Lease

Exhibit 10.12

Lease

by and between

NE WILLIAMS II, LLC,

Landlord,

and

Netezza Corp,

Tenant

Dated: January 2, 2008

Property: 26 Forest Street, Marlborough, MA

TABLE OF CONTENTS

ARTICLE I FUNDAMENTAL LEASE PROVISIONS			1
1.1 Reference Subjects			1
ARTICLE II PREMISES AND TERM			3
2.1 Premises			3
2.2 Acceptance of Premises			3
2.3 Term			3
ARTICLE III CONDITION OF PREMISES AND TENANT WORK			3
3.1 Initial Construction			3
3.2 Delivery of Possession and Commencement Date			3
3.3 Early Access			4
3.4 General Provisions Applicable to Construction			4
ARTICLE IV RENT			5
4.1 Annual Fixed Rent			5
4.2 Method of Payment			5
4.3 Net Return to Landlord			5
4.4 Additional Rent			6
4.4.1 Additional Rent - Landlord’s Taxes			6
4.4.2 Landlord’s Taxes - Definition			6
4.4.3 Additional Rent - Operating Expenses			6
4.4.4 Landlord’s Operating Expenses – Definition			7
4.5 Allocation of Certain Operating Expenses			9
4.6 Electricity			9
4.7 Audit			9
ARTICLE V ADDITIONAL COVENANTS			10
5.1 Tenant’s Covenants			10
5.1.1 Utilities and Services			10
5.1.2 Maintenance			10
5.1.3 Use and Compliance with Law			10
5.1.4 Liens and Encumbrances			11
5.1.5 Waiver and Indemnity			11
5.1.5.1 Waiver			11
5.1.5.2 Indemnity			11
5.1.6 Landlord’s Right to Enter			12
5.1.7 Personal Property at Tenant’s Risk			12
5.1.8 Overloading, Nuisance, Etc.			12
5.1.9 Yield Up			13
5.1.10 Holding Over			13
5.1.11 Assignment, Subletting			13
5.2 Landlord’s Covenants			15
5.2.1 Building Services			15
5.2.1.1 Landlord’s Maintenance			15
5.2.1.2 Office Identification			15
5.2.1.3 Grounds Maintenance			15

5.2.1.4 Cleaning			16
5.2.2 Interruptions			16
ARTICLE VI INSURANCE; CASUALTY; TAKING			16
6.1 Insurance			16
6.1.1 Coverage			16
(a) Commercial General Liability Insurance			16
(b) Property Insurance			16
(c) Workers’ Compensation Insurance			17
(d) Landlord’s Coverage			17
6.1.2 Avoid Action Increasing Rates			17
6.1.3 Waiver of Subrogation			17
6.2 Fire or Casualty			18
6.3 Waiver of Claim			18
6.4 Nonwaiver			19
6.5 Condemnation			19
ARTICLE VII DEFAULT			19
7.1 Events of Default			19
7.2 Remedies for Default			20
7.2.1 Reletting Expenses Damages			20
7.2.2 Termination Damages			20
7.2.3 Lump Sum Liquidated Damages			21
7.3 Remedies Cumulative			21
7.4 Effect of Waivers of Default			21
7.5 No Accord and Satisfaction; No Surrender			21
7.6 Waiver of Jury			21
7.7 Landlord’s Curing and Enforcement			22
7.8 Landlord’s Default			22
7.9 Prevailing Parties			22
7.10 Security Deposit			22
ARTICLE VIII MISCELLANEOUS PROVISIONS			23
8.1 Notice from One Party to the Other			23
8.2 Quiet Enjoyment			23
8.3 Limitation of Landlord’s Liability			23
8.4 Applicable Law and Construction			24
8.5 Successors and Assigns			24
8.6 Relationship of the Parties			24
8.7 Estoppel Certificate			24
8.8 Notice of Lease			25
8.9 Construction on Adjacent Premises			25
8.10 Tenant As Business Entity			25
8.11 Parking			25
8.12 Renewal Option			26
8.13 Expansion Option			27
8.14 Exterior Signage			28
ARTICLE IX BROKERS			28
9.1 Brokers			28

ARTICLE X LANDLORD’S FINANCING			28
10.1 Subordination and Superiority of Lease			28
10.2 Rent Assignment			29
10.3 Other Instruments			29
APPENDIX A PREMISES PLAN			A-1
APPENDIX B WORK LETTER			B-1
APPENDIX C RULES AND REGULATIONS			C-1
APPENDIX D FORM OF LETTER OF CREDIT			D-1

LEASE

ARTICLE I

FUNDAMENTAL LEASE PROVISIONS

     1.1 Reference Subjects . Each reference in this Lease to any of the following subjects shall be construed to incorporate the information stated for that subject in this Section.

EFFECTIVE DATE:				January 2, 2008
PREMISES:				The entire third (3 rd ) floor of the Building and a portion of the first (1 st ) floor of the Building consisting of approximately 58,863 rentable square feet, as depicted on Appendix A attached hereto.
BUILDING:				The building located at 26 Forest Street, Marlborough, MA
PROPERTY:				The Building and the land upon which it is located
LANDLORD:				NE Williams II, LLC
NOTICE ADDRESS				c/o Great Point Investors LLC
OF LANDLORD:				Two Center Plaza, Suite 410
				Boston, MA 02108
				Attn: Randolph L. Kazazian III
LANDLORD’S MANAGING				National Development
AGENT:				175 Crossing Blvd., Suite 110
				Framingham, MA 01702
				Attn: David Yancey
TENANT:				Netezza Corp., a Delaware corporation
NOTICE ADDRESS OF TENANT:
INITIAL TERM:				Seven (7) years and three (3) months
LEASE YEAR:				The first Lease Year of the Term shall commence on the Lease Commencement Date and end on the last day of the month in which the first (1st) anniversary of the Lease Commencement Date shall occur (unless the Commencement Date shall occur on the first day of a month, in which case the first Lease Year shall end on the day before the first (1st) anniversary of the Commencement Date). Subsequent Lease Years shall commence on the day after the last day of the first Lease Year or an anniversary thereof, and shall end on an anniversary of the last day of the first Lease Year.

LEASE COMMENCEMENT DATE:				Ten (10) days after Substantial Completion of Landlord’s Work as provided for in Section 3.2
LEASE EXPIRATION DATE:				The last day of the eighty-seventh (87 th ) full month after the Lease Commencement Date
ANNUAL FIXED RENT:				Months 1-3	$0.00
				Months 4-39	$1,309,701.75 ($22.25/RSF)
				Months 40-51	$1,368,564.75 ($23.25/RSF)
				Months 52-87	$1,427,427.75 ($24.25/RSF)
BASE OPERATING EXPENSE YEAR:				Calendar year 2008 (i.e., January 1, 2008 through December 31, 2008)
BASE TAX YEAR:				Calendar year 2008 (i.e., January 1, 2008 through December 31, 2008)
PARKING SPACES:				235 unreserved spaces, which shall be increased by 4 spaces for each 1,000 square feet of rentable space leased as provided in Section 8.13 (Expansion Option)
PREMISES RENTABLE AREA:				Approximately 58,863 rentable square feet
TENANT’S PERCENTAGE SHARE:				49.5%
PERMITTED USES:				General office use
PUBLIC LIABILITY INSURANCE:				$1,000,000 combined single limit per occurrence, with $5,000,000 umbrella coverage per occurrence
BROKERS:				Richard Barry Joyce & Partners LLC and Cushman & Wakefield
SECURITY DEPOSIT:				$500,000 letter of credit in the form attached hereto as Appendix D
APPENDICES:		Appendix A -		Premises Plan
		Appendix B -		Work Letter
		Appendix C -		Rules and Regulations
		Appendix D -		Form of Letter of Credit

ARTICLE II

PREMISES AND TERM

     2.1 Premises . Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, subject to and with the benefit of the terms, covenants and conditions of this Lease, and rights, agreements, easements and restrictions of record applicable to the property of which the Premises are a part, all of which Tenant shall perform and observe insofar as the same are applicable to the Premises. Subject to the rules and regulations established by Landlord, attached hereto as Appendix C , as they may be amended from time to time (the “Rules and Regulations”), Tenant shall have the appurtenant rights in common with others to use (a) the common lobbies, hallways, stairways and elevators of the Building serving the Premises in common with others, (b) the exterior walkways, sidewalks and driveways necessary for access to the Premises, (c) the parking areas serving the Premises and (d) any public cafeteria in the Building or the project of which the Building is a part. Except as specifically provided herein to the contrary, all the perimeter walls of the Premises except the interior surfaces thereof, any space in or adjacent to the Premises used for shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms, ducts, electric or other utilities, sinks or other Building facilities, and the use thereof, are expressly excluded from the Premises and reserved to Landlord. Landlord excepts and reserves the right from time to time (a) to install, use, maintain, repair, replace and relocate within the Premises and other parts of the Building, or either, pipes, meters and other equipment, machinery, apparatus and appurtenant fixtures; and (b) to make additions to the Building and alter or relocate any entranceways, common areas or other facilities (including without limitation all access driveways, walkways and parking areas) serving the Premises, which rights shall be subject to the proviso that there be neither unreasonable obstruction of access to, nor unreasonable interference with, the use and enjoyment by Tenant of the Premises.

     2.2 Acceptance of Premises . Subject to the completion of Landlord’s Work (as defined in Appendix B attached hereto), Tenant acknowledges that it has inspected the Premises and accepts the same in the condition they are in on the Lease Commencement Date, it being expressly agreed that Landlord shall have no obligation, liability or risk whatsoever with respect to the Premises or their condition, except as expressly set forth herein; provided, however, the Premises shall be delivered with the existing supplemental air conditioning units in good working order and repair. Tenant further acknowledges that neither Landlord nor any agent or employee of Landlord has made any representations or warranties of any kind, express or implied, concerning the Premises, their condition or this Lease (including, without limitation, any express or implied warranties of merchantability, fitness, habitability or suitability for Tenant’s particular purposes).

     2.3 Term . This Lease is for a Term beginning on the Lease Commencement Date and ending on the Expiration Date.

ARTICLE III

CONDITION OF PREMISES AND TENANT WORK

     3.1 Initial Construction . As indicated in the Work Letter attached hereto as Appendix B (the “Work Letter”), Landlord shall complete Landlord’s Work. Except for Landlord’s Work, Landlord is leasing the Premises to Tenant “as is”, without any representations or warranties of any kind (including, without limitation, any express or implied warranties of merchantability, fitness or habitability), subject to all recorded matters, laws, ordinances and governmental regulations and orders.

     3.2 Delivery of Possession and Commencement Date . For purposes of determining the Commencement Date only, the Premises shall be considered as delivered upon the first to occur of:

     (a) the date on which (i) Landlord or Landlord’s architect gives notice of Substantial Completion (as hereinafter defined) of Landlord’s Work; provided that Substantial Completion has occurred on said date, and (ii) Landlord has delivered actual possession of the Premises to Tenant free of all tenants and occupants; or

     (b) if the date of Substantial Completion of Landlord’s Work is delayed by reason of Tenant Delays (as defined in the Work Letter), the date on which, in Landlord’s reasonable judgment, Landlord’s Work would have been Substantially Completed but for such Tenant Delays.

     “ Substantial Completion ” of Landlord’s Work shall mean completion of Landlord’s Work except for items which can be completed after Tenant’s occupancy without undue interference with Tenant’s use of the Premises (“Punchlist Items”), as evidenced by (i) a certificate of Landlord’s architect stating that Landlord’s Work has been substantially completed in accordance with the plans and specifications therefor, and (ii) a permanent certificate of occupancy (or its equivalent) for the Premises. Landlord shall use reasonable efforts to complete all Punchlist Items within thirty days or, if such completion is not feasible for any reason not within the reasonable control of Landlord, as soon as conditions permit, and Tenant shall afford Landlord access to the Premises for such purpose pursuant to the terms of this Lease, provided that Landlord does not unreasonably interfere with Tenant’s use or occupancy of the Premises.

     Notwithstanding the foregoing, if Landlord’s Work is not completed by the date which is 240 days after approval of the Final Plans (as defined in the Work Letter), which date shall be extended day for day for each day of Tenant Delay or Force Majeure Delay (as defined in the Work Letter), Tenant, upon thirty (30) days’ written notice to Landlord, may terminate this Lease, provided, however, that if Landlord’s Work is nonetheless completed within such thirty (30) day period, Tenant’s notice to terminate shall be deemed null and void.

     Except for latent defects, and except to the extent Tenant shall have given Landlord notice not later than 60 days after the Commencement Date of defects in Landlord’s Work, Tenant shall have no claim that Landlord has failed to perform any of Landlord’s Work.

     3.3 Early Access . Landlord shall permit Tenant access (at Tenant’s sole risk) for purposes of making measurements and installing equipment and furnishings in the Premises prior to Tenant’s taking possession of the Premises if such can be done without interference with Landlord’s Work in the Premises and in harmony with Landlord’s contractors and subcontractors. Any interference with Landlord’s Work shall be deemed a Tenant Delay.

     3.4 General Provisions Applicable to Construction . Tenant shall not make any installations, alterations, additions, or improvements in or to the Premises, including, without limitation, any apertures in the walls, partitions, ceilings or floors, without on each occasion obtaining the prior written consent of Landlord, which shall not be unreasonably withheld. Tenant shall reimburse Landlord for all reasonable costs incurred by Landlord or any Superior Mortgagee (as defined below) in reviewing Tenant’s proposed installation, alterations, additions or improvements. Any such work so approved by Landlord shall be performed only in accordance with plans and specifications therefor approved by Landlord. Tenant shall procure at Tenant’s sole expense all necessary permits and licenses before undertaking any work on the Premises and shall perform all such work in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable insurance requirements, laws, ordinances, regulations and orders of governmental authorities. Tenant shall employ for such work only contractors approved by Landlord and shall require all contractors employed by Tenant to carry worker’s compensation insurance in accordance with statutory requirements and commercial general liability insurance covering such contractors on or about the Premises with a combined single limit not less than $3,000,000 and shall submit certificates evidencing such coverage to Landlord prior to the commencement of such work. Tenant shall indemnify

and hold harmless Landlord from all injury, loss, claims or damage to any person or property occasioned by or growing out of such work. Landlord may inspect the work of Tenant at reasonable times and give notice of observed defects. Upon completion of any such work, Tenant shall provide Landlord with “as built” plans, if applicable, copies of all construction contracts and proof of payment for all labor and materials.

Tenant covenants and agrees that with respect to the carpentry work on any and all alterations, improvements and/or additions that are made to the Premises, Tenant’s construction managers, general contractors and subcontractors shall be signatory to and in good standing under the Carpenters Union collective bargaining agreement covering the geographical area where the work is performed, and with respect to non-carpentry work, wherever possible, such work shall be performed by contractors signatory to and in good standing under the collective bargaining agreement of the local building trades union affiliated with the AFL-CIO which covers that work. If the construction manager, general contractor and/or subcontractor with responsibility for the carpentry work is not signatory to and in good standing under the Carpenters Union’s collective bargaining agreement, then the Landlord shall have the right, upon 24 hours’ written notice to Tenant, to order Tenant to cease all work on the Premises, in which event all work then in progress shall be halted and shall not be recommenced until and unless Tenant’s construction manager, general contractor and/or subcontractor becomes subject to or covered by and in good standing under the Carpenters Union’s collective bargaining agreement.

ARTICLE IV

RENT

     4.1 Annual Fixed Rent . Annual Fixed Rent during the Term of this Lease shall be the amount per annum set forth in Section 1.1.

     4.2 Method of Payment . Tenant covenants and agrees to pay the Annual Fixed Rent to Landlord in advance in equal monthly installments (or in the appropriate monthly installments for monthly periods during any Lease Year) on the first day of each calendar month during the Term beginning on the Lease Commencement Date. Tenant shall make ratable payment of Annual Fixed Rent for any portion of a Lease Year (or month) in which the same accrues, all payments of Annual Fixed Rent and additional rent and other sums due hereunder to be paid in current U.S. exchange at the Original Address of Landlord or such other place as Landlord may by notice in writing to Tenant from time to time, without demand and without set-off or deduction.

     Without limiting the generality of the foregoing, except as expressly provided otherwise herein, Tenant’s obligation so to pay shall not be discharged or otherwise affected by reason of the application of any law or regulation now or hereafter applicable to the Premises, or any other restriction of or interference with the use thereof by Tenant, or any damage to or destruction of the Premises by casualty or taking, or on account of any failure by Landlord to perform hereunder or otherwise, or due to any other occurrence; nor shall Tenant ever be entitled and Tenant hereby waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Lease or the Premises or any part thereof, or to assert any defense in the nature of constructive eviction to any action seeking to recover rent. Tenant shall, however, have and maintain, subject to the provisions hereof, the right to seek and obtain from time to time judgments for actual damages occasioned by Landlord’s breach of the covenants of this Lease.

     4.3 Net Return to Landlord . It is intended that Annual Fixed Rent payable hereunder shall be a net return to Landlord throughout the Term, free of expense, charge, offset, diminution or other deduction whatsoever on account of the Premises (excepting financing expenses, federal and state income taxes of general application and those expenses which this Lease expressly makes the responsibility of Landlord), and all provisions hereof shall be construed in terms of such intent.

     4.4 Additional Rent .

          4.4.1 Additional Rent - Landlord’s Taxes . Tenant covenants and agrees to pay to Landlord, as additional rent, an escalation charge calculated as Tenant’s Percentage Share of the increase in Landlord’s Taxes (hereafter defined) for each fiscal tax period, or ratable portion thereof, included in the Lease Term over the Base Taxes (hereinafter defined). Tenant shall make estimated payments on account of increases in Landlord’s Taxes above the Base Taxes in monthly installments on the first day of each month, in amounts reasonably estimated from time to time by Landlord to provide for the full payment of Tenant’s obligation with respect to Landlord’s Taxes on the date such Taxes are due, and with a final payment adjustment between the parties within fourteen (14) days after Landlord provides Tenant a statement of Landlord’s Taxes and Tenant’s Share of the increase of such Taxes above Base Taxes for Landlord’s most recent tax year. “Base Taxes” as used herein means the amount of Landlord’s Taxes for the Base Tax Year. This section shall survive the expiration or earlier termination of this Lease.

          4.4.2 Landlord’s Taxes - Definition . As used in this Lease, the term “Landlord’s Taxes” shall mean all taxes, assessments, betterments, excises, user fees and all other governmental charges and fees of any kind or nature, or impositions or agreed payments in lieu thereof or voluntary payments made in connection with the provision of governmental services or improvements of benefit to the Building (including any so-called linkage, impact or voluntary betterment payments), and all penalties and interest thereon (if due to Tenant’s failure to make timely payments on account of Landlord’s taxes), assessed or imposed against the Premises or the property of which the Premises are a part (including without limitation any personal property taxes levied on such property or on fixtures or equipment used in connection therewith). Notwithstanding the foregoing, “Landlord’s Taxes” shall not include any income, capital, stock, succession, transfer, franchise, gift, estate or inheritance taxes except to the extent that such taxes shall be imposed in lieu of any ad valorem taxes on the Premises or the property of which it is a part, nor shall “Landlord’s Taxes” include any assessments, charges, taxes, rents, fees, rates, levies, excises, license fees, permit fees, inspection fees, or other authorization fees or charges to the extent allocable to or caused by the development or installation of on- or off-site improvements or utilities necessary for the initial development or construction of the Building. If during the Term the present system of ad valorem taxation of property shall be changed so that, in lieu of or in addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or imposed on such property or Premises or on Landlord any kind or nature of federal, state, county, municipal or other governmental capital levy, income, sales, franchise, excise or similar tax, assessment, levy, charge or fee (as distinct from the federal and state income tax in effect on the Lease Commencement Date) measured by or based in whole or in part upon Building valuation, mortgage valuation, rents or any other incidents, benefits or measures of real property or real property operations, then any and all of such taxes, assessments, levies, charges and fees shall be included within the term Landlord’s Taxes. Landlord’s Taxes include reasonable expenses, including fees of attorneys, appraisers and other consultants, incurred in connection with any efforts to obtain abatements or reductions or to assure maintenance of Landlord’s Taxes for any tax fiscal year wholly or partially included in the Term, whether or not successful and whether or not such efforts involve filing of actual abatement applications or initiation of formal proceedings. If Landlord obtains any refunds of Landlord’s Taxes regarding periods for which Tenant has paid any portion thereof, Tenant shall be credited or shall receive its allocable portion of such refund.

          4.4.3 Additional Rent - Operating Expenses . Tenant covenants and agrees to pay to Landlord, as additional rent, an escalation charge calculated as Tenant’s Percentage Share of the increase in Landlord’s Operating Expenses (hereafter defined) for each of Landlord’s calendar years, or ratable portion thereof, included in the Lease Term above Base Operating Expenses (hereinafter defined). Tenant shall make estimated payments on account of increases in Operating Expenses in monthly installments on the first day of each month in advance, based on amounts reasonably estimated from time to time by Landlord, and

with a final payment adjustment between the parties within fourteen (14) days after Landlord provides Tenant a statement of Landlord’s Operating Expenses and Tenant’s Share of the increase of such Operating Expenses over Base Operating Expenses for Landlord’s most recent calendar year. “Base Operating Expenses” as used herein means the amount of Operating Expenses for the Base Operating Expense Year. This section shall survive the expiration or earlier termination of this Lease.

          4.4.4 Landlord’s Operating Expenses – Definition . “Landlord’s Operating Expenses” means all costs paid or incurred in servicing, operating, managing, maintaining, and repairing the Property and the facilities and appurtenances thereto, including, without limitation, the costs of the following: (i) supplies, materials and total wage and labor costs and all costs and expenses of independent contractors paid or incurred on account of all persons engaged in the operation, maintenance, security, cleaning and repair of the Building and the land, facilities and appurtenances thereto, including social security, unemployment compensation, pension, vacation, sick pay and other so-called “fringe benefits”; (ii) services furnished generally to tenants of the Building by Landlord; (iii) utilities consumed and expenses incurred in the operation of the Property and the land, facilities and appurtenances thereto; (iv) casualty, liability, workmen’s compensation and all other insurance expenses (and the amount of any deductible in the event of an insured loss), all insurance to be in such amounts and insuring against such risks as Landlord may, in its sole discretion from time to time decide; (v) snow removal, planting, landscaping, grounds and parking operation, maintenance and repair expenses and any charges payable pursuant to any declarations or recorded covenants; (vi) management fees which do not exceed three percent (3%) of the Property’s gross receipts (or 4% of such amount in the event Landlord’s affiliate sells either the building located at 62 Forest Street, Marlborough, Massachusetts or the Property to an unaffiliated purchaser but does not sell the other property to such purchaser or its affiliates) and which does not exceed those fees customarily paid with respect to buildings in the area which are similar to the Building, and fees for required licenses or permits; (vii) rental or reasonable depreciation of equipment used in the operation of the Building and the land, facilities and appurtenances thereto, and personal property taxes assessed upon such equipment; and (viii) costs of operating any Building amenities including, without limitation, cafeterias and shower and locker facilities, provided, however, that Tenant’s contribution with respect to the cafeteria shall not exceed $1,150 per month ($13,800 per annum). In addition, if Landlord from time to time repairs or replaces any Building components, improvements or equipment or installs any new components, improvements or equipment to the Building (including without limitation energy conservation improvements or other improvements), then the cost of such items amortized over their reasonable life, together with an actual or imputed interest rate (at the level then being charged by institutional first mortgagees for new permanent first mortgage loans on buildings in the area which are similar to the Building) shall be included in Landlord’s Operating Expenses. Landlord’s Operating Expenses shall not include payments of principal, interest or other charges on mortgages or payments of any rent by Landlord on account of any ground lease of the land on which the Building is situated or any lease of the Building; costs of work or services for particular tenants separately reimbursable to Landlord by such tenants; advertising, marketing costs and leasing commissions; and costs of so-called leasehold improvements to rentable areas in the Building.

Notwithstanding anything to the contrary set forth in this Lease, Landlord’s Operating Expenses shall not include the following:

     (i) Bad debt expenses and interest, principal, points and fees on debts or amortization on any mortgage or other debt instrument encumbering the Property;

     (ii) Costs incurred by Landlord to the extent Landlord is reimbursed by insurance proceeds or is otherwise reimbursed;

     (iii) Depreciation, amortization and interest payments, except on equipment, materials, tools, supplies and vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord

might otherwise contract for with a third party, all as determined in accordance with generally accepted accounting principles, consistently applied, amortized over such item’s reasonably anticipated useful life;

     (iv) Advertising and promotional expenditures;

     (v) Marketing costs, including leasing commissions, attorneys’ fees (in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases and/or assignments), space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations and transactions with present or prospective tenants of the Building;

     (vi) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenants’ or other occupants’ improvements or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants and other occupants of the Building;

     (vii) Expenses in connection with services or other benefits which are not offered to Tenant or for which Tenant is charged directly;

     (viii) Costs incurred by Landlord due to the violation by Landlord or any tenant of the terms and conditions of any lease of space in the Building;

     (ix) Management fees paid or charged by Landlord in connection with the management of the Building to the extent such management fee is in excess of the management fee customarily paid or charged by landlords of comparable buildings in the vicinity of the Building;

     (x) Salaries and other benefits paid to the employees of Landlord to the extent customarily included in or covered by a management fee, provided that in no event shall Landlord’s Operating Expenses include salaries and/or benefits attributable to personnel above the level of Building manager;

     (xi) Rent for any office space occupied by Building management personnel to the extent the size or rental rate of such office space exceeds the size or fair market rental value of office space occupied by management personnel of comparable buildings in the vicinity of the Building;

     (xii) Amounts paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Building to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis;

     (xiii) Landlord’s general corporate overhead and general administrative expenses;

     (xiv) Any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord;

     (xv) Services provided, taxes attributable to and costs incurred in connection with the operation of any retail, restaurant (other than the cafeteria) and garage operations for the Building, and any replacement garages or parking facilities and any shuttle services;

     (xvi) Costs incurred in connection with upgrading the Building to comply with laws, rules, regulations and codes in effect prior to the Lease Commencement Date;

     (xvii) All assessments and premiums which are not specifically charged to Tenant because of what Tenant has done, which can be paid by Landlord in installments, shall be paid by Landlord in the maximum

number of installments permitted by law and not included as Landlord’s Operating Expenses except in the year in which the assessment or premium installment is actually paid;

     (xviii) Costs arising from the negligence or willful misconduct of Landlord or other tenants or occupants of the Building or their respective agents, employees, licensees, vendors, contractors or providers of materials or services;

     (xix) Costs arising from Landlord’s charitable or political contributions;

     (xx) Costs arising from latent defects or repair thereof;

     (xxi) Costs associated with the operation of the business of the entity which constitutes Landlord as the same are distinguished from the costs of operation of the Building, including accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs incurred in connection with any disputes between Landlord and its employees, between Landlord and Building management, or between Landlord and other tenants or occupants; and

     (xxii) Costs for capital improvements, capital repairs and any other capital costs as determined under generally accepted accounting principles except for capital improvements and capital repairs required by any laws not in existence and not in effect as of the Lease Commencement Date and capital repairs to the roof, in either of which case such costs shall be capitalized and amortized over their useful life determined in accordance with generally accepted accounting principles.

     4.5 Allocation of Certain Operating Expenses . If at any time during the Term, Landlord provides services only with respect to portions of the Building which include the Premises or incurs other Operating Expenses allocable to portions of the Building which include the Premises alone, then such Operating Expenses shall be charged entirely to those tenants, including Tenant, of such portions, notwithstanding the provisions hereof referring to Tenant’s Percentage Share. If, during any period for which Landlord’s Operating Expenses are being computed (including the Base Operating Expense Year), less than all of the Building is occupied by tenants, or if Landlord is not supplying all tenants with the services being supplied hereunder, Operating Expenses shall be reasonably estimated and extrapolated by Landlord to determine the Operating Expenses that would have been incurred if the Building were fully occupied for such year and such services were being supplied to all tenants, and such estimated and extrapolated amount shall be deemed to be Landlord’s Operating Expenses for such period. In the event Landlord incurs costs or expenses associated with or relating to separate items or categories of Landlord’s Operating Expenses which were not part of Landlord’s Operating Expenses during the entire calendar year 2008, and such item is a standard or recurring expense, Landlord’s Operating Expenses for calendar year 2008 shall be deemed increased by the amount Landlord would have incurred during the calendar year 2008 with respect to such costs and expenses had such separate items or categories of Landlord’s Operating Expenses been included in Landlord’s Operating Expenses during the entire calendar year 2008. As an illustration of the foregoing, any additional annual premiums resulting from new forms of insurance, any increase in insurance limits or coverage in any year after calendar year 2008 shall be deemed to be included in Landlord’s Operating Expenses for calendar year 2008.

     4.6 Electricity . The Premises shall be separately metered, and Tenant shall pay, as Additional Rent, all costs of its electricity usage directly to the appropriate utility company, and shall provide to Landlord, at Landlord’s request, proof of such payments.

     4.7 Audit . At the request of Tenant at any time within sixty (60) days after Landlord delivers Landlord’s statement of Operating Expenses to Tenant, Tenant (at Tenant’s expense) shall have the right to

examine Landlord’s books and records applicable to Landlord’s Operating Expenses. Such right to examine the records shall be exercisable: (i) upon reasonable advance notice to Landlord and at reasonable times during Landlord’s business hours; (ii) only during the 120-day period following Tenant’s receipt of Landlord’s statement of the actual amount of Landlord’s Operating Expenses for the applicable calendar year; and (iii) not more than once each calendar year. In the event (a) an audit of Landlord’s Operating Expenses for such year, conducted by an independent certified public accountant retained by Tenant or an auditing firm approved by Landlord for such purpose, indicates that certain items were improperly included in Landlord’s Operating Expenses and resulted in an overcharge of 5% or more to Tenant and (b) an independent certified public accountant retained by Landlord at Landlord’s expense agrees with the results of said audit, then Landlord shall refund the overage to Tenant and pay the reasonable cost of the audit.

ARTICLE V

ADDITIONAL COVENANTS

     5.1 Tenant’s Covenants . Tenant covenants that at all times during the Term and such further time as Tenant (or persons claiming by, through or under it) occupies the Premises or any part thereof, it shall perform and observe the following conditions, all at its sole cost and expense:

          5.1.1 Utilities and Services . Tenant shall provide and pay all charges and deposits for gas, water, sewer, electricity, and other energy, utilities and services if and to the extent used or consumed on the Premises and not included in the Operating Expenses of the Building during the Term which now or hereafter separately serve the Premises, or are not expressly to be provided by Landlord elsewhere hereunder. It is understood and agreed that except as may be expressly provided hereunder, Landlord shall be under no obligation whatsoever to furnish any such services to the Premises, and shall not be liable for (nor suffer any reduction in any rent on account of) any interruption or failure in the supply of the same.

          5.1.2 Maintenance . Tenant shall maintain, repair and secure the Premises, all improvements and appurtenances thereto, all access areas thereof, and all utilities, facilities, installations and equipment used in connection therewith, and shall pay all costs and expenses of so doing, keeping the Premises in good order, repair and condition, reasonable wear and tear, and damage by casualty and taking (to the extent provided in Article VI only) excepted. Tenant will maintain a preventive maintenance contract providing for the regular inspection and maintenance of the supplemental air conditioning system and the UPS system exclusively serving the Premises with an appropriate contractor or contractors, such contracts and contractors to be reasonably approved by Landlord. At Landlord’s request, Tenant shall provide copies of the service contracts and service logs. Without limiting the generality of the foregoing, Tenant shall keep all interior walls, floor surfaces and coverings, glass, windows, doors, partitions, all fixtures and equipment, utilities, pipes and drains and other installations used in connection with the Premises in such good order, repair and condition.

          5.1.3 Use and Compliance with Law . Tenant shall use the Premises continuously and uninterruptedly only for the Permitted Uses, and then only as permitted under federal, state, and local laws, regulations and orders applicable from time to time, including without limitation municipal bylaws, land use and zoning laws, environmental laws and regulations (including all laws and regulations regulating the production, use, and disposal of any pollutant or toxic or hazardous material), and occupational health and safety laws, and shall procure all approvals, licenses and permits necessary therefor, in each case giving Landlord true and complete copies of the same and all applications therefor. Tenant shall promptly comply with all present and future laws applicable to Tenant’s use of the Premises or Tenant’s signs thereon, foreseen or unforeseen, and whether or not the same necessitate structural or other extraordinary changes or improvements to the Premises or interfere with its particular use and enjoyment of the Premises, and shall keep the Premises equipped with adequate safety appliances and comply with all requirements reasonable in

light of the use Tenant is making of the Premises. If Tenant’s use of the Premises results in any increase in the premium for any insurance carried by Landlord, then upon Landlord’s notice to Tenant of such increase Tenant shall pay the same to Landlord upon demand as additional rent. Tenant shall, in any event, indemnify, save Landlord harmless, and defend from all loss, claim, damage, cost or expense (including reasonable attorneys’ fees of counsel of Landlord’s choice against whom Tenant makes no reasonable objection) on account of Tenant’s failure so to comply with the obligations of this Section (paying the same to Landlord upon demand as Additional Rent). Tenant’s obligations in the preceding sentence shall survive the expiration or earlier termination of this Lease. Tenant shall conform to the Rules and Regulations from time to time promulgated by Landlord for the operation, care and use of the common areas of the Building and appurtenant improvements and areas in which Tenant is granted rights of use by the terms of this Lease. Notwithstanding the foregoing or any other provision of this Lease, however, Tenant shall not be responsible for compliance with any such laws, regulations or the like requiring (i) structural repairs or modifications or (ii) repairs or modifications to the utility or building service equipment or (iii) installation of new building service equipment, such as fire detection or suppression equipment, unless such repairs, modifications, or installations shall (a) be due to Tenant’s particular manner of use of the Premises (as opposed to dry laboratory use and office use generally), or (b) be due to the negligence or willful misconduct of Tenant or any agent, employee or contractor of Tenant.

          5.1.4 Liens and Encumbrances . Tenant shall not create or suffer, shall keep Landlord’s property, the Premises and Tenant’s leasehold free of, and shall promptly remove and discharge, any lien, notice of contract, charge, security interest, mortgage or other encumbrance which arises for any reason, voluntarily or involuntarily, as a result of any act or omission by Tenant or persons claiming by, through or under Tenant, or any of their agents, employees or independent contractors, including without limitation liens which arise by reason of labor or materials furnished or claimed to have been furnished to Tenant or for the Premises.

          5.1.5 Waiver and Indemnity .

               5.1.5.1 Waiver . Tenant releases Landlord, Landlord’s mortgagee, Landlord’s property manager and their respective agents and employees from, and waives all claims for, damage or injury to person or property and loss of business sustained by Tenant and resulting from the Building or the Premises or any part thereof or any equipment therein becoming in disrepair, or resulting from any accident in or about the Building. This paragraph shall apply particularly, but not exclusively, to flooding, damage caused by Building equipment and apparatus, water, snow, frost, steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler devices. Without limiting the generality of the foregoing, Tenant waives all claims and rights of recovery against Landlord, its property manager and their respective agents and employees for any loss or damage to any property of Tenant, which loss or damage is insured against, or required to be insured against, by Tenant pursuant to Section 6.1 hereof, whether or not such loss or damage is due to the fault or negligence of Landlord, its property manager or their respective agents or employees, and regardless of the amount of insurance proceeds collected or collectible under any insurance policies in effect.

               5.1.5.2 Indemnity . Tenant agrees to indemnify, defend and hold harmless Landlord, Landlord’s mortgagee, Landlord’s property manager, members, officers and lenders and their respective agents and employees, from and against any and all claims, demands, actions, liabilities, damages, costs and expenses (including attorneys’ fees), for injuries to any persons and damage to or theft or misappropriation or loss of property occurring in or about the Building and arising from the use and occupancy of the Premises or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises (including, without limitation, any alteration by Tenant) or from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed under this Lease or due to any other act or omission of Tenant, its subtenants, assignees, invitees,

employees, contractors and agents. Without limiting the foregoing, Tenant shall indemnify, defend and hold Landlord, Landlord’s property manager and Landlord’s mortgagee harmless from any claims, liabilities, damages, costs and expenses arising out of the use or storage of hazardous or toxic materials in the Building by Tenant. If any such proceeding is filed against Landlord or any such indemnified party, Tenant agrees to defend Landlord or such party in such proceeding at Tenant’s sole cost by legal counsel reasonably satisfactory to Landlord, if requested by Landlord.

The provisions of Section 5.1.5 shall survive the expiration or earlier termination of this Lease.

          5.1.6 Landlord’s Right to Enter . Landlord and its agents or employees may upon reasonable notice enter the Premises during business hours (and in case of emergency at any time) for the purpose of performing repairs or replacements, or exercising any of the rights reserved to Landlord herein, or securing or protecting Landlord’s property or the Premises, or removing any alterations or additions not consented to by Landlord, and similarly upon reasonable notice may show the Premises to prospective purchasers and lenders, and during the last 12 months of the Term to prospective tenants, and may keep affixed in suitable places notices for letting and selling. Except in case of emergency, Landlord shall be subject in entering the Premises to reasonable security conditions, if any, set forth by Tenant in writing to Landlord.

          5.1.7 Personal Property at Tenant’s Risk . Landlord’s obligation or election to repair or restore the Premises under this Lease shall not include the repair, restoration or replacement of the furniture or any other personal property owned by or in the possession of Tenant, all of which shall be at Tenant’s sole risk.

          5.1.8 Overloading, Nuisance, Etc. . Tenant shall not, either with or without negligence, injure, overload, deface, damage or otherwise harm Landlord’s property, the Premises or any part or component thereof; commit any nuisance; permit the emission of any hazardous agents or substances; allow the release or other escape of any biologically or chemically active or other hazardous substances or materials so as to impregnate, impair or in any manner affect, even temporarily, any element or part of Landlord’s property or the Premises or allow the storage or use of such substances or materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such substances or materials; nor shall Tenant bring onto the Premises any such materials or substances except to use in the ordinary course of Tenant’s business, and then only after written notice is given to Landlord of the identity of such substances or materials; permit the occurrence of objectionable noise or odors; or make, allow or suffer any waste whatsoever to Landlord’s property or the Premises. Landlord may inspect the Premises from time to time, and Tenant will cooperate with such inspections. Without limitation, “hazardous substances” shall include such substances described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601 et seq. and the regulations adopted thereunder, and “hazardous materials” shall include such materials described in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et seq.; in the Massachusetts Hazardous Waste Management Act, as amended, M.G.L. Chapter 21, and oil and hazardous materials as defined in the Massachusetts Oil and Hazardous Material Release Prevention Act, as amended, M.G.L., Chapter 21E, and the regulations adopted under these acts. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s best knowledge and belief regarding the presence or absence of hazardous materials and substances on the Premises or Property. In all events, Tenant shall indemnify Landlord, Landlord’s property manager, and Landlord’s mortgagees as provided in Section 5.1.5 from any liability arising from or related to the release or threatened release of hazardous materials and substances on the Premises. (At the request of Landlord, Tenant will from time to time confirm such indemnity to mortgagees directly with such mortgagees.) The provisions of this Section 5.1.8 shall survive the expiration or earlier termination of this Lease.

          5.1.9 Yield Up . At the expiration or earlier termination of this Lease, Tenant (and all persons claiming by, through or under it) shall, without the necessity of any notice, surrender the Premises (including all Tenant Work, and all replacements thereof, except such additions, alterations and other Tenant Work as Landlord may direct to be removed, which shall be removed by Tenant and the Premises restored to their pre-existing condition) and all keys to the Premises, remove all of its trade fixtures and personal property not bolted or otherwise attached to the Premises (and such trade fixtures and other property bolted or attached to the Premises as Landlord may direct), and all Tenant’s signs wherever located, in each case repairing damage to the Premises and Property which results in the course of such removal and restoring the Premises and Property to a fully functional and tenantable condition (including the filling of all floor holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in good order, repair and condition, reasonable wear and tear and damage by casualty and taking (to the extent provided in Article VI only) excepted. Any property not so removed within thirty (30) days after the expiration or termination of the Lease shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as Landlord shall determine, and Tenant shall pay to Landlord the entire cost and expense incurred by it in effecting such removal and disposition and in making any incidental repairs to the Premises.

          5.1.10 Holding Over . If Tenant (or anyone claiming by, through or under Tenant) shall remain in possession of the Premises or any part thereof after the expiration or earlier termination of this Lease with respect to any portion of the Premises without any agreement in writing executed with Landlord, the person remaining in possession shall be deemed a tenant at sufferance, Tenant shall thereafter pay Annual Fixed Rent at one hundred fifty percent (150%) of the amount payable for the twelve-month period immediately preceding such expiration or termination and with all additional rent payable and covenants of Tenant in force as otherwise herein provided, and Tenant shall be liable to Landlord for all damages, including consequential damages, of such breach. After acceptance of the full amount of such rent by Landlord the person remaining in possession shall be deemed a tenant from month-to-month, terminable at any time by unilateral action of Landlord or Tenant, at such rent and otherwise subject to and having agreed to perform all of the provisions of this Lease, but Landlord will not be deemed to have relinquished any claims for damages.

          5.1.11 Assignment, Subletting .

               (a) Tenant shall not, without the prior written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed: (i) assign, convey, mortgage or otherwise transfer this Lease or any interest hereunder, or sublease the Premises, or any part thereof, whether voluntarily or by operation of law; or (ii) permit the use of the Premises or any part thereof by any person other than Tenant and its employees. Any such transfer, sublease or use described in the preceding sentence (herein referred to as a “Transfer”, which term shall include any reassignment of this Lease after any initial assignment of this Lease by the Tenant named herein, or any subsequent reassignment and any assignment of any sublease with respect to all or any portion of the Premises and any sub-subleasing of any portion of the Premises previously subleased) occurring without the prior written consent of Landlord shall be void and of no effect. Landlord’s consent to any Transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future Transfer. Landlord’s consent to any Transfer or acceptance of rent from any party other than Tenant shall not release Tenant from any covenant or obligation under this Lease. Landlord may require as a condition to its consent to any assignment of this Lease that the assignee execute an instrument in which such assignee assumes the obligations of Tenant hereunder. For the purposes of this paragraph, the transfer (whether direct or indirect) of all or a majority of the capital stock in a corporate Tenant (other than the shares of the capital stock of a corporate Tenant whose stock is publicly traded), or the merger, consolidation or reorganization of such Tenant, or the transfer of all or any general partnership interest in any partnership, or the transfer of any membership interest in any limited liability company, shall be considered a Transfer.

               (b) If Tenant desires the consent of Landlord to a transfer, Tenant shall submit to Landlord, at least thirty (30) days prior to the proposed effective date of the Transfer, a written notice which includes such information as Landlord may require about the proposed Transfer and the transferee, including: (i) the name, business and financial condition of the prospective transferee, (ii)n a true and complete copy of the proposed instrument containing all of the terms and condition of such transfer, (iii) a written agreement of the assignee, subtenant or licensee, in recordable form reasonably approved by Landlord, agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease, and (iv) such other factors as Landlord may reasonably deem relevant. If Landlord does not terminate this Lease, in whole or in part, pursuant to Section 5.1.11(c), Landlord shall not unreasonably withhold its consent to any assignment or sublease. Landlord shall not be deemed to have unreasonably withheld its consent if, in the judgment of Landlord: (i) the transferee is of a character or engaged in a business which is not in keeping with the standards or criteria used by Landlord in leasing the Building; (ii) the financial condition of the transferee is such that it may not be able to perform its obligations in connection with this Lease; (iii) the purpose for which the transferee intends to use the Premises or portion thereof is in violation of the terms of this Lease or the lease of any other tenant in the Building; (iv) the transferee is a tenant of the Building; (v) consent to the Transfer would violate any provisions of a Superior Mortgage, or (vi) any other basis which Landlord reasonably deems appropriate. If Landlord wrongfully withholds its consent to any Transfer, Tenant’s sole and exclusive remedy therefor, shall be to seek specific performance of Landlord’s obligation to consent to such Transfer. Tenant shall pay to Landlord any attorneys’ fees and expenses incurred by Landlord in connection with any proposed Transfer, whether or not Landlord consents to such Transfer, which fees shall not exceed $1,000.

               (c) Other than with respect to a Transfer permitted by subsection (d) below, Landlord shall have the right to terminate this Lease as to that portion of the Premises covered by a Transfer. Landlord may exercise such right to terminate by giving notice to Tenant at any time within thirty (30) days after the date on which Tenant has furnished to Landlord all of the items required under Section 5.1.11(b) above. If Landlord exercises such right to terminate, Landlord shall be entitled to recover possession of, and Tenant shall surrender such portion of, the Premises (with appropriate demising partitions erected at the expense of Tenant) on the later of (i) the effective date of the proposed Transfer, or (ii) sixty (60) days after the date of Landlord’s notice of termination. Notwithstanding the foregoing, if Landlord elects to terminate this Lease as to that portion of the Premises covered by a Transfer, Tenant may elect to withdraw its request for consent to the Transfer within five (5) business days of receipt of Landlord’s notice of election to terminate. In the event Landlord exercises such right to terminate, Landlord shall have the right to enter into a lease with the proposed transferee without incurring any liability to Tenant on account thereof.

               (d) Notwithstanding the prohibitions set forth in subsection (a) above, Tenant may, without Landlord’s consent, assign its interest in this Lease or sublet the Premises to a corporation or other entity which shall (i) control, be under the control of, or be under common control with, Tenant (the term “control” as used herein shall mean ownership of more than 50% of the outstanding voting stock of a corporation, or other equivalent equity and control interest if Tenant is not a corporation), or (ii) result from the merger or consolidation of or into Tenant or be the purchaser of all or substantially all of Tenant’s assets, so long as (A) the principal purpose of such assignment or sublease is not the acquisition of Tenant’s interest in this Lease (except if such assignment or sublease is made for a valid intracorporate business purpose to an entity described in clause (iii) above) and is not made to circumvent the provisions of this section, (B) the Tenant named herein shall remain liable for all obligations of Tenant under this Lease, (C) prior to such assignment, such assignee shall enter into a written agreement with Landlord agreeing to be directly bound to Landlord under the terms of this Lease and (D) Tenant provides at least thirty (30) days’ prior written notice to Landlord of such assignment or sublease and copies of any relevant documentation relating to same.

               (e) In no event shall any Transfer release or relieve Tenant from its obligations to fully observe or perform all of the terms, covenants and conditions of this Lease on its part to be observed or performed. It is agreed that the liabilities and obligations of Tenant hereunder are enforceable either before, simultaneously with, or after proceeding against any assignee, sublessee or other transferee of Tenant. Further, Tenant agrees that the amount of any rent or other payment for the use or occupancy of all or any part of the Premises, by sublease, license, assignment of this Lease, or otherwise, shall not depend, in whole or in part, on the income or profits derived by any person or entity from the Premises, other than an amount based on a fixed percentage or percentages of gross receipts or sales.

               (f) Notwithstanding any transfer of this Lease, Tenant’s (and any guarantor’s) liability to Landlord shall in all events remain direct and primary. Any transferee of all or a substantial part of Tenant’s interest in the Premises shall be deemed to have agreed directly with Landlord to be jointly and severally liable with Tenant for the performance of all of Tenant’s covenants under this Lease; and such assignee shall upon request execute and deliver such instruments as Landlord reasonably requests in confirmation thereof (and agrees that its failure to do so shall be subject to the default provisions hereof). Landlord may collect rent and other charges from such transferee (and upon notice such transferee shall pay directly to Landlord) and apply the net amount collected to the rent and other charges herein reserved, but no transfer shall be deemed a waiver of the provisions of this Section, or the acceptance of the transferee as a tenant, or a release of Tenant or any guarantor from direct and primary liability for the performance of all of the covenants of this Lease. The consent by Landlord to any transfer shall not relieve Tenant from the obligation of obtaining the express consent of Landlord to any modification of such transfer or a further assignment, subletting, license or occupancy; nor shall Landlord’s consent alter in any manner whatsoever the terms of this Lease, to which any transfer at all times shall be subject and subordinate. The breach by Tenant of any covenant in this Section shall be a default for which there is no cure period.

     5.2 Landlord’s Covenants .

          5.2.1 Building Services . Landlord shall furnish the services and utilities described in this Section 5.2. Tenant may obtain additional services and utilities from time to time if the same are obtainable by Landlord upon reasonable advan