Exhibit 10.19


 


STANDARD LEASE


 


Lexington
Corporate Center


10 Maguire Road


Lexington,
Massachusetts


 


	
  LANDLORD:

  	
   

  	
  Lexington Corporate
  Center Associates LLC

  
	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
  Bladelogic, Inc.

  
	
   

  	
   

  	
   

  
	
  PREMISES:

  	
   

  	
  Suite         ,
  which is the entire Second (2nd) Floor of Building 3 known as 10 Maguire
  Road, Lexington, Massachusetts and more particularly described in Exhibit A
  to this Lease

  
	
   

  	
   

  	
   

  
	
  DATED:

  	
   

  	
  As of January 10, 2006

  



 

















 


TABLE OF CONTENTS


 


	
  ARTICLE CAPTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  I.

  	
  BASIC LEASE PROVISIONS

  	
   

  	
  1

  
	
   

  	
  1.1

  	
  Introduction

  	
   

  	
   

  
	
   

  	
  1.2

  	
  Basic Data

  	
   

  	
   

  
	
   

  	
  1.3

  	
  Additional Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  PREMISES AND
  APPURTENANT RIGHTS

  	
   

  	
  6

  
	
   

  	
  2.1

  	
  Lease of Premises

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Appurtenant Rights and
  Reservations

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
  BASIC RENT

  	
   

  	
  7

  
	
   

  	
  3.1

  	
  Payment

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV.

  	
  COMMENCEMENT AND
  CONDITION

  	
   

  	
  7

  
	
   

  	
  4.1

  	
  Commencement Date

  	
   

  	
   

  
	
   

  	
  4.2

  	
  AS IS Condition

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Landlord’s Work

  	
   

  	
   

  
	
   

  	
  4.4

  	
  Preparation of the
  Premises

  	
   

  	
   

  
	
   

  	
  4.5

  	
  Conclusiveness of
  Landlord’s Performance

  	
   

  	
   

  
	
   

  	
  4.6

  	
  Tenant’s Delay

  	
   

  	
   

  
	
   

  	
  4.7

  	
  General Provisions
  Applicable to Construction

  	
   

  	
   

  
	
   

  	
  4.8

  	
  Construction Representatives

  	
   

  	
   

  
	
   

  	
  4.9

  	
  Landlord’s Contribution

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V.

  	
  USE OF PREMISES

  	
   

  	
  11

  
	
   

  	
  5.1

  	
  Permitted Use

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Installation and
  Alterations by Tenant

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VI.

  	
  ASSIGNMENT AND
  SUBLETTING

  	
   

  	
  14

  
	
   

  	
  6.1

  	
  Prohibition

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VII.

  	
  RESPONSIBILITY
  FOR REPAIRS AND CONDITIONS OF PREMISES; SERVICES TO BE FURNISHED BY LANDLORD

  	
   

  	
  16

  
	
   

  	
  7.1

  	
  Landlord Repairs

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Tenant’s Agreement

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Floor Load - Heavy
  Machinery

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Building Services

  	
   

  	
   

  
	
   

  	
  7.5

  	
  Electricity

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VIII.

  	
  REAL ESTATE TAXES

  	
   

  	
  21

  
	
   

  	
  8.1

  	
  Payments on Account of
  Real Estate Taxes

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Abatement

  	
   

  	
   

  
	
   

  	
  8.3

  	
  Alternate Taxes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IX.

  	
  OPERATING EXPENSES

  	
   

  	
  22

  



 

















 


	
   

  	
  9.1

  	
  Definitions

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Tenant’s Payments

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X.

  	
  INDEMNITY AND PUBLIC
  LIABILITY INSURANCE

  	
   

  	
  24

  
	
   

  	
  10.1

  	
  Tenant’s Indemnity

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Public Liability Insurance

  	
   

  	
   

  
	
   

  	
  10.3

  	
  Tenant’s Risk

  	
   

  	
   

  
	
   

  	
  10.4

  	
  Injury Caused by Third
  Parties

  	
   

  	
   

  
	
   

  	
  10.5

  	
  Landlord’s Insurance

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XI.

  	
  LANDLORD’S ACCESS TO
  PREMISES

  	
   

  	
  27

  
	
   

  	
  11.1

  	
  Landlord’s Rights

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XII.

  	
  FIRE, EMINENT DOMAIN,
  ETC.

  	
   

  	
  27

  
	
   

  	
  12.1

  	
  Abatement of Rent

  	
   

  	
   

  
	
   

  	
  12.2

  	
  Landlord’s Right of
  Termination

  	
   

  	
   

  
	
   

  	
  12.3

  	
  Restoration

  	
   

  	
   

  
	
   

  	
  12.4

  	
  Award

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XIII.

  	
  DEFAULT

  	
   

  	
  29

  
	
   

  	
  13.1

  	
  Tenant’s Default

  	
   

  	
   

  
	
   

  	
  13.2

  	
  Landlord’s Default

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  XIV.

  	
  MISCELLANEOUS
  PROVISIONS

  	
   

  	
  32

  
	
   

  	
  14.1

  	
  Extra Hazardous Use

  	
   

  	
   

  
	
   

  	
  14.2

  	
  Waiver

  	
   

  	
   

  
	
   

  	
  14.3

  	
  Covenant of Quiet Enjoyment

  	
   

  	
   

  
	
   

  	
  14.4

  	
  Landlord’s Liability

  	
   

  	
   

  
	
   

  	
  14.5

  	
  Notice to Mortgagee or
  Ground Lessor

  	
   

  	
   

  
	
   

  	
  14.6

  	
  Assignment of Rents and
  Transfer of Title

  	
   

  	
   

  
	
   

  	
  14.7

  	
  Rules and Regulations

  	
   

  	
   

  
	
   

  	
  14.8

  	
  Additional Charges

  	
   

  	
   

  
	
   

  	
  14.9

  	
  Invalidity of
  Particular Provisions

  	
   

  	
   

  
	
   

  	
  14.10

  	
  Provisions Binding,
  Etc.

  	
   

  	
   

  
	
   

  	
  14.11

  	
  Recording

  	
   

  	
   

  
	
   

  	
  14.12

  	
  Notices

  	
   

  	
   

  
	
   

  	
  14.13

  	
  When Lease Becomes
  Binding

  	
   

  	
   

  
	
   

  	
  14.14

  	
  Paragraph Headings

  	
   

  	
   

  
	
   

  	
  14.15

  	
  Rights of Mortgagee or
  Ground Lessor

  	
   

  	
   

  
	
   

  	
  14.16

  	
  Status Report

  	
   

  	
   

  
	
   

  	
  14.17

  	
  Security Deposit

  	
   

  	
   

  
	
   

  	
  14.18

  	
  Remedying Defaults

  	
   

  	
   

  
	
   

  	
  14.19

  	
  Holding Over

  	
   

  	
   

  
	
   

  	
  14.20

  	
  Waiver of Subrogation

  	
   

  	
   

  
	
   

  	
  14.21

  	
  Surrender of Premises

  	
   

  	
   

  
	
   

  	
  14.22

  	
  Intentionally Deleted

  	
   

  	
   

  
	
   

  	
  14.23

  	
  Brokerage

  	
   

  	
   

  



 


ii

















 


	
   

  	
  14.24

  	
  Special Taxation
  Provisions

  	
   

  	
   

  
	
   

  	
  14.25

  	
  Hazardous Materials

  	
   

  	
   

  
	
   

  	
  14.26

  	
  Governing Law

  	
   

  	
   

  
	
   

  	
  14.27

  	
  Intentionally Deleted

  	
   

  	
   

  
	
   

  	
  14.28

  	
  Survival Provision

  	
   

  	
   

  
	
   

  	
  14.29

  	
  Furniture/Equipment/Telephone
  System

  	
   

  	
   

  
	
   

  	
  14.30

  	
  Option to Extend

  	
   

  	
   

  
	
   

  	
  14.31

  	
  Tenant’s Access

  	
   

  	
   

  



 


iii

















 


L E A S E


 


Preamble


 


THIS INSTRUMENT IS A
LEASE, dated as of January 10, 2006 in which the Landlord and the Tenant are
the parties hereinafter named, and which relates to space located in that
certain building known and numbered as Building 3, 10 Maguire Road, Lexington,
Massachusetts. The parties to this instrument hereby agree with each other as
follows:


 


ARTICLE I


 


BASIC LEASE
PROVISIONS


 


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


 


1.2                                 BASIC
DATA. 


 


Landlord:                                             Lexington
Corporate Center Associates LLC,

a Delaware limited liability company


 


Landlord’s Original
Address:


c/o Essex River
Management, Inc.


225 Friend Street – 7th
Floor


Boston,
Massachusetts  02114


 


Tenant:                                                       Bladelogic,
Inc., a Delaware corporation


 


Tenant’s Original
Address:


400 Fifth Avenue


Waltham,
Massachusetts  02451


 


Guarantor:   None


 


Basic Rent:


 

















 


For 11,940 rentable square feet of the Premises:


 




	
  Lease Year

  	
   

  	
  Basic Rent

  	
   

  	
  Monthly Payment

  	
   

  	
  Per Square Foot

  Rental

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  For the period
  commencing on the Commencement Date through and including September 30, 2006

  	
   

  	
  $

  	
  202,980.00

  	
   

  	
  $

  	
  16,915.00

  	
   

  	
  $

  	
  17.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  For the entire
  Premises:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lease Year

  	
   

  	
  Basic Rent

  	
   

  	
  Monthly Payment

  	
   

  	
  Per Square Foot

  Rental

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  For the period
  commencing on October 1, 2006 through and including September 30, 2007

  	
   

  	
  $

  	
  633,940.00

  	
   

  	
  $

  	
  52,828.33

  	
   

  	
  $

  	
  20.00

  	
   

  
	
  For the period
  commencing on October 1, 2007 through and including September 30, 2008

  	
   

  	
  $

  	
  697,334.00

  	
   

  	
  $

  	
  58,111.17

  	
   

  	
  $

  	
  22.00

  	
   

  
	
  For the period
  commencing on October 1, 2008 through and including September 30, 2009

  	
   

  	
  $

  	
  713,182.50

  	
   

  	
  $

  	
  59,431.87

  	
   

  	
  $

  	
  22.50

  	
   

  
	
  For the period
  commencing on October 1, 2009 through and including September 30, 2010

  	
   

  	
  $

  	
  744,879.50

  	
   

  	
  $

  	
  62,073.29

  	
   

  	
  $

  	
  23.50

  	
   

  






 


2

















 


Base Taxes:  Actual Taxes for the fiscal year July 1, 2006
through and including June 30, 2007, as the same may be abated.


 


Base
Operating Expenses:  Operating Expenses
for the calendar year ending December 31, 2006.


 


Base
Utility Expenses:  Utility Expenses for
the calendar year ending December 31, 2006.


 


Premises Rentable Area:
Agreed to be approximately 31,697 rentable square feet.


 


Permitted Uses: General
Office Use.


 


Escalation Factor:  (For the period commencing on the
Commencement Date through and including September 30, 2006):  4.19%, as computed in accordance with the
Escalation Factor Computation.


 


Escalation Factor: (For
the period commencing on October 1, 2006 through and including September 30,
2010):  11.12%, as computed in accordance
with the Escalation Factor Computation.


 


Initial Term:  Approximately four (4) years, six (6) months
commencing on the Commencement Date and expiring at 11:59 p.m. on
September 30, 2010.


 


Security Deposit:  $211,313.33 (Provided that no Default of
Tenant exists under this Lease on September 30, 2007, Landlord shall reduce the
Security Deposit to $158,485.00 and Landlord shall refund $52,828.33 to Tenant
within ten (10) Business Days following such date).


 


Tenant’s
Original Electrical Factor: $1.25 per rentable square foot per year. $3,301.77
per month; $39,621.25 per year subject to adjustment from time to time, to
reflect changes in the cost of obtaining electric service.


 


Substantial
Completion Date:   That certain date upon
which “Landlord’s Work” (as said term is hereinafter defined) shall have been
substantially completed with the exception of minor items which do not cause
unreasonable interference with Tenant’s use of the Premises and can be
completed without unreasonable interference to Tenant’s use of the demised
premises, such incomplete items being “punch list items”, and Landlord has
obtained a building permit and a certificate of occupancy to permit Tenant to
lawfully occupy the Premises and delivered possession of the Premises to
Tenant.


 


3

















 


1.3           ADDITIONAL DEFINITIONS.


 


Manager:  Essex River Management, Inc. or such other
managing representative designated by Landlord as the Manager from time to
time.


 


Building Rentable
Area:  Agreed to be approximately 285,133
rentable square feet.


 


Business Days:  All days except Saturday, Sunday, New Year’s
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day.


 


Commencement Date: As
defined in Section 4.1.


 


Default of Tenant: As
defined in Section 13.1.


 


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


 


Escalation Factor
Computation: Premises Rentable Area divided by the Building Rentable Area,
except that during the period from the Commencement Date through and including
September 30, 2006, the Escalation Factor Computation will instead be
calculated as 11,940 divided by the Building Rentable Area.


 


Force Majeure:
Collectively and individually, strike or other labor trouble, fire or other
casualty, governmental preemption of priorities or other controls in connection
with a national or other public emergency or shortages of, or inability to
obtain, fuel, supplies or labor resulting therefrom, or any other cause,
whether similar or dissimilar, beyond Landlord’s reasonable control.


 


Initial Public Liability
Insurance: $1,000,000 (per occurrence) primary liability and $3,000,000 (per
occurrence) excess liability (combined single limit) for bodily injury, death
and property damage, such policies to be written with companies reasonably
approved by Landlord and having a Best’s Insurance Rating of A- or better with
a Financial Rating of VIII. Notwithstanding the foregoing, Landlord hereby
approves St. Paul Fire & Marine Insurance Company as Tenant’s insurance
company.


 


Lease Year or lease
year:  Each consecutive 12 calendar month
period immediately following the Commencement Date, but if the Commencement
Date shall fall on other than the first day of a calendar month, then such term
shall mean each consecutive twelve calendar month period commencing with the
first day of the first full calendar month following the calendar month in
which the Commencement Date occurs, however, the first lease year shall include
any partial month between the Commencement Date and the first day of the first
full calendar month immediately following the Commencement Date.


 


Operating Expenses: As
set forth in Section 9. 1.


 


Operating Year: As
defined in Section 9.1.


 


4

















 


Outside Delivery
Date:   As set forth in Section 4.6.


 


Premises: The entire
second (2nd) floor of the Building containing the Premises Rentable Area and
shown on Exhibit A annexed hereto.


 


Building:  That certain building containing the Building
Rentable Area and commonly known and numbered 10 Maguire Road, Lexington,
Massachusetts and shown on the site plan attached hereto as Exhibit B.


 


Property: The Building
and the land parcel on which it is located (including any parking areas,
driveways, adjacent sidewalks and any other building and improvements thereon)
and the land parcel on which the parking area is located (including any
driveways and adjacent sidewalks thereon).


 


Rent Commencement
Date:  As defined in Section 3.1.


 


Tax Year: As defined in
Section 8.1.


 


Taxes: As determined in
accordance with Section 8. 1.


 


Tenants Removable
Property: As defined in Section 5.2.


 


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


 


Utility Expenses: As
defined in Section 9.1.


 


Exhibits: The following
Exhibits are annexed to this Lease and incorporated herein by this reference:


 


Exhibit A -             Plan showing Premises


Exhibit B -              Site Plan of Building


Exhibit C -              Plan showing Landlord’s Work


Exhibit D -              Rules and Regulations


Exhibit E -              Operating Expenses


Exhibit F -              Cleaning Services


Exhibit G -              Subordination, Non-Disturbance and
Attornment Agreement


 


5

















 


ARTICLE II


 


PREMISES AND
APPURTENANT RIGHTS.


 


2.1           LEASE OF PREMISES. Landlord
hereby demises and leases to Tenant for the Term of this Lease and upon the
terms and conditions hereinafter set forth and Tenant hereby accepts from
Landlord, the Premises.


 


2.2           APPURTENANT RIGHTS AND RESERVATIONS.
(a) Tenant shall have, as appurtenant to the Premises, the non-exclusive right
to use, and permit its invitees to use in common with others, public or common
lobbies, hallways, elevators, and common walkways necessary for access to the
Building, the access roads, driveways, parking areas, loading areas, sidewalks,
landscaped areas, trash enclosures, recreation areas and other areas or
facilities, if any, located in or on or serving the Property, and if the
portion of the Premises on any floor includes less than the entire floor, the
common toilets, corridors and elevator lobby of such floor; but all such rights
shall always be subject to reasonable rules and regulations from time to time
established by Landlord pursuant to Section 14.7 and to the right of Landlord
to designate and change from time to time areas and facilities so to be used.


 


(b)           Excepted and excluded from the
Premises are the ceiling, floor, perimeter walls and exterior windows, except
the inner surfaces thereof, but the entry doors (and related glass and finish
work) to the Premises are a part thereof; and Tenant agrees that Landlord shall
have the right to place in the Premises (but in such manner as to reduce to a
minimum interference with Tenant’s use of the Premises) interior storm windows,
subcontrol devices (by way of illustration, an electric sub panel, etc.),
utility lines, pipes, equipment and the like, in, over and upon the Premises.
Tenant shall install and maintain, as Landlord may require, proper access
panels in any hung ceilings or walls installed by Tenant in the Premises to
afford access to any facilities above the ceiling or within or behind the
walls, except that Landlord shall be responsible to install such access panels
in connection with Landlord’s Work.


 


(c)           Parking. Tenant, at no
additional charge, shall have the non-exclusive right to use the parking spaces
on the surface parking lot located on the Property at a rate of 3.5 spaces per
1,000 rentable square feet of space leased by Tenant.


 


(d)           Building Amenities. Tenant, at
no additional charge, shall have the non-exclusive right to use the Building
amenities including the full service cafeteria, loading docks, fitness center,
lockers and showers.


 


6

















 


ARTICLE III


 


BASIC RENT


 


3.1           PAYMENT. (a) Tenant agrees to
pay to Landlord, or as directed by Landlord, commencing on the “Commencement
Date” (as said term is defined in Section 4.1 below) without offset, abatement,
deduction or demand (except as expressly provided in this Lease), the Basic
Rent plus Escalation Charges and Tenant’s Original Electrical Factor due in
accordance with the terms of this Lease. Such Basic Rent plus Landlord’s
estimated amounts for Escalation Charges and Tenant’s Original Electrical
Factor shall be payable in equal monthly installments, in advance, on the first
day of each and every calendar month during the Term of this Lease, at Landlord’s
Original Address, or at such other place as Landlord shall from time to time
designate by notice to Tenant, in lawful money of the United States. In the
event that any installment of Basic Rent or Escalation Charges or Tenant’s
Original Electrical Factor is not paid when due, Tenant shall pay, in addition
to any other additional charges due under this Lease, an administrative fee
equal to 5% of the overdue payment; provided, however, that Landlord agrees to
waive such administrative fee for the first late payment by Tenant during any
Lease Year during the Term of this Lease.


 


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


 


ARTICLE IV


 


COMMENCEMENT AND
CONDITION


 


4.1           COMMENCEMENT DATE. The
Commencement Date shall be one (1) Business Day following the Substantial
Completion Date. Notwithstanding the foregoing, if Tenant’s personnel shall
occupy all or any part of the Premises for the conduct of its business prior to
the Commencement Date, such date shall for all purposes of this Lease be the
Commencement Date. The Tenant shall, upon demand of the Landlord, execute a
certificate confirming the Commencement Date as it is determined in accordance
with the provisions of this Section 4.1.


 


4.2           AS IS CONDITION. Tenant
acknowledges that it has inspected the Premises, and it is understood and
agreed  that except for “Landlord’s Work”
(as said term is hereinafter defined), Tenant will accept the Premises in their
existing physical AS-IS condition without any


 


7

















 


representations or
warranties (express, implied or otherwise), and Landlord shall be under no
obligation to make any repairs, alterations or improvements to the Premises
prior to or at the commencement of the term hereof or at any time thereafter,
except as herein specifically provided otherwise. Tenant shall equip the
Premises with all trade fixtures and personal property suitable or appropriate
to the regular and normal operation of the type of business in which Tenant is
engaged. All such trade fixtures and personal property shall be of first-class
quality.


 


4.3           LANDLORD’S WORK. Landlord, at
its sole cost and expense, shall complete Landlord’s Work in accordance with
all applicable laws and codes, the plans and specifications attached hereto as
Exhibit C and otherwise using building standard materials, colors and
quantities selected by Tenant. Notwithstanding anything to the contrary
contained in this Lease, Tenant at its sole cost and expense, shall be
responsible for the prompt payment of any costs and expenses associated with
any other construction, alterations or improvements to the Premises. Landlord
shall be responsible for all costs associated with the design and construction
of Landlord’s Work in the Premises. Notwithstanding anything to the contrary
contained in this Lease, Tenant shall be responsible for all costs and expenses
associated with the installation, maintenance, repair, replacement and removal
of any data/telephone/internet wiring or cabling serving the Premises, except
for any portion of “Landlord’s Contribution” (as said term is defined in
Section 4.9 below) which is used for any such wiring or cabling. Subject to the
terms, provisions, agreements, covenants and conditions contained in this Lease
(other than any obligation to pay Basic Rent, Escalation Charges, Tenant’s
Original Electrical Factor or any other charges under this Lease prior to the Commencement
Date), Tenant shall have the right to access the Premises prior to the
Commencement Date for installation of “Tenant’s Furnishings” (as said term is
defined in Section 4.9 below) provided that Tenant shall cooperate with
Landlord and its agents, employees, contractors and subcontractors in
exercising any such access right. As used herein, the term “Landlord’s Work”
shall mean that certain work, as more particularly shown on Exhibit C attached
hereto and incorporated herein by reference thereto, which Landlord shall
complete using building standard materials, colors and quantities selected by
Tenant.


 


4.4                                 REMEDIES
FOR DELAY IN THE COMMENCEMENT DATE


 


(a) Landlord shall
exercise all reasonable efforts to complete Landlord’s Work on or before May
31, 2006 (the “Outside Delivery Date”), subject to extension due solely to
Force Majeure (for a period not to exceed 
sixty (60) days) or Tenant’s Delays. If the Commencement Date has not
occurred on or before the Outside Delivery Date, as such date may be extended
due solely to Force Majeure (for a period not to exceed  sixty (60) days), Tenant shall be entitled to
a credit against Basic Rent first due under this Lease in an amount equal to
one day of Basic Rent for each day during such period that the Commencement
Date has not occurred. If Landlord fails to complete Landlord’s Work on or
prior to August 31, 2006 (the “Final Delivery Date”), Landlord shall be
responsible to pay to and indemnify and hold Tenant harmless from and against
any increased rent (the “Tenant’s Holdover Premium”) due to Tenant’s failure to
vacate its present office space leased under Tenant’s existing lease of
premises located at 400 Fifth Avenue, Waltham, MA. Landlord shall pay Tenant’s
Holdover Premium to Tenant within ten (10) days following receipt of an invoice
from Tenant. Notwithstanding anything herein to the contrary, if the


 


8

















 


Commencement Date has not
occurred on or before the Final Delivery Date, Tenant may, at any time after the
Final Delivery Date but prior to the Commencement Date and without waiving
Landlord’s obligation to pay and indemnify Tenant for Tenant’s Holdover Premium
which has accrued prior to the effective date of termination, elect to
terminate this Lease by delivery of thirty (30) days prior written notice to
Landlord and this Lease shall terminate without recourse to the parties at the
expiration of such thirty (30) day period unless prior to the expiration of
such time period, the Commencement Date occurs.


 


(b) The Premises shall be
deemed “ready for occupancy” on the Substantial Completion Date.


 


4.5           CONCLUSIVENESS OF LANDLORD’S
PERFORMANCE. Unless Tenant shall have given Landlord written notice by the
end of the second full calendar month after the Commencement Date of specific
respects in which Landlord has not performed Landlord’s Work in compliance with
the matters set forth in Exhibit C, Tenant shall have no claim that Landlord
has failed to perform any of Landlord’s Work. Except for Landlord’s Work, the Premises
are being leased in their condition, “as is” without warranty or representation
by Landlord. Tenant acknowledges that it has inspected the Premises and common
areas of the Building and, except for Landlord’s Work, has found the same to be
satisfactory.


 


4.6                                 TENANT’S
DELAYS


 


(a) If any delay shall
occur in the Substantial Completion Date as the direct result of:


 


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


 


(ii)     any change requested by Tenant (and
approved by Landlord) in Exhibit C or in any of Tenant’s plans once approved by
Landlord and Tenant provided Landlord notifies Tenant at the time of such
change request of the estimated length of Tenant’s Delay resulting from such
change order and Tenant fails to withdraw its request for the change within
three (3) Business Days after such notice. Any failure of Tenant to withdraw
its request as provided above shall constitute Tenant’s acceptance of Landlord’s
estimate of the length of Tenant’s Delay resulting from such change order; or


 


(iii)    any other act or omission of Tenant or its
members, officers, partners, agents, servants, employees, representatives or
contractors; or


 


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


 


9

















 


then, in any such event,
Tenant shall, from time to time and within ten (10) days after demand therefor,
pay to Landlord for each day the Substantial Completion Date is delayed beyond
the Outside Delivery Date by reason of the delays referred to in clauses (i),
(ii), (iii) and (iv) above, an amount equal to one day of Basic Rent (pro-rated
on a daily basis) for each such day of delay.


 


(b) If a delay in the Substantial Completion Date
is the result of Force Majeure, and such delay would not have occurred but for
a delay described in paragraph (a), such delay shall be deemed added to the
delay described in paragraph (a).


 


(c) The delays referred to in paragraphs (a) and
(b) are herein referred to collectively and individually as “Tenant’s Delay”.


 


(d) The Outside Delivery Date shall automatically
be extended for the period of any delays caused by Force Majeure provided any
such Force Majeure extensions of the Outside Delivery Date shall in no event
exceed an additional sixty (60) days in the aggregate.


 


(e) The Outside Delivery Date shall automatically
be extended for the period of any delays caused by Force Majeure (for a period
not to exceed sixty (60) days).


 


4.7           GENERAL PROVISIONS APPLICABLE TO
CONSTRUCTION.  All construction work required or permitted by this
Lease, whether performed by Landlord or by Tenant, shall be done in a good and
workmanlike manner and in compliance with all applicable laws, ordinances,
regulations, codes and orders of any governmental authority. Either party may
inspect the work of the other at reasonable times and shall give notice of
observed defects.


 


4.8           CONSTRUCTION REPRESENTATIVES. Each
party authorizes the other to rely in connection with plans and construction
upon approval and other actions on the party’s behalf by any Construction
Representative of the party named in Section 1.1 or any person hereafter
designated in substitution or addition by notice to the party relying.


 


4.9           LANDLORD’S CONTRIBUTION. Subject
to the terms, provisions and conditions of this Section 4.9, Landlord shall
contribute to the costs and expenses associated with Tenant’s purchase and
installation of “Tenant’s Furnishings” (as said term is hereinafter defined) a
sum (“Landlord’s Contribution”) not to exceed Two Hundred Thirteen Thousand
Three Hundred Twenty and 81/100ths Dollars ($213,320.81) ($6.73 per square foot
of the Premises Rentable Area). Except for Landlord’s Contribution, Tenant
shall promptly pay in full all costs and expenses associated with Tenant’s
Furnishings. Within thirty (30) days of Landlord’s receipt of invoices related
to Tenant’s Furnishings as submitted to Landlord by Tenant and provided that no
Default of Tenant exists under this Lease, Landlord shall contribute up to the
maximum amount of Landlord’s Contribution toward payment of Tenant’s
Furnishings. Landlord’s Contribution shall be used only for Tenant’s
Furnishings, but not toward fixtures, equipment, personal property or anything
else. Tenant shall not be entitled to any credit or payment from Landlord for
any portion of Landlord’s Contribution, not utilized toward payment of Tenant’s
Furnishings. Tenant shall only have the right to use Landlord’s Contribution
during the first twelve (12)


 


10

















 


months of the Initial
Term and for any portion of Landlord’s Contribution not used by Tenant within
said twelve (12) month period, Tenant shall not be entitled to any credit. Landlord
shall retain ownership of the furniture in the Premises which Tenant purchases
as part of Tenant’s Furnishings until the end of the Term at which time
Landlord shall transfer ownership of said furniture to Tenant. Tenant, at its
sole risk, cost and expense shall be responsible for removing any furniture,
equipment, personal property, trade fixtures and telephone/data/internet
infrastructure together with any wiring or cabling related thereto in the
Premises at such time that Tenant moves out of the Premises or at the
expiration or any earlier termination of this Lease. As used herein, the term “Tenant’s
Furnishings” shall mean any furniture systems, telephone/data wiring and office
furniture purchased and installed by Tenant in the Premises, which purchases
and the installation thereof are evidenced by paid invoices.


 


ARTICLE V


 


USE OF PREMISES


 


5.1         PERMITTED USE. (a) Tenant agrees
that the Premises shall be used and occupied by Tenant only for Permitted Uses.


 


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


 


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


 


(ii)         Tenant will not place on the exterior
of the Premises (including both interior and exterior surfaces of doors and
interior surfaces of windows) or on any part of the Building outside the
Premises, any signs, symbol, advertisements or the like visible to public view
outside of the Premises. Landlord will not unreasonably withhold consent for
signs or lettering on the entry doors to the Premises provided such signs
conform to building standards adopted by Landlord and Tenant has submitted a
sketch of the sign to be placed on such entry doors.


 


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


 


(iv)        Tenant shall, at its sole cost and
expense:  (x) in its use of the Premises,
the Building or the Land, comply with the requirements of all applicable
governmental laws, rules and regulations including, without limitation, the ADA
provided, however, the foregoing shall not require Tenant to perform any work
necessary to bring the Premises, the Building or the Property into compliance
with the ADA or other laws unless the work is required solely due to Tenant’s
particular and unique use of the Premises (as opposed to general office use) or
work


 


11

















 


required to comply with
laws of general applicability to the Building or any alterations, improvements
or construction being performed by Tenant to the Premises.


 


5.2         INSTALLATION AND ALTERATIONS BY
TENANT. (a) Except for cosmetic alterations such as paint and carpet,
Tenant shall make no alterations, additions or improvements in or to the
Premises costing in excess of $5,000.00 in any one instance without Landlord’s
prior written consent, which consent will not be unreasonably withheld,
conditioned or delayed with respect to non-structural alterations which do not
affect any of the Base Building Systems. Any such alterations, additions or
improvements shall (i) be in accordance with complete plans and specifications
prepared by Tenant and approved in advance by Landlord; (ii) be performed in a
good and workmanlike manner and in compliance with all applicable laws; (iii)
be performed and completed in the manner required in Section 5.2(d) hereof;
(iv) be made at Tenant’s sole expense and at such times as Landlord may from
time to time reasonably designate; and (v) become a part of the Premises and
the property of Landlord. It is agreed and understood that Landlord shall have
the right to review and approve all changes to any plans which Landlord shall
have approved pursuant to this Section 5.2(a).


 


It is
also agreed and understood that, Landlord shall not be deemed to be
unreasonable in denying its consent to alterations, additions and improvements
to the Premises which adversely affect “Base Building Systems” (as said term is
hereafter defined).


 


As used herein, the term “Base
Building Systems” shall mean (i) any mechanical, electrical or plumbing system
or component of the Building (including the Premises) (ii) the exterior of the
Building (iii) the Building HVAC distribution system (iii) any fire safety
prevention/suppression system and (iv) any structural element or component of
the Building.


 


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


 


(c)         Notice is hereby given that Landlord
shall not be liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and that no mechanic’s or other lien for any such labor or
materials shall attach to or affect the reversion or other estate or interest
of Landlord in and to the Premises. Whenever and as often as any mechanic’s
lien shall have been filed against the Premises based upon any act or interest
of Tenant or of anyone claiming through Tenant, Tenant shall promptly take such
actions by bonding, deposit or payment as will remove or satisfy the lien.


 


(d)         All of the Tenant’s alterations,
additions and installation of furnishings shall be coordinated with any work
being performed by Landlord and in such manner as to maintain harmonious labor
relations and not damage the Property or interfere with Building construction
or operation and, except for installation of furnishings, shall be performed by
contractors or workmen first approved by Landlord, which approval will not be
unreasonably withheld so long as such selection will not cause any labor
disturbance to the Building. Installation and moving


 


12

















 


of furnishings, equipment
and the like shall be performed only with labor compatible with that being
employed by Landlord for work in or to the Building and not to employ or permit
the use of any labor or otherwise take any action which might result in a labor
dispute involving personnel providing services in the Building. Except for work
by Landlord’s general contractor, Tenant before its work is started shall:  secure all licenses and permits necessary
therefor and deliver copies thereof to Landlord; deliver to Landlord a
statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them; and cause
each contractor to carry workmen’s compensation insurance in statutory amounts
covering all the contractor’s and subcontractor’s employees and comprehensive
public liability insurance and property damage insurance with such limits as
Landlord may reasonably require but in no event less than the Initial Public
Liability Insurance specified in Section 1.3 of this Lease as the same may be
increased from time to time in accordance with the provisions of Article X of
this Lease (all such insurance to be written in companies approved by Landlord
and insuring Landlord, Manager and Tenant as well as the contractors), and to
deliver to Landlord certificates of all such insurance. Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by Tenant,
its agents, employees, or independent contractors, and not to cause or permit
any liens for labor or materials performed or furnished in connection therewith
to attach to the Premises or the Property and promptly to discharge any such
liens which may so attach and, at the request of Landlord to deliver to
Landlord security satisfactory to Landlord against liens arising out of the
furnishing of such labor and material. Upon completion of any work done on the
Premises by Tenant, its agents, employees, or independent contractors, Tenant
shall promptly deliver to Landlord (i) original lien releases and waivers
executed by each contractor, subcontractor, supplier, materialmen, architect,
engineer or other party which furnished labor, materials or other services in
connection with such work and pursuant to which all liens, claims and other
rights of such party with respect to labor, material or services furnished in
connection with such work are unconditionally released and waived and (ii)
copies of any certificate(s) of occupancy relating to the Premises issued by
the Town of Lexington. Tenant shall pay within fourteen (14) days after being
billed therefor by Landlord, as an additional charge hereunder, one hundred
percent (100%) of any increase in real estate taxes on the Property not
otherwise billed to Tenant which shall, at any time after commencement of the
Term, directly and solely result from any alteration, addition or improvement
to the Premises made by or on behalf of Tenant (including Tenant’s original
installation and Tenant’s subsequent alterations, additions, substitutions and
improvements), whether done prior to or after the commencement of the Term of
this Lease.


 


(e)         In connection with the performance of
any alterations, improvements, changes or additions to the Premises as
contemplated by Article IV or Section 5.2 of this Lease in the event that any
such improvement, alteration, change or addition to the Premises to be
performed by Tenant (the “Work”) adversely affects so-called “Base Building
Systems” and to the extent that such Work is not performed by Landlord or a
general contractor employed directly by Landlord, Tenant hereby agrees to use
the services of a construction management firm designated by Landlord to
oversee, coordinate and review all aspects of any such Work provided such firm
charges market rates for its scope of services for the work. The cost and
expense of the services of such construction manager shall be borne by Tenant
as an additional charge under this Lease.


 


13

















 


ARTICLE VI


 


ASSIGNMENT AND
SUBLETTING


 


6.1         PROHIBITION. (a) Tenant
covenants and agrees that whether voluntarily, involuntarily, by operation of
law or otherwise, neither this Lease nor the term and estate hereby granted,
nor any interest herein or therein, will be assigned, mortgaged, pledged,
encumbered or otherwise transferred and that neither the Premises nor any part
thereof will be encumbered in any manner by reason of any act or omission on
the part of Tenant, or used or occupied, by anyone other than Tenant, or for
any use or purpose other than a Permitted Use, or be sublet (which term,
without limitation, shall include granting of concessions, licenses and the
like) in whole or in part, or be offered or advertised for assignment or
subletting. Tenant shall reimburse Landlord for all costs and expenses
sustained or incurred by Landlord in connection with any request by Tenant for
Landlord’s consent to an assignment or subletting, provided such costs shall
not exceed $2,000 per consent request.


 


(b)         The provisions of paragraph (a) of this
Section shall apply to a transfer (by one or more transfers) of a majority of
the stock or partnership interests, or other evidences of ownership of Tenant
as if such transfer were an assignment of this Lease; but such provisions shall
not apply (1) to transactions with an entity into or with which Tenant is
merged or consolidated, (2) in connection with a transfer of all or
substantially all of Tenant’s stock or other interests or a transfer of all or
substantially all of Tenant’s assets in either case to an unaffiliated party
(such transferee being referred to as a “Business Successor”) or (3) to
any entity which controls or is controlled by Tenant or is under common control
with Tenant (the foregoing transactions being referred to collectively as “Permitted
Transfers”), provided that with respect to a transaction or transfer to a “Business
Successor” (i) the Business Successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
net worth of Tenant immediately prior to such merger, consolidation or
transfer, and (ii) proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least 10 days prior to the effective date of any
such transaction. Notwithstanding the foregoing, if Tenant will not be the
surviving entity following any Permitted Transfer, the successor to Tenant
shall be required to agree directly with Landlord, by written instrument in
form satisfactory to Landlord, to be bound by all the obligations of Tenant
hereunder including, without limitation, the covenant against further
assignment or subletting.


 


(c)         If
this Lease be assigned, or if the Premises or any part thereof be sublet or
occupied by anyone other than Tenant, Landlord may, at any time and from time
to time, collect rent and other charges from the assignee, subtenant or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy, collection or
modification of any provisions of this Lease shall be deemed a waiver of this
covenant, or the acceptance of the assignee, subtenant or occupant as a tenant
or a release of the original named Tenant from the further performance by the
original named Tenant hereunder. Notwithstanding the foregoing to the contrary,
provided that no Default of Tenant exists under this Lease, Landlord and Tenant
shall split 50/50 any “subleasing profits” (as said term is hereinafter
defined) as and when received by Tenant, after deducting Tenant’s reasonable
costs


 


14

















 


and expenses related to any such
sublease. No assignment or subletting hereunder shall relieve Tenant from its
obligations hereunder and Tenant shall remain fully and primarily liable
therefor. No assignment or subletting, or occupancy shall affect Permitted
Uses. Any subletting of the entire Premises shall expire as of the day
immediately preceding the date of expiration of the Term of this Lease.


 


(d)         In
connection with any request by Tenant for consent to assignment or subletting
other than Permitted Transfers, Tenant shall first submit to Landlord in
writing: (i) the name of the proposed assignee or subtenant, (ii) such
information as to its financial responsibility and standing as Landlord may
reasonably require, and (iii) all terms and provisions upon which the proposed
assignment or subletting is to be made. Upon receipt from Tenant of such
request and information, the Landlord shall have an option (sometimes
hereinafter referred to as the “option” or “Take Back Option”) to be exercised
in writing within thirty (30) days after its receipt from Tenant of such
request and information, if the request is to assign the Lease or to sublet all
of the Premises, to cancel or terminate this Lease, or, if the request is to
sublet fifty (50%) percent or more of the Premises, to cancel and terminate
this Lease with respect to such portion, in each case, as of the date set forth
in Landlord’s notice of exercise of such option, which shall be not less than
sixty (60) nor more than one hundred twenty (120) days following the giving of
such notice; in the event Landlord shall exercise such option, Tenant shall
surrender possession of the entire Premises, or the portion which is the
subject of the option, as the case may be, on the date set forth in such notice
in accordance with the provisions of this Lease relating to surrender of
Premises at the expiration of the Term. If this Lease shall be cancelled as to
a portion of the Premises only, Basic Rent and Escalation Charges shall
thereafter be abated proportionately according to the ratio the number of
square feet of the portion of the space surrendered bears to the size of the
Premises. If Landlord exercises its option to cancel this Lease as to a portion
of the Premises, Landlord shall perform, at Landlord’s cost, all work necessary
to demise the recaptured space from the remainder of the Premises.


 


If
Landlord shall not exercise its option pursuant to the foregoing provisions,
Landlord will not unreasonably delay or withhold its consent to the assignment
or subletting to the party referred to upon all the terms and provisions set
forth in Tenant’s notice to Landlord, provided that the terms and provisions of
such assignment or subletting shall specifically make applicable to the
assignee or sublessee all of the provisions of this Article VI of the Lease so
that Landlord shall have against the assignee or sublessee all rights with
respect to any further assignment or subletting which are set forth in Article
VI of the Lease as amended hereby except that no such assignee or sublessee
shall have any right to further assign or sublet the Premises without Landlord’s
prior written consent which shall not be unreasonably withheld, conditioned or
delayed. As used herein, the term “subleasing profits” shall mean, for each
period in question, all amounts received by Tenant in excess of Basic Rent and
Escalation Charges and other items of additional rent reserved under this Lease
attributable to the space sublet (including, without limitation, all lump sum
payments made in connection therewith).


 


Any
such assignment or subletting shall nevertheless be subject to all the terms
and provisions of Article VI and no assignment shall be binding upon Landlord
or any of Landlord’s mortgagees, unless Tenant shall deliver to Landlord an
instrument in recordable form which contains a covenant of assumption by the
assignee running to Landlord and all persons claiming


 


15

















 


by, through or under
Landlord. The failure or refusal of the assignee to execute such instrument of
assumption shall not release or discharge the assignee from its liability as
Tenant hereunder. In addition, Tenant shall furnish to Landlord a conformed
copy of any sublease effected under terms of this Article VI. In no event shall
the Tenant hereunder be released from its liability under this Lease.


 


Landlord
shall not be deemed unreasonable in refusing to approve a sublease where such
proposed subtenant is a tenant of the Building.


 


ARTICLE VII


 


RESPONSIBILITY FOR
REPAIRS AND CONDITIONS OF PREMISES;


SERVICES TO BE
FURNISHED BY LANDLORD


 


7.1         LANDLORD REPAIRS. (a) Except as
otherwise provided in this Lease, Landlord agrees to keep in good order,
condition and repair the roof, public areas, exterior walls (including exterior
glass) and structure of the Building (including plumbing, mechanical and
electrical systems installed by Landlord but excluding any supplemental systems
installed specifically for Tenant’s benefit or used exclusively by Tenant) and
the HVAC system serving the Premises, all insofar as they affect the Premises,
except that Landlord shall in no event be responsible to Tenant for the
condition of glass in the Premises or for the doors (or related glass and
finish work) leading to the Premises, or for any condition in the Premises or
the Building caused by any act or neglect of Tenant, its agents, employees,
invitees or contractors. Landlord shall not be responsible to make any
improvements or repairs to the Building other than as expressly in this Section
7.1 provided, unless expressly provided otherwise in this Lease. All costs and
expenses incurred by Landlord in performing its obligations under this Section
7.1 shall be included in Operating Expenses (as said term is hereafter defined)
subject to the limits set forth in Exhibit E.


 


(b)         Landlord shall never be liable for any
failure to make repairs which Landlord has undertaken to make under the
provisions of this Section 7.1 or elsewhere in this Lease, unless Tenant has given
notice to Landlord of the need to make such repairs, and Landlord has failed to
commence to make such repairs within a reasonable time after receipt of such
notice, or fails to proceed with reasonable diligence to complete such repairs.


 


(c)         Any services which Landlord is required
to furnish pursuant to the provisions of this Lease may, at Landlord’s option
be furnished from time to time, in whole or in part, by employees of Landlord
or by the Manager of the Property or by one or more third persons. Landlord
shall cause the sidewalks, access drives, parking areas and entrance areas to
the Building of the Property to be kept reasonably free and clear of snow, ice
and refuse and shall cause the landscaped areas of the Property to be
maintained in a reasonably attractive appearance.


 


7.2         TENANT’S AGREEMENT. (a) Tenant
will keep neat and clean and maintain in reasonably good order, condition and
repair the Premises and every part thereof, excepting only


 


16

















 


those repairs for which
Landlord is responsible under the terms of this Lease, reasonable wear and tear
of the Premises, and damage by fire or other casualty and as a consequence of
the exercise of the power of eminent domain; and shall surrender the Premises,
at the end of the Term, in such condition. Without limitation but subject to
the terms of Section 5.1(b)(iv) of this Lease, Tenant shall continually
during the Term of this Lease maintain the Premises in accordance with all
laws, codes and ordinances from time to time in effect and all directions,
rules and regulations of the proper officers of governmental agencies having
jurisdiction, and of the Boston Board of Fire Underwriters, and shall, at
Tenant’s own expense, obtain all permits, licenses and the like required by
applicable law for the conduct of Tenant’s business. Notwithstanding the
foregoing or the provisions of Article XII, Tenant shall be responsible for the
cost of repairs which may be necessary by reason of damage to the Building
caused by any act or neglect of Tenant or its agents, employees, contractors or
invitees (including any damage by fire or any other casualty arising therefrom).
Tenant shall be responsible for the payment of all charges (whether billed
directly to Tenant by the applicable utility or submetered and billed to Tenant
by Landlord) for electricity, HVAC, gas and other utilities used or consumed in
the Premises in accordance with the provisions of this Lease. Without
limitation of the foregoing, Tenant shall not do or perform, and shall not
permit its agents, servants, employees, contractors or invitees to do or
perform any act or thing in or upon the Property which will invalidate or be in
conflict with the certificate of occupancy for the Premises or the Building or
violate any statute, law, rule, by-law or ordinance of any governmental entity
having jurisdiction over the Property (the “Requirements”). Tenant shall, at
Tenant’s sole cost and expenses, take all action, including the making of any
improvements or alterations necessary to comply with all Requirements
(including, but not limited to the ADA, as modified and supplemented from time
to time) which shall, with respect to the Premises or with respect to any
abatement of nuisance, impose any violation, order or duty upon Landlord or
Tenant arising from Tenant’s particular or unique use or manner of use of the
Premises (as opposed to general office use), or any installations, alterations,
improvements or construction performed by Tenant in the Premises, or required
by reason of a breach of any of Tenant’s covenants or agreements under this
Lease, whether or not such Requirements shall now be in effect or hereafter
enacted or issued.


 


(b)         If repairs are required to be made by
Tenant pursuant to the terms hereof, and Tenant fails to make the repairs, upon
not less than ten (10) days’ prior written notice (except that no notice shall
be required in the event of any emergency), Landlord may make or cause such
repairs to be made (but shall not be required to do so), and the provisions of
Section 14.18 shall be applicable to the costs thereof. Landlord shall not be
responsible to Tenant for any loss or damage whatsoever that may accrue to
Tenant’s stock or business by reason of Landlord’s making such repairs.


 


7.3         FLOOR LOAD – HEAVY MACHINERY.
(a) Tenant shall not place a load upon any floor in the Premises exceeding the
floor load per square foot of area which such floor was designed to carry and
which is allowed by law. Landlord reserves the right to prescribe the weight
and position of all business machines and mechanical equipment, including
safes, which shall be placed so as to distribute the weight. Business machines
and mechanical equipment shall be placed and maintained by Tenant at Tenant’s
expense in settings sufficient, in Landlord’s judgment, to absorb and prevent
vibration, noise and annoyance. Tenant shall not move any safe, heavy
machinery, heavy equipment, freight, bulky matter or fixtures into or out


 


17

















 


of the Building without
Landlord’s prior consent, which consent may include a requirement to provide
insurance, naming Landlord as an insured, in such amounts as Landlord may deem
reasonable.


 


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


 


7.4          BUILDING SERVICES. (a) Landlord
shall also provide:


 


(i)          Landlord shall, on Business Days from
8:00 a.m. to 6:00 p.m. and on Saturdays from 9:00 a.m. to 1:00 p.m., furnish
heating and cooling as normal seasonal changes may require to provide
reasonably comfortable space temperature and ventilation for occupants of the
Premises under normal business operation. If Tenant shall require air
conditioning, heating or ventilation outside the hours and days above
specified, Landlord may furnish such service and Tenant shall pay therefor such
charges as may from time to time be in effect for the Building upon demand as
Additional Rent. In the event Tenant introduces into the Premises personnel or
equipment which overloads the capacity of any of the Base Building Systems or
in any other way interferes with any of the Base Building Systems’ ability to
perform adequately its proper functions, supplementary systems may, if and as
needed, at Landlord’s option, be provided by Landlord, and the cost of such
supplementary systems and the installation, repair, maintenance, replacement
and removal thereof shall be payable by Tenant to Landlord upon demand as
Additional Rent.


 


(ii)         Landlord
shall provide electric power for lighting and for office machines through
standard receptacles.


 


(iii)        Warm water for lavatory and kitchenette
purposes and cold water (at temperatures supplied by the Town of Lexington) for
drinking, lavatory and toilet purposes. If Tenant uses water for any purpose
other than for ordinary lavatory and drinking purposes, Landlord may assess a
reasonable charge for the additional water so used.


 


(iv)        Access to the Premises twenty-four hours
per day, subject to reasonable security restrictions and restrictions based on
emergency, accident and Force Majeure conditions and all other applicable
provisions of this Lease.


 


(v)         Cleaning Services described in Exhibit
F as and to the extent required by Exhibit F.


 


(vi)        Non-exclusive passenger elevator service
from the existing passenger elevator system in common with Landlord and others
entitled thereto.


 


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(b)         Landlord
reserves the right to curtail, suspend, interrupt and/or stop the supply of
water, sewage, electrical current, cleaning, and other services, and to
curtail, suspend, interrupt and/or stop use of entrances and/or lobbies serving
access to the Building, without thereby incurring any liability to Tenant, when
necessary by reason of accident or emergency, or for repairs, alterations,
replacements or improvements in the judgment of Landlord desirable or
necessary, or when prevented from supplying such services or use by strikes,
lockouts, difficulty in obtaining materials, accidents or any other cause
beyond Landlord’s control, or by laws, orders or inability, by exercise of
reasonable diligence, to obtain electricity, water, gas, steam, coal, oil or
other suitable fuel or power. Except as provided in subparagraph (c)
below, no diminution or abatement of rent or other compensation, nor any
direct, indirect or consequential damages shall or will be claimed by Tenant as
a result of, nor shall this Lease or any of the obligations of Tenant be
affected or reduced by reason of, any such interruption, curtailment,
suspension or stoppage in the furnishing of the foregoing services or use,
irrespective of the cause thereof. Failure or omission on the part of Landlord
to furnish any of the foregoing services or use shall not be construed as an
eviction of Tenant, actual or constructive, nor entitle Tenant to an abatement
of rent except as provided in subparagraph (c) below, nor to render the
Landlord liable in damages, nor release Tenant from prompt fulfillment of any
of its covenants under this Lease.


 


(c)         INTERRUPTION
OF SERVICES. Notwithstanding anything in this Lease to the contrary, in the
event that (i) the provision of any of the foregoing services set forth in this
Section 7.4  to the Premises is
interrupted, or Tenant is prevented from having access to the Premises,
(collectively an “Abatement Event”) and (ii) such Abatement Event continues for
a period of five (5) consecutive Business Days after Tenant first notifies
Landlord of such Abatement Event in writing, and (iii) as a result thereof
Tenant is unable to and does not in fact conduct business from the Premises or
any applicable portion thereof, then from and after such five (5) consecutive
Business Day period, Tenant shall be entitled to abate its rent obligations
(Basic Rent and all additional rent) hereunder as to the Premises or any
applicable portion thereof which is not usable or accessible (including
Saturdays and Sundays during which the Abatement Event continues), until such
time as Tenant is reasonably able to use or access the Premises, as applicable.
To the extent that the unusable or inaccessible portion of the Premises
prevents Tenant from conducting its business in such unusable or inaccessible
portion, and the remaining portion of the Premises is not sufficient to permit
Tenant to effectively conduct its business therein, and Tenant does not conduct
its business in any portion of the Premises, then for such time after
expiration of the five (5) consecutive Business Day period during which Tenant
is prevented from conducting its business therein, Tenant’s Rent obligations
(Base Rent and additional rent) for the entire Premises shall be abated;
provided, however, that if any part of the Premises is reasonably useable for
Tenant’s operations in the Premises notwithstanding such Abatement Event, then
the amount of each daily abatement of Basic Rent and additional rent shall only
be proportionate to the nature and the extent of the interruption of Tenant’s
normal operations.


 


7.5         ELECTRICITY. (a) Tenant
acknowledges and agrees that there is no sub-meter or separate electrical meter
in the Premises for the purpose of measuring Tenant’s use and consumption of
electricity in the Premises. Tenant shall make direct payment to Landlord of
Tenant’s Original Electrical Factor for the operation of lights and plugs in
the Premises.


 


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Landlord shall permit
Landlord’s existing wires, pipes, risers, conduits and other electrical
equipment of Landlord to be used for the purpose of providing electrical
service to the Premises. Tenant covenants and agrees that its electrical usage
and consumption will not disproportionately “siphon off” electrical service
available to the Building and that its total connected load will not exceed the
maximum load from time to time permitted by applicable governmental regulations
nor the design criteria of the existing Building electrical capacity. Except as
provided in Section 7.4(c), Landlord shall not in any way be liable or
responsible to Tenant for any loss or damage or expense which Tenant may
sustain or incur if, during the Term of this Lease, either the quantity or
character of electric current is changed or electric current is no longer
available or suitable for Tenant’s requirements due to a factor or cause beyond
Landlord’s control. Tenant shall purchase and install all lamps, tubes, bulbs,
starters and ballasts. As provided in this Section 7.5 and in Section 9.2(b)
below, Tenant shall pay all charges for electricity, HVAC and other utilities
used or consumed in the Premises. Tenant shall bear the cost of repair and
maintenance of any electric, water or gas meter used or to be installed in and
serving exclusively the Premises. In the event Landlord, at its sole cost and
expense, elects to install an electric meter serving the Premises, from and
after such installation, Tenant shall pay for Tenant’s electrical consumption
in the Premises based upon the usage shown on such meter and at the actual cost
charged for such electrical service by the applicable utility provider and
Tenant will have no further obligation to pay Tenant’s Original Electrical
Factor.


 


(b)         In order to insure that the foregoing
requirements are not exceeded and to avert possible adverse affect on the
Building’s electrical system, Tenant shall not, without Landlord’s prior
consent, connect any fixtures, appliances or equipment to the Building’s
electrical distribution system which operates on a voltage in excess of 120
volts nominal. If Landlord shall consent to the connection of any such
fixtures, appliances or equipment, all additional risers or other electrical
facilities or equipment required therefor shall be provided by Landlord and the
cost thereof shall be paid by Tenant upon Landlord’s demand as Additional Rent.
From time to time during the Term of this Lease, Landlord shall have the right
to have an electrical consultant selected by Landlord make a survey of Tenant’s
electric usage, the result of which shall be conclusive and binding upon
Landlord and Tenant. In the event that such survey shows that Tenant has
exceeded the requirements set forth in paragraph (a), in addition to any other
rights Landlord may have hereunder, Tenant shall, upon demand, reimburse
Landlord for the costs of such survey.


 


ARTICLE VIII


 


REAL ESTATE TAXES


 


8.1         PAYMENTS ON ACCOUNT OF REAL ESTATE
TAXES. (a) For the purposes of this Article, the term “Tax Year” shall mean
each twelve-month period commencing on July 1, 2006 and each twelve-month
period thereafter commencing during the Term of this Lease; and the term “Taxes”
shall mean all real estate taxes, special assessments and betterment
assessments assessed with respect to the Property for any Tax Year excluding
any income, estate, succession, inheritance, capital gain or transfer taxes of
Landlord or any affiliated entity.


 


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(b)         In the event that during any Tax Year,
Taxes shall be greater than Base Taxes, Tenant shall pay to Landlord, as an
Escalation Charge, an amount equal to (i) the excess of Taxes over Base Taxes
for each Tax Year (or partial Tax Year) falling within the Term of this Lease,
multiplied by (ii) the applicable Escalation Factor, such amount to be
apportioned for any fraction of a Tax Year in which the Commencement Date falls
or the Term of this Lease ends.


 


(c)         Following at least thirty (30) days’
prior notice from Landlord of the estimated amount to be paid by Tenant,
estimated payments by Tenant on account of Taxes shall be made monthly and at
the time and in the fashion herein provided for the payment of Basic Rent. The
monthly amount so to be paid to Landlord shall be sufficient to provide
Landlord by the time real estate tax payments are due a sum equal to Tenant’s
required payments, as estimated by Landlord from time to time, on account of
Taxes for the then current Tax Year. Promptly after receipt by Landlord of
bills for such Taxes, Landlord shall advise Tenant of the amount thereof and
the computation of Tenant’s payment on account thereof. If estimated payments
theretofore made by Tenant for the Tax Year covered by such bills exceed the
required payments on account thereof for such Year, Landlord shall credit the
amount of overpayment against subsequent obligations of Tenant on account of
Taxes (or refund such overpayment if the Term of this Lease has ended and
Tenant has no further obligation to Landlord); but if the required payments on
account thereof for such Tax Year are greater than estimated payments
theretofore made on account thereof for such Tax Year, Tenant shall make
payment to Landlord within 30 days after being so advised by Landlord. Landlord
shall have the same rights and remedies for the non-payment by Tenant of any payments
due on account of Taxes as Landlord has hereunder for the failure of Tenant to
pay Basic Rent. The obligations of Landlord and Tenant pursuant to this Article
VIII shall survive expiration or earlier termination of the Term of this Lease.
In no event shall Tenant have any obligation to make any payment of Escalation
Charges under this Article VIII prior to July 1, 2007.


 


8.2         ABATEMENT. If Landlord shall
receive any tax refund or reimbursement of Taxes or sum in lieu thereof with
respect to any Tax Year, then out of any balance remaining thereof after
deducting Landlord’s expenses reasonably incurred in obtaining such refund,
Landlord shall, provided there does not then exist a Default of Tenant, credit
an amount equal to such refund or reimbursement or sum in lieu thereof
(exclusive of any interest) multiplied by the Escalation Factor against the
obligations of Tenant next falling due under this Article VIII or any past due
obligations of Tenant, as applicable; provided, that in no event shall Tenant be
entitled to receive a credit equal to more than the payments made by Tenant on
account of Taxes for such Year pursuant to paragraph (b) of Section 8.1 or to
receive any payments or abatements of Basic Rent if Taxes for any Tax Year are
less than Base Taxes or if Base Taxes are abated.


 


8.3         ALTERNATE TAXES. (a) If some
method or type of taxation shall replace the current method of assessment of
real estate taxes in whole or in part, or the type thereof, or if additional
types of taxes are imposed upon the Property or Landlord relating to the
Property, Tenant agrees that Tenant shall pay a proportionate share of the same
as an additional charge computed in a fashion consistent with the method of
computation herein provided, to the end that Tenant’s share thereof shall be,
to the maximum extent practicable, comparable to that which Tenant would bear
under the foregoing provisions.


 


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


 


ARTICLE IX


 


OPERATING EXPENSES


 


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


 


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


 


(ii)         Operating Expenses: The aggregate costs
or expenses reasonably incurred by Landlord with respect to the operation,
administration, insuring, cleaning, repair, maintenance and management of the
Property (but specifically excluding Utility Expenses) all as set forth in and
limited by the terms of Exhibit E annexed hereto, provided that, if during any
substantial portion of the Operating Year for which Operating Expenses are
being computed, including during calendar year 2006, less than all of Building
Rentable Area was occupied by tenants or if Landlord is not supplying all
tenants with the services being supplied hereunder, any Operating Expenses
which vary in amount solely on account of vacancies in the Building shall be
reasonably extrapolated by Landlord on an item by item basis to the estimated
Operating Expenses that would have been incurred if the Building were fully
occupied for such Year and such services were being supplied to all tenants,
and such extrapolated amount shall, for the purposes hereof, be deemed to be
the Operating Expenses for such Year. Water and sewer charges attributable to
leaseable areas of the Building and the Property shall be included in Operating
Expenses.


 


(iii)        Utility Expenses: The aggregate costs or
expenses reasonably incurred by Landlord with respect to supplying electricity
(other than electricity supplied to those portions of the Building leased to
tenants), oil, steam, gas, water and sewer and other utilities supplied to the
common areas of the Property and not paid for directly by tenants.


 


9.2         TENANT’S PAYMENTS. (a) In the
event that during any Operating Year, Operating Expenses shall exceed Base
Operating Expenses, Tenant shall pay to Landlord, as an Escalation Charge, an
amount equal to (i) the excess of Operating Expenses over Base Operating
Expenses for each Operating Year (or partial Operating Year) falling within the
Term of this Lease multiplied by (ii) the applicable Escalation Factor, such
amount to be apportioned for any partial Operating Year in which the
Commencement Date falls or the Term of this Lease ends. In no event shall
Tenant have any obligation to make any payment of Escalation Charges on account
of Operating Expense or Utility Expense increases prior to January 1, 2007.


 


22

















 


(b)         In the event that during any Operating
Year, Utility Expenses shall exceed Base Utility Expenses, Tenant shall pay to
Landlord, as an Escalation Charge, an amount equal to (i) the excess of Utility
Expenses over Base Utility Expenses for each Operating Year (or partial
Operating Year) falling within the Term of this Lease multiplied by (ii) the
applicable Escalation Factor, such amount to be apportioned for any partial
Operating Year in which the Commencement Date falls or the Term of this Lease
ends.


 


(c)         Following at least thirty (30) days’
prior written notice from Landlord of the estimated amount to be paid by
Tenant, estimated payments by Tenant on account of Escalation Charges for
Operating Expenses and Utility Expenses shall be made monthly and at the time
and in the fashion herein provided for the payment of Basic Rent. The monthly
amount so to be paid to Landlord shall be sufficient to provide Landlord by the
end of each Operating Year a sum equal to Tenant’s required payments, as estimated
by Landlord from time to time during each Operating Year, on account of
Escalation Charges for Operating Expenses and Utility Expenses for such
Operating Year. After the end of each Operating Year, Landlord shall submit to
Tenant a reasonably detailed accounting of Operating Expenses and Utility
Expenses for such Operating Year, and Landlord shall certify to the accuracy
thereof. If estimated payments theretofore made for such Operating Year by
Tenant exceed Tenant’s required payment on account thereof for such Operating
Year, according to such statement, Landlord shall credit the amount of
overpayment against subsequent obligations of Tenant with respect to Operating
Expenses and Utility Expenses (or refund such overpayment if the Term of this
Lease has ended and Tenant has no further obligation to Landlord), but, if the
required payments on account thereof for such Operating Year are greater than
the estimated payments (if any) theretofore made on account thereof for such
Operating Year, Tenant shall make payment to Landlord within thirty (30) days
after being so advised by Landlord. Landlord shall have the same rights and
remedies for the nonpayment by Tenant of any payments due on account of
Operating Expenses and Utility Expenses as Landlord has hereunder for the
failure of Tenant to pay Basic Rent. The obligations of Landlord and Tenant
under this Article IX shall survive expiration or earlier termination of the
Term of this Lease.


 


(d)         Provided that no Default of Tenant
exists under this Lease after the expiration of any applicable notice and cure
period, Tenant shall have the right to examine, copy and audit Landlord’s books
and records establishing the Escalation Charges for any year or fraction
thereof during the Term of this Lease, including without limitation, the
Operating Expenses, Utility Expenses and Taxes determined for the respective
base years under this Lease. Tenant shall give Landlord not less than thirty
(30) days’ prior written notice of its intention to examine and audit such
books and records, and such examination and audit shall take place at Landlord’s
or Landlord’s building manager’s office in the Building. All costs, expenses
and fees of the examination and audit shall be borne by Tenant; provided,
however, that if such examination and audit establishes that Tenant’s Share of
such Operating Expenses for the Operating Year in question is less than the
amount set forth in Landlord’s statements delivered to Tenant by at least ten
percent (10%) or more, then Landlord shall pay the reasonable costs of such
examination and audit. If, pursuant to the audit, the payments made for such
year by Tenant exceed Tenant’s required payment on account thereof for such
year, such overpayment shall be refunded to Tenant if the Term of this Lease
has then expired and Tenant has no further


 


23

















 


obligations to Landlord;
but, if the payments made by Tenant for such year are less than Tenant’s
required payment as established by the examination and audit, Tenant shall
promptly pay the deficiency to Landlord within thirty (30) days after
conclusion of the examination and audit.


 


ARTICLE X


 


INDEMNITY AND
PUBLIC LIABILITY INSURANCE


 


10.1       INDEMNITY. (a) To the maximum
extent this agreement may be made effective according to law and except to the
extent caused by the negligence or willful misconduct of Landlord or Landlord’s
agents, employees or contractors, Tenant agrees to defend, indemnify and save
harmless Landlord and its officers, directors, shareholders, employees,
contractors, servants, invitees, representatives and agents from and against
all claims, loss, liability, costs and damages of whatever nature arising from
any default by Tenant under this Lease and the following: (i) from any
accident, injury, death or damage whatsoever to any person, or to the property
of any person, occurring in the Premises; (ii) from any accident, injury, death
or damage occurring outside of the Premises but on the Property, where such
accident, damage or injury results or is claimed to have resulted from an act
or omission on the part of Tenant or Tenant’s agents, employees, independent
contractors, or any other person acting under Tenant; or (iii) in connection
with the conduct or management of the Premises or of any business therein, or
any thing or work whatsoever done, or any condition created (other than by
Landlord or Landlord’s agents, employees or contractors) in or about the
Premises; and, in any case, occurring after the date of this Lease, until the
end of the Term of this Lease, and thereafter so long as Tenant is in occupancy
of the Premises. This indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities incurred in, or in
connection with, any such claim or proceeding brought thereon, and the defense
thereof, including, without limitation, reasonable attorneys’ fees and costs at
both the trial and appellate levels. The provisions of this Section 10.1 shall
survive the expiration or any earlier termination of this Lease.


 


(b)           Except to the extent Tenant is
required to indemnify Landlord under paragraph (a) above, Landlord agrees to
indemnify and save harmless Tenant and Tenant’s partners, members,
shareholders, officers, directors, managers, and employees from and against all
claims, losses, cost, damages, liability or expenses of whatever nature arising
from any accident, injury or damage whatsoever to any person, or to the
property of any person, where such accident, damage or injury results or is
claimed to have resulted from the gross negligence or willful misconduct of
Landlord or Landlord’s agents, employees or contractors, and, in any case,
occurring after the Commencement Date until the expiration of the Term of this
Lease and thereafter so long as Tenant is in occupancy of any part of the
Premises. This indemnity and hold harmless agreement shall include indemnity
against all losses, costs, damages, expenses and liabilities incurred in or in
connection with any such claim or any proceeding brought thereon, and the defense
thereof, including, without limitation, reasonable attorneys’ fees and costs at


 


24

















 


both the trial and
appellate levels. The provisions of this Section 10.1(b) shall survive the
expiration or earlier termination of this Lease.


 


10.2       PUBLIC LIABILITY INSURANCE. Tenant
agrees to maintain in full force from the date upon which Tenant first enters
the Premises for any reason, throughout the Term of this Lease, and thereafter
so long as Tenant is in occupancy of any part of the Premises, a policy of
general liability and property damage insurance (including broad form
contractual liability, independent contractor’s hazard and completed operations
coverage) under which Tenant is named as insured and Landlord and Manager (and
such other persons as are in privity of estate with Landlord as may be set out
in notice from time to time) are named as additional insureds, and under which
the insurer agrees to defend, indemnify and hold Landlord, Manager, and those
in privity of estate with Landlord, harmless from and against all cost, expense
and/or liability arising out of or based upon any and all claims, accidents,
injuries and damages set forth in Section 10.1. Each such policy shall be
non-cancellable and non-amendable with respect to Landlord, Manager and
Landlord’s said designees without thirty (30) days’ prior notice to Landlord
and shall be in at least the amounts of the Initial Public Liability Insurance
specified in Section 1.3 or such greater amounts as Landlord shall from time to
time request, and a duplicate original or certificate thereof shall be
delivered to Landlord.


 


10.3       TENANT’S RISK. To the maximum
extent this agreement may be made effective according to law, Tenant agrees to
use and occupy the Premises and to use such other portions of the Property as
Tenant is herein given the right to use at Tenant’s own risk; and Landlord
shall have no responsibility or liability for any loss of or damage to Tenant’s
Removable Property or for any inconvenience, annoyance, interruption or injury
to business arising from Landlord’s making any repairs or changes which
Landlord is permitted by this Lease or required by law to make in or to any
portion of the Premises or other sections of the Property, or in or to the fixtures,
equipment or appurtenances thereof. Tenant shall carry “all-risk” property
insurance on a “replacement cost” basis (including so-called improvements and
betterments performed by Tenant, exclusive of Landlord’s Work), and provide a
waiver of subrogation as required in Section 14.20. The provisions of this
Section 10.3 shall be applicable from and after the execution of this Lease and
until the end of the Term of this Lease, and during such further period as
Tenant may use or be in occupancy of any part of the Premises or of the
Building.


 


10.4       INJURY CAUSED BY THIRD PARTIES. To
the maximum extent this agreement may be made effective according to law,
Tenant agrees that Landlord shall not be responsible or liable to Tenant, or to
those claiming by, through or under Tenant, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with the
Premises or any part of the Property or otherwise. The provisions of this
Section 10.4 shall survive the expiration or any earlier termination of this
Lease.


 


10.5       LANDLORD’S INSURANCE. At all times
during the Term, Landlord will maintain or cause to be maintained the following
insurance: (a) all-risk fire and extended coverage casualty insurance covering
damage to the Building and the Property (including earthquake and flood
insurance coverage) in an amount equal to 100% of the replacement cost thereof,
together with a demolition endorsement and an increased cost of construction
endorsement, (b) commercial


 


25

















 


general public liability
and property damage insurance covering any occurrence on or about the Property
and the Common Areas, (c) loss of “rental value” insurance in an amount equal
to not less than the Basic Rent and additional rent) payable under this Lease
for not less than a one (1) year period, and (d) workers compensation and
employer’s liability insurance to the extent required by state law. Landlord
shall also have the right to obtain such other types and amounts of insurance
coverage on the Building and the Property and Landlord’s liability in
connection with the Building and the Property as Landlord reasonably determines
is customary or advisable for a first-class office building in the suburban
Boston, Massachusetts area, as are required by any of Landlord’s mortgagees
and, in any event, casualty insurance shall contain agreed value and
replacement cost endorsements and shall be in such amounts that Landlord will
not be a co-insurer. Certificates of insurance evidencing that Landlord has all
of the coverages required herein shall be delivered to Tenant on or before the
Commencement Date. Each such policy of insurance shall provide notification to
Tenant at least thirty (30) days prior to any cancellation or non-renewal. Landlord
shall have the right to provide insurance coverage which it is obligated to
carry pursuant to the terms hereof in a blanket policy, provided such blanket
policy expressly affords coverage to the Premises, Building, and the Property
as required by this Lease.


 


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ARTICLE XI


 


LANDLORD’S ACCESS
TO PREMISES


 


11.1                           LANDLORD’S
RIGHTS. Landlord shall have the right, upon reasonable prior telephonic
notice to Tenant (except in the event of any emergency) to enter the Premises
at all reasonable hours during Tenant’s normal business hours for the purpose
of inspecting or making repairs to the same, and Landlord shall also have the
right to make access available during Tenant’s normal business hours to
prospective or existing mortgagees, purchasers or, during the final twelve (12)
months of the Term, to tenants of any part of the Property. Tenant shall have
the right to require that any person entering the Premises on Landlord’s behalf
be accompanied by a representative of Tenant provided that Tenant makes any
such representative available  for such
inspection or repair purposes.


 


ARTICLE XII


 


FIRE, EMINENT
DOMAIN, ETC.


 


12.1                           ABATEMENT
OF RENT. If the Premises shall be damaged by fire or casualty, Basic Rent
and Escalation Charges payable by Tenant shall abate proportionately for the
period in which, by reason of such damage, there is substantial interference
with Tenant’s use of the Premises, having regard to the extent to which Tenant
may be required to discontinue Tenant’s use of all or a portion of the
Premises, but such abatement or reduction shall end if and when Landlord shall
have substantially restored the Premises (excluding any alterations, additions
or improvements made by Tenant pursuant to Section 5.2) to the condition in
which they were prior to such damage. If the Premises shall be affected by any
exercise of the power of eminent domain, Basic Rent and Escalation Charges
payable by Tenant shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by Tenant. In no
event shall Landlord have any liability for damages to Tenant for
inconvenience, annoyance, or interruption of business or other claims or causes
of action arising from such fire, casualty or eminent domain.


 


12.2                           RIGHT
OF TERMINATION. (a)  If the Premises
or the Building are substantially damaged by fire or casualty (the term “substantially
damaged” meaning damage of such a character that the same cannot, in ordinary
course, reasonably be expected to be repaired within sixty (60) days from the
time the repair work would commence), or if any part of the Building is taken
by any exercise of the right of eminent domain, then Landlord shall have the
right to terminate this Lease (even if Landlord’s entire interest in the
Premises may have been divested) by giving notice of Landlord’s election so to
do within 90 days after the occurrence of such casualty or the effective date
of such taking, whereupon this Lease shall terminate thirty (30) days after the
date of such notice with the same force and effect as if such date were the
date originally established as the expiration date hereof.


 


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(b)                                 If
the Premises or the Building are substantially damaged by fire or casualty, or
any part of the Building is taken by any exercise of the right to eminent
domain, Landlord shall, within thirty (30) days of the date of the occurrence
of the casualty or the effective date of the taking, as applicable, notify
Tenant of the estimated time period that Landlord, in good faith, estimates it
will take to restore the Premises and the Building to their prior condition and
if such estimated time period is equal to or exceeds, seven (7) months from the
date of the occurrence of casualty or the effective date of the taking, then
Tenant shall have the right to terminate this Lease by giving notice to
Landlord thereof within thirty (30) days of Tenant’s receipt of Landlord’s
notice. Upon Landlord’s receipt of Tenant’s notice, this Lease shall cease and
come to an end without further liability or obligation on the part of either
party. If a casualty or taking affecting the Premises or access thereto occurs
during the final twelve (12) months of the Term, then Tenant may elect to
terminate this Lease by thirty (30) days’ prior notice to Landlord.


 


12.3                           RESTORATION.
If this Lease shall not be terminated pursuant to Section 12.2, Landlord shall
thereafter use due diligence to restore the Premises (excluding any
alterations, additions or improvements made by Tenant) to proper condition for
Tenant’s use and occupation, provided that Landlord’s obligation shall be
limited to the amount of insurance proceeds available therefor. If, for any
reason, such restoration shall not be substantially completed within thirty
(30) days after the estimated time period for restoration of the Premises set
forth in Landlord’s notice referred to in Section 12.2, Tenant shall have the
right to terminate this Lease at any time thereafter but prior to the date such
restoration is completed, by giving thirty (30) days’ prior written notice to
Landlord thereof. Upon the thirtieth (30th) day after Landlord’s
receipt of such notice from Tenant, this Lease shall cease and come to an end
without further liability or obligation on the part of either party unless,
within such 30-day period, Landlord substantially completes such restoration. Such
right of termination shall be Tenant’s sole and exclusive remedy at law or in
equity for Landlord’s failure so to complete such restoration.


 


12.4                           AWARD.
Landlord shall have and hereby reserves and excepts, and Tenant hereby grants
and assigns to Landlord, all rights to recover for damages to the Property and
the leasehold interest hereby created, and to compensation accrued or hereafter
to accrue by reason of such taking, damage or destruction, and by way of
confirming the foregoing, Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent Tenant
from, at its sole cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any of Tenant’s Removable
Property installed in the Premises by Tenant at Tenant’s expense and for
relocation expenses, provided that such action shall not affect the amount of
compensation otherwise recoverable by Landlord from the taking authority.


 


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ARTICLE XIII


 


DEFAULT


 


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


 


(i)                                     Tenant
shall fail to pay the Basic Rent, Escalation Charges, Tenant’s Original
Electrical Factor or other sums payable as additional charges hereunder when
due and such failure shall continue for a period of five (5) Business Days
after receipt of written notice that such payment was not made when due. The
requirement for written notice set forth in the immediately preceding sentence
shall only apply to the first three (3) instances of failure to timely pay
Basic Rent, Escalation Charges, Tenant’s Original Electrical Factor or other
sums payable as additional charges hereunder in any twelve (12) month period,
thereafter, beginning with the fourth (4th) such occasion in any
twelve (12) month period, Landlord shall have no obligation to provide written
notice to Tenant; or


 


(ii)                                  Tenant
shall neglect or fail to perform or observe any other covenant herein contained
on Tenant’s part to be performed or observed, or Tenant shall desert or abandon
the Premises or the Premises shall become, or appear to have become vacant
(regardless whether the keys shall have been surrendered or the rent and all
other sums due shall have been paid), and Tenant shall fail to remedy the same
within thirty (30) days after notice to Tenant specifying such neglect or
failure, or if such failure is of such a nature that Tenant cannot reasonably
remedy the same within such thirty (30) day period, Tenant shall fail to commence
promptly to remedy the same and to prosecute such remedy to completion with
diligence and continuity; or


 


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


 


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


 


(v)                                 A
petition shall be filed against Tenant in bankruptcy or under any other law
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
Federal, State or other statute, law or regulation and shall remain undismissed
or unstayed for an aggregate of sixty (60) days (whether or not consecutive),
or if any debtor in possession (whether or not Tenant) trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or of
the Premises shall be


 


29

















 


appointed without the
consent or acquiescence of Tenant and such appointment shall remain unvacated
or unstayed for an aggregate of sixty (60) days (whether or not consecutive);


 


(vi)                              If
an event of the type described in clause (i) above shall occur and if either
(a) Tenant shall cure such default within the applicable grace period or (b)
Landlord shall, in its sole discretion, permit Tenant to cure such default
after the applicable grace period has expired, and an event which would
constitute a similar, monetary default if not cured within the applicable grace
period shall occur (without regard to any notice or opportunity to cure) more
than three (3) times within the same twelve month period as the first such
default, whether or not such event is cured within the applicable grace period;


 


then in any such case (1)
if such Default of Tenant shall occur prior to the Commencement Date, this
Lease shall ipso  facto, and without further act on the part of
Landlord, terminate, and (2) if such Default of Tenant shall occur after the
Commencement Date, Landlord may terminate this Lease by notice to Tenant, and
thereupon this Lease shall come to an end as fully and completely as if such
date were the date herein originally fixed for the expiration of the Term of this
Lease, and Tenant will then quit and surrender the Premises to Landlord, but
Tenant shall remain liable as hereinafter provided.


 


(b)                                 If
this Lease shall be terminated as provided in this Article, or if any execution
or attachment shall be issued against Tenant or any of Tenant’s property
whereupon the Premises shall be taken or occupied by someone other than Tenant,
then Landlord may, without notice, re-enter the Premises, either by force,
summary proceedings, ejectment or otherwise, and remove and dispossess Tenant
and all other persons and any and all property from the same, as if this Lease
had not been made, and Tenant hereby waives the service of notice of intention
to re-enter or to institute legal proceedings to that end.


 


(c)                                  In
the event of any termination, Tenant shall pay the Basic Rent, Escalation
Charges and other sums payable hereunder up to the time of such termination,
and thereafter Tenant, until the end of what would have been the Term of this
Lease in the absence of such termination, and whether or not the Premises shall
have been relet, shall be liable to Landlord for, and shall pay to Landlord, as
liquidated current damages, the Basic Rent, Escalation Charges and other sums
which would be payable hereunder if such termination had not occurred, less the
net proceeds, if any, of any reletting of the Premises, after deducting all
expenses in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys’ fees,
advertising, expenses of employees, alteration costs and expenses of
preparation for such reletting. Tenant shall pay such current damages to
Landlord monthly on the days which the Basic Rent would have been payable
hereunder if this Lease had not been terminated.


 


(d)                                 At
any time after such termination, whether or not Landlord shall have collected
any such current damages, as liquidated final damages and in lieu of all such
current damages beyond the date of such demand, at Landlord’s election Tenant
shall pay to Landlord an amount equal to the excess, if any, of the Basic Rent,
Escalation Charges and other sums as hereinbefore provided which would be
payable hereunder from the date of such demand (assuming that, for the purposes
of this paragraph, annual payments by Tenant on account of Taxes, Utility
Expenses


 


30

















 


and Operating Expenses
would be the same as the payments required for the immediately preceding
Operating or Tax Year) for what would be the then unexpired Term of this Lease
if the same had remained in effect, over the then fair net rental value of the
Premises for the same period.


 


(e)                                  In
the case of any Default of Tenant, re-entry, expiration and dispossession by
summary proceeding or otherwise, Landlord may (i) re-let the Premises or any
part or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord’s option be equal to or less than or exceed the
period which would otherwise have constituted the balance of the Term of this
Lease and may grant concessions or free rent to the extent that Landlord
considers advisable and necessary to re-let the same and (ii) may make such
reasonable alterations, repairs and decorations in the Premises as Landlord in
its sole judgment considers advisable and necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord shall in no event be liable in any way
whatsoever for failure to re-let the Premises, or, in the event that the
Premises are re-let, for failure to collect the rent under such re-letting.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining possession of the Premises,
by reason of the violation by Tenant of any of the covenants and conditions of
this Lease. Landlord agrees to exercise commercially reasonable efforts to
mitigate Landlord’s damages on account of any Default of Tenant under this
Lease.


 


(f)                                    Tenant
further agrees that Landlord may file suit from time to time to recover any
sums due under the terms of this Lease and that no recovery of any portion due
Landlord hereunder shall be a defense to any subsequent action brought for any
amount not theretofore reduced to judgment in favor of Landlord. Reletting the
Premises shall not be construed as an election on the part of Landlord to
terminate this Lease, and notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach, whereupon the foregoing provisions with respect to
termination shall apply. Nothing herein shall be deemed to require Landlord to
await the date whereon this Lease or the Term hereof would have expired by
limitation had there been no such default by Tenant, or no such termination, as
the case may be.


 


(g)                                 If
a Guarantor of this Lease is named in Section 1.2, the happening of any of the
events described in paragraphs (a)(iv) or (a)(v) of this Section 13.1 with
respect to the Guarantor shall constitute a Default of Tenant hereunder.


 


(h)                                 The
specified remedies to which Landlord may resort hereunder are not intended to
be exclusive of any remedies or means of redress to which Landlord may at any
time be entitled to lawfully, and Landlord may invoke any remedy (including the
remedy of specific performance) allowed at law or in equity as if specific
remedies were not herein provided for.


 


(i)                                     Tenant
shall pay all reasonable fees, costs and expenses (including, without
limitation, reasonable attorneys’ fees) incurred by or on behalf of Landlord in
connection with the successful enforcement of any rights of Landlord or
obligations of Tenant hereunder, by judicial


 


31

















 


authority or in binding
arbitration, occasioned by a Default of Tenant under this Lease. Landlord shall
pay all reasonable fees, costs and expenses (including, without limitation,
reasonable attorneys’ fees and expenses) incurred by or on behalf of Tenant in
connection with the successful enforcement of any rights of Tenant or
obligations of Landlord hereunder, by judicial authority or in binding
arbitration, occasioned by a Default of Tenant under this Lease. Provided
however, if an arbitrator or judicial authority shall not deem either party as
the prevailing party, no such fees, costs and expenses shall be awarded to either
party.


 


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


 


ARTICLE XIV


 


MISCELLANEOUS
PROVISIONS


 


14.1                           EXTRA
HAZARDOUS USE. Tenant covenants and agrees that Tenant
will not do or permit anything to be done in or upon the Premises, or bring in
anything or keep anything therein, which shall increase the rate of property or
liability insurance on the Premises or of the Building above the standard rate
applicable to premises being occupied for Permitted Uses; and Tenant further
agrees that, in the event that Tenant shall do any of the foregoing, Tenant
will promptly pay to Landlord, on demand, any such increase resulting
therefrom, which shall be due and payable as an additional charge hereunder.


 


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


 


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


 


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14.3                           COVENANT
OF QUIET ENJOYMENT. Tenant, subject to the terms and provisions of this Lease,
on payment of the Basic Rent and Escalation Charges and observing, keeping and
performing all of the other terms and provisions of this Lease on Tenant’s part
to be observed, kept and performed, shall lawfully, peaceably and quietly have,
hold, occupy and enjoy the Premises during the term hereof, without hindrance
or ejection by any persons lawfully claiming under Landlord to have title to
the Premises superior to Tenant; the foregoing covenant of quiet enjoyment is
in lieu of any other covenant, express or implied.


 


14.4                           LANDLORD’S
LIABILITY. (a) Tenant acknowledges and agrees that
Landlord’s liability shall be limited to Landlord’s equity interest in the
Property, including rents and proceeds attributable to the Property, without
recourse to any other assets of Landlord. Tenant specifically agrees to look
solely to Landlord’s then interest in the Property at the time owned, for
recovery of any judgment from Landlord and not to any other assets of Landlord;
it being specifically agreed that neither Landlord (original or successor) nor
any of its assigns, agents, servants, employees, directors, shareholders,
officers, trustees and beneficiaries shall ever be personally liable for any
such judgment, or for the payment of any monetary obligation to Tenant. The
provision contained in the foregoing sentence is not intended to, and shall
not, limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or Landlord’s successors in interest, or to take any
action not involving the personal liability of Landlord (original or successor)
to respond in monetary damages from Landlord’s assets other than Landlord’s
equity interest in the Property. Landlord agrees that in no event shall any
agents, servants, employees, directors, shareholders, members, managers,
officers, or trustees of Tenant ever be personally liable for recovery of any
judgment against Tenant in favor of Landlord, or for the payment of any
monetary obligation of Tenant to Landlord under this Lease.


 


(b)                                 Subject
to Section 7.4(c), with respect to any services or utilities to be
furnished by Landlord to Tenant, Landlord shall in no event be liable for
failure to furnish the same when prevented from doing so by Force Majeure,
strike, lockout, breakdown, accident, order or regulation of or by any
governmental authority, or failure of supply, or inability by the exercise of
reasonable diligence to obtain supplies, parts or employees necessary to
furnish such services, or because of war or other emergency, or for any cause
beyond Landlord’s reasonable control, or for any cause due to any act or
neglect of Tenant or Tenant’s servants, agents, employees, licensees or any
person claiming by, through or under Tenant; nor shall any such failure give
rise to any claim in Tenant’s favor that Tenant has been evicted, either
constructively or actually, partially or wholly.


 


(c)                                  In
no event shall either party ever be liable to the other party for any loss of
business or any other indirect or consequential damages suffered by such party
from whatever cause. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall remain liable for all damages, direct and/or indirect
(including any loss of tenant or rental income) sustained by reason of Tenant’s
holding over in accordance with Section 14.19 of this Lease.


 


(d)  With respect
to any repairs or restoration which are required or permitted to be made by
Landlord, the same may be made during normal business hours and Landlord shall
have no liability for damages to Tenant for inconvenience, annoyance or
interruption of business arising therefrom.


 


33

















 


14.5                           NOTICE
TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any person, firm
or other entity that it holds a mortgage or a ground lease which includes the
Premises, no notice from Tenant to Landlord alleging any default by Landlord
shall be effective unless and until a copy of the same is given to such holder
or ground lessor (provided Tenant shall have been furnished with the name and
address of such holder or ground lessor), and the curing of any of Landlord’s
defaults by such holder or ground lessor shall be treated as performance by
Landlord.


 


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


 


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


 


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


 


14.7                           RULES
AND REGULATIONS. Tenant shall abide by rules and regulations set forth in
Exhibit C attached hereto and those rules and regulations from time to time
established by Landlord provided any changes in such rules do not materially
affect Tenant’s rights under this Lease, it being agreed that such rules and
regulations will be established and applied by Landlord in a non-discriminatory
fashion, such that all rules and regulations shall be generally applicable to
other tenants of the Building of similar nature to the Tenant named herein.
Landlord agrees to use reasonable efforts to insure that any such rules and
regulations are uniformly enforced, but Landlord shall not be liable to Tenant
for violation of the same by any other tenant or occupant of the Building, or
persons having business with them. In the event that there shall be any
conflict between such rules and regulations and the provisions of this Lease,
the provisions of this Lease shall control.


 


34

















 


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


 


14.9                           INVALIDITY
OF PARTICULAR PROVISIONS. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by Law.


 


14.10                     PROVISIONS
BINDING, ETC. Except as herein otherwise provided, the terms hereof shall
be binding upon and shall inure to the benefit of the successors and assigns,
respectively, of Landlord and Tenant and, if Tenant shall be an individual,
upon and to his heirs, executors, administrators, successors and assigns. Each
term and each provision of this Lease to be performed by Tenant shall be
construed to be both a covenant and a condition. The reference contained to
successors and assigns of Tenant is not intended to constitute a consent to
assignment by Tenant, but has reference only to those instances in which
Landlord may later give consent to a particular assignment as required by those
provisions of Article VI hereof.


 


14.11                     RECORDING.
Tenant agrees not to record this Lease, but each party hereto agrees, on the
request of the other, to execute a so-called notice of lease in form recordable
and complying with applicable law and reasonably satisfactory to Landlord’s
attorneys. In no event shall such document set forth the rent or other charges
payable by Tenant under this Lease; and any such document shall expressly state
that it is executed pursuant to the provisions contained in this Lease, and is
not intended to vary the terms and conditions of this Lease.


 


14.12                     NOTICES.
Whenever, by the terms of this Lease, notices, consents or approvals shall or
may by given either to Landlord or to Tenant, such notices, consents or
approvals shall be in writing and shall be sent by (i) nationally recognized
overnight delivery service with signature required on delivery or (ii)
registered or certified mail, return receipt requested, postage prepaid:


 


35

















 


If intended for Landlord,
addressed to Landlord at:


 


Landlord’s Original
Address


 


(or to such other address
as may from time to time hereafter be designated by Landlord by like notice).


 


With a copy to:


Essex River Management,
Inc.


c/o Essex River Ventures,
Inc.


225 Friend Street – 7th
Floor


Boston,
Massachusetts  02114


 


with a copy to:


Praedium Fund V


c/o The Praedium Group


825 Third Avenue, 36th
Floor


New York, New York 10022


Attention:  Christopher Hughes


 


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


 


with a copy to:


Goodwin Procter LLP


Exchange Place


Boston,
Massachusetts  02109


Attn:  Andrew C. Sucoff, Esq.


 


All such
notices shall be effective when delivered if sent by overnight courier and if
registered or certified by US Mail three (3) Business Days after deposited in
the United States Mail within the Continental United States, provided that the
same are received in ordinary course at the address to which the same were
sent.


 


14.13                     WHEN LEASE
BECOMES BINDING. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises, and this document shall become effective and binding
only upon the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and this Lease expressly supersedes
any proposals or other written documents relating hereto. This Lease may be
modified or altered only by written agreement between Landlord and Tenant, and
no act or omission of any employee or agent of Landlord shall alter, change or
modify any of the provisions hereof.


 


36

















 


14.14                     PARAGRAPH
HEADINGS. The paragraph headings throughout this instrument are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction,
or meaning of the provisions of this Lease.


 


14.15                     RIGHTS OF
MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate to any mortgage
or ground lease from time to time encumbering the Premises, whether executed
and delivered prior to or subsequent to the date of this Lease, if the holder
of such mortgage or ground lease shall so elect; provided, however, that the
subordination of this Lease to any mortgage or ground lease entered into after
the date of this Lease shall be upon the express condition that so long as no
Default of Tenant exists under this Lease beyond applicable notice and cure
periods, Tenant’s possession and enjoyment of the Premises and Tenant’s rights
under the Lease shall not be disturbed or interfered with in the event of a
foreclosure of such mortgage or lease or the exercise of any rights thereunder.
Landlord agrees to use commercially reasonable efforts to obtain a
subordination, non-disturbance and attornment agreement (an “SNDA”) from its
current lender and current ground lessor, if applicable, for the benefit of
Tenant in the form attached as Exhibit G hereto. If Landlord fails to
obtain an SNDA from its current lender and/or ground lessor substantially in
the form attached as Exhibit G within thirty (30) days following the date of
this Lease, then Tenant may elect to terminate this Lease by written notice to
Landlord and thereupon this Lease shall be null and void and of no further
force and effect following the effective date of such termination set forth in
Tenant’s termination notice. If this Lease is subordinate to any mortgage or
ground lease and the holder thereof (or successor) shall succeed to the
interest of Landlord, at the election of such holder (or successor) Tenant
shall attorn to such holder and this Lease shall continue in full force and
effect between such holder (or successor) and Tenant. Subject to Tenant’s
receipt of an SNDA in the form required under this Section 14.15, Tenant agrees
to execute such instruments of subordination or attornment in confirmation of
the foregoing agreement as such holder may request, and Tenant hereby appoints
such holder as Tenant’s attorney-in-fact to execute such subordination or
attornment agreement upon default of Tenant in complying with such holder’s
request.


 


14.16                     STATUS
REPORT. Recognizing that both parties may find it necessary to establish to
third parties, such as accountants, banks, mortgagees, ground lessors, or the
like, the then current status of performance hereunder, either party, on the
request of the other made from time to time, will promptly furnish to Landlord,
or the holder of any mortgage or ground lease encumbering the Premises, or to
Tenant, as the case may be, a statement of the status of any matter pertaining
to this Lease, including, without limitation, acknowledgment that (or the
extent to which) each party is in compliance with its obligations under the
terms of this Lease.


 


14.17                     SECURITY
DEPOSIT. Concurrently with the execution and delivery of this Lease, Tenant
shall deposit the Security Deposit specified in Section 1.2 hereof with
Landlord. Landlord shall hold the same as security for the performance by
Tenant of all obligations on the part of Tenant hereunder. Landlord shall have
the right from time to time without prejudice to any other remedy Landlord may
have on account thereof, to apply such deposit, or any part thereof, to
Landlord’s damages arising from, or to cure, any Default of Tenant. If Landlord
shall so apply any or all of such deposit, Tenant shall immediately deposit
with Landlord the amount


 


37

















 


so applied to be held as
security hereunder. There then existing no Default of Tenant, Landlord shall
return the deposit, or so much thereof as shall theretofore not been applied in
accordance with the terms of this Section 14.17, to Tenant on the date which is
the last to occur of (i) the date which is sixty (60) days after the last day
of the Term of this Lease or (ii) the date which is sixty (60) days after the
date of delivery of the entire Premises to Landlord in accordance with the
terms of this Lease or (iii) the date which is sixty (60) days after the last
of Tenant’s monetary obligations to Landlord under this Lease have been paid
and satisfied in full, except for any so-called “true up” for Taxes or
Operating Expenses which Landlord may bill to Tenant after the expiration or
any earlier termination of this Lease. While Landlord holds such deposit,
Landlord shall have no obligation to pay interest on the same and shall have
the right to commingle the same with Landlord’s other funds. If Landlord
conveys Landlord’s interest under this Lease, the deposit, or any part thereof
not previously applied, shall be turned over by Landlord to Landlord’s grantee,
and, if so turned over, Tenant agrees to look solely to such grantee for proper
application of the deposit in accordance with the terms of this Section 14.17,
and the return thereof in accordance therewith. The holder of a mortgage shall
not be responsible to Tenant for the return or application of any such deposit,
whether or not it succeeds to the position of Landlord hereunder, unless such
deposit shall have been received in hand by such holder.


 


14.18                     REMEDYING
DEFAULTS. Landlord shall have the right, but shall not be required, to pay
such sums or to do any act which requires the expenditure of monies which may
be necessary or appropriate by reason of the failure or neglect of Tenant to
perform any of the provisions of this Lease, and in the event of the exercise
of such right by Landlord, Tenant agrees to pay to Landlord forthwith upon
demand all such sums, together with interest thereon at a rate equal to three
(3%) percent over the prime rate in effect from time to time at Bank of America
or such other banking institution in Boston, MA as designated from time to time
by Landlord (but in no event greater than the maximum rate of interest
permitted by law), as an additional charge. Any payment of Basic Rent,
Escalation Charges or other sums payable hereunder not paid when due shall, at
the option of Landlord, bear interest at a rate equal to three (3%) percent
over the prime rate in effect from time to time at Bank of America (but in no
event greater than the maximum rate of interest permitted by law) from the due
date thereof and shall be payable forthwith on demand by Landlord, as an
additional charge.


 


14.19                     HOLDING
OVER. Any holding over by Tenant after the expiration or earlier
termination of the Term of this Lease shall be treated as a daily tenancy at
sufferance at a rate equal to the then fair rental value of the Premises but in
no event less than (i) for the first thirty (30) days of any such holdover, one
hundred fifty (150%) percent of the sum of Basic Rent in effect on the expiration
or termination date plus Escalation Charges in accordance with the terms of
this Lease and (ii) thereafter, two (2) times the sum of Basic Rent in effect
on the expiration or termination date plus Escalation Charges calculated in
accordance with the terms of this Lease. Tenant shall also pay to Landlord all
damages, direct and/or indirect (including any loss of a tenant or rental
income), sustained by reason of any such holding over. Otherwise, such holding
over shall be on the terms and conditions set forth in this Lease as far as
applicable.


 


14.20                     WAIVER OF
SUBROGATION. Landlord and Tenant mutually agree that
any property damage insurance carried by either shall provide for the waiver by
the insurance carrier of any


 


38

















 


right
of subrogation against the other, and they further mutually agree that, with
respect to any damage to property, the loss from which is covered by insurance
then being carried by them, respectively, or is required to be carried under
this Lease, the one carrying such insurance and suffering such loss releases
the other of and from any and all claims with respect to such loss to the
extent of the insurance proceeds paid with respect thereto.


 


14.21                     SURRENDER
OF PREMISES. Upon the expiration or earlier termination of the Term of this
Lease, Tenant shall peaceably quit and surrender to Landlord the Premises in
neat and clean condition and in good order, condition and repair, together with
all alterations, additions and improvements which may have been made or
installed in, on or to the Premises prior to or during the Term of this Lease,
excepting only ordinary wear and use and damage by fire or other casualty and
other repairs for which, under other provisions of this Lease, Tenant has no
responsibility of repair and restoration. Tenant shall remove all of Tenant’s
Removable Property and, to the extent specified by Landlord at the time
Landlord consents to such installation, all alterations and additions made by
Tenant and all partitions wholly within the Premises; and shall repair any
damage to the Premises or the Building caused by such removal. Any Tenant’s
Removable Property which shall remain in the Building or on the Premises after
the expiration or termination of the Term of this Lease shall be deemed
conclusively to have been abandoned, and either may be retained by Landlord as
its property or may be disposed of in such manner as Landlord may see fit, at
Tenant’s sole cost and expense. Tenant, at its sole risk, cost and expense,
shall remove any telephone/data/internet wiring and cables installed by Tenant
in the Premises at such time that Tenant moves out of the Premises or upon the
expiration or earlier termination of this Lease, unless any such wiring and
cables are installed in connection with the approved build out and are a
component of Landlord’s Work.


 


14.22                     INTENTIONALLY
DELETED.


 


14.23                     BROKERAGE.
Tenant warrants and represents that Tenant has dealt with no broker in
connection with the consummation of this Lease other than Richards, Barry,
Joyce & Partners (the “Broker”) and, in the event of any brokerage claims
against Landlord predicated upon prior dealings with Tenant, Tenant agrees to
defend the same and indemnify Landlord against any such claim (except any claim
by the Broker which shall be paid by Landlord pursuant to its specific
agreements with Broker). Landlord warrants and represents that Landlord has
dealt with no broker in connection with the consummation of this Lease other
than Broker and, in the event of any brokerage claims against Tenant predicated
upon prior dealings with Landlord, Landlord agrees to defend the same and
indemnify Tenant against any such claim.


 


14.24                     SPECIAL
TAXATION PROVISIONS. Anything contained in the foregoing provisions of this
Lease (including, without limitation, Article VI hereof) to the contrary
notwithstanding, neither Tenant nor any other person having an interest in the
possession, use, occupancy or utilization of the Premises, shall enter into any
lease, sublease, license, concession or other agreement for use, occupancy,
utilization of space in the Premises which provides for rental or other payment
for such use, occupancy or utilization of space, in whole or in part, on the
net income or profits derived by any person from the Premises leased, used,
occupied or utilized (other than an amount based on a fixed percentage or
percentage of receipts for sales) and any such recorded lease, sublease,
license, concession or other agreement shall be absolutely void


 


39

















 


and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.


 


14.25                     HAZARDOUS
MATERIALS. Tenant shall not (either with or without negligence) cause the
escape, disposal, release or threat of release of any biologically or
chemically active or other Hazardous Materials (as said term is hereafter
defined) on, in, upon or under the Property or the Premises. Tenant shall not
allow the generation, storage, use or disposal of such Hazardous Materials in
any manner not sanctioned by law or by the highest standards prevailing in the
industry for the generation, storage, use and disposal of such Hazardous
Materials, nor allow to be brought into the Property any such Hazardous
Materials except for use of normal office and business equipment supplies and
cleaning products in the ordinary course of Tenant’s business. If any lender or
governmental agency shall ever require testing to ascertain whether or not
there has been any release of Hazardous Materials by Tenant or its agents,
employees, servants, contractors and subcontractors, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges but only if such requirement applies to the Premises or may be the
result of the acts or omissions of Tenant or its agents, employees, servants,
contractors and subcontractors. In addition, Tenant shall execute affidavits,
representations and the like, from time to time, at Landlord’s request
concerning Tenant’s best knowledge and belief regarding the presence of
Hazardous Materials on the Premises.


 


The Tenant shall, at its own expense, remove, clean up,
remedy and dispose of (in compliance with all applicable laws, rules and regulations)
all Hazardous Materials generated or released by the Tenant or its officers,
directors, employees, contractors, servants, invitees, agents or any other
person acting under Tenant during the term of this Lease (or during such term
as the Tenant is in occupancy or possession of any part of the Premises, the
Building or the Property) at or from the Premises, the Building or the Property
in compliance with all Environmental Laws (as said term is hereafter defined)
and further, shall remove, clean up, remedy and dispose of all Hazardous
Materials located at, upon, under, within or in the Premises, the Building or
the Property generated by, or resulting from Tenant’s operations, activities or
processes during the term of this Lease (or such other periods of time as the
Tenant may be in occupancy or in possession of the Premises or any portion of
the Property or Building), in compliance with all Environmental Laws. In
performing its obligations hereunder, the Tenant shall use commercially
reasonable efforts to avoid interference with the use and enjoyment of the
Building and the Property by other tenants and occupants thereof. The
provisions hereof shall survive expiration or termination of this Lease.


 


To the best of Landlord’s knowledge, based on the “Phase I
Report” (as said term is hereinafter defined), Landlord represents to Tenant
that, as of the date of this Lease, other than as expressly disclosed in the
Phase I Report, Landlord has no knowledge any release or threat of release of
any Hazardous Materials, or other environmental condition requiring
remediation, at the Property and, to the best of Landlord’s knowledge, the
Premises, the Building and the Property are in compliance with all applicable
Environmental Laws. Landlord shall indemnify and defend Tenant against and hold
Tenant harmless from all claims, liabilities, costs, expenses, losses and
damages (including reasonable attorneys fees’ and disbursements) that Tenant
may incur in connection with claims arising from (i) any Hazardous Materials
introduced at, on, about or under the Premises, the Building or the Property by
any act of Landlord or its agents,


 


40

















 


officers, employees, contractors, invitees or licensees, or
(ii) any Hazardous Materials which existed or were present or introduced at,
on, about or under the Premises, the Building or the Property prior to the
Commencement Date of this Lease, or (iii) any breach of the foregoing
representation by Landlord. The foregoing indemnification shall survive the
expiration or earlier termination of this Lease. As used herein, the term “Phase
I Report” shall mean that certain Level I Environmental Site Assessment and
Limited Subsurface Investigation for 10 Maguire Road, Lexington, Massachusetts
dated July 15, 2004 and performed by Rizzo Associates, a copy of which has been
submitted to Tenant.


 


Except to the extent Landlord is required to indemnify Tenant
under this Section 14.25, Tenant shall indemnify, defend and save harmless the
Landlord and its officers, directors, shareholders, employees, contractors,
servants, invitees, representatives and agents from and against all loss,
costs, damages, claims, proceedings, demands, liabilities, penalties, fines and
expenses, including without limitation, reasonable fees and costs for attorneys’
fees, consultants’ fees, litigation costs and clean-up costs asserted against
or incurred by the Landlord, its officers, directors, shareholders, employees,
contractors, servants, invitees representatives or agents at any time by reason
of or arising out of (i) any release of any Hazardous Materials at, in, upon,
under or from the Premises, the Building or the Property where such release or
threat of release is the result of or alleged to solely result from the acts or
omissions of the Tenant or its agents, servants, employees, contractors or
invitees, or (ii) any violation or alleged violation of any Environmental Laws
governing Hazardous Materials where such violation or alleged violation is the
result of or alleged to result from the acts or omissions of the Tenant or its
agents, servants, employees, contractors, invitees, or any other person acting
under Tenant. The indemnities set forth in this Section shall survive
expiration or termination of this Lease.


 


In addition to the requirements set forth above, the Tenant
shall, within ten (10) days of receipt, provide to the Landlord copies of any
inspection or other reports, correspondence, documentation, orders, citations,
notices, directives, or suits from or by any governmental authority or insurer
regarding non-compliance with or potential or actual violation of Environmental
Laws. The Landlord hereby expressly reserves the right to enter the Premises
and all other portions of the Building and the Property in order to perform
inspections and testing of the air, soil and groundwater for the presence or
existence of Hazardous Materials, provided Landlord restores any portion of the
Premises, Building or Property disturbed by such inspections.


 


As used herein, the term “Hazardous Materials” shall mean and
include, without limitation, any material or substance which is (i) petroleum,
(ii) asbestos, (iii) designated as a “hazardous substance” pursuant to Section
311 of the Federal Water Pollution Control Act, 33 U.S.C. SS 1251 et seq. (33
U.S.C. SS 1321) or listed in SS 307 of the Federal Water Pollution Control Act
(33 U.S.C. SS 1317), (iv) defined as a “hazardous waste” pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. SS 6901 et seq.
(42 U.S.C. SS 6903), (v) defined as a “hazardous substance” pursuant to Section
101 of the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. SS 9601 et seq. (42 U.S.C. SS 9601), as amended and regulations
promulgated thereunder, or (vi) defined as “oil” or a “hazardous waste”, a “hazardous
substance”, a “hazardous material” or a “toxic material”


 


41

















 


under any other law, rule or regulation applicable to the
Property, including, without limitation, Chapter 21E of the Massachusetts
General Laws, as amended and the regulations promulgated thereunder. As used
herein, the term “Environmental Laws” shall mean, without limitation, each and
every law, rule, order, statute or regulation described above in this Section,
together with (i) any amendments thereto, or regulations promulgated thereunder
and (ii) any other laws pertaining to the protection of the environment or
governing the use, release, storage, generation or disposal of Hazardous
Materials, whether now existing or hereafter enacted or promulgated.


 


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


 


14.27                     INTENTIONALLY
DELETED.


 


14.28                     SURVIVAL
PROVISION. It is expressly understood and agreed that any indemnification
by Tenant contained in this Lease shall survive any expiration or earlier
termination of this Lease.


 


14.29                     FURNITURE/EQUIPMENT/TELEPHONE
SYSTEM. Notwithstanding anything to the contrary contained in this Lease,
Tenant, at its sole risk, cost and expense, shall be responsible for (i) any
furniture, equipment, wiring and cabling in the Premises and  (ii) maintaining, repairing, replacing and
removing any furniture, equipment, personal property, trade fixtures and
telephone/data/internet infrastructure together with any wiring or cabling
related thereto in the Premises installed by Tenant.


 


14.30                     OPTION TO
EXTEND. Tenant shall have the right and option, which said option and right
shall not be severed from this Lease or separately assigned, mortgaged or
transferred, to extend the Initial Term for one (1) additional consecutive
period of three (3) years (hereinafter referred to as the “Extension Period”),
provided that (a) Tenant shall give Landlord notice of Tenant’s exercise of
such option at least nine (9) full calendar months prior to the expiration of
the Initial Term but no sooner than twelve (12) full calendar months prior to
the expiration of the Initial Term and (b) no Default of Tenant shall exist at
the time of giving the applicable notice or the commencement of the Extension
Period and (c) the Premises has not been vacated, abandoned or surrendered
(other than any vacancy or abandonment by Tenant in connection with a casualty,
condemnation or interruption of services to the Premises) both at the time of
giving the applicable notice and at the time of commencement of such Extension
Period. Except for the amount of Basic Rent and Base Year adjustments for
calculating Escalation Charges (which is to be determined as hereinafter
provided), all the terms, covenants, conditions, provisions and agreements in
the Lease contained shall be applicable to the additional period through which
the Term of this Lease shall be extended as aforesaid, except that there shall
be no further options to extend the Term nor shall Landlord be obligated to
make or pay for any improvements to the Premises nor pay any inducement
payments of any kind or nature. If Tenant shall give notice of its exercise
of  such option to extend in the manner
and within the time period provided aforesaid, the Term of this Lease shall be
extended upon the giving of each such notice without the requirement of any
further attention on the part of either Landlord or Tenant except as may be
required in order to determine Basic Rent and Base Year


 


42

















 


adjustments for
calculating Escalation Charges as hereafter set forth. Landlord hereby reserves
the right, exercisable by Landlord in its sole discretion, to waive (in
writing) any condition precedent set forth in clauses (a), (b) or (c) above.


 


If Tenant shall fail to
give timely notice of the exercise of such option as aforesaid, Tenant shall
have no right to extend the Term of this Lease, time being of the essence of
the foregoing provisions. Any termination of this Lease Agreement shall
terminate the rights hereby granted Tenant.


 


The Basic Rent payable
for each twelve (12) month period during the Extension Period shall be
ninety-five (95%) percent the Fair Market Rental Value (as said term is
hereinafter defined) as of commencement of the Extension Period but in no event
less than the Basic Rent per annum payable for and with respect to the last 12
calendar months of the Initial Term and the Base Years for Operating Expenses,
Utility Expenses and Taxes shall be adjusted to calendar year 2010 and Fiscal
Year 2011, respectively. “Fair Market Rental Value” shall be computed as of the
beginning of the Extension Period at the then current annual rental charges,
including provisions for subsequent increases and other adjustments, for
extensions of existing leases then currently being negotiated or executed in
comparable space and buildings located in the leasing market encompassing
Lexington, Massachusetts. In determining Fair Market Rental Value, the
following factors, among others, shall be taken into account and given
effect:  size of the premises, escalation
charges then payable under the Lease, location of the premises, location of the
building, allowances or lack of allowances (if any), lease term and absence or
reduction of brokerage commissions due in connection with the extension term. In
no event shall the Basic Rent payable with respect to any Lease Year during the
Extension Period be less than the Basic Rent payable during the last 12
calendar months of the Initial Term.


 


Dispute as to Fair Market
Value. Landlord shall initially designate the Fair Market
Rental Value and shall furnish data in support of such designation. If Tenant
disagrees with Landlord’s designation of the Fair Market Rental Value, Tenant
shall have the right, by written notice given to Landlord within thirty (30)
days after Tenant has been notified of Landlord’s designation, to submit such
Fair Market Rental Value to arbitration as follows:  Fair Market Rental Value shall be determined
by agreement between Landlord and Tenant but if Landlord and Tenant are unable
to agree upon the Fair Market Rental Value at least seven (7) months prior to the
date upon which the Fair Market Rental Value is to take effect, then the Fair
Market Rental Value shall be determined by appraisal as follows:  The Landlord and Tenant shall each appoint a
Qualified Appraiser (as said term is hereinafter defined) at least six (6)
months prior to the commencement of the period for which Fair Market Rental
Value is to be determined and shall designate the Qualified Appraiser so
appointed by notice to the other party. The two appraisers so appointed shall
meet within ten (10) days after both appraisers are designated in an attempt to
agree upon the Fair Market Rental Value for the applicable Extension Period and
if, within fifteen (15) days after both appraisers are designated, the two
appraisers do not agree upon the Fair Market Rental Value, then each appraiser
shall, not later than thirty (30) days after both appraisers have been chosen,
deliver a written report to both the Landlord and Tenant setting forth the Fair
Market Rental Value as determined by each such appraiser taking into account
the factors set forth in this Section 14.30. If the lower of the two
determinations of Fair Market Rental Value as determined by such two appraisers
is equal to or greater than 95% of the


 


43

















 


higher of the Fair Market
Rental Value as determined by such two appraisers, the Fair Market Rental Value
shall be deemed to be the average of such Fair Market Rental Value as set forth
in such two determinations. If the lower determination of Fair Market Rental
Value is less than 95% of the higher determination of Fair Market Rental Value,
the two appraisers shall promptly appoint a third Qualified Appraiser and shall
designate such third Qualified Appraiser by notice to Landlord and Tenant. The
cost and expenses of each appraiser appointed separately by Tenant and Landlord
shall be borne by the party who appointed the appraiser. The cost and expenses
of the third appraiser shall be shared equally by Tenant and Landlord. If the
two appraisers cannot agree on the identity of the third Qualified Appraiser at
least three (3) months prior to commencement of the period for which Fair
Market Rental Value is to be determined, then the third Qualified Appraiser
shall be appointed by the American Arbitration Association (“AAA”) sitting in
Boston, Massachusetts and acting in accordance with its rules and regulations. The
costs and expenses of the AAA proceeding shall be borne equally by the Landlord
and Tenant. The third appraiser shall promptly make its own independent
determination of Fair Market Rental Value for the Premises taking into account
the factors set forth in this Section 14.30 and shall promptly notify Landlord
and Tenant of his determination. If the determinations of the Fair Market
Rental Value of any two of the appraisers shall be identical in amount, said
amount shall be deemed to be the Fair Market Rental Value for the Premises. If
the determinations of all three appraisers shall be different in amount, the
average of the two nearest in amount shall be deemed the Fair Market Rental
Value. The Fair Market Rental Value of the subject space determined in
accordance with the provisions of this Section shall be binding and conclusive
on Tenant and Landlord. As indicated above, in no event shall the Fair Market
Rental Value be less than the Basic Rent applicable to the 12 calendar month
period immediately preceding the commencement of the Extension Period. As used
herein, the term “Qualified Appraiser” shall mean any disinterested person (a)
who is employed by an appraisal firm or a commercial leasing brokerage company
in either case of recognized competence in the greater Boston area, and (b) who
has not less than ten (10) years experience in appraising and valuing
properties of the general location, type and character as the Premises, and (c)
who is either a Senior Real Property Appraiser of the Society of Real Estate
Appraisers or a member of the Appraisal Institute (or any successor
organization). Notwithstanding the foregoing, if either party shall fail to
appoint its appraiser within the period specified above (such party referred to
hereinafter as the “Failing Party”), the other party may serve notice on the
Failing Party requiring the Failing Party to appoint its appraiser within ten
(10) days of the giving of such notice and if the Failing Party shall not
respond by appointment of its appraiser within said ten (10) day period, then
the appraiser appointed by the other party shall be the sole appraiser whose
determination of Fair Market Rental Value shall be binding and conclusive upon
Tenant and Landlord. If, for any reason, Fair Market Rental Value shall not
have been determined by the time of commencement of the Extension Period and
until such rent is determined, Tenant shall pay Basic Rent during the Extension
Period in an amount (the “Interim Rent”) as specified by Landlord’s appraiser
and upon receipt of a final determination of Fair Market Rental Value as
hereinabove set forth, any overpayment or underpayment of Interim Rent shall be
paid promptly to the party entitled to receive the same.


 


14.31                     TENANT’S
ACCESS. Subject to any Force Majeure, emergency or accident, Tenant shall
have access to the Premises twenty-four (24) hours a day, seven (7) days a
week.


 


44

















 


[Remainder of Page
Intentionally Left Blank – Signature Page Follows]


 


45

















 


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


 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  BLADELOGIC, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Melissa Cruz

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  CFO & SVP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  LEXINGTON CORPORATE
  CENTER

  
	
   

  	
    ASSOCIATES
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  PV Lexington Corporate
  Center LLC

  
	
   

  	
  Its:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Hughes

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  VP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  LCCA0017/7

  	
   

  
					



 


46

















 


EXHIBIT A


 


PLAN SHOWING
PREMISES


 

















 


EXHIBIT B


 


SITE PLAN


 

















 


EXHIBIT C


 


PLAN SHOWING LANDLORD’S WORK


 

















 


EXHIBIT D


 


RULES AND
REGULATIONS


 


1.                                       The
sidewalks, paved and/or landscaped areas shall not be obstructed or encumbered
by Tenant or used for any purpose other than ingress and egress to and from the
demised premises.


 


2.                                       No
sign, advertisement, notice or other lettering shall be exhibited, inscribed,
painted or affixed by Tenant on any part of the demised premises or Building so
as to be visible from outside the demised premises without the prior written
consent of Landlord, which will not be unreasonably withheld or delayed. In the
event of any violation of this paragraph, Landlord may remove same without any
liability, and may charge the expense incurred in such removal to Tenant, as
additional rent.


 


3.                                       No
awnings, curtains, blinds, shades, screens or other projections shall be
attached to or hung in, or used in connection with, any window of the demised
premises or any outside wall of the Building without the prior written consent
of Landlord, which will not be unreasonably withheld or delayed so long as said
awning or other item conforms to similar items installed in or upon other
portions of the Building. Such awnings, curtains, blinds, shades, screens or
other projections must be of a quality, type, design  and color, and attached in the manner,
approved by Landlord. If any portion of the demised premises which is not used
for office purposes shall have windows, such windows shall be equipped with
curtains, blinds or shades approved by Landlord, and said curtains, blinds or
shades shall be kept closed at all times.


 


4.                                       The
water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were designed and constructed, and no
sweepings, rubbish, rags, acids, chemicals, process water, cooling water or
like substances shall be deposited therein. Said plumbing fixtures and the
plumbing system of the Building shall be used only for discharge of so-called
sanitary waste. All damage resulting from any misuse of said fixtures and/or
plumbing system by Tenant or anyone claiming under Tenant shall be borne by
Tenant.


 


5.                                       Tenant
must, upon the termination of its tenancy, return to Landlord all locks,
cylinders and keys to the demised premises and any offices therein.


 


6.                                       Tenant
shall keep any sidewalks and planters in front of the demised premises
reasonably free and clear of litter and refuse, regardless of the source
thereof.


 


7.                                       Tenant
shall, at Tenant’s expense, provide artificial light and electric current for
the employees of Landlord and/or Landlord’s contractors while making repairs or
alterations in the demised premises.


 


8.                                       Tenant
shall not make, or permit to be made, any unseemly or disturbing odors or
noises or disturb or interfere with occupants of the Building or those having
business with them, whether by use of any musical instrument, radio, machine,
or in any other way.


 

















 


9.                                       Canvassing,
soliciting, and peddling in the Building are prohibited and Tenant shall
cooperate to prevent the same.


 


10.                                 Tenant
shall keep the demised premises free at all time of pests, rodents and other
vermin, and Tenant shall keep all trash and rubbish stored in containers of a
type approved by Landlord, such containers to be kept at locations designated
by Landlord. Tenant shall cause such containers to be emptied whenever
necessary to prevent them from overflowing or from producing any objectionable
odors.


 


11.                                 Landlord reserves the right to
rescind, alter, waive and/or establish any reasonable rules and regulations of
uniform application to all tenants which, in its judgment, are necessary,
desirable or proper for its best interests and the best interests of the
occupants of the Building.


 


12.                                 The access roads, driveways,
entrances and exits shall not be obstructed or encumbered by Tenant or used for
any purpose other than ingress and egress.


 


2

















 


EXHIBIT E


 


(ITEMS INCLUDED IN
UTILITY


EXPENSES AND
OPERATING EXPENSES)


 


A.                                   Without
limitation, Utility Expenses shall include:


 


Costs for electricity,
fuel, oil, gas, steam, water and sewer use charges and other utilities supplied
to the common areas of the Property and not paid for directly by tenants. Utility
Expenses shall not include Tenant’s Original Electrical Factor paid directly by
Tenant or any of the foregoing costs supplied to leaseable areas of the
Building.


 


B.                                     Without
limitation but subject to the limitations in Section C below of this
Exhibit E, Operating Expenses shall include:


 


1.                                       All
expenses incurred by Landlord or Landlord’s representatives which shall be
directly related to employment of personnel equal to or below the level of
building manager, including amounts incurred for wages, salaries and other
compensation for services, payroll, social security, unemployment and similar
taxes, workmen’s compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on Landlord or Landlord’s
agents in connection with the operation, repair, maintenance, cleaning,
management and protection of the Property, and its mechanical systems
including, without limitation, day and night supervisors, property manager,
accountants, bookkeepers, janitors, carpenters, engineers, mechanics,
electricians and plumbers:  provided
that, if any such employee is also employed on other property of Landlord, such
compensation shall be equitably allocated by Landlord among the Property and
such other properties.


 


2.                                       The
cost of services, materials and supplies furnished or used in the operation,
repair, maintenance, cleaning, management and protection of the Property
including, without limitation, fees and assessments, if any, imposed upon
Landlord, or charged to the Property, by any governmental agency or authority
or other duly authorized private or public entity on account of public safety
services, transit, housing, police, fire, sanitation or other services or
purported benefits.


 


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


 


4.                                       Premiums
for insurance against damage or loss to the Building from such hazards as shall
from time to time be generally required by institutional mortgagees in the
Boston area for similar properties, including, but not by way of limitation,
insurance covering loss of rent attributable to any such hazards, and public
liability insurance; provided, however, any premiums for terrorism insurance
and environmental insurance are excluded.


 


5.                                       Where
the Property is managed by Landlord or an affiliate of Landlord, a sum equal to
the amounts customarily charged by management firms in the Boston area for
similar


 


3

















 


properties, but in no
event more than four percent (4%) of gross annual income derived from the
Building, whether or not actually paid, or where managed by other than Landlord
or an affiliate thereof, the amounts accrued for management but again not to
exceed four percent (4%) of gross annual income derived from the Building,
together with, in either case, amounts accrued for reasonable legal and other
professional fees relating to the Property, but excluding such fees and
commissions paid in connection with services rendered for securing or renewing
leases and for matters not related to the normal administration and operation
of the Building.


 


6.                                       Subject
to the terms of this Exhibit E, if, during the Term of this Lease,
Landlord shall make a capital expenditure which is (a) for the purpose of  causing the Property to comply with any laws,
rules, regulations, codes or ordinances not in existence and not in effect as
of the date of this Lease, or (b) intended to improve the efficiency of the
Building or to reduce Operating Expenses or Utility Costs, or (c) incurred to
replace existing equipment and machinery necessary to the day-to-day operations
of the Property which has outlived its useful life, or which are in lieu of
needed repairs (the foregoing categories of capital expenditures in (a), (b)
and (c) being referred to as “Permitted Capital Pass-Throughs”), Landlord may
include in the calculation of Operating Expenses for the Operating Year in
which it was made and in Operating Expenses for each succeeding Operating Year
the annual charge off of such Permitted Capital Pass Throughs. Annual charge
off shall be determined by dividing the original capital expenditure plus an
interest factor, reasonably determined by Landlord as being the interest rate
then being charged for long term mortgages by institutional lenders on like
properties within the locality in which the Building is located, by the number
of years of useful life of the improvement made with the capital expenditure;
and the useful life shall be determined reasonably by Landlord in accordance
with generally accepted accounting principles and practices consistently
applied in effect at the time of making such expenditure.


 


7.                                       Betterment
assessments provided the same are apportioned equally over the longest period
permitted by law.


 


8.                                       Amounts
paid to independent contractors for services, materials and supplies furnished
for the operation, repair, maintenance, cleaning and protection of the
Property.


 


C.                                     Notwithstanding
anything herein to the contrary, the following shall not be included in the
calculation of Operating Expenses:


 


1.                                       “Tenant
allowances,” “tenant concessions,” workletters, and other costs or expenses
(including permit, license and inspection fees) incurred in completing,
fixturing, furnishing, renovating or otherwise improving, decorating or
redecorating space for tenants or other occupants, or vacant, leasable space,
including space planning/interior architecture fees for same;


 


2.                                       Repairs
or other work occasioned by fire, windstorm or other casualty or hazard, except
to the extent of the commercially reasonable deductible amounts under Landlord’s
policy of casualty insurance;


 


3.                                       Leasing
commissions, marketing and advertising expenses incurred in leasing,
extensions, renewals or procuring new tenants;


 


2

















 


4.                                       Repairs
or rebuilding necessitated by condemnation to the extent that Landlord has
received condemnation proceeds for such repairs or rebuilding;


 


5.                                       Depreciation
and amortization of the Building;


 


6.                                       Debt
service payments or any other charges on any indebtedness applicable to the
Property, including any mortgage debt;


 


7.                                       The
costs of special services, tenant improvements and concessions, repairs,
maintenance items or utilities specifically provided for individual tenants of
the Building;


 


8.                                       Costs
incurred in connection with the sale, financing, refinancing, mortgaging,
selling or change of ownership of the Building;


 


9.                                       The
costs of repairs, replacements and alterations for which and to the extent that
Landlord is entitled to be reimbursed therefor from any source;


 


10.                                 Fees,
costs and expenses incurred by Landlord in connection with or relating to
claims against or disputes with tenants of the Building or the negotiation of
leases, extensions or renewals with tenants or prospective tenants;


 


11.                                 Costs, fines, interest, penalties, legal
fees or costs of litigation incurred due to the late payment of taxes, utility
bills and other costs incurred by Landlord’s failure to make such payments when
due;


 


12.                                 Any
costs of repairs or replacements for which Landlord is entitled to be
reimbursed under the warranty of any general contractor, subcontractor or
supplier;


 


13.                                 Any
rent for any Landlord on-site leasing office;


 


14.                                 Costs
incurred in connection with the testing, removal, encapsulation or other
treatment of any Hazardous Materials;


 


15.                                 Costs
to comply with any covenant, condition,
restriction, underwriter’s requirement or law applicable to the Premises or the
Building on the Commencement Date;


 


16.                                 Expense reserves;


 


17.                                 Costs of structural repairs to the Building;


 


18.                                 Wages, salaries or other compensation for
Landlord’s building managers except for any such wages, salaries or other
compensation for any of Landlord’s building managers that Landlord may employ
in the future for on-site management of the Building.


 


19.                                 The
costs of capital repairs, improvements or replacements except for the annual
charge off of Permitted Capital Pass-Throughs set forth above in Paragraph B(6).
A repair,


 


3

















 


improvement or replacement
will be deemed “capital” if the cost thereof is required to be capitalized for
federal income tax purposes;


 


20.                                 Management fees in excess of the amounts
permitted pursuant to Paragraph B(5) above.


 


21.                                 Leasing
commissions, attorneys’ fees, costs, disbursements and other expenses incurred
by Landlord or its agents in connection with negotiations for leases or other
occupancy agreements, and similar costs incurred in connection with disputes
with and/or enforcement of leases or other occupancy agreements.


 


22.                                 Any
costs in connection with an expansion of the rentable area of the Building or
the Property or adding any new Building or Property amenities, or any costs
incurred in connection with any additions to the Common Areas or the Property,
including the purchase of additional land or other development rights.


 


23.                                 Any
costs to provide services or utilities or to manage or maintain any other
buildings located in the same complex or office park as the Premises.


 


24.                                 Rentals
associated with any ground lease involving the Property.


 


25.                                 Costs
associated with any disputes involving abutters to the Property and costs or
fees relating to the defense of Landlord’s title to or interest in the
Property, or any part thereof.


 


26.                                 The
cost of any item or service for which Tenant separately reimburses Landlord or
pays to third parties, or that Landlord provides selectively to one or more,
but not all tenants of the Building or the Property, and not to Tenant, whether
or not Landlord is reimbursed by such other tenant(s).


 


27.                                 Legal
fees, late charges and penalties incurred in connection with Landlord’s
noncompliance with or violation of law, and costs resulting from the negligence
or willful misconduct of Landlord, its employees, agents and/or contractors and
not reimbursed by insurance.


 


28.                                 Except
as otherwise provided in Paragraph B(6) and item 19 above, the costs of leasing
equipment or other items which if purchased would constitute a capital
expenditure.


 


29.                                 Any
costs of services or utilities used or consumed in premises leased or leasable
to tenants or occupants if such tenant’s or occupant’s use or consumption of
the applicable utility or service is separately metered or submetered and paid
directly by such tenant or occupant to such service or utility provider or
reimbursed by such tenant or occupant to Landlord.


 


4

















 


EXHIBIT F


 


(Cleaning
Specifications)


 


A.                                   Premises


 


Daily on Business Days
except Saturdays, Sundays and those certain holidays specified in the definition
of “Business Days” in the Lease:


 


1.                                       Empty
all waste receptacles and ash trays and remove waste material from the
Premises.


 


2.                                       Sweep
and dust mop all uncarpeted areas using a dust-treated mop.


 


3.                                       Vacuum
all rugs and carpeted areas.


 


4.                                       Hand dust and wipe clean with
treated cloths all horizontal surfaces including furniture, office equipment,
window sills, door ledges, chair rails and counter tops, within normal reach.


 


5.                                       Wash
clean all water fountains.


 


6.                                       Upon
completion of cleaning, all lights will be turned off and doors locked, leaving
the Premises in an orderly condition.


 


Quarterly:


 


Render high dusting not
reached in daily cleaning to include:


 


1.                                       Dusting
all pictures, frames, charts, graphs and similar wall hangings.


 


2.                                       Dusting
all vertical surfaces, such as walls, partitions, doors and ducts.


 


3.                                       Dusting
of all pipes, ducts and high moldings.


 


B.                                     LAVATORIES:


 


Daily on Business
Days except Saturdays, Sundays and those certain holidays specified in the
definition of “Business Days” in the Lease:


 


1.                                 Sweep
and damp mop floors.


 


2.                                 Clean
all mirrors, powder shelves, dispensers and receptacles, bright work,
flushometers, pipes and toilet seat hinges.


 


3.                                 Wash
both sides of all toilet seats.


 

















 


4.                                 Wash
all basins, bowls and urinals.


 


5.                                 Dust
and clean all powder room fixtures.


 


6.                                 Empty
and clean paper towel and sanitary disposal receptacles.


 


7.                                 Remove
waste paper and refuse.


 


8.                                 Refill
tissue holders, soap dispensers, towel dispensers, vending sanitary dispensers,
material to be furnished by Landlord.


 


9.                                 A
sanitizing solution will be used in all lavatory cleaning.


 


Monthly:


 


1.                                 Machine
scrub lavatory floors.


 


2.                                 Wash
all partitions and tile walls in lavatories.


 


C.                                     MAIN
LOBBY, ELEVATORS, BUILDING EXTERIOR AND CORRIDORS


 


Daily
on Business Days except Saturdays, Sundays and those certain holidays specified
in the definition of “Business Days” in the Lease:


 


1.                                 Sweep
and wash all floors.


 


2.                                 Wash
all rubber mats.


 


3.                                 Clean
elevators, wash or vacuum floors, wipe down walls and doors.


 


4.                                 Spot
clean any metal work inside lobby.


 


5.                                 Spot
clean any metal work surrounding building entrance doors.


 


Monthly:


 


All
resilient tile floors in public areas to be treated equivalent to spray
buffing.


 


D.                                    WINDOW
CLEANING:  Windows of exterior walls
will be washed on the outside once every six months and on the inside once
every six months, weather permitting.


 


E.                                      Tenant
requiring services in excess of those described above shall request same
through Landlord, at Tenant’s expense.


 


2

















 


EXHIBIT G


 


AFTER RECORDING RETURN
TO:


Hinckley, Allen &
Snyder LLP


1500 Fleet Center


Providence, Rhode Island
02903


Attention:  Joseph P. Curran, Esq.


 


LEASE
SUBORDINATION, NON-DISTURBANCE


AND ATTORNMENT
AGREEMENT


 


This agreement (“Lease Subordination,
Non-Disturbance and Attornment Agreement” or “Agreement”) is made as of the           
day of                        ,
200 , among BANK OF AMERICA, a national banking association organized
under the laws of the United States, and having a place of business at Suite
800, Mail Stop: RI DE 03308A, 111 Westminster Street, Providence, Rhode Island
02903, as Agent (the “Agent”) for the Lenders (as that term is defined in a
certain Loan Agreement by and between the hereinafter defined Borrower, the Agent
and the Lenders), LEXINGTON CORPORATE CENTER ASSOCIATES LLC, a Delaware limited
liability company, having a place of business at c/o Essex River Management,
Inc., 225 Friend Street, 7th Floor, Boston, MA  02114 (“Landlord” or “Borrower”), and
BLADELOGIC, INC., a Delaware corporation, having a place of business at 400
Fifth Avenue, Waltham, MA  02451 (“Tenant”).


 


Introductory
Provisions


 


A.                                   Agent
and the Lenders are relying on this Agreement as an inducement to Lenders in
making and maintaining a loan (“Loan”) secured by, among other things, a
[Mortgage, Security Agreement and Fixture Filing] [Deed of Trust, Security
Agreement and Fixture Filing] (“Mortgage”) given by Borrower to Agent covering
property commonly known as and numbered 10 Maguire Road in the City/Town
of Lexington, County of Middlesex, State of Massachusetts and which is further
described in Exhibit A attached hereto (“Property”). Agent is also the “Assignee”
under an Assignment of Leases and Rents (“Assignment”) from Borrower with
respect to the Property.


 


B.                                     Tenant
is the tenant under that certain lease (“Lease”) dated of even date herewith,
made with Landlord, covering certain premises (“Premises”) at the Property.


 


C.                                     Lenders
require, as a condition to the making and maintaining of the Loan, that the
Mortgage be and remain superior to the Lease and that Agent’s rights under the
Assignment be recognized.


 


D.                                    Tenant
requires as a condition to the Lease being subordinate to the Mortgage that its
rights under the Lease be recognized.


 


E.                                      Agent,
Landlord, and Tenant desire to confirm their understanding with respect to the
Mortgage and the Lease.


 

















 


NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants and agreements contained
herein, and other valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and with the understanding by Tenant that Lenders shall
rely hereon in making and maintaining the Loan, Agent, Landlord, and Tenant
agree as follows:


 


1.                                       Subordination.
Subject to the terms of this Agreement, the Lease and the rights of Tenant
thereunder are subordinate and inferior to the Mortgage and any amendment,
renewal, substitution, extension or replacement thereof and each advance made
thereunder as though the Mortgage, and each such amendment, renewal,
substitution, extension or replacement were executed and recorded, and the
advance made, before the execution of the Lease.


 


2.                                       Non-Disturbance.
So long as Tenant is not in default (beyond any period expressed in the Lease
within which Tenant may cure such default) in the payment of rent or in the
performance or observance of any of the terms, covenants or conditions of the
Lease on Tenant’s part to be performed or observed, (i) Tenant’s occupancy of
the Premises and rights under the Lease shall not be disturbed by Agent in the
exercise of any of its rights under the Mortgage during the term of the Lease,
or any extension or renewal thereof made in accordance with the terms of the
Lease, and (ii) Agent will not join Tenant as a party defendant in any action
or proceeding for the purpose of terminating Tenant’s interest and estate under
the Lease because of any default under the Mortgage.


 


3.                                       Attornment
and Certificates. In the event Agent succeeds to the interest of Borrower
as Landlord under the Lease, or if the Property or the Premises are sold
pursuant to any foreclosure of the Mortgage, Tenant shall attorn to Agent, or a
purchaser upon any such foreclosure sale, and shall recognize Agent, or such
purchaser, thereafter as the Landlord under the Lease. Such attornment shall be
effective and self-operative without the execution of any further instrument. Tenant
agrees, however, to execute and deliver at any time and from time to time, upon
the request of any holder(s) of any of the indebtedness or other obligations
secured by the Mortgage, or upon request of any such purchaser, (a) any
instrument or certificate which, in the reasonable judgment of such holder(s),
or such purchaser, may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment, and (b) an instrument or
certificate regarding the status of the Lease, consisting of statements, if
true (and if not true, specifying in what respect), (i) that the Lease is in
full force and effect, (ii) the date through which rentals have been paid,
(iii) the duration and date of the commencement of the term of the Lease, (iv)
the nature of any amendments or modifications to the Lease, (v) that, to Tenant’s
knowledge, no default exists on the part of either party to the Lease, and (vi)
the dates on which payments of additional rent, if any, are due under the
Lease.


 


4.                                       Limitations.
If Agent exercises any of its rights under the Assignment or the Mortgage, or
if Agent shall succeed to the interest of Landlord under the Lease in any
manner, or if any purchaser acquires the Property, or the Premises, upon or
after any foreclosure of the Mortgage, or any deed in lieu thereof, Agent or
such purchaser, as the case may be, shall have the same remedies by entry,
action or otherwise in the event of any default by Tenant (beyond any period
expressed in the Lease within which Tenant may cure such default) in the
payment of rent or in the performance or observance of any of the terms,
covenants and conditions of the Lease on Tenant’s part to be paid, performed or
observed that the Landlord had or would have had if


 


4

















 


Agent or such purchaser
had not succeeded to the interest of the present Landlord. From and after any
such attornment, Agent or such purchaser shall be bound to Tenant under all the
terms, covenants and conditions of the Lease, and Tenant shall, from and after
such attornment to Agent, or to such purchaser, have the same remedies against
Agent, or such purchaser, for the breach of an agreement contained in the Lease
that Tenant might have had under the Lease against Landlord, if Agent or such
purchaser had not succeeded to the interest of Landlord. Provided, however,
that Agent or such purchaser shall only be bound during the period of its
ownership, and that in the case of the exercise by Agent of its rights under
the Mortgage, or the Assignment, or any combination thereof, or a foreclosure,
or deed in lieu of foreclosure, all Tenant claims shall be satisfied only out
of the interest, if any, of Agent, or such purchaser, in the Property, and
Agent and such purchaser shall not be (a) liable for any act or omission of any
prior landlord (including the Landlord); or (b) liable for or incur any
obligation with respect to the construction of the Property or any improvements
of the Premises or the Property; or (c) subject to any offsets or defenses
which Tenant might have against any prior landlord (including the Landlord); or
(d) bound by any rent or additional rent which Tenant might have paid for more
than the then current rental period to any prior landlord (including the
Landlord); or (e) bound by any amendment or modification of the Lease that is
made without Agent’s prior written consent; or (f) bound by or responsible for
any security deposit not actually received by Agent; or (g) liable for or incur
any obligation with respect to any breach of warranties or representations of
any nature under the Lease or otherwise including without limitation any
warranties or representations respecting use, compliance with zoning, landlord’s
title, landlord’s authority, habitability and/or fitness for any purpose, or
possession; or (i) liable for consequential damages. The foregoing shall not,
however:  (i) relieve Agent or such
purchaser, of the obligation to remedy or cure any conditions at the Premises
the existence of which constitutes a Landlord default under the Lease and which
continue at the time of such succession or acquisition, or (ii) deprive Tenant
of its express termination rights in the Lease or deprive the Tenant of the
right to terminate the Lease for a breach of Landlord covenant which is not
cured as provided for herein and in the Lease and as a result of which there is
a material interference with Tenant’s permitted use and occupation of the
Premises or any permitted business conducted therein.


 


5.                                       Rights
Reserved. Nothing herein contained is intended, nor shall it be construed,
to abridge or adversely affect any right or remedy of:  (a) the Landlord under the Lease, or any
subsequent Landlord, against the Tenant in the event of any default by Tenant
(beyond any period expressed in the Lease within which Tenant may cure such
default) in the payment of rent or in the performance or observance of any of
the terms, covenants or conditions of the Lease on Tenant’s part to be
performed or observed; or (b) the Tenant under the Lease against the original
or any prior Landlord in the event of any default by such Landlord to pursue
claims against such original or prior Landlord whether or not such claim is
barred against Agent or a subsequent purchaser.


 


6.                                       Notice
and Right to Cure. Tenant agrees to provide Agent with a copy of each
notice of default given to Landlord under the Lease, at the same time as such
notice of default is given to the Landlord, and that in the event of any
default by the Landlord under the Lease (except for Landlord’s obligations
under Section 4.3 or Article XI of the Lease), Tenant will take no
action to terminate the Lease, unless the default remains uncured for a period
of thirty (30) days after written notice thereof shall have been given, postage
prepaid, to Agent at the address provided in Section 7 below; provided, however,
that if any such default is such that it reasonably


 


5

















 


cannot be cured within
such thirty (30) day period, such period shall be extended for such additional
period of time as shall be reasonably necessary (including, without limitation,
a reasonable period of time to obtain possession of the Property and to
foreclose the Mortgage), if Agent gives Tenant written notice within such
thirty (30) day period of Agent’s election to undertake the cure of the default
and if curative action (including, without limitation, action to obtain
possession and foreclose) is instituted within a reasonable period of time and
is thereafter diligently pursued. Agent shall have no obligation to cure any
default under the Lease. The foregoing shall not apply and Tenant shall have
the right to terminate the Lease pursuant to Section 4.4 and
Article XI of the Lease if Landlord fails to perform its obligations under
such provisions of the Lease within the applicable time periods therefor.


 


7.                                       Notices.
Any notice or communication required or permitted hereunder shall be in
writing, and shall be given or delivered: 
(i) by United States mail, registered or certified, postage fully
prepaid, return receipt requested, or (ii) by recognized courier service or
recognized overnight delivery service; and in any event addressed to the party
for which it is intended at its address set forth below:


 




	
  To Agent:

  	
   

  	
  Bank of America, as
  Agent

  
	
   

  	
   

  	
  Suite 800

  
	
   

  	
   

  	
  Mail Stop: RI DE 03308A

  
	
   

  	
   

  	
  111 Westminster Street

  
	
   

  	
   

  	
  Providence, Rhode
  Island 02903

  
	
   

  	
   

  	
  Attention: Commercial
  Real Estate Loan Administration

  
	
   

  	
   

  	
   

  
	
  To Tenant:

  	
   

  	
  Bladelogic, Inc.

  
	
   

  	
   

  	
  10 Maguire Road,
  Building 3

  
	
   

  	
   

  	
  Lexington, MA

  
	
   

  	
   

  	
  Attention: Scott Chase,
  except that prior to the Commencement Date of the Lease, such notices shall
  be sent to Tenant’s Original Address set forth in the Lease

  
	
   

  	
   

  	
   

  
	
  With a:

  	
   

  	
  Goodwin Procter LLP

  
	
  copy to:

  	
   

  	
  Exchange Place

  
	
   

  	
   

  	
  Boston, MA 02109

  
	
   

  	
   

  	
  Attention:
  Andrew C. Sucoff, Esq.

  






 


or such other address as
such party may have previously specified by notice given or delivered in
accordance with the foregoing. Any such notice shall be deemed to have been
given and received on the date delivered or tendered for delivery during normal
business hours as herein provided.


 


8.                                       Payment
of Rent To Agent. Tenant acknowledges that it has notice that the Lease and
the rent and all sums due thereunder have been assigned to Agent as part of the
security for the obligations secured by the Mortgage. In the event Agent
notifies Tenant of a default under the Loan and demands that Tenant pay its
rent and all other sums due under the Lease to Agent, Tenant agrees that it
will honor such demand and pay its rent and all other sums due under the Lease
to Agent, or Agent’s designated agent, until otherwise notified in writing by
Agent. Borrower unconditionally authorizes and directs Tenant to make rental
payments directly to


 


6

















 


Agent following receipt
of such notice and Borrower further agrees that Tenant may rely upon such
notice without any obligation to further inquire as to whether or not any default
exists under the Mortgage or the Assignment and notwithstanding any notice from
or claim of Borrower to the contrary. Borrower shall have no right or claim
against Tenant for or by reason of any payments of rent or other charges made
by Tenant to Agent following Tenant’s receipt of any such notice.


 


9.                                       No
Amendment or Cancellation of Lease. As long as the Mortgage remains
undischarged of record, Tenant shall not agree to amend or modify the Lease in
any material respect, or agree to cancel or terminate the Lease (except with
respect to Tenant’s express termination rights under the Lease), without Agent’s
prior written consent in each instance.


 


10.                                 No
Waiver. This Agreement does not:


 


(a)                        constitute
a waiver by Agent of any of its rights under the Mortgage or any of the other
Loan Documents (as defined in the Mortgage); or


 


(b)                       in any way
release Borrower from its obligations to comply with the terms, provisions,
conditions, covenants and agreements and clauses of the Mortgage and other Loan
Documents.


 


11.                                 Borrower
Compliance. The provisions of the Mortgage remain in full force and effect
and must be complied with by Borrower.


 


12.                                 Captions.
Captions and headings of sections are not part of this Agreement and shall not
be deemed to affect the meaning or construction of any of the provisions of
this Agreement.


 


13.                                 Counterparts.
This Agreement may be executed in several counterparts each of which when
executed and delivered is an original, but all of which together shall
constitute one instrument.


 


14.                                 Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State where the Property is located.


 


15.                                 No
Oral Change. This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by the parties hereto or their
respective successors in interest.


 


16.                                 Successors
and Assigns. This Agreement shall inure to the benefit of and be binding
upon Agent, Lenders, Tenant and Borrower and their respective heirs, personal
representatives, successors and assigns, and any purchaser or purchasers at
foreclosure of the Property or any portion thereof, and their respective heirs,
personal representatives, successors and assigns.


 


[Signatures on
Following Page(s).]


 


7

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed, as a sealed
instrument, as of the date first above written.


 


	
   

  	
  AGENT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date executed by Agent: January   ,
  2006

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BLADELOGIC, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date executed by Tenant: January   ,
  2006

  
	
   

  	
   

  	
   

  
	
   

  	
  LANDLORD:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LEXINGTON CORPORATE CENTER ASSOCIATES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date executed by Landlord:
  January   , 2006

  
						



 


8

















 


	
  STATE OF

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF

  	
  )

  
			



 


On this      
day of January, 2006, before me, the undersigned notary public, personally
appeared                                    ,
proved to me through satisfactory evidence of identification, consisting of                                                        ,
to be the person whose name is signed on the preceding or attached document and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose,
as                                                    
for BANK OF AMERICA.


 


	
   

  	
   

  
	
   

  	
  (Official Signature and
  Seal of Notary)

  
	
   

  	
  My Commission Expires:

  



 


	
  COMMONWEALTH OF
  MASSACHUSETTS

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF

  	
  )

  



 


On this      
day of January, 2006, before me, the undersigned notary public, personally
appeared                                        ,
proved to me through satisfactory evidence of identification, consisting of                                                           ,
to be the person whose name is signed on the preceding or attached document and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose,
as                                                                      
for LEXINGTON CORPORATE CENTER ASSOCIATES LLC.


 


 


	
   

  	
   

  
	
   

  	
  (Official Signature and
  Seal of Notary)

  
	
   

  	
  My Commission Expires:

  



 


9

















 


	
  COMMONWEALTH OF
  MASSACHUSETTS

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF

  	
  )

  



 


On this       day
of January, 2006, before me, the undersigned notary public, personally appeared
                                       ,
proved to me through satisfactory evidence of identification, consisting of                                                                        ,
to be the person whose name is signed on the preceding or attached document and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose,
as                                                     
for BLADELOGIC, INC.


 


	
   

  	
   

  
	
   

  	
  (Official Signature and
  Seal of Notary)

  
	
   

  	
  My Commission Expires:

  



 


10

















 


EXHIBIT
A


 


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