\nAcquiring Entity………………… 12 24.18(aa)
\nAdditional Space………………… 1 1.1(c)
\nAffiliates……………………… 12 24.18
\nAlterations…………………….. 5 13.1
\nBankruptcy……………………… Page 1 of 1 Exhibit “F”
\nBase Rent………………………. 1 1.1(e)
\nBuilding……………………….. 1 1.1(c)
\nCommon Area…………………….. 6 15.1
\nCondemned………………………. 7 17
\ndefault………………………… 9 21
\nExpansion Options……………….. Page 2 of 2 Rider #1
\nExpansion Space…………………. Page 2 of 2 Rider #1
\nExtension Options……………….. Page 1 of 1 Rider #2
\nFamily Entity…………………… 12 24.18(bb)
\nFamily Sublease…………………. 13 24.18(bbb)
\nhazardous substances…………….. 13 25
\nInitial Space…………………… 1 1.1(c)
\nLandlord……………………….. 1, 12 opening (P), 24.12
\nLandlord’s Mortgagee…………….. 9 19.1
\nLaws…………………………… 13 24.18(b)
\nLease Year……………………… 2 4
\nLiabilities…………………….. 13 24.18(c)
\nLiens………………………….. 5 13.4
\nNotices………………………… 12 24.16
\nOffer Period……………………. Page 1 of 2 Rider #1
\nOffer Space…………………….. Page 1 of 2 Rider #1
\nOperating Costs…………………. 3 7.1
\nOutside Sublease………………… 13 24.18(cc)
\nperson…………………………. 12 24.14
\nPremises……………………….. 1 1.1(c)
\nProject………………………… 2 1.2
\nrent…………………………… 2 5
\nRent Commencement Date…………… 1 1.1(a)
\nSecurity Deposit………………… 1 1.1(g)
\nSuperior Leases and Mortgages…….. 11 24.4
\nSystems and Equipment……………. 13 24.18(d)
\nTaxes………………………….. 2 6.1
\nTenant…………………………. 1 opening (P)
\nTenant’s Broker…………………. 2 1.1(i)
\nTenant’s Percentage……………… 1 1.1(f)
\nTenant’s Property……………….. 2 3
\nTenant’s Work…………………… 2 2
\nTerm…………………………… 1 1.1(b)
\nTransfer……………………….. 7 18.1
\nUse of Premises…………………. 1 1.1(h)
\nvacant possession……………….. 13 24.18(e)
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n LEASE
\n —–<\/p>\n
THIS INDENTURE OF LEASE, dated as of April 12, 1999, is between ANDOVER
\nMILLS REALTY LIMITED PARTNERSHIP, a Massachusetts limited partnership
\n(“Landlord”), and CMGI, INC. a Delaware corporation (“Tenant”).<\/p>\n
Landlord leases the Premises to Tenant and Tenant leases the Premises from
\nLandlord on the following terms and conditions:<\/p>\n
1. BASIC LEASE PROVISIONS.
\n ———————- <\/p>\n
1.1 Summary.
\n ——- <\/p>\n
(a) Rent Commencement Date: The Rent Commencement Date for the
\nInitial Space will be the date of this Lease. The Rent Commencement Date for the
\nAdditional Space, and each portion of any Offer Space leased pursuant to this
\nLease, will be the earlier of: the date that Tenant occupies that particular
\nspace to conduct business; or sixty (60) days after Landlord delivers vacant
\npossession of the particular space to Tenant. The Rent Commencement Date for
\neach portion of any Expansion Space leased pursuant to this Lease will be as set
\nforth in Section 28.2(b) in Rider #1.<\/p>\n
(b) Term: The term for the Initial Space will start on the date of
\nthis Lease and will expire on March 31, 2009, subject to extension as provided
\nin Rider #2 or earlier termination in accordance with this Lease. The term for
\nthe Additional Space will start when Landlord delivers vacant possession of the
\nAdditional Space to Tenant and will expire on March 31, 2009, subject to
\nextension as provided in Rider #2 or earlier termination in accordance with this
\nLease (subject to Section 28.2(a), Landlord expects to deliver vacant possession
\nof the Additional Space to Tenant during September, 1999) . The term for any
\nExpansion Space leased will start when Landlord delivers possession of that
\nExpansion Space to Tenant and will expire on May 31, 2010, subject to extension
\nas provided in Rider #2 or earlier termination in accordance with this Lease.
\nThe term for any Offer Space leased will start when Landlord delivers possession
\nof that Offer Space to Tenant and will expire on May 31, 2011, unless terminated
\nearlier in accordance with this Lease.<\/p>\n
(c) Premises: At any time and from time to time, the Premises will
\nconsist of all space leased by Tenant pursuant to this Lease. The Premises
\ninitially will include only the “Initial Space,” which is space on the Fifth
\n(5\/th\/) and First (1\/st\/) Floors of the Building, as shown in Exhibit “B”, with
\nan agreed rentable area of 129,812 square feet (66,286 s.f. on the Fifth Floor
\nand 63,526 s.f. on the First Floor). The Premises subsequently will include the
\n“Additional Space”, which is space on the Fourth (4\/th\/) Floor of the Building,
\nas shown in Exhibit “B-1”, with an agreed rentable area of 44,185 square feet.
\nThe Premises also subsequently will include any and all other space leased by
\nTenant pursuant to this Lease.<\/p>\n
(d) Building: Building 100 as shown in Exhibit “A.” If pursuant to
\nthis Lease Tenant leases space in other buildings in the Project, the definition
\nof the Building will include those other buildings.<\/p>\n
(e) Base Rent: (see Exhibit “D”, which in turn is subject to Rider
\n#2).<\/p>\n
(f) Tenant’s Percentage: 13.8% for the Initial Space, which will be
\nincreased to 18.5% on the Rent Commencement Date for the Additional Space.
\nTenant’s Percentage will be subject to proportional increase if the size of the
\nPremises increases pursuant to this Lease.<\/p>\n
(g) Security Deposit: An amount equal to two (2) months of current
\nbase rent. Within thirty (30) days after the base rent increases (including
\nincreases resulting from additional space leased), Tenant will deposit
\nadditional cash with Landlord so that the Security Deposit always equals an
\namount equal to two (2) months of current base rent.<\/p>\n
(h) Use of Premises: For general office purposes and for the
\npackaging, creation and duplication of computer software, light assembly,
\ntesting, configuring computer hardware, and training (but no manufacturing).<\/p>\n
(i) Notice to Tenant:<\/p>\n
CMGI, Inc.
\n 100 Brickstone Square
\n Andover, Massachusetts 01810
\n Attn: William Williams II, Esq., General Counsel<\/p>\n
With a copy to:
\n ————– <\/p>\n
Pamela Coravos, Esq.
\n Hale and Dorr LLP
\n 60 State Street
\n Boston, Massachusetts 02109<\/p>\n
(j) Notice to Landlord:<\/p>\n
200 Brickstone Square
\n Andover, Massachusetts 01810
\n Attn: Martin Spagat<\/p>\n
With a Copy to:
\n —————<\/p>\n
The Brickstone Companies
\n 2101 Rosecrans Avenue, Suite 5252
\n El Segundo, California 90245-4742
\n Attn: John G. Baker, Esq.<\/p>\n
(k) Guarantor: N\/A.<\/p>\n
(l) Tenant’s Broker: CRF Partners, Inc.<\/p>\n
(m) Certain Other Defined Terms: [See Section 24.18]<\/p>\n
If there is a conflict between this summary and the rest of this Lease, the rest
\nof this Lease will control.<\/p>\n
1.2 Project. Exhibit “A” is the general site plan of the principal
\n ——-
\nbuildings, improvements and areas that are now part of the project commonly
\nknown as Brickstone Square, Andover, Massachusetts (the “Project”). Landlord
\nreserves the right to change the Project from time to time.<\/p>\n
1.3 Description of Premises. Landlord reserves the space above hung
\n ———————–
\nceilings, below the floor and within the walls of the Premises, and the right to
\ninstall, relocate, remove, use, maintain, repair and replace Systems and
\nEquipment within or serving the Premises or other parts of the Building or the
\nProject. To the extent that it does not interfere with or damage Landlord’s
\nWork and\/or existing Systems and Equipment or the rest of the Building or the
\nuse and occupancy of any other tenant, Tenant, at its cost, may install wiring
\nfor its computers and equipment above hung ceilings and within the interior
\nwalls of the Premises, provided that Tenant otherwise complies with the rest of
\nthis Lease and that Landlord will have no obligations or Liabilities in
\nconnection therewith. Tenant will indemnify and hold Landlord harmless from
\nLiabilities in connection with this wiring and installation, maintenance and
\nremoval. Tenant will maintain the wiring and, at Landlord’s request, will
\nremove the wiring and repair any damage on the expiration or earlier termination
\nof this Lease.<\/p>\n
2. CONSTRUCTION OF PREMISES.
\n ———————— <\/p>\n
Landlord will not be required to perform any work to or for the benefit of
\nthe Premises for Tenant’s initial occupancy. Tenant will perform as “Tenant’s
\nWork” in accordance with Exhibit “C” all necessary work to or for the benefit of
\nthe Premises to prepare the Premises for Tenant’s initial occupancy.<\/p>\n
3. POSSESSION AND SURRENDER OF PREMISES.
\n ———————————— <\/p>\n
When this Lease terminates, Tenant will remove all of its signs, movable
\ntrade fixtures and equipment, inventory and other personal property (“Tenant’s
\nProperty”). Tenant’s Property remaining after termination will be deemed
\nabandoned and Landlord may keep, sell, destroy or dispose of it without any
\nLiabilities to Tenant. Tenant will repair all damage and surrender the Premises
\nbroom clean and in good order, condition and repair, and otherwise in the same
\ncondition as on the Rent Commencement Date, normal wear and tear excepted.<\/p>\n
4. TERM.
\n —- <\/p>\n
The Lease term is as set forth in Section 1.1(b). A “Lease Year” is a
\nperiod of twelve (12) consecutive calendar months during the Lease term.
\nHowever, the first Lease Year will end on March 31, 2000, and each Lease Year
\nthereafter will end on the annual anniversary thereof, and the last Lease Year
\nfor any particular space leased may be less than twelve (12) months if the
\nLease is terminated early or if the expiration date for that space does not fall
\non the end of the 12-month period.<\/p>\n
5. RENT.
\n —- <\/p>\n
Tenant will pay the annual base rent as shown in Exhibit “D” (which in turn
\nis subject to Rider #2) in equal monthly installments in advance beginning on
\nthe applicable Rent Commencement Date and thereafter on the first day of each
\nmonth during the term, prorated for any portion of a month. The term “rent”
\nincludes base rent, additional rent and all other amounts to be paid by Tenant
\nunder this Lease, whether or not specifically described as rent. All rent due
\nunder this Lease will be paid without demand, deduction, counterclaim or offset
\nof any type in lawful U.S. legal tender at 2101 Rosecrans Avenue, Suite 5252, El
\nSegundo, CA 90245-4742, Attn: Accounting Dept., or to such other person or
\nplace as Landlord may from time to time designate by written notice pursuant to
\nthis Lease. Tenant will pay the first month’s base rent when it executes this
\nLease.<\/p>\n
6. TAXES.
\n —– <\/p>\n
6.1 Definition of Taxes. “Taxes” means all taxes, assessments, and other
\n ——————-
\ngovernmental or quasi-governmental levies, charges and fees imposed against, for
\nor in connection with all or any portion of: the Project; the use, ownership,
\nleasing, occupancy, operation, management, repair, maintenance, demolition or
\nimprovement of the Project; Landlord’s right to receive, or the receipt of,
\nrent, profit or income from the Project; improvements, utilities and services,
\nwhether because of special assessment districts or otherwise; the value of
\nLandlord’s interest in the Project; a reassessment due to any change in
\nownership or other transfer of all or any portion of the Project; and fixtures,
\nequipment and other real or personal property used by Landlord in connection
\nwith the Project. Taxes also include, without limitation, license fees, sales,
\nuse, capital and value-added taxes, penalties, interest and costs incurred in
\ncontesting taxes, and any governmental or quasi-governmental charges or taxes in
\naddition to, in substitution or in lieu of, partially or totally, any taxes or
\ncharges previously included within this definition, including taxes or
\ngovernmental or quasi-governmental charges completely unforeseen by the parties
\nand collected from whatever source. Taxes do not include: Landlord’s federal,
\n ——————–
\nstate or municipal net income, franchise, excise, inheritance, gift or estate
\ntaxes.<\/p>\n
6.2 Payment of Taxes. Subject to Article 9, as of the Rent Commencement
\n —————-
\nDate Tenant will pay its Tenant’s Percentage of all Taxes directly to Landlord
\nas additional rent within thirty (30) days after receipt of Landlord’s bill.<\/p>\n
6.3 Tenant’s Taxes. Tenant will pay before delinquency all taxes
\n ————–
\nassessments, license fees and charges levied, assessed or imposed on Tenant,
\nTenant’s business operations and Tenant’s Property.<\/p>\n
2<\/p>\n
7. OPERATING COSTS.
\n ————— <\/p>\n
7.1 Definition of Operating Costs. “Operating Costs” are all costs and
\n —————————–
\nexpenses incurred in connection with the Project and its ownership, operation,
\nmanagement, maintenance, repair, replacement and improvement, including, without
\nlimitation, costs for: services, costs and utilities not otherwise directly
\npaid or reimbursed by tenants; materials, supplies and equipment; deductibles
\nunder Landlord’s insurance policies; wages and payroll, including bonuses, (all
\nof which, for existing employees, will not increase by more than ten percent
\n(10%) per annum, cumulative, and, for employees subsequently hired, will not
\nincrease by more than ten percent (10%) per annum, cumulative, over their
\ninitial wages and payroll, including bonuses); fringe benefits, workers
\ncompensation and payroll taxes; professional and consulting fees; management
\nfees at prevailing rates or, if no managing agent is retained, an amount in lieu
\nthereof not in excess of prevailing rates; complying with any Laws and insurance
\nrequirements; “environmental audits” deemed necessary by Landlord (but no more
\nthan once per year); and the Common Area (including the parking area). Operating
\n ———
\nCosts do not include: Taxes; depreciation of the Project structures and
\n——————–
\nimprovements; Landlord’s loan or ground lease payments; brokerage commissions;
\nmarketing costs; legal fees and costs to enforce any leases; and costs to
\nconstruct new leasable area in the Project. If Landlord in the future leases
\nspace to other tenants on a gross rather than net basis, Operating Costs will
\nnot thereby be increased over what they would have been if Landlord had leased
\non a net basis.<\/p>\n
7.2 Payment of Operating Costs. Subject to Article 9, as of the Rent
\n ————————–
\nCommencement Date Tenant will pay its Tenant’s Percentage of Operating Costs
\ndescribed in Section 7.1, both as additional rent within thirty (30) days after
\nreceipt of Landlord’s bill.<\/p>\n
7.3 Building Operating Costs. From time to time, Landlord may determine
\n ————————
\nthat certain costs otherwise included within the definition of Operating Costs
\nmore properly relate only or primarily to the Building (as a hypothetical
\nexample, elevator maintenance). If Landlord so elects, these costs will be
\ndeducted from Operating Costs and allocated only to tenants of the Building,
\nTenant’s share of these costs will be calculated by dividing Tenant’s rentable
\nsquare footage by the rentable square footage in the Building, and Tenant will
\npay its share of these costs in the manner described in Section 7.2.<\/p>\n
8. INSURANCE.
\n ——— <\/p>\n
8.1 Tenant’s Insurance.
\n —————— <\/p>\n
(a) Tenant will maintain during the term:<\/p>\n
(i) Commercial general liability insurance (Broad Form CGL),
\nwith contractual liability, cross-liability and fire legal liability
\nendorsements, protecting against all claims and liabilities for personal, bodily
\nand other injuries, death and property damage including, without limitation,
\nbroad form property damage insurance, automobile and personal injury coverage.
\nThis insurance also will insure Tenant’s indemnities pursuant to this Lease. The
\namount of this insurance will not be less than $10,000,000.00 combined single
\nlimit for each occurrence.<\/p>\n
(ii) “All risk” casualty insurance, covering all of Tenant’s
\nWork, Tenant’s Property and all Alterations made by or for the benefit of
\nTenant. This insurance will be for full replacement value.<\/p>\n
(iii) [INTENTIONALLY OMITTED]<\/p>\n
(iv) Worker’s compensation insurance in statutory limits, and
\nemployer’s liability insurance of not less than $1,000,000.00.<\/p>\n
(v) Builder’s risk insurance (completed value form) for work
\nrequired of or permitted to be made by Tenant. The amount of this insurance will
\nbe reasonably satisfactory to Landlord and must be obtained before any work is
\nbegun.<\/p>\n
(b) All policies of insurance carried by Tenant must: name Landlord
\nand its designees as additional insureds; contain a waiver by the insurer of any
\nright to subrogation against Landlord and its Affiliates; be from insurers
\nacceptable to Landlord; and state that the insurers will not cancel, fail to
\nrenew or modify the coverage without first giving Landlord and any other
\nadditional insureds at least thirty (30) days prior written notice.<\/p>\n
(c) Tenant will supply copies of each paid-up policy or a certificate
\nfrom the insurer certifying that the policy has been issued and complies with
\nall of the terms of this Article. The policies or certificates will be
\ndelivered to Landlord when this Lease is signed and renewals provided not less
\nthan thirty (30) days before the expiration of the coverage. Landlord always
\nmay inspect and copy any of the policies. Tenant waives any right to recover
\nagainst Landlord for Liabilities in connection with any type of cause or peril
\nwhich is supposed to be insured against under the insurance policies required to
\nbe maintained by Tenant.<\/p>\n
8.2 Landlord’s Insurance; Payment; and Waiver of Subrogation.
\n ——————————————————– <\/p>\n
(a) Landlord will maintain casualty insurance of at least ninety
\npercent (90%) of the full replacement cost of the Buildings and other
\nimprovements in the Project (excluding foundations, footings, below-grade space
\nand any historic items or structures), commercial general liability insurance
\n(Broad Form CGL or the functional equivalent) of at least Five Million Dollars
\n($5,000,000), and other insurance policies in such amounts, with such
\ndeductibles and providing protection against such perils as Landlord determines
\nto be necessary in its sole discretion (which may include, without limitation,
\nrental loss insurance policies). All losses on all policies maintained pursuant
\nto this Article will be settled in Landlord’s name (or as otherwise designated
\nby Landlord) and proceeds will belong and be paid to Landlord. Landlord makes
\nno representations or warranties as to the adequacy of any insurance to protect
\nLandlord’s or Tenant’s interests. Landlord’s insurance policies will contain
\nwaivers of subrogation.<\/p>\n
(b) Subject to Article 9, Tenant will pay directly to Landlord as
\nadditional rent Tenant’s Percentage of the cost of all premiums for Landlord’s
\ninsurance for the Project within thirty (30) days after receipt of Landlord’s
\nbill.<\/p>\n
3<\/p>\n
(c) Tenant and its Affiliates will not undertake, fail to undertake
\nor permit any acts or omissions which will in any way increase the cost of,
\nviolate, void or make voidable all or any portion of any insurance policies
\nmaintained by Landlord, unless Landlord gives its specific written consent and
\nTenant pays all increased costs directly to Landlord on demand.<\/p>\n
9. MONTHLY PAYMENT OF TAXES, OPERATING COSTS AND INSURANCE PREMIUMS.
\n —————————————————————- <\/p>\n
At any time and from time to time, and subject to later change, Landlord
\nmay elect to have Tenant pay Tenant’s share of Taxes, Operating Costs and
\nLandlord’s insurance premiums (or any of them) in monthly installments, in
\nadvance on the first of each month, based on amounts estimated by Landlord (as
\nrevised from time to time). If these estimated monthly payments are required,
\nafter the end of each tax fiscal year, Lease Year or other relevant periods
\nselected by Landlord, Landlord will deliver to Tenant a statement of the actual
\namounts due for the period. Any additional amounts due from Tenant will be
\npayable as additional rent within thirty (30) days after receipt of Landlord’s
\nstatement, and any overpayment by Tenant will be refunded by Landlord or
\ndeducted from the next monthly installments due for that particular payment
\ncategory. Quarterly, or less frequently, Landlord may deliver a bill to Tenant
\nfor Tenant’s share of Taxes, Operating Costs or insurance premiums, and Tenant
\nwill pay the amount due to Landlord as additional rent within thirty (30) days
\nafter receipt of Landlord’s bill. Tenant will receive a credit for any
\nestimated monthly payments already paid by Tenant for the period covered by that
\nbill.<\/p>\n
10. UTILITIES.
\n ——— <\/p>\n
Landlord will be solely responsible for bringing utility services to the
\nPremises to the extent now existing. Tenant will pay when due to the furnishing
\nparties all fees and costs for utility services, and meters and equipment (to
\nthe extent not supplied as existing), furnished to the Premises, including,
\nwithout limitation, telephone, electricity, HVAC, sewer, water and gas (if
\nfurnished). If utilities and services for the Premises are not separately
\nmetered or charged, Tenant will pay its share (as reasonably determined by
\nLandlord) of such costs directly to Landlord as additional rent, either monthly
\nwhen base rent is due, or within fifteen (15) days after receipt of Landlord’s
\nbill, at Landlord’s option. Landlord is not responsible for any Liabilities
\nincurred by Tenant or Tenant’s Affiliates nor may Tenant abate rent, terminate
\nthis Lease or pursue any other right or remedy against Landlord or Landlord’s
\nAffiliates, as a result of any termination or malfunction of any utilities or
\nutility systems.<\/p>\n
11. USE OF PREMISES.
\n ————— <\/p>\n
Tenant will use the Premises for the purposes described in Section 1.1(h),
\nbut for no other purpose. Tenant will:<\/p>\n
(a) Operate its business in an attractive and first class manner.
\nTenant will not permit any objectionable or unreasonable noises, vibrations,
\nodors or fumes in or to emanate from the Premises, nor commit or permit any
\nwaste, improper, immoral or offensive use of the Premises, any public or private
\nnuisance or anything that disturbs the quiet enjoyment of the other tenants,
\nlicensees, occupants or customers of the Project. All deliveries and pickups
\nmust be conducted at times and in the manner reasonably prescribed by Landlord.
\nAll trash and waste products must be stored, discharged, processed and removed
\nin the manner prescribed by Landlord, and so as not to be visible to other
\ntenants or create any health or fire hazard.<\/p>\n
(b) Install only window coverings and treatments approved by Landlord
\nand, once installed, keep them sufficiently closed to shield from outside view
\nany machinery or other equipment that Landlord determines is unsightly or
\ninconsistent with that portion of the Project. Tenant will vent only through
\nlouvers in the windows of the Premises, but Tenant may not detach those louvers.<\/p>\n
(c) Not permit any coin or token operated vending, video, pinball,
\ngaming or other mechanical devices on the Premises, except solely for use by
\nTenant’s employees; conduct retail sales to walk-in customers (other than
\noccasional sales); permit governmental or quasi-governmental agencies to occupy
\nthe Premises; use the Premises as doctors’ offices, a school or educational
\ninstitution (but training for customers and\/or Tenant’s personnel), living or
\nsleeping quarters; store, sell or distribute obscene, lewd or pornographic
\nmaterials or engage in related businesses in or from the Premises; or conduct
\nany auction, distress, fire, bankruptcy or going-out-of-business sale.<\/p>\n
(d) Comply with: Laws and insurance requirements affecting the
\nPremises, the Project or any use and occupancy thereof by Tenant or its
\nAffiliates (including, without limitation, making required improvements to the
\nPremises, except for improvements, if any, that are required solely due to the
\nparticular business activity of another tenant in the Project); and Landlord’s
\nrules and regulations from time to time. Tenant will, at its expense, obtain
\nand maintain all licenses, approvals and variances necessary to conduct its
\nbusiness and occupy the Premises, but none of those licenses, permits or
\nvariances will be binding on or in any way affect or restrict Landlord, any
\nother tenants in the Project or the Project itself.<\/p>\n
(e) If it wishes, install signs or lettering on the entry doors to
\nthe Premises and on a monument sign to be specified by Landlord, which will
\ninclude other tenant names, identifying its tenancy in the manner customary to
\nfirst-class office buildings. Subject to complying in all instances with
\napplicable Laws, Tenant also will have the right to install the following
\nadditional signs (the “Additional Signs”): (i) another monument sign in a
\nlocation specified by Landlord, identifying its tenancy in the manner customary
\nto first-class office buildings, and in conformity with the sketch attached
\nhereto as Exhibit “G”; and (ii) if Tenant validly exercises all of its Expansion
\nOptions and leases all of the Expansion Space (i.e., while Tenant is leasing the
\nInitial Space, the Additional Space and all of the Expansion Space), a sign on
\nthe exterior of Building 100 visible from Haverhill Street in a location
\nspecified by Landlord, identifying its tenancy in the manner customary to first-
\nclass office buildings, and in conformity with the sketch attached hereto as
\nExhibit “G-1”. Tenant’s rights with respect to the Additional Signs are personal
\nto the Tenant originally named in the Lease and may not be exercised or
\nmaintained by or for anyone else (except by an “Acquiring Entity” as defined in
\nSection 24.18). If Tenant defaults, or Transfers any part of this Lease or the
\nPremises (except for valid “Outside Subleases” that together with all other
\nOutside Subleases aggregate less than 25% of the rentable area of the Premises
\nwhen made, and except for valid “Family Subleases” that together with all other
\nFamily Subleases aggregate less than 75% of the rentable area of the Premises
\nwhen made, each as defined in Section 24.18, and provided further that all
\nsubleases of any type together aggregate less than 75% of the rentable area of
\nthe Premises), and at the expiration of the Lease, Tenant at its cost will
\nremove the Additional Signs and repair. any damage to the Building and the rest
\nof the Project, all in a manner satisfactory to Landlord (and in addition to any
\nother rights and remedies of Landlord if <\/p>\n
4<\/p>\n
Tenant defaults). The design, materials and construction of the Additional Signs
\nwill be subject in all respects to Landlord’s prior approval. Tenant will
\nconform to standards established by Landlord from time to time for the above
\nsigns and lettering and submit for Landlord’s prior approval a plan or sketch of
\nthe Tenant’s proposed sign or lettering, and provided that Tenant’s signs and
\nlettering so conform, Landlord’s consent will not be unreasonably withheld. All
\nother signs, lettering, awnings, canopies or other decorations require
\nLandlord’s prior approval.<\/p>\n
(f) Not use any advertising or other media or other device which can
\nbe heard or experienced outside the Premises (except as permitted in
\nsubparagraph (e) above), including without limitation, lights or audio or visual
\ndevices. Tenant will not distribute handbills or advertising, promotional or
\nother materials anywhere in the Project or solicit business in the Project other
\nthan within its own Premises.<\/p>\n
12. MAINTENANCE AND REPAIRS.
\n ———————– <\/p>\n
12.1 Landlord’s Obligations. Landlord will repair and maintain the roof
\n ———————-
\nand the structural portions of the floor and load-bearing walls of the Premises
\n(but not the interior surfaces), the plumbing Systems and Equipment up to and
\nincluding the main vertical risers, the sanitary sewer and chilled water lines
\noutside of the footprint of the Premises, and the electrical Systems and
\nEquipment up to the buss duct tap. Landlord also will manage the cleaning,
\nlandscaping and snowplowing of the Common Areas. However, Tenant will be
\nresponsible for all repairs and maintenance resulting from Tenant’s Alterations
\nor the negligent or intentional acts or omissions of Tenant or its Affiliates.
\nLandlord will make its repairs within a reasonable time following Tenant’s
\nnotification that the repairs are required. Landlord’s obligations are subject
\nto the provisions of Articles 16 and 17 and the rest of this Lease.<\/p>\n
12.2 Tenant’s Obligations. Except for Landlord’s obligations in Section
\n ——————–
\n12.1 and as set forth immediately below, Tenant will maintain and repair the
\nPremises and the Systems and Equipment serving the Premises in a first-class
\nmanner (including replacement thereof if and when necessary), and keep the
\nPremises in good order and condition, including, without limitation, Tenant’s
\nProperty, all doors, windows, window treatments, wall coverings, floor
\ncoverings, non-structural portions of the ceiling, floor and walls, and Tenant’s
\nAlterations (unless otherwise requested by Landlord). Subject to Landlord’s
\nprior consent, which will not be unreasonably withheld, Tenant may select a
\ncleaning company of its choice to clean the Premises at Tenant’s sole cost.<\/p>\n
13. ALTERATIONS.
\n ———– <\/p>\n
13.1 Landlord’s Consent. “Alterations” means Tenant’s alterations,
\n ——————
\nadditions, improvements, remodeling, repainting, or other changes. Tenant may
\nmake nonstructural Alterations to the interior of the Premises without
\n ——-
\nLandlord’s consent as long as the Alterations do not: affect the windows, the
\nexterior of the Building, or any portion of the Building or the rest of the
\nProject outside of the Premises; affect the strength, structural integrity or
\nload-bearing capacity of any portion of the Building; affect the Systems and
\nEquipment in the Premises or the rest of the Building or increase Tenant’s
\nusage; or, in Landlord’s reasonable judgment, cost more than a total of One
\nHundred Eighty Thousand Dollars ($180,000) in any Lease Year when combined with
\nthe cost of other Alterations made in that Lease Year. All other Alterations
\nrequire Landlord’s prior written consent. Whether or not Landlord’s consent is
\nrequired, Alterations are subject to the rest of this Article.<\/p>\n
13.2 Notice. Tenant will notify Landlord not less than fifteen (15) days
\n ——
\nbefore beginning any Alterations (but no notice will be required for moveable,
\nunattached partitions and work stations). Together with Tenant’s notice, Tenant
\nwill give Landlord copies of the necessary permits and approvals and, if
\nLandlord deems it necessary, plans and specifications for the Alterations (but
\nnot for minor, non-structural Alterations such as wall coverings, built-in
\ncabinetry, and painting). Landlord’s review or approval of Tenant’s plans and
\nspecifications is solely for Landlord’s benefit and will not be considered a
\nrepresentation or warranty to Tenant as to safety, adequacy, efficiency,
\ncompliance with Laws or any other matter, or a waiver of any of Tenant’s
\nobligations. Except for items of Tenant’s Property, all Alterations will be
\ndeemed Landlord’s property and part of the realty, and will be surrendered with
\nthe Premises at the end of this Lease, unless otherwise requested by Landlord.<\/p>\n
13.3 Compliance with Laws. Alterations will comply in all respects with
\n ——————–
\nthis Lease and applicable Laws and insurance requirements. Alterations will be
\ndone in a first-class manner, using first quality materials, and so as not to
\ninterfere in any way with Landlord or any other tenant in the Project, cause
\nlabor disputes, disharmony or delay, or impose any Liabilities on Landlord.
\nAlterations will be performed only by experienced, licensed and bonded
\ncontractors and subcontractors approved in writing by Landlord, which approval
\nwill not be unreasonably withheld. At Landlord’s request, Tenant will cause its
\ncontractors and subcontractors to carry workmen’s compensation insurance.<\/p>\n
13.4 Liens. Tenant will pay when due all claims for labor, materials and
\n —–
\nservices claimed to be furnished for Tenant or Tenant’s Affiliates or for their
\nbenefit and keep the Premises and the Project free from all liens, security
\ninterests and encumbrances (“Liens”). Tenant will indemnify Landlord for, and
\nhold Landlord harmless from, all Liens, the removal of all Liens and any related
\nactions or proceedings, and all Liabilities incurred by Landlord in connection
\ntherewith. NOTICE IS HEREBY GIVEN TO ALL PERSONS FURNISHING LABOR OR MATERIALS
\nTO TENANT THAT NO MECHANICS’, MATERIALMENS’ OR OTHER LIENS SOUGHT ON THE
\nPREMISES WILL IN ANY MANNER AFFECT LANDLORD’S RIGHT, TITLE OR INTEREST.<\/p>\n
13.5 Satellite Dish. Subject to the following and the rest of this Article
\n ————–
\nand this Lease, Tenant may install a satellite dish no larger than three feet
\n(3′) in diameter in a location specified by Landlord. Tenant will be
\nresponsible for all Liabilities in connection with this satellite dish and
\nassociated equipment, including, without limitation, installation, removal,
\noperation, maintenance, insurance, taxes and other costs and fees. Tenant also
\nwill be solely responsible for securing all federal, state and local permits in
\nconnection with the installation and operation of this satellite dish prior to
\nits installation. If this satellite dish is on a roof, Tenant will secure from
\nthe membrane roofing manufacturer certification that the installation of this
\nsatellite dish is compatible with all design requirements and that this
\ninstallation will not void the existing roof warranty. This certification must
\nbe delivered to Landlord before installation begins. Tenant also will use only
\na manufacturer-authorized roofing contractor for any work that requires the
\npenetration of the existing membrane roofing system. Upon the expiration or
\nearlier termination of this Lease, Tenant, at its expense, will remove the
\nsatellite dish and all associated equipment and repair all damage.
\nNotwithstanding anything to the contrary, Landlord will have no Liabilities in
\nconnection with this satellite dish and associated equipment, and Tenant will
\nindemnify Landlord for and hold it free and harmless from all Liabilities
\narising out of or in connection with this satellite dish.<\/p>\n
5<\/p>\n
14. INDEMNITY; SATISFACTION OF REMEDIES.
\n ———————————– <\/p>\n
14.1 Indemnification. In addition to any other indemnities in this Lease,
\n —————
\nTenant will indemnify Landlord for and hold Landlord harmless from Liabilities
\narising from or in connection with: acts or omissions of Tenant or its
\nAffiliates or the conduct of Tenant’s business; Tenant’s breach of or default
\nunder this Lease; and claims by Tenant’s Affiliates or other persons if Landlord
\ndeclines to consent to any act, event or document requiring Landlord’s consent
\nunder this Lease.<\/p>\n
14.2 Damage to Persons or Property. Subject to the rest of this Section
\n —————————–
\nand the rest of this Lease, Landlord will be liable for damages solely to the
\nextent caused by its own negligence or willful misconduct in breach of this
\nLease, but Landlord will not be liable for any special, indirect, consequential,
\npunitive or similar damages (including, without limitation, any loss of use or
\nrevenue by Tenant or any other person) under any circumstances, or for any
\nLiabilities arising from or in connection with: acts or omissions of Tenant, any
\nother tenants of the Project, any third parties, or their Affiliates, including,
\nwithout limitation, burglary, vandalism, theft, or criminal or illegal activity;
\nexplosion, fire, steam, electricity, water, gas, rain, pollution, contamination,
\nhazardous substances, motor vehicles or any casualties; breakage, leakage,
\nmalfunction, obstruction or other defects in Systems and Equipment, or of any
\nservices or utilities; any work, demolition, maintenance or repairs permitted
\nunder this Lease; any exercise of Landlord’s rights under any Laws or under this
\nLease, including any entry by Landlord or its Affiliates on the Premises in
\naccordance with this Lease; or any of the matters described in Section 24.5.
\nTenant and Tenant’s Affiliates assume the risk of all of these Liabilities and
\nwaive all claims against Landlord in connection therewith. Tenant also waives
\nany Laws or rights that would permit Tenant to terminate this Lease, perform
\nrepairs or maintenance in lieu of Landlord (or on Landlord’s behalf), or offset
\nor withhold any amounts due because of damage to or destruction of the Premises,
\nany repairs or maintenance, or for any other reason. Tenant immediately will
\nnotify Landlord of any damage or injury to persons or property and any events
\nwhich could be anticipated to give rise to any of the foregoing Liabilities.
\nThis exculpation of Landlord and all of Tenant’s waivers in this Lease will
\napply to all of Tenant’s Affiliates to the greatest extent possible. This
\nSection 14.2 is not meant to reduce the extent of Landlord’s obligations to
\nrepair or rebuild in any particular circumstance as may be required in Section
\n12.1 and Articles 16 and 17 or to prevent Tenant from exercising termination
\nrights (if any) specifically granted to Tenant elsewhere in this Lease.<\/p>\n
14.3 Satisfaction of Remedies. Notwithstanding anything in this Lease or
\n ————————
\nelsewhere to the contrary: Tenant and its Affiliates will look solely to
\nLandlord’s interest in the Project to satisfy any claims, rights or remedies,
\nand Landlord and its Affiliates, at every level of ownership and interest, have
\nno personal or individual liability of any type, whether for breach of this
\nLease or otherwise, their assets will not be subject to lien or levy of any
\ntype, nor will they be named individually in any suits, actions or proceedings
\nof any type.<\/p>\n
15. COMMON AREA AND PARKING.
\n ———————– <\/p>\n
15.1 Common Area. “Common Area” means all areas and improvements within
\n ———–
\nthe Project, as it now exists or as it exists in the future, not held or
\ndesignated for the exclusive use or occupancy of Landlord, Tenant, or other
\ntenants or prospective tenants. Tenant may use the Common Area on a
\nnonexclusive basis during this Lease. Landlord reserves all rights in
\nconnection with the Common Area, including, without limitation, the right to
\nchange, relocate, improve or demolish portions, promulgate rules and regulations
\nfor its use, limit the use of any portion of the Common Area by Tenant or its
\nAffiliates, and place certain portions of the Common Area off limits to Tenant
\nand its Affiliates, including, without limitation, janitorial, maintenance,
\nequipment and storage areas, and entrances, loading docks, corridors, elevators
\nand parking areas. Except during emergencies or necessary maintenance, repair
\nor construction, Landlord’s exercise of these rights will not ever prevent
\nTenant from having access to the Premises and a loading dock in each Building in
\nwhich a portion of the Premises may be located, either now or in the future, but
\nwill not require Landlord to compensate Tenant in any way, result in any
\nLiabilities to Landlord, entitle Tenant to abate rent, or reduce Tenant’s Lease
\nobligations.<\/p>\n
15.2 Parking. At no additional cost to Tenant (other than Tenant’s share
\n ——-
\nof Taxes and Operating Costs from time to time), Tenant may park three (3)
\npassenger cars per 1,000 square feet of agreed rentable area in the Premises
\nfrom time to time in the areas designated by Landlord from time to time for
\nTenant’s parking (Tenant’s current areas are shown in Exhibit “A”). Of the
\nparking granted above, at least one of those cars per 1,000 square feet leased
\nwill be permitted to park in an assigned space in the assigned areas (i.e., the
\nparking areas south of the northern boundary of the Service Road as shown on
\nExhibit “A”). If Tenant does not use all of its parking spaces, Landlord may
\nallow others to use those spaces at no charge, subject to Tenant’s right to
\nreclaim those spaces when needed. As permitted by Section 15.1, Landlord may:
\nlimit access to portions of the parking areas; change signs, lanes and the
\ndirection of traffic within the parking areas; change, eliminate or add parking
\nspaces or areas devoted to parking; allow free parking or parking with a
\nvalidation, valet, sticker or other system; promulgate rules and regulations;
\nand take any other actions deemed necessary by Landlord.<\/p>\n
16. DAMAGE OR DESTRUCTION.
\n ——————— <\/p>\n
16.1 Repairs. Subject to the rest of this Article and the rest of this
\n ——-
\nLease, Landlord will repair damage to the Premises caused by casualties insured
\nagainst under standard “all risk” casualty policies. However, Landlord is not
\nobligated to repair damage for which Tenant or its Affiliates are responsible or
\nfor which Landlord has no liability under other provisions of this Lease.
\nExcept as may otherwise be required by then applicable Laws, Landlord will
\nattempt to restore the damaged portions to their prior condition, but Landlord
\nis not required to undertake repairs unless insurance proceeds are available,
\nspend more than the net insurance proceeds it actually receives and is permitted
\nto retain for any repair or replacement, or repair or replace any damage to
\nTenant’s Work, Tenant’s Property or any Alterations. Landlord will begin
\nrepairs within a reasonable time after receiving notice of the damage, required
\nbuilding permits or licenses and the insurance proceeds payable on account of
\nthe damage.<\/p>\n
16.2 Election to Terminate. Landlord has the option either to repair the
\n ———————
\ncasualty damage, or terminate this Lease by delivering written notice within
\nsixty (60) days after the damage occurs, if: the damage occurs during the last
\nyear of the term; or Tenant is in default; or the repairs would take more than
\none hundred twenty (120) days to complete; or the damage was caused primarily by
\nthe intentional act or omission of Tenant or its Affiliates; or more than
\ntwenty-five percent (25%) of the leasable space in the rest of the Building is
\ndamaged.<\/p>\n
16.3 Abatement of Rent. If the Premises are damaged so as to be
\n —————–
\nuntenantable for more than five (5) consecutive business days and Landlord is
\nrequired or elects to repair the damage, base rent and Tenant’s share of Taxes
\nand Landlord’s insurance premiums will abate until Landlord has substantially
\ncompleted the repairs and given Tenant access to the Premises, or Tenant
\nreoccupies part of the Premises, whichever is earlier. If Tenant continues <\/p>\n
6<\/p>\n
to occupy or reoccupies the Premises before substantial completion of these
\nrepairs but cannot occupy substantially all of the Premises because of these
\nongoing repairs, base rent and Tenant’s share of Taxes and Landlord’s insurance
\npremiums will abate in proportion to the degree to which Tenant’s use of the
\nPremises is impaired, as reasonably determined by Landlord. Base rent and
\nTenant’s share of Taxes and Landlord’s insurance premiums will not be abated if
\nthe acts or omissions of Tenant or its Affiliates render Landlord unable to
\ncollect the rental loss insurance proceeds that otherwise would have been
\npayable to Landlord. The abatement of base rent and Tenant’s share of Taxes and
\nLandlord’s insurance premiums described above is Tenant’s sole remedy against
\nand compensation from Landlord in connection with any damage, destruction or
\nrepairs.<\/p>\n
17. CONDEMNATION.
\n ———— <\/p>\n
If all or substantially all of the Premises are condemned, taken or
\nappropriated by any public or quasi-public authority under the power of eminent
\ndomain, police power or otherwise, or if there is a sale in lieu thereof
\n(“Condemned”), this Lease will terminate when title or possession is taken by
\nthe condemning authority or its designee. If:<\/p>\n
(a) More than twenty-five percent (25%) of the usable area of the
\nPremises is Condemned, either Landlord or Tenant may terminate this Lease when
\ntitle or possession is taken by the condemning authority or its designee by
\ndelivering written notice to the other within fifteen (15) days thereafter.
\nLandlord also may terminate this Lease as provided above if more than twenty-
\nfive percent (25%) of any of the leasable area of the rest of the Building is
\ncondemned.<\/p>\n
(b) Part of the Premises is Condemned and this Lease is not
\nterminated, Landlord will make the necessary repairs so that, to the extent
\nreasonably possible, the remaining part of the Premises will be a complete
\narchitectural unit. Otherwise, Landlord’s restoration will be conducted as
\ndescribed in Section 16.1, except that Landlord will not be required to begin
\nrepairs until a reasonable time after it receives any necessary building permits
\nand substantially all of the proceeds of any awards granted for the
\nCondemnation. After the date title or possession is taken by the condemning
\nauthority or its designees, base rent and Tenant’s share of Taxes and Landlord’s
\ninsurance premiums will abate in proportion to the area of the Premises
\nCondemned.<\/p>\n
All proceeds, income, rent, awards and interest in connection with any
\nCondemnation will belong to Landlord, whether awarded as compensation for
\ndiminution of value to the leasehold improvements, or the unexpired portion of
\nthis Lease, or otherwise. Tenant waives all claims against Landlord and the
\ncondemning authority with respect thereto, but nothing in this Section prevents
\nTenant from bringing a separate action against the condemning authority for
\nmoving costs or for lost goodwill (as long as this separate action does not
\ndiminish Landlord’s recovery).<\/p>\n
18. ASSIGNMENT AND SUBLETTING.
\n ————————- <\/p>\n
18.1 Landlord’s Consent Required. Tenant will not voluntarily,
\n —————————
\ninvoluntarily or by operation of any Laws sell, convey, mortgage, subject to a
\nsecurity interest, license, assign, sublet or otherwise transfer or encumber all
\nor any part of Tenant’s interest in this Lease or the Premises, or allow anyone
\nother than Tenant’s employees to occupy the Premises (singularly or
\ncollectively, “Transfer”), without Landlord’s prior written consent in each
\ninstance. Any attempt to do so without this consent will be null and void and a
\ndefault.<\/p>\n
18.2 Notice. Tenant will notify Landlord in writing at least thirty (30)
\n ——
\ndays before any proposed or pending Transfer and will deliver to Landlord such
\ninformation as Landlord may reasonably request in connection with the proposed
\nor pending Transfer and the proposed Transferee, including, without limitation,
\na copy of the proposed Transfer documents, financial statements and other
\nfinancial information about and banking references for the proposed Transferee,
\nand information as to the type of business and business experience of the
\nproposed Transferee. All of this information must be suitably authenticated.<\/p>\n
18.3 Landlord’s Right to Terminate. If Tenant notifies Landlord of a
\n —————————–
\nTransfer, or if Landlord becomes aware of a Transfer, Landlord may: consent;
\nwithhold consent (subject to Sections 18.4 and 18.5 below); or terminate this
\nLease on written notice to Tenant if the Transfer is an assignment of the Lease
\nother than to an Acquiring Entity, or a sublease of all or substantially all of
\nthe Premises. If Tenant proposes a sublease for a term longer than one year
\nthat together with all other Outside Subleases would total more than 25% of the
\nrentable area of the Premises if made (if the proposed sublease would be an
\nOutside Sublease), or together with all other Family Subleases would total more
\nthan 75% of the rentable area of the Premises when made (if the proposed
\nsublease would be a Family Sublease), or together with all other subleases would
\ntotal more than one 75% of the rentable area of the Premises if made, Landlord
\nmay terminate the Lease as to the portion of the Premises proposed to be sublet.
\nIf Landlord elects to terminate, this Lease (or this Lease as applicable to the
\nportion to be sublet as described above) will terminate on the date set forth in
\nLandlord’s termination notice. Nothing in this Section limits Landlord’s rights
\nor remedies if Tenant is in default or if the Transfer does not comply with this
\nArticle.<\/p>\n
18.4 Reasonable Consent. Subject to Section 18.5, if Landlord does not
\n ——————
\nelect (assuming it is permitted) to terminate this Lease, and if the request for
\nTransfer is given after the end of the first (1st) Lease Year, Landlord will not
\nunreasonably withhold its consent to an assignment or subletting (for purposes
\nof this Article, Landlord may arbitrarily withhold consent to other Transfers).
\nTenant agrees that the withholding of Landlord’s consent will be deemed
\nreasonable if Tenant is in default or has failed to comply with the rest of this
\nArticle, or if any of the following conditions are not satisfied:<\/p>\n
(a) The proposed assignee or subtenant will use the Premises strictly
\nin accordance with the terms of this Lease.<\/p>\n
(aa) The business of the proposed assignee or subtenant is consistent
\nwith the other uses and the standards of the Project, in Landlord’s reasonable
\njudgment.<\/p>\n
(b) The proposed assignee or subtenant is reputable, has a credit
\nrating reasonably acceptable to Landlord, and otherwise has sufficient
\nindependent financial capabilities to perform all of its obligations under this
\nLease or the proposed sublease, in Landlord’s reasonable judgment, and within
\nthe two-year period prior to the Transfer has not been subject to a bankruptcy
\nor reorganization or any proceedings or court-ordered compliance in connection
\ntherewith, or had a receiver managing any of its affairs or assets or been
\nsubject to criminal judgments.<\/p>\n
7<\/p>\n
(c) Neither the proposed assignee or subtenant nor its Affiliates is
\nor has been a tenant or occupant or has negotiated for space in the Project or
\nin other projects in Massachusetts owned by Landlord or a partnership or
\ncorporation affiliated with Landlord or Brickstone Square Realty, Inc. or its
\ncurrent shareholders or officers (current projects are located in Andover,
\nWakefield and Billerica) within the six (6) month period before the delivery of
\nTenant’s written notice. This Subsection (c) will apply only while Andover
\nMills Realty Limited Partnership or an affiliated entity or an entity affiliated
\nwith Brickstone Square Realty, Inc. or its current shareholders or officers owns
\nthe Project or an interest therein.<\/p>\n
(d) A proposed sublease will not result in more than three (3)
\nentities or businesses (other than Family Entities) occupying the Premises in
\nany one Building, or more than fifteen (15) Family Entities occupying the
\nProject.<\/p>\n
These conditions are not exclusive and Landlord may consider other factors in
\ndetermining if it should grant or reasonably withhold its consent.<\/p>\n
18.5 (a) Family Transfers. The Transfer of more than forty nine percent
\n —————-
\n(49%) Tenant’s capital stock or ownership interests to any person or entity or
\naffiliated persons or entities, whether directly or indirectly or by one or more
\ntransactions (other than by unrelated transactions on a public exchange, such as
\nthe NYSE or NASDAQ), or any dissolution, merger, consolidation or other
\nreorganization of Tenant, or the Transfer of all or substantially all of
\nTenant’s assets, will be deemed to be an attempted assignment of this Lease and
\nsubject to all of the terms of this Article 18 (except as specifically noted
\nbelow) and the rest of this Lease, and the Transferee or other party will be
\ndeemed to be a prospective assignee. However, an assignment by Tenant to an
\nAcquiring Entity, or a sublease by Tenant to a Family Entity, will be deemed to
\nbe a permitted assignment or sublease, as applicable, provided that the rest of
\nthis Article 18 is complied with (although Sections 18.4(aa) and (b) will not
\napply and Section 18.4(c) will apply only with respect to the Project and other
\nprojects located in Andover, Massachusetts, in each case as long as the purpose
\nof the transaction was not to avoid those or any other provisions of this
\nLease). Tenant agrees that, despite any contrary agreements between Tenant and
\na Transferee or other acquiring party, anything else to the contrary, even if
\nthis Lease is not assigned a Transferee or other acquiring party of all or
\nsubstantially all of Tenant’s other assets will be deemed to have assumed all of
\nTenant’s Liabilities under this Lease, and Tenant will make such Transferee or
\nother acquiring party aware of this provision. Sublessees do not have the
\nright, power, authority to further sub-sublease or otherwise Transfer all or any
\nportion of or interest in the space they sublease.<\/p>\n
(b) A Transferee (which for these purposes shall exclude any sublessee
\nbut shall include any assignee by contract, foreclosure, operation of law or
\notherwise) will be deemed to have assumed all of Tenant’s obligations and
\nLiabilities under this Lease (all of which shall be deemed to run with the land)
\nand will be deemed to be bound by this Lease, and Tenant and the assignee will
\nindemnify Landlord and hold it harmless from all Liabilities in connection with
\nthe assignment. To confirm the foregoing, a prospective Transferee (other than
\na sublessee) will be required to execute and deliver to Landlord an
\nunconditional written assumption of Tenant’s Liabilities under this Lease and
\nthe indemnity described above, and Tenant and the Transferee will be deemed to
\nbe jointly and severally liable for all Liabilities of the tenant under this
\nLease and any existing and future amendments thereto (although such a written
\nassumption shall not be required to establish the full liability of the
\nTransferee for all of Tenant’s Liabilities under this Lease). A sublease will
\nbe deemed to be subject and subordinate to this Lease in all respects. Tenant
\nand the subtenant will indemnify Landlord and hold it harmless from all
\nLiabilities in connection with the sublease. The subtenant will acquire no
\nrights or claims against Landlord or its Affiliates and will not have the right
\nto enforce any of Tenant’s rights and remedies under this Lease against
\nLandlord. If this Lease is terminated or Landlord rightfully reenters or
\nrepossesses the Premises, Landlord may terminate the sublease, or at its option,
\nbecome the sublessor under the sublease and the subtenant will attorn to
\nLandlord, but Landlord will not be liable for Tenant’s acts or omissions,
\nsubject to any existing defenses or offsets against Tenant or bound by any
\namendment to the sublease made without Landlord’s prior written consent. By
\nentering into a sublease, Tenant and the sublessee agree that if the sublessee
\nbreaches an obligation under its sublease which would also constitute a default
\nby Tenant under this Lease if not cured within applicable grace periods, then
\nLandlord will have all of the rights and remedies against the subtenant that is
\nalso has against Tenant for such a default. Without limiting the generality of
\nthe foregoing, Landlord will be permitted (by assignment of the cause of action
\nor otherwise) to join the Tenant in any action or proceeding against subtenant
\nor to proceed against the subtenant directly in the name of Tenant to enforce
\nthese rights and remedies. Tenant will cooperate with Landlord and execute such
\ndocuments as may be reasonably necessary to implement these rights granted to
\nLandlord. The exercise of these rights and remedies will not constitute an
\nelection of remedies and will not in any way impair Landlord’s right to pursue
\nother or similar rights and remedies directly against Tenant, nor will the grant
\nor exercise of these rights or remedies result in the subtenant acquiring any
\nrights or claims against Landlord or its Affiliates.<\/p>\n
18.6 No Release of Tenant. Whether or not Landlord consents, no Transfer
\n ——————–
\nwill release or alter the primary liability of Tenant to pay rent and perform
\nall of Tenant’s other obligations under this Lease. The acceptance of rent by
\nLandlord from any person other than Tenant is not a waiver by Landlord. Consent
\nto one Transfer will not be deemed to be consent to any subsequent Transfer. If
\nany Transferee defaults under this Lease, Landlord may proceed directly against
\nthe Transferee and\/or against Tenant without proceeding or exhausting its
\nremedies against the other. After any Transfer, Landlord may consent to
\nsubsequent Transfers of or amendments to this Lease without notifying Tenant or
\nany other person, without obtaining consent thereto, and without relieving
\nTenant of liability under this Lease (as it may be modified), except that
\nTenant’s aggregate monetary liability under this Lease, as it may be modified,
\nwill not be greater than it would have been under this Lease without the
\nmodification.<\/p>\n
18.7 Additional Terms. Tenant will pay Landlord’s reasonable attorneys’
\n —————-
\nfees and other costs in connection with any request for Landlord’s consent to a
\nTransfer. To be effective all assignments and subleases must always prohibit
\nany further assignment, subleasing or other Transfer and state that they are
\nsubject and subordinate to the terms of this Lease. Subject to Section 18.5(a),
\nwhile Andover Mills Realty Limited Partnership or an affiliated entity or an
\nentity affiliated with Brickstone Square Realty, Inc. or its current
\nshareholders or officers owns the Project or an interest therein, Tenant and its
\nAffiliates will not, directly or indirectly, take an assignment or sublease
\nfrom, or otherwise occupy premises leased to, any existing or future tenants (or
\ntheir assignees, sublessees or successors) of space in the Project or in other
\nprojects in Massachusetts owned by Landlord or a partnership or corporation
\naffiliated with Landlord or with Brickstone Square Realty, Inc. or its current
\nshareholders or officers (current projects are located in Wakefield, Andover,
\nand Billerica). The surrender of this Lease or its termination will not be a
\nmerger, but Landlord will have the right to terminate all subleases and the
\noccupancy rights of all Transferees. Tenant will pay to Landlord as additional
\nrent: fifty percent (50%) of all consideration paid or payable for or by reason
\nof any assignment of this <\/p>\n
8<\/p>\n
Lease; and, in the case of a sublease, fifty percent (50%) of the amount by
\nwhich the sublease rent and other consideration paid or payable (less the
\nsublessee’s pro-rata payment of real estate taxes and insurance, to the extent
\npaid or payable) exceeds the base rent for the sublease term (pro rated for the
\nsquare footage subleased). At Landlord’s option, Landlord may collect all or any
\npart of this additional rent directly from the payor, and consideration paid or
\npayable will be defined in its broadest sense.<\/p>\n
19. MORTGAGEE PROTECTION.
\n ——————– <\/p>\n
19.1 Subordination and Attornment. This Lease is subordinate to all
\n —————————-
\nSuperior Leases and Mortgages (defined in Section 24.4), and Tenant will attorn
\nto each person or entity that succeeds to Landlord’s interest under this Lease.
\nThis Section is self-operative, but if requested to confirm a subordination
\nand\/or attornment, Tenant will execute the standard form subordination and
\nattornment agreements furnished by the then-current lessor or mortgagee under
\nany of the Superior Leases and Mortgages (a “Landlord’s Mortgagee”) within ten
\n(10) days after request. The subordination and attornment provisions will apply
\nfor the benefit of subsequent Landlord’s Mortgagees, provided that they agree
\nnot to disturb Tenant’s rights under this Lease if Tenant is not in default, and
\nat the request of those Landlord’s Mortgagees, Tenant will execute their
\nstandard form subordination, non-disturbance and attornment agreements to
\nprovide for the foregoing within ten (10) days after request. However, if
\nLandlord or Landlord’s Mortgagee elects in writing, this Lease will be superior
\nto the Superior Leases and Mortgages specified, regardless of the date of
\nrecording, and Tenant will execute an agreement confirming this election on
\nrequest. Landlord diligently and in good faith will request that The Bank of
\nNova Scotia, the current Landlord’s Mortgagee, agree to execute with Tenant the
\ncurrent non-disturbance, subordination and attornment agreement now in use by
\nThe Bank of Nova Scotia, but notwithstanding anything to the contrary, neither
\nthis Lease nor any of Tenant’s obligations or other Liabilities hereunder will
\nbe terminated, waived, excused or otherwise reduced in any way if for any
\nreason The Bank of Nova Scotia refuses to execute such an agreement or any
\nsimilar or other agreement.<\/p>\n
19.2 Mortgagee’s Liability. The obligations and Liabilities of Landlord,
\n ———————
\nLandlord’s Mortgagees or their successors under this Lease will exist only if
\nand for so long as each of these respective parties owns fee title to the
\nProject or is the lessee under a ground lease of the Project. Tenant will be
\nliable to Landlord’s Mortgagees or their successors if any of those parties
\nbecome the owner of the Project for any base rent paid more than thirty (30)
\ndays in advance. Landlord’s Mortgagees and their successors will not be liable
\nfor: (a) acts or omissions of prior owners; (b) the return of any security
\ndeposit not delivered or credited to them (and Landlord agrees to deliver or
\ncredit Tenant’s unapplied security deposit to Landlord’s Mortgagees if they
\nsucceed to Landlord’s interest under this Lease); or (c) amendments to this
\nLease made without their consent (if their consent is required under a Superior
\nLease or Mortgage).<\/p>\n
19.3 Mortgagee’s Right to Cure. No act or omission (if any) which
\n ————————-
\notherwise entitles Tenant under the terms of this Lease to be released from any
\nLease obligations or to terminate this Lease will result in such a release or
\ntermination unless Tenant first gives written notice of the act or omission to
\nLandlord and Landlord’s Mortgagees and those parties then fail to correct or
\ncure the act or omission within ninety (90) days thereafter. Nothing in this
\nSection or the rest of this Lease obligates Landlord’s Mortgagees to correct or
\ncure any act or omission or is meant to imply that Tenant has the right to
\nterminate this Lease or be released from its obligations unless that right is
\nexplicitly granted elsewhere in this Lease.<\/p>\n
20. ESTOPPEL CERTIFICATES.
\n ——————— <\/p>\n
Tenant will from time to time, within fifteen (15) days after request by
\nLandlord, execute and deliver an estoppel certificate in form satisfactory to
\nLandlord or its designees which will certify (except as may be noted) such
\ninformation concerning this Lease or Tenant or it’s Affiliates as Landlord or
\nits designees may request. If Tenant fails to execute and deliver estoppel
\ncertificates as required, Landlord’s representations concerning the matters
\ncovered by the estoppel certificate will conclusively be presumed to be correct
\nand binding on Tenant and its Affiliates.<\/p>\n
21. DEFAULT.
\n ——- <\/p>\n
The occurrence of one or more of the following events will be a default by
\nTenant under this Lease: (a) the abandoning of the Premises; (b) the failure to
\npay rent or any other required amount within seven (7) days after written notice
\nthat the payment is due; (c) as provided in Article 23; (cc) the failure to
\ncomply with the terms of Article 25 within five (5) days after written notice;
\n(d) a Transfer in violation of Article 18; (e) the failure to maintain its
\nrequired insurance policies within seven (7) days after written notice; or (f)
\nthe failure to comply with or perform any other obligation, term or condition
\nfor which there is a specified time for compliance or performance set forth in
\nthis Lease within five (5) days after written notice of such failure; if no
\ntime period is specified, it will be a default if this failure continues for
\nfifteen (15) days after written notice from Landlord to Tenant, but if more than
\nfifteen (15) days are reasonably required to cure, Tenant will not be in default
\nif Tenant begins to cure within the fifteen (15)-day period and then diligently
\ncompletes the cure as soon as possible but within ninety (90) days after the
\nnotice of default is given. Whenever the term “default” is used in this Lease,
\nit shall mean and refer to a default as described in this Article 21. If Tenant
\ndefaults, until and unless Landlord delivers a notice of termination of this
\nLease, that default will not cause Tenant to lose its rights under Rider #1,
\nRider #2, Rider #3 or with respect to the Additional Signs under Section 11(e)
\nunless Landlord subsequently gives another written notice of default to Tenant
\n(provided that the original default initially required Landlord to send a
\nwritten notice as set forth above) and Tenant fails to cure that default within
\nfive (5) business days after that subsequent default. At its option, Landlord
\nwill have the right to withhold in whole or in part payment and\/or performance
\nof any its obligations that are premised on the absence of a default until and
\nunless such a cure is tendered within that subsequent 5-day period. If Landlord
\ndoes deliver a termination notice or Tenant fails to cure within that subsequent
\n5-day period, Tenant will lose those rights. Nothing in this Article 21 will be
\ndeemed to limit in any way Landlord’s rights and remedies hereunder, at law or
\nin equity in connection with a default.<\/p>\n
22. REMEDIES FOR DEFAULT.
\n ——————– <\/p>\n
22.1 General. If Tenant defaults, Landlord may at any time thereafter,
\n ——-
\nwith or without notice or demand, do any or all of the following: (a) give
\nTenant written notice stating that the Lease is terminated, effective on the
\ngiving of notice or on a date stated in the notice, as Landlord may elect, in
\nwhich event this Lease will terminate without further action; (b) with or
\nwithout process of law or notice, and with or without terminating this Lease,
\nterminate Tenant’s right of possession and enter and repossess the Premises
\neither by force or otherwise, and expel Tenant and Tenant’s <\/p>\n
9<\/p>\n
Affiliates, and remove their property and effects, without being guilty of
\ntrespass; and (c) pursue any other right or remedy now or hereafter available to
\nLandlord under this Lease or at law or in equity.<\/p>\n
22.2 Tenant’s Obligations. If any default, termination, reentry or
\n ——————–
\ndispossess occurs:<\/p>\n
(a) All rent provided for in this Lease will become due and will be
\npaid to the time of the default, termination, reentry or dispossess, together
\nwith such costs as Landlord may incur for attorneys’ fees and costs, inspection,
\nbrokerage fees, putting the Premises in good order, condition and repair and\/or
\nfor preparing and improving the Premises for re-letting.<\/p>\n
(b) Landlord may, at its sole option, re-let all or any portion of the
\nPremises on terms satisfactory to Landlord in its sole discretion, either in its
\nown name or otherwise, for a term or terms which may, at Landlord’s option, be
\nmore or less than the balance of the term of this Lease and pursuant to one or
\nmore leases, and Landlord may grant concessions, tenant allowances and\/or free
\nrent, among other things.<\/p>\n
(c) Subject to Section 22.2(e), whether or not the Premises are re-
\nlet, Tenant will pay punctually to Landlord all of the rent and other sums and
\nperform all of Tenant’s obligations for the entire Lease term (assuming the
\noriginal expiration date and any exercised options) in the same manner and at
\nthe same time as if this Lease had not been terminated.<\/p>\n
(d) If Landlord re-lets the Premises, Tenant will be entitled to a
\ncredit in the net amount of the rent actually received by Landlord from the re-
\nletting, after deducting all expenses described in Sections 22.2(a) and 22.2(f)
\nand the costs of collecting the rent. Rent received by Landlord after re-
\nletting first will be applied against Landlord’s expenses as described above
\nuntil those expenses are recovered. Until recovery of those expenses, Tenant
\nwill pay as and when due all amounts it is required to pay under this Lease.
\nTenant’s obligations prior to any re-letting and recovery of expenses will not
\nbe diminished even if the re-letting is for a rent higher than the rent
\nhereunder. When and if these expenses have been completely recovered, and
\nsubject to the rest of this Section, amounts collected by Landlord from the re-
\nletting that have not previously been applied will be credited against Tenant’s
\nobligations to the extent arising on or before the date of collection by
\nLandlord, and otherwise when each payment would fall due under this Lease, and
\nonly the net amount thereof will be payable by Tenant. Amounts received by
\nLandlord from re-letting for any period will be credited only against
\nobligations of Tenant allocable to that period or periods prior thereto, and not
\nagainst Tenant’s obligations accruing after that period, nor will any credit be
\ngiven to Tenant for amounts received by Landlord for any period after the
\noriginal expiration date of this Lease.<\/p>\n
(e) At Landlord’s option, in lieu of other damages, Landlord may, by
\nwritten notice to Tenant at any time after Tenant’s default, elect to recover,
\nand Tenant will thereupon pay, as liquidated damages, an amount equal to the
\nexcess, if any, of: (i) the total rent and other benefits which would have
\naccrued to Landlord under this Lease for the remainder of the Lease term
\n(assuming the original expiration date and any exercised Extension Options) if
\nthe default had not occurred plus all of the expenses described in Sections
\n22.2(a) and 22.2(f); less (ii) the value of the cash rental to be paid to
\nLandlord for any lease or leases of the Premises actually executed by Landlord
\nat the time Landlord exercises its option, subject to Subsection (d) above.<\/p>\n
(f) No action of Landlord in connection with any re-letting, or
\nfailure to re-let or collect rent under such re-letting, will operate or be
\nconstrued to release or reduce Tenant’s Liabilities hereunder. Without limiting
\nany of the foregoing provisions, and in addition to any other amounts that
\nTenant is otherwise obligated to pay, Tenant agrees that Landlord may recover
\nfrom Tenant all costs and expenses, including attorneys’ fees and costs,
\nincurred by Landlord in enforcing this Lease from and after Tenant’s default.<\/p>\n
22.3 Redemption. Tenant waives any and all rights of redemption granted by
\n ———-
\nor under any Laws if Tenant is evicted or dispossessed for any cause, or if
\nLandlord obtains possession of the Premises by reason of the violation by Tenant
\nof any of the terms, covenants or conditions of this Lease, or otherwise.<\/p>\n
22.4 Performance by Landlord. If Tenant defaults or fails to perform any
\n ———————–
\nof its obligations under this Lease, Landlord, without waiving or curing the
\ndefault or failure, may, but will not be obligated to, perform Tenant’s
\nobligations for the account and at the expense of Tenant. Notwithstanding
\nSection 21(i), in the case of an emergency or to prevent damage or injury or
\nprotect health, safety or property, Landlord need not give any notice before
\nperforming Tenant’s obligations. Tenant will pay on demand all costs and
\nexpenses incurred by Landlord in connection with Landlord’s performance of
\nTenant’s obligations, and Tenant will indemnify Landlord for and hold Landlord
\nharmless from all Liabilities incurred by Landlord in connection therewith.<\/p>\n
22.5 Post-Judgment Interest. The amount of any judgment obtained by
\n ———————-
\nLandlord against Tenant in any legal proceeding arising out of Tenant’s default
\nunder this Lease will bear interest until paid at the Bank of America announced
\nprime rate plus two percent (2%), or the maximum rate permitted by law,
\nwhichever is less. Notwithstanding anything to the contrary contained in any
\nLaws, with respect to any damages that are certain or ascertainable by
\ncalculation, interest will accrue from the day that the right to the damages
\nvests in Landlord, and in the case of any unliquidated claim, interest will
\naccrue from the day the claim arose.<\/p>\n
23. [SEE EXHIBIT “F”]<\/p>\n
24. GENERAL PROVISIONS.
\n —————— <\/p>\n
24.1 Holding Over. Tenant will not hold over in the Premises after the end
\n ————
\nof the Lease term without the express prior written consent of Landlord. Tenant
\nwill indemnify Landlord for, and hold Landlord harmless from, any and all
\nLiabilities arising out of or in connection with any holding over, including,
\nwithout limitation, any claims made by any succeeding tenant and any loss of
\nrent suffered by Landlord. If, despite this express agreement, any tenancy is
\ncreated by Tenant’s holding over, except as specifically set forth in the next
\nsentence the tenancy will be a tenancy at will terminable immediately at
\nLandlord’s sole option on written notice to Tenant, but otherwise subject to the
\nterms of this Lease, except that the most recent annual base rent will be
\ndoubled. Nothing in this Article or elsewhere in this Lease permits Tenant to
\nhold over or in any way limits Landlord’s other rights and remedies if Tenant
\nholds over.<\/p>\n
24.2 Entry By Landlord. Landlord and its Affiliates at all times have the
\n —————–
\nright to enter the Premises, and Landlord will retain (or be given by Tenant)
\nkeys to unlock all the doors to or within the Premises, excluding doors to
\nTenant’s vaults and files. In addition to the foregoing rights, for
\napproximately thirty (30) days from the date of the mutual execution and
\ndelivery of this Lease, Landlord and NetManage, Inc. (successor to FTP Software,
\nInc.) and their <\/p>\n
10<\/p>\n
respective representatives will have the right to access the Initial Space to
\nremove therefrom movable equipment, furniture and other personal property
\nbelonging to NetManage, Inc. Landlord and its Affiliates will have the right to
\nuse any means necessary to enter the Premises if Landlord believes there is an
\nemergency or that entry is necessary to prevent damage or injury or protect
\nhealth, safety or property. Such entry to the Premises and the exercise of
\nLandlord’s rights will not, under any circumstances, be deemed to be a default,
\na forcible or unlawful entry into or a detainer of the Premises or an eviction
\nof Tenant from the Premises or any portion thereof, nor will it subject Landlord
\nto any Liabilities or entitle Tenant to any compensation, abatement of rent or
\nother rights and remedies.<\/p>\n
24.3 Brokers. Tenant represents and warrants that it has had no dealings
\n ——-
\nwith any agent, broker, finder or other person who is or might be entitled to a
\ncommission or other fee from Landlord in connection with this or any related
\ntransaction except for Tenant’s Broker.<\/p>\n
24.4 Quiet Enjoyment. So long as Tenant pays all rent and performs its
\n —————
\nother obligations as required, Tenant may quietly enjoy the Premises without
\nhindrance or molestation by Landlord or any person lawfully claiming through or
\nunder Landlord, subject to the terms of this Lease and the terms of any Superior
\nLeases and Mortgages, and all other agreements or matters of record or to which
\nthis Lease is subordinate. As used in this Lease, the term “Superior Leases and
\nMortgages” means all present and future ground leases, underlying leases,
\nmortgages, deeds of trust or other encumbrances, and all renewals,
\nmodifications, consolidations, replacements or extensions thereof and advances
\nmade thereunder, affecting all or any portion of the Premises or the Project.<\/p>\n
24.5 Security. Tenant is solely responsible for providing security for the
\n ——–
\nPremises and Tenant’s personnel. Without limiting the generality of this
\nArticle, Tenant agrees that: (a) Landlord may, but will not be required to,
\nsupply security personnel and systems for the Premises, the Common Area or the
\nrest of the Project and remove or restrain unauthorized persons and prevent
\nunauthorized acts; (b) Landlord will incur no Liabilities for failing to
\nprovide security personnel or systems or, if provided, for acts, omissions or
\nmalfunctions of the security personnel or systems; and (c) Landlord and its
\nAffiliates make no representations or warranties of any kind in connection with
\nthe security or safety of the Premises, the Common Area or the rest of the
\nProject.<\/p>\n
24.6 Obligations; Successors; Recordation. If Tenant consists of more than
\n ————————————
\none person or entity, the obligations and liabilities of those persons or
\nentities are joint and several. Time is of the essence of this Lease. Subject
\nto the restrictions in Article 18, this Lease inures to the benefit of and binds
\nLandlord, Tenant and their respective Affiliates. Tenant will not record this
\nLease but Tenant may record a memorandum of this Lease, in form satisfactory to
\nLandlord, to comply with the Massachusetts statutory notice provisions. If this
\nLease expires or is terminated, this memorandum will be deemed null and void and
\nremoved from title, and Tenant will execute and record such documents as may be
\nnecessary to accomplish this at Landlord’s request, and if Tenant refuses to do
\nso, Landlord may execute and record such documents in Tenant’s name or in its
\nown name.<\/p>\n
24.7 Late Charges. If any rent or other amounts payable by Tenant are not
\n ————
\nreceived within five (5) days after the due date, Tenant will pay to Landlord on
\ndemand a late charge equal to five percent (5%) of the overdue amount, and if
\nnot received within ten (10) days after the due date, the amounts also will bear
\ninterest from the due date until paid at the interest rate in Section 22.5.
\nCollection of these late charges and interest will not: be a waiver or cure of
\nTenant’s default or failure to perform; be deemed to be liquidated damages, an
\ninvalid penalty or an election of remedies; or prevent Landlord from exercising
\nany other rights and remedies.<\/p>\n
24.8 Accord and Satisfaction. Payment by Tenant or acceptance by Landlord
\n ———————–
\nof less than the full amount of rent due is not a waiver, but will be deemed to
\nbe on account of amounts next due, and no endorsements or statements on any
\ncheck or any letter accompanying any check or payment will be deemed an accord
\nand satisfaction or binding on Landlord. Landlord may accept the check or
\npayment without prejudice to any of Landlord’s rights and remedies, including,
\nwithout limitation, the right to recover the full amount due.<\/p>\n
24.9 Prior Agreements; Amendments; Waiver. This Lease is an integrated
\n ————————————
\ndocument and contains all of the agreements of the parties with respect to any
\nmatter covered or mentioned in this Lease, and supersedes all prior agreements
\nor understandings relating to the subject matter herein. This Lease may not be
\namended except by an agreement in writing signed by the parties. All waivers
\nmust be in writing, specify the act or omission waived and be signed by
\nLandlord. No other alleged waivers will be effective, including, without
\nlimitation, Landlord’s acceptance of rent, collection of a late charge or
\napplication of a security deposit. Landlord’s waiver of any specific act,
\nomission, term or condition will not be a waiver of any other or subsequent act,
\nomission, term or condition.<\/p>\n
24.10 Representations; Inability to Perform. Landlord and its Affiliates
\n ————————————-
\nhave not made, and Tenant is not relying on, any representations or warranties
\nof any kind, express or implied, with respect to the Premises, the Project or
\nthis transaction. Landlord will not be in default nor incur any Liabilities if
\nit can’t fulfill any of its obligations, or is delayed in doing so, because of
\naccidents, breakage, strike, labor troubles, war, sabotage, governmental
\nregulations or controls, inability to obtain materials or services, acts of God,
\nor any other cause, whether similar or dissimilar, beyond Landlord’s reasonable
\ncontrol.<\/p>\n
24.11 Legal Proceedings. In any action or proceeding involving or
\n —————–
\nrelating in any way to this Lease, the court or other person or entity having
\njurisdiction in such action or proceeding will award to the party in whose favor
\njudgment is entered the actual attorneys’ fees and costs incurred. Tenant also
\nwill indemnify Landlord for, and hold Landlord harmless from and against, all
\nLiabilities incurred by Landlord if Landlord becomes or is made a party to any
\nproceeding or action: (a) involving Tenant and any third party, or by or
\nagainst any person holding any interest under or using the Premises by license
\nof or agreement with Tenant (except and strictly to the extent that Landlord is
\nfinally determined to be a joint tortfeasor with Tenant against such third
\nparty); or (b) necessary to protect Landlord’s interest under this Lease in a
\nproceeding under the Bankruptcy Code. Unless prohibited by law, Tenant waives
\nthe right to trial by jury in all actions involving or related to this Lease,
\nthe Project or any collateral or subsequent agreements between the parties, and
\nany right to impose a counterclaim in any proceeding brought for possession of
\nthe Premises as a result of Tenant’s default. Tenant also submits to and agrees
\nnot to contest the sole and exclusive jurisdiction of the state and federal
\ncourts located in Massachusetts to adjudicate all matters in connection with
\nthis Lease or involving Landlord or Landlord’s Affiliates in any way, and Tenant
\nagrees that it will bring all suits and actions only in such Massachusetts
\ncourts and not to seek a change of venue. Service on any one or more of the
\nindividuals comprising Tenant will conclusively be deemed service on all of
\nthose individuals. In any circumstance where Tenant is obligated to indemnify
\nor hold harmless Landlord under this Lease, that obligation also will run in
\nfavor of Landlord’s Affiliates, and will include the obligation to protect
\nLandlord and its Affiliates, and defend them with counsel acceptable to
\nLandlord, and Tenant <\/p>\n
11<\/p>\n
will pay when due all attorneys’ fees and costs. These obligations to indemnify,
\nhold harmless, protect and defend will survive the expiration or termination of
\nthis Lease.<\/p>\n
24.12 Ownership; Invalidity; Remedies; Choice of Law. As used in this
\n ———————————————-
\nLease, the term “Landlord” means only the current owner or owners of the fee
\ntitle to the Premises. Upon each conveyance (whether voluntary or involuntary)
\nof fee title, the conveying party will be relieved of all Liabilities and
\nobligations contained in or derived from this Lease or arising out of any act,
\noccurrence or omission occurring after the date of such conveyance. Landlord
\nmay Transfer all or any portion of its interests in this Lease, the Premises, or
\nthe Project without affecting Tenant’s obligations and Liabilities under this
\nLease. Tenant has no right, title or interest in the name of the Building or
\nthe Project, and may use these names only to identify its location. Any
\nprovision of this Lease which is invalid, void or illegal will not affect,
\nimpair or invalidate any of the other provisions and the other provisions will
\nremain in full force and effect. Landlord’s rights and remedies are cumulative
\nand not exclusive. This Lease is governed by the laws of Massachusetts
\napplicable to transactions to be performed wholly therein.<\/p>\n
24.13 Expense; Consent. Unless otherwise provided in this Lease, a
\n —————-
\nparty’s obligation will be performed at that party’s sole cost and expense,
\nexcept when Landlord is performing Tenant’s obligations because of Tenant’s
\ndefault or failure to perform or as otherwise permitted in this Lease. Except
\nwhere it is expressly provided that Landlord will not unreasonably withhold its
\nconsent or approval or exercise its judgment reasonably, Landlord may grant or
\nwithhold its consent or approval and exercise its judgment arbitrarily and in
\nits sole and absolute discretion and without dispute by Tenant. In any dispute
\ninvolving Landlord’s withholding of consent or exercise of judgement, the sole
\nright and remedy of Tenant and its Affiliates is declaratory relief (i.e., that
\nsuch consent should be granted where Landlord has agreed not to unreasonably
\nwithhold its consent) pursuant to arbitration in Massachusetts conducted by the
\nAmerican Arbitration Association utilizing its expedited arbitration procedures,
\nand Tenant and its Affiliates waive all other rights and remedies, including,
\nwithout limitation, claims for damages.<\/p>\n
24.14 Presumptions; Exhibits; Submission; Net Lease. This Lease will be
\n ———————————————
\nconstrued without regard to any presumption or other rule requiring construction
\nor interpretation against the party drafting the document. The titles to the
\nArticles and Sections of this Lease are not a part of this Lease and will have
\nno effect on its construction or interpretation. Whenever required by the
\ncontext of this Lease, the singular includes the plural and the plural includes
\nthe singular, and the masculine, feminine and neuter genders each include the
\nothers, and the word “person” includes individuals, corporations, partnerships
\nor other entities. All exhibits and riders attached to this Lease are
\nincorporated in this Lease by this reference, and if there is any conflict with
\nthe rest of this Lease, the riders will control. The submission of this Lease
\nto Tenant or its broker, agent or attorney for review or signature is not an
\noffer to Tenant to lease the Premises or the grant of an option to lease to
\nPremises. This Lease will not be binding unless and until it is executed and
\ndelivered by both Landlord and Tenant. This Lease is intended to be a
\ncompletely “triple net” lease, unless specifically otherwise provided in this
\nLease.<\/p>\n
24.15 Cooperation. Tenant will, at its expense, cooperate with Landlord
\n ———–
\nin all respects in connection with this Lease, Landlord’s ownership, operation,
\nmanagement, improvement, maintenance and repair of the Premises and the rest of
\nthe Project, and Landlord’s exercise of its rights and obligations under this
\nLease. If necessary, this cooperation will include, without limitation, moving
\nmachinery and equipment within the Premises and allowing Landlord sufficient
\nspace within the Premises to enable Landlord to perform any work that Landlord
\nhas the right or is required to perform under this Lease.<\/p>\n
24.16 Notices. All notices, demands or communications required or
\n ——-
\npermitted under this Lease (the “Notices”) will be in writing and personally (by
\nhand or recognized overnight courier) or electronically delivered, or sent by
\ncertified mail, return receipt requested, postage prepaid. Notices to Tenant
\nwill be delivered to the address for Tenant in Section 1.1. Notices to Landlord
\nwill be delivered to the addresses for Landlord in Section 1.1. Notices will be
\neffective on the earlier of: delivery; or, if mailed, three (3) days after they
\nare mailed in accordance with this Section.<\/p>\n
24.17 Security Deposit. On the execution of this Lease, Tenant will
\n —————-
\ndeposit the Security Deposit with Landlord as security for the performance of
\nTenant’s obligations, and will increase the amount of the Security Deposit as
\ndescribed in Section 1.1(g). If Tenant fails to perform its Lease obligations
\nas required, Landlord may, but will not be obligated to, apply all or any part
\nof the Security Deposit for the payment of any amounts due or any other
\nLiabilities which Landlord may incur. If any part of the Security Deposit is so
\napplied, Tenant will, within five (5) days after written demand, deposit cash
\nwith Landlord in an amount sufficient to restore the Security Deposit to its
\nprevious amount. Landlord need not keep the Security Deposit separate from its
\ngeneral funds, and Tenant will receive interest on the unapplied Security
\nDeposit at a rate per annum equal to the rate payable from time to time by the
\nBank of America at its main San Francisco branch on passbook savings accounts,
\npayable at the end of each Lease Year. If Tenant complies with all of the
\nprovisions of this Lease, the unused portion of the Security Deposit will be
\nreturned to Tenant after the end of this Lease and the surrender of possession
\nof the Premises to Landlord in the condition required.<\/p>\n
24.18 Other Defined Terms.
\n ——————- <\/p>\n
(aa) “Acquiring Entity” means: an entity that acquires all or
\nsubstantially all of Tenant’s assets, has a net worth, credit rating and
\nfinancial capability at least equal to Tenant’s when Tenant executed this Lease,
\nexecutes and delivers to Landlord an unconditional assumption of all of Tenant’s
\nobligations and Liabilities under this Lease, and within the two-year period
\nprior to the proposed acquisition has not been subject to a bankruptcy or
\nreorganization or any proceedings or court-ordered compliance in connection
\ntherewith, or had a receiver managing any or its affairs or assets, or been
\nsubject to criminal judgments.<\/p>\n
(a) “Affiliates” means: partners, directors, officers, shareholders,
\nagents, employees, parents, subsidiaries, affiliated parties, invitees,
\nlicensees, concessionaires, contractors, subcontractors, successors, assigns,
\nsubtenants, and representatives. However, where Tenant under this Lease
\nreleases Landlord’s Affiliates from Liabilities, Tenant will not be deemed to
\nhave released Landlord’s contractors and subcontractors if such parties are
\ncompletely independent from Landlord and otherwise are not Affiliates of
\nLandlord.<\/p>\n
(bb) “Family Entity” means: an entity in which CMGI, Inc. owned at
\nleast fifty one percent (51%) of the outstanding shares or interests (or in
\nwhich CMGI, Inc. owned at least 5% of the outstanding shares or interests and
\nCMGI, Inc. or a person affiliated with CMGI, Inc. maintained a seat on its board
\nof directors) and which was an occupant of the Project, that subsequently
\nbecomes an entity whose shares or interests are publicly traded on a public
\nexchange (such as the NYSE or NASDAQ) and in which CMGI, Inc. continues to own
\nat least one percent (1%) of the outstanding shares or interests, and that
\nwithin the <\/p>\n
12<\/p>\n
two-year period prior to the Transfer has not been subject to a bankruptcy or
\nreorganization or any proceedings or court-ordered compliance in connection
\ntherewith, or had a receiver managing any or its affairs or assets, or been
\nsubject to criminal judgments.<\/p>\n
(bbb) “Family Sublease” means a sublease by CMGI, Inc. of at least
\n10,000 square feet of the Premises to a Family Entity pursuant to a sublease
\nthat complies with the terms of this Lease.<\/p>\n
(b) “Laws” means: laws, codes, decisions, ordinances, rules,
\nregulations, licenses, permits, and directives of governmental and quasi-
\ngovernmental officers, including, without limitation, those relating to building
\nand safety, fire prevention, health, energy conservation, Hazardous Substances
\nand environmental protection.<\/p>\n
(c) “Liabilities” means: all costs, damages, claims, injuries,
\nliabilities and judgments, including, without limitation, attorneys’ fees and
\ncosts (whether or not suit is commenced or judgment entered).<\/p>\n
(dd) “Outside Sublease” means: a sublease to an entity that is not a
\nFamily Entity pursuant to a sublease that complies with the terms of this Lease.<\/p>\n
(d) “Systems and Equipment” means: all HVAC, plumbing, mechanical,
\nelectrical, lighting, water, gas, sewer, safety, sanitary and any other utility
\nor service facilities, systems and equipment, and all pipes, ducts, poles,
\nstacks, chases, conduits and wires.<\/p>\n
(e) “vacant possession” means: delivery to Tenant of possession of
\na particular space (other than the Initial Space) with all or substantially all
\nof any previous tenant’s movable personal property removed therefrom. Although
\nthe following will not be deemed to affect the date that vacant possession of
\nany space is delivered to Tenant, Landlord will have the obligation to
\ndiligently perform (or at its option pay Tenant the reasonable costs to
\nperform), if and to the extent necessary, the following work for space other
\nthan the Initial Space: to put in good working order any equipment dedicated to
\nthat particular space that is not in good working order when that space is
\ndelivered to Tenant; and to remove any hazardous substances that exist in such
\nspace in more than de minimis amounts when that space is delivered to Tenant if
\nand to the extent that removal then is required under applicable Laws in force
\nat that time. Unless Tenant occupies that particular space to conduct business
\nearlier, Tenant will not be obligated to pay rent for that space until such work
\nis substantially completed or paid for by Landlord. Tenant will notify Landlord
\npromptly if it becomes aware that any of such work is required.<\/p>\n
25. HAZARDOUS SUBSTANCES.
\n ——————– <\/p>\n
Without limiting the generality of any portion of this Lease, Tenant and
\nits Affiliates will:<\/p>\n
(a) Not store, handle, transport, use, process, generate, discharge or
\ndispose of any hazardous, toxic, corrosive, dangerous, explosive, flammable or
\nnoxious substances, gasses or waste, whether now or hereafter defined under any
\nLaws or otherwise (collectively, “hazardous substances”), from, in or about the
\nPremises or the rest of the Project or create any release or threat of release
\nof any hazardous substances (except for small quantities of cleaning and office
\nsupplies for normal office use and then only in accordance with applicable
\nLaws), nor permit any of the foregoing to occur. If any of the foregoing occur,
\nor if Landlord in good faith believes that any of the foregoing have occurred or
\nare likely to occur or that Tenant and its Affiliates are not complying fully
\nwith the requirements of this Article, in addition to any other rights and
\nremedies of Landlord, Tenant and its Affiliates immediately will cease the acts
\nor omissions and in addition to any other rights and remedies (all of which are
\ncumulative), at Landlord’s request Tenant will take such actions as may be
\nrequired by Laws and as Landlord may direct to cure or prevent the problem.
\nTenant and its Affiliates will comply fully with all Laws and insurance
\nrequirements in connection with or related to hazardous substances, whether now
\nor hereafter existing, including, without limitation, CERCLA, SARA, RCRA, TSCA,
\nCWA, Chapter 21E of Massachusetts General Laws and any other Laws promulgated by
\nthe EPA, OSHA or Commonwealth of Massachusetts.<\/p>\n
(b) Immediately pay, and indemnify Landlord for and hold Landlord
\nharmless from, all Liabilities in connection with or arising directly or
\nindirectly from any breach by Tenant or its Affiliates of their obligations in
\nthis Article, including, without limitation, the costs of any of the following,
\nwhether required by Landlord, applicable Laws or insurance requirements or
\notherwise: any “response actions” or “responses”; any surveys, “audits”,
\ninspections, tests, reports or procedures deemed necessary or desirable by
\nLandlord or governmental or quasi-governmental authorities to determine the
\nexistence or scope of any hazardous substances or Tenant’s compliance with this
\nArticle, and any actions recommended to be taken in connection therewith;
\ncompliance with any applicable Laws and insurance requirements; any
\nrequirements, directives or plans for the prevention, containment, processing,
\nstorage, clean-up or disposal of hazardous substances; the release and discharge
\nof any resulting liens; and any other injury or damage. On the expiration or
\nearlier termination of this Lease, Tenant will leave the Premises free of
\nhazardous substances that were stored, handled, transported, used, processed,
\ngenerated, discharged or disposed of by Tenant or its Affiliates.<\/p>\n
(c) Immediately deliver to Landlord copies of any notices,
\ninformation, reports, and communications of any type received or given in
\nconnection with hazardous substances, including, without limitation, notices of
\nviolation and settlement actions from or with governmental or quasi-governmental
\nauthorities, reports from Tenant’s engineers or consultants, and the results of
\nany analyses conducted by or for Tenant. Tenant specifically grants Landlord
\nthe right to participate in all discussions and meetings regarding actual or
\npotential violations, settlements or abatements.<\/p>\n
13<\/p>\n
Tenant’s failure to comply with the requirements of this Article will be a
\nmaterial default under this Lease. All of Tenant’s obligations under this
\nArticle will survive the expiration or earlier termination of this Lease.<\/p>\n
IN WITNESS WHEREOF, intending to be legally bound, each party has executed
\nthis Lease as a sealed instrument as of the date first set forth above on the
\ndate specified below next to its signature.<\/p>\n
“LANDLORD”<\/p>\n
Executed: 4-12, 1999 ANDOVER MILLS REALTY LIMITED PARTNERSHIP, a
\n Massachusetts limited partnership<\/p>\n
By: Brickstone Square Realty, Inc., a
\n Massachusetts corporation, general
\nWITNESS: partner <\/p>\n
\/s\/ Carolyn Grover By: \/s\/ Martin Spagat
\n————————- ——————————
\nName Printed: Carolyn Grover Name: Martin Spagat
\n Title: Vice President
\n Authorized Signature <\/p>\n
“TENANT”<\/p>\n
Executed: 4-12-99, 1999 CMGI, INC., a Delaware corporation<\/p>\n
WITNESS: \/s\/ William Garrity <\/p>\n
William Garrity By: \/s\/ Andrew Hajducky
\n—————————- ——————————
\nName Printed: Name: Andrew Hajducky
\n Title:CEO
\n Authorized Signature <\/p>\n
14<\/p>\n
EXHIBIT “A”
\n ———–<\/p>\n
SITE PLAN APPEARS HERE<\/p>\n
EXHIBIT “A”
\n ———–<\/p>\n
15<\/p>\n
EXHIBIT “A” CONTINUED
\n ——————— <\/p>\n
PROJECT SITE PLAN<\/p>\n
EXHIBIT “A” CONTINUE
\n ——————–<\/p>\n
16<\/p>\n
EXHIBIT “B”
\n ———–
\n PREMISES
\n INITIAL SPACE
\n BUILDING 100
\n FIRST FLOOR<\/p>\n
EXHIBIT “B”
\n ———–<\/p>\n
17<\/p>\n
EXHIBIT “B” – CONTINUED
\n ———————–
\n PREMISES
\n INITIAL SPACE
\n BUILDING 100
\n FIFTH FLOOR<\/p>\n
EXHIBIT “B” – CONTINUED
\n ———————–<\/p>\n
18<\/p>\n
EXHIBIT “B-1”
\n ————-
\n PREMISES
\n ADDITIONAL SPACE
\n BUILDING 100
\n FOURTH FLOOR<\/p>\n
EXHIBIT “B”-1″
\n ————–<\/p>\n
19<\/p>\n
EXHIBIT “C”
\n ———–<\/p>\n
WORKLETTER<\/p>\n
All construction, materials, services, licenses, approvals, costs, installations
\nand equipment to or for the Premises for Tenant’s initial occupancy (other than
\nthose that exist when possession of the space is delivered to Tenant) are called
\n“Tenant’s Work,” and will be performed by Tenant at Tenant’s sole cost, in
\naccordance with applicable Laws and in a good and workmanlike manner and subject
\nto the rest of the terms of this Lease. Tenant accepts the Initial Space “as
\nis,” and will accept the rest of the Premises “as is” subject only to Section
\n24.18(e). Tenant will use licensed and bonded contractors reasonably approved by
\nLandlord. Landlord will have no responsibility for Tenant’s Work, and Tenant
\nwill indemnify, defend and hold Landlord and its Affiliates harmless from all
\nLiabilities in connection with Tenant’s Work. Tenant will cause its contractors
\nand subcontractors to carry commercial general liability insurance with the same
\nattributes as those set forth in Section 8.1(a)(i), each in the amount of at
\nleast One Million Dollars ($1,000,000) combined single limit for each occurrence
\n(subject to reasonable increase during the term at Landlord’s request), naming
\nLandlord and its designees as additional insureds, workmen’s compensation
\ninsurance in statutory limits, and employer’s liability insurance of not less
\nthan One Million Dollars ($1,000,000).<\/p>\n
EXHIBIT “C”
\n Page 1 to 1<\/p>\n
EXHIBIT “D”
\n ———–<\/p>\n
BASE RENT<\/p>\n
1. INITIAL SPACE.
\n – ————-<\/p>\n
Date Annual Base Rent Per Rentable Square Food
\n —- —————————————–<\/p>\n
Until 08\/31\/2002 $ 11.45<\/p>\n
09\/01\/2002 – 03\/31\/2005 14.00<\/p>\n
04\/01\/2005 – 03\/31\/2008 15.00<\/p>\n
04\/01\/2008 – 03\/31\/2011* 16.00<\/p>\n
Starting 04\/01\/2011 and every 3 years thereafter during the term (i.e., on
\n04\/01\/2014, 04\/01\/2017, etc.), annual base rent for this space increases by
\n$1.00 per square foot<\/p>\n
* Note: Although the above schedule covers a longer period, the initial term for
\n Initial Space and Additional space expires 03\/31\/2009, unless extended or
\n terminated earlier per this Lease.<\/p>\n
II. ADDITIONAL SPACE; EXPANSION SPACE; OFFER SPACE.
\n ———————————————- <\/p>\n
Date Annual Base Rent Per Rentable Square Foot
\n —- —————————————–<\/p>\n
Until 03\/31\/2002 $ 12.50 <\/p>\n
04\/01\/2002 – 03\/31\/2005 14.00<\/p>\n
04\/01\/2005 – 03\/31\/2008 15.00<\/p>\n
04\/01\/2008 – 03\/31\/2011* 16.00<\/p>\n
Starting 04\/01\/2011 and every 3 years thereafter during the term (i.e., on
\n04\/01\/2014, 04\/01\/2017, etc.), annual base rent for this space increases by
\n$1.00 per square foot<\/p>\n
* Note: Although the above schedule covers a longer period, the initial term for
\n Expansion Space expires 05\/31\/2010, unless extended or terminated earlier per
\n this Lease. The initial term for Offer Space expires 5\/31\/2011, unless
\n extended or terminated earlier per this Lease.<\/p>\n
[SEE RIDER #2 FOR RENT DURING EXTENSION OPTION TERMS]<\/p>\n
EXHIBIT “D”
\n Page 1 to 1<\/p>\n
EXHIBIT “E”
\n ———–<\/p>\n
RULES AND REGULATIONS<\/p>\n
1. Fire exits and stairways are for emergency use only, and they
\nshall not be used for any other purposes. Tenant shall not encumber or
\nobstruct, or permit the encumbrance or obstruction of or store or place any
\nmaterials on any of the sidewalks, plazas, entrance, corridors, elevators, fire
\nexits or stairways of the Project. The Landlord reserves the right to control
\nand operate the public portions of the Project and the public facilities, as
\nwell as facilities furnished for the common use of the tenants, and access
\nthereto, in such manner as it deems best.<\/p>\n
2. The cost of repairing any damage to the public portions of the
\nProject or the public facilities or to any facilities used in common with other
\ntenants caused by Tenant or its Affiliates shall be paid by Tenant.<\/p>\n
3. Any person whose presence in the Project at any time shall, in
\nthe judgment of the Landlord, be prejudicial to the safety, character,
\nreputation and interests of the Project or its tenants may be denied access to
\nthe Project or may be ejected therefrom. In case of invasion, riot, public
\nexcitement or other commotion the Landlord may prevent all access to the Project
\nor the Building during the continuance of the same, by closing the doors or
\notherwise, for the safety of the tenants and protection of property. The
\nLandlord shall in no way be liable to any tenant for damages or loss arising
\nfrom the admission, exclusion or ejection of any person to or from Tenant’s
\npremises or the Project under the provisions of this rule.<\/p>\n
4. No awnings or other projections over or around the windows shall
\nbe installed by Tenant and only such window blinds as are permitted by the
\nLandlord shall be used in Tenant’s premises.<\/p>\n
5. Hand trucks shall not be used in any space, or in the public
\nhalls of the Building in the delivery or receipt of merchandise, except those
\nequipped with rubber tires and side guards. Tenant shall repair all damage to
\nfloors both in the Premises and the Common Area caused by its use of material-
\nhandling equipment and, if requested by Landlord, Tenant shall install at its
\nexpense suitable floor covering to protect the floors and shall remove such
\nfloor covering (and repair any damage caused by the removal) at its expense at
\nthe expiration or earlier termination of this Lease. All air compressors,
\nelectric motors and other machinery and equipment shall be shock-mounted so as
\nnot to transmit vibrations.<\/p>\n
6. All entrance doors in Tenant’s premises shall be kept locked when
\nTenant’s premises are not in use. Entrance doors shall not be left open at any
\ntime. All windows in Tenant’s premises shall be kept closed at all times and
\nall blinds therein above the ground floor shall be lowered when and as
\nreasonably required because of the position of the sun, during the operation of
\nthe air conditioning system to cool or ventilate the tenant’s premises.<\/p>\n
7. Nothing shall be done or permitted in Tenant’s premises which
\nwould impair or interfere with any of the Systems or Equipment or the proper and
\neconomic servicing of the Building or the Premises, or the use or enjoyment by
\nany other tenant of any other premises, nor shall there be installed by Tenant
\nany Systems or Equipment or other equipment of any kind which, in Landlord’s
\njudgment, could result in such impairment or interference. If necessary in
\nLandlord’s judgment, Landlord may install, relocate, remove, use, maintain,
\nrepair and replace Systems and Equipment within or serving the Tenant’s premises
\nor other parts of the Project, and perform other work and alterations within the
\nTenant’s premises. No dangerous, inflammable, combustible or explosive object
\nor material shall be brought into the Building by Tenant or with the permission
\nof Tenant.<\/p>\n
8. Whenever Tenant shall submit to Landlord any plan, agreement or
\nother document for Landlord’s consent or approval, such tenant agrees to pay
\nLandlord as additional rent, on demand, a processing fee in a sum equal to the
\nfees of any architect, contractor, engineer and attorney employed by Landlord to
\nreview said plan, agreement or document. If Tenant at any time is not a
\npublicly traded entity whose financial statements are publicly available, within
\nfifteen (15) days after Landlord’s request from time to time, Tenant shall
\ndeliver to Landlord Tenant’s financial statements, including a balance sheet,
\nincome statements and bank references, and until and unless those financial
\nstatements are publicly available or disclosure is required under applicable
\nLaws, Landlord will make a good faith effort to keep them confidential and not
\ndisclose them except to its current or prospective lenders, investors, partners,
\nor purchasers, or its or their respective partners, employees, officers,
\nrepresentatives, accountants, or attorneys, and it will instruct such parties to
\nkeep such financial statements confidential to the same extent.<\/p>\n
9. No acids, vapors hazardous or other materials shall be discharged
\nor permitted to be discharged into the waste lines, ducts, vents or flues which
\nmay damage them or any other portions of the Building or the Project. The water
\nand wash closets and other plumbing fixtures in or serving any tenant’s premises
\nshall not be used for any purpose other than the purpose for which they were
\ndesigned or constructed, and no sweepings, rubbish, rags, acids or other foreign
\nsubstances shall be deposited therein. All damage resulting from any misuse of
\nthe fixtures shall be borne by the tenant who, or whose servants, employees,
\nagents, visitors or licensees, shall have caused the same.<\/p>\n
10. No signs, advertisements, notice or other lettering shall be
\nexhibited, inscribed, painted or affixed by Tenant on any part of the outside or
\ninside the premises or the Building without the prior written consent of
\nLandlord. The Tenant shall cause the exterior of any permitted sign to be kept
\nclean, properly maintained and in good order and repair throughout the term of
\nits lease. In the event of the violation of the foregoing by Tenant, Landlord
\nmay remove the same without any liability, and may charge the expense incurred
\nby such removal to Tenant. Landlord shall have the right to prohibit any
\nadvertising by Tenant which impairs the reputation of the Building or the
\nProject, and upon written notice from Landlord, Tenant shall refrain from or
\ndiscontinue such advertising.<\/p>\n
11. Tenant’s employees shall not loiter around the hallways,
\nstairways, elevators, front, roof or any other part of the Building used in
\ncommon by the occupants thereof.<\/p>\n
12. If the premises become infested with vermin, Tenant, at its sole
\ncost and expense, shall cause its premises to be exterminated, from time to
\ntime, to the satisfaction of Landlord, and shall employ such exterminators
\ntherefor as shall be approved by Landlord.<\/p>\n
13. All movers used by Tenant shall be appropriately licensed and
\nshall maintain adequate insurance coverage (proof of such coverage shall be
\ndelivered to Landlord prior to movers providing service in and throughout the
\nBuilding). Tenant shall protect the premises and the rest of the Building from
\ndamage or soiling by Tenant’s movers and contractors and shall pay for extra
\ncleaning or replacement or repairs by reason of Tenant’s failure to do so.<\/p>\n
14. The premises shall not be used for lodging or sleeping or for any
\nimmoral or illegal purposes.<\/p>\n
EXHIBIT “E”<\/p>\n
EXHIBIT “F”
\n ———–<\/p>\n
BANKRUPTCY PROVISIONS<\/p>\n
This Article is incorporated into the Lease as Article 23:<\/p>\n
23. BANKRUPTCY OR INSOLVENCY.
\n ———————— <\/p>\n
23.1 Tenant’s Interest Not Transferable. Neither Tenant’s interest in this
\n ———————————-
\nLease nor any estate hereby created in Tenant nor any interest herein or therein
\nwill pass to any trustee or receiver or assignee for the benefit of creditors or
\notherwise by operation of law except as may specifically be provided pursuant to
\nthe Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the “Bankruptcy Code”).
\n — — <\/p>\n
23.2 Default and Termination. If:
\n ———————– <\/p>\n
(a) Tenant or Tenant’s Guarantor, if any, or its executors,
\nadministrators, or assigns, will generally not pay its debts as they become due
\nor will admit in writing its inability to pay its debts, or will make a general
\nassignment for the benefit of creditors; or<\/p>\n
(b) Tenant or Tenant’s Guarantor, if any, will commence any case,
\nproceeding or other action seeking reorganization, arrangement, adjustment,
\nliquidation, dissolution or composition of it or its debts under any law
\nrelating to bankruptcy, insolvency, reorganization or relief of debtors, or
\nseeking appointment of a receiver, trustee, custodian or other similar official
\nfor it or for all or any substantial part of its property; or<\/p>\n
(c) Tenant or Tenant’s Guarantor, if any, will take any corporate,
\npartnership or other action to authorize or in furtherance of any of the actions
\nset forth above in subsection (a) or (b); or<\/p>\n
(d) Any case, proceeding or other action against Tenant or Tenant’s
\nGuarantor, if any, will be commenced seeking to have an order for relief entered
\nagainst it as debtor, or seeking reorganization, arrangement, adjustment,
\nliquidation, dissolution or composition of it or its debts under any law
\nrelating to bankruptcy, insolvency, reorganization or relief of debtors, or
\nseeking appointment of a receiver, trustee, custodian or other similar official
\nfor it or for all or any substantial part of its property, and such case,
\nproceeding or other action: results in the entry of an order for relief against
\nit which is not fully stayed within seven (7) business days after the entry
\nthereof; or remains undismissed for a period of forty-five (45) days, then it
\nwill be a default hereunder and this Lease and all rights of Tenant hereunder
\nwill automatically cease and terminate as if the date of such event were the
\noriginal expiration date of this Lease and Tenant will vacate and surrender the
\nPremises but will remain liable as herein provided.<\/p>\n
23.3 Rights and Obligations Under the Bankruptcy Code.
\n ———————————————— <\/p>\n
(a) Upon the filing of a petition by or against Tenant under the
\nBankruptcy Code, Tenant, as debtor and as debtor in possession, and any trustee
\nwho may be appointed agree as follows: (i) to perform all obligations of Tenant
\nunder this Lease, including, but not limited to, the covenants regarding the
\noperations and uses of the Premises until such time as this Lease is either
\nrejected or assumed by order of the United States Bankruptcy Court; (ii) to pay
\nmonthly in advance on the first day of each month as reasonable compensation for
\nuse and occupancy of the Premises an amount equal to all Monthly Minimum Rental
\nand other rent otherwise due pursuant to this Lease; (iii) to reject or assume
\nthis Lease within sixty (60) days of the filing of a petition under any Chapter
\nof the Bankruptcy Code or under any Law relating to bankruptcy, insolvency,
\nreorganization or relief of debtors (any such rejection being deemed an
\nautomatic termination of this Lease); (iv) to give Landlord at least thirty (30)
\ndays prior written notice of any proceeding relating to any assumption of this
\nLease; (v) to give at least thirty (30) days prior written notice of any
\nabandonment of the Premises (any such abandonment being deemed a rejection and
\nautomatic termination of this Lease); (vi) to do all other things of benefit to
\nLandlord otherwise required under the Bankruptcy Code or under any Law relating
\nto bankruptcy, insolvency, reorganization or relief of debtors; (vii) to be
\ndeemed to have rejected this Lease in the event of the failure to comply with
\nany of the above; and (viii) to have consented to the entry of an order by an
\nappropriate United States Bankruptcy Court providing all of the above, waiving
\nnotice and hearing of the entry of same.<\/p>\n
(b) No default under this Lease by Tenant, either prior to or
\nsubsequent to the filing of such petition, will be deemed to have been waived
\nunless expressly done so in writing by Landlord.<\/p>\n
(c) Included within and in addition to any other conditions or
\nobligations imposed upon Tenant or its successor in the event of assumption
\nand\/or assignment are the following: (i) the cure of any monetary defaults and
\nthe reimbursement of pecuniary loss by the time of the entry of the order
\napproving such assumption and\/or assignment (pecuniary loss will include,
\nwithout limitation, any attorneys’ fees and costs and expert witness fees
\nincurred by Landlord in protecting its rights under this Lease, including
\nrepresentation of Landlord in any proceeding commenced under the Bankruptcy Code
\nor under any Law relating to bankruptcy, insolvency, reorganization or relief of
\ndebtor); (ii) the deposit of an additional sum equal to three (3) months’ base
\nrent; (iii) the use of the Premises only as set forth in this Lease; (iv) the
\nreorganized debtor or assignee of such debtor in possession or of Tenant’s
\ntrustee demonstrates in writing that it has sufficient background including, but
\nnot limited to, substantial experience in operating businesses in the manner
\ncontemplated in this Lease and meet all other reasonable criteria of Landlord as
\ndid Tenant upon execution of this Lease; (v) meet all other criteria of 11
\nU.S.C. Section 365(b)(3); and (v) the prior written consent of any mortgagee to
\nwhich this Lease has been assigned as collateral security; and (vi) the Premises
\nat all times remains a single unit and no Alterations or physical changes of any
\nkind may be made unless in compliance with the applicable provisions of this
\nLease.<\/p>\n
(d) Any person or entity to whom this Lease is assigned pursuant to
\nthe provisions of the Bankruptcy Code will be deemed without further act or deed
\nto have assumed all of the obligations arising under this Lease on or after the
\ndate of such assignment. Any such assignee will upon demand execute and deliver
\nto Landlord an instrument confirming such assumption.<\/p>\n
23.4 Construction. The terms of this Article will be in addition to, but
\n ————
\nnot exclusive of, any rights or remedies of Landlord in Article 22 and elsewhere
\nin this Lease or otherwise available at law or in equity, and will not be deemed
\nto limit Landlord, except as may be required by law.<\/p>\n
EXHIBIT “F”
\n ———–
\n Page 1 of 1<\/p>\n
EXHIBIT “G”
\n ———–
\n PYLON SIGNAGE<\/p>\n
[MONUMENT PLAN APPEARS HERE]<\/p>\n
EXHIBIT “G-1″
\n ————-
\n EXTERIOR BUILDING SIGNAGE<\/p>\n
PARTIAL ELEVATION OF BUILDING 10O SOUTH FACADE – WEST END<\/p>\n
SCALE 1\/4″ – 1′- 10”<\/p>\n
[BUILDING PLAN APPEARS HERE]<\/p>\n
EXHIBIT “G-1”
\n ————-
\n EXTERIOR BUILDING SIGNAGE<\/p>\n
RIDER #1
\n ——–<\/p>\n
TENANT INDUCEMENT; RIGHT OF FIRST OFFER<\/p>\n
26. TENANT INDUCEMENT.
\n —————– <\/p>\n
Provided that Tenant is not in default (and has not committed acts or
\nomissions which would constitute a default with the passage of time or the
\ngiving of notice or both), Landlord shall pay to Tenant (or at Landlord’s
\noption, credit against rent owed by Tenant) the following amounts as inducements
\nto Tenant: (a) Seven Dollars and Fifty Cents ($7.50) per square foot of agreed
\nrentable area, plus Two Hundred Fifty Thousand Dollars ($250,000.00), for the
\nInitial Space; (b) Twenty Five Dollars ($25.00) per square foot of agreed
\nrentable area for the Additional Space; (c) Twenty Dollars ($20.00) per square
\nfoot of agreed rentable area for any Expansion Space leased pursuant to this
\nLease (except for any space described in Subsections (e) and (f) below); (d) an
\namount equal to Two Dollars ($2.00) per square foot of agreed rentable area
\nmultiplied by the number of years in the initial Lease term of that Offer Space
\n(up to a maximum of $20.00 per square foot of agreed rentable area) for any
\nOffer Space leased pursuant to this Lease (except for any space described in
\nSubsections (e) and (f) below); (e) for the space currently leased by Andover
\nControls Corporation on the 2\/nd\/, 3\/rd\/ and 4\/th\/ Floors of Building 300,
\nThirty One Dollars ($31.00) per square foot of agreed rentable area to the
\nextent that any portion of such space is leased by Tenant as Expansion Space,
\nand Three Dollars and Ten Cents ($3.10) per square foot of agreed rentable area
\nmultiplied by the number of years in the initial Lease term of that Offer Space
\n(up to a maximum of Thirty One Dollars ($31.00) per square foot of agreed
\nrentable area) to the extent that any portion of such space is leased by Tenant
\nas Offer Space; and (f) for the space currently leased by Germanium Power
\nDevices Corporation on the 7\/th\/ Floor of Building 300, Thirty Five Dollars
\n($35.00) per square foot of agreed rentable area to the extent that any portion
\nof such space is leased by Tenant as Expansion Space, and Three Dollars and
\nFifty Cents ($3.50) per square foot of agreed rentable area multiplied by the
\nnumber of years in the initial Lease term of that Offer Space (up to a maximum
\nof Thirty Five Dollars ($35.00) per square foot of agreed rentable area) to the
\nextent that any portion of such space is leased by Tenant as Offer Space. These
\ninducement payments will be payable within thirty (30) days after Tenant pays
\nits first month’s rent for that particular space and confirms in writing to
\nLandlord that it unconditionally accepts that space and that the Rent
\nCommencement Date has occurred for that space.<\/p>\n
27. RIGHT OF FIRST OFFER.
\n ——————– <\/p>\n
“Offer Space” means the unleased space in the Project held for lease by
\nLandlord. For the period starting June 1, 2001 and ending on March 31, 2004
\n(the “Offer Period”), Tenant will have the right to lease the Offer Space on the
\nfollowing terms and conditions:<\/p>\n
(a) Subject to the foregoing and the rest of this Article, before
\nleasing any part of the Offer Space that exceeds 10,000 square feet of rentable
\narea in each particular instance during the Offer Period, Landlord will notify
\nTenant in writing of the rentable area and location of that part of the Offer
\nSpace being offered for Lease. If Tenant wishes to exercise its right to lease
\nthat space, it must deliver an unconditional written notice of exercise to
\nLandlord within twenty (20) days after receipt of Landlord’s notice. Tenant may
\nnot lease less than the entire space offered. Unless otherwise agreed by
\nLandlord and Tenant, the rentable area of each portion of the Offer Space (and
\nany Expansion Space) will be determined by Landlord’s architect’s measurement of
\nthe area, determined by measuring from interior face of glass to interior of
\nface of glass without deductions, plus a pro rata share of the Common Areas
\nwithin the Building (and if the Offer Space or Expansion Space is within
\nBuildings 100 or 200, the Common Area will include a pro rata share of any
\nshared space between Buildings 100 and 200). Time is of the essence, and if
\nTenant does not exercise its rights as described above, its rights to lease that
\nportion of the Offer Space (as increased or decreased by up to 20% of the
\nuseable area of that space) will lapse and become null and void.<\/p>\n
(b) Subject to the rest of this Article, if Tenant exercises its
\nrights as described above, when Landlord tenders vacant possession of that
\nportion of the Offer Space to Tenant it will become part of the Premises and the
\nrentable area of the Premises will be increased by the rentable area of that
\nportion. The Rent Commencement Date for that Offer Space will occur sixty (60)
\ndays thereafter.<\/p>\n
(c) These rights are personal to the Tenant originally named in this
\nLease and may not be exercised by or for any other Transferee or other person or
\nentity (except for an Acquiring Entity). Whether or not these rights have been
\nexercised, these rights will lapse and Tenant will have no rights in connection
\nwith any Offer Space if, before vacant possession of any Offer Space is tendered
\nto Tenant, Tenant defaults, or Transfers all or part of this Lease or the
\nPremises (except for Outside Subleases that all together aggregate less than
\n25% of the rentable area of the Premises when made, or Family Subleases that all
\ntogether aggregate less than 75% of the rentable area of the Premises when made,
\nor subleases of any type that all together aggregate less than 75% of the
\nrentable area of the Premises when made). Tenant’s rights in this Article are
\nsubject and subordinate to rights of first offer, option, expansion, extension,
\nor similar rights that have been granted to the existing tenants in the Project
\n(and their successors and assigns) as of the date of this Lease, and even if
\nextension rights have not been granted to existing or future tenants (or their
\nsuccessors and assigns), Landlord always will have the right to extend the lease
\nterms of existing or future tenants (and their successors and assigns) without
\nbeing required to first offer that space as Offer Space to Tenant, and Tenant’s
\nrights in this Article will be subject and subordinate to those extensions .<\/p>\n
(d) The base rent per annum per square foot of rentable area for each
\npart of the Offer Space will be the scheduled base rent in Exhibit “D (which in
\nturn is subject to Rider #2).<\/p>\n
(e) Notwithstanding anything to the contrary, Landlord will have no
\nobligations to Tenant hereunder or otherwise nor will Tenant have any rights
\nhereunder or otherwise with respect to any particular Offer Space not already
\nleased to Tenant if and to the extent that: (i) with the inclusion of such Offer
\nSpace, Tenant would be leasing aggregate Offer Space of more than 180,000 square
\nfeet of rentable area, or aggregate space in the Premises (including Offer Space
\nand all other space) of more than 500,000 square feet of rentable area; or (ii)
\nat the time that Tenant exercises its rights to lease such Offer Space Tenant
\nhas a net worth of less than $350 Million, or a combination of cash and readily
\nmarketable securities of less than $50 Million, or a ratio of debt to assets of
\nmore than .3 to 1.0 (and as a condition to leasing any Offer Space Tenant must
\ndeliver to Landlord together with Tenant’s exercise notice Tenant’s
\nunconditional written certification, representation and warranty that it meets
\nor exceeds all of these financial standards, accompanied by written evidence
\nthereof reasonably satisfactory to Landlord).<\/p>\n
RIDER #1
\n ——–
\n Page 1 of 2<\/p>\n
28. EXPANSION OPTIONS.
\n —————– <\/p>\n
28.1 Expansion Options. Landlord grants to Tenant five (5) options (the
\n —————–
\n“Expansion Options”) to lease the Expansion Space on the terms and conditions of
\nthis Lease, except as set forth below. “Expansion Space” means the unleased
\nspace in the Project held for lease by Landlord, portions of which may be leased
\nby Tenant pursuant to the exercise of an Expansion Option as described below.
\nFor each Expansion Option that is validly exercised by Tenant, subject to the
\nterms of this Article Landlord will deliver to Tenant vacant possession of not
\nmore than 35,000 nor less than 25,000 square feet of rentable area in the
\nProject. The dates by which Tenant must exercise each Expansion Option are set
\nforth below. If Tenant validly exercises an Expansion Option, Landlord will
\ndiligently attempt to deliver vacant possession of the applicable Expansion
\nSpace to Tenant on or before the dates set forth below:<\/p>\n
\n\n Expansion Option Exercise Date Delivery Date
\n ——————————- ——————————- ——————————-
\n
\n 1\/st\/ Expansion Option 10\/15\/1999 12\/15\/1999<\/p>\n 2\/nd\/ Expansion Option 03\/01\/2000 06\/01\/1999<\/p>\n
3\/rd\/ Expansion Option 09\/01\/2000 12\/01\/2000<\/p>\n
4\/th\/ Expansion Option 12\/01\/2000 06\/01\/2001<\/p>\n
5\/th\/ Expansion Option 06\/01\/2001 12\/01\/2001
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
The Expansion Options can be exercised only by Tenant delivering unconditional
\nwritten notice of exercise to Landlord on or before the applicable exercise date
\nset forth above. If for any reason Landlord does not actually receive this
\nunconditional written notice of exercise when required, that Expansion Option
\nwill lapse and become null and void. If Tenant fails to validly exercise at
\nleast two (2) out of the first three (3) Expansion Options, the fifth (5\/th\/)
\nExpansion Option will lapse and become null and void. The Expansion Options are
\ngranted to and may be exercised by Tenant on the express condition that, at the
\ntime of the exercise and at all times before vacant possession of the Expansion
\nSpace is delivered to Tenant, Tenant is not in default. TIME IS ABSOLUTELY OF
\nTHE ESSENCE. The Expansion Options are personal to the Tenant originally named
\nin this Lease and may not be exercised by or for anyone else (except by an
\nAcquiring Entity), and if Tenant Transfers any part of this Lease or the
\nPremises (except for Outside Subleases that all together aggregate less than 25%
\nof the rentable area of the Premises when made, or Family Subleases that all
\ntogether aggregate less than 75% of the rentable area of the Premises when made,
\nor subleases of any type that all together aggregate less than 75% of the
\nrentable area of the Premises when made) before the beginning of an applicable
\nExpansion Option term, at Landlord’s election that Expansion Option and all
\nfuture Expansion Options will lapse and become null and void.<\/p>\n
28.2 Additional Terms.
\n —————- <\/p>\n
(a) With respect to any Expansion Space that Landlord is required to
\ndeliver to Tenant (and with respect to the Additional Space), Landlord will not
\nincur Liabilities to Tenant if Landlord is unable to deliver vacant possession
\nof that Expansion Space by the applicable date in Section 28.1 (or if it is
\nunable to deliver vacant possession of the Additional Space during September,
\n1999) if due to the holdover of a previous tenant or force majeure, but if due
\nto a holdover or force majeure Landlord will diligently and in good faith
\nattempt to deliver vacant possession of that space as soon as reasonably
\npossible, and Tenant’s rights and obligations with respect to that space will
\ncommence as soon as Landlord delivers vacant possession. If for any reason other
\nthan a holdover or force majeure Landlord fails to deliver vacant possession of
\nthat Expansion Space by the applicable date in Section 28.1 (or if for any
\nreason other than a holdover or force majeure it fails to deliver vacant
\npossession of the Additional Space during September, 1999), as Tenant’s sole
\nright and remedy Tenant will have the right to terminate this Lease provided
\nthat the following conditions are satisfied: Tenant is not in default and has
\nnot committed acts or omissions which with the passage of time or the giving of
\nnotice or both would constitute defaults; within thirty (30) days after the
\nmissed delivery date Tenant delivers written notice to Landlord of its intention
\nto terminate and Landlord fails to deliver vacant possession of the applicable
\nExpansion Space (or the Additional Space) to Tenant within sixty (60) days after
\nreceiving Tenant’s notice; and Tenant delivers a final termination notice on or
\nbefore January 1, 2002. Under these circumstances, the Lease will terminate as
\nof August 31, 2002.<\/p>\n
(b) When Landlord tenders vacant possession of any Expansion Space
\nto Tenant, that space will become part of the Premises and the rentable area of
\nthe Premises will be increased by the rentable area of that Expansion Space. The
\nRent Commencement Date for each portion of the Expansion Space will be the
\nearlier of the dates in Subsections (i) and (ii) below: (i) the date that Tenant
\n——-
\noccupies that Expansion Space to conduct business; or (ii) the date which is the
\nlater of (x) the applicable Delivery Date for that Expansion Space per Section
\n—–
\n28.1, or (y) sixty (60) days after Landlord delivers vacant possession of that
\nExpansion Space to Tenant.<\/p>\n
(c) The base rent per annum per square foot of rentable area for all
\nExpansion Space will be as set forth in Exhibit “D” (which in turn is subject to
\nRider #2).<\/p>\n
(d) If Tenant validly exercises its Expansion Options, it is
\nLandlord’s present intention to deliver Expansion Space first on the second
\nFloor and then on the third Floor of Building 100, but notwithstanding the
\nforegoing or anything else to the contrary, the foregoing is not binding on
\nLandlord, and Landlord may change its intention and deliver Expansion Space in a
\ndifferent order and\/or in different locations, and neither this Lease nor any of
\nTenant’s obligations will be terminated, waived, excused or otherwise reduced in
\nany way by reason thereof.<\/p>\n
RIDER #1
\n ——–
\n Page 2 of 2<\/p>\n
RIDER #2
\n ——–<\/p>\n
EXTENSION OPTIONS<\/p>\n
1. Subject to Rider # 3, Landlord grants to Tenant two (2) options to
\nextend the Lease term of the Initial Space and the Additional Space for
\nadditional terms of five (5) years each, and two (2) options to extend the Lease
\nterm of all Expansion Space leased for additional terms of five (5) years each,
\nand two (2) options to extend the Lease term of all Offer Space leased for
\nadditional terms of five (5) years each (collectively, the “Extension Options”).
\nFor purposes of exercising the Extension Options, the Initial Space and the
\nAdditional Space will be treated collectively (although separately from the
\nExpansion Space, and the Offer Space), and any and all Expansion Space will be
\ntreated collectively (although separately from the Initial Space and the
\nAdditional Space, and the Offer Space), and any and all Offer Space will be
\ntreated collectively (although separately from the Initial Space and the
\nAdditional Space, and the Expansion Space), so that when an Extension Option is
\nexercised or not exercised, it will affect all of the Initial Space and the
\nAdditional Space, or all of the Expansion Space, or all of the Offer Space, as
\napplicable. There will be no further right to extend. The Extension Options for
\nthe Initial Space and the Additional Space can be exercised only by Tenant
\ndelivering to Landlord unconditional written notice of exercise specifying that
\nspace at least one (1) calendar year before the expiration of the applicable
\nterm for that space. The Extension Options for all Expansion Space leased can
\nbe exercised only by Tenant delivering to Landlord unconditional written notice
\nof exercise specifying that space at least one (1) calendar year before the
\nexpiration of the applicable term for that space. The Extension Options for all
\nOffer Space leased can be exercised only by Tenant delivering to Landlord
\nunconditional written notice of exercise specifying that space at least one (1)
\ncalendar year before the expiration of the applicable term for that space. If
\nfor any reason Landlord does not actually receive a notice of exercise when
\nrequired, that Extension Option and any subsequent Extension Option for that
\nspace only will lapse and become null and void and there will be no further
\nright to extend the Lease term of that space. The Extension Options are granted
\nto and may be exercised by Tenant on the express condition that, at the time of
\nthe exercise and at all times before the beginning of the Extension Option
\nperiod, Tenant is not in default (and has not committed acts or omissions which
\nwould constitute a default with the passage of time or the giving of notice or
\nboth). TIME IS ABSOLUTELY OF THE ESSENCE. Landlord will not be required to pay
\nfor or perform any work to or for the Premises.<\/p>\n
2. The Extension Options are personal to the Tenant originally named in
\nthis Lease, and they may not be exercised by or for anyone else (except by an
\nAcquiring Entity). If during the initial term Tenant Transfers any part of this
\nLease or the Premises (except for Outside Subleases that all together aggregate
\nless than 25% of the rentable area of the Premises when made, or Family
\nSubleases that all together aggregate less than 75% of the rentable area of the
\nPremises when made, or subleases of any type that all together aggregate less
\nthan 75% of the rentable area of the Premises when made), at Landlord’s written
\nelection the Extension Options will lapse and become null and void, whether or
\nnot they have been exercised.<\/p>\n
3. (a) The annual base rent per square foot of rentable area for each
\napplicable space (i.e., for the Initial Space and the Additional Space treated
\ncollectively but separately from all other space, and for all Expansion Space
\nleased treated collectively but separately from all other space, and for all
\nOffer Space leased treated collectively but separately from all other space) for
\neach year of each of the first Extension Option terms will be the scheduled base
\nrent for that space as set forth in Exhibit “D.”<\/p>\n
(b) The annual base rent per square foot of rentable area for each
\napplicable space (i.e., for the Initial Space and the Additional Space treated
\ncollectively but separately from all other space, and for all Expansion Space
\nleased treated collectively but separately from all other space, and for all
\nOffer Space leased treated collectively but separately from all other space) for
\neach year of each of the second Extension Option terms will be the greater of:
\n(a) the scheduled base rent for that space as set forth in Exhibit “D”; or (b)
\nthe “fair rental value” of that space determined in accordance with Section 4
\nbelow.<\/p>\n
4. (a) If Landlord and Tenant can’t agree on the annual base rent for
\nthe applicable space for each year of the applicable Extension Option term at
\nleast six (6) months before the beginning of that Extension Option term, then
\nunless otherwise agreed in writing by Landlord and Tenant, Landlord and Tenant
\nwill try to agree on a single appraiser at least five (5) months before the
\nbeginning of the applicable Extension Option term. If they can agree on a
\nsingle appraiser in that time period then that appraiser will determine the fair
\nrental value in accordance with this Rider. If Landlord and Tenant can’t agree
\non a single appraiser within this time period, then Landlord and Tenant each
\nwill appoint in writing one appraiser not later than four (4) months before the
\nbeginning of the applicable Extension Option term. Within fifteen (15) days
\nafter their appointment, the two appointed appraisers will appoint in writing a
\nthird appraiser. If the two appraisers can’t agree, a third appraiser will be
\nappointed by the American Institute of Real Estate Appraisers (or if this
\norganization refuses to act or no longer exists, by an organization deemed by
\nLandlord to be reasonably equivalent thereto) not later than three (3) months
\nbefore the beginning of the applicable Extension Option term. If either
\nLandlord or Tenant fails to appoint its appraiser within the prescribed time
\nperiod, the single appraiser appointed will determine the fair rental value. If
\nboth parties fail to appoint appraisers within the prescribed time periods, then
\nthe first appraiser validly appointed by a party will determine the fair rental
\nvalue. Appraisers must have at least five (5) years’ experience in the
\nappraisal of office property in the area in which the Building is located and be
\nmembers of professional organizations such as the American Institute of Real
\nEstate Appraisers or the equivalent. The appraiser(s) will be required to
\nprovide a written determination of the fair rental value not later than two (2)
\nmonths before the beginning of the applicable Extension Option term.<\/p>\n
(b) For the purpose of this Lease, the term “fair rental value” means:
\nninety five percent (95%) of: the annual base rent per square foot of rentable
\narea that a ready and willing tenant would pay for that space during the
\napplicable Extension Option term to a ready and willing landlord of that space
\nassuming that such space was exposed for lease on the open market for a
\nreasonable period of time, could be used for any lawful use and was improved to
\nits then-existing level, and that a market-rate construction allowance was
\noffered to and received by such hypothetical tenant (even though such
\nconstruction allowance will not actually be paid or provided to Tenant). If
\nonly a single appraiser is appointed as described above, then that appraiser
\nwill determine the fair rental value. Otherwise, the fair rental value will be
\nthe arithmetic average of the two (2) of the three (3) appraisals which are
\nclosest in amount, and the third appraisal will be disregarded.<\/p>\n
(c) If for some reason the fair rental value is not determined before
\nthe beginning of an Extension Option term, then Tenant will continue to pay to
\nLandlord the base rent applicable to that space as described in Section 3(a)
\nabove, as applicable, until the fair rental value is determined. When the fair
\nrental value is determined, Landlord will notify Tenant, and Tenant will pay to
\nLandlord, within thirty (30) days after receipt of such notice, any difference
\nbetween the base rent actually paid by Tenant to Landlord and the new base rent
\ndetermined hereunder (if the new base rent is higher).<\/p>\n
RIDER #2
\n ——–
\n Page 1 of 1<\/p>\n
RIDER #3
\n ——–<\/p>\n
TERMINATION RIGHT<\/p>\n
1. Provided that Tenant has validly leased Expansion Space and\/or Offer
\nSpace, subject to the terms hereof Landlord grants to Tenant the right to
\nterminate this Lease provided that the following conditions first are satisfied
\nin all respects:<\/p>\n
(a) Tenant delivers unconditional written notice of termination to
\nLandlord: (i) during the period starting on March 31, 2007 and ending on March
\n31, 2008 (the “First Termination Notice”); or (ii) if Tenant has not delivered
\nthe First Termination Notice and has validly exercised all of its applicable
\n —
\nfirst Extension Options so that the Lease terms for the Initial Space, the
\nAdditional Space, any and all Expansion Space and any and all Offer Space have
\nbeen extended pursuant to the first Extension Options, then during the period
\nstarting on March 31, 2012 and ending on March 31, 2013 (the “Second Termination
\nNotice”); or (iii) if Tenant has not delivered the First Termination Notice or
\nthe Second Termination Notice and has validly exercised all of its applicable
\n —
\nfirst Extension Options and all of its applicable second Extension Options so
\n —
\nthat the Lease terms for the Initial Space, the Additional Space, any and all
\nExpansion Space and any and all Offer Space have been extended pursuant to the
\nfirst and second Extension Options, then during the period starting on March 31,
\n2017 and ending on March 31, 2018 (the “Third Termination Notice”). Tenant can
\nonly deliver either the First Termination Notice or the Second Termination
\nNotice or the Third Termination Notice.<\/p>\n
(b) Within six (6) months after delivery of either the First
\nTermination Notice or the Second Termination Notice or the Third Termination
\nNotice, as applicable, Tenant pays to Landlord by wire transfer a Lease
\ntermination fee equal to seventy five percent (75%) of the base rent and all
\nadditional rent (including Tenant’s share of Operating Costs, Taxes and
\nLandlord’s insurance premiums) that would have been payable under the Lease
\nabsent early termination for the entire Premises for the period: (i) starting
\nApril 1, 2009 and ending on the last scheduled expiration date of this Lease (if
\nthe First Termination Notice is delivered); or (ii) starting on April 1, 2014
\nand ending on the last scheduled expiration date of this Lease as extended (if
\nthe Second Termination Notice is delivered); or (iii) starting on April 1, 2019
\nand ending on the last scheduled expiration date of this Lease as extended (if
\nthe Third Termination Notice is delivered). In determining Tenant’s share of
\nOperating Costs, Taxes and Landlord’s insurance premiums, the amounts will be
\nequal to the amounts budgeted by Landlord in good faith for the Project for that
\nperiod. This Lease termination fee will be in addition to all other amounts due
\nunder the Lease through and until the date that this Lease terminates. (As a
\nhypothetical example, if Tenant validly delivers the First Termination Notice
\nand is leasing the Initial Space and the Additional Space, 30,000 s.f. of
\nExpansion Space and 30,000 s.f. of Offer Space, the Lease termination fee would
\ninclude no base rent or additional rent for the Initial Space and the Additional
\nSpace [since the Lease terminates as of March 31, 2009 with respect to that
\nspace], all base rent and additional rent that would have been payable for the
\n30,000 s.f. Expansion Space through May 31, 2010 [since the Lease would have
\nterminated then with respect to that space], and all base rent and additional
\nrent that would have been payable for the 30,000 s.f. Offer Space through May
\n31, 2011 [since the Lease would have terminated then with respect to that
\nspace]).<\/p>\n
(c) Tenant is not in default (and has not committed acts or omissions
\nwhich would constitute default with the passage of time or the giving of notice
\nor both).<\/p>\n
2. If the conditions set forth in Section 1 above have been satisfied,
\nthe expiration date of this Lease will be accelerated to March 31, 2009 (if the
\nFirst Termination Notice is validly given), or March 31, 2014 (if the Second
\nTermination Notice is validly given) or March 31, 2019 (if the Third Termination
\nNotice is given). TIME IS ABSOLUTELY OF THE ESSENCE. The termination or
\nexpiration of this Lease will not relieve Tenant from Liabilities incurred by
\nTenant prior thereto. Notwithstanding anything to the contrary, unless
\notherwise specifically elected by Landlord in writing in each instance: (a)
\nTenant will not have the right to terminate this Lease pursuant to the First
\nTermination Notice if, prior thereto, Tenant has exercised any Extension Options
\nor otherwise extended this Lease by mutual written agreement; (b) Tenant will
\nnot have the right to terminate this Lease pursuant to the Second Termination
\nNotice if, prior thereto, Tenant has exercised any of its second Extension
\nOptions for any of its space or otherwise extended this Lease by mutual written
\nagreement (except pursuant to the first Extension Options); (c) Tenant will not
\nhave the right to terminate this Lease pursuant to the Third Termination Notice
\nif, prior thereto, Tenant and Landlord have further extended this Lease by
\nmutual written agreement (except pursuant to the first and second Extension
\nOptions); and (d) from and after the date that Tenant validly delivers either
\nthe First Termination Notice or the Second Termination Notice or the Third
\nTermination Notice, as applicable, Tenant will have no further rights to extend
\nthe term of this Lease or lease any additional Expansion Space, Offer Space or
\nother additional space, and all of Tenant’s rights in connection with Extension
\nOptions, Expansion Options, Offer Space or other additional space shall lapse
\nand become null and void, and Tenant will have no further rights to assign,
\nsublease or otherwise Transfer all or any portion of this Lease or the Premises
\nor any interest therein. (Neither Tenant nor Landlord will have any obligation
\nto negotiate or agree to extensions of this Lease in addition to the Extension
\nOptions already granted in Rider #2.)<\/p>\n
RIDER #3
\n ——–
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