner for theconduct of Tenant’s business), and if such interruption resulting inUntenantability shall continue for a period of five (5) consecutive businessdays after notice thereof from Tenant to Landlord that the Premises areUntenantable as a result thereof, then Base Rent and additional rent shallabate commencing on the sixth (6th) business day after such notice (and, if lessthan all of the Premises rendered Untenantable by such interruption, suchabatement shall be pro-rated according to the area rendered Untenantable) untilsuch time as such services or utilities are restored.

(c)           Inaddition to the foregoing, if, as a result of any act or omission by Landlordas described in paragraph (b) above, the Premises are rendered Untenantable formore than sixty (60) consecutive days after written notice thereof from Tenantto Landlord, and Tenant shall actually have vacated the Premises as a result ofsuch failure, then Tenant shall have the right to terminate this Lease bygiving Landlord notice of its desire to do so, whereupon this Lease shallterminate on the fifteenth (15th) day after the giving of such notice with thesame force and effect as if such 15th day were the date originally set forth hereinas the expiration date hereof, unless within such 15-day period Landlord hasmade the necessary repairs or taken such action as may be necessary to make thePremises tenantable. The foregoing paragraph (b) and this paragraph (c) shallnot apply to any failure to perform services to the extent the same arises fromany act or omission of Tenant or its agents, contractors or employees, or fromfire or casualty, *Force Majeure* or taking orcondemnation by the power of eminent domain. Tenant’s rights under paragraph(b) and this

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paragraph (c) shall be Tenant’s sole and exclusive remediesfor any loss or damage arising from any such Untenantability arising from suchan interruption.

# **12.          Assignmentand Subletting.**

**12.1        Landlord’sConsent Required.** (a) Except as otherwise expressly providedherein, Tenant shall notvoluntarily or by operation of law assign, pledge, hypothecate, mortgage,sublet, or otherwise transfer or encumber all or any part of Tenant’s interestin this Lease or in the Premises (any of the foregoing hereinafter may bereferred to as a “**Transfer**”), orpermit any Transfer to occur, without Landlord’s prior written consent in eachcase, which shall be given or withheld according to the standards set forthbelow.  A “Transfer” requiring Landlord’sconsent hereunder shall include, without limitation, the use or occupancy ofthe Premises or any part thereof by any party other than Tenant, and thegranting of concessions, licenses and the like with respect to the Premises orany part thereof.  Landlord shall respondto Tenant’s written request for consent hereunder within thirty (30) days afterLandlord’s receipt of the written request from Tenant. If Landlord fails torespond (which means failure to approve, disapprove or request additionalinformation consistent with the requirements of this **Section 12**)to any request for Landlord’s consent hereunder within such 30-day period,Tenant may give Landlord an additional notice of such failure.  A copy of such additional notice shall bedelivered to Landlord’s managing agent (in addition to any other partiesrequired hereunder), and the envelope in which any such notice or copy isdelivered shall be marked in prominent lettering “NOTICE OF FAILURE —IMMEDIATE RESPONSE REQUIRED.” IfLandlord shall fail to respond within five (5) additional business days afterreceipt of such notice, then Landlord shall be deemed to have approved suchrequest. Any attempted Transfer without such consent shall be void and shallconstitute an Event of Default under this Lease.  Tenant’s written request for Landlord’sconsent shall include, and Landlord’s thirty (30) day response period referredto above shall not commence, unless and until Landlord has received fromTenant, all of the following information: (a) one or more of (i)financial statements for the proposed assignee or subtenant for the past two(2) years (or, if shorter, from inception of the entity) prepared in accordancewith generally accepted accounting principles, or (ii) federal tax returns forthe proposed assignee or subtenant for the past two (2) years (or, if shorter,from inception of the entity); (b) a detailed description of the business theassignee or subtenant intends to operate at the Premises; (c) the proposedeffective date of the assignment or sublease; (d) a copy of the executed termsheet or letter of intent, setting forth the material terms and conditions ofthe proposed assignment or sublease; (e) a detailed description of anyownership or commercial relationship between Tenant and the proposed assigneeor subtenant; and (f) a description of any Alterations the proposed assignee orsubtenant desires to make to the Premises.  If the obligations of the proposed assigneeor subtenant will be guaranteed by any person or entity, Tenant’s writtenrequest shall not be considered complete until the information described in (a)of the previous sentence has been provided with respect to each proposedguarantor. If Landlord will require, as a condition to its consent hereunder,that any proposed assignee of this Lease provide an acceptable guaranty of theassignee’s obligations hereunder (without in any way diminishing Tenant’songoing liability), Landlord shall so advise Tenant at the time of respondingto Tenant’s request for Landlord’s consent.

(b)           A “Transfer” shall also include: (i)if Tenant is a corporation, and Tenant’s stock is not publicly traded over arecognized securities exchange, or Tenant is a partnership, limited liability

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company, or other entity, transfer of more than fiftypercent (50%) of the voting stock of such corporation or fifty percent (50%)(or in either case, such lower percentage as would effect a change of control)of the voting interests in such partnership, limited liability company or otherentity during the Term of this Lease (whether or not in one or more transfers,but excluding bona fide transfers not entered into for the purpose of evadingthis provision and constituting further equity investment in Tenant ortransfers of not more than ten percent (10%) and not resulting in a change ofcontrol); and (ii) the dissolution, merger or liquidation of the corporation orother entity, and (iii) the involvement by Tenant or its assets in anytransaction, or series of transactions (by way of merger, sale, acquisition,financing, refinancing, transfer, leveraged buy-out or otherwise) whether ornot a formal assignment or hypothecation of this Lease or Tenant’s assetsoccurs, but only if such transaction results or will result in a reduction ofthe “Net Worth” of Tenant (as hereinafter defined), by an amount equal to orgreater than twenty-five percent (25%) of such Net Worth of Tenant as it isrepresented to Landlord at the time of the execution by Landlord of this Lease

**12.2        BusinessCombinations; Affiliate Transactions.** (a) **Section 12.1** shall not apply to, and Landlord’s priorconsent shall not be required for, any Transfer arising or resulting from theinvolvement by Tenant or its assets in any transaction, or series oftransactions (by way of merger, sale, acquisition, financing, refinancing,transfer, leveraged buy-out or otherwise), whether or not a formal assignmentor hypothecation of this Lease or Tenant’s assets occurs, unless suchtransaction or series of transactions results or will result in a reduction ofthe “Net Worth” of Tenant as hereinafter defined, by an amount equal to orgreater than twenty-five percent (25%) of such Net Worth of Tenant as it isrepresented to Landlord at the time of the execution by Landlord of this Lease,or as it exists immediately prior to said transaction or transactionsconstituting such reduction, at whichever time said Net Worth of Tenant was oris greater. “**Net Worth**” of Tenant for purposesof this **Section 12.2** shall be the net worth ofTenant (excluding any guarantors) established under generally acceptedaccounting principles consistently applied.

(b)           **Section 12.1**shall not apply to, and Landlord’s prior consent shall not be required for, anyassignment of this Lease, or a sublease of all or any portion of the Premises,by the Tenant to its wholly owned subsidiary or immediate controlling entity orits Affiliate (as hereinafter defined) (for such period of time as suchcorporation remains such a subsidiary or such a controlling entity or such anAffiliate, respectively, it being agreed that the subsequent sale or transferof stock or ownership interest resulting in a change in voting control, or anyother transaction(s) having the overall effect that such entity ceases to besuch a subsidiary or such a controlling entity or such an Affiliate,respectively, of the Tenant, shall be treated as if such sale or transfer or transaction(s)were, for all purposes, a Transfer governed by the provisions of Section 12.1),provided (and it shall be a condition of the validity of any such assignment)that such Transferee first agree directly with the Landlord to be bound by allof the obligations of the Tenant hereunder, including, without limitation, theobligation to pay the rent and other amounts provided for under this Lease, thecovenant to use the Premises only for the purposes specifically permitted underthis Lease and the covenant against further assignment, but no such assignmentor sublease shall relieve the Tenant herein named of any of its obligationshereunder, and the Tenant shall at the request of Landlord affirm in writingits ongoing primary liability therefor. As used herein, “**Affiliate**”shall mean any entity that is under common direct or indirect control withTenant.  “**Control**”shall mean ownership of fifty-one percent (51%) or more of the voting

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securities, or other ownership interests or rights ofthe controlled entity (which includes the right to elect the directors of thecorporation or the equivalent if such entity is not a corporation)

**12.3        StandardFor Approval.**  Landlord shall not unreasonably withhold,condition or delay its consent to a Transfer, provided that Tenant has compliedwith each and every requirement, term and condition of this **Section 12.** Tenant acknowledges and agrees that each requirement, term and conditionin this **Section 12** is a reasonablerequirement, term or condition, but that the terms and conditions of this **Section 12** are not an exclusive statementof the reasonable grounds on which Landlord may withhold its consent to aTransfer.  Without limiting thegenerality of the foregoing, it shall be deemed reasonable for Landlord to withholdits consent to a Transfer if any requirement, term or condition of this **Section 12** is not complied with, or: (a)the Transfer would cause Landlord to be in violation of its obligations underanother lease or agreement to which Landlord is a party; (b) a proposedassignee or subtenant has a smaller Net Worth than Tenant had on the date ofthis Lease, or, in Landlord’s sole but reasonable judgment, is less ablefinancially to pay the rents due under this Lease as and when they are due andpayable; (c) a proposed assignee’s or subtenant’s business will impose a burdenon the Property’s parking facilities, elevators, Common Areas or utilities thatis greater than the burden imposed by Tenant, in Landlord’s reasonablejudgment; (d) the terms of a proposed assignment or subletting will allow theproposed assignee (unless the Assignee is an Affiliate of Tenant) to exercise aright of renewal, right of expansion, right of first offer, right of firstrefusal or similar right held by Tenant; (e) a proposed assignee or subtenantrefuses to enter into a written agreement, satisfactory to Landlord in itsreasonable discretion, which provides that it will abide by and assume all ofthe terms and conditions of this Lease for the term of any assignment orsublease and containing such other terms and conditions as Landlord reasonablydeems necessary or appropriate; (f) the use of the Premises by the proposedassignee or subtenant will not be consistent with the Permitted Use; (g) anythen-existing guarantor of this Lease refuses to consent to the Transfer or toexecute a written agreement reaffirming the guaranty; (h) there exists at the time of the request byTenant an Event of Default on the part of Tenant under this Lease (or afailure by Tenant to make any required payment or perform any obligation, ofwhich failure Tenant has received notice and which, with the passage of time,would constitute an Event of Default),or there shall have existed more than two Events of Default during the Term ofthis Lease; (i) if requested by Landlord, the assignee or subtenant refuses tosign a non-disturbance and attornment agreement in favor of Landlord’s lenderas provided in **Section 26** of this Lease; (j)Landlord has sued or been sued by the proposed assignee or subtenant; (k) theproposed assignee or subtenant is involved in a business which in Landlord’sreasonable judgment is not in keeping with the then current standards of theBuilding; (l) if Landlord or an affiliate of Landlord has space available forlease in the Building and the proposed assignee or subtenant is an existingtenant or subtenant of the Building; or (m) the proposed assignee or subtenantis a person or entity then negotiating with Landlord for the lease of space inthe Building (as evidenced by the exchange of one or more written proposalswithin the three month period preceding Tenant’s request for consent).

**12.4        AdditionalTerms and Conditions.** The following terms and conditions shall be applicable to any Transfer:

### (a)           Regardless ofLandlord’s consent, no Transfer shall release Tenant from Tenant’s obligationshereunder or alter the primary liability of Tenant to pay the rent and other

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### sums due Landlord hereunder and to perform all other obligations to beperformed by Tenant hereunder, or release any guarantor from its obligationsunder its guaranty.

### (b)           Landlord may acceptrent from any person other than Tenant pending approval or disapproval of anassignment or subletting.

### (c)           Neither a delay inthe approval or disapproval of a Transfer, nor the acceptance of rent, shallconstitute a waiver or estoppel of Landlord’s right to exercise its rights andremedies for the breach of any of the terms or conditions of this**Section 12.**

### (d)           The consent byLandlord to any Transfer shall not constitute a consent to any subsequent Transferby Tenant or to any subsequent or successive Transfer by an assignee orsubtenant. However, Landlord may consent to subsequent Transfers or anyamendments or modifications thereto without notifying Tenant or anyone elseliable on the Lease and without obtaining their consent, and such action shallnot relieve such persons from liability under this Lease.

### (e)           In the event of anyEvent of Default under this Lease, Landlord may proceed directly againstTenant, any then-existing guarantors or anyone else responsible for theperformance of this Lease, including any subtenant or assignee, without firstexhausting Landlord’s remedies against any other person or entity responsibletherefor to Landlord, or any security held by Landlord.

### (f)            Landlord’s writtenconsent to any Transfer by Tenant shall not constitute an acknowledgment thatno default then exists under this Lease nor shall such consent be deemed awaiver of any then existing default.

### (g)           The discovery of thefact that any financial statement relied upon by Landlord in giving its consentto an assignment or subletting was materially false shall, at Landlord’selection, render Landlord’s consent null and void.

### (h)           Landlord shall notbe liable under this Lease or under any sublease to any subtenant.

### (i)            No assignment orsublease may be terminated, modified or amended without Landlord’s priorwritten consent, which shall not be unreasonably withheld, delayed orconditioned.

### (j)            Any assignee of, orsubtenant under, this Lease shall, by reason of accepting such assignment orentering into such sublease, be deemed, for the benefit of Landlord, to haveassumed and agreed to conform and comply with each and every term, covenant,condition and obligation herein to be observed or performed by Tenant during theterm of said assignment or sublease, except as Landlord may otherwisespecifically agree in writing.

**12.5        AdditionalTerms and Conditions Applicable to Subletting.**  The following terms and conditions shall applyto any subletting by Tenant of all or any part of the Premises and shall bedeemed included in all subleases under this Lease whether or not expresslyincorporated therein:

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### (a)           Tenant herebyabsolutely and unconditionally assigns and transfers to Landlord all of Tenant’sinterest in all rentals and income arising from any sublease entered into byTenant, and Landlord may collect such rent and income and apply same toward Tenant’sobligations under this Lease; provided, however, that until an Event of Defaultshall occur in the performance of Tenant’s obligations under this Lease, Tenantmay receive, collect and enjoy the rents accruing under such sublease.  Landlord shall not, by reason of this or anyother assignment of such rents to Landlord nor by reason of the collection ofthe rents from a subtenant, be deemed to have assumed or recognized anysublease or to be liable to the subtenant for any failure of Tenant to perform andcomply with any of Tenant’s obligations to such subtenant under such sublease,including, but not limited to, Tenant’s obligation to return any securitydeposit.  Tenant hereby irrevocablyauthorizes and directs any such subtenant, upon receipt of a written noticefrom Landlord stating that an Event of Default exists in the performance ofTenant’s obligations under this Lease, to pay to Landlord the rents due as theybecome due under the sublease.  Tenantagrees that such subtenant shall have the right to rely upon any such statementand request from Landlord, and that such subtenant shall pay such rents toLandlord without any obligation or right to inquire as to whether such defaultexists and notwithstanding any notice from or claim from Tenant to thecontrary.

### (b)           Each sublease shall provide that if, prior tothe termination of any sublease, any event (other than a casualty described in **Section 9.1** or condemnation described in **Section 15**) occurs which, by voluntary orinvoluntary act or by operation of law, might cause or permit this Lease to beterminated, expire, be canceled, be foreclosed against, or otherwise come to anend, including but not limited to (1) an Event of Default by Tenant under thisLease of any of the terms or provisions hereof, (2) foreclosure proceedingsbrought by the holder of any mortgage or trust deed to which the Property issubject; or (3) the termination of Tenant’s leasehold estate by dispossessionproceeding or otherwise, then, at Landlord’s sole election and option, the subtenantshall attorn to Landlord and recognize Landlord as the subtenant’s landlordunder the sublease, upon the terms and conditions and at the rental ratespecified in the sublease, and for the then remaining term of the sublease,except that Landlord shall not be bound by any provision of the sublease whichin any way increases Landlord’s duties, obligations or liabilities to thesubtenant beyond those owed to Tenant under this Lease.  The subtenant shall execute and deliver, atany time and from time to time, upon request of Landlord, any commerciallyreasonable instruments which may be necessary or appropriate to evidence suchattornment.  Landlord shall not (i) beliable to the subtenant for any act, omission or breach of the sublease byTenant, (ii) be subject to any offsets or defenses which the subtenant mighthave against Tenant, (iii) be bound by any rent or additional rent which thesubtenant might have paid in advance to Tenant, or (iv) be bound to honor anyrights of the subtenant in any security deposit made with Tenant except to theextent Tenant has turned over such security deposit to Landlord.  Tenant hereby agrees that upon the occurrenceof any event with respect to this Lease described above, Tenant shallimmediately pay or transfer to Landlord any security deposit, rent or othersums then held by Tenant.  In the eventof any such attornment, Landlord’s liability shall be limited to mattersarising during Landlord’s ownership of the Building.  The liability of Landlord to the subtenant forany default by landlord after such attornment, or arising in connection withLandlord’s operation, management, leasing, repair, renovation, alteration, orany other matter relating to the Building or the subleased premises, shall belimited to the interest of the Landlord in the Building (and proceedsthereof).  Landlord shall have the right,in Landlord’s sole discretion, to elect not to have the subtenant attorn toLandlord and, in that event, the sublease 

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### shallbe deemed terminated on the date of the occurrence of the event with respect tothis Lease described above, and Landlord shall have no obligation to permit thesubtenant to continue to occupy all or any part of the Premises.

**12.6        Transfer Premium from Assignment orSubletting.**  Landlordshall be entitled to receive from Tenant (as and when received by Tenant) as anitem of additional rent fifty percent (50%) of the gross amounts received byTenant from such assignee or subtenant in excess of the amounts payable byTenant to Landlord hereunder (the “Transfer Premium”).  The Transfer Premium shall be reduced by (i)the reasonable brokerage commissions and legal fees actually paid by Tenant inorder to assign the Lease or to sublet all or a portion of the Premises, aswell as (ii) the actual and commercially reasonable out-of-pocket costs paid byTenant for leasehold improvements or other work performed by Tenant for suchsubtenant (or allowances paid to the assignee or subtenant for suchimprovements or work) as an inducement to enter into such assignment orsublease, and (iii) a commercially reasonable and customary (if any) period of “freerent” granted as an inducement to enter into such assignment or sublease. Ifless than all of the Premises is transferred, the Base Rent and the additionalrent shall be determined on a per rentable square foot basis.  “Transfer Premium” shall also include, butnot be limited to, key money and bonus money paid by the assignee or subtenantto Tenant in connection with such Transfer, the fair value of any work or servicesprovided by the assignee or subtenant for Tenant, and any payment in excess offair market value for services rendered by Tenant to the assignee or subtenantor for assets, fixtures, inventory, equipment, or furniture transferred byTenant to the assignee or subtenant in connection with such Transfer.

**12.7        Landlord’s Option to Recapture Space.**  Notwithstanding anything to the contrarycontained in this **Section 12**, inthe case of any proposed assignment of this Lease or any proposed sublease thatcovers (together with any other sublease(s) then in effect) fifty percent (50%)or more of the Premises, Landlord shall have the option, by giving writtennotice to Tenant within thirty (30) days after receipt of any request fromTenant for Landlord’s consent to such assignment or sublease, to terminate thisLease as of the date thirty (30) days after Landlord’s election. In addition,and without limiting the foregoing rights, in the event that Tenant shall atany time hereafter lease other space in the Building, and such space isincluded in the Premises by amendment to this Lease, and if Tenant thereafterdesires to (x) enter into any sublease that covers (together with any othersublease(s) then in effect) fifty percent (50%) or more of such additional space,or (y) enter into any sublease of such additional space (or a portion thereof)that has a term equal to all or substantially all of the then-remaining Term ofthis Lease, Landlord will also have the right to terminate this Lease, providedthat such termination right would only be effective with respect to suchadditional space. In the event of any recapture by Landlord, if this Leaseshall be terminated with respect to less than the entire Premises, the BaseRent, Tenant’s Share of Operating Expense and Real Property Tax increases andthe number of parking spaces Tenant may use shall be adjusted on the basis ofthe number of rentable square feet retained by Tenant in proportion to thenumber of rentable square feet contained in the original Premises, and thisLease as so amended shall continue thereafter in full force and effect, andupon request of either party, the parties shall execute written confirmation ofsame.  If Landlord recaptures only aportion of the Premises, it shall construct and erect at its sole cost suchpartitions as may be required to sever the space to be retained by Tenant fromthe space recaptured by Landlord. Landlord may, at its option, lease any recaptured portion of thePremises to the proposed subtenant or assignee or to any other person or entitywithout liability

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to Tenant. Tenant shall not be entitled to any portion of the profit, if any,Landlord may realize on account of such termination and reletting.  Tenant acknowledges that the purpose of this **Section 12.7** is to enable Landlord to receive profit in theform of higher rent or other consideration to be received from an assignee orsubtenant, to give Landlord the ability to meet additional space requirementsof other tenants of the Building and to permit Landlord to control the leasingof space in the Building.  Tenantacknowledges and agrees that the requirements of this **Section 12.7**are commercially reasonable and are consistent with the intentions of Landlordand Tenant. The provisions of this **Section 12.7**shall not be applicable to any Transfer described in **Section 12.2**. Notwithstanding anything to the contrary inthis **Section 12.7**, if, withinfifteen (15) days after Landlord gives notice of an election to terminate thisLease, Landlord receives from Tenant a written notice withdrawing and cancelingits notice regarding such Transfer, then Tenant’s notice of such Transfer andLandlord’s recapture notice shall be deemed null, void and of no further forceor effect, and Tenant shall not enter into such Transfer. Tenant shall not havethe right to withdraw and cancel any notice of a proposed Transfer more thanonce in any twelve (12) month period, and in the event that Tenant doeswithdraw such a notice, Tenant shall reimburse Landlord for all of Landlord’sreasonable costs and expenses incurred in connection therewith, including, butnot limited to, attorneys’, architects’, accountants’, engineers’ or otherconsultants’ fees (and the limitation on such costs in **Section 12.8**shall not be applicable).

**12.8        Landlord’s Expenses.**  In the event Tenant shall assign this Lease orsublet the Premises or request the consent of Landlord to any Transfer, thenTenant shall pay Landlord’s reasonable costs and expenses incurred inconnection therewith, including, but not limited to, attorneys’, architects’,accountants’, engineers’ or other consultants’ fees. Landlord agrees thatduring the first two (2) years of the Term, Tenant shall not be required toreimburse Landlord more than $2,000 (per request) on account of legal fees inconnection with any such request for consent.

# **13.          Default;Remedies.**

**13.1        Default by Tenant.**  Landlord andTenant hereby agree that the occurrence of any one or more of the followingevents shall be an “Event of Default” by Tenant under this Lease and that saidEvent of Default shall give Landlord the rights described in **Section 13.2**.  Landlord or Landlord’s authorizedagent shall have the right to execute and to deliver any notice of default,notice to pay rent or quit or any other notice Landlord gives Tenant.

### (a)           Tenant’s failure tomake any payment of Base Rent, Tenant’s Share of Operating Expense increases,Tenant’s Share of Real Property Taxes, late charges, or any other paymentrequired to be made by Tenant hereunder, as and when due, where such failureshall continue for a period of five (5) days after written notice thereof fromLandlord to Tenant.  In the event thatLandlord serves Tenant with a notice to pay rent or quit pursuant to applicablesummary process or unlawful detainer statutes, such notice shall alsoconstitute the notice required by this**Section13.1(a)**, so long asTenant has the benefit of the grace period described above.

### (b)           The abandonment ofthe Premises by Tenant, in which event Landlord shall not be obligated to giveany notice of default to Tenant.

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### (c)           The failure ofTenant to (1) comply with any of its obligations under**Sections 7.3, 8, 12, 21, 23 or 26** andfailure to cure the same within fifteen (15) days following written notice fromLandlord to Tenant, or (2) comply with any of its obligations under**Section 6.2** and failure to cure the samewithin such time as may be allowed by the applicable legal or regulatoryrequirement, so long as (i) Tenant shall diligently and continuously work toeffect such cure at the soonest practicable time, and (ii) the time used byTenant to effect such a cure shall not in any way subject Landlord or theProperty to civil or criminal sanction or liability or create a default underLandlord’s mortgage or any other lease or contract to which Landlord is a partyor by which Landlord or the Property is bound, and all enforcement proceedingsagainst Landlord or the Property shall be stayed.  In the event Landlord serves Tenant with anotice to quit or any other notice pursuant to applicable summary process orunlawful detainer statutes, said notice shall also constitute the noticerequired by this **Section 13.1(c)**, so long as Tenant has the benefitof the grace period described above.

### (d)           The failure byTenant to observe or perform any of the covenants, conditions or provisions ofthis Lease to be observed or performed by Tenant (other than those referencedin **Sections 13.1(a), (b)**and**(c),**above), where such failure shallcontinue for a period of thirty (30) days after written notice thereof fromLandlord to Tenant; provided, however, that if the nature of Tenant’snon-performance is such that more than thirty (30) days are reasonably requiredfor its cure, then an Event of Default shall not be deemed to exist if Tenantcommences such cure within fifteen (15) days after such notice and thereafterdiligently pursues such cure to completion. In the event that Landlord serves Tenant with a notice to quit or anyother notice pursuant to applicable summary process or unlawful detainerstatutes, said notice shall also constitute the notice required by this **Section 13.1(d)**, solong as Tenant has the benefit of the grace period described above.

### (e)           (i) The making byTenant or any guarantor of Tenant’s obligations hereunder of any generalarrangement or general assignment for the benefit of creditors; (ii) Tenant orany guarantor becoming a “debtor” as defined in 11 U.S.C. Section 101 (the “**Bankruptcy Code**”) or any successor statute thereto (unless,in the case of a petition filed against Tenant or guarantor, the same is dismissedwithin sixty (60) days); (iii) the appointment of a trustee or receiver to takepossession of substantially all of Tenant’s assets located at the Premises orof Tenant’s interest in this Lease, where possession is not restored to Tenantwithin thirty (30) days; (iv) the attachment, execution or other judicialseizure of substantially all of Tenant’s assets located at the Premises or ofTenant’s interest in this Lease, where such seizure is not discharged withinthirty (30) days; (v) Tenant shall be adjudicated insolvent, or shall file anypetition or answer seeking any reorganization, arrangement, composition,readjustment, liquidation, dissolution or similar relief for itself under anypresent or future Federal, State or other statute, law or regulation for therelief of debtors (other than the Bankruptcy Code), or shall seek or consent toor acquiesce in the appointment of any trustee, receiver or liquidator ofTenant or of all or any substantial part of its properties, or shall admit inwriting its inability to pay its debts generally as they become due; (vi) apetition shall be filed against Tenant under any law other than the BankruptcyCode seeking any reorganization, arrangement, composition, readjustment,liquidation, dissolution, or similar relief under any present or futureFederal, State or other statute, law or regulation and shall remain undismissedor unstayed for an aggregate of sixty (60) days (whether or not consecutive),or if any trustee, conservator, receiver or liquidator of Tenant or of all orany substantial part of its properties shall be appointed without the consent

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### or acquiescence of Tenant and such appointment shall remain unvacatedor unstayed for an aggregate of sixty (60) days (whether or not consecutive);or (vii) the occurrence of any of the events described in this **paragraph (e)** with respect to any guarantor of all or anyportion of Tenant’s obligations under this Lease.  In the event that any provision of this **Section 13.1(e)** is unenforceable under applicable law, suchprovision shall be of no force or effect.

### (f)            The discovery byLandlord that any financial statement, representation or warranty given toLandlord by Tenant, or by any guarantor of Tenant’s obligations hereunder, isor was materially false.  Tenantacknowledges that Landlord has entered into this Lease in material reliance onsuch information.

### (g)           If Tenant is acorporation, limited liability company, partnership, or other business entity,the dissolution or liquidation of Tenant.

### (h)           If Tenant’sobligations under this Lease are guaranteed: (i) the death of a guarantor, (ii)the termination of a guarantor’s liability with respect to this Lease otherthan in accordance with the terms of such guaranty, (iii) a guarantor’sbecoming insolvent or the subject of a bankruptcy filing, or (iv) a guarantor’srefusal to honor the guaranty.

## **13.2       ****Remedies.**

### (a)           In the event of anydefault or breach of this Lease by Tenant, continuing after any applicablenotice and grace period provided for by **Section 13.1**, Landlord may, at any time thereafter, with orwithout notice or demand, and without limiting Landlord in the exercise of anyother right or remedy which Landlord may have by reason of such default:

#### (i)                                     terminate Tenant’s right to possession of thePremises by any lawful means, in which case this Lease and the Term hereofshall terminate and Tenant shall immediately surrender possession of thePremises to Landlord; and Tenant covenants that in case of such termination,Tenant shall pay any amount of Base Rent that was initially waived by Landlordunder Section 4.1, and otherwise pay the rent, additional charges and othersums payable hereunder (including, without limitation, Tenant’s share ofOperating Expenses increases and Tenant’s Share of Real Property Tax Increases)up to the time of such termination. Thereafter, Tenant shall continue to payall such amounts until the end of what would have been the Expiration Date inthe absence of such termination, which shall be reduced by the net receipts (ifany, after deducting all expenses of reletting) actually received by Landlordfrom any replacement tenant. At any time after such termination, Landlord mayelect to recover from Tenant, in lieu of all other rent so payable by Tenanthereunder, a lump sum equal to the then net present value (computed using aninterest rate equal to the discount rate of the Federal Reserve Bank of Boston)of the amount by which (x) the unpaid rent and all additional charges thatwould have been payable hereunder from the date of such election for what wouldhave been the remainder of the Term of this Lease

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#### (including, withoutlimitation, Tenant’s share of Operating Expenses increases and Tenant’s Shareof Real Property Tax Increases) exceeds (y) the fair market rental value of thePremises as of the date of such election. In addition Tenant shall beresponsible for and pay on demand any other amount necessary tocompensate Landlord for all detriment proximately caused by Tenant’s failure toperform its obligations under the Lease or which in the ordinary course ofthings would be likely to result therefrom, including, but not limited to, thecost of recovering possession of the Premises, expenses of releasing, includingnecessary renovation and alteration of the Premises, reasonable attorneys’fees, any real estate commissions actually paid by Landlord and the unamortizedvalue of any free rent, reduced rent, tenant improvement allowance or othereconomic concessions provided by Landlord. For purposes of this **Section 13.2(a)(i),** “rent” shall be deemed to be allmonetary obligations required to be paid by Tenant pursuant to the terms ofthis Lease.

#### (ii)                                  collectsublease rents (or appoint a receiver to collect such rent) and otherwiseperform Tenant’s obligations at the Premises, it being agreed, however, thatthe appointment of a receiver for Tenant shall not constitute an election byLandlord to terminate this Lease; and/or

#### (iii)                               pursueany other remedy now or hereafter available to Landlord under the laws orjudicial decisions of the Commonwealth of Massachusetts.

### (b)           No remedy orelection hereunder shall be deemed exclusive, but shall, wherever possible, becumulative with all other remedies at law or in equity.  The expiration or termination of this Leaseand/or the termination of Tenant’s right to possession of the Premises shallnot relieve Tenant of liability under any indemnity provisions of this Lease asto matters occurring or accruing during the Term of this Lease or by reason ofTenant’s occupancy of the Premises.

### (c)           If Tenant abandonsthe Premises, Landlord may re-enter the Premises and such re-entry shall not bedeemed to constitute Landlord’s election to accept a surrender of the Premisesor to otherwise relieve Tenant from liability for its breach of thisLease.  No surrender of the Premises shallbe effective against Landlord unless Landlord has entered into a writtenagreement with Tenant in which Landlord expressly agrees to (i) accept asurrender of the Premises and (ii) relieve Tenant of liability under thisLease.  The delivery by Tenant toLandlord of possession of the Premises shall not constitute the termination ofthis Lease or the surrender of the Premises.

**13.3        Default by Landlord.**  Landlord shall not be in default under thisLease unless Landlord fails to perform obligations required of Landlord withinthirty (30) days after written notice by Tenant to Landlord and to the Holderof any Mortgage encumbering the Property whose name and address shall havetheretofore been furnished to Tenant in writing, specifying

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wherein Landlord has failed to perform suchobligation; provided, however, that if the nature of Landlord’s obligation issuch that more than thirty (30) days are required for its cure, then Landlordshall not be in default if Landlord commences performance within such thirty (30)day period and thereafter diligently pursues the same to completion.

**13.4        Late Charges.**  Tenant hereby acknowledges that late paymentby Tenant to Landlord of Base Rent, Tenant’s Share of Operating Expenseincreases, Tenant’s Share of Real Property Tax increases or other sums duehereunder will cause Landlord to incur costs not contemplated by this Lease,the exact amount of which will be extremely difficult to ascertain.  Such costs include, but are not limited to,processing and accounting charges and late charges which may be imposed onLandlord by the terms of any mortgage or trust deed encumbering the Property.Accordingly, if any installment of Base Rent, Tenant’s Share of OperatingExpense increases, Tenant’s Share of Real Property Tax increases or any othersum due from Tenant shall not be received by Landlord when such amount shall bedue, then, without any requirement for notice or demand to Tenant, Tenant shallimmediately pay to Landlord a late charge equal to three percent (3%) of suchoverdue amount, provided that Landlord agrees to waive such late charge for thefirst late payment in any period of twelve consecutive months, so long as therequisite payment is made in full within two (2) business days after noticefrom Landlord that such payment was not received when due.  The parties hereby agree that such latecharge represents a fair and reasonable estimate of the costs Landlord willincur by reason of late payment by Tenant. Acceptance of such late charge byLandlord shall in no event constitute a waiver of Tenant’s default with respectto such overdue amount, nor prevent Landlord from exercising any of the otherrights and remedies granted hereunder including the assessment of interestunder **Section 13.5**.

**13.5        Interest on Past-due Obligations**.  Except as expressly herein provided, anyamount due to Landlord that is not paid within five (5) days of the date whendue shall bear interest at the lesser of (i) the prime rate from time to timein effect at the Bank of America (at its Boston, Massachusetts offices), plusthree percent (3%), or (ii) the maximum rate permitted by applicable law.Payment of such interest shall not excuse or cure any default by Tenant underthis Lease.

This Lease and theobligations of Landlord and Tenant hereunder shall not be affected or impairedbecause such party is unable to fulfill any of its obligations hereunder or isdelayed in doing so, if such inability or delay is caused by reason of strikeor other labor problems, acts of God, riot, insurrection, governmental actionsor requirements, or any other cause beyond the reasonable control of such party(the foregoing circumstances being individually and collectively referred to as“Force Majeure”), and the time for performance by such party shall be extendedfor the period of any such delay. Any party so affected by a Force Majeuredelay shall promptly notify the other party thereof, and shall use commerciallyreasonable efforts to minimize the adverse effect of such delay. In no event,however, shall lack or unavailability of adequate funds ever be grounds for adelay or excuse hereunder, and Force Majeure shall not be an excuse for failureto pay rent or additional rent as and when due.

**14.          Landlord’s Right to Cure Default; Payments by Tenant.**  All covenants and agreements to be kept orperformed by Tenant under this Lease shall be performed by Tenant at Tenant’ssole cost and expense and without any reduction of rent.  If Tenant shall fail to perform

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any of its obligationsunder this Lease, within a reasonable time after such performance is requiredby the terms of this Lease (or immediately, in case of emergency), Landlordmay, but shall not be obligated to, after three (3) days prior written noticeto Tenant, (but no notice will be required in case of emergency), make any suchpayment or perform any such act on Tenant’s behalf without waiving its rightsbased upon any default of Tenant and without releasing Tenant from anyobligations hereunder.  Tenant shall payto Landlord, within thirty (30) days after delivery by Landlord to Tenant ofstatements therefor, an amount equal to the expenditures reasonably made byLandlord in connection with the remedying by Landlord of Tenant’s defaultspursuant to the provisions of this **Section 14**.

**15.          Condemnation****.**  If any portion of the Premises is taken underthe power of eminent domain, or sold under the threat of the exercise of saidpower (all of which are herein called “Condemnation”), this Lease shallterminate as to the part so taken as of the date the condemning authority takestitle or possession, whichever first occurs; provided that if so much of thePremises is taken by Condemnation as would substantially and adversely affectthe operation and profitability of Tenant’s business conducted from thePremises, and said taking lasts for ninety (90) days or more, Tenant shall havethe option, to be exercised only in writing within thirty (30) days afterLandlord shall have given Tenant written notice of such taking (or in theabsence of such notice, within thirty (30) days after the condemning authorityshall have taken possession), to terminate this Lease as of the date thecondemning authority takes such possession. If a taking lasts for less than ninety (90) days and limits Tenant’s useof the Premises for the Permitted Use, Tenant’s rent shall be abated inproportion to such limitation during said period but Tenant shall not have theright to terminate this Lease.  If Tenantdoes not terminate this Lease in accordance with the foregoing, this Leaseshall remain in full force and effect as to the portion of the Premisesremaining, except that the Base Rent and Tenant’s Share of Operating Expensesshall be reduced in the proportion that the usable floor area of the Premisestaken bears to the total usable floor area of the Premises.  Common Areas taken shall be excluded from theCommon Areas usable by Tenant and no reduction of rent shall occur with respectthereto or by reason thereof.  Landlordshall have the option in its sole discretion to terminate this Lease as of thetaking of possession by the condemning authority, by giving written notice toTenant of such election within thirty (30) days after receipt of notice of aCondemnation of any part of the Premises or the Property.  Any award for the taking of all or any part ofthe Premises or the Property under the power of eminent domain or any paymentmade under threat of the exercise of such power shall be the property ofLandlord, whether such award shall be made as compensation for diminution invalue of the leasehold, for good will, for the taking of the fee, as severancedamages, or as damages for tenant improvements; provided, however, that Tenantshall be entitled to any separate award for loss of or damage to Tenant’sremovable personal property.  In theevent that this Lease is not terminated by reason of such condemnation, andsubject to the requirements of any lender that has made a loan to Landlordencumbering the Property, Landlord shall to the extent of severance damagesreceived by Landlord in connection with such condemnation, repair any damage tothe Property caused by such Condemnation except to the extent that Tenant hasbeen reimbursed therefor by the condemning authority.  Tenant shall pay any amount in excess of suchseverance damages required to complete such repair.  This Section 15 shall govern the rights andobligations of Landlord and Tenant with respect to the condemnation of all orany portion of the Property.

#  

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**16.          Vehicle Parking.**

**16.1        Use of Parking Facilities.**  During the Term and subject to the rules andregulations attached hereto as Exhibit “C,” as modified by Landlord from timeto time (the “Rules”), Tenant shall be entitled to use the number of parking spacesset forth in **Section 1.19**.Landlord may, in its sole discretion designate the location of any reservedparking spaces.  For purposes of thisLease, a “parking space” refers to the space in which one (1) motor vehicle isintended to park.  If Tenant commits orallows in the parking facility any of the activities prohibited by the Lease orthe Rules, then Landlord shall have the right, without notice, in addition tosuch other rights and remedies that it may have, to remove or tow away thevehicle involved and charge the cost to Tenant, which cost shall be payable byTenant within thirty (30) days following demand by Landlord.  Tenant’s parking rights are the personalrights of Tenant and Tenant shall not transfer, assign, or otherwise convey itsparking rights separate and apart from this Lease, except to a permittedassignee or sublessee hereunder, and then only in connection with and subjectto such sublease or assignment. All spaces, whether covered or uncovered, arecurrently available on a first-come, first-served basis.

**16.2       ****Parking Charges.**  INTENTIONALLY OMITTED.

**17.          Broker’s Fee.** Tenant and Landlord each represent and warrant to the other that neitherhas had any dealings or entered into any agreements with any person, entity,broker or finder other than the persons, if any, listed in **Section 1.20**, in connection with thenegotiation of this Lease, and no other broker, person, or entity is entitledto any commission or finder’s fee in connection with the negotiation of thisLease, and Tenant and Landlord each agree to indemnify, defend and hold theother harmless from and against any claims, damages, costs, expenses, attorneys’fees or liability for compensation or charges which may be claimed by any suchunnamed broker, finder or other similar party by reason of any dealings,actions or agreements of the indemnifying party. Landlord shall be solelyresponsible for any commission or finder’s fee due to the person or entitylisted in **Section 1.20** pursuant to the terms of aseparate written agreement.

# **18.          EstoppelCertificate.**

**18.1        Delivery of Certificate.**  Tenant shall from time to time, upon not lessthan twenty (20) days’ prior written notice from Landlord execute, acknowledgeand deliver to Landlord a statement in writing certifying such information asLandlord may reasonably request including, but not limited to, the following:(a) that this Lease is unmodified and in full force and effect (or, ifmodified, stating the nature of such modification and certifying that thisLease, as so modified, is in full force and effect) (b) the date to which theBase Rent and other charges are paid in advance and the amounts so payable, (c)that there are not, to Tenant’s **knowledge**,any uncured defaults or unfulfilled obligations on the part of Landlord, orspecifying such defaults or unfulfilled obligations, if any are claimed, (d)that all tenant improvements to be constructed by Landlord, if any, have beencompleted in accordance with Landlord’s obligations and (e) that Tenant hastaken possession of the Premises.  Anysuch statement may be conclusively relied upon by any prospective purchaser orencumbrancer of the Property.

**18.2        Failure to Deliver Certificate.**  At Landlord’s option, the failure of Tenantto deliver such statement within such time shall constitute a representation byTenant that (a) this Lease is in full force and effect, without modificationexcept as may be represented by Landlord,

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(b) there are no uncured defaults in Landlord’sperformance, (c) not more than one month’s Base Rent has been paid in advance,(d) all tenant improvements to be constructed by Landlord, if any, have beencompleted in accordance with Landlord’s obligations and (e) Tenant has takenpossession of the Premises.

**19.          Financial Information.** From time to time (but not more than once in any twelve-month period,except in connection with a proposed sale or refinancing of the Building), atLandlord’s request, Tenant shall cause the following financial information tobe delivered to Landlord, at Tenant’s sole cost and expense, upon not less thantwenty (20) days’ advance written notice from Landlord: (a) a current financialstatement for Tenant and Tenant’s financial statements for the previous twoaccounting years, and (b) a current financial statement for any guarantor(s) ofthis Lease and the guarantor’(s) financial statements for the previous twoaccounting years.  All financialstatements shall be prepared in accordance with generally accepted accountingprinciples consistently applied and either certified as true, correct andcomplete by the Tenant’s chief financial officer or, if such is the normalpractice of Tenant, shall be audited by an independent certified publicaccountant.

**20.          Landlord’s Liability.** Tenant acknowledges that Landlord shall have the right to transfer allor any portion of its interest in the Property and to assign this Lease to thetransferee.  Tenant agrees that in theevent of such a transfer, and upon the transferee’s assumption of the same (asevidenced by a written agreement between Landlord and such transferee),Landlord shall automatically be released from all liability under this Leasearising after the date of the transfer; and Tenant hereby agrees to look solelyto Landlord’s transferee for the performance of Landlord’s obligationshereunder after the date of the transfer. Upon such a transfer, Landlord shall, at its option, return Tenant’ssecurity deposit to Tenant or transfer Tenant’s security deposit to Landlord’stransferee and, in either event, Landlord shall have no further liability to Tenantfor the return of its security deposit. Subject to the rights of any lender holding a mortgage or deed of trustencumbering all or part of the Property, Tenant agrees to look solely toLandlord’s equity interest in the Property for the collection of any judgmentrequiring the payment of money by Landlord arising out of (a) Landlord’sfailure to perform its obligations under this Lease or (b) the negligence orwillful misconduct of Landlord, its partners, employees and agents.  No other property or assets of Landlord shallbe subject to levy, execution or other enforcement procedure for thesatisfaction of any judgment or writ obtained by Tenant against Landlord.  No partner, trustee, beneficiary, officer,director, member, shareholder, employee or agent of Landlord shall bepersonally liable for the performance of Landlord’s obligations hereunder or benamed as a party in any lawsuit arising out of or related to, directly orindirectly, this Lease and the obligations of Landlord hereunder.  The obligations under this Lease do notconstitute personal obligations of the individual partners, trustees orshareholders, beneficiaries or members of Landlord, if any, and Tenant shallnot seek recourse against any of said persons or their assets. The provision containedin the foregoing sentence is not intended to, and shall not, limit any rightTenant might otherwise have to obtain injunctive relief against Landlord orLandlord’s successors-in-interest, or to take any action not involving thepersonal liability of Landlord (original or successor) to respond in monetarydamages from Landlord’s assets other than Landlord’s interest in the Property

**21.          Indemnity****.**  (a)  Tenant hereby agrees to indemnify, defend andhold harmless Landlord and its employees, officers, directors, trustees,beneficiaries, members, partners, shareholders,

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agents,contractors, lenders and ground lessors (said persons and entities arehereinafter collectively referred to as the “**IndemnifiedParties**”) from and against any and all liability, loss, cost,damage, claims, loss of rents, liens, judgments, penalties, fines, settlementcosts, investigation costs, the cost of consultants and experts, attorneysfees, court costs and other legal expenses, the effects of environmentalcontamination, the cost of environmental testing, the removal, remediationand/or abatement of Hazardous Substances (as said term is defined below),insurance policy deductibles and other expenses (hereinafter collectivelyreferred to as “**Damages**”) arisingout of or related to an “Indemnified Matter” (as defined below).

(b)           For purposes of this **Section 21**, an “**IndemnifiedMatter**” shall mean any matter for which one or more of theIndemnified Parties incurs liability or Damages if the liability or Damagesarise out of or involve, directly or indirectly, (i) Tenant’s or its employees’,agents’, contractors’ or invitees’ (all of said persons or entities arehereinafter collectively referred to as “**TenantParties**”) use or occupancy of the Premises or the Property, (ii) anyact, omission or neglect of a Tenant Party, (iii) Tenant’s failure to performany of its obligations under this Lease, (iv) the existence, use or disposal ofany Hazardous Substance (as defined in **Section23** below) brought on to the Property by a Tenant Party, or (v) anyother matters for which Tenant has expressly agreed to indemnify Landlordpursuant to any other provision of this Lease. Tenant’s obligations hereunder shall include, but shall not be limitedto compensating the Indemnified Parties for Damages arising out of IndemnifiedMatters within ten (10) days after written demand from an Indemnified Party,and providing a defense, with counsel reasonably satisfactory to theIndemnified Party, at Tenant’s sole expense, within thirty (30) days afterwritten demand from the Indemnified Party, of any claims, action or proceedingarising out of or relating to an Indemnified Matter whether or not litigated orreduced to judgment and whether or not well founded.

(c)           If Tenant is obligated to compensatean Indemnified Party for Damages arising out of an Indemnified Matter, Landlordshall have the immediate and unconditional right, but not the obligation,without notice or demand to Tenant, to pay the damages and Tenant shall, uponthirty (30) days advance written notice from Landlord, reimburse Landlord forthe costs incurred by Landlord.  By wayof example, and not limitation, Landlord shall have the immediate andunconditional right to cause any damages to the Common Areas, another tenant’spremises or to any other part of the Property to be repaired and to compensateother tenants of the Property or other persons or entities for Damages arisingout of an Indemnified Matter.  TheIndemnified Parties need not first pay any Damages to be indemnifiedhereunder.  Tenant’s obligations underthis Section 21 shall not be released, reduced or otherwise limited because oneor more of the Indemnified Parties are or may be actively or passivelynegligent with respect to an Indemnified Matter or because an Indemnified Partyis or was partially responsible for the Damages incurred.  This indemnity is intended to apply to thefullest extent permitted by applicable law. Tenant’s obligations under this Section 21 shall survive the expirationor termination of this Lease unless specifically waived in writing by Landlordafter said expiration or termination.  Inno event shall Tenant be required to indemnify and Indemnified Party to theextent Damages are caused by the gross negligence or willful misconduct of suchparty.

(d)           Subject to applicable waivers ofclaims and subrogation set forth in **Section 8.4**,Landlord agrees to indemnify and save harmless Tenant from and against allclaims, loss, cost, damage or expense arising from any accident, bodily orpersonal injury or damage

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occurring in the common areas on the Property, to theextent that such accident, damage or injury results from a negligent act oromission on the part of Landlord or Landlord’s agents or employees, occurringafter the Commencement Date until theend of the Term of this Lease. This indemnity and hold harmless agreement shallinclude indemnity against all losses, costs, damages, expenses and liabilitiesincurred during the Term of this Lease in connection with any such claim orproceeding brought thereon, and the defense thereof, including, withoutlimitation, reasonable attorneys’ fees and costs at both the trial andappellate levels.

**22.          Exemption of Landlord from Liability****.**   Tenant herebyagrees that Landlord shall not be liable for injury to Tenant’s business or anyloss of income therefrom or, except as may otherwise be expressly provided inthis Lease, for loss of or damage to the merchandise, tenant improvements,fixtures, furniture, equipment, computers, files, automobiles, or otherproperty of Tenant, Tenant’s employees, agents, contractors or invitees, or anyother person in or about the Property. In addition, Landlord shall notincluding,but not limited to, theft, criminal activity at the Property, bombings or bombscares, Hazardous Substances (as defined below), fire, steam, electricity, gas,water or rain, flooding, breakage of pipes, sprinklers, plumbing, airconditioning or lighting fixtures, or from any other cause, whether said damageor injury results from conditions arising upon the Premises or upon otherportions of the Property, or from other sources or places, or from newconstruction or the repair, alteration or improvement of any part of theProperty. Landlord shall not be liable for any damages arising from any act orneglect of any employees, agents, contractors or invitees of any other tenant,occupant or user of the Property, nor from the failure of Landlord to enforcethe provisions of the lease of any other tenant of the Property. Except as mayotherwise expressly provided in this Lease, Tenant, as a material part of theconsideration to Landlord hereunder, hereby assumes all risk of damage toTenant’s property or business, in, upon or about the Property arising from anycause, except Landlord’s negligence or the negligence of its employees oragents

# **23.          HazardousSubstances.**

**23.1        Definition and Consent.**  The term “HazardousSubstance” as used in this Lease shall mean any product, substance, chemical,material or waste whose presence, nature, quantity and/or intensity ofexistence, use, manufacture, disposal, transportation, spill, release oraffect, either by itself or in combination with other materials expected to beon the Premises or the Property, is either: (a) potentially injurious to thepublic health, safety or welfare, the environment or the Premises or theProperty, (b) regulated or monitored by any governmental entity, (c) a basisfor liability to any governmental entity or third party under any federal,state or local statute or common law theory or (d) defined as a hazardous materialor substance by any federal, state or local law or regulation.  Except for small quantities of ordinaryoffice supplies such as copier toner, liquid paper, glue, ink and commonhousehold cleaning materials, Tenant shall not cause or permit any HazardousSubstance to be brought, kept, or used in or about the Premises or the Propertyby Tenant, its agents, employees, contractors or invitees.

**23.2        Duty to Inform.**  If Tenant orLandlord knows, or has reasonable cause to believe, that a Hazardous Substance,or a condition involving or resulting from same, has come to be located in, onor under or about the Premises or the Property, Tenant or Landlord, as the

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case may be, shall promptly givewritten notice of such fact to the other. Tenant shall also immediately giveLandlord (upon demand) a copy of any statement, report, notice, registration,application, permit, license, given to or received from, any governmental authority or private party, or persons entering oroccupying the Premises, concerning the presence, spill, release, discharge ofor exposure to, any Hazardous Substance or contamination in, on or about thePremises the Property. Landlord agrees that, on the SubstantialCompletion Date, there will be no unlawful levels of Hazardous Substances inthe Premises.

**23.3        Inspection; Compliance.**  Landlord andLandlord’s employees, agent, contractors and lenders shall have the right toenter the Premises at any time in the case of an emergency, and otherwise atreasonable times and upon reasonable notice (which need not be in writing, andwhich need not be given at all in the case of any emergency), for thepurpose of inspecting the condition of the Premises and for verifyingcompliance by Tenant with this **Section 23**. Landlord shall have the right to employ experts and/or consultants inconnection with its examination of thePremises and with respect to the installation, operation, use, monitoring,remediation, maintenance, or removal of any Hazardous Substance on or from thePremises.  The costs and expenses of anysuch inspections shall be paid by the party requesting same, unless a release,discharge or contamination, caused or materially contributed to by Tenant, isfound to exist or be imminent, or unless the inspection is requested or orderedby governmental authority as the result of any such existing or imminentrelease, discharge or contamination.  Inany such case, Tenant shall upon request reimburse Landlord for the cost andexpenses of such inspection.

# **24.          IntentionallyOmitted.**

**25.          TenantImprovements.**  Exceptfor Landlord’s Work, Tenant specifically agrees that Landlord has no obligationand has made no promises to alter, remodel, improve, renovate, repair ordecorate the Premises, the Property, or any part thereof, or to provide anyallowance for such purposes and that, except for Landlord’s Work, norepresentations respecting the condition of the Premises, Property or theBuilding have been made by Landlord to Tenant.

# **26.          Subordinationand Rights of Mortgagees.**

**26.1        Effect of Subordination.**  Landlordrepresents to Tenant that, as of the date hereof, no mortgage encumbers theProperty. This Lease, and any option granted hereby, upon Landlord’s writtenelection, shall be subject and subordinate to any ground lease, mortgage, deedof trust, or any other hypothecation or security interest (any of theforegoing, a “**Mortgage**”) hereaftermade of or with respect to or placed on all or any part of the Property and toany and all advances made on the security thereof and to all renewals,modifications, consolidations, replacements and extensions thereof.  If the mortgagee or holder of any suchMortgage (a “**Holder**”) shall elect to have thisLease prior to the lien of its Mortgage and shall give written notice thereofto Tenant, this Lease shall be deemed prior to such Mortgage, whether thisLease is dated prior or subsequent to the date of said Mortgage or the date ofrecording thereof. Upon request by Tenant (and at the sole cost and expense ofTenant), Landlord shall request and use commercially reasonable efforts (whichshall not include the obligation to pay any fee or charge or to agree to anyless favorable terms or conditions in the secured indebtedness) to obtain anagreement (a “**SNDA**”) executed by the Holder forthe benefit, on the Holder’s standard form

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then in use that, for so long as there exists nodefault beyond applicable grace periods under this Lease by Tenant, and subjectto the Holder’s reasonable and customary exceptions and qualifications, theHolder will not, in foreclosing against or taking possession of the Premises orotherwise exercising its rights under such mortgage, terminate this Lease ordisturb Tenant’s possession of the Premises hereunder, or words of similarimport. In the event of the foreclosure of a Mortgage, or a deed in lieu offoreclosure of a Mortgage, or exercise of any similar remedy by a Holder, thenew owner of the Property as a result of such exercise shall not (a) be liablefor any act or omission of any prior landlord or with respect to eventsoccurring prior to its acquisition of title, (b) be liable for the breach ofthis Lease by any prior landlord, (c) be subject to any offsets or defenseswhich Tenant may have against the prior landlord, or to any amendments to thisLease prior to such foreclosure, or (d) be liable to Tenant for the return ofits security deposit.  At the request ofany such new owner, Tenant shall attorn to such new owner.  Tenant will arrange for the recording of theSNDA in the appropriate registry of deeds.

**26.2        Execution of Documents.**  Tenant agrees to execute and acknowledge anycommercially reasonable documents Landlord reasonably requests that Tenantexecute to effectuate an attornment, a subordination, or to make this Leasegranted herein prior to the lien of any Mortgage, as the case may be. Tenant’sfailure to execute such documents or propose reasonable modifications theretowithin fifteen (15) days after written demand shall constitute an Event ofDefault by Tenant hereunder.

**26.3        Assignment to Mortgagee.**  With reference to any assignment by Landlordof Landlord’s interest in this Lease, or the rents payable hereunder,conditional in nature or otherwise, which assignment is made to the Holder of aMortgage on property which includes the Premises, Tenant agrees that theexecution thereof by Landlord, and the acceptance thereof by the Holder of suchMortgage shall never be treated as an assumption by such Holder of any of theobligations of Landlord hereunder unless such Holder shall, by notice sent toTenant, specifically otherwise elect and, except as aforesaid, such Holdershall be treated as having assumed Landlord’s obligations hereunder only uponforeclosure of such holder’s Mortgage and the taking of possession of thePremises.

**26.4        Sale Leaseback.**  In no event shall the acquisition of Landlord’sinterest in the Property by a purchaser which, simultaneously therewith, leasesLandlord’s entire interest in the Property back to the seller thereof betreated as an assumption, by operation of law or otherwise, of Landlord’sobligations hereunder, but Tenant shall look solely to such seller-lessee,and its successors from time to time in title, for performance of Landlord’sobligations hereunder.   For allpurposes, such seller-lessee, and its successors in title, shall be theLandlord hereunder unless and until Landlord’s position shall have been assumedby such purchaser-lessor.

**26.5        Cure by Mortgagee.**  The curing of any default of Landlord’s underthis Lease by any Holder shall be treated as performance by Landlord.

## **27.          Optionto Extend.**

## **27.1        Tenant’sRight.  **Providedthat, at the time of such exercise, (i) there exists no Event of Default on thepart of Tenant under this Lease (nor any failure by Tenant to make any requiredpayment or perform any obligation, of which failure Tenant has received noticeand which, with the passage of time, would constitute an Event of Default), and(ii) Tenant then

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## actually occupies all of the Premises, and(iii) this Lease is still in full force and effect, Tenant shall have the rightto extend the Term of this Lease for one extended term (the “Extended Term”) offive (5) years. The Extended Term shall commence on the day immediatelyfollowing the last day of the initial Term, and shall end at 11:59 p.m. on thatday immediately preceding the fifth anniversary of the first day of theExtended Term. Tenant shall exercise such option to extend by giving writtennotice to Landlord not later than twelve (12) months prior to the date on whichthe initial Term ends.  The giving ofsuch notice by Tenant shall automatically and irrevocably extend the Term ofthis Lease for the Extended Term and no instrument of renewal need beexecuted.  In the event that Tenant failsto give such notice to Landlord, this Lease shall automatically terminate onthe last day of the initial Term, and Tenant shall have no further option toextend the Term of this Lease, it being agreed that time shall be of theessence in the giving of any such notice. The Extended Term shall be on all theterms and conditions of this Lease, except that the Base Rent for the ExtendedTerm shall be determined pursuant to **Section27.2** below**.**

**27.2        Rental Etc.**  (a) The annual Base Rent for each year of theExtended Term shall be an amount equal to the Fair Market Rental Value of thePremises (exclusive of the cost of supplying Tenant electricity, if and to theextent the same is paid separately by Tenant), established for each such yearas of the commencement of the Extended Term (the “Determination Date”). The term “Fair Market Rental Value” shall mean theannual fixed rent that a willing tenant would pay and a willing landlord wouldaccept, each acting in its own best interest and without duress, in anarms-length lease of the Premises as of the Determination Date, and shall takeinto account, among other things, the location and condition of the Premisesand amenities of which Tenant has the benefit, and any inducements then usualand customary in the leasing market in which the Property is located (such asimprovements allowances or so-called “free rent” periods). For purposes ofdetermining the Fair Market Rental Value, the Tax Base Year for theExtended Term shall be the fiscal year ending June 30, 2013 and (iii) theOperating Expense Base Year for the Extended Term shall be calendar year 2012. If Landlord and Tenant shall fail to agree uponthe Fair Market Rental Value within six (6) months before the DeterminationDate, then Landlord and Tenant each shall give notice (the “DeterminationNotice”) to the other setting forth their respective determinations of the FairMarket Rental Value, and, subject to the provisions of paragraph (b) below,either party may apply to the American Arbitration Association or any successorthereto for the designation of an arbitrator satisfactory to both parties torender a final determination of the Fair Market Rental Value. The fairmarket rental value shall be determined by arbitration in accordance with thecommercial arbitration rules of the American Arbitration Association, exceptthat there shall be only one arbitrator, who shall have had at least ten (10)years’ experience as a real estate broker or appraiser in the greater Route128/Route 2 area. The arbitrator shallconduct such hearings and investigations as the arbitrator shall deemappropriate and shall, within thirty (30) days after having been appointed,choose one of the determinations set forth in either Landlord’s or Tenant’sDetermination Notice, and that choice by the arbitrator shall be binding uponLandlord and Tenant. Each party shall pay its own counsel fees and expenses, ifany, in connection with any arbitration under this paragraph (a), and theparties shall share equally all other expenses and fees of any sucharbitration. The determination rendered in accordance with the provisions ofthis paragraph (a) shall be final and binding in fixing the Fair Market RentalValue. The arbitrator shall not have the power to add to, modify, or change anyof the provisions of this Lease.

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(b)           In the event that thedetermination of the Fair Market Rental Value set forth in the Landlord’s andTenant’s Determination Notices shall differ by less than five percent (5%) persquare foot of Premises Rentable Area per annum for each year for which thesame is being determined, then the Fair Market Rental Value shall not bedetermined by arbitration, but shall instead be set by taking the average ofthe determinations set forth in Landlord’s and Tenant’s Determination Notices.Only if the determinations set forth in Landlord’s and Tenant’s DeterminationNotices shall differ by more than five percent (5%) per square foot of PremisesRentable area per annum for any year for which the same is being determinedshall the actual determination of Fair Market Rental Value be made by anarbitrator as set forth in paragraph (a) above.

(c)           If for any reason theFair Market Rental Value shall not have been determined prior to theDetermination Date, then, until the Fair Market Rental Value and, accordingly,the Base Rent, shall have been finally determined, Tenant shall continue to payBase Rent at the rate in effect as of the last day of the initial Term. Uponfinal determination of the Fair Market Rental Value, an appropriate adjustmentto the Base Rent theretofore paid by Tenant from and after the DeterminationDate shall be made reflecting such final determination, and Landlord or Tenant,as the case may be, shall promptly credit or pay, respectively, to the otherany overpayment of deficiency, as the case may be, in the payment of Base Rentfrom the Determination Date to the date of such final determination.

**28.          LandlordReservations****.**  Landlord shall have the right: (a) to changethe name and address of the Property or Building upon not less than ninety (90)days prior written notice; (b) to permit any tenant the exclusive right toconduct any business as long as such exclusive right does not conflict with anyrights expressly given herein; and (c) to place signs, notices or displays uponthe roof, interior, exterior or Common Areas of the Building or theProperty.  Tenant shall not use arepresentation (photographic or otherwise) of the Building in connection withTenant’s business or suffer or permit anyone, except in an emergency, to goupon the roof of the Building. Landlord reserves the right to use the exteriorwalls of the Premises, and the area beneath, adjacent to and above the Premisestogether with the right to install, use, maintain and replace equipment,machinery, pipes, conduits and wiring through the Premises, which serve otherparts of the Property, provided that Landlord’s use does not unreasonablyinterfere with Tenant’s use of the Premises, including Tenant’s rights withrespect to signage under **Section 47**.

**29.          Changesto Property****.**  Landlord shall have the right, in Landlord’ssole discretion, from time to time, to make changes to the size, shape,location, number and extent of the improvements comprising the Property(hereinafter referred to as “**Changes**”)including, but not limited to, the Building interior and exterior, the CommonAreas, elevators, escalators, restrooms, HVAC, electrical systems,communication systems, fire protection and detection systems, plumbing systems,security systems, parking control systems, driveways, entrances, parkingspaces, parking areas and landscaped areas. In connection with the Changes, Landlord may, among other things, erectscaffolding or other necessary structures at the Building, limit or eliminateaccess to portions of the Building or Property, including portions of theCommon Areas, or perform work in the Building, which work may create noise,dust or leave debris in the Building. Tenant hereby agrees that such Changes and Landlord’s actions inconnection with such Changes shall in no way constitute a constructive evictionof Tenant or entitle Tenant to any abatement of rent.  Landlord shall have no responsibility or forany reason be liable to Tenant for 

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any direct or indirect injury to or interference withTenant’s business arising from the Changes, nor shall Tenant be entitled to anycompensation or damages from Landlord for any inconvenience or annoyanceoccasioned by such Changes or Landlord’s actions in connection with suchChanges.  Landlord shall use commerciallyreasonable efforts to minimize interference with the conduct of Tenant’sbusiness in connection with any of the foregoing.

**30.          IntentionallyOmitted****.**

**31.          HoldingOver****.**  If Tenant remains in possession of thePremises or any part thereof after the expiration or earlier termination of theTerm hereof, such occupancy shall be a tenancy from month to month upon all theterms and conditions of this Lease pertaining to the obligations of Tenant,except that the Base Rent payable with respect to the first thirty (30) daysshall be one hundred fifty percent (150%) of the Base Rent payable immediatelypreceding the Expiration Date of this Lease, and all Options, if any, shall bedeemed terminated and be of no further effect. If Tenant remains in possession of the Premises or any part thereof formore than thirty (30) days after the expiration of the Term hereof, Tenant may,at Landlord’s option, be treated as a tenant at sufferance or a trespasser, andTenant shall be liable to Landlord for use and occupancy charges equal to thegreater of (a) two hundred percent (200%) of the Base Rent payable immediatelypreceding the Expiration Date of this Lease or (b) the fair market Base Rentfor the Premises as of the date Tenant holds over, plus all other amountsotherwise payable by Tenant under this Lease as though it continued ineffect.  Nothing contained herein shallbe construed to constitute Landlord’s consent to Tenant holding over at theexpiration or earlier termination of the Lease term or to give Tenant the rightto hold over after the expiration or earlier termination of the LeaseTerm.  Tenant hereby agrees to indemnify,hold harmless and defend Landlord from any cost, loss, claim or liability(including attorneys’ fees) Landlord may incur as a result of Tenant’s failureto surrender possession of the Premises to Landlord upon the termination ofthis Lease.

# **32.          Landlord’sAccess.**

**32.1        Access.**  Landlord and Landlord’s agents, contractorsand employees shall have the right to enter the Premises at reasonable timesand on reasonable advance notice (which need not be in writing, and which neednot be given at all in the case of an emergency) for the purpose of inspectingthe Premises, performing any services required of Landlord, showing thePremises to prospective purchasers, lenders, or (during the last twelve (12)months of the Term) tenants, or for undertaking safety measures and making alterations,repairs, improvements or additions to the Premises or to the Building.  In the event of an emergency, Landlord maygain access to the Premises by any reasonable means, and Landlord shall not beliable to Tenant for damage to the Premises or to Tenant’s property resultingfrom such access. Landlord may at any time place on or about the Building forsale or for lease signs and Landlord may at any time during the last ninety(90) days of the term hereof place on or about the Premises for lease signs.  Landlord shall use commercially reasonableefforts to minimize interference with the conduct of Tenant’s business inconnection with any of the foregoing.

**32.2        Keys.**  Landlord shall have the right to retain keysand electric codes or card keys to the locks, card key access systems and othersecurity systems on the entry doors to the Premises and all interior doors atthe Premises.  At Landlord’s option,Landlord may require

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Tenant to obtain all keys to door locks at thePremises from Landlord’s engineering staff or Landlord’s locksmith and to onlyuse Landlord’s engineering staff or Landlord’s locksmith to change locks at thePremises.  Tenant shall pay Landlord’s orits locksmith’s standard charge for all keys and other services obtained fromLandlord’s engineering staff or locksmith.

**33.          SecurityMeasures****.**  Tenant hereby acknowledges that Landlordshall have no obligation whatsoever to provide guard service or other securitymeasures for the benefit of the Premises or the Property, and Landlord shall haveno liability to Tenant due to its failure to provide such services.  Tenant assumes all responsibility for theprotection of Tenant, its agents, employees, contractors and invitees and theproperty of Tenant and of Tenant’s agents, employees, contractors and inviteesfrom acts of third parties.  Nothingherein contained shall prevent Landlord, at Landlord’s sole option, fromimplementing security measures for the Property or any part thereof, in whichevent Tenant shall participate in such security measures and the cost thereofshall be included within the definition of Operating Expenses, and Landlordshall have no liability to Tenant or its agents, employees, contractors andinvitees arising out of Landlord’s negligent provision of securitymeasures.  Landlord shall have the right,but not the obligation, to require all persons entering or leaving the Propertyto identify themselves to a security guard and to reasonably establish thatsuch person should be permitted access to the Property.

**34.          Easements****.**  Landlord reservesto itself the right, from time to time, to grant such easements, rights anddedications that Landlord deems necessary or desirable, and to cause therecordation of parcel maps and restrictions, so long as such easements, rights,dedications, maps and restrictions do not unreasonably interfere with the useof the Premises by Tenant.  Tenant shallsign (or propose reasonable modifications) any of the aforementioned documentswithin fifteen (15) days after Landlord’s request and Tenant’s failure to do soshall constitute a material default by Tenant. The obstruction of Tenant’s view, air, or light by any structure erectedin the vicinity of the Building, whether by Landlord or third parties, shall inno way affect this Lease or impose any liability upon Landlord.

**35.          TransportationManagement****.**  Tenant shall fully comply at its sole expensewith all present or future programs implemented or required by any governmentalor quasi-governmental entity, such as but not limited to the 128 BusinessCouncil or LEXPRESS, to manage parking, transportation, air pollution, ortraffic in and around the Property or the metropolitan area in which theProperty is located.

**36.          Severability****.**  The invalidity ofany provision of this Lease as determined by a court of competent jurisdictionshall in no way affect the validity of any other provision hereof.

**37.          Timeof Essence****.**  Time is of the essence with respect to eachof the obligations to be performed by Tenant under this Lease.

**38.          Definitionof Additional Rent****.**  All monetary obligations of Tenant toLandlord under the terms of this Lease, including, but not limited to, BaseRent, Tenant’s Share of Operating Expenses and Tenant’s Share of Real PropertyTax increases, shall be deemed to be rent.

**39.          Incorporationof Prior Agreements****.**  This Lease and the attachments listed in **Section 1.17** contain all agreements ofthe parties with respect to the lease of the Premises and

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any other matter mentioned herein.  No prior or contemporaneous agreement orunderstanding pertaining to any such matter shall be effective. Except asotherwise stated in this Lease, Tenant hereby acknowledges that no real estatebroker nor Landlord or any employee or agents of any of said persons has madeany oral or written warranties or representations to Tenant concerning thecondition or use by Tenant of the Premises or the Property or concerning anyother matter addressed by this Lease.

 

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**40.          Amendments****.**  This Lease may bemodified in writing only, signed by the parties in interest at the time of themodification.

**41.          Notices****.**  All noticesrequired or permitted by this Lease shall be in writing and may be delivered(a) in person (by hand, by messenger or by courier service), (b) by U.S. PostalService certified mail, return receipt requested, or (c) by U.S. Postal ServiceExpress Mail, Federal Express or other nationally recognized overnight courier,and shall be deemed sufficiently given if served in a manner specified in this **Section 41**. The addresses set forth in **Section1.22** of this Lease shall be the address of each party for noticepurposes, provided that in any case a notice permitted or required hereunder,including without limitation any notice to pay rent or quit or similar notice,shall be deemed personally delivered to Tenant on the date the notice ispersonally delivered to any employee of Tenant at the Premises. Landlord orTenant may by written notice to the other specify a different address fornotice purposes.  A copy of all noticesrequired or permitted to be given to either party hereunder shall beconcurrently transmitted to such party or parties at such addresses as suchother party may from time to time hereinafter designate by written notice tothe other party.  Any notice sent bycertified mail, return receipt requested, shall be deemed given three (3) daysafter deposited with the U.S. Postal Service. Notices delivered by U.S. Express Mail, Federal Express or other nationallyrecognized courier shall be deemed given on the date delivered by the carrieror the date delivery is refused at the appropriate party’s address for noticepurposes.  If notice is received onSaturday, Sunday or a legal holiday, it shall be deemed received on the nextbusiness day.  Nothing contained hereinshall be construed to limit Landlord’s right to serve any notice to pay rent orquit or similar notice by any method permitted by applicable law, and any suchnotice shall be effective if served in accordance with any method permitted byapplicable law whether or not the requirements of this Section 41 have beenmet.

**42.          Waivers****.**  No waiver byLandlord of any provision hereof shall be deemed a waiver of any otherprovision hereof or of any subsequent breach by Tenant of the same or any otherprovision. Landlord’s consent to, or approval of, any act shall not be deemedto render unnecessary the obtaining of Landlord’s consent to or approval of anysubsequent act by Tenant.  The acceptanceof rent hereunder by Landlord shall not be a waiver of any preceding breach byTenant of any provision hereof, other than the failure of Tenant to pay theparticular rent so accepted, regardless of Landlord’s knowledge of suchpreceding breach at the time of acceptance of such rent.  No acceptance by Landlord of partial paymentof any sum due from Tenant shall be deemed a waiver by Landlord of its right toreceive the full amount due, nor shall any endorsement or statement on anycheck or accompanying letter from Tenant be deemed an accord andsatisfaction.  Tenant hereby waives forTenant and all those claiming under Tenant all rights now or hereafter existingto redeem by order or judgment of any court or by legal process or writ, Tenant’sright of occupancy of the Premises after any termination of this Lease or tootherwise obtain relief from the forfeiture or termination of the Lease.

**43.          Covenants****.** This Lease shall be construed as though Landlord’scovenants contained herein are independent and not dependent and, to the extentpermitted by applicable law, Tenant hereby waives the benefit of any statute orother law to the contrary. Tenant agrees that Tenant shall not have any rightto terminate this Lease on account of any default or breach by Landlord of itsobligations hereunder, and that Tenant’s remedies in the case of such a defaultor breach

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shall be limited to an action against Landlord fordamages. All provisions of this Lease to be observed or performed by Tenant areboth covenants and conditions.

# **44.          Binding Effect; Choice of Law**

Subject to any provision hereof restricting assignmentor subletting by Tenant, this Lease shall bind the parties, their heirs,personal representatives, successors and assigns.  This Lease shall be governed by the laws ofthe state in which the Property is located and any litigation concerning thisLease between the parties hereto shall be initiated in the county in which theProperty is located.

**45.          Attorneys’Fees****.**  If Landlord or Tenant brings an action toenforce the terms hereof or declare rights hereunder, the prevailing party inany such action, or appeal thereon, shall be entitled to its reasonableattorneys’ fees and court costs to be paid by the losing party as fixed by thecourt in the same or separate suit, and whether or not such action is pursuedto decision or judgment.  The attorneys’fee award shall not be computed in accordance with any court fee schedule, butshall be such as to fully reimburse all attorneys’ fees and court costsreasonably incurred in good faith. Landlord shall be entitled to reasonable attorneys’ fees and all othercosts and expenses incurred in the preparation and service of notices ofdefault and consultations in connection therewith, whether or not a legalaction is subsequently commenced in connection with such default. Landlord andTenant agree that attorneys’ fees incurred with respect to defaults andbankruptcy are actual pecuniary losses within the meaning of Section365(b)(1)(B) of the Bankruptcy Code or any successor statute.

**46.          Auctions****.**  Tenant shall notconduct, nor permit to be conducted, either voluntarily or involuntarily, anyauction upon the Premises or the Common Areas. The holding of any auction on the Premises or Common Areas in violationof this **Section 46** shallconstitute a material default hereunder.

**47.          Signs****.**  Tenant shall notplace any sign upon the Premises (including on the inside or the outside of thedoors or windows of the Premises) or the Building without Landlord’s priorwritten consent, which may be given or withheld in Landlord’s solediscretion.  Landlord shall have theright to place any sign it deems appropriate on any portion of the Building orthe Property except the interior of the Premises.  Any sign Landlord permits Tenant to placeupon the Premises shall be maintained by Tenant, at Tenant’s sole expense.  Landlord shallinclude Tenant’s name in the Building’s directories (main lobby and third floorelevator lobby) at Landlord’s expense, and the cost of any subsequentmodifications thereto shall be paid for by .

**48.          Merger****.**  The voluntary orother surrender of this Lease by Tenant, or a mutual cancellation thereof, or atermination by Landlord, shall not result in the merger of Landlord’s andTenant’s estates, and shall, at the option of Landlord, terminate all or anyexisting subtenancies or may, at the option of Landlord, operate as anassignment to Landlord of any or all of such subtenancies.

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**49.          QuietPossession****.**  Provided there is no Event of Defaulthereunder, and subject to the rights of any lender (and in that regard subjectto **Section 26**), Tenant shall have quietpossession of the Premises for the entire Term hereof, subject to all of theprovisions of this Lease.

**50.          Authority****.**  Each partyrepresents and warrants to the other that the individual executing anddelivering this Lease is duly authorized to execute and deliver this Lease onbehalf of said party, that said party is duly authorized to enter into thisLease, and that this Lease is enforceable against said party in accordance withits terms.

**51.          Conflict****.**  Except as otherwiseprovided herein to the contrary, any conflict between the printed provisions,exhibits, addenda or riders of this Lease and the typewritten or handwrittenprovisions, if any, shall be controlled by the typewritten or handwrittenprovisions.

**52.          MultipleParties****.**  If more than one person or entity is named asTenant herein, the obligations of Tenant shall be the joint and severalresponsibilities of all persons or entities named herein as Tenant.  Service of a notice in accordance with **Section 41** on one Tenant shall be deemedservice of notice on all Tenants.

**53.          Interpretation****.** This Lease shall beinterpreted as if it was prepared by both parties and ambiguities shall not beresolved in favor of Tenant because all or a portion of this Lease was preparedby Landlord.  The captions contained inthis Lease are for convenience only and shall not be deemed to limit or alterthe meaning of this Lease.  As used inthis Lease the words tenant and landlord include the plural as well as thesingular.  Words used in the neutergender include the masculine and feminine gender.

**54.          ProhibitionAgainst Recording****.**  Neither this Lease, nor any memorandum,affidavit or other writing with respect thereto, shall be recorded by Tenant orby anyone acting through, under or on behalf of Tenant.  Either Landlord or Tenant shall have theright to record a notice of this Lease, and the other party shall execute,acknowledge and deliver to the party requesting same for recording any suchnotice within thirty (30) following request. The form of any such notice shallbe reasonably acceptable to counsel for each party.

**55.          Relationshipof Parties****.**  Nothing contained in this Lease shall bedeemed or construed by the parties hereto or by any third party to create therelationship of principal and agent, partnership, joint venturer or anyassociation between Landlord and Tenant.

**56.          Rulesand Regulations****.**  Tenant agrees to abide by and conform to theRules and to cause its employees, suppliers, customers and invitees to so abideand conform.  Landlord shall have theright, from time to time, to modify, amend and enforce the Rules in anon-discriminatory manner. Landlord shall not be responsible to Tenant for thefailure of other persons including, but not limited to, other tenants, theiragents, employees and invitees to comply with the Rules.

**57.          Rightto Lease****.**  Landlord reserves the absolute right toeffect such other tenancies in the Building or the Property as Landlord in itssole discretion shall determine, and Tenant is not relying on anyrepresentation that any specific tenant or number of tenants will occupy theBuilding or the Property.

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**58.          IntentionallyOmitted****.**

**59.          IntentionallyOmitted****.**

**60.          Attachments****.**  The items listed in**Section 1.21** are a part of thisLease and are incorporated herein by this reference.

**61.          CostsRelated to Tenant Requests****.**  To the extent that the proper evaluation of,and/or response to, any request by Tenant reasonably requires professionaladvice or input, and if Landlord in fact seeks such professional advice, Tenantshall (except as may otherwise be provided in this Lease) reimburse Landlordpromptly upon request for the actual and reasonable out-of-pocket costs andexpenses incurred by Landlord as a result of any Tenant request, including, forexample, legal fees and expenses incurred to review an assignment or sublettingrequest or architectural and engineering fees incurred to review a proposedalteration by Tenant.

**62.          Confidentiality****.**  Tenant acknowledgesand agrees that the terms of this Lease are confidential and constitutepropriety information of Landlord. Disclosure of the terms hereof could adversely affect the ability ofLandlord to negotiate other leases with respect to the Building and may impairLandlord’s relationship with other tenants of the Building. Except to the extent required by any applicablestatutes, rules, regulations, including, but not limited to, any filingsrequired by the Securities and Exchange Commission, the National Association ofSecurities Dealers or any regulatory body, or in connection with any legalaction or as requested by its auditors, Tenant agrees that it and itspartners, officers, directors, employees, brokers, and attorneys, if any, shallnot disclose the terms and conditions of this Lease to any other person orentity without the prior written consent of Landlord which may be given orwithheld by Landlord, in Landlord’s sole discretion.  It is understood and agreed that damagesalone would be an inadequate remedy for the breach of this provision by Tenant,and Landlord shall also have the right to seek specific performance of thisprovision and to seek injunctive relief to prevent its breach or continuedbreach.

**63.          WaiverOf Jury Trial****.**  LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVERIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM ORCROSS-COMPLAINT IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHERLANDLORD AGAINST TENANT OR TENANT AGAINST LANDLORD ON ANY MATTER WHATSOEVERARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OFLANDLORD AND TENANT, TENANT’S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OFINJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, ORREGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.  LANDLORD AND TENANT ACKNOWLEDGE THAT THEYHAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISIONCONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED ANDVOLUNTARY CONSENT THERETO.  THE PARTIESHEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASEARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORDAND TENANT WITH RESPECT TO THE PREMISES. TENANT ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO

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HAVE THIS LEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TOITS EXECUTION. PREPARATION OF THIS LEASE BY LANDLORD OR LANDLORD’S AGENT ANDSUBMISSION OF SAME TO TENANT SHALL NOT BE DEEMED AN OFFER BY LANDLORD TO LEASETHE PREMISES TO TENANT OR THE GRANT OF AN OPTION TO TENANT TO LEASE THEPREMISES.  THIS LEASE SHALL BECOMEBINDING UPON LANDLORD ONLY WHEN FULLY EXECUTED BY BOTH PARTIES AND WHENLANDLORD HAS DELIVERED A FULLY EXECUTED ORIGINAL OF THIS LEASE TO TENANT.

**64.          AccessTo Premises****.**  Tenant shall have access to the Premises 24hours a day, 7 days per week, but such access shall always be subject toreasonable rules and regulations from time to time established for the Buildingby Landlord (and shall be subject to interruption due to causes beyond Landlord’sreasonable control).

Balance of PageIntentionally Left Blank

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IN WITNESS WHEREOF, the undersigned have hereunto se their hands andseals as of the date first above written.
|        |   | LANDLORD                                            |
|--------|--------|-----------------------------------------------------|
|   |   |                                                |
|   |   | The Realty Associates Fund VI, L.P.,                |
|   |   | a Delaware limited partnership                      |
|   |   |                                                |
|   |   | By:                                                 | Realty Associates Fund VI LLC, |
|   |   |                                                | a Massachusetts limited liability company, |
|   |   |                                                | general partner |
|   |   |
|   |   | By:                                                 | Realty Associates Advisors LLC, a Delaware |
|   |   |                                                | limited liability company, Manager |
|   |   |
|   |   |                                                | By: | Realty Associates Advisors Trust, a |
|   |   |                                                |   | Massachusetts business trust, sole member |
|   |   |                                                |   |
|   |   |                                                | By: | /s/ James P. Raisides |   |
|   |   |                                                | Name: James P. Raisides |
|   |   |                                                | Title: Sr. Vice President |
|   |   |                                                |   |   |
|   |   | By:                                                 | Realty Associates Fund VI Texas Corporation, |
|   |   |                                                | a Texas corporation, general partner |   |
|   |   |                                                |   |
|   |   |                                                | By: | /s/ James P. Raisides |   |
|   |   |                                                | Name: James P. Raisides |
|   |   |                                                | Title: Sr. Vice President |
|   |   |                                                |   |   |
|   |   | TENANT:                                             |
|   |   |                                                |
|   |   | NITROMED, INC.                                      |
|   |   |                                                |
|   |   | By:                                                 | /s/ Kenneth M. Bate |   |
|   |   | Name: Kenneth M. Bate                               |
|   |   | Title: President and CEO                            |
|   |   |                                                |
|   |   | By:                                                 | /s/ James G. Ham, III |   |
|   |   | Name: James G. Ham, III                             |
|   |   | Title: Vice President, CFO, Treasurer and Secretary |
|        |        |                                                     |  |  |  |  |  |  |  |  |  |  |  |  |

 

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IF TENANT IS A CORPORATION, TRUST, LIMITED PARTNERSHIPOR LIMITED LIABILITY COMPANY, A SECRETARY’S, CLERK’S, TRUSTEE’S, GENERALPARTNER’S OR MANAGING MEMBER’S CERTIFICATE OF THE AUTHORITY AND THE INCUMBENCYOF THE PERSON SIGNING ON BEHALF OF TENANT SHALL BE ATTACHED.

 

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EXHIBIT A

LAYOUT PLAN

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EXHIBIT A-1

WORK LETTER

**45Hayden Avenue****Lexington MA**** -Nitromed — Work Letter -**

### February 9,2007

| **I. General Requirements**          | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|--------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                 | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| ADA                                  | All architectural and engineering will conform to  the requirements of ADAAG. All new construction and renovations shall comply  to with the Americans with Disabilities Act.                                                                                                                                                                                                                                                                                                  |
|                                 |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| Building Codes                       | All new construction and renovations shall be built  in full compliance with all city regulation, the city zoning ordinance and  state building codes. The contractor shall obtain and pay for all applicable  permits including building and occupancy permits.                                                                                                                                                                                                               |
|                                 |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| Substitutions                        | The information given here is intended to provide  minimum quality levels for construction standards. Substitutions will be  entertained but must be approved in writing by the owner’s architect and  agent                                                                                                                                                                                                                                                              |
|                                 |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| Existing Conditions                  | Where improvements as planned to modify an existing  space, the existing condition shall not fall below the standard described in  this document.                                                                                                                                                                                                                                                                                                                              |
|                                 |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| Electric Meters                      | Tenant must connect all power sources to meters  supplied by Landlord                                                                                                                                                                                                                                                                                                                                                                                                          |
|                                 |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| **II. Doors, Frames & Hardware** |
| ** **                           | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| Main Tenant                          |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| Entrance Doors                       | Main tenant entrance door shall be 3’-0” wide x  8’-0” high, 1-3/4” thick, rail & stile, natural finished wood door with  glass panel and adjacent natural finished wood framed sidelight to match  existing. Hardware will include 2 pairs of butt hinges, one lever action lock  set, one floor stop & one closer.                                                                                                                          |
| Additional Tenant                    |                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| Entrance Doors                       | Additional entrance doors will be 3’-0” x 7’-0”,  natural finished wood, solid core, 1 3¤4”  thick, to match existing conditions and finished with two coats clear  polyurethane. Door frames will be natural finish wood to match existing.  Hardware will include 2 pairs of butt hinges, one lever action lock set, one  floor stop, and one closer. Entrance doors will be provided in sufficient  quantity to meet local code requirements. |

 

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| Interior Doors                                     | Interior doors will be 3’-0” x 7’-0”, natural finish  wood, solid core, 1 3¤4”  thick, stained to match existing conditions and finished with two coats of  polyurethane. Door frames will be hollow metal (unless otherwise noted) to  match existing. Hardware will include 1-1/2 pairs of butt hinges, one lever  action passage latch set and one floor stop. |
|----------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Door finish to match - HALCON Light Beech - BE10S5                                                                                                                                                                                                                                                                                                                                              |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
| Sidelights                                         | All offices will have sidelights. Sidelights will be  2’-0” x 7’-0” with hollow metal frames painted to match door frames.                                                                                                                                                                                                                                                  |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
| Door Hardware                                      | All door hardware shall be US26D brushed chrome  finish.                                                                                                                                                                                                                                                                                                                                        |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | All pairs and uneven pairs shall receive concealed  manual flush bolts at top and bottom of inactive leaf.                                                                                                                                                                                                                                                                                      |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Passage Latch Set:                                                                                                                                                                                                                                                                                                                                                                              |
|                                               | “Schlage” Series “D” Athens                                                                                                                                                                                                                                                                                                                                                 |
|                                               | Model: Passage #D10S                                                                                                                                                                                                                                                                                                                                                                            |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Lock Set:                                                                                                                                                                                                                                                                                                                                                                                       |
|                                               | “Schlage” Series “D” Athens                                                                                                                                                                                                                                                                                                                                                 |
|                                               | Model: Lock #D73P                                                                                                                                                                                                                                                                                                                                                                               |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Store Room Lock Set:                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | “Schlage” Series “D” Athens                                                                                                                                                                                                                                                                                                                                                 |
|                                               | Model: Lock #D80PD                                                                                                                                                                                                                                                                                                                                                                              |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Dummy Trim:                                                                                                                                                                                                                                                                                                                                                                                     |
|                                               | “Schlage” Series “D” Athens                                                                                                                                                                                                                                                                                                                                                 |
|                                               | Model: #D170                                                                                                                                                                                                                                                                                                                                                                                    |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Stops:                                                                                                                                                                                                                                                                                                                                                                                          |
|                                               | “Ives” #436 Floor Stop                                                                                                                                                                                                                                                                                                                                                                |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Hinges:                                                                                                                                                                                                                                                                                                                                                                                         |
|                                               | “Hagar”                                                                                                                                                                                                                                                                                                                                                                               |
|                                               | Number pairs per leaf varies, see door descriptions                                                                                                                                                                                                                                                                                                                                             |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
| Door Closures                                      | All closures shall be US26D brushed chrome finish.                                                                                                                                                                                                                                                                                                                                              |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
|                                               | Tenant wood doors: LCN 4041                                                                                                                                                                                                                                                                                                                                                                     |
|                                               |                                                                                                                                                                                                                                                                                                                                                                                            |
| **III. Partitions**                                |                                                                                                                                                                                                                                                                                                                                                                                            |
| ** **                                         |                                                                                                                                                                                                                                                                                                                                                                                            |
| Note: Partition thicknesses vary. Verify in field. |

 

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| Typical Partition  | Partitions will be 3-5/8” metal studs, 16” o.c. with  one layer of 5/8” gypsum board on each side. Partition will extend from floor  to 6” above acoustical tile ceiling. (Studs need only extend to 6” above  ceiling). |
|--------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|               |                                                                                                                                                                                                                                              |
|               | Partitions will be 2-1/2” metal studs, 16” o.c. with  one layer of 5/8” gypsum board on each side. Partition will extend from floor  to 6” above acoustical tile ceiling. (Studs need only extend to 6” above  ceiling). |
|               |                                                                                                                                                                                                                                              |
| Demising Partition | Demising partition will be 3-5/8” metal studs, 16”  o.c. with one layer of 5/8” type X gypsum board on each side, sound batt  insulation. Wall will extend to deck of floor above.                                                 |
|               |                                                                                                                                                                                                                                              |
|               | Demising partition will be 2-1/2” metal studs, 16”  o.c. with one layer of 5/8” type X gypsum board on each side, sound batt insulation.  Wall will extend to deck of floor above.                                                 |
|               |                                                                                                                                                                                                                                              |
| Covebase           | All partitions will have a vinyl base, 4” high,  color selection to be from building standard. Straight base at carpet, cove  base at VCT. Johnsonite 1/8” vinyl base — Color — 44 — Dark Brown                          |
|               |                                                                                                                                                                                                                                              |
| **IV. Ceilings**   |                                                                                                                                                                                                                                              |
|               |                                                                                                                                                                                                                                              |
| **Tenant Area**    |                                                                                                                                                                                                                                              |
| Tile and Grid      | Shall be 24” x 24” lay-in mineral acoustical tile  “Armstrong”, Model 2195, white tile, with angled tegular edge, to match  existing, on an exposed 15/16” grid “T” white suspension system.                   |
|               |                                                                                                                                                                                                                                              |
|               | Ceiling heights will be: 9’-4”                                                                                                                                                                                                          |
|               |                                                                                                                                                                                                                                              |
| **V. Floor**       |                                                                                                                                                                                                                                              |
|               |                                                                                                                                                                                                                                              |
| Tenant Area        |                                                                                                                                                                                                                                              |
|               |                                                                                                                                                                                                                                              |
| Carpeting          | Tenant will have its choice of “Bigelow” carpeting.  All carpet shall be directly glued down and min. 28 oz. (bldg. standard).                                                                                                          |
|               |                                                                                                                                                                                                                                              |
|               | Field Carpet - Bigelow - Grid works W024 - color  3779 Wrought Iron - 32 oz. per sq yd                                                                                                                                                            |
|               | Accent Border - Spectrum III 36 BC112 - color 7979  Ebony - 36 oz. per sq yd                                                                                                                                                                      |

 

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| Tile                              | Shall be 12” x 12”standard vinyl composition to be  installed only in kitchen area, mail room and computer server rooms. Tile shall  be Armstrong Imperial Texture Standard Excelon — Color —Polar White - 51941  w/ 20% random accent tile Shadow Blue - 51807                                                                                                                                              |
|-----------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| **VI. Painting and Wallcovering** |
| ** **                        |
| Painting                          | All wall surfaces shall receive two coats of  “Benjamin Moore” (or equal) pearl finish latex paint. Color selection will be  tenant’s discretion with not more than one color per room. All metal door  frames shall receive two coats of semi-gloss latex.                                                                                                                                                       |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| **VII. Specialties**              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| ** **                        |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| Window Coverings                  | Vertical “Laserlite” blinds shall be installed at  exterior windows throughout the tenant area. Blinds will be uniform in color  throughout the building.                                                                                                                                                                                                                                                              |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                              | Track: “Laserlite” V-3000, color: clear anodized  aluminum                                                                                                                                                                                                                                                                                                                                                             |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                              | Louvers: 3-1/2” wide perforated PVC, color: to match  existing                                                                                                                                                                                                                                                                                                                                                              |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| Signage                           | Company name in white vinyl lettering, reverse cut.  No logos are allowed.                                                                                                                                                                                                                                                                                                                                                       |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| Movable Partition                 | Movable partition of approximately 16’-3” x 9’high  to be provided in split conference room. Hufcor or equal.                                                                                                                                                                                                                                                                                                     |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| **VIII. Lighting**                |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| ** **                        |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| **Tenant Area**                   |                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| Lighting                          | “Lightolier” #DPA2G18LP332 or equal. Low brightness,  2’x4’, 18- cell, three tube parabolic fixtures.                                                                                                                                                                                                                                                                                                        |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                              | “Lightolier” Paralyte #PLA2G9LP3U4OC or equal. Low  brightness, 2’x2’, 9- cell, two-tube (“U”) parabolic fixtures.                                                                                                                                                                                                                                                                                 |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
|                              | “Lightolier” or equal fluorescent downlight fixtures  to match existing.                                                                                                                                                                                                                                                                                                                                               |
|                              |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| **IX. Fire Protection**           |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| ** **                        |                                                                                                                                                                                                                                                                                                                                                                                                                             |
| Sprinklers                        | A complete fire protection sprinkler system using  exposed chrome ring, semi-recessed sprinkler heads, manufactured by Reliable,  will be provided to protect normal office use. Additional fire protection for  special uses will be provided at tenant’s request. Tenant should advise its  architect that sprinkler heads have already been installed. Relocation or  additional heads will be at tenant’s expense. |

 

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| Fire Extinguishers        | “Larsen’s” or equal semi-recessed fire extinguisher  white, full glass cabinets to match existing.                                                                                                                                                                                                                                                                    |
|---------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| Smoke Detectors           | Smoke detectors shall be installed to meet all  local, state, & federal codes.                                                                                                                                                                                                                                                                                                   |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| Horn Strobes              | Horn Strobes shall be installed to meet all local,  state, & federal codes.                                                                                                                                                                                                                                                                                                      |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| Exit Signage              | “Cooper” Sure-Lites or equal. Exit signage shall be  installed to meet all local, state, & federal codes.                                                                                                                                                                                                                                                              |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| **X. Electrical Service** |                                                                                                                                                                                                                                                                                                                                                                                 |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| Electrical Outlets        | One duplex outlet will be provided for each 100  square feet of usable area. Outlets shall be ivory on ivory in all public  spaces, and ivory on ivory in all tenant spaces.                                                                                                                                                                                                         |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| **XI. HVAC**              |                                                                                                                                                                                                                                                                                                                                                                                 |
| ** **                |                                                                                                                                                                                                                                                                                                                                                                                 |
| HVAC System               | A zoned variable air volume HVAC system will be  provided including distribution duct work, diffusers, return air grilles and  thermostatic controls for a normal office layout. The perimeter boxes in the  building are also fan powered induction type with heating hot water coils.  Relocation of VAV boxes or creation of additional for specialty areas will not  be allowed. |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
|                      | The building is equipped with a “Johnson” pneumatic  automatic temperature control system.                                                                                                                                                                                                                                                                                 |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
|                      | If areas such as computer rooms, copier rooms,  telephone/network rooms, or cafeterias require special cooling equipment,  stand-alone units will be provided at the tenant’s expense.                                                                                                                                                                                          |
|                      |                                                                                                                                                                                                                                                                                                                                                                                 |
| Zones                     | Exterior: 12-15’ x 40-60’ (diffusers every other  window and approx. 14 zones per floor) Linear diffusers are standard                                                                                                                                                                                                                                                     |
| Corners:                  | Separate Zones                                                                                                                                                                                                                                                                                                                                                                       |
| Interior:                 | 1500-2000 SF (Approx. 12 zones per floor)                                                                                                                                                                                                                                                                                                                                            |
| Conference Rooms:         | Separate zone recommended                                                                                                                                                                                                                                                                                                                                                            |
| Returns & Diffusers   | All HVAC returns & diffusers shall match  existing. Returns & diffusers shall be 2’x2’. Provide 4’ linear diffusers  at exterior window line.                                                                                                                                                                                                                 |

 

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EXHIBIT A-2Temporary Premises

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EXHIBIT B

VERIFICATIONLETTER

                      ,200  

[Name of Contact]

[Nameof Tenant]

RE:          [Nameof Tenant]

[Premises Rentable Area and Floor]

Dear[Name of Contact]:

Reference is made to that certain Lease, dated as of            ,200  , between THE REALTY ASSOCIATES FUND VI, L/P/, asLandlord and NitroMed, Inc. as Tenant, with respect to approximately 19,815square feet of space on the third floor of 45-55 Hayden Avenue, Lexington,Massachusetts. In accordance with Section 3.1 of the Lease, this is to confirmthat the Commencement Date of the Term of such Lease occurred on            ,and that the Term of such Lease shall expire on            ,200  , subject to Tenant’s Option to Extend set forth in Section 27of the Lease. If the foregoing is in accordance with your understanding, wouldyou kindly execute this letter in the space provided below, and return the sameto us for execution by Landlord, whereupon it will become a binding agreementbetween us.

Very truly yours,
|                      | By:    |   |
|----------------------|--------|--------|
|                 | Name:  |
|                 | Title: |
|                 |   |
| Accepted and Agreed: |   |
|                 |   |
| [Name of Tenant]     |   |
|                 |   |
| By:                  |   |   |
|                 | Name:  |   |
|                 | Title: |   |
|                 | Date:  |   |

 

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EXHIBIT C

RULES AND REGULATIONS

GENERAL RULES

Tenant shall faithfullyobserve and comply with the following Rules and Regulations. In the event ofany irreconcilable conflict between these Rules and Regulations, on the onehand, and the Lease, on the other, the terms and conditions of the Lease shallprevail and control.

1.             Tenant shall not alter any locks or install any new oradditional locks or bolts on any doors or windows of the Premises withoutobtaining Landlord’s prior written consent, which shall not be unreasonablywithheld, conditioned or delayed.  Tenantshall bear the cost of any lock changes or repairs required by Tenant. Keysrequired by Tenant must be obtained from Landlord at a reasonable cost to beestablished by Landlord.

2.             All doors opening to public corridors shall be keptclosed at all times except for normal ingress and egress to the Premises.Tenant shall assume any and all responsibility for protecting the Premises fromtheft, robbery and pilferage, which includes keeping doors locked and othermeans of entry to the Premises closed.

3.             Landlord reserves the right to close and keep locked allentrance and exit doors of the Building except during the Building’s normalhours of business as defined in **Section 11.4**of the Lease.  Tenant, its employees andagents must be sure that the doors to the Building are securely closed andlocked when leaving the Premises if it is after the normal hours of business ofthe Building.  Tenant, its employees,agents or any other persons entering or leaving the Building at any time whenit is so locked, or any time when it is considered to be after normal businesshours for the Building, may be required to sign the Building register.  Access to the Building or the Property may berefused unless the person seeking access has proper identification or has apreviously received authorization for access to the Building or theProperty.  Landlord and its agents shallin no case be liable for damages for any error with regard to the admission toor exclusion from the Building or the Property of any person.  In case of invasion, mob, riot, publicexcitement, or other commotion, Landlord reserves the right to prevent or limitaccess to the Building or the Property during the continuance thereof by anymeans it deems appropriate for the safety and protection of life and property, subject to the applicable provisions of this Lease.

4.             Landlord reserves the right, in Landlord’s commerciallyreasonable discretion, to close or limit access to the Building, the Propertyand/or the Premises, from time to time, due to the failure of utilities, due todamage to the Building, the Property and/or the Premises, to ensure the safetyof persons or property or due to government order or directive, and Tenantagrees to comply with any such decision by Landlord.  If Landlord closes or limits access to theBuilding, the Property and/or the Premises for the reasons described above,Landlord’s actions shall not constitute a breach of the Lease.

5.             No furniture, freight or equipment of any kind shall bebrought into the Building without Landlord’s prior authorization, which shallnot be unreasonably withheld, delayed or conditioned.  All moving activity into or out of theBuilding shall be scheduled with Landlord

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and done only at such time and in such manner asLandlord reasonably designates.  Landlordshall have the right to prescribe the weight, size and position of all safesand other heavy property brought into the Building and also the times andmanner of moving the same in and out of the Building.  Safes and other heavy objects shall, ifconsidered reasonably necessary by Landlord, stand on supports of suchthickness as is necessary to properly distribute the weight, and Tenant shallbe solely responsible for the cost of installing all supports.  Except as may be expressly provided in theLease, (i) Landlord will not be responsible for loss of or damage to any suchsafe or property in any case, and (ii) any damage to any part of the Buildingor the Property, its contents, occupants or visitors by moving or maintainingany such safe or other property shall be the sole responsibility and expense ofTenant.

6.             The requirements of Tenant will be attended to only uponapplication at the management office for the Building or at such officelocation designated by Landlord.  Tenantshall not ask employees of Landlord to do anything outside their regular dutieswithout special authorization from Landlord.

7.             Tenant shall not disturb, solicit, or canvass anyoccupant of the Building and shall cooperate with Landlord and its agents toprevent the same.  Tenant, its employeesand agents shall not loiter in or on the entrances, corridors, sidewalks,lobbies, halls, stairways, elevators, or any Common Areas for the purpose ofsmoking tobacco products or for any other purpose, nor in any way obstruct suchareas, and shall use them only as a means of ingress and egress for thePremises.  Smoking shall not be permittedin the Common Areas.

8.             The toilet rooms, urinals and wash bowls shall not beused for any purpose other than that for which they were constructed, and noforeign substance of any kind whatsoever shall be thrown therein.  The expense of any breakage, stoppage ordamage resulting from the violation of this rule shall be borne by the tenantwho, or whose employees or agents, shall have caused it.

9.             Except for vending machines intended for the sole use ofTenant’s employees and invitees, no vending machine or machines other thanfractional horsepower office machines shall be installed, maintained oroperated upon the Premises without the written consent of Landlord, which shallnot be unreasonably withheld, conditioned or delayed.  All vendors or other persons visiting the Premisesshall be subject to the reasonable control of Landlord.  Tenant shall not permit its vendors or otherpersons visiting the Premises to solicit other tenants of the Building.

10.           Tenant shall not use or keep in or onthe Premises or the Building any kerosene, gasoline or other inflammable orcombustible fluid or material.  Tenantshall not bring into or keep within the Premises or the Building any animals,birds, bicycles or other vehicles.

11.           Tenant shall not use, keep or permitto be used or kept, any foul or noxious gas or substance in or on the Premises,or permit or allow the Premises to be occupied or used in a manner offensive orobjectionable to Landlord or other occupants of the Building by reason ofnoise, odors, or vibrations, or to otherwise interfere in any way with the useof the Building or the Property by other tenants.

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12.           No cooking shall be done or permittedon the Premises, nor shall the Premises be used for the storage of merchandise,for loading or for any improper, objectionable or immoral purposes.Notwithstanding the foregoing, Underwriters’ Laboratory approved equipment andmicrowave ovens may be used in the Premises for heating food and brewingcoffee, tea, hot chocolate and similar beverages for employees and visitors ofTenant, provided that such use is in accordance with all applicable federal,state and city laws, codes, ordinances, rules and regulations; and providedfurther that such cooking does not result in odors escaping from the Premises.

13.           Landlord shall have the right toreasonably approve where and how telephone wires are to be introduced to thePremises.  No boring or cutting for wiresshall be allowed without the consent of Landlord as provided in Section 7.3 ofthe Lease. The location of telephone call boxes and other office equipmentaffixed to the Premises shall be subject to the approval of Landlord.  Tenant shall not mark, drive nails or screws,or drill into the partitions, woodwork or plaster contained in the Premises orin any way deface the Premises or any part thereof without Landlord’s priorwritten consent.  Tenant shall notinstall any radio or television antenna, satellite dish, loudspeaker or otherdevice on the roof or exterior walls of the Building.  Tenant shall not interfere with broadcastingor reception from or in the Building or elsewhere.

14.           Landlord reserves the right toexclude or expel from the Property any person who, in the judgment of Landlord,is intoxicated or under the influence of liquor or drugs, or who shall in anymanner do any act in violation of any of these Rules and Regulations.

15.           Tenant shall not waste electricity,water or air conditioning and agrees to cooperate fully with Landlord to ensurethe most effective operation of the Building’s heating and air conditioningsystem, and shall refrain from attempting to adjust any controls.  Tenant shall not without the prior writtenconsent of Landlord use any method of heating or air conditioning other thanthat supplied by Landlord.  Tenant shallnot use electric fans or space heaters in the Premises.

16.           Tenant shall store all its trash andgarbage within the interior of the Premises. No material shall be placed in the trash boxes or receptacles if suchmaterial is of such nature that it may not be disposed of in the ordinary andcustomary manner of removing and disposing of trash from the Building withoutviolation of any law or ordinance governing such disposal.  All trash, garbage and refuse disposal shallbe made only through entry-ways and elevators provided for such purposes atsuch times as Landlord shall designate.

17.           Tenant shall comply with all safety,fire protection and evacuation procedures and regulations established byLandlord or any governmental agency.

18.           No awnings or other projection shallbe attached to the outside walls or windows of the Building by Tenant.  No curtains, blinds, shades or screens shallbe attached to or hung in any window or door of the Premises without the priorwritten consent of Landlord.  Landlord shallhave the right to require Tenant to use Landlord’s standard curtains or windowcoverings. Tenant shall not place any signs in the windows of the Premises orthe Building.  All electrical ceilingfixtures hung in the Premises must be fluorescent and/or of a quality, type,design and bulb color approved by Landlord. Tenant shall abide by Landlord’s reasonable regulations

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concerning the opening and closing of window coveringswhich are attached to the windows in the Premises.  The skylights, windows, and doors thatreflect or admit light and air into the halls, passageways or other publicplaces in the Building shall not be covered or obstructed by Tenant, nor shallany bottles, parcels or other articles be placed on the window sills.

19.           Tenant shall not employ any person orpersons other than the janitor of Landlord for the purpose of cleaning thePremises unless otherwise agreed to in writing by Landlord.   Landlord shall not be obligated to notifyTenant of the times at which the janitorial staff will enter the Premises, andTenant hereby authorizes the janitorial staff to enter the Premises atreasonable times, without notice. Janitor service shall include ordinary dusting and cleaning by thejanitor assigned to such work and shall not include cleaning of carpets orrugs, except normal vacuuming, or moving of furniture and other specialservices. Window cleaning shall be done only by Landlord at reasonableintervals and as Landlord deems necessary.

20.           Tenant acknowledges that the localfire department has previously required Landlord to participate in a fire andemergency preparedness program or may require Landlord and/or Tenant toparticipate in such a program in the future. Tenant agrees to take all actions necessary to comply with therequirements of such a program including, but not limited to, designatingcertain employees as “fire wardens” and requiring them to attend any necessaryclasses and meetings and to perform any required functions.

PARKING RULES

1.             Parking areas shall be used only for parking by vehiclesno longer than full size, passenger automobiles or minivans.  Tenant and its employees shall parkautomobiles within the lines of the parking spaces.

2.             Tenant shall not permit or allow any vehicles thatbelong to or are controlled by Tenant or Tenant’s employees, suppliers,shippers, customers, or invitees to be loaded, unloaded, or parked in areasother than those designated by Landlord for such activities.  Users of the parking area will obey allposted signs and park only in the areas designated for vehicle parking.

3.             Parking stickers, parking cards and other identificationdevices shall be the property of Landlord and shall be returned to Landlord bythe holder thereof upon termination of the holder’s parking privileges.  Landlord may require Tenant and each of itsemployees to give Landlord a deposit when a parking card or other parkingdevice is issued.  Landlord shall not beobligated to return the deposit unless and until the parking card or otherdevice is returned to Landlord.  Tenantwill pay such replacement charges as is reasonably established by Landlord forthe loss of such devices.  Loss or theftof parking identification stickers or devices from automobiles must be reportedto the parking operator immediately.  Anyparking identification stickers or devices reported lost or stolen found on anyunauthorized car will be confiscated and the illegal holder will be subject toprosecution.

4.             Landlord reserves the right to relocate all or a part ofparking spaces within the parking area, and to allocate them between compactand standard size and tandem spaces, as long as the same complies with theterms of the Lease and with applicable laws, ordinances and regulations.

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5.             Unless otherwise instructed, every person using theparking area is required to park and lock his own vehicle.  Landlord will not be responsible for anydamage to vehicles, injury to persons or loss of property, all of which risksare assumed by the party using the parking area.

6.             Validation of visitor parking, if established, will bepermissible only by such method or methods as Landlord may establish at ratesdetermined by Landlord, in Landlord’s sole discretion.  Only persons visiting Tenant at the Premisesshall be permitted by Tenant to use the Property’s visitor parking facilities.

7.             The maintenance, washing, waxing or cleaning of vehiclesin the parking spaces or Common Areas is prohibited.

8.             Tenant shall be responsible for seeing that all of itsemployees, agents and invitees comply with the applicable parking rules,regulations, laws and agreements. Parking area managers or attendants, if any, are not authorized to makeor allow any exceptions to these Parking Rules and Regulations.  Landlord reserves the right to terminateparking rights for any person or entity that willfully fails or refuses tocomply with these rules and regulations, provided that (except in circumstanceswhere safety of persons or property is reasonably likely to be jeopardized)Landlord shall have given Tenant notice thereof and such failure or refusal isnot corrected to the Landlord’s reasonable satisfaction within ten (10) days.

9.             Every driver is required to park his own car. Tenantagrees that all responsibility for damage to cars or the theft of or from carsis assumed by the driver, and further agrees that Tenant will hold Landlordharmless for any such damages or theft.

10.           Any vehicle parked by Tenant, its employees, contractors or visitors ina reserved parking space or in any area of the parking area that is notdesignated for the parking of such a vehicle may, at Landlord’s option, andwithout notice or demand, be towed away by any towing company selected byLandlord, and the cost of such towing shall be paid for by Tenant.

11.           At Landlord’s request, Tenant shallprovide Landlord with a list which includes the name of each person using theparking facilities based on Tenant’s parking rights under this Lease and thelicense plate number of the vehicle being used by that person. Tenant shallprovide Landlord with an updated list semi-annually or as Landlord mayotherwise request.

Landlord reserves theright at any time to change or rescind any one or more of these Rules andRegulations, or to make such other and further reasonable Rules and Regulationsas in Landlord’s reasonable judgment may from time to time be necessary for themanagement, safety, care and cleanliness of the Property, and for thepreservation of good order therein, as well as for the convenience of otheroccupants and tenants therein.  Landlordmay waive any one or more of these Rules and Regulations for the benefit of anyparticular tenant, but no such waiver by Landlord shall be construed as awaiver of such Rules and Regulations in favor of any other tenant, nor preventLandlord from thereafter enforcing any such Rules or Regulations against any orall tenants of the Property.  Tenantshall be deemed to have read these Rules and Regulations and to have agreed toabide by them as a condition of its occupancy of the Premises.

 

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EXHIBIT D

CLEANING SPECIFICATIONS

Janitorial vendor willperform daily, weekly, and monthly services at 45-55 Hayden Ave. Lexington,MA.  The services are the following:

Cleaning will begin at6:00pm each evening.  Monday throughFriday.  The contractor shall not providecleaning during holidays unless otherwise requested, if cleaning is requestedon a holiday Monday through Friday, cleaning services shall be provided at anadditional cost.

Janitorial company to provideall equipment and material necessary to perform all cleaning.

Services will alsoinclude one full-time Day Porter.

All cleaners andsupervisors shall be provided with proper identification (uniforms and nametags)

Contractor shall have afull time Manager on location nightly, and identified as Manager.

Cleaners shall berestricted to the assigned areas, keep tenant doors locked and familiar withthe security systems.

Janitorial Managerquality control audit tour of common area & tenants areas performed onceper month during normal business hours.  Theinspections of tenant space also allows each tenant the option to discussdeficiencies or concerns.

***Lobbies & Common Areas(Nightly)****:*

**Daily:**

·      Vacuumclean all carpet floor surfaces, including entry mats.  Inspect for stains and remove where possible.

·      thoroughlysweep and damp mop all hard surface floors

·      emptyall waste receptacles and replace liners (to be supplied by customer)

·      removedust from all horizontal surfaces, furniture, window ledges, radiators, coatracks, artificial plants, paintings and other wall decorations using chemicallytreated cloths

·      completelywipe all furniture

·      spotclean doors and walls, especially around door frames and light switches

·      spotclean all glass

----

**Weekly:**

·      spray-buffor hi-speed burnish all hard surface floors

·      completelywash all glass

·      vacuumcarpet edges

**Monthly:**

·      vacuumall upholstered furniture

·      renderall dusting of accessible surfaces not reached by daily cleaning

**Quarterly:**

·      dustall ceiling vents

***General Office Areas****:*

**Daily:**

·      emptyall waste receptacles and replace liners (to be supplied by customer)

·      emptyall **Hayden Recycles** receptacles when 3/4full to recycle container at loading doc.

·      spotclean all glass doors, partitions and glass walls that may exist

·      spotvacuum all carpeting

·      thoroughlysweep and damp mop all hard surface floors

**Weekly:**

·      removedust from all furniture, window ledges, radiators, etc.

·      spotclean doors and walls especially around door frames and light switches

·      completelywash all glass doors, partitions and glass walls that may exist

·      thoroughlyvacuum all carpeting

·      spotclean all carpeting

**Monthly:**

·      renderall dusting of accessible surfaces not reached by daily cleaning

·      spray-buffor hi-speed burnish all hard surface floors

**Quarterly:**

·      dustall ceiling vents

***Cafeteria:***

**Daily:**

·      pullall trash and replace liners (to be provided by customer)

·      wipedown all trash containers

·      removedust from all furniture, window ledges, radiators, coat racks, artificialplants, paintings and other wall decorations

·      cleanand polish all tables, chairs and arrange in an orderly fashion

·      spotclean doors and walls especially around and behind trash receptacles

·      thoroughlyvacuum and spot clean all carpeting

·      thoroughlydry mop and damp mop all hard surface floors

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**Monthly:**

·      spray-buffor hi-speed burnish all hard surface flooring

**Quarterly:**

·      vacuumall ceiling vents

***General Items***

1.               Any damagesinternally or externally to the building will be reported to Jones Lang LaSalle(781) 778-2563 (i.e. defective locks, plumbing etc.)

2.               All trash will beremoved from the building nightly.

3.               At the end of eachevening, all lights will be extinguished and doors secured.

 

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