OFFICE LEASE

 

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                                                                   Exhibit 10.20

 

                                  OFFICE LEASE

 

 

                                 by and between

 

 

                     MARLBOROUGH CAMPUS LIMITED PARTNERSHIP

                                    as landlord

 

                                       and

 

                                3COM CORPORATION

                                    as tenant

 

                                  OFFICE LEASE

 

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OFFICE LEASE.............................................................................1

 

ARTICLE 1   PREMISES, BUILDING, PROJECT, AND COMMON AREAS.................................3

     1.1     The Premises.................................................................3

     1.2     The Building and The Project.................................................4

     1.3     Common Areas.................................................................4

     1.4     Furniture....................................................................6

     1.5     Card Key Access..............................................................6

 

ARTICLE 2   LEASE TERM....................................................................7

     2.1     Lease Term...................................................................7

     2.2     Option to Extend.............................................................7

 

ARTICLE 3   BASE RENT.....................................................................8

     3.1     Base Rent....................................................................8

 

ARTICLE 4   ADDITIONAL RENT...............................................................8

     4.1      General Terms................................................................8

     4.2     Definitions of Key Terms Relating to Additional Rent.........................9

     4.3     Allocation of Direct Expenses...............................................12

     4.4     Calculation and Payment of Additional Rent..................................13

     4.5     Taxes and Other Charges for Which Tenant Is Directly Responsible............14

     4.6     Landlord's Books and Records................................................15

     4.7     Tenant's Electricity Cost...................................................15

     4.8     Additional Rent for Additional Premises.....................................15

 

ARTICLE 5   USE OF PREMISES..............................................................16

     5.1     Permitted Use...............................................................16

     5.2     Prohibited Uses.............................................................16

     5.3     CC&Rs.......................................................................16

     5.4     Condition of Premises.......................................................17

     5.5     Demising Plan...............................................................17

     5.6     Rules and Regulations.......................................................18

 

ARTICLE 6   SERVICES AND UTILITIES.......................................................18

     6.1     Standard Tenant Services....................................................18

     6.2     Requirements of Tenant......................................................19

     6.3     Interruption of Use.........................................................19

 

ARTICLE 7   REPAIRS......................................................................20

     7.1     Landlord's Obligations......................................................20

     7.2     Tenant's Obligations........................................................21

 

ARTICLE 8   ADDITIONS AND ALTERATIONS....................................................21

     8.1     Landlord's Consent to Alterations...........................................21

     8.2     Manner of Construction......................................................22

     8.3     Payment for Improvements....................................................23

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     8.4     Construction Insurance......................................................23

     8.5     Landlord's Property.........................................................23

 

ARTICLE 9   COVENANT AGAINST LIENS.......................................................24

 

ARTICLE 10 INSURANCE....................................................................24

     10.1    Indemnification and Waiver..................................................24

     10.2    Tenant's Compliance With Landlord's Fire and Casualty Insurance.............25

     10.3    Tenant's Insurance..........................................................25

     10.4    Form of Policies............................................................26

     10.5    Subrogation.................................................................26

     10.6    Landlord's Insurance........................................................26

 

ARTICLE 11 DAMAGE AND DESTRUCTION.......................................................27

     11.1    Repair of Damage by Landlord................................................27

     11.2    Landlord's Option to Repair.................................................28

     11.3    Tenant's Option to Terminate................................................29

     11.4    Waiver of Statutory Provisions..............................................29

 

ARTICLE 12 NON-WAIVER...................................................................29

 

ARTICLE 13 CONDEMNATION.................................................................29

     13.1    Condemnation................................................................29

     13.2    Tenant's Right to Award.....................................................30

 

ARTICLE 14 ASSIGNMENT AND SUBLETTING....................................................30

     14.1    Transfers...................................................................30

     14.2    Landlord's Consent..........................................................31

     14.3    Transfer Premium............................................................32

     14.4    Landlord's Option as to Subject Space.......................................33

     14.5    Effect of Transfer..........................................................33

     14.6    Occurrence of Default.......................................................34

     14.7    Non-Transfers...............................................................34

 

ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES...............35

     15.1    Surrender of Premises.......................................................35

     15.2    Removal of Tenant Property by Tenant........................................35

 

ARTICLE 16 HOLDING OVER.................................................................35

     16.1    Interim Premises............................................................35

     16.2    Additional Premises.........................................................36

     16.3    Premises....................................................................36

 

ARTICLE 17 ESTOPPEL CERTIFICATES........................................................37

 

ARTICLE 18 SUBORDINATION................................................................37

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ARTICLE 19 DEFAULTS: REMEDIES...........................................................38

     19.1    Events of Default...........................................................38

     19.2    Remedies Upon Default.......................................................39

     19.3    Subleases of Tenant.........................................................40

     19.4    No Relief From Forfeiture After Default.....................................40

     19.5    Efforts to Relet............................................................40

     19.6    Landlord Default............................................................40

 

ARTICLE 20 COVENANT OF QUIET ENJOYMENT..................................................41

 

ARTICLE 21 INTENTIONALLY OMITTED........................................................41

 

22.1 SATELLITE DISH.....................................................................41

     22.2    Indemnification.............................................................43

 

ARTICLE 23 SIGNS........................................................................43

 

ARTICLE 24 COMPLIANCE WITH LAW..........................................................44

 

ARTICLE 25 LATE CHARGES.................................................................45

 

ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT.........................45

     26.1    Landlord's Cure.............................................................45

     26.2    Tenant's Reimbursement......................................................46

 

ARTICLE 27 ENTRY BY LANDLORD............................................................46

 

ARTICLE 28 TENANT PARKING...............................................................47

 

ARTICLE 29   MISCELLANEOUS PROVISIONS....................................................48

     29.1    Terms; Captions.............................................................48

     29.2    Binding Effect..............................................................48

      29.3    No Air Rights...............................................................48

     29.4    Transfer of Landlord's Interest.............................................48

     29.5    Notice of Lease.............................................................48

     29.6    Landlord's Title............................................................48

     29.7    Relationship of Parties.....................................................48

     29.8    Application of Payments.....................................................49

     29.9    Time of Essence.............................................................49

     29.10   Partial Invalidity..........................................................49

     29.11   No Warranty.................................................................49

     29.12   Landlord Exculpation........................................................49

     29.13   Entire Agreement............................................................49

     29.14   Right to Lease..............................................................50

     29.15   Force Majeure...............................................................50

     29.16   Notices.....................................................................50

     29.17   Joint and Several...........................................................51

     29.18    Authority..................................................................51

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     29.19   Attorneys' Fees.............................................................51

     29.20   Governing Law...............................................................51

     29.21   Submission of Lease.........................................................52

     29.22   Brokers.....................................................................52

     29.23   Independent Covenants.......................................................52

     29.24   Project or Building Name and Signage........................................52

     29.25   Counterparts................................................................52

     29.26   Confidentiality.............................................................53

     29.27   Transportation Management...................................................53

     29.28   Building Renovations........................................................53

     29.29   No Violation................................................................53

     29.30   Communications and Computer Lines...........................................53

     29.31   Hazardous Substances........................................................54

     29.32   Development of the Project..................................................54

     29.33   No Consequential Damages....................................................55

     29.34   Waiver of Landlord's Lien...................................................55

 

29.35 COMPLIANCE WITH TIF AGREEMENT.....................................................55

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LIST OF EXHIBITS

 

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Exhibit A      Plan of the Premises (and labeling "Lab Areas")

Exhibit A-1    Plan for Loading Dock area in Building 2

Exhibit B      Plan of the Project identifying Buildings 1, 2, 3, and 4

Exhibit C      Furniture Inventory List

Exhibit C-1    Excluded Personal Property

Exhibit D      Rules and Regulations

Exhibit E-1    Form of Tenant Estoppel Certificate

Exhibit E-2    Form of Landlord Estoppel Certificate

Exhibit F      Plan of the Interim Premises

Exhibit G      Notice of Lease

Exhibit H      Plan of Additional Premises

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     This Office Lease (the "LEASE"), dated as of the date set forth in SECTION

1 of the Summary of Basic Lease Information (the "SUMMARY"), below, is made by

and between Marlborough Campus Limited Partnership, a Massachusetts limited

partnership ("LANDLORD"), and 3Com Corporation, a Delaware corporation

("TENANT").

 

SUMMARY OF BASIC LEASE INFORMATION

 

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     TERMS OF LEASE                               DESCRIPTION

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1.     Date:                                        November 26, 2002

 

2.    Premises

     (Article 1)

     2.1     Building:                             That certain four-story building located at 3Com Drive,

                                                 Marlborough, Massachusetts in the "Project," commonly referred

                                                 to in the Project as "BUILDING 2."

 

     2.2     Premises:                             Approximately 168,315 rentable square feet of space,

                                                  calculated per BOMA Standard Z65.1-1996 ("BOMA Standard")

                                                 comprising the entire Building, as further set forth in

                                                 EXHIBIT A to this Lease ("PREMISES").

 

     2.3     Interim Premises                      Approximately 5,621 rentable square feet of space, calculated

                                                 per BOMA Standard, comprising a portion of the first and

                                                  second floors of Building 1, as further set forth in EXHIBIT F

                                                 to this Lease ("INTERIM PREMISES").

 

     2.4     Project:                              The Building is part of that certain building complex (the

                                                 "PROJECT") consisting of four (4) buildings ( the "BUILDINGS")

                                                 comprising 530,895 rentable square feet of space, calculated

                                                 per BOMA Standard, and other improvements, as depicted on

                                                 EXHIBIT B and as further set forth in SECTION 1.2 of this Lease.

 

     2.5     Additional Premises                   Approximately _____ square feet of space, located in Building

                                                 4, as further set forth in EXHIBIT H to this Lease

                                                 ("ADDITIONAL PREMISES")

 

3.    Lease Term

     (Article 2)

 

     3.1     Length of Initial Term:               Approximately four (4) years.

 

     3.2     Lease Commencement Date:              The date Landlord acquires title to the Project

 

     3.3     Lease Expiration Date:                 11:59 p.m. EST on the last day of the month in which the fourth

                                                 (4th) anniversary of the Lease Commencement Date occurs, unless

                                                 sooner

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                                                 terminated pursuant to the provisions hereof.

 

     3.4     Option(s) to Extend                   Two options to extend for three (3) years each

 

4.    Base Rent (Article 3):

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                                                                     Monthly                Annual Rental Rate

                                             Annual                 Installment                 Per Rentable

        Lease Years                          Base Rent               of Base Rent                Square Foot

        -----------                          ---------               ------------                -----------

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            1-4                             $ 3,534,615              $ 294,551.25                  $ 21.00

    First Option Term (5-7)                 $ 3,871,245              $ 322,603.75                  $ 23.00

   Second Option Term (8-10)                $ 4,207,875              $ 350,656.25                  $ 25.00

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5.    Base Year                                    Calendar year 2003; it being understood that in calculating

     (Article 4):                                 Tax Expenses for the Base Year, Landlord shall use one-half of

                                                 the taxes for the fiscal year from July 1, 2002 to June 30, 2003

                                                 and one-half of the taxes for the fiscal year from July 1,2003

                                                 to June 30, 2004.

 

6.    Tenant's Share                               31.70% as of the Effective Date, subject to adjustment in

     (Article 4):                                 accordance with SECTION 4.3.

 

7.    Permitted Use                                Tenant shall use the Premises for general office use,

     (Article 5):                                  including but not limited to research and development, sales,

                                                 training.

 

8.    Security Deposit                             None.

     (Article 21):

 

9.    Parking                                       Tenant shall have non-exclusive use of 550 parking spaces, as

     (Article 28):                                more particularly set forth in ARTICLE 28.

 

10.   Address of Tenant                            See SECTION 29.16 of this Lease.

     (Section 29.16):

 

11.   Address of Landlord                          See SECTION 29.16 of this Lease.

     (Section 29.16):

 

12.   Broker(s)                                    None

     (Section 29.22):

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                                    ARTICLE 1

 

                  PREMISES, BUILDING, PROJECT, AND COMMON AREAS

 

     1.1    THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby

leases from Landlord the premises set forth in SECTION 2.2 of the Summary (the

"PREMISES") and shown on EXHIBIT A, attached hereto. The Premises consist of all

space within Building 2 (the "Building"), save and except only the Loading Dock

(defined in SECTION 5.5, below), and shall be deemed to be the number of

rentable square feet set forth in SECTION 2.2 of the Summary, subject to

adjustment in accordance with SECTION 4.3, below. Tenant shall not have the

right to remeasure the Premises. The parties hereto agree that the lease of the

Premises is upon and subject to the terms, covenants and conditions (the "TCCS")

herein set forth, and Landlord and Tenant covenant as a material part of the

consideration for this Lease to keep and perform each and all of such terms,

covenants and conditions by it to be kept and performed and that this Lease is

made upon the condition of such performance. During the term of the Lease,

Tenant shall have access to Building 4, such use to be in common with other

tenants and occupants of the Project, either (at Landlord's option): (i) through

Building 1 (via such floor and in such location(s) as shall be specified by

Landlord, in its reasonable discretion), or (ii) through an alternate, enclosed

weather-tight link, to be constructed by Landlord linking Building 2 and

Building 4 (directly or through the existing connector which links Building 1

and Building 4, and, in the event that Landlord elects to construct said link,

once said link is substantially complete and available for Tenant's use (which

use may be in common with other occupants of the Project), then Tenant shall not

longer have any right of access through Building 1 as set forth in clause (i)

above, and Landlord, at its option, may eliminate and/or prohibit Tenant's

access via the door referred to in SECTION 5.5(A), below). Tenant also

acknowledges that neither Landlord nor any agent of Landlord has made any

representation or warranty regarding the condition of the Premises, the Building

or the Project or with respect to the suitability of any of the foregoing for

the conduct of Tenant's business, except as specifically set forth in this

Lease. Landlord shall not be obligated to provide or pay for any improvement

work related to the improvement of the Premises except as expressly set forth in

SECTIONS 1.5 AND 5.5, below.

 

             1.1.1    INTERIM PREMISES. Notwithstanding anything to the contrary

contained herein, from the Commencement Date through the date which is sixty

(60) days after the Commencement Date (the "TRANSITION PERIOD"), the Premises

shall include the Interim Premises. On or before the last day of the Transition

Period, Tenant shall vacate the Interim Premises, leaving the same in broom

clean condition, and shall surrender the Furniture and the raised flooring

located in the Interim Premises on the Commencement Date to Landlord in the same

condition and repair as on the Lease Commencement Date, reasonable wear and tear

and damage by casualty excepted. Tenant shall remove from the Interim Premises

and other areas of Building 1, and shall repair and restore any damage to the

Interim Premises and/or Building 1 caused by such removal, on or before the

expiration of the Transition Period the items owned or leased by Tenant from

third parties as set forth on EXHIBIT C-1. Notwithstanding anything to the

contrary, Landlord shall have access to the PBX Room shown on EXHIBIT F at all

times during the Transition Period.

 

            1.1.2    TRANSITION PERIOD. During the Transition Period, Tenant

will, at its sole cost and expense, and subject to the provisions of ARTICLE 8,

separate Tenant's network cabling

 

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and telecommunications infrastructure in order to move all of Tenant's personnel

and equipment into the Premises, and to vacate the Interim Premises.

 

            1.1.3    ADDITIONAL PREMISES. Notwithstanding anything to the

contrary contained herein, commencing on the Commencement Date and continuing on

a month-to-month basis, terminable by Tenant at any time upon thirty (30) days

advance written notice to Landlord and terminable by Landlord effective at any

time after the first anniversary of the Commencement Date upon thirty (30) days

advance written notice to Tenant, the Premises shall include the Additional

Premises. Upon termination of this Lease with respect to the Additional

Premises, Tenant shall vacate the Additional Premises, leaving the same in broom

clean condition, and shall either: (i) relocate the Furniture located in the

Additional Premises on the Commencement Date to the Premises (to be surrendered

to Landlord at the expiration or earlier termination of the Lease), or (ii)

surrender the Furniture located in the Additional Premises on the Commencement

Date to Landlord in the same condition and repair as on the Lease Commencement

Date, reasonable wear and tear and damage by casualty excepted. Tenant shall

remove from the Additional Premises and other areas of Building 4, and shall

repair and restore any damage to the Additional Premises and/or Building 4

caused by such removal, on or before the expiration or earlier termination of

the Lease with respect to the Additional Premises the items owned or leased by

Tenant from third parties as set forth on EXHIBIT C-1. Landlord and Tenant agree

that the Additional Premises have not been used for the calculation of the

useable square footage contained in the Premises, but have been included in the

"load factor" in calculating the rentable square footage contained in the

Premises, and this method of calculation shall remain in effect for the one year

period commencing on the Lease Commencement Date. Landlord must give Tenant at

least forty-five (45) days notice prior to any recalculation of the size of the

Premises to include the Additional Space. Notwithstanding anything to the

contrary, Landlord shall have no obligation to provide any services, other than

standard Building system services for electric, mechanical and HVAC (which are

part of CAM), for the Additional Premises and Tenant shall at its sole cost and

expense provide janitorial services, as required.

 

     1.2    THE BUILDING AND THE PROJECT. The Building is part of a complex of

buildings located on the Property consisting of four (4) buildings and other

improvements. The term "PROJECT," as used in this Lease, shall mean (i) the

Building and the Common Areas (as such term is defined in SECTION 1.3 below),

(ii) the land (which is improved with landscaping, parking areas, access roads

and other improvements) upon which the Building and the Common Areas are located

as shown on the Project Site Plan, and (iii) the three other office buildings

(including without limitation, "BUILDING 1", "BUILDING 3" and "BUILDING 4")

located adjacent to the Building and the land upon which such adjacent office

buildings are located, all substantially as shown on the Project Site Plan

attached hereto as EXHIBIT B.

 

     1.3    COMMON AREAS. Tenant shall have the non-exclusive right to use in

common with Landlord and other tenants in the Project, and subject to the Rules

and Regulations (as defined in Section 5.6, below), those portions of the

Building and the Project which are provided, from time to time, for

non-exclusive use in common by Landlord, Tenant and any other tenants of the

Project (such areas, including without limitation parking areas, access roads

and sidewalks on the Project, whether or not shown on the Project Site Plan, and

common facilities within the Buildings, such as lobbies, corridors, stairwells,

elevators and restrooms, the Conference Facilities (as defined in Section 1.31,

below), Cafeteria (as defined in Section 1.3.2, below) and

 

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Fitness Center (as defined in Section 1.3.2, below), together with such other

portions of the Project designated to Tenant in writing by Landlord to be shared

by Landlord and certain tenants, are collectively referred to herein as the

"COMMON AREAS"). Landlord shall maintain and operate the Common Areas in a

manner consistent with Comparable Buildings (as defined in SECTION 6.1).

Landlord reserves the right to close temporarily or permanently, make

alterations or additions to, or change the location of elements of the Project

and the Common Areas, including, without limitation, the right to (a) make

changes in the location, size, shape and number of driveways, entrances, parking

spaces, parking areas, loading and unloading areas, ingress, egress, direction

of traffic, landscaped areas and walkways; (b) to close temporarily any of the

Common Areas for maintenance purposes so long as reasonable access to the

Premises remains available; (c) to add additional improvements to the Common

Areas; (d) to use the Common Areas while engaged in making additional

improvements, repairs or alterations to the Project, or any portion thereof; (e)

to do and perform such other acts and make such other changes in, to or with

respect to the Project, Building and Common Areas as Landlord may deem to be

appropriate; and (f) to remove areas from use as Common Areas; provided,

however, that Landlord's exercise of the foregoing rights shall not materially,

adversely interfere with Tenant's use and occupancy of the Premises or the

Common Areas, other than and excluding the Common Areas of Building 4, any or

all of which may, in Landlord's sole discretion, be closed temporarily or

permanently, or be withdrawn from Common Areas, subject only to the last two

sentences of SECTION 1.3.2. Notwithstanding anything to the contrary in this

SECTION 1.3, during the Lease Term no expansion of the rentable square feet of

space included within the Common Areas (whether or not in connection with future

development of the Project) or removal from service of rentable square feet

which was not part of the Common Areas as of the Lease Commencement Date shall

result in an increase in the load factor included within the calculation of the

size of the Premises for purposes of computing Tenant's Share.

 

            1.3.1    CONFERENCE AND TRAINING ROOMS. Subject to availability, and

prior reservation in accordance with any procedures implemented by Landlord and

provided in writing to Tenant and applied uniformly to all tenants, Tenant shall

have the right to use the meeting and training rooms and the auditorium located

in Building 4 (collectively, the "CONFERENCE FACILITIES") in common with

Landlord and other tenants of the Project, to the extent otherwise permitted by

Landlord. The use of the Conference Facilities shall be subject to such rules

and requirements as Landlord may establish and provide in writing to Tenant in

accordance with Section 5.6, below, and to all other provisions of this SECTION

1.3. Tenant shall have the right to use the Conference Facilities without any

additional charge (beyond Tenant's Share of Operating Expenses) so long as its

use does not exceed Tenant's Share of the available days per month, with

Landlord reserving the right to monitor and limit to Tenant's Share Tenant's

utilization during normal working hours (versus other hours) or business days

(versus holiday and/or weekend days), in its reasonable business judgment.

Notwithstanding any other provision in this Lease to the contrary, Landlord

reserves the right, upon written notice to Tenant, to eliminate Tenant's right

to use the Conference Facilities (or portions thereof) if Landlord leases,

assigns, or otherwise transfers or assigns Landlord's rights to use such

portions of the Conference Facilities to another party, provided, however, if

Landlord leases the Conference Facilities to a third party that is not required

to make the Conference Facilities available for use by Tenant, then the portion

of the Conference Facilities that are no longer available to Tenant as set forth

above, shall no longer be considered to be Common Areas, and Tenant's Share

shall be adjusted in accordance with SECTION 4.3, below.

 

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            1.3.2    CAFETERIA AND FITNESS CENTER. Tenant and its employees,

contractors, visitors and consultants shall have the right to use the cafeteria

(the "CAFETERIA") located in the Project so long as it is operational provided

such parties shall be responsible for payment of all charges for meals and other

items purchased at the cafeteria. Tenant and its employees, contractors and

consultants shall have access to and the right to use the fitness center (the

"FITNESS CENTER") located in the Project so long as it is operational provided

such parties shall be responsible for payment of all charges customarily charged

by Landlord (or the operator of the Fitness Center) for the use of the Fitness

Center (currently $20.00 per month, not to be increased for Tenant's employees

and contractors by more than five percent (5%) per year). The use of such

facilities by Tenant and/or its employees, contractors, visitors and consultants

shall be subject to compliance with the other provisions of this SECTION 1.3.

Landlord shall have the right to require that Tenant's employees sign customary

waivers of claims and comply with all safety and other procedures applicable to

use of the Fitness Center. Notwithstanding any other provision herein to the

contrary, Landlord reserves the right, upon written notice to Tenant, (a) to

eliminate Tenant's right to use the Cafeteria and Fitness Center if Landlord

transfers or assigns its rights to use those facilities to another party and (b)

to otherwise reduce, modify or terminate in whole or in part all or any such

services or access to the Cafeteria or Fitness Center. Landlord shall provide

not less than ninety (90) days prior written notice to Tenant if the fitness

facility will be closed or materially reduced in size. If Landlord discontinues

cafeteria service during the Term, Landlord shall provide an alternative fresh

food (including breakfast items, sandwiches, and salads, but not hot food) and

vending service (not necessarily including any seating area) at the Project

sufficient to reasonably accommodate Tenant's employees, contractors, visitors

and consultants located at the Project.

 

     1.4    FURNITURE. For no additional charge, Landlord hereby leases to Tenant

and Tenant hereby leases from Landlord those items of furniture situated in the

Premises (the "FURNITURE") and described on the inventory list attached hereto

as EXHIBIT C (the "INVENTORY LIST"). Landlord and Tenant acknowledge that Tenant

is currently using said Furniture and Tenants accepts the Furniture in its

"as-is" condition, without any representation or warranty by Landlord. LANDLORD

SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND/OR WARRANTIES, INCLUDING, WITHOUT

LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR

PURPOSE WITH RESPECT TO THE FURNITURE. During the Term of this Lease, Tenant

shall maintain and repair the Furniture as reasonably necessary; provided,

however, that Tenant shall be entitled to remove and store and/or reconfigure

the Furniture (e.g., cubicle density and design). Upon the expiration or earlier

termination of this Lease, Tenant shall surrender the Furniture to Landlord in

substantially the same condition and repair as on the Lease Commencement Date,

reasonable wear and tear and damage by casualty excepted; provided, however,

that Tenant shall not be required to relocate the Furniture to the same location

within the Premises (but shall relocate the Furniture to the Premises if it has

been stored outside the Premises) nor restore the Furniture to the configuration

and design as existed on the Lease Commencement Date. Any new or replacement

furniture purchased by Tenant and placed into service in the Premises during the

Lease Term shall remain the personal property of Tenant and shall not be

surrendered to Landlord on the expiration or earlier termination of this Lease.

 

     1.5    CARD KEY ACCESS. As of the Lease Commencement Date, the Premises are

equipped with a portion of the Project-wide card key access system, Tenant's use

of which shall

 

                                        6

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be subject to the Rules and Regulations (as defined in Section 5.6, below).

Within sixty (60) days after the Lease Commencement Date, or such longer time as

shall be reasonably required by Landlord (not to exceed six months after the

Lease Commencement Date), Landlord shall remove all equipment relating to the

Project-wide card key system from Building 2 (excluding the equipment which

pertains only to Building 2) and relocate the same outside the Premises at

Landlord's sole cost. At any time during the Lease Term, Tenant shall have the

right to separate the card key access system for the Premises from the system

for the remainder of the Project at Tenant's sole cost. Except as expressly

provided herein, Tenant shall not have access to those portions of the Building

not comprising the Common Areas or the Premises, which shall remain subject to

Landlord's sole and exclusive control. Nothing herein shall preclude Landlord

from accessing the Premises, subject to the requirements of ARTICLE 27, for

purposes of undertaking maintenance or repairs or as otherwise provided in this

Lease. Landlord makes no representations or warranties (AND HEREBY EXPRESSLY

DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY

WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF

MERCHANTABILITY) regarding the suitability of any key card access system for

Tenant's particular purposes. In no event shall Landlord be responsible or

liable to Tenant or its employees for any unauthorized entry upon the Premises

or for any failure of the access system to prevent such entry.

 

                                    ARTICLE 2

 

                                   LEASE TERM

 

     2.1    LEASE TERM. The TCCs of this Lease shall be effective as of the date

of this Lease as set forth in SECTION 1 of the Summary (the "EFFECTIVE DATE").

The initial term of this Lease (the "INITIAL TERM") shall be as set forth in

SECTION 3.1 of the Summary, shall commence on the date set forth in SECTION 3.2

of the Summary (the "LEASE COMMENCEMENT DATE"), and shall terminate on the date

set forth in SECTION 3.3 of the Summary (the "LEASE EXPIRATION DATE") unless

this Lease is sooner terminated as hereinafter provided. As used herein, "Lease

Term" shall refer to the Initial Term and to any Option Term(s) which have been

duly exercised.

 

     2.2    OPTION TO EXTEND. Provided Tenant is not in default under this Lease

(beyond applicable notice and cure periods) and has not been in default in the

payment of recurring monthly payments of Base Rent, AP Rent, Tenant's

Electricity Cost and/or Tenant's Share of the Estimated Excess (beyond

applicable notice and cure periods, as set forth in SECTION 19.1.1, below) under

this Lease more than three (3) times in the prior twelve month period, at the

time it exercises the option or at commencement of the applicable Option Term,

Tenant shall have the right and option to extend this lease ("Option to Extend")

for two additional option periods of three years each (each, an "Option Term")

upon the same terms and conditions herein set forth except that the Base Rent

shall be adjusted in accordance with SECTION 4 of the Summary. To exercise its

Option to Extend, Tenant must give Landlord notice in writing sent so as to be

received at least twelve (12) months but not more than eighteen (18) months

prior to the expiration of the initial Lease Term or the then current Option

Term, as applicable. At Landlord's election, Tenant's exercise of its Option(s)

shall be void and of no effect if Tenant is in default under this Lease (beyond

applicable notice and cure periods) or has been in default of any monetary

obligation (beyond applicable notice and cure periods) under this Lease more

than

 

                                        7

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three times in the prior twelve month period on the date it exercises its

Option(s) to Extend or on the expiration of the Lease Term or Option Term

immediately preceding such Option Term, as applicable. Notwithstanding anything

to the contrary, in no event shall Tenant be allowed to exercise an Option to

Extend if Tenant has assigned the Lease to a Transferee other than pursuant to

SECTION 14.7, below, or if the Tenant and/or its Affiliates are not in

possession of at least forty-five percent (45%) of the Premises (free of any

subleases, other than subleases pursuant to SECTION 14.7, below).

 

                                    ARTICLE 3

 

                                    BASE RENT

 

     3.1    BASE RENT. Commencing on the Lease Commencement Date, Tenant shall

pay, without prior notice or demand, to Landlord or Landlord's agent at the

management office of the Project, or, at Landlord's option, at such other place

as Landlord may from time to time designate in writing, by a check for currency

which, at the time of payment, is legal tender for private or public debts in

the United States of America, base rent ("BASE RENT") as set forth in SECTION 4

of the Summary, payable in equal monthly installments as set forth in SECTION 4

of the Summary in advance on or before the first day of each and every calendar

month during the Lease Term, without any setoff or deduction whatsoever, but

subject to abatement as expressly provided in SECTIONS 6.3, 11.1 AND 13.1, to

the extent applicable, and subject to adjustment in accordance with Section 4.3,

to the extent applicable. The Base Rent for the first full month of the Lease

Term shall be paid on the Commencement Date. If any Rent payment date (including

the Lease Commencement Date) falls on a day of the month other than the first

day of such month or if any payment of Rent is for a period which is shorter

than one month, the Rent for any fractional month shall accrue on a daily basis

for the period from the date such payment is due to the end of such calendar

month or to the end of the Lease Term at a rate per day which is equal to l/365

of the applicable annual Rent. All other payments or adjustments required to be

made under the TCCs of this Lease that require proration on a time basis shall

be prorated on the same basis.

 

                                     ARTICLE 4

 

                                 ADDITIONAL RENT

 

     4.1    GENERAL TERMS. In addition to paying the Base Rent specified in

ARTICLE 3 of this Lease, Tenant shall pay "TENANT'S SHARE" of the annual "DIRECT

EXPENSES," as those terms are defined in SECTIONS 4.2.6 and 4.2.2 of this Lease,

respectively, which are in excess of the amount of Direct Expenses applicable to

the "Base Year," as that term is defined in SECTION 4.2.1, below; provided,

however, that in no event shall any decrease in Direct Expenses for any Expense

Year below Direct Expenses for the Base Year entitle Tenant to any decrease in

Base Rent or any credit against sums due under this Lease. In addition to the

foregoing obligations, Tenant shall also pay "TENANT'S ELECTRICITY COST," as

defined in Section 4.7 of this Lease, separately from any increases in Direct

Expenses. Such payments by Tenant, together with any and all other amounts

payable by Tenant to Landlord pursuant to the TCCs of this Lease, are

hereinafter collectively referred to as the "ADDITIONAL RENT," and the Base Rent

and the Additional Rent are herein collectively referred to as "RENT." All

amounts due under this ARTICLE 4 as Additional

 

                                        8

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Rent shall be payable for the same periods and in the same manner as the Base

Rent. The obligations of Tenant to pay the Additional Rent provided for in this

ARTICLE 4 shall survive the expiration or earlier termination of the Lease for

such period of time as is required to reconcile the Estimated Excess and

Overpayment Amount of Direct Expenses pursuant to SECTION 4.4.1 hereof;

provided, however, that any other contingent or unliquidated contractual claims

of Landlord or Tenant (e.g., indemnity) shall survive the expiration or earlier

termination of this Lease only for so long as any applicable statute of

limitations would permit such actions under Massachusetts law.

 

     4.2    DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in this

ARTICLE 4, the following terms shall have the meanings hereinafter set forth:

 

            4.2.1         "BASE YEAR" shall mean the period set forth in SECTION

5 of the Summary.

 

            4.2.2         "DIRECT EXPENSES" shall mean "Operating Expenses" and

"Tax Expenses".

 

            4.2.3          "EXPENSE YEAR" shall apply only to Operating Expenses

and shall mean each calendar year in which any portion of the Lease Term falls,

through and including the calendar year in which the Lease Term expires,

provided that Landlord, upon notice to Tenant, may change the Expense Year from

time to time to any other twelve (12) consecutive month period, and, in the

event of any such change, Tenant's Share of Operating Expenses shall be

equitably adjusted for any Expense Year involved in any such change.

 

             4.2.4         "OPERATING EXPENSES" shall mean, except as otherwise

provided in this SECTION 4.2.4 or otherwise in this Lease, all expenses, costs

and amounts of every kind and nature which Landlord pays or accrues during any

Expense Year because of or in connection with the ownership, management,

maintenance, security, repair, replacement, restoration or operation of the

Project, or any portion thereof, subject to the allocation thereof as set forth

in SECTION 4.3, below. Without limiting the generality of the foregoing,

Operating Expenses shall specifically include any and all of the following: (i)

the cost of supplying utilities (excepting Tenant's Electricity Cost),

operating, repairing, maintaining, and renovating the utility, telephone, and

all other systems and equipment and components thereof of the Buildings and the

Project, and the cost of maintenance and service contracts in connection

therewith and payments under any equipment rental agreements; (ii) the cost of

all insurance carried by Landlord in connection with the Project and any

deductibles; (iii) the cost of landscaping the Project, or any portion thereof;

(iv) costs incurred in connection with repairs, replacements, resurfacing, and

sealing of the parking areas servicing the Project; (v) actual fees and other

costs including management fees (not to exceed three percent (3%) of gross

receipts, or, if payable to Landlord or an affiliate of Landlord, not to exceed

the lesser of three percent (3%) of gross receipts or the prevailing management

fees charged by third parties for Comparable Buildings), consulting fees, legal

fees and accounting fees in connection with the management, operation,

maintenance and repair of the Project; (vi) wages, salaries and other

compensation and benefits, including taxes levied thereon, of all persons

engaged in the operation, maintenance and security of the Project; provided,

however, that wages and/or benefits attributable to personnel above the level of

Project manager or Project engineer shall not be included in Operating Expenses;

and provided further,

 

                                        9

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if such persons are employees of Landlord or an affiliate of Landlord and also

work at projects other than the Property, such costs shall be allocated based on

the percentage of time spent at each project; (vii) the cost of janitorial,

alarm, security and other services, replacement of wall and floor coverings,

ceiling tiles and fixtures in Common Areas, maintenance and replacement of curbs

and walkways, repair to roofs and re-roofing; (viii) costs, fees, charges or

assessments imposed by, or resulting from any mandate imposed on Landlord by,

any federal, commonwealth, state or local government for fire and police

protection, trash removal, community services, or other services which are not

duplicative of "Tax Expenses" as that term is defined in SECTION 4.2.5, below;

(ix) any expenses incurred in repair, restoration or other work necessitated by

fire or other casualty to the extent of the deductible, and (x) any operating

expenses and/or deficits from the operation of the Fitness Facility and/or

Cafeteria. Parking lot expenses for resurfacing and replacement under SUBSECTION

4.2.4(iv), above, replacement of wall and floor covering and all roof repair and

resurfacing (including membrane) under SUBSECTION 4.2.4(vii), above, and all

other repairs or replacements and other costs incurred in connection with the

Project that are capital in nature under generally accepted accounting

principles shall be amortized (with interest at a commercially reasonable rate)

over the useful life of such items (determined in accordance with Treasury

Regulations) and the amortized portion and interest applicable to the respective

Expense Year shall be included in Operating Expenses.

 

      Notwithstanding anything in this SECTION 4.2.4 to the contrary, for

purposes of this Lease, Operating Expenses shall not, however, include the

following:

 

            (A) marketing costs, costs of leasing commissions, renovations,

     attorneys' fees and other costs and expenses incurred in connection with

     negotiations, disputes or litigation with present or prospective tenants or

     other occupants of the Project;

 

            (B) any expense resulting from the gross negligence or willful

     misconduct of Landlord, its agents, contractors or employees;

 

            (C) interest, principal, points and fees on debts or amortization on

     any mortgage or mortgages or any other debt instrument encumbering the

     Building or the Project;

 

             (D) the original costs of constructing the Building and the Project,

     any capital additions thereto and expenses incurred in converting any

     Common Areas to useable square feet intended for the exclusive use of other

     occupants of the Project, and depreciation of any of the foregoing

     expenses;

 

            (E) expenses to the extent Landlord will be reimbursed by another

     source (excluding Operating Expense reimbursements by tenants), including

     without limitation replacement of any items covered by warranties;

 

            (F) costs incurred to benefit (or resulting from) a specific tenant

     or items and services selectively supplied to any tenant other than Tenant

     (e.g., excess utilities);

 

            (G) expenses for the defense of Landlord's title to the Project;

 

            (H) expenses that are at Landlord's sole cost under SECTION 7.1;

 

                                       10

<Page>

 

            (I) charitable or political contributions;

 

            (J) expenses incurred to comply with governmental regulations

     (including without limitation all environmental laws and the Americans with

     Disabilities Act), court order, decree or judgment in effect prior to the

     Effective Date, except to the extent any noncompliance results from

     Tenant's use and occupancy of the Premises;

 

            (K) costs to correct any latent defects in the design, construction

     or equipment of the Building or the Project;

 

            (L) rental on ground leases or other underlying leases;

 

            (M) cost of the initial stock of tools and equipment for operation,

     repair and maintenance of the Building;

 

            (N) costs associated with maintaining Landlord's existence as a

     corporation or other legal entity; and

 

            (O) all electrical charges included in Tenant's Electricity Cost.

 

            4.2.5         TAXES.

 

                    4.2.5.1    "TAX EXPENSES" shall mean all federal, state,

commonwealth, county, or local governmental or municipal taxes, fees, charges or

other impositions of every kind and nature, whether general, special, ordinary

or extraordinary, (including, without limitation, real estate taxes, general and

special assessments, transit taxes, leasehold taxes or taxes based upon the

receipt of rent, measured as if the Project were the only property owned by

Landlord, including gross receipts, service tax, value added tax or sales taxes

applicable to the receipt of rent or services provided herein, and unless

required to be paid by Tenant, personal property taxes imposed upon the

fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,

furniture and other personal property used in connection with the Project, or

any portion thereof), which shall be paid or accrued during any Tax Year (as

defined in SECTION 4.2.5.4) because of or in connection with the ownership,

leasing and operation of the Project, or any portion thereof.

 

                    4.2.5.2    Tax Expenses shall include, without limitation:

(i) any tax on the rent, right to rent or other income from the Project, or any

portion thereof, or as against the business of leasing the Project, or any

portion thereof (measured as if the Project were the only property owned by

Landlord); (ii) any assessment, tax, fee, levy, or charge allocable to or

measured by the area of the Premises or the Rent payable hereunder, including,

without limitation, any business or gross income tax or excise tax with respect

to the receipt of such rent, or upon or with respect to the possession, leasing,

operating, management, maintenance, alteration, repair, use or occupancy by

Tenant of the Premises, or any portion thereof (measured as if the Project were

the only property owned by Landlord); (iii) any assessment, tax, fee, levy or

charge, upon this transaction; and (iv) the amount of any payments or other

consideration (in cash or otherwise) that Landlord is required to make to any

taxing authority in connection with any tax abatement agreements benefiting the

Project.

 

                                        11

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                    4.2.5.3    Any costs and expenses (including, without

limitation, reasonable attorneys' fees) incurred in attempting to protest,

reduce or minimize Tax Expenses shall be included in Tax Expenses in the Tax

Year such expenses are paid. Tenant's Share of any refunds of Tax Expenses in

excess of the Base Year Tax Expenses shall be credited against Tenant's Tax

Expenses and any excess shall be refunded to Tenant regardless of when received,

based on the Tax Year to which the refund is applicable, provided that in no

event shall the amount to be refunded to Tenant for any such Tax Year exceed the

total amount paid by Tenant as Additional Rent under this ARTICLE 4 for such Tax

Year. If Tax Expenses for any period during the Lease Term are increased after

payment thereof for any reason, including, without limitation, error or

reassessment by applicable governmental or municipal authorities, Tenant shall

pay Landlord within fifteen (15) business days after receipt of Landlord's

written demand Tenant's Share of any such increased Tax Expenses included by

Landlord as Tax Expenses pursuant to the TCCs of this Lease. Notwithstanding

anything to the contrary contained in this SECTION 4.2.5 (except as set forth in

SECTION 4.2.5.1, above), there shall be excluded from Tax Expenses (i) all

excess profits taxes, franchise taxes, gift taxes, capital stock taxes,

inheritance and succession taxes, estate taxes, federal and commonwealth/state

income taxes, and other taxes to the extent applicable to Landlord's general or

net income (as opposed to rents, receipts or income attributable to operations

at the Project), (ii) any items included as Operating Expenses, (iii) any items

paid by Tenant under SECTION 4.5 of this Lease.

 

                    4.2.5.4    Landlord and Tenant agree that the Base Year for

the purposes of calculating Tenant's Additional Rent liability for Tax Expenses

shall be the calendar year 2003 (which shall be the sum of one-half of the Tax

Expenses for the period from July 1, 2002 through June 30, 2003 and one-half of

the Tax Expenses for the period from July 1, 2003 through June 30, 2004). Each

subsequent twelve (12) month calendar year period (i.e., January 1 - December

31) during the Lease Term shall be referred to as a "TAX YEAR", prorated for any

partial Tax Year at the end of the Lease Term. At Landlord's election, Tenant

shall pay Tenant's Share of any Tax Excess (as defined in SECTION 4.4) pursuant

to SECTIONS 4.4.1 and 4.4.2, or within fifteen (15) business days after receipt

of Landlord's written demand following the expiration or earlier termination of

the Lease Term. Landlord shall provide copies of any invoices or other notices

from the taxing authorities evidencing the Tax Expenses to Tenant with

Landlord's annual Statement (as defined in Section 4.4.1) or after receipt of

Tenant's written request for such documentation.

 

            4.2.6    "TENANT'S SHARE" of Operating Expenses and Tax Expenses

shall mean the percentage set forth in SECTION 6 of the Summary, subject to

adjustment as set forth in SECTION 4.3.

 

     4.3    ALLOCATION OF DIRECT EXPENSES. The parties acknowledge that the

Building is a part of a multi-building project and that the costs and expenses

incurred in connection with the Project (i.e. the Direct Expenses) will be

shared between the tenants and occupants of the Building and the tenants and

occupants of the other buildings in the Project. Accordingly, as set forth in

SECTION 4.2 above, Direct Expenses shall be determined for the Project as a

whole, and Tenant shall be responsible for paying Tenant's Share of the Direct

Expenses, provided, however, Landlord in its sole discretion, may determine and

allocate some or all Direct Expenses for each Building, in which case Tenant's

Share of such Direct Expenses shall be based on the percentage equal to its

proportionate share of the building in question. To the extent the entire

 

                                       12

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Project is not fully occupied, Landlord shall adjust the variable components of

Operating Expenses for the Base Year (and at Landlord's option, Landlord may

adjust the variable components of Operating Expenses for any Expense Year if the

Project is not fully occupied in such Expense Year), based on Landlord's

reasonable, good faith estimate based on historical operating expense

information for the Project or other reasonable data available to Landlord, to

determine the amount of Operating Expenses that would have been incurred in the

Project had the Project been one hundred percent (100%) occupied; and the amount

so determined shall be deemed to have been the amount of Operating Expenses for

such year attributable to the Project. If, during the Lease Term: (a) any

portion of rentable square feet of the Common Areas is converted for exclusive

use by occupants of the Project other than Tenant, such that Tenant no longer

has use thereof as contemplated by the terms of this Lease, the rentable square

feet of the Premises shall be recalculated according to the BOMA Standard, and

Base Rent for the Premises and Tenant's Share shall be reduced accordingly as of

the date such areas are no longer available for use by Tenant as contemplated by

this Lease, and /or (b) additional rentable square feet of improvements which

are not Common Areas are added to the Project, Tenant's Share shall be reduced

accordingly as of the date such rentable square feet are occupied by a tenant or

occupant that is entitled to the exclusive use thereof. In no event shall

Tenant's Share be increased. In no event shall Landlord be entitled to collect

from tenants more than 100% of Direct Expenses.

 

     4.4    CALCULATION AND PAYMENT OF ADDITIONAL RENT. With respect to Operating

Expenses, if for any Expense Year ending or commencing within the Lease Term,

Tenant's Share of Operating Expenses for such Expense Year exceeds the

annualized amount of Tenant's Share of Operating Expenses applicable to the Base

Year, then Tenant shall pay to Landlord, in the manner set forth in SECTIONS

4.4.1 AND 4.4.2, below, and as Additional Rent, an amount equal to the excess

(the "OE EXCESS"). With respect to Tax Expenses, if for any Tax Year ending or

commencing within the Lease Term, Tenant's Share of Tax Expenses for such Tax

Year exceeds the annualized amount of Tenant's Share of Tax Expenses applicable

to the Base Year, then Tenant shall pay to Landlord, in the manner set forth in

SECTIONS 4.4.1 AND 4.4.2, below, and as Additional Rent, an amount equal to the

excess (the "TAX EXCESS"). The OE Excess plus the Tax Excess are sometimes

referred to herein collectively as the "EXCESS".

 

            4.4.1    STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY TENANT.

Within one hundred fifty (150) days after the end of each applicable Expense

Year, Landlord will deliver to Tenant a statement (the "STATEMENT"), which shall

state the Direct Expenses incurred or accrued for such preceding Expense Year,

and which shall indicate the amount of the Excess, if any. Upon receipt of the

Statement for each applicable Expense Year, if an Excess is present, Tenant

shall pay, with its next installment of Base Rent due, the full amount of the

Excess for such Expense Year, less the amounts, if any, paid during such Expense

Year as "ESTIMATED EXCESS," as that term is defined in SECTION 4.4.2, below. In

the event the Statement shows that the amount paid by Tenant under SECTION

4.4.2, below, exceeded Tenant's Share of Direct Expenses for the Expense Year in

question (the "OVERPAYMENT AMOUNT"), then Landlord shall credit the Overpayment

Amount against the next due installments of Base Rent and Additional Rent;

provided, however, that with respect to the final Expense Year of the Lease

Term, Landlord shall pay to Tenant the Overpayment Amount, if any, on or before

fifteen (15) business days after Tenant's receipt of such Statement. The failure

of Landlord to timely furnish the Statement for any Expense Year shall not

prejudice Landlord or Tenant from enforcing its rights under this ARTICLE 4.

Even though the Lease Term has expired and Tenant has vacated the

 

                                       13

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Premises, when the final determination is made of Tenant's Share of Direct

Expenses for the Expense Year in which this Lease terminates, if an Excess if

present, Tenant shall pay such amount to Landlord within fifteen (15) business

days after Tenant's receipt of such final determination. If Tenant provides a

written request to Landlord within one (1) year after receipt of the Statement

provided in this SECTION 4.4.1, Tenant shall be entitled, during reasonable

business hours, to review Landlord's books and records on which Landlord has

calculated all Direct Expenses and shall promptly thereafter provide its written

analysis of Direct Expenses to Landlord. If Tenant's review discloses any

overpayment by Tenant, Landlord shall refund such amounts within fifteen (15)

business days after receipt of Tenant's calculations; if Tenant's review

discloses any underpayment by Tenant, Tenant shall pay such amounts at the time

it provides its calculations to Landlord. Tenant's audit shall be conducted by

either Tenant or a certified public accountant. Tenant's audit may not be

conducted by an individual or entity that is retained by Tenant primarily on a

contingent fee basis, other than PricewaterhouseCoopers, Deloitte & Touche,

Ernst & Young, or KPMG. The results of the audit shall be kept confidential by

Tenant and shall remain a private matter between Landlord and Tenant. Any

dispute between Landlord and Tenant concerning any item of Direct Expenses shall

not relieve Tenant of liability for payment of all other Excess amounts of

Direct Expenses. The provisions of this SECTION 4.4.1 shall survive the

expiration or earlier termination of the Lease.

 

            4.4.2    STATEMENT OF ESTIMATED DIRECT EXPENSES. In addition,

Landlord shall cause to be delivered from time to time, at least annually, an

expense estimate statement (the "ESTIMATE STATEMENT") which shall set forth

Landlord's reasonable estimate (the "ESTIMATE") of what the total amount of

Direct Expenses for the then-current Expense Year shall be and the estimated

Excess (the "ESTIMATED EXCESS") as calculated by comparing the Direct Expenses

for such Expense Year, which shall be based upon the Estimate, over the amount

of Direct Expenses for the Base Year. The failure of Landlord to furnish an

Estimate Statement for any Expense Year shall not preclude Landlord from

enforcing its rights to collect any Estimated Excess under this ARTICLE 4, nor

shall Landlord be prohibited from revising any Estimate Statement or Estimated

Excess theretofore delivered to the extent necessary in Landlord's reasonable

business judgment. Upon receipt of any Estimate Statement, Tenant shall pay,

with its next installment of Base Rent due, the monthly amount of the Estimated

Excess for the then-current Expense Year indicated on the Estimate Statement.

Until a new Estimate Statement is furnished (which Landlord shall have the right

to deliver to Tenant at any time), Tenant shall continue to pay monthly, with

the monthly Base Rent installments, the monthly amount of the Estimated Excess

set forth in any previous Estimate Statement delivered by Landlord to Tenant.

 

     4.5    TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.

 

            4.5.1    Tenant shall be liable for and shall pay before delinquency

taxes levied against Tenant's equipment, furniture, fixtures and any other

personal properly located in or about the Premises (including without limitation

taxes levied against the Furniture, if any). If any such taxes on Tenant's

equipment, furniture, fixtures and any other personal property are levied

against Landlord or Landlord's property or if the assessed value of Landlord's

property is increased by the inclusion therein of a value placed upon such

equipment, furniture, fixtures or any other personal property and if Landlord

pays any properly assessed taxes based upon such increased assessment, which

Landlord shall have the right to do upon fifteen (15) business days prior

written notice to Tenant, including reasonably satisfactory backup documentation

 

                                       14

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evidencing such expenses, Tenant shall upon fifteen (15) business days notice to

Tenant repay to Landlord the taxes so levied against Landlord or the proportion

of such taxes resulting from such increase in the assessment, as the case may

be.

 

            4.5.2    If the Alterations in the Premises, whether installed and/or

paid for by Landlord or Tenant and whether or not affixed to the real property

so as to become a part thereof, are assessed for real property tax purposes at a

valuation higher than the valuation at which tenant improvements conforming to

Landlord's standard tenant improvements in other space in the Building leased to

or offered to lease to other tenants, which improvements are substantially

similar to those in the Premises as of the Lease Commencement Date (the

"BUILDING STANDARD"), are assessed (as reasonably determined by Landlord), then

the Tax Expenses levied against Landlord or the property by reason of such

excess assessed valuation shall be deemed to be taxes levied against personal

property of Tenant and shall be governed by the provisions of SECTION 4.5.1,

above. Landlord shall reciprocally enforce this provision against other tenants

in the Project.

 

      4.6    LANDLORD'S BOOKS AND RECORDS. Subject to Tenant's right to review as

provided in SECTION 4.4.1, Landlord's books and records evidencing Operating

Expenses will be conclusive absent manifest error.

 

     4.7    TENANT'S ELECTRICITY COST. The Premises are currently not separately

metered and, to account for Tenant's electrical use in the Premises, Tenant

shall pay to Landlord as Additional Rent an initial flat monthly fee of Fourteen

Thousand Twenty-six and 26/100 Dollars ($14,026.00), which amount is calculated

based on the rate of One Dollar ($1.00) per year per rentable square foot of the

Premises ("TENANT'S ELECTRICITY COST"), and is subject to adjustment based on

Landlord's reasonable estimate of Tenant's electrical usage based on comparison

of actual invoices and/or check metering. Tenant's Electricity Cost shall

include all electricity used by Tenant for lights, light fixtures and electrical

usage for Tenant's personal property and equipment in the Premises.

 

            4.7.1    Notwithstanding anything to the contrary contained in this

Lease, Landlord shall have the right to separately meter (or install a sub-meter

or check meter for) the Premises and/or for certain systems or equipment in the

Building, at Landlord's sole cost, any time during the Lease Term and thereafter

charge Tenant for its electrical use as measure by such meter(s).

 

            4.7.2    In the event that Landlord, in its sole discretion, installs

meters (direct, submeters or checkmeters) which enable Landlord to measure the

electricity usage for the air handlers and chillers which service the Lab Areas

(as defined in SECTION 6.1.1, below) of the Premises, then, in addition to

Tenant's Electricity Cost, Tenant shall pay to Landlord, as Additional Rent,

seventy percent (70%) of the electrical expenses attributable to the chillers

and air handlers which service the labs within the Premises and such costs shall

thereafter not be included in the calculation of Operating Expenses.

 

     4.8    ADDITIONAL RENT FOR ADDITIONAL PREMISES. Notwithstanding anything to

the contrary contained herein, in addition to all other sums payable pursuant to

this Lease, until such time as this Lease has been terminated with respect to

the Additional Premises and Tenant has

 

                                        15

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vacated the Additional Premises in accordance with the provisions of SECTION

1.1.3, above, Tenant shall pay to Landlord, as Additional Rent, the sum of $4.00

per square foot times the number of square feet of space contained in the

Additional Premises per annum (the "AP RENT"), payable in equal monthly

installments, (along with Tenant's payment of Base Rent and Tenant's Share of

the Estimated Excess for the Premises other than the Additional Premises). In

the event that Landlord, in its sole discretion, installs meters (direct,

submeters or checkmeters) or otherwise reasonably estimates the utility usage

for the Additional Premises then, at Landlord's option, Tenant shall pay to

landlord, in lieu of the AP Rent, the actual cost of utilities utilized in the

Additional Premises.

 

                                    ARTICLE 5

 

                                 USE OF PREMISES

 

     5.1    PERMITTED USE. Tenant shall use the Premises solely for the Permitted

Use set forth in SECTION 7 of the Summary, and Tenant shall not use or permit

the Premises or the Project to be used for any other purpose or purposes

whatsoever without the prior written consent of Landlord, which may be withheld

in Landlord's sole discretion.

 

     5.2    PROHIBITED USES. The uses prohibited under this Lease shall include,

without limitation, use of the Premises or a portion thereof for (i) offices of

any agency or bureau of the United States or any commonwealth or state or

political subdivision thereof; (ii) offices or agencies of any foreign

governmental or political subdivision thereof; (iii) offices of any health care

professionals or service organization; (iv) schools or other training facilities

which are not ancillary to corporate, executive or professional office use; (v)

retail or restaurant uses; (vi) commercial broadcast radio or television

stations; (vii) marketing or call center if it would increase the parking

requirements for the Premises beyond the parking spaces allocated pursuant to

Section 9 of the Summary of Basic Lease Information; or (viii) collection

agency. Tenant further covenants and agrees that Tenant shall not use, or suffer

or permit any person or persons to use, the Premises or any part thereof for any

use or purpose contrary to the provisions of the Rules and Regulations (as

defined in Section 5.6, below), or in violation of the laws of the United States

of America, the Commonwealth of Massachusetts, or the ordinances, regulations or

requirements of the local municipal or county governing body or other lawful

authorities having jurisdiction over the Project) including, without limitation,

any such laws, ordinances, regulations or requirements relating to Hazardous

Materials as defined in SECTION 29.31.1 below. Tenant shall not do or permit

anything to be done in or about the Premises which will in any material way

interfere with the rights of other tenants or occupants of the Building, or use

or allow the Premises to be used for any unlawful purpose, nor shall Tenant

cause, maintain or permit any nuisance in, on or about the Premises.

 

     5.3    CC&Rs. Tenant shall comply with all recorded covenants, conditions,

and restrictions currently affecting the Project to the extent they apply to the

Premises or the Common Areas. Additionally, Tenant acknowledges that the Project

may be subject to any future covenants, conditions, and restrictions (the

"CC&Rs"), to the extent that Landlord, in its reasonable discretion, deems

reasonably necessary or appropriate, and Tenant agrees that this Lease shall be

subject and subordinate to such CC&Rs to the extent they apply to the Premises

or the Common Areas; provided, however, that this Lease shall only be

subordinate to any future

 

                                       16

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CC&Rs if such CC&Rs do not materially interfere with Tenant's use and occupancy

of the Premises and Common Areas.

 

     5.4    CONDITION OF PREMISES. Landlord shall deliver the Premises

(including, but not limited to HVAC (as hereinafter defined), electrical,

plumbing, sewer and other Building systems, and the exterior walls, roof,

parking area, landscaping and walkways) to Tenant on the Lease Commencement Date

and Tenant shall accept the Premises in their "AS IS" condition. Tenant

acknowledges that Tenant, not Landlord was responsible for the construction of

the Project, and Landlord makes no representation or warranty, and specifically

disclaims any representation or warranty concerning the following: (a) whether

the Project was constructed in compliance with all Applicable Laws (as defined

in ARTICLE 24), and whether any written notice of noncompliance with Applicable

Laws concerning the Project was issued by any governmental authorities prior to

the Lease Commencement Date; (b) whether the Project and the Premises are free

of Hazardous Materials (as defined in SECTION 29.31) that are required to be

reported to governmental authorities under Applicable Laws, or which would be in

violation of any Applicable Laws; and (c) whether the Building's electrical,

plumbing, heating and ventilation systems are of a type, design, quality and

capacity as commensurate with Comparable Buildings (as defined in SECTION 6.1),

and whether they are in good working condition and repair as of the Lease

Commencement Date. Other than as expressly set forth in this Lease, Tenant

acknowledges that neither Landlord nor any agent of Landlord has made any

representation or warranty with respect to the Premises or with respect to the

present or future suitability of any part of the Premises for the conduct of

Tenant's business or the uses proposed by Tenant. Tenant hereby accepts the

Premises, the Building, and all improvements thereon, in their existing

condition, subject to all applicable zoning, municipal, county and state

(commonwealth) laws, ordinances and regulations governing and regulating the use

of the Premises, and any covenants or restrictions of record, and accepts this

Lease subject to all of the foregoing and to all matters disclosed in this

Lease. Notwithstanding the foregoing, Landlord shall be responsible for

repairing or replacing, as necessary, any latent or other defect or change of

condition in the Premises or the Project which materially and adversely affects

Tenant's use or occupancy of the Premises; provided, however, the Rent hereunder

shall in no case be withheld or diminished because of any such latent or other

defect, any change in the condition thereof or the existence with respect

thereto of any violations of Applicable Laws. Tenant shall have no right to any

abatement of Rent except as expressly provided in SECTIONS 6.3, 11.1 and 13.1.

 

     5.5    DEMISING PLAN. The Premises are shown on the space plan attached

hereto as EXHIBIT A and hereby made a part hereof. Tenant shall pay its costs

associated with the installation of Tenant's network and other cabling,

telecommunications infrastructure, and all of its moving costs incurred in

connection with Tenant's occupancy of the Premises. Within sixty (60) days after

the Lease Commencement Date, subject to force majeure, Landlord, at its sole

cost, shall demise the Premises by constructing: (A) a secure doorway between

the Premises and the access provided by Landlord under Section 1.1(i), above,

and (B) a secure doorway between the Building 2 loading dock area shown on

EXHIBIT A (the "LOADING DOCK") and the Premises, together with card key access

controls for both of the foregoing doorways integrated with the existing,

Project-wide card key access system (such work, collectively, the "DEMISING

WORK"). Attached hereto as EXHIBIT A-1 is a plan for the Building 2 Loading Dock

area, which indicates an existing caged holding area which shall be deemed to be

part of the Premises (but shall not be counted as useable square footage for the

purposes of calculating the number of rentable square

 

                                        17

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feet in the Premises) and available for Tenant's exclusive use; Tenant shall pay

all costs associated with the demising and securing of said holding area. The

use of the Loading Dock by Tenant and other occupants or tenants of the Project

shall be subject to the Rules and Regulations (as defined in Section 5.6, below)

respecting the use of the Loading Dock. Within sixty (60) days after the Lease

Commencement Date, or such longer time as shall be reasonably required by

Landlord (not to exceed six months after the Commencement Date), Landlord shall

remove the energy management equipment for the Project located within the

Premises and relocate the same outside the Premises, at Landlord's sole cost.

 

     5.6    RULES AND REGULATIONS. Tenant shall comply with Landlord's rules and

regulations respecting the management, care, use and safety of the Premises,

Building and Project, including without limitation, parking areas, landscaped

areas, walkways, elevators, loading docks, hallways and other Common Areas and

facilities provided for the common use and convenience of tenants. Such rules

and regulations are attached hereto as EXHIBIT D and may be amended from time to

time at Landlord's reasonable discretion, upon written notice to Tenant (as

amended from time to time, the "RULES AND REGULATIONS"). Landlord agrees that

any enforcement of the Rules and Regulations shall be done in a reasonable,

uniform and non-discriminatory manner.

 

                                    ARTICLE 6

 

                              SERVICES AND UTILITIES

 

     6.1    STANDARD TENANT SERVICES. Landlord shall maintain and operate the

Building in a manner consistent with other Comparable Buildings (as defined

below), and provide ingress and egress control services to the Building in a

first-class manner consistent with the Comparable Buildings, shall keep the

Building Structure and Building Systems in first-class condition and repair

consistent with the Comparable Buildings, and all of such expenses shall be

included in Operating Expenses. (As used in this Lease, the term "COMPARABLE

BUILDINGS" means buildings which are comparable to the Building in terms of age,

quality of construction, level of service and amenities, size and appearance and

located in a comparable geographical area, as reasonably determined by

Landlord.) During the Lease Term, Landlord shall provide the following services:

 

            6.1.1    Subject to limitations imposed by all governmental rules,

regulations guidelines applicable thereto, (a) from Monday through Friday from 8

a.m. to 6 p.m. (but excluding Holidays, as defined below) (such dates and times

herein called "BUILDING HOURS"), Landlord shall provide heating and air

conditioning ("HVAC") to the office portion of the Premises, and (b) subject to

the provisions of SECTIONS 4.7.2 AND 7.1, Landlord shall provide continuous HVAC

to the "LAB AREAS" designated on EXHIBIT A. Tenant may request and Landlord

shall provide HVAC service at times other than during Building Hours at the rate

of $50.00 per hour, with a minimum charge of $100.00; provided, however, that

Tenant shall only be charged for after hours HVAC actually requested by Tenant.

Landlord reserves the right reasonably to increase the cost for after hours air

conditioning in accordance with increases in Comparable Buildings, not to exceed

the increase in actual costs, including, without limitation, utility costs and

depreciation for equipment.

 

                                       18

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            6.1.2    Landlord shall provide city water from the regular Building

outlets for drinking, lavatory and toilet purposes in the Common Areas within

the Building.

 

            6.1.3    On weekdays during the Lease Term, Landlord shall provide

janitorial services to the Premises, except the date of observation of the

Holidays, in and about the Premises and window washing services in a manner

consistent with Comparable Buildings.

 

            6.1.4    Landlord shall provide nonexclusive, non-attended automatic

passenger elevator service for all elevators in the Building during Building

Hours and, subject to closures for routine maintenance or repair, shall have one

(1) elevator available at all other times to provide service to the Premises;

provided, however, Landlord shall use reasonable efforts to schedule the timing

of such routine maintenance or repair, and shall otherwise use commercially

reasonable efforts to minimize any interference with Tenant's Permitted Use and

enjoyment of the Premises.

 

            6.1.5    Landlord shall provide electricity for lights and electrical

outlets within the Premises, subject to Tenant's obligation to pay Tenant's

Electricity Charge.

 

     For the purposes of this Lease the term "HOLIDAY" shall mean and refer to

New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, day

after Thanksgiving Day and Christmas Day.

 

     6.2    REQUIREMENTS OF TENANT. At all times during the Lease Term, Tenant

shall cooperate with Landlord and abide by all regulations and requirements that

Landlord may reasonably prescribe and provide to Tenant in writing for the

proper functioning and protection of the Building HVAC, electrical, mechanical

and plumbing systems.

 

     6.3    INTERRUPTION OF USE. Except as expressly provided herein, Tenant

agrees that Landlord shall not be liable for damages, by abatement of Rent or

otherwise, for failure to furnish or delay in furnishing any service (including

telephone and telecommunication services), or for any diminution in the quality

or quantity thereof, when such failure or delay or diminution is occasioned, in

whole or in part, by breakage, repairs, replacements, or improvements, by any

strike, lockout or other labor trouble, by inability to secure electricity, gas,

water, or other fuel at the Building or Project after reasonable effort to do

so, by any riot or other dangerous condition, emergency, accident or casualty

whatsoever, by act or default of Tenant or other parties, or by any other cause;

and such failures or delays or diminution shall never be deemed to constitute an

eviction or disturbance of Tenant's use and possession of the Premises or

relieve Tenant from paying Rent or performing any of its obligations under this

Lease. Furthermore, Landlord shall not be liable under any circumstances for a

loss of, or injury to, property or for injury to, or interference with, Tenant's

business, including, without limitation, loss of profits, however occurring,

through or in connection with or incidental to a failure to furnish any of the

services or utilities as set forth in this ARTICLE 6. Landlord may comply with

voluntary controls or guidelines promulgated by any governmental entity relating

to the use or conservation of energy, water, gas, light or electricity or the

reduction of automobile or other emissions without creating any liability of

Landlord to Tenant under this Lease, provided that (i) the Premises are not

thereby rendered untenantable, and (ii) the same does not materially adversely

interfere with Tenant's Permitted Use of the Premises. Notwithstanding the

foregoing, in the event any utility services or other

 

                                       19

<Page>

 

services provided to or appurtenant to the Premises are interrupted for a period

of more than three (3) consecutive business days, and such interruption (a)

prevents Tenant from operating in the Premises for its Permitted Use, and (b) is

caused solely by the negligent act or omission or willful misconduct of

Landlord, its employees, agents and contractors with respect to any facilities

or equipment located on the Project and used in providing such utilities to the

Premises, then Tenant shall be entitled to an abatement of Rent for each day

such interruption continues beyond the initial period of three (3) consecutive

business days.

 

                                     ARTICLE 7

 

                                     REPAIRS

 

     7.1    LANDLORD'S OBLIGATIONS. Landlord shall maintain, repair and replace

as necessary the structural portions of the Building, including the foundation,

floor/ceiling slabs, roof structure, exterior walls, columns, beams and shafts

(including elevator shafts) (collectively, "BUILDING STRUCTURE") at its sole

cost and expense. Landlord shall also maintain, repair and replace as necessary

the parking areas, sidewalks and access roads (including snow and ice removal),

landscaping, fountains, water falls, exterior Project signage, exterior glass

and mullions, stairs and stairwells, elevator cabs and equipment, plazas, art

work, sculptures, men's and women's washrooms, Building mechanical, electrical

and telephone closets, and all common and public areas and the Building

security, mechanical, electrical, life safety, plumbing, sprinkler systems and

HVAC systems (collectively, the "BUILDING SYSTEMS") and all other Common Areas

within the Project, and the cost of such maintenance and repair shall be

included in Operating Expenses. In addition, as requested by Tenant and as

Landlord reasonably deems necessary, Landlord shall maintain, repair and replace

all damaged, broken, or worn fixtures, floor covering, mechanical and electrical

systems and appurtenances (including without limitation light fixtures, light

bulbs and fans) within the Premises (subject to the provisions of ARTICLE 27

regarding Landlord's access to the Premises), excepting any Alterations (as

defined in ARTICLE 8) or personal property within the Premises, and excluding

damage caused by Tenant (other than ordinary wear and tear and damage covered by

insurance, to the extent of such coverage) and shall include the costs thereof

in Operating Expenses. Landlord shall undertake reasonable efforts to perform

all maintenance, repairs and replacements pursuant to this SECTION 7.1 promptly

after Landlord learns of the need for such maintenance, repairs and

replacements, but in any event within thirty (30) days after Tenant provides

written notice to Landlord of the need for such maintenance, repairs and

replacements; provided, however, that in cases of "EMERGENCY" (i.e.,

circumstances which, if not addressed promptly, could result in material damage

to persons and property, and/or damage or destruction to or of a structural

component or any electrical, plumbing, mechanical or telecommunications systems

in or providing service to the Building which materially impairs Tenant's

ability to utilize the Premises as intended for more than 24 consecutive hours

or more than 24 hours within any five (5) day period), Landlord shall perform

any maintenance, repairs and replacements as soon as reasonably practicable

after it learns of the need for such maintenance, repairs and replacements.

 

     Notwithstanding anything herein to the contrary, Tenant shall reimburse

Landlord as Additional Rent, within thirty (30) days after receipt of Landlord's

invoice, for seventy percent (70%) of all costs paid to third parties associated

with the repair, maintenance and replacement of the air handlers and chillers

which service the Lab Areas (as defined in SECTION 6.1.1, above)

 

                                       20

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of the Premises and such costs shall thereafter not be included in the

calculation of Operating Expenses. Notwithstanding the foregoing, with respect

to all costs for replacements of the air handlers and chillers (or components

thereof) which service the Lab Area that are capital in nature under generally

accepted accounting principles, at Tenant's option, to be exercised within

thirty days after receipt of Landlord's first invoice for such costs, in lieu of

reimbursing Landlord within thirty days, such costs shall be amortized (with

interest at ten percent (10%) per annum) over the lesser of (i) the remaining

Term of the Lease, or (ii) the useful life of the item being replaced, and

Tenant shall pay Landlord, as Additional Rent, on a monthly basis, the amortized

portion and interest applicable thereto.

 

      In the event that Tenant is dissatisfied with the quality or cost of

repairs, maintenance and/or replacement of the air handlers and chillers which

service the Lab Areas, then upon thirty (30) days advance written notice to

Landlord, Tenant may elect to repair, maintain and replace said air handlers and

chillers, in which case, Tenant shall provide Landlord with a copy of any

maintenance contract(s), and all invoices, receipts, statements, guaranties and

warranties for such repair, maintenance or replacement, and Landlord shall

reimburse Tenant, within thirty (30) days after receipt of Tenant's invoice for

thirty percent (30%) of all costs paid to third parties associated with the

repair, maintenance and replacement of said air handlers and chillers, provided

that the cost to Landlord shall in no event exceed the amount which would have

been payable by Landlord if Landlord had retained responsibility for such work.

 

     7.2    TENANT'S OBLIGATIONS. Notwithstanding anything in this Lease to the

contrary, Tenant shall be required to repair any damage to the Building

Structure and/or the Building Systems to the extent caused due to Tenant's use

of the Premises for other than its Permitted Use, unless and to the extent such

damage is covered by insurance carried by Landlord pursuant to ARTICLE 10 and to

which the waiver of subrogation is applicable. Tenant shall, at Tenant's own

expense, pursuant to the TCCs of this Lease, including without limitation

ARTICLE 8 hereof, maintain the Furniture and all Alterations and other personal

property of Tenant within the Premises in good order, repair and condition at

all times during the Lease Term. Tenant hereby waives any and all rights to

terminate this Lease, complete repairs, and offset the rent as may be provided

under the laws of the Commonwealth of Massachusetts, now or hereafter in effect.

 

                                    ARTICLE 8

 

                            ADDITIONS AND ALTERATIONS

 

     8.1    LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any

improvements, alterations, additions or changes to the Premises or any

mechanical, plumbing or HVAC facilities or systems pertaining to the Premises

which affect the Building Structure, Building Systems or exterior appearance of

the Building (collectively, the "ALTERATIONS") without first procuring the prior

written consent of Landlord to such Alterations, which consent shall be

requested by Tenant not less than ten (10) days prior to the commencement

thereof, and which consent shall not be unreasonably withheld, conditioned or

delayed by Landlord, provided it shall be deemed reasonable for Landlord to

withhold its consent to any Alteration which materially or adversely affects the

Building Structure, Building Systems or exterior appearance of the Building.

Tenant shall have the right to make interior modifications to the Premises

without Landlord's consent provided that such alterations do not materially or

adversely affect

 

                                       21

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the mechanical, electrical, plumbing or structural systems in the Building, and

provided further that Tenant shall give Landlord notice of such modifications at

least ten (10) days prior to the commencement of such modifications.

Notwithstanding the foregoing, Landlord's consent shall not be required, and

Tenant shall be deemed to have provided notice to Landlord, of the following

Alterations: (a) installation in the Premises of the personal property removed

from Building 1 pursuant to SECTION 1.1.1; (b) changes in the card key security

system as provided in SECTION 1.5 provided that (i) ten days advance written

notice is provided to Landlord together with a detailed description of the work

to be done and (ii) such work does not adversely affect the Project-wide card

key security system; and (c) installation of and upgrades to communications and

electrical equipment connecting the Premises to the Conference Facilities

provided that (i) ten days advance written notice is provided to Landlord

together with a detailed description, and plans and specifications if

applicable, of the work to be done; (ii) such work does not adversely affect the

use of the Conference Facilities or any other Common Area by Landlord and/or

other occupants of the Project; (iii) the Conference Facilities are Common Areas

at the time said work is done.

 

     8.2    MANNER OF CONSTRUCTION. Tenant shall utilize only competent

contractors, subcontractors, materials, mechanics and materialmen reasonably

approved by Landlord for the construction of any Alterations, which approval

shall not be unreasonably withheld, conditioned or delayed; provided, however,

that Tenant shall be entitled to use its employees to make Alterations which do

not affect the mechanical or structural portions of the Premises or the Building

Structure so long as Tenant complies with all other provisions of this ARTICLE

8. Upon Landlord's request (unless Landlord waived, at the time of Landlord's

approval of any Alterations pursuant to the provisions of SECTION 8.5, below,

its right to make such request), Tenant shall, at Tenant's expense, remove such

Alterations upon the expiration or any early termination of the Lease. If such

Alterations will involve the use of or disturb Hazardous Materials or substances

existing in the Premises, Tenant shall comply with Landlord's rules and

regulations concerning, and all Applicable Laws pertaining to, Hazardous

Materials or substances with respect to such Alterations. Tenant shall construct

such Alterations and perform such repairs in a good and workmanlike manner, in

conformance with any and all applicable federal, commonwealth, county or

municipal laws, rules and regulations and pursuant to a valid building permit,

issued by the City of Marlborough, and in conformance with Landlord's

construction rules and regulations, if any, provided to Tenant in writing prior

to construction of such Alterations. In the event Tenant performs any

Alterations in the Premises which require or give rise to governmentally

required changes to the "Base Building," as that term is defined below, then

Landlord shall, at Tenant's expense, make such changes to the Base Building. The

"BASE BUILDING" shall include the Building Structure, and the public restrooms

and the systems and equipment located in the internal core of the Building on

the floor or floors on which the Premises are located. In performing the work of

any such Alterations, Tenant shall have the work performed in such manner so as

not to obstruct access to the Project or any portion thereof, by any other

tenant of the Project, and so as not to obstruct the business of Landlord or

other tenants in the Project. Tenant shall not use (and promptly after notice

from Landlord shall cease using) contractors, services, workmen, labor,

materials or equipment that, in Landlord's reasonable judgment, would disturb

labor harmony with the workforce or trades engaged in performing other work,

labor or services in or about the Building or the Common Areas. In addition to

Tenant's obligations under ARTICLE 9 of this Lease, upon completion of any

Alterations which affect the Building Systems and Building Structures, Tenant

agrees to cause

 

                                       22

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such notices as may be necessary to evidence completion of any work undertaken

by Tenant to be recorded in the office of the Recorder of the County of

Middlesex in accordance with the laws of the Commonwealth of Massachusetts or

any successor statute, and Tenant shall deliver to the Project management office

a reproducible copy of the "as built" drawings of the Alterations as well as all

permits, approvals and other documents issued by any governmental agency in

connection with the Alterations.

 

     8.3    PAYMENT FOR IMPROVEMENTS. If payment is made directly to contractors,

Tenant shall comply with all Applicable Laws relating to final lien releases and

waivers in connection with Tenant's payment for work to contractors. Whether or

not Tenant orders any work directly from Landlord, Tenant shall reimburse

Landlord for Landlord's reasonable out-of-pocket costs and expenses reasonably

incurred in connection with Landlord's review of any Alterations, not to exceed

One Thousand Dollars ($1,000).

 

     8.4    CONSTRUCTION INSURANCE. In addition to the requirements of ARTICLE 10

of this Lease, in the event that Tenant makes any Alterations, prior to the

commencement of such Alterations, Tenant shall provide Landlord with evidence

that Tenant carries "BUILDER'S ALL RISK" insurance in an amount reasonably

related to the value of such Alterations, it being understood and agreed that

all of such Alterations shall be insured by Tenant pursuant to ARTICLE 10 of

this Lease immediately upon completion thereof.

 

     8.5    LANDLORD'S PROPERTY. All Alterations, improvements, fixtures,

equipment and/or appurtenances other than Tenant's trade fixtures and equipment

which may be installed or placed in or about the Premises, from time to time,

shall be and become the property of Landlord upon the expiration of this Lease,

subject to the requirements of SECTION 8.2 and Landlord's right to require

Tenant to remove such items as provided in this SECTION 8.5. Upon the expiration

or earlier termination of this Lease, Tenant may remove any equipment or

fixtures installed by Tenant, provided Tenant repairs any damage to the Premises

and Building caused by such removal and returns the affected portion of the

Premises to Building Standard condition. Furthermore, Landlord may, by written

notice to Tenant prior to the end of the Lease Term, or given following any

earlier termination of this Lease, require Tenant, at Tenant's expense, to

remove any Alterations in the Premises and to repair any damage to the Premises

and Building caused by such removal (reasonable wear and tear excepted) and

return the affected portion of the Premises to Building Standard condition;

provided, however, if, in connection with its request for Landlord's approval

for particular Alterations, (1) Tenant requests Landlord's decision with regard

to the removal of such Alterations, and (2) Landlord thereafter agrees in

writing to waive the removal requirement when approving such Alterations, then

Tenant shall not be required to so rem