Exhibit 10.1

77 CITYPOINT

WALTHAM, MASSACHUSETTS

LEASE DATED AS OF FEBRUARY 13th, 2008

THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the Tenant are the parties hereinafter named, and which relates to space in a certain building (the “Building”) known as, and with an address at, 77 CityPoint, Waltham, Massachusetts.

The parties to this Indenture of Lease hereby agree with each other as follows:

ARTICLE I

REFERENCE DATA

1.1            Subjects Referred To

Each reference in this Lease to any of the following subjects shall be construed to incorporate the data stated for that subject in this Article:

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1.2            Exhibits

There are incorporated as part of this Lease:

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1.3            Table of Articles and Sections

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ARTICLE II

BUILDING, PREMISES, TERM AND RENT

2.1            The Premises

Landlord hereby demises and leases to Tenant, and Tenant hereby hires and accepts from Landlord, the Premises in the Building excluding exterior faces of exterior walls, the common stairways and stairwells, elevators and elevator wells, fan rooms, electric and telephone closets, janitor closets, elevator vestibules, and pipes, ducts, conduits, wires and appurtenant fixtures serving exclusively or in common other parts of the Building and if the Premises includes less than the entire rentable area of any floor, excluding the common corridors, elevator lobbies and toilets located on such floor. Tenant shall have the non-exclusive right to use the loading areas, fan rooms, janitorial, electrical, telephone and telecommunications closets, conduits, risers, shafts, plenum spaces and elevators serving such Building, subject, however, to the extent Tenant is given prior written notice thereof, Landlord’s reasonable rules and regulations relative to the access to and use of such spaces.

The term “Building” means the Building identified on the first page, and which is the subject of this Lease; the term “Site” means all, and also any part of the land described in Exhibit A, plus any additions or reductions thereto resulting from the change of any abutting street line and all parking areas and structures from time to time located on the Site. The term “Property” means the Building and the Site.

2.1.1         Tenant’s Continuing Right of First Offer

(A)           For the period commencing on the first day of the nineteenth (19 ^th ) full calendar month immediately following the date of this Lease and continuing throughout the Lease Term, on the conditions (which conditions Landlord may waive by written notice to Tenant at any time), that as of both the time that any portion of the RFO Premises (as hereinafter defined) becomes available for reletting (as hereinafter defined) and as of the commencement date of Tenant’s leasing of such portion of the RFO Premises: (i) Tenant directly leases from Landlord at least 113,000 square feet of rentable floor area, (ii) no monetary or other material Event of Default of Tenant exists and there have been no more than two (2) monetary or other material Event of Default occurrences during the Lease Term, (iii) this Lease is still in full force and effect, and (iv) Tenant has neither assigned this Lease nor sublet more than twenty-five percent (25%) of the rentable floor area then leased by Tenant (except for an assignment or sublease under Section 5.6.1 below and except for the Initial Second Floor Subleases, as that term is defined in Section 5.6.6 below), Tenant shall have a right of first offer

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(“Right of First Offer”) to lease the RFO Premises, as hereinafter defined.

For the purposes hereof, the “RFO Premises” shall be defined as any and all space in the Building as and when such space becomes available for reletting (as hereinafter defined).

(B)            When any portion of the RFO Premises becomes available for reletting, as hereinafter defined, Landlord shall notify Tenant (“Landlord’s RFO Premises Notice”) of the availability of such space, which notice shall contain the size, configuration, location and date of availability of such RFO Premises (which such date of availability shall be (x) the day immediately following the date on which the lease term of the then-current tenant of the RFO Premises expires, in the event the RFO Premises becomes available as the result of a lease expiration, or (y) ninety (90) days following the date of Landlord’s RFO Premises Notice, in the event the RFO Premises becomes available as the result of a termination of the existing lease prior to its scheduled expiration date), the Annual Market Rent, and the other business terms upon which Landlord is willing to so lease such space.  The net effective rental rate set forth in Landlord’s RFO Premises Notice expressed by the (i) Annual Market Rent for the RFO Premises quoted by Landlord, (ii) amount of Base Taxes and Base Operating Expenses, (iii) free rent or “build-out” period, if any, after the commencement of the lease term, (iv) tenant improvement allowance, if any, and (v) length of the lease term, shall hereinafter be referred to as “Landlord’s Offered Rental Terms.”

For the purposes hereof:

(1)            The “Annual Market Rent” shall be the annual fair market rent for such space as of the date when the same becomes available for reletting, based upon the use of such space as first class office space utilizing properties of similar class and character within the Market Area (which for the purposes of this Lease shall be defined as Waltham, South Lexington, Needham, Newton and Wellesley).

(2)            Subject to the provisions of the immediately following paragraph, RFO Premises shall be deemed “available for reletting” when Landlord reasonably determines, subject to the provisions of the next paragraph of this subsection (B), that the then current tenant or occupant of the RFO Premises will vacate the RFO Premises at the expiration or earlier termination of such tenant’s lease.

In connection with the foregoing, Tenant acknowledges and agrees that Tenant’s Right of First Offer shall be subject and subordinate to the existing extension rights of Administaff Client Services, L.P. and Pittiglio, Rabin, Todd & McGrath, Inc. (“PRTM”) (the “Existing Tenants”) under the terms of their existing leases with Landlord in effect as of the date of this Lease (the “Existing Leases”).   Landlord agrees that it shall not have the right to amend either of the Existing

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Leases to provide the Existing Tenants with additional extension or expansion rights unless such rights are subordinate to Tenant’s Right of First Offer; provided, however, that notwithstanding the foregoing, if either of the Existing Tenants shall fail to exercise any extension option within the applicable time period for exercise set forth in its Existing Lease, Landlord shall nonetheless have an additional period of seven (7) business days beyond the extension exercise deadline in its lease as aforesaid within which to receive and honor an extension exercise by such Existing Tenant of its Existing Lease before the portion of the ROFO Premises leased by such Existing Tenant shall be deemed available for reletting hereunder (it being expressly understood and agreed that (x) Landlord shall have no right to provide either of the Existing Tenants with extension or renewal rights beyond those provided to such Existing Tenants in their Existing Leases  prior to the date hereof, without first providing Tenant with an opportunity to exercise its Right of First Offer hereunder and (y) the foregoing shall not preclude Landlord from providing additional extension options to either the Existing Tenants or any future tenant of RFO Premises in the event that Tenant has either declined or failed to timely exercise its Right of First Offer with respect to the portion of the RFO Premises at issue, whether or not such extension options are granted in the original lease documents executed by such tenants after Tenant has passed on such RFO Premises or in documents executed at a later date).

(C)            If Tenant wishes to exercise Tenant’s Right of First Offer, Tenant shall do so, if at all, by giving Landlord notice (“Tenant’s RFO Exercise Notice”) within ten (10) business days after receipt of Landlord’s RFO Premises Notice.  Tenant’s RFO Exercise Notice shall specify:

(i)             whether or not Tenant disputes that the Annual Fixed Rent set forth in Landlord’s RFO Premises Notice is the Annual Market Rent; and

(ii)            whether it shall be leasing the RFO Premises for (1) the lease term specified in Landlord’s RFO Premises Notice or (2) a lease term that is coterminous with the Term of this Lease with respect to the original Premises (it being understood and agreed that if less than thirty-six (36) months then remain in the Lease Term at the time Tenant delivers the Tenant’s RFO Exercise Notice and Tenant desires that the lease term with respect to the RFO Premises be coterminous with the Lease Term with respect to the original Premises and if such period is shorter than the lease term offered in Landlord’s RFO Premises Notice, Tenant must simultaneously exercise its extension option under Section 8.20 with its exercise of its rights under this Section 2.1.1 and that if no such extension option is then available to Tenant then the term with respect to the RFO Premises shall automatically be as specified in Landlord’s RFO Premises Notice) (the lease term as determined under

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subsection (1) or (2) being hereinafter referred to as the “Designated RFO Lease Term”).

(D)           (1)            If Tenant shall give Tenant’s RFO Exercise Notice that does not indicate a Rent Dispute, the same shall constitute an agreement to lease the RFO Premises upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.1, (ii) to the extent inconsistent with Landlord’s Offered Rental Terms and (iii) that the Annual Fixed Rent shall be the amount specified in Landlord’s RFO Premises Notice.  Although such agreement to lease the RFO Premises shall be self-executing and binding on Tenant upon delivery of Tenant’s RFO Exercise Notice, Landlord and Tenant shall exercise commercially reasonable good faith efforts to enter into an instrument in writing memorializing such leasing of the RFO Premises within sixty (60) days after Landlord’s submission to Tenant of an amendment therefor and provided such amendment is limited in scope to modifications of the Lease necessary to memorialize Tenant’s lease of the RFO Premises.

                (2)            If Tenant shall give Tenant’s RFO Exercise Notice that does indicate a Rent Dispute, the parties shall negotiate in good faith for a period of twenty (20) days (“Negotiation Period”) to reach agreement on the Annual Fixed Rent.  If the parties reach such agreement within the Negotiation Period, then the same shall constitute an agreement to lease the RFO Premises upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.1, (ii) to the extent inconsistent with the Landlord’s Offered Rental Terms and (iii) that the Annual Fixed Rent shall be the amount so agreed to by the parties pursuant to paragraph (3) below or by broker determination pursuant to paragraph (4) below, as applicable.   Although such agreement to lease the RFO Premises shall be self-executing and binding on Tenant upon the agreement of the parties during the Negotiation Period upon the Annual Fixed Rent, Landlord and Tenant shall exercise commercially reasonable good faith efforts to enter into an instrument in writing memorializing such leasing of the RFO Premises within sixty (60) days after Landlord’s submission to Tenant of an amendment therefor and provided such amendment is limited in scope to modifications of the Lease necessary to memorialize Tenant’s lease of the RFO Premises.

                (3)            If Tenant shall give Tenant’s RFO Exercise Notice that does indicate a Rent Dispute, and the parties do not reach agreement on the Annual Fixed Rent during the Negotiation Period, then Tenant shall have the right, for a period of five (5) business days after the expiration of the Negotiation Period, (i) to deliver to Landlord a notice (“Tenant’s Rescission Notice”) rescinding Tenant’s RFO Exercise Notice, or (ii) to deliver to Landlord a request (“Broker Determination Request”) for a broker determination of Annual Market Rent in accordance with the provisions of Section 8.20 and Exhibit H hereof.

(4)            If Tenant shall timely deliver the Broker Determination Request,

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then the same shall constitute an agreement to lease the RFO Premises upon all of the same terms and conditions in this Lease, except (i) to the extent inconsistent with the provisions of this Section 2.1.1, (ii) to the extent inconsistent with the Landlord’s Offered Rental Terms and (iii) that the Annual Fixed Rent shall be the Annual Market Rent as determined by the broker determination; and although such agreement shall be self-executing and binding on Tenant upon delivery of the Broker Determination Request, Landlord and Tenant shall exercise commercially reasonable good faith efforts to enter into an instrument in writing memorializing such leasing of the RFO Premises within sixty (60) days after Landlord’s submission to Tenant of an amendment therefor and provided such amendment is limited in scope to modifications of the Lease necessary to memorialize Tenant’s lease of the RFO Premises.

(5)            If Tenant timely gives Tenant’s Rescission Notice, then Tenant’s RFO Exercise Notice shall be of no further force and effect, and the provisions of subsection (E) below shall apply.

(6)            If Tenant fails to timely give either a Tenant’s Rescission Notice or a Broker Determination Request, Tenant shall be deemed to have given a Tenant’s Rescission Notice.

(E)            If Tenant shall not timely exercise its rights under this Section 2.1.1 with respect to the RFO Premises designated in Landlord’s RFO Premises Notice, Landlord shall be free to lease such RFO Premises to any party.  If during the Term said RFO Premises again becomes available for reletting, Landlord shall again offer to lease such RFO Premises to Tenant pursuant to the provisions of this Section 2.1.1 and the terms of this Section shall continue to apply to such RFO Premises.

If, prior to the time that Landlord leases any portion of the RFO Premises which had previously been offered to Tenant pursuant to this Section 2.1.1 but with respect to which Tenant had declined or otherwise failed to timely exercise its Right of First Offer (such portion of the RFO Premises being hereinafter referred to as the “Declined RFO Premises”), Landlord and Tenant shall subsequently agree that such Declined RFO Premises shall be leased to Tenant (it being understood and agreed that Landlord shall be under no obligation to re-offer such space to Tenant and Tenant shall be under no obligation to lease such space from Landlord), Tenant shall be entitled to require that the Annual Fixed Rent for such Declined RFO Premises be determined by the broker determination process in the same manner as if Tenant had elected to exercise its Right of First Offer when the Declined RFO Premises was initially offered to Tenant by Landlord.

(F)            If Tenant shall timely exercise its rights under this Section 2.1.1 with respect to the RFO Premises designated in Landlord’s RFO Premises Notice and if, thereafter, the then occupant of the RFO Premises with respect to which Tenant shall have so exercised such right wrongfully fails to deliver possession of such

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premises at the time when its tenancy is scheduled to expire, Landlord shall use reasonable efforts and due diligence (which shall be limited to the commencement and prosecution of an eviction proceeding within sixty (60) days after the date on which the hold-over commences, but shall not require the taking of any appeal) to evict such occupant from such space and to recover from such occupant any Hold-Over Premium (as defined below) payable by such occupant. In such event, the commencement of the term of Tenant’s occupancy and lease of such additional space shall, in the event of such holding over by such occupant, be deferred until possession of the additional space is delivered to Tenant. The failure of the then occupant of such premises to so vacate shall not constitute a default or breach by Landlord and shall not give Tenant any right to terminate this Lease or to deduct from, offset against or withhold Annual Fixed Rent or Additional Rent (or any portions thereof); except that (i) if such hold-over exceeds sixty (60) days, then Tenant may, within ten (10) business days after such date, cancel the exercise of its option to lease such portion of the RFO Premises by giving to Landlord a written cancellation notice (the “Initial Cancellation Option”) and (ii) if Tenant does not exercise the Initial Cancellation Option and such hold-over exceeds three hundred (300) days, then Tenant may, within ten (10) business days after such date, cancel the exercise of its option to lease such portion of the RFO Premises by giving to Landlord a written cancellation notice (the “Subsequent Cancellation Option”) (provided, however, that in the case of both the Initial Cancellation Option and the Subsequent Cancellation Option, if Landlord delivers such RFO Premises to Tenant on or before the date thirty (30) days after Landlord receives such cancellation notice, such cancellation notice shall be void and without further force or effect).

Alternatively, in lieu of exercising the Initial Cancellation Option but without limitation of Tenant’s right to exercise the Subsequent Cancellation Option, Tenant shall have the right to require Landlord to pay to Tenant the net (i.e. net of the costs and expenses, including, attorneys’ fees, incurred by Landlord in obtaining such Hold-Over Premium) amount of any Hold-Over Premium received by Landlord from such hold-over occupant relative to periods from and after the sixty-first (61 ^st ) day of any hold-over, when and if Landlord receives any such payment; provided, however, that if Tenant does exercise the Subsequent Cancellation Option, it shall, as a condition precedent to the effectiveness of such Subsequent Cancellation Option, pay to Landlord as Additional Rent an amount equal to fifty percent (50%) of the net Hold-Over Premium paid by Landlord to Tenant through the date of exercise of the Subsequent Cancellation Option. For the purposes hereof, the term “Hold-Over Premium” shall be defined as the amount (if any) which a hold-over occupant of any portion of the RFO Premises is required to pay to Landlord in respect of its hold-over in the premises (whether characterized as rent, damages, or use and occupation) in excess of the amount of fixed rent and other charges which the tenant under whom such occupant claims would have been required to pay to Landlord had the term of such tenant’s lease been extended throughout the period of such hold-over at the same rental rate as such tenant was required to pay during the last month of its tenancy.

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In the event that Tenant elects to cancel its exercise of its option hereunder as the result of a holding over by the existing occupant of the applicable portion of the RFO Premises, such portion of the RFO Premises will not be deemed available for reletting until the space has thereafter initially been leased to a third party, unless Landlord failed to comply with its obligations to use reasonable efforts and due diligence to evict the existing occupant as set forth in and limited by this Section 2.1.1(F) (in which event Landlord shall be required to re-offer the RFO Premises to Tenant prior to leasing the same to a third party).

(G)            Time is of the essence of this Section 2.1.1 and the rights granted to Tenant under this Section 2.1.1 are continuous to be effective from time to time as and when Landlord shall determine that any RFO Premises will become available for reletting and said rights may become effective more than once during the Term.

(H)           Upon Tenant’s written request made no more than twice in any calendar year during the Lease Term, Landlord shall provide Tenant with written updates of the expected availability of the leaseable areas in the Building and any buildings within the CityPoint Project then owned by Landlord or its affiliates; provided, however, that Landlord’s failure to provide such updates shall in no way be deemed to be a default of Landlord under this Lease or otherwise give rise to any liability on Landlord’s part unless such failure was in bad faith.

2.1.2         Tenant’s Contraction Option .

Tenant shall have the one-time option of surrendering a portion of the Premises consisting of the entirety of the sixth (6 ^th ) floor of the Building (the “Reduction Premises”) and containing 36,174 square feet of Rentable Floor Area (the “Rentable Floor Area of the Reduction Premises”). If Tenant shall desire to surrender the Reduction Premises, Tenant shall provide notice to Landlord its election to reduce the size of the Premises no later than the end of the fourth (4 ^th ) Lease Year and such reduction shall be effective as of the end of the fifth (5 ^th ) Lease Year (the “Surrender Date”). As of the Surrender Date, (i) Tenant shall vacate the Reduction Premises leaving the same in the condition required by this Lease upon the expiration or earlier termination of the Lease Term, (ii) the Reduction Premises shall be removed from the Premises demised to Tenant under the Lease, (iii) the “Rentable Floor Area of the Premises” shall be reduced by the Rentable Floor Area of the Reduction Premises and such reduced Rentable Floor Area of the Premises shall be used for purposes of calculating Annual Fixed Rent, Tenant’s Operating Expenses Payment, Tenant’s Tax Payment, and Tenant’s Electricity Payment from and after the Surrender Date.

Prior to the Surrender Date Landlord and Tenant agree to execute an appropriate amendment to this Lease to reflect the removal of the Reduction Premises from the space demised from Landlord to Tenant under this Lease. In addition, and as a

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condition prerequisite to the reduction of the Premises, Tenant shall deliver to Landlord on or before the Surrender Date an amount (the “Contraction Fee”) equal to the Unamortized Part (as defined below) of Landlord’s Transaction Costs (as defined below) in respect of the Reduction Premises. For the purposes hereof:

(i)             The “Unamortized Part” shall mean the amount which would remain unpaid as of the Surrender Date with respect to a loan in an original amount equal to Landlord’s Transaction Costs incurred by Landlord with respect to the Reduction Premises and which is amortized over the Original Term at an interest rate of ten percent (10%) per annum and repaid over the ten (10) year period commencing as of the Rent Commencement Date.

(ii)            “Landlord’s Transaction Costs” for the Reduction Premises shall be equal to the sum of: (i) Landlord’s Contribution in respect of the Reduction Premises, plus (ii) all brokerage commissions incurred by Landlord in connection with the demise of the Reduction Premises to Tenant (to be determined based upon a per square foot allocation of Landlord’s overall brokerage commissions in connection with the execution of this Lease).  Landlord shall, upon request of Tenant, promptly after the amount of the Landlord’s Transaction Costs has been determined, provide to Tenant a certified statement setting forth such costs.

2.2            Rights to Use Common Facilities

Subject to Landlord’s right to change or alter any of the following in Landlord’s discretion as herein provided, Tenant shall have, as appurtenant to the Premises, the non- exclusive right to use in common with others, subject to reasonable rules of general applicability to tenants of the Building from time to time made by Landlord of which Tenant is given notice (a) the common lobbies, corridors, stairways, elevators, trash areas, parking areas, loading areas, and other similar areas and facilities of the Building, and the pipes, ducts, conduits, wires and appurtenant meters and equipment serving the Premises in common with others, (b) common walkways and driveways necessary for access to the Building, (c) if the Premises include less than the entire rentable floor area of any floor, the common toilets, corridors and elevator lobby of such floor, and (d) the Amenities set forth in Section 8.27 of this Lease (collectively, the “Common Areas”). No changes shall be made to the Common Areas that would unreasonably interfere with Tenant’s access to or use of the Premises for the purposes of this Lease or that would adversely affect the quality of the Common Areas (including without limitation the Amenities) serving the Building as of the Rent Commencement Date (subject to the provisions of Section 8.27 below).  Notwithstanding anything to the contrary herein, Landlord has no obligation to allow any particular telecommunication service provider to have access to the Building or to the Premises except as may be required by applicable law and except that Landlord agrees to permit Verizon to have telecommunications access to the Premises and the Building at no additional charge for the purpose of providing telecommunications service to Tenant. Except as otherwise expressly provided

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above, if Landlord permits such access, Landlord may condition such access upon the payment to Landlord by the service provider of fees assessed by Landlord in its reasonable discretion. Notwithstanding the foregoing, Landlord will not unreasonably withhold, condition or delay its approval of any telecommunications provider designated by Tenant to service the Premises, so long as such provider is not utilizing the Site to provide service to third parties other than Tenant.

Tenant shall have a non-exclusive right to use the fire stairwells in the Building (the “Fire Stairs”) for the purpose of access between the floors of the Building on which the Premises are located, at no additional rental charge to Tenant, provided that (1) such use shall be permitted by, and at all times be in accordance with, all applicable Legal Requirements (as that term is defined in Section 3.4 below); and (2) Tenant shall comply with all of Landlord’s reasonable rules and regulations adopted from time to time with respect thereto. Tenant may, at its sole cost and expense, install a key card locking system reasonably satisfactory to Landlord on all doors between the Fire Stairs and the floors of the Premises and tie Tenant’s security system into the Building security system, provided that in any event such locking system must be configured in such a way so as to automatically disengage in the event of an emergency. Tenant shall provide Landlord with a “master” card key so that Landlord shall have access through each entry door. Tenant may paint the Fire Stairs and install light fixtures therein and make such other Alterations as Landlord shall approve, which approval shall be granted or withheld in accordance with the terms of this Lease (provided, however, that under no circumstances shall Tenant be entitled to install (x) carpeting on the Fire Stairs or (y) lighting which does not meet the standards for emergency lighting).

2.2.1         Tenant’s Parking

(A)           Tenant shall have the right, free of charge for the Term of this Lease, to use in the parking areas on the Site throughout the Term the Number of Parking Spaces (referred to in Section 1.1) for the parking of automobiles, in common with use by other tenants from time to time of the Building, provided, however, that Landlord shall not be obligated to furnish stalls or spaces on the Site specifically designated for Tenant’s use (provided further that if Landlord shall provide any other tenant in the Building with reserved parking spaces on the Site, Landlord shall (i) offer Tenant reserved spaces on the same basis as was provided to the other tenant, in proportion to the respective rentable floor areas leased by Tenant and such other tenant, and (ii) so long as Tenant occupies more rentable floor area in the Building that any other tenant, give Tenant the first opportunity  to select the location of its reserved parking spaces within the area(s) designated by Landlord for reserved parking). In the event that the Rentable Floor Area of the Premises increases or decreases at any time during the Lease Term, the Number of Parking Spaces provided to Tenant hereunder shall be increased or reduced proportionately (subject to the provisions of subsection (B) below) in accordance with the parking ratio set forth in Section 1.1.

(B)            Tenant has informed Landlord that Tenant may require parking at a ratio

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greater than the Number of Parking Spaces set forth in Section 1.1 (the “Original Parking Ratio”), and Landlord has estimated, based on projected parking usage patterns, that the existing parking areas on the Site can accommodate parking for up to 4.0 passenger vehicles per 1,000 square feet of the Rentable Floor Area of the Premises initially demised to Tenant (the “Higher Parking Ratio”). In connection with the foregoing, Tenant acknowledges that the total number of actual parking spaces on the Site is sufficient to satisfy parking at the Original Parking Ratio but not at the Higher Parking Ratio, and that the availability of additional parking in an amount up to the Higher Parking Ratio is dependent on the actual usage of the existing parking spaces by the tenants of the Building. Landlord represents that Landlord has not granted any other tenant or occupant of the Site the right to use parking spaces in excess of the Original Parking Ratio, and that it will use commercially reasonable efforts to enforce the terms and provisions of its leases with other tenants of the Building in the event of any use by such tenants of parking spaces in excess of the parking ratios provided to them. In addition, Landlord shall not (i) grant any tenant or occupant at the Site the right to use parking spaces serving the Building at a ratio in excess of the Original Parking Ratio, (ii) voluntarily reduce the number of available parking spaces at the Site unless expressly permitted in this Lease or (iii) grant any other owners, occupants or users of the CityPoint Project or other neighboring properties the right to park in the parking areas on the Site (such as, by way of example only, using a portion of the parking areas at the Site to satisfy any off-site parking obligations set forth in another lease at the CityPoint Project or other development by Landlord or any entity affiliated with Landlord), except to the extent that any of the foregoing can be done without adversely impacting Tenant’s ability to utilize the Higher Parking Ratio or causing a Parking Shortage (e.g., Landlord might be permitted to provide a third party with the right to park on the Site during off-peak hours or for a limited period of time, etc.)

Notwithstanding anything contained herein to the contrary (but subject to provisions of the last sentence of the next paragraph of this subsection (B)), Tenant shall not be deemed to be in default of its obligations under this Lease if it shall utilize more than the Original Parking Ratio, so long as Tenant does not exceed the Higher Parking Ratio; provided, however, that (x) the right to utilize the Higher Parking Ratio shall be personal to Phase Forward, Inc. (and any permitted assignee pursuant to Section 5.6.1) and shall not be transferable to any assignee or subtenant and (y) in the event that the size of the Premises shall increase at any time during the Term, Tenant shall only be entitled to additional parking rights for such additional premises at the Original Parking Ratio.

In the event that Tenant uses parking spaces in excess of the Original Parking Ratio and such excess usage results in the existence of a Parking Shortage (as defined in subsection (C) below), Landlord shall use commercially reasonable efforts to (x) implement a managed parking program for the parking areas on the Site (the “Managed Parking Program”) and/or (y) locate additional parking areas in the vicinity of the Site and within the CityPoint Project for use as satellite

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parking for the Building (the “Off-Site Parking”) (Landlord hereby further agreeing to use commercially reasonable efforts to obtain Off-Site Parking within such CityPoint Project as close to the Site as possible).  All costs associated with the Managed Parking Program shall be payable by the tenants of the Building as part of Landlord’s Operating Expenses under Section 2.6 below.  To the extent that Tenant is the sole user of the Off-Site Parking and the sole cause of the Parking Shortage, all costs associated therewith shall be payable by Tenant as Additional Rent within thirty (30) days after receipt by Tenant of an invoice from Landlord therefore (provided, however, that if Tenant is not the sole user of the Off-Site Parking, or is not the sole cause of the Parking Shortage, then Tenant shall only be required to pay its pro rata share of such costs as part of Landlord’s Operating Expenses under Section 2.6 below).  Notwithstanding the foregoing, under no circumstances shall Landlord be required to endeavor to obtain the Off-Site Parking in the event of a Parking Shortage that occurs during the last three (3) years of the Lease Term unless and until Tenant shall validly exercise its then-current extension option under Section 8.20 below (it being understood and agreed in connection with the foregoing that (x) Landlord shall have no obligation to endeavor to obtain the Off-Site Parking in the event that Tenant shall have no further rights to extend the Lease Term and (y) Landlord shall nonetheless be required to use commercially reasonable efforts to implement the Managed Parking Program to address the Parking Shortage irrespective of the amount of time remaining in the Lease Term).

Tenant acknowledges and agrees that there may be a temporary disruption in parking in connection with the conversion to a Managed Parking Program and/or Off-Site Parking, and Tenant shall reasonably cooperate with Landlord during such conversion (Landlord hereby agreeing to use commercially reasonable efforts to minimize such disruption).  Tenant further acknowledges and agrees that Landlord shall in no event be deemed to be in default of its obligations under this Lease if it cannot provide Tenant with parking in excess of the Original Parking Ratio, provided that Landlord has used commercially reasonable efforts to implement the Managed Parking Program and/or obtain the Off-Site Parking as set forth herein.  In addition, in the event there is a Parking Shortage and Landlord has been unable to implement a Managed Parking Program and/or provide Off-Site Parking despite the use of commercially reasonable efforts as aforesaid, Landlord shall have the right to modify the configuration of or access to the parking areas on the Site (e.g., by creating or designating separate “pods” within the parking areas for parking by specific tenants) as Landlord deems appropriate in its reasonable discretion to insure that Landlord is able to fulfill its obligations under leases with other Building tenants and Tenant to provide parking to such tenants and Tenant at the Original Parking Ratio.  In the event that Landlord does create separate “pods” as aforesaid, Landlord shall meet with Tenant beforehand to discuss the proposed location(s) of such pods (Landlord hereby agreeing to consult with Tenant in good faith regarding the location(s) of such pods, provided that the final determination shall be made by Landlord in its reasonable discretion).

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(C)            For the purposes hereof, a “Parking Shortage” shall be defined as a lack of available parking spaces on the Site, as determined in accordance with the following procedure:

(i)             In the event that Landlord receives four (4) written complaints from tenants of the Building (which shall include complaints by Tenant) over a period of two (2) weeks indicating that they are unable to find parking spaces at the Building, Landlord shall perform and complete a parking survey of the Site within four (4) weeks of its receipt of the last such complaint.

(ii)            If the parking survey indicates that fewer than seven (7) parking spaces on the Site are available for tenant and visitor parking on more than four (4) Business Days over a period of two (2) weeks, then Landlord shall attempt to ascertain whether the cause of the problem is a particular tenant’s overuse of the number of parking spaces provided to such tenant under the terms of its lease and shall take reasonable measures to enforce the terms of such lease and rectify the situation.

(iii)           In the event that the overuse cannot be readily addressed by Landlord or is caused by Tenant’s use of parking spaces in excess of the Original Parking Ratio, then a Parking Shortage shall be deemed to exist and shall trigger Landlord’s obligations under this Section 2.2.1 to use commercially reasonable efforts to implement the Managed Parking Program and/or obtain the Off-Site Parking.

(D)           Tenant covenants and agrees that it and all persons claiming by, through and under it, shall at all times abide by all reasonable rules and regulations promulgated by Landlord with respect to the use of the parking areas on the Site (which may include vehicle stickers and/or access card programs), provided such rules and regulations are not inconsistent with Tenant’s rights under this Lease and are of general applicability to the occupants of the Site. The parking privileges granted herein are non-transferable except to a permitted assignee or subtenant as provided in Section 5.6 through Section 5.6.5 or to a Permitted Occupant under Section 5.6.7 below (with the exception of the right to use parking spaces in excess of the Original Parking Ratio, which may not be transferred other than in connection with a transfer permitted under Section 5.6.1 of this Lease). Further, Landlord assumes no responsibility whatsoever for loss or damage due to fire, theft or otherwise to any automobile(s) parked on the Site or to any personal property therein, however caused, and Tenant covenants and agrees, upon request from Landlord from time to time, to notify its officers, employees, agents and invitees of such limitation of liability. Tenant acknowledges and agrees that a license only is hereby granted, and no bailment is intended or shall be created.

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2.3            Landlord’s Reservations

Landlord reserves the right from time to time, without unreasonable interference with Tenant’s use and upon reasonable prior notice to Tenant (except in the event of an emergency): (a) to install, use, maintain, repair, replace and relocate for service to the Premises and other parts of the Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the Premises or Building, and (b) to alter or relocate any other common facility, provided that substitutions are substantially equivalent or better. Installations, replacements and relocations referred to in clause (a) above shall be located so far as practicable in the central core area of the Building, above ceiling surfaces, below floor surfaces or within perimeter walls of the Premises. In exercising its rights hereunder, Landlord shall use reasonable efforts to minimize interference with Tenant’s use of the Premises for the Permitted Use, consistent with the nature of the rights being exercised.

2.4            Habendum

Tenant shall have and hold the Premises for a period commencing on the date (the “Commencement Date”) that is the earlier of (a) the Substantial Completion Date (as that term is defined in Section 3.3 below) (but in no event prior to December 1, 2008), and (b) that date on which Tenant commences occupancy of any portion of the Premises for the Permitted Use and continuing for the Term unless sooner terminated as provided in Article VI or Article VII or unless extended as provided in Section 8.20.

As soon as may be convenient after the determination of the Commencement Date, Rent Commencement Date and Expiration Date, Landlord and Tenant agree to join with each other in the execution of a written Declaration, in the form of Exhibit E, in which said dates shall be stated. If Tenant fails to execute or correct such Declaration within thirty (30) days after such Declaration is submitted by Landlord to Tenant, the Commencement Date, Rent Commencement Date and Expiration Date shall be as originally set forth in the Declaration delivered by Landlord.

2.5            Fixed Rent and Electricity Payments

Tenant agrees to pay to Landlord, or as directed by Landlord, at Landlord’s Original Address specified in Section 1.1 hereof, or at such other place as Landlord shall from time to time designate by at least thirty (30) days prior written notice to Tenant, (1) (a) on the Rent Commencement Date (defined in Section 1.1 hereof) and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Term, a sum equal to one twelfth (1/12 ^th ) of the Annual Fixed Rent (sometimes hereinafter referred to as “fixed rent”) and (b) on the Commencement Date and thereafter monthly, in advance, on the first day of each and every calendar month during the Original Term, an amount estimated by Landlord from time to time to cover Tenant’s monthly payments for electricity under Section 2.8 hereinbelow, and (2) on the first day of each and every calendar month during each extension option period (if exercised), a sum equal to (a) one twelfth (1/12 ^th ) of the Annual Fixed Rent as determined in Section 8.20 for the applicable

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extension option period plus (b) then applicable monthly electricity charges (subject to escalation for electricity as provided in Section 2.8 hereof). Until notice of some other designation is given, fixed rent and all other charges for which provision is herein made shall be paid by remittance to or for the order of Boston Properties Limited Partnership either (i) by mail to P.O. Box 3557, Boston, Massachusetts 02241-3557, (ii) by wire transfer to Bank of America in Dallas, Texas, Bank Routing Number 0260-0959-3 or (iii) by ACH transfer to Bank of America in Dallas, Texas, Bank Routing Number 111 000 012, and in the case of (ii) or (iii) referencing Account Number 3756454460, Account Name of Boston Properties, LP, Tenant’s name and the Property address. All remittances received by Boston Properties Limited Partnership, as Agents as aforesaid, or by any subsequently designated recipient, shall be treated as payment to Landlord.

Annual Fixed Rent for any partial month shall be paid by Tenant to Landlord at such rate on a pro rata basis, and, if the Rent Commencement Date is a day other than the first day of a calendar month, the first payment of Annual Fixed Rent which Tenant shall make to Landlord shall be a payment equal to a proportionate part of such Annual Fixed Rent for the partial month from the Rent Commencement Date to the first day of the succeeding calendar month.

Additional Rent payable by Tenant on a monthly basis, as hereinafter provided, likewise shall be prorated, and the first payment on account thereof shall be determined in similar fashion but shall commence on the Rent Commencement Date (with the exception of payments on account of electricity, which shall commence on the Commencement Date as set forth in the first paragraph of this Section 2.5 and Tenant’s Operating Expenses Payment and Tenant’s Tax Payment which shall be commence as set forth in Sections 2.6 and 2.7, respectively); and other provisions of this Lease calling for monthly payments shall be read as incorporating this undertaking by Tenant.

Notwithstanding that the payment of Annual Fixed Rent payable by Tenant to Landlord shall not commence until the Rent Commencement Date, Tenant shall be subject to, and shall comply with, all other provisions of this Lease as and at the times provided in this Lease.

The Annual Fixed Rent and all other charges for which provision is herein made shall be paid by Tenant to Landlord, without offset, deduction or abatement except as otherwise specifically set forth in this Lease.

2.6            Operating Expenses

“Landlord’s Operating Expenses” means the cost of operation of the Building and the Site which shall exclude costs of special services rendered to tenants (including Tenant) for which a separate charge is made, but shall include, without limitation, the following: premiums for insurance carried with respect to the Building and the Site (including, without limitation, liability insurance, insurance against loss in case of fire or casualty and insurance of monthly installments of fixed rent and any Additional Rent which may be due under this Lease and other leases of space in the Building for not more than twelve (12) months in the case of both fixed rent and Additional Rent and if there be any

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first mortgage of the Property, including such insurance as may be required by the holder of such first mortgage, provided, however, with respect to insurance coverages required to be carried by a holder of a mortgage, such coverages are of the type and amounts customarily required to be carried by lenders of comparable class A, multi-tenant office buildings in the Market Area); compensation and all fringe benefits, worker’s compensation insurance premiums and payroll taxes paid to, for or with respect to all persons engaged exclusively in the operating, maintaining or cleaning of the Building or Site (and in the event such persons are also employed on other properties of Landlord or its affiliates, such compensation shall be equitably prorated among the Building and such other properties), water, sewer, electric, gas, oil and telephone charges (excluding utility charges separately chargeable to tenants for additional or special services and excluding costs to supply electricity to leaseable areas of the Building, with the exception of any building management offices); cost of building and cleaning supplies and equipment; cost of maintenance, cleaning and repairs (other than repairs not properly chargeable against income or reimbursable from contractors under guarantees); cost of snow removal and care of landscaping; cost of operating, maintaining, cleaning and providing utilities to any conference center, cafeteria, fitness center or other amenity serving the Building (and excluding any costs to construct and initially furnish such amenities or any subsidy for cafeteria operations unless specifically agreed to by Tenant in writing); payments under service contracts with independent contractors; management fees at reasonable rates for self managed buildings consistent with the type of occupancy and the service rendered, which management fees shall not exceed three percent (3%) of the total Gross Rents for the Building (“Gross Rents for the Building” for the purposes hereof being defined as annual fixed rent, Landlord’s Operating Expenses, with the exception of the aforesaid management fee, and Landlord’s Tax Expenses for the Building for the relevant calendar year); costs of maintaining a regional property management office (allocated pro rata among all properties owned by Landlord or its affiliates served by such regional property management office) in connection with the operation, management and maintenance of the Building; and all other reasonable and necessary expenses paid in connection with the operation, cleaning and maintenance of the Building and the Site and properly chargeable against income, provided, however, there shall be included (a) depreciation for capital expenditures made by Landlord during the Lease Term (i) to reduce Landlord’s Operating Expenses if Landlord shall have reasonably determined that the annual reduction in Landlord’s Operating Expenses shall exceed the annual depreciation therefor or (ii) to comply with applicable laws, rules, regulations, requirements, statutes, ordinances, by-laws and court decisions of all public authorities which first become applicable to the Property after the Base Building Completion Date (the capital expenditures described in subsections (i) and (ii) being hereinafter referred to as “Permitted Capital Expenditures”); plus (b) in the case of both (i) and (ii) an interest factor, reasonably determined by Landlord, as being the interest rate then charged for long-term mortgages by institutional lenders on like properties within the locality in which the Building is located; depreciation in the case of both (i) and (ii) shall be determined by dividing the original cost of such capital expenditure by the number of years of useful life of the capital item acquired and the useful life shall be reasonably determined by Landlord in accordance with generally accepted accounting principles and practices in effect at the time of acquisition of the capital item.

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Notwithstanding the generality of the preceding text, the following items shall be excluded or deducted, as the case may be, from the calculation of Tenant’s share of Landlord’s Operating Expenses:

(i)             All capital expenditures and depreciation, including all costs that under generally accepted accounting principles are properly classified as capital expenses, capital improvements or capital repairs, except as otherwise explicitly provided in this Section 2.6;

(ii)            Interest on indebtedness, debt amortization, ground rent, financing and refinancing costs for any mortgage or ground lease or overlease of the Building or the Site and transfer taxes, recording costs and taxes, title insurance premiums, title closer’s fees and gratuities and other similar costs incurred in connection with the sale or transfer of an interest in Landlord or the Building;

(iii)           Legal, auditing, consulting and professional fees and other costs (other than those legal, auditing, consulting and professional fees and other costs incurred in connection with the normal and routine maintenance and operation of the Building and/or the Site), including, without limitation, those: (i) paid or incurred in connection with financings, refinancings or sales of any Landlord’s interest in the Building and/or the Site; (ii) relating to any special reporting required by securities laws; (iii) relating to negotiations or disputes with, or leasing to, tenants or prospective tenants; (iv) relating to litigation (including costs of settlement judgments and payments in lieu thereof); (v) the interpretation of leases or other occupancy agreements; (vi) the enforcement of the provisions of any lease or other occupancy agreement affecting the Building including without limitation this Lease; (vii) the initial construction of the improvements on the Site; (viii) the review, approval or other actions in connection with the sublease or assignment of tenant leases (provided, however, that Tenant shall nonetheless be responsible under Section 5.6.5(b) for any such costs relative to its own requests for consent to a sublease or assignment); (ix) any action against a present or former tenant or occupant under a lease or other occupancy agreement, including, without limitation, eviction, distraint, levy and collection actions; and (x) costs incurred as a result of the violation by Landlord or any tenant of the terms and conditions of any lease;

(iv)          The cost of any item or service to the extent reimbursed or reimbursable to Landlord by insurance required to be maintained under the Lease or by any third party;

(v)           The cost of repairs or replacements incurred by reason of fire or other casualty or condemnation other than costs not in excess of a commercially reasonable deductible (currently $25,000.00) on any insurance maintained by Landlord which provides a recovery for such repair or replacement;

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(vi)          Any advertising, promotional or marketing expenses for the Buildings;

(vii)         The cost of any service or materials provided by any party related to Landlord (other than the management fee), to the extent such costs exceed the reasonable cost for such service or materials absent such relationship in buildings similar to the Building in the vicinity of the Building;

(viii)        Payments for rented equipment, the cost of which equipment would constitute a capital expenditure if the equipment were purchased to the extent that such payments exceed the amount which could have been included in Landlord’s Operating Expenses had Landlord purchased such equipment rather than leasing such equipment;

(ix)           Penalties, damages, and interest for late payment or violations of any obligations of Landlord, including, without limitation, taxes, Legal Requirements, insurance, equipment leases and other past due amounts;

(x)            Contributions to charitable or political organizations or trade associations such as BOMA or NAIOP, and any entertainment, dining or travel expenses of Landlord’s employees for any purpose;

(xi)           The costs incurred to monitor, test, survey, clean-up, contain, encapsulate, abate, remove or remediate any “Hazardous Materials” (as defined in Section 5.3), including asbestos and mold, in the Buildings or on the Site required by “Hazardous Materials Laws” (as defined in Section 5.3) and including costs to defend against claims in regard to the existence or release of Hazardous Materials at the Building or the Site;

(xii)          Any and all costs incurred to install, repair, operate, maintain and replace the subslab venting system installed in the Building as part of the Base Building Work under Section 3.1 below (or any costs associated with modifying the original subslab venting system or installing supplemental systems should it be determined that the original system installed as part of the Base Building Work was insufficient to mitigate air quality issues associated with conditions existing at the Property as of the date of this Lease);

(xiii)         Wages, salaries, or other compensation (including benefits and benefit plans) paid to any executive employees above the grade of Regional Property Manager;

(xiv)         Amounts payable by Landlord for withdrawal liability to a multi-employer pension plan (under Title IV of the Employment Retirement Income Security Act of 1974, as amended) due to complete or partial withdrawal that occurs during the term of this Lease due to events within the control of Landlord (e.g., the sale of Landlord’s interest in the Building);

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(xv)          Costs in connection with leasing space in the Building or to retain existing tenants, including brokerage commissions, lease concessions, lease assumptions, rental abatements, construction allowances granted to specific tenants and alteration work performed by Landlord to prepare space for tenants, including any utilities or services incurred in connection with performing such work;

(xvi)         The cost of any work or service performed or rendered exclusively for any tenant of the Building, including Tenant, and costs incurred in connection with the making of repairs which are the obligations of another tenant of the Building;

(xvii)        The cost of acquisition of any sculpture, paintings or other objects of art;

(xviii)       Any amounts billed or billable to Tenant or any other tenant for any services furnished to Tenant or any other tenant by Landlord or Landlord’s agents or contractors for which a separate charge is made, including, without limitation, the supply of overtime air-conditioning, ventilation and heating, and above-standard cleaning services, or for services or work furnished to any tenant to the extent such services or work are furnished in a more favorable manner to such tenant than furnished generally to tenants of the Building as part of Landlord’s Operating Expenses;

(xix)         Any costs of maintenance, repairs or replacements required because of the negligent or willful act or omission of Landlord, its officers, directors, servants, agents, employees or contractors;

(xx)          Any expenses to design and construct (including permitting fees, costs of insurance and bonds, and costs of equipment and materials) the Base Building Work and the Base Building Enhancements and any costs to correct any defects, latent or patent, in any of the equipment or improvements which are a part of the Base Building Work and/or the Base Building Enhancements (except to the extent caused by Tenant’s use of the Premises for other than general office use);

(xxi)         Reserves for bad debts or for future improvements, repairs or additions;

(xxii)        Any above-standard cleaning (which shall include trash collection and removal), including, but not limited to construction cleanup or special cleanings associated with parties/events and specific tenant requirements in excess of service provided to Tenant, and including the costs of initial cleaning and rubbish removal performed for final completion of the Building, the Site or any tenant space;

(xxiii)       The costs of new services or substantial increases in existing services (such as a substantial increase in security services) to the extent such new or increased level of services are required solely as the result of the presence of a particular occupant of the Building, such as for example, the costs of providing additional security services due to threats against a particular occupant of the Building;

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(xxiv)       Costs in connection with acquiring additional land or development rights or of constructing any additional buildings within the Site (provided, however, that the foregoing shall not be construed so as to limit or modify Tenant’s obligation to pay the costs associated with the Off-Site Parking under Section 2.2.1 above);

(xxv)        Without limitation of any other exclusions from Landlord’s Operating Expenses, costs and expenses incurred by Landlord in curing, repairing or replacing any structural portion of the Building (including the roof) within five (5) years of the Actual Base Building Completion Date (as the term is defined in Section 3.1(B) below) to the extent such cure, repair or replacement was made necessary as a result of defects in the design, workmanship or materials of the Base Building Work);

(xxvi)       Costs of initial landscaping of the Building or the Site;

(xxvii)      Costs of the initial stock of tools and equipment for operation, repair and maintenance of the Building and Site and all furniture, equipment and fixtures for the Amenities;

(xxviii)     Costs of mitigation or impact fees or subsidies imposed or incurred in connection with the initial construction of the Building, or imposed or incurred solely as a result of any tenant’s use of or occupancy of the Building or the Site;

(xxix)       Costs incurred in connection with the operation of any retail or restaurant operations for the Building, including without limitation, any operating subsidy for the cafeteria (provided that the costs of operating, maintaining, cleaning and providing utilities to the cafeteria may be included in Landlord’s Operating Expenses);

(xxx)        Costs incurred in connection with upgrading the Property to comply with laws, rules, regulations or codes first applicable to the Property prior to the Commencement Date; and

(xxxi)       Except as expressly provided in this Lease with respect to the Managed Parking Program and the Off-Site Parking and for so long as Tenant directly leases and occupies seventy percent (70%) or more of the Total Rentable Floor Area of the Building, costs of adding any new services or new building amenities not in place as of the Commencement Date which are not either (1) consented to by Tenant in writing or (2) actually utilized by Tenant’s employees irrespective of whether Tenant has not consented to the same (e.g., if Landlord initiates a shuttle bus service to public transportation and Tenant does not consent to the same but Tenant’s employees use the shuttle bus on a regular basis) or (3) required by applicable laws, rules, regulations or codes first applicable to the Property after the Commencement Date, and further subject to the gross up of Base Operating Expenses as hereinafter set forth.  Services or building amenities will not be deemed to be “utilized by Tenant’s employees” unless either (i) Tenant notifies

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Landlord in writing that Tenant’s employees will utilize the service or amenity, or (ii) Landlord provides Tenant with written notice that Tenant’s employees have been found to be regularly or consistently using such service or amenity and, thereafter, such use by Tenant’s employees continues on or after the date that is two (2) weeks following Tenant’s receipt of Landlord’s notice.

Notwithstanding anything in this Lease to the contrary, to the extent that Landlord provides or procures services for the Building together with other buildings in the CityPoint Project or otherwise operated by Landlord or any affiliate thereof, then the costs of such services shall be allocated between the Building and such other buildings in a manner reasonably determined by Landlord.  In no event shall Landlord be entitled to retain more than one hundred percent (100%) of the Landlord’s Operating Expenses actually paid or incurred by Landlord in any particular calendar year.

 “Operating Expenses Allocable to the Premises” shall mean the same proportion of Landlord’s Operating Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant’s Space bears to the Total Rentable Floor Area of the Building.

“Base Operating Expenses” is hereinbefore defined in Section 1.1.  Base Operating Expenses shall not include (i) market-wide cost increases due to extraordinary circumstances (as hereinafter defined), including but not limited to Landlord’s Force Majeure (as hereinafter defined), conservation surcharges, boycotts, strikes, or embargoes or shortages and (ii) the cost of any Permitted Capital Expenditures required in order to comply with applicable laws, rules, regulations or codes first applicable to the Property after the Base Building Completion Date; provided, however, that if there are elements of Building repair and maintenance which would have been included in Base Operating Expenses except that they were covered under construction or installation warranties at no additional cost to Landlord, the cost of such repair and maintenance items shall be imputed into Base Operating Expenses.  When used in this Section 2.6, “Landlord’s Force Majeure” shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorist acts, civil commotions, unusual scarcity of or inability to obtain labor or materials, labor difficulties, casualty or other causes reasonably beyond Landlord’s control or attributable to Tenant’s action or inaction.  For purposes of this Section 2.6, “market-wide cost increases due to extraordinary circumstances” shall mean an actual, material increase in a category of Landlord’s Operating Expenses under this Lease in excess of the amount reasonably budgeted by Landlord for such expense category in the Base Operating Expenses which is attributable to some unanticipated event or circumstance occurring during the Base Year and that affects the Market Area in general for a temporary period of time and where the costs for such category(ies) subsequently returns, within not more than nine (9) months after the calendar year used for calculating Base Operating Expenses, to amounts that would otherwise have been consistent with the projected and normal level of increases in such category(ies) of costs during subsequent years of the Term.  In the event that the costs of any new service, substantial increase in existing services or new building amenity (other than the Managed Parking Program or the Off-Site Parking) is added to

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Landlord’s Operating Expenses (subject to the limitations of clause (xxxi) above) after calendar year 2009, the amount of Base Operating Expenses shall be equitably adjusted by adding an amount equal to the annual costs of such new services or amenities or substantial increase in existing services incurred during the first twelve (12) months following which such new service or amenity or substantial increase in service is instituted or first effected (in any event, discounted to reflect what such costs would have been in 2009).

“Base Operating Expenses Allocable to the Premises” means the same proportion of Base Operating Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant’s Space bears to Total Rentable Floor Area of the Building.

If with respect to any calendar year falling within the Term, or fraction of a calendar year falling within the Term at the beginning or end thereof, the Operating Expenses Allocable to the Premises for a full calendar year exceed Base Operating Expenses Allocable to the Premises, or for any such fraction of a calendar year exceed the corresponding fraction of Base Operating Expenses Allocable to the Premises then, Tenant shall pay to Landlord, as Additional Rent, the amount of such excess (“Tenant’s Operating Expenses Payment”). Such payments shall be made at the times and in the manner hereinafter provided in this Section 2.6. (The Base Operating Expenses Allocable to the Premises do not include the tenant electricity to be paid by Tenant at the time of payment of Annual Fixed Rent and for which provision is made in Section 2.5 hereof, separate provision being made in Section 2.8 of this Lease for Tenant’s share of increases in electricity costs.) In no event will Tenant be obligated to make any payments of Tenant’s Operating Expenses Payment prior to January 1, 2010.

Not later than one hundred and twenty (120) days after the end of the first calendar year or fraction thereof ending December 31 and of each succeeding calendar year during the Term or fraction thereof at the end of the Term, Landlord shall render Tenant a statement in reasonable detail and according to usual accounting practices certified by a representative of Landlord (an “Operating Expense Statement”), showing for the preceding calendar year or fraction thereof, as the case may be, Landlord’s Operating Expenses and Operating Expenses Allocable to the Premises. The first such Operating Expense Statement from Landlord under this Lease shall also set forth the Base Operating Expenses and the Base Operating Expenses Allocable to the Premises. Such Operating Expense Statement to be rendered to Tenant shall also show for the preceding year or fraction thereof as the case may be the amounts of operating expenses already paid by Tenant as Additional Rent, and the amount of operating expenses remaining due from, or overpaid by, Tenant for the year or other period covered by such statement. Within thirty (30) days after the date of delivery of such Operating Expense Statement, Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.6 with respect to the preceding year or fraction thereof, or Landlord shall credit any amounts due from it to Tenant pursuant to the above provisions of this Section 2.6 against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under this Lease (or refund such portion of the overpayment as aforesaid if the Term has ended and Tenant

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has no further obligation to Landlord).   Landlord’s failure to render or delay in rendering an Operating Expense Statement with respect to any calendar year shall not prejudice Landlord’s right thereafter to render the same with respect thereto nor shall the rendering of an Operating Expense Statement for any calendar year prejudice Landlord’s right thereafter to render a corrected Operating Expense Statement for such calendar year, provided, however, that (1) if Landlord’s delay in delivering an Operating Expense Statement or any subsequent corrections thereto would result in a materially adverse impact on Tenant’s stated earnings or require Tenant to restate earnings (either such event being hereinafter referred to as an “Earnings Impact”), Landlord must render the Operating Expense Statement in question (or any corrections thereto) within six (6) months after the end of the calendar year in question, or Landlord will not thereafter have any right to subsequently deliver an Operating Expense Statement (or any subsequent corrections thereto) which would increase the amounts owed by Tenant on account of Tenant’s Operating Expenses Payment such that it would result in an Earnings Impact, and (2) Landlord shall in all events render the Operating Expense Statement in question or any corrections thereto within one (1) year after the end of the calendar year covered by such Operating Expense Statement.

In addition, Tenant shall make payments monthly on account of Tenant’s Operating Expenses Payment anticipated for the then current year at the time and in the fashion herein provided for the payment of fixed rent. The amount to be paid to Landlord shall be an amount reasonably estimated annually by Landlord to be sufficient to cover, in the aggregate, a sum equal to Tenant’s Operating Expenses Payment for each calendar year during the Term.

Notwithstanding the foregoing, in determining the amount of Landlord’s Operating Expenses for the Base Year and any calendar year or portion thereof falling within the Lease Term, if less than ninety-five percent (95%) of the Total Rentable Floor Area of the Building shall have been occupied by tenants at any time during the period in question, then, at Landlord’s election with respect to years after the Base Year, but on a mandatory basis for the Base Year, those components of Landlord’s Operating Expenses that vary based on occupancy for such period shall be adjusted to equal the amount such components of Landlord’s Operating Expenses would have been for such period had occupancy been ninety-five percent (95%) throughout such period (it being understood and agreed for the purposes hereof that, without limiting the generality of the foregoing, management fees shall be calculated as if the Building was ninety-five (95%) occupied for an entire year with all tenants paying full base rent (without reduction for free rent periods) and payments on account of operating expenses and real estate taxes (to the extent applicable for tenants who either do not have base years in their leases or who have leases with base years that have passed at the time of the calculation described herein)).

2.6.1         Examination of Landlord’s Books and Records

Subject to the provisions of this paragraph, and provided that Tenant is not in default of any of its monetary or other material obligations under this Lease and

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has failed to cure the same after notice thereof from Landlord, Tenant shall have the right, at Tenant’s cost and expense, to examine or cause to be examined all of Landlord’s books, documentation and calculations used in the determination of Landlord’s Operating Expenses, Base Operating Expenses, Landlord’s Tax Expenses and Base Taxes under Section 2.7 below, and Tenant’s Electricity Payment under Section 2.8 below (the “Documentation”).

1.             Such Documentation shall be made available to Tenant at the offices, in the continental United States, where Landlord keeps such records during normal business hours within a reasonable time after Landlord receives a written request from Tenant to make such examination.

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

3.              Any request for examination in respect of any calendar year may be made no more than twelve (12) months after Landlord advises Tenant of the actual amount of Landlord’s Operating Expenses or Landlord’s Tax Expenses, as applicable, in respect of such calendar year and provides to Tenant the year-end statement required above; provided, however, that Tenant shall have the right to make an examination of Base Operating Expenses and/or Base Taxes at such time (if any) Tenant makes an examination of Landlord’s Operating Expenses for calendar year 2010 or Landlord’s Tax Expenses for fiscal tax year 2011, as applicable, notwithstanding that more than twelve (12) months have elapsed since the delivery of Landlord’s year-end statement of Base Operating Expenses and/or Base Taxes.

4.             Such examination may be made only by Tenant’s employees or by an independent certified public accounting firm approved by Landlord, or a qualified real estate professional approved by Landlord, which approval in either case shall not be unreasonably withheld, conditioned or delayed. In no event shall Tenant be permitted to utilize any examiner who is being paid by Tenant on a contingent fee basis.

5.             As a condition to performing any such examination, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement, in form reasonably acceptable to Landlord, agreeing to keep confidential any information which it discovers about Landlord or the Building in connection with such examination, provided however, that Tenant may disclose such information (i) to Tenant’s employees, counsel and advisors who have the need to know such information in order to provide Tenant with advice in connection with such audit, (ii) actual or proposed successors, assigns, subtenants, lenders or purchasers of Tenant and (iii) to the extent required by applicable law or reporting requirements or by administrative, governmental or judicial proceeding.

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6.             If, after the audit by Tenant of Landlord’s books and records pursuant to this Section 2.6.1 with respect to any calendar year, it is determined that: (i) Tenant has made an overpayment on account of Tenant’s Operating Expenses Payment or Tenant’s Tax Payment, as applicable, Landlord shall credit such overpayment against the next installment(s) of Annual Fixed Rent and Additional Rent thereafter payable by Tenant, except that if such overpayment is determined after the termination or expiration of the Term of this Lease, Landlord shall promptly refund to Tenant the amount of such overpayment, less any amounts then due from Tenant to Landlord; and (ii) Tenant has made an underpayment on account of Tenant’s Operating Expenses Payment or Tenant’s Tax Payment, as applicable, Tenant shall, within thirty (30) days of such determination, pay such underpayment to Landlord; and (iii) if the amount of Landlord’s Operating Expenses or Landlord’s Tax Expenses, as applicable, was overstated by more than five percent (5%) in the aggregate, Landlord shall pay Tenant’s reasonable out-of-pocket cost for such audit.

7.             Any disputes under this Section 2.6.1 relating to amounts of Fifty Thousand and 00/100 Dollars ($50,000.00) or more may be resolved by arbitration under Section 8.31 below.

2.7           Real Estate Taxes

If with respect to any full Tax Year or fraction of a Tax Year falling within the Term, Landlord’s Tax Expenses Allocable to the Premises as hereinafter defined for a full Tax Year exceed Base Taxes Allocable to the Premises, or for any such fraction of a Tax Year exceed the corresponding fraction of Base Taxes Allocable to the Premises then, on or before the thirtieth (30 ^th ) day following receipt by Tenant of the certified statement referred to below in this Section 2.7, then Tenant shall pay to Landlord, as Additional Rent, the amount of such excess (“Tenant’s Tax Payment”). Not later than ninety (90) days after Landlord’s Tax Expenses Allocable to the Premises are determined for the first such Tax Year or fraction thereof and for each succeeding Tax Year or fraction thereof during the Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord showing for the preceding year or fraction thereof, as the case may be, Real Estate Taxes (as hereinafter defined) on the Building and the Site and abatements and refunds of any taxes and assessments. Reasonable expenditures for legal fees and for other expenses reasonably incurred in seeking the tax refund or abatement may be charged against the tax refund or abatement before the adjustments are made for the Tax Year to the extent such costs were not already included in the calculation of Real Estate Taxes. Said statement to be rendered to Tenant shall also show for the preceding Tax Year or fraction thereof as the case may be the amounts of Tenant’s Tax Payment already paid by Tenant as Additional Rent, and the amount of Tenant’s Tax Payment remaining due from, or overpaid by, Tenant for the year or other period covered by the statement. Within thirty (30) days after the date of delivery of the foregoing statement, Tenant shall pay to Landlord the balance of the amounts, if any, required to be paid pursuant to the above provisions of this Section 2.7 with respect to the preceding Tax Year or fraction thereof, or Landlord shall credit any amounts due from it to Tenant

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pursuant to the provisions of this Section 2.7 against (i) monthly installments of fixed rent next thereafter coming due or (ii) any sums then due from Tenant to Landlord under this Lease (or refund such portion of the over-payment as aforesaid if the Term has ended and Tenant has no further obligation to Landlord).

In addition, payments by Tenant on account of Tenant’s Tax Payment anticipated for the then current year shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent, provided, however, in no event will Tenant have any obligation to make any payment of Tenant’s Tax Payment prior to July 1, 2010. The amount so to be paid to Landlord shall be an amount reasonably estimated by Landlord to be sufficient to provide Landlord, in the aggregate, a sum equal to Tenant’s Tax Payment, at least ten (10) days, but not more than thirty (30) days, before the day on which such payments by Landlord would become delinquent.  In no event shall Landlord be entitled to retain more than one hundred percent (100%) of the Landlord’s Tax Expenses (as defined below) actually paid or incurred by Landlord in any particular fiscal tax year.

To the extent that Real Estate Taxes shall be payable to the taxing authority in installments with respect to periods less than a Tax Year, the foregoing statement shall be rendered and payments made on account of such installments.

Terms used herein are defined as follows:

(i)            “Tax Year” means the twelve-(12)-month period beginning July 1 each year during the Term or if the appropriate governmental tax fiscal period shall begin on any date other than July 1, such other date.

(ii)           “Landlord’s Tax Expenses Allocable to the Premises” shall mean the same proportion of Landlord’s Tax Expenses for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant’s Space bears to the Total Rentable Floor Area of the Building.

(iii)          “Landlord’s Tax Expenses” with respect to any Tax Year means the aggregate Real Estate Taxes on the Building and Site with respect to that Tax Year, reduced by any abatement receipts with respect to that Tax Year.

(iv)          “Base Taxes” is hereinbefore defined in Section 1.1.

(v)           “Base Taxes Allocable to the Premises” means the same proportion of Base Taxes for and pertaining to the Building and the Site as the Rentable Floor Area of Tenant’s Space bears to the Total Rentable Floor Area of the Building.

(vi)          “Real Estate Taxes” means all taxes and special assessments of every kind and nature and user fees and other like fees assessed by any governmental authority on the Building or Site which the Landlord shall become

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obligated to pay because of or in connection with the ownership, leasing and operation of the Site, the Building and the Property (including without limitation, if applicable, the excise prescribed by Massachusetts General Laws (Ter Ed) Chapter 121A, Section 10 and amounts in excess thereof paid to the City of Waltham pursuant to agreement between Landlord and the City) and reasonable expenses of and fees for any formal or informal proceedings for negotiation or abatement of taxes (collectively, “Abatement Expenses”), which Abatement Expenses respecting Base Taxes shall be excluded from Base Taxes. The amount of special taxes or special assessments to be included shall be limited to the amount of the installment (plus any interest, other than penalty interest, payable thereon) of such special tax or special assessment required to be paid during the year in respect of which such taxes are being determined. There shall be excluded from such taxes all mitigation or impact fees or subsidies associated with the initial construction of the Building and all income, inheritance, estate, succession, transfer, gift, franchise, or capital stock taxes; provided, however, that if at any time during the Term the present system of ad valorem taxation of real property shall be changed so that in lieu of the whole or any part of the ad valorem tax on real property there shall be assessed on Landlord a capital levy or other tax on the gross rents received with respect to the Site or Building or Property, or a federal, state, county, municipal, or other local income, franchise, excise or similar tax, assessment, levy or charge distinct from any now in effect in the jurisdiction in which the Property is located) measured by or based, in whole or in part, upon any such gross rents, then any and all of such taxes, assessments, levies or charges, to the extent so measured or based, shall be deemed to be included within the term “Real Estate Taxes” but only to the extent that the same would be payable if the Site and Building were the only property of Landlord.

(vii)         If during the Lease Term the Tax Year is changed by applicable law to less than a full twelve-(12)-month period, the Base Taxes and Base Taxes Allocable to the Premises shall each be proportionately reduced.

Landlord represents that (i) the Building and the Site constitutes one tax parcel which does not currently include any real estate or improvements other than the Building and the parking areas located on the Site, and (ii) there are no tax exemption benefits contemplated or proposed for or affecting the Base Taxes that will phase out during the Term of this Lease (as the same may be extended).

2.7.1        Tenant’s Right to Contest Real Estate Taxes

So long as (i) this Lease is in full force and effect, (ii) no monetary or other material Event of Default shall have occurred under this Lease, (iii) Tenant shall directly lease more than fifty percent (50%) of the Total Rentable Floor Area of the Building and (iv) Tenant shall neither have assigned this Lease nor sublet more

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than twenty-five percent (25%) of the rentable floor area then leased by Tenant (except for an assignment or sublease under Section 5.6.1 below and except for the Initial Second Floor Subleases), after prior written notice to Landlord, Tenant shall have the right to request that Landlord contest the amount or validity of Real Estate Taxes by appropriate application or proceedings.  If Landlord notifies Tenant that Landlord does not elect or cause to undertake such an application and/or proceeding, Tenant may then undertake the same; provided, however, that as a continuing condition to such right, Tenant shall be required to make all of the payments respecting the real estate taxes as and at the times required by Section 2.7, notwithstanding any such contest.

Tenant further agrees that each such contest shall be promptly and diligently prosecuted in good faith to a final conclusion except only as provided herein.  Landlord agrees to cooperate with Tenant in any such proceeding provided that the same shall be at the sole cost and expense of Tenant.  Tenant will pay and save Landlord harmless against any and all losses, judgments, decrees and costs (including all reasonable attorneys’ fees and expenses) in connection with any such contest and will, promptly after the final settlement, compromise or determination of such contest, fully pay and discharge Tenant’s obligations under Section 2.7, as the case may be, together with all penalties, fines, interests, costs and expenses.  Further, any such contest by Tenant shall not be discontinued unless and until Tenant has given to Landlord written notice of Tenant’s intent to so discontinue and if Landlord shall not by notice to Tenant (the “Assumption Notice”) within fifteen (15) days after receipt of Tenant’s notice elect to assume, at Landlord’s sole cost and expense, the continued prosecution and conduct of such contest.  In the event Landlord shall give such Assumption Notice, Tenant shall cooperate with Landlord in all respects as may be necessary for Landlord’s continuation of such contest, but Tenant shall have no other obligation for the prosecution and conduct of such contest.

Notwithstanding anything to the contrary set forth in this Section 2.7.1, Tenant shall have not right to initiate any contest respecting Real Estate Taxes if less than six (6) months of the tax period for which Tenant seeks to challenge Real Estate Taxes fall within the last twelve (12) calendar months of the Lease Term.

2.8           Tenant Electricity

(A)          Landlord shall, as part of Base Building Work, cause check meters (“Main Check Meters”) to be installed and rendered operational to measure tenant electric usage for the Premises. If a Main Check Meter serves only the Premises or the entire floor leased to a tenant, it is herein referred to as a “dedicated” Main Check Meter; if it serves the Premises in common with other premises, it is herein referred to as a “shared” Main Check Meter. Such Main Check Meter(s) shall only measure electricity used for lights and electrical equipment utilized in the Premises, and fan-powered and variable air volume boxes which are part of the HVAC system serving the Premises. Any further equipment (including supplemental HVAC equipment) installed by or for Tenant shall have separate check meter(s) (“Supplemental Check Meters”) installed at Tenant’s

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expense. On each floor there shall be one or more Main Check Meter(s) serving all of the floor such that the portions of the Premises located on full floors shall be served by dedicated Main Check Meters, and on multi-tenant floors Landlord may require that the tenants (at their sole cost and expense) install Main Check Meters relating to their premises (to the extent there are no Main Check Meters already installed serving only such premises) and Supplemental Check Meters to separately meter special usage within tenant premises such as computer rooms. With respect to any portion of the Premises that may in the future not be separately check metered on a dedicated Main Check Meter, Landlord will not unreasonably withhold its consent to Tenant to install dedicated Main Check Meter(s) serving solely such portion of the Premises at Tenant’s sole cost and expense.

(B)           Tenant’s share of the costs of electricity shall be determined by Landlord on the following basis:

(i)             Landlord will cause the check meters serving the Premises to be read periodically, but not less often than once every six (6) months during the first two (2) years of the Term and once every twelve (12) months thereafter. Tenant shall have reasonable access to such check meters to read the same.

(ii)            For portions of the Premises served by dedicated Main Check Meter(s), and for all Supplemental Check Meter(s) serving the Premises, Tenant’s allocable share of electricity costs for the period (“Tenant’s Electricity Payment”) shall be determined by multiplying the actual average cost per kilowatt hour by the number of kilowatt hours utilized by Tenant for such period as indicated by the dedicated Main Check Meter(s) and Supplemental Check Meter(s) for Tenant’s Premises.

(iii)           For portions of the Premises served by shared Main Check Meter(s), if any, the Tenant’s Electricity Payment shall be determined by multiplying the cost per kilowatt hour by the number of kilowatt hours utilized as indicated by such shared Main Check Meter(s), and multiplying such total cost by a fraction, the numerator of which is the rentable area leased to Tenant and the denominator of which is the total rentable area under lease to tenants (inclusive of any vacant spaces where electricity is being used on a regular basis) served by such shared Main Check
Meter(s); provided, however, that if Landlord shall reasonably determine that the cost of electricity furnished to the Tenant at such portion of the Premises exceeds the amount being paid by Tenant, then Landlord shall deliver to Tenant written documentation establishing Landlord’s basis for such determination and Landlord may charge Tenant for such excess and Tenant shall promptly pay the same upon billing therefor as

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Additional Rent under the Lease, subject to Tenant’s right to challenge such determination pursuant to Section 2.6.1.

(iv)           Where part or all of the rentable area on a floor has been occupied for less than all of the period for which adjustments are being made, appropriate and equitable modifications shall be made to the allocation formula so that each tenant’s allocable share of costs equitably reflects its period of occupancy, provided that in no event shall the total of all costs as allocated to tenants (or to unoccupied space) be less than the total cost of electricity for such floor for said period.

(C)           Tenant shall make estimated payments on account of Tenant’s Electricity Payment, as reasonably estimated by Landlord, on a monthly basis. No later than one hundred twenty (120) days after the end of each calendar year falling within the Lease Term, Landlord shall render Tenant a statement in reasonable detail certified by a representative of Landlord, showing for the preceding calendar year the Tenant’s Electricity Payment. Said statement to be rendered to Tenant also shall show for such period the amounts already paid by Tenant on account of Tenant’s Electricity Payment and the amount of Tenant’s Electricity Payment remaining due from, or overpaid by, Tenant for the period covered by the statement. If such statement shows a balance remaining due to Landlord, Tenant shall pay same to Landlord on or before the thirtieth (30 ^th ) day following receipt by Tenant of said statement. Any balance shown as due to Tenant shall be credited against Annual Fixed Rent next due, or refunded to Tenant if the Lease Term has then expired and Tenant has no further obligation to Landlord. All payments by Tenant on account of Tenant’s Electricity Payment shall be deemed Additional Rent and shall be made monthly at the time and in the fashion herein provided for the payment of Annual Fixed Rent. Tenant shall have the right to examine Landlord’s records relating to Tenant’s Electricity Payment and to dispute the amounts claimed to be owed by Landlord in accordance with the provisions of Section 2.6.1 of this Lease.

(D)           All costs of electricity billed to Landlord, other than the costs of tenant electricity allocated pursuant to the procedures established herein, shall be treated as part of Landlord’s Operating Expenses for purposes of determining the allocation of those costs. Taxes imposed upon the electricity furnished to the Building shall be included in the calculation of electricity charges payable under this Lease, however, there shall not be included in such electricity charges any tax imposed upon Landlord on account of Landlord’s sale, use or resale of electrical energy to Tenant or other tenants in the Building (i.e., no double taxation due to the fact that Landlord is not a licensed reseller of electricity).

(E)           Landlord shall be responsible for the maintenance of the Main Check Meter(s) and Tenant shall be responsible for the maintenance of the Supplemental Check Meter(s).

(F)           At any time following the completion of Base Building Work, Tenant shall have the right, subject to Landlord’s approval (not to be unreasonably withheld), to increase

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and/or shift the amount of electric power being drawn from the buss duct on any full floor within the Premises, at Tenant’s sole cost and expense, provided the total amount of power allotted to the Premises is not increased. At such time as Tenant shall surrender any floor, or portion thereof to Landlord as provided hereunder (including in connection with any space recaptured by Landlord), Tenant, at its sole cost and expense, shall reinstate all electric capacity on such floor as may have been reallocated or otherwise decreased as a result of any Tenant’s use thereof such that the electric capacity serving any such floor is not less than the electrical capacity for such floor on the date such floor was delivered to Tenant. In connection with the foregoing, it is acknowledged and agreed that electrical panels may need to be installed within the Premises itself (as opposed to within the electric closets or mechanical rooms outside of the Premises) in order to facilitate a shift in the amount of electric amount being provided to any given floor.

ARTICLE III

CONSTRUCTION

3.1           Base Building Work; Base Building Enhancements

(A)          It is acknowledged and agreed that Landlord has, prior to the date hereof, substantially completed the work (the “Base Building Work”) as defined in the Base Building Specifications and list of Base Building Plans attached hereto as Exhibit B-1.  Landlord agrees to diligently pursue the completion of any components of the Base Building Work that have not been completed as of the date of this Lease and any delay in the Substantial Completion of the Landlord’s Work (as both of such terms are defined in Section 3.3 below) as a result of Landlord’s failure to complete any outstanding item of Base Building Work shall constitute a “Landlord Delay.”

(B)           In addition to the Base Building Work, Landlord, at Landlord’s sole cost and expense, shall perform the modifications to the Base Building Specifications described on Exhibit B-2 attached hereto (the “Base Building Enhancements”) in a good and workmanlike manner, using new and quality materials, in full compliance with all applicable Legal Requirements.  In connection with the foregoing, it is expressly understood and agreed that Landlord’s obligation to perform the Base Building Enhancements at its sole cost and expense shall apply solely to Premises A, and to the extent that Tenant requires Base Building Enhancements in connection with the build-out of Premises B and/or Premises C, such Base Building Enhancements shall be considered to be a part of the Tenant Improvement Work (as defined in Section 3.2 below).

3.2           Tenant Improvement Work

(A)          Plans .

(1)            Interim Plans .  On or before February 29, 2008, Landlord shall deliver to Tenant and Tenant’s architect a complete set of updated design drawings (with architects and/or contractors field notes, if any, thereon) for the

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Building reflecting the Base Building Work.  On or before the Interim Plans Date, Tenant shall deliver to Landlord a full set of design development plans for the work to be performed by Landlord to prepare the Premises for Tenant’s occupancy (the “Tenant Improvement Work”), such plans and specifications to be prepared by an architect, licensed by the Commonwealth of Massachusetts and reasonably approved by Landlord (the “Interim Plans”). Provided that the Interim Plans (x) contain at least the information required by, and shall conform to the requirements of, Exhibit B-3 and (y) comply with Landlord’s requirements to avoid aesthetic or other material conflicts with or an adverse effect on the design and function of the balance of the base building, Landlord shall not unreasonably withhold, delay or condition its consent thereto; provided, however, that notwithstanding the foregoing, Landlord’s determination of matters relating to any aesthetic design of alterations or changes visible outside the Premises shall be in Landlord’s sole discretion.

(2)            Tenant Plans .   On or before the Tenant Plans Date, Tenant shall deliver to Landlord a full set of construction drawings for the Tenant Improvement Work in suitable form for filing with an application for a building permit with the City of Waltham (the “Tenant Plans”). Provided that the Tenant Plans (x) contain at least the information required by, and shall conform to the requirements of, Exhibit B-4, (y) comply with Landlord’s requirements to avoid aesthetic or other material conflicts with or adverse effect on the design and function of the balance of the base building and (z) are consistent with the Interim Plans, Landlord shall not unreasonably withhold, delay or condition its consent thereto; provided, however, that notwithstanding the foregoing, Landlord’s determination of matters relating to any aesthetic design of alterations or changes visible outside the Premises shall be in Landlord’s sole discretion.

                In connection with the foregoing, it is understood and agreed that (i) Landlord must file for a building permit by April 21, 2008 (the “Building Permit Application Date”) based on the Tenant Plans submitted by Tenant on or before the Tenant Plans Date in order to commence and complete construction of the Tenant Improvement Work within the time periods contemplated by this Article III, even though Landlord’s review of the Tenant Plans and the pricing of the Tenant Improvement Work will not have been completed by such Building Permit Application Date, and (ii) any delay in the performance of the Tenant Improvement Work caused by the need to amend the application for a building permit as the result of modification to the Tenant Plans after the Tenant Plans Date shall be deemed to be a Tenant Delay (as that term is defined in subsection (B) below) for the purposes of this Article III.

(3)            General Matters .  In connection with the foregoing, it is understood and agreed that Landlord’s approval under this Section 3.2(A) is given solely

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for the benefit of Landlord, and neither Tenant nor any third party shall have the right to rely upon Landlord’s approval of the Interim Plans and/or the Tenant Plans (hereinafter collectively referred to as the “Plans”) for any other purpose whatsoever other than for satisfying the consent requirements under this Lease. Without limiting the foregoing, Tenant shall be responsible for all elements of the design of the Plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of the Plans shall in no event relieve Tenant of the responsibility for such design. Landlord agrees to respond to all Plans within sixteen (16) days of receipt thereof.  In its approval of the Tenant Plans, Landlord shall specify those alterations, additions and improvements that must be removed by Tenant at the expiration or earlier termination of the Term.  Landlord’s failure to so respond within said sixteen (16) day period shall be deemed to constitute Landlord’s approval of the Tenant Plans and determination that the alterations, additions and improvements shown thereon do not need to be removed by Tenant at the expiration or earlier termination of the Term.  If Landlord disapproves of any Plans, then Tenant shall have the Plans revised by its architect to incorporate all reasonable objections and conditions presented by Landlord and resubmitted to Landlord.  Such process shall be followed until the Plans shall have been approved by the Landlord without objection or condition. Landlord shall respond to the resubmission of any Plans by Tenant within five (5) days of Landlord’s receipt thereof (or ten (10) days in the case of a major redesign).  Landlord shall have no obligation to perform the Tenant Improvement Work until the Tenant Plans shall have been presented to and approved (or deemed approved) by Landlord.  In addition, Tenant shall, promptly execute and deliver to Landlord any affidavits and documentation submitted to Tenant by Landlord in order to obtain all permits and approvals necessary for Landlord to commence and complete the Tenant Improvement Work on a timely basis (“Permit Documentation”).

(B)           Construction Process .

(1)            Pricing .

(a)            Within seventeen (17) days after its receipt of the Interim Plans, Landlord shall furnish to Tenant a written estimate of all costs of the Tenant Improvement Work (the “Interim Plans Estimated Costs Notice”).  In preparing the Interim Plans Estimated Costs Notice, Landlord shall obtain estimates from no less than two (2) of the general contractors listed on Exhibit B-5 attached hereto (it being understood and agreed that throughout the bidding process contemplated by this subsection (B)(1), Landlord shall

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be obtaining separate bids for the Tenant Improvement Work and the Base Building Enhancements).  The Interim Plans Estimated Costs Notice shall include a copy of the estimates received from each of the general contractors.  In all events, Landlord and Tenant shall cooperate with each other in good faith in order to expedite the estimate process.  If the estimates submitted by Landlord are not consistent with the Tenant’s budget (a copy of which has been submitted to Landlord), Tenant shall have ten (10) days to review and to modify the Tenant Plans as Tenant deems reasonably necessary to achieve pricing that is consistent with Tenant’s budget.

(b)            Within twenty-four (24) days after its receipt of the Tenant Plans, Landlord shall furnish to Tenant a written statement of all costs of the Tenant Improvement Work (the “Tenant Plans Costs Notice”) for Tenant’s approval.   In connection with the foregoing, it is understood and agreed that Landlord shall, after consultation with Tenant and Tenant’s Construction Representative, make the determination in its reasonable discretion as to whether to bid the Tenant Improvement Work project as a Guaranteed Maximum Price “GMP” contract or a lump-sum contract based on the level of completion of the Tenant Plans (i.e. if such Tenant Plans are sufficiently detailed so that the project can be bid out at the subcontractor level).

(c)            In preparing the Tenant Plans Costs Notice in the case of a GMP contract, Landlord shall solicit bids from no less than three (3) of the general contractors listed on Exhibit B-5 attached hereto and shall require that all general contractor bids be based upon such general contractor having solicited and received bids from no less than two (2) licensed subcontractors with respect to all major sub-trades (defined as subcontracts in excess of $50,000.00) forming a part of the Tenant Improvement Work.  When bids are solicited, upon the receipt of bids from each of the subcontractors, Landlord or the general contractor selected to perform the Tenant Improvement Work (the “Contractor”) shall prepare a bid format which compares each bid, and shall deliver such bid format, together with copies of the bids themselves to Tenant (together with Landlord’s designation of the bid Landlord intends to accept).

In preparing the Tenant Plans Costs Notice in the case of a lump-sum contract, Landlord shall solicit bids from no less than three (3) of the general contractors listed on Exhibit B-5.  When bids are solicited, upon the receipt of bids, Landlord shall prepare a bid format which compares each bid, and shall deliver such bid

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format, together with copies of the bids themselves to Tenant (together with Landlord’s designation of the bid Landlord intends to accept).

(d)            Landlord shall have the right to select the general contractor who will perform the Tenant Improvement Work, subject to Tenant’s approval (not to be unreasonably withheld, conditioned or delayed);  provided, however, that Tenant may not object to the selection of any general contractor who will be able to complete the Tenant Improvement Work on or prior to the Estimated Commencement Date and whose bid for the Tenant Improvement Work does not exceed the lowest received bid by more than ten percent (10%).  In the event that Tenant does not approve of a general contractor selected by Landlord who can complete the Tenant Improvement Work on or prior to the Estimated Commencement Date but whose bid exceeds the lowest received bid by more than ten percent (10%), any delay in the completion of the Landlord’s Work resulting from Tenant’s failure to approve Landlord’s selected general contractor shall be deemed to be a Tenant Delay hereunder.  In all events, Landlord and Tenant shall cooperate with each other in good faith in order to expedite the bid process.

(2)            Construction Contract .  Promptly following Tenant’s approval of the Contractor and the Tenant Plans Cost Notice, Landlord shall enter into a construction contract (the “Construction Contract”) with the Contractor for the performance of the Tenant Improvement Work on the basis of a guaranteed maximum price or lump sum equal to the total amount set forth in the Tenant Plans Cost Notice approved by Tenant (the “Approved Tenant Plan Costs”).  Any and all costs to perform the Tenant Improvement Work in excess of the Approved Tenant Plan Costs in such Construction Contract shall be paid for by Landlord and not included in the Tenant Plan Excess Costs unless such excess costs are the result of any Change Order requested by Tenant or any Tenant Delay.  Landlord and Tenant shall endeavor to use commercially reasonable value engineering practices whenever possible in performing the Tenant Improvement Work.  Landlord agrees to copy Tenant (which copy may be via email to Tenant’s general counsel) on the first draft of the proposed construction contract and to deliver to Tenant a copy of the final Construction Contract executed between Landlord and the Contractor.

(3)            Tenant Plan Excess Costs .

To the extent the Approved Tenant Plan Costs exceed the Landlord’s Contribution set forth in Section 3.6, or the cost of the Tenant Improvement Work exceeds the Approved Tenant Plan Costs as a result of

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Change Orders requested by Tenant or any Tenant Delay, such excess costs are hereinafter referred to as “Tenant Plan Excess Costs” and shall be paid by Tenant as Additional Rent in accordance with said Section 3.6. Tenant shall notify Landlord in writing, within three (3) days of receipt by Tenant of the Tenant Plans Cost Notice, of either its approval thereof and its authorization to Landlord to proceed with the Tenant Improvement Work in accordance with the Tenant Plans in the event Landlord had no objection to the Tenant Plans, or changes in the Tenant Plans prepared by Tenant’s architect which shall be responsive to any objections raised by Landlord. In the event of the latter modification, Landlord shall, as soon as practicable after Landlord obtains price quotations for any changes in the Tenant Plans, quote to Tenant all changes in Tenant Plan Excess Costs resulting from said plan modifications and whether Landlord approves the revised Tenant Plans. Tenant shall, within five (5) days after receipt of Landlord’s revised quotation of Tenant Plan Excess Costs submit to Landlord any revisions to the Tenant Plans required by Landlord.

(4)            Long Lead Item Release Date; Authorization to Proceed Date .

In connection with its review and approval of the Plans, Landlord shall identify and notify Tenant of any items contained in the Plans which Landlord then reasonably believes will constitute long lead items.  Landlord will give to Tenant Landlord’s best, good faith estimate of the period(s) of any delay which would be caused by a long-lead item.  On or before the Long Lead Item Release Date, Tenant shall have the right to either (a) revise the Tenant Plans to eliminate any such long-lead item or (b) authorize Landlord to construct the Tenant Improvement Work in accordance with the approved Tenant Plans including any such long-lead items (any such approved long-lead items being hereinafter called “Tenant Approved Long Lead Items”). Tenant acknowledges that certain Approved Long Lead Items may still delay completion of the Tenant Improvement Work and thus result in a Tenant Delay even if Tenant does authorize them on or before the Long Lead Item Release Date.

Tenant shall, on or before the later date to occur of (i) the Authorization to Proceed Date, and (ii) three (3) days following Tenant’s receipt of the Tenant Plans Cost Notice, give Landlord written authorization to proceed with the Tenant Improvement Work in accordance with the approved Tenant Plans (“Notice to Proceed”).

(5)            Change Orders . Tenant shall have the right, in accordance herewith, to submit for Landlord’s approval change proposals subsequent to Landlord’s approval of the Tenant Plans and Tenant’s approval of the Tenant Plan Excess Costs, if any (each, a “Change Proposal”).  Landlord agrees to respond to any such Change Proposal within such time as is reasonably necessary (taking into consideration the information contained

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in such Change Proposal) after the submission thereof by Tenant, advising Tenant of any anticipated increase in costs (“Change Order Costs”) associated with such Change Proposal, as well as an estimate of any delay which would likely result in the completion of the Landlord’s Work if a Change Proposal is made pursuant thereto (“Landlord’s Change Order Response”). Tenant shall have the right to then approve or withdraw such Change Proposal within five (5) days after receipt of Landlord’s Change Order Response. If Tenant fails to respond to Landlord’s Change Order Response within such five (5) day period, such Change Proposal shall be deemed withdrawn. If Tenant approves such Change Proposal, then such Change Proposal shall be deemed a “Change Order” hereunder and if the Change Order is made and such Change Order increases the costs of the Tenant Improvement Work in excess of the Approved Tenant Plans Cost, then the Change Order Costs associated with the Change Order shall be deemed additions to the Tenant Plan Excess Costs and shall be paid in the same manner as Tenant Plan Excess Costs are paid as set forth in Section 3.6.

(6)            Tenant Response to Requests for Information and Approvals . Except to the extent that another time period is expressly herein set forth, Tenant shall respond to any request from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction Representative for approvals or information in connection with the Tenant Improvement Work, within four (4) business days of Tenant’s receipt of such request.

(7)            Time of the Essence . Time is of the essence in connection with Landlord’s and Tenant’s obligations under this Section 3.2.

(C)           Tenant Delay .

(1)            A “ Tenant Delay ” shall be defined as the following to the extent it results in a delay in the Substantial Completion of the Landlord’s Work:

(a)            Tenant’s failure to deliver the Interim Plans to Landlord by the Interim Plans Date, or to deliver the Tenant Plans to Landlord on or before the Tenant Plans Date, or to provide to Landlord any Permit Documentation required to be submitted in connection with the application for a building permit for the Tenant Improvement Work within three (3) business days after submitted to Tenant by Landlord, or to give authorization to Landlord to proceed with the Tenant Improvement Work on or before the later to occur of (i) the Authorization to Proceed Date and (ii) three (3) days following Tenant’s receipt of the Tenant Plans Cost Notice; or

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(b)            Tenant’s failure timely to respond to any request from Landlord, Landlord’s architect, Landlord’s contractor and/or Landlord’s Construction Representative within the time periods set forth in Section 3.2(B)(6) above;

(c)            Tenant’s failure to pay the Tenant Plan Excess Costs in accordance with Section 3.6;

(d)            Any delay due to Tenant Approved Long Lead Items;

(e)            Any delay due to Change Orders or due to Tenant’s failure to approve any change orders proposed by Landlord or the Contractor which would not (i) materially affect the scope or quality of the Tenant Improvement Work (it being acknowledged and agreed that for the purposes hereof, the substitution of items of comparable quality to those shown on the Tenant Plans shall not be deemed to materially affect the scope or quality of the Tenant Improvement Work), (ii) delay the completion of the Tenant Improvement Work beyond December 31, 2008 or (iii) materially increase the costs to complete the Tenant Improvement Work.

(f)             Any delay resulting from Tenant’s failure to timely approve a general contractor (where Tenant was being unreasonable in withholding, conditioning or delaying its consent or where Tenant does not approve of the general contractor selected by Landlord who can complete the Tenant Improvement Work on or prior to the Estimated Commencement Date but whose bid exceeds the lowest received bid by more than ten percent (10%)); or

(g)            Any other delays caused by Tenant, Tenant’s contractors, architects, engineers or anyone else engaged by Tenant in connection with the preparation of the Premises for Tenant’s occupancy, including, without limitation, utility companies and other entities furnishing communications, data processing or other service, equipment, or furniture.

In calculating the duration of any Tenant Delay, such duration shall be based upon the actual number of days of delay in Substantial Completion of the Landlord’s Work attributable to the causes described above.  Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless Landlord has given Tenant written notice (the “Tenant Delay Notice”) advising Tenant:  (x) that a Tenant Delay is occurring and setting forth Landlord’s good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant

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Delay is occurring; and (z) if readily ascertainable by Landlord, the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay.  Landlord shall deliver to Tenant a Tenant Delay Notice within five (5) business days after Landlord becomes aware of such Tenant Delay or the periods prior to delivery of a Tenant Delay Notice will not constitute a Tenant Delay hereunder and provided further that Landlord agrees to exercise commercially reasonable efforts to immediately notify Tenant of any act, omission or interference of Tenant, its agents, employees or contractors in the performance of the Landlord’s Work which Landlord intends to claim as a Tenant Delay so as to permit Tenant a reasonable opportunity to promptly mitigate and/or eliminate such act, omission or interference.  Except to the extent that a specific time period for action is expressly set forth in this Article III, Tenant Delays shall not include the normal and ordinary process of communication between Landlord and Tenant during the design and construction process or the exercise by Tenant of its rights under this Article III to inspect the work and/or to dispute the achievement of Substantial Completion of the Landlord’s Work.  Notwithstanding anything herein or in this Lease to the contrary, Landlord may satisfy the Tenant Delay Notice requirement by verbal notification to Tenant’s Construction Representative at a regularly scheduled construction meeting attended by Tenant’s Construction Representative so long as such notification satisfies the requirements of clauses (x), (y) and (z) above and is subsequently reflected in the written minutes documenting such meeting and circulated to the attendees, including Tenant’s Construction Representative.

(2)            Tenant Obligations with Respect to Tenant Delays .

(a)           Tenant agrees that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent, regardless of the reason for such Tenant Delay or whether or not it is within the control of Tenant or any such employee. Landlord’s Work shall be deemed substantially completed as of the date when Landlord’s Work would have been substantially completed but for any Tenant Delays, as reasonably determined by Landlord in the exercise of its good faith business judgment and subject to the terms of this Article III.

(b)           Tenant shall reimburse Landlord, as Tenant Plan Excess Costs, the amount, if any, by which the Landlord’s Work is increased as the result of any Tenant Delay.

(c)           Any amounts due from Tenant to Landlord under this Section 3.2(C)(2) shall be due and payable within thirty (30) days of billing therefor, and shall be considered to be Additional Rent. Nothing

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contained in this Section 3.2(C)(2) shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease.

(D)           Construction Management Fee .

Landlord shall charge a construction management fee (the “Construction Management Fee”) for its management of the Tenant Improvement Work in an amount equal to the sum of (x) $325,000.00 and (y) four percent (4%) of the so-called “hard costs” of the Tenant Improvement Work in excess of $12,384,675.00 (being the product of (i) $75.00 and (ii) the Rentable Floor Area of the Premises).  The Construction Management Fee shall be payable by Tenant as Additional Rent on the Commencement Date.

3.3            Substantial Completion

(A)           Subject to any prevention, delay or stoppage due to Landlord’s Force Majeure (as hereinafter defined) or attributable to any Tenant Delays, Landlord shall use reasonable speed and diligence in the construction of the Base Building Enhancements and the Tenant Improvement Work (hereinafter collectively referred to as the “Landlord’s Work”) so as to have the same Substantially Completed (as hereinafter defined) on or before the Estimated Commencement Date set forth in Section 1.1, but Tenant shall have no claim against Landlord for failure to complete construction of the Landlord’s Work except as expressly set forth in Section 3.4 below.  Notwithstanding the foregoing, it is understood and agreed that Landlord shall have no responsibility for the installation or connection of Tenant’s computer, telephone, other communication equipment, systems or wiring (although Landlord will reasonably cooperate with Tenant in order to facilitate the completion by Tenant of this work).

(B)            Landlord will reasonably cooperate with Tenant and Tenant’s Construction Representative in the performance of the Tenant Improvement Work to provide Tenant access to the Premises both prior to and during construction and the right to attend all job meetings between Landlord and Contractor for the Tenant Improvement Work and to review subcontractor submittals and shop drawings.  Tenant shall have the right to have Tenant’s Construction Representative or other qualified architect, engineer or contractor inspect the quality of construction of the Tenant Improvement Work and the compliance of the Tenant Improvement Work with the Tenant Plans, provided such inspection is performed at a time mutually agreeable to Landlord and Tenant and which will not cause any delay in the performance of the Landlord’s Work.  Landlord agrees to notify Tenant (which notice may be oral) of all job meetings held with the Contractor and related to the scheduling, design, modifications, change orders, or cost reporting or pricing of the Tenant Improvement Work.  Tenant shall have the right to review and approve change orders to any portion of the Tenant Improvement Work proposed by Landlord or Contractor, which such approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that Tenant’s approval of any change order which (i) materially affects the scope or quality of the Tenant Improvement Work (it being acknowledged and agreed that for the purposes hereof, the substitution of items of

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comparable quality to those shown on the Tenant Plans shall not be deemed to materially affect the scope or quality of the Tenant Improvement Work), (ii) delays the completion of the Tenant Improvement Work beyond December 31, 2008 or (iii) materially increases the costs to complete the Tenant Improvement Work shall be in Tenant’s sole and unfettered discretion.

(C)            In addition to and not in limitation of the insurance required to be maintained by Landlord under Section 4.3 of this Lease, Landlord shall require the Contractor and all contractors and subcontractors performing Landlord’s Work to maintain at all times during the construction of Landlord’s Work commercially reasonable insurance coverages comparable to those being maintained by contractors on similar projects in the Market Area.  Landlord shall use commercially reasonable efforts to cause the Contractor to name Tenant as a certificate holder and additional insured on all insurance coverages required under the Construction Contract (provided, however, that the failure or refusal by the Contractor to thus name Tenant shall not be considered to be a default by Landlord of any of its obligations under this Lease).  The cost of such insurance documented as allocable to Tenant Improvement Work under this subsection (C) shall be a part of the Approved Tenant Plan Costs.

(D)           Landlord shall provide Tenant with at least thirty (30) days prior written notice of the date Landlord anticipates that the Landlord’s Work will be Substantially Complete (the “Anticipated Delivery Date”) and shall provide Tenant with written notice of any revisions or changes to such Anticipated Delivery Date, and if the Landlord’s Work is not Substantially Complete as of the Anticipated Delivery Date set forth in Landlord’s notice, then the Substantial Completion Date will not be deemed to have occurred unless Tenant has been provided with at least fifteen (15) days prior written notice of a revised Anticipated Delivery Date and the Landlord’s Work is actually Substantially Completed as of such revised Anticipated Delivery Date.  The “Substantial Completion Date” shall be defined as the date on which the Landlord’s Work has been Substantially Completed. “Substantial Completion” and “Substantially Completed” shall each mean the date on which (1) the Landlord’s Work has been completed except for so-called “punch-list” items of work and adjustment of equipment and fixtures the incompleteness of which do not cause unreasonable interference with Tenant’s use of the Premises for the Permitted Uses or Tenant’s right to lawfully occupy the Premises, and (2) permission has been obtained from the applicable governmental authority (which such permission may be evidenced by the signature(s) of the appropriate municipal official(s) on the building permit for the Tenant Improvement Work) to the extent required by law, for occupancy by Tenant of the Premises for the Permitted Uses.  The above notwithstanding the parties shall schedule a joint inspection of the Premises at a mutually convenient time to confirm that the Landlord’s Work has been Substantially Completed and to identify any minor details, adjustments or other items of the Landlord’s Work which in accordance with good construction practice should be performed after Substantial Completion thereof (collectively, the “Punchlist Items”), if any, in writing; provided, however, such joint inspection shall take place at least five (5) business days prior to the date Landlord has notified Tenant (in accordance with the requirements of this Article III) will be the Substantial Completion Date.  If after such joint inspection, Landlord and Tenant

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disagree as to whether the Landlord’s Work is Substantially Complete or as to the existence or nature of any Punchlist Items, and such dispute has not been resolved within ten (10) days of the joint inspection, either party shall have the right to submit such dispute to expedited arbitration under Section 3.7 hereof (provided, however, the during the pendency of any such dispute and/or arbitration proceeding, the Substantial Completion Date shall be as determined by Landlord, subject to adjustment upon the resolution of the dispute by the parties or by arbitration).  After Substantial Completion, Landlord shall proceed diligently to complete all Punch List Items at Landlord’s expense within sixty (60) days after the occurrence of Substantial Completion (except for items which can only be performed during certain seasons or weather, which items shall be completed diligently as soon as the season and/or weather permits).

Notwithstanding anything contained herein to the contrary, in the event that Landlord is delayed in the performance of Landlord’s Work or cannot obtain permission from the applicable governmental authority for the occupancy of the Premises by reason of any Tenant Delay, then the Substantial Completion Date shall be deemed to be the date that Landlord would have achieved Substantial Completion or obtained such governmental permission, but for such Tenant Delay. Tenant agrees that no Tenant Delay shall delay commencement of the Term or the obligation to pay rent, regardless of the reason for such delay or whether or not it is within the control of Tenant or any such employee.  Nothing contained in this paragraph shall limit or qualify or prejudice any other covenants, agreements, terms, provisions and conditions contained in this Lease.

(E)            When used in this Lease “Landlord’s Force Majeure” shall mean any prevention, delay or stoppage due to governmental regulation, strikes, lockouts, acts of God, acts of war, terrorist acts, civil commotions, unusual scarcity of or unusual inability to obtain labor or materials (to the extent that such scarcity or inability is the result of conditions not prevalent in the market, and otherwise unforeseen, as of the date of this Lease), labor difficulties, casualty or other causes reasonably beyond Landlord’s control or attributable to Tenant’s wrongful action or inaction; provided, however, that in no event shall Landlord’s financial inability constitute a cause beyond Landlord’s reasonable control. Landlord shall provide Tenant with written notice within forty-eight (48) hours after the occurrence of any Landlord’s Force Majeure event hereunder (together with Landlord’s good faith estimate of the projected duration of such Landlord’s Force Majeure event), and shall also notify Tenant as soon as such Landlord’s Force Majeure event has ended. In no event shall any Landlord’s Force Majeure under this Section 3.3 (D) exceed a total of ninety (90) days in the aggregate. In addition, it is expressly understood and agreed that any casualty or Taking (as defined in Article VI below) that occurs prior to the Commencement Date of this Lease shall be deemed to be an event of Landlord’s Force Majeure and shall be governed by the provisions of this Article III related thereto and not by the provisions of said Article VI.

(F)            Landlord shall permit Tenant access for installing Tenant’s trade fixtures in portions of the Premises prior to Substantial Completion when it can be done without material interference with remaining work or with the maintenance of harmonious labor relations.  Any such early access by Tenant hereunder shall not in and of itself constitute

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acceptance by Tenant of the Landlord’s Work or achievement by Landlord of Substantial Completion of the Landlord’s Work.  Landlord agrees to exercise commercially reasonable efforts to provide Tenant with access to a clean and secure server room (not to exceed 1,400 square feet of rentable floor area) and related IDF closets, with electric power, lighting and  heating, ventilating and air conditioning service supplied thereto and operational therein, at least forty-five (45) days prior to the Anticipated Delivery Date in order to allow for Tenant to access the same and install and test its IT equipment prior to the Substantial Completion Date.  Any such access by Tenant shall be at upon all of the terms and conditions of the Lease (other than the payment of Annual Fixed Rent, Tenant’s Electricity Payment, Operating Expenses Allocable to the Premises and Landlord’s Tax Expenses Allocable to the Premises) and shall be at Tenant’s sole risk, and Landlord shall not be responsible for any injury to persons or damage to property resulting from such early access by Tenant unless resulting from or caused by the negligence or willful misconduct of Landlord or Landlord’s agents, employees, affiliates or contractors.

(G)            If, prior to the date that the Premises are in fact actually Substantially Complete, the Premises are deemed to be Substantially Complete pursuant to the provisions of this Section 3.3 (i.e. and the Commencement Date has therefore occurred), Tenant shall not (except with Landlord’s consent and provided Landlord proceeds with reasonable diligence to complete Landlord’s Work) be entitled to take possession of the Premises for the Permitted Uses until the Landlord’s Work is in fact actually Substantially Complete.

3.4            Tenant’s Remedies Based on Delays in Landlord’s Work

If the Substantial Completion Date has not occurred by December 1, 2008 as a result of a Landlord Delay, then the Rent Commencement Date under this Lease shall be postponed day for day on account of such Landlord Delay.  If the Substantial Completion Date has not occurred by February 1, 2009 (which date shall be extended automatically for such periods of time as Landlord is prevented in delivering the same by reason of Landlord’s Force Majeure (subject to the limitations thereon set forth in Section 3.3(D)) or any Tenant Delay (without limiting Landlord’s other rights on account thereof), the Annual Fixed Rent and payments on account of Operating Expenses Allocable to the Premises and Landlord’s Tax Expenses Allocable to the Premises shall be abated, from and after the Rent Commencement Date, by one (1) day for each day beyond February 1, 2009 (as so extended) that the Substantial Completion Date is delayed.

If the Substantial Completion Date has not occurred on or before April 30, 2009 which date shall be extended automatically for such periods of time as Landlord is prevented in delivering the same by reason of Landlord’s Force Majeure (subject to the limitations thereon set forth in Section 3.3(D)) or any Tenant Delay (without limiting Landlord’s other rights on account thereof), the Annual Fixed Rent and payments on account of Operating Expenses Allocable to the Premises and Landlord’s Tax Expenses Allocable to the Premises shall be abated, from and after the Rent Commencement Date, by two (2) days for each day beyond April 30, 2009 (as so extended) that the Substantial Completion Date is delayed.

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If the Substantial Completion Date shall not have occurred by the Outside Completion Date (which date shall be extended automatically for such periods of time as Landlord is prevented in delivering the same by reason of Landlord’s Force Majeure (subject to the limitations thereon set forth in Section 3.3(D)) or any Tenant Delay (without limiting Landlord’s other rights on account thereof), Tenant shall have the right to terminate this Lease effective as of the tenth (10th) business day after receipt by Landlord of a notice from Tenant given on or after the Outside Completion Date (as so extended) indicating Tenant’s desire to so terminate; and upon the giving of such notice, the Term of this Lease shall cease and come to an end without further liability or obligation on the part of either party as of the expiration of the aforesaid ten (10) business day period, unless the Substantial Completion Date shall in fact have occurred on or before such expiration date.

The foregoing rent abatements and right of termination shall be Tenant’s sole and exclusive remedies at law or in equity or otherwise for the failure of the Substantial Completion Date to have occurred within the time periods set forth above.

3.5            Quality and Performance of Work

(A)           All construction work required or permitted by this Lease shall be done in a good and workmanlike manner and in compliance with all applicable laws, ordinances, rules, regulations, statutes, by-laws, court decisions, and orders and requirements of all public authorities (“Legal Requirements”), all Insurance Requirements (as defined in Section 5.7 hereof) and, with respect to the Tenant Improvement Work, with the Tenant Plans. Without limiting the generality of the foregoing, it is acknowledged and agreed that Landlord shall be responsible, at its sole cost, for ensuring that the construction of the Landlord’s Work and the Base Building Work complies with all provisions of the Americans With Disabilities Act in effect and applicable to the Building and the Site as of the date of the Substantial Completion Date (with respect to the Landlord’s Work) and as of the date of this Lease (with respect to the Base Building Work).  Any work performed by or on behalf of Tenant under this Lease shall be coordinated with any work being performed by or on behalf of Landlord and in such manner as to maintain harmonious labor relations.

(B)            Each party authorizes the other to rely in connection with design and construction upon the written approval or other written authorizations on such 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. Each party may inspect the work of the other at reasonable times and shall promptly give notice of observed defects. Tenant acknowledges that Tenant is acting for its own benefit and account and that Tenant will not be acting as Landlord’s agent in performing any work that may be undertaken by or on behalf of Tenant under this Lease, and accordingly, no contractor, subcontractor or supplier of Tenant shall have a right to lien Landlord’s interest in the Property in connection with any such work.

(D)           Landlord warrants to Tenant that: (a) the materials and equipment furnished in the performance of the Landlord’s Work and the Base Building Work will be of good

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quality; (b) the Landlord’s Work and the Base Building Work will be free from defects not inherent in the quality described in the applicable plans and specifications therefor; and (c) the Landlord’s Work and the Base Building Enhancements and all components thereof shall be weather-tight and otherwise in good working order and condition and shall comply with all Legal Requirements as of the Substantial Completion Date (with respect to the Landlord’s Work) and as of the date of this Lease (with respect to the Base Building Work). Any portion of the Landlord’s Work or the Base Building Work not conforming to the foregoing requirements will be considered defective. Landlord’s warranty hereunder shall not apply to the extent of damage or defect caused by (1) the negligent acts or omissions or the willful misconduct of Tenant, its employees, agents, contractors, sublessees or permitted occupants under Section 5.6.7 below (hereinafter, the “Tenant Parties”), (2) improper operation by any of the Tenant Parties, or (3) normal wear and tear and normal usage.

The foregoing warranty (x) with respect to the Landlord’s Work shall commence on the date on the Substantial Completion Date and shall expire on the day immediately preceding the first anniversary of the Substantial Completion Date, and (y) with respect to the Base Building Work shall commence on the date on which Landlord has completed the Base Building Work and expire on the date which is eleven (11) months after the commencement of the warranty on the Base Building Work (either such period, as applicable, being hereinafter referred to as the “Warranty Period”), provided that in any event Tenant is required to deliver notice to Landlord of any defects at least thirty (30) days prior to the expiration of the applicable Warranty Period (the “Warranty Notice Period”) in order to permit Landlord to take action to enforce Landlord’s warranty rights with respect to the Landlord’s Work and/or the Base Building Work, as applicable, provided, however, that Landlord shall exercise commercially reasonable efforts to enforce Landlord’s warranty rights with respect to any notice delivered by Tenant after the Warranty Notice Period. Landlord agrees that it shall, without cost to Tenant, correct any portion of the Landlord’s Work and/or Base Building Work which during the applicable Warranty Period is found not to be in accordance with the warranties set forth in this subsection (D).  All defective items shall, subject to Tenant Delays and provided that Tenant has afforded Landlord with reasonable access to the Premises subject to the terms and provisions of Section 5.9 below in order to undertake the work described herein, be completed by Landlord within a reasonable period of time to be mutually agreed upon by Landlord and Tenant given the nature of the defect at issue after Landlord’s receipt of a written notice from Tenant setting forth in reasonable detail the nature of the defect and Tenant’s assessment of why it believes such defect is covered by the warranties set forth herein (Landlord hereby agreeing to use reasonable efforts to minimize interference with Tenant’s use and enjoyment of the Premises, consistent with the fact that Landlord is undertaking to remedy the defective work).  The foregoing warranty and the expiration of the applicable Warranty Period shall not serve to limit Landlord’s obligations  under this Lease, including without limitation, Article IV and Exhibit C nor reduce or eliminate any of the limitations on or exclusions  from Operating Expenses set forth in Section 2.6, and Landlord covenants that the Premises shall be delivered to the Tenant on the Commencement Date with all base building systems identified in Section 4.1 in good and proper working order for new, Class A buildings in

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the Market Area and with the Building (including the roof and façade) weathertight.

(E)            Except to the extent to which Tenant shall have given Landlord notice of respects in which Landlord has not performed Landlord’s construction obligations under this Article III within the applicable Warranty Notice Period, Tenant shall be deemed conclusively to have approved Landlord’s construction and shall have no claim that Landlord has failed to perform any of Landlord’s obligations under this Article III.  Notwithstanding the foregoing, Landlord agrees that upon and after the expiration of the applicable Warranty Notice Period, Landlord shall, at Tenant’s request and at Tenant’s sole cost and expense, enforce and exercise on behalf of Tenant any and all construction and manufacturers’ warranties and guaranties with respect to the Landlord’s Work and/or the Base Building Work, as applicable, to the extent still in force and effect at the time of Tenant’s request. The provisions of this subsection (E) shall not relieve Landlord of any obligation which Landlord has to make repairs or to perform maintenance pursuant to Article IV of the Lease nor limit any rights and remedies Tenant may have at law or in equity against the Contractor or any other party (other than Landlord) performing work or supplying materials in connection with the Landlord’s Work and/or the Base Building Work.

3.6            Landlord’s Contribution; Tenant Plan Excess Costs

(A)           As an inducement to Tenant’s entering into this Lease, Landlord shall provide to Tenant an allowance in an amount not to exceed Eight Million One Hundred Four Thousand Three Hundred Fifty and 00/100 Dollars ($8,104,350.00) (“Landlord’s Contribution”) to be used and applied by Landlord towards the cost of the Tenant Improvement Work. For the purposes hereof, the cost of the Tenant Improvement Work shall include the cost of leasehold improvements and architectural and engineering fees, mechanical, electrical and plumbing plans, telephone and computer systems and tel/data cabling installation (provided, however, that the amount of Landlord’s Contribution that may be applied towards the reimbursement of architectural and engineering fees, mechanical, electrical and plumbing plans, telephone and computer systems and tel/data cabling installation shall be capped at an amount equal to the product of (i) $15.00 and (y) the Rentable Floor Area of the Premises initially demised to Tenant), but shall not include any of Tenant’s other personal property, trade fixtures or trade equipment.  Tenant agrees that, as part of the Tenant Improvement Work, each floor of the Premises shall be improved to an average value of at least $40.00 per square foot of the Rentable Floor Area of the Premises located on such floor.

(B)            Landlord shall be under no obligation to apply any portion of the Landlord’s Contribution for any pu