STARENT NETWORKS, CORP. LEASE AND SUBLEASE TEWKSBURY COMMONS, TEWKSBURY, MASSACHUSETTS

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Exhibit 10.9

STARENT NETWORKS, CORP.

LEASE AND SUBLEASE

TEWKSBURY COMMONS, TEWKSBURY, MASSACHUSETTS

LEASE

NORTH TEWKSBURY COMMONS, L.L.C.

Landlord

and

STARENT NETWORKS, INC.
Tenant

October 24, 2000

TABLE OF CONTENTS

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OFFICE LEASE

        THIS LEASE, made as of this            day of October, 2000, by and between North Tewksbury Commons, L.L.C., a Massachusetts limited liability company, hereinafter referred to as "Landlord" and Starent Networks, Inc. , a Delaware corporation, hereinafter referred to as "Tenant".

        IN CONSIDERATION of the rent to be paid and the covenants to be performed by Tenant, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, certain premises in Landlord's Office Building, upon the terms and conditions hereinafter contained.

ARTICLE 1
SUMMARY OF BASIC LEASE INFORMATION

        Each reference in this Lease to any provision in this Summary shall be construed to incorporate all the terms provided under that provision of the Summary. In the event of any conflict between a provision in this Summary and a provision in the balance of the Lease, the latter shall control the basic terms of this Lease are:

        Section 1.1    Premises.     (Article 2)

• • (a)

    Building: The Apple Hill III Office Building situated at 30 International Place in the Town of Tewksbury, Massachusetts.

    (b)

    Premises: Approximately 19,540 Rentable Square Feet of space located on the third floor of the Building as outlined in Exhibit A, known as Suite 300

        Section 1.2    Lease Term.     (Article 4)

• • (a)

    Lease Term (Section 4.1): Five (5) years plus the partial month, if any, commencing on the Lease Commencement Date

    (b)

    Lease Commencement Date (Section 4.1): The earlier of (a) the date on which Tenant takes possession of and occupies all or any portion of the Premises (other than in connection with the installation of Tenant's equipment, furniture or fixtures pursuant to Section 6.6 of the Tenant Work Letter), or (b) the date of Substantial Completion (as that term is defined in Section 5.1 of the Tenant Work Letter but subject to acceleration due to Tenant Delay as defined in Section 5.4 of the Tenant Work Letter) of the Tenant Improvements by Landlord. The Term "Tenant Improvements" as used in this Lease is defined in Section 2.1 of the Tenant Work Letter. Landlord shall use its best efforts to Substantially Complete construction of the Tenant Improvements by November 15, 2000 (the "Scheduled Commencement Date").

    (c)

    Lease Expiration Date (Section 4.1): The last day of the month in which the fifth anniversary of the Lease Commencement Date occurs

        Section 1.3    Base Rent     (Article 5).

• • (a)

    Lease Years 1 through 3, the sum of $517,810.00 annually, payable in equal monthly installments of $43,150.83; $26.50 per Rentable Square Foot.

    (b)

    Lease Years 4 and 5, the sum of $556,890.00 annually, payable in equal monthly installments of $45,407.50 $28.50 per Rentable Square Foot.

        Section 1.4    Additional Rent     (Article 6)

• • (a)

    Base Year The calendar year of 2001

    (b)

    Expense Year: Each calendar year in which any portion of the Lease Terms falls, through and including the calendar year in which the Lease Term expires.

    (c)

    Tenant's Share: Thirty-five percent (35%).

     

        Section 1.5    Security Deposit     (Section 7.1): $750,000.00, subject to reduction pursuant to the terms of Section 7.8 of Article 7 of this Lease.

        Section 1.6    Permitted Use     (Section 8.1): General Office Use and Research and Development.

        Section 1.7    Addresses for Notices:     (subsection 30.11.3)

• • (a)

    Landlord's address:

    • • • • c/o The CW Companies, Inc.
            600 Unicorn Park Drive
            Woburn, Massachusetts 01801
            
            Telephone: (781) 932-3075
            Fax: (781) 932-3092

    (b)

    Tenant's address:
    
    

    (1)

    Before Lease Commencement Date:

    • • • • Starent Networks, Inc.
            187 Ballardvale Street, A225
            Wilmington, Massachusetts 01887
            
            Attention: Alice P. Barber
                              Vice President, Finance & Administration
            
            Telephone: (978) 658-8464, Ext. 106
            Fax: (978) 658-8465

        (2)

    After Lease Commencement Date:

    • • • • Starent Networks, Inc.
            30 International Place, Suite 300
            Tewksbury, Massachusetts 01876
            
            Attention: Alice P. Barber
                              Vice President, Finance & Administration
            
            Telephone: (978)
            Fax: (978)

    (c)

    Address of Landlord's lender: [Address; fax number]

    (d)

    Tenant's Tax Identification Number: 04-3527533

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        Section 1.8    Brokers     (Section 30.22):

        Section 1.9    Guarantor.     Intentionally deleted

        Section 1.10    Tenant Improvement Allowance.     (Section 2.1 of Tenant Work Letter)

        $390,800 based upon $20.00 per Rentable Square Foot of the Premises

        Section 1.11    Exhibits.     The Exhibits and Addenda, if any, listed in this Section are incorporated herein by reference and are a part of this Lease:

ARTICLE 2
REAL PROPERTY, BUILDING AND PREMISES

        Section 2.1    Lease of Premises.     Landlord leases to Tenant and Tenant leases from Landlord the Premises described in Section 1.1(b) which are located in the Building described in Section 1.1(a). The outline of the Premises is set forth in Exhibit A. The Building, the areas servicing the Building (including any adjacent parking area), and the land on which the Building and those areas are located (as shown on the Site Plan attached to this Lease as Exhibit B) are sometimes collectively referred to as the "Real Property". Tenant acknowledges that Landlord has made no representation or warranty regarding the condition of the Real Property except as specifically stated in this Lease.

        Section 2.2    Appurtenant Rights.     Tenant is granted the right at all times during the Lease Term to the nonexclusive use of the main lobby of the Building, elevator lobbies, common corridors and hallways, stairwells, elevators, restrooms, entrances and exits to the Building, landscaped areas, parking areas, sidewalks, entrances and exits to the Real property and other public or common areas located on the Real Property The use of those areas shall be subject to the Rules and Regulations, defined in Section 8.2.

        Section 2.3    Landlord's Reservation of Rights.     Subject to the rights granted to Tenant pursuant to Section 2.2, the following rights are reserved to Landlord:

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• • (a)

    The right to all of the Building, except for the space within the Premises;

    (b)

    The right to change all elements of the Real Property except for the space within the Premises and except as otherwise provided in this Lease; and;

    (c)

    The rights reserved to Landlord by provisions of this Lease or by operation of law;

Any changes that Landlord makes to the Real Property as permitted by this Section 2.3 must be carried out in a manner that will not unreasonably interfere with Tenant's access to the Premises or Tenant's use and enjoyment of the Premises

        Section 2.4    Preparation of Premises.     The rights and obligations of the parties regarding the construction of the Premises before the commencement of the Lease Term are stated in the Tenant Work Letter attached to this Lease as Exhibit C. If this Lease conflicts with the Tenant Work Letter, the provisions of the Tenant Work Letter shall prevail.

        Section 2.5    Rentable Area and Usable Area.     

        2.5.1    Standard of Calculation.     For purposes of this Lease (i) "Useable Area" shall be calculated pursuant to the Standard Method For Measuring Floor Area in Office Buildings (ANSI/BOMA Z65.1, 1996); and "Useable Square Feet" and "Useable Footage" shall have the same meaning as the term "Useable Area", (ii) "Rentable Area" shall be calculated by multiplying the Useable Area by 1.18, the agreed upon R/U Ratio. "Rentable Square Feet" and "Rentable Footage" shall have the same meaning as "Rentable Area".

        2.5.2    Verification of Usable Area of Premise.     Tenant may have the Usable Area of the Premises measured by an architect or engineer and shall provide Landlord with written notice of the results of such measurement within sixty (60) days following the Lease Commencement Date. If Tenant shall elect not to have the Premises measured or shall fail to notify Landlord of the results of such measurement within the aforesaid sixty (60) day period, the Rentable Area of the Premises as set forth in Section 1.1(b) shall thereafter be deemed to be binding on the parties. Landlord shall have forty-five (45) days following receipt of written notice of the results of such measurement to have the measurement made by Tenant's architect/engineer verified by Landlord's architect and to provide Tenant with written notice of the results thereof. If Landlord (a) shall elect not have the results of Tenant's measurement verified by Landlord's architect, or (b) if Landlord's architect shall agree with the measurement made by Tenant's architect/engineer, or (c) should Landlord fail to notify Tenant of the results of such verification within the aforementioned forty-five(45) day period then, in either such event, the Usable Area of the Premises as measured by Tenant's architect/engineer and the resulting Rentable Area of the Premises calculated in the manner set forth in Section 2.5.1 shall thereafter be deemed to binding upon the parties. If Landlord's architect shall determine that the Usable Area of the Premises varies from the measurement made by Tenant's architect/engineer and Landlord so notifies Tenant within the Aforesaid forty-five (45) day period, the determination of Landlord's architect as to the Usable Area of the Premises shall be binding upon the parties provided that Landlord's architect certifies the Usable Area of the Premises to both Landlord and Tenant, If, as a result of the foregoing, it is determined that the Rentable Area of the Premises calculated in the manner set forth in Section 2.5.1 is different than the Rentable Area of the Premises stated in Section 1.1.(b), all Rent that is based upon the incorrect Rentable Area of the Premises shall be modified in accordance with that determination effective as of the Lease Commencement Date and the parties hereto shall promptly execute a supplemental instrument evidencing the revised Rentable Area and the revised Rent. If Tenant shall have made any payments to Landlord prior to a final determination of the Rentable Area pursuant to this Section 2.5.2, then a prompt adjustment shall be made in such payments to reflect the revised amounts.

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ARTICLE 3
SUBSTITUTION OF OTHER PREMISES

Intentionally Deleted

ARTICLE 4
LEASE TERM

        Section 4.1    Lease Term.     The provisions of this Lease shall be effective as of the date hereof except that Tenant shall not be required to pay Base Rent or Tenant's Share of Direct Expenses prior to the Lease Commencement Date. The Lease Term shall be the period stated Section 1.2(a). The Lease Term shall commence on the Lease Commencement Date stated in Section 1.2(b) and shall expire on the Lease Expiration Date stated in Section 1.2(c) unless sooner terminated as provided in this Lease.

        Section 4.2    Confirmation of Lease Information.     When the Lease Commencement Date has been determined, Landlord and Tenant shall execute and acknowledge a written statement in recordable form specifying the Lease Commencement Date and the Lease Termination Date.

        Section 4.3    Lease Year.     For purposes of this Lease, the term "Lease Year" means each consecutive twelve (12) month period during the Lease Term. In the event that the Lease Commencement Date is other than the first day of a calendar month, the first Lease Year shall commence on the Lease Commencement Date and end on the last day of the twelfth full calendar month thereafter. The second and each succeeding Lease Year shall commence on the first day of the next calendar month. The last Lease Year ends on the Lease Expiration Date or earlier date of termination.

        Section 4.4    Delay in Scheduled Commencement Date.     If Landlord is unable to deliver possession of the Premises to Tenant with the Tenant Improvements Substantially Complete on or before the Scheduled Commencement Date as the result of any Tenant Delay (as defined in Section 5.4 of the Tenant Work Letter attached to this Lease as Exhibit C) fire or other casualty, acts of God, labor difficulties, scarcity of or the inability to obtain labor or materials, or any other causes beyond Landlord's reasonable control ("Excused Delay"), the Scheduled Commencement Date shall be extended for a period equal to the total of the duration of each such delay. If Landlord is unable to deliver possession of the Premises to Tenant with the Tenant Improvements Substantially Complete on or before the Scheduled Commencement Date, as the same may be extended pursuant to this Section 4.4, then, following the Lease Commencement Date, Base Rent and Additional Rent shall be abated for a period equal to the period of delay between the Scheduled Commencement Date (as the same may be extended pursuant to this Section 4.4) and the Lease commencement Date.. This failure shall not affect the validity of this Lease or the obligations of Tenant under it, but the Lease Commencement Date shall be determined in accordance with the provisions of Section 1.2(b). For the purpose of this Section 4.4 and 4.4.1, Landlord and Tenant agree that Substantial Completion of Tenant Improvements specifically excludes Substantial Completion of Tenant Improvements within Tenant's "Laboratory" encompassing approximately four thousand (4,000) square feet of Usable Area.

        4.4.1    Tenant's Termination Notice.     If the Lease Commencement Date shall not occur within forty-five (45) days following the Scheduled Commencement Date as the same may be extended as the result of Excused Delays as described in Section 4.4 or pursuant to Section 4.4.2 hereof ("Outside Date"), Tenant's sole remedy shall be to terminate this Lease effective on Landlord's receipt of written notice of termination from Tenant. Tenant's termination notice must be delivered by Tenant to Landlord, if at all, no earlier than the Outside Date and no later than five (5) business days after the Outside Date. Landlord shall have the right to suspend Tenant's termination for a period of fifteen (15) days following the Outside Date by delivering to Tenant, within five (5) business days after the

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Outside Date, a certificate of the general contractor or Construction manager in charge of construction certifying that it is that contractor's best good-faith judgment that Substantial Completion of the Tenant Improvements will occur within fifteen (15) days after the Outside Date. If Landlord provides this certificate and Substantial Completion of the Tenant Improvements within that fifteen (15) day suspension period, Tenant's termination notice shall be of no further force or effect. If, however, Substantial Completion of the Tenant Improvements does not occur within that fifteen (15) day suspension period, this Lease shall terminate as of the date of expiration of the fifteen (15) day period.

        4.4.2    Extension of Outside Date.     If, before the Outside Date, Landlord determines that Substantial Completion of the Tenant Improvements will not occur by the Outside Date, Landlord shall have the right to deliver a written notice to Tenant stating Landlord's reasonable, good-faith estimate of the date by which Substantial Completion of the Tenant Improvements will occur. Tenant shall be required, within five (5) business days after receipt of such notice, to either deliver to Landlord written notice of termination (which will mean that this Lease shall terminate and be of no further force and effect) or agree to extend the Outside Date to the date stated in Landlord's notice. Tenant's failure to respond in writing thin this five (5) day period shall be considered to constitute Tenant's agreement to extend the Outside Date to the date stated in Landlord's notice. If the Outside Date is so extended, Landlord's right to request Tenant to elect to either terminate or further extend the Outside Date shall remain and continue to remain, with each of the notice periods and response periods set forth above, until the Substantial Completion of the Tenant Improvements or until this Lease is terminated. If Substantial Completion of the Tenant Improvements has not taken place by the Outside Date as the same has been extended pursuant to this subsection 4.4.2, this Lease shall, at the option of Tenant, terminate as of the Outside Date.

        4.5    Option to Extend Term.     Landlord grants to Tenant the option to extend the Lease Term (Extension Option) for one period of five (5) Lease Years (Option Term), subject to the conditions described in this Section 4.5. Tenant shall have no other right to extend the term beyond the Option Term.

        4.5.1.    Conditions of Option.     The Extension Option shall be subject to the following conditions:

• •         (a)   The Extension Option may be exercised only by written notice delivered by Tenant to Landlord as provided in this Section 4.5 and only if, as of the date of delivery of the notice, Tenant is not in default in the performance of any material term or condition of this Lease beyond the expiration of any applicable cure periods.

            (b)   The rights contained in this Section 4.5.1 shall be personal to and may be exercised only by the originally named Tenant (and not any assignee, sublessee, or other transferee of Tenant's interest in this Lease except that such rights may be exercised by any Transferee of a Transfer made pursuant to Section 18.7.1 or 18.7.2).

            (c)   If Tenant properly exercises the Extension Option and is not in default in the performance of any material term or condition of this Lease beyond the expiration of any applicable cure period the Lease Term, at the end of the initial Lease Term, then the Lease Term shall be extended for the Option Term upon all of the terms and conditions set forth in this Lease except (i) Tenant shall have no further right to extend the Lease Term, and (ii) the Rent payable by Tenant for the Option Term shall be determined in the manner set forth in Section 4.5.2 hereof.

        4.5.2.    Option Rent.     The Rent payable by Tenant during the Option Term (Option Rent) shall be equal to the Fair Market Rental Value of the Premises as of the commencement of the Option Term but shall not be less than the Base Rent and Tenant's share of Direct Expenses payable by Tenant immediately before the Option Term. Notwithstanding the foregoing the, annual Base Rent component of Rent payable during for the Option Term determined in accordance with this Section 4.5 shall be increased beginning with the third Lease Year of the Option Term by multiplying the Base Rent

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payable during the second Lease Year of the Option Term by one hundred ten percent (110%). The annual Base Rent as increased in accordance with the preceding sentence shall be the annual Base Rent for the last three Lease Years of the Option Term.

        4.5.2.1    Fair Market Rental Value.     For purposes of this Section 4.5, Fair Market Rental Value of the Premises shall be the rental rate, determined in accordance with Section 4.5.2, at which a sophisticated private sector tenant, in an arm's length transaction, would lease comparable space as of the commencement of the Option Term. For this purpose, "comparable space" shall be office space that is: (a) not subleased, (b) not subject to another tenant's expansion rights, (c) not leased to a tenant that holds an ownership interest in the landlord, (d) not leased to a tenant under a renewal or an extension of a lease, (e) comparable in size, location, and quality to the Premises, (f) leased for a term comparable to the Option Term, and (g) located in office buildings in the metropolitan Boston area which are comparable in age, size, location, quality of construction, services and amenities ("Comparable Buildings").

        4.5.2.2.    Rental Rate of Comparable Space.     In determining the rental rate of comparable space, the parties shall take into consideration all escalations and concessions as may then be customary in the market including: (a) rental abatement concessions, (b) tenant improvements or allowances provided or to be provided for the comparable space, and Operating Expense and Tax Expense pass-throughs corresponding to those contained in this Lease.

        4.5.3.    Exercise of Option.     The Extension Option must be exercised by Tenant, if at all, only at the time and in the manner provided in this subsection 4.5.3.

        4.5.3.1.    Interest Notice.     If Tenant wishes to exercise the Extension Option, Tenant shall deliver written notice (Interest Notice) to Landlord no less than twelve (12) months before the expiration of the initial Lease Term.

        4.5.3.2.    Option Rent Notice.     After receipt of Tenant's Interest Notice, Landlord shall deliver notice (Option Rent Notice) to Tenant no less than ten (10) months before the expiration of the initial Lease Term, stating the Option Rent, based on Landlord's determination of the Fair Market Rental Value of the Premises as of the commencement date of the Option Term.

        4.5.3.3.    Exercise Notice.     If Tenant wishes to exercise the Extension Option, Tenant must, on or before the earlier of (a) the date occurring nine (9) months before the expiration of the initial Lease Term or (b) the date occurring thirty (30) days after Tenant's receipt of the Option Rent Notice, exercise the Extension Option by delivering written notice (Exercise Notice) to Landlord.

        4.5.3.4.    Objection to Option Rent.     If Tenant wishes to contest the Option Rent stated in the Option Rent Notice, Tenant must provide, with the Exercise Notice, written notice to Landlord that Tenant objects to the stated Option Rent. If Tenant provides such written objection, the parties shall follow the procedure described in Section 4.5.3.4.1.

        4.5.3.4.1    Arbitration.     Tenant shall deliver to Landlord with the Exercise Notice and Tenant's written notice of objection the name of a real estate broker who has had at least ten (10) years of experience as a licensed real estate broker for the leasing of office space in Boston Metropolitan Area. Within ten (10) days after the receipt of such notice, Landlord shall provide Tenant in writing with the name of a real estate broker who meets the same criteria. Within fifteen (15) days thereafter the two brokers shall together appoint a third broker who meets the same criteria and within and additional fifteen (15) days the three brokers shall jointly determine the Fair Market Rental Value of the Premises using the criteria set forth in Sections 4.5.2.1 and 4.5.2.2. If the three brokers cannot agree, the determination of the broker who is the mean of the two extremes shall be binding and conclusive. In no event shall the Fair Market Rental Value of the Premises as determined by the broker(s) be less than the Base Rent and Tenant's share of Direct Expenses payable by Tenant immediately before the Option Term. The decision of the broker(s) shall be binding on both Landlord and Tenant. Each party shall pay all costs, fees and expenses of the broker they select and the parties shall share equally the costs fees and expenses of the third broker.

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        4.5.3.5.    Failure To Deliver Timely Notice.     If Tenant fails to deliver a timely Interest Notice or Exercise Notice, Tenant shall be considered to have elected not to exercise the Extension Option.

        4.5.4.    Amendment to Lease.     If Tenant timely exercises its Extension Option, Landlord and Tenant shall, within fifteen (15) days after the Option Rent is determined under Section 4.5.2, execute an amendment to this Lease extending the Lease Term on the terms and conditions set forth in this Section 4.5.

ARTICLE 5
BASE RENT

        Section 5.1    Definition of Base Rent.     Tenant shall pay to Landlord Base Rent in equal monthly installments in the amount forth in Section 1.3 in advance on or before the first day of every calendar month during the Lease Term, without notice, demand, setoff or deduction. Payment shall be made at Landlord's address set forth in Section 1.7 (a) or at any other place that Landlord may from time to time designate in writing. Payment must be in United States dollars, either in the form of a check or via electronically transmitted funds.

        Section 5.2    Initial Payment; Proration.     If any payment date (including the Lease Commencement Date) for "Rent", as defined in Section 6.1, falls on a day other than the first day of that calendar month, or if any Rent payment is for a period shorter than one calendar month, the Rent for that fractional calendar month shall accrue on a daily basis for each day of that fractional month at a daily rate equal to 1/365 of the total annual Rent. All other payments or adjustments that are required to be made under the terms of this Lease and that require proration on a time basis shall be prorated on the same basis.

        Section 5.3    Application of Payments.     All payments received by Landlord from Tenant shall be applied to the oldest payment obligation owed by Tenant to Landlord. No designation by Tenant, either in a separate writing or on a check or money order by way of endorsement or otherwise, shall modify this clause or have any force or effect.

ARTICLE 6
ADDITIONAL RENT

        Section 6.1    Additional Rent; Rent.     In addition to paying the Base Rent specified in Article 5, Tenant shall pay as additional rent Tenant's Share of the annual Direct Expenses (meaning the Operating Expenses plus the Tax Expenses as those terms are hereinafter defined) that are in excess of the amount of Direct Expenses applicable to the Base Year. That additional rent, together with other amounts of any kind (other than Base Rent) payable by Tenant to Landlord under the terms of this Lease, shall be collectively referred to in this Lease as "Additional Rent". Base Rent and Additional Rent are collectively referred to in this Lease as "Rent". Tenant's obligations to pay the Additional Rent provided for in this Article 6 survive the expiration of the Lease Term.

        Section 6.2.    Operating Expenses.     "Operating Expenses" means all reasonable, actual and necessary expenses, costs, and amounts of every kind that Landlord pays or incurs during any Expense Year (except that Landlord may use its normal accrual method of accounting) because of or in connection with the ownership, operation, management, maintenance, repair, replacement, or restoration of the Real Property as determined under generally accepted accounting principles, consistently applied, including, without limitation, any amounts paid or incurred for:

• • (a)

    The cost of electricity for the common areas (both interior and exterior) and for the operation of the Building Systems, water and sewage, gas for the operation of the roof-top HVAC units serving the entire building, telephone and other utility charges not billable to tenants;

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• • (b)

    The cost of operating, managing, maintaining, and repairing the heating, ventilating, air-conditioning, electrical, plumbing, sanitary, storm drainage, elevator and other utility and mechanical systems including the cost of supplies and tools and of equipment, maintenance and service contracts in connection with those systems;

    (c)

    The cost of services (including all outside maintenance contractors) performed and supplies, materials, tools and equipment used in operating, managing, maintaining, repairing or restoring the Real Property;

    (d)

    The cost of licenses, certificates, permits and inspections;

    (e)

    The cost of contesting the validity or applicability of any government enactments that may affect the Operating Expenses so long as Landlord has received Tenant's consent to such action, which consent shall not be unreasonably withheld or delayed;

    (f)

    The cost of insurance carried by Landlord;

    (g)

    Fees, charges and other costs including market-rate management fees (or amounts in lieu of such fees), consulting fees, legal fees and accounting fees of all persons engaged by Landlord or otherwise reasonably incurred by Landlord in connection with the operation, management, maintenance and repair of the Real Property;

    (h)

    The cost of parking area maintenance, repair and restoration, including resurfacing, replacement, repainting, restriping, snow plowing and removal, landscaping and cleaning;

    (i)

    Wages, salaries, and other compensation and benefits of all persons engaged in the operation, repair, management, maintenance, or security of the Real Property plus employer's Social Security taxes, unemployment taxes, insurance, and any other taxes that may be levied on those wages, salaries, and other compensation and benefits. If any of Landlord's employees provide services for more than one building of Landlord, only the prorated portion of those employees' wages, salaries, other compensation and benefits, and taxes reflecting the percentage of their working time devoted to the Real Property shall be included in Operating Expenses.

    (j)

    Payments under any easement, license, operating agreement, declaration, restrictive covenant, or instrument relating to the sharing of costs by the Building;

    (k)

    The cost of acquiring or renting personal property used in the maintenance, repair, and operation of the Building and Real Property;

    (l)

    The cost of capital improvements or other costs incurred in connection with the Real Property that (a) are intended to effect economies in the maintenance or operation of all or part of the Real Property or (b) are required under any government law or regulation not in effect as of the date of this Lease.

    (m)

    The cost of replacement of any exterior window treatment provided by Landlord and any carpeting in the common areas.

    (n)

    The cost of capital improvements or capital replacements permitted hereunder shall be amortized in equal annual installments over the useful life thereof as determined by Landlord using generally accepted accounting principles.

        6.2.1    Adjustment of Operating Expenses.     Operating Expenses shall be adjusted as follows:

         6.2.1.1    Gross-Up Adjustment When Building Is Less Than Fully Occupied.     If the occupancy of the Building during any part of any Expense Year (including the Base Year) is less than ninety-five percent (95%), Landlord shall make an appropriate adjustment of the variable components of Operating Expenses for that Expense Year, as reasonably determined by Landlord using sound accounting and

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management principles, to determine the amount of Operating Expenses that would have been incurred had the Building been ninety-five percent (95%) occupied. Adjustments to the Base Year Operating Expenses and Operating Expenses for subsequent Expense Years shall be made on a consistent basis. This amount shall be considered to have been the amount of Operating Expenses for that Expense Year. For purposes of this subsection 6.2.1.1, "variable components" include only those component expenses that are affected by variations in occupancy levels. In adjusting the variable components of Operating Expenses to reflect ninety-five percent (95%) occupancy of the Building, Landlord shall fairly allocate variable Operating Expenses so that:

• • (a)

    Landlord does not make a profit from that adjustment; and

    (b)

    the Operating Expenses are no greater than the amount that would have been paid or incurred had the Building been one hundred percent (100%) occupied.

         6.2.1.3    Adjustment for Cost Savings.     If, during any Expense Year following the Base Year, Landlord reduces any component of Operating Expenses as a result of (i) the acquisition or installation of capital improvements intended as labor-saving devices or (ii) other costs incurred to effect economies in the maintenance of operation of the Real Property, the corresponding component of Operating Expenses for the Base Year shall thereafter be reduced by the amount of such reduction for the purpose of determining Tenants share of increased Operating Expenses.

         6.2.1.2    Adjustment When Landlord Does Not Furnish a Service to All Tenants.     If, during any part of any Expense Year (including the Base Year), Landlord is not furnishing a particular service or work (the cost of which, if furnished by Landlord, would be included in Operating Expenses) to a tenant (other than Tenant) that has undertaken to perform such service or work in lieu of receiving it from Landlord, Operating Expenses for that Expense Year shall be considered to be increased by an amount equal to the additional Operating Expenses that Landlord would reasonably have incurred during this period if Landlord had furnished such service or work. Adjustments to the Base Year Operating Expenses and Operating Expenses for subsequent Expense Years shall be made on a consistent basis.

        6.2.2    Exclusions From Operating Expenses.     Notwithstanding the foregoing, Operating Expenses shall not include:

• • (a)

    Interest, amortization, depreciation, attorney fees, costs of environmental investigations or reports, points, fees, bad debt expenses and other lender costs and closing costs on any mortgage or mortgages, ground lease payments, or other debt instrument encumbering the Building.

    (b)

    Legal fees incurred in negotiating and enforcing tenant leases.

    (c)

    Real estate brokers' leasing commissions, space-planning costs, attorney fees and costs, disbursements, and other expense incurred in connection with leasing, other negotiations, or disputes with tenants, occupants, prospective tenants, or other prospective occupants of the Building.

    (e)

    The cost of providing any service directly to and paid directly by any tenant.

    (f)

    Any costs expressly excluded from Operating Expenses elsewhere in this Lease.

    (g)

    Costs of any items for which Landlord receives reimbursement from insurance proceeds or a third party. Insurance proceeds shall be excluded from Operating Expenses in the year in which they are received, except that any commercially reasonable deductible amount under any insurance policy shall be included within Operating Expenses.

    (h)

    Costs, fees and compensation paid to Landlord, or to Landlord's subsidiaries or affiliates, for services in or to the Building to the extent that they exceed the charges for comparable

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• • • • services rendered by an unaffiliated third party of comparable skill, competence, stature and reputation.

    (i)

    Costs associated with:
    
    

    (1)

    Operation of the business of the ownership of the Building or entity that constitutes Landlord or Landlord's property manager, as distinguished from the cost of Building operations, including the costs of partnership or corporate accounting and legal matters; defending or prosecuting any lawsuit with any mortgagee, lender, ground lessor, broker, tenant, occupant or prospective tenant or occupant; selling or syndicating any of Landlord's interest in the Building; and disputes between Landlord and Landlord's property manager;

    (2)

    Landlord's general corporate or partnership overhead and general administrative expenses, including the salaries of management personnel who are not directly related to the Building and primarily engaged in the operation, maintenance, and repair of the Building, except to the extent that those costs and expenses are included in the management fees;

    (j)

    Costs incurred (including permit, license, and inspection fees but excluding utilities) or cash consideration paid in renovating or otherwise improving, decorating, painting or redecorating space for tenants, prospective tenants, or other occupants or in renovating or redecorating vacant space available for those tenants, prospective tenants, or other occupants. This exclusion does not apply to remove from Operating Expenses the costs of ordinary maintenance supplied to the tenants of the Building or the costs for renovating or otherwise improving, decorating, painting or redecorating the common areas of the Building;

    (k)

    Costs incurred by Landlord due to the violation by Landlord of the terms and conditions of any lease of space in the Building;

    (l)

    Operating Expenses shall, in no event, include salaries and/or benefits attributable to personnel above the level of Building manager;

    (m)

    Rent for any office space occupied by Building management personnel to the extent the size or rental rate for such office space exceeds the size or fair market rental value of office space occupied by management personnel of Comparable Buildings in the vicinity of the Building;

    (n)

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

    (o)

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

    (p)

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

    (q)

    Costs arising from the gross negligence or willful misconduct of Landlord, its agents, employees, licensees, vendors and contractors;

    (r)

    Costs arising from Landlord's charitable or political contributions;

    (s)

    Costs arising from latent defects or repair thereof;

    (t)

    Costs for sculpture, paintings or other objects of art; or

    (u)

    Expenses in connection with services or benefits which are not offered to Tenant or for which Tenant is charged for directly.

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        6.3    Tax Expenses.     "Tax Expenses" means all federal, state or local government or municipal taxes, fees, charges or other impositions of every kind (whether general, special, ordinary or extraordinary) that are paid or incurred by Landlord during any Expense Year (without regard to any different fiscal year used by any government or municipal authority) because of or in connection with the ownership, leasing and operation of the Real Property. These expenses include taxes, fees and charges such as real property taxes, currently due installments of general and special assessments, transit taxes, leasehold taxes and taxes based on the receipt of gross rent (including gross receipts or sales taxes applicable to the receipt of rent, unless required to be paid by Tenant); personal property taxes imposed on the fixtures, machinery, equipment, apparatus, systems and equipment; appurtenances; furniture; and other personal property used in connection with the Building. General or special assessments not specifically chargeable to Tenant as the result of Tenant's occupancy, use, requirements, action or inaction shall be paid by Landlord in the maximum number of installments permitted by law and included as a Tax Expense in the year in which the installment is actually paid.

        6.3.1    Adjustment of Taxes.     For purposes of this Lease, Tax Expenses shall be calculated as if the tenant improvements in the Building were fully constructed and the Real Property, the Building, and all tenant improvements in the Building were fully assessed for real estate tax purposes. Landlord specifically agrees that the gross-receipts component of Tax Expenses for the Base Year and each subsequent year shall be calculated as if the Building were one hundred percent (100%) occupied with rent-paying tenants. Accordingly, during the portion of any Expense Year occurring after the Base Year, Tax Expenses shall be considered to be increased appropriately.

        6.3.2    Included Tax Expenses.     Tax Expenses shall include:

• • (a)

    Any assessment, tax, fee, levy or charge in addition to, or in partial or total substitution of, any assessment, tax, fee, levy or charge previously included within the definition of "real property tax"; any government or private assessments (or the Building's contribution toward a government or private cost-sharing agreement) for the purpose of augmenting or improving the quality of services and amenities normally provided by government agencies. Tenant and Landlord intend that all new and increased assessments, taxes, fees, levies and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of "Tax Expenses" for purposes of this Lease.

    (b)

    Any assessment, tax, fee, levy or charge allocable to, or measured by, the area of the Premises or the rent payable under this Lease, including any gross income tax with respect to the receipt of that rent, or on or relating to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of the Premises.

    (c)

    Any assessment, tax, fee, levy or charge on this transaction or any document to which Tenant is a party, creating or transferring an interest or an estate in the Premises.

    (d)

    Any possessory taxes charged or levied in place of real property taxes.

        6.3.3    Contest Costs; Refunds.     Any expenses incurred by Landlord in attempting to protest, reduce or minimize Tax Expenses shall be included in Tax Expenses in the Expense Year in which those expenses are paid. Tax refunds shall be deducted from Tax Expenses in the Expense Year in which they are received by Landlord.

        6.3.4    Excluded Taxes.     Despite any other provision of Section 6.3, the following shall be excluded from Tax Expenses:

• • (a)

    All excess profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal and state income taxes, and other taxes applied or

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• • • • measured by Landlord's general or net income (as opposed to gross rents, receipts, or income attributable to operations at the Building);

    (b)

    Any items included as Operating Expenses;

    (c)

    Any items paid by Tenant under Section 6.6; and

    (d)

    Assessment, charges, taxes, rents, fees, rates, levies, excises, license fees, permit fees, inspection fees or other authorization fees or charges to the extent allocable to or caused by the development or installation on- or off-site improvements or utilities (including, without limitation, street and intersection improvements, roads, rights-of-way, lighting and signalization) necessary for the initial development or construction of the Building, or any post, present or future system development reimbursement schedule or sinking fund related to any of the foregoing.

        Section 6.4    Calculation and Payment of Additional Rent.     Tenant's Share of any Direct Expenses for any Expense Year shall be calculated and paid as follows:

        6.4.1    Calculation of Excess.     If Tenant's Share of Direct Expenses for any Expense Year ending or beginning within the Lease Term exceeds Tenant's Share of the amount of Direct Expenses applicable to the Base Year, Tenant shall pay as Additional Rent to Landlord an amount equal to that excess, in the manner stated in subsection 6.4.2.

        6.4.2    Statement of Actual Direct Expenses and Payment by Tenant.     Landlord shall deliver to Tenant on or before the first day of April following the end of each Expense Year a statement setting forth the Direct Expenses incurred or accrued for that preceding Expense Year and indicating the amount, if any, of any excess over Direct Expenses applicable to the Base Year. On receipt of the statement for each Expense Year ending during the Lease Term for which such an excess exists, Tenant shall pay, within thirty (30) days, the full amount of such excess, less the amounts (if any) paid during that Expense Year as Estimated Excess (as defined in subsection 6.4.3). Landlord's failure to furnish the statement for any Expense Year in a timely manner shall not prejudice Landlord from enforcing its rights under this Article 6. Even if the Lease Term has expired and Tenant has vacated the Premises, if an excess exists when the final determination is made of Tenant's Share of the Direct Expenses for the Expense Year in which this Lease terminates, Tenant shall within thirty (30) days pay to Landlord the amount calculated under subsection 6.4.1. The provisions of this subsection 6.4.2 shall survive the expiration or earlier termination of the Lease Term.

        6.4.3    Statement of Estimated Direct Expenses.     Landlord shall give Tenant a yearly expense estimate statement (Estimate Statement) stating:

• • (a)

    Landlord's reasonable estimate (Estimate) of the total amount of Direct Expenses for the then-current Expense Year; and

    (b)

    The estimated excess (Estimated Excess).

The Estimated Excess shall be calculated by comparing estimated Direct Expenses (which shall be based on the Estimate) to the amount of Direct Expenses applicable to the Base Year. Landlord's failure to furnish the Estimate Statement for any Expense Year in a timely manner shall not preclude Landlord from enforcing its rights to collect any Estimated Excess under this Article 6. If an Estimated Excess is calculated for the then-current Expense Year, Tenant shall pay, with its next installment of Base Rent due, a fraction of that Estimated Excess for the then-current Expense Year (reduced by any amounts paid as provided in the last sentence of this subsection 6.4.3). The numerator of that fraction shall be the number of months that have elapsed in that current Expense Year (including the month of the payment), and the denominator shall be twelve (12). Until a new Estimate Statement is furnished, Tenant shall pay monthly, along with the monthly Base Rent installments, an amount equal to one-twelfth of the total Estimated Excess stated in the previous Estimate Statement delivered by Landlord to Tenant.

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        6.4.4    Refund of Overpayment of Excess.     If the statement shows that the excess for any Expense Year ending or beginning within the Lease Term is less than the Estimated Excess actually paid by Tenant for that Expense Year, Landlord shall credit Tenant's next payment(s) of Estimated Excess with the amount by which Tenant's payments of Estimated Excess exceed the actual excess due for that Expense Year (or if the excess is greater than Tenant's remaining payments of Estimated Excess, Landlord shall pay the difference to Tenant within thirty [30] days). If that statement is provided to Tenant after the end of the Lease Term, Landlord shall include with the statement a refund of the amount by which Tenant's payments of Estimated Excess exceed the actual excess due for that Expense Year.

        Section 6.5    Allocation of Direct Expenses.     Despite any other provision of this Article 6, in the calculation of Direct Expenses for the Base Year:

• • (a)

    Direct Expenses shall not include any increase in Tax Expenses attributable to (i) special assessments, charges, costs or fees; or (ii) modifications or changes in government laws or regulations; and

    (b)

    Operating Expenses shall exclude (i) market-wide labor-rate increases arising from extraordinary circumstances (such as boycotts and strikes) and (ii) utility rate increases arising from extraordinary circumstances (such as conservation surcharges, boycotts, embargoes, or other shortages).

        Section 6.6    Taxes and Other Charges for Which Tenant Is Directly Responsible.     Tenant shall reimburse Landlord, on demand, as Additional Rent, for any taxes required to be paid by Landlord that are not already included in Tax Expenses, excluding state, local and federal personal or corporate income taxes measured by the net income of Landlord from all sources and estate and inheritance taxes, regardless of whether such taxes are now customary or within the contemplation of the parties to this Lease, when those taxes are:

• • (a)

    Measured by or reasonably attributable to:
    
    

    (1)

    The cost or value of Tenant's equipment, furniture, fixtures and other personal property located in the Premises; or

    (2)

    The cost or value of any leasehold improvements made in or to the Premises by or for Tenant (to the extent that the cost or value of those leasehold improvements exceeds the cost or value of a building-standard build-out, as reasonably determined by Landlord, regardless of whether title to those improvements is vested in Tenant or Landlord);

    (b)

    Assessed on any document to which Tenant is a party that transfers Tenant's interest in the Premises.

        Section 6.7    Landlord's Books and Records; Tenant's Audit Rights.     Tenant and its authorized representatives may, on no less than thirty (30) days prior written notice, examine, inspect and audit the records of Landlord regarding each statement prepared by Landlord pursuant to Section 6.4.2. The audit of Direct Expenses for any calendar year must be begun within one hundred eighty (180) days after Tenant's receipt of the statement for that year, or the right to audit Direct Expenses for that year shall be deemed waived and the statement shall be considered as final and accepted by Tenant. Tenant's rights under this Section may be exercised only if Tenant is not in default under this Lease. In no event shall this Section be deemed to allow inspection and audit of Landlord's records by any subtenant of Tenant.

        Such an audit shall be performed during regular business hours at Landlord's offices by a reputable, independent, regionally or nationally recognized certified public accounting firm whose primary business must be certified public accounting. There shall be no more than one audit of Direct

14

Expenses for any twelve (12) month period. Tenant agrees diligently to pursue and complete any audit begun by Tenant, and Landlord agrees it shall not unreasonably interfere with the execution of Tenant's audit rights. Except as otherwise provided herein, Tenant shall bear all fees and costs of the audit. Pending resolution of any disputes over Direct Expenses, Tenant shall pay to Landlord any Additional Rent alleged to be due from Tenant as reflected on Landlord's statement or any invoice issued on the basis of Landlord's statement. If such audit reveals that Tenant's Share of the Direct Expenses has been overstated, then Landlord shall immediately refund the overpayment to Tenant. If overstated by more than four percent (4%), Landlord shall promptly, upon demand, reimburse Tenant for the reasonable costs of such audit except if such overstatement is the result of good-faith clerical errors or errors in computation. Tenant shall keep any information gained from the inspection of Landlord's records confidential and shall not disclose same to any other party except as required by law.

        Tenant agrees that the provisions of this Section shall be the sole method to be used by Tenant to dispute or contest any Direct Expenses payable by Tenant and Tenant hereby waives any other rights at law or in equity regarding same.

ARTICLE 7
SECURITY DEPOSIT

        Section 7.1    Delivery of Letter of Credit.     Concurrently with Tenant's execution of this Lease, Tenant shall deliver to Landlord, and cause to be in effect during the Least Term, an irrevocable Letter of Credit in the amount stated in Section 1.5. The Letter of Credit shall be in form and content acceptable to Landlord and shall be issued by a bank (the "Bank") selected by Tenant and reasonably acceptable to Landlord. The Letter of Credit shall, by its terms, permit a transfer or assignment to Landlord's mortgagee or transferee pursuant to the terms of Section 7.5 The Bank shall be a bank that accepts deposits, maintains accounts and has an office in the Boston metropolitan area that will negotiate a Letter of Credit, and deposits of which are insured by the Federal Deposit Insurance Corporation. Tenant shall pay all expenses, points or fees incurred by Tenant in securing and maintaining the Letter of Credit. If the term of the Letter of Credit will expire prior to expiration of the Lease Term, Tenant shall deliver to Landlord, at least forty-five (45) days prior to the expiration date, a renewal of the Letter of Credit for a term not less than one year or a replacement Letter of Credit which satisfies the conditions of Section 7.2.

        Section 7.2    Replacement Letter of Credit.     Tenant may, from time to time, replace any existing Letter of Credit with a new Letter of Credit if the new Letter of Credit:

• • (a)

    becomes effective at least thirty (30) days before expiration of the Letter of Credit that it replaces;

    (b)

    is in the amount required by Section 1.5 and as the same may be reducted pursuant to Section 7.8;

    (c)

    is issued by a bank reasonably acceptable to Landlord;

    (d)

    is for a term not less than one year; and

    (e)

    otherwise complies with the requirements of this Article 7.

Upon delivery of the new Letter of Credit to Landlord, Landlord shall immediately return the existing Letter of Credit to Tenant. Landlord shall not draw upon the existing Letter of Credit after the new Letter of Credit is delivered to Landlord. Notwithstanding the foregoing, Landlord agrees that the form of Letter of Credit attached hereto as Exhibit G is acceptable to Landlord.

        Section 7.3    Landlord's Right to Draw on Letter of Credit.     Landlord shall hold the Letter of Credit as security for the performance of Tenant's obligations under this Lease. If Tenant defaults under any provision of this Lease and fails to cure such default after any required notice and prior to the

15

expiration of any applicable cure period, Landlord or Landlord's mortgagee or assignee may, without prejudice to any other remedy it has, draw all or any portion of the Letter of Credit and apply the proceeds to:

• • (a)

    any Rent or other sum in default;

    (b)

    any amount that Landlord may spend or become obligated to spend in exercising Landlord's rights under Article 23; or

    (c)

    any expense, loss or damage that Landlord may suffer because of Tenant's default.

If Tenant fails to renew or replace the Letter of Credit at least forty-five (45) days before its expiration, Landlord may, without prejudice to any other remedy it has, draw on all or the Letter of Credit. Landlord may draw upon the Letter of Credit by notice to the Bank that (i) Tenant has defaulted under the Lease and that any applicable cure period has expired, or (ii) that Tenant has failed to renew or replace the Letter of Credit within the time periods set forth in the Lease. Landlord's notice shall contain the amount which Landlord is drawing under the Letter of Credit. No further documentation shall be required and the Bank shall be entitled to rely on Landlord's notice.

        Section 7.4    Letter of Credit Security Deposit.     Any portion of the Letter of Credit that is drawn on by Landlord but not immediately applied by Landlord shall be held by Landlord as a security deposit (the "Security Deposit") which may be applied from time to time by Landlord for the purposes described in Sections 7.3(a), (b) and (c).

        Section 7.5    Landlord's Transfer of Letter of Credit.     If Landlord transfers or mortgages its interest in the Premises, Landlord shall transfer or assign the Letter of Credit or any Security Deposit held pursuant to Section 7.4 to Landlord's mortgagee or transferee and thereupon be relieved of further responsibility with respect to the Letter of Credit or Security Deposit so long as the transferee agrees in writing to hold the Letter of Credit or Security Deposit under the provisions of this Article 7.

        Section 7.6    Assignment or Encumbrance of Letter of Credit.     Tenant may not assign, mortgage or encumber the Letter of Credit or Security Deposit without the consent of Landlord. Any attempt to do so shall be void and shall not be binding upon Landlord.

        Section 7.7    Restoration of Letter of Credit and Security Deposit.     If Landlord draws on any portion of the Letter of Credit, Tenant shall, within twenty (20) business days after demand by Landlord, either (a) deposit cash with Landlord in an amount that, when added to the amount remaining under the Letter of Credit and the amount of Security Deposit, shall equal the amount required to be deposited under Section 1.5, or (b) deliver written documentation reasonably satisfactory to Landlord and its mortgagee or transferee executed by the Bank confirming that the Letter of Credit has been reinstated to the amount required under Section 1.5 and this Article 7.

        If Landlord applies any portion of the Security Deposit, Tenant shall, within twenty (20) business days after demand by Landlord, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to the amount required under Section 1.5 Any cash deposited by Tenant shall be held by Landlord as Security Deposit, which may be applied by Landlord for the purposes described in Section 7.3(a), (b) and (c) of this Article 7.

        Section 7.8    Reduction in Letter of Credit Amount.     If Tenant is not in default under this Lease, the amount of the Letter of Credit required pursuant to Section 1.5 and this Article 7 shall be reduced commencing with the first day of the forty-third month of the Lease Term to Five Hundred Thousand Dollars ($500,000).

        Section 7.9    Interest on Security Deposit.     Tenant is not entitled to any interest on the Security Deposit.

16

        Section 7.10    Return of Security Deposit.     The Letter of Credit and the unused portion of the Security Deposit, if any, shall be returned to Tenant, or the last assignee of Tenant's interest under the Lease, within sixty (60) days following the expiration or termination of the Lease Term so long as Tenant is not then in default of its lease obligations.

ARTICLE 8
USE

        Section 8.1    Permitted Use.     Tenant shall use the Premises solely for the "Permitted Use," as defined in Section 1.6 and for no other purpose or purposes. Landlord represents and warrants to Tenant that the office use is not prohibited under applicable zoning ordinances and land use regulations.

        Section 8.2    Rules and Regulations.     Tenant shall comply with the rules attached to this Lease as Exhibit D and any reasonable amendments or additions promulgated by Landlord from time to time with respect to the safety, care, and cleanliness of the Premises, Building, and Real Property or for the preservation of good order as long as:

• • (a)

    The Rules and Regulations do not require Tenant to pay any Rent in addition to that required hereunder;

    (b)

    No amendment or addition to the Rules and Regulations is binding on Tenant until the tenth business day after Tenant receives written notice of the change, and no amendment or addition applies retroactively;

    (c)

    The Rules and Regulations do not take precedence over the specific terms and conditions of this Lease.

Landlord shall act reasonably, in good faith, and in a nondiscriminatory manner in enforcing the Rules and Regulations. Provided Landlord does so, Landlord shall not be responsible to Tenant for the failure of any other tenants or occupants of the Building to comply with the Rules and Regulations.

        Section 8.3    Additional Restrictions on Use.     In addition to complying with other provisions of this Lease concerning the use of the Premises:

• • (a)

    Tenant shall not permit the occupancy of the Premises at any time during the Lease Term to exceed one person (including visitors) per one hundred fifty (150) Usable Square Feet of space in the Premises;

    (b)

    Tenant shall not use or knowingly allow any person to use the Premises for any purpose that is contrary to the Rules and Regulations, that violates any Laws and Orders, that constitutes waste or nuisance, or that would unreasonably annoy other occupants of the Building or the owners or occupants of buildings adjacent to the Building; and

    (c)

    Tenant shall not use or knowingly allow any person to use the Premises for any purpose that violates any recorded covenants, conditions, and restrictions that now or later affect the Real Property of which Landlord has notified Tenant. Landlord shall not modify, amend or enter into any covenants, conditions or restrictions that contravene the provisions of this Lease or that otherwise adversely affect Tenant's use of the Premises or the conduct of its business on the Premises. Landlord represents and warrants that there are no covenants, conditions or restrictions that prohibit the Permitted Use or that otherwise adversely and materially affect Tenant's use and occupancy of the Premises.

    (d)

    Tenant shall not use or knowingly allow any person to use the Premises in any way inconsistent with the maintenance of the Building as a first-class office building in the quality of its upkeep, use and occupancy.

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ARTICLE 9
COMPLIANCE WITH LAWS

        Section 9.1    Definition of "Laws and Orders".     The term "Laws and Orders", as used herein, includes all federal, state, county, city or government agency laws, statutes, ordinances, standards, rules, requirements or orders now in force or hereafter enacted, promulgated, or issued. The term also includes government measures regulating or enforcing public access, occupational, health or safety standards for employers, employees, landlords or tenants.

        Section 9.2    Repairs, Replacements, Alterations, and Improvements.     Tenant shall continuously and without exception repair and maintain the Premises, including Tenant Improvements, Alterations, fixtures, and furnishings, in an order and condition in compliance with all Laws and Orders. Tenant, at Tenant's sole expense, shall promptly make all repairs, replacements, alterations, or improvements needed to comply with all Laws and Orders to the extent that the Laws and Orders relate to or are triggered by (a) Tenant's particular manner of use of the Premises (as opposed to general office use), (b) the Tenant Improvements located in the Premises, or (c) any Alterations located in the Premises.

        Landlord, at Landlord's sole expense, shall promptly make all repairs, replacements, alterations, or improvements needed to comply with all Laws and Orders to the extent that the Laws and Orders relate to the Base Building and exterior public and common areas located on the Real Property. If, however, such compliance work on the Base Building is triggered by either Tenant Improvements or Alterations in and to the Premises, Tenant shall bear all expense of such work on the Base Building.

        Section 9.3    Collateral Estoppel.     The final, unappealable judgment of any court of competent jurisdiction, or the admission of Tenant in any judicial or administrative action or proceeding that Tenant has violated any Laws and Orders shall be conclusive, between Landlord and Tenant, of that fact, whether or not Landlord is a party to that action or proceeding.

ARTICLE 10
HAZARDOUS MATERIAL

        Section 10.1    Use of Hazardous Material.     Tenant shall not cause or permit any Hazardous Material, as defined in Section 10.5, to be generated, brought onto, used, stored or disposed of in or about the Premises or the Real Property by Tenant or its agents, employees, contractors, subtenants or invitees, except for limited quantities of standard office and janitorial supplies containing chemicals categorized as Hazardous Material. Tenant shall:

• • (a)

    Use, store, and dispose of all such Hazardous Material in strict compliance with all applicable statutes, ordinances, and regulations in effect during the Lease Term that relate to public health and safety and protection of the environment, including those identified in Section 10.5; and

    (b)

    Comply at all times during the Lease Term with all environmental laws.

        Section 10.2    Warranties; Notice of Release or Investigation.     Landlord warrants and represents to Tenant that, to the best of Landlord's actual knowledge, as of the effective date of the Lease:

• • (a)

    There has been no release onto or under the Premises or the Real Property of any Hazardous Material in violation of any environmental law;

    (b)

    The Building contains no polychlorinated biphenyls (PCBs), PCB-contaminated electrical equipment, or asbestos-containing materials; and

    (c)

    Landlord has received no notice that the Premises or the Real Property is in violation of any environmental law.

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If, during the Lease Term (including any extensions), either Landlord or Tenant becomes aware of (a) any actual or threatened release of any Hazardous Material on, under, or about the Premises or the Real Property or (b) any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of Hazardous Material on, under, or about the Premises or the Real Property, that party shall give the other party written notice of the release or investigation within five (5) days after learning of it and shall simultaneously furnish to the other party copies of any claims, notices of violation, reports, or other writings received by the party providing notice that concern the release or investigation.

        Section 10.3    Indemnification.     Landlord and Tenant shall, at that party's sole expense and with counsel reasonably acceptable to the other party, indemnify, defend and hold harmless the other party and the other party's shareholders, directors, officers, employees, partners, affiliates, agents and successors with respect to all losses arising out of or resulting from the release of any Hazardous Material in or about the Premises or the Building, or the violation of any environmental law, by that party or that party's agents, assignees, sublessees, contractors or invitees. This indemnification includes all losses, costs of characterization, costs of removal, remedial actions, repairs, liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant, and expert fees and expenses) resulting from the release or violation. This indemnification shall survive the expiration or termination of this Lease.

        Section 10.4    Remediation Obligations.     If the presence of any Hazardous Material brought onto the Premises or the Real Property by Tenant or Tenant's employees, agents, contractors, or invitees results in contamination thereof or poses a realistic threat of liability, Tenant shall promptly take all necessary actions to remove or remediate such Hazardous Materials, whether or not they are present at concentrations exceeding state or federal maximum concentration or action levels, or any governmental agency has issued a cleanup order, at Tenant's sole expense, to return the Premises or the Real Property to the condition that existed before the introduction of such Hazardous Material. Tenant shall first obtain Landlord's approval of the proposed removal or remedial action. This provision does not limit the indemnification obligation set forth in Section 10.3.

        Section 10.5    Definition of "Hazardous Material".     As used in this Article 10, the term "Hazardous Material" shall mean any hazardous or toxic substance, material, or waste at any concentration that is or becomes regulated by the United States, the Commonwealth of Massachusetts, or any local government authority having jurisdiction over the Building. Hazardous Material includes, without limitation:

• • (a)

    Any "hazardous substance", as that term is defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 United States Code sections 9601-9675);

    (b)

    "Hazardous waste", as that term is defined in the Resource Conservation and Recovery Act of 1976 (RCRA) (42 United States Code sections 6901-6992k);

    (c)

    Any pollutant, contaminant, or hazardous, dangerous or toxic chemical, material or substance, within the meaning of any other applicable federal, state or local law, regulation, ordinance or requirement (including consent decrees and administrative orders imposing liability or standards of conduct concerning any hazardous, dangerous, or toxic waste, substance or material, now or hereafter in effect);

    (d)

    Petroleum products;

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• • (e)

    Radioactive material, including any source, special nuclear, or byproduct material as defined in 42 United States Code sections 2011-2297g-4;

    (f)

    Asbestos in any form or condition; and

    (g)

    PCBs and substances or compounds containing PCBs.

ARTICLE 11
UTILITIES AND SERVICES

        Section 11.1    Standard Tenant Utilities and Services.     Subject to applicable government rules, regulations, and guidelines and the rules or actions of the public utility furnishing the service, Landlord shall provide the following utilities and services on all days during the Lease Term, unless otherwise stated in the Lease:

        11.1.1    Heating and Air-Conditioning.     Landlord shall provide medium pressure, conditioned air (with morning warm up, when necessary, and night setback) for use in the Premises, on Mondays through Fridays from 8:00 a.m. through 6:00 p.m. and on Saturday from 8:00 a.m. to 12:00 noon (Building Hours) or such shorter periods as may be prescribed by any applicable policies or regulations adopted by any utility or governmental agency, and except for the dates of observation of locally or nationally recognized holidays (Holidays). Electrical power for the operation of VAV and fan powered terminal boxes with electric heating coils situated in or exclusively serving the Premises shall be on Tenant's meter. Landlord shall also provide heating and air-conditioning for normal comfort in the common areas located in the Building including stairways, restrooms, and lobbies.

        11.1.2    Electricity.     Landlord shall provide electricity for the common areas located in the Building including stairways, restrooms and lobbies and for the operation of the Building Systems (as defined in Section 12.2[d]). Electricity for the Premises (for lighting, equipment operation, operation of VAV and fan-powered terminal boxes with electric heating coils, and other Tenant use) shall be separately metered. Tenant shall, at its sole cost, arrange for installation of the meter to service the Premises with the electric service provider providing electricity to the Building. Such meter shall be located in the ground floor electrical room. Any meter or security deposit shall be the responsibility of Tenant. Tenant shall pay to the electric service provider the entire cost of electricity consumed in the Premises on or before the date that the same shall be due and payable. Landlord retains the right to designate the electric service provider supplying electricity to the Building and the Premises. The connected electrical load for the Premises shall not exceed eleven (11) watt per Usable Square Foot of the Premises.

        11.1.3    Water.     Landlord shall provide water for drinking, lavatory and toilet purposes in the common areas located in the Building.

        11.1.4    Janitorial Services.     Landlord shall provide janitorial services in and about the Premises and the restrooms in the common areas serving the Premises on Mondays through Fridays, except on Holidays in accordance with the specifications attached to this Lease as Exhibit E. Landlord shall not be required to provide janitorial services to improvements installed in the Premises which exceed the Specifications for Building standard components as described Schedulel to the Tenant Work Letter such as metallic trim, wood floor covering, glass panels, interior windows, kitchens, executive workrooms and shower facilities.

        11.1.5    Passenger Elevator Service.     Landlord shall provide nonexclusive automatic passenger elevator service, with all elevators in service (subject to normal maintenance and repair) during Building Hours and at least one elevator in service during non-Building Hours.

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        11.1.6    Security Services.     Landlord shall provide a card key access for the Building. Any other security systems or devices deemed necessary by Tenant may be installed by Tenant at it's sole cost and expense.

        11.1.7    Parking.     Landlord shall provide and maintain throughout the Lease Term two hundred twenty-five (225) automobile parking spaces upon the Real Estate which shall be available to Tenant, its employees and business invitees as well as to other tenants of the Building and their employees and business invitees. If, for any reason, Landlord fails to provide the number of automobile parking spaces provided for herein and such failure adversely affects Tenant's use of the Premises, such failure shall not be deemed to be a Default by Landlord so as to permit Tenant to terminate this Lease, but there shall be a fair and equitable abatement of Base Rent based upon the adverse affect on Tenant's business until Landlord shall provide substitute parking.

        Section 11.2    Overstandard Tenant Use.     Tenant shall not, without Landlord's prior written consent: (i) use heat-generating machines, machines other than normal office machines, or equipment; (ii) lighting other than set forth in the Standard Improvement Package; (iii) allow occupancy of the Premises by more than one person for each 150 square feet of Rentable Area; or (iv) make any other use of the Premises that may affect the temperature otherwise maintained by the heating, ventilating and air-conditioning system installed by Landlord to service the Building as described in Section 1.2.2 of the Tenant Work Letter. Landlord acknowledges that a portion of the Premises will be used as an electronics laboratory which will require the installation by Tenant of machines and/or equipment which may require the consent of Landlord pursuant to (i) of the preceding sentence. Landlord agrees that it shall not unreasonably withhold or delay such consent. Should Landlord consent to any such use, Landlord may make such modifications or additions to the Building systems or install such supplementary systems as Landlord, in its sole discretion, deems necessary as the result of such use. On billing by Landlord, Tenant shall pay the cost for such modifications additions and/or supplementary systems, including the cost of (a) installation, operation, and maintenance of equipment; (b) increased wear and tear on existing equipment; and (c) other similar charges. Any modifications or additions to the VAV and fan-powered terminal boxes located within the Premises required as the result of such use shall be done by Tenant at its sole cost and expense.

        Tenant's use of electricity shall never exceed the capacity of the feeders serving the Building and Premises or the risers or wiring installation. If Tenant wishes to use heat, ventilation, or air-conditioning during hours other than those for which Landlord is obligated to supply such utilities under Section 11.1, Tenant shall give Landlord such prior notice as Landlord shall from time to time establish as appropriate, and Landlord shall endeavor to supply such services to Tenant at an hourly cost to Tenant as shall be calculated to reimburse Landlord for the cost of supplying same without profit to Landlord. Amounts payable by Tenant to Landlord under this Section 11.2 for use of additional utilities shall be considered Additional Rent under this Lease and shall be billed on a monthly basis.

        Section 11.3    Interruption of Utilities.     Tenant agrees that Landlord shall not be liable for damages, by abatement of Rent (except as provided in subsection 11.3.1 hereof) or otherwise, for failure to furnish or delay in furnishing any service or for diminution in the quality or quantity of any service when the failure, delay, or diminution is entirely or partially caused by:

• • (a)

    Breakage, repairs, replacements, or improvements;

    (b)

    Strike, lockout, or other labor trouble;

    (c)

    Inability to secure electricity, gas, water, or other fuel at the Building after reasonable effort to do so;

    (d)

    Accident or casualty;

    (e)

    Act or default of Tenant or other parties; or

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• • (f)

    Any other cause beyond Landlord's reasonable control.

Such failure, delay or diminution shall not be considered to constitute an eviction or a 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.

        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 loss of profits through, in connection with, or incidental to a failure to furnish any of the utilities or services under this Article 11. Landlord may comply with mandatory or voluntary controls or guidelines promulgated by any government 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 as long as compliance with voluntary controls or guidelines does not materially and unreasonably interfere with Tenant's use of the Premises.

        11.3.1    Abatement of Rent.     If any essential services (such as HVAC or electricity) supplied by Landlord are interrupted and such interruption does not result from the negligence or willful misconduct of Tenant, its employees, invitees or agents, Tenant shall be entitled to an abatement of Base Rent beginning on the sixth consecutive business day of the interruption or when Tenant stops using the Premises because of the interruption, whichever is later. The abatement shall end when the services are restored.

        Section 11.4    Utility Providers.     Landlord may, in Landlord's sole and absolute discretion, at any time and from time to time, contract, or require Tenant to contract, for utility services (including generation, transmission, or delivery of the utility service) with a utility service provider(s) of Landlord's choosing. Tenant shall fully cooperate with Landlord and any utility service provider selected by Landlord. Tenant shall permit Landlord and the utility service provider to have reasonable access to the Premises and the utility equipment serving the Premises, including lines, feeders, risers, wiring, pipes and meters provided that reasonable efforts are used to minimize interference with Tenant's use and enjoyment of the Premises.

ARTICLE 12
REPAIRS AND MAINTENANCE

        Section 12.1    Tenant's Repair and Maintenance Obligations.     During the tern of this Lease Tenant shall, at Tenant's sole expense and in accordance with the terms of this Lease, inaintain, keep in good order, repair and condition (wear and tear excepted) and make all replacements to:

• • (a)

    The nonstructural portions of the Premises (including all Tenant Improvements, Alterations, fixtures and furnishings).

    (b)

    The electrical, plumbing, fire/life safety, sanitary, data/communication, security and other mechanical systems that are located within or exclusively serve the Premises but excluding those systems which Landlord is to maintain as specifically provided in Section 12.2 (e).

    (c)

    Repairs or replacements to the Premises, the Building or the Real Property which would otherwise be Landlord's obligation under Section 12.2 required or necessitated as the result of: (i) Tenant's misuse, (ii) any act, or negligent omission of Tenant, its agents, employees, invitees, licensees or contractors, or (iii) defects, failures, deficiencies, errors or omissions in the design, or as the result of defective workmanship and materials pertaining to the heating, ventilating, and air conditioning system installed within the Premises by Tenant as a part of Tenant Improvements. Any repair, maintenance or replacement work which shall be the obligation of Tenant under this Section 12.1 (c) affecting the structural integrity of the Building, the Building Systems as defined in Section 12.2(d), the heating, ventilating, air conditioning and fire sprinkler systems within the Premises referred to in Section 12.2 (e), or

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• • • • the exterior appearance of the Building shall be performed only by a contractor designated by Landlord to perform the work.

If Tenant fails to maintain the Premises in accordance with the terms of this Section 12.1, or fails to make the required repairs or replacements thereto within thirty (30) days after receipt of written notice from Landlord of the need for such repairs or replacements (or fails to commence any repair or replacement obligation for which the reasonable completion time exceeds thirty (30) days, and to diligently prosecute this obligation to completion), Landlord may, but need not, perform such maintenance, repair or replacement obligation for and on behalf of Tenant. On receipt of an invoice from Landlord, Tenant shall pay Landlord's out-of-pocket costs incurred in connection with such maintenance, repairs and replacements plus ten percent (10%) of such costs, to be uniformly established for the Building, sufficient to reimburse Landlord for all overhead, general conditions, fees and other cost and expenses arising from Landlord's involvement with such maintenance, repairs and replacements.

The provisions of this Section 12.1 shall not apply in the event of damage or destruction by any Casualty or Condemnation in which event the obligations of Landlord and Tenant shall be as set forth in Articles 16 and 17.

        Section 12.2    Landlord's Repair and Maintenance Obligations.     Landlord shall, as a part of Operating Expenses (to the extent permitted by Article 6), maintain, keep in good order, repair and condition (wear and tear excepted) and make all required replacements to:

• • (a)

    The roof and structural portions of the Building

    (b)

    Structural portions of the Premises

    (c)

    The exterior portions of the Building (including windows and doors) and Real Property

    (d)

    The heating, ventilating, air conditioning, electrical, plumbing, fire/life safety, sanitary, storm drainage, elevator, security and other mechanical systems that serve the entire Building but excluding those systems that are located within or exclusively serve the Premises or premises leased to others (the "Building Systems") except as specifically provided in Section 12.2 (e).

    (e)

    The heating, ventilating, air conditioning and fire sprinkler systems located within the Premises or premises leased to others with the exception on any supplementary systems which shall be governed by the provisions of Section 11.2.

    (f)

    All other common areas located in the Building, or in or on the Real Property, including without limitation stairways, restrooms, lobbies, janitorial closets and the parking facilities serving the Building

Repairs shall be made promptly when appropriate to keep the applicable portion of the Premises, Building, Real Property and other items which are the responsibility of Landlord hereunder in good order condition and repair. Landlord shall not be in default of its repair and maintenance obligations under this Section 12.2 if Landlord performs the repairs and maintenance within thirty (30) days following receipt of written notice from Tenant of the need therefor. If, due to the nature of the particular repair or maintenance obligation, more than thirty (30) days are reasonably required to complete it, Landlord shall not be in default under this Section 12.2 if Landlord begins work within such thirty (30) day period and thereafter diligently prosecutes such work to completion.

Notwithstanding the forgoing, Landlord shall not be required to make any repairs or replacements required or necessitated as the result of (i) Tenant's misuse, (ii) any act, or negligent omission of Tenant, its agents, employees, invitees, licensees or contractors, or (iii) defects, failures, deficiencies, errors or omissions in the design, or as the result of defective workmanship and materials pertaining to the heating, ventilating, and air conditioning system installed within the Premises by Tenant as a part of

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Tenant Improvements. The provisions of this Section 12.2 shall not apply in the event of damage or destruction by any Casualty or Condemnation in which event the obligations of Landlord shall be as set forth in Articles 16 and 17.

Except as specifically provided in this Lease, no abatement of Rent and no liability of Landlord shall result for any injury to or interference with Tenant's business arising from the making of or failure to make any repairs, replacements required by this Section 12.2.

ARTICLE 13
ALTERATIONS AND ADDITIONS

        Section 13.1    Landlord's Consent to Alterations.     Tenant may not make any improvements, alterations, additions or changes to the Premises (including the installation of improvements exceeding those set forth in the Tenant Improvement Package and supplementary systems required as the result of Overstandard Tenant Use in Tenant's electronics laboratory) (Alterations) without first obtaining Landlord's prior written consent not to be unreasonably withheld or delayed. Tenant's request for such consent must be accompanied by detailed and complete plans and specifications for the proposed work. Tenant shall reimburse Landlord for the reasonable fees and costs of any architects, engineers, or other consultants retained by Landlord to review the proposed Alterations. As a condition of its consent to Alterations, Landlord may impose any requirements that Landlord reasonably considers necessary, including a requirement that Tenant provide Landlord with a surety bond, a letter of credit, or other financial assurance that the cost of the Alterations will be paid when due. The Alterations for which Landlord may reasonably withhold its consent include, without limitation, those that would or could:

• • (a)

    Affect the structure of the Building or any portion of the Building other than the interior of the Premises;

    (b)

    Affect the Building Systems;

    (c)

    Result in Landlord's being required under Laws and Orders to perform any work that Landlord could otherwise avoid or defer ("Additional Required Work"), unless Tenant agrees in writing to pay for the entire cost of the design and construction of the Additional Required Work;

    (d)

    Result in a material increase in the demand for utilities or services that Landlord is required to provide, unless Tenant agrees to pay the additional cost;

    (e)

    Cause an increase in the premiums for hazard or liability insurance carried by Landlord unless Tenant agrees to pay the amount of the increase in premiums; or

    (f)

    Diminish or reduce the economic value of the Building below its value immediately before such Alterations.

Notwithstanding the foregoing, Tenant shall have the right, without Landlord's consent, to perform Alterations which (a) do not cost in excess of Ten Thousand Dollars ($10,000) and (b) do not fall within any of the categories described in paragraph (a) through (e) above.

        Section 13.2    Compliance of Alterations with Laws and Insurance Requirements.     Tenant shall cause all Alterations to comply with applicable Laws and Orders and applicable requirements of a fire-rating bureau or of Landlord's hazard insurance carrier. Before beginning construction of any Alteration, Tenant shall obtain a valid building permit and any other permits required by any government entity having jurisdiction over the Premises. Tenant shall provide copies of those permits to Landlord before the work begins. Tenant shall, at Tenant's sole expense, perform any Additional Required Work in the Premises or the Building, which shall be subject to the same requirements as any Alteration. If any Additional Required Work must be performed outside the Premises, Landlord may elect to perform

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that work at Tenant's expense. No consent by Landlord to any proposed work shall constitute a waiver of Tenant's obligations under this Section

        Section 13.3    Manner of Construction.     Tenant shall build Alterations entirely within the Premises and in conformance with Landlord's reasonable construction rules and regulations, using only contractors and subcontractors approved in writing by Landlord. Any alterations affecting the Building Systems, the structural integrity of the Building, the systems to be maintained by Landlord pursuant to Section 12.2, or the exterior appearance of the Building shall be performed only by a contractor designated by Landlord to perform the work. All work relating to any Alterations shall be done in a good and workmanlike manner, using new materials equivalent in quality to those used in the construction of the initial improvements to the Premises. All work shall be diligently prosecuted to completion. Tenant shall ensure that all work is performed in a manner that does not obstruct access to or through the Building or its common areas and that does not interfere either with other tenants' use of their premises or with any other work being undertaken in the Building. Tenant shall take all measures necessary to ensure that labor peace is maintained at all times. Within twenty (20) days after completion of any Alterations, Tenant shall deliver to Landlord (i) a reproducible copy of the record drawings of Alterations as built made on a 4 mil polyester-based permanent mylar or approved equal (or at Landlord's request, Auto CAD Disk File "As-Builts"), (ii) a statement setting forth in reasonable detail the cost of construction of the Alterations (but excluding signs, furniture, trade fixtures, office equipment and items of a like nature), (iii) a certificate of occupancy or completion (if necessary) and (iv) an assignment of the guaranty or guarantees received by Tenant pertaining to any portion of the Alterations which Landlord shall be required to maintain and/or repair pursuant to Section 12.2 hereof.

        Section 13.4    Payment for Alterations.     Tenant shall promptly pay all charges and costs incurred in connection with any Alteration, as and when required by the terms of any agreements with contractors, designers, or suppliers. On completion of any Alteration, Tenant shall deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials.

        Section 13.5    Construction Insurance.     Before construction begins, Tenant shall deliver to Landlord reasonable evidence that damage to, or destruction of, the Alterations during construction will be covered either by the policies that Tenant is required to carry under Article 15 or by a policy of builder's all-risk insurance in an amount approved by Landlord. If Landlord requires Tenant to provide builder's all-risk insurance for the proposed Alterations in an amount equal to the total cost of the improvements, Tenant shall, upon written request by Landlord, provide a copy of the policy, any endorsements, and an original certificate of insurance that complies with subsection 15.9.2. Tenant shall cause each contractor and subcontractor to maintain all workers' compensation insurance required by law and liability insurance (including property damage) with limits of coverage specified in Section 15.4. Tenant shall provide evidence of that insurance to Landlord before construction begins.

        Section 13.6    Ownership of Alterations.     All Alterations (but excluding signs, furniture, trade fixtures, office equipment and items of a like nature) that may be installed or placed in or about the Premises from time to time shall be and become the property of Landlord on installation. By written notice to Tenant at the time of approval of any Alterations, Landlord may require Tenant at Tenant's sole expense, to remove any such Alterations upon expiration of the Lease Term and to restore the Premises to their configuration and condition before the Alterations were made. If Tenant fails to complete that restoration before expiration of the Lease Term or, in the case of earlier termination, within fifteen (15) days after written notice from Landlord requesting the restoration, Landlord may do so and charge the cost of the restoration to Tenant.

        Section 13.7    Initial Improvements.     The construction of the initial improvements to the Premises (the "Tenant Improvements")shall be governed by the terms of the Tenant Work Letter, attached to this Lease as Exhibit C, and not the terms of this Article 13.

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ARTICLE 14
COVENANT AGAINST LIENS

        Tenant shall not be the cause or object of any liens or allow such liens to exist, attach to, be placed on or encumber Landlord's or Tenant's interest in the Premises, Building or Real Property by operation of law or otherwise. Tenant shall not suffer or permit any lien of mechanics, material suppliers, or others to be placed against the Premises, Building or Real Property with respect to work or services performed or claimed to have been performed for Tenant or materials furnished or claimed to have been furnished to Tenant or the Premises. If any such lien attaches or Tenant receives notice of any such lien, Tenant shall cause the lien to be immediately released and removed of record or bonded on the earlier of twenty (20) days after Tenant receives notice of any such lien or twenty (20) days after Landlord delivers written notice of the lien to Tenant. Despite any other provision of this Lease, if the lien is not released and removed within thirty (30)days after Landlord delivers notice of the lien to Tenant, Landlord may immediately take all action necessary to release and remove the lien, without any duty to investigate the validity of it. All expenses (including reasonable attorney fees) incurred by Landlord in connection with the lien shall be considered Additional Rent under this Lease and be immediately due and payable by Tenant.

ARTICLE 15
INDEMNIFICATION AND INSURANCE

        Section 15.1    Definition of "Tenant Parties" and "Landlord Parties".     For purposes of this Article 15, the term "Tenant Parties" refers singularly and collectively to Tenant and Tenant's officers, members, partners, agents, employees and independent contractors as well as to all persons and entities claiming through any of these persons or entities. The term "Landlord Parties" refers singularly and collectively to Landlord and the partners, venturers, trustees and ancillary trustees of Landlord and the respective officers, directors, shareholders, members, parents, subsidiaries, and any other affiliated entities, personal representatives, executors, heirs, assigns, licensees, invitees, beneficiaries, agents, servants, employees and independent contractors of these persons or entities.

        Section 15.2 Indemnification.     

        Section 15.2.1    Tenant's Indemnification of Landlord Parties.     To the fullest extent permitted by law, Tenant shall, at Tenant's sole expense and with counsel reasonably acceptable to Landlord, indemnify, defend and hold harmless Landlord Parties from and against all claims, losses, costs, damage, expenses, liabilities, liens, actions, causes of action (whether in tort or contract, law or equity, or otherwise), charges, assessments, fines and penalties of any kind (including consultant and expert expenses, court costs and attorney fees actually incurred) arising out of or relating (directly or indirectly) the following:

• • (a)

    The use or occupancy, or manner of use or occupancy, of the Premises or Building by Tenant Parties;

    (b)

    Any omission, fault, negligence or other misconduct of Tenant Parties or of any invitee, guest or licensee of Tenant in, on or about the Real Property;

    (c)

    Tenant's conducting of its business;

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• • (d)

    Any Alterations, activities, work or things done, omitted or permitted, by Tenant Parties in, at or about the Premises or Building, including the violation of or failure to comply with any applicable laws, statutes, ordinances, standards, rules, regulations, orders, decrees or judgments in existence on the Lease Commencement Date or enacted, promulgated or issued after the date of this Lease; and

    (e)

    Any breach or default in performance of any obligation on Tenant's part to be performed under this Lease, including obligations which survive expiration or earlier termination of this Lease.

        Section 15.2.3    Type of Injury or Loss.     This indemnification extends to and includes claims for:

• • (a)

    Injury to any persons (including death at any time resulting from that injury); and

    (b)

    Loss of, injury or damage to or destruction of property (including all loss of use resulting from that loss, injury, damage or destruction).;

        Section 15.2.4    Indemnification: Landlord Parties Gross Negligence and Willful Misconduct.     Despite any other provision of this Lease, Tenant's indemnification shall not apply to any claim caused by or arising out of any omission, fault, negligence or other misconduct of Landlord Parties except for damage to the Tenant Improvements or Tenant's personal property, fixtures, furniture and equipment in the Premises to the extent that such damage is covered by insurance that Tenant is required to carry under this Lease (or would have been covered had Tenant carried the insurance required under this Lease).

        Section 15.2.5    Indemnification Independent of Insurance Obligations.     The indemnification provided in this Article 15 may not be construed or interpreted as in any way restricting, limiting, or modifying Tenant's insurance or other obligations under this Lease and is independent of Tenant's insurance and other obligations. Tenant's compliance with the insurance requirements and other obligations under this Lease shall not in any way restrict, limit, or modify Tenant's indemnification obligations under this Lease.

        Section 15.2.7    Landlord's Indemnification of Tenant.     Subject to the provisions of Section 15.10 hereof with respect to waiver of subrogation, Landlord shall indemnify and hold harmless Tenant Parties from and against:

• • (a)

    All claims for damage to property outside the Premises to the extent that such claims are covered by insurance required to be maintained by Landlord under this Lease (or would have been covered had Landlord carried the insurance required under this Lease).

    (b)

    All claims resulting from any omission, fault, negligence or other misconduct of Landlord Parties in connection with Landlord Parties' activities in, on or about the Real Property or Building, except to the extent that such claim is for damage to the Tenant Improvements and Tenant's personal property, fixtures, furniture and equipment in the Premises and is covered by insurance that Tenant is required to obtain under this Lease (or would have been covered had Tenant carried the insurance required under this Lease).

        Section 15.2.8    Attorney Fees.     The prevailing party shall be entitled to recover its actual attorney fees and court costs incurred in enforcing the indemnification clauses set forth in this Section 15.2.

        Section 15.2.9    Survival of Indemnification.     The clauses of this Section 15.2 shall survive the expiration or earlier termination of this Lease until all claims involving any of the indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitations.

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        Section 15.2.10    Duty To Defend.     Tenant's or Landlord's duty to defend as set forth herein is separate and independent of their obligation to indemnify. The duty to defend applies regardless of whether the issues of negligence, liability, fault, default, or other obligation have been determined.

        Section 15.3    Compliance with Insurer Requirements.     Tenant shall, at Tenant's sole expense, comply with all reasonable requirements, guidelines, rules, orders, regulations and similar mandates and directives pertaining to the use of the Premises and the Building, whether imposed by Tenant's insurers, Landlord's insurers, or the American Insurance Association (formerly the National Board of Fire Underwriters) or any similar body.. If Tenant's business operations, conduct, or use of the Premises or the Building cause any increase in the premium for any insurance policies carried by Landlord, Tenant shall, within ten (10) business days after receipt of written notice from Landlord, reimburse Landlord for the increase.

        Section 15.4    Tenant's Liability Coverage.     Tenant shall obtain and maintain Commercial General Liability insurance written on an "occurrence" policy form, covering bodily injury, property damage, personal injury, and advertising injury arising out of or relating (directly or indirectly) to Tenant's business operations, conduct, assumed liabilities, or use or occupancy of the Premises or the Building with a limit of not less than Two Million Dollars ($2,000,000) per occurrence and not less than Five Million Dollars ($5,000,000) in the annual aggregate.

        Tenant's liability coverage shall include all the coverages typically provided by the Broad Form Comprehensive General Liability Endorsement, including broad form property damage coverage (which shall include coverage for completed operations). Tenant's liability coverage shall further include premises-operations coverage, products-completed operations coverage, owners and contractors protective coverage (when reasonably required by Landlord), and the broadest available form of contractual liability coverage. It is the parties' intent that Tenant's contractual liability coverage provide coverage to the maximum extent possible of Tenant's indemnification obligations under this Lease.

        Section 15.4.1    Additional Insureds.     Landlord, the building management company and any lender of Landlord shall be named by endorsement as additional insureds under Tenant's Commercial General Liability policy. The additional insured endorsement must be on ISO Form CG 20 11 11 85 or an equivalent acceptable to Landlord, with such modifications as Landlord may require. Tenant's policies shall be further endorsed as needed to provide that the insurance afforded by those policies to the additional insureds is primary and that all insurance carried by Landlord is strictly excess and secondary and shall not contribute with Tenant's liability insurance. The coverage afforded to Landlord and any lender of Landlord must be at least as broad as that afforded to Tenant and may not contain any terms, conditions, exclusions or limitations applicable to Landlord or any lender of Landlord that do not apply to Tenant.

        Section 15.4.2    Concurrency of Primary, Excess and Umbrella Policies.     Tenant's liability insurance coverage may be provided by a combination of primary, excess and umbrella policies, but those policies must be absolutely concurrent in all respects regarding the coverage afforded by the policies. The coverage of any excess or umbrella policy must be at least as broad as the coverage of the primary policy. Tenant shall, at Tenant's sole expense, procure a "per location" endorsement or equivalent reasonably acceptable to Landlord so that the general aggregate and other limits apply separately and specifically to the Premises.

        Section 15.4.3    Construction of Tenant Improvements and Alterations.     Whenever Tenant shall undertake the construction of Tenant Improvements as defined in Exhibit C or any Alterations to the Premises, the coverage afforded pursuant to Section 15.4 must be extended to and include bodily injury, property damage and personal injury arising in connection with such construction.

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        Section 15.5    Tenant's Workers' Compensation and Employer Liability Coverage.     Tenant shall procure and maintain workers' compensation insurance as required by law and employer's liability insurance with limits of no less than Five Hundred Thousand Dollars ($500,000) each accident, Five Hundred Thousand Dollars ($500,000) disease policy limit, and Five Hundred Thousand Dollars ($500,000) disease—each employee.

        Section 15.6    Tenant's Property Insurance.     Tenant shall procure and maintain property insurance coverage for all office furniture, trade fixtures, office equipment, merchandise and all other items of Tenant's property in, on, at or about the Premises and the Building, including property installed by, for, or at the expense of Tenant.

        Tenant's property insurance must fulfill the following requirements:

• • (a)

    It must be written on the broadest available "all-risk" policy form or an equivalent form acceptable to Landlord;

    (b)

    It must include an agreed-amount endorsement for no less than one hundred percent (100%) of the full replacement cost (new without deduction for depreciation) of the covered items and property; and

    (d)

    The amounts of coverage must meet any coinsurance requirements of the policy or policies.

It is the parties' intent that Tenant shall structure its property insurance program so that no coinsurance penalty shall be imposed and there shall be no valuation shortfalls or disputes with any insurer or with Landlord. The property insurance coverage shall include vandalism and malicious mischief coverage and sprinkler leakage coverage.

        Section 15.7    Business Income and Extra Expense Coverage.     Tenant shall further procure and maintain business income (business interruption) insurance and extra expense coverage with coverage amounts that shall reimburse Tenant for all direct or indirect loss of income and charges and costs incurred arising out of all perils insured against by Tenant's property insurance coverage, including prevention of, or denial of use of or access to, all or part of the Premises or the Building, as a result of those perils. The business income and extra expense coverage shall provide coverage for no less than twelve (12) months of the loss of income, charges and costs contemplated under the Lease and shall be carried in amounts necessary to avoid any coinsurance penalty that could apply.

        Section 15.8    Other Tenant Insurance Coverage.     Tenant shall, at Tenant's sole expense, procure and maintain any other and further insurance coverages or obtain such increased limits of coverage that Landlord's mortgagee may reasonably require. Provided, however, that Tenant shall not be required to procure or maintain other or further coverages that are beyond those typically maintained in similar types of space in Comparable Buildings in the Boston area.

        Section 15.9    Form of Policies and Additional Requirements.     

        Section 15.9.1    Insurance Independent of Indemnification.     The insurance requirements set forth in Section 15.4 through Section 15.8 are independent of Tenant's indemnification and other obligations under this Lease and shall not be construed or interpreted in any way to restrict, limit or modify Tenant's indemnification, and other obligations or to limit Tenant's liability under this Lease.

        Section 15.9.2    Form of Policies.     The insurance required of Tenant under this Article 15 must:

• • (a)

    Name Landlord and any other party Landlord specifies, by endorsement, as an additional insured;

    (b)

    Be issued by an insurance company with a rating of no less than A-VIII in the current Best's Insurance Guide, or that is otherwise acceptable to Landlord, and admitted to engage in the business of issuing insurance in the Commonwealth of Massachusetts;

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• • (c)

    Be primary insurance for all claims under it and provide that any insurance carried by Landlord is strictly excess, secondary and non-contributing with any insurance carried by Tenant; and

    (d)

    Provide that insurance may not be canceled, non-renewed, or the subject of material change in coverage or available limits of coverage, except on thirty (30) days' prior written notice to Landlord and Landlord's lenders.

        Section 15.9.3    Certificate of Insurance.     Tenant shall deliver to Landlord at the time or times set forth in subsection 15.9.4, original certificates of insurance, executed by an authorized agent of the insurer or insurers, evidencing compliance with the insurance requirements set forth in this Article 15. The certificate(s) shall provide for no less than thirty (30) days' advance written notice to Landlord from the insurer or insurers of any cancellation, non-renewal, or material change in coverage or available limits of liability and shall confirm compliance with the liability insurance requirements in this Lease. Such certificates shall be on an Accord 27 Form or an equivalent acceptable to Landlord. If an Accord 27-S Form is used to evidence liability coverage, the "endeavor to" and "failure to mail such notice shall impose no obligation or liability of any kind upon the Company" and "This certificate is issued as a matter of information only and confers no rights upon the certificate holder" language and any similar language shall be stricken from the certificate.

        Section 15.9.4    Tenant's Delivery of Endorsements and Certificates.     Tenant shall deliver the endorsements to such policy or policies and certificates required by this Article 15, to Landlord:

• • (a)

    On or before the earlier of the Lease Commencement Date or the date Tenant enters the Premises to perform work;

    (b)

    At least thirty (30) days before the expiration date of any policy; and

    (c)

    On renewal of any policy.

        Section 15.9.5    Deductibles and Self-Insured Retentions.     All deductibles and self-insured retentions under Tenant's policies are subject to Landlord's prior written approval, not to be unreasonably withheld.

        Section 15.10    Waiver of Subrogation.     Landlord and Tenant agree to cause the insurance companies issuing their respective property (first party) insurance to waive any subrogation rights that those companies may have against Tenant or Landlord, respectively, as long as the insurance is not invalidated by the waiver. If the waivers of subrogation are contained in their respective insurance policies, Landlord and Tenant waive any right that either may have against the other on account of any loss or damage to their respective property to the extent that the loss or damage is insured under their respective insurance policies.

        Section 15.11    Exculpation.     To the fullest extent permitted by law, Tenant Parties hereby waive and knowingly and voluntarily assume the risk of any and all claims against Landlord Parties for loss or damage to property of any Tenant Party occasioned by theft, the acts or omission of any other occupant of the Building, by the breaking, bursting, stoppage or leaking of electric cables and wires, water, sewer gas or steam pipes, the construction of any private, public or quasi-public work or any like matter.

        Section 15.12    Landlord's Property Insurance.     Landlord shall, as a part of Operating Expenses, procure and maintain during the Lease Term "all-risk" coverage insurance against loss or damage to the Building (but excluding those items covered by insurance required to be maintained by Tenant under this Lease) from all-risk perils. Such coverage shall be at replacement cost, from such companies and upon such other terms and conditions and contain such endorsements as Landlord may from time to time reasonably determine. At Landlord's option, such insurance coverage may include, without limitation, the risks of earthquake, flood damage or other perils; business income (rental loss) and extra

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expense coverage; and loss payee endorsements in favor of the holders of any mortgages encumbering the interest of Landlord in the Building or the Real Property. Any coverage maintained by Landlord hereunder may be provided under a blanket policy or a separate policy therefor and may be subject to commercially reasonable deductibles. Despite the provisions of this Section, the coverage and amounts of insurance carried by Landlord in connection with the Building and the Real Property shall at minimum be comparable to the coverage and amounts of insurance that are carried by reasonable prudent landlords of Comparable Buildings. On inquiry by Tenant from time to time, Landlord shall inform Tenant of all such insurance carried by Landlord.

ARTICLE 16
DAMAGE AND DESTRUCTION

        Section 16.1    Repair of Damage by Landlord.     Tenant agrees to notify Landlord in writing promptly of any damage to the Premises resulting from fire, or any other identifiable event of a sudden, unexpected, or unusual nature (Casualty). If the Premises are damaged or any Building System serving the Premises is rendered inoperable by a Casualty or any common areas of the Building providing access to the Premises are so damaged to the extent that Tenant does not have reasonable access to the Premises and if neither Landlord nor Tenant has elected to terminate this Lease under Section 16.3 or 16.4, Landlord shall promptly and diligently restore the Premises (including all Tenant Improvements and Alterations but specifically excluding office furniture, trade fixtures, office equipment all other items of Tenant's property), the Building Systems and such common areas to substantially the same condition as existed before the Casualty, except for modifications required by building codes and other laws and except for any other modifications to the common areas considered desirable by Landlord. In making these modifications, Landlord shall not materially impair Tenant's access to the Premises. Landlord's obligation to restore is subject to reasonable delays for insurance adjustment and other matters beyond Landlord's reasonable control. If Tenant requests that Landlord modify the Tenant Improvements in connection with the rebuilding, Landlord may condition its consent to those modifications on:

• • (a)

    Tenant's payment to Landlord before construction is begun of any sums in excess of the amount of insurance proceeds received by Landlord that are needed to complete the Tenant Improvements; and

    (b)

    Confirmation by Landlord's architect or contractor that the modifications will not increase the scope of work or the time necessary to complete the Tenant Improvements.

        Section 16.2    Landlord's Notice.     Landlord shall, within the later of (a) thirty (30) days after the date on which Landlord determines the full extent of the damage caused by the Casualty or (b) thirty (30) days after Landlord has determined the extent of the insurance proceeds available to effectuate repairs, provide written notice to Tenant indicating the anticipated period for repairing the Casualty. Such notice shall also state, if applicable, Landlord's election either to repair or to terminate the Lease under Section 16.3.

        Section 16.3    Landlord's Option to Terminate or Repair.     Landlord may elect either to terminate this Lease or to effectuate repairs if:

• • (a)

    The estimated period for repairing the Casualty exceeds one hundred eighty (180) days from the date of the commencement of the repair;

    (b)

    The estimated repair cost exceeds the insurance proceeds, if any, available for such repair (not including the deductible, if any, on Landlord's property insurance), plus any amount that Tenant is obligated or elects to pay for such repair;

    (c)

    The estimated repair cost of the Premises or the Building, even though covered by insurance, exceeds fifty percent (50%) of the full replacement cost; or

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• • (d)

    The Building cannot be restored except in a substantially different structural or architectural form than existed before the Casualty.

        Section 16.4    Tenant's Option to Terminate.     If Landlord's indicates that the anticipated period for repairing the Casualty exceeds one hundred and eighty (180) days, Tenant may elect to terminate this Lease by providing written notice to Landlord within ten (10) days after receiving Landlord's notice. If Tenant does not elect to terminate within this ten (10) day period, Tenant shall be considered to have waived the aforesaid option to terminate. Tenant shall also have the right to terminate this Lease if the Casualty is not repaired within one hundred eighty (180) days from the date of the Casualty (subject to the provisions of Section 30.12) or if the Casualty occurs during the last twelve (12) months of the Term (as the same may have been extended).

        Section 16.5    Rent Abatement Due to Casualty.     Landlord and Tenant agree that, if the Casualty was not the result of the negligence or willful misconduct of Tenant or Tenant's employees, contractors, licensees or invitees, Tenant shall be provided with a proportionate abatement of Rent based on the Rentable Square Footage of the Premises rendered unusable (due to physical damage to the Premises, the Building Systems or the unavailability of access to the Premises) and not used by Tenant,. That proportional abatement, if any, shall be provided during the period beginning on the later of (a) the date of the Casualty or (b) the date on which Tenant ceases to occupy the Premises and ending fifteen (15) days following the date of Substantial Completion of Landlord's restoration obligations as provided in this Article 16. Subject to Section 16.4, the Rent abatement provided in this Section 16.5 is Tenant's sole remedy due to the occurrence of the Casualty. Landlord shall not be liable to Tenant or any other person or entity for any direct, indirect, or consequential damage (including but not limited to lost profits of Tenant or loss of or interference with Tenant's business), whether or not caused by the negligence of Landlord or Landlord's employees, contractors, licensees, or invitees, due to, arising out of, or as a result of the Casualty (including but not limited to the termination of the Lease in connection with the Casualty). Tenant agrees to maintain business interruption insurance in amounts and with coverage no less than that required by subsection 15.7 to provide coverage regarding such matters.

        Section 16.6    Damage Near End of Term.     Despite any other provision of this Article 16, if the Premises or the Building is destroyed or damaged by a Casualty during the last twelve (12) months of the Lease Term (as the same may have been extended), Landlord and Tenant each shall have the option to terminate this Lease by giving written notice to the other of the exercise of that option within thirty (30) days after that damage or destruction.

        Section 16.7    Effective Date of Termination; Rent Apportionment.     If Landlord or Tenant elects to terminate this Lease under this Article 16 in connection with a Casualty, this termination shall be effective as of the date of the Casualty. Tenant shall pay Rent, properly apportioned up to the date of the Casualty. After the effective date of the termination, Landlord and Tenant shall be discharged of all future obligations under this Lease, except for those provisions that, by their terms, survive the expiration or earlier termination of the Lease.

ARTICLE 17
CONDEMNATION

        Section 17.1    Definition of "Condemnation".     As used in this Lease, the term "Condemnation" means a permanent taking through (a) the exercise of any government power (by legal proceedings or otherwise), by any public or quasi-public authority or by any other party having the right of eminent domain (Condemnor) or (b) a voluntary sale or transfer by Landlord to any Condemnor, either under threat of exercise of eminent domain by a Condemnor or while legal proceedings for condemnation are pending.

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        Section 17.2    Notice of Condemnation.     Landlord shall notify Tenant in writing of any Condemnation within thirty (30) days the filing of a complaint by Condemnor.

        Section 17.3    Termination of Lease.     

        Section 17.3.1    Definition of "Termination Date".     The "Termination Date" shall be the earliest of:

• • (a)

    The date on which Condemnor takes possession of the property that is subject to the Condemnation;

    (b)

    The date on which title to the property subject to the Condemnation is vested in Condemnor;

    (c)

    If Landlord elects to terminate pursuant to subsection 17.3.3 hereof, the date on which Landlord requires possession of the property in connection with the Condemnation, as specified in written notice delivered to Tenant no less than thirty (30) days before that date; or

    (d)

    If Tenant elects to terminate pursuant to subsection 17.3.4 hereof, thirty (30) days after Landlord's receipt of written notice of termination from Tenant.

        Section 17.3.2    Automatic Termination.     If the Premises are totally taken by Condemnation during the Lease Term, this Lease shall terminate as of the Termination Date.

        Section 17.3.3    Landlord's Right to Terminate.     Landlord shall have the option to terminate this Lease by providing thirty (30) days written notice to Tenant if:

• • (a)

    Twenty percent (20%) or more of the Rentable Square Feet of the Building or the Premises is taken through Condemnation so long as Landlord terminates all other leases for space in the Building;

    (b)

    Any portion of the Building or Real Property necessary for Landlord to operate the Building efficiently or economically is taken through Condemnation; or

    (c)

    Any areas providing access to the Premises or Building are taken through Condemnation and such access is materially impaired.

        If Landlord does not elect to terminate under this subsection 17.3.3, Landlord shall, subject to subsection 17.3.4, be obligated to the extent of damages received by Landlord from the condemnor to restore, to the extent feasible, the Premises or access to the Premises, subject to Landlord's obtaining all necessary approvals, permits and authorizations relating to such work.

        Section 17.3.4    Tenant's Right to Terminate.     Tenant shall have the option to terminate this Lease by providing thirty (30) days' written notice to Landlord if one or more of the following are taken through Condemnation:

• • (a)

    Any portion of the Premises providing that the remaining portion thereof (after reconstruction) would not be reasonably suitable for Tenant to continue its business operations in substantially the same manner it had prior to Condemnation; or

    (b)

    Any portion of the Building or adjacent Common Area that provides Tenant with its access to the Premises and that, if taken, would materially affect Tenant's access to the Premises.

        Tenant's notice must be given within thirty (30) days after Tenant's receipt of the Condemnation Notice required by Section 17.2.

        Section 17.3.4.2    Landlord's Restoration Notice.     Despite Tenant's termination right, this Lease shall continue in full force and effect if Landlord gives Tenant written notice (Restoration Notice) within thirty (30) days after the date on which the nature and extent of the Condemnation are finally determined, stating that:

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• • (a)

    Landlord shall, at Landlord's sole expense, reconfigure the remaining Premises or provide alternative, reasonable access to Tenant so that the area of the Premises shall be substantially the same after the Condemnation and Tenant shall have reasonable access to the Premises after the Condemnation;

    (b)

    Landlord shall begin the restoration as soon as reasonably practicable; and

    (c)

    Landlord has reasonably determined that such restoration can be completed within ninety (90) days after the date of the notice.

        Section 17.3.6.    Proration of Rent.     If this Lease is terminated under this Article 17, the termination shall be effective on the Termination Date, and Landlord shall prorate Rent to that date. Tenant shall be obligated to pay Rent for the period up to, but not including, the Termination Date as prorated by Landlord. Landlord shall return to Tenant prepaid Rent allocable to any period on or after the Termination Date.

        Section 17.4    Effect of Condemnation if Lease Is Not Terminated.     If any part of the Premises is taken by Condemnation and this Lease is not terminated, Rent shall be proportionately reduced based on the Rentable Square Footage of the Premises taken. Landlord and Tenant agree to enter into an amendment to this Lease within thirty (30) days after the partial taking, confirming the reduction in Rentable Square Footage of the Premises and the reduction in Rent. If Landlord gives Tenant a timely Restoration Notice under subsection 17.3.4.2, this Lease shall continue in full force and effect without any reduction of Rent (unless the Premises as restored are smaller than the existing Premises, in which case Rent shall be proportionately reduced based on the reduced Rentable Square Footage), except that Rent shall be abated for the portion of the Premises not usable by Tenant until Landlord completes the restoration as provided in the Restoration Notice.

        Section 17.5    Allocation of Award.     

        Section 17.5.1    Landlord's Right to Award.     Except as provided in subsection 17.5.2, Landlord shall be entitled to receive all compensation and anything of value awarded, paid, or received in settlement or otherwise in any Condemnation proceeding and Tenant irrevocably assigns and transfers to Landlord all rights to and interests thereto and fully releases and relinquishes any claim to, right to make a claim on, or interest therein.

        Section 17.5.2    Tenant's Right to Compensation.     Despite subsection 17.5.1, Tenant shall have the right to make a separate claim in the Condemnation proceeding, as long as the Award payable to Landlord is not reduced thereby, for:

• • (a)

    The taking of any of Tenant's personal property or fixtures; and

    (b)

    Relocation costs

ARTICLE 18
ASSIGNMENT AND SUBLEASING